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From the Lawyers Weekly

Indian status: changing the status quo 

By John Rowinski - September 25 2009 issue

How is an individual’s ethnic identity determined? This question lies at the root of a B.C. case that, outside of the aboriginal Bar, has escaped widespread scrutiny.

In McIvor v. Canada (Registrar of Indian and Northern Affairs), [2009] B.C.J. No. 669, the B.C. Court of Appeal declared that s. 6 of the Indian Act is of no force and effect as it infringes the equality rights guaranteed by s. 15 of the Charter, and cannot be saved by s. 1. Parliament was given a deadline of April 6, 2010 to amend the Act.

Sharon McIvor is a status Indian pursuant to 1985 amendments to the Act. McIvor’s children also have status, even though their father is a “non-Indian.” Her son Charles married a non-Indian woman. As a result of what has been dubbed the “second generation cut-off,” Charles’ children do not have Indian status. Conversely, the children of Charles’ sister have status because their father is an Indian.

McIvor claims that the denial of status to Charles’ children is discriminatory on the basis of gender. The problem arises from the 1985 amendments, which reinstated women who lost their status as a result of marrying non-Indian men (Indian men who married non-Indians kept their status and their wives gained status as well).

The second generation cut-off therefore operates differently for those who trace their Indian heritage maternally versus those who trace it through their paternal lineage. McIvor’s family provides a stark manifestation of this inequality, as some of her grandchildren are status Indians, because of their father, and some are not.

At trial, McIvor won a complicated remedy in which the trial judge struck s. 6 of the Act immediately. The ruling granted Indian status to all individuals who could demonstrate that somewhere in their ancestry a female person lost status by marrying a non-Indian.

The appeal court agreed that s. 6 of the Act was discriminatory, but determined that the trial judge’s characterization of the Charter violation was too broad. The court held that “The 1985 legislation violates the Charter by according Indian status to children

1. who have only one parent who is Indian (other than by reason of having married an Indian),
2. where that parent was born prior to April 17, 1985, and,
3. where that parent in turn only had one parent who was Indian (other than by reason of having married an Indian), if their Indian grandparent is a man, but not if their Indian grandparent is a woman.”

The court determined that the grandchildren of a “hypothetical brother” of McIvor would have Indian status by s. 6 of the Act. It accordingly held that the source of the inequality arising from the 1985 amendments was the fact that it granted “enhanced status” to the grandchildren of a male who married before 1985 when compared to a female in the same circumstances. In other words, the appeal court found that it is not cutting off status based on generational lines that is discriminatory, but rather the preferential treatment afforded to Indian men who married prior to 1985.

McIvor has sought leave to appeal the decision to the Supreme Court. If leave is granted, Canada has sought leave to cross-appeal, and to delay the deadline for amending the Act.

The nature of the relationship between Indians and the Crown requires Parliament to “define” the identity of “Indians” for purposes of administration and delivery of resources and services. Now Parliament, and potentially the Supreme Court, must determine how to define a group of people. The underlying effect of McIvor’s characterization of the Charter breach is to validate the antiquated notion that “blood quantum” provides a valid measure of “Indianness.”

A generational cut-off is the same as a blood quantum, or racial, definition of “Indian” (for example, concluding that someone who is less than one-quarter blood is not not an Indian). Sociologists criticize this methodology as being an arbitrary social construct. Indeed, this methodology could ultimately lead to the eradication of all status Indians over the course of several generations.

A more progressive definition would be a form of self-identity based on ethnicity, factoring in ancestry, culture and lifestyle, the same way a person might describe themselves as Jewish-Canadian or Irish-Canadian. The difference is that Indian status creates rights and entitlements to limited lands and resources. An increase in the number of Irish-Canadians does not have the same administrative or economic repercussions as an identical increase in the number of status Indians.

Whether or not leave is granted by the Supreme Court, McIvor will influence how Canada defines individuals or groups for the purposes of the delivery of resources and services. Its potential impact goes far beyond the realm of aboriginal law, and for that reason the case merits far greater attention than it has so far been afforded.

JOHN ROWINSKI is a lawyer practicing out of his office in Brooklin, Ontario. He provides advice to and acts on behalf of First Nations and related organizations in various types of litigation and dispute resolution, policy and protocol drafting, day-to-day management advice as well as consultation and negotiation with the Crown and third parties. In addition to his Aboriginal Law work, John's practice encompasses professional liability and a wide range of commercial and civil litigation. John is the Past Chair of the Ontario Bar Association's Aboriginal Law Section, sits on the Executive of the Canadian Bar Association's National Aboriginal Law Section and is a frequent speaker at Aboriginal Law conferences and workshops across Canada. He has been selected by his peers to be included in the 2009 and 2010 editions of "The Best Lawyers in Canada" in the practice of Aboriginal Law.