Bill C-31 draws $400 million lawsuit

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A statement of claim in a civil lawsuit is filled with legalese and is almost always complicated and hard to read for a non-lawyer. So it's an intriguing part of the story that the statement of claim in a lawsuit dealing with the government's legislation regarding the murky, complex and confusing area of Indian status and band membership may be one of the most accessible and complete works ever written on the subject.

A statement of claim is only one side of the story, containing the assertions of the person seeking remedies from the court. Those assertions must be proven during the trial.

Section 6 of the Indian Act, the section changed in 1985 to include Bill C-31, has been challenged as unconstitutional in the statement of claim that was filed in the Ontario Superior Court of Justice on Nov. 5.

The application for certification of a class action on behalf of all women and their children who were denied status for marrying outside of their race sets the damages suffered by the plaintiffs at $400 million. Class action lawsuits require a court hearing where a judge must certify that the court will recognize the classes as legitimate claimants before the action can proceed to trial. No date for the certification hearing has been set, but it's expected to be held early next year. The government has not yet filed a statement of defense.

Mary Ebert, the Toronto lawyer leading the legal challenge on behalf of 57-year-old Tyendinaga (Ont.) Mohawk grandmother Connie Perron and her family, worked with other lawyers in her firm to research and write the statement of claim. The Harvard-educated lawyer with a history of championing feminist causes, worked for a time as legal counsel for the Native Women's Association of Canada. She has a lot of familiarity with C-31 issues.

The statement of claim, which Ebert said took months to research and write, provides a fairly complete history of how the government of Canada has struggled with the task of deciding who is an Indian and who isn't over the country's history.

"We really drew a lot from the Royal Commission [on Aboriginal Peoples]," she said in explaining how so much historical information was included in the lawsuit.

Many Native people believe the rules governing who has status and/or band membership and who doesn't are aimed at reducing the number of people who qualify for Native rights and benefits. Ebert said no smoking gun document that bluntly states this has yet been uncovered, but she sees a lot of less-than-admirable motivations behind the various incarnations of the membership and status rules.

Bill C-31 was proclaimed as law in 1985. It was framed to change Section 12-1) b of the 1951 Indian Act which was found to have discriminated against Native women who married non-Native men. In such mixed marriages, prior to 1985, those Native women lost their status (and their band membership) while Native men who married non-Native women not only kept their status but also conferred Indian status on their non-Indian wives. Ebert believes the law was written this way to keep non-Native men off the reserve because the law-makers believed non-Native men would be harder to control.

"We suspect that they did it because of very stereotypical attitudes about women. That the women would be bossed around by the men and if you got a whole bunch of white men on reserve that they'd boss around their women and then they'd boss around everyone else," Ebert said. "But I also think that, because of their racism, [they'd think] that a woman marrying a white guy was kind of moving up in the world and didn't need to be an Indian anymore. My hunch is that it was because of racist or sexist opinions like that."

The lawsuit identifies three different classes of people who have allegedly been harmed in different ways. Class 1 includes women who lost their status by marrying non-Native men prior to 1985. Class 2 is the children of these women. Class 3 is the grandcildren of C-31 womenwho are not eligible for status because of 6-2, also called the second generation cut-off.

The lawsuit asks the court to award the members of each class a total of $100 million. A further $100 million is claimed for all members of all classes to share as compensation for "loss of cultural and social associations and injury to dignity."

Although classes 1 and 2 have status through C-31, the lawsuit claims their status is inferior to the status they would have enjoyed before Section 12-1) b came into effect.

"Class 1, Connie's class, they got status back but not under 6-1) a. They got it back under 1) c. And because they got it back under 6-1) c, it's not as strong as status that people hold under 6-1) a. And because Connie got her status back under 6-1) c, Michael [her son] has to get his status back under 6-2. What we want is to say just put Connie back where she'd be if they'd never taken her status away in the first place, then she would have status under 6-1) a, just the way her brother does," the lawyer explained.

That inferior status has had a ripple effect on the children and grandchildren of C-31 women, Ebert added.

"We've heard some terrible stories about different families. Four kids, all the children of the same woman and man, and because their mom and dad were not married before 1985, the kids have status. But after they were married, the next two kids didn't have status," she said.

All of these numbers have meaning to Native people across the country, but they are virtually unknown to non-Native people. People with 6-1 status can be assured that their children and grandchildren will have status. People with 6-2 status cannot. There are dozens of possible scenarios where 6-2 people might or might not be able to pass their status on to their children. Whether those children can pass status on to their children depends on the race of their spouse, if they're female.

The lawsuit, in claiming that Bill C-31 still dicriminates aga6-inst women, point out there is a "double mother rule" in effect, but no "double father rule."

"When a man who married a non-Native woman could give her Indian status, if that happened twice in succession, the kids could not have Indian status. So if grandpa marries a white woman, he gives her Indian status. If they have a kid and that kid marries a white woman, he gives her Indian status but their kids don't have status because they have two white mothers in succession," Ebert explained.

Connie Perron married a non-Native man in January 1966. Her son Michael was born later that year. They both regained status, but not band membership, in 1985. Michael married a non-Native woman so his children do not have status. The lawsuit asks for a court declaration that they regain their status and that all members of all three classes have their band membership restored.

Ebert suggested the government benefited when C-31 severed membership and status, meaning you could have status but not be a member of a band.

"I think they sold it on the basis that this gave the bands or the nations more control over their membership, but the effect of it was that there were fewer people getting back into their bands. The government has been able to control costs that way. Here's the thing that's so amazing. If you're a band and you want to be nice to people who are Bill C-31s and their children-even second generation kids like the Perron children's situation-if you are a band and say 'we'll let those children be band members,' the federal government won't pay any money for them because they're not on the Indian register. So the bands who are really inclusive suffer a financial penalty," she said. "They made a real botch of it because they wanted to give the bands power to make their own membership codes, but by the time they passed the legislation and everything, they told the bands that they only had two years to make their codes. By the time the bands found ou about it, they only had a couple of monhs, really. They didn't have systematic programs to let the bands know that they could do this. So it was really hit or miss."

Although this lawsuit, like the Corbiere lawsuit that ended with a section of the Indian Act being struck down by the court, also attacks the Act, Ebert said the action does not ask the court to strike down Section 6.

"I'm asking that it not be applied, that it be applied in a particular way to all of these people. I'm not asking that it all be struck down. I'm just saying with respect to all the people in these three classes, it should be applied to give the women back the status they would have had without 12-1) b, and then it just will follow that their kids will get a better kind of status and they're able to pass it on to their kids. I'm asking for a declaration that the legislation as it applies to these people is unconstitutional," she said. "There may be situations where it's OK. I didn't really want to take on the whole of Section 6, because there's so many different possible permutations and combinations. I just thought I'd stick with what is totally connected with these people."

The lawyer agreed that all the money she maintains the government saved through the effects of Bill C-31 will have to be repaid if this lawsuit is successful. That would be a huge embarrassment for the government, but that's not why the money amounts were so large.

"The reason we asked for money in this lawsuit instead of just a simple declaration is we thought that if the people got money back and they wanted to live on the reserve then they would have money to build houses and things and it wouldn't be a drain on what the bands already have to pay," she said. "We put it in and we put it in in those large numbers because we actually think that the numbers we've got from the government about how many people have been affected are way low. They've counted maybe 60,000 people who could be affected by this.