Bill S-3 and Sex-Based Inequity

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Bill S-3 is an enactment to amend the Indian Act dealing with new entitlements to registration in the Indian Register. The Bill comes in response to the decision in the 2015 Descheneaux case; the Superior Court of Quebec ruled in favour of Descheneaux, who argued that several subsections under paragraph 6 of the Indian Act infringe on racial equality, sexual equality, mental disability and physical disability contrary to s. 15 of the Charter of Rights and Freedoms. Among other aspects of the Indian Act, the Bill reviews sex-based inequity which is to be reported to Parliament for corrections.

The Bill proposes to re-enact paragraph 6(1)(c) of the Indian Act which provides reinstatement of persons whose names were omitted or removed from the Indian Register, or a Band List before April 17, 1985. This change would provide eligibility for Indian Status to:

  • women who had previously lost status as a result of marrying non-Indians;
  • illegitimate children of Indian women born prior to August 14, 1956 who were omitted or removed because of non-Indian paternity.

The Bill aims to review and correct differential treatment in the following issues:

  • minors compared to their adult or married siblings who were born of Indian parents, or of an Indian mother, but lost entitlement to Indian status because their mother married a non-Indian after their birth, and between September 4, 1951 and April 16, 1985.
  • the “cousins” issue was identified in the Descheneaux case. This subject deals with acquiring and transmitting Indian status that arises among first cousins of the same family depending on the sex of their Indian grandparent, where the grandparent married a non-Indian prior to April 17, 1985.
  • the “siblings” issue was also identified by the Court in the Descheneaux case concerning, “the transfer of Indian status between male and female children whose parents were not married to each other at the time of birth.” It also proposes to provide entitlement to persons born female and out of wedlock of an Indian father and of a non-Indian mother. Transgendered males born female would also be eligible for registration.

According to the Huffington Post, a majority of senators passed the latest version of Bill S-3 on Thursday November 3, adding compromise amendments that may restore Indian status to Indigenous women who married non-Indigenous men prior to 1951, when the Indian Register came into effect.

However, Indigenous senators have voiced concerns in the past week, including Sen. Lillian Eva Dyck who was quoted as saying, “promises were made in 1985 and 2010 to eliminate all female sex discrimination in status. And those promises were not kept.”

Although the latest version of Bill S-3 has been passed, this development comes after the previous deadline in the summer of 2017 to pass the Bill was missed due to standoffs between the Senate and the House. Now, the federal government has until December 22 to update the Indian Act and address sex-based inequities.

 

For further background information and past developments on this issue, also visit:

Plain Text Description of Bill S-3

LEGISinfo Record of Bill S-3

The Government of Canada’s Reponse to the Descheneaux Decision

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.