Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship, Consultation Guide

The consultation guide is available in select Indigenous languages:

To request a copy of the consultation guide in one of the languages above, please email us at aadnc.fncitizenship-citoyennetepn.aandc@canada.ca or contact us:

Toll-free: 1-855-833-0033
Fax: 403-292-5393
Crown-Indigenous Relations and Northern Affairs Canada
New Service Offerings
25 Eddy Street, 6th Floor, Room 196
Gatineau, QC K1A 0H4

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Privacy

Any involvement in the collaborative process will be voluntary.

Participants' names or other identifiers will not be recorded by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). However, First Nations and Indigenous organizations may choose to record their consultation sessions if participants consent to it. General summaries of what is said or written during the collaborative process will be published online but will not include identifying information.

Minister's special representative

In June 2018, Minister Carolyn Bennett appointed Claudette Dumont-Smith as her special representative to lead the consultations to ensure they account for and reflect the diversity of viewpoints of the participating individuals and communities.

In this role, Dumont-Smith will lend her expertise and lead various consultation activities including regional events, expert discussion panels and community meetings where First Nations and Indigenous groups will come together to discuss the issues at the heart of the collaborative process.

Biography of Claudette Dumont-Smith

Additional ways to participate

Participants can take part in this collaborative process in many ways, such as:

Additional information is included in the information presentation package on the collaborative process, consultation plan and fact sheets.

For further information or to get in contact with the Minister's Special Representative:

fncitizenship@canada.ca
Toll-free: 1-855-833-0033
Fax: 403-292-5393

Crown-Indigenous Relations and Northern Affairs Canada
New Service Offerings
25 Eddy Street, 6th Floor, Room 196
Gatineau, QC K1A 0H4

Purpose

This guide provides context for facilitators and organizers on the key areas for discussion in the consultations. It includes general information, details on the three content streams and discussion questions. Facilitators may wish to expand on this guide to discuss topics on Indian registration, band membership or First Nation citizenship that are important to their communities.

This guide should be used together with the fact sheets for the collaborative process on Indian registration, band membership and First Nation citizenship:

The documents work together to provide background information for facilitators and participants in the process.

This document was developed in close partnership with the Indigenous advisory panel composed of members from national Indigenous organizations. This panel was created in May 2018 to review documents, provide suggestions and assist CIRNAC in developing materials to use during the collaborative process.

Why the Government of Canada wants to hear from you

The Truth and Reconciliation Calls to Action (PDF version) and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples support the elimination of the Indian Act which is outdated and reflects 19th century colonial assumptions about First Nations.

The Government of Canada wants to work with First Nations on a nation-to-nation basis to find the best way to get rid of the Indian Act and transfer the exclusive responsibility back to First Nations for the determination of their members or citizens.

Since the implementation of the first Indian Act in 1876, the federal government gradually took control of determining who was an Indian under legislation.

The 1951 amendments to the Indian Act under An Act Respecting Indians created the Indian Register and gave the Indian Registrar exclusive authority over registration of Indians under the Indian Act.

Eligibility for Indian registration was based on the male genealogy line, which created a number of sex-based inequities within the Indian Act. Despite the amendments to the Indian Act in 1985 (Bill C-31) and 2011 (Bill C-3), some sex- based inequities remained.

Collaborative process on Indian registration, band membership and First Nation citizenship

In August 2015, a decision was rendered in the Descheneaux case by the Superior Court of Quebec. It declared key provisions of the Indian Act inoperative as they unjustifiably violated equality rights under the Canadian Charter of Rights and Freedoms. These provisions perpetuated sex-based inequities in eligibility for Indian registration between male and female descendants.

The Descheneaux decision highlighted residual sex-based inequities in Indian registration following the 1985 and 2011 amendments to the Indian Act. It also brought to light long-standing broader issues relating to Indian registration, band membership and First Nation citizenship.

In July 2016, the Government of Canada launched its approach to respond to the Descheneaux decision. It includes two parts:

  • legislative changes to immediately amend the Indian Act
    • 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), received royal assent on December 12, 2017
  • a collaborative process on Indian registration, band membership and First Nation citizenship, launched on June 12, 2018

Between October 31, 2017 and March 31, 2018, the Government of Canada conducted the co-design of the collaborative process. We received input from Indigenous groups and individuals on the subject matters to be discussed and the activities to be undertaken. The input received during the co-design, together with the requirements under Bill S-3, has informed the content of the collaborative process.

There are a number of issues relating to Indian registration which were raised during co-design, including those that are based on family status, marital status and ancestry or date of birth. These include:

  • enfranchisement
  • adoption
  • the 1951 cut-off
  • the second-generation cut-off in the Indian Act

The collaborative process is in line with Canada's commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous peoples and is an opportunity to discuss the best ways to address these issues and to end the role Canada plays with respect to Indian registration, band membership and First Nation citizenship.

"The whole issue of membership and registration we want eventually to be determined by nations themselves. This isn't something Canada should decide in the way that the Indian Act was written: that we decide who has status and who doesn't have status. We want to get out of this line of business. That's why it's exciting to actually get it right, as in, what would that look like?"

Carolyn Bennett, Minister of Crown-Indigenous Relations, INAN Committee – December 5, 2016

Discussion streams

Three streams of discussion were outlined for the consultation during the co-design and through Bill S-3 as outlined below. Communities and organizations can include other areas they want to discuss during the collaborative process in relation to Indian registration, band membership and First Nation citizenship.

1. The removal of the 1951 cut-off from the Indian Act

Discussions should focus on the implementation of the delayed coming-into-force clauses in Bill S-3 relating to the removal of the 1951 cut-off. First Nations are being consulted on:

  • how best to implement the changes
  • the timeline for the implementation
  • resources that are required
  • how Canada can address concerns
  • any unintended consequences

What is the effect of removing the 1951 cut-off?

Once in force, all descendants born prior to April 17, 1985 (or of a marriage that occurred prior to that date) of women who were removed from band lists or not considered Indians because of their marriage to a non-Indian man will be entitled to 6(1) status. This will include circumstances prior to 1951 and will remedy inequities back to the 1869 Gradual Enfranchisement Act.

The removal of the 1951 cut-off will significantly increase the number of individuals eligible for Indian status and band membership. This could result in significant pressure on First Nation communities' resources, programs and services, and culture.

Additional information is included in the fact sheets.

Discussion questions:

  • How will the removal of the 1951 cut-off impact you, your community, organization or group?
  • How can the potential impacts of the removal of the 1951 cut-off be addressed for you, your community, organization or group?
  • How can the Government of Canada assist in addressing the impacts of the removal of the 1951 cut-off?
  • How soon would you want to see the removal of the 1951 cut-off implemented?

2. Remaining inequities related to Indian registration and Band membership under the Indian Act

Removing remaining residual inequities related to First Nation registration and band membership could be dealt with through legislative reform while Canada and First Nations work together toward the ultimate goal of removing Government of Canada authority to define First Nations.

Discussions should focuson issues such as, but not limited to:

  • adoption
  • the second-generation cut-off
  • enfranchisement
  • related issues of resources and impacts on communities

What are the remaining inequities related to registration and membership under the Indian Act?

The courts have generally dealt with sex-based inequities in the Indian Act. Other issues were identified during the Parliamentary debates on Bill S-3 and the co-design phase that impact First Nations in regard to Indian registration, band membership and First Nation citizenship.

Issues where inequities could be identified include but are not limited to:

  • adoption
  • second-generation cut-off
  • unknown/unstated paternity
  • enfranchisement
  • voluntary de-registration
  • categories in Indian registration
  • cross-border issues
  • children of same sex parents
  • non-cisgender identities as it relates to Indian registration and band membership

Additional information is included in the fact sheets.

Discussion questions:

  • Which of these issues is of concern for you, your community, organization or group?
  • Is there an inequity related to this issue?
  • Why do you think that there is an inequity for this issue?
  • How can this inequity be addressed or fixed?
  • Are there other inequities that need to be discussed? What are they?
  • What would you recommend for the next steps going forward?

3. First Nations' exclusive responsibility for determining membership/citizenship (moving beyond the Indian Act)

Discussions should focus on how First Nations will exercise exclusive responsibility for the determination of the identity of their members or citizens.

What is First Nations' responsibility for determining membership/citizenship?

Under the Indian Act, the Government of Canada has exclusive control over the registration of status Indians. Bands also have the option to either have the Indian Registrar maintain their band list by adding people automatically when they are registered under section 11 of the Indian Act, or to determine their own membership under section 10 of the Indian Act.

First Nations have previously expressed that control over Indian registration, band membership and citizenship should be under First Nation authority and not under control of the Indian Act.

Additional information is included in the fact sheets.

Discussion questions:

  • Should First Nations take on the exclusive responsibility for determining their membership/citizenship? Why or why not?
  • What other groups, organizations or bodies could exercise the responsibility for determining membership/citizenship other than First Nations? Should they? Why or why not?
  • What are the responsibilities, issues and concerns that are part of defining membership/citizenship for you, your community, organization or group?
  • How do you think that First Nations could take on the responsibility for defining membership and citizenship (if this is not already happening)?
  • When could First Nation begin to take on this responsibility?
  • What would you recommend as the next steps going forward?

Timelines

Reporting

Annex A: Additional questions

Facilitators may want to consider using these optional technical questions addressing the issues raised in the three consultation streams during a consultation session. For additional information, facilitators can consult the fact sheets. Information collected on these questions will provide background and help CIRNAC understand the issues in more detail.

1951 cut-off (stream 1)

  1. What impacts should the Government of Canada consider with respect to the removal of the 1951 cut-off and the related increase in band membership?
  2. How should program funding be adjusted to respond to the removal of the 1951 cut-off?
  3. What could the impacts be of the removal of the 1951 cut-off on band elections, voting and referendums?
  4. Should your band take control over its membership list before the 1951 cut-off is removed from the Indian Act?

Second generation cut-off (stream 2)

  1. Does the second-generation cut-off have discriminatory effects?
  2. Should there be a second-generation cut-off?
  3. Should there be a cut-off at the third, fourth or fifth generation? What are the positives or negatives to having either: a limited generation cut-off, or multiple generations before cut-off?
  4. Should there be a strict rule of having two Indian parents to register a child for status, membership or citizenship?
  5. Should there be a one-parent rule to register a child for status, membership or citizenship?
  6. Should the second-generation cut-off strictly apply to status registration and not band membership? Or should it apply to both or neither?
  7. Should there be a different means to identify First Nation membership, e.g. cultural connection?
  8. Should there be a cut off? What would removing the second generation cut-off mean for your community and available resources?

Unknown or unstated parentage (stream 2)

  1. What type of evidence or proof should be required for cases of unstated parentage? For cases of unknown parentage?
  2. Are there any other issues or considerations that should be considered relating to unknown or unstated parentage when applications are assessed and reviewed?
  3. Should a First Nation community be involved in the process? If so, how?

Enfranchisement (stream 2)

  1. What situations are you aware of where someone is impacted by not being entitled to registration due to an ancestor being enfranchised?
  2. What would be the impacts on your community if all inequities related to enfranchisement were removed from the registration provisions?

Deregistration (stream 2)

  1. What sort of evidence/assurances should the government obtain from individuals who wish to be deregistered? If any?
  2. What should the requirements be to allow deregistration from the Indian Register?
  3. How could the Registrar remove someone by request while ensuring that the negative impacts on descendants are avoided?

Gender identity and registration for Indian Status (stream 2)

  1. Are there any issues with removing the sex designation on the Secure Certificate of Indian Status?
  2. Should an additional gender marker be added to the Indian registration system? What would be appropriate? For example, other federal/provincial departments have given Canadians the option to indicate "X" as a gender marker.
  3. What term should be used for non-cisgender identities as it relates to registration under the Indian Act?

Indian registration for children of same-sex parents (stream 2)

  1. Apart from making registration application forms gender neutral, how could applicants with same-sex parents be better accommodated?

Registration and the Canada-United States border (stream 2)

  1. Does the Canada-United States border impact your registration and membership in your community and your relations with family and/or affiliated communities in the United States?
  2. In relation to movement across the border, what potential changes to registration and membership would you like to see and/or might you be concerned about?

Adoption in Indian registration (stream 2)

  1. Should Canada adopt a national policy on adoption for registration under the Indian Act? What would this policy look like? How would this work with provincial and territorial adoption laws?
  2. Are there any problems or issues regarding custom adoption? Are there any problems or issues in recognizing custom adoption for the purpose of Indian registration?

First Nations' responsibility for determining membership/citizenship (stream 3)

  1. Moving forward, what should the Government of Canada's role be when it comes to determining Indian status and band membership?

Annex B: Glossary of terms

The following list provides a general understanding of common terms used by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) within the consultation guide. This list is a brief overview outlining the way that these terms are being used by CIRNAC; the provisions of the Indian Act, its regulations, other federal statutes and their interpretation by the courts take precedence over the content of this list.

Aboriginal people: A collective name for the original peoples of North America and their descendants. The Canadian Constitution recognizes three groups of Aboriginal people: Indians (commonly referred to as First Nation(s)), Métis, and Inuit. These are three distinct peoples with unique histories, languages, cultural practices and spiritual beliefs.

Adoption: Typically, a legal process that creates a legal parent-child relationship between persons which previously did not legally exist. According to the Government of Canada, there are three recognized types of adoption in relation to registration under the Indian Act:

Under 1985 amendments to the Indian Act, the definition of a child includes a legally adopted child and a child adopted in accordance with Indian custom.

Band: As defined by the Indian Act, a band is a body of Indians, for whose collective use and benefit have common lands set aside or money held by the Crown, or declared to be a band for the purposes of the Indian Act. Each band has its own governing band council, usually consisting of one chief and several council members. Community members choose the chief and council by election, or sometimes through custom means. The term "First Nation" has become the preferred term to replace both the adjective "Indian" and the collective noun "band".

Band list: A list of names of members of a First Nation that is either maintained by the First Nation under sections 8 and 10 of the Indian Act or by CIRNAC under sections 8, 9, and 11 of the Indian Act.

Band membership: An individual is considered to have band membership when their name is added to a band list. Because many First Nations have adopted their own membership codes, not all registered Indians are able to obtain membership in a First Nation. Registered Indians who are not members of any First Nation are listed in the General List maintained by the Indian Registrar.

First Nation citizenship: First Nation citizenship can be seen through the inter-related lenses of nationhood, nation-affiliation, nation-(re)building and self-determination, and not exclusively within the meaning of an Indian Act band, or necessarily a local First Nation community. Typically, First Nation citizenship refers to the position of being part of a community, society or nation. First Nation citizenship is variously described and understood by diverse Indigenous Nations throughout Canada.

First Nation(s) and/or First Nation(s) People: "First Nation" has become the accepted term to replace both the adjective "Indian" and the collective noun "band". For example, I am a First Nation(s) person; he is a member of a First Nation; we have engaged with First Nations. "First Nation(s) people" may also refer to both status and non-status "Indian" peoples in Canada. Many communities also use the term "First Nation" as part of their official name.

Indian: Indian is used as a legal term defined by the Indian Act as a person who, pursuant to that Act, is registered or entitled to be registered as an Indian. Indians are a statutorily defined subset of Indigenous people. Despite the fact that the term is outdated and often seen negatively, because the word and concept remain in the Indian Act, "Indian" continues to be used when referring to those individuals identified in the Indian Act.

Indian Act: The Indian Act is a Canadian federal legislation that sets out certain federal government obligations with respect to various matters including reserve lands, Indian moneys, and estates, as well as for band governance and the individual rights of registered Indians and band members. There are also several associated regulations made under the authority of the Indian Act.

Indian Register: The Indian Register is the official recorded list of the names of all persons who have applied for and are entitled to registration as an "Indian" under the Indian Act. It is a subset of the information contained in the Indian Registration System (IRS), which is the electronic database into which all registration-related information is entered and maintained. The Registrar, employed within CIRNAC, has the sole statutory obligation to maintain the Indian Register.

Indian Registrar: The Indian Registrar, employed within CIRNAC, has the sole statutory obligation to apply the Indian Act to determine who is entitled to Indian registration and band membership and whose names may be added, omitted or deleted from the Indian Register and bands lists maintained in CIRNAC. The Indian Act does not afford the Registrar any discretion in applying the registration provisions, including the interpretation of prior Indian Acts. The Registrar simply applies the criteria set out in the Indian Act to determine whether an individual is entitled to be registered in accordance with the Act.

Indian status: "Indian status" is commonly used to describe someone who is "registered" under the Indian Act. For ease of reference, every time the word "status Indian" appears, it can usually be replaced by the word "registered Indian", to infer its legal meaning. It is common to refer to a person that "has status" if they are "registered as an Indian under the Indian Act". A person who is not entitled to be registered as an Indian under the Indian Act but self-identifies as First Nation, is referred to as a "non-status Indian".

Inequities: A general term that refers to situations of unfairness, injustice or situations that contain a bias.

Non-status Indian: A person who self-identifies as First Nation but is not registered or entitled to be registered as an Indian under the Indian Act (see definition of Indian).

Registered Indian: A person who is registered as an Indian under the Indian Act and who has his/her name entered on the Indian Register or is entitled to be registered. The Act sets out the requirements for determining who is an Indian for the purposes of the Indian Act (see Status Indian).

Registration: Eligible persons can apply for registration under the Indian Act to have their names entered on the Indian Register. Registration is voluntary. The Indian Registrar maintains a list of registered individuals eligible for programs and benefits associated with status. This is the act of registration under the Indian Act.

Status Indian: A term not found in the Indian Act but commonly used in place of "registered Indian" or someone who is entitled to be registered (see Registered (Status) Indian and Indian Status).

Annex C: Tips for facilitators

  1. Preparation: It is important to understand what the goal of the session is and what the outcome should be. It is recommended that the discussion questions and fact sheets be read in advance. Create a plan based on what you know about the participants – will it be better to have one big group discussion, or will smaller groups discuss and share with the larger group? Should reflective time be built into the process where individuals have time to answer the questions on their own before discussions occur?

    Make sure you are prepared with materials including: handouts of the fact sheets and discussion questions, paper, pens, flip charts, and/or a computer/projector/screen. Have paper, pens, sticky-notes and the materials on the table for people to use and read. Do not assume participants will bring their own.
  2. Create the right environment: Make sure there is plenty of space, informal seating, natural light and tables at the side of the room for small working groups, where needed. Ensure that sufficient time has been arranged with the participants to achieve their goals. You are going to have a variety of perspectives in the room. This means you are going to have different ways that people feel most comfortable contributing. To make the most of everyone's perspective, mix up how you run sessions by switching between exercises that ask for individual reflection and group discussion.
  3. Use name tags/placards: This helps you and all participants know who is speaking. It can establish a connection between participants when they are used in combination with a name sharing ice-breaker at the beginning of session. It should be noted to participants that individual names will not be used in reporting.
  4. Ensure the expected outcome(s) or objectives are clear: Start the session by reviewing the agenda and the objectives with the group. In an effective group session, everyone will walk out feeling that the objectives have been met. Make sure break times are clear and try to adhere to the timing as much as possible. Ask about what expectations the participants have of you and each other. Ask them to list their expectations or goals for the meeting. List these where it is visible to all. Agree to "accepted behavior" or "ground rules" for the day.

    Clearly outline your role as the facilitator including:
    • time keeper: manage time, be clear about time allotments and stick to them, start and stop on time
    • moving the dialogue forward: your job is to get through the discussion questions so you need to ensure the conversation keeps moving forward
      • this will likely include stopping some discussions
    • engage all participants: ensure that everyone can have a voice during the discussions but do not force participation if someone is not comfortable with sharing ideas with the group as participation is voluntary
      • participants should be reminded of all the ways to participate
  5. Be flexible: As facilitator you need to ensure the agenda is achieved, but it may be clear from your participants that some shuffling may be required. If you do switch things up, tell people in advance if possible, or note that a diversion from the agenda has occurred and how you will move back on track. Unexpected events will arise; be flexible and able to shorten an activity, add some important language to a definition or change the format of your session.
  6. Gauge the participation: Your role as a facilitator is to make people feel as comfortable as possible. Set a tone for the behaviors and attitudes of the session. Don't be afraid of silence. Allow people time to reflect on what you have said and think about what they may want to say. Wait 5-10 seconds to give people that chance before moving on to something else. Talk less, listen more. Seek to engage those who don't participate through small group discussions but don't force them to do so. Have some ideas on how to get people moving, bring energy up, focus the group, lighten the mood, or get people thinking creatively.
  7. Ask open-ended questions: Guide the conversation by asking open-ended questions to get people talking. Encourage dialogue and invite ideas, opinions and discussion. Since open-ended questions have no 'yes' or 'no' answers, participants are invited to engage with the content and each other, explore and discuss the topics for themselves. Ask people to expand on brief answers or ask others to add to what was said.
  8. Affirm all comments: Participants need to know that every comment, regardless of how strange or different, is appreciated. Do this through active listening and mirroring (repeating back), paraphrasing (summarizing the comment in different words) and/or listing or tracking the comments visually. When they know that all comments are good they will be encouraged to share. Be present and listen to understand what was said. Listen to each point that is made, evaluate it and affirm that it was heard. This takes a lot of energy. It is essential to make sure that everybody's perspective is considered and you can weave them together towards a solution.
  9. Visually represent the discussions: If possible, use flip charts, notes on a screen, or something else to indicate that the ideas are being heard and recorded. If this is not possible, record the sessions. If the community session is recorded, be sure to inform participants and obtain their consent. Someone should also be taking notes throughout the process. This will aid in moving towards concrete ideas and keeping participants on track.
  10. Have a note taker: Even if you are using visual representation to capture the session, having someone whose only role is to take notes and capture what is being said, and the context of the discussions, is important. Note takers can also record the sessions to fill in their notes after the fact. This will be helpful when preparing the final summary report to be submitted to the Department.
  11. Have a "parked issue" sheet: Have a way to park a conversation which, although valuable, may be taking the session off track. This can be done with a big sheet of paper on the wall, flip chart, or through sticky-notes. If you have to cut someone off or halt a discussion, you can record the issues. This allows you to set up separate sessions or work streams to tackle this in the future and goes some way to help people feel like they are being listened to.
  12. Be a neutral facilitator: Your role is to focus on the process, the session objectives and the groups' experience overall. In this role, you do not engage in the conversations or take time from the sessions to share your own viewpoints. Again, it is about listening and moving the process forward.
  13. Provide support: Some of the issues for discussion under this process could be traumatic for some participants. It is recommended that you provide mental health support of some kind during the session by an Elder or mental health professional. Other forms of support could include having a quiet place for someone to go to re-group or options for someone to share information privately.
  14. Get a recommendation from the group: You need to make sure that the group provides their thinking on the next steps for each stream of questions. This way the participants have ended with a concrete action or series of actions, which is often a satisfying way to complete the session.
  15. Prepare a summary report: A summary report is a requirement for anyone who is facilitating their own sessions and receiving funding from CIRNAC. In accordance with the consultation guide and funding requirements, a summary of the sessions must include feedback obtained on the discussion questions and what was heard in the summary session. As a facilitator, you need to keep this in mind with how you organize, run and complete your sessions.
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