Ending Discrimination under the Indian Act Once and for All-The Sad Tale of a Piece of Social Engineering that Went and Stayed Wrong

Saturday, 5 August 2017

PART - I

The trigger: The Indian Act of 1869

It all started in 1868, the year after Confederation when Parliament passed the first Indian Act although the legislation did not bear that title. It was titled: An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indians.  https://www.aadnc-aandc.gc.ca/eng/1100100010193/1100100010194

It granted Indian men and women the same rights. Section 15 of the Act read:

15. For the purpose of determining what persons are entitled to hold, use or enjoy the lands and other immoveable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, the following persons and classes of persons, and none other, shall be considered as Indians belonging to the tribe, band or body of Indians interested in any such lands or immoveable property :

Firstly. All persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and their descendants;

Secondly. All persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and the descendants of all such persons ; and

Thirdly. All women lawfully married to any of the persons included in the several classes hereinbefore designated ; the children issue of such marriages, and their descendants

It did not take long, for the men to complain about the women marrying non-Indians and bringing them into the reserves whom they compared  to what one would call today “carpetbaggers”.

The complaints were, not surprisingly, duly and dutifully noted by the men in government ,and in 1869 the Act was amended accordingly. The 1869 legislation was titled An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42. https://www.aadnc-aandc.gc.ca/DAM/DAM...HQ/.../a69c6_1100100010205_eng.pdf

 

The 1869 amendment to section 15 read:

6. “Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act ; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged, and become a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father's tribe only."

Once discrimination  based on gender set foot  in the Indian Act,  the problem compounded as the time went on and even past the 1985 amendments made to the Indian Act as a result of the enactment of the Charter of Freedoms and Rights (“The Charter”).  http://laws-lois.justice.gc.ca/eng/acts/i-5/FullText.html

 

                                    PART-II

Further Compounding the Problem; The 1951 Amendments to the Indian Act

(N. B. This Part and Part III are taken from Megan Furi, Jill Wherrett, Indian Status, Band Membership Issues ,Library of Parliament, Political and Social Affairs Division, February 1996, Revised February 2003, www.parl.gc.ca/Content/LOP/researchpublications/bp410-e.htm 

(The few minor editorial changes to the text do not in any way alter the intent and meaning of the text. The extensive footnotes of their paper has been removed due to the constraints of space.)

 

Of specific relevance to the issue at hand, in 1951 the Indian Act was amended. “The amendments to the Indian Act in 1951 established a centralized register of all people registered under the Act.  Section 11 of the Act designated those people entitled to be registered, and section 12 those people not entitled. “Status” or “registered” Indians were also generally band members, with rights under the Indian Act to live on reserve, vote for band council and chief, share in band moneys, and own and inherit property on reserve.

Section 12(1)(b) provided that a women who married a non-Indian was not entitled to be registered.  In contrast, section 11(1)(f) stated that the wife or widow of any registered Indian man was entitled to status.  Pursuant to section 109(1), if a male status Indian was enfranchised, his wife and children would also be enfranchised.  Section 12(1)(a)(iv), known as the “double mother” clause, provided that a person whose parents married on or after 4 September 1951 and whose mother and paternal grandmother had not been recognized as Indians before their marriages, could be registered at birth, but would lose status and band membership on his or her 21^st birthday.”

 

                                       PART-III

First Partially Successful Attempt to Address Discrimination Based on Gender: Section 15 of the Charter of Rights and Freedoms and the 1985 amendments to the Indian Act a.k.a Bill C-31

The discriminatory provision concerning women who lost their Indian status and therefore their  entitlement to band membership in these circumstances as a result of marrying someone who did not have Indian status, including a non-status Indian (bizarre as it may sound), survived until section 15 of the Charter of Freedoms and Rights (“Charter”)came into effect in 1985.

In 1985 Indian Act was amended in the light of section 15 of the Charter of Freedoms and Rights. Section 15 reads:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

                                                                                                                         [The amendments] “ passed on 17 June and given Royal Assent on 28 June 1985.  The Bill was backdated to 17 April 1985 so that the Indian Act would conform to the equality provisions of the Charter of Rights and Freedoms.  The amendments were intended to remove discrimination, restore status and membership rights, and increase control by bands over their affairs.  The bill represented a compromise between the positions of Aboriginal women and non-status Indian groups, and the national status Indian organization, the AFN (The Assembly of First Nations).”

The federal government continues to maintain control over who is registered as an Indian and the rights that flow from registration. 

 With respect to registration,” section 6(1) continues the entitlement of persons registered as Indians before 1985, and opens up the possibility of reinstatement of women who lost status through marriage, children enfranchised as a result of their mother’s marriage, persons not included in the register under the “double mother” clause, and illegitimate children of Indian women born prior to 14 August 1956.This section also provides an opportunity for first-time registration of people previously without Indian status, and abolishes enfranchisement.

Under section 6(1)(f), a person with two parents who are or were entitled to be registered is eligible for registration.

Section 6(2) permits the registration of persons with only one parent entitled to be registered under section 6(1).  The Act does not permit the registration of individuals with one non-status parent and one parent entitled to registration under section 6(2).  As a result of this provision, known as the “second generation cut-off rule,” status would be terminated after two successive generations of intermarriage between Indians and non-Indians.”

With respect to band membership “Prior to 1985, automatic entitlement to band membership usually accompanied entitlement to Indian status.  The 1985 amendments recognized the rights of bands to determine their own membership.  As a result, persons may possess Indian status, but not be members of a band.  Section 10 enables First Nations to enact their own membership or citizenship codes, according to procedures set out in the Indian Act.  Bands must follow two principles:  the majority of the band’s electors must consent to the band’s taking control of membership, and to the set of membership rules (which must include a review mechanism); and the membership rules cannot deprive a person of previously acquired rights to membership.  Once the band controls its membership list, Indian and Northern Affairs Canada (INAC) has no power to make additions or deletions, and no further responsibilities regarding the band list.

As of 28 June 1987, bands that chose to leave control of membership with the department were subject to the provision that a person who has Indian status also has a right to band membership.  Membership lists for these bands are maintained by the department.  These bands may still go on to take control of their own membership registration, but the rights of those individuals already registered and added to the band list are protected.”

One of the new powers granted to the bands pursuant to the 1985 amendments is the “power to regulate which band members and other individuals live on reserve, the provision of benefits to non-member spouses and children of band members living on reserve, and the protection of dependent children’s right to reside with their parents or guardians on reserve.

Because some people accepted into band membership under band rules may not be status Indians, the amendments also clarified which sections of the Indian Act would apply to such members.  Various sections relating to community life apply, while others, affecting Indians as individuals, do not.”

[The 1985 amendments] “served to eliminate some aspects of sexual discrimination in the Indian Act and to provide bands with greater control over elements of reserve life, it left several issues unresolved and introduced new problems.  Some of these were anticipated prior to, or emerged soon after, the bill’s passage, while others continue to become evident.”

“The issues associated with [these amendments] and, more broadly, with Indian status and band membership raise fundamental social and political questions about what it means to belong to a community and who has the right to determine membership.  Conflicts between reinstated women and communities have highlighted these questions.  Linked to status and membership are also practical issues regarding the provision of programs and services, and the additional costs created since those who attain status become eligible for federal programs and services.

[In terms of changes in the  size of the Status Indian population]. “Since the 1985 amendments were enacted , Indian Affairs(IA) has received approximately 232,928 requests for registration.  By 31 December 2000, 114,512 people had gained Indian status based on Bill C-31 amendments, while 44,199 applications had been denied.

In the first five years (1985-1990), the status Indian population rose by 19% as a result of the amendments.  Women represented the majority of those who gained status, particularly of those who had status restored. By 31 August 1995, the status Indian population had risen from its 1985 level of 360,241 to 586,580.  This was an overall increase of 61.4%, 27% of which came from new registrations. In 2000, registrants of the amendments made up 17% of the Indian register.

The number of registered Indians was originally expected to grow by some 56,800 as a direct result of the amendments. The actual increase, therefore, has far exceeded that anticipated.  In the years immediately after the amendments, Aboriginal groups criticized the   IA for grossly underestimating the initial number of applicants, for having an inadequate and inefficient registration process, and for the complexity of the documentation required to apply for status.

Although the registrants under [the amendments] helped to increase the status Indian population significantly, by the early 1990s the percentage of change in the status Indian population began to return to levels observed before the 1985 amendments.  Whereas the registrants [under the amendments] had accounted for 48% of the growth in the status Indian population in 1988, they accounted for only 2% of the growth in that population in 2000.

Because most registrants [under the amendments] live off reserve, the amendments have added substantially to the off-reserve status Indian population, which more than doubled between 1981 and 1991. IA estimated that 10% of registrants [under the amendments] would reside on reserve.  Before the bill’s introduction, seven out of ten status Indians lived on reserve.  In 2000, fewer than six out of ten lived on reserve.  The increase in the off-reserve population is largely attributed to the reinstatement of status under [the amendments]. 

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 “The most important target of criticism is the “second generation cut-off rule” that results in the loss of Indian status after two successive generations of parenting by non-Indians.  People registered under section 6(2) have fewer rights than those registered under section 6(1), because they cannot pass on status to their child unless the child’s other parent is also a registered Indian.  One criticism comes from women who, prior to 1985, lost status because of marriages to non-Indian men.  These women are able to regain status under section 6(1); however, their children are entitled to registration only under section 6(2).  In contrast, the children of Indian men who married non-Indian women, whose registration before 1985 was continued under section 6(1), are able to pass on status if they marry non-Indians.

Children of unmarried non-Indian women and Indian men are also treated differently according to gender.  Male lineage criteria in the legislation prior to 1985 permitted the registration of all such male children born before 1985.  After the passage of Bill C‑31, however, female children born to Indian men and non-Indian women between 4 September 1951 and 17 April 1985 became eligible for registration only as the children of one Indian parent.

The application of the amendments has also led to a situation in which members of the same family may be registered in different categories.  One example could occur in a family that enfranchised, and in which the mother is a non-Indian.  Under [the 1985 amendments], a child born prior to the family’s enfranchisement is eligible for registration under section 6(1), while a child born after enfranchisement is eligible only under section 6(2), since one parent is not an Indian.  This affects the ability to pass on status, because the latter child will be able to pass on status to his or her children only if their other parent is a status Indian.

With respect to the opportunity to regain band membership, some of the registrants[ under the 1985 amendments] have been granted automatic band membership, while others were granted conditional membership.  If a band decided to leave control over band membership lists with IA, or had not assumed control over membership, individuals with conditional membership were placed on the band list by IA.  However, if the band decided to take control of membership by 28 June 1987, these people could be excluded by the band’s membership code.

Membership is very important, because it may bring rights to live on reserve, participate in band elections and referendums, own property on reserve, and share in band assets.  It also provides individuals with the opportunity to live near their families, within their own culture.

In 1999, of the 610 First Nations [bands] in Canada, 360 First Nations had determined their membership under the provisions of section 11 of the Indian Act.  Another nine First Nations had developed their membership in accordance with the Cree-Naskapi Act.  One First Nation had determined its membership according to the provisions of the Sechelt Self-Government Act, while the Yukon Self-Government Act had determined the membership of another six First Nations.  The remaining 234 First Nations had chosen to determine their own membership under section 10 of the Indian Act.  Bands are free to develop membership codes with criteria very different from federal government rules for registration as a status Indian.  Band codes vary; some bands have open policies, while others, reluctant to accept new members, have enacted restrictive codes.  A review of the 236 codes adopted by First Nations from June 1985 to May 1992 identified four main types:  1) one-parent descent rules, whereby a person is eligible for membership based on the membership or eligibility of one parent; 2) two-parent descent rules, which declare that to become eligible, both of a person’s parents must be members or eligible for membership; 3) blood quantum rules, which base eligibility on the amount of Indian blood a person possesses (typically 50%); and 4) Indian Act rules, that base membership on sections 6(1) and 6(2) of the Indian Act.  Of these 236 codes, 38% used the one-parent rule, 28% had a two-parent requirement, 13% had blood quantum criteria, and 21% relied on the Indian Act.  Rules under the Indian Act also pertained to the First Nations that had not adopted membership codes.”

“Membership remains a politically contentious and sensitive issue.  While the rights of bands to determine their own membership is generally supported as an important step toward self-government, some women have had difficulties in exercising their rights as reinstated band members or in receiving services and benefits from their bands.  Soon after the passage of [ the 1985 amendments], cases came to light where women already living on reserves lost some of their benefits because their bands refused to provide services to reinstated women and their children until their band membership codes were passed.  In June 1995, the Canadian Human Rights Commission ordered the Montagnais du Lac-Saint-Jean band council to pay damages to four women who had regained their status under t[he amendments].  Prior to the passage of the bill, the band council placed a moratorium on various rights and services for reinstated members until a membership code was in place.  While the moratorium was later lifted, the Commission ruled that the women had been discriminated against.

There are a variety of reasons for bands’ reluctance to accept new members.  Some bands are concerned about taking in new members without guarantees of increased funding from government.  There is also a shortage of land, resources, housing, infrastructure, and other facilities on reserves.  Band governments’ concerns over sharing scarce resources have been a consistent issue in the debate over membership.  The Aboriginal Inquiry volume of IA’s 1990 report to Parliament stated that:

Band councils and aboriginal service providers resented the actions of government in imposing more numbers on limited financial and human resources and often displayed this resentment through unfair treatment of the registrants.  In some communities the treatment was overt and took the form of refusal to accommodate the needs of new registrants.  In other communities more subtle actions made it apparent to the new registrant that he or she was simply not welcome.  And in other communities bands welcomed the newly registered individuals but resented the imposition by government of new, more complicated processes.

Some bands, though not all, have used their new by-law powers in a restrictive manner.  Thus, while individuals may have been reinstated to status and qualified under membership codes, their rights may be limited through by-laws.  In a number of cases, residency by-laws have, in effect, prohibited newly registered individuals from taking part in developing membership codes, as rights to vote can be contingent upon living on reserve.”.

[The cost of implementing the 1985 have been substantial]. “The rapid growth in the status Indian population as a direct result of Bill C-31 had a major impact not only on federal programs and expenditures but also on Indian communities required to provide additional facilities and services.

Status Indians living on or off reserve are eligible for non-insured health benefits and may apply for post-secondary assistance.  For those living on reserve, the federal government provides funds for housing, elementary and secondary education, health services and social assistance.

[The 1985 amendments] “have resulted in a significant increase in post-secondary enrolment.  INAC introduced a post-secondary education program that made financial and instructional assistance available to encourage and support the participation of eligible First Nations people in post-secondary courses of study.  Between 1985-1986 and 1989-1990, the number of Bill C‑31 students rose from 446 (4% of the program) to 3,562 (19% of the program).  Over the same period, expenditures on Bill C‑31 students increased from $0.9 million to $27.9 million.

On reserve, the number of new residents compounded the already existing housing shortage.  After 1985, additional funding was made available to serve the new registrants.  Between 1986 and 1990, 20% of funded housing units on reserves were built with supplementary funds for [the amendments].  In 1989-1990, $41 million in the amendments supplements funded 1,353 new units, which represented 30% of the total on‑reserve housing expenditures.

Social development program expenditures for registrants [ under the amendments] were $27 million in 1989-1990, 7% of total expenditures in this field.  Costs for non-insured health benefits for [these] registrants rose from $2.5 million in 1985-1986 to $39 million in 1989-1990, 15% of total expenditures for status Indians under the program.

As of June 1990, program expenditures for these registrants in key program areas had amounted to $338 million.  In 1992-1993, IAs’s expenditures related to the  budget for the[1985 amendments] were budgeted at $206 million.  However, aboriginal organizations stressed that these funds would not be adequate to meet the needs created by the new amendments as additional demands had been placed on already underfunded programs.

The growth in the number of status Indians living off reserve as a result of  [the amendments] has also increased the need to clarify the responsibilities of federal and provincial governments in providing and funding the services required.  Problems have arisen, moreover, because many of the programs and funds for status Indians are available only to those who live on reserve.  Some of those who wished to live on reserve could not, however, because of a lack of services, such as housing.  Furthermore, despite the increase in services, many off-reserve registrants did not know how to access them and thus did not take advantage of them.  IA has been criticised for not making this information more readily available.”

The foregoing facts and figures ignore the substantial costs incurred by the government in responding to a number of lawsuits that contested the constitutionality of the 1985 amendments. One of these was the action began by Chief Walter Twinn (later also Senator Twinn) of the Sawridge Band and ( originally thee later two bands. The Twinn case , in which I represented the Crown on the first trial  went on for years. It  commenced in 1985 and the case was dismissed. On appeal, the Federal Court of Appeal allowed the Bands’ appeals on the grounds  that the purple prose of the trial judge created an apprehension of bias. The second trial began some time later and went on for a long while and frankly I do not know if  the case is still going in some form or another  or has been disposed of.

Looking into the future in the light of the 1985 amendments

All said and done, as Furi and Wherrett pointed out,

“Looking to the future, some fear that the general requirement for a child to have at least two grandparents who are entitled to be registered will lead to a decline in the status Indian population.  This is of particular concern in areas where there is a high rate of intermarriage. A 1992 report prepared for the Assembly of First Nations on the population impacts of [the amendments] projected that the registered Indian population will rise to 786,140 by 2036, after which it will begin to fall, returning to the current level of approximately 600,000 by 2091.” Megan Furi, Jill Wherrett,         Op.cit. supra.

As of the latest census of 2011, problematic in its design as it was, it was, the number of Status Indians stood at fewer than 700,000.

“Despite efforts to eliminate inequities through the amendments, the effects of past discrimination remain and new forms of discrimination have been created.  The amendments resulted in a complicated array of categories of Indians and restrictions on status, which have been significant sources of grievance.” Looking to the future, some fear that the general requirement for a child to have at least two grandparents who are entitled to be registered will lead to a decline in the status Indian population.  This is of particular concern in areas where there is a high rate of intermarriage. A 1992 report prepared for the Assembly of First Nations on the population impacts of [the amendments] projected that the registered Indian population will rise to 786,140 by 2036, after which it will begin to fall, returning to the current level of approximately 600,000 by 2091.”

In the discussion section that follows the foregoing narrative, Furi and Wherret make the following points:

“The debate over membership is complex and multifaceted.  A consideration of the issue leads to questions about what it means to belong to a community, about who has the right to define community membership, and about the changing nature of the Indian population.  For many years, externally imposed rules for status and membership have produced internal divisions within Indian communities.  The impacts of Bill C‑31 have further emphasized political, social and financial concerns and introduced new problems.

Indian communities see control over membership as an essential component of the right of self-government.  Communities have resisted externally imposed definitions of Indian status and rules for band membership, and emphasized the right of the group to define itself, while reinstated women and others whose membership has been limited have fought for their individual rights to be included in the group.(49)

Resistance to externally imposed rules for membership is also tied to concerns over scarce resources and to the protection of cultural integrity.  Because of their limited financial resources, some bands have had difficulty in accepting new members and providing their membership with an acceptable standard of living.  As one author has commented, “with fewer financial resources to access as each year passes, the possibility of having to accept more members who have a right to basic services and to have their rights respected is not promising.”

In one community, Kahnawake, efforts to preserve cultural integrity over the past three decades have proved controversial.  In 1981, the band adopted a membership code intended to preserve Mohawk culture and language and to discourage Mohawks from marrying non-Indians.  The code, which called for a moratorium on mixed marriages and a blood quantum requirement for membership, has produced divisions in the community between those who see it as a means to prevent assimilation, and those who view it as a form of discrimination.  It has led to several well-publicized disputes.  In the spring of 1995, the band council moved to prevent children with less than 50% Mohawk blood from attending band schools.  Other conflicts have arisen over reserve residency and access to reserve employment and services.  In 1996, the band began community consultations on its code, in an attempt to draft a revised membership code for ratification by the community.  After an extensive consultation process undertaken from 1996 to 1999, the Mohawk Council of Kahnawake released the final draft of the proposed membership law in February 2003.

The complexities of Indian status and band membership pose significant challenges for First Nations.  The status rules introduced by the new amendments, combined with band membership codes, have created different “classes” of Indians, a situation that is further complicated by residency on or off reserve.  As Clatworthy and Smith discuss in their study of the population implications of the [1985 amendments], membership codes based on one-parent descent rules will create band members without status who may exercise political rights associated with membership, but lack rights tied to Indian status.  Two-parent descent rules will lead to Indians registered under both sections 6(1) and 6(2), but without membership and associated political rights.  The authors anticipate that within 50 years, two-parent codes may disenfranchise approximately half of those people with Indian status who are registered by First Nations with two-parent codes.  In their view, “First Nations’ communities run the risk of encountering growing tensions and conflict around these inequalities.  Distinctions between ‘classes’ are likely to become embedded in the social and political life of First Nations.”

On reserve, conflicts between reinstated Indians and bands, such as those illustrated in Courtois, will likely continue.  With a large percentage of the status Indian population living off reserve, issues of the rights of off-reserve members, such as arose in Corbiere, will also continue to be significant.  In addition, high rates of intermarriage, and the possibility of having people with family ties to bands but with no status or membership, force consideration of the position of non-band members on reserves.  The Corbiere and Goodswimmer decisions place pressure on bands to recognize rights of non-resident band members, and to consider the rights of non-band members who live on reserves.  In their work, Clatworthy and Smith describe a range of problems associated with status and membership inequalities that may arise in communities.

This quagmire prompts questions about the adequacy of existing rules for defining members in self-governing First Nations communities and how self-governing First Nations will resolve conflicts over access to rights and services.  The federal policy on self-government announced in the summer of 1995 includes membership and the establishment of governing structures, internal constitutions, elections, and leadership selection processes in a list of matters for self-government negotiations. The policy also specifies that negotiations with groups residing on a land base must address the rights and interests of non-members residing on Aboriginal lands, and whether Aboriginal authority will be exercised over non-members.  Isaac suggests that the Sawridge decision raises serious concerns regarding the claimed inherent right of self-government.  While the federal policy recognizes the right of Aboriginal peoples to govern themselves in relation to matters internal to their cultures and identities, the decision concludes that the federal government has a right to regulate Indian control of band membership.  In April 2001, the federal government launched the First Nations Governance Initiative.  The intention of the initiative is to provide First Nations governments with the tools needed to provide their communities with representative governments that are accountable to their people.  While the initiative may resolve some self-government problems, it was not intended to address issues such as band membership and Aboriginal citizenship.

Status and membership issues pose difficult challenges for First Nations, and for the federal government in defining its relationship with First Nations individuals and communities.  Communities and governments will need to address both the internal conflicts and, over a longer term, the impacts of having an increasing number of Indians disenfranchised from the benefits associated with registration under the Indian Act.           

                                      PART-IV

Same old story (1): The McIvor Decisions, 2009

Note: The narrative under this part, save for minor changes such as removing references to other memoranda; adding emphasis to words and passages by using bold font or italics, and removing two comments of the Court of Appeal which have no bearing on the merits or on the outcome of the cases, is entirely  taken from various segments of  the Memorandum of R. Brent Lehmann, Ratcliff and Co.Lawyers to National Centre for First Nations Governance,Summary of the McIvor Decisions, June 14, 2009.  fngovernance.org/publication_docs/McIvor_review_060911.pdf

“McIvor v. Canada (the Registrar, Indian and Northern Affairs), 2007 BCSC 26 (the “Statutory Appeal”); McIvor v. Canada (the Registrar, Indian and Northern Affairs), 2007 BCSC 827 (the “Constitutional Case”); McIvor v. Canada (the Registrar, Indian and Northern Affairs), 2007 BCSC 1732 (the “Trial Order”); and McIvor v. Canada (Registrar of Indian and Northern Affairs) 2009 BCCA 153 (the “Appeal”)

“The McIvor decisions concern whether or not the registration provisions of section 6 of the current Indian Act discriminate against women. Before 1985, an Indian woman would lose her status if she married a non-Indian man, however, an Indian man would not lose his status if he married a non-Indian woman. Following political and legal pressure, the Indian Act sections relating to registration were amended in 1985, these amendments were known as “Bill C-31”. These amendments modified the entitlement provisions and are now found in section 6 of the Indian Act as follows: section 6(1)(a) confirmed status for those already registered; section 6(1)(f) gives status to individuals if both parents are registered; section 6(2) gives status to individuals if one parent is registered under 6(1); and section 6(1)(c) provides that the following people, previously removed or omitted from registration, are now entitled to status: a) Those whose mothers and paternal grandmothers are not Indians; b)Women who had married non-Indians; and c) Illegitimate children of Indian women.” In this case, as a result of the 1985 amendments the following situation occurred:

A woman (the plaintiffs Sharon McIvor and her son Jacob Grismer ), previously disentitled to status because she married a non-Indian, would, after Bill C-31, be entitled to status under section 6(1)(c). A child of this woman - 2 - would then be entitled to status under section 6(2). However, if that child had a child (grandchild of the above woman) with a non-Indian, that grandchild would not be entitled to status. This means that only two generations are given status by Bill C-31: the woman and her child. Category 2: A man, previously entitled to status, would, after Bill C-31, have his status confirmed under section 6(1)( a) as would his non-Indian wife (if married prior to Bill C- 31). A child of this man and his wife with status would then be entitled to status under section 6(1)(a) (if born before Bill C-31) or section 6(1)(f) (if born after Bill C-31). If that child had a child (grandchild of the above man) with a non-Indian, that grandchild would be entitled to status under section 6(2). This means that only two generations are given status by Bill C-31: the woman and her child.

A man, previously entitled to status, would, after Bill C-31, have his status confirmed under section 6(1)(a) as would his non-Indian wife (if married prior to Bill C- 31). A child of this man and his wife with status would then be entitled to status under section 6(1)(a) (if born before Bill C-31) or section 6(1)(f) (if born after Bill C-31). If that child had a child (grandchild of the above man) with a non-Indian, that grandchild would be entitled to status under section 6(2). This means that three generations would be given status: the man, his child and his grandchild.

The issue in this case was whether the provision of the Indian Act as amended, discriminated against the women who marry a non-Indian.

For legal reasons with which I do not propose to complicate the readers’ readings, the Court held two separate trials.

Judgments/Orders at the Court of first instance

In the one appeal (the Statutory Appeal )  the judge confirmed Sharon’s entitlement to status under 6(1)(c) and Jacob’s entitlement to status under 6(2) and issued the following order:

Section 6 of the Indian Act is of no force and effect “in so far, and only in so far, as it authorizes the differential treatment of Indian men and Indian women born prior to April 17, 1985, and matrilineal and patrilineal descendants born prior to April 17, 1985, in the conferring of Indian status.”

Accordingly, the court added a new generation of persons entitled to registration under the Indian Act

However, the Court hastened to qualify the decision by adding:

“For greater certainty: … a person who, solely as a result of this Order, becomes entitled to be registered as an Indian under s. 6 of the 1985 Act, and who would not otherwise be entitled to band membership shall not be entitled to membership in an Indian Band under s. 11 of the 1985 Act, or under the membership rules enacted by an Indian band …” (emphasis added by Brent Lehmann)

In the second trial (the Constitutional case), the trial judge held that

a)Although the concept of “Indian” is a creation of government, it has developed into a powerful source of cultural identity for the individual and the Aboriginal community. Like citizenship, both parents and children have an interest in this intangible aspect of Indian status. In particular, parents have an interest in the transmission of this source of cultural identity to their children.                                                                                                         b) If all of Jacob’s Indian ancestors had been male, but the details were otherwise unchanged, and he was applying for registration now, he and his mother would both be entitled to full registration under section 6(1)(a).       

(c)  Section 6 violates section 15 of the Charter in that it discriminates in the conferring of Indian status between matrilineal and patrilineal descendants born prior to April 17, 1985.

(d) Section 6 also discriminates between descendants born prior to April 17, 1985 to Indian women who married non-Indian men and the descendants of Indian men who married non-Indian women. This discrimination is not justified by section 1 of the Charter.

At the Court of Appeal

The B.C. Court of Appeal upheld the basic finding of discrimination made by the Supreme Court but did not grant the same order…. In  its review of the trial Court’s decision, the appeal Court identified two substantive errors.

First, the Court found that the trial Judge had gone too far in describing the discrimination as being based on “matrilineal as opposed to patrilineal descent.” This resulted in a retroactive application of the Charter which is not allowed. The appeal Court found that the discrimination only applied to individuals caught in the transition between the old Indian Act and the new regime brought in by [the 1985b amendments]

Second, the Court found that the discrimination could be “saved” by s. 1 of the Charter but for the fact that the legislation conferred an advantage on certain persons based on sex. Section 1 of the Charter is the section that allows the crown to justify an infringement of a Charter right where there is a compelling and substantial purpose for doing so and the means adopted to achieve that purpose minimally impair the right. The appeal Court found that purpose of the legislative provisions that conferred rights on Category 2 persons to pass on Indian status was valid in that it served to protect the vested rights of persons who were entitled to status as of 1985. However, the Court found that Sharon’s equality rights were not minimally impaired because Parliament allowed the Category 2 persons to pass on full Indian status to their grandchildren. Prior to Bill C-31, they could only pass on a limited status that expired when the grandchild reached the age of 21 under the Double-Mother Rule. The Court found that if Parliament had preserved the Double-Mother Rule when Bill C-31 was brought in, the legislative scheme would have passed the section 1 test and there would be no Charter violation. To summarize, the appeal Court found that section 6 of the Indian Act discriminated against persons in the position of Sharon and her son Jacob by precluding them from passing on status to Jacob’s children and Sharon’s grandchildren and that this discrimination was contrary to section 15 of the Charter. Further, since the Double-Mother Rule was not preserved in Bill C-31, the section 15 violation was not saved by section 1 of the Charter. However, unlike the trial judge, the appeal Court did not impose a solution. Rather, the appeal Court held that Parliament has a choice as to how this discrimination should be corrected. The Court noted two “obvious” choices but also noted that there may be other more complicated ones that Parliament may wish to choose. The “obvious” choices are to amend section 6 of the Indian Act to extend to persons in Sharon’s and Jacob’s circumstance the ability to pass on Indian status or to revoke Indian status from the third generation of Category 2 persons. However, Parliament may choose something else all together. The appeal Court gave Parliament 12 months to make this choice through the implementation of new legislation.

Thus, while the effect of the trial Court’s decision was to immediately allow Sharon’s grandchildren (Jacob’s children) status, the effect of the appeal Court’s decision was to defer to Parliament to correct the discrimination. If Parliament does not act within one year and absent any extension of the time period, sections 6(1)(a) and 6(1)(c) will be of no force or effect. This would lead to a chaotic result and thus it may be fully expected that Parliament will respond in some way.

Like the trial Court, the appeal Court commented on the role “status” plays in an aboriginal person’s life. Besides certain financial benefits, the appeal Court noted that the granting of status and the ability to pass status on to one’s children “…can be of significant and cultural value.” (Italics mine)

The Court also noted that the ability to pass on status “…can be a matter of comfort and pride for a parent…” (Italics mine)

McIvor sought but failed to obtain leave to appeal to the Supreme Court of Canada.

The Court of Appeal gave Canada one year to amend the offending legislation and the result was Bill C-3 which came into force in 2010.  Bill C-3 was intended to equalize the ability to transmit Indian status between those women who had married out and were reinstated under Bill C-31 and those persons who lost status under the double-mother rule and were reinstated under Bill C-31.

 

                                          PART- V

The  Stéphane Descheneaux, Susan Yantha and Tammy Yantha case

Bill C-31 amended the registration sections of the Act to bring the legislation into compliance with the McIvor decision, but did so narrowly.

As a result, there continued to be on-going discrimination, carried forward by the descendants of female Indians who lost their status through various other provisions of the pre-1985 Act that were not before the Court in McIvor.

This discrimination is what brought the plaintiffs in Descheneaux before the Quebec Superior Court. (Mandell Pinder LL.P. Barristers and Solicitors, www.mandellpinder.com/descheneaux-v-canada-2015-qccs-3555-case-summary/   October, 13, 2016.

(N.B. The following narrative, including the Annex is taken from The Government of Canada's Response to the Descheneaux Decision, https://www.aadnc-aandc.gc.ca/eng/1467227680166/1467227697623 April 12,2017                           

Background

In 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 first 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. Unlike Indian men in similar circumstances who can pass on status to their children regardless of whether they parent with a non-Indian.

The 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, later extended to July 3, 2017) to allow parliament time to make the necessary legislative amendments.

 

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 Descheneaux case. (Italics mine)

On September 2, 2015, an appeal in the decision was filed pending direction from the new government following the federal election of October 19, 2015. As part of the government's review of court cases, Canada withdrew its appeal of the decision on February 22, 2016, and began work on the required legislative amendments to respond to the decision.

                                        PART- VIA

The Government of Canada's Response to the the Descheneaux case: A Two-Staged Approach   (See: Annex)   

                                           PART-VIB                                                                         

Stage #1, Same Old Story (2): The Reflexive Response- Carrying on With the Same Old Way.

The government as is its wont, responded to the decision of the Quebec Superior Court with Bill S-3 to remove the discrimination identified in the cases of Stéphane Descheneaux, Susan Yantha and Tammy Yantha by amending the Indian Act accordingly as well as making a few other small amendments.

                                        PART-VIC

Senate’s Response to the Same Old Story (2):Let’s not retail amendments  to the Indian Act but  let’s do them all now

When the Bill reached the Senate, Independent Senator Marilou McPhedran  taking her cue from the comments of the judge in the Descheneaux  case, rightly reasoned  that since ultimately we will have to remove all the remaining discriminatory provisions from the Indian Act  why not seize the opportunity and remove them all at once? Hence, she proposed an amendment to Bill S-3, with the object of removing all the remaining discriminatory provisions.

Consequently she submitted  her amendment to the Bill to that effect. The Senate voted in favour of the amendment, passed the Bill subject to this amendment and returned it to the House of Commons.

                                        

                                     PART-VID

The Same Old Story (2)- Reflexive Response With a Promise to  Look Into  Doing  it Wholesale Later

Carolyn Bennett, Minister of Indigenous Affairs  objected to  the amendment of the Senate  on the strength  of  an expert report that concluded that  if the amendment became law it is  liable to add between 80,000 and 2,000,000 persons to the list  of Registered (Status) Indians, while she admitted that in  the light of the huge spread between the minimum and the maximum numbers, the report would have to be revisited. 

The Minister’s initial reaction did not go down very well in some quarters. Hence, she altered her approach to the Senate amendment to the effect:

First, let’s meet the deadline imposed by the Court and pass the  government bill without the McPhedran amendment; and

Second, if the government bill passed as amended, she promised that, she will engage in a second round to look into the Senate amendment, consult legal experts and the Indian organisations and bands that may or will be affected by the proposed amendments to determine what to do about the remaining discrimination in the legislation.

Not mentioned by the Minister is that she will also get a more precise expert estimate of the potential number of new registrants and the total anticipated  cost of the proposed amendments.

The Senate rejected the compromise offer and adjourned for the summer and left the bill in limbo.

For its part, the government did what it said it would not do; that is, to ask the Court for a second extension of the date by which the Court ordered the government to amend the law, only to be refused  by the Court and thus forced to appeal the Court’s decision .

  

                                      PART-X

Looking into the  Future: Why Not Do It Differently Once and For All and Be Done With the Saga of  the Ever Expanding List of Registered-Status-Indians under the Indian Act ?

The enactment of the 1985 amendments (Bill C-31)  purported to bring, among other things,  the provisions of the Indian Act concerning the terms of eligibility to secure Indian Status(Registered as an Indian) and in some instances Band membership, in conformity section 15 the Charter of Rights and Freedoms.

In the result, as shown above a substantial number of persons were added to the Register.

As further pointed above, for a number of  reasons, the 1985 amendments did not result in the elimination of all  the gender based discriminatory provisions  of the Indian Act .

In the circumstances,  the government’s standard response to all Court decisions where the applicants are adjudged to be entitled to be registered or entitled to remain registered,  has been to amend the discriminatory  provision of the Indian Act  in accordance with the Judgment and Order  of the Court.

This decision illustrates three peculiar features  in the way the government approached the challenges to the discriminatory provisions of the Indian Act:

First, it fights them all;

Second, it never requests the Court not to strike down the offending section and  not to order relief for the applicant by a specified date; in other words not to usurp Parliament’s prerogative to decide how to deal with the discriminatory provision and more specifically how to remedy the discriminatory provision.

In this respect, the reasoning of the British Court of Appeal which sets aside the order of the judge of first instance who proceeded the same way, is quite right and refreshing:

“The appeal Court said the trial Court had gone too far in the Order and that there were other options, including removing Indian status from persons who previously qualified for it, that were possible. The appeal Court left it to Parliament to decide how to remedy this discrimination, stating it was not appropriate for a Court to impose a solution by opening up Indian status to a wider group of people. The appeal Court suspended the effect of the declaration for 12 months and has left it to Parliament to decide how to fix the problem.” Memorandum of R. Brent Lehmann, Ratcliff and Co. Lawyers to National Centre for First Nations Governance, Summary of the McIvor Decisions, Op.cit.supra.(Italics mine)

And the standard response of the government to remedy the discrimination provision has invariably been and to add  the names of  the successful applicants/plaintiffs to the Indian Register of Status Indians.

Now, if the government finally gets its way with the Senate in the fall ,upon the passage of Bill S-3 will start yet another round of consultations and whatnot, to address the remaining gender base discriminatory provisions of the Act which will no doubt result in the addition of an as yet to be determined number of persons to the Indian Registry and keeping on the Register a number, as yet to be determined, of their descendants.

With respect to the process to commence, the document in the Annex contains the following statement:

“Consistent with the government’s commitment to reconciliation and a nation-to-nation relationship with Indigenous peoples, the collaborative process will be launched following the passage of Bill S-3. This will open the door to comprehensive consultation and collaborative work with First Nations, Indigenous organizations and affected individuals on the broader issues relating to Indian registration, band membership and citizenship.”

I am not exactly sure what “the commitment to reconciliation” and the nation to nation relationship with Indigenous peoples have to do with  the issue of the Registration of Indian Status, since the concept of Indian Status is purely an invention of the government and the rights, privileges and benefits attached to status is funded exclusively by the government.

That is unless the reconciliation process and the nation to nation relationship is used to concede demands for the further relaxation of the criteria of eligibility to be recognised as Status Indian and to remain on the Indian Register. 

The Prime Minister decided to repeal the provision of the Citizenship Act which grants the Minister the power to strip Canadians, with dual citizenship, who commits offences that put in jeopardy the safety of the country and of its citizens of their Canadian citizenship .The slogan to justify the repeal is: “A Canadian is a Canadian”

Transposing this slogan into the realm of the Indian Act, surely it is equally true to say: ”An Indian is an Indian”.

But then, who is an Indian?

First, a man or woman  of another race, for example, the Inuit, Metis, Caucasian, Negro or white, South East Asian man or woman are not Indians, and yet they are registered as Status Indians upon being married to someone who is registered as Status Indian which is a rather bizarre way of defining an Indian.

Second, the children of a Status Indian who is married to any one person of the different racial backgrounds identified above is surely a metis (although not eligible to be a member of the “Metis Nation” of Canada rather than Indian. Yet he is registered as a Status Indian.

Third, in the result we now have in Canada two groups of metis with different types of entitlements.

Fourth, undoubtedly, quite apart from the people of the foregoing racial backgrounds and the children of their marriage to a Status Indian, not all of the other Status Indians defined according   to the complicated sets of formulae set out in the Indian Act are Indians either.

Last but not least, quite apart  from these anomalies, as documented above a lot of First Nations are weary  of the  business of Indian Status and not necessarily particularly hospitable to Status Indians.

At the end of the day, the facts of the matter are that:

The whole business of Indian Register and Status Indians is a scheme designed by the government exclusively for its own purposes aand imposed on the First Nations

It is high time to get rid of it  with fair notice period  and without prejudice to the acquired rights –but not benefits-  of Status Indians, and find a more rational  and effective way of managing and distributing the benefits provided to Status Indians.

Canada’s monetary obligations to Indians arise from the provisions of each Treaty. Consequently, the only monetary obligation owed to the lineal present- day individual descendants of those who signed a treaty is the payment of the annuity provided in each treaty.

The monies freed by the abolition of Indian status could then be used  for the benefit of treaty Indians  for some of the purposes as the ones pursued for Status Indians.

 

 

 

                                        ANNEX

The Government of Canada's Response to the the Descheneaux case: A Two-Staged Approach  

The Government of Canada is aware that sex-based inequities in Indian status is one of a number of issues relating to Indian registration and band membership under the Indian Act that are of concern to First Nations and other Indigenous groups.

Some of these issues involve distinctions in Indian registration that are based on family status and ancestry or date of birth, and involve such matters as: adoption; the 1951 and second-generation cut-offs; unstated/unknown paternity; and voluntary deregistration. Other matters relate to broader policy questions, such as Canada’s continued role in determining Indian status and band membership. These subject matters are complex, and some are subjective in nature as they focus on issues relating to culture and ethnicity and finding the appropriate balance between individual and collective rights. Impacted individuals and communities bring a wide range of views on how to address these matters.

In keeping with Canada’s commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous peoples, the government will not act unilaterally to bring about legislative change in respect of the broader-related and complex issues. These issues should be the subject of meaningful consultations with First Nations, Indigenous groups and affected individuals.

For these reasons, the Government of Canada has launched a two-staged approach in response to the Descheneauxdecision. Stage I is focused on the elimination of known sex-based inequities in Indian registration, including the issues that were raised in Descheneaux, through legislative amendments. Stage II will provide for comprehensive consultations with First Nations, Indigenous groups and affected individuals through a collaborative process that will examine the broader issues relating to Indian registration, band membership and citizenship with a view to future reform.

Stage I: Engagement and A Legislative Process to Address Known Sex-Based Inequities in Indian Registration (2016-2017)

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:

First Nations, Métis, and non-status Indians

First Nation chiefs, councillors, administrators and community members

Representatives of Treaty and Nation organizations, and regional and national Indigenous organizations, including women's organizations.

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 (elimination of sex-based inequities in registration), was introduced in the Senate of Canada on October 25, 2016.

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

Cousins Issue: Address the differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian, when that marriage occurred before April 17, 1985 (see: Annex A infra.).

Siblings Issue: Address the differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951 and April 17, 1985 (see: Annex B infra.).

Issue of Omitted Minors: Address the differential treatment of minor children, 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 17, 1985 (see:Annex C infra.).

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 addresses all known sex-based inequities in Indian registration.

On December 6, 2016, the Standing Senate Committee suspended consideration of Bill S-3, and on December 13, 2016, the committee recommended that the government seek an extension of the February 3, 2017 court order, to continue the engagement process.

On December 22, 2016, in response to the recommendation of the Standing Senate Committee, the government sought an extension of the decision from the Superior Court of Quebec to continue engagement on the proposed amendments to address sex-based inequities in Indian registration as part of Stage I. On January 20, 2017, the court granted a five-month extension of the decision, to July 3, 2017.

The court extension allowed the Government of Canada to:

Further engage with First Nations, Indigenous groups and affected individuals on Bill S-3.

Hold technical meetings with legal experts.

Confirm that the proposed amendments outlined in the bill provide the appropriate remedies for the situations found in the Descheneaux decision.

Ensure that the bill addresses other known situations of sex-based inequities.

Further analyse a proposed amendment to Bill S-3 put forward during testimony to the Standing Senate Committee (see: Annex D infra.).

Parliament has until July 3, 2017, to enact legislative amendments under Bill S-3 in order to eliminate the sex-based inequities in Indian registration.

Stage II: A Collaborative Process on the Broader Issues Relating to Indian Registration, Band Membership and Citizenship (2017-2018)

In keeping with the government's commitment to reconciliation with Indigenous peoples through a renewed nation-to-nation relationship, a collaborative process on the broader issues relating to Indian registration, band membership and citizenship will be launched following the passage of Bill S-3.

The collaborative process will be jointly designed with First Nations and other Indigenous groups. Preliminary discussions will be held to determine the nature and scope of work and discussions to take place, the subject matters that would be examined under this process and the types of activities that would be undertaken by participants.

Participation in the collaborative process will be inclusive and involve First Nations governments, Treaty and Nation organizations, and regional and national Indigenous organizations that represent the interests of First Nations, including First Nations women, Métis and non-status Indians.

Stage II will build on the wealth of information submitted by First Nations and other Indigenous groups as part of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship.

Without prescribing the subject matters for discussion, based on the findings of the 2011-2012 Exploratory Process, it is anticipated that the issues of interest for First Nations and other Indigenous groups will likely include, but not be limited to, the following:

Other distinctions in Indian registration

Issues relating to adoption

The 1951 cut-off date for eligibility to registration specific to Bill C-3

The second-generation cut-off

Unstated/unknown paternity

Cross-border issues

Voluntary de-registration

The continued federal role in determining Indian and band member under the Indian Act

First Nations authorities to determine membership under the Indian Act.

Canada will also seek to include for discussion issues surrounding children of same-sex parents and non-cisgender identities as they relate to eligibility for Indian registration and band membership.

At the end of Stage II, the Minister will present the results of the collaborative process to Cabinet. Should recommendations be made for further legislative changes, the Minister could embark on subsequent phases of engagement with First Nations and other Indigenous groups on future legislative or other reform pertaining to Indian registration and band membership.

The collaborative process under Stage II will be conducted within a 12 to 18 month time frame and will be launched following the passage of legislative amendments to the Indian Act under Bill S-3.

Conclusion

Canada has an obligation to amend the Indian Act to respond to the Descheneaux decision by the court-extended deadline of July 3, 2017.

Annex E, infra. 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 1b: paternal line (Comparator group)Text description of Figure 1b: paternal line (Comparator group)

 

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 2b: Paternal line (Comparator group)Text description of Figure 2b: paternal line (Comparator group)

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; mother marries a non-Indian man, between 1951 and 1985, after the birth of the minor child;

Minor child loses status                                                                                     Text description of Figure 3a: Minor child born of Indian parents; mother marries a non-Indian man, between 1951 and 1985, after the birth of the minor child; minor child loses status

 

 

 

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

Annex D: The Issue of Children Born Out Of Wedlock to an Indian Mother and non-Indian Father

The proposed amendment under Bill S-3 to address the siblings issue (see Annex B) will grant eligibility for Indian status to the children of women who were born out of wedlock to an Indian father and non-Indian mother, between 1951 and 1985. The proposed remedy for the siblings issue creates a new inequity in respect of the grandchildren of children born out of wedlock, prior to 1985, to an Indian woman and a non-Indian man. Accordingly, an additional amendment has been proposed by the Indigenous Bar Association for inclusion in Bill S-3 to address the differential treatment of children born out of wedlock, prior to 1985, to an Indian mother and non-Indian father.

  

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

 

 

 

 

 

Figure 4b: Proposed remedy to address the siblings issue under Bill S-3 in respect of females born out of wedlock to an Indian father and   non-Indian mother between 1951 and 1985 (Comparator group)

 

Frequently Asked Questions

On the Federal Approach in the Response to Descheneaux

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

In July 2016, the Government of Canada announced a two-staged approach in response to the Descheneaux decision.

As part of Stage I, in summer 2016, the government launched an engagement process with First Nations and other Indigenous groups, to discuss proposed legislative amendments to address known sex-based inequities in Indian registration (status) in direct response to the Descheneaux decision. On October 25, 2016, the government introduced Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), in parliament.

As part of Stage II, a collaborative process with First Nations, Indigenous groups and individuals will be launched, following the passage of Bill S-3, to examine the broader issues relating to Indian registration, band membership and citizenship.

Why is a two-staged approach the preferred option?

In light of the complexities of the issues pertaining to registration, membership, citizenship and identity, a staged approach is necessary.

The two-staged approach allows for an immediate response to the specific facts in the Descheneaux decision by addressing the cousins and siblings issues, as well as other known sex-based inequities in Indian registration through legislative amendments as part of Stage I.

In keeping with the government’s commitment to reconciliation and renewed nation-to-nation relationship with Indigenous peoples, the collaborative process under Stage II provides an opportunity for comprehensive consultation and collaborative work with First Nations, and Indigenous groups and individuals on the broader-related and more complex issues with the objective of identifying areas for future reform.

On the Government's Response to the Descheneaux Decision

What is Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)?

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

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

The proposed legislative amendments under Bill S-3 will address known sex-based inequities in Indian registration. This will include the issues found in the Descheneaux case pertaining to cousins and siblings, as well as other areas of known 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.

How many people will become newly entitled to Indian registration as a result of the proposed legislative amendments?

Demographic projections estimate that between 28,000 and 35,000 individuals will become newly eligible for Indian status if the issues relating to cousins, siblings and omitted minors are addressed through legislative amendments.

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

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

Will the proposed amendments address other issues in Indian registration?

No. The proposed legislative amendments will only address known 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 culture and ethnicity, and on the appropriate balance between individual and collective rights in terms of eligibility to Indian status and therefore, require meaningful consultation with First Nations before moving forward with proposed legislative reform on these issues.

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

The broader issues pertaining to registration, membership and citizenship are complex and require more fulsome consultation with First Nations, and Indigenous groups and individuals. It would not be possible to adequately consult on these complex matters in a short time frame. This would also be contrary to the government's commitment to reconciliation and the renewal of the nation-to-nation relationship.

For this reason, the government will proceed with a two-staged approach.

Stage I will focus on eliminating known sex-based inequities in Indian registration under the Indian Act, through legislative amendments under Bill S-3 in response to the Descheneaux decision.

As part of Stage II, the government will launch a collaborative process with First Nations, and Indigenous groups and individuals that will examine the broader issues relating to Indian registration, band membership and citizenship.

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 has been inclusive of First Nations, Métis and non-status Indians.

Engagement sessions on the proposed amendments have been 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.

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.

First Nations, and Indigenous groups and individuals also have an opportunity to present their views and input on the proposed legislative amendments to parliamentarians as part of the legislative process for Bill S-3.

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

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

Why was Bill S-3 not passed on February 3, 2017 consistent with the court decision in Descheneaux?

The Standing Senate Committee on Aboriginal Peoples began its study of Bill S-3 on November 22, 2016, following the introduction of the bill in the Senate of Canada on October 25, 2015. During the committee’s study, witnesses and senators expressed concerns regarding the level of engagement with First Nations and other Indigenous groups prior to the introduction of the bill, and potential sex-based inequities in Indian registration that were not addressed in the proposed amendments.

On December 13, 2016, the senate suspended consideration of Bill S-3 and recommended that the government seek a court extension to further engage on the proposed amendments, with a focus on individuals affected by sex-based inequities in registration.

Why did the government seek an extension of the Descheneaux decision from the Superior Court of Quebec?

In keeping with the recommendations of the Standing Senate Committee on Aboriginal Peoples, on January 20, 2017, the government sought and was granted a five-month extension (until July 3, 2017) of the court’s ruling in the Descheneaux decision to permit more time for engagement with First Nations, and Indigenous groups and individuals on the proposed amendments in Bill S-3.

What was the plan for engagement as part of the five-month court extension?

The 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.

Based on the court extension, when will Bill S-3 be passed?

The government has until July 3, 2017, to pass legislative amendments under Bill S-3 that will eliminate known sex-based inequities in Indian registration.

Why is Canada not engaging directly with individual First Nation governments and communities on the proposed amendments?

Due to time limitations and the need to pass legislation before the extended court deadline of July 3, 2017, it is not possible to engage with individual First Nations on the proposed legislative changes.

As part of engagement under Stage I, the federal government has 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, to work with the federal government to bring together First Nations individuals and groups, including First Nation chiefs, councillors and community members, to discuss the proposed legislative amendments. Individual First Nation governments and communities will have the opportunity to present their views and input on the proposed amendments through this process.

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

As part of the proposed legislative amendments to address known sex-based inequities in Indian registration, some individuals that identify as Métis and non-status Indian will become eligible for Indian status. In addition, the Métis Nation is concerned with issues that relate to the eligibility of some Métis citizens to be registered under the Indian Act. For these reasons, Métis and non-status Indian groups will be included as part of the information sessions on the proposed amendments as well as part of the Stage II discussions on the broader-related issues.

Will the proposed amendments 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 the proposed legislative amendments, 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 the proposed amendments. These First Nations may choose to amend their laws to incorporate newly entitled registered individuals to their membership lists.

What will be the impact of the proposed amendments 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: Health Canada's Non-Insured Health Benefits Program and INAC's 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 will also impact the funding of these programs over the longer-term. However, the financial impacts for on-reserve programming will depend on the number of newly registered individuals that take-up on-reserve residency.

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.

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.

What happens if legislative amendments are not in place by July 3, 2017?

Although every effort will be made to pass amendments into law by July 3, 2017, the process involved in amending legislation is complex and can take significant time. In this eventuality, the government would consider seeking another court extension to continue the amendment process. However, there is no guarantee that a court would grant another extension of the current deadline.

What are the consequences if no legislative amendments are in place by July 3, 2017, and the court has not granted another extension of this deadline?

About 90% of the registered Indian population (currently over 970,000), is registered under one of the provisions struck down by the court in Descheneaux. In the absence of a legislative response by July 3, 2017 (or another court-approved extension of this deadline), Canada will be unable to register the majority of individuals seeking Indian status in Quebec (and possibly other provinces and territories) as key provisions of the Indian Act will be inoperative.

If the amendments cannot be completed by July 3, 2017, and no further extension of the court deadline is granted will all registered Indians lose their status?

No. The Descheneaux decision does not apply retroactively. Individuals who are already registered will continue to have status under the Indian Act. However, individuals who are or may become newly eligible for Indian status under one of the provisions struck down by the court in the Descheneaux decision will not be able to register because these provisions remain inoperative.

If the amendments are not in place by July 3, 2017, and no extension of the court deadline is granted, will the reserve system cease to exist after July 3, 2017?

No. The Descheneaux decision and any proposed amendments to Indian registration have no impact on the reserve system. Reserves remain as they are.

As a new newly entitled individual, can I apply now for Indian status as a result of the Descheneaux decision? If not, when can I apply?

While you can apply for Indian status if you believe that you may be eligible for Indian registration as a result of the Descheneaux decision, however your application will not be processed until after legislative amendments under Bill S-3 have been passed. Therefore, it is advisable that you wait to apply for Indian status until after the legislative amendments have been implemented.

On the Stage II Collaborative Process with First Nations and Other Indigenous Groups

What is the collaborative process under Stage II of this initiative?

The collaborative process on the broader issues relating to Indian registration, band membership and citizenship will be a joint process between the federal government and First Nations, and Indigenous groups and individuals on the broader issues relating registration, membership and citizenship. The objective of the collaborative process is to identify areas relating to registration, membership and citizenship for future reform.

When will the collaborative process be launched?

The Stage II collaborative process will be launched in 2017-2018 following the passage of legislative amendments under Bill S-3.

Which Indigenous groups will be involved in the collaborative process?

The collaborative process will be inclusive of First Nations, and Indigenous groups and individuals, and involve the participation of First Nations governments, Treaty and Nation organizations, as well as regional and national organizations that represent the interests of First Nations, including First Nations women, and Métis and non-status Indians.

Will funding be provided to First Nations and other Indigenous groups for their participation in the Stage II collaborative process?

Yes. Funding will be provided for the participation of First Nation governments, Treaty and Nation organizations, and First Nation and other Indigenous regional and national organizations, including women's organizations, for their participation in the collaborative process under Stage II. Funding will include support for their internal research and analysis, travel and meeting costs.

What types of activities will take place as part of the Stage II collaborative process?

The collaborative process will be jointly designed with First Nations and other Indigenous groups with flexibilities in respect of the types of activities that would be implemented under Stage II.

What broader issues will be examined as part of the collaborative process under Stage II?

Based on the findings of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship and without limiting the subject matters that would be discussed as part of Stage II, it is anticipated that specific issues to be identified for examination by participating First Nations and other Indigenous groups will likely include, but not be limited to the following:

Other distinctions in Indian registration

Issues related to adoption

The 1951 cut-off date for eligibility to Indian registration under Bill C-3

The second-generation cut-off

Unstated/unknown paternity

Cross-border issues

Voluntary de-registration

The continued federal role in determining Indian status and band membership under the Indian Act

First Nation authorities to determine membership/citizenship.

How does Stage II align with the government's commitment to reconciliation with Indigenous peoples?

The Stage II collaborative process will be jointly designed with First Nations and other Indigenous groups and will build on the wealth of information of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship.

The collaborative process will provide the opportunity for meaningful consultation and joint work in partnership with First Nations and other Indigenous groups on the broader issues relating to Indian registration, band membership and citizenship, with the objective of informing future reform on these matters.

This collaborative approach to future change is in keeping with the government’s commitment to reconciliation with Indigenous peoples through a renewed nation-to-nation relationship based on the recognition of rights, respect, cooperation and partnership.

What was the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship?

In 2011, the federal government launched the Exploratory Process on Indian Registration, Band Membership and Citizenship following the passage of the Gender Equity in Indian Registration Act (Bill C-3), in response to First Nations calls to examine and address the broader issues relating to Indian registration, band membership and citizenship.

The Exploratory Process was not a consultation or an engagement. Rather the initiative consisted of discussions that took place over one year, respectively, among First Nations (status Indians and band members residing on and off-reserve), Métis and non-status Indians on issues surrounding registration, membership, citizenship and identity.

The results of the Exploratory Process provided a better understanding of First Nation, Métis and non-status Indian views and perspectives on registration, membership, citizenship and identity, and on the evolution in thinking on these matters since the 1985 amendments to the registration and membership provisions of the Indian Act under Bill C-31.

In the context of the collaborative process, this information will be extremely useful in informing the discussions that are anticipated under Stage II.

How is the collaborative process under Stage II different from the 2011-2012 Exploratory Process?

While the Exploratory Process on Indian Registration, Band Membership and Citizenship provided a forum for First Nations and other Indigenous groups to examine and discuss issues relating to Indian registration, band membership and citizenship within their communities and organizations, it did not constitute a consultation or an engagement. Rather the initiative consisted of discussions that took place over one year, respectively, among First Nations (status Indians and band members residing on and off-reserve), Métis and non-status Indians on issues surrounding registration, membership, citizenship and identity.

Stage II provides a collaborative engagement process in which the Government of Canada will be a participant in discussions.

What is the voluntary de-registration issue?

INAC has received requests from some registered Indians who wish to be de-registered, or be 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 as Métis and who are seeking membership in Métis collectives.

Enrolment criteria for Métis collectives specifically exclude those who are registered under another Aboriginal registry, such as the Indian Register under the Indian Act. However, since the implementation of the 1985 amendments to Indian registration under Bill C-31, once a person who is entitled to Indian status and has been registered under the Indian Act, there is no authority to remove their name from the Indian Register, even if they request it.

Given the lack of legislative authority to de-register individuals who request it, implementation of a mechanism to allow for voluntary de-registration would require an amendment to the Indian registration provisions of the Indian Act. The issue of voluntary de-registration has been identified as a subject matter for discussion as part of the collaborative process under Stage II.

On the Decision of the Supreme Court of Canada in the Daniels case

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 INAC – 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.

On Band Membership under the Indian Act

What is band membership under the Indian Act?

As with Indian registration (status), membership in an Indian band is also a construct of the Indian Act and defines a member of a band as "a person whose name appears on a band list or who is entitled to have his name appear on a band list."

What is the difference between Indian status and band membership?

Prior to the 1985 amendments to the Indian Act under Bill C-31, the federal government, through the Indian Registrar, exercised exclusive authority in determining membership in First Nations and administered all band lists. Eligibility for band membership coincided with eligibility for Indian registration, and an individual's membership in the band from which they were descendant was automatic upon their registration as an Indian.

As part of the Bill C-31 amendments in 1985, two separate regimes were established for determining membership in individual First Nations, including processes for acquiring membership and maintaining band lists, respectively under sections 10 and 11 of the 1985 Indian Act.

Under section 10 of the Indian Act, First Nations have the option of assuming control over determining their membership. Under Section 11, the Indian Registrar administers rules for entitlement to band membership and maintains the Band Lists of bands that do no adopt membership rules under Section 10. In addition, self-governing First Nations can exercise jurisdiction over membership/citizenship pursuant to the 1995 Federal Approach to the Implementation and Negotiation of Aboriginal Self-Government (hereinafter the Inherent Right Policy).

Currently, 37% of First Nations communities determine their own band membership pursuant to section 10 of the Indian Act and 57% remain under federal rules for membership pursuant to section 11 of the act. Some 6% of First Nations have concluded self-government arrangements and exercise their jurisdiction over membership/citizenship pursuant to their self-government agreement.

What rights and benefits are available to band members?

Membership in an Indian band or a First Nation is linked to Aboriginal and Treaty rights and conveys certain political and other rights and entitlements for band members, such as the right to: vote/run in elections for Chief and Council; vote in community referenda for various issues, including for ratification of self-government agreements, and specific and comprehensive claims settlements; reside on-reserve; share in band moneys; own or inherit property on-reserve; receive band-administered programs and services while residing on-reserve.