ICCPR Case Digest

CCPR/C/124/D/2020/2010

Communication

2020/2010

Submission: 2010.11.24

View Adopted: 2018.11.01

McIvor and Grismer v. Canada

Canada denies full native status to First Nations members based on sex

Substantive Issues
  • Gender equality
  • Protection of minorities
Relevant Articles
  • Article 2.1
  • Article 2.3 (a)
  • Article 26
  • Article 27
  • Article 3
Full Text

Facts

McIver is the descendant of native women and non-native men. Her son, Grismer, is of non-native patrilineal descent. Canadian law until 1985 removed Indian status of native women who marry non-native men as well as their children. The revised law from 1985 maintained preference to male Indians and patrilineal descent. Mothers could only transfer partial Indian status to their children and none to their grandchildren. Grismer, therefore, has partial status and his children have none. McIver's brother, with the same parents and the same marital pattern, has full status for himself and his children. The new law granted full status to McIver under one subsection, but not under another. Grismer married a non-native woman, and his children have absolutely no Indian status, If his father were native, both Grismer and his children would have full status. All attempts to remedy this, both by the authors appealing via the courts, challenging the constitutionality of the law, and changing the law through new legislation have proved ineffective and futile.

Admissibility

The Committee noted the State party’s allegation that article 2(3) of the Covenant cannot alone give rise to a claim under the Optional Protocol, but observed that the authors invoked that provision with reference to an alleged violation of their rights under articles 26 and 27 in conjunction with articles 2(1) and 3 of the Covenant. Accordingly, the Committee declared this claim admissible.

The Committee further considered that the authors’ claims under articles 2(1), 2(3), 3, 26 and 27 of the Covenant had been sufficiently substantiated for purposes of admissibility and proceeded to their examination on the merits.

Merits

The authors demonstrated a violation of articles 3 and 26, read in conjunction with article 27 of the Covenant.

In light of the findings, the Committee considered that it is not necessary to examine the authors’ remaining claims under the Covenant.

The Committee, acting under article 5(4) of the Optional Protocol, is of the view that the facts before it disclosed a violation by the State party of the authors’ rights under articles 3 and 26, read in conjunction with article 27 of the Covenant.

Recommendations

In accordance with article 2(3)(a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy.

This requires it to make full reparation to individuals whose Covenant rights have been violated.

Accordingly, the State party is obligated, inter alia,

  • to ensure that section 6(1)(a) of the 1985 Indian Act, or of that Act as amended, is interpreted to allow registration by all persons including the authors who previously were not entitled to be registered under section 6(1)(a) solely as a result of preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants, born prior to 17 April 1985; and
  • to take steps to address residual discrimination within First Nations communities arising from the legal discrimination based on sex in the Indian Act.
  • Additionally, the State party is under the obligation to take steps to avoid similar violations in the future.

Implementation

Deadline for implementation: May 2019.

Rules of Procedure of the Human Rights Committee

Rules of Procedure of the Human Rights Committee CCPR/C/3/Rev.10

Arabic | Chinese | English | French | Russian | Spanish

CCPR NGO Participation

Documents adopted by the Human Rights Committee (March 2012)

English | French | Spanish | Russian | Handbook

CCPR NHRI Participation

Documents adopted by the Human Rights Committee (November 2012)

English | French | Spanish | Russian | Arabic | Chinese