Rights-Holders Information Kit

2023-2024 issues for consultation

• Second-Generation Cut-Off: The limitations of registration for individuals with 1 parent entitled to registration under 6(2) of the Indian Act
• Section 10 Voting Thresholds: The double majority threshold requirement for First Nations to take control of their membership under Section 10 of the Indian Act

This Collaborative Process includes Phase 1: The Co-Development and Information Sharing Phase and Phase 2: The Consultation Phase.

Phase 1 consists of:

• the Rights-Holders Information Sharing Initiative^{Reference 1}, which aims to fulfill the department's goal of providing early and ongoing information and support to rights-holders, in preparation for consultation; and,
• the Indigenous Advisory Process^{Reference 2}, which aims to co-develop consultation materials, events, and activities with Indigenous partner organizations, while providing guidance on how the department and consultation participants can work together to achieve deep and meaningful consultation and cooperation as set out in the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA).

Canada is committed to meaningful consultation and cooperation with First Nations and will seek recommendations for the best ways to move forward on these issues. If solutions are recommended and supported by First Nations governing bodies and impacted Indigenous Peoples during consultation, Canada will then continue to work cooperatively with First Nations to co-develop legislative amendments that reflect these recommendations.

Historical review of amendments to the registration provisions of the Indian Act

1869: The Gradual Enfranchisement Act created a legal definition of 'Indian',^{Reference 3} not based on First Nations kinship and community ties, but on the colonial belief in the predominance of men over women.

The "marrying out rule" was introduced, resulting in:

• First Nations women who married non-entitled men lost their status, and lost the ability to transmit status to their children.
• First Nations men who married non-entitled women not only kept their status, but their non-entitled wives were granted status, and they retained the ability to transmit status to their children.

1876: The Indian Act was introduced, and the "marrying out rule" was maintained.

1951: Substantial changes were made to the Indian Act, including the creation of a centralized Indian Register. Amendments reinforcing discrimination against women and their descendants were made, including the "double mother rule"^{Reference 4}.

1960s and 1970s: Jeanette Lavell of Wikwemkoong, Yvonne Bédard of Six Nations of the Grand River,^{Reference 5} Elder-activist Mary Two Axe Earley of Kanien'kehá:ka,^{Reference 6} and Senator Sandra Lovelace Nicholas of Maliseet Nation^{Reference 7} brought various challenges against the Indian Act for its discrimination against women and their descendants.

1985: With the new backdrop of the Charter of Rights, and increased international pressure, C-31, An Act to Amend the Indian Act was enacted with the intention of eliminating sex-based inequities in the Indian Act.

It introduced changes that removed some sex-based inequities,^{Reference 8} reinstated entitlement to registration for many,^{Reference 9} maintained the status of all people who were entitled prior to C-31 by virtue of section 6(1)(a),^{Reference 10} created 5 registration categories under section 6(1) and introduced the "second-generation cut-off" under section 6(2).^{Reference 11}

Considered an important step forward at the time, C-31 did not address all sex-based inequities, and today, options for solutions to the second-generation cut-off are being consulted on with the intent of reform.

2009: In the McIvor decision, the BC Court of Appeal ruled that the Indian Act violated the Charter of Rights and was discriminatory based on sex, because:

• First Nations women who had lost their status because they married a non-entitled man, whose status was restored by C-31, still were unable to pass on entitlement to their grandchildren
• In comparison, First Nations men who married non-entitled women were still able to pass on entitlement to their grandchildren

2011: C-3, Gender Equity in Indian Registration Act introduced changes that restored status to the grandchildren of First Nations women who had married non-entitled men, and created the "1951 cut-off" in attempts to fix the "double mother" rule introduced in 1951.^{Reference 12}

C-3 did not resolve the inequities in entitlement for further descendants of women compared to descendants of men in similar circumstances, resulting in further litigation against Canada.

2015: In the Descheneaux decision, the Superior Court of Quebec ruled that the Indian Act violated the Charter of Rights, and was discriminatory based on sex.

2017: In the Gehl decision, the Ontario Court of Appeal supported Dr. Lynn Gehl, an Algonquin Anishinaabe-kwe and determined that women were unfairly disadvantaged by the Registrar's policy with respect to unstated or unknown parentage.

To address these persisting sex-based inequities, on December 22, 2017, the first phase of S-3, An Act to Amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) came into force.

The "1951 cut-off" was left in place until consultation with First Nations and impacted individuals occurred, at which time the amendments were brought fully into force.

2018-2019: During the Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship, First Nations were consulted on the removal of the "1951 cut-off" as well as broader issues relating to the Indian Act. The findings of this consultation process continue to inform present-day consultations.

2019: On August 15, 2019, S-3 was brought fully into force to remove the "1951 cut-off", and new registration provisions mean that descendants of First Nations women who married non-entitled men are treated the same as descendants of First Nations men who married non-entitled women.

2020: In the Final Report to Parliament on the Review of S-3, Canada presented next steps towards reform, including addressing enfranchisement and deregistration, and consulting on a legislative remedy for the second-generation cut-off.

2021: Nicholas v. Canada (Attorney General) was filed against Canada, arguing that people with family histories of enfranchisement do not have the same capacity to transmit status to their descendants as people without a family history of enfranchisement.

2022: Nicholas v. Canada (Attorney General) was put on hold when Canada committed to introduce legislation to fix the inequities caused by enfranchisement-related provisions.

On December 14, 2022, Bill C-38, An Act to Amend the Indian Act (new registration entitlements) was introduced,^{Reference 13} and proposed 4 amendments to address issues recommendations made during the 2018/19 Collaborative Process, including enfranchisement and deregistration. At this time, the Minister of Indigenous Services, Patty Hajdu, committed to a consultation and cooperation process on broader reform issues related to registration and band membership under the Indian Act, notably including the second-generation cut-off.

2023: On June 21, 2023, after 2 years of consultation and cooperation with First Nations, Inuit and Métis, the Department of Justice released the UN Declaration on the Rights of Indigenous Peoples Act Action Plan.

Chapter 2 of the Action Plan presents Action Plan Measures (APMs) specific to First Nations Priorities.

These include the following 3 measures:

• APM #7: Support the adoption of Bill C-38, which seeks to address discrimination in the registration and membership provisions of the Indian Act.
• APM #8: Co-develop a collaborative consultation process on a suite of broader reforms relating to registration and band membership issues, prior to any transition away from the Indian Act. This includes to consult, cooperate and effectively engage with First Nations women to eliminate remaining gender-based issues; Canada recognizes that the Indian Act is a colonial-era law designed to exert control over the affairs of First Nations, and as such, the Act will never be fully aligned with the UN Declaration. For Canada's laws to fulfill the UN Declaration, the Indian Act must be repealed. The government is seeking to make the Act's registration and band membership provisions more consistent with the UN Declaration, until a clear consensus on a way forward on comprehensive change or the Act's repeal is possible.
• APM #9: Consult First Nations and other impacted Indigenous groups to support the co-development of opt-in alternatives to Indian Act registration and membership (First Nation citizenship). This will include a broad spectrum of Indigenous demographic groups, such as women, girls and 2SLGBTQIA+ people, Elders, Treaty groups, etc.

Background

In 1985, C-31, An Act to Amend the Indian Act introduced legislative amendments with the intention of bringing the Act into alignment with the equality provisions in the Canadian Charter of Rights and Freedoms. The previous section of this kit highlights that, although numerous amendments came into force, and Canada aimed to remove sex-based inequities from the registration provisions of the Indian Act, not all inequities were addressed, resulting in litigation and legislative changes in the decades that followed.

Text alternative for The application of the second generation cut-off

The image shows the application of the second generation cut-off to 3 generations of a family consisting of grandparents, parents and a grandchild.

One grandparent is entitled to registration under section 6(1) of the Indian Act, but the other grandparent is not entitled to be registered.

The second generation is a parent who is entitled to be registered under section 6(2) of the Indian Act, and a parent who is not entitled to be registered. The third generation in the image is a grandchild who isn't entitled to be registered because both of the previous 2 generations of ancestors included 1 person who was not entitled to registration.

As part of C-31, 2 general categories for registration were created through sections 6(1) and 6(2). A person may be registered under section 6(1) if both their parents are or were registered or entitled to be registered under the Indian Act. A person may be registered under section 6(2) if only 1 parent is or was registered or entitled to be registered under the Indian Act. While both sections 6(1) and 6(2) provide equal access to the services and/or benefits associated with registration under the Indian Act, people are impacted by these categories because the ability to transmit or pass on status to descendants differs. They may also have different access to membership, depending on the membership type and membership rules of the First Nation they are affiliated to. The implementation of these 2 general categories has created a new critical issue – the second-generation cut-off.

The second-generation cut-off occurs when, after 2 consecutive generations of parenting with a person not entitled to registration, the third generation is no longer entitled to registration. If an individual has 1 grandparent and 1 parent who are not entitled to registration, that individual will not be entitled to registration under the Indian Act.

Differential treatment within families caused by the second-generation cut-off

Today, First Nations and their community members report that the second-generation cut-off is applied without consideration for their individual or family circumstances, and many report that the different categorization between sections 6(1) and 6(2) can cause issues for registered individuals and their non-entitled children.

Text alternative for Differential treatment within family due to date of birth

A hypothetical family tree depicts an ancestor entitled to registration under section 6(1) and 3 generations of descendants that follow. The ancestor's children, grandchildren and great grandchildren are treated differently under the Indian Act in terms of whether they are entitled to registration and under what section. The different treatment depends on: whether they or their parents were born before or after April 17, 1985 and whether they had one parent who was not entitled to be registered.

For some families, siblings are registered under different categories, simply because of the year they were born, and/or the date of their parents' marriage. As a result, they have different capacities to transmit status on to their children.

In the diagram above, 2 different examples of differential treatment within families are presented.

Example 1:

• 1 sibling (left side: first generation), born before April 17, 1985, is entitled under the 6(1) category. As a result, this sibling can transmit status to both of their children.
• The other sibling (right side: also first generation), but born after April 17, 1985, is entitled under the 6(2) category. If this sibling parents with a non-entitled person, their child is not entitled.

Example 2:

• 1 sibling (left side: second generation), born before April 17, 1985, is entitled under the 6(1) category. If this sibling parents with a non-entitled person, they can still transmit status to their child (left side: who is third generation).
• The other sibling (middle: also second generation), but born after April 17, 1985, is entitled under the 6(2) category. If this sibling parents with a non-entitled person, they cannot transmit status to their child (middle: third generation).

Residual impacts of the 1985 inclusion of the second-generation cut-off

In 1985, Canada's rationale for introducing the second-generation cut-off centered around concerns raised by First Nations during parliamentary debates regarding resource pressures and cultural erosion in First Nations communities.

The second-generation cut-off was introduced to address concerns that "First Nations expected a significant increase in registered individuals with no current familial, kinship or community ties" and that it was "an attempt to balance individual and collective rights with a view to protecting First Nation culture and traditions."

With respect to newly entitled individuals who lack community connection, many First Nations, Indigenous Peoples and Indigenous organizations raise concerns about the 1985 decision to implement the second-generation cut-off to 'protect' communities from registered individuals with no current familial, kinship or community ties. Given that in the decades since 1985, the findings of the Courts have held Canada accountable for perpetuating sex-based inequities in registration, and that Canada amended the Indian Act and restored entitlement to women and their descendants, those lacking kinship or community ties are often women (and their descendants) whose disconnection was caused solely by historically discriminatory colonial legislation.

The demographic impacts of the second-generation cut-off across Canada

The following chart reflects data from the Indian Register for each province and territory, as of January 11, 2024, including:

• the total number of people registered under the Indian Act.
• the total number of people registered under section 6(2).
• the percentage of the total registered population who are registered under section 6(2) in each First Nation.

Across Canada, 322,173 individuals (or 29% of the total registered population) are registered under section 6(2). This portion of First Nations who are registered under the Indian Act will only be able to transmit entitlement to registration to their children if they parent with an individual who is entitled. If they do not, their future descendants will no longer be recognized as First Nations under the Indian Act, and they may no longer have access to the rights, benefits and services that the government provides for individuals registered under the Indian Act. This is a result of the second-generation cut-off.

If the registration provisions in the Indian Act remain the same, over the course of a few generations, the registered number of individuals is expected to decrease over time resulting in a smaller registered population.

In the final report on the findings of the Collaborative Process on Indian Registration, Band Membership and First Nations Citizenship, the Minister's Special Representative presented that the second-generation cut-off:

• has more severe impacts in communities that have a small population base, that are not isolated, and that have more instances of "marrying out".
• will inevitably lead to a significant number of children who, despite being born to a parent who is entitled under the Indian Act, will be unentitled for registration under the Indian Act due to this cut-off.
• will see the gradual elimination of persons eligible to be registered under the Indian Act with some communities feeling this impact in the next generation while most First Nation communities, regardless of location, will feel this impact within the next 4 generations.
• will have an end result, "in the not so distant future" where some communities will no longer have any entitled or registered individuals, or the number of entitled or registered individuals will have declined significantly.

While cumulative data reflects a whole of Canada picture of the impact of the second-generation cut-off, it does not demonstrate the magnitude of the impacts for each First Nation. Each First Nation has a unique experience with the registration provisions of the Indian Act, and on average, the impacts of the second-generation cut-off are more impactful at the community level. Given the way that the current Indian Act registration provisions interact with the band membership provisions, this means that there will not only be an eventual erosion of the number of individuals who can be registered, but also a steady decline in the number of people who will be considered band members.

Potential solutions to the second-generation cut-off

In 2019, the Minister's Special Representative (MSR) recommended that the Government facilitate "a separate and more in-depth consultation process, and begin to develop solutions to address this inequity."

In 2018-2019, there was no agreement or consensus on how best to address the second-generation cut-off, but the following potential solutions were presented by First Nations:

• shifting to a one-parent rule (requiring only one parent to be registered)
• use of blood quantum (a restrictive version of today's registration rules, similar to rules applicable in the United States)
• use of DNA (establishing parameters or thresholds of genetic Indigeneity, possibly similar to blood quantum, possibly less restrictive)
• removing the categories completely so people are either simply registered or not
• transfer of control to First Nations to decide who their people are (common set of minimum requirements established and applied)

In the coming consultation phase, dialogue and consideration will be given to potential options for solutions to the second-generation cut-off, with the intention of determining First Nations' recommendations and preferences on this issue.

While Canada consults on a legislative solution to the second-generation cut-off, First Nations have long recommended that the broader issue of First Nations jurisdiction over citizenship must also be prioritized. Previous engagement revealed that removing inequities in registration and membership must happen simultaneous with broader comprehensive reform.^{Reference 16} Today, multiple simultaneous initiatives are underway, with progress on Bill C-38 being made in Parliament, with the consultation on registration and membership under the Indian Act ongoing, and with the Department of Crown-Indigenous Relations leading the work on jurisdiction over citizenship. The goals of all initiatives intersect and are not mutually exclusive. Timelines differ based on demographic impact and scope of transformation.

Band membership under Section 10, Section 11, and self-governing agreements

Band membership is one of the ways that individuals access membership rights in their communities. In 1985, C-31, An Act to Amend the Indian Act introduced 2 options for the control of band membership under sections 10 and 11 of the Indian Act.

Some programs, services and benefits are available for all registered individuals, such as the Non-Insured Health Benefits program or tax exemption, while other programs and services (for example housing, public health), are primarily funded and delivered to the community based on band membership.

When a person entitled to be registered under the Indian Act submits an application to be registered, the department determines which band the applicant will be affiliated to in the Indian Register, based on their family history. Individuals may be affiliated to a band governed under section 10, 11, or a self-governing agreement, and band membership will be determined accordingly.

The process for first nations seeking to assume control under Section 10

In order to understand why section 10 voting thresholds are being consulted on alongside the second-generation cut-off issue, an explanation of the process First Nations must undertake to assume section 10 control over their band membership is provided.

Text alternative for Transition to Section 10

This graphic outlines the three requirements for First Nations to transition to Section 10 band membership. These requirements are Notice, Consent, and Acquired Rights.

To assume section 10 control, First Nations go through a process of assuming control and meet 3 requirements.

Potential challenges to assuming control of membership under Section 10 of the Indian Act

Since 1987, 70 First Nations began the process to assume control under section 10 of the Indian Act, but were unsuccessful in the process. One reason for these First Nations not being successful in their attempt to assume control is lack of voter turn-out in their consent vote. Participation in elections and voting can be a challenge; turnout can range from 6 to 90 percent, depending on the community. Some First Nations find it difficult to meet the double majority because of a high population count. For others, engaging off-reserve members has been an ongoing hurdle.^{Reference 18}

To address this gap, some First Nations engage with off-reserve members by mail or email. However, this requires the First Nation to have up-to-date contact information for all members. Other First Nations have used newspapers, public posters, and online sources, such as social media, their websites, and service providers to engage and share information about upcoming elections. For some issues, First Nations have started using online voting platforms, but to date, online voting is not used for taking control of membership under the Indian Act on the recommendation of the courts.^{Reference 19}

Some Indigenous organizations have also highlighted that Indigenous communities often make decisions in different ways, not solely through democratic majority-rule votes. A majority-vote approach to decision-making among Indigenous governing bodies may not reflect Indigenous ways of knowing and therefore participation in these processes may not be preferred by community members.

Why consult on the double majority voting threshold issue now?

A potential solution to the second-generation cut-off may result in an additional 225,000 (or more) newly entitled individuals.^{Reference 20} Any legislative amendment that would result in an influx of new members makes it likely to be more difficult to gain the consent of a majority of electors, as per current voting threshold rules.

Section 5 of the Indian Act

Provisions related to applicants who have unknown or unstated ancestors.

Section 6 of the Indian Act

People who are entitled to registration will be registered under these categories.

Section 7 of the Indian Act

This section describes people who are not entitled to be registered.

Contact information for the registration reform team

For inquiries, guidance, or support regarding the content within this Kit, please contact us at Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca.

Stay connected with updates and engagement opportunities by visiting the Indigenous Services Canada website.

Is your Nation ready to consult?

This information kit has been prepared to support your readiness for consultation on the second-generation cut-off and section 10 voting thresholds. The goal is to work towards a meaningful consultation while attaining free, prior, and informed consent. Your Nation's readiness signifies a dedication to an informed and collaborative dialogue.

Does your community feel well-equipped with an understanding of the second-generation cut-off and section 10 voting thresholds? Are there any outstanding questions or support needed?

Consultation readiness

Notify us

Please complete the optional submission below by June 30th, 2024. The start date of the consultation process will be determined upon receipt of feedback confirming readiness.

1. By filling out the Consultation Readiness Declaration Form
   or
2. By sending an email to: Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca with subject line: "Confirming Readiness to Participate in Consultation – [Insert Name of First Nation]." Once received, a member of the registration reform team will contact you with additional details.

Your feedback is invaluable to the success and effectiveness of this initiative, and we appreciate your engagement and participation.