Honourable senators, the Indian Act is the most blatantly racist and colonial act of Parliament that is still actively used and referenced to this day. It governs where we can live, what kind of health care we are entitled to, what we can do with our own lands and how we can make money. It even dictates who amongst our family can be legally called an “Indian.”

It is mind-boggling to me that in 2025 we are only just bringing forward a bill to address language like “mentally incompetent Indian,” as section 51 is labelled, and that we continue to tinker with who has a right to citizenship within our communities and nations.

I can appreciate that sometimes, with the crush of legislation before us, we can lose sight of the humanity behind the words, but I would urge you not to do that with this bill. This bill isn’t just about who gets to be a 6(1) or a 6(2) Indian. It’s not about more people looking for handouts and tax exemptions. This bill is about family members who were born into community, are a part of community and are claimed by community, but are not able to access the opportunities enjoyed by their siblings, cousins, aunts and uncles.

Due to the idiosyncrasies of the act, a family could have one sibling who has 6(1) status. All their children would have access to programming and Non-Insured Health Benefits. Another sibling, however, might be born after 1986 to the same parents and in the same circumstances. Yet, because of their birth year alone, they would be relegated to 6(2) status. Therefore, their children would have no status and no access to any of the opportunities enjoyed by their cousins merely because the government decided that this must be the way.

How did we get into this mess?

The history is long and complicated, so I will try to condense it for you, colleagues, and for any Canadians who may be listening to or reading this transcript in the future.

Through a series of discriminatory policies and laws, many ways for losing status were invented. The aim was to solve the “Indian problem” — as we have so often been referred to — by finding a way to lessen the number of Indians.

For example, a father could make a choice to own property or fight in a war, and the entire family would lose their status. Another way to lose status was for an Indigenous woman to marry a non-Indigenous man. Yes, we have punished love in this country, and we continue to do so.

One woman who lost her status this way was a former senator with whom I have had the pleasure and privilege to spend time: the Honourable Sandra Lovelace Nicholas. The Lovelace case was argued at the United Nations Human Rights Commission. It was filed on December 29, 1977, and the decision was rendered on July 30, 1981. The decision found that parts of the Indian Act were, indeed, discriminatory. Four years later, and after the passage of the Canadian Charter of Rights and Freedoms, Canada brought forward Bill C-31.

Bill C-31 did many things, such as creating the ability for those who lost status through enfranchisement to apply for reinstatement. It also enabled some bands to take control of their band membership under section 10, although I should point out that those membership codes first require the approval of the federal minister.

Most notably, however, the creation of an even bigger problem occurred. As explained on the Crown-Indigenous Relations website:

The federal government retained control over Indian registration and categories of registered Indians were established through sections 6(1) and 6(2) of the Indian Act (Bill C-31) as an attempt to address the concerns raised by First Nations during parliamentary debates around Bill C-31. The concerns of First Nations leaders focused on resource pressures resulting from an expected population increase in First Nations communities, and the fear of ethno-cultural erosion within First Nations due to the large number of individuals with no apparent community or cultural ties that would become entitled to registration. Through the introduction of these registration categories a second-generation cut-off was created when two successive generations of mixed parenting between a person entitled to registration and a person not so entitled (Indian and non-Indian) results in the third generation of children losing entitlement to registration.

Now, senators, is the term “second-generation cut-off” familiar to you? It may be, because a bill was introduced in the last Parliament, Bill C-71, now resurrected as Bill C-3, which sought to restore citizenship to “Lost Canadians” or Canadians who lost or never acquired citizenship due to certain outdated provisions of former citizenship legislation. The remedy to this “second-generation cut-off” is tied to the Canadian parent born abroad having the ability to demonstrate a “substantial connection to Canada” or — as proposed in the bill — of having spent a cumulative period of 1,095 days, or 3 years, physically present in Canada before the birth or adoption of the child.

Yet, for a Mi’kmaw child, who can spend their entire life living in community, that same ability to claim citizenship in the Mi’kmaq nation is not recognized. This is because, in the eyes of the government, we are wards of the state who can be dictated to, as opposed to strong, independent nations.

Experts such as Stewart Clatworthy, a demographer who has studied the demographic implications of amendments to Indian registration since the 1985 amendments, have spoken about the issue of the “second generation cut-off rule.” He has projected that, based on current legislation, in about 100 years no new child will be entitled to have their name added to the Indian Register.

As the years passed, incremental changes to the Indian Act were undertaken as a result of further appeals. McIvor v. Canada was filed in 1987, claiming that registration provisions were a breach of the Charter. In 2010, the Indian Act was once again amended through Bill C-3, ensuring the status of grandchildren of women who lost their status due to the “double-mother rule,” an enactment from 1951 that removed the status from grandchildren at age 21 in situations where the mother and paternal grandmother both acquired status through marriage to an Indian.

On August 3, 2015, the Honourable Chantal Masse of the Quebec Superior Court ruled on the Descheneaux case and found that, despite efforts in 1985 and 2010 to address it, “Sex discrimination, though more subtle than before, persists.” Justice Masse stated in her ruling that:

If there are more people registered under 6(1), this evolution will be slightly slower, but because of the nature of the mechanism in subsection 6(1), there will eventually be no more children born with an entitlement to be entered in the Register.

In that decision, the court ruled that paragraphs 6(1)(a), (c) and (f) as well as subsection 6(2) of the Indian Act infringe upon the Charter of Rights and Freedoms section that pertains to equality, equal protection and benefit under the law. It suspended its decision until February 3, 2017, giving Parliament time to address the issues affecting grandchildren and cousins under the act.

She was also clear in her message to parliamentarians as they began the work of bringing forward legislative amendments to the Indian Act to bring it into line with her ruling. She clearly stated:

Parliament should not interpret this judgment as strictly as it did the BCCA’s —

— the British Columbia Court of Appeal’s —

— judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

That additional point was well taken by colleagues in this chamber as they considered the infamous Bill S-3 in the Forty-second Parliament.

I want to acknowledge Senator Marilou McPhedran, who brought forward the “6(1)(a) all the way” amendment, supported by the likes of Senator Pate and former senator Dan Christmas. I also want to acknowledge that former senators Lillian Dyck and Sandra Lovelace Nicholas spoke loudly in support of Indigenous women, and that the bill’s critic, former senator Dennis Patterson, spoke up in support of the amendment, as well.

Finally, I want to recognize that the bill, as amended, passed through this chamber when both it and the Senate committee were dominated by members of the Conservative caucus. I believe in lifting up allies, and by voting to pass that amendment, you were, indeed, allies.

The support from the community was clear. In an open letter to Prime Minister Trudeau in 2017, a consortium made up of the Nova Scotia Native Women’s Association, the Newfoundland Native Women’s Association, the Indigenous Women’s Association of the Maliseet and Mi’kmaq Territories, the Eastern Door Indigenous Women’s Association and the Aboriginal Women’s Association of PEI wrote:

We know that the Indian Act is paternalistic and outdated legislation rooted in colonization and the goal of assimilating Indians. . . . However, we also recognize that for every day that the Indian Act continues, it is absolutely imperative that all remnants of gender-based discrimination be eliminated.

Prime Minister Trudeau, if you are truly a feminist Prime Minister, who sincerely means that there is no relationship more important than the one with Indigenous peoples; and you want the path forward to be based on Nation-to-Nation relations, then you must ensure that Indigenous women and our descendants are included in our Nations.

We urge you to remind your Cabinet members that the days of consulting on gender equality are over. All federal laws must be Charter compliant — and that includes Bill S-3. We urge you to support the “6(1)(a) all the way” amendment to Bill S-3.

Despite that appeal and the good work of this chamber, the other place saw fit to remove the Senate amendments and move forward without the “6(1)(a) all the way” approach. Instead, they proposed friendly amendments to the message in order to avoid an ugly fight in this chamber that would see them undertake a review of the remaining gender-specific discrimination in Indian registration and report back within three years of the bill receiving Royal Assent.

The offer was accepted and, according to the Crown-Indigenous Relations and Northern Affairs website:

The list of issues for consultation was further enhanced during the co-design of the collaborative process with input from First Nations and Indigenous organizations.

It continues, saying, “The comprehensive consultations under the collaborative process were launched on June 12, 2018.”

That enhanced list of issues included non-sex-based inequities in registration such as enfranchisement — which Bill S-2 deals with — scrip and second-generation cut-off.

The 2019 report on Bill S-3 boasts engagement with representatives from 395 First Nation communities and organizations, 10,403 participants through 419 community and regional organizations sessions funded by the department and $2.2 million in funding to Indigenous organizations to participate in the collaborative process.

While the process I’ve just described did result in the removal of the so-called 1951 cut-off — seeing the reinstatement of grandchildren born before September 4, 1951, of women who were removed from their First Nation’s band list or who lost status because they married a non-Indian man — it still did not address broader issues, such as the second-generation cut-off.

The briefing deck we received on Bill S-2 states on page 7 that:

The Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds was launched in November 2023, and the consultation phase and call-out for solutions was launched in December 2024.

More holding our breath while our children are ostracized for being “lesser” Indians. More waiting while communities try to stretch their limited own-source revenues to provide health care, schooling and programming opportunities for our children that they cannot access due to this construction called “status” simply because we believe that no child should be left behind.

In principle, senators, I believe in anything that restores identity and dignity to our people. However, I cannot support this continued piecemeal approach to Indian registration. I would support moving this bill to committee simply so that we can hear from the women directly about how they want to move forward. It is my hope that when the time comes, this chamber will once again find the courage to stand with them.

Wela’lioq.

Would Senator Prosper take a question?

Yes.

Thank you very much for your remarks. We know that you are also a former regional chief for the First Nations in your area.

My first question is, what are we going to say to the federal government if its answer is that it needs to consult with the chiefs before resolving the 6(1)(a) issue?

My second question is, why is the government cutting corners on consultations for certain national bills, but when these bills have to do with women, it delays the process and hides behind the chiefs to resolve the issue?

Could you answer that for me, please?

Thank you so much for that wonderful question, Senator Audette.

With respect to the first part regarding consultation, there has been extensive consultation. This issue has been studied significantly and there was an opportunity here in this chamber from the motion put forward by Senator McPhedran of “6(1)(a) all the way,” and it was reached here in this chamber until it went to the other place. We don’t need further research.

We can, certainly, go to committee with this bill and we can hear from witnesses again. However, it’s linked to your second question about why certain bills are being expedited at the speed of light through the parliamentary process when you have existing inequities within our communities that have long needed to be addressed on the merits by which they stand. Thank you.

Yes.

Thank you for the question, senator. You’re correct. Being a former chief of my community of Paqtnkek Mi’kmaw Nation and a regional chief, the realities in our community are quite inequitable for our members because leadership doesn’t view community members in terms of status or non-status because they are all community members. We’re all related.

They try their very best to provide, from own-source revenues, comparable programming and benefits from within their respective communities. We are all too familiar with the demographic trends as mentioned by people like Stewart Clatworthy where from a certain date, there will no longer be any status children being born within certain communities. This idea of continued consultation over a long-standing issue needs to be called out, and we need to force the government to address this issue on the merits by which it needs to be addressed.

Thank you for the question. I believe we can. I was going to say “I can only hope,” but honourable senators, we’re quite familiar with the issue here. We’re quite familiar with the blatant inequalities that exist within our community that have been long outstanding.

It’s going to be quite gripping when you hear the testimony and see the realities that exist within communities and the challenges that leadership is faced with. I believe that this chamber will do the right thing for not only Indigenous women but for all our communities and for generations to come. Thank you.