OTTAWA — Crown-Indigenous Relations Minister Carolyn Bennett opted to move ahead with extending eligibility for Indian status to possibly hundreds of thousands of people ahead of the last election, despite concerns from the federal bureaucracy about a lack of consultation and inadequate resources.
The decision, announced in August, was intended to eliminate 150 years of sex-based discrimination from the Indian Act, which for decades stripped Indigenous women who married non-Indigenous men of their Indian status, but not the reverse, with implications for generations of descendants.
It was the final step in the implementation of Bill S-3, a federal law passed by the Liberal government in 2017 to extend status eligibility to descendants of women who lost status dating back to 1869.
This last step, known as the removal of the 1951 cut-off, has received a mixed reaction from First Nations, some of which are concerned about a possible influx of new registrants looking to join their communities and benefit from Indian status. Estimates suggest removal of the cut-off could entitle 270,000 to 450,000 people to registration under the Indian Act over the next decade.
Many others believe the change provides justice to people unfairly denied Indian status who have waited decades for recognition. “Our government committed to eliminating all sex-based discrimination in Indian Act registration, and we delivered on that promise,” the office of Indigenous Services Minister Marc Miller told the National Post in a statement.
However, an internal document obtained by the Post through access-to-information shows officials in the department of Crown-Indigenous Relations were concerned the government wasn’t prepared for the removal of the 1951 cut-off, and felt more consultation was needed. The briefing note for Bennett, dated April 10, seems to suggest she hold off until after the October election, though the recommendation itself is redacted.
First Nations are divided about when the changes should be implemented, but an implementation plan that considers the key messages of First Nations is recommended
“First Nations are divided about when the changes should be implemented, but an implementation plan that considers the key messages of First Nations is recommended,” it reads.
“If you move to implement the removal of the 1951 cut-off prior to October 2019… (it would) directly contradict commitments and quotes made by you on the promise to fully consult and make plans together with stakeholders.”
Ultimately, Bennett overruled the advice from her department and removed the 1951 cut-off on Aug. 15, less than a month before the start of the federal election campaign.
The briefing note states that several First Nations and Indigenous organizations had requested more time to consult and submit reports. It also says there hadn’t been enough time for officials to consult with other government departments about the impacts of the change. “As such, the department does not have all the information to prepare a thorough implementation plan prior to the election.”
The document also raises concerns about the ability of the Indian registrar’s office, which assesses status eligibility, to keep up with an influx of new applications. “The demand for processing registration applications would exceed current capacity and existing processes,” it says. “As a result, the processing of applications for registration would suffer greater delays.”
However, the document acknowledges that postponing past the election would open the government up to criticism “regarding delays on the implementation of women’s and human rights with no set deadline.”
Miller’s office, which has taken over responsibility for Bill S-3 from Bennett, said resources will be added progressively to assess up to 554,000 applications over the next decade. So far, the department has received approximately 22,000 applications under the new law, in line with expectations. A government website says it currently takes about 16 weeks to issue a status card.
To explain the timing of the decision, Miller’s office pointed to recommendations made earlier this year by a ministerial special representative, Claudette Dumont-Smith, who said the 1951 cut-off should be removed by June 2019.
However, a report submitted to Parliament in June, accompanied by Dumont-Smith’s findings, noted that “First Nations indicated that they have not had enough time to consult with their full membership… on the removal of the 1951 cut-off.” The report also says some First Nations raised concerns “that newly entitled individuals will apply for registration in order to take advantage of services and benefits without seeking a connection to the community or culture.”
A few First Nations have taken steps to restrict their own membership and residency criteria in response to the full implementation of Bill S-3, including the Mohawk Council of Kahnawake on Montreal’s South Shore. The First Nation passed a new law in June governing who can live in the community. Kahnawake also requires members to have at least four Mohawk great-grandparents.
Kahsennanhawe Sky-Deer, an elected council member, called Bill S-3 “the new assimilation tactic” — a way to erode Indigenous culture by extending status to many people without ties to Indigenous communities. “We see it as a complete interference by the federal government of deciding identity, belonging and citizenship,” she said.
Sky-Deer said there was “definitely” not enough consultation with First Nations on the possible consequences of Bill S-3. “I still feel that people have blinders on, that they don’t really see what’s coming,” she said.
Damien Lee, an associate fellow at the Yellowhead Institute, a First Nation-led think tank, said Bill S-3 rights a long-standing historical wrong, but could have unintended consequences. “This bill does justice to those people who know that they belong with the community,” he said. “It does open the door, though, to folks that, for better or for worse, aren’t really Indigenous people anymore, in the sense that they’re not connected to community.”
Still, Lee said Bennett made the right decision in removing the 1951 cut-off in August. “I would say that the people who needed this to happen needed it to happen decades ago,” he said.
Bill S-3 is the latest in a series of legislative changes, beginning in 1985, which have gradually removed sex-based inequities from the Indian Act. The law stems from a 2015 Quebec Superior Court decision that found some registration rules still violated Charter rights. Until the passage of Bill S-3, first cousins could end up with different statuses based on the sex of their Indian grandparent, and male and female siblings born out of wedlock could have different statuses.
Those issues were addressed by changes that took effect in December 2017. But a previous amendment had restricted the expansion of status eligibility to grandchildren of women who lost status and were born after 1951 — the 1951 cut-off. The Liberals decided to remove that cut-off after a period of consultation and extend eligibility to the descendants of women who lost status dating back to 1869.
Once registered, status Indians are eligible for federal benefits and services including treaty payments, post-secondary education funding and non-insured health benefits.