Canada’s shame: 150 years of forced assimilation 

On the human rights front, Canada is guilty of what Prime Minister Mark Carney called out at Davos: rhetoric, not reality. We may have a sign in our window that says ‘we believe in human rights,’ but the reality is we do not act to make those rights real.

A key example of Canada’s failure to make human rights real is Indian Act discrimination and the forced assimilation of First Nations peoples. This rights problem is central to the history of our nation, and one we should be in a hurry to solve.

But Canada is in no hurry. The Senate introduced amendments to Bill S-2, which amends the Indian Act for new registration entitlements, and would remove the heightened discrimination put into the Act in 1985. The amended bill is now before the House of Commons. But the government does not want a vote on it. It wants more delay.

Just what is that heightened discrimination introduced in 1985? Indian Act sex discrimination, like residential schools and the ‘60s scoop, has been a tool of forced assimilation, a strategy of Canada’s colonial government to reduce the population of recognized ‘Indians’ by defining them into the non-Indigenous population. Canada did this for decades by stripping First Nations women and their children of legal recognition as Indians (‘Indian status’) if they married a non-status man. By contrast, First Nations men who ‘married out’ bestowed Indian status on their wives and children.

But in 1985, because of the new Charter of Rights and Freedoms, Canada had to make some changes. So it restored status to women who had lost it because of discrimination, but never fully corrected the sex discrimination. For example, it never gave women the right to bestow Indian status on their non-status husbands. And then it changed the rules. 

Canada replaced the one parent requirement in effect since before Confederation with a new two parent requirement for conferring full status on children. Because of the two parent rule, children with only one status parent receive “half” status, or 6(2) status. Those with 6(2) status cannot give their children status unless the other parent is also status. The failure to fully correct the pre-1985 discrimination, combined with the new rules for transmission, has permitted the sex discrimination to continue down the generations. Today, even after 40 years of successful litigation and United Nations petitions, the maternal line is still at a disadvantage.

In addition to imposing a two parent rule in 1985, Canada also introduced the second-generation cutoff, which means that after two generations of “marrying out,” status cannot be transmitted to a child. A child with one parent and one grandparent who does not have status will have no status. 

These 1985 changes expanded—rather than reduced—the Indian Act’s assimilationist power. Through the two parent rule and the second generation cutoff, Canada, in the name of “equality,” began to penalize men as well as women for marrying out. Doing so speeds up the assimilation clock significantly.

There is broad recognition that the second-generation cutoff will, in a few generations, result in the legal extinction of status Indians. Indigenous Services Canada reports that some First Nations will lose all status members "in the not so distant future,” while most communities will see “the gradual elimination” of those eligible over the next four generations.

Twenty-nine per cent of status Indians have half status, and cannot transmit status to their children unless they parent with a status Indian. Because of the second generation cutoff, there are children and grandchildren of status Indians who have no status now. Because Indian status is the legal determinant of who has Aboriginal rights and is owed the protection of the Crown, in the eyes of the government, these new generations have no Aboriginal or treaty rights, no right to live on reserve, to vote or stand for band council offices, or to access designated education, health or child welfare benefits. They are outcasts.

Over the last 40 years, Canada has been told 30 times by courts, UN treaty bodies, and UN experts that the sex, race, and family status discrimination in the Indian Act must be removed completely if this country is to comply with the Charter and international treaty rights. More recently, Canada has been told by UN committees and the Expert Mechanism on the Rights of Indigenous Peoples that the government should remove the second generation cutoff now. In spite of these rulings and recommendations, Canada may well refuse to pass Bill S-2 as amended.

This country is not ready to stop 150 years of forced assimilation. We can only claim to believe in human rights if we are willing to act. The questions for Carney are urgent: What about that sign in the window? What do we stand for? Rhetoric or reality?

Shelagh Day is the chair of the Human Rights Committee of the Canadian Feminist Alliance for International Action, a human rights expert, and a member of the Order of Canada.

Mary Eberts is an Officer of the Order of Canada, and a Toronto barrister with a national practice in the areas of equality rights and Indigenous law. She has held the Henderson Chair in Human Rights at the University of Ottawa, the Sallows Chair in Human Rights at the University of Saskatchewan, and is a senior fellow at Massey College at the University of Toronto.

The Hill Times