Submission of the National Aboriginal Law Section Page 5
of the Canadian Bar Association
The main amendment proposed in Bill C-3 is the addition of section 6(1)(c.1) to the Indian Act,
that would provide status to any individual:
whose mother lost Indian status upon marrying a non-Indian man,
whose father is a non-Indian,
who was born after the mother lost Indian status but before April 17,
1985, unless the individual's parents married each other prior to that
date, and
who had a child with a non-Indian on or after September 4, 1951.
Section 6(1)(c.1) would apply to individuals currently registered, or entitled to be registered,
under section 6(2) who meet the above criteria.
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New registration would be available to the
children of individuals covered by section 6(1)(c.1) (whether born before, on, or after
September 4, 1951) under section 6(2).
However, it is puzzling that under the proposed section 6(1)(c.1)(iv), one must have a child
before being eligible for registration under section 6(1)(c.1).
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In our view, a person should
have status according to ancestry, rather than whether that person has parented a child. The
proposal in Bill C-3 would generate administrative inefficiencies, as a person eligible for
registration under section 6(1)(c.1) will have to apply not only for registration of his or her
child but also to change his or her own registration from section 6(2) to 6(1)(c.1) so the child
may be registered. This is especially true where the section 6(1)(c.1) person has parented a
child with a non-Indian.
There are many people registered under section 6(2) who were registered post-1985 because
they were not registered earlier for reasons other than gender discrimination. One of those
reasons had to do with adoption. In the 1960s and 70s, numerous First Nation children were
adopted out but were not registered as Indians. After 1985, they were registered as Indians
but under section 6(2). In many of those cases, their mothers still had status at the time of the
children’s birth and so after 1985 were reinstated because they were entitled to be registered
at their birth but were not. However, they were given the same lesser status – namely section
6(2). Bill C-3 would not provide any benefit to those people who were given section 6(2)
status for reasons different from the McIvor case. Unless a person meets all of the criteria,
they are left out.
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This raises a potential concern for “family status” discrimination, in that some people will
only be “bumped up” from section 6(2) to 6(1) status if they parent a child. This may affect
people whose band membership code denies membership to Indians registered under section
6(2) and also in communities where there is a certain stigma associated with having section
6(2) status rather than section 6(1).