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The Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds

Indigenous Services Canada has officially launched the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds. On this page you will find:

• Overview of the Collaborative Process
• Rights-Holders Information Kit
• Community-Specific Data Sheets

Overview of the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds

The Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds consists of two phases:

Phase 1: Co-Development and Information Sharing

As part of the first phase, an Indigenous Advisory Process provided recommendations to Indigenous Services Canada on how to best design the Collaborative Process. The Indigenous Advisory Process is actively engaged in offering guidance and co-developing consultation materials.

A rights-holders information-sharing initiative seeks to provide early and ongoing information to First Nation rights-holders and impacted individuals to support preparation for consultation events on solutions to the issues. This initiative includes the following:

• A Rights-Holders Information Kit has been developed to support rights-holders’ readiness for consultation events by providing detailed descriptions of the issues. Beginning in February 2024, the kit has been widely distributed by email, mail, and is publicly available online. You will find the information kit accessible online and available for PDF download on this page.
• Indigenous Services Canada has also created community-specific data sheets as part of this information-sharing initiative. These data sheets highlight the impact of the second-generation cut-off on each First Nation’s registered population across Canada. You will find the community-specific data sheet for your First Nation on this page or by visiting Open Data.
• A Consultation Readiness form has been designed for representatives of First Nations to communicate their community’s readiness to engage in discussions on the second-generation cut-off and Section 10 voting thresholds.
• Since April 2024, Information Sessions, both virtual and in-person, are available for participants to receive a presentation on the Collaborative Process and ask questions. If you wish to attend a public session, you can register online here.

Phase 2: Consultation Events and Activities

The second phase of the Collaborative Process officially launched in December 2024 and remains underway. The following materials support Phase 2 of the Collaborative Process:

• A Consultation Plan has been co-developed with the Indigenous Advisory Process, outlining the design and delivery of the consultation events.
• Indigenous artist Tiaré Lani designed art to visually depict the key themes found in the reports submitted by the Indigenous Advisory Process.
• To summarize the findings and recommendations of the Indigenous Advisory Process, a What We Heard Report (available online soon) was created.
• A consultation guide and materials will be developed to support First Nation-led consultation events.

Phase 2 will consist of the following steps – please note that timelines for upcoming events are estimated:

• NEW – Winter 2025: A Call for Funded Proposals: First Nation-led Options for Solutions in which First Nation communities, Tribal Councils, Treaty organizations, and representative Indigenous organizations can propose solutions to the second-generation cut-off and section 10 voting thresholds. Applications are being accepted until March 14th, 2025.
• UPCOMING – Spring 2025: The solutions included in the submitted reports will undergo a legal viability and impact assessment by the Registration Reform and Legal Solutions Committee (RRLSC). The solutions, along with their impact assessments, will be broadly shared in a consultation guide.
• UPCOMING – Summer 2025 to Spring 2026: A separate call for funding proposals will be available for First Nations and Indigenous organizations to host consultation events and activities to discuss and determine the solution(s) from the consultation guide that best suit their communities’ needs and perspectives.

To find out more about the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds, please contact the Registration Reform team at Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca

Rights-Holders Information Kit *

(* from Indigenous Services Canada)

From the Minister

Greetings,

I am pleased to announce that Indigenous Services Canada is moving forward with the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds.

Please find below a Rights-Holders Information Kit, designed to support your involvement in a consultation process on these 2 issues. The process is intended to reflect the requirement for cooperation and consultation set out in the United Nations Declaration on the Rights of Indigenous Peoples Act, and may be adjusted along the way, based on input received from First Nations.

Meeting the requirements set out in the United Declaration on the Rights of Indigenous Peoples Act requires that the department works to support your Nation’s readiness for consultation – this information package is part of those efforts: providing you with information on the issues, and offering you data unique to your community, highlighting the known impacts of these issues.

As you consider the contents of this Information Kit, questions will likely arise. Please feel free to reach out to Registration Reform, to request additional information, ask questions, request support or information sessions and/or to provide feedback to engagement Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca.

I look forward to our collaboration, cooperation and consultation on these significant issues.

Yours sincerely,

The Honourable Patty Hajdu, P.C., M.P.

The Collaborative Process on the Second-Generation Cut-Off and Section 10 Voting Thresholds

In 2019, the Minister’s Special Representative (MSR) for the Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship, reported that “unquestionably, the inequity of greatest concern that was raised throughout the collaborative process was the second-generation cut-off, [and that] this issue will impact all First Nation communities at various times and in varying degrees to the point that some communities will not have any children eligible for registration [under the Indian Act] within the next generation.” With this urgent risk in mind, the MSR made a clear call to action, “First Nations, in collaboration with the government, must urgently raise awareness of this issue and its impact on First Nation communities.”

Today, Indigenous Services Canada (ISC, also referred to as ‘the Department’) has launched the 2023-2024 Collaborative Process on the Second-Generation Cut-Off and Section 10 Voting Thresholds.

2023-2024 issues for consultation

• Second-Generation Cut-Off: The limitations of registration for individuals with 1 parent entitled to registration under 6(2) of the Indian Act
• Section 10 Voting Thresholds: The double majority threshold requirement for First Nations to take control of their membership under Section 10 of the Indian Act

This Collaborative Process includes Phase 1: The Co-Development and Information Sharing Phase and Phase 2: The Consultation Phase.

Phase 1 consists of:

• the Rights-Holders Information Sharing Initiative¹, which aims to fulfill the department’s goal of providing early and ongoing information and support to rights-holders, in preparation for consultation; and,
• the Indigenous Advisory Process², which aims to co-develop consultation materials, events, and activities with Indigenous partner organizations, while providing guidance on how the department and consultation participants can work together to achieve deep and meaningful consultation and cooperation as set out in the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA).

Canada is committed to meaningful consultation and cooperation with First Nations and will seek recommendations for the best ways to move forward on these issues. If solutions are recommended and supported by First Nations governing bodies and impacted Indigenous Peoples during consultation, Canada will then continue to work cooperatively with First Nations to co-develop legislative amendments that reflect these recommendations.

History matters

Canada acknowledges that since its introduction in 1876, the Indian Act has been used to administer the lives of First Nations peoples, often through legal provisions that have discriminated against First Nations women and their descendants. Any consultation process on reforms related to registration and membership under the Indian Act must acknowledge the colonial history of the Indian Act, the ways it has changed over time, and the ways historical law and policy continue to impact people today.

Historical review of amendments to the registration provisions of the Indian Act

1869: The Gradual Enfranchisement Act created a legal definition of ‘Indian’,³ not based on First Nations kinship and community ties, but on the colonial belief in the predominance of men over women.

The “marrying out rule” was introduced, resulting in:

• First Nations women who married non-entitled men lost their status, and lost the ability to transmit status to their children.
• First Nations men who married non-entitled women not only kept their status, but their non-entitled wives were granted status, and they retained the ability to transmit status to their children.

1876: The Indian Act was introduced, and the “marrying out rule” was maintained.

1951: Substantial changes were made to the Indian Act, including the creation of a centralized Indian Register. Amendments reinforcing discrimination against women and their descendants were made, including the “double mother rule”⁴.

1960s and 1970s: Jeanette Lavell of Wikwemkoong, Yvonne Bédard of Six Nations of the Grand River,⁵ Elder-activist Mary Two Axe Earley of Kanien’kehá:ka,⁶ and Senator Sandra Lovelace Nicholas of Maliseet Nation⁷ brought various challenges against the Indian Act for its discrimination against women and their descendants. 

1985: With the new backdrop of the Charter of Rights, and increased international pressure, C-31, An Act to Amend the Indian Act was enacted with the intention of eliminating sex-based inequities in the Indian Act.

It introduced changes that removed some sex-based inequities,⁸ reinstated entitlement to registration for many,⁹ maintained the status of all people who were entitled prior to C-31 by virtue of section 6(1)(a),¹⁰ created 5 registration categories under section 6(1) and introduced the “second-generation cut-off” under section 6(2).¹¹

Considered an important step forward at the time, C-31 did not address all sex-based inequities, and today, options for solutions to the second-generation cut-off are being consulted on with the intent of reform.

2009: In the McIvor decision, the BC Court of Appeal ruled that the Indian Act violated the Charter of Rights and was discriminatory based on sex, because:

• First Nations women who had lost their status because they married a non-entitled man, whose status was restored by C-31, still were unable to pass on entitlement to their grandchildren
• In comparison, First Nations men who married non-entitled women were still able to pass on entitlement to their grandchildren

2011: C-3, Gender Equity in Indian Registration Act introduced changes that restored status to the grandchildren of First Nations women who had married non-entitled men, and created the “1951 cut-off” in attempts to fix the “double mother” rule introduced in 1951.¹²

C-3 did not resolve the inequities in entitlement for further descendants of women compared to descendants of men in similar circumstances, resulting in further litigation against Canada.

2015: In the Descheneaux decision, the Superior Court of Quebec ruled that the Indian Act violated the Charter of Rights, and was discriminatory based on sex.

2017: In the Gehl decision, the Ontario Court of Appeal supported Dr. Lynn Gehl, an Algonquin Anishinaabe-kwe and determined that women were unfairly disadvantaged by the Registrar’s policy with respect to unstated or unknown parentage.

To address these persisting sex-based inequities, on December 22, 2017, the first phase of S-3, An Act to Amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) came into force.

The “1951 cut-off” was left in place until consultation with First Nations and impacted individuals occurred, at which time the amendments were brought fully into force.

2018-2019: During the Collaborative Process on Indian Registration, Band Membership and First Nation Citizenship, First Nations were consulted on the removal of the “1951 cut-off” as well as broader issues relating to the Indian Act. The findings of this consultation process continue to inform present-day consultations.

2019: On August 15, 2019, S-3 was brought fully into force to remove the “1951 cut-off”, and new registration provisions mean that descendants of First Nations women who married non-entitled men are treated the same as descendants of First Nations men who married non-entitled women.

2020: In the Final Report to Parliament on the Review of S-3, Canada presented next steps towards reform, including addressing enfranchisement and deregistration, and consulting on a legislative remedy for the second-generation cut-off.

2021: Nicholas v. Canada (Attorney General) was filed against Canada, arguing that people with family histories of enfranchisement do not have the same capacity to transmit status to their descendants as people without a family history of enfranchisement.

2022: Nicholas v. Canada (Attorney General) was put on hold when Canada committed to introduce legislation to fix the inequities caused by enfranchisement-related provisions.

On December 14, 2022, Bill C-38, An Act to Amend the Indian Act (new registration entitlements) was introduced,¹³ and proposed 4 amendments to address issues recommendations made during the 2018/19 Collaborative Process, including enfranchisement and deregistration. At this time, the Minister of Indigenous Services, Patty Hajdu, committed to a consultation and cooperation process on broader reform issues related to registration and band membership under the Indian Act, notably including the second-generation cut-off.

2023: On June 21, 2023, after 2 years of consultation and cooperation with First Nations, Inuit and Métis, the Department of Justice released the UN Declaration on the Rights of Indigenous Peoples Act Action Plan.

Chapter 2 of the Action Plan presents Action Plan Measures (APMs) specific to First Nations Priorities.

These include the following 3 measures:

• APM #7: Support the adoption of Bill C-38, which seeks to address discrimination in the registration and membership provisions of the Indian Act.
• APM #8: Co-develop a collaborative consultation process on a suite of broader reforms relating to registration and band membership issues, prior to any transition away from the Indian Act. This includes to consult, cooperate and effectively engage with First Nations women to eliminate remaining gender-based issues; Canada recognizes that the Indian Act is a colonial-era law designed to exert control over the affairs of First Nations, and as such, the Act will never be fully aligned with the UN Declaration. For Canada’s laws to fulfill the UN Declaration, the Indian Act must be repealed. The government is seeking to make the Act’s registration and band membership provisions more consistent with the UN Declaration, until a clear consensus on a way forward on comprehensive change or the Act’s repeal is possible.
• APM #9: Consult First Nations and other impacted Indigenous groups to support the co-development of opt-in alternatives to Indian Act registration and membership (First Nation citizenship). This will include a broad spectrum of Indigenous demographic groups, such as women, girls and 2SLGBTQIA+ people, Elders, Treaty groups, etc.

Second-generation cut-off issue sheet

Background

In 1985, C-31, An Act to Amend the Indian Act introduced legislative amendments with the intention of bringing the Act into alignment with the equality provisions in the Canadian Charter of Rights and Freedoms. The previous section of this kit highlights that, although numerous amendments came into force, and Canada aimed to remove sex-based inequities from the registration provisions of the Indian Act, not all inequities were addressed, resulting in litigation and legislative changes in the decades that followed.

The Application of the Second Generation Cut-off

As part of C-31, 2 general categories for registration were created through sections 6(1) and 6(2). A person may be registered under section 6(1) if both their parents are or were registered or entitled to be registered under the Indian Act. A person may be registered under section 6(2) if only 1 parent is or was registered or entitled to be registered under the Indian Act. While both sections 6(1) and 6(2) provide equal access to the services and/or benefits associated with registration under the Indian Act, people are impacted by these categories because the ability to transmit or pass on status to descendants differs. They may also have different access to membership, depending on the membership type and membership rules of the First Nation they are affiliated to. The implementation of these 2 general categories has created a new critical issue – the second-generation cut-off.

The second-generation cut-off occurs when, after 2 consecutive generations of parenting with a person not entitled to registration, the third generation is no longer entitled to registration. If an individual has 1 grandparent and 1 parent who are not entitled to registration, that individual will not be entitled to registration under the Indian Act.

Differential treatment within families caused by the second-generation cut-off

Today, First Nations and their community members report that the second-generation cut-off is applied without consideration for their individual or family circumstances, and many report that the different categorization between sections 6(1) and 6(2) can cause issues for registered individuals and their non-entitled children.

Differential treatment within family due to date of birth

This graphic assumes no marriages and that each person *has one entitled parent

For some families, siblings are registered under different categories, simply because of the year they were born, and/or the date of their parents’ marriage. As a result, they have different capacities to transmit status on to their children.

In the diagram above, 2 different examples of differential treatment within families are presented.

Example 1:

• 1 sibling (left side: first generation), born before April 17, 1985, is entitled under the 6(1) category. As a result, this sibling can transmit status to both of their children.
• The other sibling (right side: also first generation), but born after April 17, 1985, is entitled under the 6(2) category. If this sibling parents with a non-entitled person, their child is not entitled.

Example 2:

• 1 sibling (left side: second generation), born before April 17, 1985, is entitled under the 6(1) category. If this sibling parents with a non-entitled person, they can still transmit status to their child (left side: who is third generation).
• The other sibling (middle: also second generation), but born after April 17, 1985, is entitled under the 6(2) category. If this sibling parents with a non-entitled person, they cannot transmit status to their child (middle: third generation).

Residual impacts of the 1985 inclusion of the second-generation cut-off

In 1985, Canada’s rationale for introducing the second-generation cut-off centered around concerns raised by First Nations during parliamentary debates regarding resource pressures and cultural erosion in First Nations communities.

The second-generation cut-off was introduced to address concerns that “First Nations expected a significant increase in registered individuals with no current familial, kinship or community ties” and that it was “an attempt to balance individual and collective rights with a view to protecting First Nation culture and traditions.”

With respect to newly entitled individuals who lack community connection, many First Nations, Indigenous Peoples and Indigenous organizations raise concerns about the 1985 decision to implement the second-generation cut-off to ‘protect’ communities from registered individuals with no current familial, kinship or community ties. Given that in the decades since 1985, the findings of the Courts have held Canada accountable for perpetuating sex-based inequities in registration, and that Canada amended the Indian Act and restored entitlement to women and their descendants, those lacking kinship or community ties are often women (and their descendants) whose disconnection was caused solely by historically discriminatory colonial legislation.

The demographic impacts of the second-generation cut-off across Canada

The following chart reflects data from the Indian Register for each province and territory, as of January 11, 2024, including:

• the total number of people registered under the Indian Act.
• the total number of people registered under section 6(2).
• the percentage of the total registered population who are registered under section 6(2) in each First Nation.

Across Canada, 322,173 individuals (or 29% of the total registered population) are registered under section 6(2). This portion of First Nations who are registered under the Indian Act will only be able to transmit entitlement to registration to their children if they parent with an individual who is entitled. If they do not, their future descendants will no longer be recognized as First Nations under the Indian Act, and they may no longer have access to the rights, benefits and services that the government provides for individuals registered under the Indian Act. This is a result of the second-generation cut-off.

If the registration provisions in the Indian Act remain the same, over the course of a few generations, the registered number of individuals is expected to decrease over time resulting in a smaller registered population.

In the final report on the findings of the Collaborative Process on Indian Registration, Band Membership and First Nations Citizenship, the Minister’s Special Representative presented that the second-generation cut-off:

• has more severe impacts in communities that have a small population base, that are not isolated, and that have more instances of “marrying out”.
• will inevitably lead to a significant number of children who, despite being born to a parent who is entitled under the Indian Act, will be unentitled for registration under the Indian Act due to this cut-off.
• will see the gradual elimination of persons eligible to be registered under the Indian Act with some communities feeling this impact in the next generation while most First Nation communities, regardless of location, will feel this impact within the next 4 generations.
• will have an end result, “in the not so distant future” where some communities will no longer have any entitled or registered individuals, or the number of entitled or registered individuals will have declined significantly.

While cumulative data reflects a whole of Canada picture of the impact of the second-generation cut-off, it does not demonstrate the magnitude of the impacts for each First Nation. Each First Nation has a unique experience with the registration provisions of the Indian Act, and on average, the impacts of the second-generation cut-off are more impactful at the community level. Given the way that the current Indian Act registration provisions interact with the band membership provisions, this means that there will not only be an eventual erosion of the number of individuals who can be registered, but also a steady decline in the number of people who will be considered band members.

Community specific data is available

Community specific data sheets on the impacts of the second-generation cut-off are available online by visiting Open Data, or by email request to Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca.

Potential solutions to the second-generation cut-off

In 2019, the Minister’s Special Representative (MSR) recommended that the Government facilitate “a separate and more in-depth consultation process, and begin to develop solutions to address this inequity.”

In 2018-2019, there was no agreement or consensus on how best to address the second-generation cut-off, but the following potential solutions were presented by First Nations:

• shifting to a one-parent rule (requiring only one parent to be registered)
• use of blood quantum (a restrictive version of today’s registration rules, similar to rules applicable in the United States)
• use of DNA (establishing parameters or thresholds of genetic Indigeneity, possibly similar to blood quantum, possibly less restrictive)
• removing the categories completely so people are either simply registered or not
• transfer of control to First Nations to decide who their people are (common set of minimum requirements established and applied)

In the coming consultation phase, dialogue and consideration will be given to potential options for solutions to the second-generation cut-off, with the intention of determining First Nations’ recommendations and preferences on this issue.

While Canada consults on a legislative solution to the second-generation cut-off, First Nations have long recommended that the broader issue of First Nations jurisdiction over citizenship must also be prioritized. Previous engagement revealed that removing inequities in registration and membership must happen simultaneous with broader comprehensive reform.¹⁶ Today, multiple simultaneous initiatives are underway, with progress on Bill C-38 being made in Parliament, with the consultation on registration and membership under the Indian Act ongoing, and with the Department of Crown-Indigenous Relations leading the work on jurisdiction over citizenship. The goals of all initiatives intersect and are not mutually exclusive. Timelines differ based on demographic impact and scope of transformation.

Section 10 voting thresholds issue sheet

Legal changes related to band membership, from 1869 to 1995

Background on band membership

• Prior to the existence of Canada, First Nations had their own systems for determining the “citizens or members” of their nations. Kinship and community ties were common elements. These systems were targeted by colonizers in deliberate ways, including legislation, land dispossession, violence and forced displacement, and the Indian Residential School and Day School systems
• In 1869, the Gradual Enfranchisement Act, and in 1876, the first Indian Act, introduced narrow definitions of who could be considered ‘Indian’ under the law and who had membership in a ‘community of Indians’
• In 1951, the Indian Act was amended to establish an Indian Register and created the position of a Registrar to determine who was or was not entitled to be registered.
• The 1951 amendments created a system where registration and status was synonymous with band membership – if a person was entitled to be registered, they were typically entitled to band membership automatically
• In 1985, C-31, An Act to Amend the Indian Act introduced 2 options for the control of band membership under sections 10 and 11 of the Indian Act
• In 1995, the Federal Policy on Aboriginal Self-Government introduced a mechanism for the federal government to recognize the option for First Nations to determine their band membership, through signing a Modern Treaty or a Self-Government Agreement with Canada

Band membership under Section 10, Section 11, and self-governing agreements

Band membership is one of the ways that individuals access membership rights in their communities. In 1985, C-31, An Act to Amend the Indian Act introduced 2 options for the control of band membership under sections 10 and 11 of the Indian Act.

Some programs, services and benefits are available for all registered individuals, such as the Non-Insured Health Benefits program or tax exemption, while other programs and services (for example housing, public health), are primarily funded and delivered to the community based on band membership.

When a person entitled to be registered under the Indian Act submits an application to be registered, the department determines which band the applicant will be affiliated to in the Indian Register, based on their family history. Individuals may be affiliated to a band governed under section 10, 11, or a self-governing agreement, and band membership will be determined accordingly.

First Nations under Section 10

• With the introduction of section 10, the concepts of registration and band membership under the Indian Act became distinct for the first time since 1951
• Under section 10, First Nations can assume control of their band membership through the creation of membership rules and codes
• Membership codes must be approved by the Minister of Indigenous Services, as defined by the Indian Act
• The department cannot add people to the membership lists for First Nations that have assumed control under section 10
• When a person’s family history connects them to a First Nation that has assumed control of membership, they are registered under the Indian Act and are affiliated to that section 10 band. They must then reach out to their First Nation to request to be added to the membership list. All matters related to band membership between applicants or members of a section 10 First Nation are addressed by the band. Similarly, for self-governing First Nations, membership is determined by the First Nation
• Acceptance to a First Nation band that determines their own membership is dependent on the membership rules established by that band
• For these First Nations, a registered person who is or is not affiliated to them may or may not be recognized as a band member. Furthermore, since entitlement to a First Nation’s membership depends on their own membership rules, and not necessarily on entitlement to registration. Therefore, a band member affiliated to a First Nation that controls membership may or may not be registered under the Indian Act

First Nations under Section 11

• For First Nations that have not been able to take control of their band membership under section 10, their band membership lists are maintained by Indigenous Services Canada, under section 11 of the Indian Act
• When a person is registered to a section 11 band, they are automatically added to the band’s membership list by ISC
• For these First Nations, at the time of registration, entitled people automatically become band members, and have the right to access all benefits, programs, services and settlements associated with band membership

First Nations and self-governing agreements

• Self-governing agreements provide another avenue for First Nations to take control of their membership
• For self-governing First Nations, registration is still determined by Canada under the Indian Act, but membership and other affairs are governed by the First Nation

Statistics

As of June 2023, 230 First Nations control their own membership through section 10 of the Indian Act, representing 37% of all First Nations.

• 200 transitioned to section 10 on or before June 28, 1987
• Only 30 First Nations have successfully transitioned from section 11 to section 10, under the current rules (after June 28, 1987)

The remaining First Nations are managed through either section 11 of the Indian Act or a self-government agreement.

• 350 First Nations are governed by section 11, representing approximately 57% of First Nations
• An additional 39 First Nations are self-governing¹⁷, representing 6% of all First Nations

The process for First Nations seeking to assume control under Section 10

In order to understand why section 10 voting thresholds are being consulted on alongside the second-generation cut-off issue, an explanation of the process First Nations must undertake to assume section 10 control over their band membership is provided.

Transition to Section 10

To assume section 10 control, First Nations go through a process of assuming control and meet 3 requirements.

Requirement 1: notice

A First Nation must give 2 notices to its eligible electors. Notice 1: The band’s intention to assume control over their membership; and, Notice 2: The band’s intention to establish membership rules for itself. These Notices can be made at the same time, and/or combined in a single notice to vote that reaches all eligible electors.

Notices must be given in a way that makes sure that the band’s eligible electors, aged 18 and older, are aware of the First Nation’s intentions. If the electors are not notified, and are not able to exercise their right to vote, the First Nation may not be able to achieve the voting thresholds needed to successfully transition to section 10.

After a First Nation has successfully met all the requirements for transition to section 10, it must issue Notice 3 – to inform the Minister and the department that it is taking control over its membership as per section 10 of the Indian Act, and to share a copy of the membership rules for Ministerial approval.

Requirement 2: consent

The First Nation must obtain consent from its eligible electors about its intention to assume control over its membership and its intention to write its own membership rules.

The First Nation must:

• take reasonable measures to locate electors
• provide them with the ability to review the content of the membership rules
• inform them about their right to vote
• inform them about voting

Under section 10 of the Indian Act, consent is only considered achieved when a “double majority” voting threshold is met—and that the majority agrees with the First Nation’s intention to assume control over membership and its membership rules. A double majority means that a majority of the eligible electors of the band must vote, and a majority of those who vote must be in favour.

The following chart demonstrates the different thresholds that can be used in relation to seeking approval by way of a vote. The examples assume that a band has 1,000 eligible voters. The bolded row describes the “double majority” voting threshold required for transition to section 10.

Requirement 3: protection of acquired rights

The membership rules must protect the acquired membership rights of individuals whose names were on the membership list maintained by the department or who were entitled to have their names entered on the membership list up until the day before the First Nation assumes control of membership. First Nations must submit a copy of their proposed rules to the department for preliminary review, and must ensure the protection of acquired rights under the code. This means that everyone whose name is on the Band List maintained by the department the day before the First Nation’s membership rules take effect will remain legally entitled to membership in the First Nation. It also means that everyone whose name was not yet entered on the Band List maintained by the department but who were entitled up until the day before the First Nation’s membership rules take effect are legally entitled to membership in the First Nation.

After the First Nation has successfully met the requirements of section 10:

• Canada will notify the band of the change of membership control and provide the band with a copy of its Band List, updated the day before membership control is transferred
• From that day forward, the band is required to maintain its own Band List and the department has no further responsibility with respect to the band’s membership
• Any individual who wishes to be a band member must contact their First Nation office to request to be added to their membership list. This information is communicated to newly registered individuals in a letter that confirms their registration and identifies their affiliation with a section 10 First Nation
• The department continues to provide Letters of Authority to the Registration Administrator(s) working with the First Nation, explaining the rationale for inclusion on the Indian Register. This can help the Nation decide whether the person meets their membership criteria

Potential challenges to assuming control of membership under Section 10 of the Indian Act

Since 1987, 70 First Nations began the process to assume control under section 10 of the Indian Act, but were unsuccessful in the process. One reason for these First Nations not being successful in their attempt to assume control is lack of voter turn-out in their consent vote. Participation in elections and voting can be a challenge; turnout can range from 6 to 90 percent, depending on the community. Some First Nations find it difficult to meet the double majority because of a high population count. For others, engaging off-reserve members has been an ongoing hurdle.¹⁸

To address this gap, some First Nations engage with off-reserve members by mail or email. However, this requires the First Nation to have up-to-date contact information for all members. Other First Nations have used newspapers, public posters, and online sources, such as social media, their websites, and service providers to engage and share information about upcoming elections. For some issues, First Nations have started using online voting platforms, but to date, online voting is not used for taking control of membership under the Indian Act on the recommendation of the courts.¹⁹

Some Indigenous organizations have also highlighted that Indigenous communities often make decisions in different ways, not solely through democratic majority-rule votes. A majority-vote approach to decision-making among Indigenous governing bodies may not reflect Indigenous ways of knowing and therefore participation in these processes may not be preferred by community members.

Why consult on the double majority voting threshold issue now?

A potential solution to the second-generation cut-off may result in an additional 225,000 (or more) newly entitled individuals.²⁰ Any legislative amendment that would result in an influx of new members makes it likely to be more difficult to gain the consent of a majority of electors, as per current voting threshold rules.

The registration provisions of the Indian Act explained

This document explains sections 5, 6, and 7 of the Indian Act, as of August 15th, 2019 when the remaining provisions of Bill S-3, An Act to Amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux vc. Canada (Procureur general) came into force.

Section 5 of the Indian Act

Provisions related to applicants who have unknown or unstated ancestors.

Subsection 5(6)

This provision²¹ requires that the Registrar²² considers all relevant evidence and proof to establish an applicant’s entitlement to registration, when an applicant’s parent, grandparent or other ancestor is unknown or whose name is unstated on a birth certificate, and without requiring the applicant to establish the identity of the unknown or unstated parent, grandparent or other ancestor.

The Registrar must draw from any credible evidence and make every reasonable inference in favour of the person in respect of whom the application is made.

Subsection 5(7)

This provision was written to create certainty in cases where there is an unknown or unstated parent, grandparent or other ancestor. If an applicant has an unknown or unstated parent, grandparent or other ancestor, it does not mean that any presumption can be made that the unknown or unstated person is not, was not, or would not have been entitled to registration.

Section 6 of the Indian Act

People who are entitled to registration will be registered under these categories.

Subsection 6(1)(a)

This category describes people who were registered or entitled to be registered before the Indian Act was amended on April 17, 1985. People who were registered or entitled to be registered before that date continue to be able to be registered after that date.

Because this category describes people born before 1985, no individual born after April 17, 1985 will be registered under subsection 6(1)(a).

• 273,922 people are registered under this category
• This represents 25.8% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(a.1)

Note: People who were registered/entitled to registration under 6(1)(c) have been registered/entitled to registration under this category since 2019.

This category restores an individual’s right to registration/entitlement if they lost status because of one of the following sex-based inequities in registration. A person can be registered under subsection 6(1)(a.1) if they were originally entitled to registration but lost status due to any of the following reasons:

1. they were a woman who married a man who is not entitled to status under the Indian Act.
2. they were a child who lost status when their mother married a man who is not entitled to status under the Indian Act. This was considered an “omitted minor”.
3. they were a child who was never given status because their mother parented with a man who is not entitled to status under the Indian Act. This was referred to as being “omitted due to ‘non-Indian’ paternity.”
4. they were a child, born to unmarried parents who had their entitlement protested within 12 months of being added to the Indian Register, and when the protest led to the discovery that the father was not entitled under the Indian Act, their name was removed from the Register.
5. they were a child who lost their status at age 21 because both their mother and paternal grandmother had gained status through marriage to a man who was entitled under the Indian Act. This was known as the “double mother clause.”

• 16,171 people are registered under this category
• This represents 1.5% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(a.2)

Note: People who were registered/entitled to be registered under 6(1)(c.3) have been registered/entitled to be registered under this category since 2019.

This category provides a 6(1) entitlement instead of a 6(2) entitlement to those women born between September 4, 1951 and April 16, 1985, who were born to a non-legally married father who was entitled to status under the Indian Act and whose mother was not entitled to status under the Indian Act.

• 2,602 people are registered under this category
• This represents 0.2% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(a.3)

Note: This section was introduced in 2019.

These people are direct descendants of people who have a right to be registered under subsection 6(1)(a.1). A person can be registered under subsection 6(1)(a.3) if they have a parent, grandparent, great-grandparent, or other ancestor, who lost the right to entitlement to registration and then had it restored under the 6(1)(a.1) or 6(1) (a.2) registration categories, and:

1. they were born before April 17, 1985; or,
2. they were born after April 16, 1985 but had parents who legally married before April 17, 1985.

• 95,349 people are registered under this category
• This represents 9% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(b)

A person is registered under 6(1)(b) if they were on the founding member list of a band that is formally recognized by the Governor in Council, on or after April 17, 1985.

Examples include Qalipu First Nation and Sheshatshiu Innu First Nation in Newfoundland and Labrador.

• 20,553 people are registered under this category
• This represents 1.9% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(d)

Note: This is under review, removal pending Bill C-38.

This category restores entitlement to men who were enfranchised through a submitted application, as well as their wives and minor children. For a period of time, enfranchisement by application was one of the only ways individuals were able to obtain the rights of Canadian citizens by renouncing their ‘Indian’ status.

A person is entitled to be registered under 6(1)(d) if their name was excluded or deleted from the Register or a band list because of an application for “enfranchisement” submitted before April 17, 1985.

This category is under review before Parliament. Bill C-38 proposes to repeal 6(1)(d) because it does not allow people to transmit status to their descendants to the same degree as people without a family history of enfranchisement. If Bill C-38 receives Royal Assent, people who are entitled to registration under this category will become entitled under 6(1)(a.1).

• 2,281 people are registered under this category
• This represents 0.2% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(1)(e)

Note: This is under review, removal pending Bill C-38

This category restores entitlement to men who were “involuntarily enfranchised”, as well as their wives and minor children.

Involuntary enfranchisement could happen if a person:

• lived outside of Canada for 5 years in a row, but did not have written approval from the Superintendent General (or their staff), or
• received a university degree in Canada, or
• became a pastor or a minister in a church

A person is entitled to be registered under 6(1)(e) if their name was excluded or deleted from the Register or a band list because of “involuntary enfranchisement” any time before September 4, 1951.

• 13 people are registered under this category
• This represents <0.01% of the total registered population of 1,063,654 (as of June 2023)

This category is under review before Parliament. Bill C-38 proposes to repeal 6(1)(e) because it does not allow people to transmit status to their descendants to the same degree as people without a family history of enfranchisement. If Bill C-38 received Royal Assent, people who are entitlement to registration under this category will become entitled under 6(1)(a.1).

Subsection 6(1)(f)

This category provides entitlement to a person who does not meet the requirements for registration under any other 6(1) category, when both of their parents have entitlement under the Indian Act.

People who are entitled under this category can pass on entitlement rights to their descendants under 6(2), as the only entitled parent. They do not have to parent with someone is entitled to registration in order to pass on entitlement to their descendants.

• 334,917 people are registered under this category
• This represents 31.5% of the total registered population of 1,063,654 (as of June 2023)

Subsection 6(2)

This category provides entitlement to a person who has only 1 parent entitled to registration under a 6(1) category, when they do not meet the criteria for registration under any other 6(1) category.

People who are entitled under this category can only pass on entitlement to their descendants if they parent with someone who is also entitled to registration.

If a person who is registered under this category parents with someone who is not entitled for registration, their child will not be entitled to registration. This is called the “second-generation cut-off”.

• 299,408 people are registered under this category
• This represents 28% of the total registered population of 1,063,654 (as of June 2023), representing imminent concerns for the survival of many First Nations, particularly as 6(2) make up 28% of the existing registered population

Important: If a person has only 1 entitled parent, and that parent gained their entitlement through marriage before April 17, 1985, they are not entitled to registration. For more detail, see the descriptions of section 7 below.

Clarification Provision 6(2.1)

In some instances, a person can be entitled to registration under 6(1)(f) and another 6(1) category. When this happens, they will not be registered under 6(1)(f), and will always be registered under the other 6(1) category.

Sometimes, a person can be entitled to registration under 6(2) and another 6(1) category. When this happens, they will not be registered under 6(2) and will always be registered under the 6(1) category.

Deeming Provision 6(3)

Sometimes people who are applying for registration have parents who passed away who may not have been registered at the time of death. When people have passed away, the law is able to “deem” them entitled under whatever category they would be entitled for registration under as if they were still alive today.

This “deeming provision” lets the department assess today’s applicants for registration in a way that restores the entitlement rights of their parents, grandparents or great-grandparents, and establishes peoples’ ancestral lineages in relation to entitlement.

Section 7 of the Indian Act

This section describes people who are not entitled to be registered.

Subsection 7(1)(a)

A woman who gained entitlement to registration solely through marriage but who subsequently lost entitlement or was removed from the Register any time before April 17, 1985, is not entitled to registration. No provisions of reinstatement (e.g. 6(1)(a.1), or (d)) apply to these women because original entitlement was gained through marriage.

Subsection 7(1)(b)

The child of a non-entitled father and a mother who gained entitlement to registration solely through marriage is not entitled to registration.

Subsection 7(2)

7(1)(a) does not apply to a woman who is found to be entitled to registration in her own right under any provision of the Act.

Subsection 7(3)

7(1)(b) does not apply to the children of a woman who is entitled to registration in her own right under any provision of the Act.

Additional information and support

The Registration Reform Team at Indigenous Services Canada is dedicated to assisting and engaging with First Nation communities and impacted Indigenous Peoples throughout the Collaborative Process on the Second-Generation Cut-Off and Section 10 Voting Thresholds.

Contact information for the registration reform team

For inquiries, guidance, or support regarding the content within this Kit, please contact us at Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca.

Stay connected with updates and engagement opportunities by visiting the Indigenous Services Canada website.

Is your Nation ready to consult?

This information kit has been prepared to support your readiness for consultation on the second-generation cut-off and section 10 voting thresholds. The goal is to work towards a meaningful consultation while attaining free, prior, and informed consent. Your Nation’s readiness signifies a dedication to an informed and collaborative dialogue.

Does your community feel well-equipped with an understanding of the second-generation cut-off and section 10 voting thresholds? Are there any outstanding questions or support needed?

Consultation readiness

Self-assessment checklist

We can help:

• clarify the information provided in the kit
• provide additional resources and support materials
• provide a community-specific data sheet on the impacts of the second-generation cut-off on your community
• address any concerns or questions you may have

My First Nation…

•  understands the information provided in the kit, particularly on the second-generation cut-off and section 10 voting thresholds issues
•  has a recommended solution to the issues identified
•  has achieved a general consensus amongst the community on readiness
•  feels equipped to participate in consultation on these issues

Notify us

Please complete the optional submission below by June 30th, 2024. The start date of the consultation process will be determined upon receipt of feedback confirming readiness.

1. By filling out the Consultation Readiness Declaration Form OR
2. By sending an email to: Reforme-de-linscription-Registration-Reform@sac-isc.gc.ca with subject line: “Confirming Readiness to Participate in Consultation – [Insert Name of First Nation].” Once received, a member of the registration reform team will contact you with additional details.

Your feedback is invaluable to the success and effectiveness of this initiative, and we appreciate your engagement and participation.

Impact of the Second-Generation Cut-off: Community-Specific Data Sheets

Find out more about the Collaborative Process on the
Second-Generation Cut-off and Section 10 Voting Thresholds here. 

References

1: Includes distribution of community-specific information to all First Nations [Chiefs and Councillors; band managers and executives; IRAs and clerks; Tribal councils; Treaty organizations] and to the impacted public through broad and accessible web content.

2: Includes 17 participants: Assembly of First Nations British Columbia, Assembly of First Nations Manitoba, Assembly of First Nations National, Anishinabek Nation, Assembly of Nova Scotia Mi’kmaq Chiefs, Congress of Aboriginal Peoples, First Nations Summit of BC, Indigenous Bar Association, National Association of Friendship Centres, Native Women’s Association of Canada, Union of British Columbia’s Indian Chiefs, the Indian Act Sex Discrimination Working Group and the Feminist Alliance for International Action, Chiefs of Ontario First Nations Youth Council, Indigenous Youth Council for the National Association of Friendship Centres, Ontario Native Women’s Association, Quebec Native Women’s Association, Warriors Rising Youth Society.

3: Despite having negative connotations, being outdated and insensitive, the term “Indian” is used when the precise legal meaning is required because that is how it’s defined in the Indian Act. For the purposes of registration and Secure Certificate of Indian Status (SCIS) issuance, “Indian” refers to a First Nations person who is registered or is entitled to be registered on the Indian Register. Additionally, the term “band” refers to the government of a People subject to and as outlined by the Indian Act.

4: The “double-mother rule” removed status from grandchildren at age 21, whose mother and paternal grandmother both acquired status through marriage to an ‘Indian” person.

5: Lavell and Bédard argued that the removal of entitled women from the Indian Register based on who they married was discriminatory and against the 1960 Bill of Rights, which guaranteed equity under Canadian law. See Attorney General of Canada v. Lavell, [1974] S.C.R. 1349 Supreme Court of Canada.

6: Earley challenged the sex-based provisions that saw her removed from reserve lands because of her marriage to a non-‘Indian’ man.

7: Lovelace appealed to the United Nations Human Rights Commission (PDF) and, in 1981, the Commission ruled that the Indian Act violated her rights to enjoy her own culture.

8: Removed the “marrying out” rule, the “double mother” rule, enfranchisement by application, involuntary enfranchisement, and the ability to be removed from the Register via protest due to non-‘Indian’ paternity.

9: Reinstated entitlement to registration for persons affected by the double mother rule, and for women who had lost status or were no longer recognized under the Indian Act when they married a non-‘Indian’ man.

10: Including women who had gained status through their marriage to an entitled man.

11: One is entitled under 6(1) if both parents of a person were registered or entitled to be registered and under 6(2) if only one was. Additionally, the children of 1 parent entitled under 6(2) are no longer considered entitled (also known as the “second-generation cut-off” rule).

12: The “1951 cut-off” required that an individual must have had a child or adopted a child on or after September 4, 1951 and have a mother who lost entitlement due to a marriage to a non-‘Indian’ man to be registered under 6(1)(c.1).

13: Bill C-38, An Act to Amend the Indian Act (new registration entitlements) is currently moving through the legislative process (C-38 (44-1) – LEGISinfo – Parliament of Canada) and aims to address inequities caused by the Indian Act‘s historical policy of assimilation – that is, enfranchisement. If adopted, people with family histories of enfranchisement will have the same capacity to transmit entitlements to their descendants as people who do not have family histories of enfranchisement. Timely adoption of this legislative change will ensure that any additional amendments to the Indian Act‘s registration and membership provisions do not further entrench the inequities faced by families impacted by enfranchisement.

14: This data includes both living and deceased persons reported to Indigenous Services Canada.

15: New Brunswick data includes the Atlantic General List. The Atlantic General list includes a total population of 458 registered individuals and 175 individuals registered as 6(2).

16: The Exploratory Process on Indian Registration, Band Membership and Citizenship: Highlights of Findings and Recommendations.

17: For more information, see Self-Government. View the PDF downloadable map of the self-government agreements signed to date across Canada and search the Aboriginal and Treaty Rights Information System to find out more about each agreement, including the full text of the agreement and summary information.

18: Reforming the Indian Act to Allow for Online Voting.

19: Abenakis of Odanak Indian Band v Canada (Minister of Indian Affairs and Northern Development) (PDF), 2008 386 N.R. 105 (FCA).

20: Appearance before the Standing Committee on Indigenous Peoples (APPA), Current and Upcoming Priorities.

21: Before subsection 5(6) came into force, the Indian Act referred to unknown and unstated paternity and the documents requirements to assess paternity were more stringent and prescriptive. This would result in women facing challenges, particularly when they did not have the ability to identify the father of their child. Today, under the provisions of 5(6), the Registrar must take into consideration any kind of documentation or evidence that would support a determination on a balance of probabilities.

22: The Registrar has the sole statutory obligation to apply the Indian Act to determine who is entitled to Indian registration and band membership and whose names may be added, omitted or deleted from the Indian Register and bands lists maintained in the Department. The Indian Act does not afford the Registrar any discretion in applying the registration provisions, including the interpretation of prior Indian Acts. The Registrar simply applies the criteria set out in the Indian Act to determine whether an individual is entitled to be registered in accordance with the Act.