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42nd Parliament, 1st Session

Legislative Summary of Bill S-3: An Act to amend the Indian Act (elimination of sex based inequities in registration) *



Norah Kielland
Marlisa Tiedemann

Legal and Social Affairs Division
22 February 2017

Publication Number 42-1-S3-E PDF  PDF 382 kB, 19 pages


Contents

Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.


1  Background

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) was introduced in the Senate on 25 October 2016.1 The bill amends the Indian Act2 to comply with the Superior Court of Quebec’s decision of 3 August 2015 in Descheneaux c. Canada (Procureur général),3 which found that certain provisions of the Indian Act relating to status violated the equality provisions of the Canadian Charter of Rights and Freedoms4 on the basis of sex. The Court suspended the declaration of invalidity relating to the registration provisions of the Indian Act for 18 months to enable Parliament to amend the Act.

The bill was referred to the Standing Senate Committee on Aboriginal Peoples on 17 November 2016. Following its examination, the Senate Committee expressed concerns surrounding the scope of the proposed legislation, as well as the consultation process. The Committee decided to hold the bill in abeyance to give the federal government additional time to consult with First Nations and obtain an extension on the initial deadline of 3 February 2017.5 On 20 January 2017, the Superior Court of Quebec granted a five-month extension on the suspended declaration of invalidity to 3 July 2017.6

1.1  Indian Status and Recent Legislative Developments Surrounding the Indian Act

Indian status7 is used to determine eligibility for federal programs, such as post-secondary education funding and non-insured health benefits; legislated rights, such as tax exemption on reserves; and treaty rights, such as treaty annuities.8

Currently, entitlement to register for, and pass on, Indian status is determined under sections 6(1) and 6(2) of the Indian Act. Section 6(1) sets out the criteria for registering for Indian status, while section 6(2) allows an individual with only one parent registered under section 6(1) to register for Indian status. An individual registered under section 6(2) may only pass status on to his or her child if the other parent also has Indian status. This provision is typically referred to as the “second generation cut-off rule,” where status is terminated after two successive generations of intermarriage between Indians and non-Indians.

1.1.1  The 1985 Amendments: Bill C-31, An Act to amend the Indian Act

Prior to 1985, legislative provisions regarding status explicitly favoured paternal lineage – Indian women who married non-Indian men lost their Indian status, while Indian men who married non-Indian women retained their status and conferred Indian status on their wives and children. Table 1 below briefly illustrates the evolution of the provisions pertaining to Indian status over the past century.

In order to conform to the equality provisions of the Canadian Charter of Rights and Freedoms, in 1985, Bill C-31, An Act to amend the Indian Act, introduced significant amendments intended to remove gender discrimination from the registration provisions in the Indian Act. Specifically, Bill C-31 provided the following:

  • Status was restored to women who had lost their status as a result of marriage to a non-Indian (section 6(1)(c)).
  • Status was restored to individuals who had lost their status as a result of what is commonly known as the “double mother rule,” introduced in the 1951 amendments to the Indian Act. The double mother rule refers to a provision that removed status at age 21 from individuals whose mother and paternal grandmother acquired status though marriage.9
  • Status was maintained for individuals who were registered before the 1985 amendments, such as non-Indian women who had married Indian men (section 6(1)(a)).
  • Individuals with one parent entitled to registration under section 6(1) were entitled to register for status under section 6(2). Individuals with one parent registered under section 6(2) and one non-status parent were not entitled to registration.

Bill C-31 introduced a new and complex framework to determine eligibility for Indian status under sections 6(1) and 6(2) of the Act. A primary target for criticism of distinctions between registration under section 6(1) and section 6(2) has been what is commonly referred to as the “second generation cut-off rule.” Although the rule is gender neutral for children born after 1985, it created a relative disadvantage for the descendants of First Nations women who had married non-Indian men and regained status under section 6(1). Their children born before 17 April 1985 were registered under section 6(2), making them ineligible to transmit status onward if they married non-Indians (50% descent). Therefore, the women’s grandchildren were without status.

In contrast, the children of Indian men who had married non-Indian women before 1985 were registered under section 6(1) and, despite having the same degree of Indian ancestry as section 6(2) registrants, were able to transmit status to their offspring when they married non-Indian spouses. Those offspring, registered under section 6(2), could in turn pass on status for at least an additional generation (25% descent).10

1.1.2  The 2010 Amendments: Bill C-3, Gender Equity in Indian Registration Act

In 2010, Bill C-3, the Gender Equity in Indian Registration Act (short title),11 introduced further amendments to the registration provisions of the Indian Act, in response to the British Columbia Court of Appeal’s decision in McIvor v. Canada.12 In that decision, the Court found that sections 6(1)(a) and 6(1)(c) of the Indian Act violated the equality provisions of the Charter on the basis of sex, “to the extent that they grant individuals to whom the double mother rule applied greater rights than they would have had under section 12(1)(a)(iv) of the former legislation.”13 Thus, under Bill C-3, the grandchildren of eligible Indian women who had lost status as a result of marriage became entitled to register for status under section 6(2).

This amendment was intended to provide entitlement for Indian status equivalent to that of individuals who had their status reinstated beyond the 21 years specified under the double mother rule.14

Not all issues related to residual gender discrimination were addressed by Bill C-3, as the amendments to the Indian Actcontained in the bill focused on the specific circumstances outlined by the British Columbia Court of Appeal (i.e., the differential treatment resulting from the restoration of status to those who had lost it because of the double mother rule). Thus, despite the passage of Bill C-3, some individuals continued to have fewer rights – receiving status under section 6(2) rather than section 6(1) – by virtue of having an Indian grandmother instead of an Indian grandfather. As noted by the Canadian Bar Association, “[a] grandchild born before 1985 descended from an Indian grandfather would be able to transmit status for one generation longer than those descended from an Indian grandmother.”15 Other instances that were not addressed by Bill C-3 include the differential treatment of illegitimate children born before 1985, whereby only male children were entitled to status. Further, Bill C-3 did not address the differential treatment of grandchildren born before 1951.16

1.1.2.1  The Exploratory Process on Indian Registration, Band Membership and Citizenship under Bill C-3

In January 2011, the federal government launched an exploratory process with national and regional Indigenous organizations to examine issues surrounding membership, registration and citizenship deemed beyond the scope of Bill C-3. The findings of the exploratory process were released in January 2013 in a report entitled The Exploratory Process on Indian Registration, Band Membership and Citizenship: Highlights of Findings and Recommendations.17 Throughout the exploratory process, First Nations highlighted the need to recognize First Nations jurisdiction over citizenship, and as a short-term measure, to address the issues affecting membership under the Indian Act, including ongoing gender inequities.18

1.2  Descheneaux c. Canada

On 3 August 2015, the Superior Court of Quebec in Descheneaux c. Canada (Procureur général) held that the registration provisions under sections 6(1)(a), 6(1)(c), 6(1)(f) and 6(2) of the Indian Act constituted an unjustifiable infringement of section 15 of the Canadian Charter of Rights and Freedoms. The Court suspended its declaration of invalidity for 18 months to allow Parliament to amend the Act.19 The Court advised Parliament not to restrict the amendments to respond to the specific facts of the case, but rather to take the “appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified.”20 On 20 January 2017, the Court granted a five-month extension on the declaration of invalidity to 3 July 2017, in order provide for additional consultation on the government’s legislative proposal to address discrimination in the Indian registration provisions.21

In this case, the plaintiffs Stéphane Descheneaux, Susan Yantha and Tammy Yantha argued that, despite previous amendments to the Indian Act, its registration provisions continued to give rise to gender-based discrimination, affecting, in particular, individuals who regained status beyond 21 years of age, which had been the cut-off under the now-defunct double mother rule.22

The Court agreed, concluding that the 2010 amendments did not resolve all instances of sex discrimination and that the Act continued to treat two categories of persons differently:

  • individuals whose grandmother had lost status due to marriage with a non-Indian, when that marriage occurred prior to 17 April 1985 – also known as the “cousins issue” (see figure in Appendix A of this Legislative Summary); and
  • women who were born out of wedlock to Indian fathers prior to 17 April 1985 – also known as the “siblings issue” (see figure in Appendix B of this Legislative Summary).

In summary, individuals entitled to Indian status through their male ancestors continued to enjoy a significant advantage over individuals entitled to status through their female ancestors, in particular with respect to their ability to pass on status to their children.

Table 1 – Legislative History of Registration for Indian Status

Prior to 1951

  • An Indian woman who marries a non-Indian man loses her Indian status and their children are not eligible for Indian status.
  • An Indian man who marries a non-Indian woman retains his Indian status and confers it on his wife and their children.

1951

  • An Indian woman who marries a non-Indian man loses her Indian status and their children are not eligible for Indian status.
  • An Indian man who marries a non-Indian woman retains his Indian status and confers it on his wife and their children.
  • While a child of an Indian man and a non-Indian woman is entitled to status, if the child’s paternal grandmother is also non-Indian, the child loses his or her Indian status at the age of 21. This is commonly referred to as the “double mother rule.”
  • An Indian registrar is established by the federal government to maintain lists of persons entitled to register as an Indian and of band membership.

1985
Bill C-31

  • A new system of determining Indian status is introduced under sections 6(1) and 6(2) of the Indian Act, whereby Indian status ceases after two consecutive generations of mixed Indian and non-Indian parentage. This is commonly referred to as the “second generation cut-off.”
  • Status is restored to women who lost their status as a result of marriage (section 6(1)(c) of the Indian Act).
  • Status is restored to individuals who lost their status as a result of the “double mother rule,” which is abolished (section 6(1)(c)).
  • Status is maintained by individuals who were registered before the 1985 amendments to the Indian Act, such as non-Indian women who married Indian men (section 6(1)(a)). Subsequently, status is no longer conferred though marriage.

2010
Bill C-3

  • Indian status under section 6(2) is provided to the grandchildren of women who lost their status as a result of marrying non-Indian men and whose child of that marriage had a grandchild with a non-Indian spouse after September 1951. This amendment is made in response to the British Columbia Court of Appeal Decision in McIvor v. Canada.

2016
Bill S-3

  • In response to the Superior Court of Quebec decision in Descheneaux c. Canada, amendments contained in Bill S-3 have the following effect:
    • Grandchildren of women who lost their Indian status as a result of marrying non-Indian men are entitled to register under section 6(1), and great-grandchildren of women who lost their status as a result of marrying non Indian men are entitled to register under either section 6(1) or section 6(2) (to address the “cousins issue”).
    • Female persons born out of wedlock between 4 September 1951 and 16 April 1985 to an Indian male are entitled to register under section 6(1); the offspring of those female persons are also entitled to register under section 6(1) (to address the “siblings issue”).
    • Children born before 17 April 1985 to a minor child who had lost status when his or her Indian mother married a non-Indian male after his or her birth, and who had become entitled to register under section 6(1)(c) of Bill C-31 are entitled to register under section 6(1) (to address the “removed or omitted minors issue”).

Sources: Table prepared by the authors using data obtained from 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, S.C. 1869, 32-33 Vict., c. 6, s. 6; An Act to amend and consolidate the laws respecting Indians, S.C. 1876, 39 Vict., c. 18, s. 3; Indian Act, S.C. 1951, c. 29, 15 Geo. VI, ss. 11 and 12; Indian Act, R.S.C. 1985, c. I-5; An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), S.C. 2010, c. 18; and Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), 1st Session, 42nd Parliament.

1.2.1  The Government’s Response to the Descheneaux Decision

In an approach similar to that taken in respect of the 2010 amendments, the federal government has launched a two-stage approach to address issues relating to Indian registration and band membership. The first phase introduces legislative amendments under Bill S-3 to resolve the known gender-based inequities in the Indian Act.23 Specifically, in response to the Superior Court of Quebec decision in Descheneaux c. Canada, the following amendments to the Act are made:

  • Grandchildren of women who lost their status as a result of marrying non-Indian men will be entitled to register under section 6(1), and great-grandchildren of women who lost their status as a result of marrying non-Indian men are now entitled to register under either section 6(1) or section 6(2) (to address the “cousins issue”).
  • Female persons born out of wedlock between 4 September 1951 and 16 April 1985 to an Indian male are entitled to register under section 6(1); the offspring of those female persons are also entitled to register under section 6(1) (to address the “siblings issue”).
  • Children born before 17 April 1985 to a child who had lost status as a minor when his or her Indian mother subsequently married a non-Indian male, and who became entitled to register under section 6(1)(c) of the Act as amended by Bill C-31, become entitled to register under section 6(1) (to address the “removed or omitted minors issue”).

Information sessions regarding these amendments to the Indian Act were held with national and regional Indigenous organizations in the fall of 2016 and winter of 2017. The federal government stated that, due to time constraints, it was not possible to engage directly with individual First Nation communities.24

In the second phase, the federal government plans to launch a “collaborative process” to work with First Nations and other Indigenous groups to examine the broader issues surrounding Indian registration and band membership that were not addressed under legislative amendments. This collaborative process is expected to last one year, and will begin once the bill’s amendments have been enacted by Parliament. Following this engagement process, the Minister of Indigenous and Northern Affairs will present the results to Cabinet, with a possible recommendation to introduce further legislative reforms pertaining to citizenship and Indian membership.25

1.2.2  Potential Effects of the Descheneaux Decision

1.2.2.1  Demographic Changes

Preliminary projections provided by the federal government estimate that between 28,000 and 35,000 individuals will become entitled to register following legislative amendments to the Indian Act introduced by Bill S-3.26 Amendments to the Indian Act under Bill C-31 extended eligibility to register for Indian status27 to over 150,000 individuals, while approximately 37,000 additional individuals became entitled to register as Indian under Bill C-3.28

Any growth in the status Indian population could have a financial impact on federal programs, as well as on First Nations themselves. As noted in departmental briefing documents, funding for federal programs offered on reserves is determined by on reserve residency and band membership lists.29 Increases in the number of status Indians living on reserves will affect funding allotments for primary and secondary education, housing and social programs. Further, federal on- and off-reserve programs, such as funding for post-secondary education and non-insured health benefits, are affected by increases in the status Indian population.30 First Nations have previously indicated that no additional federal funding was provided to accommodate the increased number of individuals living on reserves who became registered as a result of Bill C-31 and Bill C-3.31

1.2.2.2  Band Membership

Increases in the number of individuals eligible for Indian status could also affect band membership. Band membership provides access to band-administered programs and services, political rights (such as the ability to vote in band elections) and the right to on-reserve residency.32

Band membership is distinct from Indian status. Following the 1985 amendments to the Indian Act, the determination of band membership and Indian status were severed for the first time, and two regimes were established for determining membership under the Act. Under section 10, First Nations are able to create their own membership codes in accordance with the procedures outlined in the Act. Under section 11, Indigenous and Northern Affairs Canada (the Department) maintains band membership lists and relies on Indian status as the criteria for determining membership. Following these amendments, some registrants were granted automatic band membership, while others obtained only conditional membership. The former group included women who had lost status by marrying out and were reinstated under section 6(1)(c). The latter group included their children, who acquired status under section 6(2).

The manner in which band membership lists are managed under sections 10 and 11 of the Indian Act may result in situations where persons possess Indian status but are not accepted as members of a band. Thus, First Nations that control their own band membership under section 10 can create membership codes that are more restrictive than those used by the Department to determine band membership under section 11. A First Nation may choose to adopt a more restrictive membership code for a number of reasons, including limited availability of reserve land, housing or federal funding.33

2  Description and Analysis

Bill S-3 consists of nine clauses. Rather than examine each provision, the description and analysis section that follows focuses on the substantive changes resulting from the bill. In short, the bill attempts to correct the differential treatment accorded to women in previous versions of the Indian Act.

Section 2.1 of this Legislative Summary describes new categories of persons entitled to be registered under section 6(1) of the Indian Act (clauses 1(2) and 1(3) in the bill). The remaining sections deal with clarifications, transitional provisions and the coming into force of the legislative provisions.

2.1  New Entitlements to Register under Section 6(1) of the Indian Act

2.1.1  Individuals Whose Parent as a Minor Child Lost Status as a Result of His or Her Mother’s Subsequent Marriage to a Non-Indian (the “Removed or Omitted Minors Issue”) (Clause 1(2))

Clause 1(2) adds new section 6(1)(c.01) to the Indian Act. This provision relates to an individual whose grandmother had lost her status as a result of her marriage to a non-Indian, which in turn resulted in the parent of the individual either lacking entitlement to be registered or losing status. One of the conditions of that individual being entitled to be registered under new section 6(1)(c.01) is that the other parent is not or, prior to death, was not, entitled to be registered. An additional condition for an individual to be entitled to register under new section 6(1)(c.01) relates to his or her date of birth and the marital status of the parents. The individual is entitled to be registered if he or she was born before 17 April 1985, regardless of whether the parents were married to each other; however, if the individual was born after 16 April 1985, his or her parents had to have been married to each other before 17 April 1985.

2.1.2  Individuals Whose Parent Became Eligible to Be Registered under Section 6(1) as a Result of the 2010 Indian Act Amendments (the “Cousins Issue”) (Clause 1(3))

The core of the 2010 amendments to the Indian Act (Bill C-3) were contained in section 6(1)(c.1), which entitled individuals whose mother had lost status as a result of her marriage to a non-Indian, and who was subsequently reinstated under Bill C-31, to be registered under that section. However, the children of these individuals would have status under section 6(2), and the grandchildren of these individuals (i.e., the great-grandchildren of the women who were reinstated) would not have status at all if they had a non-Indian parent. By comparison, as is demonstrated by the figure in Appendix A, the great-grandchildren of an Indian man would have status either under section 6(1) or section 6(2).

New section 6(1)(c.2) establishes that an individual is entitled to be registered under this section if one of the parents is entitled to be registered under section 6(1)(c.1) or would have been entitled to be registered under section 6(1)(c.1) if that parent is deceased. The other condition relating to eligibility to be registered under this section concerns the marital status of the parents: if the individual was born after 16 April 1985, his or her parents had to have been married to each other before 17 April 1985. If the individual was born before 17 April 1985, it does not matter whether the parents were married to each other at the time of his or her birth.

2.1.3  Individuals Who Were Born Female between 4 September 1951 and 16 April 1985 Whose Parents Were Not Married to Each Other at the Time of Their Birth (the “Siblings Issue”) (Clause 1(3))

Prior to the 1985 Indian Act amendments, only male children born out of wedlock to a father with status and a mother without status were entitled to register as Indian. This interpretation is based on reading the 1951 Indian Act provision relating to “legitimate” children together with the 1951 provision that a male individual “is a direct descendant in the male line of a male person.” Section 11(c) of the 1951 Indian Act provided that a person was entitled to be registered if the person “is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b).” This entitlement to be registered existed regardless of whether the male person referred to was born in or out of wedlock. At the same time, section 11(d) of the 1951 Indian Act specified that a person was entitled to be registered if he or she was the legitimate child of “a male person described in paragraph (a) or (b).” Reading these two provisions together results in a male child born out of wedlock to a father with status and a mother without status being entitled to register, while a female child in the same circumstances is not entitled to register.34

New section 6(1)(c.3) entitles individuals who were born female and out of wedlock between 4 September 1951 and 16 April 1985 to be registered if their father is entitled to be registered, or was at the time of his death entitled to be registered. The other condition that must be met for an individual to be registered under this section is that the person’s mother was not entitled to be registered at the time of the individual’s birth.

2.1.4  Children of Individuals Who Are Entitled to Be Registered under New Section 6(1)(c.2) or 6(1)(c.3) (Clause 1(3))

New section 6(1)(c.4) entitles the children of a parent entitled to be registered under either new section 6(1)(c.2) or new section 6(1)(c.3) to be registered. This category also includes those individuals whose parent, at the time of his or her death, would have been entitled to be registered under either of these new sections, and whose other parent is not or, prior to death, was not, entitled to be registered. In addition, in order for an individual born after 16 April 1985 to be registered under new section 6(1)(c.4), his or her parents had to have been married to each other before 17 April 1985. In the case of an individual born before 17 April 1985, it does not matter whether the parents were married to each other at the time of his or her birth.

2.2  Clarification Relating to Section 6(2) (Clause 1(5))

New section 6(2.1) clarifies that if a person is entitled to be registered both under section 6(1)(f) (i.e., both parents are entitled to be registered under 6(1) or were so entitled at the time of their deaths) and any other part of section 6(1), then he or she is considered to be entitled to be registered under the other part of section 6(1) only. Similarly, if a person is entitled to be registered under section 6(2) as well as under a part of section 6(1), he or she is considered to be entitled to register under that part of section 6(1) only.

2.3  Deceased Persons Deemed to Be Entitled to Be Registered (Clause 1(6))

New section 6(3)(d) provides that a person who meets the conditions established in new section 6(1)(c.01), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4) is deemed to be entitled to be registered under that section if he or she was deceased on the day the relevant new section came into force.

2.4  Amendment to Membership Rules for Departmental Band Lists

Clause 2(1) amends section 11(3) of the Indian Act by specifying that individuals who would have been entitled to be registered under new section 6(1)(c.01), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4) had they been alive on the day the relevant new section came into force are entitled to have their names entered in the Band List maintained by the Department.

Clause 2(2) establishes that individuals who are entitled to be registered under new section 6(1)(c.01), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4) are entitled to have their names entered in the Band List maintained by the Department, provided that they meet the requirements set out in that section (amended section 11(3.1)).

2.5  Transitional Provisions (Clauses 3 to 7)

Bill S-3 contains a number of transitional provisions that will apply if the suspension of the declaration issued in Descheneaux c. Canada expires before the provisions of the bill come into force. These provisions establish that a person who was registered and was entitled to be registered under section 6(1)(a), 6(1)(c), 6(1)(f) or section 6(2) continues to be registered (clause 5). Band membership under section 11 of the Indian Act would also continue (clause 7).

2.6  Related Provision (Clause 8)

Clause 8 provides that no claim may be made against the Crown, an employee or agent of the Crown, or a council of a band “for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties” in relation to a person not being registered, or not having his or her name entered in a Band List immediately prior to the provisions of Bill S-3 coming into force, or in relation to a person’s parent being entitled to be registered under new section 6(1)(c.01), 6(1)(c.2), 6(1)(c.3) or 6(1)(c.4).

2.7  Coming into Force (Clause 9)

Clause 9 provides that the provisions contained in the bill come into force or are deemed to come into force “on a day to be fixed by order of the Governor in Council, but that day must be the day on which the suspension of the declaration expires.”


Notes

*  Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force.Return to text ]

  1. Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), 1st Session, 42nd Parliament. [ Return to text ]
  2. Indian Act, R.S.C. 1985, c. I-5. [ Return to text ]
  3. Descheneaux c. Canada (Procureur général), 2015 QCCS 3555. [Translation] [ Return to text ]
  4. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [ Return to text ]
  5. Senate, Standing Committee on Aboriginal Peoples, “Government should salvage flawed Indian Act bill, Senate committee says,” News release, 13 December 2016. [ Return to text ]
  6. Descheneaux c. Le Procureur général du Canada, 2017 QCCS 153. [Available in French Only] [ Return to text ]
  7. The term “Indian status” refers to the legal entitlement to be registered as an Indian under the Indian Act. While the term “Indian” is generally viewed as outdated, it continues to be used to refer to the legal definition of First Nation individuals as recognized under the Indian Act. See Indigenous and Northern Affairs Canada [INAC], Terminology. [ Return to text ]
  8. INAC, “Annex D: Frequently Asked Questions,” The Government of Canada’s Response to the Descheneaux Decision. [“Annex D”] [ Return to text ]
  9. Indian Act, S.C. 1951, c. 29, 15 Geo. VI, s. 12(1)(a)(iv). [ Return to text ]
  10. Parts of this description of Bill C-31 have been excerpted from: Mary C. Hurley and Tonina Simeone, Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act, Publication no. 40-3-C3E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 15 November 2010. [ Return to text ]
  11. Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), 3rd Session, 40th Parliament (S.C. 2010, c. 18). [ Return to text ]
  12. Sharon McIvor married, and had a child with, a non-Indian man prior to 1985. Following Bill C-31, Ms. McIvor was reinstated under section 6(1)(c), and her son, James Grismer, was registered under section 6(2) – meaning that Mr. Grismer was unable to transmit his status to his children. Conversely, under a comparable male line, a child of an Indian father who married a non-Indian and was previously subject to the double mother rule had his or her section 6(1) status reinstated under Bill C-31 for life and could transmit this status to his or her children. Ms. McIvor challenged the constitutional validity of sections 6(1) and 6(2), alleging that these sections were discriminatory on the basis of sex and marriage, as they continued to favour the male line in the transmission of status to descendants born prior to 1985. The British Columbia Supreme Court agreed and found that section 6 of the Indian Act violated the Canadian Charter of Rights and Freedoms and was in no force or effect insofar as it was discriminatory. On appeal, the British Columbia Court of Appeal significantly narrowed the scope of the judgment, finding that different treatment created by the 1985 Act was justified under section 1 of the Charter, except for “the advantageous treatment that the 1985 legislation accorded those to whom the double mother rule under previous legislation applied.” McIvor v. Canada (Registrar of Indian and Northern Affairs), BCCA 2009 153. [ Return to text ]
  13. Ibid., para. 161. [ Return to text ]
  14. Hurley and Simeone (2010). [ Return to text ]
  15. The Canadian Bar Association, Bill C-3 – Gender Equity in Indian Registration Act pdf (363 kB, 13 pages), April 2010, p. 8. [ Return to text ]
  16. House of Commons, Standing Committee on Aboriginal Affairs and Northern Development, Evidence, 3rd Session, 40th Parliament, 13 April 2010 (Sharon McIvor, as an individual). [ Return to text ]
  17. INAC, The Exploratory Process on Indian Registration, Band Membership and Citizenship: Highlights of Findings and Recommendations. [Exploratory Process] [ Return to text ]
  18. Ibid. [ Return to text ]
  19. Descheneaux c. Canada (2015), para. 244. [ Return to text ]
  20. Ibid., para. 235. [ Return to text ]
  21. Descheneaux c. Le Procureur général du Canada (2017). [ Return to text ]
  22. Descheneaux c. Canada (2015), paras. 140 and 165. [ Return to text ]
  23. INAC, The Government of Canada’s Response to the Descheneaux Decision. [ Return to text ]
  24. Ibid. [ Return to text ]
  25. Ibid. [ Return to text ]
  26. INAC, “Annex D.” [ Return to text ]
  27. Ibid. [ Return to text ]
  28. House of Commons, Debates, 1st Session, 42nd Parliament, 31 May 2016, Question No. 105. [ Return to text ]
  29. INAC, “Annex D.” [ Return to text ]
  30. Ibid. [ Return to text ]
  31. INAC, Exploratory Process. [ Return to text ]
  32. INAC, “Annex D”; and AFN-INAC Joint Technical Working Group, First Nations Registration (Status) and Membership Research Report pdf (654 kB, 36 pages), July 2008. [ Return to text ]
  33. Megan Furi and Jill Wherrett, Indian Status and Band Membership Issues, Publication no. BP-410E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, February 2003.[ Return to text ]
  34. Descheneaux c. Canada (2015), “Schedule: Most relevant excerpts from legislation – 2. Indian Act, S.C. 1951, c. 29 (excerpts).” [ Return to text ]

Appendix A – The “Cousins Issue”

Figure A.1 - The “Cousins Issue”: Differential Treatment of Grandchildren Born between 1951 and 1985 (Maternal and Paternal Lines) as Outlined in Descheneaux c. Canada (Procureur général)

Comparator group
(paternal line)

Indian grandfather marries non-Indian grandmother before 1985:
Both grandparents have section 6(1) status

Indian father marries non-Indian mother prior to 1985:
Both parents have section 6(1) status
 

Indian grandchild has section 6(1) status

Indian great-grandchild is entitled to either section 6(1) or section 6(2) Indian status, depending on the status of the other parent

Stéphane Descheneaux
(maternal line)

Indian grandmother marries non-Indian grandfather:
Grandmother regains section 6(1) status in 1985 under Bill C-31

Indian mother marries non-Indian father prior to 1985:
Mother gains section 6(2) status in 1985 under Bill C-31.
In 2010, she gains section 6(1) status under Bill C-3

Indian grandchild has section 6(2) status (Stéphane Descheneaux)

Indian great-grandchild is not entitled to Indian status unless the other parent is a status Indian

Source: Figure prepared by the authors using data obtained from Indigenous and Northern Affairs Canada, The Government of Canada’s Response to the Descheneaux Decision; and Descheneaux c. Canada (Procureur général), 2015 QCCS 3555. [Translation]


Appendix B – The “Siblings Issue”

Figure B.1 - The “Siblings Issue”: Differential Treatment of Male and Female Children Born out of Wedlock as Outlined in Descheneaux c. Canada (Procureur général)

Comparator Group:
Male child born out of wedlock

Indian father and non-Indian mother have a son out of wedlock between 1951 and 1985

Son is entitled to Indian status under section 6(1)(a)
 

Grandson born before 1985 is entitled to Indian status
under section 6(1)(a)

Susan Yantha:
Female child born out of wedlock

Indian father and non-Indian mother have a daughter out of wedlock between 1951 and 1985

Daughter is not eligible for Indian status until 1985, when she becomes entitled to section 6(2) status (Susan Yantha)

Granddaughter is not entitled to Indian status (Tammy Yantha)
 

Source: Figure prepared by the authors using data obtained from Indigenous and Northern Affairs Canada, The Government of Canada’s Response to the Descheneaux Decision.




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