An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (S.C. 2017, c. 25)
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Assented to 2017-12-12
An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)
S.C. 2017, c. 25
Assented to 2017-12-12
An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)
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.
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-5Indian Act
1 Section 5 of the Indian Act is amended by adding the following after subsection (5):
Marginal note: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.
Marginal note: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.
Marginal note: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;
Marginal note: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;
Marginal note: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.
Marginal note:R.S., c. 32 (1st Supp.), s. 4
(5) Subsection 6(2) of the Act is replaced by the following:
Marginal note: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.
Marginal note: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.
2.1 (1) Paragraphs 6(1)(c.01) to (c.2) of the Act are repealed.
(2) Paragraphs 6(1)(c.4) to (c.6) of the Act are repealed.
(3) Paragraph 6(1)(c) of the Act is renumbered as paragraph (a.1) and is repositioned accordingly.
(4) Paragraph 6(1)(c.3) of the Act is renumbered as paragraph (a.2) and is repositioned accordingly.
(5) Subsection 6(1) of the Act is amended by adding the following after paragraph (a.2):
(a.3) that person is a direct descendant of a person who is, was or would have been entitled to be registered under paragraph (a.1) or (a.2) and
(6) The portion of subsection 6(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Deeming provision
(3) For the purposes of paragraphs (1)(a.3) and (f) and subsection (2),
(7) Paragraph 6(3)(b) of the Act is replaced by the following:
(b) a person who is described in paragraph (1)(a.1), (d), (e) or (f) or subsection (2) and who was no longer living on April 17, 1985 is deemed to be entitled to be registered under that paragraph or subsection; and
(8) Paragraph 6(3)(c) of the Act is repealed.
(9) Paragraph 6(3)(d) of the Act is replaced by the following:
(d) a person who is described in paragraph (1)(a.2) or (a.3) 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
Marginal note:2010, c. 18, s. 3
(2) Subsection 11(3.1) of the Act is replaced by the following:
Marginal note: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.
3.1 (1) Paragraph 11(1)(c) of the Act is replaced by the following:
(c) that person is entitled to be registered under paragraph 6(1)(a.1) and ceased to be a member of that band by reason of the circumstances set out in that paragraph; or
(2) Paragraphs 11(3)(a) and (a.1) of the Act are replaced by the following:
(a) a person whose name was omitted or deleted from the Indian Register or a Band List in the circumstances set out in paragraph 6(1)(a.1), (d) or (e) and who was no longer living on the first day on which the person would otherwise be entitled to have the person’s name entered in the Band List of the band of which the person ceased to be a member is deemed to be entitled to have the person’s name so entered;
(a.1) a person who would have been entitled to be registered under paragraph 6(1)(a.2) or (a.3), 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
(3) Paragraphs 11(3.1)(a) to (i) of the Act are replaced by the following:
(a) they are entitled to be registered under paragraph 6(1)(a.2) 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; or
(b) they are entitled to be registered under paragraph 6(1)(a.3) and one of their parents, grandparents or other ancestors
3.2 Subsections 64.1(1) and (2) of the Act are replaced by the following:
Marginal note:Expenditure of capital moneys with consent
64.1 (1) A person who has received an amount that exceeds $1,000 under paragraph 15(1)(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, by reason of ceasing to be a member of a band in the circumstances set out in paragraph 6(1)(a.1), (d) or (e) is not entitled to receive an amount under paragraph 64(1)(a) until such time as the aggregate of all amounts that the person would, but for this subsection, have received under paragraph 64(1)(a) is equal to the amount by which the amount that the person received under paragraph 15(1)(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, exceeds $1,000, together with any interest.
Marginal note:Expenditure of capital moneys in accordance with by-laws
(2) If the council of a band makes a by-law under paragraph 81(1)(p.4) bringing this subsection into effect, a person who has received an amount that exceeds $1,000 under paragraph 15(1)(a), as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that paragraph, by reason of ceasing to be a member of the band in the circumstances set out in paragraph 6(1)(a.1), (d) or (e) is not entitled to receive any benefit afforded to members of the band as individuals as a result of the expenditure of Indian moneys under paragraphs 64(1)(b) to (k), subsection 66(1) or subsection 69(1) until the amount by which the amount so received exceeds $1,000, together with any interest, has been repaid to the band.
Transitional Provisions
Marginal note: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.
Marginal note:Same meaning
(2) Words and expressions used in sections 5 to 10.1 have the same meaning as in the Indian Act.
Marginal note:Application
5 Sections 6 to 8 apply if the suspension of the declaration expires before the day on which the order referred to in subsection 15(1) is made.
Marginal note:Registration continued
6 For 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.
Marginal note:Registration entitlements recognized
7 For 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 referred to in subsection 15(1) 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.
Marginal note:Membership continued
8 For 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
Marginal note:Construction
9 The 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.
Marginal note:No liability
10 For 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 section 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.
Marginal note:No liability
10.1 For 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 section comes into force; and
(b) that person or one of the person’s parents, grandparents or other ancestors is entitled to be registered under paragraph 6(1)(a.1), (a.2) or (a.3) of the Indian Act.
Consultations and Reports
Marginal note: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.
Marginal note: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, of the United Nations Declaration on the Rights of Indigenous Peoples and, if applicable, of the Canadian Human Rights Act, in regard to those issues.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Publication
13 The Minister must publish every report laid before Parliament under sections 11 and 12 on the Department’s website immediately after their tabling.
Marginal note:Same meaning
14 Words and expressions used in sections 11 to 13 have the same meaning as in the Indian Act.
Coming into Force
Marginal note:Order in council
15 (1) This Act, other than sections 2.1, 3.1, 3.2 and 10.1, 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.
Marginal note:Order in council
(2) Sections 2.1, 3.1, 3.2 and 10.1 come into force on a day to be fixed by order of the Governor in Council, but that day must be after the day fixed under subsection (1).
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