Indigenous family groups have resumed a lawsuit against the Canadian government over continued gender discrimination in the Indian Act, as legislation created to address the issue stalls in Parliament.
Minister of Indigenous Services, Patty Hajdu, introduced Bill C-38. An Act amending the Indian Act (new eligibility requirements) December 2022.
The move came in response to a constitutional challenge filed in the British Columbia Supreme Court, but 18 months later, the bill is stuck on second reading and has not been sent to committee for consideration, despite support from all opposition parties.
“We’re hopeful that reopening this will create positive momentum and a willingness to make a decision and move forward quickly,” said Nadia Salmaniu, one of 16 plaintiffs who filed the lawsuit in 2021.
The families temporarily suspended their lawsuit to await the passage of Bill C-38, but have resumed it because they are not confident Parliament will pass the amendments before the next federal election, scheduled for October 2025 at the latest.
Bill C-38 aims to restore Indian status to thousands of First Nations people who lost their rights when male family members waived their rights through a process called suffrage.
Although the federal government considered the removal of Indian status and treaty rights to be optional, the plaintiffs allege that the families were coerced because it was the only way to gain certain rights, such as Canadian citizenship, the right to vote and the right to own property.
In Salmaniu’s case, his great-grandfather, Wilfred Laurier Bennett, gave up his position in 1944 to avoid being forced to send his children to boarding school.
When an Indigenous man is granted the right to vote, his wife and descendants automatically gain the right to vote, meaning that Salmaniu and his daughter Sage are ineligible to vote, despite holding Haida citizenship.
“No colonial structure can eradicate what is Indigenous, what is Haida within me,” Salmaniu said.
Family members undeterred
When Bill C-38 was introduced, Hajdu said the bill was about “Indigenous people who have suffered discrimination but shouldn’t have had to.”
But lawyers for Canada’s federal Department of Justice have denied any Charter violations have been found and have asked the court to dismiss the case.
“It’s an incredibly frustrating situation for the families,” said Ryan Beaton, a lawyer with Jurists Power Law of British Columbia, who is representing the plaintiffs.
“Despite Minister Hajdu saying it is a priority, it is clear that there is a lack of political will.”
One hundred years before Bill C-38 was introduced in the House of Commons, Catherine Fournier’s grandfather, Maurice Sanderson, a member of Manitoba’s Pinaymootang First Nation, was given the right to own property and vote.
Fournier gained Indian status through a previous amendment to the Indian Act, but joined the lawsuit as a plaintiff in 2021 in order to ensure that her Indian status would be passed on to her three children, who she said were raised to cherish their Anishinaabe culture.
Since then, Fournier watched her mother, Edith, one of the plaintiffs, die at age 96, leaving her in urgent need of some kind of relief.
“One of the main things is to never give up,” Fournier said.
“I can only hope that it doesn’t take another 100 years to reach this conclusion. I don’t think so. So in some ways I’m as optimistic and hopeful as I’ve ever been.”
The second lawsuit begins
Since Bill C-38 was introduced, a second lawsuit has been filed against Ottawa on similar grounds in Ontario Superior Court.
The plaintiffs in the Ontario case are seeking restoration of their Indigenous status, as well as $50,000 in personal compensation for pain and suffering related to the loss of their Indigenous cultural identity.
Bill C-38 would address the suffrage status issue, but it also contains a provision that prevents the government from paying compensation for harm caused by its policies.
“This is a much broader issue that affects many families across the country,” said Patricia Lawrence, an Ottawa-based lawyer with First Peoples Law, which filed the Ontario lawsuit.
“Bill C-38 speaks to the fact that there is a problem here that needs to be remedied.”
