McIvor has more fight in her still

It's been 20 years, and Sharon McIvor is still waging her court battle for equality for Aboriginal women and their children.
On June 5, just days after learning that Indian and Northern Affairs Canada (INAC) was not going to appeal the April 6 ruling of a lower court in British Columbia, McIvor filed leave to seek a decision from the Supreme Court of Canada.
The BC Court of Appeal gave Parliament one year to amend the sections of the Indian Act that determine Indian status.
While the federal government's decision not to appeal came as no surprise to McIvor, she's not clear if the directions outlined in the Appeals Court ruling grants her grandchildren full Indian status, which was what the court case was all about.
"The B.C. Supreme Court gave me a full victory .... The B.C. Court of Appeal narrowed that decision substantially. I believe that was as good as it was going to get for [the federal government]."
The government decided not to appeal the B.C. Court of Appeal's ruling because "we do believe the decision provides the necessary clarity which Canada was seeking," said Patricia Valladao, spokesperson for INAC.
The B.C. Court of Appeal had directed Parliament to amend Section 6(1)(a) and 6(1)(c) of the Indian Act.
Section 6(1)(a) preserves the status of all persons who were entitled to it immediately prior to the April 17, 1985 amendments that came about through Bill C-31. C-31 was designed to end the discrimination against women that existed at that time in the Indian Act.
Section 6(1)(c) restores the status of (among others) people who were disqualified from status under the Marrying Out Rule and the Double Mother Rule. This latter rule removed status from children when they reached the age of 21 if their mother and paternal grandmother were not status before marrying status Indians.
However, as far as McIvor was concerned, the Indian Act continued to discriminate. McIvor launched her court action in July 1989 challenging the Bill C-31 amendments because Indian status was not awarded to Indian women who married non-Indian men prior to 1985 and thereby disqualified their children and grandchildren from receiving full status.
McIvor is an Indian woman who married a non-Indian man prior to April 17, 1985. She and her son Jacob Grismer argued that the Indian Act discriminated against them on the basis of sex, and this contravened the Canadian Charter of Rights and Freedoms under section 15.
The crux of their case was that the ammendments would not allow Grismer to pass status to his sons, born after April 17, 1985. Grismer's children would be treated differently than their cousins, if they had an Indian grandfather, because the rules continued to discriminate against their grandmother.
"I continued the case after I added my son. I did so because I wanted my grandchildren included. And the B.C. Supreme Court's decision included my grandchildren, but it's really unclear if my grandchildren will be included in the B.C. Court of Appeal's decision," said McIvor. McIvor is an equality rights lawyer in B.C.
The B.C Court of Appeal's ruling would give a few thousand more people Indian status. The B.C. Supreme Court's decision, if upheld, would extend status to 100,000 people more. Status would mean a larger commitment on the part of the federal government, which would dole out more funding for health care, education and social housing.
Ellen Gabriel, president of the Quebec Native Women's Association, is in full support of McIvor's decision to pursue her case through to the Supreme Court of Canada. Gabriel expects the Native Women's Association of Canada, in which her association has membership, will consider joining McIvor as an intervener.
"The issue of membership has been in this country for a long, long time. The federal government is imposing their criteria on what membership should be," said Gabriel.
Gabriel would like to see First Nations take on the challenge of defining membership themselves.
"We would say to the government, 'These are our solutions and we don't need to go to the courts for this,'" said Gabriel.
"Ideally that's what it should be, but we know that's not going to happen," said McIvor, who admitted that there will be some First Nations who will be disappointed with further court action.
"They want to get on with this, but that's not going to happen."
The B.C. Court of Appeal gave the government until April 2010 to make the amendments.
"We will go ahead because we cannot speculate on what's going to happen," said Valladao.
While details have yet to be finalized, INAC and the Justice Department will seek consultation with Aboriginal groups in preparing amendments. The government is hoping to table the bill with the amendments to the Indian Act this fall. While every effort will be made to meet the April deadline, if it's not possible, the government will seek an extension from the B.C. Court of Appeal, said Valladao.
While there is no timeline as to when the Supreme Court of Canada will render its decision, McIvor is hopeful it will come within a month.
"I'm looking forward to having the Supreme Court of Canada look at it. They have overturned the B.C. Court of Appeal frequently," said McIvor.