Vol. 152, No. 1 — January 10, 2018

Registration

SI/2018-2 January 10, 2018

INDIAN ACT

Order Fixing December 22, 2017 as the Day on which the Act Comes into Force, other than Certain Sections

P.C. 2017-1723 December 15, 2017

Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to subsection 15(1) 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 December 22, 2017 as the day on which the Act comes into force, other than sections 2.1, 3.1, 3.2 and 10.1.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

An Order in Council is required to bring into force An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) other than sections 2.1, 3.1, 3.2 and 10.1, on December 22, 2017, pursuant to subsection 15(1) of that Act.

Objective

This will ensure the removal of sex-based inequities in Indian registration provisions of the Indian Act. The registration provisions in paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act will become compliant with the Canadian Charter of Rights and Freedoms (Charter) and it will allow for registration under these provisions to continue after December 22, 2017.

Background

Section 6 of the Indian Act contains provisions which determine the eligibility of individuals for Indian status. On August 3, 2015, the Superior Court of Quebec ruled in the Descheneaux c. Canada (Procureur général) decision that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act unjustifiably infringe section 15 of the Charter as they perpetuate different treatment in entitlement to Indian registration between Indian women as compared to Indian men and their respective descendants.

While the Court declared these sections invalid, it suspended its decision for a period of 18 months until February 3, 2017, to allow Parliament time to make the necessary legislative amendments. The Court extended the deadline twice: first until July 3, 2017, and then until December 22, 2017. The Court has made it clear that no further extensions would be granted.

On November 7, 2017, the Government representative in the Senate introduced provisions that will eliminate additional sex-based inequities in Indian registration. The Government recognizes that significant Indian Act registration issues have flowed from non sex-based inequities, as well as sex-based inequities which predated 1951, the year the modern Indian Register came into effect. The provisions introduced on November 7, 2017, would remove the 1951 cut-off which would ensure the removal of additional sex-based inequities from registration provisions in the Indian Act. It does so by providing subsec- tion 6(1) status to 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. This includes circumstances prior to 1951 and in fact remedies inequities back to the 1869 Gradual Enfranchisement Act.

These additional provisions are subject to a delayed coming into force to allow for consultations with First Nations on how to best implement the amendments.

The remaining amendments to provisions in the Indian Act, however, are to be brought into force on December 22, 2017, to address sex-based inequities in the registration provisions of the Indian Act including the issues raised by the Court in the Descheneaux c. Canada (Procureur général) decision. Those include sex-based inequities for scenarios such as:

• The Siblings Issue: The differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951, and April 17, 1985.
• The Cousins Issue: The differential treatment of first cousins whose grandmother lost status due to marriage with a non-Indian, when that marriage occurred prior to April 17, 1985.
• The Issue of Omitted Minors: 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.
• In response to the decision in Gehl v. Attorney General of Canada (unstated/unknown paternity): a new subsection will be added to section 5 of the Indian Act to provide flexibility for the Indian Registrar to consider various forms of evidence in determining eligibility for registration in situations of an unstated/unknown parent, grandparent or other ancestor.

In addition, a number of amendments were adopted to address the inequities that arise as a result of the remedies for cousins and siblings through the creation of new categories for Indian registration, as well as a new provision for the Minister to report to Parliament on the design and progress of the collaborative process and on the implementation of Bill S-3.

Implications

If An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) does not come into force by December 22, 2017, pursuant to subsection 15(1), the registration provisions of the Indian Act that are implicated by the Court decision will become inoperative. After December 22, 2017, the Indian Registrar will be unable to register about 90% of individuals seeking status in the Province of Quebec.

Consultation

There are no third party interests affected by this proposal.

Departmental contact

For more information, please contact

Eric Guimond
Acting Executive Director
New Service Offerings
Indigenous and Northern Affairs Canada
Gatineau, Québec
Telephone: 819-934-2565
Email: Eric.Guimond@aadnc-aandc.gc.ca