Addressing the issue of unstated paternity

The registration provisions of Canada’s India Act discriminate against women, writes the Aboriginal Law Section of the Canadian Bar Association in a letter to the Committee on the Elimination of Discrimination against Women of the United Nations.

“We regularly make submissions to Canadian legislators on issues affecting Indigenous people, including registration or ‘Indian status’ under the Indian Act,” the Section writes. There have been some improvements over the years, including Bills C-3 and S-3, but sex-based discrimination is still a problem without adequate avenues of redress.

The Indian Act still requires registered women to prove the other parent of their child is registered (or entitled to registration) to ensure their child can be registered. This is known as “unstated paternity” and it causes significant issues, the CBA letter notes, including that in many cases the mother may not be willing to identify the father of the child, particularly in cases of sexual violence.

Sex discrimination in the Act also intersects with discrimination on other prohibited grounds including age and marital status.

By law the “second-generation cut-off” rule applies as of April 17, 1985. “In the case of two siblings with unstated paternity,” explains the Section, “with a grandmother whose entitlement to registration was restored under Bill S-3, a sibling born before April 17, 1985 will be entitled to registration under s. 6(1) while a sibling born after April 17, 1985 will only be entitled to registration under s. 6(2), which can only be passed on to their children if they partner with another registered Indian.”

That same date also causes people to be treated differently by the law depending on when their parents were married.

“For example,” the letter to the United Nations reads, “if two cousins (A and B) born after April 17, 1985 have a grandmother who has been re-entitled under Bill S-3, and both have one parent registered under s. 6(1) and one unregistered parent, but cousin A’s parents married before April 17, 1985 and cousin B’s parents are unmarried or married after April 17, 1985, cousin A will be entitled to registration under s. 6(1) and cousin B will only be entitled to registration under s. 6(2).”

As the Final Report of Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls noted, for women to be excluded from their communities and denied status “compounds the dangers First Nations women face by denying them their home, connection to culture, family, community and related supports,” says the Section.

Indigenous peoples have been fighting against discriminatory measures in the Indian Act on an individual basis. The CBA Section urges Canada to reform the Indian Act’s registration provisions, so it no longer violates its own domestic and international human rights obligations.