TORONTO – A woman’s decades-long quest for recognition as an Indian ended in victory Thursday, when Ontario’s top court ruled she should be granted status, something the federal government had steadfastly denied her because she didn’t know who her paternal grandfather was.
In its ruling, the Court of Appeal found the government’s refusal to register Lynn Gehl as an Indian, even though she can trace her indigenous heritage back five generations, was unreasonable.
Gehl, 54, of Peterborough, Ont., was denied registration under complicated Indian Act rules because of a government policy adopted in 1985 that deems a father to be non-Indian if his paternity is unstated or listed as unknown on a child’s birth certificate.
Gehl argued that the 1985 changes — designed to address gender-based discrimination in how Indian status was passed from parent to child — in fact led to new problems for women because it imposed a disproportionate burden on them.
In its ruling, the Appeal Court recognized a woman might have good reasons to keep the identity of her child’s father secret, or may simply not be able to say for sure who he is — circumstances that commonly arise in cases of rape, incest or abuse, or because a man simply disavows his child.
“Proof of identity of a parent is, as a matter of biology and common experience, more difficult for a mother to establish than a father. There can hardly ever be any doubt about maternity, but there may be considerable doubt about paternity,” Justice Robert Sharpe wrote.
“The registrar’s application of the policy to Dr. Gehl’s circumstances failed to take into account the equality-enhancing values and remedial objectives underlying the 1985 amendments and was therefore unreasonable.”
Sharpe noted that Indian status involves important legal rights and material benefits, such as tax exemptions, extended health coverage and financial aid for post-secondary education. Another critical aspect is the right to pass status to one’s children.
“There are also very significant intangible benefits,” Sharpe said. “Registration represents the right to belong to and be recognized as a member of a community and to participate in its life and governance.”
The court decided it would be pointless to send the matter back to the registrar because Gehl had presented some uncontested evidence that indicated her paternal grandfather did indeed have Indian status.
Gehl, who identifies as an Algonquin Anishinaabe and had been trying since 1994 to get registered, was delighted with the outcome.
“This has been a long and arduous 32-year journey and I am happy for this moment,” Gehl said. “I will continue my work to ensure that indigenous mothers and children are not excluded from registration due to an unknown or unstated paternity, especially in situations of sexual violence and an abuse of power.”
Justices Peter Lauwers and Bradley Miller agreed with Sharpe’s decision to grant Gehl status, but said they didn’t need to rely on charter rights or values to come to that conclusion. Instead, they said the case could be resolved under administrative law because Gehl was required to prove something that cannot be proven, making the decision against granting her status “simply unreasonable.”
Gehl called the decision important for indigenous women.
“The well-being of mothers and their children must be at the forefront of all our cultural practices,” she said. “This includes laws, policies, and practices. Motherhood and a child’s sense of being and belonging is no place for sex-discrimination in law or in the policies and directives that support law.”
Gehl’s lawyers called the decision a major victory, and said they would wait to see how the government would incorporate the ruling in pending changes to the Indian Act aimed at addressing gender-based discrimination.
“This has always been a case about a woman’s equal right to pass on her Indian status to her descendants,” lawyer Christa Big Canoe said in a statement. “Canada needs to stop fighting indigenous women in court over their identity.”