Public Service Alliance of Canada BC

Sharon McIvor is a member of the Lower Nicola Band, a practicing member of the Law Society of British Columbia, and a Professor of Aboriginal Law at Nicola Valley Institute of Technology, where she is on the executive of her trade union, the Federation of Post-Secondary Educators. For many years, Sharon McIvor has been a national leader in the Native Women’s Association of Canada and the Canadian Feminist Alliance for International Action.

Recently, in an unprecedented constitutional case, Sharon McIvor successfully challenged the continuing preferential treatment given to males and those whose Indian status is traced from male ancestors, as a violation of section 15, the equality guarantee of the Canadian Charter of Rights and Freedoms.

On June 7, 2007, in McIvor v. Canada, Judge Carol Ross of the British Columbia Supreme Court ruled that the federal government must remove sex discrimination from the determination of Indian status and restore equal Indian status to First Nations women and their descendants.

This is a ground-breaking decision that may affect the Indian status of more than 200,000 Aboriginal women and their descendants.

McIvor v. Canada: History and Issues

While amendments were made to the Indian Act in 1985 when the Charter came into effect, ostensibly to remove the long-standing discrimination against First Nations women, the Government of Canada only fixed the discrimination in part. Some discrimination continues because the Indian Act carries forward the discrimination of the past. That continuing discrimination is the subject of Sharon McIvor’s case.

• Section 12(1)(b) of the Indian Act

In the early 1970s Jeanette Lavell and Yvonne Bedard challenged section 12(1)(b) of the Indian Act because it discriminated overtly against Indian women. Prior to 1985, the Act said that Indian men who married non-Indian women conferred Indian status on their wives and children (and thus their grandchildren), but Indian women who married non-Indian men lost their status and could not confer it on their children.

Although Lavell and Bedard lost their challenge to s. 12(1)(b) under the old Bill of Rights in the Supreme Court of Canada in 1973, the Government of Canada decided to fix the discrimination when the Charter came into effect more than a decade later. The Government’s way of fixing the overt discrimination was to retain the full Indian status of Indian men, their wives and children, but to reinstate the Indian women who had lost status because of sex discrimination to a second-class category. The reinstated women were assigned to 6(1)(c) status rather than full 6(1)(a) status. This means that today the men who never lost status can confer Indian status on their children and grandchildren, while the reinstated women have a diminished status that they can confer on their children, but not on their grandchildren.

In Sharon McIvor’s case there is a discriminatory result that is evident in her own family. She has three sisters and two brothers, all children of the same parents. Her brother who married out is entitled to full Indian status, which he can confer on his children and grandchildren. Sharon, who also married out, has second class status and can confer half status on her children, and no status on her grandchildren. Her brother’s grandchildren will be full status Indians, but Sharon’s grandchildren will have no status. Sharon challenged this discrimination on the grounds that it violates section 15, the equality guarantee of the Charter.

• Matrilineal Descent

Sharon McIvor also challenged the way in which the Indian Act continues to give preference to those who trace their Indian-ness from male ancestors rather than female ancestors. The history of the Indian Act is that an Indian was defined by the colonizing government as “a male Indian, the wife of a male Indian or the child of a male Indian.” Sharon is the granddaughter of a status Indian grandmother, Mary Thom. Mary Thom’s daughter, Susan Blankenship, who was Sharon’s mother, did not have status because her father was not an Indian. And Sharon did not have status – until after 1985 when the Government of Canada posthumously reinstated Sharon’s mother - because her father was not formally recognized as an Indian.

In this family tree, if Mary Thom had been treated in the same way as a man was at the time, then Sharon’s mother would have been a status Indian. Further, if Sharon’s mother had been treated in the same way as a man was at the time, Sharon would have been a full status Indian. This preference for the male line is continued in the current Indian Act because those who are descendants of female Indians still may have no status or diminished status, while those who are descendants of male Indians have full status.

• Summary

Sharon McIvor challenged the Indian Act under section 15 of the Charter because it discriminates against First Nations women on the grounds of sex and marital status.

The Act continues to give a preferred Indian status to:
• Men who married out as compared to women who married out;
• Those descended from male Indians compared to those descended from female Indians.

What Now?

The federal government has appealed Judge Ross’s ruling in Sharon McIvor’s favour, and the issue will probably not be resolved until it is decided by the Supreme Court of Canada. From the beginning, Sharon McIvor’s case was financially supported by the Court Challenges Program because it is a landmark case for Aboriginal women and their descendants. It was with the help of the Court Challenges Program that Sharon McIvor managed to get through the first 18 years of motions and the trial in the B.C. Supreme Court. Now, because Stephen Harper de-funded the Court Challenges Program in October 2006, Ms. McIvor is left with no public financial support, while the federal government is using taxpayers’ dollars to appeal Judge Carol Ross’s decision.

PSAC Supports Sharon McIvor

PSAC has joined the voices of the Native Women’s Association of Canada, the Assembly of First Nations, and many other labour and social justice groups in support of Sharon McIvor’s case. On November 20, the Alliance Executive Committee (AEC) passed a resolution supporting the case and calling for membership mobilization. PSAC is contributing $10,000 towards the fundraising campaign.

What To Do?

• Mobilize!

Put the issue on the agenda of your Regional Women’s Committees, Regional Human Rights Committees, your Regional Council, your Local, your Component Committees, and anywhere else you can think of. Let people know about this case and how they can support it.

• Fundraise!

Supporters of Sharon McIvor now need to raise enough money to ensure that this important case can continue and Aboriginal women can hold on to this victory. To get the case to the Supreme Court of Canada will cost between $200,000 and $300,000. This means raising one dollar for every Aboriginal woman or man who has been denied Indian status because of sex discrimination against a mother or a grandmother. A fundraising campaign for Sharon McIvor was launched in Vancouver on November 14, 2007. Any amount will help!

Donations can be made to “Sharon McIvor Case Fund” and sent to the National President’s Office, PSAC, 233 Gilmour, Suite 1100, Ottawa, ON K2P 0P1. Please indicate who (which group or individuals) have participated in the contribution. PSAC will gladly forward them to Sharon McIvor.

• Lobby for the federal government to drop the appeal!

Let the federal government know you want them to drop the appeal!

• Lobby for Re-instatement of the Court Challenges Program!

Sharon McIvor’s case provides a dramatic illustration of the injustice of de-funding the Court Challenges Program. Women and men who are members of disadvantaged groups in Canada cannot exercise their constitutional right to equality because they cannot afford it. But the government can afford to oppose them, using the public’s money. Help get the Court Challenges Program back!

PSAC has contributed $10,000 to the fundraising campaign for Sharon McIvor’s important case.