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.

An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) came into force on December 22, 2017 to address sex-based inequities in the Indian Act. Immediate amendments addressed the inequities relating to the different treatment of cousins, siblings or minors who were omitted from historic lists. Further amendments removing the 1951 cut-off were to come into force at a later date, once consultations on how best to implement these changes were completed.

Amendments in Bill S-3 to remove the 1951 cut-off were brought into force on August 15, 2019. All known sex-based inequities in the Indian Act have now been addressed.

To address Bill S-3 and the coming into force of the 1951 cut-off, the Government of Canada has taken steps to assist individuals with registration under the Indian Act and the Secure Certificate of Indian Status, including:

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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 (Procureur général) 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. 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. This period was subsequently extended to December 22, 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 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. However, Indian men in similar circumstances 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 inequities were not fully addressed in 2011 by the Gender Equity in Indian Registration Act (Bill C-3).

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

On July 28, 2016, in response to the Descheneaux decision, the Government of Canada launched an engagement process with First Nations and other Indigenous groups across Canada to discuss proposed legislative changes to the registration provisions of the Indian Act.

Engagement sessions were held across Canada, in cooperation with First Nation Treaty and Nation organizations, as well as regional and national organizations representing the interests of First Nations, First Nations women, Métis and non-status Indians.

Legislative amendments to the Indian Act were drafted to address sex-based inequities in Indian registration in response to the Descheneaux decision through Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général).

The Government of Canada is aware that sex-based inequities in Indian registration 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 or unknown parent and voluntary deregistration. Other matters relate to broader policy questions, such as Canada's continued role in determining Indian status and band membership. These are complex issues and often 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 were discussed as part of a collaborative process on broader issues related to Indian registration, band membership and First Nations citizenship, with a view to future reform.

The Government of Canada sought input from First Nations and Indigenous groups to co-design the consultations under the collaborative process from October 31, 2017 to March 31, 2018. The co-design phase provided First Nations and Indigenous groups an opportunity to determine how the consultation process would take place, the issues to be examined under this process, and the types of activities to be undertaken by participants. The report to parliament on the design of a collaborative process on Indian registration, band membership and First Nation citizenship summarizing the input received was tabled in parliament on May 10, 2018.

Consultations were launched on June 12, 2018 and concluded in April 2019. The second Report to Parliament on the collaborative process on Indian registration, band membership and First Nation citizenship was tabled on June 12, 2019.

What is Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)?

Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), was introduced in direct response to the Descheneaux decision. The legislative amendments brought forward by Bill S-3 eliminate the sex-based inequities identified by the court in the Descheneaux case as well as other sex-based inequities in registration.

Bill S-3 addresses sex-based inequities in the Indian registration provisions of the Indian Act for the following situations:

Bill S-3 also include the requirement for the Minister of Crown-Indigenous Relations and Northern Affairs to report to Parliament on the collaborative process on broader issues related to Indian registration, band membership and First Nations citizenship, and on the implementation of the bill.

The Minister was required to report to Parliament on the:

The bill also includes provisions to remove the 1951 cut-off. These provisions were to come into force once consultations with First Nations were completed. Once in force, all descendants born prior to April 17, 1985 (or of a marriage prior to that date) of women who were removed from band lists or not considered Indians because of their marriage to a non-Indian man will be entitled to 6(1) status. This will include circumstances prior to 1951 and will remedy inequities back to the 1869 Gradual Enfranchisement Act.

The whole of Bill S-3 is now in force. Provisions to remove the 1951 cut-off came into effect on August 15, 2019.

What are the next steps?

The Government of Canada remains committed to eliminating all forms of inequity in Indian registration and to moving forward with further engagement on the broader issues relating to Indian registration, band membership and First Nations citizenship with a view to future reform.

Contact aadnc.fncitizenship-citoyennetepn.aandc@canada.ca for more information.

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