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Gehl challenges the Indian Act’s legislative silence

By Lynn Gehl       

Author Lynn Gehl offers an insider analysis of Indian Act litigation and the narrow remedies the court imposes. For example, in 1985, Canada removed an offensive word in law—'illegitimate' —while at the same time removed the protective measures associated with it.

Author Lynn Gehl, pictured, questions whether legislative reform in Canada is ultimately an opportunity to make things worse at the level of policy and in practice for Indigenous people. Photograph courtesy of Nik K. Gehl
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Legislative change must not be used by a government as an opportunity to create new forms of sex discrimination—and mask them through legislative silence. This is exactly what Canada has done.

Canada has treaty responsibilities that it has to live up to. We all know this by now. Yet since 1985, and through an amendment to the Indian Act, Canada has been specifically targeting Indigenous children in its goal to eliminate these treaty responsibilities. In 1985 the Indian Act was amended to conform to section 15 of the Charter, which prevents discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Regardless of the implementation of the Charter, for several reasons the legislative change was failed remedial legislation in that it did not eliminate the sex discrimination. In many situations, the change shifted the discrimination onto the grandchildren of Indian women.

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Through Sharon Donna McIvor’s efforts, the Indian Act was amended yet again, in 2011, to remove the continued sex discrimination. This process of legislative change, though, was once again failed remedial legislation in that it did not remove all of it. Offering one example here, some children born to Indian women in common-law relationships before 1985 continue to be denied Indian status registration and therefore their treaty rights. This is in part because the SCC [Supreme Court of Canada] refused to hear McIvor’s appeal. She is now pursuing this matter at the international level.

Author Lynn Gehl. Photograph courtesy of Samantha Moss

Notwithstanding this continued sex discrimination and the long-time efforts to eliminate it, the 1985 changes to the Indian Act not only created a legislative silence or gap in law but also took rights away from children born to mothers registered under section 6(2) of the Indian Act and whose birth certificates lack a father’s signature. What is bewildering about this legislative change is that prior to 1985, “illegitimate” children born to Indian mothers were the same as their mothers: “Indians” as defined by the Indian Act. What this means is that what Canada did in 1985 was remove an offensive word in law, that being the word “illegitimate,” while at the same time removing the protective measures associated with it. In this way, since 1985 Canada has denied many First Nations children Indian status registration and treaty rights resulting from the lack of a father’s signature on their birth certificates.

I must add that post-1985 it does not matter if a child is born inside or outside of the institution of marriage; if a father’s signature is missing on a child’s birth certificate, the father is assumed to be non-Indian. Disturbingly, this practice also occurs in situations of rape and other forms of sexual violence such as incest, sexual slavery, and prostitution. What is more, the mothers of these First Nations children are not entitled to child-support payments. These children are harmed in both directions.

What makes this situation even worse is that many of these children are born in northern First Nations communities where their basic needs of clean water and sanitation—let’s face it, we all hydrate and we all urinate—are not met, and as such they are very much in need of the treaty rights to which they are entitled through Indian status, such as housing, education, and health care. These treaty rights, as many know, are the very rights on which Canada is founded.

I can imagine this knowledge is hard to understand, both in terms of the legal and policy complexity of the issue and, more so, in terms of the absolute absurdity of Canada in doing this. I realize many readers may be asking, “What exactly are you talking about, Lynn? Can you tell me that again?” As stated, to comply with the Charter, in 1985 the federal government of Canada removed the word “illegitimate” and associated protective provisions from the Indian Act and became silent in law in situations where a father’s signature is missing on a child’s birth certificate. Then, at the departmental level, Canada developed a policy and practice that denies many Indigenous children whose mothers are registered under 6(2) of the Indian Act. When a father’s signature is missing, a departmental practice assumes the father is a non-Indian. Through this policy assumption, Canada places First Nations children born to mothers registered under section 6(2), and whose father’s signature is missing on their birth certificate, in a worse situation. I estimate that as a result of this negative assumption of paternity, as many as 25,000 children have been denied entitlement to Indian status registration and consequently their treaty rights.

In summary, what this amounts to is that during an important moment of legislative and human rights remedial action, Canada did the very opposite of meeting the standard outlined in the Charter, actually making the situation worse. Removing the word “illegitimate” from legislation, becoming silent on an issue in law, and then creating and implementing a policy assumption that is more oppressive is the worst form of legislative and policy manipulation I can think of. Is this what legislative reform in Canada is about, an opportunity to make things worse at the level of policy and practice?

In May 1990 and in December 1991 Canada signed and ratified the United Nations Convention on the Rights of the Child, where Article 3 states the best interests of the child must be a top priority. Clearly this process of legislative and policy manipulation is not in the best interest of First Nations children. First Nations children do not deserve to have their needs and their treaty rights manipulated by Canada’s legislation and policymakers. What is it about Canada, our Parliamentarians, and our law and policymakers? Is Canada a kakistocracy that lies to and manipulates its citizenry? Canada, are you proud?

This is an excerpt from the book from Gehl v Canada: Challenging Sex Discrimination in the Indian Act. Reproduced with permission from the University of Regina Press. Dr. Gehl is an author, advocate, public speaker, and artist. She has authored three books: The Truth that Wampum Tells: My Debwewin on the Algonquin Land Claims Process; Claiming Anishinaabe: Decolonizing the Human Spirit; and most recently, Gehl v Canada. She has several academic contributions in journals and chapters in books and more than 140 community contributions in magazines, websites, and newspapers.

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