The clock is ticking after the B.C. Court of Appeal set the tight deadline for the minority Parliament. It's a ruling that has experts in native law scratching their heads, wondering how such a contentious issue can possibly be resolved in time.

Some lawyers say the ruling means hundreds of thousands of natives are now 12 months away from losing status entirely. Conversely, writing a new definition that complies with the Charter of Human Rights could mean a dramatic increase in the number of Canadians eligible for status.

“It's going to be a mess,” said Winnipeg lawyer Norman Boudreau, who represents natives living in Treaty 1 territory. “If you take that a step further, if you no longer have Indians, then some reserves will no longer be in existence because the reserves are set aside for Indians. So if there's no Indians any more, then the reserve itself falls by the side as well.”

Mr. Boudreau is among the many legal experts both outside and inside government currently grappling with the potential implications of this month's B.C. Court of Appeal ruling, in what is known as the McIvor case.

Mitchell Taylor, who represented the Crown in the case, disputes the interpretation of Mr. Boudreau and others. He said natives would not lose status if nothing happens by the deadline. However, new individuals would not be able to register if the definition was struck down, he said in an interview.

“That's obviously an unacceptable situation and something would need to be done,” he said. Mr. Taylor said there are several options available over the coming 12 months, including a request for a deadline extension, a new law in Parliament or a potential appeal to the Supreme Court.

A spokesman for Indian Affairs Minister Chuck Strahl said the government is considering its options.

The outcome will have a significant impact on native communities and families, who have long struggled with social divisions created as a result of the Indian Act's definition. The existing six-part definition is a complicated one, based on family ancestry as well as several side-arrangements.

An expansion of the definition would also have an impact on the public purse, as status Indians currently qualify for federal coverage of non-insured health benefits such as prescription drugs and can apply for postsecondary assistance.

In the case at hand, Sharon McIvor and her son Jacob Grismer claim that in spite of amendments made to the Indian Act in 1985 aimed at treating men and women equally, the act continues to discriminate against women. They point out that, unlike men, women cannot pass down status to their grandchildren in certain cases.

From 1868 until the Indian Act was amended in 1985, Indian women who married a non-Indian lost their status, while Indian men who married a non-Indian were able to keep their status and bestow status on their wives.

In a June of 2007 ruling, the B.C. Supreme Court agreed that the 1985 changes did not do away with all discrimination in the act. That ruling called for status to be extended to anyone who could show that somewhere in their pre-1985 ancestry a woman had lost status through marriage.

This month's B.C. Court of Appeal ruling said the lower court went too far, and that Parliament must fix only the problems with the 1985 amendment. However, Mr. Justice Harvey Groberman candidly wrote that he's not sure what MPs could have done in 1985 to fix the complicated definition.

“I am even less certain of the options that the government might choose today to make the legislation constitutional,” he wrote.

But while Judge Groberman's concerns appeared to be narrow, lawyers say they are surprised by his solution: striking down key parts of the act's definition of Indian within one year.

The 2006 census found 698,025 Canadians self-identified as “first nation,” a term used by people who are likely to have Indian status. However 1,172,790 describe themselves as aboriginal, which includes 50,485 Inuit, 389,785 Métis and first nation. An expanded definition of Indian status would likely incorporate some of the people who are Métis or aboriginal but do not currently qualify for federal services.

Statistics Canada also found that between 1996 and 2006, the aboriginal population grew by 45 per cent.

BILL CURRY

The Globe and Mail

April 13, 2009