Consultation Materials for the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds

Background

In 2019, the Minister's Special Representative (MSR) to the 2018-2019 Collaborative Process on Indian Registration, Band Membership, and First Nation Citizenship heard that the second-generation cut-off is significantly impacting First Nation communities.^{Footnote 1} The MSR reported that the federal government must "urgently raise the awareness of this issue" and that "a separate and more in-depth consultation process begin to develop solutions to address this inequity."

In 2020, Patty Hajdu, the Minister of Indigenous Services Canada (ISC), presented the Final Report to Parliament on the Review of S-3. This report outlined the necessary next steps to address the remaining registration inequities under the Indian Act and affirmed the Department's commitment to continue working with Indigenous partners on how to best remedy these concerns.

In 2023, Indigenous Services Canada committed to a collaborative consultation process on broader reform issues in registration with First Nations, rooted in the principles of consultation and cooperation as set out in the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) Action Plan. This includes the simultaneous work of:

• Action Plan Measure 2.7: "support the adoption of Bill C-38, which seeks to address discrimination in the registration and membership provisions of the Indian Act"; and
• Action Plan Measure 2.8: "co-develop a collaborative consultation process on a suite of broader reforms relating to registration and membership prior to any transition away from the Indian Act. This includes to consult, cooperate and effectively engage with First Nations women to eliminate remaining gender-based issues. Canada recognizes that the Indian Act is a colonial-era law designed to exert control over the affairs of First Nations, and as such, the Act will never be fully aligned with the UN Declaration. For Canada's laws to fulfill the UN Declaration, the Indian Act must be repealed. The government is seeking to make the Act's registration and band membership provisions more consistent with the UN Declaration, until a clear consensus on a way forward on comprehensive change or the Act's repeal is possible."

Indigenous Services Canada's objectives

1. Conduct a meaningful consultation and engagement process in alignment with the UN Declaration Act Action Plan Measure 2.8, which allows for the perspectives of those whose rights are most affected by the measure to be actively sought and taken into account, consistent with the consultation and cooperation objectives set out by the UN Declaration Act;
2. Co-develop consultation guides, plans, and the overall design with First Nations perspectives to meet the cultural needs of impacted individuals and communities;
3. Collaboratively explore and develop viable solutions to address the second-generation cut-off;
4. Identify potential remedies or adjustments to the Section 10 voting thresholds double majority legislative requirement and/or policy to address barriers as identified by affected communities;
5. Provide meaningful opportunities for collaboration and engagement through accessible participation activities and materials;
6. Prioritize Indigenous-led engagement sessions with supported resources and funding opportunities to ensure that consultations are culturally relevant, respectful, and responsive to the needs of First Nations and impacted individuals;
7. Incorporate Indigenous knowledge by integrating the Seven Grandfather Teachings as guiding principles to the design, form, and function of the collaborative process; and
8. Remain reflexive and adaptable to the learnings, teachings, and feedback from Indigenous partners by integrating the principles of emergent design.^{Footnote 2}

Objectives identified by the Indigenous Advisory Process and First Nations

During the co-design and information-sharing phase, some Indigenous Organizations and First Nations identified values and objectives for this collaborative process. These objectives are summarized as follows:

1. Communicate early and provide ongoing information surrounding timelines and next steps so that First Nations and Indigenous Organizations can adequately engage with their members and gather feedback, avoiding any potential delays where possible^{Footnote 3Footnote 4};
2. Commit to transparency in decision-making processes, ensuring open communication with First Nations and impacting individuals on all relevant data, information, and materials^{Footnote 5};
3. Establish mechanisms for tracking and reporting back to communities how input is addressed and ensure accountability for commitments made^{Footnote 6};
4. Support an inclusive consultation with diverse participation^{Footnote 7}, including Elders^{Footnote 8}, youth^{Footnote 9}, Chief and Council^{Footnote 10}, Indigenous WG2STGD+^{Footnote 11}, those who live off-reserve and in rural and urban communities^{Footnote 12}, persons with disabilities^{Footnote 13}, and other impacted individuals^{Footnote 14};
5. Ensure solutions eliminate discrimination against First Nations, with particular attention to First Nation's women and their descendants.^{Footnote 15}
6. Foster continuous dialogue and engagement beyond the initial consultation phase, ensuring that communities remain involved throughout the implementation and evaluation stages^{Footnote 16};
7. Provide support and resources to enhance First Nation's and Indigenous Organizations outreach, engagement, and healing within their communities^{Footnote 17};
8. Ensure that dialogue and decision-making takes place within a context of understanding of the history of Indian Act sex discrimination and its continuing effects, and that the consultation operates within a human rights framework, that will ensure a solution that dismantles discrimination and its consequences.
9. Information must be culturally safe^{Footnote 18}, trauma-informed^{Footnote 19}, accessible^{Footnote 20}, rooted in truth-telling^{Footnote 21}, widely shared^{Footnote 22}, and available in multiple formats^{Footnote 23}, including translations^{Footnote 24} and accommodations as needed^{Footnote 25};
10. Facilitate impact assessment^{Footnote 26} of possible solutions and present options in the form of draft legislation^{Footnote 27} for First Nations, impacted individuals, and Indigenous Organization's evaluation and review^{Footnote 28}.
11. Make clear the intent to adequately resource programs, services, and lands for First Nations to accommodate new members, unlike past legislative changes.^{Footnote 29}

Phase 1 - The co-development and information sharing phase

This phase includes co-designing the structure and content of consultation events and materials collaboratively with Indigenous Organizations through the Indigenous Advisory Process to promote cultural safety and sensitivity. This consists of distributing co-developed information materials and hosting information sessions to support free, prior, and informed consent. The aim is to provide First Nations, impacted individuals, and representative Indigenous Organizations with all the necessary resources and information to engage meaningfully in the consultation process.

Phase 2 - Consultation activities and events

This phase includes hosting and leading consultation events and activities by First Nations, Indigenous Organizations, Regional Partners, and the Department. These events will facilitate engagement directly with impacted Indigenous Rights-Holders to consult on proposed solutions.

Issue 1: The second-generation cut-off

The second-generation cut-off occurs after two consecutive generations of parenting with a person who is not entitled to registration, resulting in the third generation not entitled to registration under the Indian Act. This means if an individual has one grandparent and one parent who is not entitled to registration, the individual will not be entitled to registration.

In 1985, Bill C-31 amended the Indian Act to better align with the equality provisions found in the Canadian Charter of Rights and Freedoms.

Bill C-31 introduced two general categories for registration:

• Section 6(1):^{Footnote 31} for individuals who have two parents entitled to registration under the Indian Act^{Footnote 32}; or
• Section 6(2): for individuals with only one parent entitled to registration under Section 6(1) of the Indian Act.^{Footnote 33}

While both sections provide equal access to the services and benefits associated with registration under the Indian Act, the ability to pass on entitlement to descendants differs.

First Nations and their community members have reported that the second-generation cut-off is applied without consideration for individual or family circumstances. Individuals report that the differences between Sections 6(1) and 6(2) can cause issues^{Footnote 34} for registered individuals and their non-entitled children or grandchildren. Within some families, siblings may find themselves registered under different categories due to their birth date or parents' marriage date. In this same family, siblings may have different capacities to pass on entitlement to their children. Currently, there is no consensus on how best to address the second-generation cut-off and as a result, an in-depth consultation is required to determine the solution(s).

Issue 2: The Section 10 voting thresholds

The Section 10 Voting Thresholds issue refers to the double majority vote required for First Nations to transition from Section 11 to Section 10 under the Indian Act. When transitioning to Section 10, First Nations can take control over their membership by establishing their own rules and codes. The introduction of Bill C-31 in 1985 created two options for controlling band membership: Sections 10 and 11 of the Indian Act, making registration and membership distinct.

For a First Nation to transition to take control of their membership under Section 10, specific requirements must be fulfilled, particularly obtaining consent from eligible electors. Currently, consent is obtained only upon meeting a 'double majority' voting threshold. This means a majority of eligible electors must participate in the vote, and of those, a majority must vote in favour.

Only two First Nations have successfully completed the process in the past ten years. This is partly due to challenges in meeting a double majority voting threshold. As a potential solution to the second-generation cut-off may result in an additional 225,000 (or more) newly entitled individuals over time, it is necessary to consult whether an amendment to the existing structure and process is desired. An influx of new members will likely make it more difficult for bands to gain the consent of their eligible electors to transition to Section 10, as per the current double majority voting thresholds rules.

The duty to consult

Section 35 of the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of Indigenous peoples.^{Footnote 35} The doctrine of the duty to consult and, where appropriate, accommodate Indigenous groups was developed to protect Aboriginal peoples' uniquely recognized Section 35 rights.

The duty to consult implies a proactive duty for the Crown to engage with any affected Indigenous groups prior to making a decision that could negatively impact any established or claimed Aboriginal rights, including title or treaty rights.^{Footnote 36} When Canada fulfills its duty to consult, any decision of the Crown will be held accountable to any potentially impacted Indigenous collective, and Canada's actions have the opportunity to be influenced by the will of the consulted communities.

The United Nations Declaration on the Rights of Indigenous Peoples

On November 12, 2010, Canada issued a Statement of Support endorsing the United Nations Declaration on the Rights of Indigenous Peoples (herein referred to as "the UN Declaration") as a guiding framework, consistent with Canadian legal principles. The UN Declaration affirms the collective and individual rights necessary for the survival, dignity, and well-being of Indigenous peoples around the world, emphasizing the principles of equality, partnership, and mutual respect.^{Footnote 37} On May 10, 2016, the government of Canada announced its full support for the Declaration, and committed to adopt and implement the Declaration in accordance with the Canadian Constitution.

On July 14, 2017, the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples were announced.^{Footnote 38} Principle 6 recognizes that meaningful engagement with Indigenous peoples should seek their free, prior, and informed consent in a manner that goes beyond the duty to consult. While the UN Declaration does not alter Canada's existing duty to consult Indigenous groups, it nevertheless offers a framework for enhancing how these obligations are carried out. Today, Canada reaffirms its commitment to upholding the UN Declaration, reflected through the design of the Collaborative Process on the Second-Generation Cut-off and Section 10 Voting Thresholds. The Collaborative Process reflects Canada's commitment to these principles by ensuring meaningful participation and upholding Indigenous rights in decisions affecting their communities and territories.

Lesson 1: Increase information sharing ahead of consultation events

What we learned: Feedback from previous consultations indicated that effective information sharing is critical for meaningful participation. Participants highlighted the need for:

• A dedicated period at the start of consultations for comprehensive information sharing and understanding;
• Multiple forms of communication delivered in plain language and accessible formats to ensure information reaches all participants^{Footnote 40}; and
• Early and ongoing updates throughout the consultation process.

How this process builds on lesson 1: We have improved our information-sharing practices to ensure that partners receive timely, comprehensive, and accessible information materials, enabling better-informed participation. In the current process, the Department has integrated:

• A Rights-Holders Information Kit, which provides a detailed description of the historical changes to the Indian Act, the issues for consultation, and plain language descriptions of the registration provisions of the Indian Act;
• Community-Specific Data Sheets highlighting the impact of the second-generation cut-off on each First Nation's registered population across Canada;
• Information sessions are being offered on the Collaborative Process and the content of the Rights-Holders Information Kit to deliver information in an alternative format and provide the opportunity to raise questions and concerns to Department officials;
• Consultation Materials, including issue sheets on the second-generation cut-off, Section 10 voting thresholds, the amendments to the Indian Act throughout history, a consultation plan and guide, as well as FAQs;
• All feedback will be considered, with final decisions reflecting community input, and regular updates will ensure transparency and respect for informed consent throughout the process; and
• A comprehensive communications strategy will provide consistent messaging and updates across social media, supported by informational videos, graphics, and accessible materials to encourage participation in consultation events. Updates and materials will also be hosted and shared by Indigenous Link through their respective channels.

Lesson 2: Timing and duration

What we learned: Participants in previous consultations emphasized the importance of having sufficient time to adequately prepare for and engage in consultation events. They highlighted several key points:

• More time is needed at the onset of consultations to allow participants to understand the issues, gather necessary information, and formulate their responses;
• Timelines for consultations should be developed in partnership with First Nations to ensure they align with their schedules and capacities, rather than being imposed by the Department; and
• Clear and timely communication of all deadlines and scheduling details is crucial for effective participation and planning.^{Footnote 41}

How this process builds on lesson 2: To better address these concerns and support meaningful participation, we have introduced the following measures:

• The development of a consultation readiness form^{Footnote 42} that allows First Nations to evaluate and communicate their preparedness for participating in consultation events and activities. Responses will inform the beginning of consultations, allowing sufficient time for participants to feel equipped, and to accommodate First Nations' needs and preferences^{Footnote 43};
• Prioritization of First Nation-led events, where the form, function, and timing are determined by the community to provide greater flexibility, aligned with their needs and preferences;
• Prioritization of Indigenous Organization-led events to ensure the voices of those most impacted are prominent within the process; and
• Commitment to clear and timely communication by providing regular updates via email, information sessions, social media, and the ISC website to ensure all deadlines and scheduling details are transparently communicated and accessible to First Nations and Indigenous Organizations.

Lesson 3: Enhanced support

What we learned: First Nations and Indigenous Organizations have emphasized that necessary resources and support are critical components to a successful consultation. Key points highlighted include:

• Financial support should extend beyond the design phase to facilitate broader participation in the consultation process;
• Funding should cover a range of activities, including hiring staff or coordinators, supporting the participation of independent experts, conducting genealogy research, performing legal analysis, and developing resources and information materials;
• Government representatives must be readily available to provide necessary support and information throughout the consultation; and
• Funding should be provided for the implementation of consultation activities to ensure effective participation.^{Footnote 44}

How this process builds on lesson 3:

• A two-pronged funding approach has been implemented to ensure financial support extends throughout the entire consultation process and is not solely limited to the design phase - allowing for consistent participation and engagement from First Nations/Indigenous Organizations.
• Funding is available for a variety of activities, such as hiring staff or coordinators, conducting research and legal evaluations, and creating informational resources and materials.
• The Registration Reform team has increased capacity and improved the accessibility of the number of materials available for this Collaborative Process. The team will remain available to answer questions, provide support and attend consultation events as needed, ensuring representatives are accessible throughout the process.

Lesson 4: Broader inclusivity and flexibility

What we learned: Indigenous partners have recommended that the form and structure of future consultation events must be inclusive and flexible. Key insights include:

• A successful consultation must involve a broad spectrum of First Nations and impacted groups across Canada, including building relationships with: Individuals from on-reserve, off-reserve, urban, and rural areas; institutions; women, and 2SLGBTQQIA+ communities; Elected leaders; Band officers (membership administrators, managers, and directors); Youth; Elders; Tribal councils; and Regional and national organizations^{Footnote 45};
• Consultations should employ various methods and activities to ensure broad engagement, such as: group/community meetings, town hall sessions, face-to-face and virtual discussions, question and answer periods, individual interviews, and surveys/questionnaires^{Footnote 46};
• Consultation materials must be available in plain language as well as offered in First Nations and both official languages to ensure accessibility and understanding; and
• The process must be open to and prepared to accept a wide range of views and perspectives from a variety of platforms, not limited to Indigenous Organizations or First Nations leadership.

How this process builds on lesson 4:

• Expanded the Indigenous Advisory Process (IAP) (formerly known as the Indigenous Advisory Panel in 2018-19) from 3 to 17 participants;^{Footnote 47}
• The consultation phase has been separated into two parts (herein referred to as the two-pronged approach): the broad co-development of First Nations' preferred solutions, and consultation events to determine which solution should be legislatively pursued. This approach ensures that the government and participants engage with a variety of views and perspectives, contributing to a more inclusive consultation process;
• Broadly distributed the Rights-Holders Information Kit to all First Nations, Tribal Councils, band offices, Indigenous Organizations, and is publicly available on our website and social media;
• Information sessions will be held within communities, but also outside of communities to inform a range of audiences (members of the public, impacted individuals, those living in urban and rural areas,^{Footnote 48} chiefs, youth, Elders, tribal councils, and Indigenous Organizations);
• Members living outside of their communities will be involved, and prioritized through the use of Friendship Centers, social media, and other resources to directly engage with these Rights-Holders.^{Footnote 49}

Engagement activities and consultation events

This two-pronged approach was crafted to address the overlap between the upcoming federal election and the consultation phase. To minimize any potential delays caused by an election, consultation events will occur in two stages, each tied to a separate funding call-out. During an election period, the Government of Canada adheres to the Caretaker Convention, mandating restraint in matters of policy, expenditures, and appointments – inclusive of consultation events and activities.^{Footnote 50} The Department would seek to continue to make progress by carrying out the legal viability and impact assessment portion of the approach. By adopting this dual-phase approach, the aim is to mitigate this risk.

Indigenous-led options for solutions

The first funding call-out will seek options for solutions to the second-generation cut-off and Section 10 voting thresholds from First Nations and Indigenous Organizations. Chief, Council, and other representatives are encouraged to submit funding proposals by March 14, 2025, and submit final reports of options for solutions by May 30, 2025. Funding amounts will be determined based on the number and scope of issues discussed, up to a maximum of $20,000 ($10,000 for each issue addressed).

Legal viability and impact analysis assessment

Once options for solutions are received, the Department alongside a Registration Reform and Legal Solutions Committee (RRLSC) will assess whether they are legally viable and predict long-term impacts. Legally viable solutions will be broadly shared, along with their impact assessment^{Footnote 51}, to First Nations and impacted Indigenous peoples across Canada. This will ensure that rights-holders are fully aware of the impact of each possible solution in order to make informed decisions on a preferred option in the subsequent consultation events phase.

Indigenous-led consultation events

The list of legally viable solutions, along with their impact analysis, will be broadly distributed through a consultation guide.^{Footnote 52} From these options, First Nations and impacted Indigenous individuals may come together in consultation events to consider the solution that they believe best addresses each of the issues.

Funding amounts for events will primarily be determined by the size of the First Nation/organization and the number of represented. Flexibility and emergent design are built into the process to allow for requests such as the involvement of translators, expert speakers, and First Nation facilitators.^{Footnote 53} First Nations and Indigenous Organizations interested in participating in consultation are encouraged to submit one or both of the proposals.

Information sessions and consultation events

First Nations and Indigenous Organizations will host consultation events and activities on an individual and public basis. Department-led events and information sessions will also be available to provide additional, recurring options for virtual or in-person events throughout the process.^{Footnote 54}

Timelines

Timing of scheduled events to be determined by the First Nation or Organization, held within the summer 2025-2026 period; ensuring that community members and impacted individuals have sufficient time to review and understand materials before consultation events.^{Footnote 56} Availability of events will be posted publicly on the Indigenous Services Canada website.

Consultation materials

The Department will compile a co-developed consultation guide and provide materials to support consultation. The consultation guide will outline the directions for reporting feedback and will offer suggestions for planning consultation events and facilitating discussions. All materials provided will be in both English and French, and available in a variety of formats, including: graphics and visuals wherever possible, and use of accessible language.^{Footnote 57}

Consultation materials will include:

• This Consultation Plan that outlines the overarching objectives, methodologies, and timelines for engaging Rights-Holders and communities in the consultation process;
• Informative fact sheets will provide clear and concise information on the background and impacts of the key issues for consultation;
• A tailored consultation guide for facilitating consultation events offering: optional instructions, best practices, tips for engaging community members, fostering discussions, and gathering feedback effectively;
• Presentation materials will support information dissemination, featuring key messages, visuals, and data to illustrate the issues at hand and encourage discussion among participants.

Accessibility

Materials will be provided in multiple formats, including plain language documents,^{Footnote 58} visual aids^{Footnote 59} (such as photos, videos, and art), social media, news media, and radio ads to spread awareness of upcoming engagement activities and consultation events.^{Footnote 60} The Department is committed to ensuring materials are accurate, rights-based, distinctions-based, culturally sensitive, trauma informed, and embed a gender-based analysis+ framework. Various communication methods will be used, including social media, radio, print, and community outreach, to reach a range of audiences.^{Footnote 61}

If you or someone you know require specific accommodations or assistance to participate in the Collaborative Process, please inform the Department so that necessary arrangements can be made to support participation.

Public Launch of Phase 1: Information sharing initiative

• November 2023: The Minister of Indigenous Services Canada launched the Collaborative Process on the Second-Generation Cut-Off and Section 10 Voting Thresholds as well as the Indigenous Advisory Process.
• April 2024: Rights-Holders Kits distributed via print, email, and posted online.
• May 2024: A knowledge-sharing circle was held for Indigenous Advisory Process members to share their findings and recommendations on the design of the form and function of consultation. Simultaneously, information sessions on the Rights-Holders Kit began.
• Fall 2024: Close-out of Indigenous Advisory Process, and formal launch of the consultation phase.

Public launch of phase 2: Consultation events and engagement activities

• Winter 2025: The call-out for Indigenous-led options for solutions, Consultation Plan, and What We Heard Report are publicly released.
• Spring 2025:
  • Legal viability and analysis of options for solutions begins
  • Consultation guide is publicly released.
  • Call-out for Indigenous-led consultation events is publicly launched.
• Summer 2025 – Spring 2026: Indigenous-led consultation events occur.
• Fall 2026 – Winter 2027: Memorandum to Cabinet with proposed solution(s) could be introduced.^{Footnote 62}