Make it stop! Ending the remaining discrimination in Indian registration

APPA Standing Senate Committee on Indigenous Peoples

Make it stop! Ending the remaining discrimination in Indian registration

Ongoing discrimination in the registration provisions of the Indian Act remains and continues to affect First Nations women and their descendants.

Report

Read the report

Executive Summary

In recent decades, court challenges brought by First Nations women and their descendants have prompted Parliament to amend the Indian Act to address discrimination in the registration provisions. Generally, these amendments have made narrow, technical amendments to the Indian Act in response to court decisions, rather than taking a broad approach to address all inequities in the registration provisions. The most recent example occurred in 2017, when Parliament enacted An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général). Despite the Superior Court of Quebec’s instructions to eliminate “known” sex-based inequities in the registration provisions of the Indian Act, witnesses who appeared before the Standing Senate Committee on Aboriginal Peoples (the committee) identified multiple continuing inequities in registration not addressed by the 2017 amendments.

Status is important as it may confer Aboriginal and treaty rights to First Nations individuals, access to federal benefits, and potential membership in a First Nations community, among other important matters. Depending on the type of status one has, it enables an individual to pass status on to their children and grandchildren. However, First Nations women and their descendants continue to experience challenges in the highly fraught and lengthy registration process.

In 2022, the committee undertook a review of the 2017 amendments and their implementation by Indigenous Services Canada (ISC). The committee held three and a half meetings on this topic and heard from 17 witnesses. The committee wishes to thank all of the witnesses who appeared and shared their experiences and recommendations with us.

During its study, the committee found that outstanding inequities in registration remain and continue to affect First Nations women and their descendants. The committee is disappointed that, yet again, the Government of Canada is involved in litigation on the registration provisions of the Indian Act. The government has announced that it will modify the Indian Act for the fourth time to address discrimination in the registration provisions. The Government of Canada should take the opportunity in its forthcoming amendments to, once and for all, end discrimination against First Nations women and their descendants.

With this goal in mind, this report makes nine important recommendations to resolve the more than 150-year struggle over First Nations identity. The committee recommends that improvements be made to the registration process. First Nations individuals applying for status deserve to know that, as with applications for other federal documents, there are concrete timeframes for officials to process applications. Potential applicants also need an easy way to learn about their eligibility and the registration process. We recommend plain language materials be developed in Indigenous languages and Canada’s official languages and communicated to the broader public.

The committee believes action should be taken immediately to address inequities in registration. The committee urgently recommends that the Government of Canada repeal section 6(2) of the Indian Act (the “second generation cut-off”) that reduces the number of individuals with status. We believe the second generation cut-off perpetuates the policy of assimilation.

We further recommend that the Government of Canada repeal non-liability clauses in the 1985, 2010 and 2017 amendments to the Indian Act to pave the way for compensation for First Nations women and their descendants who have been denied status, and their very identities as First Nations people, for so long. The committee also recommends that a formal apology be provided as well as commemoration initiatives to honour those who fought to address discrimination in the registration provisions.

Recommendations

RECOMMENDATION 1

We therefore recommend that Indigenous Services Canada:

provide access to historical and genealogical records held by the department to individuals to facilitate their applications and retain more employees, such as “navigators” and researchers, to assist applicants with legal, historical and genealogical research;
develop clear, plain language information about new and existing entitlements for status, and make these available in Indigenous languages;
consolidate online information related to registration and develop a centralized, coherent, well-organized resource that lists where application assistance is available, where registration can take place and that links to the public education materials about registration entitlement developed by Indigenous organizations more broadly;
ensure the same information above is available in a print format for those that require specialized supports;
evaluate the effectiveness and reach of its public education campaign against population estimates of new registrants; and,
establish a plan to raise awareness of the new registration provisions, including broad education and outreach beyond Indigenous organizations, and send a public notice to all individuals in Canada.

RECOMMENDATION 2

We therefore recommend that Indigenous Services Canada:

establish and publish on the departmental website, a ten-day service standard to complete new and existing registrations following receipt of required documents from applicants;
address the backlog of applications on a priority basis, ensuring that applications from older applicants are dealt with as quickly as possible;
conduct a file review of previously denied status applications to determine whether applicants may be eligible under amendments to the Indian Act in 1985, 2010 and 2017, including those applications on unknown or unstated paternity, and that Indigenous Services Canada proactively contact individuals to notify them of their potential eligibility for registration;
simplify and transform the application process, set strict publicly available timelines for department officials to respond to applicants, clearly explain the stages of the application process and communicate these to the general public, to applicants and to this committee;
conduct an internal evaluation of registration more broadly focused on improving service delivery to First Nations;
publish an annual service standard report that includes:
- Indigenous Services Canada’s estimates of new registrations, actual registrations disaggregated by gender, region, and linguistic profile;
- the effectiveness of Indigenous Services Canada’s public education campaign, and the number of new applications for registration;
- average and median wait times for application processing, including times for the processing of complex applications;
- progress toward implementing a ten-day service standard; and
- number of protests and number of registration decisions that are appealed to the Superior Courts of each province.
establish a service standard committee that reviews the above report in order to make recommendations to monitor progress and assess policies and processes, provide guidance to officials and achieve greater accountability within Indigenous Services Canada. This committee should be comprised of First Nations leaders, as well as legal and statistical experts that reflect the diversity of First Nations; and
establish a robust independent registration review panel with First Nations representation to review denials, protests and complex applications to achieve greater accountability and transparency.

The committee requests a progress report on the implementation of these recommendations on a quarterly basis starting in October 2022.

RECOMMENDATION 3

We therefore recommend that the Office of the Auditor General of Canada conduct a performance audit of the registration of individuals by Indigenous Services Canada with a focus on the implementation of legislative amendments to the registration provisions of the Indian Act since 1985.

RECOMMENDATION 4

That the Government of Canada introduce legislation repealing section 6(2) of the Indian Act and develop an accompanying transition plan for those registered under section 6(2) as soon as possible, but no later than June 2023.

RECOMMENDATION 5

That Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada provide quarterly reports to the committee on the process and consultations undertaken to co-develop legislation to address enfranchisement with the first report due in October 2022.

RECOMMENDATION 6

That Indigenous Services Canada work with First Nations people and communities to develop an action plan with clear timeframes for the repeal of all discriminatory provisions of the Indian Act; the resolution of all outstanding inequities including enfranchisement, the 1985 cut-off and age and marital distinctions; and the implementation of all the recommendations from Claudette Dumont-Smith’s 2019 report; and that the department provide its first progress report on this plan by December 2022 and a final report by June 2023.

RECOMMENDATION 7

That the Government of Canada introduce legislation to repeal section 22 of An Act to Amend the Indian Act (1985); section 9 of the Gender Equity in Indian Registration Act (2010); and sections 10 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) (2017) to enable First Nations women and their descendants to access compensation.

RECOMMENDATION 8

That Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada work with Indigenous People and communities to provide reparations including an apology and compensation for the harms experienced by Indigenous women and their children. This must also include initiatives to commemorate the First Nations women who fought discrimination in the Indian Act.

RECOMMENDATION 9

That Indigenous Services Canada provide funding to support First Nations organizations to undertake consultations on how to re-establish connections between those who have lost status and their home communities. Further, that Indigenous Services Canada provide funding for any remedies or solutions proposed as a part of these consultations.

Ottawa – First Nations women and their descendants are still being denied status because of ongoing discrimination in the Indian Act, according to a report by the Senate Committee on Aboriginal Peoples.

The report Make it stop! Ending the remaining discrimination in Indian registration found that ongoing discrimination in the registration provisions of the Indian Act remains and continues to affect First Nations women and their descendants. Over the last several decades, and most recently in 2017, Parliament has enacted legislation in response to court decisions, making piecemeal technical changes to the Indian Act in response to obvious and persistent inequalities. Together, the government’s reluctant, piecemeal responses have only exacerbated the problem rather than addressing it.

The federal government, for example, has failed to address the “second-generation cut-off,” which strips status after two consecutive generations of mixed status parentage and disproportionately affects women. One witness likened this to a “legislated extinction date” for every First Nation in Canada.

First Nations women and their descendants face obstacles when attempting to register for “status” under the Indian Act. Obstacles to registration include challenges accessing documentation, significant wait times, indecipherable and overly technical registration provisions, and a complex application process.

The committee makes nine recommendations to finally end discrimination in the Indian Act. Those include repealing section 6(2) of the Indian Act (which establishes the “second generation cut-off”), providing plain-language materials about the registration provisions in Indigenous languages and Canada’s official languages, and providing compensation to Indigenous women and children who have been harmed by these shameful and discriminatory practices.

The federal government has thus far made only narrow and technical amendments to the Indian Act, and then only when the courts have forced it to. The committee urges the government to restore long-overdue equality to First Nations women and their descendants.

The committee would also like to recognize and thank the First Nations women who have long been fighting to resolve inequities in the Indian Act through sharing their stories and launching legal challenges.

Quick Facts

“Indian status” is important as it may confer Aboriginal and treaty rights to First Nations individuals, access to federal benefits and membership in a First Nations community.
Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), was introduced in the Senate on October 25, 2016. The bill was intended to remedy some sex-based inequities identified by the Superior Court of Quebec. Justice Chantal Masse wrote that “it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.”
Only 28,000 people have registered for status as of December 2020, despite the federal government saying that new provisions would allow “hundreds of thousands, or even millions” of new people to register.

Quotes

“For more than 150 years, the federal government has been stripping First Nations people of their status. I have seen how it has impacted family and friends all my life. We do not need more Band-Aid solutions, we need a comprehensive plan to ending gender-based discrimination in the Indian Act. First Nations should decide who has status — not the federal government.”

- Senator Brian Francis, Chair of the committee

“In my community of Membertou First Nation, there are a growing number of people under the age of 20 who do not have status, yet they have always lived there; they are culturally part of the community, but they are not entitled to federal housing or education benefits. From generation to generation, the provisions of the Indian Act are slowly shrinking populations of status First Nations.”

- Senator Dan Christmas, Deputy Chair of the committee

“This feels like déjà vu. We already outlined the problems with the deeply flawed Bill S-3 in 2016. Now, here we are again with a report that not only reiterates those concerns but further states that all federal amendments to the Indian Act have made gender-based discrimination issues even worse.”

- Senator Dennis Glen Patterson, member of the Subcommittee on Agenda and Procedure