Question Period Note: Indian Act Reform (Bill C-38)

• Our government is committed to addressing inequities and broader
reform issues in the registration and membership provisions of the
Indian Act.
• Bill C-38’s amendments were co-developed with Indigenous partners
and incorporates feedback from over 50 engagement sessions.
• Bill C-38 remedies enfranchisement and residual sex-based
discrimination in the band membership provisions, such as allowing
women to regain membership with their natal bands.
• Work to address remaining inequities, including the second generation
cut-off, will continue this fall.

In 2018-2019, following the Collaborative Process on Indian Registration, Band
Membership and First Nations Citizenship, which was a broad and co-developed
consultation process with First Nations partners, the Minister’s Special Representative
(MSR) on the Process, Claudette Dumont-Smith’s Final Report recommended
addressing a broad suite of remaining inequities in the Indian Act, including
enfranchisement, second-generation cut-off, deregistration, and cross-border issues.
In March 2022, the Honorable Patty Hajdu, Minister of Indigenous Services, announced
an agreement with the Nicholas v AGC counsel to put the litigation in abeyance, to allow
the parties to seek a legislative solution for enfranchisement related inequities. Under
this agreement, Canada committed to a timely introduction of legislative remedies
addressing enfranchisement.
The Minister of Indigenous Services continues to be mandated to prioritize support for
First Nations’ self-determination with a view to a transition away from the Indian Act. In
support of that mandate, and in response to the Nicholas v AGC Charter challenge on
enfranchisement-related inequities, the Government has introduced Bill C-38, An Act to
amend the Indian Act (new entitlement provisions). This Bill proposes four amendments
to registration and membership under the Indian Act, and if it passes, the issues of
enfranchisement, individual deregistration, natal band membership and offensive and
outdated language will be fully addressed. Minister Hajdu has also committed to consult
on remaining inequities in registration in 2023.
The issue of enfranchisement stems from the impacts of enfranchisement-related
provisions introduced by Bill C-31 in 1985. As a result of Bill C-31’s amendments, and
despite Bill C-3 and Bill S-3’s legislative changes to eliminate sex-based inequities,
inequities relating to enfranchisement continue to persist with some descendants with
family histories of enfranchisement, who are unable to transmit entitlement to
registration to the same extent as individuals with no family history of enfranchisement.
Those who enfranchised as a band or a collective (and their descendants) also have no
entitlement to registration today.
The proposed amendments have been communicated through the departmental
webpage; social media posts; web content; and distribution of information through a
third party partner, Indigenous Link. Information on the availability of virtual engagement
sessions were shared broadly though each platform. To date, over 50 sessions have
been held with individuals and organizations. On October 31, 2022, the Honorable Patty
Hajdu, Minister of Indigenous Services Canada sent a letter encouraging participation
from all First Nations Chiefs in the engagement process. On December 14, 2022 Bill C-
38 was introduced in the House of Commons and passed First Reading.
As a result of the proposed changes, over the next five years, it is projected that nearly
3500 individuals will be impacted by these changes and could be newly eligible for
registration under the Indian Act.
The seventh report of the Standing Senate Committee on Indigenous Peoples entitled,
“Make it stop! Ending the remaining discrimination in Indian registration”, tabled on
September 27, 2022. The Government tabled its response on February 23, 2023. The
Senate Response commits to the co-development and launch of consultation in 2023.
The UN Declaration Action Plan Item 8 of the commits to co-develop a consultation
process on broader reform issues while meeting the high thresholds for cooperation and
consultation with First Nations rights-holders.
On July 14, 2023, the Government launched the Collaborative Process on the Second-
Generation Cut-Off and Section 10 Voting Thresholds, a consultation process that will
seek First Nations’ recommended legislative remedies to these issues. The Minister of
Indigenous Services issued invitations welcoming 22 organizations to an Indigenous
Advisory Process as part of the co-development of the consultation process ahead. This
proactive work is not driven by the impetus of litigation, and will continue to progress in
Fall 2023.

If pressed on Duty to Consult
• Consultation on the issues being addressed in Bill C-38 were held in
2012 and 2018.
• First Nations have told us that inequities in registration and
membership must be addressed, and Bill C-38 proposes legislative
solutions recommended by First Nations during prior consultation.
• First Nations have also signaled the need for further consultation on
broader reform issues.
• Consultation is being co-developed with First Nations partners in
accordance with the United Nations Declaration on the Rights of
Indigenous Peoples Act.