Definition of Indian Status to be rewritten by government working with First Nation groups
Ottawa looks to redefine rules for Indian status
OTTAWA — Jun. 04, 2009
Court rulings leave federal government 10 months to set new eligibility standards, with huge financial implications
The Conservative government says it will rewrite the 19th century Indian Act this summer with "willing" aboriginal groups, opting not to challenge a court ruling that struck down the law's definition of Indian.
Few pieces of Canadian legislation are as contentious as the Indian Act, which was introduced in 1876 and has not had a significant update since 1985. That rewrite 24 years ago sought to end the discrimination in the definition of status Indian as it applied to women. However, two recent court decisions in what is called the McIvor case have ruled that women are still treated unfairly in some scenarios when it comes to passing their status down to their grandchildren.
The B.C. Court of Appeal ruled in April that the current definition will be struck down by April, 2010, unless Parliament passes a new definition. However, the ruling did not recommend a way for MPs to fix the problem.
Lawyer Larry Gilbert, a former registrar at Indian Affairs and the author of a book on Indian status, said he suspects the government is trying to legislate now in a bid to save money and reduce the number of new status Indians.
Mr. Gilbert said the original lower-court decision could have added 100,000 people to the ranks of status Indians because it would have granted status to anyone who could show they were excluded because of the rules in place from 1876 to 1985. However, the B.C. Court of appeal found that the problem with the law was far more narrow and its ruling would likely extend status to only a few thousand people who were discriminated from 1985 onward as a result of the rewrite of the law.
Mr. Gilbert said he suspects the government does not want to risk a further appeal that might agree with the original decision.
"This allows them to escape responsibility," he said. "The B.C. Court of Appeal gave them an escape hatch to avoid responsibility for the discrimination that remains."
Opening the issue of Indian status carries huge financial implications for the federal government and band councils. Health Canada currently provides status Indians with non-insured medical benefits, such as prescription drugs. Status Indians can also apply for federal programs that help finance post-secondary education. Meanwhile, band councils use Indian status to determine their membership, which affects local decisions such as the distribution of social housing on reserves.
Indian Affairs Minister Chuck Strahl said the number of aboriginals who would be granted status through a new definition is "unknown" for now.
"We have 10 months to do it, which is enough time. That means we're going to have to move fairly quickly," he said. "I've already contacted both the Assembly of First Nations and the National Aboriginal women's association to talk about my desire to work with them over the summer to come up with the best plan forward on a legislative way to correct what the court sees as really a gender-based decision that has to be fixed."
The Assembly of First Nations, the main organization representing natives with status, is not commenting until it hears whether Sharon McIvor, the woman who challenged the current law, will appeal. The deadline for appealing the latest decision is Friday.
An official with AFN who did not want to be identified noted that the organization has supported Ms. McIvor's position throughout the process. Ms. McIvor did not return a phone call from The Globe and Mail.