"...The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want." (Louise Arbour)

McIvor v. Canada, Challenging the Indian Act’s sex-based registration scheme

Sharon McIvor, a CURA community research associate and her son, Jacob Grismer have been involved in a long-standing challenge to the sex-based registration scheme in the 1985 Indian Act. Since 1906, the Indian Act has defined who can be a status Indian based on a patriarchal definition. While Indian women were permitted to have status, they generally could not transmit their status to their children, the transmitting parent was male. This scheme extended to marriage whereby an Indian woman lost status when she married a non-status man but an Indian man who married a non-status woman would retain his status.

In 2009, the British Columbia Court of Appeal released its decision in McIvor v. Canada, finding that the sections of the Indian Act that determine Indian status constitute sex discrimination and are thus contrary to section 15 of the Charter. The Canadian government was provided one year to rectify the situation. In March 2010, the federal government introduced Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). While Bill C-3 was intended to “fix” the discrimination found in the Indian Act, it still excluded many Aboriginal women from being eligible for status. McIvor joined with other CURA researchers Gwen Brodsky and Shelagh Day to prepare background research and public education on the inadequacies of the the bill, but it received royal assent in December 2010.

CURA researchers have researched and prepared a petition for consideration under the first optional protocol to the United Nations’ International Covenant on Civil and Political Rights. A decision by the Human Rights Committee is pending.

See also: Aboriginal Women’s Rights – Democratic Accountability

and UN Petition Challenging the Indian Act’s sex-based registration scheme

and the Poverty and Human Rights Centre page for McIvor v. Canada

Jurisprudence:

McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 338, leave to appeal to SCC refused, 33201 (November 5, 2009)

McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 338 – Supplementary Reasons

McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 168 – Supplementary Reasons

McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 – Appellate Court Decision

McIvor v. The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 1732 – Relief & Costs

McIvor v. The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827 – Reasons for Judgment