What you need to know about new legislation that could expand First Nations status

by Alessia Passafiume

OTTAWA — Senators have passed sweeping amendments to a bill that would simplify the transfer of First Nations status between generations, but it’s not clear yet if those changes will pass the House of Commons.

Indigenous Services Minister Mandy Gull-Masty told The Canadian Press she is still consulting with First Nations on how to address the issue.

First Nations status is a highly complex and personal topic, and changes to the rules on who can claim status will have ripple effects throughout both First Nations communities and individual families with mixed legal standing under the Indian Act.

First Nations status under the Indian Act allows individuals to access certain social services and tax benefits. Under the current rules, however, individuals whose close family members hold status may themselves be ineligible.

On Tuesday, senators broadened Bill S-2 — drafted to help some 6,000 people obtain status — to eliminate what is known as the “second-generation cutoff,” opting instead for a one-parent rule that would allow First Nations status to be transferred to a child if one of their parents is enrolled.

Here’s what you need to know about First Nations status, the issues that have been raised by chiefs, and how the government is responding:

What do senators want to change?

Bill S-2, introduced in the Senate with support from the Liberal government, was drafted to eliminate some gender inequities in the Indian Act and allow some 6,000 people to become eligible for First Nations status.

Some senators and First Nations community leaders said the bill didn’t go far enough. Senators voted to extend eligibility requirements to allow status to be transferred to children if one of their parents is registered.

Gull-Masty told The Canadian Press that while the Senate is trying to address an “extremely important” issue, changes to the Indian Act should not be made without extensive consultations with First Nations.

The Senate committee studying the legislation heard from nearly 50 witnesses, all of whom said the second-generation cutoff needs to be eliminated. Senators said those voices represent more than half of First Nations in Canada.

“Looking at what the Senate is proposing, this is the work that they chose to do. But for me, I think it’s so much more important to go back to community and ask them, what are the criteria (you want for First Nations status)?” Gull-Masty said.

“Being a status Indian is a construct of the Indian Act. Being First Nations is, what I think, community needs to do the work of defining. That’s part of the collaborative process. That’s where I believe community members, right now, have to take the opportunity to tell their chiefs and councils, ‘This is what I think; this is how we want to define it.'”

The changes made by senators do not become law unless they are passed in the House of Commons — a process Gull-Masty said could lead to further amendments or clarifications.

How do you qualify for First Nations status now?

Current law uses a formula to determine whether an individual qualifies for First Nations status.

There are two categories of status under the Indian Act — 6(1) and 6) 2).

Generally, a person with 6(1) status is considered to hold “full” status, while a 6(2) individual holds “half” status.

Individuals registered under 6(1) are able to transfer status to their children — even if they had those kids with someone who does not have status. In that case, their children would be granted 6(2) status.

If a 6(1) individual has children with a 6(2) status person, those children are considered 6(1). The same is true for someone registered under 6(1) who has children with another 6(1) individual.

Individuals who are 6(2), meanwhile, are unable to transfer status to their children unless they had those children with someone who is 6(1) or 6(2).

This is what’s known as the “second-generation cutoff” and it’s where most of the criticism is focused.

Why change the eligibility requirements?

First Nations are the only Indigenous group in Canada whose recognition is determined by the federal government.

Critics have argued the formula for First Nations status punishes people over their choice of partners. Some chiefs have warned they will have no status First Nations members at all in the next generation under the current eligibility requirements — which would essentially eradicate their status as distinct peoples.

The United Nations also has raised concerns about how Canada determines First Nations status, saying the current system primarily affects First Nations women and denies their descendants equal access to treaty and inherent rights.

Some First Nations set their own membership rules — but this does not necessarily mean the people they recognize as members of their First Nation are seen that way by the federal government.

What does the federal government say?

The federal government has acknowledged there are issues with the current rules but has been slow to implement changes. It says it’s continuing consultations with First Nations on a remedy — despite decades of advocacy from First Nations who say the system does not suit their needs.

The federal government began looking into the issue in 2018. It released a report in 2019 that said the second-generation cutoff was something First Nations wanted resolved, but there was no consensus on a way forward.

Consultations between Ottawa and First Nations on the topic have continued since.

Gull-Masty warned senators against amending Bill S-2 to remove the second-generation cutoff and assured them she would come back with a plan in the new year.

Senators did not heed that advice and amended the legislation to remove the second-generation cutoff and move to a one-parent rule. It does not become law until it passes a vote in the House of Commons.

Gull-Masty told The Canadian Press she believes the issue will be addressed and that Indian Act status isn’t a partisan issue.

“That is a human rights issue, an Aboriginal rights issue, and we have to respect it in that context,” she said.

What does the Assembly of First Nations say?

In a social media post made after senators amended Bill S-2, Assembly of First Nations National Chief Cindy Woodhouse Nepinak said First Nations know who belongs to their communities and “it is time Canada finds another lane and respect First Nations citizenship and First Nations sovereignty over their population, membership and people.”

Last December, chiefs passed resolutions at the Assembly of First Nations calling for a process to end the second-generation cutoff and to recognize First Nations jurisdiction over status.

Regional First Nations groups, including the British Columbia Assembly of First Nations and the Union of B.C. Indian Chiefs, have also called for the elimination of the second-generation cutoff.

Several First Nations groups welcomed the changes made to Bill S-2 by senators. Anishinabek Nation, representing 39 First Nations in Ontario, praised senators for having the “courage” to change the bill.

What happens if eligibility shifts to a one-parent rule?

If the amendments made in the Senate pass in the House of Commons, an untold number of individuals would be eligible for First Nations status.

While the amendments are largely supported by First Nations, some remain concerned about the prospect of taking on an unknown number of new members.

Chippewas of the Thames First Nation Chief Joe Miskokomon told The Canadian Press that while he is not opposed to changes, he fears Indigenous Services Canada will not increase funding to support new members, making it difficult to plan for new infrastructure projects.