Indian Act Enfranchisement Litigations On Hold With Government Of Canada

First Nations families and Canada agree to put litigation on hold while working to end the legacy of “enfranchisement” under the Indian Act

In June 2021, on behalf of several First Nations families,16 individual plaintiffs launched a constitutional challenge seeking to end the inequities and exclusion faced by families who were “enfranchised” under earlier versions of the Indian Act.

Today, the Honourable Patty Hajdu, Minister of Indigenous Services and Juristes Power Law, who represent the plaintiffs in the Nicholas v Canada (Attorney General), are pleased to announce that they have reached a mutual agreement to put the litigation on hold while working to pursue a legislative solution to end the ongoing impact of enfranchisement under the Act today.

Minister Hajdu has committed to work towards introducing legislation in the House of Commons by summer to make the necessary amendments to the registration provisions of the Indian Act.

“Enfranchisement” was a process whereby members of First Nations lost eligibility to registration and membership in their home communities. In return, they gained basic entitlements, such as, Canadian citizenship, the right to vote in Canadian elections, the right to hold land in fee simple, and freedom from compulsory residential school attendance for their children.

While the enfranchisement process was removed from the Indian Act in 1985, the fact of historical enfranchisement continues to play a role in determining entitlement to registration today.

“Today’s announcement is a crucial step forward on the path to reconciliation with Indigenous Peoples in Canada. The government of Canada is committed to working with First Nations, and other impacted partners, to address inequities in the registration provisions in the Indian Act relating to enfranchisement to ensure family histories of enfranchisement no longer affect entitlement to registration under the Act.”

The Honourable Patty Hajdu
Minister of Indigenous Services

“As the Supreme Court of Canada has emphasized, enfranchisement was a discriminatory policy aimed at eradicating Indigenous culture and assimilating Indigenous peoples.  Minister Hajdu’s commitment to introduce legislative changes in a timely manner is a promising step towards finally ending the inequities flowing from the oppressive legacy of enfranchisement in Canada.”

Ryan Beaton
Lawyer, Juristes Power Law

In 1985, with the passage of Bill C-31, the enfranchisement process was removed from the Indian Act. Many people who had lost entitlement to registration chose to apply and be registered. 

In the cases of McIvor v Canada, decided by the British Columbia Court of Appeal in 2009, and Descheneaux v Canada, decided by the Quebec Superior Court in 2015, the courts urged Parliament to remedy all remaining forms of unconstitutional discrimination in the registration provisions.

In 2019, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), Bill S-3, came into full effect, eliminating various sex-based inequities in the registration provisions of the Indian Act.

In 2020 the Final Report to Parliament on the Review of S-3 acknowledged that residual inequities remain. These include the ongoing impacts of a family history of enfranchisement on entitlement to registration today. Descendants of individuals and families who were enfranchised are, in many cases, currently not entitled to registration in the same way as descendants of those who were not enfranchised.