Bill 173 to end discrimination against indigenous naming traditions in Ontario

4 minute read
01 March 2016

Gowling WLG is honoured to represent Akwesasne Mohawk woman, Ienonhkwa'tsheriiostha, in securing legislative change.

The introduction of Bill 173 in the Ontario Legislature on Feb. 25, 2016 has paved the way for recognizing Indigenous naming practices in the province. 

Schedule 33 of the Bill includes significant changes to Ontario’s Vital Statistics Act.  Most notably, these changes will now allow for the registration of the birth of a child using a single name “in accordance with the child’s traditional culture.” Under the current Act, the birth of a child cannot be registered in the absence of at least one forename and one surname. 

This prevents individuals from certain communities from obtaining an Ontario birth certificate that reflected the name given to them based on their traditional naming practices. In particular, the current legislation is incompatible with traditional Mohawk naming practices whereby clan mothers confer upon a child a single, unique name. This in turn prevents those individuals from obtaining other vital documents, such as a social insurance number and passport.

In 2014, Ienonhkwa'tsheriiostha, a young woman from the Mohawks of Akwesasne, elected to challenge the existing legislation, in refusing to abandon her Mohawk name or to desecrate its significance by adopting a surname. The problem with the existing legislation was brought to the attention of the Ontario government, soon followed by the filing of a human rights complaint. The complaint highlighted the importance of Ienonhkwa'tsheriiostha’s name to her identity as a Mohawk woman, and detailed the difficulties she faced as a result of being unable to obtain a birth certificate. 

In response to the human rights complaint, the government of Ontario, to its great credit, acted swiftly, meeting with the complainant and members of her family and community, conducting a policy review and ultimately, recommending amendments to the offending provisions of the Vital Statistics Act. The introduction of these amendments through Bill 173 marks a significant victory for Ienonhkwa'tsheriiostha and broader Mohawk and Indigenous communities as a whole, as well as individuals of other cultural backgrounds with single-naming traditions. 

Specifically, the Bill proposes amendments to s. 10(4) of the Act to provide that a person may give a child a single name “in accordance with the child’s traditional culture.” There are some prerequisites to this provision. The person giving the single name to the child has to provide the Registrar General with the prescribed evidence, if there is any, of the child’s traditional culture. The Registrar General must approve the use of the specific single name. The proposed amendments to s. 10(5) dictate who is able to choose the single name. Under this provision it is proposed that the single name given to the child will be chosen by both parents if they both certify the birth and agree on the name, or by the person who certifies the birth, if only one person certifies the birth.

The Bill also proposes that section 14 of the Vital Statistics Act be repealed, such provision dealing with the process for name changes for children under the age of 12. In its place new provisions permit the registration of name changes by the Registrar General where sufficient evidence is provided. Further to this, following the registration of a name change, new provisions provide for changes to related documentation. These changes will permit individuals wishing to return to their single, traditional name the opportunity to do so.  The proposed amendments to the Vital Statistics Act are not yet enacted but are expected to pass without controversy.

Jaimie Lickers of the Gowling WLG Aboriginal Law Group was honoured to act as counsel to Ienonhkwa'tsheriiostha on this matter.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

Related   Indigenous Law