Wiyasiwewin Mikiwahp Native Law Centre Case Watch
UN International Covenant on Civil and Political Rights, Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2020 / 2010. (View decision here)
This case involved a claim by Ms. Sharon McIvor, and her son Mr. Jacob Grismer (the authors) against the State of Canada for violation of their rights under articles 3 and 26, read in conjunction with article 27. On September 1985, Ms. McIvor applied for registration status for herself and her children under the Indian Act (“Act”), as Indian status under the Act confers significant tangible and intangible benefits. The Registrar for Indian and Northern Affairs Canada determined that she was entitled to registration under s.6(2) of the Act and not s.6(1). Although they are descendants of Mary Tom, a First Nations woman born in 1888, at birth Ms. McIvor was initially not eligible for Indian status, as the claim would be based on matrilineal descent. She filed a statutory appeal against the decision.
The British Columbia Supreme Court indicated that s.6 of the Indian Act discriminated on the grounds of sex and marital status between matrilineal and patrilineal descendants born prior to April, 1985 and against Indian women who had married non-Indian men. On appeal, The British Columbia Court of Appeal narrowed the declaration of the British Columbia Supreme Court, finding that s.6 of the 1985 Indian Act was discriminatory, but only to the extent that it grants individuals to who the double-mother rule applied greater rights than they would have had under the pre-1985 legislation. They only found discrimination to a small subset of descendants of male Indians. Leave to appeal was refused without reasons.
Following the passage of the Indian Act, and with the intention to eliminate sex discrimination, it was alleged by Canada that Ms. McIvor could now achieve full Indian status. She contended, however, that being ineligible for Indian status under s.6(1)(a), she still does not receive the full protection of Indian status. Under her s.6(1)(c) registration, she is only able to transmit partial status to her son Jacob and is unable to transmit Indian status to her grandchildren. In contrast, her brother is eligible for full s.6(1)(a) registration status and can transmit his full status to his children. As well, Mr. Grismer, having married a woman with no First Nations ancestry, does not have standing to pass status to his children.
The authors alleged that s.6 of the 1985 Indian Act violates article 26 and article 27 in conjunction with articles 2(1) and 3 of the Covenant (reproduced below for reference) in that it discriminates on grounds of sex against matrilineal descendants and Indian women born prior to April 17, 1985. As a result of the sex-based hierarchy of this status regime, McIvor expressed a sense of stigmatization amongst Indigenous communities from women who do not have s.6(1)(a) status. Mr. Grismer also expressed a sense of isolation from not being s.6(1)(a) eligible, as he is unable to participate fully in hunting and fishing activities.
In respect of article 27, as read in conjunction with articles 2(1) and 3, the authors argued that the capacity to transmit cultural identity is a key component of cultural identity itself. S.6 has the effect of denying female ancestors and their descendants the right to full enjoyment of their cultural identity on an equal basis between men and women, in violation of article 27, read along with articles 2(1) and 3 of the Covenant. Finally, in respect of article 2(3)(a), the authors also argued that the State had failed to provide the authors with an effective remedy for the violation of their rights under articles 26 and 27 in conjunction with articles 2(1) and 3. The only effective remedy will be one which has eliminated the preference for male Indians and their patrilineal descent and confirms the entitlement of matrilineal descendants.
In response, Canada argued that in respect of articles 26, 2(1) and 3, that the Indian Act does not create classes of Indians. On the contrary, the paragraphs in section 6(1) of the 1985 Indian Act are essentially transitional provisions, indicating for persons born before 1985, and how eligibility moves from the 1951 Indian Act registration regime to the 1985 Act, and now the 2011 criteria. Therefore, Ms. McIvor is eligible for status under the criteria of s.6(1)(c), her son is eligible based on the criteria under s.6(1)(c.1) and his children are eligible under the criteria set out in s.6(2). All individuals with status are treated the same in respect of legal rights. According to Canada, what the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination based on sex. The State party is not obligated to rectify discriminatory Acts that pre-dated the coming into force of the Covenant. Moreover, as of November 29, 2017, a new Bill S-3 extends eligibility for status to all descendants who have lost status because of their marriage to a non-Indian man. These provisions are subject to a delayed coming into force clause allowing for consultation with First Nations and other Indigenous groups.
Ms. McIvor and Mr. Grismer contend that although the 1985 Act was amended in 2011, it still excludes from eligibility for registration status Indigenous women and their descendants, who otherwise would be entitled to register if sex discrimination were completely eradicated from the scheme. They also contend that there is more than one Indian status, as s.6(1)(a) status is superior and comes with greater intangible benefits than s.6(1)(c) or s.6(2).
In respect of article 27, Canada argued that the authors have not adequately claimed or substantiated a violation of their right to enjoy their culture. Specifically, they have failed to substantiate any violation of their right to enjoy the particular culture of their Indigenous group. Indian status is but one facet of the identity for those that are eligible. The legislated scheme does not and cannot confer personal dignity. The authors, however, argued that they have sufficiently demonstrated a right to equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their Indigenous cultural identity and that the effect of the law is to exclude the authors from their right to transmit their culture along matrilineal lines.
The Committee found this issue admissible, as the essence of the authors’ claim rests in the alleged discrimination inherent to the eligibility criteria in s.6 of the Indian Act, despite the fact that the loss of status occurred before the entry into force of the Covenant. Additionally, while the alleged harm is argued not to flow from the State laws, the Committee accepted the authors’ contention that the discriminatory effects arose out of the State’s regulation of Indian registration. Other allegations of the State are dismissed with reference to the Committee’s prior jurisprudence.
In considering the merits of the decisions, the Committee made several notes from the arguments above. Of importance are the notes of (1) the authors’ argument that as a consequence of discrimination based on sex in the Indian Act, they have been stigmatized within their community and denied full opportunity to enjoy their culture with the other members of their Indigenous group and that (2) the authors’ argument that the State’s century-old unilateral defining of who is an Indian has led Indigenous people to view legal entitlement to registration status as confirmation or validation of their “Indian-ness”. The Committee further recalled the General comment No. 23, that article 27 establishes and recognizes a right which is conferred on individuals belonging to Indigenous groups, which is distinct from the other rights all persons are entitled to under the Covenant.
In light of these arguments, and from weighing them against the principles articulated above, the Committee found that under article 5(4) of the Optional Protocol, that the facts disclose a violation by the State party of the authors’ rights under articles 3 and 26. Canada is therefore under an obligation to provide the authors with an effective remedy.
See here for a copy of the UN Covenant on Civil and Political Rights
Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Article 2: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.