Woman's challenge of Indian Act heard by Ontario's top court

A woman denied Indian status despite being able to trace her Indigenous heritage for at least five generations is the victim of gender discrimination, Ontario's top court heard Tuesday.

Changes to the law in 1985 designed to address such discrimination only created new problems for women such as Lynn Gehl, her lawyer told the Court of Appeal.

• Indian status: Five more things you need to know
• ANALYSIS: Why LynnGehl'scourt challenge matters

Gehl, 54, of Peterborough, Ont., has been unable to register as an Indian because she does not know who her grandfather was. By policy, the government assumes he was non-Indian, which ultimately deprived Gehl of her status.

As a result, she has faced real consequences, including loss of treaty rights and "growing up in a cultural void and shame," said her lawyer, Christa Big Canoe.

Many women denied Indian status

Tens of thousands of women are estimated to be in Gehl's situation denied Indian status in cases in which a father is unknown or unstated on his child's birth certificate. This usually results from cases of rape, incest, or abuse, or where a man simply disavows his child.

Gehl's co-counsel, Mary Eberts, said the government's current interpretation of the Indian Act treats men and women differently, with women bearing the disproportionate brunt of the unequal treatment. In general, Eberts said, it is far more difficult to identify a father than it is a mother.

"Women still carry the disadvantages from the pre-1985 regime," Eberts said. "Males and females under the Indian Act are not the same. The male still benefits from some historical privileges."

The government's policy on unknown or unstated paternity or the underlying provisions of the Indian Act are therefore unconstitutional, court heard.

For its part, Ottawa argues the non-Indian assumption is part of a reasonable and legitimate approach to protect bands from an influx of non-status Indians and to limit the government's financial exposure.

Long battle over Indian status

Gehl, who identifies as an Algonquin Anishinaabe, has been trying without success since 1994 to get registered as a status Indian. Among the benefits she would have would be the ability to participate fully in the affairs of her First Nation, including taking part in negotiations with the federal government.

Pre-1985, Indian status was passed on through a person's father's lineage something the law attempted to address in light of the charter. While thousands of people were retroactively granted status under the new legislation, Gehl was not one of them.

In June last year, Ontario Superior Court Justice Elizabeth Stewart rejected Gehl's arguments, even though she was sympathetic.

"Gehl's predicament arises from the unique circumstances of her life, particularly the unknowable identity of her paternal grandfather," Stewart said in her ruling.