Plain Text Description of 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)

For information purposes

Below is the annotated legislative language of Bill S-3, in response to the Superior Court of Quebec in its August 3, 2015 decision, Descheneaux et al., v. Canada (Attorney General). The plain text description is based on the published version of Bill S-3 that received royal assent on December 12, 2017.
Legislative language Plain text description
1 Section 5 of the Indian Act is amended by adding the following after subsection (5) :

Unknown or unstated parentage

(6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person's entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.
Adds two new subsections to section 5 of the Indian Act to deal with the issues related to unknown or unstated parentage.
The new subsection 5(6) provides for the Indian Registrar to consider all relevant evidence to establish the entitlement for Indian registration of an applicant's parent, grandparent or other ancestor who is unknown or whose name is unstated on a birth certificate, without the requirement to establish the identity of the unknown or unstated parent, grandparent or other ancestor, and to draw from any credible evidence every reasonable inference in favour of the person in respect of whom the application is made.
No presumption

(7) For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.
The new subsection 5(7) provides that, for greater certainty, there is no presumption that the unstated or unknown parent, grandparent or other ancestor had/has no entitlement to Indian registration.
2 (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;
Re-enacts paragraph 6(1)(a) of the Indian Act as it read before. It 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;
Re-enacts 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:

  • women who had previously lost status as a result of marrying non-Indians;
  • children omitted or removed as a result of their mother marrying a non-Indian;
  • persons removed from the Indian Register as a result of protests based on non-Indian paternity;
  • persons omitted or deleted from the Indian Register under the double-mother rule;
  • the illegitimate children of Indian women born prior to August 14, 1956 who were omitted or deleted because of non-Indian paternity.
(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;
Paragraph 6(1)(c.01) deals 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.
(c.‍02) that person meets the following conditions:

(i) the name of one of their parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subparagraph 12(1)‍(a)‍(iv) or subsection 12(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;
Paragraph 6(1)(c.02) deals with new inequities that are created as a result of the proposed remedies to address the "siblings" and "cousins" issues under paragraph 6(1)(c.4) and provides entitlement for Indian status under subsection 6(1) of the Indian Act to:

  • 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.
  • 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.
(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;
Paragraph 6(1)(c.2) deals with the "cousins" issue identified by the Court in its decision in 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.

It provides entitlement for Indian status to children of persons that acquired entitlement under paragraph 6(1)(c.1) in 2011 as a result of the amendments to section 6 of the Indian Act in response to the McIvor decision under the Gender Equity in Indian Registration Act (Bill C-3).

In order to be entitled to registration under paragraph 6(1)(c.2), an individual must have had one parent entitled or deemed entitled to be registered under paragraph 6(1)(c.1) and must be born prior to April 17, 1985, or born after April 16, 1985 if their parents married each other 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 was at the time of that person's birth entitled to be registered or, if he was no longer living at that time, 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;
Paragraph 6(1)(c.3) deals with the "siblings" issue identified by the Court in its decision in 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 for Indian status under subsection 6(1)(c.3) 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.3).

Individuals newly entitled for Indian status under paragraph 6(1)(c.3) will be able to transmit Indian status to their child under paragraph 6(1)(c.4) or by operation of paragraph 6(1)(f) or subsection 6(2) of the Indian Act.
(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 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,

(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;
Paragraph 6(1)(c.4) flows from the Court's decision in Descheneaux et al., v. Canada (Attorney General), and provides entitlement for Indian status under subsection 6(1) for grandchildren and great-grandchildren of individuals affected by either the "cousins" issue or the "siblings" issue.

These grandchildren and great-grandchildren will be entitled to registration if they have one parent entitled or deemed entitled to registration under the new paragraphs 6(1)(c.2) or 6(1)(c.3), and if their other parent is not entitled to be registered or, if no longer living, was not entitled to be registered or was not an Indian at that time of their death, if the death occurred prior to September 4, 1951. In addition, the individual must be born prior to April 17, 1985 or born after April 16, 1985 if their parents married each other prior to April 17, 1985.
(c.‍5) that person meets the following conditions:

(i) one of their parents is entitled to be registered under paragraph (c.‍4) and one of that parent's parents is entitled to be registered under paragraph (c.‍3) or, if that parent or parent's 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 (c.‍4) or (c.‍3), as the case may be, 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;
Paragraph 6(1)(c.5) provides entitlement for Indian status 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 registration. The great-grandchildren in this situation could also be entitled for registration under paragraph 6(1)(f) or subsection 6(2).
(c.‍6) that person meets the following conditions:

(i) one of their parents is entitled to be registered under paragraph (c.‍02) — 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 the name of one of that parent's parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subsection 12(2), as that provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that provision,

(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;
Paragraph 6(1)(c.6) provides entitlement for Indian status 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 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 of paragraph 6(1)(c.02) and their other parent is not entitled to be registered. The great-grandchildren in this situation could also be entitled for registration under paragraph 6(1)(f) or subsection 6(2).
(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.
Re-enacts paragraph 6(1)(f) of the Indian Act as it read before. It provides entitle for registration to any 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.
Re-enacts sub-section 6(2) of the Indian Act as it read before. It provides entitlement to registration to any individual with one parent who is entitled to be registered, deemed entitled to be registered or is registered under subsection 6(1).
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.
As a result of the amendments to subsection 6(1), some individuals will have dual entitlement for Indian status under paragraph 6(1)(f) or subsection 6(2) and another paragraph under 6(1). For the purposes of registration, these individuals would be registered under the other paragraph of 6(1) in order for their descendants to benefit from paragraphs 6(1)(c.01), (c.02), (c.1), (c.2), (c.3), (c.4), (c.5) or (c.6) if they meet the requirements of these paragraphs.
(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 who is described in paragraph (1)‍(c.‍01) or (c.‍02) or any of paragraphs (1) (c.‍2) to (c.‍6) 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.02), (c.2), (c.3), (c.4), (c.5) or (c.6) 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 ensures 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 (1) Paragraphs 6(1)‍(c.‍01) to (c.‍2) of the Act are repealed. Clause 2.1(1) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how an when the removal of the 1951 cut-off should be implemented, paragraphs 6(1)(c.01), (c.02), (c.1) and (c.2) will be removed from the Indian Act.
(2) Paragraphs 6(1)‍(c.‍4) to (c.‍6) of the Act are repealed. Clause 2.1(2) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraphs 6(1)(c.4), (c.5) and (c.6) will be removed from the Indian Act.
(3) Paragraph 6(1)‍(c) of the Act is renumbered as paragraph (a.‍1) and is repositioned accordingly. Clause 2.1(3) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(1)(c) of the Indian Act will be renumbered as paragraph 6(1)(a.1).

This does not change the entitlement for individuals entitled under paragraph 6(1)(c). They will remain entitled to registration but the paragraph number will change to paragraph 6(1)(a.1).
(4) Paragraph 6(1)‍(c.‍3) of the Act is renumbered as paragraph (a.‍2) and is repositioned accordingly. Clause 2.1(4) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(1)(c.3) will be renumbered as paragraph 6(1)(a.2).

This would change the entitlement of individuals formerly entitled under paragraph 6(1)(c.3) which relates to the differential treatment between male and female children whose parents were not married to each other at the time of birth to now be entitled to registration under paragraph 6(1)(a.2).
(5) Subsection 6(1) of the Act is amended by adding the following after paragraph (a.‍2):

(a.‍3) that person is a direct descendant of a person who is, was or would have been entitled to be registered under paragraph (a.‍1) or (a.‍2) and

(i) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or

(ii) they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;
Clause 2.1(4) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(1)(a) would be amended by adding a sub-paragraph that allows entitlement for Indian status to 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 back to the 1869 Gradual Enfranchisement Act.
(6) The portion of subsection 6(3) of the Act before paragraph (a) is replaced by the following:

Deeming provision

(3) For the purposes of paragraphs (1)‍(a.‍3) and (f) and subsection (2),
Clause 2.1(6) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(3) would be replaced to include a reference to the new paragraph 6(1)(a.3) which deems that for determining eligibility for children of individuals under paragraphs 6(1)(a.3), 6(1)(f) and 6(2) where their parents 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.
(7) Paragraph 6(3)‍(b) of the Act is replaced by the following:

(b) a person who is described in paragraph (1)‍(a.‍1), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 is deemed to be entitled to be registered under that paragraph or subsection; and
Clause 2.1(7) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(3)(b) would be replaced to include a reference to the new paragraph 6(1)(a.1) and to the existing paragraphs 6(1) (d), (e), or (f) and subsection 6(2)

This ensures 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.
(8) Paragraph 6(3)‍(c) of the Act is repealed. Clause 2.1(8) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(3)(c) would be removed from the Indian Act which included a reference to paragraph 6(1)(c.1) in the deeming provision. This is necessary as a result of paragraph 6(1)(c.1) being removed from the Act.
(9) Paragraph 6(3)‍(d) of the Act is replaced by the following:

(d) a person who is described in paragraph (1)‍(a.‍2) or (a.‍3) 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.
Clause 2.1(9) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 6(3)(d) would be amended to include references to the new paragraphs 6(1)(a.2) or 6(1)(a.3).

This ensures 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
3 (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.‍6), 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;
If a person is deemed entitled to registration under paragraphs 6(1)(c.01), (c.02), (c.1), (c.2), (c.3), (c.4), (c.5) or (c.6) 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 ensures 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 rules — paragraphs 6(1)‍(c.‍01) to (c.‍6)

(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.‍02) 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.‍02)‍(i);

(c) 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);

(d) 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;

(e) 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;

(f) 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;

(g) 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 their 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;

(h) they are entitled to be registered under paragraph 6(1)‍(c.‍5) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍4) 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.‍4) came into force, had he or she not died; or

(i) they are entitled to be registered under paragraph 6(1)‍(c.‍6) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍02) 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.‍02) came into force, had he or she not died.
Provides that individuals newly entitled to registration under paragraphs 6(1)(c.01), (c.02), (c.2), (c.3), (c.4), (c.5) or (c.6) are entitled to have their names entered on the Band List maintained by the Department if they meet the requirements of the amended subsection 11(3.1).
3.‍1 (1) Paragraph 11(1)‍(c) of the Act is replaced by the following:

(c) that person is entitled to be registered under paragraph 6(1)‍(a.‍1) and ceased to be a member of that band by reason of the circumstances set out in that paragraph;
Clause 3.1(1) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 11(1)(c) of the Indian Act would be replaced to change the reference from the renumbered paragraph 6(1)(c) and replace it with the new paragraph 6(1)(a.1) as it pertains to who is entitled to have their name entered in a Band List maintained in the Department.
(2) Paragraphs 11(3)‍(a) and (a.‍1) of the Act are replaced by the following:

(a) a person whose name was omitted or deleted from the Indian Register or a Band List in the circumstances set out in paragraph 6(1)‍(a.‍1), (d) or (e) and who was no longer living on the first day on which the person would otherwise be entitled to have the person's name entered in the Band List of the band of which the person ceased to be a member is deemed to be entitled to have the person's name so entered;

(a.‍1) a person who would have been entitled to be registered under paragraph 6(1)‍(a.‍2) or (a.‍3), 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
Clause 3.1(2) does not take effect until a later date – see Clause 15(2) below

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 11(3)(a) and (a.1) of the Indian Act would be replaced to reflect the re-enumeration of paragraph 6(1)(c) into the new paragrapĥ6(1)(a.1) and the remuneration of paragraph 6(1)(c.3) into the new paragraph 6(1)(a.2) to ensure that if a person is deemed entitled to registration under these new paragraphs but deceased before 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 ensures 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.
(3) Paragraphs 11(3.‍1)‍(a) to (i) of the Act are replaced by the following:

(a) they are entitled to be registered under paragraph 6(1)‍(a.‍2) 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; or

(b) they are entitled to be registered under paragraph 6(1)‍(a.‍3) and one of their parents, grandparents or other ancestors

(i) ceased to be entitled to be a member of that band by reason of the circumstances set out in paragraph 6(1)‍(a.‍1), or

(ii) was not entitled to be a member of that band immediately before April 17, 1985.
Clause 3.1(3) does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraph 11(3.1)(a), (b), (c), (d), (e), (f), (g), (h), and (i) of the Indian Act which were added within this bill to address individuals who were entitled to registration under paragraphs 6(1)(c.01), (c.02), (c.2), (c.3), (c.4), (c.5) or (c.6) to have their names entered on the Band List maintained by the Department would be replaced. The new paragraphs ensure that the individuals who would now be registered under paragraphs 6(1)(a.1), (a.2) and (a.3) would have their names entered on the Band List maintained by the Department if they meet the requirements of the amended subsection 11(3.1)
3.‍2 Subsections 64.‍1(1) and (2) of the Act are replaced by the following:

Expenditure of capital moneys with consent

64.‍1 (1) A person who has received an amount that exceeds $1,000 under paragraph 15(1)‍(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, by reason of ceasing to be a member of a band in the circumstances set out in paragraph 6(1)‍(a.‍1), (d) or (e) is not entitled to receive an amount under paragraph 64(1)‍(a) until such time as the aggregate of all amounts that the person would, but for this subsection, have received under paragraph 64(1)‍(a) is equal to the amount by which the amount that the person received under paragraph 15(1)‍(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, exceeds $1,000, together with any interest.

Expenditure of capital moneys in accordance with by-laws

(2) If the council of a band makes a by-law under paragraph 81(1)‍(p.‍4) bringing this subsection into effect, a person who has received an amount that exceeds $1,000 under paragraph 15(1)‍(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, by reason of ceasing to be a member of the band in the circumstances set out in paragraph 6(1)‍(a.‍1), (d) or (e) is not entitled to receive any benefit afforded to members of the band as individuals as a result of the expenditure of Indian moneys under paragraphs 64(1)‍(b) to (k), subsection 66(1) or subsection 69(1) until the amount by which the amount so received exceeds $1,000, together with any interest, has been repaid to the band.
Clause 3.2 does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, paragraphs 64.1(1) and (2) of the Indian Act will be replaced to reference the new paragraph 6(1)(a.1) instead of the removed paragraph 6(1)(c).

Paragraph 64.1(1) relates to individuals who received per capita distribution or bulk treaty payments upon certain enfranchisement under former Indian Acts (prior to Bill C-31 coming into effect in 1985). If those individuals, who have been reinstated under paragraphs 6(1)(a.1), (d) or (e) received amounts exceeding $1000, they would only be entitled to capital moneys paid from the surrender of land if it exceeds the total they received upon enfranchisement plus interest.

Paragraph 64(1)(2) relates to individuals who received per capita distribution or bulk treaty payments upon certain enfranchisement under former Indian Acts (prior to Bill C-31 coming into effect in 1985). If those individuals, who have been reinstated under paragraphs 6(1)(a.1), (d) or (e) received amounts exceeding $1000, they would only be entitled to an individual benefit of capital moneys in accordance with Band by-laws enacted under the various sections if it exceeds the total they received upon enfranchisement plus interest.
Transitional Provisions

Definition of declaration

4 (1) In sections 5 to 8 and 15, declaration means the declaration made on August 3, 2015 by the Superior Court of Quebec in Descheneaux c. Canada (Procureur général), 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 5 to 10.‍1 have the same meaning as in the Indian Act.

Application

5 Sections 6 to 8 apply if the suspension of the declaration expires before the day on which the order referred to in subsection 15(1) is made.

Registration continued

6 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

7 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 referred to in subsection 15(1) 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

8 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 4 to 8 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 S-3 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 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 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 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 Provisions

Construction

9 The provisions of the Indian Act that are amended by this Act are to be liberally construed and interpreted so as to remedy any disadvantage to a woman, or her descendants, born before April 17, 1985, with respect to registration under the Indian Act as it read on April 17, 1985, and to enhance the equal treatment of women and men and their descendants under the Indian Act.

No liability

10 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 section comes into force; and

(b) one of the person's parents is entitled to be registered under paragraph 6(1)‍(c.‍01) or (c.‍02) or any of paragraphs 6(1)‍(c.‍2) to (c.‍6) of the Indian Act.

No liability

10.‍1 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 section comes into force; and

(b) that person or one of the person's parents, grandparents or other ancestors is entitled to be registered under paragraph 6(1)‍(a.‍1), (a.‍2) or (a.‍3) of the Indian Act.

Clause 9 deems that the provisions of the Indian Act that are amended by this bill are to be liberally construed and interpreted to remedy any disadvantages and enhance equal treatment of women and their descendants in respect of Indian registration under the Indian Act.

Clause 10 stipulates that no claim for compensation, damages or indemnity lie 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.02), (c.2), (c.3), (c.4), (c.5) and (c.6) 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 compensation, damages or indemnity because they were not registered immediately prior to that date.

Clause 10.1 does not take effect until a later date – see Clause 15(2) below.

Upon completion of consultation on how and when the removal of the 1951 cut-off should be implemented, there would be no claim for compensation, damages or indemnity lie against the Crown, her employees or band councils for anything done in the performance of their duties because a person became entitled to be registered under 6(1)(a.3) or a person whose parent is entitled to registration under new paragraphs 6(1)(a.1), (a.2), and (a.3) 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 compensation, damages or indemnity because they were not registered immediately prior to that date.
Consultations and Reports

Consultations by Minister

11 (1) The Minister must, within six months after the day on which this Act receives royal assent, initiate consultations with First Nations and other interested parties in order to address, in collaboration with those First Nations and other parties, issues raised by the provisions of the Indian Act related to registration and band membership, including consultations on

(a) issues relating to adoption;
(b) the 1951 cut-off date for entitlement to registration;
(c) the second-generation cut-off rule;
(d) unknown or unstated paternity;
(e) enfranchisement;
(f) the continued federal government role in determining Indian status and band membership; and
(g) First Nations' authorities to determine band membership.

Requirement

(2) The Minister, the First Nations and the other interested parties must, during the consultations, consider the impact of the Canadian Charter of Rights and Freedoms, of the United Nations Declaration on the Rights of Indigenous Peoples and, if applicable, of the Canadian Human Rights Act, in regard to those issues.

Report to Parliament — design of consultation process

(3) The Minister must cause to be laid before each House of Parliament, within five months after the day on which this Act receives royal assent, a report on the design of a process by which the Minister is to carry out the consultations described to in subsection (1).

Report to Parliament — results of consultations

(4) The Minister must cause to be laid before each House of Parliament, within 12 months after the day on which the consultations begin, a report on the progress made as a result of the consultations and collaboration. The report must set out details as to the consultations carried out, including details related to

(a) issues relating to adoption;
(b) the 1951 cut-off date for entitlement to registration;
(c) the second-generation cut-off rule;
(d) unknown or unstated paternity;
(e) enfranchisement;
(f) the continued federal government role in determining Indian status and band membership; and
(g) First Nations' authorities to determine band membership.

Referral to committee

(5) Each report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.

Clauses 11 to 14 relate to the statutory reporting to Parliament of the Minister in respect of the design and implementation of consultations under the broader collaborative process and the implementation of this bill.

Clause 11 stipulates that the Minister must report to Parliament on the design of the consultations under the collaborative process with First Nations and other interested parties on issues relating to Indian registration and Band membership within five months of the Royal Assent of this bill. These consultations must be launched within six months of the Royal Assent of this bill, and will include issues relating to: adoption; the 1951 cut-off; the second-generation cut-off; unknown/unstated paternity; enfranchisement; the continued federal role in determining Indian status and band membership; and First Nations' authorities to determine band membership.

The consultations must consider the impact of the Charter, the United Nations Declaration on the Rights of Indigenous Peoples and, if applicable, the Canadian Human Rights Act in regard to the issues for consultation.

Clause 11 also stipulates that the Minister must report to Parliament on the progress of the consultations within twelve months of the launch of the consultations. The report must include details regarding the following issues: adoption; the 1951 cut-off; the second-generation cut-off; unknown/unstated paternity; enfranchisement; the continued federal government role in determining Indian status and band membership; and First Nation authorities to determine membership.

Clause 11 also stipulates that all reports will be referred to the appropriate committees of the House of Commons and / or Senate related to Aboriginal Affairs.
Report to Parliament

12 (1) The Minister must, within three years after the day on which this Act receives royal assent,

(a) undertake the following reviews:

(i) a review of the provisions of section 6 of the Indian Act that are enacted by this Act in order to determine whether all of the sex-based inequities have been eliminated with respect to those provisions, and

(ii) a review of the operation of the provisions of the Indian Act that are enacted by this Act; and

(b) cause to be laid before each House of Parliament a report on those reviews that includes, if he or she determines that any sex-based inequities still exist with respect to the provisions of section 6 of the Indian Act that are enacted by this Act, a statement of any changes to the Indian Act that he or she recommends in order to reduce or eliminate those sex-based inequities.

Referral to committee

(2) The report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.

Clause 12 stipulates that the Minister must report to Parliament on the review of this bill within three years of the Royal Assent of this bill. This review will include a review of the provisions of section 6 enacted by this bill in order to determine whether all sex-based inequities in registration have been eliminated with respect to the provisions of section 6, and the operation of the provisions enacted by this bill.

The report will include whether sex-based inequities still exist in Indian registration and a statement by the Minister of any changes to the Indian Act that the Minister recommends, to reduce, or eliminate those sex-based inequities.
Publication

13 The Minister must publish every report laid before Parliament under sections 11 and 12 on the Department's website immediately after their tabling.

Clause 13 stipulates that the Minister must publish the reports to Parliament (referenced in clauses 11 and 12) on the Department's website immediately after the reports are presented in Parliament.
Same meaning

14 Words and expressions used in sections 11 to 13 have the same meaning as in the Indian Act.

Clause 14 ensures that the words and expressions used in sections 11 to 13 have the same meaning as in the Indian Act.
Coming into Force

Order in council

15 (1) This Act, other than sections 2.‍1, 3.‍1, 3.‍2 and 10.‍1, 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.

Order in council

(2) Sections 2.‍1, 3.‍1, 3.‍2 and 10.‍1 come into force on a day to be fixed by order of the Governor in Council, but that day must be after the day fixed under subsection (1).
Bill S-3 includes two separate paragraphs that determine when the amendments included in the bill become enforceable and can be applied.

Clause 15(1) allows for the bulk of the amendments outlined in the bill to take effect on a date set by order-in-council, but no later than December 22, 2017 and excludes the amendments outlined in paragraphs 2.1, 3.1, 3.2 and 10.1.

Clause 15(2) stipulates that the amendments as outlined in paragraphs 2.1, 3.1, 3.2 and 10.1 would take effect at a later date, after December 22, 2017, through a separate order-in-council.

The excluded clauses refer to the amendments that relate to the removal of the "1951 cut-off" to ensure that all descendants of Indigenous women who lost Indian status upon marrying a non-Indian man between 1869 and 1985 are entitled to registration on an equal basis with the descendants of Indigenous men in the same circumstances, regardless of whether or not they were born before September 4, 1951.

The removal of the 1951 cut-off would ensure the removal of additional sex-based inequities from registration provisions in the Indian Act. It does so by providing 6(1) status to 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 back to the 1869 Gradual Enfranchisement Act.

Parliament has ordered Canada to consult on how and when these amendments should take effect.
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