Lynn Gehl challenges Indian status denial in Ontario court

Superior Morning3:51Pam Palmater

A court case beginning today could have wide implications for Aboriginal people. It deals with the way the federal department of Aboriginal Affairs decides the status of children of First Nations mothers.

An Algonquin-Anishinaabe woman from eastern Ontario is challenging the federal government in court on Monday after she was denied Indian status more than a decade ago.

• 5 things you need to know about Indian status
• Background: The Indian Act

Lynn Gehl said her application for status was denied in 1995 because she doesn't know the identity of one of her grandfathers.

"They made the assumption that this unknown grandfather was a non-Indian man, and through the process of that assumption I was denied Indian status registration," Gehl said.

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. 

'Unknown or unstated paternity'

Aboriginal Affairs Canada has been using "unknown or unstated paternity" to deny status to children of First Nations women since 1985, according to lawyer Pam Palmater. That's when a ruling in another court case resulted in Bill C-31, restoring status to First Nations women who had lost it through marriage.

"Prior to 1985, for many years under the Indian Act, there was a legal presumption that if the mother was unwed or the father was unnamed, that they legally presumed the father to be an Indian so the child could still stay with mother on the reserve, could still be a band member, could still get the programs and benefits associated with an Indian family," Palmater said. 

Palmater estimates nearly 50,000 children of First Nations women have been denied status because of the way Aboriginal Affairs now assumes the unnamed father on their birth certificate is non-Aboriginal.

Both Gehl and Palmater see political motives behind the denials.

'Falling through the gaps'

"It's obvious Canada wants to get out of making status Indians and they want to get out of the treaty responsibilities that they have to provide for status Indians," Gehl said.

Palmater goes further, adding "even if they [the federal government] lose a court case and have to reinstate Indians back to the Indian register, they make sure to incorporate other rules so that you're losing other Indians by some other rule and the ultimate goal is so that at the end of the day there will be no Indians."

They made the assumption that this unknown grandfather was a non-Indian man, and through the process of that assumption I was denied Indian status registration- Lynn Gehl

Aside from the political, there are also practical implications, such as a denial of services, when status is denied. Federal funding to First Nations is based on the population of registered Indians, but Palmater said provincial governments are reluctant to assume responsibility for non-status Aboriginal people.

"A lot of these people are falling through the gaps because the province says, 'well no, as far as we're concerned they're Indians, we're not paying for them,' and the federal government says 'no, we're trying to get rid of Indians, we're not paying for them.' Palmater said.

"So then you have all of these situations of kids in foster care and families in hospitals not getting proper health care and education funding and you have the chronic funding that we see today."

Rule 'targets Indigenous mothers'

But the political is also very personal for Gehl, who said the denial of her identity is a heartache. 

"Your family, your larger community and your larger nation – you have an emotional connection to them and who you are," she said. 

She argues denials based on unknown paternity amount to sexual discrimination that "targets Indigenous mothers and children.

"Women sometimes conceive through an abuse of power such as in situations of incest, rape, gang rape, sexual slavery and prostitution," she said.

Technical arguments will be heard in Ontario Superior Court on Monday that will determine whether Gehl's case can continue in the court system.