The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Acting on the Indian Act

December 15 2016 15 December 2016

If the government enacts Bill S-3 – or some version of it – on or before the Feb. 3, 2017 deadline set by the Quebec Superior Court, as many as 28,000 to 35,000 people could become eligible to be registered as Status Indians under it.

And the proposed legislation’s lack of provision for that eventuality is just one of the concerns the CBA’s Aboriginal Law Section talked about in its submission when it appeared before the Senate Committee on Aboriginal Peoples on Nov. 29 and before the House Committee on Indigenous and Northern Affairs on Dec. 5.

The submission traces the long history of steps toward Bill S-3, including the 1985 Indian Act amendments that fell short of their intention to eliminate discrimination against women in the Indian Status registration system, as it retained a gender-based inequity in generations to come.

Descendants of Status women married to non-Status men lost their status after the second generation, while descendants of Status men married to non-Status women retained status to the third generation.

The 2009 British Columbia Court of Appeal decision in McIvor v Canada (Registrar, Indian and Northern Affairs) said certain sections of the Indian Act violated the Charter. In 2010, the federal government introduced Bill C-3, which addressed only the issues raised by the appeal court – and still failed to eliminate all of the sex-based discrimination in the Act. In fact it created additional problems – for example, by permitting only people with a child to be eligible for Indian Status under section 6(1)(c.1) of the Act.

Enter Descheneaux v Canada. In 2015 the Quebec Court of Appeal ruled that certain sections of the Indian Act violated section 15 of the Charter, declared those sections inoperative and gave the federal government 18 months to fix them.

Fast forward to fall 2016 and the government has left itself precious little time to honour its duty to consult with First Nations on changes to the Act by which they are governed – the Section notes in its submission that between the Oct. 25 introduction of Bill S-3 and the Feb. 3, 2017 deadline set by the Court there were fewer than 40 sitting days in the House of Commons, and fewer than 30 in the Senate. And the government is still doing the rounds of consultations outside the Parliamentary process.

And yet again, the Section says, legislation intended to eliminate gender-based inequities in the Indian Act fails to go far enough.

Descheneaux does not exempt Parliament ‘from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified’,” the submission notes, adding the trial judge clearly “called on Parliament to consider potential inequities under the Indian Act in broader terms, regardless of any difficulties the task may present.”

The submission makes five recommendations:

  1. That the committee not report Bill S-3 to the House of Commons until the government has finished all currently scheduled consultations and the Minister of Indigenous and Northern Affairs confirms no further amendments are needed.
  2. That Parliament take concrete measures to ensure the bill has eradicated inequities in the Indian Act to minimize future court challenges.
  3. That Section 8, which prevents anyone previously denied Indian Status as a result of the discrimination addressed by Bill S-3 from taking legal action against the federal government, be removed.
  4. That the federal government provide adequate funding to support First Nations who will see their membership increase as a result of Bill S-3.
  5. That the federal government provide adequate resources to support the timely registration of individuals who will gain Indian Status as a result of the Bill.


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