Bill C-38: An Act to amend the Indian Act (New Registration Entitlements)

Tabled in the House of Commons, January 31, 2023

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-38, An Act to amend the Indian Act (New Registration Entitlements), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-38 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter statement.

Overview

The primary purpose of the Bill is to address the impact of the enfranchisement provisions which were contained in previous versions of the Indian Act prior to the amendments that were made to the Act in Bill C-31 in 1985.  Before the 1985 amendments, when a person was enfranchised under these provisions, they were removed from band lists or lost Indian status, depending on the circumstance, and were no longer considered an Indian under federal law. These effects flowed through to their descendants. Although the Bill C-31 amendments in 1985 restored Indian status to enfranchised persons and afforded first-time registration to their children, it did not place all their descendants on equal footing with persons whose ancestors had never been enfranchised. The Bill (C-38) would address this inequality in providing for the entitlement of such persons on par with those whose ancestors were never enfranchised. Additionally, such persons would be entitled to have their names entered in a Departmental Band List. The Bill (C-38) would also enable women to regain membership in their band of origin for Departmental Band Lists if they lost membership in that band upon marriage to a member of a different band prior to the Bill C-31 amendments in 1985. The Bill would also provide the same entitlement to their direct descendants. In addition, the Bill would provide individuals with the option of having their name removed from the Indian Register and from any Departmental Band List. Removal from the Indian Register or a Band List would not affect the individual’s entitlement to registration and/or band membership in the future, and would not affect the entitlement of their descendants.

The Bill (C-38) would also disallow any claims for compensation against Canada, an employee or agent of the federal government, or a band council, by individuals who were not entitled to be registered or have their name entered on a Band List under the former registration provisions being amended in this Bill, assuming the government, employee, agent or band council acted in good faith. The Bill (C-38) would also amend outdated and offensive terminology in the Act related to dependent persons, replacing it with more appropriate terminology.

Section 15 of the Charter

Section 15 of the Charter protects equality rights.  It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of race or ethnic origin, and disability.  Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as equally deserving of concern, respect, and consideration.

The Bill’s disallowance of claims for compensation by individuals who were previously not entitled to registration or to have their name entered on a Band List may be considered a race-based distinction because it is imposed in a context exclusive to Indigenous persons. The following considerations support the consistency of this provision with section 15. The provision does not impose a new limit or one specific to Indigenous persons. Rather, the provision confirms for greater certainty an immunity that already exists under the law, and that applies generally to any claim for damages by any person based on good faith conduct in relation to a law subsequently found to be unconstitutional.

In replacing the Indian Act’s outdatedreferences to “mentally incompetent Indian” with the more appropriate term “dependent person”, the Bill adopts language more consistent with the values underlying section 15. In updating this terminology, the Bill reenacts provisions vesting the Minister with exclusive authority in relation to the property of a dependent person as defined in the Indian Act. Vesting the Minister with exclusive authority with regard to this population could be considered to create a distinction on the ground of disability. The following considerations support the consistency of these provisions with section 15. Just as provincial and territorial laws provide for an alternate scheme when an individual is found to be incapable of decision-making with regard to the administration of their property, the Indian Act addresses such situations consistent with Parliament’s authority under section 91(24) of the Constitution Act, 1867. While the Minister is given exclusive authority with regard to the property of such persons, section 51(1)(3) of the Act provides ministerial discretion to order that any property located off reserve be dealt with under provincial law.