History of Section 67

It was 28 years ago, in 1977, that Parliament considered legislation⁸ to enact a comprehensive federal anti-discrimination code, the Canadian Human Rights Act, and to establish the Canadian Human Rights Commission. In introducing the legislation, the Minister of Justice, the Honourable Ron Basford, noted:

The existence of fundamental human rights and freedoms, including the right of every individual to participate in society without... discrimination, is a basic and underlying principle which has long been recognized by the Parliament and Government of Canada.⁹

He went on to state that the purpose of the new legislation was "to give... legal recognition to these rights by providing, for the first time, a comprehensive set of rules against discrimination at the federal level."

The principle of comprehensiveness was, however, subject to an important exception : section 67,¹⁰ the last clause of the Act. The Minister explained that this exception was necessary because the government had made a commitment to First Nation representatives that there would be no modifications to the Indian Act except after full consultations.

With the obvious exception of section 67 itself, the legislation made no reference to the Indian Act, and did not alter it in any way. Nevertheless, the Government believed that applying the proposed human rights regime to matters falling under the Indian Act could, in substance, result in changing the Indian Act. This was because, as the Minister conceded, certain provisions of the Indian Act, and actions carried out pursuant to it, quite possibly would not pass human rights scrutiny and might be struck down if complaints regarding them were considered by the new Human Rights Commission.

The most contentious of these issues concerned the situation of First Nation women who married non-Status Indians. Section 12(1)(b) of the then Indian Act required that if a First Nation woman registered under the Indian Act married a man without Indian status, she would lose her entitlement to status. However, First Nation men who married non-Indian women did not lose status. In fact, their wives, although they sometimes had no First Nation ancestry, were entitled to full status. The effect of this discriminatory provision was the effective banishment of over one hundred thousand women, their spouses, and their children from their communities and traditional homelands. This caused great psychological, emotional and economic suffering. This was especially true in cases where marriages broke down and First Nation women were not allowed to return home.

In the pre-Charter 1970s, the Canadian courts had proven ineffective in remedying sexual discrimination in the Indian Act. In Attorney-General of Canada v. Jeanette Lavell, Richard Isaac et al. v. Ivonne Bedard [1974] S.C.R. 1349, the Supreme Court of Canada held that section 12(1)(b) was fully operative, irrespective of its inconsistency with the Canadian Bill of Rights on account of discrimination based on sex.

Having exhausted domestic remedies, advocates of repealing section 12(1)(b) began to consider recourse to the human rights complaints mechanisms under the United Nations International Covenant on Civil and Political Rights. In December 1977, shortly after the passage of the CHRA, Sandra Lovelace made a formal complaint against Canada to the United Nations Human Rights Committee¹¹.

Meanwhile, the federal government had begun discussions with the National Indian Brotherhood (which later became the Assembly of First Nations) on reform of the Indian Act, including repeal of section 12(1)(b). These discussions were cited by Justice Minister Basford as the reason for exempting the Indian Act from the soon-to-be-enacted Canadian Human Rights Act.

During the Parliamentary Committee hearings on the human rights legislation, Mr. Basford came under pressure to justify the Indian Act exemption. The Minister made it clear that section 67 was intended as a temporary measure:

Parliament is not going to look favourably on continuing this exemption forever or very long and... I take it from the proceedings and my own observations, Parliament, on a nonpartisan basis, would like to see these provisions of the Indian Act changed and corrected.¹²

Many groups, including those representing women affected by section 12(1)(b), appeared before the Standing Committee and objected to exempting the Indian Act from the application of the new law. In words that still ring true today, one Member of Parliament asked during the 1977 parliamentary debate of the Act:

What kind of human rights legislation is it in Canada when native women are not included? [...] Human rights legislation has to protect everybody and must not provide exemptions here and there... Human rights legislation, to be worth its salt, must include groups which are clearly discriminated against.¹³

The initial concerns of First Nations women's representatives, that the joint review process would not lead to a remedy for the sex discrimination contained in the Indian Act, were ultimately confirmed. The Cabinet/NIB process was not successful. Consequently, the sex discrimination contained in section12(1)(b) and other sections of the Act continued, as did the section 67 exemption.

In 1981, the United Nations Human Rights Committee ruled in favour of Sandra Lovelace, finding that section12 (1)(b) contravened Canada's obligations under the United Nations Covenant on Civil and Political Rights. In 1982, the Canadian Charter of Rights and Freedoms, with its strong protection of gender equality,¹⁴ was enacted as part of the Constitution Act, 1982.

Finally, in 1985, shortly after the equality provisions came into effect, section 12(1)(b) was repealed and other sexually discriminatory provisions were abolished. (Concerns remain, however, about residual sex discrimination in the operation of the Act regarding Indian status and band membership entitlement.)

But section 67 was not abolished.¹⁵ Twenty-eight years after the Minister said Parliament "could not look favourably at continuing this measure," 20 years after Bill C-31, it is still part of the law of Canada.