Indian Act does not violate Ontario woman's Charter rights, court rules
Jody Porter | CBC News | Posted: June 9, 2015 10:00 AM | Last Updated: June 9, 2015
Lynn Gehl loses battle to challenge the Indian Act under the Charter of Rights and Freedoms
The Indian Act does not create a disadvantage for children who don't know who their fathers are, according to a ruling last week by the Ontario Superior Court.
Lynn Gehl, an Algonquin-Anisinaabe woman from eastern Ontario, argued that the federal government discriminated against her when she was denied Indian status in 1995 because she doesn't know the identity of one of her grandfathers.
Without status, Gehl cannot live on reserve and has less say in important decisions of her community, such as the current land claim negotiations between the Algonquins of Pikwakanagan First Nation and the federal government.
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The policy for determining who is eligible for status under the Indian Act is neutral when it comes to unknown or unknowable ancestors, the Superior Court ruled in a decision released on June 2.
The Crown had argued that changing the policy would make unknown parentage an advantage for those seeking Indian status.
"Given the benefits received by status Indians, a positive presumption [that an unknown parent has status] may provide an incentive to individuals not to report the name of non-status father," Justice J. Stewart wrote in summarizing the Crown's argument.
Gehl 'disappointed' by ruling
However, the judge went on to say that the registrar for Indian status could consider a statutory declaration from Gehl about her paternal grandfather as "potentially satisfactory evidence" of her eligibility for status.
On the blog where Gehl has chronicled her lengthy fight for status, Gehl said she is disappointed with the decision and discussing options with her legal team.
"The litigation of this matter has not been exhausted nor finalized," Gehl wrote.
One legal expert estimates that nearly 50,000 children of First Nations women have been denied status since 1985 because of the way Aboriginal Affairs assumes that the unnamed father on their birth certificate is non-Aboriginal.