Ottawa to amend Indian Act, eliminate ‘discriminatory’ clauses
by Christopher Curtis, Montreal Gazette, Feb 26, 2016
In a move that could affect thousands of aboriginal people across Canada, the federal government announced Wednesday it will amend sections of the Indian Act that discriminated against the descendants of bi-racial marriages.
News of the amendments comes six months after a Quebec judge ordered the government to revise segments of the law that violate the Charter of Rights and Freedoms. The federal government’s lawyers had immediately appealed the Aug. 3 ruling and were set to fight it in court.
But Monday they withdrew their appeal and now the Liberal government is set to form a parliamentary committee tasked with re-drafting sections of the Indian Act, according to a government source.
Wednesday’s announcement was a welcome development for 47-year-old Stéphane Descheneaux, an Abénaki who fought for years to have his three daughters recognized as Status Indians—a legal designation that comes with land and treaty rights. Until the Aug. 3 ruling, Descheneaux did not have enough indigenous ancestry to pass Indian Status along to his children.
Last summer’s court decision found that Descheneaux’s daughters were being unfairly punished by a “discriminatory” clause of the Indian Act.
“For over 40 years I lived in this sort of grey area, wondering if I was aboriginal or white or Métis,” Descheneaux told the Montreal Gazette. “I don’t want my daughters to carry that burden for a lifetime… It’s a great moment for everyone, it’s been such a long time coming. I’m happy people came to their senses and we’re not going to waste time on an appeal.”
Though many of Descheneaux’s friends have the same amount of indigenous ancestry as him, they grew up Status Indians while he did not. It was only through a federal court decision, in 2010, that he gained legal recognition of his aboriginal status and resolved the identity questions that had dogged him his whole life.
He pursued the same rights for his children and secured a favourable ruling from Quebec Superior Court Justice Chantal Masse last summer.
In her Aug. 3 ruling, Masse said Descheneaux’s precarious situation stems from a loophole in the Indian Act—one that afforded aboriginal women inferior legal status than aboriginal men.
Descheneaux’s troubles trace their way back to his grandmother, an Abénaki from Odanak near Sorel who lost her status after marrying a white man 60 years ago. Under Section 12 of the Indian Act, interracial marriage was grounds for a woman to lose her status and be forced from her home on the reserve.
Had Descheneaux’s grandmother been a man marrying a non-aboriginal woman, she wouldn’t have been punished. In fact, were she a man, the Indian Act would have granted full Indian Status to her non-aboriginal wife, their children and grandchildren.
Though the Supreme Court struck down the section of the law that affected Descheneaux’s grandmother in 1983, certain problems persist. Masse’s ruling argued that the Indian Act created a historic wrong—one that unfairly punished the descendants of aboriginal women for generations.
It is, she argued, the government’s job to right that wrong and bring back people like Descheneaux’s children into the fold.
In a statement released Wednesday, the Aboriginal Affairs and Northern Development Department did not explain how the law will change. But it did hint at a more collaborative process moving forward.
“The Government is also exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes, and more information on this will be forthcoming,” the statement read.
Leaders in the Abénaki nation believe the willingness, by the Liberal government, to reform the Indian Act signals a new approach to the relationship between First Nations and Ottawa.
“After the elections, after the departure of Stephen Harper’s government, we saw a real willingness to change the law,” said Chief Denis Landry, of the Abénaki Council of Wôlnak. “It’s a very special moment for us. We’re already seeing a new approach to our relationship and I like the government’s willingness to re-work the (Indian Act). It bodes well.”
For Descheneaux, Wednesday certainly felt like a victory, albeit a bittersweet one.
“For a long time, my daughters and I were on that quest that just about every person embarks on at some point in their lives,” he said. “They wanted to know who they are, where they come from and so on. We have those answers.
“Indian Status is one thing but there are so many other problems we need to fix. When you think that it’s 2016 and there’s all these reserves with no drinking water, whose children don’t have the same educational opportunities as non-aboriginals, there’s a lot of work to do. I’m confident we can sit down together and get it done.”
It’s unclear how many people would be affected by amendments to the Indian Act. When the House of Commons passed Bill C-31 in 1985—striking down the laws that punished women in inter-racial marriages—thousands saw their status reinstated.