OTTAWA | January 28, 2011

No more status quo

By Sabrina Jade Doyle       Producer Tanya Springer
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Sagamok Anishishnawbek is one of the many First Nations Reserves that will be affected by the influx of status-seeking Canadians

Native reserves across the country are preparing for the potential influx of people that could result when new legislation gives thousands of Canadians eligibility to apply for legal native status.

The grandchildren of aboriginal women who married white men before 1985 and lost their Indian status because of it are finally having the opportunity to regain their status under Bill C-3.

By Jan. 31 the bill will be in force and approximately 45,000 people will be eligible to apply for status.

The bill is another step towards addressing past wrongs against women resulting from the Indian Act, but creates a number of practical issues for native reserves today. Some people worry about the financial burden these new members will place on an already cash-strapped system.

While the majority of those who could apply for status live off-reserve and are settled in cities with jobs and dependents, approximately four to ten thousand might move to their respective native reserves, estimates Allen Toulouse, a historical researcher for the Sagamok Anishnawbek First Nation on the north shore of Lake Huron.

“In the back of my mind I question whether First Nations will be able to handle this new population boost.”

No extra money

While sometimes having a larger membership can help an aboriginal band secure more funding, to date the federal government hasn’t promised any extra money to compensate for the possible influx of people.


Pamela Palmater is a non-status Indian who will regain her lost status through Bill C-3, whereas her sons Jeremy and Mitchell will not be eligible.

With education, health and housing services on the line, tensions between the status and newly-restored status Indians might arise, says Pam Palmater. She is an associate professor of aboriginal governance at Ryerson University and served as an expert witness before the House and the Senate on Bill C-3.

As a current non-status Indian who will achieve status through Bill C-3, Palmater predicts most communities will welcome the new members, but knows some people who don’t think the newcomers deserve status.

“In their mind, the women who married out in pre-1985 chose to. They chose to marry white people, they chose to abandon their culture and they chose to leave the reserve. And that’s a big misunderstanding even within aboriginal communities – there was no choice.”

With eight sisters and three brothers (toss into the equation adopted children and non-aboriginal spouses), there are rifts even within her own family where some consider themselves more “Indian” than others. Under the bill, two of her sisters and her two sons will not be eligible to apply for status.

“It’s insane, but we’re all the same family.”

In an effort to determine the cost of adding another 45,000 people to the Indian registry, Indian and Northern Affairs Canada (INAC) has created an internal financial working group, which could possibly lead to talks about extra funding, says Roy Gray, the director of the special legislative initiative for INAC.

Departmental officials are now reviewing the group’s conclusions, and then recommendations can be made, says Gray.

Potential challenges

Palmater doubts First Nations communities will see any extra funding to help them deal with the situation. But some people think the tensions caused by reserve population boosts are being exaggerated.

Betty Ann Lavallée, the National Chief of the Congress of Aboriginal People remembers 1985, when thousands were registered as status Indians under Bill C-31 but not many actually relocated to reserves. She roughly estimates that this time only about five per cent of the 45,000 will move onto a reserve.


Betty Ann Lavallée is the National Chief of the Congress of Aboriginal People and thinks the movement of new-status Indians to reserves will be minimal.

As well, some people might not even be permitted to move onto the communally-owned land of a reserve. Some bands still control their own membership and can refuse adding these new-status Indians to the list, since under Bill C-3 they may not have the requisite status level.

Living on-reserve can provide a closer sense of belonging and housing help for members, but those living off-reserve are still entitled to benefits and services – services that are already being stretched thin.

While over-crowding and under-funding can spark tensions, Lavallée says the heart of the problem is that INAC still controls First Nation citizenship.

“Today’s aboriginal youth have grown up being brainwashed that their self identity is defined by a little card from INAC that says: okay, you’re an Indian, you have status.” 

Over the following year, the federal government will launch an “exploratory process” with a number of undecided aboriginal groups to discuss next steps.
$2.7B class action suit launched

Saskatchewan lawyer Tony Merchant has filed a class action lawsuit against the federal government, on behalf of all Canadians who, since 1985, have been wrongfully denied Indian status. 

A statement of claim says as many as 45,000 Canadians are affected by Bill C-3. Merchant argues these Canadians have missed out on the many benefits afforded to those with Indian status, and “they continue to suffer financial harm to the tune of 2.7 billion dollars.”

His firm, Merchant Law Group, arrived at the sum of 2.7 billion after conducting a financial study with a group of 30 non-status Aboriginals who will gain status with the passing of Bill C-3. 

Merchant claims that by incorrectly paying taxes (PST, income, Fuel Tax and otherwise), and forgoing benefits afforded to those with Indian status (such as health, dental, vision care, post-secondary funding, etc.), each of his clients is owed roughly $60,000. By multiplying this number by the approximate number of Canadians who will achieve status through the Bill, he arrived at $2.7 billion.

In a phone interview, Merchant confirmed that over 1,000 eligible plaintiffs have already filed with the suit.  He estimates that number will reach 4,000 in the coming months.

Dr. Jane Dickson-Gilmore, law professor at Carleton University, applauds Merchant’s efforts to address ongoing discrimination against Aboriginal women and their descendants, but says he will face significant challenges with the case. 

The legislation clearly states that compensation will not be afforded, and that “discriminatory impacts were the result of good faith and consistent with the fulfillment of the existing policy.”

“This may not be fair, and it is obviously an effort by the federal government to avoid precisely the sort of demand for compensation made by Merchant, but he will have to get past this section of the bill,” says Dickson-Gilmore.

She also notes a second, more fraught challenge. 

“At least some of the categories of compensation Merchant is seeking (such as post-secondary benefits) are commonly administered by Band Councils consistent with their own membership policies - many bands deliberately exclude women who "marry out", their children and their descendants from membership.”

She says this adds a difficult and complex situation, where people might have status, but not membership, and thus limited access to those entitlements administered by a band. 

“Bill C-3 might restore status to some of those denied it previously, but it is less clear whether this will assist them to regain band membership - and that may prove to be the devil in the details,” says Dickson-Gilmore.

Merchant has successfully filed class-action lawsuits against the federal government in the past.  Merchant Law Group represented half of all individuals that received compensation under the Residential School Settlement.