Plain Text Description of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

For information purposes

Below is the annotated legislative language for information purposes to respond to the Superior Court of Quebec in its August 3, 2015 decision, Descheneaux et al., v. Canada (Attorney General).

1 (1) Paragraph 6‍(1)‍(a) of the Indian Act is replaced by the following:

(a) that person was registered or entitled to be registered immediately before April 17, 1985;

Proposes to re-enact paragraph 6(1)(a) of the Indian Act which provides that individuals who were registered or entitled to be registered before the coming into force of Bill C-31 on April 17, 1985, continue to be registered or continue to be entitled to be registered after that date.

(2) Paragraph 6‍(1)‍(c) of the Act is replaced by the following:

(c) the name of that person was omitted or deleted from the Indian Register, or from a band list before September 4, 1951, under subparagraph 12‍(1)‍(a)‍(iv), paragraph 12‍(1)‍(b) or subsection 12‍(2) or under subparagraph 12‍(1)‍(a)‍(iii) pursuant to an order made under subsection 109‍(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as any of those provisions;

Proposes to re-enact paragraph 6(1)(c) of the Indian Act which provides that the reinstatement of those individuals whose names were omitted or deleted from the Indian Register, or a Band List prior to April 17, 1985. Provides eligibility for Indian Status to:

(c.01) that person meets the following conditions:
(i) the name of one of their parents was, as a result of that parent's mother's marriage, omitted or deleted from the Indian Register on or after September 4, 1951 under subparagraph 12‍(1)‍(a)‍(iii) pursuant to an order made under subsection 109‍(2), as each provision read immediately before April 17, 1985, or under any former provision of this act relating to the same subject matter as either of those provisions,
(ii) their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and
(iii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;

(c.01) proposes to deal with the differential treatment of minor children compared to their adult or married siblings 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 16, 1985.

(3) Subsection 6(1) of the Act is amended by adding the following after paragraph (c.1):

(c.2) that person meets the following conditions:
(i) one of their parents is entitled to be registered under paragraph (c.1) or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which that paragraph came into force, had he or she not died, and
(ii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;

(c.2) proposes to deal with the "cousins" issue identified by the Court in its decision Descheneaux et al., v. Canada (Attorney General) by correcting the differential treatment in the acquisition and transmission of "Indian status" that arises among first cousins of the same family depending on the sex of their Indian grandparent, where the grandparent married a non-Indian prior to April 17, 1985.

(c.3) that person meets the following conditions:
(i) they were born female during the period beginning on September 4, 1951 and ending on April 16, 1985 and their parents were not married to each other at the time of the birth,
(ii) their father is entitled to be registered or, if he is no longer living, was at the time of death entitled to be registered, and
(iii) their mother was not at the time of that person's birth entitled to be registered;

(c.3) proposes to deal with the "siblings" issue identified by the Court in its decision Descheneaux et al., v. Canada (Attorney General) by correcting the differential treatment in the ability to transmit "Indian status" between male and female children whose parents were not married to each other at the time of birth. It proposes to provide entitlement under subsection 6(1) to individuals born female and out of wedlock of an Indian father and of a non-Indian mother. Transgendered males who were born female will be assured of their ability to be eligible for registration under subsection 6(1).

(c.4) that person meets the following conditions:
(i) one of their parents is entitled to be registered under paragraph (c.2) or (c.3) or, if that parent is no longer living, was at the time of death so entitled or would have been so entitled on the day on which that paragraph came into force, had he or she not died,
(ii) their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and
(iii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;

(c.4) flowing from the Court’s decision Descheneaux et al., v. Canada (Attorney General), proposes to provide for registration entitlement under subsection 6(1) for grandchildren and great-grandchildren of individuals affected by either the "cousins" issue or the "siblings" issue.

(4) Paragraph 6(1)(f) of the Act is replaced by the following:

(f) both parents of that person are entitled to be registered under this section or, if the parents are no longer living, were so entitled at the time of death.

Proposes to re-enact paragraph 6(1)(f) of the Indian Act to make eligible for registration an individual whose both parents are entitled to be registered, deemed entitled to be registered or are registered.

(5) Subsection 6(2) of the Act is replaced by the following:

Persons entitled to be registered

(2) Subject to section 7, a person is entitled to be registered if one of their parents is entitled to be registered under subsection (1) or, if that parent is no longer living, was so entitled at the time of death.

Proposes to re-enact sub-section 6(2) of the Indian Act to make eligible for registration an individual with one parent who is entitled to be registered, deemed entitled to be registered or is registered.

Clarification

(2.1) A person who is entitled to be registered under both paragraph (1)‍(f) and any other paragraph of subsection (1) is considered to be entitled to be registered under that other paragraph only, and a person who is entitled to be registered under both subsection (2) and any paragraph of subsection (1) is considered to be entitled to be registered under that paragraph only.

Proposes to provide clarity where there are dual entitlements to registration. In order to give full effect to the proposed amendments, it is important to ensure that those entitled to be registered under 6(1)(c.1) are registered under this paragraph as their descendants could benefit from the new proposed registration provisions 6(1)(c.2) and (c.4) instead of only registering under 6(1)(f) or subsection 6(2).

(6) Subsection 6‍(3) of the Act is amended by striking out "and" at the end of paragraph (b), by adding "and" at the end of paragraph (c) and by adding the following after paragraph (c):

(d) a person described in paragraph (1)‍(c.01), (c.2), (c.3) or (c.4) and who was no longer living on the day on which that paragraph came into force is deemed to be entitled to be registered under that paragraph.

If a person is deemed entitled to be registered under paragraphs 6(1)(c.01), (c.2), (c.3) or (c.4) but is no longer living on the date of the coming into force of Bill S-3, that person is deemed entitled to registration. This would ensure that the children of individuals who would have been entitled under the new amendments had they not been deceased are entitled as if their ascendants were living and entitled to be registered under the new amendments.

2 (1) Subsection 11‍(3) of the Act is amended by striking out "and" at the end of paragraph (a) and by adding the following after that paragraph:

(a.1) a person who would have been entitled to be registered under any of paragraphs 6‍(1)‍(c.01) to (c.4), had they been living on the day on which that paragraph came into force, and who would otherwise have been entitled, on that day, to have their name entered in a Band List, is deemed to be entitled to have their name so entered; and

If a person is deemed entitled to registration under paragraphs 6(1)(c.01), 6(1)(c.1), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4) but deceased before the coming into force of the Gender Equity in Indian Registration Act (Bill C-3) or before the date of the coming into force of Bill S-3, the person would be deemed to be entitled to have his or her name entered on the Band list maintained in the Department. This would ensure that children of individuals deceased, but newly entitled under these new provisions, also are entitled to have their name entered into the same Band list their parents would have been entitled to.

(2) Subsection 11‍(3.1) of the Act is replaced by the following:

Additional membership rule — paragraphs 6‍(1)‍(c.01) to (c.4)

(3.1) A person is entitled to have their name entered in a Band List that is maintained in the Department for a band if
(a) they are entitled to be registered under paragraph 6‍(1)‍(c.01) and one of their parents ceased to be a member of that band by reason of the circumstances set out in subparagraph 6‍(1)‍(c.01)‍(i);
(b) they are entitled to be registered under paragraph 6‍(1)‍(c.1) and their mother ceased to be a member of that band by reason of the circumstances set out in subparagraph 6‍(1)‍(c.1)‍(i);
(c) they are entitled to be registered under paragraph 6‍(1)‍(c.2) and one of their parents is entitled to be registered under paragraph 6‍(1)‍(c.1) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6‍(1)‍(c.1) came into force, had he or she not died;
(d) they are entitled to be registered under paragraph 6‍(1)‍(c.3) and their father is entitled to have his name entered in the Band List or, if their father is no longer living, was so entitled at the time of death;
(e) they are entitled to be registered under paragraph 6‍(1)‍(c.4) and one of their parents is entitled to be registered under paragraph 6‍(1)‍(c.2) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6‍(1)‍(c.2) came into force, had he or she not died; or
(f) they are entitled to be registered under paragraph 6‍(1)‍(c.4) and their mother is entitled to be registered under paragraph 6‍(1)‍(c.3) and to have her name entered in the Band List, or, if the mother is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6‍(1)‍(c.3) came into force, had she not died.

Proposes to give the additional effect that for individuals newly entitled to registration under 6(1)(c.01), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4), they are entitled to have their names entered on the Band List maintained by the Department if they meet the requirements of the amended subsection 6 (3.1).

Transitional Provisions

Definition of declaration

3 (1) In sections 4 to 7 and 9, declaration means the declaration made on August 3, 2015 by the Superior Court of Quebec in Descheneaux v. Canada (Attorney General), 2015 QCCS 3555, that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act are inoperative.

Same meaning

(2) Words and expressions used in sections 4 to 8 have the same meaning as in the Indian Act.

Application

4 Sections 5 to 7 apply if the suspension of the declaration expires before the day on which the order fixing the day on which this Act comes into force is made.

Registration continued

5 For greater certainty, subject to any deletions made by the Registrar under subsection 5(3) of the Indian Act, any person who was, immediately before the suspension of the declaration expires, registered and entitled to be registered under paragraph 6(1)(a), (c) or (f) or subsection 6(2) of that Act continues to be registered.

Registration entitlements recognized

6 For greater certainty, subject to any deletions made by the Registrar under subsection 5(3) of the Indian Act, for the purposes of paragraph 6(1)(f) and subsection 6(2) of that Act, the Registrar must, in respect of the period beginning on the day after the day on which the suspension of the declaration expires and ending on the day on which the order fixing the day on which this Act comes into force is made, recognize any entitlements to be registered that existed under paragraph 6(1)(a), (c) or (f) or subsection 6(2) of the Indian Act immediately before the suspension of the declaration expires.

Membership continued

7 For greater certainty, any person whose name appeared immediately before the expiry of the suspension of the declaration on a Band List maintained in the Department is not deprived of the right to have their name entered on that Band List by reason only of the declaration.

Clauses 3 to 7 propose to apply only if the declaration of invalidity ("declaration") made on August 3, 2015 by the Superior Court of Quebec in Descheneaux takes effect on or before the day on which the order fixing the day on which Bill S3 comes into force is made. The declaration of invalidity would take effect if at the end of the suspension of the court’s order these amendments are not in force.

These clauses propose to ensure that any person who, immediately before the suspension of the declaration expires, is registered and entitled to be registered under paragraphs 6(1)(a), (c) and (f) and subsection 6(2) continues to be registered.

They also propose to authorize the Registrar to recognize any entitlement to be registered that existed before the suspension of the declaration expires under paragraphs 6(1)(a), (c) and (f) and subsection 6(2) for the purpose of determining entitlement under paragraph 6(1)(f) and subsection 6(2) of the Indian Act.

The provisions further propose to ensure that a person whose name appears on a Band list maintained in the Department immediately before the suspension of the declaration expires is not deprived of the right to have their name appear on that Band list by reason only of the expiration of the declaration.

Related Provision

No liability

8 For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty in right of Canada, or a council of a band, for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties, only because
(a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b) one of the person's parents is entitled to be registered under paragraph 6(1)(c.01), (c.2), (c.3) or (c.4) of the Indian Act.

Proposes to stipulate that no claim for compensation lies against the Crown, her employees or band councils for anything done in the performance of their duties because a person whose parent is entitled to registration under new paragraphs 6(1)(c.01), (c.2), (c.3) or (c.4) was not registered or included on a band list before the coming into force. That is, no person newly entitled to registration as of the coming into force of the legislation would be able to claim damages because they were not registered immediately prior to that date.

Coming into Force

Order in council

9 This Act comes into force, or is deemed to have come into force, on a day to be fixed by order of the Governor in Council, but that day must be the day on which the suspension of the declaration expires.

Should Bill S-3 not be enacted by the expiration of the Superior Court of Quebec’s suspended declaration of invalidity on February 3, 2017, allows the Governor in Council to bring the legislation into force retroactively, effective February 2, 2017.

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