A proposed amendment to Bill S-3 seeks to end sex discrimination under the Indian Act by expanding the scope of women eligible for full legal status from those women born after 1951, to all women and their descendants born before 1985. The amendment is part of the Liberal government’s response to Descheneaux v Canada, in which provisions limiting registration based on sex in the Indian Act were found to be constitutionally invalid.
The Quebec Superior Court’s 2015 decision in Descheneaux v Canada struck sections 6(1)(a), (c) and (f) and 6(2) from the Act, stating that women with status who married non-status men could not pass on status to their children after September 4 1951, while men with status could do so. The offending provision became law under Bill C-31 in 1985.
Descheneaux follows the earlier case of McIvor v Canada in challenging the 1985 provisions. In McIvor, the BC Court of Appeal ruled that that Bill C-31 was constitutionally invalid because it did not equalize the ability to transmit status between those women who married out and lost status, and those persons who lost status under the repealed double-mother rule but were reinstated under Bill C-31. Although the resulting 2010 amendments brought the Act in compliance with McIvor, they did not the address other gender-based inequities present in the Act. The plaintiffs in Descheneaux drew the court’s attention to the ongoing discrimination caused by the provisions under section 6 of the Act.
The Liberal government’s official response to Descheneaux is a two-pronged approach, consisting of a legislative amendment to the Act by way of Bill S-3 and a collaborative process to examine broader issues of status and Band membership towards future reforms. The proposed amendment to Bill S-3 now moves to grant full legal status to all First Nations women, including those affected by the 1985 provisions. As many as 1.4 million people of First Nations descent would be eligible for status under the amendment.
Assembly of First Nations National Chief Perry Bellegarde called the amendment a ‘positive step’ towards the First Nations’ “right to define citizenship.” Notably, although piecemeal corrections have brought the Act in compliance with the Charter, the Act has never been challenged on grounds of the Indigenous right to self-determination.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.