Proposed legislation to amend the Indian Act continues discrimination it’s designed to end, say MPs

Bill C-38, containing the latest amendments to the Indian Act, has come under fire from opposition members of Parliament for discriminating against the very First Nations women it purports to benefit.

Nunavut MP Lori Idlout, who serves as NDP critic of Crown-Indigenous Relations, led the charge against the Bill when it came before the House of Commons for second reading and debate on Oct. 20.

Bill C-38 was introduced in December 2022 by the Minister of Indigenous Services. It received first reading at that time. The Bill proposes to resolve inequities still in the Indian Act, even after other attempts had been made to fix the discrimination in the Act against women and their children.

The proposed legislation flows from a constitutional challenge launched in 2021 called Nicholas v. Canada. Sandra Lovelace (Nicholas) and 15 other plaintiffs argued that inequities continued for some individuals when it came to the Act’s registration provisions. They asserted that some individuals who were enfranchised in the past (their Indian status terminated), continued to be enfranchised. They also said that these individuals continued to not be able to transmit status to their direct descendants.

The Indian Act terminated the Indian status of women who married non-status men. Status men who married non-status women were, however, allowed to keep their status and bestow status upon the woman they married and their descendants. Attempts to fix that discrimination in the Indian Act saw Bill C-31 in the 1980s. But that fix fell short and other amendments followed.

Through this newest attempt with Bill C-38, individuals whose status under the Act is reinstated after enfranchisement will then be able to transmit status to their direct descendants in the same ways as individuals who were never enfranchised can.

But, Bill C-38 includes specific clauses that will not allow victims of Canada’s assimilation policies to seek reparation for the discrimination they experienced, said Idlout, an Inuk woman.

“First Nations women and children will continue to be harmed, yet they will not be able to seek reparations, even if discrimination is found,” she said.

The 11-clause amendment includes two “no liability” clauses. They prohibit a claim from being taken against the Crown, an employee or agent of the Crown, or a council of a band if “in good faith in the exercise of their powers or the performance of their duties” a person’s name or that of their parent, grandparent or other ancestor, was removed from the Indian registry.

“No liability” clauses were also included in previous Indian Act amendments that dealt with enfranchisement.

In June 2022, the Standing Senate Committee on Aboriginal People released an interim report titled Make It Stop! Ending the remaining discrimination in Indian registration. It recommended that the non-liability clauses in the 1985, 2010 and 2017 amendments to the Indian Act be removed “to enable First Nations women and their descendants to access compensation.”

The Standing Committee also recommended that Canada and the communities provide reparations, including an apology and compensation for “the harms experienced by Indigenous women and their children.”

However, Canada did not accept the recommendation to repeal the non-liability clauses in those amendments. Canada argues the validity of the clauses will be before the court in Sarrazin v. Canada in relation to the 2010 Indian Act amendments. Canada said it would wait to hear the court’s determination.

Jenny Kwan, NDP MP for Vancouver East, said the non-liability clause allows the government to have “discriminated without impunity and underscores the sense of colonial entitlement.”

Idlout also raised concerns about the “sexist and…problematic” section 6(2) in the Indian Act, which she said is not addressed in the Bill C-38 amendment.

Under section 6(2), someone who has only one status parent will get status for their lifetime. However, the next generation will not. This is referred to as the “second generation cut-off.” This provides issues especially for women, who can easily be identified as a child’s parent.

“Whether the father acknowledges his paternity, and this can be counted as the second-status parent for purposes of eligibility for status, is essentially his decision. The two-parent rule continues Canada’s program of forced assimilation,” said Idlout.

A full status child (both parents are status) gets status for their lifetime and this is passed on to their children.

Idlout said until the rule is amended, “hundreds of thousands” of Indigenous people, mostly women and their descendants, would continue to be discriminated against.

“The Liberals’ interpretation of Nicholas v. Canada is about status. Bill C-38 must not just be about status. It must be about addressing discrimination and violations of basic human rights,” she said.

Bill C-38 does allow married women, who ceased to be a member because they married outside of their band, to have their name entered onto their natal band list maintained in the department. If a direct descendant is also entitled to be registered, their name will be entered on the band list as well.

The bill also allows individuals to have their names voluntarily removed from the Indian register and band list. This change particularly speaks to Métis, who lose their rights to Métis citizenship if registered under the Indian Act. Now they can have their names removed.

Finally, the Bill repeals the term “mentally incompetent Indian” and adds the definition of “dependent person.”

“Bill C-38, like (from) previous court cases, makes amendments that are narrow in scope. Future court cases will be imminent if amendments are not made to this Bill,” said Idlout.

Green Party co-leader Elizabeth May, MP for Saanich-Gulf Islands, agreed with Idlout.

“This (Bill) is so much less than what one should expect at this point,” she said.

“Considering the government sat on the Bill for close to a year, I think that would have been a great time to work on some of those other aspects concurrently,” said Conservative MP Eric Melillo (Kenora).

It took 11 months for the Bill to enter second reading. Public consultation is not expected to begin until 2024.

Parliamentary secretary for Indigenous Services Canada Jenica Atwin, Liberal MP for Fredericton, spoke to her government’s bill.

“The inequity we seek to remedy today is the inability for those with a family history of enfranchisement to transmit status to descendants in the same way that those without a history of enfranchisement are able to,” said Atwin, who is also Wolastoqiyik.

She stressed that the amendments were not undertaken unilaterally by her government but were “solutions proposed…that Indigenous people have told us are necessary to move past the act and reclaim their sovereignty from colonial systems.”

The amendments could result in approximately 3,500 new people being eligible for registration, said Atwin.

Second reading of the bill is still in progress. When that is completed, it will go to committee for consideration.

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