Constitutionality of First Nation membership codes

There is a history and legacy of unconstitutional discrimination under the Canadian Charter of Rights and Freedoms (the “Charter”), in particular sex discrimination, in the registration provisions under the Indian Act. This culminated with the enactment of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)(“Bill S-3”).

Constitutionality of Indian status registration

In 1985, Canada passed a significant amendment to the Indian Act, which aimed to eliminate the longstanding discriminatory provisions, particularly those in section 12 of the previous Act wherein Indian women who married non-status men lost their status. The amendments also established a process for Indians who had been enfranchised to regain their status. These amendments are commonly known as Bill C-31.

In addition, largely due to pressure from First Nations, Bill C-31 also conferred on bands the authority to control their own membership, as discussed in our previous article. Bill C-31 did not however eliminate the discrimination inherent in section 12 of the previous Act; rather, it passed the burden of loss of status onto subsequent generations. Ultimately, the women who previously lost their status regained it, but could only pass it on to their children under certain circumstances. Bill C-31 did not remedy the situation, but simply transferred the point at which Indians would lose their status by stratifying status through the provisions of section 6.

Although the intent of Bill C-31 was to eliminate discrimination on the basis of sex, it fell short. These shortcomings in Bill C-31 were successfully challenged in 2009, when the British Columbia Court of Appeal released its decision in McIvor v Canada (Registrar of Indian and Northern Affairs). As a result of the Court’s decision, Bill C-3 amended the Indian Act in 2010 by adding paragraph 6(1)(c.1).

This amendment was limited in scope, and applied only to the narrow circumstances of the plaintiffs in the McIvor case. Generally, the amendment granted “6(1)” status to every individual born prior to 1985 if their mother was reinstated under the 1985 Indian Act. These amendments, however, failed to fully address all of the instances of sex discrimination found within the registration provisions of the Indian Act.

For instance, in Descheneaux c Canada (Procureur Général), the Quebec Superior Court found the registration provisions in the Indian Act to be discriminatory, notwithstanding the amendments that were introduced following McIvor. At least two classes of people argued that they continued to suffer sex discrimination under the Indian Act:

• grandchildren, and their descendants, of women who had lost their status as a result of “marrying out” and who were reinstated as status Indians under section 6(1)(c) of the 1985 Indian Act; and
• “illegitimate” female daughters of male Indians and non-Indian mothers who were reinstated under section 6(2) of the 1985 Indian Act.

In other words, individuals who claimed Indian status through their male ancestors enjoyed a significant advantage as compared to those claiming through female lineage. The Court found that this ongoing sex discrimination was not justified under section 1 of the Charter and declared the relevant provisions within section 6 of the Indian Act to be of no force and effect.

The Court’s written reasons sent a strong message to Parliament and made it clear that Parliament was to eliminate, once and for all, sex discrimination in section 6 of the Indian Act.

Bill S-3 was Parliament’s response to Descheneaux.

Constitutionality of membership codes

Section 10 of the Indian Act provides First Nations the ability to assume control of their own membership and determine their own rules for determining membership within their Nation. However, the Courts have held that a First Nation’s power to control its membership is not unlimited. A First Nation must exercise its authority in a manner consistent with:

• the terms of the membership code;
• natural justice and procedural fairness;
• the acquired rights of those who were reinstated as set out under section 10(4) and (5) of the Indian Act; and
• the Constitution Act, 1982 (the “Constitution”), including the Charter.

In drafting their own membership laws, many First Nations incorporated concepts from the 1985 version of the Indian Act, including eligibility criteria for status. As discussed above, many of these provisions have since been found unconstitutional.

Accordingly, while the Indian Act has been amended on various occasions in response to findings of unconstitutionality, many membership codes which incorporated these same concepts were not similarly updated.

If eligibility under a membership code is directly tied to status under section 6 of the Indian Act as it existed under the 1985 Indian Act, a strong argument can be made that all of the instances of sex discrimination in the 1985 Indian Act that were challenged in McIvor and Descheneaux, and remedied by the enactment of Bill C-3 and Bill S-3, have been and are still being perpetuated under the membership code.

As such, some membership codes are very likely to constitute an unconstitutional infringement of the constitutional right to equality before the law if they discriminate against certain people primarily on the basis of sex and such discrimination cannot be saved under sections 1 or 25 of the Charter. Sex based discrimination is not a protected Aboriginal or Treaty right and therefore, to the extent a First Nation is exercising an Aboriginal or Treaty right when determining membership, this likely would not be protected and is instead contrary to section 35 of the Constitution.

McCallum v Canoe Lake Cree First Nation

The issue of the constitutionality of a First Nation’s membership code was recently before the Courts in McCallum v Canoe Lake Cree First Nation.

Canoe Lake Cree First Nation (“Canoe Lake”) is a section 10 band which controls its own membership and enacted its membership code in 1987 (the “CLFN Membership Code”). On June 29, 2022, the Federal Court of Canada rendered its decision, finding that the CLFN Membership Code infringed section 15 of the Charter and was therefore unconstitutional and that such infringement was not justified under the Charter.

In that case, the CLFN Membership Code essentially froze in place the status provisions of the Indian Act as they existed in 1987, by providing membership to individuals if:

• they are or were entitled to be on the band list in 1987;
• both of their parents are or were entitled to be on the band list; or
• one of their parents is on the band list and the other parent is on the band list of another band.

The membership eligibility criteria was directly connected to, or a function of, eligibility under the 1985 Indian Act. Accordingly, the CLFN Membership Code’s dependence on section 6 of the Indian Act resulted in the discriminatory provisions in the 1985 Indian Act being perpetuated under Canoe Lake’s membership rules and system, the effect of which was differential, disadvantageous treatment of descendants of female ancestors with Indian status compared to descendants of male ancestors with Indian status.

The applicants in McCallum could trace their exclusion from citizenship to the same discriminatory provisions of the Indian Act which were found to infringe the rights to equality protected by section 15 of the Charter in McIvor and Descheneaux. Thus, provisions of the CLFN Membership Code were found to create a two-tier system of citizenship rights that were discriminatory based on section 15 of the Charter and also unconstitutional under section 35(4) of the Constitution.

Key takeaways

If a First Nation’s membership code is drafted to rely on provisions of the Indian Act which have been found unconstitutional, the Nation should strongly consider amending its membership code to address the instances of unlawful discrimination therein.

While recent court decisions provide important guidance on what membership codes should not do, they also raise a broader question: if a First Nation wishes to control its own membership, what principles should guide the development of a fair, culturally grounded and legally resistant membership system? In our final article in this series, we explore key considerations for First Nations that are drafting a new membership code or reviewing an existing one.

MLT Aikins regularly advises Indigenous communities on membership and policy development. For support with reviewing an existing membership code for constitutional compliance, contact a member of our Indigenous practice area.

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