Thank you very much. I'm Joëlle Montminy.
I am the assistant deputy minister of the Resolution and Individual Affairs Sector at Indigenous and Northern Affairs Canada. You have already introduced my colleagues.
I would like to thank you for the opportunity to be here today to provide this committee with information on the government's response to the Descheneaux decision. As you know, the response involves amendments to Bill S-3, an Act to amend the Indian Act, aimed at eliminating residual sex-based inequities in Indian registration, which will be followed by a collaborative process with indigenous groups on broader related issues.
I would like to say a few words on the Descheneaux decision.
In August 2015, the Quebec Superior Court ruled that the provisions of the Indian Act violated the equality provisions of the charter because they perpetuated residual sex-based inequities in Indian status.
The Descheneaux case dealt with the differential treatment between the male and female lines in the acquisition and transmission of Indian status relating to first cousins of the same family and siblings. As a result, the court declared several key provisions of the Indian Act invalid and suspended its decision for 18 months to allow time for the necessary legislative amendments. Canada originally filed an appeal, but the decision came down during the election, and the appeal was withdrawn in February 2016 by the new government.
In order to comply with the decision, legislation must be passed by February 3, 2017. In the absence of a legislative response by this deadline, Canada will be unable to register the majority of individuals seeking status in the province of Quebec and possibly in other jurisdictions as the key provisions in the Indian Act will be inoperative.
Last July the government launched a two-stage approach to respond to the Descheneaux decision. As part of the first stage, the government started holding information sessions with indigenous groups and introduced legislative amendments to the Indian Act through Bill S-3 to eliminate residual sex-based inequities in Indian registration.
The second stage will be a jointly designed, collaborative process with indigenous groups to examine the broader and systemic issues relating to Indian registration, band membership, and citizenship. The purpose of this process will be to identify areas for future reform.
Before examining the proposed amendments in more detail, I'd like to provide you with some background on Indian registration to better understand the context of Bill S-3.
Under section 6 of the Indian Act, the federal government exercises exclusive authority in the determination of who is an Indian. Eligibility for Indian status is determined on the basis of an individual's descent from a person registered or eligible to be registered as an Indian.
Prior to contact with European settlers, we know that first nations had diverse ways of identifying their citizens, including clan, kinship, and hereditary systems. These were displaced as a result of the introduction of the concept of “Indian” in colonial and then Canadian legislation.
Starting in 1869, patrilineal descent rules and sex-based criteria for Indian status and band membership were entrenched in federal laws, and continued under successive changes to the Indian Act. Under these rules, Indian women who married non-Indian men lost status, as did their children, and through enfranchisement, individuals and their descendants lost Indian status if they became a doctor, a lawyer, Christian minister, joined the military, or earned a university degree.
In 1985, the Indian Act was amended through Bill C-31 to comply with the charter. This was the first step in addressing sex-based and other inequities in Indian registration. As part of these amendments, Indian women who married non-Indians no longer lost status, and those who had previously lost status could be reinstated, as were their children. Enfranchisement was also abolished, and individuals who had previously lost status could be reinstated, as could their children.
The 1985 amendments also introduced categories for Indian registration through subsection 6(1) of the Indian Act, and also limitations on the transmission of Indian status after two consecutive generations of parenting with a non-Indian through subsection 6(2). That's commonly known as the second-generation cut-off. It's important to note that the second-generation cut-off rule was implemented in direct response to concerns raised by first nations during consultation on Bill C-31.
Finally, Bill C-31 also reinstated first nation authorities to control their membership through section 10 of the Indian Act.
Despite these amendments, some residual sex-based inequities stemming from the past were carried forward. New issues arose as a result of the introduction of categories of Indian registration—I've mentioned subsections 6(1) and 6(2)—that resulted in an increase in legal challenges.
The first case that was significant was the McIvor case, which was decided by the B.C. Court of Appeal in 2009. In response to that case, Parliament passed Bill C-3, the Gender Equity in Indian Registration Act, in 2011. Bill C-3 amended certain registration provisions to ensure that eligible grandchildren of women who had lost status as a result of marrying non-Indian men could then become entitled to registration, which is basically extending the eligibility to one more generation.
Following Bill C-3, the government also launched an exploratory process to gather the views of indigenous groups regarding issues related to registration, membership, and citizenship. Over 3,500 individuals participated in this initiative, and the findings revealed a myriad of perspectives.
This brings us to Bill S-3, which proposes amendments to Indian registration to comply with the Descheneaux decision and to eliminate all known sex-based inequities. Bill S-3 would amend subsection 6(1) of the Indian Act to extend eligibility for Indian status to descendants of the female line. These changes would specifically address issues relating to cousins, siblings, and removed or omitted minors.
This is a bit difficult to describe just in words, so later on you can consult the deck that we've provided to you and the comparator charts on pages 22, 24, and 26, where you'll be able to see the effect of the changes that I will describe.
The cousins issue relates to the differential treatment in the acquisition and transmission of Indian status that arises among first cousins of the same family depending on the sex of their Indian grandparents in situations where the grandparent was married to a non-Indian prior to 1985. This results in different abilities to acquire and transmit status between the maternal and paternal lines.
The siblings issue concerns the different treatment in the ability to transmit 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 transmit status to their descendants, unless their children's father is a status Indian. Indian men in similar circumstances can transmit status to their children, regardless of whether they parent with a non-Indian woman.
Guided by the advice of the court to not take a narrow approach in our legislative approach, a third issue has been included in the bill. It deals with removed or omitted minors.
Prior to 1985, registered minor children who were born of Indian parents or of an Indian mother lost their status, as did their mother if she married a non-Indian man after their birth. This is in contrast to their adult or married siblings, who retained their status.
While Bill C-31 restored Indian status to women and their children in this situation, it did not make eligible the children of the reinstated minor. The proposed amendments in Bill S-3 would address this issue and extend eligibility for Indian status under subsection 6(1) to the children of the reinstated minor child.
As would be expected, the proposed legislative changes will result in an increase in the number of individuals who will become entitled to Indian status. There will also be a change in the status category for some already registered individuals.
Based on demographic analysis, between 28,000 and 35,000 individuals will become newly entitled for Indian status as a result of Bill S-3. This increase will impact the costs of two federal programs that are directly linked to registration: INAC's post-secondary education program, and Health Canada's non-insured health benefits program for first nations and Inuit.
The government's fall economic statement released on November 2 identified approximately $149 million for the implementation of Bill S-3. In addition, the department is continuing its evaluation of the potential costs of the post-secondary education program.
Changes to entitlement for Indian status may affect funding over a longer term for other programs. INAC will monitor the impacts over time on the mobility of first nations who may decide to move to reserves.
As previously mentioned, starting in the summer of 2016, information sessions were held with indigenous groups, and we heard a multitude of perspectives. Some concerns that were expressed related to the short time frame for information sessions, the limited scope of the proposed changes, the impacts of accommodating newly entitled members, and the narrow focus on technical amendments that perpetuate colonial Indian structures.
Recognizing these concerns, the government is committed to the second stage of this initiative. The deadline of February 3, 2017, imposed by the court is insufficient to allow us to conduct meaningful consultations with indigenous groups to address all these complex issues in a short time frame, so in considering this, the government will launch the second stage in February 2017, which will be joint work with indigenous groups to address broader issues with a view to future reform.
Thank you.
