Removal of the 1951 cut-off

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• What is the "1951 cut-off"?
• Removing the 1951 cut-off
• Why is the removal of the 1951 cut-off important?
• Projected demographic impacts

What is the "1951 cut-off"?

The 1951 cut-off date is the result of one of the four requirements that must be met in order for someone to be entitled to registration under section 6(1)(c.1) of the Indian Act. This section was added to the Indian Act as a result of the Bill C-3 2011 amendments in response to the McIvor decision under the Gender Equity in Indian Registration Act. Section 6(1)(c.1) states that, for an individual to be registered under 6(1)(c.1), they must have had a child or adopted a child on or after September 4, 1951 and have a mother who lost entitlement due to a marriage to a non-Indian man. When an individual is entitled under section 6(1)(c.1), all their children would be entitled to registration (even if only one child was born or adopted after September 4, 1951). These children's entitlement to registration could be under section 6(1) or under section 6(2) depending of the circumstances. If there is no child born or adopted after September 4, 1951, then the individual is not entitled. In other words, the birth or adoption date of a grandchild (or of a sibling of the grandchild) of a woman who lost entitlement to registration due to a marriage to a non-Indian man must occur after September 4, 1951 for the grandchild to be entitled to registration. This could mean that two siblings born to the same parents (where the mother lost status due to marriage to a non-Indian man prior to their birth) could have different abilities to pass their entitlement to their descendants. This cut-off has implications for cousins that share a grandmother who lost entitlement due to a marriage to a non-Indian man, to pass on entitlement to their descendants. Some of the cousins can pass on entitlement, while others cannot.

Removing the 1951 cut-off extends entitlement to grandchildren born or adopted prior to September 4, 1951 and allows for entitlement to be passed down to their descendants resulting in the cousins having the same ability to pass on entitlement back to 1869.

Removing the 1951 cut-off

Although the issue of the 1951 cut-off has not been found to constitute sex-based discrimination by Canadian courts, Canada decided to address this issue under Bill S-3. This is a complex issue and there is a need to consult to understand the impacts and identify practical remedies and implementation options. Therefore, in line with the Canada's commitments for reconciliation and renewal of the nation-to-nation relationship, the removal of the 1951 cut-off is enshrined in legislation under clauses 2.1, 3.1, 3.2 and 10.1 of Bill S-3, but will come into force following consultations on a later date to be set by Order in Council.

The amendments that come into force at a later date will remove the 1951 cut-off from the Indian Act for determining eligibility of entitlement for a woman, and her descendants, who were removed from band lists or not considered an Indian due to marrying a non-Indian man, going back to 1869. These amendments will result in individuals previously entitled under section 6(1)(c) to be re-categorized under section 6(1)(a.1) for the women who married out and section 6(1)(a.3) for their direct descendants if they were born prior to April 17, 1985 (or of a marriage prior to that date). Section 6(1)(c) and all its subcategories will no longer appear in the Indian Act following the amendments as outlined in Bill S-3. For anyone who is not already registered at the time the amendments are made, their eligibility will be determined under the Indian Act in force at that time.

It is important to note that the second-generation cut-off continues to be applied after 1985.

Why is the removal of the 1951 cut-off important?

When the 1951 cut-off is removed, a significant number of individuals currently registered under section 6(2) who had children before September 4, 1951 will become eligible under section 6(1)(a.3) resulting in further entitlements for their direct descendants under 6(1)(a.3), 6(1)(f) and 6(2). This will increase the number of individuals benefitting from new or enhanced entitlement. Once the 1951 cut-off is repealed, sections 6(1)(c.2) and (c.4) will be repealed.

Such a measure will automatically and significantly increase the number of individuals eligible for registration and band membership and may result in pressures for First Nation communities with respect of resources, programs and services, and ethno-cultural integration.

As part of the collaborative process, Crown-Indigenous Relations and Northern Affairs Canada is consulting with First Nations, Indigenous groups and impacted individuals on the implementation of the removal of the 1951 cut-off on how and when it should be implemented. Following the collaborative process, an implementation plan will be prepared, and the process will begin to bring the 1951 cut-off into force.

Projected demographic impacts

There is significant uncertainty around determining the population impacts of the removal of the 1951 cut-off amendments as there is no data-set that can directly identify the number of individuals that could be affected.

In the 2016 Census, 750,000 to 1.3 million non-registered individuals self-reported as having North American Indigenous ancestry. This reflects who may be entitled to, and who may be more likely to apply for Indian registration. This does not necessarily reflect how many individuals would and likely overestimates the number of individuals who would become registered.

The following chart demonstrates how the 1951 cut-off works: