Section 6 of the Indian Act and 'The Second Generation Cut-off Rule'-A Factum

• Author: Roger Wah-Shee
• Position: Is from the Tlicho Nation in the Northwest Territories and is a third year law student at the University of Victora
• Pages: 14-21

14 n APPEAL VOLUME 13

COMMENTARY

SECTION 6 OF THE INDIAN ACT AND “THE SECOND

GENERATION CUT-OFF RULE” – A FACTUM

By Roger Wah-Shee*

CITED: (2008) 13 Appeal 14-21

In the Appeal Law Review Court

BETWEEN

Roger Wah-Shee, Shaeden Wah-Shee

PLAINTIFFS

and

Canada (Registrar, Indian and Northern Affairs)

and The Attorney General of Canada

DEFENDANTS

I - OVERVIEW

Despite Parliament’s efforts to eliminate inequities in the Indian Act1 (the “Act”) in 1985,

status Indians continue to be discriminated against in relation to their ability to pass Indian or

treaty status to their children. The passing of Bill C-312 resulted in numerous categories of

Indians and restrictions on status which continue to target the core of Indian families for as-

similation into Canada.

This factum was inspired by the recent British Columbia Supreme Court (“BCSC”) deci-

sion McIvor v. Canada3 (“McIvor”) which successfully challenged s. 6 of the Act4 on similar

grounds. It was held that s. 6 continues to prefer descendants who trace their Indian ancestry

along paternal lines over those who trace it along maternal lines.5 The BCSC declared s. 6 to be

unconstitutional insofar as it authorized the differential treatment of matrilineal and patrilineal

* Roger James Wah-Shee is from the Tlicho Nation in the Northwest Territories and is a third year law student at the Univer-

sity of Victora. He extends a “mahsi cho” (big thanks) to Professor Gillian Calder for her assistance and encouragement in

f‌inalizing this factum.

1 Indian Act, R.S.C. 1985, c. I-5.

2 An Act to Amend the Indian Act, S.C. 1985, c.31.

3 McIvor v. Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 827, [2007] B.C.J. No. 1259 (QL) [McIvor cited to

B.C.J.].

4 Indian Act, supra note 1, s. 6.

5 McIvor, supra note 3 at para. 343.