On Tuesday November 28, the Supreme Court of Canada will hear an appeal from the Canadian Human Rights Commission about sex discrimination in the Indian Act. The Commission filed for judicial review of government officials who denied “five persons with Indigenous Ancestry” registration under s. 6 of the Indian Act.
The federal government has the exclusive power to determine who is legally an “Indian”, and therefore who is afforded rights under the Indian Act. From the creation of the Act in 1876 until 1985, status Indian women who married non-Indian men lost their status. This discriminatory provision still has an impact today. The Act was amended again in 2011 to permit the children of women who lost their status to register, however they are unable to pass status on to their own children. The Ontario Native Women’s Association discusses the impact of sex discrimination under the Indian Act:
This act of violence towards Indigenous women continues today, and is the foundation of the high rates of violence suffered by Indigenous women and children within Canadian society. Until Indigenous women have their human rights protected they will continue to go missing, be murdered, sexual exploited, human trafficked and dehumanized.
The Commission is challenging this discrimination in their appeal. The basis of the claim is s. 5 of the Canadian Human Rights Act, discriminatory provision of services customarily available to the public. The Tribunal held that s. 5 of the CHRA did not apply because the complaint was not about discriminatory provision of services, but rather the wording of the Indian Act. The Tribunal stated the proper forum for the complaint would be a s. 15 Charter challenge.
Previous Charter challenges to discrimination in the Indian Act however have lead to a “piecemeal” approach. Instead of striking down the discriminatory provisions for violating the Charter, Parliament has made marginal amendments.
Interveners note the proposed Charter solution also creates access to justice issues. Charter challenges are very expensive, time-consuming, and technically challenging. The Women’s Legal Education and Action Fund (LEAF) along with the Native Women’s Association of Canada (NWAC) submit, “Limiting the types of venue in which historically disadvantaged people can bring claims for redress simply perpetuates their disadvantage.” The Canadian Human Rights Tribunal can provide individual remedies in a more accessible process.
This appeal is especially important in light of the Senate’s amendment to Bill S-3. The amendment proposes the “full and final removal of sex discrimination in the Indian Act.” Indigenous Senators Lillian Dyck and Sandra Lovelace-Nicholas as part of The Famous Six, urge the Prime Minister to accept the amendment:
As advocates for women’s equality, we are shocked that 141 years after its introduction, Canada’s Indian Act still discriminates against Indian women and their descendants, and that your Government is poised to pass legislation that will continue that discrimination.
If Parliament does not accept the amendment to eliminate sex discrimination, the Canadian Human Rights Tribunal will be an essential venue to provide remedies for the Indian Act’s ongoing discrimination. Applications to the Tribunal however, will depend on the outcome of this appeal.
This blog post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PPSC.