McIvor Case Overview
McIvor Case Overview
From 1869 to 1985 The Indian Act discriminated against women. Women who married Non-Indian men lost their rights to status while Indian men who married Non-Indian women passed on status rights to their Non-Indian wives.
Bill C-31 was passed on April 17, 1985. Its purpose was to amend the Indian Act so it would not continue to discriminate against women. Indian women who married Non-Indian men would no longer lose their rights to status and those women who had lost their status rights would have them restored.
The amendment protected against future women losing their status rights by marrying a Non-Indian man, but it did not completely restore the status rights of the women who had previously lost their status rights.
The women who had their status rights restored, were then classified as 6(1)(c). Any of their descendants whom were fathered by Non-Indian men were then entitled to registration after 1985 and therefore only entitled to registration as a 6(2).
A classification with Indian and Northern Affairs Canada as a 6(2) means that you can not pass your status rights to your child(ren) unless the alternate parent is also a status Indian of any classification.
Sharon McIvor was an Indian woman, who lost her status rights due to marrying a Non-Indian man prior to Bill C-31. She and her son, Jacob Grismer, have contested their classifications as Jacob’s children are not entitled to registration as a Status Indians due to the marriage of Sharon to her Non-Indian husband, and the loss of her status rights prior to Bill C-31. Had Sharon kept her rights, her son would have been entitled to registration prior to April 17, 1985 and would have been classified as a 6(1)(a). The difference means the entitlement of his children to Indian Status.
On June 8, 2007, the British Columbia Supreme Court ruled that these distinctions were discriminatory and contrary to the Charter. The Court issued a very broad remedy that might be interpreted to allow for the registration of all descendents of women who “married out” as far back as 1869. Canada appealed the judgment.
On April 6, 2009, the British Columbia Court of Appeal agreed with the trial judge’s decision that it was an infringement of Ms. McIvor and Mr. Grismer’s right to equality under the Charter, however the Court of Appeal ruled that it was limited to the beneficial treatment of persons in the male line.
The Court of Appeal gave Canada until April 6, 2010 to amend the Indian Act. The Government of Canada will not appeal this decision.
At this time we are uncertain of what this can mean. We are hopeful that the new amendments to the Indian Act will allow for the classification of 6(1) (a) to the children of those women who were affected by “marrying out”. The amendment would then allow for the registration of the grandchildren of these affected women.