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First Session, Forty-second Parliament,
64-65 Elizabeth II, 2015-2016
SENATE OF CANADA
BILL S-3
An Act to amend the Indian Act (elimination of sex-based inequities in registration)
FIRST READING, October 25, 2016
THE HONOURABLE SENATOR HARDER, P.‍C.
90813


SUMMARY
This enactment amends the Indian Act to provide new entitlements to registration in the Indian Register in response to the decision in Descheneaux c. Canada (Procureur général) that was rendered by the Superior Court of Quebec on August 3, 2015, and to provide that the persons who become so entitled also have the right to have their name entered in a Band List maintained by the Department of Indian Affairs and Northern Development.
Available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca


1st Session, 42nd Parliament,
64-65 Elizabeth II, 2015-2016
SENATE OF CANADA
BILL S-3
An Act to amend the Indian Act (elimination of sex-based inequities in registration)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.‍S.‍, c. I-5
Indian Act
2010, c. 18, s. 2(2)
1(1)Paragraph 6(1)‍(a) of the Indian Act is replaced by the following:
(a)that person was registered or entitled to be registered immediately before April 17, 1985;
2010, c. 18, s. 2(3)
(2)Paragraph 6(1)‍(c) of the Act is replaced by the following:
(c)the name of that person was omitted or deleted from the Indian Register, or from a band list before September 4, 1951, under subparagraph 12(1)‍(a)‍(iv), paragraph 12(1)‍(b) or subsection 12(2) or under subparagraph 12(1)‍(a)‍(iii) pursuant to an order made under subsection 109(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as any of those provisions;
(c.‍01)that person meets the following conditions:
(i)the name of one of their parents was, as a result of that parent’s mother’s marriage, omitted or deleted from the Indian Register on or after September 4, 1951 under subparagraph 12(1)‍(a)‍(iii) pursuant to an order made under subsection 109(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as either of those provisions,
(ii)their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and
(iii)they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;
(3)Subsection 6(1) of the Act is amended by adding the following after paragraph (c.‍1):
(c.‍2)that person meets the following conditions:
(i)one of their parents is entitled to be registered under paragraph (c.‍1) or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which that paragraph came into force, had he or she not died, and
(ii)they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;
(c.‍3)that person meets the following conditions:
(i)they were born female during the period beginning on September 4, 1951 and ending on April 16, 1985 and their parents were not married to each other at the time of the birth,
(ii)their father is entitled to be registered or, if he is no longer living, was at the time of death entitled to be registered, and
(iii)their mother was not at the time of that person’s birth entitled to be registered;
(c.‍4)that person meets the following conditions:
(i)one of their parents is entitled to be registered under paragraph (c.‍2) or (c.‍3) or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which that paragraph came into force, had he or she not died,
(ii)their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and
(iii)they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;
R.‍S.‍, c. 32 (1st Supp.‍), s. 4
(4)Paragraph 6(1)‍(f) of the Act is replaced by the following:
(f)both parents of that person are entitled to be registered under this section or, if the parents are no longer living, were so entitled at the time of death.
R.‍S.‍, c. 32 (1st Supp.‍), s. 4
(5)Subsection 6(2) of the Act is replaced by the following:
Persons entitled to be registered
(2)Subject to section 7, a person is entitled to be registered if one of their parents is entitled to be registered under subsection (1) or, if that parent is no longer living, was so entitled at the time of death.
Clarification
(2.‍1)A person who is entitled to be registered under both paragraph (1)‍(f) and any other paragraph of subsection (1) is considered to be entitled to be registered under that other paragraph only, and a person who is entitled to be registered under both subsection (2) and any paragraph of subsection (1) is considered to be entitled to be registered under that paragraph only.
(6)Subsection 6(3) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d)a person described in paragraph (1)‍(c.‍01), (c.‍2), (c.‍3) or (c.‍4) and who was no longer living on the day on which that paragraph came into force is deemed to be entitled to be registered under that paragraph.
2(1)Subsection 11(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after that paragraph:
(a.‍1)a person who would have been entitled to be registered under any of paragraphs 6(1)‍(c.‍01) to (c.‍4), had they been living on the day on which that paragraph came into force, and who would otherwise have been entitled, on that day, to have their name entered in a Band List, is deemed to be entitled to have their name so entered; and
2010, c. 18, s. 3
(2)Subsection 11(3.‍1) of the Act is replaced by the following:
Additional membership rules — paragraphs 6(1)‍(c.‍01) to (c.‍4)
(3.‍1)A person is entitled to have their name entered in a Band List that is maintained in the Department for a band if
(a)they are entitled to be registered under paragraph 6(1)‍(c.‍01) and one of their parents ceased to be a member of that band by reason of the circumstances set out in subparagraph 6(1)‍(c.‍01)‍(i);
(b)they are entitled to be registered under paragraph 6(1)‍(c.‍1) and their mother ceased to be a member of that band by reason of the circumstances set out in subparagraph 6(1)‍(c.‍1)‍(i);
(c)they are entitled to be registered under paragraph 6(1)‍(c.‍2) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍1) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6(1)‍(c.‍1) came into force, had he or she not died;
(d)they are entitled to be registered under paragraph 6(1)‍(c.‍3) and their father is entitled to have his name entered in the Band List or, if their father is no longer living, was so entitled at the time of death;
(e)they are entitled to be registered under paragraph 6(1)‍(c.‍4) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍2) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6(1)‍(c.‍2) came into force, had he or she not died; or
(f)they are entitled to be registered under paragraph 6(1)‍(c.‍4) and their mother is entitled to be registered under paragraph 6(1)‍(c.‍3) and to have her name entered in the Band List or, if their mother is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6(1)‍(c.‍3) came into force, had she not died.
Transitional Provisions
Definition of declaration
3(1)In sections 4 to 7 and 9, declaration means the declaration made on August 3, 2015 by the Superior Court of Quebec in Descheneaux c. Canada (Procureur général), 2015 QCCS 3555, that paragraphs 6(1)‍(a), (c) and (f) and subsection 6(2) of the Indian Act are inoperative.
Same meaning
(2)Words and expressions used in sections 4 to 8 have the same meaning as in the Indian Act.
Application
4Sections 5 to 7 apply if the suspension of the declaration expires before the day on which the order fixing the day on which this Act comes into force is made.
Registration continued
5For greater certainty, subject to any deletions made by the Registrar under subsection 5(3) of the Indian Act, any person who was, immediately before the suspension of the declaration expires, registered and entitled to be registered under paragraph 6(1)‍(a), (c) or (f) or subsection 6(2) of that Act continues to be registered.
Registration entitlements recognized
6For greater certainty, subject to any deletions made by the Registrar under subsection 5(3) of the Indian Act, for the purposes of paragraph 6(1)‍(f) and subsection 6(2) of that Act, the Registrar must, in respect of the period beginning on the day after the day on which the suspension of the declaration expires and ending on the day on which the order fixing the day on which this Act comes into force is made, recognize any entitlements to be registered that existed under paragraph 6(1)‍(a), (c) or (f) or subsection 6(2) of the Indian Act immediately before the suspension of the declaration expires.
Membership continued
7For greater certainty, any person whose name appeared immediately before the expiry of the suspension of the declaration on a Band List maintained in the Department is not deprived of the right to have their name entered on that Band List by reason only of the declaration.
Related Provision
No liability
8For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty in right of Canada, or a council of a band, for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their duties, only because
(a)a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b)one of the person’s parents is entitled to be registered under paragraph 6(1)‍(c.‍01), (c.‍2), (c.‍3) or (c.‍4) of the Indian Act.
Coming into Force
Order in council
9This Act comes into force or is deemed to have come into force on a day to be fixed by order of the Governor in Council, but that day must be the day on which the suspension of the declaration expires.
Published under authority of the Senate of Canada



EXPLANATORY NOTES
Clause 1: (1) to (4)Relevant portion of subsection 6(1):
6(1)Subject to section 7, a person is entitled to be registered if
(a)that person was registered or entitled to be registered immediately prior to April 17, 1985;
.‍.‍.
(c)the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)‍(a)‍(iv), paragraph 12(1)‍(b) or subsection 12(2) or under subparagraph 12(1)‍(a)‍(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;
.‍.‍.
(f)that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.
(5)Existing text of subsection 6(2):
(2)Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).
(6)Relevant portion of subsection 6(3):
(3)For the purposes of paragraph (1)‍(f) and subsection (2),
Clause 2: (1)Relevant portion of subsection 11(3):
(3)For the purposes of paragraph (1)‍(d) and subsection (2),
(2)Existing text of subsection 11(3.‍1):
(3.‍1)A person is entitled to have the person’s name entered in a Band List maintained in the Department for a band if the person is entitled to be registered under paragraph 6(1)‍(c.‍1) and the person’s mother ceased to be a member of that band by reason of the circumstances set out in subparagraph 6(1)‍(c.‍1)‍(i).

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