Eliminating known sex-based inequities in Indian registration
Learn what the Government of Canada is doing to ensure equity between the sexes in Indian registration.
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What was the Descheneaux decision?
On August 3, 2015, the Superior Court of Quebec announced its decision in the Descheneaux c. Canada (Procureur Général) case. The court found that several paragraphs and one subsection on Indian registration (status) under section 6 of the Indian Act unfairly violate equality rights under the Canadian Charter of Rights and Freedoms (Charter). This is because the section and paragraphs continue to support a difference in treatment between Indian women and Indian men, and their descendants.
The court struck down these Indian registration provisions, but suspended the implementation of its decision for a period of 18 months, until February 3, 2017, to allow the Government of Canada to make the necessary changes to the act.
What issues with the Indian Act were raised in the Descheneaux case?
The Descheneaux case deals with two specific situations of sex-based inequities in Indian registration, which affects:
- cousins
- siblings
The "cousins" issue relates to the different treatment in how Indian status is gained and passed on among first cousins of the same family. It depends on the sex of their Indian grandparent, in situations where the grandparent was married to a non-Indian before 1985. This results in different abilities to gain and pass on status between the maternal and paternal lines.
The "siblings" issue concerns the different treatment in the ability to pass on Indian status between male and female children born out of wedlock between the 1951 and 1985 amendments to the Indian Act. Indian women in this situation cannot pass on status to their descendants, unless their child's father is a Status Indian. Unlike Status Indian men in similar circumstances who can pass on status to their children regardless of the other parent's status.
More broadly, the Descheneaux decision highlights the continued residual sex-based inequities in Indian registration that were carried forward following the 1985 comprehensive changes to Indian registration and band membership under the Indian Act through Bill C-31 to comply with the Charter.
What is the Government of Canada's response to the Descheneaux decision?
In response to the Descheneaux decision, the Government of Canada launched a two-staged approach to eliminate known sex-based inequities in Indian registration and begin a collaborative process with First Nations and other Indigenous groups on the broader related issues.
Stage I:
- The Government of Canada will engage with First Nations and other Indigenous groups through information sessions to discuss the proposed legislative approach to the registration provisions of the Indian Act in response to the Descheneaux decision.
- The Government of Canada will introduce legislative amendments in the Parliament of Canada that will address known sex-based inequities in Indian registration.
Stage II:
- A collaborative process, consistent with the Government of Canada's commitment to reconciliation with Indigenous peoples, will be launched with First Nations and other Indigenous groups to examine the broader issues relating to Indian registration and band membership with the objective of identifying areas for possible future legislative amendments.
What are the next steps?
The Government of Canada has an obligation to amend the Indian Act to be in line with the Quebec Superior Court's Descheneaux decision by February 3, 2017.
The government has also committed to reconciliation and a renewed relationship, nation-to-nation, with Indigenous peoples in support of:
- self-determination commitments for sex-based equality
- the review of laws, policies and practices that impact the rights of Indigenous peoples
To meet all the commitments outlined, this two-staged approach will eliminate historic sex-based inequities in Indian registration under the Indian Act. This will open the door for dialogue and collaborative work with First Nations and other Indigenous groups on the broader issues associated with Indian registration and band membership.
For any questions or comments on what the Government of Canada is doing to eliminate known sex-based inequities in Indian registration, contact: IRIPMNationalSupport@aadnc-aandc.gc.ca
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