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First Session, Forty-second Parliament,
64-65-66 Elizabeth II, 2015-2016-2017
SENATE OF CANADA
BILL S-3
An Act to amend the Indian Act (elimination of sex-based inequities in registration)
AS PASSED
BY THE SENATE
June 1, 2017
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. This enactment requires the Minister of Indian and Northern Affairs to initiate consultations on issues related to registration and band membership and to conduct reviews on sex-based inequities under the Indian Act, and to report to Parliament on those activities.
Available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca


1st Session, 42nd Parliament,
64-65-66 Elizabeth II, 2015-2016-2017
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
1Section 5 of the Indian Act is amended by adding the following after subsection (5):
Unknown or unstated parentage
(6)If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.
No presumption
(7)For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.
2010, c. 18, s. 2(2)
2(1)Paragraph 6(1)‍(a) of the Act is replaced by the following:
(a)that person was registered or entitled to be registered immediately before April 17, 1985;
(a.‍1)that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)‍(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;
(a.‍2)the purpose of this provision is to entitle to registration under paragraph (a) those persons who were previously not entitled to registration under paragraph (a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to 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;
(c.‍02)that person meets the following conditions:
(i)the name of one of their parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subparagraph 12(1)‍(a)‍(iv) or subsection 12(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 was at the time of that person’s birth entitled to be registered or, if he was no longer living at that time, 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;
(c.‍5)that person meets the following conditions:
(i)one of their parents is entitled to be registered under paragraph (c.‍4) and one of that parent’s parents is entitled to be registered under paragraph (c.‍3) or, if that parent or parent’s 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 (c.‍4) or (c.‍3), as the case may be, 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;
(c.‍6)that person meets the following conditions:
(i)one of their parents is entitled to be registered under paragraph (c.‍02) — 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 the name of one of that parent’s parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subsection 12(2), as that provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that provision,
(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 who is described in paragraph (1)‍(c.‍01) or (c.‍02) or any of paragraphs (1) (c.‍2) to (c.‍6) 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.
3(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.‍6), 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.‍6)
(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.‍02) 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.‍02)‍(i);
(c)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);
(d)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;
(e)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;
(f)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;
(g)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;
(h)they are entitled to be registered under paragraph 6(1)‍(c.‍5) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍4) 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.‍4) came into force, had he or she not died; or
(i)they are entitled to be registered under paragraph 6(1)‍(c.‍6) and one of their parents is entitled to be registered under paragraph 6(1)‍(c.‍02) 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.‍02) came into force, had he or she not died.
Transitional Provisions
Definition of declaration
4(1)In sections 5 to 8 and 15, 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 5 to 10 have the same meaning as in the Indian Act.
Application
5Sections 6 to 8 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
6For 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
7For 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
8For 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 Provisions
Construction
9The provisions of the Indian Act that are amended by this Act are to be liberally construed and interpreted so as to remedy any disadvantage to a woman, or her descendants, born before April 17, 1985, with respect to registration under the Indian Act as it read on April 17, 1985, and to enhance the equal treatment of women and men and their descendants under the Indian Act.
No liability
10For 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) or (c.‍02) or any of paragraphs 6(1)‍(c.‍2) to (c.‍6) of the Indian Act.
Consultations and Reports
Consultations by Minister
11(1)The Minister must, within six months after the day on which this Act receives royal assent, initiate consultations with First Nations and other interested parties in order to address, in collaboration with those First Nations and other parties, issues raised by the provisions of the Indian Act related to registration and band membership, including consultations on
(a)issues relating to adoption;
(b)the 1951 cut-off date for entitlement to registration;
(c)the second-generation cut-off rule;
(d)unknown or unstated paternity;
(e)enfranchisement;
(f)the continued federal government role in determining Indian status and band membership; and
(g)First Nations’ authorities to determine band membership.
Requirement
(2)The Minister, the First Nations and the other interested parties must, during the consultations, consider the impact of the Canadian Charter of Rights and Freedoms and, if applicable, of the Canadian Human Rights Act, in regard to those issues.
Report to Parliament — design of consultation process
(3)The Minister must cause to be laid before each House of Parliament, within five months after the day on which this Act receives royal assent, a report on the design of a process by which the Minister is to carry out the consultations described to in subsection (1).
Report to Parliament — results of consultations
(4)The Minister must cause to be laid before each House of Parliament, within 12 months after the day on which the consultations begin, a report on the progress made as a result of the consultations and collaboration. The report must set out details as to the consultations carried out, including details related to
(a)issues relating to adoption;
(b)the 1951 cut-off date for entitlement to registration;
(c)the second-generation cut-off rule;
(d)unknown or unstated paternity;
(e)enfranchisement;
(f)the continued federal government role in determining Indian status and band membership; and
(g)First Nations’ authorities to determine band membership.
Referral to committee
(5)Each report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.
Report to Parliament
12(1)The Minister must, within three years after the day on which this Act receives royal assent,
(a)undertake the following reviews:
(i)a review of the provisions of section 6 of the Indian Act that are enacted by this Act in order to determine whether all of the sex-based inequities have been eliminated with respect to those provisions, and
(ii)a review of the operation of the provisions of the Indian Act that are enacted by this Act; and
(b)cause to be laid before each House of Parliament a report on those reviews that includes, if he or she determines that any sex-based inequities still exist with respect to the provisions of section 6 of the Indian Act that are enacted by this Act, a statement of any changes to the Indian Act that he or she recommends in order to reduce or eliminate those sex-based inequities.
Referral to committee
(2)The report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.
Publication
13The Minister must publish every report laid before Parliament under sections 11 and 12 on the Department’s website immediately after their tabling.
Same meaning
14Words and expressions used in sections 11 to 13 have the same meaning as in the Indian Act.
Coming into Force
Order in council
15This 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

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