Status: In committee (House), as of June 13, 2017
Summary:
On August 3,
2015, the Supreme Court of Quebec issued is ruling in Descheneaux c. Canada (procureur général), which ruled that the Indian Act violated the Canadian Charter of Rights and Freedoms based
on sex. The fundamental issue is of passing down status. Stéphanie Descheneaux,
along with Susan Yantha and Tammy Yantha of Abénakis of Odanak First Nation in
Quebec, challenged the registration provisions in section 6 of the Indian Act.
They argued that as women section 6 of the Indian
Act discriminated against them because of the rules on passing down status.
Gendered
Discrimination in the Indian Act
Two fundamental problems were demonstrated in the Descheneaux
case, both of which meant that women could not pass down their status in the
same way that men can. Bill C-31 (1985) had already addressed gender
discrimination in the Indian Act when
it 1) restored status to women who lost their status through marriage, 2)
removed a rule where a person lost status at age 21 if their mother and
paternal grandmother both received status through marriage, 3) maintained
status for those who gained status through marriage, and 4) entitled
individuals with one parent with section 6(1) status to register under section
6(2). What this amendment did not achieve, though, was that it did not
retroactively address problems for women who either married non-Status men or
had children with non-Status men out of wedlock. This created inequality based
on gender, which has been since called the “cousins issue” and “siblings issue.”
For Stéphanie Descheneaux, the problem has been
called the “cousins issue.” If a Status Indian Grandfather married a non-Indian
before 1985, the woman would receive status. His son would then also marry a non-Indian
woman, and she too would receive status. Their children (the original person’s
grandchild) would then also have section 6(1) status, and their children would
then also receive status either under 6(1) or 6(2).
Conversely, in the same situation but under the
maternal line (beginning with a status Indian grandmother), the woman’s great
grandchild would not receive status. The woman would not pass her status to her
husband, and therefore the grandchild of the original woman would have status
under section 6(2) and could not pass down her status. If a Status Indian
brother and sister both had children, as outlined by the chart below,
hypothetically there could be a pair of first cousins where one holds status
and the other does not, even though their lineage is identical aside from the
gender of their grandparents. The chart below illustrates the differential
treatment these two ancestral lines create.
The situation for Susan and Tammy Yantha also is
illustrates the differential treatment under the Indian Act, in this case
concerning children born to parents out of wedlock. After 1985, a Status Indian
man could pass down section 6(1)(a) to a child born out of wedlock, where a
woman could only pass down section 6(2) status, meaning that the woman’s
grandchild would not have status. Within two generations, within a family it
could occur that a brother and sister with the same parents, the son could have
Indian Status under section 6(1)(a) while the daughter had none. Again, the
chart below explains this.
Amendments to the Indian Act under Bill S-3
and Impact on First Nation communities
The bill
includes nine clauses which clarifies who can register under the Indian Act.
Specifically, the following individuals are eligible as of Bill S-3 coming into
force:
·
Individuals whose
parent as a minor child lost status as a result of his or her mothers
subsequent marriage to a non-Indian
·
The cousins issue was
addressed by making individuals whose parents became eligible to be registered
under section 6(1) in 2010 amendments (new section 6(1)(c.2)
·
The siblings issue was
addressed by allowing individuals born female between September 4, 1951 and
April 16, 1985 out of wedlock (fix siblings issue)
·
Finally, the children
of parents newly entitled under these new sections are now eligible.
Bill S-3
had an immediate impact on First Nation communities because the new provisions
it contained made between 28,000 and 35,000 individuals eligible for status.
This would then have impact on funding, because funds for federal programs are
allocated by on-reserve residency and band membership lists. It follows that a
larger membership list equals increased funding. The problem, though, is that
S-3 is not attached to more funds. While remedying the gender discrimination
that existed in the Indian Act is a good thing, it needs to be tied to increased
funding to maintain the same level of services for First Nations who rely on
federal programs.
Since
1985, Band Membership and Indian Status have been severed, meaning that while
First Nations individuals are now eligible to regain their status, this does
not necessarily mean they qualify for Band Membership. Under section 10 of the
Indian Act, First Nations can create their own membership codes, with full or conditional
membership. Since a person can have Indian Status but not be included on a Band
Membership list, it is possible for First Nations who control their membership
to create restrictive membership codes for a number of reasons, including
access to land, housing, or funding.
Full
text of the bill can be
found here
Full
text of the Indian Act (R.S.C., 1982,
c. I-5) can be found here
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