Reference Guide: The Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds

Indigenous Advisory Process

The Indigenous Advisory Process (IAP) consists of 17 national, regional, youth, and women's Indigenous organizations that provided advice and recommendations to ISC on the design of the Collaborative Process. This initiative resulted in the co-developed Consultation Plan, the What We Heard Report, and Artwork.

Status: Completed

Rights-Holders Information Kit

A Rights-Holders Information Kit was developed to support First Nations and impacted individuals by providing descriptions of the issues for consultation, changes to the Indian Act over time, and plain-language descriptions of the registration categories. These Kits have been broadly distributed to First Nations by mail, email, and are available online.

Status: Completed

Community Data Sheets

Community Data Sheets are annually developed to highlight the impact of the second-generation cut-off on each First Nation's registered population across Canada.

The data can be viewed in Demographic Impacts of the Second-Generation Cut-off on the Registered Population of First Nations, on the ISC webpage, or via Open Data.

Status: Ongoing

Information Sessions

Information sessions on the Rights-Holders Information Kit are offered throughout the Collaborative Process and held virtually over Zoom. The sessions cover the key issues for consultation and are followed by a question and answer period. Public sessions are available for registration online.

Status: Ongoing

Development of Solutions

A Call for Proposals for First Nations and Indigenous organizations to apply for funding to submit a report with possible solutions to the second-generation cut-off and/or section 10 voting thresholds.

Status: Completed

Registration Reform and Legal Solutions Committee

A Registration Reform and Legal Solutions Committee assessed the proposed solutions from the first Call for Proposals and determined their legal viability, impact assessment, and implementation considerations. The results of this stage form the content of this reference guide.

Status: Completed

Engagement sessions

ISC-led engagement with First Nation leadership to determine preferred solution(s) to the second-generation cut-off and section 10 voting thresholds, as well as discussions on options for moving beyond the Indian Act.

Status: Current Stage

Solution description

Determination of entitlement would depend on individuals having at least one parent who is, or at the time of their death was, entitled to registration indefinitely, unless otherwise specified.

Legal viability

A large majority of members considered the approach legally viable, although views differed regarding whether it should operate as a permanent solution or as an interim measure pending the development of First Nations-led citizenship frameworks.

Responses from First Nations-led Options for Solutions

The single-parent rule was frequently proposed by First Nations and representative organizations, appearing in 26 of the 39 final reports submitted to date. Similarly, 305 of the 399 Individual Feedback Form respondents selected it as a desirable solution.

RRLSC analysis

Perceptions of a single-parent rule's viability were mixed across members, with most deeming it viable insofar as constraints were in place to prevent it from being a permanent, enduring framework for determining entitlement.

In their reports, the Anishinabek Nation and Morales observed that, in practice, entitlement already functions similarly to a single-parent model, as eligibility depends on one entitled parent while limitations apply to the second parent. They noted that the proposed approach would formalize this structure while removing restrictions related to the second parent.^{Footnote 13} The Anishinabek Nation's report further noted that this solution would continue the federal role in defining entitlement while limiting the ability of First Nations to rightfully exercise jurisdiction over citizenship and belonging.^{Footnote 14} As such, Drew Lafond, writing on behalf of the Indigenous Bar Association (IBA), and the Anishinabek Nation share the view that the single parent rule is "acceptable as an immediate measure… but… not a complete or standalone solution" and its viability "is expressly contingent on the development of a clear, consent-based, opt-out framework through which First Nations may assume jurisdiction over citizenship and belonging."^{Footnote 15}

Dyck raised concerns that a single-parent rule, "even though well-meaning and with good intentions, does not recognize the rights of First Nations to choose how they themselves wish to solve the problem."^{Footnote 16} Dyck further noted that implementation without obtaining free, prior, and informed consent (FPIC) could be inconsistent with Canada's obligations under the UN Declaration. Dyck indicated that, where FPIC is obtained, First Nations should have the ability to opt in to the approach.^{Footnote 11}

Participants also expressed varying views  relating to the single-parent rule's accordance with the UN Declaration. Dr. Aaron Mills indicated that the single-parent rule does a better job than the second-generation cut-off at respecting the UN Declaration Articles 1 and 2, while Dr. Damien Lee noted that it appeared consistent with Articles 5, 8.1, 8.2, 9, 22.2, 33.1, 34, 35 and 37.^{Footnote 17} Despite differing perspectives, members were united in their cautioning against imposing this solution on communities without FPIC.

Implementation considerations

Participants identified a number of implementation considerations associated with the proposed approach. Reports noted that implementation could create operational pressures requiring additional funding and capacity supports for First Nations, as well as clear mechanisms to address differences between federal registration and First Nations membership or citizenship determination processes.

Members also expressed differing views regarding whether this approach should apply indefinitely. Some members supported permanent implementation, while others emphasized that First Nations hold distinct legal traditions and approaches to belonging that may not align with a permanent federally defined model.^{Footnote 18} For example, it was noted that Anishinaabe law does not endorse the view that racial thinning occurs over time and rather than conceptualizing identity in respect of racial or ethnic purity, "its measure of belonging consists in one's practice of kinship responsibility."^{Footnote 19}

The IBA's report identified the risk and vulnerability of First Nations whose administrative capacity is not suited to serve the eligible population this solution would create.^{Footnote 20} National Chief Brendan Moore and Robert Russell, writing as representatives of the Congress of Aboriginal Peoples (CAP), proposed a mitigation measure in their report, involving automatic implementation, whereby all individuals currently registered under subsection 6(2) would be converted to subsection 6(1) without requiring individual applications.^{Footnote 21} Members noted that such an approach could reduce administrative burden and processing pressures. However, they also emphasized that implementation would require coordination with First Nations and individuals, including the potential for opt-out mechanisms where there is opposition to the approach.

Members further noted that implementation of the single-parent rule without corresponding amendments to section 10 voting thresholds could create concerns for First Nations seeking to assume control over membership. In particular, the IBA noted that maintaining existing voting thresholds while expanding the registered population "may be perceived as undermining [First Nation's] governance legitimacy rather than simply expanding inclusion."^{Footnote 20}

Members also emphasized the importance of ensuring that implementation does not perpetuate federally imposed definitions of identity and belonging. Reports highlighted the need to recognize the impacts of past legislative approaches that regulated Indigeneity through gendered, racialized, and heteronormative frameworks. In an attempt to manage a perceived "floodgates" narrative, both the IBA and Lee cautioned against reintroducing arbitrary exclusion and recreating discrimination through the reimplementation of "ancestry thresholds, arbitrary cut-off dates, or partial retroactivity."^{Footnote 22}

It is therefore important that any solution to the second-generation cut-off does not take the form of a permanent federal role, and is instead a temporary means to address inequity while providing time for First Nations to develop and implement their own, First Nation-led citizenship framework. Several members, including the IBA, Anishinabek Nation, and Dyck, emphasized that a single-parent rule maintains the status quo wherein control remains in federal hands and is insufficient given it does not recognize the rights of First Nations to choose and implement a solution for themselves.^{Footnote 23} IBA specifically flagged that should Canada remains the unilateral decision-maker over Indigenous citizenship, a single-parent rule, by itself, does not resolve concerns with Section 35 of the Constitution.^{Footnote 24} It should only be considered as a transitional measure, and paired with a "clear, consent-based, opt-out framework through which First Nations assume exclusive authority over citizenship."^{Footnote 20}

While a single-parent rule may be introduced in tandem with an opt-out clause for First Nations in one legislative package, this may reduce future system re-work but require "extensive up-front policy design, consultation, systems development, and intergovernmental coordination [and f]rom an operational perspective… would likely delay access to relief for affected."^{Footnote 25} Alternatively, immediate implementation of a single-parent rule accompanied by a statutory commitment and defined timeline for the introduction of a First Nations citizenship framework prioritizes timely relief for those currently affect, though may result in operational risks.^{Footnote 25}

Ultimately, consistent in all members' reports was that "transition management [is] central to successful implementation," and a resolution to the second-generation cut-off cannot be achieved expediently.^{Footnote 26} Rather, it will take time, care, and commitment by the government to acknowledge past harms and avoid their duplication, whilst extending First Nations the ability to exercise their authority and jurisdiction over belonging.

Solution description

Entitlement would be under the jurisdiction of First Nations, and they would have the authority to develop criteria, evaluate applications, render a decision, and submit the decision to the Department for information purposes.

Legal viability

Six out of seven members identified this solution as legally viable, with two noting that viability will be contingent on implementation considerations. One participant considered the approach not legally viable.

Responses from First Nations-led options for solutions

Transferring control to First Nations was identified in 19 of the 39 final reports and 160 of the 399 Individual Feedback Form respondents selected it as a desirable solution.

RRLSC analysis

Broadly, an approach to transfer control of registration processes under the Indian Act to First Nations has been deemed legally viable under Canadian law and international human-rights frameworks, with conditions.^{Footnote 27} It was repeatedly noted that this particular solution was one of or the most aligned with domestic and international human rights frameworks, including the Charter of Rights and Freedoms, the UN Declaration, and the UN Declaration Act.^{Footnote 28}

Participants expressed differing views regarding the extent to which federal oversight or intervention may continue to be required during implementation or transition. Some emphasized that ongoing federal involvement may be necessary to limit discrimination and support alignment with the UN Declaration, while others cautioned that excessive federal oversight could undermine First Nations self-determination and perpetuate colonial structures.^{Footnote 29} Reports also noted that this approach may better align with Indigenous legal orders, which may conceptualize citizenship through relationships, responsibilities, kinship, and belonging rather than solely through legislative criteria. At the same time, Lee, Morales, and Mills cautioned that First Nations themselves may adopt rigid or exclusionary definitions of citizenship that could potentially conflict with principles contained in the UN Declaration.^{Footnote 30}

Implementation considerations

Participants emphasized that, for the approach to be legally viable, implementation would need to be carefully designed and structured. Reports identified several key considerations, including that implementation should:

• Provide First Nations with the full unconditional authority over identifying methods to determine who their people are and how to implement these methods^{Footnote 11}
• Respect both the collective right of First Nations to self-determination and the rights of individual First Nation persons who may not be recognized as members by a band council^{Footnote 31}
• Be well-structured^{Footnote 32}, respectful of the rights and needs of First Nations (including FPIC)^{Footnote 33} and provide meaningful support and resources to build the capacity of First Nations to take control of registration processes^{Footnote 34}
• Recognize that citizenship and belonging under Indigenous legal orders are connected to identity, kinship, and governance, rather than solely administrative policy questions^{Footnote 35}
• Limit the risks of discrimination, including discrimination affecting off-reserve members^{Footnote 36}
• Ensure that Canada retains its fiscal responsibilities and liabilities associated with registration^{Footnote 34}
• Relocate decision-making authority to First Nations (not just delegated), and implement procedural safeguards and independent Indigenous review capacity^{Footnote 37}
• Provide First Nations with capacity to develop and administer their own citizenship or membership laws (including eligibility criteria, registry management, and dispute-resolution processes)^{Footnote 38}

The Anishinabek Nation and Morales' reports emphasized that sustained, long-term funding responsive to population growth and demographic changes would be necessary to support implementation.^{Footnote 39} Participants also encouraged phased and incremental implementation approaches to ensure large-scale changes are implemented properly and in a manner that respects First Nations timelines^{Footnote 40}, governance structures, and existing treaty relationships.^{Footnote 41}

Reports further emphasized that participation in the transition process must remain optional in order to respect First Nations self-determination.^{Footnote 41} Regardless of the implementation model adopted, members stressed that Indigenous legal orders and Indigenous dispute resolution processes should play a central role in addressing conflicts and disputes in order to reduce reliance on colonial legal frameworks.^{Footnote 42}

At the same time, members cautioned that some First Nations may adopt rigid conceptions of citizenship that may not align with relational understandings of belonging reflected in certain Indigenous worldviews.^{Footnote 43} Participants noted that this possibility may require additional safeguards, representation mechanisms, or oversight considerations to ensure consistency with the UN Declaration and broader human rights principles.^{Footnote 43}

The First Nations-led approach to First Nations Child and Family Services in An Act respecting First Nations, Inuit and Métis Children, youth and families (formerly Bill C-92) was often discussed as a successful model to guide implementation on this issue, at the core allowing the unique customs of each First Nation to be central with the delivery of services for individuals from this First Nation.^{Footnote 44} Should a solution to the second-generation cut-off be introduced in a legislative package modelled after Bill C-92, clarity on notice; coordination with provincial and federal governments; fiscal support; and conflict-of-laws rules during a transition period would be critical to ensuring successful transition and implementation.^{Footnote 45}

Participants also discussed a potential spectrum of ongoing federal involvement following implementation. For example, Canada could continue to maintain central registration databases or data storage systems while supporting First Nations in preparing for and administering the transition.^{Footnote 41}

Some members further proposed the establishment of regional organizations operating at arm's length from the federal government. Under this model, such organizations could support oversight, coordination, or dispute resolution related to citizenship or membership codes, while providing finalized citizenship or membership information to the federal government for registration purposes.^{Footnote 46}

Solution description

Blood quantum is a system used primarily in the United States to define Indigenous identity based on the proportion of Indigenous ancestry attributed to an individual. The use of DNA involves establishing criteria for determining Indigenous identity based on biological or genealogical evidence and family history.

Legal viability

Two members indicated that the approach may be viable only where it is adopted by First Nations as an exercise of self-determination and grounded in Indigenous legal traditions or governance systems. Five of seven members identified this solution as not legally viable on a national basis.

Responses from First Nations-led options for solutions

The use of blood quantum or DNA were proposed in two of the 39 final reports submitted by partners, with 34 of 399 Individual Feedback Form respondents proposing blood quantum and 53 of 399 respondents suggesting the use of DNA. Across all contexts, these solutions were raised cautiously and not necessarily the preferred or endorsed solution by individuals or the community.

RRLSC analysis

Perceptions of the use of blood quantum and DNA to determine entitlement to registration and membership were largely critical across committee members, with five members stating it is not viable. Dyck and Morales both noted that these approaches may be considered viable insofar as they are adopted by First Nations as an exercise of self-determination and grounded in their own legal traditions or contemporary practices.^{Footnote 47} However, Morales and Mills emphasized that blood quantum remains a colonial construct that operates through biologically reductive measures and does not reflect relational understandings of belonging, especially under Anishinaabe Law.^{Footnote 48}

Across many Indigenous legal traditions, belonging is "grounded in kinship, relationships, and responsibilities" and should be "lived and practiced, not measured".^{Footnote 49} The use of biological determinations are in direct opposition to this worldview as it reduces identity to a fractional calculation and is "anti-relational."^{Footnote 50} These solutions were characterized as reproducing exclusionary or assimilationist structures embedded in colonial legislation.^{Footnote 51}

Participants emphasized that the use of blood quantum and DNA to determine entitlement raises significant concerns in relation to Canada's constitutional and human rights frameworks. Mills noted that biological determinants of identity engage enumerated grounds of discrimination under section 15 of the Canadian Charter of Rights and Freedoms and are therefore unlikely to be legally viable as standalone criteria.^{Footnote 52} Both the IBA and Anishinabek Nation noted that blood quantum and DNA-based approaches:

• are fundamentally incompatible with human rights based frameworks
• would likely increase, rather than mitigate, litigation exposure
• would deepen, not solve, exclusion.^{Footnote 53}

Morales echoes this concern, writing that "while UNDRIP may protect the use of these methods" specifically in scenarios where First Nations elect to implement them as an exercise of self-determination, doing so may "simultaneously reproduce settler colonialism."^{Footnote 54} In practice, if implemented by the federal government without the FPIC of First Nations, this solution would be incompatible with the Indigenous right to self-government and self-determination, and as an "external, colonial imposition" would drive disputes into colonial human-rights based forums without any pathway towards resolution in a manner consistent with Indigenous self-determination or substantive equality.^{Footnote 55}

Participants also identified these approaches as potentially inconsistent with several articles of the UN Declaration, particularly Articles 8 and 9, which protect against forced assimilation and affirm the right to belong without discrimination, as well as Articles 33 and 35, which recognize Indigenous authority over identity and membership.^{Footnote 56}

However, Dyck noted that these approaches may be capable of alignment with constitutional and international human rights frameworks where they are adopted through First Nations' "customary or contemporary practices" as an exercise of self-government under section 35 of the Constitution Act, 1982.^{Footnote 11} Similarly, Morales and Lee indicated that viability under the UN Declaration may be understood differently in cases where blood quantum is chosen by a First Nation but its substantial viability remains questionable when considered alongside Articles that promote non-discrimination and alignment with Indigenous legal systems.^{Footnote 57}

Implementation considerations

Reports by the CAP and the IBA emphasized that the implementation of any solution which uses biological determination would result in significant legal and financial burdens due to the infringement of the Charter and the UN Declaration, while also requiring complex evidentiary processes such as genealogical reconstruction and genetic testing.^{Footnote 58} Furthermore, the Anishinabek Nation noted that while DNA was capable of confirming biological relationships, it does not function to determine belonging, community connection, or recognition in accordance with Indigenous legal systems.^{Footnote 59}

The use of DNA was therefore primarily encouraged as a supplementary evidentiary tool in parentage cases, not as a standalone solution. As a tool in this instance, Lee suggested that DNA could support efforts to reconnect individuals who were displaced through adoption or child welfare interventions, including the Sixties Scoop and related practices.^{Footnote 60}

The successful utility of both blood quantum and DNA lies primarily in confirming parentage, and that application beyond this limited scope risks reinforcing heteropatriarchal norms and contributing to long-term legislative exclusion.^{Footnote 61} There is also the potential for demographic decline over time in the context of intermarriage due to the limitations being imposed.^{Footnote 49} Participants raised that if a membership framework uses biological determinants, it must reflect diverse kinship systems, including those that recognize adoption, marriage, and Two-Spirit and queer family-making practices.^{Footnote 62}

Overall, blood quantum and DNA-based frameworks were described as embedding exclusion and discrimination within the rule itself. The IBA's report highlighted that instead of "remedying historic injustices, blood-quantum and DNA-based approaches entrench and intensify them."^{Footnote 63} In return, these approaches will "accelerate intergenerational loss of recognition, disproportionately harm descendants already affected by historic sex-based discrimination and perpetuate federal control over Indigenous identity."^{Footnote 63}

Solution description

The elimination of the registration categories in section 6 of the Indian Act would remove distinctions-based categories within the federal registration regime, resulting in individuals either being registered or not registered. While this approach does not specify the criteria by which entitlement decisions would be made,^{Footnote 64} it reflects a broader interest in establishing a more straightforward and less technical registration process.

Legal viability

Five of seven members identified this solution as legally viable, with some noting additional information required. Two members chose to abstain from this analysis.

Responses from First Nations-led options for solutions

This solution was proposed in 2 of the 39 final reports received in the Development of Solutions, but was included as an implementation consideration in 13 reports discussing the single-parent rule, and 1 report discussing the transfer of control to First Nations. This solution was proposed in 115 of the 399 Individual Feedback Form submissions.

RRLSC analysis

Participants noted that the current registration categories in section 6 of the Indian Act create a hierarchical structure with exclusionary impacts.^{Footnote 65} The elimination of the registration categories would address the inequities created by the existing system, of which has been developed to serve Canada rather than First Nations.^{Footnote 65} Morales deemed this solution "necessary if Canadian law is to move toward a more coherent recognition of Indigenous peoples and their legal orders."^{Footnote 66}

In many traditions, belonging is not determined through categories, but rather through relationships with family, land, community, and the obligations that emerge from these relationships.^{Footnote 66} Although this solution is considered legally viable, several reports including the IBA's emphasized that it is not "suitable as a standalone immediate reform" since entitlement itself is not defined in this approach nor does it displace Canada's role as the decision-maker over First Nations' belonging.^{Footnote 67} Given its lack of specificity, additional details are required to fully determine its legal viability.^{Footnote 68}

Participants also noted that the elimination of registration categories may align with several articles of the UN Declaration, particularly as it reduces discrimination within the federal registration regime.^{Footnote 69} Dyck noted that free, prior, and informed consent must first be obtained by First Nations if this solution is to potentially align with UNDRIP.^{Footnote 70} The IBA added that this solution is only aligned with UNDRIP as long as it is paired with Indigenous authority over citizenship.^{Footnote 71} If Canada remained as the "arbiter of belonging," it would simply be a re-branded federal identity system rather than a transition to self-determination.^{Footnote 71}

Participants observed that the approach may align with Articles 8 and 9 regarding the protection of Indigenous peoples from discriminatory identity classifications and assimilation,^{Footnote 72} with arguments that this solution would increase individuals' ability to obtain status if they choose, therefore encouraging self-determination and the right to culture.^{Footnote 73} Lee further noted that this solution also resonates with Articles 22 and 33, by supporting Indigenous nations in using their own kinship systems to support belonging, particularly for women and children who have been previously excluded.^{Footnote 74} With Article 32, this solution supports First Nations to promote, develop, and maintain their citizenship structures.^{Footnote 74} Where treaties exist, the state should defer to the citizenship order of the respective treaty partner, reflective of Article 37 of the UN Declaration.^{Footnote 74}

Overall, members – including Morales – generally agreed that removing the section 6 framework would be "consistent with [the UN Declaration]'s emphasis on continuity, non-discrimination, and the restoration of Indigenous authority over belonging."^{Footnote 75} However, members also emphasized that the approach must be accompanied by recognition of First Nations jurisdiction over citizenship, as well as adequate supports and resources.^{Footnote 76}

Implementation considerations

Members generally agreed that the elimination of registration categories could function as an interim measure while Canada and First Nations continue broader discussions regarding self-determination and citizenship.^{Footnote 77} The current registration categories are technical and complex, placing members of the same family in different categories.^{Footnote 78} Participants further observed that eliminating the categories could create an opportunity for Canada and First Nations to reconsider both entitlement criteria and registration processes more broadly.^{Footnote 79} Reports emphasized that any revised registration process should be simplified and accessible, particularly for individuals who were previously excluded from registration or denied status.^{Footnote 80} Considerations also need to be made for changes to be clearly communicated to First Nations and impacted individuals, including individuals living off-reserve.^{Footnote 81}

Lee proposed the establishment of a citizenship commission a possible implementation model.^{Footnote 79} Under this approach, "First Nations appoint representatives to regional commissions where citizenship or membership lists are determined and maintained."^{Footnote 82} These commissions may also be responsible for reviewing complaints or appeals.^{Footnote 82} This approach presents a possible pathway forward for both membership and for a shift in the role of the Indian Registrar.

This solution also requires significant administrative changes, including updates to the Indian Registry, program eligibility alignment, and transitional measures to prevent service loss.^{Footnote 83} Risks to procedural fairness arise if individuals who are impacted do not have clear criteria or review mechanisms, especially during transition periods where federal recognition and First Nation citizenship do not align.^{Footnote 71} Given the potential for increased population growth and broader eligibility, reports consistently emphasized the need for adequate long-term funding and resources to support housing, health services, education, infrastructure, and community programs.^{Footnote 84} Participants further noted that insufficient resourcing could risk perpetuating existing inequities.^{Footnote 84}

Participants identified implementation design as the primary concern associated with this approach and cautioned against proceeding without a clearly articulated path forward.^{Footnote 66} As evidenced by the White Paper conflict, Mills wrote that it would be a "serious error to try to remove the Indian Act without a clearly-articulated and viable alternative means of recognizing Indigenous difference."^{Footnote 85} Similarly, when proposing the removal of the Indian Act's registration categories without a clear alternative, this risks recreating the same circumstances.^{Footnote 86} Eliminating the registration categories and it's hierarchy is seen as an improvement to the registration process, but the solution must be accompanied by a clear implementation plan to be effective.

Solution description

Replace the double majority requirement for the consent vote with a simple majority requirement. This can be accomplished by repealing section 10(2) of the Indian Act.

Legal viability

One participant identified this solution as viable, with four deeming it non-viable. Two members did not provide an assessment of its viability.

Responses from First Nations-led options for solutions

Seven of 21 final reports proposed that consent should be achieved through a simple majority vote.^{Footnote 87} Of individual feedback responses, 44 of the 399 respondents selected a simple majority vote as a preferred solution making it most popular solution given 198 of the 399 respondents selected that they were "unsure" of a solution to the issue.

RRLSC analysis

Most members considered the simple majority approach not legally viable as a standalone reform. Participants noted that the approach does not address many of the substantive concerns associated with the current double-majority framework, including concerns that federally imposed voting thresholds may not reflect ILO's, governance traditions, or culturally grounded approaches to collective decision-making.^{Footnote 88} Absent these considerations as Dyck noted, there may be situations wherein an individual First Nation finds a simple majority vote is a favorable method for achieving consent to transition consistent with its guiding cultural and legal norms, and does freely, and with prior and informed consent, agree to employ a simple majority vote.^{Footnote 70}

Members noted that views on appropriate and legitimate voting methods will vary from nation-to-nation, dependent on that community's ILO.^{Footnote 89} On its own, a simple majority voting threshold is not inherently unlawful, though its legitimacy is contingent on alignment with broader principles of Indigenous self-determination, collective consent, and procedural fairness.^{Footnote 90} Members acknowledge the reduced burden it would require Nations meet, and that it is consistent with ordinary democratic practice – however, given the serious nature of Section 10 membership decisions, argue that the threshold alone cannot be what grounds the process.^{Footnote 91}

A simple majority vote may support self-determination, if it is reflective of a Nation's own governance processes, making it consistent with Articles 3, 4, 5 and 33 in the UN Declaration.^{Footnote 92} However, it risks preserving a colonial framework for determining consent and simply replacing one externally-imposed voting rule for another as it does not create space of Indigenous-defined decision-making processes consistent with the UN Declaration.^{Footnote 93} In his report, Lee noted that "Indigenous political orders do change over time; simple majority voting may just be what a band sees as their tradition now. Assessing congruency with any Article should be careful to not freeze Indigenous political traditions in time."^{Footnote 94} If however, with a simple majority vote – in a community where only a small proportion of the population actually participates – members shared concerns that the outcome may not meet the standards of meaningful participation, FPIC, and non-discrimination set out in Articles 9, 18, and 19.^{Footnote 95}

Section 10 votes result in changes affecting the community and who constitutes its membership and therefore demand a higher threshold of broad and inclusive consent, as demonstrated by the double-majority voting thresholds.^{Footnote 96} Concerns that a simple majority will enact these changes on the basis of narrow, or minimal, participation and small margins risk the fairness, legitimacy, and exclusion of members who, for varying reasons, were unable to participate in the vote.^{Footnote 97} ILOs do not derive legitimacy of an outcome from prescribed numerical thresholds alone, instead requiring that decisions are grounded in relationships, responsibilities, and collective deliberation and decision-making processes; a simple majority vote must be complemented by a commitment to these principles.^{Footnote 98}

Implementation considerations

Legislative change at the federal level, coupled with substantial procedural and capacity investments in and at the First Nations level would be required for this solution to be enacted.^{Footnote 99} Members agreed that legislative changes to the Indian Act would be required, given the established double-majority requirement is the legal standard at present.^{Footnote 100} Safeguards must be in place to avoid substituting one federally imposed model of consent for another, and Nations must be given the ability to develop and implement their own community-driven governance practices, should they wish to do so.^{Footnote 101}

Many members identify the need for intentional and broad community engagement efforts aimed at maximizing voter turnout will be necessary, noting that in effect, achieving turnout and consent resembling a double majority – while it is not the legislated requirement – may tend to ensuring decisions are perceived as fair and legitimate.^{Footnote 102} However, the IBA noted that similar litigation issues may arise because First Nations people will feel disenfranchised by the community decisions where membership codes are passed without their consent.^{Footnote 103} Efforts must intentionally protect against the dilution of off-reserve votes and address barriers which already exist and bar participation, and may be achieved by the expansion of accessible and inclusive voting mechanisms, extended notice periods, and targeted outreach and voting methods meant to engage off-reserve members.^{Footnote 104}

Solution description

First Nations are granted full control over their membership automatically, with Section 10 membership being the default. First Nations would have the delegated authority to determine a valid process for community decision-making. Individuals who are recognized as a member of a First Nation must also be recognized as a registered individual.

Legal viability

Five members identified this solution as legally viable, with two deeming it not viable.

Responses from First Nations-led options for solutions

13 of 21 First Nation and representative Indigenous organizational partners from the options for solutions expressed support for this solution. A key implementation consideration discussed was the need for additional amendments to voting rules and regulations (e.g., basing quorum requirements on historic turnouts rather than the population of a First Nation). Additionally, this was the second-most recommended solution amongst Individual Feedback Form respondents with 160 of the 399 respondents in support. Notably, 125 of the respondents who selected transferring control over entitlement to First Nations also chose the single-parent rule.

RRLSC analysis

Broadly, members considered the transfer of membership control to First Nations to be legally viable under domestic and international law, with conditions.^{Footnote 105} Notably, to align with principles of self-determination under articles 3 and 4 of the UN Declaration, implementation of this solution requires mechanisms to ensure off-reserve individuals are able to establish and govern their own distinct communities if they wish, with all associated benefits.^{Footnote 106} It was also noted that this approach may align with the underlying meaning of citizenship in Indigenous legal orders and the potential for First Nations to impose these definitions on individuals, potentially infringing on the UN Declaration.^{Footnote 43}

Implementation considerations

Participants identified several conditions necessary for implementation to align with the UN Declaration and the UN Declaration Act. Reports emphasized that implementation should:

• Respect the rights, priorities and circumstances of First Nations through the transition process, including the right to FPIC^{Footnote 107}
• Be implemented in a way which is well-structured^{Footnote 32} and which does not create unjust barriers to the assumption of membership self-governance^{Footnote 108}
• Acknowledge First Nations' authority over citizenship as more than administrative or symbolic, and allow for their jurisdiction to be exercised as an expression of inherent authority and not just a delegated power subject to federal control and oversight^{Footnote 32}
• Support Canada's recognition of Indigenous definitions of membership, kinship, and belonging^{Footnote 109}
• Recognize that, within many Indigenous legal orders, citizenship and federal registration may not be viewed as distinct concepts^{Footnote 110}
• Respect the right to self-determination both for First Nation communities and persons^{Footnote 106}

Participants noted that this approach may support the revitalization of Indigenous legal orders and governance systems. However, reports also emphasized that implementation would need to be carefully managed to ensure, as Morales wrote, that individuals do not "fall through the cracks" during transition periods due to uncertainty regarding recognition, membership status, or access to services and benefits.^{Footnote 110}

For implementation, this solution must be developed and led by First Nations^{Footnote 111} and conducted in a manner which respect the unique circumstances and needs of individual nations.^{Footnote 112} Canada's responsibility to First Nations during the transition to self-governance of membership, including development of laws and registry systems, among other considerations, and beyond the transition must remain central and be upheld.^{Footnote 113} Robust dispute resolution mechanisms must also be established with effective authority to deter colonial court intervention in citizenship matters,^{Footnote 114} and respect for First Nations kinship processes and legal orders.^{Footnote 115}

Participants further identified the need to address the ongoing division between community membership systems and the federal registration regime, which can result in inconsistencies regarding recognition and belonging depending on the institution assessing an individual's application. Participants cautioned that transferring membership governance to First Nations without addressing this disparity could further exacerbate these inconsistencies.^{Footnote 110}

Participants also identified several logistical and operational considerations, including the need for adequate long-term resources and sustained financial commitments to support governance capacity, membership administration, and implementation processes.^{Footnote 116} Additional consideration and mechanisms are required to ensure excluded individuals can be included and that decision-making is transparent.^{Footnote 117} First Nations may also be free to impose certain rigid conceptions of citizenship which are not fluid and may not be in-line with the relational aspects of belonging in certain Indigenous worldviews, requiring additional considerations for representation and alignment with the UN Declaration.^{Footnote 43}

Participants proposed several potential mechanisms to support implementation and mitigate associated risks. One proposal involved the establishment of "citizenship commissions" operating as third-party bodies responsible for affirming citizenship or membership determinations within defined territories in accordance with First Nations laws and for reviewing appeals from individuals.^{Footnote 118} However, these commissions would require additional scrutiny and show a high degree of support and confidence among First Nations to ensure compliance with First Nations laws.^{Footnote 118} Another option is to make First Nation governance of membership the default, allowing them to opt-out in respect of the principle of self-determination.^{Footnote 119}

Solution description

As part of the consent requirement in transitioning to section 10 membership, the double majority voting threshold remains, but it is amended to better support First Nations. This could include the introduction of processes that allow First Nations to achieve stronger community engagement, such as establishing clear guidelines for online voting, allowing advanced voting, and improving outreach to increase the awareness of eligible electors.

Legal viability

Four members considered this solution viable, with three considering it not viable.

Responses from First Nations-led options for solutions

This proposed solution was not included in the final reports. However, through the feedback form, respondents expressed support for maintaining the double-majority threshold and emphasized that decisions regarding membership must reflect broad community support and not be determined by a small number of participating voters.

Respondents shared that the concern was more about improving accessibility and participation so the threshold can be met fairly. There was frequent recognition that this threshold is difficult to achieve due to low turnout, large off-reserve populations, and inconsistent access to voting information (especially for off-reserve members). 36 of the 399 respondents to the Individual Feedback Form voted for no change to the double majority threshold, while an additional 26 respondents supported keeping the threshold but emphasized that new processes are needed to help First Nations meet participation and outreach requirements.

RRLSC analysis

Participants expressed mixed views regarding the legal viability of maintaining the double-majority threshold with amendments, with four members considering the approach legally viable. This solution's viability was largely supported within Canada's legal framework, with members noting that the double majority voting threshold is already embedded in the Indian Act and upheld by case law.^{Footnote 120} Morales further adds that retaining the existing rule while amending the surrounding processes remains legally viable, particularly where reforms can improve accessibility, and participation rates.^{Footnote 121}

Participants such as Lee noted that, while some First Nations may adopt voting mechanisms, others may not view voting as consistent with their traditions, and its application may reinforce external political systems.^{Footnote 122} The Anishinabek Nation's report similarly indicated that maintaining the double-majority threshold risks preserving existing procedural barriers that limit First Nations' ability to assume control over membership and governance, unless those barriers are removed and meaningful supports are provided.^{Footnote 113}

Considerations related to the UN Declaration further reflect this. Morales and Lee noted that the approach may align with Articles 3, 4, 33, and 34 where First Nations determine that voting processes form part of their governance structures or customs.^{Footnote 123} However, conflicts may arise with Articles 9 and 22(2) where the threshold is sufficiently difficult to meet that it starts to block remedial reforms.^{Footnote 124}

Implementation considerations

Participants generally viewed this approach as one of the more practical pathways through which First Nations may successfully demonstrate collective consent while maintaining a broad participation standard.^{Footnote 70} Participants emphasized that implementation would require significant improvements to accessibility and participation mechanisms. Some examples could include comprehensive notice to all electors, expanded voting methods (including in-person, mail-in, and secure electronic options), extended voting periods to accommodate off-reserve members, and adequate funding to support these processes.^{Footnote 112}

Participants also raised concerns regarding the potential for amended thresholds or accelerated transition processes to contribute to exclusionary outcomes if not carefully implemented. Lee noted that legislative amendments enabling transitions in membership regimes must be approached cautiously to avoid creating or reinforcing exclusionary membership codes, particularly where newly registered individuals may be perceived as a threat to existing political or economic interests.^{Footnote 125}

Drawing on historical experience following the implementation of Bill C-31, Lee emphasized that conditions may emerge in which membership frameworks become increasingly restrictive if decisions are made under time pressures or through processes designed for expediency.^{Footnote 126} He further cautioned that mechanisms which facilitate rapid transitions, including modified voting thresholds, may contribute to these dynamics if not accompanied by appropriate safeguards.^{Footnote 127}

Morales and Mills both emphasized that the primary implementation challenge is not the threshold itself, but the robustness and legitimacy of the surrounding process.^{Footnote 128} Morales noted that issues of participation must be grounded in a process that enables "legitimacy, participation and accountability" rather than relying solely on procedural amendments.

Mills identified a broader "legitimacy deficit" as the core barrier and suggests that low participation may reflect distrust in governance, material constraints, or the view that voting is not a legitimate decision-making mechanism within some Indigenous legal orders.^{Footnote 129} In this context, successful implementation is dependent on rebuilding trust through "consistent and respectful processes," providing supports to enable participation, and allowing flexibility to incorporate First Nations' legal orders and governance approaches.

Mills further suggested that a phased or delayed implementation can help address underlying issues prior to reforming voting thresholds.^{Footnote 130} However, this approach may raise concerns regarding fairness for individuals not yet included in membership.^{Footnote 130} Similarly, the IBA proposes that an opt-out framework could assist implementation success by allowing First Nations to determine how collective consent can be expressed.^{Footnote 131} Insofar as clearly defined and predetermined minimum standards are in place and maintained to preserve equality and legitimacy, this solution becomes more favourable as it does not force Nations to adhere to federally prescribed thresholds.^{Footnote 131}