Part 3 of a three-part series, this post explores problems with the policy and administration of the Indian Act status regime. For more on how Indian status works see Part 1 here, and for a discussion of the problems with the law itself see Part 2 here. Some indigenous people prefer to be referred to as “Indian” while others do not. In this blog post, I use the word as a legal term defined under the Indian Act.
While there are numerous problems with the Indian Act status rules themselves as discussed in Part 2 of this series, these problems are made even worse by AANDC’s unfair administration of the law.
The Administration of the Law is Unfair, Slow and Difficult
Unfair – AANDC’s administration of the Indian status rules is unfair to single mothers and their children. The policy of the Indian Registrar is to assume that where a father’s name is not stated on a birth certificate, that father is not a status Indian. This has not always been the case. Between 1951 and 1985 the Indian Act stated that illegitimate children of female Indians were entitled to Indian status. The change in the law has resulted in situations where siblings, both with unstated fathers, can have different entitlement to status. The sibling born before 1985 gets “full” s. 6(1) status under the previous laws, and her sibling born after 1985 gets only s. 6(2) status, which she will not be able to pass on to her children unless her partner also has status.
Under AANDC’s current policy, mothers of children with unstated paternity are held to strict proof of the identity of their child’s father. The policy of AANDC is to “prefer” that a child’s birth certificate is changed to add the father’s name. In British Columbia, even if the father consents to being added, a DNA test is required to prove paternity before the birth certificate will be amended, which costs hundreds of dollars. If the birth certificate cannot be changed, AANDC will accept a statutory declaration (a sworn statement with the same effect as swearing under oath in court) from the father and mother, or from the mother and two of the father’s close relatives. The mother’s sworn evidence alone is not enough. This is an insurmountable barrier for many mothers. Often the mother is estranged from the father’s family, making meeting this standard of proof impossible. There could be situations where paternity is not disclosed because conception has occurred in circumstances of sexual assault or incest, meaning that a mother is deprived of her ability to pass on status because she has been the victim of a crime.
The Ontario Superior Court recently found that this policy does not discriminate against people with unstated paternity in their ancestry in the case of Gehl v Attorney General of Canada, 2015 ONSC 3481. Read our summary of the case here.
Slow – The process of applying for Indian status is extremely slow. Even the simplest applications can take 6 months for AANDC to process and approve. More complex applications can take 1-3 years. This is an absurd amount of time for someone to wait for access to programs and benefits to which they are entitled.
Difficult – The forms and documentation required to apply for Indian status can be complicated and the process difficult to navigate. For those with low literacy, who know little about their family background or those who have ancestors that did not apply for status previously, this difficulty is magnified. The sections of the Indian Act themselves are difficult to understand and apply even with legal training, and the assistance provided by AANDC is limited. These difficulties discourage people from applying at all.
The laws on Indian status in this country are outdated and the administration of the regime unfair. Reform of the Indian Act that puts the definition of indigenous identity, including entitlement to programs and services for indigenous people, in the hands of indigenous individuals and communities and out of the hands of the Canadian state is long overdue.