Tag Archives: Human Rights

West v Cold Lake First Nations, 2021 CHRT 1

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Complaint dismissed in its entirety. A Cree woman and member of Cold Lake First Nations, submitted a complaint to the Canadian Human Rights Commission that she was discriminated against contrary to her race, national or ethnic origin and family status in rejection of her band council nomination. Further, she submitted that the Nation retaliated due to her filing this complaint, by reassigning her daughter’s future house to another member of the Nation.

Indigenous Law Centre – CaseWatch Blog

In 2016, Bonnie West, a First Nations Cree woman and member of Cold Lake First Nations [“CLFN”], attempted to stand for election as councillor to sit on the CLFN band council. Her nomination was rejected by the elections officer, and Ms. West filed a complaint with the Canadian Human Rights Commission, which was referred to the Tribunal in 2019. She alleged that she was discriminated against contrary to section 5 of the Canadian Human Rights Act [“CHRA”] in the provision of services by the Nation on the grounds of her race, her national or ethnic origin, and her family status. Ms. West has also amended her complaint, adding an allegation of retaliation by CLFN, contrary to section 14.1 of the CHRA. Her daughter was not given access to a new house in the community, in contrast to what had been planned. Ms. West believes that CLFN acted in this manner in retaliation against her filing her complaint.

CLFN is a First Nations community in Alberta with a population of about 3,000 members both on and off the reserve. In 1986, CLFN adopted the Cold Lake First Nations Election Law [“1986 Election Law”], which was approved by order of the former Minister of Indian and Northern Affairs. In the 2016 election for CLFN’s chief and band council, a member of the Nation nominated Ms. West to run for election as a councillor on the band council. After she was nominated, another member of the Nation protested Ms. West’s nomination. The protest alleged that Ms. West was not a direct descendant of original treaty citizens, contrary to the 1986 Election Law. The elections officer at the time had to consider the matter and determine whether Ms. West fulfilled the requirements.

Even though the 1986 Election Law does not clearly stipulate what is meant by “original treaty citizens”, the evidence establishes on a balance of probabilities that this expression refers to the signatories of Treaty No. 6. He asked Ms. West to provide him with a document, specifically an affidavit supporting her nomination, within 48 hours. Ms. West filed a short sworn statement with the elections officer, in which she declared before a commissioner of oaths that she was eligible to stand as councillor given that she was a direct descendant of original treaty citizens. The evidence reveals that no other documents were submitted, such as Ms. West’s family tree or the document confirming her North American Indian Blood Quantum as she did at the hearing. The elections officer found that Ms. West did not fulfill the requirements. After receiving the elections officer’s decision by email, she asked him which additional documents were needed to establish that she could stand as a candidate for election. The evidence reveals that Mr. Adam did not answer her question.

Ms. West is challenging the rejection of her nomination, which resulted from the verification of whether she met the eligibility criteria set out in the 1986 Election Law. In applying the 1986 Election Law and the candidate eligibility criteria, the officer was merely ensuring that Ms. West met or complied with the criteria established by the Nation when it created and passed its own election law. Therefore, it appears that Ms. West’s challenge is more an issue with the 1986 Election Law itself and its selection criteria (Forward v Citizenship and Immigration Canada, 2008 CHRT 5).

In this matter, the band council exercised its authority by enacting its own 1986 Election Law within its jurisdiction, which falls within the federal sphere (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 (CanLII)). The fact that the Department of Indian Affairs and Northern Development allowed CLFN, by order in council, to adopt its own election law does not render the 1986 Election Law immune from scrutiny under the Charter (Ratt v Matchewan, 2010 FC 160 [“Ratt”]; Taypotat v Taypotat, 2013 FCA 192). The type of challenge Ms. West has brought should have been brought in the right forum, the Federal Court. The Federal Court has jurisdiction over the officer’s actions as well as over matters relating to the Nation’s elections (Ratt; Ballantyne v Nasikapow, 2000 CanLII 16594 (FC)). This jurisdiction of the Federal Court also extends to reviews relating to the application of the Charter and section 15, regarding equality rights.

 Ms. West alleged that she was a victim of retaliation under section 14.1 of the CHRA. The preponderance of evidence does not support Ms. West’s claims. Her daughter lives in the CLFN community and she was informed by a consultant for the Nation that she was to receive a house to replace the one she was living in. Reasons for reassigning the house to another member of the community were provided and were credible.

Pruden v Manitoba, 2020 MBHR 6

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The Human Rights Adjudication Panel allowed in part the complaint of an Anishinaabe child and his mother alleging government departments denied them health care and related services on the basis of ancestry. Various healthcare services made available to other Manitobans were either denied or delayed based on the Government of Manitoba’s position that they were the responsibility of the federal government. This was obvious adverse treatment and concurrent federal jurisdiction over health care for First Nations did not provide a reasonable justification for discriminatory treatment. 

Indigenous Law Centre CaseWatch Blog

An Anishinaabe child and his mother complain that government departments have denied them health care and related services on the basis of their ancestry. At the time of the hearing, the complainant Alfred Pruden [“Dewey”] was a 16- year-old Anishinaabe boy. Dewey resided in Pinaymootang First Nation with his mother, the complainant Ms Harriet Sumner-Pruden, and his father.

Dewey was born with many disabilities, including a progressive neurological disorder called Sturge-Weber syndrome. He was prone to seizures during the initial years of his life, requiring him to take many medications. Eventually, Dewey underwent brain surgery when he was four in the hope that the procedure would address his seizures. Instead, he developed new problems: he lost his ability to speak even the very few words that he had previously used; glaucoma led to vision loss; his motor skills were impaired; his overall development was significantly delayed; and, he developed an autism spectrum disorder and attention deficit hyperactivity disorder.

The respondent offered health care and related services to Manitobans afflicted with such conditions, and those services even extended to the parents of children like Dewey. However, the respondent did not make those health care and related services available to Dewey and his mother in the same way that many other Manitobans received them. Sometimes, the respondent simply denied some services. In other instances, services were provided but delayed. In yet more circumstances, services were provided but then intermittently withdrawn. The respondent informed Dewey’s parents that its offering of health care and related services reflected the constitutional division of powers, whereby the federal government was responsible for the provision of health care and related services to Aboriginal individuals living in First Nation communities.

As a result, Ms Sumner-Pruden filed a human rights complaint on behalf of Dewey and in her own right. The complaint alleges that the Manitoba Government had discriminated against Dewey and Ms Sumner-Pruden in the provision of health care and related services on the basis of their Anishinaabe ancestry and Dewey’s disability. Moreover, the complaint asserted that the discrimination had occurred without any bona fide and reasonable cause.

The respondent has discriminated against the complainants. There is no dispute among the parties that Dewey and his mother Ms Sumner-Pruden are Anishinaabe. Their ancestry is a characteristic that the Human Rights Code [“Code”] expressly protects at s 9(2)(a). It is equally accepted that Dewey has a physical and mental disability, which falls within s 9(2)(l) of the Code’s protected characteristics. The same problems did not afflict neighbouring non-First Nations communities, and those residents enjoyed health care and related services without denial, delay, or interruption. As a result, the complainants suffered treatment that was obviously adverse.

The complaint is allowed in part. Taking into account the spectrum of Manitoba awards for injury to dignity, feelings, or self-respect, the adjudication panel awards $30,000.00 to Dewey and $12,500.00 to Ms Sumner-Pruden. The respondent shall hereafter provide health care and related services to the complainants without regard to the fact that they are Anishinaabe individuals who reside in a First Nation community.

Kim v Vancouver Native Health Society and another, 2020 BCHRT 153

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The British Columbia Human Rights Tribunal dismissed a complaint under s. 27 (1)(c) of the Human Rights Code on the basis that it had no reasonable prospect for success. The Complainant unsuccessfully argued discrimination in employment based on race and place of origin by the Vancouver Native Health Society.

Indigenous Law Centre
Indigenous CaseWatch Blog

Ms. Ji Kim is an immigrant from Korea and a former employee of the Vancouver Native Health Society [“Respondent”]. She alleged that she was not afforded the same funding opportunities as other team members, experienced bullying, false accusations, and different performance standards applied to Aboriginal employees. She also alleged that her termination was due to her not being an Aboriginal person and that this amounts to discrimination in employment based on race and place of origin contrary to section 13 of the Human Rights Code [“Code”]. The Respondent denies the allegations and seek to dismiss the complaint on the basis that it has no reasonable prospect for success as per section 27 of the Code.

The Tribunal must consider the whole of the evidence to determine whether there is no reasonable prospect that the complaint will succeed (Workers’ Compensation Appeal Tribunal v Hill, 2011 BCCA 49). When assessing the evidence, the Tribunal looks for internal and external consistency and considers it in the context of the overall relationship between the parties and the circumstances in which the alleged discrimination occurred (Ritchie v Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110).

Race must be proven as a factor in the adverse impact that Kim experienced. Direct evidence of race-based discrimination is rarely available and as a result, it is necessary to draw inferences from the evidence to prove such (Mezghrani v Canada Youth Orange Network (No. 2), 2006 BCHRT 60). In regard to the allegation of discrimination pertaining to the funding opportunities, neither the complaint nor the response to the application explains how her race was a factor in the decision not to approve the funding requests for her Indigenous clients requiring support. There were other workers seeking funding for their clients that were not Aboriginal, but Kim did not explain nor provide any evidence from which a reasonable inference could be drawn as to what would single her out.

Kim does not deny that many issues arose during the course of her employment nor that she had several conflicts with her co-workers. There has been no reference to Indigenous identity in the communications made to her and the allegations regarding “inappropriate racial comments” are found to have been too vague. They allege that she was a poor performer, had poor interpersonal skills and despite months of coaching and guidance, she did not demonstrate signs of improvement. The Respondent assured that the decision would have been the same regardless of whether she was Aboriginal or not.

The Tribunal decided that the complaint had no reasonable prospect of success at a hearing. The application was granted, and the complaint dismissed in its entirety under section 27 (1)(c) of the Code.

RR v Vancouver Aboriginal Child and Family Services Society (No 4), 2020 BCHRT 22

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West Coast LEAF’s application to intervene granted in part in a complaint of alleged discrimination, as it can contribute a unique and helpful perspective regarding the social context of Indigenous people in child welfare.

Indigenous Law Centre CaseWatch Blog

RR filed a complaint of discrimination against Vancouver Aboriginal Child and Family Services Society [“Society”] alleging that its decision to deny her custody and restrict access to her children amounts to discrimination on the basis of her race, ancestry, color, and mental disability. West Coast LEAF applied to intervene in the complaint under s 22.1 of the Human Rights Code [“Code”] stating it could assist the Tribunal to situate the complaint in its broader social context as well as interpreting both the Code and the Child, Family and Community Services Act in a manner consistent with the Charter and international law. RR supported the intervention, the Society opposed it.

Neither party raised issues related to Charter values, and in the view of the Tribunal, none arose in the complaint. Rather, this case involved an application of s 8 of the Code to the facts of this case, within a framework well known to human rights law and therefore the application to make submissions about Charter values was denied. Second, this complaint did not require the Tribunal to interpret s 8 or apply it in a novel circumstance and therefore that application was denied as well.

A different conclusion was reached for the remaining three proposed submissions. Based on the Tribunal specifically identifying the need to have full regard to the social context of Indigenous people in child welfare, the first two submissions concerned the social context underlying the complaint. West Coast LEAF had a unique and helpful perspective to bring to the Tribunal established through their demonstrable expertise in equality.

The application of West Coast LEAF to intervene was granted as follows: it had leave to make oral submissions during the opening, not to exceed 10 minutes; it had leave to file written submissions at the close of the hearing; the scope of the submissions was limited to the issues identified above; and it did not have standing to take part in any procedural matters before the Tribunal without leave.

Smith v Mohan (No 2), 2020 BCHRT 52

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Remedy granted. An Indigenous woman’s complaint is justified against her landlord that she was discriminated against and harassed connected to her protected characteristics. The landlord is ordered to pay her compensation of lost wages and expenses incurred, as well as $20,000 for injury to her dignity, feelings and self-respect.

Indigenous Law Centre – CaseWatch Blog

Ms. Smith is an Indigenous person and a member of the Tsimshian and Haisla Nations. Smudging is part of her connection to and expression of her Indigenous identity and, for her, a regular spiritual practice. For roughly the first half of 2017, she lived in an apartment she rented from Mr. Mohan. Ms. Smith says that from the time the parties began discussing entering a tenancy and during it, Mr. Mohan said things to her she found offensive and which she says were discriminatory harassment based on stereotypes about Indigenous people. She also says she was adversely impacted in tenancy by what happened when Mr. Mohan learned she had been smudging in her apartment, which included attempts to evict her and – after his attempts to evict her for cause failed – refusing to accept her rent payments. Ms. Smith filed this complaint in which she says Mr. Mohan discriminated against her on the basis of her race, ancestry, place of origin, and religion in tenancy contrary to s 10 of the Human Rights Code [“Code”].

Mr. Mohan denies discriminating against Ms. Smith, but instead were efforts at inter‐cultural dialogue. He also says Ms. Smith was not adversely impacted in tenancy for reasons connected to her protected characteristics by what happened after he learned she smudged. He says he has a policy for his properties that prohibits nuisances and behaviour that damages his property. He says he attempted to evict Ms. Smith because of this policy, not because of her protected characteristics. He also says that, in the alternative, his conduct was justified because Ms. Smith failed to cooperate in his efforts to accommodate her smudging.

Section 10 of the Code prohibits discrimination regarding a term or condition of a tenancy because of the race, ancestry, place of origin, or religion of a person. For Ms. Smith to succeed in her complaint of discrimination under s 10 of the Code, she must prove, on a balance of probabilities, that she experienced an adverse impact in her tenancy and that her race, ancestry, place of origin, or religion were a factor in that adverse impact (Moore v BC (Education), 2012 SCC 61 [“Moore”]).

There is no dispute that, as an Indigenous person, Ms. Smith has one or more of the “constellation” of protected characteristics under the Code relating to one’s cultural background and identity, or that Ms. Smith’s spiritual practices are protected by religion as a protected characteristic. The overriding issue for this matter is whether Ms. Smith was adversely impacted in tenancy for reasons connected to her protected characteristics and, where a justification defence is available, whether Mr. Mohan’s conduct was justified. There is no dispute a complainant has an obligation to participate in the accommodation process, and to accept solutions that are reasonable, without insisting on perfection (Central Okanagan School District No 23 v Renaud, [1992] 2 SCR 970 [“Renaud”]. If the complainant rejects a reasonable proposal, the respondent’s duty to accommodate is discharged and the complaint is dismissed (Renaud).

Ms. Smith established her case, therefore the burden shifted to Mr. Mohan to justify his conduct (Moore). Mr. Mohan repeatedly accused Ms Smith of smoking marijuana both in messages to her and before the Residential Tenancy Branch, which could be of some significance to a person who is a teacher. He did not pursue this defence at the hearing. Mr. Mohan repeatedly attempted to evict Ms. Smith, both for cause and, when he was unsuccessful, for landlord’s use of property. Mr. Mohan ultimately refused to accept further rent payments from Ms. Smith. Ms. Smith was quite simply denied the right to enjoy her home, especially near the end of her tenancy. The discrimination impacted her ability to meet a fundamental need: a home for herself and her family.

Discrimination in respect of a person’s home can be particularly egregious, and is often marked by a power imbalance between landlord and tenant (Biggings obo Walsh v Pink and others, 2018 BCHRT 174; James obo James v Silver Campsites and another (No 3), 2012 BCHRT 141). Overall, it was found the nature of the discrimination serious and favoured a fairly significant award.

Shiozaki v Aboriginal Mother Centre Society and another, 2020 BCHRT 10

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Ms. Shiozaki has no reasonable prospect of proving discrimination against non-Aboriginals working for the Aboriginal Mother Centre Society, therefore the complaint is dismissed.

Indigenous Law Centre – CaseWatch Blog

Ms. Shiozaki worked for the Aboriginal Mother Centre Society [“Society”] for about three months before being placed on administrative leave and eventually fired. She identified as “Japanese in origin”. Ms. Shiozaki alleged the President of the Society’s Board of Directors held discriminatory attitudes towards non-Aboriginal people and thought that only Aboriginal people should be working for the Society. She said her race, ancestry, and colour, as well as disability were factors in her negative treatment by the Respondents. The Society denied discriminating. They say that they never treated Ms. Shiozaki adversely because of characteristics protected by the Human Rights Code. Her employment was terminated because she committed fraud and breach of trust and bullied other employees.

The decision addressed three issues: 1) Ms. Shiozaki’s request for further document disclosure; 2) the Respondents’ application for dismissal; and 3) Ms. Shiozaki’s application for costs arising out of what she argues was improper conduct by the Respondents in the course of this complaint.

Ms. Shiozaki said the Respondents failed to comply with an earlier Tribunal order respecting seven categories of documents. The Respondents produced all documents ordered by the Tribunal. They were not required to create and produce affidavits about issues in contention, nor were they required to disclose documents protected by solicitor-client privilege. Therefore Ms. Shiozaki’s request for further orders respecting disclosure was denied.

There was no evidence to suggest that, generally speaking, the Society was an organization that favoured the interests of its Aboriginal staff. Because she felt she had been treated unfairly, her race must have been a part of that. Further, because she was on medical leave when a number of adverse decisions were made, that must have amounted to discrimination based on disability. This revealed a deep misunderstanding about discrimination and the context of Aboriginal people in Canada. This extended to the functioning of the Society itself, where Ms. Shiozaki argued the Society was engaging in discrimination by only providing services to Aboriginal mothers. The argument is further belied by the fact that the person hired to replace Ms. Shiozaki was not Aboriginal. Any connection between the Respondent’s conduct and Ms. Shiozaki’s protected characteristics was purely conjecture. The Respondent’s conduct was supported by sworn affidavits and documentary evidence. This complaint had no reasonable prospect of success and therefore dismissed.

Ms. Shiozaki argued that the Respondents engaged in improper conduct by using documents they obtained in the course of this complaint to fight her application for EI benefits. As the documents were all in the Society’s possession independently of this process, the Society was entitled to use them in other proceedings. The two pieces of information Ms. Shiozaki argued the Society had acted improperly on were not confidential to this process and therefore, there was no evidence the Respondents acted improperly in the course of this complaint and the application for costs was denied.

Campbell v Vancouver Police Board, 2019 BCHRT 12

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Intervenor status granted. A First Nations woman must still prove the facts of her human rights complaint against the Vancouver Police Board at the hearing.

Native Law Centre

Deborah Campbell, a First Nations woman, filed a complaint with the Human Rights Tribunal [“Tribunal”] under s 8 of the Human Rights Code [“Code”]. Ms. Campbell felt that the Vancouver police mistreated her when arresting her son because of her visible Indigenous heritage. The Vancouver Police Board [“VPB”] denied the allegation of mistreatment and discrimination. The Union of BC Indian Chiefs [“UBCIC”] applied to intervene in the complaint under s 22.1 of the Code. The UBCIC wanted to provide the Tribunal with context surrounding the relationship between the BC police and Indigenous people as that would allow the Tribunal to gain a better understanding of the complaint. Campbell supported the intervention, and the VPB opposed it in concern that it would expand the scope of the complaint and remove the litigation away from the parties.

The Tribunal has broad discretion to allow a person or group to intervene in a complaint, and to specify the terms of that intervention (Hall v BC (Minister of Environment (No 4)), 2008 BCHRT 437). That discretion is conferred by s 22.1 of the Code. When considering an application to intervene, the Tribunal will balance the likelihood of the intervenor in making a “useful contribution” to the resolution of the complaint against the risk of prejudice to the parties, and the risk that the intervenor will “take the litigation away” from the parties (Hughson v Town of Oliver, 2000 BCHRT 11).

The Tribunal recognized that Indigenous people are disproportionately underrepresented in complaints that are brought before it. There are deep-rooted prejudicial implications of colonialism that continually impact Indigenous people based on their race and ancestry. Evidence of social context, however, was deemed to be inconclusive on its own when determining if discrimination has occurred (Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39). At the hearing, the burden of proof remained on Ms. Campbell to prove the facts of her complaint. Merely establishing a context of “difficult” or “harmful” relationships between the VPD and Indigenous people would be insufficient on its own to determine that VPD violated Ms. Campbell’s rights under s 8 of the Code. The Tribunal considered these factors and granted UBCIC the opportunity to make oral and written submissions at the opening and closing of the hearing. If UBCIC wanted to introduce its own expert advice at the hearing, it was responsible for applying to do so.

Environmental Challenges on Indigenous Lands: A CIGI Essay Series

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Wiyasiwewin Mikiwahp Native Law Centre

“Indigenous lands are under ever-increasing pressure from governments and extractive sector corporations that are eager to encourage economic development and foreign investment. Against a backdrop of colonialism and dominant societies’ disregard for Indigenous peoples’ own laws, these lands have become the site of conflict and environmental degradation. When Indigenous communities find themselves dispossessed by the government’s approach to extraction licensing, infrastructure development and the establishment of environmental processes and protections, trust can erode quickly.

In November 2018, Indigenous leaders, environmental activists, human rights lawyers, academics, advocates and extractive industry participants came together at a conference in Banff, Alberta to discuss the ongoing efforts to hold industry and government accountable for legacy environmental damage. The discussions provided an opportunity for Indigenous peoples’ own laws to be brought to the foreground in finding solutions to today’s most difficult environmental challenges — and provided inspiration for this essay series. Environmental Challenges on Indigenous Lands explores the complex conflicts between international, domestic and Indigenous law when it comes to addressing a global environmental crisis, supporting economic development and making steps toward meaningful reconciliation.”

View essay publications of the Environmental Challenges of Indigenous Lands: A CIGI Essay Series here.

Bill C-262 Letter from Experts to Canada’s Honourable Senators

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Wiyasiwewin Mikiwahp Native Law Centre

A letter, submitted by 101 various experts and academics in the fields of Indigenous, human rights, constitutional law and/or international law, urges Canada’s Honourable Senators for the swift proceeding of Bill C-262 before the current session of Parliament ends.

Summary of Bill C-262 Letter from Experts:

Bill C-262, formally titled, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples” was passed on May 30, 2018, in the House of Commons. Indigenous peoples and individuals, leaders, and human rights experts hailed this historic event as a victory for the human rights of Indigenous peoples in Canada.

The letter, however, communicates the concern that misguided claims or apprehensions continue to be used by some Senators to justify opposition and slow the progress of the bill in the Senate. This piece of legislation does not create new rights. It establishes a process for the government, in full partnership with Indigenous peoples, to achieve implementation of the Declaration in Canadian law in the three following ways: 1) Bill C-262 affirms the Declaration as a universal international human rights instrument with application in Canadian law. This is consistent with the fact that the UN Declaration already has legal effect in Canada and can be used by Canadian courts and tribunals to interpret Canadian laws; 2) the Bill requires the government to work with Indigenous peoples to review existing laws and bring forward reforms to ensure their consistency with the Declaration and; 3) Bill C-262 creates a legislative framework for the federal government to collaborate with Indigenous peoples to establish a national action plan for the implementation of the Declaration. Bill C-262 has been referred to Committee, 11 months after its adoption by the House of Commons.

Below are the links to the English and French versions of Bill C-262 Letter from Experts.

English Version of Bill C-262 Letter from Experts:
EN_Bill C-262 Letter from Experts

French Version of Bill C-262 Letter from Experts:
FR_Bill C-262 Letter from Experts

 

UN Rules That Canada’s Indian Act Discriminates Against First Nations Women

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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.