Indian status could be extended to hundreds of thousands as Bill S-3 provisions come into force

The federal government extended eligibility for Indian status to potentially hundreds of thousands of people Thursday by bringing into force the final provisions of legislation aimed at removing sex discrimination from the Indian Act.

Removal of 1951 cut-off was delayed for more than a year for consultations

Sharon McIvor speaks at a news conference in Vancouver in 2015. She and her son Jacob Grismer filed a petition to the UN Human Rights Committee in November 2010 over sex discrimination in the Indian Act. (Jonathan Hayward/The Canadian Press)

The federal government extended eligibility for Indian status to potentially hundreds of thousands of people Thursday by bringing into force the final provisions of legislation aimed at removing sex discrimination from the Indian Act.

Bill S-3 received royal assent over a year ago. However, some of its provisions aimed at eliminating all remaining sex-based discrimination before the creation of the modern Indian registry in 1951 were delayed coming into force to allow for a consultation process with First Nations.

The delay had been criticized by many women, including Sharon McIvor, who had made a complaint to the United Nations Human Rights Committee in 2010 over remaining sex discrimination in the Indian Act.

The committee's decision in January said Canada was obligated to remove the discrimination and to ensure that all First Nations women and their descendants were granted Indian status on the same footing as First Nations men and their descendants.

"It just left me speechless," said McIvor of the news that the provisions were now in force.

"I'm extremely pleased and I'm extremely pleased for all the people."

McIvor said she was worried the government wouldn't follow up on its promise to eliminate the remaining sex inequalities in the Indian Act because a report, filed in May, recommended the government move on the issue by June.

Removal of the 1951 cut-off

In a news release, the government said that as of Aug. 15, 2019, all descendants born prior to April 17, 1985 to women who lost Indian status or were removed from band lists because of their marriage to a man without status dating back to 1869 will be entitled to registration, bringing them in line with the descendants of men who never lost status.

The release says the removal of the 1951 cut-off could result in between 270,000 and 450,000 individuals being newly entitled to registration under the Indian Act over the next decade.

Once registered, they will be eligible for federal benefits and services such as treaty payments, post-secondary education funding and the Non-Insured Health Benefits program.

Women who had lost status as a result of marriage and got it back were categorized under 6(1)(c) of the Indian Act, where people who had status prior to 1985 were under 6(1)(a). The difference can affect whether the children, grandchildren or even great-grandchildren of Indigenous women who lost status are eligible for status.

The release said the legislation now in force will result in anyone previously entitled under the 6(1)(c) paragraphs of the Indian Act now being entitled under the new 6(1)(a) paragraphs.

Carolyn Bennett, minister of Crown-Indigenous Relations, said it took time for her government to prepare for an increase in processing numbers.

"I think there was a real intent that we had to know how to implement it properly," Bennett said. "We had to ascertain that the resources were in place."

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Bennett said increases have been made to post-secondary education funding to prepare for the move and the registrar's office has been gearing up to prepare for an increase of applications.

"It won't be Canada's role in the future to decide who is a member of a certain community or not," said Bennett.

"Nations will decide that themselves."

Even though most of the sex inequalities have been removed from the Indian Act, Bennett said there is still other discrimination in place that her government is trying to address involving enfranchisement and adoption.

Call for compensation

"People like Sharon McIvor can well be considered the grandmother to thousands of babies who would never have been registered or included in their First Nations but for her persistence in the face of repeated federal denial of her rights and breach of Canada's own constitution," said Pam Palmater, chair in Indigenous Governance at Ryerson University.

"Their hard work will mean a big difference for thousands of First Nation children." 

She said the next step should be for Canada to take steps to compensate those affected.

"Keep in mind, for many who have already passed, or gone murdered and missing or who lost ties to their communities, the damage has already been done," she said. "Canada needs to make amends."

Jeannette Corbiere Lavell, who made a legal challenge to sex discrimination in the Indian Act after she lost status through marriage in 1970, said she was "relieved" to hear the final Bill S-3 provisions were finally in force. After 49 years of fighting for equality in the Indian Act, she said she hopes the remaining sex discrimination has been fully eliminated.

"People will no longer say, 'You are not a full member of our community,'" she said. "They won't be able to say that just because the government said it."

With files from Jessica Deer and Olivia Stefanovich