10/24/2017 11:36 EDT | Updated 11/17/2017 14:30 EST

Checking The Math Behind Carolyn Bennett's '2 Million' New Indians

A version of Bill S-3, An Act to Amend the Indian Act, would result in a number of new status Indians. But how many, really?

The Indian Act was amended in 1985 to bring it in line with the Canadian Charter of Rights and Freedoms. While this created 114,000 new or reinstated Indians, it did not resolve all the sex discrimination.

Worse, the 1985 amendment created a new form of sex discrimination where children of unknown and unstated paternity were discriminated against by Indigenous and Northern Affairs Canada (INAC) through their Unstated Paternity Policy. This policy made the assumption that if no father signature was on a child's birth registration form, he was non-Indian, which meant many children were deemed non-status and thus not entitled to their treaty rights. This policy applied in situations of sexual violence such as rape and incest, and further in situations where young girls did not have the legal right to consent to sex. This newly invented policy was diabolical.

Chris Wattie / Reuters
Canada's Indigenous Affairs Minister Carolyn Bennett, right, speaks during a news conference regarding a ruling by the Canadian Human Rights Tribunal with Justice Minister Jody Wilson-Raybould on Parliament Hill in Ottawa, Jan. 26, 2016.

Bill S-3, '6(1)a All the Way' and Bennett's 2 million Indians

While the Senate Committee on Aboriginal Peoples, listening to experts such a Sharon McIvor and myself, put forward a version of Bill S-3, An Act to Amend the Indian Act — a version that would resolve all the sex-based inequities through the inclusion of the "6(1)a All the Way" clause — INAC Minister Carolyn Bennett, flip-flopping on her previous position, urged members of Parliament to vote against it. Bennett then put forward a version of the bill that would perpetuate sex discrimination.

Remaining with Canada's long-time policy goal and the need to eliminate Indians and extinguish their treaty responsibilities to Indigenous nations, Bennett, obfuscating the process, said the 6(1)a All the Way clause would result in two million new status Indians. This number was not rooted in a demographic analysis, but rather her need to fearmonger. It is my suggestion that the estimated number is more likely 60,000 to 100,000; Pam Palmater estimates 200,000.

Let me provide you with some insight into the past numbers and the potential number regarding the 6(1)a All the Way clause.

2010 McIvor created 45,000 Indians

Sharon McIvor took the issue where Indigenous men and their descendants born before 1985 were all ascribed the strongest form of Indian status — 6(1)a — yet Indigenous women and their descendants born before 1985 are ascribed lesser forms of Indian status — 6(1)c or 6(2) — to the British Columbia court. Relying on this comparison, Sharon won her case. It was a victory.

INAC appealed the decision to the B.C. Court of Appeal where the court ruled that some of the sex discrimination was justified. The justification was that the matter was an issue of matrilineal descent. Then the court relied on the 1951 double-mother clause imposed on the descendants of Indian men as the comparator group to narrow down the remedy. This was a terrible moment for Indigenous women.

Sharon wants 6(1)a for all her descendants born before 1985 rather than what she, her son and grandchildren gained: 6(1)c, 6(1)c1 and 6(2) respectively. The Supreme Court of Canada refused to hear her appeal and so Sharon is now at the international level. Regardless, through Bill C-3 the Indian Act was amended where 45,000 people became registered.

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The Supreme Court of Canada Building.

2015 Descheneaux and Yantha create 35,000 Indians

Stéphane Descheneaux was unable to pass status because he was only registered as a 6(2) Indian. This was the result of his matrilineal descent, meaning it was his grandmother versus his grandfather who was Indigenous. This is known as the cousins issue in that Stéphane's second cousin, born through the patrilineal line, was entitled to 6(1)a status.

In Susan Yantha's situation, as a girl child born out of wedlock pre-1985, she was only registered as a 6(2) Indian which meant she could not pass on status to her daughter Tammy, whereas her hypothetical brother born out of wedlock was entitled to 6(1)a. This is known as the sibling issue.

While the Quebec court ruled on these cases before her, she was clear that there was the need to eliminate all the sex discrimination. It has been said that the resolution of the cousin and sibling issues will create between 28,000 to 35,000 Indians. It is the Descheneaux case that has resulted in Bill S-3 that is currently before parliament.

2017 Gehl case affects 100,000 births

As stated, the issue of unknown and unstated paternity was a form of sex discrimination invented in 1985. I was personally denied status due to an unknown paternal grandfather. It took me 30 years to move through the family oral history, archival research and the litigation process. In April 2017, Ontario's highest court ruled that this sex discrimination was unreasonable and I was granted Indian status. But I was granted the lesser form of status. This is why I am invested in making sure the 6(1)a All the Way clause remains a part of Bill S-3.

My court case was heard while Bill S-3 was moving through Parliament, so the required remedy will be included in Bill S-3. Parliamentarians are not debating this.

It is my hope that this discussion of numbers quells Bennett's effort to instill fear into the minds and hearts of parliamentarians.

Demographers Stewart Clatworthy and James S. Frideres agree that the estimated number of births affected by INAC's Unstated Paternity Policy as of 2004 totalled over 60,000. While the majority of these people were relegated the lesser form of 6(2) status, 15,000 were actually denied status. Through the Gehl clauses now codified in Bill S-3, these 45,000 people will be entitled to 6(1) status which means ALL their children will also be entitled; and 15,000 will be newly entitled as 6(2).

As we think about Clatworthy's and Frideres' numbers, we need to keep in mind that they represent births up to 2004. As of 2017, the numbers will be higher. I suggest 77,000 people may be entitled of 6(1) status and 25,000 people may be entitled to 6(2) status.

While an economic analysis is no excuse for sex discrimination, and I am clear in my understanding of this, it is my hope that this discussion of numbers quells Bennett's effort to instill fear into the minds and hearts of parliamentarians.

Lastly, it is said the government recently commissioned Clatworthy to determine the number of people who would be entitled to Indian status through the 6(1)a All the Way clause. Hopefully parliamentarians step up and remove all the discrimination Indigenous women and their descendants are dealing with.

CORRECTION: A previous version of this blog stated that 60,000 people will now be entitled to 6(1) status in the S-3 clauses. That number should be 45,000. This version has been corrected.

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