Report to Parliament on the Design of a Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship
- Message from the Minister of Crown-Indigenous Relations and Northern Affairs
- Design of the collaborative process
- Summary of input on design
In August 2015, a decision was rendered in the Descheneaux case by the Superior Court of Quebec which declared key provisions of the Indian Act inoperative but suspended the implementation of its decision for a period of 18 months, until February 3, 2017, to allow parliament time to make the necessary changes to the act. This period was subsequently extended to December 22, 2017. In July 2016, the government launched a two stage approach to respond to the Descheneaux decision. The first stage involved legislation to directly deal with the court decision and other known residual sex based inequities in the Indian Act registration provisions. In October 2017, the government began the second stage which involves consultation with Indigenous partners on other alleged discrimination in Indian registration as well as broader Indian Act reform related to Indian registration, band membership and First Nation citizenship.
Legislative changes were introduced in October 2016 under Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général). The act received royal assent on December 12, 2017. The act includes provisions to remove what is commonly known as the 1951 cut-off, (which is the practice of linking registration reform to the date of the creation of the modern Indian registry in 1951), but with a delayed coming into force to allow for consultation on an appropriate implementation plan. The act also requires that Canada consult broadly on issues around registration, membership and First Nation citizenship.
From October 31, 2017 to March 31, 2018, the government sought input from First Nations and Indigenous groups in order to co-design the consultation process. This report provides a summary of the input that was received during the design phase.
Input from First Nations and Indigenous organizations clearly demonstrates the need for the dissemination of further information by the government to First Nations and impacted individuals to support meaningful consultations. The input on design also made it clear that for consultations to be successful the process must be as inclusive and flexible as possible. It would require the accommodation of different types of activities, including:
- government-led/Indigenous-led activities
- face-to-face sessions
- the use of technology
- online options
In addition to working collaboratively and in partnership with national Indigenous representative organizations, the co-design process clearly illustrated the need to develop a consultation process that incorporates the direct participation of First Nations, impacted individuals, regional organizations, communities, and experts.
Message from the Honourable Carolyn Bennett, M.D., P.C., M.P.,
Minister of Crown-Indigenous Relations and Northern Affairs
The government is pleased that Bill S-3, which finally eliminates all sex-based discrimination from registration provisions in the Indian Act has now received royal assent. Provisions eliminating all residual sex-based discrimination in Indian Act registration since the creation of the modern registry in 1951 were brought into force immediately upon royal assent on December 12, 2017. Provisions removing what is commonly known as the 1951 cut-off will be brought into force after the completion of consultations on a comprehensive implementation plan that is co-developed with First Nations partners. These consultations will not be about whether to bring these provisions into force, they are about how best to co-develop measures that ensure adequate resources are provided and any unintended consequences are mitigated. This approach is consistent with the government's commitment to renewing the relationship with Indigenous peoples based on the recognition of rights, respect, cooperation, and partnership. These consultations will also be a key part of wider consultations the government committed to holding from the start regarding long overdue broader reform of Indian Act registration, band membership and citizenship. This is an opportunity to work together to enhance fairness and accelerate self-determination for First Nation registration, membership and citizenship.
I would like to take this opportunity to thank the many parliamentarians who worked collaboratively with the government and across parliamentary affiliations throughout the legislative process to make significant improvements to Bill S-3. Members of parliament and senators also made it clear that parliament wanted to remain informed of and engaged in the process after royal assent and this is the first of a number of reports to parliament set out in Bill S-3.
I would also like to thank all of our partners who participated in the co-design process and those that will participate in the upcoming consultations. The government will be guided by what we heard and welcomes further feedback from parliamentarians about the consultations to be launched next month. The government is committed to a meaningful and comprehensive consultation with First Nations, Indigenous groups and impacted individuals on the complex issues around registration, band membership and First Nation citizenship.
Key themes for a successful consultation we heard during the co-design process included the need for:
- the government to share comprehensive information with our partners in advance of consultation sessions
- the most inclusive and representative process possible
- flexibility in the process
- adequate support to facilitate participation
We also heard that in addition to working closely with national Indigenous representative organizations, the process must also engage directly with First Nations regional organizations, communities and impacted individuals.
The report provides further information and support for each of the key themes outlined above.
Based on what we heard during the co-design phase, I am also confident that we can complete a comprehensive and meaningful consultation within a twelve month timeframe. I believe this time frame will align well with the next legislated report to parliament by June of 2019.
The government has begun work to establish an Indigenous advisory panel which will provide advice and guidance to the government throughout the consultation process. A consultation plan is being prepared in line with what we heard during the co-design phase, with the benefit of feedback from parliamentarians and will be finalized in partnership with the advisory panel.
Information sessions and regional events are currently being developed. In addition, the government will seek views and information from both Indigenous and non-Indigenous experts to provide guidance and advice to the government throughout the consultation process. Indigenous and Northern Affairs Canada's website will be updated as events and materials are finalized and dates are set, and to provide information to the public and ensure the consultation process remains inclusive.
This collaborative process is a first step toward ensuring First Nations have self-determination over how they define themselves and their communities. It is another positive step toward the important work of accelerating self-determination and nation rebuilding. I am looking forward to moving ahead in partnership to begin this long overdue transformation.
The Honourable Carolyn Bennett, M.D., P.C., M.P.,
Minister of Crown-Indigenous Relations and Northern Affairs
In August 2015, a decision was rendered in the Descheneaux c. Canada (Procureur général) case by the Superior Court of Quebec, which declared key provisions of the Indian Act inoperative as they unjustifiably violated equality rights under the Canadian Charter of Rights and Freedoms. The Descheneaux decision highlighted residual sex-based inequities in Indian registration affecting first cousins and siblings that were carried forward following the 1985 and 2010 amendments to the Indian Act. It also brought to light the long-standing and unaddressed broader issues relating to Indian registration, band membership and First Nation citizenship.
In July 2016, the government announced its approach to respond to the Descheneaux decision. It included two parts:
- legislative changes to respond to the decision
- a collaborative process on Indian registration, band membership and First Nation citizenship that would involve consultations with First Nations, Indigenous groups and impacted individuals on these broader and more complex issues, with a view to future legislative reform
This approach is consistent with the Government of Canada's priority for reconciliation with Indigenous peoples through a renewed relationship based on recognition of rights, respect, cooperation and partnership.
Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) received royal assent on December 12, 2017, and the vast majority of it came into force on December 22, 2017. This includes immediately extending entitlement to Indian status to individuals impacted by inequities relating to the different treatment of cousins, siblings or minors who were omitted from historic lists.Footnote 1 Further amendments will come into force at a later date, once consultations on how best to implement these changes are completed. These further amendments will remove the 1951 cut-off and extend status under subsection 6(1) of the Indian Act, to descendants of women who were removed from band lists or not considered Indian due to marriage to a non-Indian man going back to 1869.
During the parliamentary process, the commitment made in the July 2016 announcement to consult with First Nations, Indigenous groups and impacted individuals was added to Bill S-3. Specifically, the legislation was amended to require the government to launch consultations within six months of the act receiving royal assent (by June 12, 2018). The consultations under the collaborative process will address the implementation of removing the 1951 cut-off as well as discussions on the broader issues of Indian registration, band membership and First Nation citizenship.
Bill S-3 also requires the government to report back to each House of Parliament on three separate occasions:
- on the design of the consultation process within 5 months of royal assent (by May 12, 2018)
- on the results of the consultation one year after the consultations begin (by June 12, 2019)
- on the review of Bill S-3 amendments to determine whether all sex-based inequities have been eliminated with respect to those provisions and on the operation of those provisions within 3 years of royal assent (December 12, 2020)
This report fulfills the first requirement for a report on the design on the consultation process.
Finally, the legislation mandates that the consultation process must be conducted through the lens of the United Nations Declaration on the Rights of Indigenous Peoples, the Canadian Charter of Rights and Freedoms and, if applicable, the Canadian Human Rights Act.
Collaborative process on Indian registration, band membership and First Nation citizenship
The Government of Canada is aware there are a number of issues relating to Indian registration and band membership under the Indian Act that are of concern to First Nations. As such, and in keeping with Canada's commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous peoples, the government committed to working collaboratively with First Nations, Indigenous groups, and impacted individuals on the broader and more complex issues related to Indian registration, band membership and First Nation citizenship, with a view to future reform.
The collaborative process consists of two phases:
- co-design of the consultation process
- consultation process
The design of this consultation process began on October 31, 2017 and ended on March 31, 2018. The design phase provided First Nations and Indigenous organizations an opportunity to determine how the consultation process would take place, the issues that will be examined under this process and the types of activities that will be undertaken by participants. The input received during the design phase will inform the consultation plan for the consultation phase. It was recommended by some participants that there should be Indigenous involvement in consultation development. As a result, the government has taken steps to create an Indigenous advisory panel to provide guidance and advice to the government throughout the consultation process. The collaborative process on broader issues related to Indian registration, band membership and First Nation citizenship will be launched by June 12, 2018 and will last for approximately 12 months.
Design of the collaborative process
On October 31, 2017, the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs sent a letter to all chiefs and council of recognized First Nations in Canada, various Indigenous organizations across the country, and the plaintiffs in the Descheneaux case, launching the co-design phase of the collaborative process.Footnote 2
Indigenous and Northern Affairs Canada (INAC) also reached out to letter recipients, as well as 28 additional regional organizationsFootnote 3 throughout the country, to encourage participation in the co-design phase.
INAC responded to more than 148 queries and sent out 77 information packages to First Nations and Indigenous organizations on how to participate in the co-design phase.
In total, 20 formal submissions were received representing 182 communities.
Financial support for participation in the co-design phase was made available through a proposal-based process to First Nations and Indigenous organizations that already had established funding arrangements with the department. Groups or individuals who sought to participate in the co-design phase, who did not have existing funding arrangements with INAC, were given the opportunity to provide written input.
For those groups with funding arrangements, participants were required to provide a summary report of their discussions and activities which would be used to inform the government on the design of the collaborative process.
INAC initially received a total of 29 proposals for participation in the design phase. Discussions between interested groups and INAC representatives covered a broad range of administrative (for example, deadlines, dollar values, types of activities being proposed) and substantive issues of the co-design phase. Through the course of these discussions, 10 groups did not finalize their proposals.
As a result, INAC funded 19 proposals at a total cost of $900,240. Unfortunately, two funded groups were unable to complete their activities and funding was returned to the department. INAC received final reports from the remaining 17 groups.Footnote 4
Three other groups including one First Nation, one Indigenous group, and one non-Indigenous organization also provided submissions. In addition, input was provided by e-mail and a phone conversation from two individuals. All input received on the design of the consultation process was retained for consideration and included in this report.
First Nations and Indigenous organizations that participated in the design phase collected information in a number of different ways to provide input to the department including: surveys, meetings, facilitated discussions, and holding a mix of information and discussion sessions. INAC representatives were invited to attend and present information at 13 events/sessions.Footnote 5
Summary of input on design
Input was sought for two general design questions:
- What issues should be included in the collaborative process on Indian registration, band membership and First Nation citizenship?
- What types of consultation activities should occur as part of the collaborative process?
The input received during the design phase reflects the diversity of the potentially impacted communities and individuals, as well as the diversity of viewpoints. A wide range of views will need to be considered and reflected in the final design of the collaborative process and the resulting consultation plan.
An analysis of the input saw the emergence of five key themes:
- Information sharing: The collaborative process needs to begin with an information sharing period in order to ensure informed discussions can take place during the consultation activities. This could be done through government led sessions in combination with funding First Nations and Indigenous groups to lead their own sessions. A range of media should be used for information sharing, including online, print, and non-print formats. Information sharing must also occur throughout the process.
- Inclusiveness: The collaborative process needs to include a broad range of Indigenous people and groups at all levels from coast to coast to coast:
- individuals (on/off reserve, urban, rural, institutions, and women)
- elected leaders
- band officers (membership administrators, managers, and directors)
- tribal councils
- regional organizations
- national organizations
Consultation should include First Nations, non-status, Métis, Inuit, and non-recognized individuals who self-identify as Indigenous across the country. The government and participants must be prepared to accept and accommodate a variety of views and perspectives. Consultation cannot be limited to Indigenous organizations or First Nation leadership.
- Flexibility: The collaborative process needs to include a variety of different methods and activities to ensure success including:
- group/community meetings
- town hall sessions
- face-to-face discussions
- question and answer periods
- individual interviews
Consultation must have options for confidentiality for individuals and will need to incorporate a mix of government led and Indigenous led activities. Materials should also be available in plain language as well as Indigenous languages.
- Timing and duration: A number of reports highlighted the need for sufficient time for the consultation activities, such as information sharing, organization and preparation, consultation, and having follow-up / feedback sessions. It was suggested that the consultation period be a phased approach that allows the scheduling of communities visits across the country while still meeting the obligations to report back on the consultation process by June 2019. Consideration will also need to be given to seasonal factors, linking sessions with existing events, and having weekend and evening sessions.
- Support: Participants emphasized that financial support is expected by First Nations and Indigenous groups be provided more broadly than during the design phase for participation in the consultation. The funding would be needed to cover a range of activities to consult with members and communities, including hiring staff or coordinators to assist or lead consultations, and genealogy research, legal analysis, and resource/information material development. Government representatives would need to be available to provide support and information as needed.
Themes and issues
An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) (Bill S-3) requires the Minister of Crown-Indigenous Relations and Northern Affairs Canada to consult on the following issues:
- issues relating to adoption
- the 1951 cut-off date for entitlement to registration
- the second generation cut-off-rule
- unknown or unstated paternity
- the continued federal government role in determining Indian Status and band membership
- First Nations' authorities to determine band membership
These themes and issues were identified as part of the 2011-2012 Exploratory Process on Indian Registration, Band Membership and Citizenship and remain as significant areas of concern to First Nations and Indigenous groups.
Participants in the co-design phase identified further issues in their reports for inclusion in the collaborative process.
|The Government of Canada's role in determining Indian registration and band membership||
|First Nations' authorities or band jurisdiction to determine band membership through citizenship and/or membership codes or band laws||
|Community impacts and band issues||
|Self-government, self-determination and Indian Act divestment||
|Categories in Indian registration and how they are applied||
Consultation methods or activities
First Nations and Indigenous organizations also identified the consultation methods or activities that best suited their needs.
|Targeted participation through different consultation activities||
|Timing and scheduling||
Other considerations raised by First Nations and Indigenous groups include:
- The government must recognize that the Indian Act is a colonial document that continues to have the effects of assimilation and cultural genocide. The complexity of the act is used to deny Indigenous peoples their rights. The Indian Act needs to be abolished to fully implement the United Nations Declaration on the Rights of Indigenous Peoples. Moving forward, the connection between membership/citizenship and a fiscal relationship with the Crown will need to be considered. Discussions will need to be based on trust, communication, collaboration, integrity and understanding.
- Some participants questioned why discussions on Indian Act reform are being held as part of a collaborative process rather than through discussions on self-governance/self-determination. It was noted that replacing the Indian Act through self-governance/self-determination is a longer-term process that will require further consultation.Footnote 6
- The government needs to ensure that trained Indigenous people deliver workshops and presentations in order to ensure fair and unbiased consultations and to prevent the sessions from being detrimental to Indigenous peoples.
- Concerns were raised around why there is a need to consult on the continued, ongoing sex-based discrimination, and that the consultation process is actually a tactic to delay the elimination of the sex-based discrimination through Bill S-3.
- Concerns were also raised that consultation is too late and the legislative response has pre-determined the nature of the consultation process with regards to the implementation of the elimination of the 1951 cut-off. Communities indicated that consultation should have occurred before the amendments under Bill S-3 were introduced.
- A healing phase or opportunities for healing incorporated into the collaborative process would allow individuals impacted by inequities in Indian registration to share their stories safely and in a way to promote healing of individuals, families and communities.
Annex A: Copy of October 31, 2017 letter sent to Chiefs and Council
Dear chief and council:
I am pleased to announce that Crown-Indigenous Relations and Northern Affairs Canada is moving forward with the launch of a collaborative process with First Nation and other Indigenous groups to consult on issues relating to Indian registration, band membership, and citizenship, with a view to much needed future reform.
The collaborative process will begin with the design phase, which will provide an opportunity to work in partnership with First Nation and other Indigenous groups and organizations to co-design the comprehensive consultations.
In order to begin comprehensive consultations on the broader-related issues in early 2018, we are moving forward with the co-design phase which will be focused on identifying what issues will be discussed and what activities will be undertaken by participants as part of these consultations.
If you would like more information, or are interested in sharing your views on the co-design of the collaborative process, please contact: FNcitizenship-citoyennetePN@aandc-aadnc.gc.ca.
Hon. Carolyn Bennett, M.D., P.C., M.P.
Annex B: List of the events that INAC representatives attended to share information on the co-design phase
|British Columbia Joint Gathering||Vancouver, BC||January 16, 2018|
Union of Ontario Indians
|Vaughan, ON||January 30, 2018|
Union of Ontario Indians
|Thunder Bay, ON||February 20, 2018|
Union of Ontario Indians
|Sudbury, ON||February 28, 2018|
|Federation of Sovereign Indigenous Nations||Yorkton, SK||February 14, 2018|
|Federation of Sovereign Indigenous Nations||North Battleford, SK||February 21, 2018|
|Federation of Sovereign Indigenous Nations||Prince Albert, SK||February 22, 2018|
|Sagamok Anishnawbek||Sagamok, ON||February 23, 2018|
|Sagamok Anishnawbek||Sagamok, ON||March 2, 2018|
|Conseil de la Nation Atikamekw||La Tuque, QC||March 6, 2018|
|Assembly of First Nations Quebec and Labrador Elected Women||Gatineau, QC||February 27, 2018|
|Winnipeg Indigenous Executive Circle Community Forum||Winnipeg, MB||February 27, 2018|
|Meeting of the General Directors of the Band Councils, Tribal Councils and Regional Commissions and Organizations of the First Nations of Quebec||Quebec City, QC||March 13, 2018|
Thank you for your feedback