The Government of Canada's Response to the Descheneaux Decision

Table of contents

Introduction

On August 3, 2015, the Superior Court of Quebec rendered its decision in the Descheneaux case. The court found that several paragraphs and one subsection relating to Indian registration (status) under section 6 of the Indian Act unjustifiably violate equality provisions under section 15 of the Canadian Charter of Rights and Freedoms (Charter) because they perpetuate a difference in treatment in eligibility to Indian registration between Indian women as compared to Indian men and their respective descendants. 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 legislative amendments.

In its decision, the court also advised (in obiter) that legislative amendments to address inequities in Indian registration not be limited to the specific facts in the Descheneaux case.

More broadly, the Descheneaux decision highlights the continued residual sex-based inequities in Indian registration that were carried forward following the 1985 comprehensive changes to Indian registration and band membership under the Indian Act through Bill C-31 to comply with the Charter. Some of these inequities were not fully addressed in 2011 as part of the Gender Equity in Indian Registration Act (Bill C-3).

The decision also brings to the forefront the long-standing and unaddressed broader issues relating to Indian registration, band membership and citizenship that were raised by First Nations as part of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship, such as, the historic and continued federal legal authority to define Indian and band member under the Indian Act.

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

The Descheneaux Case

In 2011, three members of the Abénakis of Odanak First Nation in Quebec, Stéphane Descheneaux, Susan Yantha and Tammy Yantha, filed litigation in the Superior Court of Quebec challenging the Indian registration provisions under section 6 of the Indian Act as being unconstitutional and in contravention of the Charter.

The plaintiffs argued that the current registration provisions perpetuate different treatment in entitlement to Indian registration between Indian women as compared to Indian men and their respective descendants. They also argued that amendments to the Indian Act under the 2011 Gender Equity in Indian Registration Act (Bill C-3) in response to the 2009 decision of the British Columbia Court of Appeal in the McIvor case did not go far enough in addressing sex-based inequities in Indian registration.

The Descheneaux case deals with two specific situations of residual sex-based inequities in Indian registration affecting cousins and siblings.

The "cousins" issue relates to the differential treatment in how Indian status is acquired and transmitted among first cousins of the same family depending on the sex of their Indian grandparent, in situations where their grandmother was married to a non-Indian prior to 1985. This results in different abilities to acquire and pass on status between the maternal and paternal lines.

Although the 2011 Gender Equity in Indian Registration Act (Bill C-3) removed the inequality directly affecting the grandchildren of Indian women who had married non-Indians in certain circumstances, it did not address a further inequality that directly affected the great-grandchildren of such women. Therefore, it did not bring matrilineal entitlement to Indian registration into line with that of patrilineal entitlement in similar circumstances.

The "siblings" issue concerns the differential treatment in the ability to transmit Indian status between male and female children born out of wedlock to an Indian father 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 Indian men in similar circumstances who can pass on status to their children regardless of whether they parent with a non-Indian.

The Descheneaux Decision

On August 3, 2015, the Superior Court of Quebec ruled in favour of the plaintiffs, finding that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act unjustifiably infringe section 15 of the Charter. The court declared these provisions to be of no force and effect but suspended its decision for a period of 18 months (until February 3, 2017, later extended to July 3, 2017) to allow parliament time to make the necessary legislative amendments.Footnote 1

In its decision, the court also warned that legislative amendments to address inequities in Indian registration not be limited to the specific facts in the Descheneaux case.

On September 2, 2015, an appeal in the decision was filed pending direction from the new government following the federal election of October 19, 2015. As part of the government's review of court cases, Canada withdrew its appeal of the decision on February 22, 2016, and began work on the required legislative amendments to respond to the decision.

The Government of Canada's Response: A Two-Staged Approach

The Government of Canada is aware that sex-based inequities in Indian status is one of a number of issues relating to Indian registration and band membership under the Indian Act that are of concern to First Nations and other Indigenous groups.

Some of these issues involve distinctions in Indian registration that are based on family status and ancestry or date of birth, and involve such matters as: adoption; the 1951 and second-generation cut-offs; unstated/unknown paternity; and voluntary deregistration. Other matters relate to broader policy questions, such as Canada’s continued role in determining Indian status and band membership. These subject matters are complex, and some are subjective in nature as they focus on issues relating to culture and ethnicity and finding the appropriate balance between individual and collective rights. Impacted individuals and communities bring a wide range of views on how to address these matters.

In keeping with Canada’s commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous peoples, the government will not act unilaterally to bring about legislative change in respect of the broader-related and complex issues. These issues should be the subject of meaningful consultations with First Nations, Indigenous groups and affected individuals.

For these reasons, the Government of Canada has launched a two-staged approach in response to the Descheneauxdecision. Stage I is focused on the elimination of known sex-based inequities in Indian registration, including the issues that were raised in Descheneaux, through legislative amendments. Stage II will provide for comprehensive consultations with First Nations, Indigenous groups and affected individuals through a collaborative process that will examine the broader issues relating to Indian registration, band membership and citizenship with a view to future reform.

Stage I: Engagement and A Legislative Process to Address Known Sex-Based Inequities in Indian Registration (2016-2017)

In July 2016, the Government of Canada began engagement with First Nations and other Indigenous groups on the proposed legislative amendments to address the sex-based inequities found in the Descheneaux decision, as well as other sex-based inequities in Indian registration.

As part of the engagement, the federal government invited, and provided funding to, interested First Nation and Indigenous organizations to work with the government to bring together individuals and groups to discuss the proposed legislative changes.

Engagement sessions took place across Canada over summer and fall 2016. Participation in these sessions was inclusive of:

  • First Nations, Métis, and non-status Indians
  • First Nation chiefs, councillors, administrators and community members
  • representatives of Treaty and Nation organizations, and regional and national Indigenous organizations, including women's organizations.

A draft of the legislative proposal was also shared with First Nations and other Indigenous groups and posted on the INAC website for information purposes prior to the introduction of the legislation in parliament.

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.

The proposed amendments under Bill S-3 address the inequities identified in the Descheneaux decision and other known sex-based inequities in Indian registration:

  • Cousins Issue: Address the differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian, when that marriage occurred before April 17, 1985 (see Annex A).
  • Siblings Issue: Address the differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951 and April 17, 1985 (see Annex B).
  • Issue of Omitted Minors: Address the differential treatment of minor children, who were born of Indian parents or of an Indian mother, but lost entitlement to Indian Status because their mother married a non-Indian after their birth, and between September 4, 1951 and April 17, 1985 (see Annex C).

The Standing Senate Committee on Aboriginal Peoples began its study of Bill S-3 on November 22, 2016. The Standing Committee on Indigenous and Northern Affairs also undertook a pre-study of the bill beginning November 21, 2016.

During the Standing Senate Committee deliberations, witnesses and senators expressed concerns regarding the level of engagement with First Nations, Indigenous groups and affected individuals prior to the introduction of the bill. Concerns were also raised on whether the bill addresses all known sex-based inequities in Indian registration.

On December 6, 2016, the Standing Senate Committee suspended consideration of Bill S-3, and on December 13, 2016, the committee recommended that the government seek an extension of the February 3, 2017 court order, to continue the engagement process.

On December 22, 2016, in response to the recommendation of the Standing Senate Committee, the government sought an extension of the decision from the Superior Court of Quebec to continue engagement on the proposed amendments to address sex-based inequities in Indian registration as part of Stage I. On January 20, 2017, the court granted a five-month extension of the decision, to July 3, 2017.

The court extension allowed the Government of Canada to:

  • Further engage with First Nations, Indigenous groups and affected individuals on Bill S-3.
  • Hold technical meetings with legal experts.
  • Confirm that the proposed amendments outlined in the bill provide the appropriate remedies for the situations found in the Descheneaux decision.
  • Ensure that the bill addresses other known situations of sex-based inequities.
  • Further analyse a proposed amendment to Bill S-3 put forward during testimony to the Standing Senate Committee (see Annex D).

Parliament has until July 3, 2017, to enact legislative amendments under Bill S-3 in order to eliminate the sex-based inequities in Indian registration.

Stage II: A Collaborative Process on the Broader Issues Relating to Indian Registration, Band Membership and Citizenship (2017-2018)

In keeping with the government's commitment to reconciliation with Indigenous peoples through a renewed nation-to-nation relationship, a collaborative process on the broader issues relating to Indian registration, band membership and citizenship will be launched following the passage of Bill S-3.

The collaborative process will be jointly designed with First Nations and other Indigenous groups. Preliminary discussions will be held to determine the nature and scope of work and discussions to take place, the subject matters that would be examined under this process and the types of activities that would be undertaken by participants.

Participation in the collaborative process will be inclusive and involve First Nations governments, Treaty and Nation organizations, and regional and national Indigenous organizations that represent the interests of First Nations, including First Nations women, Métis and non-status Indians.

Stage II will build on the wealth of information submitted by First Nations and other Indigenous groups as part of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship.Footnote 2

Without prescribing the subject matters for discussion, based on the findings of the 2011-2012 Exploratory Process, it is anticipated that the issues of interest for First Nations and other Indigenous groups will likely include, but not be limited to, the following:

  • Other distinctions in Indian registration
  • Issues relating to adoption
  • The 1951 cut-off date for eligibility to registration specific to Bill C-3
  • The second-generation cut-off
  • Unstated/unknown paternity
  • Cross-border issues
  • Voluntary de-registration
  • The continued federal role in determining Indian and band member under the Indian Act
  • First Nations authorities to determine membership under the Indian Act.

Canada will also seek to include for discussion issues surrounding children of same-sex parents and non-cisgender identities as they relate to eligibility for Indian registration and band membership.

At the end of Stage II, the Minister will present the results of the collaborative process to Cabinet. Should recommendations be made for further legislative changes, the Minister could embark on subsequent phases of engagement with First Nations and other Indigenous groups on future legislative or other reform pertaining to Indian registration and band membership.

The collaborative process under Stage II will be conducted within a 12 to 18 month time frame and will be launched following the passage of legislative amendments to the Indian Act under Bill S-3.

Conclusion

Canada has an obligation to amend the Indian Act to respond to the Descheneaux decision by the court-extended deadline of July 3, 2017.

Consistent with the government’s commitment to reconciliation and a nation-to-nation relationship with Indigenous peoples, the collaborative process will be launched following the passage of Bill S-3. This will open the door to comprehensive consultation and collaborative work with First Nations, Indigenous organizations and affected individuals on the broader issues relating to Indian registration, band membership and citizenship.

Annex E of this document provides comprehensive information on Frequently Asked Questions relating to this initiative.

Annex A: The Cousins Issue

Addressing the differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian before April 17, 1985

Figure 1a: Maternal line (situation of Stéphane Descheneaux)
Text description of Figure 1a: maternal line (situation of Stéphane Descheneaux)

Figure 1a describes the treatment of children, grandchildren and great grandchildren of the maternal line (the mother’s side), which is the situation of Stéphane Descheneaux. If an Indian woman married a non-Indian prior to April 17, 1985 she lost her status for marrying a non-Indian and their children were also not eligible for status. In 1985 the mother is reinstated under paragraph 6(1)(c) pursuant to Bill C-31 and her children gain status under subsection 6(2). In 2011, under Bill C-3, the children become eligible for status under paragraph 6(1)(c.1) and the grandchildren acquire status under subsection 6(2). This is the status category of Stéphane Descheneaux. As part of the proposed amendments the grandchild will become eligible for status under subsection 6(1).

Currently, the great grandchild of the maternal line is not eligible for status. This is the situation of Stéphane Descheneaux's child. Under the proposed amendments the great grandchild will become eligible under subsection 6(1) or 6(2).

Figure 1b: paternal line (Comparator group)
Text description of Figure 1b: paternal line (Comparator group)

Figure 1b describes the treatment of children of the paternal line (the father’s side) as the comparator group. If an Indian man registered under paragraph 6(1)(a) married a non-Indian woman prior to April 17, 1985, then the non-Indian woman acquired status through marriage and is entitled to status under paragraph 6(1)(a). Their children are also eligible for status under paragraph 6(1)(a). If the male child (the son) married a non-Indian woman (the daughter-in-law) prior to 1985, she also gained entitlement to status through marriage under paragraph 6(1)(a) as did their child (the grandchild). The grandchild in this situation is eligible for status under subsection 6(1) and is of Stéphane Descheneaux's generation. The great grandchild in this situation is registered under subsection 6(1) or subsection 6(2). The great grandchild is of the same generation as the child of Stéphane Descheneaux.

Annex B: The Siblings Issue (Women Born Out of Wedlock to an Indian Father and non-Indian Mother)

Addressing the differential treatment of women who were born out of wedlock to Indian fathers between September 4, 1951 and April 17, 1985

Figure 2a: Female born out of wedlock to an Indian father between 1951 and 1985 (situation of Susan and Tammy Yantha)
Text description of Figure 2a: Female born out of wedlock to an Indian father between 1951 and 1985 (situation of Susan and Tammy Yantha)

Figure 2a describes the treatment of a female grandchild who was born prior to April 17, 1985, to a woman who was in turn born out of wedlock between September 4, 1951 and April 17, 1985, to an Indian father registered under paragraph 6(1)(a) of the Indian Act and a non-Indian mother. Prior to 1985, if an Indian man registered under paragraph 6(1)(a) had a daughter between 1951 and 1985 with a non-Indian woman out of wedlock, the daughter in this situation is registered under subsection 6(2) of the Indian Act and consequently is not able to pass on Indian status to her children if she parents with a non-Indian man.

The proposed amendments to the Indian Act will rectify this issue and allow the female children in this situation to become eligible for registration under subsection 6(1) of the Indian Act instead of under subsection 6(2). These amendments will in turn allow the female grandchildren, born prior to April 17, 1985, to these women to become eligible for Indian status under subsection 6(1).

Figure 2b: Paternal line (Comparator group)
Text description of Figure 2b: paternal line (Comparator group)

Figure 2b describes the treatment of a male grandchild born before April 17, 1985, to an Indian man who was born out of wedlock, between September 4, 1951 and April 17, 1985, of an Indian father registered under paragraph 6(1)(a) of the Indian Act and a non-Indian mother. Prior to 1985, if a status Indian man registered under paragraph 6(1)(a) had a son with a non-Indian woman out of wedlock, the son born in this situation is registered under paragraph 6(1)(a) of the Indian Act and consequently is able to pass on Indian status to his child, even if he parents with a non-Indian woman.

Annex C: The Issue of Omitted Minor Children

Addressing the differential treatment of minor children who were born of Indian parents or of an Indian mother, but could lose entitlement to Indian status, between September 4, 1951 and April 17, 1985, if they were still unmarried minors at the time of their mother’s marriage.

Figure 3a: Minor child born of Indian parents; mother marries a non-Indian man, between 1951 and 1985, after the birth of the minor child; minor child loses status
Text description of Figure 3a: Minor child born of Indian parents; mother marries a non-Indian man, between 1951 and 1985, after the birth of the minor child; minor child loses status

Figure 3a describes the situation where an Indian woman has a child with an Indian man, and both mother and child are registered under paragraph 6(1)(a) of the Indian Act. The Indian woman marries a non-Indian man, between September 4, 1951 and April 17, 1985, after the minor child’s birth, who remains a minor at the time of the marriage. As a result of the marriage to a non-Indian, the woman and the minor child lose status. On April 17, 1985, Bill C-31 restored Indian status to women and their children in this situation under paragraph 6(1)(c), and the children of reinstated minor child became eligible for Indian status under subsection 6(2). By comparison, if an Indian man had children who are registered, and he subsequently married a non-Indian woman prior to April 17, 1985, there is no impact on the entitlement to registration of his children, or in turn, their ability to transmit Indian status to their children.

The proposed amendments will extend eligibility for Indian status under subsection 6(1) to the children of the reinstated minor child.

Figure 3b: Child born of Indian parents; father subsequently marries a non-Indian woman prior to April 17, 1985, after the birth of his child; child retains their Indian status (Comparator group
Text description of Figure 3b: Child born of Indian parents; father marries a non-Indian woman prior to 1985, after the birth of the child; child retains Indian status

Figure 3b describes the situation where an Indian man has a child with an Indian woman, and mother and child are registered under paragraph 6(1)(a) of the Indian Act. The father marries a non-Indian woman, prior to April 17, 1985, after the birth of the child. The Indian child does not lose status as a result of this marriage, and is therefore able to transmit status to subsequent generations.

Annex D: The Issue of Children Born Out Of Wedlock to an Indian Mother and non-Indian Father

The proposed amendment under Bill S-3 to address the siblings issue (see Annex B) will grant eligibility for Indian status to the children of women who were born out of wedlock to an Indian father and non-Indian mother, between 1951 and 1985. The proposed remedy for the siblings issue creates a new inequity in respect of the grandchildren of children born out of wedlock, prior to 1985, to an Indian woman and a non-Indian man. Accordingly, an additional amendment has been proposed by the Indigenous Bar Association for inclusion in Bill S-3 to address the differential treatment of children born out of wedlock, prior to 1985, to an Indian mother and non-Indian father.

Figure 4a: Children born out of wedlock, prior to 1985, to an Indian mother and non-Indian father, but through protest lost Indian status
Text description 4a: Children born out of wedlock, prior to 1985, to an Indian mother and non-Indian father, but through protest could lost Indian status)

Figure 4a describes the situation of children born out of wedlock, prior to 1985, to an Indian woman and a non-Indian man were registered but, through protest, could lose status if their father was a non-Indian. Under Bill C-31 in 1985, these children were reinstated under paragraph 6(1)(c), and if they had parented with a non-Indian prior to 1985, their children became eligible for Indian status under subsection 6(2).

Under Bill S-3, female children born out of wedlock prior to 1985 to an Indian man and non-Indian woman and were ineligible for registration prior to 1985, will become eligible for Indian status under subsection 6(1) rather than subsection 6(2) and their children (regardless of sex) born prior to 1985 (or after their parents married each other before 1985) will also become eligible for registration under subsection 6(1).

The proposed remedy would address the situation of the grandchildren born prior to 1985 (or after and their parents married each other before 1985), of an Indian grandmother who parented out of wedlock with a non-Indian by granting them eligibility for status under subsection 6(1). This would eliminate the differential treatment in respect of the grandchildren of Indian men who parented out of wedlock with a non-Indian prior to 1985.

Figure 4b: Proposed remedy to address the siblings issue under Bill S-3 in respect of females born out of wedlock to an Indian father and non-Indian mother between 1951 and 1985 (Comparator group)
Text description of Figure 4b: Proposed remedy for siblings issue under Bill S-3 (Comparator group)

Figure 4b describes the treatment of a female grandchild who was born prior to April 17, 1985, to a woman who was in turn born out of wedlock between September 4, 1951 and April 17, 1985, to an Indian father registered under paragraph 6(1)(a) of the Indian Act and a non-Indian mother. Prior to 1985, if an Indian man registered under paragraph 6(1)(a) had a daughter between 1951 and 1985 with a non-Indian woman out of wedlock, the daughter in this situation is registered under subsection 6(2) of the Indian Act and consequently is not able to pass on Indian status to her children if she parents with a non-Indian man.

The proposed amendments to the Indian Act will rectify this issue and allow the female children in this situation to become eligible for registration under subsection 6(1) of the Indian Act instead of under subsection 6(2). These amendments will in turn allow the female grandchildren, born prior to April 17, 1985, to these women to become eligible for Indian status under subsection 6(1).

Annex E: Frequently Asked Questions

On the Federal Approach in the Response to Descheneaux

What is the government's approach in response to the Descheneaux decision?

In July 2016, the Government of Canada announced a two-staged approach in response to the Descheneaux decision.

As part of Stage I, in summer 2016, the government launched an engagement process with First Nations and other Indigenous groups, to discuss proposed legislative amendments to address known sex-based inequities in Indian registration (status) in direct response to the Descheneaux decision. On October 25, 2016, the government introduced Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), in parliament.

As part of Stage II, a collaborative process with First Nations, Indigenous groups and individuals will be launched, following the passage of Bill S-3, to examine the broader issues relating to Indian registration, band membership and citizenship.

Why is a two-staged approach the preferred option?

In light of the complexities of the issues pertaining to registration, membership, citizenship and identity, a staged approach is necessary.

The two-staged approach allows for an immediate response to the specific facts in the Descheneaux decision by addressing the cousins and siblings issues, as well as other known sex-based inequities in Indian registration through legislative amendments as part of Stage I.

In keeping with the government’s commitment to reconciliation and renewed nation-to-nation relationship with Indigenous peoples, the collaborative process under Stage II provides an opportunity for comprehensive consultation and collaborative work with First Nations, and Indigenous groups and individuals on the broader-related and more complex issues with the objective of identifying areas for future reform.

On the Descheneaux Case and Decision

What is the Descheneaux case?

In 2011, three members of the Abénakis of Odanak First Nation in Quebec filed a motion in the Superior Court of Quebec challenging the constitutional validity of the rules for entitlement to Indian status under section 6 of the Indian Act. They argued that the rules contravened equality rights under section 15 of the Charter because they perpetuated different treatment in entitlement to Indian registration between Indian women and men.

What issues are raised in the Descheneaux case?

The Descheneaux case deals with two specific situations of residual sex-based inequities in Indian registration affecting cousins and siblings.

The "cousins" issue relates to the differential treatment in how Indian status is acquired and transmitted among first cousins of the same family depending on the sex of their Indian grandparent, in situations where the grandmother was married to a non-Indian prior to 1985. This results in different abilities to acquire and pass on Indian status between the maternal and paternal lines.

Although the 2011 Gender Equity in Indian Registration Act (Bill C-3) removed the inequality directly affecting the grandchildren of Indian women who had married non-Indians in certain circumstances, it did not address a further inequality that directly affected the great-grandchildren of such women. Therefore, it did not bring matrilineal entitlement to Indian registration into line with that of patrilineal entitlement in similar circumstances.

The "siblings" issue concerns the differential treatment in the ability to transmit 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 Indian men in similar circumstances who can pass on status to their children regardless of whether they parent with a non-Indian.

What was the court decision in the Descheneaux case?

On August 3, 2015, the Superior Court of Quebec ruled that paragraphs 6(1)(a), (c) and (f), and subsection 6(2) of the Indian Act unjustifiably violate equality rights under the Charter because they perpetuate a difference in how Indian status is acquired and transmitted between the maternal and paternal lines. The court struck down these provisions, but suspended the coming into force of its decision for 18 months, until February 3, 2017, to allow parliament to make the necessary legislative amendments.

In its decision, the court also advised (in obiter) that legislative amendments to address inequities in Indian registration not be limited to the specific facts in the Descheneaux case.

On the Government's Response to the Descheneaux Decision

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

Introduced in the Senate of Canada on October 25, 2016, Bill S-3 is the government’s direct response to the issues raised in the Descheneaux case and decision. The purpose of the bill is to eliminate known sex-based inequities in Indian registration through legislative amendments to the Indian Act.

What specific issues in Indian registration will be addressed as part of the proposed legislative amendments under Bill S-3?

The proposed legislative amendments under Bill S-3 will address known sex-based inequities in Indian registration. This will include the issues found in the Descheneaux case pertaining to cousins and siblings, as well as other areas of known sex-based inequities, such as, the differential treatment of minor children who lost status due to their mother's marriage to a non-Indian, when that marriage occurred after their birth.

How many people will become newly entitled to Indian registration as a result of the proposed legislative amendments?

Demographic projections estimate that between 28,000 and 35,000 individuals will become newly eligible for Indian status if the issues relating to cousins, siblings and omitted minors are addressed through legislative amendments.

How does Bill S-3 meet the broader government commitment to gender equality?

The proposed legislative amendments, under Bill S-3, will address known sex-based inequities in Indian registration, including the facts in Descheneaux. This legislative initiative reiterates Canada's commitment to equality on the basis of sex through the elimination of historic injustices under the Indian Act.

Will the proposed amendments address other issues in Indian registration?

No. The proposed legislative amendments will only address known issues relating to sex-based inequities. There are other issues in Indian registration that are of concern to First Nations related to family status, ancestry and date of birth. They raise complex and important issues on culture and ethnicity, and on the appropriate balance between individual and collective rights in terms of eligibility to Indian status and therefore, require meaningful consultation with First Nations before moving forward with proposed legislative reform on these issues.

Why not address all issues relating to Indian registration as part of the proposed legislation to respond to the Descheneaux decision?

The broader issues pertaining to registration, membership and citizenship are complex and require more fulsome consultation with First Nations, and Indigenous groups and individuals. It would not be possible to adequately consult on these complex matters in a short time frame. This would also be contrary to the government's commitment to reconciliation and the renewal of the nation-to-nation relationship.

For this reason, the government will proceed with a two-staged approach.

Stage I will focus on eliminating known sex-based inequities in Indian registration under the Indian Act, through legislative amendments under Bill S-3 in response to the Descheneaux decision.

As part of Stage II, the government will launch a collaborative process with First Nations, and Indigenous groups and individuals that will examine the broader issues relating to Indian registration, band membership and citizenship.

Did the government engage with First Nations prior to introducing Bill S-3?

Yes. Engagement with First Nations, and Indigenous groups and individuals on the proposed legislative amendments in Bill S-3 began in summer 2016. Engagement has been inclusive of First Nations, Métis and non-status Indians.

Engagement sessions on the proposed amendments have been held across Canada with First Nation Treaty and Nation organizations, and regional and national organizations representing the interests of First Nations and other Indigenous groups, including organizations that represent the interests of First Nations women.

A draft of the legislative proposal was also shared with First Nations and other Indigenous groups and posted on the INAC website for information purposes prior to the introduction of Bill S-3 in parliament.

First Nations, and Indigenous groups and individuals also have an opportunity to present their views and input on the proposed legislative amendments to parliamentarians as part of the legislative process for Bill S-3.

Has funding been provided to First Nations and other Indigenous groups for their participation in the engagement on proposed amendments?

Yes. Funding has been provided for the participation of First Nations governments, Treaty and Nation organizations, and other Indigenous regional and national organizations, including women's organizations, in the engagement on the proposed amendments. Funding has included support for their internal research and analysis, travel and meeting costs.

Why was Bill S-3 not passed on February 3, 2017 consistent with the court decision in Descheneaux?

The Standing Senate Committee on Aboriginal Peoples began its study of Bill S-3 on November 22, 2016, following the introduction of the bill in the Senate of Canada on October 25, 2015. During the committee’s study, witnesses and senators expressed concerns regarding the level of engagement with First Nations and other Indigenous groups prior to the introduction of the bill, and potential sex-based inequities in Indian registration that were not addressed in the proposed amendments.

On December 13, 2016, the senate suspended consideration of Bill S-3 and recommended that the government seek a court extension to further engage on the proposed amendments, with a focus on individuals affected by sex-based inequities in registration.

Why did the government seek an extension of the Descheneaux decision from the Superior Court of Quebec?

In keeping with the recommendations of the Standing Senate Committee on Aboriginal Peoples, on January 20, 2017, the government sought and was granted a five-month extension (until July 3, 2017) of the court’s ruling in the Descheneaux decision to permit more time for engagement with First Nations, and Indigenous groups and individuals on the proposed amendments in Bill S-3.

What was the plan for engagement as part of the five-month court extension?

The five-month court extension allowed the government to continue engagement on Bill S-3 with First Nation Treaty and Nation organizations, regional and national First Nation and other Indigenous organizations, including women’s organizations, affected individuals and legal experts to confirm that the proposed amendments provide the appropriate remedies for the situations found in the Descheneaux case, and to ensure that the bill addresses known sex-based inequities in Indian registration.

Based on the court extension, when will Bill S-3 be passed?

The government has until July 3, 2017, to pass legislative amendments under Bill S-3 that will eliminate known sex-based inequities in Indian registration.

Why is Canada not engaging directly with individual First Nation governments and communities on the proposed amendments?

Due to time limitations and the need to pass legislation before the extended court deadline of July 3, 2017, it is not possible to engage with individual First Nations on the proposed legislative changes.

As part of engagement under Stage I, the federal government has invited First Nation Treaty, Nation and regional and national organizations across Canada, that represent the interests of their respective member First Nations, as well as organizations that represent the interests of First Nations women, to work with the federal government to bring together First Nations individuals and groups, including First Nation chiefs, councillors and community members, to discuss the proposed legislative amendments. Individual First Nation governments and communities will have the opportunity to present their views and input on the proposed amendments through this process.

Why are other Indigenous groups, such as Métis and non-status Indians, involved in an initiative that deals with First Nations issues, such as Indian registration and band membership under the Indian Act?

As part of the proposed legislative amendments to address known sex-based inequities in Indian registration, some individuals that identify as Métis and non-status Indian will become eligible for Indian status. In addition, the Métis Nation is concerned with issues that relate to the eligibility of some Métis citizens to be registered under the Indian Act. For these reasons, Métis and non-status Indian groups will be included as part of the information sessions on the proposed amendments as well as part of the Stage II discussions on the broader-related issues.

Will the proposed amendments impact membership in First Nations communities?

First Nations that operate under section 11 of the Indian Act, whereby the Indian Registrar manages their Band Lists, will be impacted by the proposed legislative amendments, as newly entitled individuals who register and are descendant of these First Nations will be added to their Band Lists.

First Nations that control their own membership pursuant to section 10 of the Indian Act or are self-governing will not be impacted by the proposed amendments. These First Nations may choose to amend their laws to incorporate newly entitled registered individuals to their membership lists.

What will be the impact of the proposed amendments on federal programs for First Nations?

An increase in the population entitled to Indian registration will result in a corresponding increase in costs in respect of two key federal programs that are linked to Indian registration for access to funding: Health Canada's Non-Insured Health Benefits Program and INAC's Post-Secondary Education Program.

Since many on-reserve residency-based federal programs and services are linked to band membership, which is tied to Indian registration, changes to entitlement for Indian registration and by extension band membership for First Nations that operate under section 11 of the Indian Act will also impact the funding of these programs over the longer-term. However, the financial impacts for on-reserve programming will depend on the number of newly registered individuals that take-up on-reserve residency.

Will the Government increase funding for programs to First Nations in the implementation of Bill S-3?

The federal government’s Fall Economic Statement, announced on November 2, 2016, identified $149 million over five years, beginning in 2017-2018, for the implementation of Bill S-3. Of this new funding: $130 million will become available for the Non-Insured Health Benefits Program for those individuals who will become newly registered; and $19 million will be allocated to process and register new applicants for Indian status. In addition, Budget 2017 proposes to increase funding to the Post-Secondary Education Program by $90 million over two years, beginning in 2017-2018.

The Department will also be closely monitoring potential impacts for on-reserve residency-based programs, such as elementary and secondary education, housing and community infrastructure, in order to determine appropriate steps to support First Nation communities.

What happens if legislative amendments are not in place by July 3, 2017?

Although every effort will be made to pass amendments into law by July 3, 2017, the process involved in amending legislation is complex and can take significant time. In this eventuality, the government would consider seeking another court extension to continue the amendment process. However, there is no guarantee that a court would grant another extension of the current deadline.

What are the consequences if no legislative amendments are in place by July 3, 2017, and the court has not granted another extension of this deadline?

About 90% of the registered Indian population (currently over 970,000), is registered under one of the provisions struck down by the court in Descheneaux. In the absence of a legislative response by July 3, 2017 (or another court-approved extension of this deadline), Canada will be unable to register the majority of individuals seeking Indian status in Quebec (and possibly other provinces and territories) as key provisions of the Indian Act will be inoperative.

If the amendments cannot be completed by July 3, 2017, and no further extension of the court deadline is granted will all registered Indians lose their status?

No. The Descheneaux decision does not apply retroactively. Individuals who are already registered will continue to have status under the Indian Act. However, individuals who are or may become newly eligible for Indian status under one of the provisions struck down by the court in the Descheneaux decision will not be able to register because these provisions remain inoperative.

If the amendments are not in place by July 3, 2017, and no extension of the court deadline is granted, will the reserve system cease to exist after July 3, 2017?

No. The Descheneaux decision and any proposed amendments to Indian registration have no impact on the reserve system. Reserves remain as they are.

As a new newly entitled individual, can I apply now for Indian status as a result of the Descheneaux decision? If not, when can I apply?

While you can apply for Indian status if you believe that you may be eligible for Indian registration as a result of the Descheneaux decision, however your application will not be processed until after legislative amendments under Bill S-3 have been passed. Therefore, it is advisable that you wait to apply for Indian status until after the legislative amendments have been implemented.

On the Stage II Collaborative Process with First Nations and Other Indigenous Groups

What is the collaborative process under Stage II of this initiative?

The collaborative process on the broader issues relating to Indian registration, band membership and citizenship will be a joint process between the federal government and First Nations, and Indigenous groups and individuals on the broader issues relating registration, membership and citizenship. The objective of the collaborative process is to identify areas relating to registration, membership and citizenship for future reform.

When will the collaborative process be launched?

The Stage II collaborative process will be launched in 2017-2018 following the passage of legislative amendments under Bill S-3.

Which Indigenous groups will be involved in the collaborative process?

The collaborative process will be inclusive of First Nations, and Indigenous groups and individuals, and involve the participation of First Nations governments, Treaty and Nation organizations, as well as regional and national organizations that represent the interests of First Nations, including First Nations women, and Métis and non-status Indians.

Will funding be provided to First Nations and other Indigenous groups for their participation in the Stage II collaborative process?

Yes. Funding will be provided for the participation of First Nation governments, Treaty and Nation organizations, and First Nation and other Indigenous regional and national organizations, including women's organizations, for their participation in the collaborative process under Stage II. Funding will include support for their internal research and analysis, travel and meeting costs.

What types of activities will take place as part of the Stage II collaborative process?

The collaborative process will be jointly designed with First Nations and other Indigenous groups with flexibilities in respect of the types of activities that would be implemented under Stage II.

What broader issues will be examined as part of the collaborative process under Stage II?

Based on the findings of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship and without limiting the subject matters that would be discussed as part of Stage II, it is anticipated that specific issues to be identified for examination by participating First Nations and other Indigenous groups will likely include, but not be limited to the following:

  • Other distinctions in Indian registration
  • Issues related to adoption
  • The 1951 cut-off date for eligibility to Indian registration under Bill C-3
  • The second-generation cut-off
  • Unstated/unknown paternity
  • Cross-border issues
  • Voluntary de-registration
  • The continued federal role in determining Indian status and band membership under the Indian Act
  • First Nation authorities to determine membership/citizenship.
How does Stage II align with the government's commitment to reconciliation with Indigenous peoples?

The Stage II collaborative process will be jointly designed with First Nations and other Indigenous groups and will build on the wealth of information of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship.

The collaborative process will provide the opportunity for meaningful consultation and joint work in partnership with First Nations and other Indigenous groups on the broader issues relating to Indian registration, band membership and citizenship, with the objective of informing future reform on these matters.

This collaborative approach to future change is in keeping with the government’s commitment to reconciliation with Indigenous peoples through a renewed nation-to-nation relationship based on the recognition of rights, respect, cooperation and partnership.

What was the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship?

In 2011, the federal government launched the Exploratory Process on Indian Registration, Band Membership and Citizenship following the passage of the Gender Equity in Indian Registration Act (Bill C-3), in response to First Nations calls to examine and address the broader issues relating to Indian registration, band membership and citizenship.

The Exploratory Process was not a consultation or an engagement. Rather the initiative consisted of discussions that took place over one year, respectively, among First Nations (status Indians and band members residing on and off-reserve), Métis and non-status Indians on issues surrounding registration, membership, citizenship and identity.

The results of the Exploratory Process provided a better understanding of First Nation, Métis and non-status Indian views and perspectives on registration, membership, citizenship and identity, and on the evolution in thinking on these matters since the 1985 amendments to the registration and membership provisions of the Indian Act under Bill C-31.

In the context of the collaborative process, this information will be extremely useful in informing the discussions that are anticipated under Stage II.

How is the collaborative process under Stage II different from the 2011-2012 Exploratory Process?

While the Exploratory Process on Indian Registration, Band Membership and Citizenship provided a forum for First Nations and other Indigenous groups to examine and discuss issues relating to Indian registration, band membership and citizenship within their communities and organizations, it did not constitute a consultation or an engagement. Rather the initiative consisted of discussions that took place over one year, respectively, among First Nations (status Indians and band members residing on and off-reserve), Métis and non-status Indians on issues surrounding registration, membership, citizenship and identity.

Stage II provides a collaborative engagement process in which the Government of Canada will be a participant in discussions.

What is the voluntary de-registration issue?

INAC has received requests from some registered Indians who wish to be de-registered, or be removed from the Indian Register. The largest group by far that has expressed an interest in seeking de-registration is made up of individuals who identify as Métis and who are seeking membership in Métis collectives.

Enrolment criteria for Métis collectives specifically exclude those who are registered under another Aboriginal registry, such as the Indian Register under the Indian Act. However, since the implementation of the 1985 amendments to Indian registration under Bill C-31, once a person who is entitled to Indian status and has been registered under the Indian Act, there is no authority to remove their name from the Indian Register, even if they request it.

Given the lack of legislative authority to de-register individuals who request it, implementation of a mechanism to allow for voluntary de-registration would require an amendment to the Indian registration provisions of the Indian Act. The issue of voluntary de-registration has been identified as a subject matter for discussion as part of the collaborative process under Stage II.

On the Decision of the Supreme Court of Canada in the Daniels case

Does the Supreme Court of Canada decision in the Daniels case mean that Métis and non-status Indians are now eligible to register as status Indians?

No. The April 2016 Supreme Court of Canada decision in the Daniels case, in which the court declared that Métis and non-status Indians are "Indians" within the meaning of subsection 91(24) of the Constitution Act, 1867, deals with the division of constitutional powers between the federal and provincial heads of power, and not Indian registration pursuant to the Indian Act. The decision does not automatically grant these groups Indian status, or any other rights or benefits under the Indian Act, or any other benefits beyond what they had on the day before the decision.

As has always been the case, individuals applying for Indian status under the Indian Act will be assessed based on the eligibility criteria for Indian registration set out in section 6 of the Indian Act.

On Indian Registration (Status) under the Indian Act

What is Indian registration or Indian status?

Indian registration provides for the definition of an Indian pursuant to the Indian Act and other federal legislation. Those who are registered are often referred to as status Indians.

Section 6 of the current Indian Act sets out rules for eligibility for Indian registration. Eligibility for Indian status is determined on the basis of an individual's descent from a person registered or eligible to be registered as an Indian.

Are all Indigenous people entitled to Indian registration?

No. Entitlement to Indian registration or Indian status is application-based and is assessed on the basis of eligibility criteria outlined in section 6 of the Indian Act.

While the Constitution Act, 1982, recognizes three types of Aboriginal peoples in Canada – Indians, Métis and Inuit – only individuals who meet the Indian Act criteria for eligibility to Indian status are entitled to Indian registration. These individuals are often referred to as status Indians or First Nations.

What are the rights and benefits of Indian registration?

Indian registration provides status Indians with access to certain rights and entitlements, such as, access to non-insured health benefits and post-secondary education funding, and tax exemption for income earned on-reserve and for federal sales tax. Indian status is also linked to some Treaty rights (e.g.: Treaty annuity payments) and some Aboriginal rights (e.g.: hunting and fishing).

Are individuals registered under different categories of section 6 of the Indian Act, such as 6(1)(a) or 6(2), treated differently?

No. All individuals registered as Indians under section 6 of the Indian Act, regardless of the category, have access to the same rights and benefits.

There is only one difference between being registered under subsection 6(1) and being registered under subsection 6(2) of the Indian Act. If an individual registered under subsection 6(1) parents with a person not entitled to Indian registration, their child is entitled to be registered as an Indian under subsection 6(2). However, if an individual registered under subsection 6(2) parents with a person not entitled to be registered, their child is not entitled to Indian registration.

What is the Indian Register and who is the Indian Registrar?

The Indian Register is the official record identifying all registered Indians within the meaning of the Indian Act. Under the act, the Indian Registrar – who is an official of INAC – is responsible for maintaining the Indian Register and is the sole authority for determining which names will be added, deleted or omitted from the Indian Register in accordance with the Indian Act.

What was Bill C-31 and what were its impacts?

Until 1985, the Indian Act provided for sex-based criteria and patrilineal descent rules in respect of eligibility for Indian status and for band membership and in the treatment of Indian men and women, denying Indian status to any Indian woman who married a non-Indian and preventing their children from also acquiring Indian status. In addition, through enfranchisement if a registered Indian became a doctor, lawyer, Christian minister, joined the military or earned a university degree they also lost their Indian status.

On April 17, 1985, the Indian Act was amended through Bill C-31 to eliminate discriminatory provisions in Indian registration and band membership and ensure compliance with the Charter. As part of these changes:

  • Indian women who married non-Indians no longer lost their Indian status and Indian women who had previously lost their status through marriage to a non-Indian became eligible to apply for reinstatement, as did their children.
  • Non-Indian women could no longer acquire status through marriage to Indian men. However, non-Indian women who had acquired status through marriage prior to the 1985 changes did not lose their status.
  • The process of enfranchisement was eliminated altogether as was the authority of the Indian Registrar to de-register individuals, and individuals who had been previously voluntarily or involuntarily enfranchised under the Indian Act could apply for reinstatement.
  • The federal government retained control over Indian registration and categories of registered Indians were established within Indian registration through subsections 6(1) and 6(2) of the Indian Act. Subsection 6(1) assigns status to individuals that were registered or eligible to be registered prior to or after the 1985 amendments. Individuals registered under subsection 6(2) who parent with a non-Indian are unable to transmit Indian status to their children. In other words, after two consecutive generations of parenting with a non-Indian entitlement to registration is lost. This is often referred to as the "second-generation cut-off."
  • Separate regimes to determine membership in individual bands were established under sections 10 and 11 of the Indian Act:
    • Section 10 re-established First Nations authorities to determine and control their membership. Under this section, bands have the option of assuming control over determining their membership if they meet certain statutory requirements.
    • Band membership and the Band Lists of bands that do not adopt membership rules under Section 10. Section 11 rules maintain pre-1985 linkages between Indian status and band membership by including registration as the sole criterion for gaining membership for those bands that fall under this section of the Indian Act.
What were the impacts of Bill C-31?

Comprehensive amendments to the Indian Act in 1985 under Bill C-31 eliminated most sex-based and other inequities in Indian registration (status), and over 150,000 individuals were reinstated as a result of these amendments. However, because an individual's entitlement to registration is based on the entitlement of their parents and in turn previous descendants (grandparents, great-grandparents, etc.), some residual sex-based inequities were carried forward after the 1985 amendments.

What is the Gender Equity in Indian Registration Act (Bill C-3) and what were its impacts?

In April 2009, the Court of Appeal for British Columbia ruled in the case of McIvor v. Canada. The court found that certain registration provisions under the Indian Act continued to violate the equality provisions of the Charter.

Canada did not appeal this decision and introduced new legislation to respond specifically to the ruling. In 2011, the passage of the Gender Equity in Indian Registration Act (Bill C-3) ensured that eligible grandchildren of women who had lost status as a result of marrying non-Indian men became entitled to registration under the Indian Act. However, some sex-based inequities were not fully addressed as part of Bill C-3.

On Band Membership under the Indian Act

What is band membership under the Indian Act?

As with Indian registration (status), membership in an Indian band is also a construct of the Indian Act and defines a member of a band as "a person whose name appears on a band list or who is entitled to have his name appear on a band list."

What is the difference between Indian status and band membership?

Prior to the 1985 amendments to the Indian Act under Bill C-31, the federal government, through the Indian Registrar, exercised exclusive authority in determining membership in First Nations and administered all band lists. Eligibility for band membership coincided with eligibility for Indian registration, and an individual's membership in the band from which they were descendant was automatic upon their registration as an Indian.

As part of the Bill C-31 amendments in 1985, two separate regimes were established for determining membership in individual First Nations, including processes for acquiring membership and maintaining band lists, respectively under sections 10 and 11 of the 1985 Indian Act.

Under section 10 of the Indian Act, First Nations have the option of assuming control over determining their membership. Under Section 11, the Indian Registrar administers rules for entitlement to band membership and maintains the Band Lists of bands that do no adopt membership rules under Section 10. In addition, self-governing First Nations can exercise jurisdiction over membership/citizenship pursuant to the 1995 Federal Approach to the Implementation and Negotiation of Aboriginal Self-Government (hereinafter the Inherent Right Policy).

Currently, 37% of First Nations communities determine their own band membership pursuant to section 10 of the Indian Act and 57% remain under federal rules for membership pursuant to section 11 of the act. Some 6% of First Nations have concluded self-government arrangements and exercise their jurisdiction over membership/citizenship pursuant to their self-government agreement.

What rights and benefits are available to band members?

Membership in an Indian band or a First Nation is linked to Aboriginal and Treaty rights and conveys certain political and other rights and entitlements for band members, such as the right to: vote/run in elections for Chief and Council; vote in community referenda for various issues, including for ratification of self-government agreements, and specific and comprehensive claims settlements; reside on-reserve; share in band moneys; own or inherit property on-reserve; receive band-administered programs and services while residing on-reserve.

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