Stop Indian Act Discrimination

By Bruce McIvor

An open letter to the Minister of Justice and Attorney General of Canada


November 25, 2015

The Honourable Minister Wilson-Raybould, PC, MP, Minister of Justice and Attorney General

Re: Discrimination under the Indian Act

Dear Minister:

Congratulations on winning a seat in Parliament and being appointed Minister of Justice and Attorney General of Canada.

Canadians, both Indigenous and non-Indigenous, are optimistic that your Cabinet position signals a new era in the federal government’s relations with Indigenous Peoples.

Your mandate includes a review of the federal government’s litigation strategy including “early decisions to end appeals or positions that are not consistent” with the Charter of Rights and Freedoms and Canadian values.

Having already dropped the niqab appeal and expressed your intention to review the decision to exclude Newfoundland and Labrador from the residential school settlement, obviously you are committed to expeditiously fulfilling your mandate.

I write to draw your attention to a federal government appeal that is disentitling thousands of Indigenous people across the country and dividing First Nation families.

As you know, in 2010, following the Federal Court of Appeal’s McIvor decision, the federal government amended the Indian Act’s registration rules to address discrimination against women.

Unfortunately, instead of resolving the matter, the amendments further perpetuated discrimination against Indigenous women and men.

Several legal cases have been brought by Indigenous people challenging ongoing discrimination under the Indian Act and Dr. Pamela Palmater has written an impassioned critique, Beyond Blood: Rethinking Indigenous Identity.

Recently, the Quebec Court of Superior Justice considered the issue in Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555.

The Court held that Indian Act registration provisions continue to perpetuate discrimination by treating descendants of Indigenous women differently than descendants of Indigenous men.

The Court ruled that the Indian Act, as amended by the Harper government, violates s.15 of the Charter and is unconstitutional. It gave the federal government 18 months to amend the Indian Act to address the Charter violations.

Importantly, the Court also specifically called on the federal government to adopt a more liberal implementation of the Court’s decision than the narrow approach taken in implementing the McIvor decision.

During the just recent federal election, the Harper government filed an appeal of the Descheneaux decision, a parting poke in the eye to Indigenous people across the country.

As found by the Court, the federal government’s position is inconsistent with the Charter of Rights and Freedoms. The appeal and the federal government’s minimalist implementation of McIvor is poisoning its relationship with thousands of individual First Nation people and denying them the right to pass on their status to their children.

Justice Minister, you must fulfil your mandate and uphold the Honour of the Crown by immediately dropping the Descheneaux appeal and, as ordered by the Court, amending the Indian Act to fully implement the Descheneaux decision.

Yours truly,

Dr. Bruce McIvor

P.S. Sharon McIvor, the appellant in McIvor, and I might be distant relatives, but we’ve never met.

P.P.S Implementing the Descheneaux decision would not affect me or my immediate family, but it would affect my nephews, nieces and cousins.

P.P.P.S. It would also reduce my workload.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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