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. This period was subsequently extended to December 22, 2017.

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.

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

On July 28, 2016, the Government of Canada announced its response to the Descheneaux decision, to eliminate known sex-based inequities in Indian registration through legislative amendments to the Indian Act, following engagement on the proposed changes with First Nations and other Indigenous groups.

The Descheneaux Case

IIn 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 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. However, Indian men in similar circumstances 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, then to December 22, 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 Descheneauxcase.

The Government of Canada's Response

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:

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 in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) was introduced in the Senate of Canada on October 25, 2016.

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

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 addressed all known sex-based inequities in Indian registration.

The Senate suspended consideration of Bill S-3 and recommended that the government seek an extension of the February 3, 2017 court order, to continue the engagement process.

On January 20, 2017, the government sought and was granted a five-month extension of the suspension of the Descheneaux decision by the Superior Court of Quebec, to July 3, 2017.

The court extension allowed the Government of Canada to:

The Standing Senate Committee resumed its study of Bill S-3 on May 9, 2017, and adopted a number of amendments to the bill, many of which were introduced and/or supported by the government. They include:

However, the Government was not able to support the amendment that was adopted by the Senate that would register all descendants of entitled individuals, born prior to April 17, 1985, under paragraph 6(1)(a) of the Indian Act. Such a unilateral change was outside the scope of Bill S-3 and should not be passed absent adequate consultation and information on the practical implications.

On June 21, 2017, the House of Commons passed Bill S-3 at Third Reading with the following changes:

The Senate did not pass the bill before adjourning for the summer recess on June 22, 2017. As a result, Bill S-3 did not receive Royal Assent by July 3, 2017.

On June 27, 2017, the Superior Court of Quebec denied the government's request for another six-month extension to ensure that the registration provisions struck down by the court in Descheneaux did not become inoperative on July 3, 2017. The government appealed the decision with the Quebec Court of Appeal obtaining a second extension of the suspension period until December 22, 2017.

In the summer of 2017, Stewart Clatworthy was contracted by the Government of Canada to produce demographic estimates on the number of individuals that would become newly entitled to Indian registration based on various scenarios of amendments to the Indian registration provisions. Consult his full report: An Assessment of the Population Impacts of Select Hypothetical Amendments to Section 6 of the Indian Act.

On November 7, 2017, Senator Peter Harder introduced legislative changes to Bill S-3 in the Senate that will remove additional sex-based inequities that were not initially addressed. The key change will see the removal of the 1951 cut-off from the Indian Act with a delayed coming-into-force date to ensure proper consultations are completed. This amendment was supported by the Government of Canada and will effectively extend entitlement to Indian status, under subsection 6(1) of the Indian Act, to descendants of women who were removed from bands list or not considered as an Indian, prior to 1951, due to marriage going back to 1869.

On November 9, 2017, the Senate adopted Bill S-3, with the new amendment, and referred it back to the House of Commons who adopted iton December 4, 2017. The bill received Royal Assent on December 12, 2017, and all its provisions, except those related to the removal of the 1951 cut-off, came into force on December 22, 2017.

Conclusion

The Government of Canada remains committed to eliminating all forms inequities in Indian registration. In keeping with reconciliation and the renewal of the nation-to-nation relationship, the Government of Canada remains committed to moving forward with the consultations on the broader issues relating Indian registration, band membership and First Nations citizenship with First Nations and other Indigenous groups under the Collaborative Process.

The co-design of the collaborative process began on October 31, 2017. This will ensure that the formal consultations with First Nations and other Indigenous groups on the broader-related issues can begin around April 2018.

Annex I 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 paragraph 6(1)(c.2).

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) paragraphs 6(1)(c.4) or 6(1)(f), or subsection 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 paragraph 6(1)(c.3) 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 paragraph 6(1)(c.4).

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 loses status following mother’s marriage to a non-Indian
Text description of Figure 3a: Minor child born of Indian parents loses status following mother’s marriage to a non-Indian

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 paragraph 6(1)(c.01) 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

Addressing the differential treatment of children born out of wedlock, prior to April 17, 1985, of an Indian mother and non-Indian father and who lost status through protest, as a result of the inequity created by the proposed remedy for the siblings issue.

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

Figure 4a describes the situation of children born out of wedlock, prior to April 17, 1985, of an Indian woman and a non-Indian man that were registered but lost status, through protest, because 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 April 17, 1985, their children became eligible for Indian status under subsection 6(2).

Under Bill S-3, female children born out of wedlock prior to April 17, 1985 of an Indian man and non-Indian woman and were ineligible for registration prior to April 17, 1985, will become eligible for Indian status under paragraph 6(1)(c.3) rather than under subsection 6(2), and their children (regardless of sex) born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985) will also become eligible for registration under paragraph 6(1)(c.4).

The proposed remedy would address the situation of the grandchildren born prior to April 17, 1985 (or after April 16, 1985 and their parents married each other before April 17, 1985), of an Indian grandmother who parented out of wedlock with a non-Indian by granting them eligibility for status under paragraph 6(1)(c.02). 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: Remedy for the siblings issue (new comparator group)
Text description of Figure 4b: Remedy for the siblings issue (new comparator group)

Figure 4b describes the treatment of a female grandchild who was born prior to April 17, 1985, of a woman who was in turn 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 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 female children in this situation to become eligible for registration under paragraph 6(1)(c.3) instead of under subsection 6(2). These amendments will in turn allow the female grandchildren, born prior to April 17, 1985, of these women to become eligible for Indian status under paragraph 6(1)(c.4).

Annex E: The Issue of Great-Grandchildren Born Pre-1985 of a Parent Affected by the Double-Mother Rule

Addressing the differential treatment of great-grandchildren, born prior to 1985, of a parent affected by the double-mother rule, as a result of the inequity created by the proposed remedy for the cousins issue.

Figure 5a: Great-grandchildren, born prior to 1985, of a parent affected by the double-mother rule (paternal line)
Text description of figure 5a: Great-grandchildren, born prior to 1985, of a parent affected by the double-mother rule (paternal line)

The proposed remedy to address the cousins issue will grant eligibility for Indian status, under paragraph 6(1)(c.4), to the great-grandchildren of Indian women who lost status prior to April 17, 1985 because of their marriage to a non-Indian. This remedy creates a new inequity in respect of the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), with a parent who had lost status at age of 21 years under the double-mother rule.

The double-mother rule was introduced in the September 4, 1951 Indian Act and excluded from registration at age 21 grandchildren whose mother and paternal grandmother both acquired status through marriage to an Indian. The rule was repealed in 1985 under Bill C-31 and the grandchildren who had lost status at the age of 21 years were reinstated under paragraph 6(1)(c).

Under the proposed amendments to address the cousins issue, entitlement for registration will be extended to the grandchildren, under paragraph 6(1)(c.2), and the great-grandchildren, under paragraph 6(1)(c.4) or 6(1)(f) or subsection 6(2), of Indian women registered, or entitled to registration, when they are born before April 17, 1985, or after April 16, 1985, of parents married before April 17, 1985.

The remedy would grant eligibility for registration under paragraph 6(1)(c.02), to the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985, if their parents married each other before April 17, 1985), if one parent is affected by the double-mother rule, and the other parent is not entitled to registration.

Figure 5b: Remedy for the cousins issue (new comparator group)
Text description of Figure 5b:Remedy for the cousins issue (new comparator group)

Under the proposed amendments to address the cousins issue, entitlement for registration will be extended to the grandchildren, under paragraph 6(1)(c.2), and the great-grandchildren, under paragraph 6(1)(c.4) or 6(1)(f) or subsection 6(2), born before April 17, 1985, or after April 16, 1985, of parents married before April 17, 1985, of Indian women who lost status for marrying non-Indians prior to 1985 and were reinstated under paragraph 6(1)(c) of the Indian Act.

Annex F: Issue of Great-Grandchildren Born Pre-1985 of a Parent Affected by the Siblings Issue

Addressing the differential treatment of great-grandchildren, born prior to April 17, 1985, of a parent affected by the siblings issue, as a result of the inequity created by the proposed remedy to address the issue of great-grandchildren affected by the double-mother rule.

Figure 6a: Great-grandchildren, born prior to 1985, of a parent affected by the siblings issue.
Text description of figure 6a: Great-grandchildren, born prior to 1985, of a parent affected by the siblings issue.

The proposed remedy to address the issue of great-grandchildren affected by the double-mother rule will grant eligibility for Indian registration under paragraph 6(1)(c.02) to the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), in situations where one of their parents was affected by the double-mother rule and the other parent is not entitled to be registered. This creates a new inequity in respect of the great-grandchildren, born prior to 1985, of a parent affected by the siblings issue and the other parent is not eligible for registration.

The proposed remedy for the siblings issue extends eligibility for Indian registration to the female children, born out of wedlock between September 4, 1951 and April 17, 1985 of Indian men, under paragraph 6(1)(c.3), and to the grandchildren of these Indian men under paragraph 6(1)(c.4). However, the great-grandchildren would not be eligible for registration under subsection 6(1).

Under Bill S-3, entitlement for registration will be extended, under paragraph 6(1)(c.02), to the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), of one parent affected by the double-mother rule and the other parent is not entitled to registration.

The proposed remedy would extend eligibility for Indian registration under paragraphs 6(1)(c.5) or 6(1)(f), or subsection 6(2) to the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), in situations where one of their parents is affected by the siblings issue and the other parent is not entitled to be registered.

Figure 6b: Remedy for Great-Grandchildren of a Parent Affected by the Double-Mother Rule (New Comparator Group).
Text description of Figure 6b: Remedy for great-grandchildren of a parent affected by the double-mother rule

The proposed remedy for great-grandchildren of one parent affected by the double-mother rule and the other parent is not eligible for registration, would grant eligibility for registration under paragraph 6(1)(c.02), to these great-grandchildren if they were born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985).

Annex G: Issue of Great-Grandchildren, Born Pre-1985, Whose Indian Great-Grandmother Parented Out of Wedlock with a Non-Indian

Addressing the differential treatment of great-grandchildren, born prior to 1985, of a great-grandmother who parented out of wedlock with a non-Indian, as a result of the proposed remedy to address the issue of great-grandchildren affected by the double-mother rule.

Figure 7a: Great-grandchildren, born prior to 1985, of an Indian great-grandmother who parented out of wedlock with a non-Indian
Text description of figure 7a: Great-grandchildren, born prior to 1985, of an Indian great-grandmother who parented out of wedlock with a non-Indian

The proposed remedy to address the issue of great-grandchildren affected by the double-mother rule will grant eligibility for Indian registration under paragraph 6(1)(c.02) to the great-grandchildren born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), in situations where one of their parents was affected by the double-mother rule and the other parent is not entitled to be registered. This creates a new inequity in respect of the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), of a grandparent born out of wedlock prior to April 17, 1985 to an Indian mother and non-Indian father, and the grandparent lost status through protest.

Under Bill S-3, the grandchildren, born prior to April 17, 1985 (or after April 16, 1985 and their parents married each other before April 17, 1985), of an Indian grandmother who parented out of wedlock with a non-Indian will become eligible for status under paragraph 6(1)(c.02). However, the great-grandchildren is not eligible for registration under subsection 6(1).

Under Bill S-3, entitlement for registration will be extended, under paragraph 6(1)(c.02), to the great-grandchildren born prior to April 17, 1985 (or after April 16, 1985 if their parents married each other before April 17, 1985), where one of their parents was affected by the double-mother rule and the other parent is not entitled to registration.

The remedy would grant eligibility for registration, under paragraph 6(1)(c.6), to the great-grandchildren, born prior to April 17, 1985 (or after April 16, 1985if their parents married each other before April 17, 1985), where one of their Indian grandparents was born out of wedlock prior to April 17, 1985 to an Indian mother and non-Indian father and the grandparent lost status through protest, and one of their parents is entitled under the new category 6(1)(c.02) and their other parent is not entitled to be registered.

Figure 7b: Remedy for great-grandchildren of a parent affected by the double-mother rule (new comparator group)
Text description of Figure 7b: Remedy for great-grandchildren of a parent affected by the double-mother rule (new comparator group)

The proposed remedy for great-grandchildren of one parent affected by the double-mother rule and the other parent not eligible for registration, would grant eligibility for registration under paragraph 6(1)(c.02) to these great-grandchildren if they were born prior to April 17, 1985 (or after April 16, 1985 and their parents married each other before April 17, 1985).

Annex I: Frequently Asked Questions

On the Federal Approach in the Response to Descheneaux

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

On July 28, 2016, the Government of Canada announced its approach to address issues relating to Indian registration, band membership and First Nations citizenship in the context of the response to the 2015 decision of the Superior Court of Quebec in the Descheneaux case to eliminate known sex-based inequities in Indian registration. In direct response to the Descheneaux decision, legislative amendments to the Indian Act were introduced in the Senate of Canada, on October 25, 2016, as 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).

In addition, the Government will launch comprehensive consultations and joint work with First Nations, and other affected Indigenous groups on the broader issues relating to Indian registration, band membership and First Nations citizenship with a view to future reform. This collaborative process on the broader issue will be designed in partnership with First Nations and other Indigenous groups.

The design phase of the collaborative process was announced on October 31, 2017 and will run for two-to-three months. Upon completion of the design phase, formal consultations with First Nations and other Indigenous groups on the broader related issues will begin around April 2018.

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 legal 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 Canadian Charter of Rights and Freedoms (Charter) because they perpetuated different treatment in entitlement to Indian registration between Indian women and men. 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 decision to the British Columbia Court of Appeal in the McIvor case, did not go far enough in addressing these sex-based inequities.

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 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 inequity directly affecting the grandchildren of Indian women who had married non-Indians in certain circumstances, it did not address a further inequity 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. However, Indian men in similar circumstances 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.

Subsequent extensions have been obtained from the Superior Court of Quebec and the Court of Appeal of Quebec, giving Parliament until December 22, 2017 to enact legislation complying with the Descheneaux decision.

On the Amendments to the Indian Act in Response to the Descheneaux Decision

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)?

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 sex-based inequities in Indian registration through legislative amendments to the Indian Act.

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

The legislative amendments under Bill S-3 address sex-based inequities in Indian registration. This includes the issues found in the Descheneaux case pertaining to cousins and siblings. The bill also addresses other areas of 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, and the sex-based inequities that are created as a result of the remedies for the cousins and siblings issues. The bill will also remove the 1951 cut-off from the Indian Act registration provisions at a later date, once consultations with First Nations on how best to implement this change are completed.

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

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

Do the amendments in Bill S-3 address other issues in Indian registration?

No. The legislative amendments only address 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 cultural identity and continuity, and on the appropriate balance between individual and collective rights in terms of eligibility to Indian status, which will be discussed as part of the collaborative process on broader issues related to Indian registration, band membership and First Nations citizenship.

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

Bill S-3 was introduced in Parliament in direct response to the Descheneaux decision with the objective of eliminating sex-based inequities in Indian registration. Addressing issues that are not based on sex would have been outside of the intended scope of the bill.

However, the Government recognizes that sex-based inequity in Indian status is only one of a number of issues of concerns for First Nations and other Indigenous groups. The collaborative process with First Nations and other Indigenous groups will provide the opportunity for comprehensive consultations and joint work on the broader issues relating to Indian registration, band membership and First Nations citizenship with a view to future reform.

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 sessions on the proposed amendments were 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, Métis and non-status Indians.

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.

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

Yes. Funding was 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 included support for their internal research and analysis, travel and meeting costs.

Why did Canada not engage directly with individual First Nations on the proposed amendments?

As part of the engagement on Bill S-3, the federal government 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. These stakeholders were invited to work with the federal government in order to bring together First Nations individuals and groups, including First Nation chiefs, councilors and community members, to discuss the proposed legislative amendments. Individual First Nation governments and communities had the opportunity to present their views and input on the proposed amendments through this process.

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

As part of the legislative amendments to address sex-based inequities in Indian registration, some individuals that identify as Métis and non-status Indian will become eligible for Indian status. For these reasons, Métis and non-status Indian groups were included as part of the engagement on the amendments under Bill S-3.

How long did the Government of Canada have to respond to the Descheneaux decision?

The Superior Court of Quebec initially gave Parliament until February 3, 2017, to adopt legislative amendments in response to its decision. However, during committee study of Bill S-3, and upon the Senate’s recommendation, the Government of Canada requested and received an extension until July 3, 2017 to further engage on the proposed amendments, with a focus on individuals affected by sex-based inequities in registration.

This 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.

The study of Bill S-3 resumed in Parliament in May 2017, but was not completed before the court-ordered deadline of July 3, 2017. In order to prevent key provisions of the Indian Act from becoming inoperative after that date, the Government sought a second extension of the decision, which was denied by the Superior Court of Quebec.

The Government appealed the Superior Court's decision with the Court of Appeal of Quebec. On August 18, 2017, the appeal court granted a second extension of the suspension of the Descheneaux decision until December 22, 2017.

This second extension allowed Parliament to adopt Bill S-3 on December 4, 2017, and to have it come into force before the court-ordered deadline, on December 22, 2017.

As a newly entitled individual as a result of Bill S-3, can I apply for Indian registration?

If you believe that you may be eligible for Indian registration as a result of Bill S-3, you can submit an application to:
Application Processing Unit
Indigenous and Northern Affairs Canada
PO Box 6700
Winnipeg MB R3C 5R5

On the 1951 cut-off

What is the 1951 cut-off and what will be the effect of its removal?

The current registration provisions of the Indian Act reference September 4, 1951 as a cut-off date to determine eligibility for registration under that section 6(1)(c.1)(iv). This date will be removed once sections 2.1, 3.1, 3.2 and 10.1 of Bill S-3 are brought into force, resulting in the elimination of additional sex-based inequities in its registration provisions.

The removal of the 1951 cut-off will extend entitlement to Indian status, under subsection 6(1) of the Indian Act, to descendants of women who were removed from bands list or not considered as an Indian due to marriage going back to 1869.

However, it will not address other inequities in Indian registration that are based on grounds such as ancestry, date of birth (or age).

What is the difference between the removal of the 1951 cut-off and the "6(1)(a) all the way" amendment?

The removal of the 1951 cut-off will provide entitlement under section 6(1) to all descendants born prior to April 17, 1985 (or of a marriage prior to that date) of women who were removed from bands list or not considered as an Indian because of their marriage to a non-Indian man going back to the 1869 Gradual Enfranchisement Act.

The "6(1)(a) all the way" amendment would provide entitlement under section 6(1) to all descendants born before April 17, 1985 or from a marriage that occurred before that date, of individuals who lost status at one point in time going back to the 1869 Gradual Enfranchisement Act. Therefore, the "6(1)(a) all the way" amendment addresses other distinctions in Indian registration that are not based on sex, but based on other grounds such as ancestry, date of birth (or age).

During committee study of Bill S-3, the removal of the 1951 cut-off was not supported by the Government of Canada. Why is it now supporting it?

The Government of Canada could not initially support the immediate removal of the 1951 cut-off given that it would not have allowed time to conduct proper consultation. The delayed coming into force clause that is now included in Bill S-3 for the removal of the 1951 cut-off will ensure proper consultations are held with First Nations on how best to implement the amendment. This approach is in line with Canada’s commitment not to make broad changes that would impact First Nations without proper consultation.

On the Delayed Coming into Force

Why is the removal of the 1951 cut-off subject to a delayed coming into force?

The Government listened to the arguments put forward by the Senate, as well as other Indigenous voices, and amended Bill S-3 in order to remove the 1951 cut-off with a delayed coming into force clause. In line with the Government’s commitment to consult on issues that affect First Nations, the implementation of that clause will still require extensive consultations with communities, impacted individuals and experts on how best to implement the amendment. These consultations will also be the opportunity to identify any unintended consequences and allow the government to develop ways to mitigate impacts.

Why is a date for the coming into force of the amendment not included in Bill S-3?

It would be premature to attach a date for the coming into force of the amendment. Removing the 1951 cut-off will have significant impacts on First Nations and consultations on how best to implement this change needs to be done with First Nations. The Government already launched the co-design of a collaborative process with First Nations which will allow for consultations on broader issues related to Indian registration, band membership and First Nations citizenship. Consultations on how the 1951 cut-off amendment should be implemented will take place as part of that process.

If there is no date for the coming into force of the amendment, could the Government decide not to bring it into force?

By convention, a government does not put into law any provision they do not intend, in good faith, to implement.

Furthermore, the bill contains numerous clauses holding the Government accountable to Parliament regarding implementation of this legislation.

Within 5 months of Royal Assent, the Government is required to report to Parliament on the design of the consultations. A further status report to Parliament is required within 12 months of Royal Assent and then again three years after Royal Assent.

The bill requires consultations on implementation of the 1951 cut-off, as well as broader issues around Indian registration, band membership and First Nations citizenship.

The consultations on the broader issues are targeted to begin by April 2018 with co-design of those consultations with First Nations and other Indigenous groups already underway.

On the Demographic Report

Why did the Government commission a report from a demographic study during the summer 2017?

During the debates before the Standing Senate Committee on Aboriginal Peoples related to the Senate proposed "6(1)(a) all the way" amendment, many questions were raised on the impact of such an amendment on the registered Indian population. The Government commissioned a demographer to examine the population impacts of related hypothetical amendments in order to understand the magnitude of the impacts.

What would be the population impacts of the "6(1)(a) all the way" amendment?

The demographic study commissioned by the government relies on the only three sources of data available to determine population impacts for registered Indians under the Indian Act. They are the Indian Registration System (Indian Register), the 2011 National Household Survey and the 2016 Census. These sets of data all have limitations; therefore, the range of estimated impact varies greatly. The Indian Register was originally compiled from treaty and band lists following the 1951 Indian Act, many individuals who had been removed from these lists prior to that time (and their descendants) cannot be identified from the Indian Register. As a result, the estimates based on the Indian Registration System greatly underestimate the demographic impact of the potential amendment. The 2011 National Household Survey and the 2016 Census data can also be imprecise as they are subject to shifts in self-declaration over time.

Estimates based on the 2011 National Household Survey and the 2016 Census are considerably higher than those generated from the Indian Register and are likely to provide a more complete picture of the potential population that could become eligible for registration under the potential scenarios. However, the number of individuals that would actually seek and qualify for registration is likely to be quite different, as many other factors not addressed in this analysis could result in eligible individuals not seeking or acquiring registration

Based on data from the Indian Register, the 2011 National Household Survey and the 2016 Census the demographer estimates for the impact of the "6(1)(a) all the way" amendment range from 86,917 to 1,318,465 individuals becoming newly entitled to Indian registration. Please refer to Annex H for the full demographic study.

On the Impacts of Bill S-3

How many people will become newly entitled to Indian registration as a result of Bill S-3?

The provisions in Bill S-3 to address sex-based inequities in Indian registration that came into force on December 22, 2017, are expected to result in an additional 28,000 to 35,000 individuals becoming newly entitled to Indian registration.

As for the number of individuals that will be impacted by the delayed coming into force removal of the 1951 cut-off, a great level of uncertainty remains as any estimates are not necessarily reflective of how many would ultimately be found eligible to Indian status. Although it is impossible to provide estimates that are specific to the removal of the 1951 cut-off, estimates for the potential impact of the "6(1)(a) all the way" are considered to be quite similar. Should there be a difference in the number of individuals potentially becoming newly entitled to Indian registration, the impact of the "6(1)(a) all the way" amendment is expected to be higher as it addresses issues that are not only based on sex.

A demographer contracted by the Government of Canada provided estimates of the number of individuals that could potentially become eligible to Indian registration as a result of the "6(1)(a) all the way" amendment. The latest estimate ranges from 750,000 to 1.3 million individuals. However, this estimate is based on the 2016 Census, which only provides an indicator of how many individuals self-reported Indigenous ancestry, and is not necessarily reflective of how many individuals would ultimately be found eligible for Indian registration. These estimates likely overestimate the number of individuals who would successfully obtain Indian status.

In the report Bill S-3: Addressing Sex Based Inequities in Indian Registration, the Parliamentary Budget Officer (PBO) also provided an estimate of the number of individuals who could potentially become newly entitled as a result of the "6(1)(a) all the way" amendment. He estimates that approximately 670,000 individuals could potentially become newly entitled to Indian registration as a result of this amendment. However, according to the PBO’s report, "approximately 270,000 additional eligible persons (40%) are expected to register due to the more remote connection between this group and First Nations communities" (Parliamentary Budget Officer, 2017). Considering the "6(1)(a) all the way" amendment would address issues that are not based on sex, it is expected that the removal of the 1951 cut-off would result in a slightly lower number of individuals being newly entitled to Indian registration. The PBO’s estimate will help inform the government’s consultation on implementing all the provisions of Bill S-3.

How will Bill S-3 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 Bill S-3, 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 Bill S-3. These First Nations may choose to amend their laws to incorporate newly registered individuals to their membership lists.

What will be the impact of Bill S-3 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: Non-Insured Health Benefits Program and 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 could also impact the funding of these programs over the longer-term. However, the impacts for on-reserve programming are contingent upon the number of newly registered individuals who take up on-reserve residency. Based on previous experience (implementation of Bill C-31 and Bill C-3) and past mobility trends and data, it is anticipated that only a small proportion of individuals will move to a reserve, likely resulting in no dramatic increase in costs for on-reserve residency-based programs.

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. This has been identified for the provisions of Bill S-3 that came into force on December 22, 2017. The numbers around the 1951 cut-off are yet to be determined due to the uncertainty around exact population estimates.

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.

On the Decision of the Ontario Court of Appeal in the Gehl Case

What is the Gehl Decision?

The Gehl decision deals with issues relating to unstated or unknown parenting in respect of eligibility for Indian status.

Under the Indian Act, the registration of children is dependent on the status of both parents. The two-parent rule is neutral in that both men and women are faced with the same consequences if evidence regarding the entitlement of both of their parents is not or cannot be provided. In addition, the ability to obtain or transmit entitlement to registration for both male and female applicants is affected where evidence regarding one parent is missing or unobtainable.

In cases of unstated or unknown paternity or maternity, the child’s registration is determined solely on the basis of the eligibility of the one parent who is known. If the stated or known parent is registered under s. 6(1) the child is registered under s. 6(2), if the stated or known parent is registered under s. 6(2) the child is not eligible for registration.

In order to assist applicants whose birth certificate does not contain their father's name, the Indian Registrar applies the Proof of Paternity Policy to accommodate the needs and circumstances of the discrete group of women who may be unwilling or unable to disclose their child’s paternity due to highly personal and sensitive circumstances.

In the Gehl case, Lynn Gehl challenged section 6 of the Indian Act and the Proof of Paternity Policy, arguing they infringed section 15 rights under the Charter and discriminated against her on the basis of race, sex, and family or marital status when she was deemed not entitled to be registered as a status Indian because of unknown/unstated paternity.

On April 20, 2017, the Ontario Court of Appeal granted Ms. Gehl’s appeal and declared that she is entitled to registration pursuant to subsection 6(2), finding the decision of the Indian Registrar denying her status unreasonable.

While the court’s decision did not find section 6 of the Indian Act unconstitutional or in violation of the Charter, it recognized that women are disproportionately disadvantaged by the requirement of proving paternity and that the Proof of Paternity Policy falls short of what is required to address circumstances where women cannot or will not disclose paternity.

Are the issues raised in the Gehl decision addressed by Bill S-3?

Yes. As part of the parliamentary process on Bill S-3, the Standing Senate Committee adopted an amendment to Bill S-3 that responds to the Gehl decision.

The amendment adds a new subsection to section 5 of the Indian Act to allow the Indian Registrar flexibility to consider various forms of evidence and requires the Registrar to draw from any credible evidence and any reasonable inference in favour of the applicant, in determining eligibility for registration in situations of an unstated or unknown parent, grandparent or other ancestor.

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 the Government of Canada – 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.

What is the voluntary de-registration issue?

Indigenous and Northern Affairs Canada has received a number of requests from registered Indians who wish to be de-registered, or 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 themselves as Métis and who are seeking membership in Métis collectivities.

Enrolment criteria for these collectivities specifically exclude those who are registered under the Indian Act. However, since the coming into force of Bill C-31 in 1985, once a person who is entitled to registration as an Indian has been registered, there is no authority to remove his or her name from the Indian register, even if he or she requests it.

Given the lack of legislative authority, implementation of a mechanism to allow for voluntary de-registration would require an amendment to the registration provisions of the Indian Act.

Date modified: