Aboriginal law, Quebec
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Appeal court postpones ruling that would have suspended Indian status registrations

The Quebec Court of Appeal granted a safeguard order today that temporarily postpones a court ruling that would have suspended new Indian status registrations as of July 4th.

Quebec Court of Appeal Justice Nicholas Kasirer granted the Attorney General of Canada leave to appeal from a June 27th decision that refused to extend for a second time the suspension of its August 3, 2015 judgment that found that the principal registration provisions of the Indian Act were invalid because it breached s.15 of the Canadian Charter of Rights and Freedoms.

Justice Kasirer also granted the Attorney General’s application for a safeguard order, which extended the suspension of the declaration of invalidity to the hearing date of August 9th, with leave to apply for it to be renewed by the full panel until judgment is rendered on the appeal. A full panel of three judges is expected to hear the case next month.

According to David Schulze, who represents the plaintiffs, Justice Kasirer underlined the exceptional circumstances in the case, and that that any harm from postponing a Charter remedy was outweighed by the harm to those who would not be able to register under the Indian Act. The fact that the Court of Appeal was prepared to hear the case shortly also was a factor in suspending the effects of the Superior Court decision.

Canada’s 15-page written arguments are due on July 12th and those of the respondents are due on July 25th, as are those of the amicus curiae, Professor Sébastien Grammond of the University of Ottawa, named by the Superior Court to represent the interests of other groups affected by the outcome. An amicus curiae literally means a friend of the court. It is someone who is not a party to a case and is not solicited by a party, but who assists a court by offering information that bears on the case.

The respondents (Stéphane Descheneaux and Susan and Tammy Yantha) and the intervenors in the court (the Abenaki of Odanak and Wôlinak) consented to Canada’s motions, said Schulze.

On June 27th Quebec Superior Court Justice Chantal Masse dismissed a motion to extend Parliament’s deadline for eliminating sex discrimination from the registration provisions in the Indian Act. Ottawa had already received a couple of extensions.

“It is important to recall here that even if the Court granted what the Attorney General of Canada calls a “final” extension period, the Attorney General is not able to guarantee that the current situation will not arise again, in exactly the same way, six months from now,” noted Justice Masse in an oral ruling, her fourth decision in Descheneaux c. Procureure générale du Canada.

Federal Indigenous Affairs Minister Carolyn Bennett made it plain that the government was going to appeal that decision.

“Without a stay of the ruling, the Department of Indigenous and Northern Affairs will no longer be able to approve the status for the vast majority of individuals who have duly applied and are entitled to it,” said Indigenous Affairs Minister Carolyn Bennett’s office in a statement. “This would cause disruption and unfair stress on thousands of people each month.”

In 2015, in a case brought by three members of the Abenaki of Odanak, Justice Masse found that the registration rules adopted in 1985 to bring the Indian Act into conformity with the Charter discriminated against those who traced their First Nations ancestry to a female rather than a male.

That ruling marked the third time that the issue of gender discrimination provisions in the Indian Act was the subject of legal debate.


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