Unknown or unstated parentage
Find out about the new policy being developed to address the unknown or unstated parent issue in Indian registration.
What is the unknown or unstated parent issue?
Under the Indian Act, the registration of an individual is based on lineage from previously registered Indians and is dependent on the status of both parents. When Indian parentage is asserted in an application for registration, there may be situations where the parent, grandparent or other ancestor of the person in respect of whom an application for registration is made is unknown or unstated. These types of situations could negatively impact a person's ability to be registered as a Status Indian.
What is the Gehl decision?
On April 20, 2017, the Ontario Court of Appeal determined that the existing Indian Registrar's policy with respect to unknown or unstated parentage is unreasonable, as it imposes a high evidentiary burden and requires an applicant to disclose the identity of the parent, grandparent or ancestor, even in cases where such identity is unknowable.
The court recognized that women are disproportionately disadvantaged by the evidentiary requirements in proving paternity. The court also found that the Indian Registrar's policy falls short of what is required to address circumstances where women cannot or will not disclose paternity.
To find out more about the Gehl decision, visit Gehl v. Canada (Attorney General), 2017 ONCA 319.
What is the amendment to Bill S-3 in response to the Gehl decision?
In response to the Gehl decision, 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 amended to include a new provision in the Indian Act to address the issue of unknown or unstated parentage.
The new provision, now in force, provides flexibility for applicants to present various forms of evidence and requires the Indian Registrar to draw from any credible evidence every reasonable inference in favour of applicants in determining eligibility for registration in situations of an unknown or unstated parent, grandparent or other ancestor.
What is the new policy on unknown or unstated parentage?
In addition to the Government of Canada's amendment to Bill S-3 in response to the Gehl decision, the Office of the Indian Registrar has adopted a new policy on unknown or unstated parentage.
The new policy aligns with the amendment to Bill S-3 and seeks to address cases of serious evidentiary difficulties in proving parentage. It provides the following rules to be applied by the Indian Registrar when considering applications for registration in situations of unknown or unstated parentage:
1. Flexibility in the types of evidence that can be submitted
Any relevant document can be submitted to establish Indian parentage, including but not limited to:
- an amended long-form birth certificate
- statutory declarations
- census records
- court documents
- church, school and hospital records
- band council resolutions
The Indian Registrar must consider all relevant evidence and assess the evidence in a manner that acknowledges the challenges of obtaining certain evidence, such as historical evidence, and take into account specific and personal issues that may be brought forward by individuals to justify their inability or unwillingness to establish the identity of a parent, grandparent or ancestor.
2. Balance of probabilities
Indian parentage is to be decided on the standard of balance of probabilities. The determination must answer this question: Has the applicant established that it is more probable than not that the parent, grandparent or ancestor is, was or would have been entitled to be registered?
In making the determination, the Indian Registrar must draw from the evidence that was found to be credible every reasonable inference in favour of the applicant.
Where an applicant is unable to establish or unwilling to disclose the identity of a parent, grandparent or ancestor, the Registrar must determine, based on the available evidence, whether it is more probable than not that the parent, grandparent or ancestor is or was entitled to registration, without requiring the applicant to establish the identity of the parent, grandparent or ancestor.
If the evidence provided allows the Indian Registrar to find that it is more probable than not that a parent, grandparent or ancestor is or was eligible for registration, this parent, grandparent or ancestor must be considered entitled to registration for the purpose of determining the applicant's eligibility.
For any questions or comments on what the Government of Canada is doing to address situations of unknown or unstated in Indian registration, please contact: IRIPMNationalSupport@canada.ca.