B.C. Supreme Court Ruling Strikes Down s. 6 of the 1985 Indian Act

"The B.C. Supreme Court has wiped out one of the most contentious aspects
of the federal Indian Act, striking down part of Ottawa's definition of a
status Indian and opening the door to hundreds of thousands of new
applications for native services. The court rejected part of the existing
legal definition on the grounds that it discriminates against Canadians who
trace their aboriginal roots through their female relatives rather than
their father or grandfather. The ruling alters the federal law that has long
created two classes of aboriginals in Canada: the 767,000 who fit the
definition of status Indian and the several hundred thousand more who don't.
The 2001 census found 976,000 Canadians who self-identified as aboriginal
and more than 1.3 million who said they had aboriginal ancestry. Many
aboriginals who failed in their requests for status will now have a much
better chance of success, said Beverley Jacobs, the president of the Native
Women's Association of Canada.... Aboriginals with status qualify for
prescription drug coverage and can apply for postsecondary assistance.
Status Indians are also exempt from paying taxes on income earned on
reserves. But Sharon McIvor, who successfully challenged the law with her
son Jacob Grismer, argued in court that status also carries a huge social
value in native communities that can mean the difference between acceptance
or rejection."

B.C. Court Strikes Down Status
Provisions of Indian Act,
Appeal, Chaos Certain
"It is the intention of these reasons to declare that s. 6
of the 1985 Act is of no force and effect insofar, and
only insofar, as it authorizes the differential treatment
of Indian men and Indian women born prior to April
17, 1985, and matrilineal and patrilineal descendants
born prior to April 17, 1985, in the conferring of
Indian status."

So said Madam Justice Ross of the B.C. Supreme
Court on June 8 in a case filed by Sharon McIvor
against the Registrar appointed by DIAND to
administer the status and membership provisions of
the Indian Act. The Government has not announced
whether it will appeal.

The full effect of the decision will send out rippling
waves which could end up in a tsunami of unintended
consequences. While the decision specifically is not
intended to affect "membership" in a First Nation, for
about half of the First Nations in Canada,
"membership" comes with "status". Tens of
thousands of persons could suddenly have rights to
reserve residence and demands upon already scarce
resources capped by an annual 2% increase.

Essentially, it means that the 1985 registration
process involving over 100,000 applications is
opened up again. Children of persons eligible to
register priorMadam Justice Ross wrote in her Reasons for
Judgment, "In 1985, the government elected to sever the
relationship between status and band membership. Status
is now purely a matter between the individual and the
state.

"I have concluded that s. 6 of the 1985 Act violates s.
15(1) of the Charter in that it discriminates between
matrilineal and patrilineal descendants born prior to April
17, 1985, in the conferring of Indian status, and
discriminates between descendants born prior to April 17,
1985, of Indian women who married non-Indian men, and
the descendants of Indian men who married non-Indian
women. I have concluded that these provisions are not
saved by s. 1".[which allows discrimination if it can be
"justified"]

The government had asked Justice Ross to suspend
implementation of her decision for 24 months. It said
that unless there was a suspension, "deserving
persons" would be deprived of benefits.

The government also said a suspension would enable
the registration process to continue and afford Parliament
time to seek input from Aboriginal groups in its
development and implementation of a scheme consistent
with the courts ruling.

In regard to this request, Madam Justice Ross quoted the
Supreme Court of Canada in the 1984 Hunter v. Southam
Inc.case:
"While the courts are guardians of the Constitution and
of individuals' rights under it, it is the legislature's
responsibility to enact legislation that embodies
appropriate safeguards to comply with the
Constitution's requirements.

"It should not fall to the courts to fill in the details that
will render legislative lacunae constitutional."

Justice Ross rejected these argument. "Further delay for
these plaintiffs must be measured against the backdrop of
the delays that they have already experienced. The record
discloses that from the late 1970's forward, successive
governments recognized that the registration
provisions discriminated on the basis of sex. It was not
until 1985 that legislation was passed to remedy this
discrimination, legislation that I have found continued
to perpetuate the problem."

The Court retained supervision of the case. "The court
remains seized of the case in order to give the parties the
opportunity to draft appropriate relief in light of these
reasons. Should the parties fail to reach agreement, I will
hear further submissions on the issue of remedy."