Order Fixing August 15, 2019 as the Day on which Certain Provisions of that Act Come into Force: SI/2019-85
Canada Gazette, Part II, Volume 153, Number 17
SI/2019-85 August 21, 2019
AN ACT TO AMEND THE INDIAN ACT IN RESPONSE TO THE SUPERIOR COURT OF QUEBEC DECISION IN DESCHENEAUX C. CANADA (PROCUREUR GÉNÉRAL)
Order Fixing August 15, 2019 as the Day on which Certain Provisions of that Act Come into Force
P.C. 2019-1163 August 7, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Crown-Indigenous Relations and the Minister of Indigenous Services, pursuant to subsection 15(2) of An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), chapter 25 of the Statutes of Canada, 2017, fixes August 15, 2019 as the day on which sections 2.1, 3.1, 3.2 and 10.1 of that Act come into force.
(This note is not part of the Order.)
An Order in Council is required to bring sections 2.1, 3.1, 3.2 and 10.1 of An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) into force on August 15, 2019.
Enacting section 2.1, 3.1, 3.2 and 10.1 of An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) will remove the 1951 cut-off date under sub-paragraph 6(1)(c.1)(iv) of the Indian Act, resulting in the elimination of all sex-based inequities in its registration provisions. The removal of the 1951 cut-off will effectively extend entitlement to Indian status, under subsection 6(1) of the Indian Act, to descendants of women who lost status due to marriage going back to 1869.
In August 2015, a decision was rendered in the Descheneaux case by the Superior Court of Quebec which declared key provisions of the Indian Act inoperative, because they unjustifiably violated equality rights under the Canadian Charter of Rights and Freedoms by perpetuating sex-based inequities in eligibility for Indian registration between descendants of the male and female lines. The Descheneaux decision highlighted residual sex-based inequities in Indian registration carried forward following the 1985 and 2011 amendments to the Indian Act. It also brought to light the long-standing and unaddressed broader issues relating to Indian registration, band membership and First Nations citizenship.
The Superior Court of Quebec suspended its decision until February 3, 2017, to allow Parliament to make the necessary changes to the Act. This period was subsequently extended to December 22, 2017.
Bill S-3 was introduced in direct response to the Descheneaux decision. The legislative amendments brought forward by Bill S-3 eliminated the sex-based inequities identified by the court in the Descheneaux case as well as other sex-based inequities in registration. Bill S-3 received royal assent on December 12, 2017.
Bill S-3 addresses sex-based inequities in the Indian registration provisions of the Indian Act for the following situations:
- The cousins issue: differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian before April 17, 1985;
- The siblings issue: differential treatment of women who were born out of wedlock to Indian fathers between September 4, 1951, and April 17, 1985;
- The issue of omitted minor children: 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; and
- The unstated or unknown parent issue: in response to the Ontario Court of Appeal’s Gehl decision, which deals with unstated/unknown parent issue, Bill S-3 provides flexibility for the Indian Registrar to consider various forms of evidence in determining eligibility for registration in situations of an unstated or unknown parent, grandparent or other ancestor.
Bill S-3 also includes the requirement for the Minister of Crown-Indigenous Relations to report to Parliament on the collaborative process on broader issues related to Indian registration, band membership and First Nations citizenship, and on the implementation of the bill.
The Minister is required to report to Parliament on the
- design of the consultations within 5 months of royal assent (report tabled in May 2018);
- status of the consultations within 12 months of royal assent (report tabled on June 12, 2019); and
- implementation of the bill within 3 years of royal assent.
The Bill also includes provisions that will remove the 1951 cut-off, which are to come into force once consultations with First Nations are completed. From June 12, 2018, to March 31, 2019, individuals from 442 First Nation communities were consulted and provided with the opportunity to share their input on the best way to implement these changes. Bringing this proposal forward now to seek an Order in Council is consistent with what was heard during the consultation process and with the recommendations made by the Minister’s Special Representative, Claudette Dumont-Smith.
Once the 1951 cut-off is removed from the Indian Act, all descendants born prior to April 17, 1985 (or of a marriage prior to that date), of women who were removed from band lists or not considered Indians because of their marriage to a non-Indian man will be entitled to 6(1) status. This will include circumstances prior to 1951 and in fact, will remedy inequities back to the 1869 Gradual Enfranchisement Act.
Bill S-3, except for the provisions related to the removal of the 1951 cut-off, came into force on December 22, 2017. The purpose of this Order in Council is to bring into force the remaining section of Bill S-3 that will remove the 1951 cut-off from the Indian Act registration provisions.
According to independent demographic assessments, it is possible that, upon the removal of the 1951 cut-off, between 270 000 and 450 000 individuals could become eligible to be registered as a Status Indian under the Indian Act. This broad range reflects the uncertainty around the number of people who will become eligible and who will register as a result of the amendments. Furthermore, because Indian registration is a voluntary act, any increase in the registered population will depend on the number of individuals who choose to apply and are able to prove entitlement.
As per An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), the Minister had the obligation to hold consultations on a number of issues related to Indian registration. These consultations were officially launched on June 12, 2018, under the Collaborative Process on Indian registration, band membership and First Nation citizenship. From June 12, 2018, to March 31, 2019, a total of 14 103 individuals participated in the Collaborative Process and were consulted on the three consultation streams:
- (1) The removal of the 1951 cut-off from the Indian Act;
- (2) Remaining inequities related to registration and membership under the Indian Act; and
- (3) First Nations’ exclusive responsibility for determining membership and citizenship.
The input received as part of the Collaborative Process has established that First Nations support Indigenous women’s right to Indian registration through the removal of the 1951 cut-off. It has also made clear that First Nations: (1) are preoccupied by the financial sustainability of programs and services that could be impacted by an increase in the registered Indian population; and (2) require additional time to fully assess the impacts of the removal of the 1951 cut-off on their communities and identify the best means to mitigate the impacts. The implementation plan adopted by the Government of Canada addresses these concerns by ensuring proper funding levels for programs directly related to Indian registration and continued engagement with First Nations on impacts of the removal of the 1951 cut-off.
Acting Executive Director
New Service Offerings
Crown-Indigenous Relations and Northern Affairs Canada