Entitlement to equal status for women in the Indian Act has once again been delayed, after the House of Commons voted in favour of an amended form of the Senate’s Bill S-3 this week.

The legislation is supposed to eliminate the long-standing discrimination against Indigenous women embedded in the Act, and to go beyond what is narrowly required by the Quebec Superior Court’s 2015 ruling in Deschenaux v. Canada. But the provisions designed to do this won’t come into force with the Bill’s passage, and there is no fixed date for their implementation. That means that, for Indigenous women and their descendants, full equality is put off again to some unknown future date.

This is discouraging, given that Prime Minister Justin Trudeau has told us repeatedly that he is committed to women’s equality, to a new nation-to-nation relationship with Indigenous peoples, and to ending the crisis of murdered and missing Indigenous women. Canada will fail on all these fronts until it removes the sex discrimination from the Indian Act.

Discrimination against Indigenous women is as old as Canada. It is a marker that defines Canada as a colonial, patriarchal nation-state. Since 1876, the Indian Act has treated Indigenous women and their descendants as nonpersons and, more recently, as second-class “Indians,” which is the term used in the legislation. In early versions of the Indian Act, an Indian was “a male Indian, the wife of a male Indian, or the child of a male Indian.”

For the most part, from 1876 to 1985, Indian women could not transmit their status to their descendants. There was a one-parent rule for transmitting status, and that parent was male. Indian women lost their status when they married a non-Indian, while Indian men who married non-Indians kept their status and endowed status on their non-Indian wives.

In anticipation of the coming-into-force of Canada’s new constitutional equality rights guarantee in 1985, the federal government introduced Bill C-31. It removed some of the sex discrimination, but it did not remove the male-female hierarchy. Instead, Bill C-31 entrenched it by creating category 6(1)(a), for (mostly male) Indians and their descendants who already had full status prior to April 17, 1985, and the lesser category 6(1)(c), for women whose status had been denied or whose status had been removed because of marriage to a non-Indian. The women were considered “re-instatees,” and were assigned a lesser status that restricted their ability to transmit that status to their children.

From this flows all the current discrimination problems. Since 1985 a string of court cases — McIvor, Matson, Gehl, Deschenaux — have tried to undo this entrenched sex discrimination. The Government of Canada has responded to these cases by removing the sliver of discrimination identified by each litigant, while leaving the sex-based hierarchy of 6(1)(a) and 6(1)(c) status in place. To make the situation more complicated, in 2010 Stephen Harper’s government introduced a new twist by barring the descendants of women born before 1951 from eligibility for status.

The Senate of Canada made a valiant attempt to remove the discrimination entirely in June 2017 by passing “6(1)(a) all the way,” an amendment to Bill S-3. The Senate’s amendment was dubbed “6(1)(a) all the way” because it would have entitled Indian women and their descendants to 6(1)(a) status on the same footing as their male counterparts.

Placard from 2010 demonstration protesting continuing sex discrimination in the Indian Act. Photo and art by Lynn Gehl.

But the federal government resoundingly rejected it. The government’s compromise with the Senate has been to add its own “6(1)(a) all the way” provisions to Bill S-3, but to delay their coming into force until an unspecified future. The bottom line is that once more Indigenous women and their descendants have been told to wait for equality. They will get it, maybe, at some point, but not now.

Most people agree that the Indian Act is a colonial instrument for controlling and assimilating Indigenous peoples that should be discarded. But as long as it exists, it must not discriminate against women. As long as it exists, its treatment of Indigenous women as second-class persons, lesser parents, and lesser Indians, is profoundly damaging to the women, their children and their communities.

Throughout the years, the so-called “Bill C-31 women” or “6(1)(c) women” have been treated as though they are not “truly Indian,” or “not Indian enough,” less entitled to benefits and housing, and obliged to fight continually for the recognition of male Indigenous leaders, their own families and communities, and the broader society. In many communities, having 6(1)(c) status is like a scarlet letter – a declaration of one’s lack of worth. The damage caused to and the injustice suffered by the women has been neither recognized nor remedied.

In 2017, consultation is a guise for further delay. Consultation should enhance the implementation of human rights, not block it.

Two investigations, by the Inter-American Commission on Human Rights and the United Nations Committee on the Elimination of Discrimination against Women, found that sex discrimination in the Indian Act is a root cause of the crisis of murders and disappearances, precisely because Indigenous women have been cast out of their communities and treated like marginal human beings.

Why now, in 2017, do we need further delays? The Government of Canada claims that consultation is needed with First Nations and other Indigenous groups about issues relating to Indian registration, Band membership, citizenship and the future of the Indian Act. However, there have been consultations with Indigenous communities about sex discrimination in the Indian Act by successive federal governments for the past 50 years, always with the promise that consultation would lead to removal of the discrimination. And yet, after repeated consultations, the sex discrimination remains. In 2017, consultation is a guise for further delay. Consultation should enhance the implementation of human rights, not block it.

As long as the federal government refuses to grant equal status in the Indian Act, the message is clear: equality for Indigenous women is too complicated, too costly. But Canada cannot be not a healthy, rights-respecting nation while we continue to deny equality to Indigenous women; nor can Indigenous nations thrive as long as women are not equal partners and participants in their communities. Indigenous women are entitled to equality now. Equality delayed is equality denied.

Photo: Meryl McMaster, Avian Wanderer III, 2015, Archival Pigment Print on Watercolour Paper, 20″ x 30″ (detail).

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Sharon McIvor
Sharon McIvor is a lawyer, teacher, union leader, member of the Lower Nicola Band in British Columbia.
Pamela Palmater
Dr. Pamela Palmater is a Mi’kmaw lawyer from Eel River Bar First Nation. She is an author, activist and currently serves as Professor and Chair in Indigenous Governance at Ryerson University in Toronto.
Shelagh Day
Shelagh Day is the chair of the Human Rights Committee of the Canadian Feminist Alliance for International Action, a human rights expert, and a Member of the Order of Canada.

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