Section 15 of the Canadian Charter of Rights and Freedoms and the future of federal regulation of Indian status.

• Author: Peach, Ian

In administering the Indian Act and providing programs and services to Aboriginal peoples, the federal government has created numerous distinctions between those who qualify for access and those who do not, on the basis of residency and ability to be registered under the Indian Act (also known as Indian status). The distinctions that the federal government makes among Aboriginal people on the basis of residency and racial background have been roundly criticized for discriminating against First Nations women and Aboriginal peoples who were not recognized as being "Indian" by federal legislation. Aboriginal individuals and groups have also sought to bring an end to these distinctions in both domestic courts and international fora since the early 1980s. While certain elements of the federal legislative regime have been found to be discriminatory under section 15 of the Canadian Charter of Rights and Freedoms (1) and have subsequently been changed, the divisions created by federal legislation and policy largely remain in place and, in some cases, have been exacerbated by the unintended consequences of previous federal efforts to bring the Indian Act into compliance with the Charter. One must ask whether these divisions can be sustained or if they, too, will eventually be declared in contravention of Aboriginal people's fundamental equality rights. One must ask whether the divisions should be sustained, given their disruptive impacts on Aboriginal communities and the sense of identity of Aboriginal individuals, even if they could be sustained legally. Lastly, what alternatives to the Indian Act status rules can one imagine that would reduce the burden of litigation against the federal government?

It is not yet clear from jurisprudence whether the distinctions created by the operation of the Indian Act status rules will be found to be unconstitutional in the face of continued equality rights challenges by Aboriginal people. The weight of jurisprudence, however, seems to have gone against the federal government. All that one can know for certain is that relying on the courts will mean a long, slow process of policy reform. As Bradford Morse has described it:

The ongoing judicial consideration of the Indian Act from the perspective of section 15 rights raises many uncertainties about the future of the Act. The litigation to date suggests that the Indian Act will not be struck down entirely; however, many provisions will likely be invalidated or eviscerated over time on a case-by-case basis. (2) Given the uncertainty about the constitutionality of distinctions between Aboriginal peoples made by non-Aboriginal governments, and the strength of normative critiques of those governments taking on that role, the federal government should replace its current approach of legislating distinctions among Aboriginal peoples with an approach that recognizes self-determination of community membership. While such an approach will certainly not eliminate all discriminatory treatment of non-status and of reserve "Indians", it is unlikely to result in a more discriminatory and disruptive situation than the current federal system. As well, the replacement of federal authority with Aboriginal authority would be a step toward the decolonization of Aboriginal governance.

To support this argument, the second section of this article reviews case law in which Aboriginal people or communities have used section 15 of the Charter to challenge their exclusion from benefits and political rights. The third section looks at a number of normative critiques leveled at legislated distinctions among Aboriginal peoples, both from scholars and from the Royal Commission on Aboriginal Peoples. This article concludes by exploring an option that might replace the federal government's role in defining who is an "Indian".

1. THE DEFINITION OF "INDIAN" IN CANADIAN LEGISLATION

   Settler-state governments did not presume to define "Indian" status for some time after contact and colonization, but they have been interventionist in the last century and a half. The first legislative definition of "Indian" was contained in the Act for the better protection of the Lands and Property of the Indians of Lower Canada in 1850. The definition was a broad one, including all persons of "Indian blood" who were "reputed to belong to the particular Body or Tribe", as well as their descendants; all persons intermarried with this first group and residing among them, and their descendants; all persons residing among the "Indians" whose parents on either side were "Indians"; and all persons "adopted in infancy by any such Indians" and their descendants. (3) This broad definition did not last long, however. The legislation was amended the following year to exclude those adopted in infancy and non-Indian men married to Indian women. (4) After Confederation, the definition of "Indian" used in Canada East (the former Lower Canada) was extended to the entirety of the new Dominion. This was amended in 1869, with the Gradual Enfranchisement Act, so that an Indian woman who married a non-Indian man ceased to be an Indian. (5)

   While the first Indian Act of 1876 referred to "Indian blood" in determining status, the 1951 revision to the Act replaced this with the concept of "registration". A new bureaucratic entity, the Indian Register, was created to administer the process. It also tightened access to Indian status, and the benefits that flowed with it, for fiscal reasons. (6) In the conversion to a centralized system of registration, however, the names of many persons who ought to have been on the band lists were never added, thus denying both them and their descendents access to Indian status. (7) As well, overt gender discrimination continued in the post-1951 status rules. A status Indian woman who married a non-status Indian man automatically lost her status and any attendant rights, while a status Indian man who married a non-status Indian woman not only kept his status, but passed his status onto his wife. Grammond describes the rules of the Indian Act in this period as "ridden with sexist and racist prejudice and . . . geared towards the ultimate goal of assimilation." (8)

   This discriminatory rule was brought before the United Nations in 1981 by an Indian woman, Sandra Lovelace, who had lost her status upon marriage. Between this challenge and the inclusion of the new Canadian Charter of Rights and Freedoms in 1982, which included equality rights, the Government of Canada realized that the overt gender discrimination in the Indian Act needed to be altered. Thus, the government introduced Bill C-31, An Act to Amend the Indian Act. (9) While this removed the most overt gender discrimination in the Indian Act status rules, discrimination between status and non-status Indians continued, often due to the gender discrimination that existed in previous versions of the Indian Act. The Royal Commission on Aboriginal Peoples provided an extensive description of how the status rules contained in Bill C-31 operated and how they perpetuated past gender discrimination. As described by the Royal Commission:

   The bill created two main categories of status Indians. Under subsection 6(1), legal status is assigned to all those who had status before 17 April 1985, all persons who are members of any new bands created since 17 April 1985 (none have been created), and all individuals who lost status through the discriminatory sections of the Indian Act. Subsection 6(2) covers people with only one parent who is or was a status Indian under any part of section 6(1). It must be stressed that the one-parent rule in subsection 6(2) applies only if that parent is entitled to status under subsection 6(1). Thus, ifan individual has one parent covered by subsection 6(2) and one who is non-Indian, the individual is not entitled to status. The children or other descendants of Indian women who lost status under the discriminatory provisions described earlier will generally gain status under subsection 6(2), not subsection 6(1), since the reason their mothers lost status in the first place was that their fathers did not have Indian status when their parents were married. (10) Thus, the Royal Commission concluded that:

   [S]ex discrimination, supposedly wiped out by the 1985 amendments, remains . . . . Such anomalies result from the fact that the Bill C-31 amendments build on past status and membership policies and provisions. They are, in this respect, somewhat reminiscent of the 1951 revisions in which the notion of'entitlement to registration as an Indian' replaced that of 'Indian blood', but without breaking with past practices. (11) Indeed, as will be discussed below, the sex discrimination that was perpetuated by Bill C-31 was successfully challenged in court, leading the federal government to make further amendments to the status rules in the Indian Act through Bill C-3, the Gender Equity in Indian Registration Act, which received Royal Assent on December 15, 2010. (12) Even these amendments, though, have not completely eliminated discrimination and division in the application of the Indian Act status rules. The lesser status created by section 6(2) of the Indian Act, which does not allow one's children to have status if neither parent has status under section 6(1), remains in place. Those who did not have status prior to Bill C-3 and were born before September 4, 1951 will continue to be denied status. Those whose grandmothers had children with non-status men in common-law relationships, and women who are the children or grandchildren of status Indian men who were in common-law relationships, will also continue to be denied status. Men who are children or grandchildren of status Indian men, however, will have status.

2. JUDICIAL CONSIDERATION OF SECTION 15 OF THE CHARTER AND ABORIGINAL PEOPLES

   The first Supreme Court of Canada case to define the conceptual framework for section 15 analysis was Andrews v Law...