What was Bill C-31 of 1985?

Bill C-31 of 1985 was An Act to amend the Indian Act, S.C. 1985, c. 27 passed on June 28, 1985 by Brian Mulroney's Conservative government. The Bill ended the longstanding Indian Act gender discrimination by which First Nations women lost Indian status when they married non-Indian men, while First Nations men retained status (and could convey status to their non-Indian wives). About 174,000 individuals (mostly women and their descendants) had their status restored or newly granted in the decades following the 1985 amendments. Bill C-31 also introduced the federal distinction between Indian status and band membership.

The discriminatory provision had been in place since the original Indian Act of 1876 and was reinforced by the 1951 Indian Act amendments. Section 12(1)(b) of the 1951 Act provided that a First Nations woman who married a non-Indian lost her Indian status, was removed from her band's membership list, and could not pass status to her children. First Nations women lobbied against this discrimination from the 1950s onward. Notable activists included Mary Two-Axe Earley (Mohawk, who lost her status by marrying a non-Indigenous man in 1938 and worked for reinstatement until her death in 1996); Jeannette Corbiere Lavell (Anishinaabe, whose 1973 Supreme Court case had failed); Sandra Lovelace (Maliseet, whose 1981 United Nations Human Rights Committee case had ruled Canada in violation of the International Covenant on Civil and Political Rights); and others.

The Charter of Rights and Freedoms of 1982 provided the constitutional imperative for change. Section 15's equality provisions (which came into force April 17, 1985 after a three-year delay) explicitly prohibited discrimination based on sex. The federal government tabled Bill C-31 in February 1985 to comply with the Charter before section 15 took effect. Bill C-31's main provisions included: ending sex-based discrimination in status (sections 6 and 8); restoring status to First Nations women who had lost it through marriage and to their children (section 6(1)); creating distinct categories of full and partial Indian status (section 6(1) and section 6(2)); allowing First Nations to control their own band membership (section 10).

Bill C-31's section 6(1) and 6(2) framework introduced new ambiguities. Children with one section 6(1) parent and one non-Indian parent receive section 6(2) status; children with two section 6(2) parents receive section 6(1) status; but children with one section 6(2) parent and one non-Indian parent (the 'second-generation cut-off') do not receive any status. The second-generation cut-off was challenged in McIvor v. Canada (Registrar, Indian and Northern Affairs Canada) (BC Court of Appeal, April 6, 2009), leading to the federal Bill C-3 (the Gender Equity in Indian Registration Act of 2010, passed December 15, 2010) and subsequent Bill S-3 of June 2017 (the Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux). Bill C-31's status restorations had dramatic effects on First Nations demographics and band membership politics; band membership control (section 10) allowed many First Nations to set their own membership rules independent of federal Indian status determinations.