Indian Act still discriminates against First Nations women, says UN Human Rights Committee

Sharon McIvor, who petitioned the UN committee in November 2010 with her son Jacob Grismer, says the decision is 'a game changer for a lot of women.'

Ruling is 'a game changer for a lot of women,' says Sharon McIvor, who filed the complaint

Sharon McIvor speaks at a news conference in Vancouver in 2015. She and her son Jacob Grismer filed a petition to the UN Human Rights Committee in November 2010 over sex discrimination in the Indian Act. (Jonathan Hayward/The Canadian Press)

The United Nations Human Rights Committee says Canada still discriminates against First Nations women and their descendants through status requirements under the Indian Act despite several amendments since 1985.

In an 18-page decision released Jan. 14, the committee said Canada is obligated to remove the discrimination and to ensure that all First Nations women and their descendants are granted Indian status on the same footing as First Nations men and their descendants.

Sharon McIvor and her son Jacob Grismer filed the petition to the UN Human Rights Committee in November 2010.

"I'm not in this alone and there are hundreds of thousands of women and descendants waiting," said McIvor at a news conference held in Vancouver.

"I'm very happy with the decision. If Canada follows through as they're supposed to do, it's a game changer for a lot of women."

The fight for gender equity

Prior to 1985, women with Indian status who married a non-Indigenous man lost their status, and their children were denied status. Sharon McIvor's grandmother was a member of the Lower Nicola band in B.C. who married a non-Indigenous man.

Following 1985 amendments, McIvor was eligible for status but found she and her brother were in different status categories, where he could transmit full status to his children and grandchildren and she could not.

In 2011, in response to the B.C. Court of Appeal's McIvor v. Canada decision, Canada passed Bill C-3 Gender Equity in Indian Registration Act allowing Indian status to be passed on to the grandchildren of women who lost their status for marrying a non-Indigenous person.

McIvor told CBC News that filing a human rights complaint with the United Nations was necessary because a sex-based hierarchy of status remains in the act, even with subsequent Bill S-3 amendments in 2017. 

Consultations ongoing

The most recent amendments to the act came into force in December 2017, with the exception of a provision related to the removal of a practice of linking registration reform to the date of 1951 (commonly known as the '51 cut-off). The federal government is currently consulting First Nations on how to implement the removal of '51 cut-off and broader issues around Indian registration, band membership and citizenship.

McIvor criticized the consultations, saying their purpose has been "to scare status Indians that the addition of the women who are entitled will somehow destroy their rights as they know it," and that it is "asking if it's OK to continue to discriminate."

"You can't give permission to discriminate," she said.

'A grandmother of thousands'

Pamela Palmater, chair in Indigenous Governance at Ryerson University, said the decision is more significant than people may realize.

"Sharon McIvor is already a grandmother of thousands of descendants of Indigenous women who have been wrongfully excluded from the Indian Act since before 1985, but also since 1985," said Palmater.

Pam Palmater said the Liberal government has been slow to implement UNDRIP. (Pam Palmater)

"Now because of this case, she brings within her family even more descendants who have been wrongfully excluded." 

Palmater said she is one of them.

"I wouldn't even have my political voice today as a First Nations person if Sharon had not won her original case. My kids are still excluded," she said. 

Palmater said through McIvor's work, her own children can "be a part of a larger family that they always should have been but for the sex discrimination in the Indian Act."

180 days to respond

Viviane Michel, president of Quebec Native Women, welcomed the decision.

"This decision confirms what QNW has been denouncing since its founding 45 years ago: The Indian Act discriminates against Indigenous women and their descendants, and this discrimination continues despite the amendments to the Act since 1985," she said. 

"This decision represents an important support in our fight for equality, because it sends a clear message to the Canadian government: it must put an immediate end to discrimination against Indigenous women and provide redress to all those who suffer the consequences."

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The UN committee gave Canada 180 days to report back on the measures taken to remedy the issue. 

"Gender equality is a fundamental human right, and that was why it was a priority of our government to finally eliminate all sex-based discrimination from the Indian Act through Bill S-3," said Matthew Dillon, spokesperson on behalf of the Office of Crown-Indigenous Relations, in a statement.

He said the government appointed Claudette Dumont-Smith as a Ministerial Special Representative to work with their partners to develop a plan to remove the 1951 cut-off, and broader issues around registration and membership.

"This collaborative process is another step toward ensuring First Nations have self-determination over how they define themselves and their communities," said Dillon.

"Our government will be reporting to Parliament in June on the implementation plan and next steps."