Eliminating known sex-based inequities in Indian registration

Learn what the Government of Canada is doing to ensure equity between the sexes in Indian registration.

On August 18, 2017, the Quebec Court of Appeal extended the deadline of the Descheneaux decision to December 22, 2017. This will allow Indigenous and Northern Affairs Canada (INAC) to continue processing registration applications until December 22, 2017, while the legislative amendment process continues.

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What is the Descheneaux decision?

On August 3, 2015, the Superior Court of Quebec announced its decision in the Descheneaux v. Canada (Attorney General) case. The court found that several paragraphs and one subsection dealing with Indian registration (status) under section 6 of the Indian Act unjustifiably violate equality rights under the Canadian Charter of Rights and Freedoms (Charter). This is because these paragraphs and subsection perpetuate a difference in treatment between Indian women and Indian men, and their descendants, in Indian registration.

The court struck down these provisions, but suspended the implementation of its decision for a period of 18 months, until February 3, 2017, to allow parliament to make the necessary changes to the act. On January 20, 2017, the court granted a five-month extension, until July 3, 2017, to allow the government to further engage and adopt legislative amendments.

On July 3, 2017, the Quebec Court of Appeal granted a temporary suspension of the Descheneaux decision, pending Canada’s appeal of the Superior Court of Quebec’s denial of a six-month extension of the decision, which will be heard on August 9, 2017.

What issues with the Indian Act were raised in the Descheneaux case?

The Descheneaux case deals with two specific situations of sex-based inequities in Indian registration, which affect:

The "cousins" issue relates to the different treatment in how Indian status is gained and passed on among first cousins of the same family. It depends on the sex of their Indian grandparent, in situations where the grandmother was married to a non-Indian before 1985. This results in different abilities to gain and pass on status between the maternal and paternal lines.

The "siblings" issue concerns the different treatment in the ability to pass on Indian status between male and female children born out of wedlock between the 1951 and 1985 amendments to the Indian Act. Indian women in this situation cannot pass on status to their descendants, unless their child's father is a status Indian. Unlike status Indian men in similar circumstances who can pass on status to their children regardless of the other parent's status.

The Descheneaux decision highlights the residual sex-based inequities in Indian registration that were carried forward through Bill C-31's comprehensive changes to Indian registration and band membership under the Indian Act in 1985.

Some of these inequities were not fully addressed in 2011with the passage of the Gender Equity in Indian Registration Act (Bill C-3).

The decision also calls attention to the broader-related issues that were raised by First Nations and other Indigenous groups as part of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship and that remain unaddressed.

What is the Government of Canada's response to the Descheneaux decision?

In response to the Descheneaux decision, on July 28, 2016, the Government of Canada announced a two-staged approach to eliminate known sex-based inequities in Indian registration and begin a collaborative process with First Nations and other Indigenous groups on the broader issues related to registration, band membership and citizenship.

Stage I:

Stage II:

What is Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)?

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) was introduced in the Senate of Canada on October 25, 2016, following engagement with First Nations and other Indigenous groups. The proposed legislative amendments in the bill will eliminate known sex-based inequities in Indian registration in respect of cousins and siblings, as identified by the court in the Descheneaux case, as well as other known sex-based inequities in registration.

During the study of Bill S-3 by the Standing Senate Committee on Aboriginal Peoples, witnesses and senators expressed concerns regarding:

In consideration of these issues, the Standing Senate Committee suspended its study of the bill on December 13, 2016. The committee recommended that the government seek an extension of the suspension of the court decision in order to continue engagement on Bill S-3, and include in this process, discussions with individuals affected by sex-based inequities in Indian registration.

On December 22, 2016, the government sought an extension of the Descheneaux decision from the Superior Court of Quebec to allow for continued engagement on the proposed amendments in Bill S-3, as part of Stage I.

On January 20, 2017, the court granted a five-month extension, until July 3, 2017, to allow the government to:

Parliament has until July 3, 2017, to pass legislative amendments through Bill S-3 to eliminate known sex-based inequities in Indian registration.

What are the next steps?

The five-month extension granted by the court in the Descheneaux decision has allowed the Government of Canada to continue engagement on Bill S-3 with First Nations, other Indigenous groups, legal experts and impacted individuals to adopt legislative amendments that will eliminate known sex-based inequities in Indian registration.

Engagement activities must be completed before the end of the five-month extension so that the parliamentary process can be completed and amendments to the Indian Act through Bill S-3 are passed, by July 3, 2017.

The collaborative process under Stage II will be launched after Bill S-3 is passed. This will open the door for comprehensive consultations and collaborative work with First Nations, Indigenous organizations and individuals on the broader issues relating to Indian registration, band membership and citizenship.

For any questions or comments on what the Government of Canada is doing to eliminate known sex-based inequities in Indian registration, contact: IRIPMNationalSupport@aadnc-aandc.gc.ca

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