Court battle against Ottawa restarts over Indian Act gender discrimination

A group of First Nations families has reactivated a court challenge against Ottawa over ongoing gender discrimination in the Indian Act because a bill created to address the issue is stalled in Parliament.

Indigenous Services Minister Patty Hajdu introduced Bill C-38, An Act to amend the Indian Act (new registration entitlements) in December 2022.

The move was made in response to a constitutional challenge filed in the Supreme Court of British Columbia. But eighteen months later, the bill is stuck at second reading and hasn't been sent to committee for study, despite support from all opposition parties.

"I hope by reopening this, the positive momentum and the fire is lit to make a decision and move forward quickly," said Nadia Salmaniw, one of the 16 plaintiffs who filed the claim in 2021.

The families hit pause on their litigation to wait on Bill C-38's passage. Now, they're resuming their court case because they don't have confidence Parliament will pass the proposed changes before the next federal election, expected by October 2025 at the latest.

Bill C-38 aims to restore Indian status to thousands of First Nations people who lost it because a male family member gave it up under a process known as enfranchisement.

Revoking one's Indian status and treaty rights was considered voluntary by the federal government, but the plaintiffs argue their families were coerced as it was the only way to obtain certain rights like Canadian citizenship or the ability to vote and own property.

In Salmaniw's case, her great-grandfather Wilfred Laurier Bennett gave up his status in 1944 to avoid being forced to send his children to residential school. 

Since enfranchisement by a First Nations man automatically enfranchised his wife and descendants, Salmaniw and her daughter Sage are not eligible for status despite having Haida citizenship. 

"No colonized structure can ever stamp out what's Indigenous, what's Haida in me," Salmaniw said.

Families won't be dissuaded

At the time of the Bill C-38's introduction, Hajdu said the proposed legislation was about "First Nations people who suffered discrimination and who shouldn't have."

But federal Justice Canada lawyers deny that any Charter violations have been identified and are asking the court to dismiss the claim. 

"It's a very frustrating situation for the families," said Ryan Beaton, a B.C.-based lawyer at Juristes Power Law who is representing the plaintiffs.

"Despite Minister Hajdu's statements that it's a priority … It's clear that the political will just isn't there."

One hundred years before Bill C-38 was introduced in the House of Commons, Kathryn Fournier's grandfather Maurice Sanderson, a member of Pinaymootang First Nation in Manitoba, was enfranchised so that he could own property and vote. 

While Fournier gained status under previous changes to the Indian Act, she joined the court challenge in 2021 as a plaintiff to pass status onto her three children, whom she said she raised to value their Anishinaabe culture.

Since then, Fournier has seen her mother Edith, who was also among the plaintiffs, die at the age of 96 — adding to the urgency for some sort of remedy.

"One of the key things is that one doesn't give up," Fournier said.

"One can hope it's not going to take another 100 years to get to the conclusion of this. I don't think it will. So I remain actually, in some ways, as optimistic and hopeful as I ever was." 

Second court case launched 

Since Bill C-38 was introduced, a second court challenge was launched against Ottawa on similar grounds in the Ontario Superior Court of Justice.

The plaintiffs in the Ontario case are seeking to reclaim their Indian status, in addition to receiving individual compensation: $50,000 for pain and suffering related to the loss of Indigenous cultural identity.

While Bill C-38 would resolve status issues from enfranchisement, it includes a provision that protects the government from paying any compensation for the harms the policy caused.

"This is a broader issue that affects a lot of families across the country," said Patricia Lawrence, an Ottawa-based lawyer with First Peoples Law LLP who filed the Ontario court challenge.

"Bill C-38 speaks to the fact that there are issues here that need to be corrected."