Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010*,**

Communication submitted by:Sharon McIvor and Jacob Grismer (represented by Gwen Brodsky)

Alleged victims:The authors

State party:Canada

Date of communication:24 November 2010 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 23 December 2010 (not issued in document form)

Date of adoption of Views:1 November 2018

Subject matter:Entitlement to Indian status as First Nations descendants in the maternal line (discrimination)

Procedural issues:Non-substantiation of claims; victim status; non-exhaustion of domestic remedies; admissibility ratione temporis

Substantive issues:Protection of the law, minority groups, right to enjoy one’s own culture, indigenous peoples, discrimination on the basis of gender

Articles of the Covenant:2 (1) and (3) (a), 3 and 26­–27

Articles of the Optional Protocol:1–3 and 5 (2) (b)

1.The authors of the communication are Sharon McIvor, born in 1948, and her son, Jacob Grismer, born in 1971. They are nationals of Canada and members of the First Nations, residing in Merritt, British Columbia. The authors claim to be victims of violations by Canada of their rights under articles 2 (1) and (3) (a), 3 and 26–27 of the Covenant. The Optional Protocol entered into force for Canada on 19 August 1976. The authors are represented by counsel.

Factual background

2.1Since at least 1906, Indian status, a legal construct created and applied to regulate wide-ranging facets of the lives of members of the First Nations, was defined by Canadian law on the basis of patrilineal descent, excluding maternal lines of descent.

2.2Indian status under Canadian law confers significant tangible and intangible benefits. The tangible benefits include the entitlement to apply for extended health benefits, post-secondary education funding and certain tax exemptions. The intangible benefits relate to cultural identity. They include the ability to transmit status and having a sense of identity and belonging. The authors define Indian status as a dignity-conferring benefit.

2.3The authors are descendants of Mary Tom, a First Nations woman and member of the Lower Nicola Indian Band, born in 1888. Mary Tom’s daughter, Susan Blankenship, is Sharon McIvor’s mother. Susan Blankenship’s father was a man of Dutch descent, with no First Nations ancestors. She was born in 1925, and, under the Indian Act in force at the time, was ineligible to register for Indian status, because it was transmitted through the paternal line, and not through matrilineal descent.

2.4At birth, neither Sharon McIvor nor her siblings were eligible for Indian status, because their claim would have been based on matrilineal descent. On 14 February 1970, Sharon married Charles Terry Grismer, a man with no First Nations heritage, and had three children, one of whom was Jacob Grismer.

2.5Until 1985, under the statutory rules which governed eligibility for registration for Indian status, status was removed from Indian women who married non-Indian men and status was denied to children who traced their First Nations descent through those women.

2.6The revised Indian Act came into effect on 17 April 1985. It governs the entitlement to registration status and determines the class of registration status assigned to Indian women and their descendants. Although the revised Act was intended to eliminate discrimination on the basis of sex, the authors submit that it did not achieve this goal and that it is incomplete remedial legislation, given that it transferred and incorporated into the new regime the existing preference for male Indians and patrilineal descent.

2.7Sharon McIvor was ineligible for full Indian status under section 6 (1) (a) of the 1985 revision of the Indian Act. Under section 6 (1) (c), grounds for registration to which she was entitled at the time of submission of the communication, she could transmit only partial Indian status to her son Jacob and could not transmit status to her grandchildren. In contrast, her brother is eligible to register for full status under section 6 (1) (a) for himself, he can transmit full status to his children, and he can transmit status to his grandchildren. This difference is based solely on sex, given that Sharon McIvor and her brother have the same lineage and the same pattern of marriage and parenting.

2.8On 23 September 1985, Sharon McIvor applied for registration status for herself and her children. The Registrar of Indian and Northern Affairs of Canada determined that she was entitled to register under section 6 (2) of the Indian Act, and not under section 6 (1), because of her non-Indian paternity. Sharon McIvor challenged that decision, which was nonetheless confirmed by the Registrar on 28 February 1989.

2.9On 18 July 1989, the authors filed a statutory appeal against the Registrar’s decision. On 13 May 1994, they also challenged the constitutionality of section 6 of the 1985 revision of the Indian Act, under the Canadian Charter of Rights and Freedoms. In addition, they invoked a violation of articles 2 (1)–(2), 3, 23, 24 (1) and (3) and 26­–27 of the Covenant.

2.10On 2 April 1999, Jacob Grismer married a woman with no First Nations ancestry. Jacob has no standing to pass Indian status to his children and is ineligible for full section 6 (1) (a) status, because his entitlement to status is based on matrilineal descent. If Jacob’s father, rather than his mother, had had Indian status, Jacob would have full section 6 (1) (a) status himself and Jacob’s children would be entitled to acquire it.

2.11On 8 June 2007, the Supreme Court of British Columbia found that section 6 of the 1985 revision of the Act violated the Charter, in that it was discriminatory, on the grounds of sex and marital status, against matrilineal descendants born prior to 17 April 1985 and against Indian women who had married non-Indian men.

2.12The State party appealed the trial court decision in the Court of Appeal of British Columbia. In its decision of 6 April 2009, the Court of Appeal confirmed that section 6 of the 1985 revision of the Indian Act was discriminatory, but on a narrower basis: applying an approach that focused on the Government’s stated objective of “preserving acquired rights”, the Court found that sections 6 (1) (a) and (c) violated the Charter only to the extent that they granted individuals to whom the “double-mother rule” applied greater rights than they would have had under the legislation in force before 1985. The only discriminatory provision of the law that was recognized by the Court as unjustified was with regard to the preferential treatment accorded by the 1985 revision to a small subset of descendants of male Indians. The Court declared sections 6 (1) (a) and (c) of the 1985 revision of the Act of no force and effect, but suspended the effect of the declaration to allow time for legislative amendments.

2.13The authors contend that the declaration of the Court of Appeal does not provide them with a remedy. It did not result in Sharon McIvor’s grandchildren becoming eligible for status, nor did it result in the authors becoming eligible for section 6 (1) (a) status. The leave to appeal was refused on 5 November 2009, without reason.

2.14In March 2010, the Government introduced Bill C-3 amending the 1985 revision of the Indian Act. For the authors, that bill was tailored to the decision of the Court of Appeal and, given that the Supreme Court had denied leave to appeal that decision, it would have been futile to seek further judicial redress. In addition, any attempt to challenge the failure of the legislature to fully correct the discrimination on the basis of sex embedded in Bill C-3 would have entailed an unreasonably prolonged process in court.

2.15On 3 August 2015, the Superior Court of Quebec rendered a decision in a third party’s case, in which it found that sections 6 (1) (a), (c) and (f) and 6 (2) of the Indian Act were an unjustifiable infringement of the protection against discrimination on the basis of sex enshrined in the Charter. However, the Court suspended its order for an initial period of 18 months to allow Parliament to make the necessary legislative amendments. The Government filed an appeal against that decision but abandoned it and began a new process of policy development. On 25 October 2016, Bill S-3 was introduced in the Senate. Sharon McIvor testified before the House of Commons Standing Committee on Indigenous and Northern Affairs, on behalf of the Union of British Columbia Indian Chiefs, and before the Senate Standing Senate Committee on Aboriginal Peoples, as an individual.

2.16On 7 November 2017, the Government introduced further amendments to Bill S-3. The majority of its provisions came into force on 22 December 2017.

The complaint

3.1The authors allege that the sex-based hierarchy embedded within section 6 of the 1985 revision of the Indian Act, on the determination of entitlement to Indian registration status, violates articles 26–27, read in conjunction with articles 2 (1) and 3, of the Covenant, in that it is discriminatory on grounds of sex against matrilineal descendants born prior to 17 April 1985 and against Indian women born prior to that date who married non-Indian men. They consider that, under article 2 (3) (a) of the Covenant, they are entitled to an effective remedy for the violation of their rights under articles 26–27, read in conjunction with articles 2 (1) and 3, of the Covenant.

Article 26 of the Covenant

3.2As a result of the sex-based hierarchy of the status registration regime, Sharon McIvor suffered a form of social and cultural exclusion. Her experience has been that, within First Nations communities, there is a significant difference in the degree of esteem that is associated with section 6 (1) (a) status. She has experienced stigma that is associated with being a “Bill C-31 woman”, the label that is given to women who have been assigned to the section 6 (1) (c) sub-class. The implication is that they are inferior to and “less Indian” than their male counterparts. The stigma extended to her children, to whom she was unable to transmit status, which made her feel inferior. She was unable to acquire access to the tangible benefits of status, such as extended health benefits and post-secondary education funding that were available under the 1985 revision of the Act, for her children when they were growing up.

3.3The injury suffered by Jacob Grismer from not being eligible for full section 6 (1) (a) status from 1985 onwards has been profound. He has lived his whole life in the ancestral territory of his Indian forebears, in Merritt, British Columbia. Throughout high school, he experienced isolation and stigmatization because he did not have Indian status. For example, while he was growing up, he wanted to participate in traditional hunting and fishing activities. He sometimes accompanied friends or relatives who had Indian status on fishing trips to the Fraser River. Because he did not have status, however, he could not pack the fish that others had caught. He was never taught traditional fishing and hunting skills and accordingly feels a great sense of loss. Based on his own experience of the harmful consequences of the denial of his cultural identity, it is of serious concern to him that his children are also ineligible for status. He wants them to benefit from the State’s recognition of their First Nations ancestry, including by their having access to the traditional cultural practices of the community. This is the class of status he would have, but for the fact that his parent with Indian status is female.

3.4The amendments that came into force in 2011, following the adoption of the Gender Equity in Indian Registration Act, did not accord the authors full section 6 (1) (a) status, even though their counterparts in the “double-mother rule” group have such status. The Act could have made Sharon McIvor’s grandchildren eligible for status, but it still left the authors without official recognition of their inherent equality.

3.5As a result of being registered under section 6 (1) (c) of the 1985 revision of the Indian Act, Sharon McIvor was entitled to receive the same tangible benefits as those registered under section 6 (1) (a). However, she did not benefit from the full recognition of status associated with that section. In its 2009 decision, the Court of Appeal suggested, erroneously, that discrimination based on matrilineal descent may not constitute discrimination on the basis of sex if there are multiple generations involved. The prejudicial treatment of matrilineal descent under the Act amounts to discrimination on the basis of sex even if it is against a grandchild or great-grandchild, rather than the child, of the woman who was unable to transmit status solely because of her sex.

3.6The discrimination embedded in section 6 of the Indian Act is not pursuant to an aim that is legitimate, objective or reasonable under the Covenant. The authors disagree with the finding of the Court of Appeal that preserving acquired rights is a legitimate goal justifying the creation of different tiers of status. Preservation of the full status of those registered under section 6 (1) (a) would in no way be diminished by extending that same registration entitlement to others.

3.7The continued discrimination embodied in the 1985 revision of the Act results in the denial of full status under section 6 (1) (a) for authors. Sharon McIvor’s brother and his children, in contrast, are entitled to that status. As a result, his grandchildren are entitled to status and can transmit status to their children. The effect of the discriminatory sex-based status hierarchy will thus continue for generations.

Article 27, read in conjunction with articles 2 (1) and 3, of the Covenant

3.8A key component of cultural identity is the capacity to transmit that identity to descendants, and it is closely linked to personal cultural identity. Intergenerational transmission is particularly relevant in the light of pressing concerns about the continuity and survival of cultural traditions. Section 6 of the Indian Act denies female progenitors – and both the female and male descendants therefrom – the equal right to the full enjoyment of their cultural identity on an equal basis with male progenitors, in violation of article 27, read in conjunction with articles 2 (1) and 3, of the Covenant. It denies them the capacity to transmit their cultural identity to subsequent generations on an equal basis with their male counterparts and deprives them of the legitimacy conferred by full status.

3.9The right of indigenous persons to enjoy their culture has been repeatedly acknowledged in the Committee’s jurisprudence as an essential aspect of their rights under article 27. A foundational aspect of the individual’s right to enjoy his or her culture is the formation of a sense of identity and belonging to a group and recognition of that belonging by others in the group. Cultural identity is shaped by complex processes and encompasses both objective and subjective elements. However, through the legislative schemes that it introduces in that regard, the State assumes a direct role in the formation of the cultural identities of individuals and their communities.

Article 2 (3) (a) of the Covenant

3.10The State party has failed to provide the authors with an effective remedy for the violation of their rights under articles 26–27, read in conjunction with articles 2 (1) and 3, of the Covenant. The amendments introduced into the Indian Act in 2011 did not eliminate the discrimination entrenched in section 6 thereof. The amendment only granted section 6 (2) status to the grandchildren of First Nations women who married non-First Nations men, while grandchildren born prior to 17 April 1985 to status men who married non-First Nations men are eligible for section 6 (1) (a) status.

3.11The 2009 decision of the Court of Appeal of British Columbia and the subsequent denial of the Supreme Court of Canada of leave to appeal that decision have deprived the authors of the remedy that they obtained in the trial court. The only effective remedy will be one that eliminates the preference for male Indians and patrilineal descent and confirms the entitlement of matrilineal descendants, including the entitlement of women who married non-First Nations men, to full section 6 (1) (a) status.

Observations on admissibility

4.1The State party submitted observations on admissibility and the merits on 29 August 2011, 28 February 2012, 28 June 2016, 28 February 2017, 29 November 2017, 31 January 2018 and 10 August 2018. In addition to their initial submission of 24 November 2010, the authors submitted comments on admissibility and the merits on 6 and 16 December 2011, 20 June 2016, 16 March 2017 and 12 May 2018.

Ratione temporis

State party

4.2The authors’ allegations rely in large part on historical discrimination of First Nations women under successive versions of the Indian Act prior to 1985. The general allegations and those relating to the application of the criteria in force before 1985 to the authors are outside the competence of the Committee under the Optional Protocol. Any residual discrimination that resulted from the 1985 revision of the Act to the eligibility criteria was corrected by the amendments of 2011.

Authors

4.3The claims are solely concerned with the effects of the registration regime in force after 1985, and the only reason that it may appear otherwise is that that scheme incorporated and carried forward the discrimination embedded in previous regimes.

Ratione personae

State party

4.4Certain aspects of the communication are inadmissible because the authors cannot demonstrate that the alleged harms are attributable to the Government. The impacts on the authors’ social and cultural relationships that they perceive or in fact suffer because of the provisions under which they are eligible for status should be attributed to the authors’ family and larger social and cultural communities and not to the State.

Authors

4.5The claim is not about violations by non-State actors, but about the conduct of the State party in enacting and maintaining a legislative scheme that is discriminatory on the basis of sex. After more than a century of living under a State-imposed regime that defines who is an Indian, indigenous people view legal entitlement to registration status as confirmation or validation of their “Indianness”, a matter separate from the capacity to transmit status and to acquire access to certain tangible benefits that are conferred by status.

Victim status

State party

4.6In the Committee’s jurisprudence, where an alleged inconsistency with the Covenant has been remedied by the State party, individuals cannot claim to be victims of a violation of the Covenant within the meaning of article 1 of the Optional Protocol. The authors have successfully pursued their allegations of discrimination before tribunals in Canada and have received a remedy that effectively answers their allegations. In the light of the amendments of 2011, the authors have not substantiated their claim that they are victims of discrimination due to distinctions in the criteria for eligibility for Indian status. Therefore, the communication is inadmissible under article 1 of the Optional Protocol in respect of the allegations of discrimination based on articles 2 (1), 3 and 26–27 of the Covenant.

Authors

4.7The 1985 revision of the Indian Act, as amended in 2011 and 2017, leaves intact the core of the discrimination on the basis of sex embedded in the registration provisions, on which the authors successfully brought a case before the Supreme Court of British Columbia, and categorically excludes the authors from eligibility for full section 6 (1) (a) status.

Actio popularis

State party

4.8Certain aspects of the communication related to perceived problems with the eligibility criteria in the 1985 revision of the Indian Act are inadmissible because the authors cannot demonstrate that they are the victims of the harm alleged.

Authors

4.9The authors’ claim is that full section 6 (1) (a) status is reserved for those who can establish their entitlement to registration under the prior discriminatory regime. This is not an actio popularis challenge to the legislation. The sex-based hierarchy embedded in the 1985 revision of the Act affects them personally and directly, and the discrimination that they suffer has not been remedied by the 2011 and 2017 amendments.

Non-exhaustion of domestic remedies

State party

4.10A number of the alleged problems with the eligibility criteria, which do not apply to the authors, are currently being examined through domestic litigation. These allegations were not properly brought before the Supreme Court of British Columbia (at trial), the Court of Appeal or the Supreme Court of Canada (in the application for leave to appeal) for the simple reason that they did not arise on the authors’ facts. These aspects of the communication are therefore inadmissible on the basis of non-exhaustion of domestic remedies pursuant to articles 2 and 5 (2) (b) of the Optional Protocol.

Authors

4.11The authors reiterate that they have exhausted all available domestic remedies.

Observations on the merits

Article 26, read in conjunction with articles 2 (1) and 3, of the Covenant

State party

5.1The 1985 revision of the Indian Act entitled several categories of individuals to register for Indian status, including under section 6 (1) (a), which applies to persons eligible for status immediately prior to 17 April 1985 and preserves previously acquired or vested rights, and under section 6 (1) (c), which applies to persons whose status was restored by the 1985 revision of the Act, namely, those previously removed or omitted from the status list (Indian Register) because they were, inter alia, women who had married non-Indians or their descendants. Section 6 (2) applies to men or women with one parent eligible for status under any paragraph of section 6 (1).

5.2In April 1985, the Indian Act was amended to include the new registration and new band membership provisions. The Court of Appeal in the authors’ case found that the 1985 legislation was a bona fide attempt to eliminate discrimination on the basis of sex and that the Government had acted in good faith in enacting the legislation.

5.3The Indian Act provides for only one Indian status – persons are either eligible for it or not. The 1985 revision of the Act did not create degrees of status or degrees of “Indianness”. The rules governing eligibility for Indian status are found in section 6 of the Act, as amended. The paragraphs of section 6 (1), particularly (a) and (c)­–(e), are essentially transitional provisions which indicate, for persons born before 1985, how the eligibility criteria move from those under the registration regime of 1951 to the criteria in force in 1985, and subsequently to the criteria in force in 2011. For everyone born after 1985, the most relevant provisions are those in sections 6 (1) (f) and 6 (2).

5.4Following the amendments of 2011, Sharon McIvor was still eligible for status under the criteria set out in section 6 (1) (c). Her son was eligible for status according to the new criteria set out in section 6 (1) (c.1), and his children were eligible under section 6 (2). This was the same basis for eligibility that their cousins would have if those cousins were eligible for status based on having one male Indian grandparent instead of one female Indian grandparent.

5.5The children of a person eligible for status under section 6 (1) are eligible for status regardless of the eligibility of their other parent. If a person eligible for status under section 6 (1) has a child with a non-Indian, the child is eligible under section 6 (2), which sets up the possibility for the operation of the so-called “second generation cut-off”, since the child of a person eligible under section 6 (2) and a non-Indian is ineligible for status, regardless of the sex of the eligible grandparent or the sex of the parent. Indian status is lost upon two successive generations of parenting with non-Indians.

5.6The negative impact of the eligibility criteria in force in 1985 on persons in a similar position to the authors was removed by the amendments of 2011, by placing the eligibility of the children of those whose status was reinstated thereby under the criteria in section 6 (1), therefore postponing the second generation cut-off by one generation in those families. This has placed the grandchildren of Sharon McIvor on par with their counterparts who also have only one eligible grandparent – and that grandparent is a man.

5.7The amendments of 2011 removed the distinction in the 1985 revision of the Act and remedied any impact it had on the authors. Contrary to the authors’ claim, there is no discrimination in fact or law between sections 6 (1) (a) and (c). Individuals are either eligible to register for Indian status under the Indian Act or they are not. There is no “sub-class” of persons with some lesser form of Indian status. The various paragraphs of section 6 identify the various bases on which individuals are eligible for status.

5.8All persons eligible for status under section 6 have the same legal rights, and the Government makes no distinctions, either in the treatment of any person or in the provision of any benefits, on the basis of the provision of section 6 on which their eligibility for status is founded. When the federal Government provides funding to Indian bands, which is linked to the number of members of the band who have Indian status, all individuals with status are included. Accordingly, there is no violation of article 26 of the Covenant.

5.9The difference that remains in the eligibility criteria following the amendments of 2011 is the difference between sections 6 (1) and (2). This is the second generation cut-off. However, this issue has not been challenged by the authors, and the second generation cut-off does not distinguish between persons on the basis of sex.

5.10If the Committee considers that there is a distinction between section 6 (1) (a) and sections 6 (1) (c) and (c.1), the distinction is not discriminatory, because it is only one of legislative drafting. Each provision describes a different historical route to obtaining status. Such distinctions are required in order to bring clarity, but do not otherwise negatively affect individuals on the basis of any listed or analogous personal characteristic.

5.11Section 6 (1) (a) includes everyone who had status prior to 1985, when the Indian Act was revised. At the time, the Government’s policy choice included not only the principle that discrimination against women should be removed from the eligibility criteria going forward but also, inter alia, that no one should lose status acquired under previous eligibility criteria. Section (6) (1) (c) covers those who had previously been deprived of Indian status for a variety of reasons, including women who lost status through marriage to a non-Indian, whose status was reinstated under the 1985 criteria.

5.12The preservation of acquired rights – inter alia, that no one should lose status previously acquired – is a legitimate aim and the use of separate paragraphs within section 6 (1) in order to clearly elaborate the various bases for eligibility for persons born prior to 1985 was a reasonable drafting approach. The authors seek criteria that would base eligibility on “matrilineal descent” without regard for how many generations the individual was from the female ancestor in question. The authors’ eligibility for status is based on the reinstatement of Sharon McIvor herself and not on the reinstatement of any of her distant ancestors, male or female.

5.13What the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination on the basis of sex. The State party is not obligated, under the Covenant, to rectify discriminatory acts that pre-date the coming into force of the Covenant. Apart from the uneven application of the second generation cut-off, the impact of which on the authors was corrected by the amendments of 2011, the 1985 revision of the Act did – to a very large degree – have retroactive effect so as to deem ancestors of living persons eligible for reinstatement in order to rectify the issue in their line of descent.

5.14On 29 November 2017, Bill S-3 to extend eligibility for status to all descendants of women who lost status because of their marriages to non-Indian men, who were born prior to 17 April 1985, with retroactive effect to the Gradual Enfranchisement Act of 1869. The change was subject to a clause delaying its entry into force that allowed for consultation with First Nations and other indigenous groups on how and when it would be implemented. The majority of the provisions in Bill S-3 came into force on 22 December 2017, but additional provisions will come into force at a date to be determined by Order in Council.

5.15The amendments that are not yet in force provide that all persons in the maternal line will be entitled to the same status as persons in the paternal line, no matter how many generations removed from the woman who lost status upon marriage, and that both lines of descendants will have the same ability to transmit status to their children. Bill S-3 also eliminates the differential treatment between family members owing to eligibility for registration stemming from the maternal line and not the paternal line, entitling all descendants of indigenous women who lost Indian status upon marrying a non-Indian man between 1869 and 1985 to registration on an equal basis with the descendants of indigenous men. The amendments will also restructure the registration provisions of the Indian Act so that persons that would previously have obtained Indian status under section 6 (1) (c) of the Act, will be eligible for registration under a new section 6 (1) (a.1). The amendments comply with the authors’ requests. While the date of entry into force is not stipulated, the bill contains numerous safeguards holding the Government accountable to Parliament to implement the legislation.

5.16The State party admits that persons registered under the Indian Act have an important interest in transmitting their status to their children. It also recognizes the significant links for some indigenous Canadians between Indian status and their personal identity as indigenous persons. The State party does not agree that the differential treatment of the descendants of Indian women born prior to 1951 violates the Covenant, but it recognizes that there were significant historical inequities related to the treatment of indigenous women under the Act prior to 1951. In recognition of the fact that eligibility for registration under section 6 (1) (a) has special significance for certain individuals, such as the authors, who have experienced historical discrimination on the basis of sex, Parliament adopted amendments through Bill S-3 that would ensure that persons in the authors’ situation become eligible under section 6 (1) (a). Bill S-3 removes the remaining such inequities in the Act by extending eligibility for persons previously affected by the “1951 cut-off”. The State party regrets the historical discrimination and other inequities to which indigenous women and their descendants have been subjected. It views addressing those inequities as an important step towards reconciliation with indigenous peoples.

Authors

5.17The 1985 revision of the Act, as amended in 2011, still excludes from eligibility for registration status First Nations women and their descendants who would be entitled to register if discrimination on the basis of sex were completely eradicated from the scheme.

5.18The amendments of 2011 improved the registration entitlement of Jacob Grismer, making him eligible for section 6 (1) (c.1) status, and thereby able to transmit status to his children. In contrast, Sharon McIvor’s brother and all his children have full section 6 (1) (a) status – a difference based solely on sex. The amendments of 2011 also do not treat Jacob Grismer and his cousins equally: he is ineligible for section 6 (1) (a) status, but his cousins are eligible. Although the authors enjoy the tangible benefits of status for themselves, they still do not enjoy all the intangible benefits on an equal basis with their peers, in particular the legitimacy and social standing.

5.19The State party’s assumption that there is only one Indian status is incorrect. Section 6 (1) (a) status is superior and the intangible benefits associated with it – the ability to transmit status and the legitimacy and social standing conferred by status – are unquestionably superior to those associated with section 6 (1) (c) status and section 6 (2) status, even though the tangible benefits – access to social programs and tax exemptions – are the same. Furthermore, section 6 (1) (c) status is stigmatized within indigenous communities. There is a perception among First Nations communities that “real” Indians are those who have section 6 (1) (a) status. Such differences are not simply a matter of individual perception.

5.20The State party claims that section 6 (1) (c) status is transitional. However, the authors continue to be directly affected by the discrimination that remains in the 1985 revision of the Act, after the 2011 and 2017 amendments, and that will continue for generations to come. The 2017 amendments that have already come into force do not afford them a remedy. They extend a form of the inferior section 6 (1) (c) status to some additional subgroups, but leave the discriminatory sex-based hierarchy between sections 6 (1) (a) and (c) undisturbed.

5.21In their submission of 12 May 2018, the authors reiterated that the State party’s registration regime continued to privilege male Indian progenitors and patrilineal descendants. Even if the State party contends that the distinction between section 6 (1) (a) status and section 6 (1) (c) status is based on reasonable and objective criteria and that the differential treatment on the basis of sex is justified because it preserves “acquired rights”, this is not a legitimate goal for the differential treatment in the registration regime, given that previously acquired rights were conferred under a sex-based status hierarchy created by the State party. This cannot be reconciled with the object and purpose of the Covenant and the fundamental character of the guarantees of equality and equal protection. Furthermore, previously acquired rights would not be diminished by extending full section 6 (1) (a) status to indigenous women, including women who married non-indigenous men and matrilineal descendants, including descendants of married and unmarried women with Indian status, who were previously excluded from status on the basis of non-Indian paternity.

5.22Bill S-3 did not remove the core of the discrimination that resides in the hierarchy between sections 6 (1) (a) and (c). Although it contains a provision (section 2.1) that has the potential to create entitlement to full section 6 (1) (a) status for indigenous women such as Sharon McIvor and her descendants, the provision is not in force. Rather, it is subject to a clause delaying its entry into force, for which there is no fixed date and which has been deferred indefinitely.

5.23The inclusion of section 2.1 in Bill S-3 represents a kind of moral vindication for the authors. The provision, known as the Government’s version of the concept known as “6 (1) (a) all the way”, is an acknowledgement by the State party that the only effective remedy for the ongoing discrimination on the basis of sex in section 6 of the Indian Act is one which accords full section 6 (1) (a) status to all Indian women and their descendants born before 1985, on an equal basis with Indian men and their descendants born prior to that year. Through the additional provisions, the State party has demonstrated that it knows how to fix the problem. The State party declares that under the Government’s version of “6 (1) (a) all the way”, all persons will be entitled to the same status as persons on the paternal line, no matter how many generations removed from the women who lost status upon marriage, and that both lines of descendants will have the same ability to transmit status. It appears that the intention of that amendment is to eliminate the sex-based hierarchy. If that amendment were brought into force, the authors would finally become entitled to section 6 (1) (a) status.

5.24However, because of the lack of a fixed date for the entry into force of section 2.1, the amendment is entirely without legal force and makes the authors’ remedy completely hypothetical. Furthermore, Bill S-3 is devoid of any mechanism to ensure that the amendment will ever come into force, which therefore renders it meaningless as a legal legislative provision.

5.25The authors’ situation of inequality is unchanged by the provisions of Bill S-3 that are already in force. Sharon McIvor continues to be confined to inferior and stigmatized section 6 (1) (c) status. She is neither able to hold section 6 (1) (a) status, nor to transmit that status to her child.

5.26The State party attempts to excuse its failure to bring the Government’s “6 (1) (a) all the way” clause into effect for an indefinite period of time on the grounds that it wishes to consult members of the First Nations. It is not appropriate for the State party to consult on whether to continue legislated discrimination, nor is it necessary to consult on discrimination in the status registration scheme. The State party has been consulting on this discrimination for decades, and consultation has been a tactic for delaying the elimination of discrimination on the basis of sex. More delays cannot be countenanced under the Covenant.

5.27Therefore, the authors request that the Committee find that they are entitled to be registered under section 6 (1) (a) of the Indian Act.

Article 27 of the Covenant

State party

5.28The authors have not adequately claimed or substantiated a violation of their right to enjoy their culture. Both are members of the Lower Nicola Indian Band (part of the Nlaka’pamux Nation), and at issue is their ability to enjoy the Nlaka’pamux culture as practiced by the Band. They have failed to substantiate any violation of their right to enjoy the particular culture of their indigenous group. Moreover, the Committee’s view has been that not every interference is a denial of rights within the meaning of article 27.

5.29The current Indian Act imposes no limit on the authors’ ability to enjoy their own culture, to practice their religion or to speak their language. The question is whether the impact of a measure adopted by the State is “so substantial” that it effectively denies the authors the right to enjoy their culture. In all of its Views under article 27, the Committee has referred to tangible detrimental impacts established by solid proof.

5.30The authors do not allege that they have no right to live on the reserve lands of their band. It is the Lower Nicola Indian Band, and not the Government, that decides who lives on the reserves of the Band on the basis of its membership list.

5.31Indian status is only one facet of the identity of those who are eligible. The legislated scheme for determining eligibility for status does not and cannot confer personal dignity. Furthermore, eligibility for status under any of the paragraphs of section 6 is not a marker for legitimacy, whether personal or cultural, except in the perception of the authors, perhaps bolstered by the actions of family and community. It cannot be attributed to the State party.

5.32The authors conflate cultural identity and Indian status to too great a degree. Indian status is not a legislated approximation of any First Nations culture; it is a determinant of eligibility for a range of specific benefits provided by the State party to individuals. Since the 1985 revision of the Act, Indian status and membership in an Indian band have been separated. Band membership and not Indian status is more closely aligned with cultural identity, given that bands are communities of persons sharing the same culture.

Authors

5.33The authors have demonstrated significant interference with their right to the equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their indigenous cultural identity. A foundational aspect of an individual’s right to enjoy his or her culture is the formation of a sense of identity and belonging to a group and recognition of that identity and belonging by others in the group. The capacity to transmit one’s cultural identity is also a key component of cultural identity.

5.34The State party attempts to avoid responsibility for the impact of its legislated discrimination on the basis of sex within indigenous communities. Given the role that Canada has played in superimposing a patriarchal definition of “Indian” on First Nations communities and the fact that the Indian status registration scheme of Canada continues to preference male Indians and their descendants, the alleged discrimination on the basis of sex is ongoing.

5.35Under the Covenant, the State party is required to ensure and respect the rights of indigenous women to the equal exercise and enjoyment of First Nations culture, on and off reserve, in their local communities and in the broader community of First Nations and individuals of First Nations descent across Canada. When the State party submits that status is not an official recognition of an individual’s cultural identity, it seeks to ignore the harmful effects of its discriminatory Indian status regime. Under the Covenant, however, the guarantee of equality and non-discrimination extends to both the direct and indirect effects of the State party’s conduct in promulgating and maintaining the registration regime.

Article 2 (3) of the Covenant

State party

5.36Article 2 (3) of the Covenant alone cannot give rise to a claim under the Optional Protocol. Since the allegations of violations of articles 26–27 have not been substantiated, there is no foundation on which to find a breach of article 2 (3). In addition, the authors have not only had access to effective remedies, but have also been successful in their cases.

Authors

5.37The authors insist that they have not received an adequate remedy. They request that the Committee: (a) direct Canada to take immediate measures to ensure that section 6 (1) (a) of the status registration regime, introduced by the 1985 revision of the Indian Act, and re-enacted by Bill C-3 and Bill S-3, is interpreted or amended so as to entitle to registration under section 6 (1) (a) those persons who were previously not entitled to be registered under that section solely as a result of the preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants born prior that date; and (b) find that the authors are entitled to be registered under either section 6 (1) (a) of the 1985 revision of the Act or section 6 (1) (a) of the 1985 revision, as amended.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The Committee notes the State party’s contention that the communication should be declared partly inadmissible for failure to exhaust domestic remedies, on the ground that the authors’ allegations were not argued before the Canadian jurisdictions, because the authors lacked standing to raise such allegations. The Committee also notes, however, that the authors challenged the constitutionality of section 6 of the 1985 revision of the Indian Act under the Canadian Charter, also relying on articles 2 and 26 of the Covenant, that, on 8 June 2007, the Supreme Court of British Columbia ruled in their favour and determined that section 6 of the 1985 revision of the Act violated the Canadian Charter, in that it discriminated on grounds of sex and marital status, and that the Court of Appeal of British Columbia confirmed, on 6 April 2009, that section 6 of the Indian Act was discriminatory, albeit on a narrower basis. Following that ruling, the authors sought leave to appeal before the Supreme Court of Canada, which was refused. The Committee considers that the authors have adequately pursued the domestic remedies at their disposal and that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol.

6.3The Committee notes the State party’s objection to the admissibility of the communication on the grounds that the authors’ allegations, to the extent that they relate to the 1951 revision of the Indian Act, should be excluded ratione temporis from the competence of the Committee, as they pertain to Sharon McIvor’s loss of status, which occurred before the entry into force of the Covenant and Optional Protocol for Canada. The Committee notes, however, the authors’ claim that the essence of their complaint lies in the alleged discrimination inherent to the eligibility criteria in section 6 of the Act, as revised in 1985, and amended in 2011 and 2017, which occurred after the entry into force of the relevant instruments for the State party. The Committee therefore considers that it is not precluded, ratione temporis, from examining the authors’ allegations related to the 1985 revision and the 2011 and 2017 amendments.

6.4The Committee also notes that State party’s objection to admissibility based on the fact that the alleged harm and the impact on the authors’ social and cultural relationships are not attributable to the State. However, the Committee notes the authors’ contention that their claim is based on the discriminatory effects of the State’s regulation of Indian registration, including the effects of the State’s actions, as well as the effects caused by non-State actors or resulting from their actions. The Committee therefore considers that it is not precluded, ratione personae, from examining the authors’ claims.

6.5The Committee notes the State party’s allegation that certain aspects of the communication are inadmissible, because the authors point to a series of perceived problems with the eligibility criteria in the 1985 revision of the Act that have no application to them and therefore cannot demonstrate that they are the victims of the harm alleged. In this regard, the Committee recalls its jurisprudence according to which a person may claim to be a victim under article 1 of the Optional Protocol only if his or her rights are effectively violated. The concrete application of this condition is a question of degree. However, no person can in the abstract, by way of actio popularis, challenge a law or practice claimed to be contrary to the Covenant. The Committee, however, notes the authors’ submission that their communication refers to the application to their specific situation of the legal framework created under section 6 (1) of the Indian Act. The Committee therefore considers that the authors may claim to be victims of the alleged violation of their rights under the Covenant in the meaning of article 1 of the Optional Protocol.

6.6The Committee notes the State party’s allegation that article 2 (3) of the Covenant alone cannot give rise to a claim under the Optional Protocol, but it observes that the authors invoked that provision with reference to an alleged violation of their rights under articles 26 27, read in conjunction with articles 2 (1) and 3, of the Covenant. Accordingly, the Committee declares this part of the communication admissible.

6.7The Committee considers that the authors’ claims under articles 2 (1) and (3), 3 and 26–27 of the Covenant have been sufficiently substantiated for purposes of admissibility and proceeds with its examination of the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

7.2The Committee notes the authors’ argument that, until 1985, the Indian Act favoured Indian men and their male descendants and took away status from Indian women who married non-Indian men, while also denying status to children whose First Nations descent was derived through Indian women. In spite of legislative amendments in 2011 and 2017, the authors contend that they continue to be directly affected by the alleged discrimination that remains in the Act. Although the authors admit enjoying the tangible benefits of status for themselves, they contend that they do not enjoy all the intangible benefits of status on a basis of equality with their peers, especially the ability to transmit full section 6 (1) (a) status and the social legitimacy conferred by that status, in violation of articles 2 (1), 3 and 26 of the Covenant. The authors further contend that the continuing discrimination in section 6 of the amended Act has denied them and other female progenitors and their descendants the equal right to the full enjoyment of their cultural identity as members of the First Nations, in violation of article 27 of the Covenant.

7.3The Committee notes the authors’ claim that the 1985 revision of the Act, as amended in 2011, did not recognize their eligibility for full section 6 (1) (a) registration status, while Sharon McIvor’s brother and all his children have full section 6 (1) (a) status. This difference is based solely on sex, given that her brother has the same lineage as she does and the same pattern of marriage and parenting. While he can hold and transmit section 6 (1) (a) status to his children born prior to 17 April 1985, following the passage of the amendments of 2011, she continued to be confined to the allegedly inferior and stigmatized section 6 (1) (c) status, neither able to hold section 6 (1) (a) status nor transmit it to her child. Moreover, the authors claim that this discriminatory state of affairs remains fundamentally unchanged following the amendments of 2017 to the Act, given that the provisions enacted to date have extended a form of inferior section 6 (1) (c) status to some additional subgroups, but have not altered the discriminatory sex-based hierarchy between sections 6 (1) (a) and (c).

7.4The Committee notes the significant efforts by the State party in recent years to address continuing distinctions on the basis of sex in the Indian Act, including the recent amendments of 2017 to the Act and the fact that most of them have come into force. However, section 2.1, which the authors consider to be crucial for their situation, that would bestow 6 (1) (a) status based on maternal as well as paternal lineage, has not entered into force. The authors state that if those provisions were brought into force, the discrimination on the basis of sex would be eliminated and they would become entitled to section 6 (1) (a) status, but that scenario remains hypothetical.

7.5The Committee notes the State party’s argument that there is only one Indian status associated with corollary tangible benefits, such as health benefits, financial assistance and tax exemptions, and that the provision of such tangible benefits is equal for all persons with status under section 6. It also notes the State party’s argument that section 6 (1) (a) includes everyone who had status prior to 1985, whereas section 6 (1) (c) applies to those who were previously deprived of Indian status for a variety of reasons, including women who lost status through marriage to a non-Indian. The State party therefore contends that: there is no discrimination in fact or law between sections 6 (1) (a) and (c); the preservation of acquired rights is a legitimate legislative objective that justifies the distinction, any differences under the subsections of section 6 of the Indian Act are ones of legislative drafting, which describe different background eligibility criteria leading to status entitlement, and the paragraphs of section 6 (1), in particular (a) and (c)–(e), are transitional provisions for persons born before 1985; accordingly, there is no “sub-class” of persons with some lesser form of Indian status; and any differential treatment in access to intangible benefits to persons with status under section 6 (1) (c) is not attributable to the State party.

7.6The Committee recalls that the principle of equal treatment of the sexes applies by virtue of articles 2 (1), 3 and 26 of the Covenant. It further recalls its general comment No. 18 (1989) on non-discrimination, according to which the Covenant prohibits any distinction, exclusion, restriction or preference which is based on any ground, including sex, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. In the present case, the Committee notes that the Indian Act, as revised in 1985 and amended in 2011 and 2017, still incorporates a distinction based on sex. It also notes that, according to the State party, this distinction will be eliminated, and all persons in the maternal line will be entitled to the same status as persons in the paternal line, when the additional provision in Bill S-3 comes into force (see para. 5.14 above). The Committee considers, however, that, given that at the present time those amendments are not yet in force, the distinction based on sex still persists in the Act. The Committee notes that the domestic courts also found that section 6 of the 1985 revision of the Act was discriminatory after the amendments of 2011.

7.7The Committee recalls its general comment No. 18 and its related jurisprudence, in which it indicated that not every differentiation amounted to discrimination, as long as it was based on reasonable and objective criteria, in pursuit of an aim that was legitimate under the Covenant. The test for the Committee is therefore whether, in the circumstances of the present communication, the distinction based on sex in the Indian Act, as amended, meets the criteria of reasonableness, objectivity and legitimacy of aim.

7.8In this connection, the Committee notes that Sharon McIvor is treated differently to her own brother under the Indian Act and, as the State party admits, does not have the same section 6 (1) (a) status as persons in the paternal line and cannot transmit the same status in the same conditions as her brother. The Committee also notes the authors’ argument that, as a consequence of the discrimination on the basis of sex in the Act, the authors have been stigmatized within their community and denied full opportunity to enjoy their culture in community with the other members of their indigenous group. The authors submit that they are perceived as not being “real” Indians; Sharon McIvor is treated as a “Bill C-31 woman”; and, following the adoption of the 1985 revision of the Act, Jacob Grismer was denied full participation in traditional hunting and fishing activities. The authors contend that the State party’s century-old practice of defining who is an Indian has led indigenous people to view legal entitlement to registration status as confirmation or validation of their “Indianness”. The authors also contend that the long-standing distinction in the Act between recognition of status for descendants of the paternal line, but not the maternal line, has contributed to the stigmatization of descendants of the maternal line and that this stigmatization is perpetuated in the different legal status for descendants of the maternal line in the amended Act.

7.9The State party argues that any impact of the status bestowed by the Indian Act, as amended, on the authors’ social and cultural relationships that they perceive or in fact suffer because of the provisions under which they are eligible for status should be attributed to the authors’ family and larger social and cultural communities, and not to the State (see para. 4.4 above). However, the State party acknowledges that the amended Act still maintains a distinction in status based on sex, a distinction that would be eliminated in the pending revision to the Indian Act (see para. 5.15 above). The State party recognizes the significant links, for some indigenous Canadians, between Indian status and their personal identity as indigenous persons. The State party also acknowledges the historical discrimination and other inequities to which indigenous women and their descendants have been subjected, and that eligibility for registration under section 6 (1) (a) has special significance for certain individuals, such as the authors, who have experienced historical discrimination on the basis of sex. The pending revision establishing such eligibility was adopted in recognition of this fact (see para. 5.16 above). The Committee considers that such a discriminatory distinction between members of the same community can affect and compromise their way of life.

7.10The Committee recalls its general comment No. 23 (1994) on the rights of minorities, in which it noted that that article 27 established and recognized a right which was conferred on individuals belonging to indigenous groups and which was distinct from, and additional to, the other rights which all persons were entitled to enjoy under the Covenant. Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples, which may include such traditional activities as fishing and hunting. Positive measures of protection are required, therefore, not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

7.11The Committee also recalls that the prohibition on discrimination in the Covenant applies not only to discrimination in law, but also to discrimination in fact, whether practised by public authorities, by the community or by private persons or bodies. It further recalls that the principle of equality sometimes requires States parties to adopt temporary special measures in order to diminish or eliminate conditions that cause or help to perpetuate discrimination prohibited by the Covenant. In the present case, the State party acknowledges both that differential treatment based on status exists and that the additional provisions of Bill S-3 that are not yet in force will entitle persons in the maternal line to the same status as those in the paternal line. The Committee also notes the State party’s argument that the distinction based on sex existing in the different subparagraphs of section 6 (1) of the 1985 revision of the Act, as amended, is justified by the legitimate aim of the preservation of acquired rights. However, the State party has not demonstrated how recognizing equal status for the authors under section 6 (1) (a) would adversely affect the acquired rights of others. The State party has failed therefore to demonstrate that the stated aim is based on objective and reasonable grounds. The Committee accordingly concludes that the continuing distinction based on sex in section 6 (1) (c) of the Indian Act constitutes discrimination, which has affected the right of the authors to enjoy their own culture together with the other members of their group. The Committee therefore also concludes that the authors have demonstrated a violation of articles 3 and 26, read in conjunction with article 27, of the Covenant.

7.12In the light of the preceding findings, the Committee decides not to examine separately the authors’ remaining claims under the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the authors’ rights under articles 3 and 26, read in conjunction with article 27, of the Covenant.

9.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia: (a) to ensure that section 6 (1) (a) of the 1985 revision of the Indian Act, or of that Act as amended, is interpreted to allow registration by all persons, including the authors, who previously were not entitled to be registered under section 6 (1) (a) solely as a result of preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants born prior to that date; and (b) to take steps to address residual discrimination within First Nations communities arising from the legal discrimination based on sex in the Indian Act. Additionally, the State party is under the obligation to take steps to avoid similar violations in the future.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.