McIvor: Justice Delayed-Again


Author's Abstract, Page 16:

This comment considers the case of Sharon McIvor and her son Jacob Grismer ("McIvor"), attacking two aspects of the discrimination against women in the registration provisions of the Indian Act: (1) the long-standing rule that eligibility for Indian status descends only through the male line; and (2) the rule which takes status away from Indian women, but not Indian men, who marry non-Indians (the "marrying out" rule). After a review of these two strands of discrimination, the paper considers the decisions of Madam Justice Ross of the British Columbia Supreme Court, and Mr. Justice Groberman on behalf of the Court of Appeal. The comment concludes with an account of the legislation which Canada has introduced to address the constitutional violation found by-the Court of Appeal. It emerges clearly from this analysis that while the decision of Madam Justice Ross offered a real possibility of finally rooting out the longstanding discrimination against women in the registration provisions, the Court of Appeal and Canada 's response to its decision, perpetuate and exacerbate the sorry legacy of misogyny deeply embedded in the Indian Act. Indeed Canada's response to the McIvor case underlines, once again and with even more force, how inappropriate it is for the state to be usurping the indigenous right to determine identity, membership and belonging." (16). 

Author's Introduction, Page 17:

"In addition to the McIvor case, there are two other landmark cases on discrimination against women in the registration provisions, those brought by Jeannette Corbibre Lavell and Sandra Lovelace, but they differ from McIvor in that both cases challenged only the marrying out rule. Furthermore, the Lavell  and Lovelace cases deal with the pre-1985 Indian Act, whereas McIvor impugns the validity of putative remedial legislation (still known colloquially as Bill C-31), which came into effect on the same day as s. 15 of the Canadian Charter of Rights and Freedoms, April 17, 1985, and added a problematic new s. 6 to the Indian Act.

The McIvor case is the broadest court challenge to discrimination against women in the registration provisions, which has yet been heard. It is also the first case to be decided under the Canadian Charter of Rights and Freedoms. The McIvor litigation is the first major case to illuminate clearly how the complex discrimination in the Indian Act registration provisions has disadvantaged Indian women.

After an overview of the two main strands of discrimination against women which have operated together for over a century and a half, the Comment addresses the decisions of the British Columbia Supreme Court and Court of Appeal, and the government's response to the Court of Appeal decision." (17).

Publication Information

Eberts, Mary. "McIvor: Justice Delayed-Again." Indigenous Law Journal 9 (2010): 17-46.

Eberts, Mary
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