The B.C. Court of Appeal has given the federal government a year to change parts of the Indian Act that violate the charter rights of some aboriginal women and their children.
In a unanimous decision, the court found that 1985 amendments to the Indian Act designed to bring it in line with the Charter of Rights actually discriminated against aboriginal women who married non-aboriginal men and against their children in terms of conferring Indian status and the benefits that come with it.
The legislative reforms were supposed to end sex discrimination under Section 15 of the Charter, but instead, the court found it ended up creating further discrimination.
The ruling stems from the case of Sharon McIvor of Merritt, B.C., and her son Charles Grismer. McIvor lost her Indian status when she married a non-aboriginal man.
And even after reforms reinstated status to an entire generation, Grismer was still barred from passing on Indian status to children that he had with his non-aboriginal spouse.
McIvor fought for 20 years to reinstate herself and her son after the Indian Act was amended in 1985.
Before 1985, if two generations of status Indian men married non-Indian women, the next generation lost its Indian status at age 21.
After 1985, while that generation's Indian status was reinstated for life, McIvor and her son were passed over because she was a woman.
"While the legislative schemes are complex, the complaint is essentially that Mr. Grismer's children would have Indian status if his Indian status had been transmitted to him through his father rather than through his mother," Justice Harvey Groberman wrote in the judgment.
Government has 60 days to appeal
The government has 60 days to decide whether it will ask for leave to appeal to the Supreme Court of Canada.
The ruling strikes down some elements of the original B.C. Supreme Court decision that spurred the government's appeal.
The lower court ruling gave the government no time to implement changes before the law's unconstitutional sections were voided and would have granted Indian status to anyone who could show that somewhere in their family background a woman lost Indian status by marrying a non-Indian.
It's not clear how many people could be affected, said lawyer Mitchell Taylor, who acted for the Department of Indian and Northern Affairs in the case.
"It's something that is still being looked at. [It] could be several thousand but I can't be more specific than that at this point."