Law Times

Law TiMes • May 10, 2010 NEWS PAGE 3 der equity, according to the Ca- nadian Bar Association. Bill C-3, the gender inequity in Indian registration act, has been before Parliament since March in response to a B.C. Court of Appeal ruling in the long-running McIvor v. Canada (Registrar of Indian and North- ern Affairs) case, which found amendments to the law in 1985 had breached s. 15 of the Char- ter of Rights and Freedoms. The issue revolves around the ability of women to pass on their status to their children and grandchildren. Up until 1985, Indian women lost their status when they "married out" to non-Indian men. "The fact is that the grand- children of women who married out between 1951 and 1985 are not treated with full gender eq- uity," says Christopher Devlin, a member of the CBA's national aboriginal law section. He pre- sented the CBA's concerns to a parliamentary committee con- sidering the bill in Ottawa af- ter it passed first reading in the House of Commons. "The whole point of the McIvor case and apparently bill C-3 is to make sure the right to transmit Indian status is af- forded to the matrilineal line to the same degree that it is afford- ed to the patrilineal line," says Devlin. "So there is residual sex discrimination even within the four corners of bill C-3." Sharon McIvor, the activist at the heart of the case, says she's unhappy with the bill. "It is terribly deficient. They know it's not complete and they think they can get away with it because it's only the Indian wom- en that are being discriminated against and nobody really cares." People registered under s. 6(1) Since 1998 Untitled-2 1www.lawtimesnews.com ntitled-2 1 5/4/10 2:33:21 PM 4/27/10 10:58:13 AM New Indian law maintains gender inequity: CBA P BY MICHAEL McKIERNAN Law Times roposed amendments to Indian registration rules fall short of providing gen- of the Indian Act have what many call "full status" in that they're able to pass it onto their children, whether or not they marry an- other status Indian. Since 1985, children with only one registered Indian parent get what is col- loquially known as "half status." They can only pass on their sta- tus if they marry another Indian under what's called the second- generation rule. McIvor lost her status when she married a non-Indian. Then, in 1985, the Mulroney govern- ment introduced Bill C-31, which revamped the law to ad- dress Charter concerns. McIvor had her full status reinstated, but her son could only gain half sta- tus. By allowing the children of men who married out to retain their full status, she claimed Bill C-31 was discriminatory and took her campaign to court. The trial judge agreed and ordered the reinstatement of any person who could show a descen- dant had lost status due to the marrying-out rule. However, in 2009, the B.C. Court of Appeal drastically narrowed the scope of that ruling in finding most of the discriminatory aspects were justi- fied under s. 1 of the Charter. "The difficulty lies in the tran- sition between a regime that dis- criminated on the basis of sex and one that does not," wrote Justice Harvey Groberman. "The main argument put forward by the defendants — that the 1985 leg- islation was a compromise with several goals, including preserving existing rights — should properly be considered under s. 1." The court found the prefer- ential reinstatement of full status to a small number of Indians un- der the so-called double-mother rule, an earlier incarnation of the second-generation rule, was an unjustifiable Charter breach and directed the government to fix it, which bill C-3 is intended to do. Nevertheless, Devlin says it doesn't go far enough, adding the oversight in addressing even this narrow breach could be a result of the incredibly complicated nature of the issue. "It's such a highly technical, torturous reasoning to get to the unjustifiable breach of s. 15 that it's quite remarkable because you step back, and there's generations of discrimination that the bill doesn't address." McIvor was refused leave to appeal the decision to the Affairs Canada, wouldn't comment on the CBA's concerns but says the proposed amend- ments addressed only the sec- tions identified by the Court of Appeal because of time pressure. "The timelines are short, and there is a need to avoid a legis- lative void," she says, noting further amendments could yet come about. Over the next few months, we will be setting up an exploratory process on the broader issues associated with registration, membership, and citizenship. Supreme Court of Canada. "She theoretically still was the successful party on the ap- peal, even though it was a stra- tegic victory for Canada," says Devlin. "It's hard to appeal when you sort of win." Margot Geduld, a spokes- woman for Indian and Northern "Over the next few months, we will be setting up an explor- atory process on the broader is- sues associated with registration, membership, and citizenship." The government says it expects the new law will grant Indian sta- tus to about 45,000 more people. Currently, there are 800,000 "Our concern is we will get an influx of people who are go- ing to be tapping into a body of resources that are insufficient to carry our own people at the mo- ment," he says. "They're creating this whole new class of Indians, and there's nothing that comes with them." LT Luncheon Seminar Everything you need to know about the ACC Value Challenge and ACC Value Index Thursday, May 27, 2010 Toronto Board of Trade 4th fl oor – Rooms A,B,C,D 1 First Canadian Place, Toronto, ON 12:00 p.m. – 12:30 p.m. Registration & Lunch 12:30 p.m. – 2:00 p.m. Seminar Program Join us for an engaging panel discussion on how the Association of Corporate Counsel has changed the way in-house legal departments do business and relate to their outside counsel fi rms. 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