Overview

History

As a result of an April 2009 decision by the Court of Appeal for British Columbia in the matter of McIvor v. Canada, Parliament was given a deadline of April 6, 2010 to amend the Indian Act. The Court found that some of the 1985 amendments to the Indian Act (Bill C-31) regarding certain registration provisions discriminate between men and women.

The federal government did not appeal the decision of the Court of Appeal for British Columbia and proceeded with legislative amendments to section 6 of the Indian Act that deal specifically with certain registration provisions that the Court deemed unconstitutional. From August to November 2009, officials held engagement sessions with interested Aboriginal stakeholders throughout Canada to provide information on the government’s preferred approach to legislative amendments and to seek views.

The proposed amendments remedy the specific issues of discrimination identified by the court decision. Comments received during the engagement process extended well beyond the scope of the proposed legislative amendments. Any other legislative approach at this time would be impractical given the court-imposed deadline and the complexities and uncertainties inherent in potential broader changes to the Indian Act. Broader issues related to the questions of registration and membership will be examined through a separate joint exploratory process with National Aboriginal Organizations and with the participation of First Nations and other Aboriginal groups, organizations and individuals across the country.

Background on the McIvor Decision

Sharon McIvor launched a civil law suit in October 1989 in her bid to acquire the ability to transmit Indian status to her grandchildren. Although Ms. McIvor was not registered as an Indian prior to 1985, if she had been she would have lost status because she married a non-Indian. She became entitled to registration after the passage of Bill C-31. However, Ms. McIvor contended that she and her son, Jacob Grismer, were not in the same position as they would have been if she had been a male.

Unlike a male Indian in her situation, Ms. McIvor’s ability to pass status to her grandchildren depended on her son parenting with a registered Indian. Children of her male counterpart had status prior to 1985, and so were registered under subsection 6(1) of the Indian Act. Any grandchild of this male Indian could be registered. Mr. Grismer, however, having only one registered Indian parent, was registered under subsection 6(2). According to the “second generation cut-off” rule, the fact that he had a child with a non-Indian meant that his child (Ms. McIvor’s grandchild) could not be registered.

The Proposed Amendments

The Government of Canada has introduced the proposed amendments to the Indian Act to provide an entitlement to registration under subsection 6(2) of the Indian Act to a grandchild of a woman:

1. Who lost status due to marrying a non-Indian man; and
2. Whose child born of that marriage [Note 1] parented the grandchild with a non-Indian after September 4, 1951.

Any sibling of the grandchild would also be granted status.

Provisions Regarding Registration

In order to facilitate the registration of these grandchildren, the Indian Act amendments will grant an amended entitlement from 6(2) to new paragraph 6(1)(c.1) to any individual:

• whose mother lost Indian status upon marrying a non-Indian man;
• whose father is not entitled to be registered as an Indian;
• who was born after the mother lost Indian status and before April 17, 1985, unless the individual’s parents married each other prior to this date; and
• who had or adopted a child with a non-Indian on or after September 4, 1951.

Accordingly, any child of such an individual (whether born before, on, or after September 4, 1951) will be entitled to registration under subsection 6(2) of the Indian Act.

To ensure that individuals can continue to be registered under paragraphs 6(1)(a) and 6(1)(c), the proposed amendments also will re-enact the provisions struck down by the decision of the Court of Appeal for British Columbia. The proposed amendments will come into force on the day before the deadline imposed by the Court of Appeal for British Columbia.

For greater certainty, there will also be provisions protecting existing registrations, and ensuring the right to rely on past entitlements to registration to register descendants under paragraph 6(1)(f) and subsection 6(2). This way no one with an entitlement to registration before the proposed amendments will lose that entitlement because of them.

While the proposed amendments will protect past entitlements, the new entitlements conferred by enactment of the new paragraph 6(1)(c.1) will apply only after the amendments take effect.

Benefits associated with registration (or band membership) for persons newly registered as a result of this paragraph could not be claimed for a period prior to the coming into force of these proposed amendments.

Provisions Regarding Band Membership

The proposed amendments will protect the existing band membership or entitlement to band membership of individuals covered by the new paragraph 6(1)(c.1). If Indian and Northern Affairs Canada maintains the band list of their band of affiliation, they are entitled to membership in that band. If their band of affiliation has assumed control of their own membership under section 10 of the Indian Act, their membership is determined by the membership rules adopted by the band. However, the proposed amendments will ensure that individuals whose existing registration moves to the new paragraph 6(1)(c.1) will not inadvertently lose their band membership, whether or not their band of affiliation has assumed control of their membership.

The band membership entitlement of the children of those covered by paragraph 6(1)(c.1), i.e. those newly entitled to registration under subsection 6(2), will be determined according to the current band membership rules, if their band of affiliation has control of its membership. Otherwise, these persons will be entitled to membership in their parent’s band.

Impacts of the Proposed Amendments

It is difficult to specify exactly how many people will be affected by the proposed amendments. The complexity of families and fertility patterns, as well as limitations on the information available to the Indian Registrar, present challenges in making estimates. Following extensive research, Indian and Northern Affairs Canada believes that the total number of persons newly entitled to registration under the Indian Act resulting from the proposed amendments will be in the range of 45,000 [Note 2]. The impact on the membership of First Nations communities (bands) is more challenging to specify; over 230 bands have their own membership codes which are quite varied. For First Nations that do not control their own membership, new registrants will be added to the appropriate band list by the Indian Registrar.

Footnotes:

1. The amendment will also apply to a child born to a subsequent union with a non-Indian provided that, if the child was born after April 17, 1985, the parents of the child married each other prior to that date. (return to source paragraph)
2. This estimate is larger than the range of 20,000 to 40,000 identified in the Discussion Paper released by the Minister of Indian Affairs and Northern Development Canada, and Interlocutor for Métis and Non-Status Indians in August, 2009. This new estimate is based on work completed in autumn 2009 by Mr. Stewart Clatworthy, a noted demographer of First Nations. The new estimates benefit in particular from analysis of the so-called “black” Register, the pre-digital hard copy Indian Register. (return to source paragraph)