tansi ninôtemik,
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Back to the blog …
For the purpose of this blog post, we use the term “Indian” when discussing the Indian Act and registration under the Indian Act, including terms such as “status Indian” and “non-status Indian”.[1] These terminologies were created by the federal government and are still used when discussing Indigenous people under the Indian Act.
If you haven’t already, we highly recommend reading a previous blog post on Bill C-31 and sections 6(1) and 6(2).[2] The previous blog post gave foundational knowledge that can help you better understand the issues discussed in this post.
As discussed previously, although Bill C-31 focused on amending the discriminatory issues in the Indian Act, it resulted in new consequences. One of the consequences we are discussing today is the issue of unknown or unstated parentage.
What is Unknown or Unstated Parentage?
To register under the Indian Act, it is dependent on the individual’s parents’ eligibility for registration. Unknown parentage “refers to when an applicant either does not know, is unable or unwilling to provide information about their parent, grandparent or ancestor”.[3] Unstated parentage “refers to when an applicant knows the identity of their parent, grandparent, or ancestor but the identity was not listed on the person's birth certificate”.[4]
If one of the parents is unknown or unstated, the individual would then only be eligible to register under section 6(2); this is if the mother is registered under section 6(1).[5]
As we learned before, being registered under section 6(2) does not allow you to have full passing rights as a person registered under section 6(1). Therefore, if the mother was registered under section 6(2) and the other parent was unknown or unstated, the child may not be eligible to be registered under the Indian Act. [6]
What is the Gehl Decision?
In 2017, the Ontario Court of Appeal found that the Indian Registrar’s Proof of Paternity Policy was unreasonable due to the high evidential burden it required on the applicant to state the identity of the parent, grandparent, or ancestor, even in cases where the identity is unknown.[7] The Court also commented that the policy does not consider other circumstances where a woman could not or would not want to provide information about paternity.[8] Examples given were pregnancies as a result of abuse.[9]
Bill S-3 as a Response to the Gehl Decision
Bill S-3 was another amendment to the Indian Act. It included a new policy that focused on making the evidence to establish parentage more flexible and on a balance of probabilities.[10] The flexibility of evidence allows “any relevant information to be submitted to establish parentage” and requires that the Registrar consider all credible evidence.[11] The registrar must also “take into account specific and personal reasons to justify an applicant’s inability or unwillingness to establish the identity of a parent, grandparent or other ancestor”.[12]
Why is Unknown or Unstated Parentage still an Issue?
Although Bill S-3 allows for more flexibility in the evidence required, it still requires evidence to prove the applicant is entitled with ancestry. Finding or sharing this evidence may be a re-traumatizing experience or impossible due to many possible reasons.[13]
As always, having Canada decide who is “Indian” is problematic and raises more issues for women than it does for men. What are some possible solutions you believe should happen to address the issue of unknown or unstated parentage? Comment below or discuss with others.
ekosi.
The ReconciliACTION Team
Citations
[1] Indian Act, RSC 1985, c I-5 [Indian Act].
[2] ReconciliACTION YEG, “Understanding Bill C-31 and Sections 6(1) and 6(2)” (15 November 2024) online (blog): <reconciliactionyeg.ca> [https://perma.cc/MXE6-PUMJ].
[3] Native Women’s Association of Canada, “Unknown and Unstated Parentage” (last visited 27 December 2024), online (pdf): <nwac.ca> [https://perma.cc/8Y3R-D2YD] [NWAC].
[4] Ibid.
[5] Canada, Crown-Indigenous Relations and Northern Affairs Canada, Remaining inequities related to registration and membership, (fact sheet) online: <rcaanc-cirnac.gc.ca> [https://perma.cc/M4H6-WV3V].
[6] Ibid.
[7] Gehl v Canada (Attorney General), 2017 ONCA 319.
[8] Ibid.
[9] Ibid.
[10] Canada, Indigenous Services Canada, Unknown or Unstated Parentage, online: <sac-isc.gc.ca> [https://perma.cc/4D49-WKP2].
[11] Ibid.
[12] Ibid.
[13] NWAC supra note 4.
[IMAGES] Canada, Crown-Indigenous Relations and Northern Affairs Canada, Remaining inequities related to registration and membership, (fact sheet) online: <rcaanc-cirnac.gc.ca> [https://perma.cc/M4H6-WV3V].
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