A B.C. court has invalidated parts of the Indian Act that prevent people whose ancestors lost First Nations status from gaining recognized status themselves.
The decision by the B.C. Supreme Court, made on Aug. 19, finds this practice violates the rights of individuals under the Charter of Rights and Freedoms. The Canadian government agreed the practice is a violation, but fought for a delay so legislation could be enacted to make the change before the court decision had effect.
The case deals with issues stemming from the practice of "enfranchisement," which was used in Canada up until 1985 as a method for assimilation, sometimes forced, of Indigenous people.
Enfranchised people lost their Indian Act status (up to 1951, their band list status) if they accepted Canadian citizenship. This was offered to people who attained university education, joined the legal or medical profession or were otherwise deemed "fit," according to a from the B.C. Assembly of First Nations on the practice. A woman marrying a non-Indigenous person could also be enfranchised.
Once a person was enfranchised, they would lose their Indigenous status and any related benefits. According to the Indian Act, this is then passed on to future generations.
Until this decision, these rules were still in full effect.
The case could have been settled already, rendering this decision moot, if Parliament had passed Bill C-38, which got to second reading in 2024 but died on the order paper when the government was dissolved after an election was called this past spring. That bill would have enshrined these changes in legislation.
Because the government is working on restarting that process, the B.C. court decision from Justice Shelley C. Fitzpatrick suspends the implementation of the rules for 10 months, allowing a full fall legislative session to run its course and the spring session to begin.
The government had sought a full year's suspension, while the plaintiffs, comprised of 16 affected individuals, wanted six months. Fitzpatrick chose partway between, but retained the ability to extend the timeframe.
For the affected individuals, the decision will have an immediate effect, granting them their status under the Indian Act.
