Bill S-2 would expand Indian status and taxpayer-funded benefits based on ancestry rather than equality before the law

One of the fundamental principles of a free society is equality before the law. But Bill S-2 moves Canada in the opposite direction.

The federal legislation, now backed by the Senate, would eliminate the “second-generation cut-off” in the Indian Act, making it easier for descendants of status Indians to qualify for status. The change is expected to add roughly 300,000 new registrants to the Indian status list by 2066. The Parliamentary Budget Officer estimates the change would increase federal spending by more than $1 billion annually, largely through expanded eligibility for health and education benefits.

The larger question, however, is whether Parliament should be expanding a legal system that treats Canadians differently according to their ancestry.

Supporters argue that status is an inherent part of Indigenous identity and reflects a nation-to-nation relationship dating back centuries. That interpretation overlooks how status originated.

Status under the Indian Act was created by the Canadian government as a legal classification, not as recognition of a separate citizenship. However controversial that policy may seem today, its long-term objective was that status would eventually disappear as Indigenous people assumed the same legal standing as every other Canadian.

The Indian Act reflected that objective for many years. Indians who became professionals, entered the clergy or otherwise qualified for enfranchisement, the legal process by which they became ordinary Canadian citizens, ceased to be status Indians and acquired the same legal status as every other Canadian.

The objective was not to eliminate Indigenous culture but to eliminate a separate legal status.

The 1985 second-generation cut-off reflected that approach by recognizing that, over time, status would gradually diminish rather than expand.

Bill S-2 reverses that direction by substantially enlarging, rather than gradually reducing, the number of people governed by a separate legal category.

That change carries significant financial consequences. Status provides access to a range of federally funded benefits and programs unavailable to most Canadians, including extensive health coverage, prescription drugs, dental care, post-secondary education assistance and, in some circumstances, income-tax exemptions. Many Canadian families cannot afford comparable benefits for themselves, yet they are expected to finance them for an ever-growing number of status Indians.

Supporters also argue that expanding eligibility corrects historical discrimination. While Parliament is entitled to consider that argument, it should also consider whether expanding legal distinctions based on ancestry is consistent with the principle that Canadians should enjoy equal rights and responsibilities regardless of ancestry.

That question becomes more difficult as eligibility extends to people whose Indigenous ancestry may be several generations removed. Bill S-2 would grant status to many individuals who, apart from some Indigenous ancestry, live lives indistinguishable from millions of other Canadians with similar family histories.

If ancestry alone becomes the defining criterion, Parliament should explain why some Canadians qualify for substantial federally funded benefits while others with comparable ancestry do not.

Income-tax exemptions offer little benefit to people with low incomes. Expanded education and health benefits have not eliminated persistent disparities in educational outcomes, health or living conditions. Expanding the status registry is unlikely to change those realities.

A decade ago, I argued satirically that Canada could solve the issue by granting Indian status to everyone with some Indigenous ancestry. The absurdity of that proposal was intended to illustrate a simple point: as eligibility expands, a legal system that grants different rights and benefits according to ancestry becomes increasingly difficult to justify.

That point remains relevant today.

Canada has spent decades reducing legal distinctions based on ancestry. Bill S-2 moves in the opposite direction by expanding one of the country’s last remaining legal systems that treats Canadians differently according to their ancestry.

The principal effect of Bill S-2 is to enlarge a legal system that treats Canadians differently according to their ancestry rather than address the underlying problems affecting many Indigenous Canadians.

Reasonable people can disagree about how historical injustices should be addressed. But Parliament should also ask whether reconciliation is advanced by expanding a legal system that treats Canadians differently according to their ancestry.

The Senate has urged Parliament to move in that direction. Before approving Bill S-2, legislators should instead ask whether expanding a legal system that treats Canadians differently according to their ancestry is compatible with the principle of equality before the law. If it is not, Bill S-2 deserves to be rejected.

Brian Giesbrecht is a retired Manitoba Provincial Court judge and Senior Fellow at the Frontier Centre for Public Policy. Drawing on three decades of judicial experience, he provides expert analysis on Canadian legal trends, social policy, and justice reform, advocating for evidence-based policymaking.