Canada introduces Bill C-38 to address inequities in the registration and band membership provisions of the Indian Act
General background on Bill C-38
In 2012, an exploratory process studied options for reform with First Nations and Métis partners. The conclusion was that Canada should work with First Nations to proactively address issues related to registration and band membership under the Indian Act.
In 2018-2019, following a consultation process with First Nations partners, the Minister’s Special Representative (MSR) Claudette Dumont-Smith, submitted a report with recommendations to address a broad suite of remaining inequities in the Indian Act. Through this collaborative process, the Minister’s Special Advisor found that there was a clear direction that anyone who was enfranchised should be entitled to reinstatement, and there should be automatic entitlement for descendants of those who were enfranchised.
If passed, Bill C-38 would address some of the issues highlighted in the MSR’s report with solutions based upon feedback received. The legislation responds to longstanding concerns raised by First Nations communities and other First Nations individuals affected by its residual discriminatory impacts.
The Bill seeks to remedy issues in registration and band membership that have been highlighted as requiring redress as a prerequisite to a successful transition away from the current Indian Act. It would:
- Address the ongoing impacts to eligibility for registration for individuals with a family history of enfranchisement;
- Support the autonomy of individuals by ensuring they can have their names removed from the Indian Register (individual deregistration);
- Recognize the acquired rights of all individuals to membership with their natal band; and,
- Eliminate outdated and offensive language related to dependent persons.
Prior to 1985, enfranchisement was an assimilation policy under the Indian Act where First Nations individuals lost their entitlement to registration, as well as membership in their home communities. Individuals could be enfranchised by application (”voluntary” enfranchisement) or the government could elect to enfranchise individuals by virtue of their profession or because they had been residing outside of Canada for five years (involuntary enfranchisement). When men were enfranchised, their wives and children were automatically enfranchised. This led to entire families and their descendants losing entitlement to registration and any associated benefits under the Indian Act.
In 1985, Bill C-31 introduced new categories under section 6 of the Act to determine eligibility for registration that reinstated access to registration for a large number of individuals and their first generation descendants. As part of these changes, the process of enfranchisement was eliminated from the Act and individuals who had previously voluntarily or involuntarily enfranchised could apply to have their registration reinstated. Individuals and their children who had been enfranchised by application were reinstated under section 6(1)(d) and those who had been involuntarily enfranchised were reinstated under section 6(1)(e) of the Indian Act.
However, despite the elimination of the process of enfranchisement, the entitlement of descendants with a family history of enfranchisement continues to be impacted today. While the registration and membership provisions of the Indian Act were subsequently amended in 2011, under the Gender Equity in Indian Registration Act (Bill C-3), and in 2017, under 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), these legislative changes focused on removing sex-based inequities in registration. Remaining inequities relating to enfranchisement continue to persist. Descendants are unable to transmit entitlement to registration to the same extent as entitled individuals who have no family history of enfranchisement. Those who enfranchised as band or a collective also have no entitlement to registration today.
In July 2021, Juristes Power Law (JPL) filed Nicholas v. AGC, filed a Charter challenge on behalf of plaintiffs who are not entitled to registration under the Indian Act and/or cannot pass on entitlement to their descendants because they have a family history of enfranchisement. The abeyance creates a time-sensitive and high-priority need to rectify the inequities caused by enfranchisement.
The Nicholas plaintiff group is made up of 15 individuals. As a result of Bill C-38 some will receive a change in the category under which they are currently registered and others will be newly eligible for registration. In addition, if all individual and collective enfranchisement issues are addressed, approximately 3,500 individuals over the next five years could be newly eligible for registration.
Bill C-38 would grant the autonomy of First Nations by ensuring they can have their names removed from the Indian Register (individual deregistration).
Since 1985, the Indian Act does not allow the Registrar to remove individuals from the Register, even upon their request. Individuals can, however, request to be removed from the Indian Register for a variety of reasons, including:
- Wanting to enroll with American Indian Tribes that do not allow those registered under the Indian Act to enroll;
- Wanting to identify and/or register as a Métis person;
- No longer wishing to be recognized on the federal Indian Register; or,
- Withdrawing consent to be registered as adults, for those whose parents registered them as children.
Bill C-38 would ensure that when an individual has had their name removed from the Register, they will:
- Legally retain their entitlement to be registered under the Indian Act;
- Legally retain a right to be registered again in the future;
- Legally retain the right to transmit their entitlement to their descendants.
This means that for some individuals, deregistration is a matter of having control over their own identity. For others, it’s a barrier to gaining membership to other Indigenous groups, like Métis, if they have mixed ancestry. This has prevented many people from accessing important services and benefits through a group they wish to identify with, that they should be entitled to. For example, Métis lose their right to Métis membership if they are registered under the Indian Act. Bill C-38 will provide individuals with the right and ability to have their names removed from the Indian Register.
Once deregistered, the individual will not have the right to access any programs, services, settlements and/or benefits associated with Indian Act registration. If an individual seeks to be re-registered, that individual will have no retroactive claim to any such benefits for the period in which they were deregistered. Any individual who opts to deregister will retain their entitlement to registration under the Indian Act, including the ability to regain their status in the future.
Natal band reaffiliation and membership
When a woman who is registered under the Indian Act is a member of the band that she was born into, either the mother or father’s band, this is referred to as being a member of her “natal band”.
If passed, Bill C-38 would recognize the acquired rights of all First Nations to membership with their natal band. This Bill would provide a legal mechanism to re-affiliate women and their descendants to their natal bands who were automatically moved to their husbands’ band list upon marriage dating back to 1869. Amendments to the Indian Act will provide an opportunity to re-establish important cultural and community connections for First Nations women and their families.
Outdated and offensive language in the Indian Act
This proposed amendment of Bill C-38 would address the removal of outdated and offensive language in the Indian Act related to dependent persons. The Act has administrated the lives of First Nations individuals, dating back to 1867. It is, simultaneously, an active legal instrument and a dated colonial artefact embedded with outdated and offensive language.
As strides towards inclusion, accessibility and diversity are being made, the phrase “mentally incompetent Indian” may be considered by some to be violent language that requires replacement. Despite an extensive number of laws written to support the needs of dependent adults and their families, the Indian Act remains the only law that attaches a precise legal meaning to “mentally incompetent Indian”.
If passed, Bill C-38 would replace all references to “mentally incompetent Indians” with the modern language “dependent person”. This amendment does not alter the definition of the term, but would remove offensive language so that it aligns the language with other contemporary laws.
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