For generations, enfranchisement was one of the Indian Act’s principal instruments of assimilation. It rested on a stark premise: a First Nations person could obtain the rights associated with Canadian citizenship only by relinquishing legal recognition as an “Indian.” Although Parliament abolished enfranchisement in 1985, its consequences did not disappear with the statutory mechanism that created them. In Nicholas v Canada (Attorney General), the Supreme Court of British Columbia confronted one of those continuing consequences.¹ Under the registration rules in section 6 of the Indian Act, descendants of people who had been enfranchised continued to receive less favourable treatment than people with the same degree of First Nations ancestry whose families had no history of enfranchisement.² Canada conceded that this distinction infringed section 15 of the Canadian Charter of Rights and Freedoms and could not be justified under section 1.³> The difficult question was therefore not whether the legislation was unconstitutional. It was what the Court should do about it, and when its remedy should take effect. Justice Fitzpatrick declared the offending provisions invalid. Concerned, however, that the immediate operation of a British Columbia declaration could produce inconsistent registration rules across Canada, she temporarily suspended the declarations’ general effect. At the same time, the Court granted immediate constitutional exemptions to the plaintiffs.⁴ The result is a carefully calibrated decision: one that condemns the continuing effects of enfranchisement, preserves a role for Parliament in implementing a national solution, and ensures that the individuals who carried the constitutional challenge do not have to wait for personal relief.

A Discriminatory Policy with Continuing Legal Consequences

The plaintiffs were 16 individuals who each had at least one parent, grandparent or great-grandparent who had been enfranchised after applying for enfranchisement.⁵ Historically, enfranchisement removed a person from the legal framework of the Indian Act. It reflected the federal government’s assimilationist position that First Nations identity and full participation in Canadian society were incompatible. In legal terms, the enfranchised person ceased to be recognized as an “Indian” under the Act. Depending on the legislation in force at the time, the consequences could extend beyond the individual and affect the person’s spouse and descendants. As the Court observed in Nicholas, the Supreme Court of Canada has described enfranchisement as “a discriminatory policy aimed at eradicating Aboriginal culture and assimilating Aboriginal peoples.”⁶ That history was central to the equality analysis. The challenged rules were not merely technical distinctions within a complicated registration scheme. They preserved the consequences of a policy deliberately designed to separate First Nations people from their legal identities, families and communities. Parliament removed the enfranchisement process from the Indian Act in 1985.⁷ It did not, however, completely eliminate enfranchisement as a factor affecting registration entitlement. A family history of enfranchisement could continue to determine:

• whether a descendant was entitled to be registered;
• whether the descendant received entitlement under subsection 6(1) or subsection 6(2); and
• whether the descendant could transmit entitlement to the next generation.

That was the constitutional harm at the centre of Nicholas. Because an ancestor had been enfranchised, the plaintiffs were denied registration, assigned a more limited category of entitlement, or restricted in their ability to transmit entitlement to their descendants.⁸ People with the same degree of First Nations ancestry, but without enfranchisement in their family histories, were treated more favourably. The legal mechanism that produced the original loss of recognition was gone. Its intergenerational effects remained embedded in the Act.

Why the Difference Between Subsections 6(1) and 6(2) Matters

To understand the practical importance of Nicholas, it is necessary to understand the basic structure of section 6 of the Indian Act. Section 6 establishes several grounds for entitlement to registration. In broad terms, a person entitled under subsection 6(1) can transmit entitlement to a child even if the child’s other parent is not registered or entitled to registration. A person whose entitlement arises only under subsection 6(2), by contrast, generally cannot transmit entitlement unless the child’s other parent is also registered or entitled to registration.⁹ The difference therefore reaches beyond the entitlement of a single applicant. It can determine whether legal recognition is transmitted to, or extinguished in, the next generation. The provisions challenged in Nicholas assigned descendants of enfranchisees less favourable entitlement than individuals with an equivalent degree of First Nations ancestry who did not descend from an enfranchised person. In some circumstances, the result was subsection 6(2), rather than subsection 6(1), entitlement. In others, the family history of enfranchisement prevented registration or the transmission of entitlement altogether.¹⁰ At paragraph 23, Justice Fitzpatrick explained that the impugned provisions effectively treated descendants of enfranchisees as “less Indian” by providing them with more limited entitlement than people with the same degree of “Indian” ancestry whose families did not have a history of enfranchisement.¹¹ That conclusion should be understood as a criticism of the statutory hierarchy created by the Indian Act, not as an endorsement of federal authority to define Indigenous identity. Registration is a statutory classification created and administered by Canada. It is distinct from Indigenous identity, First Nation citizenship and, depending on a First Nation’s governance arrangements, band membership. Nevertheless, registration has serious legal and practical consequences. It may affect access to federal programs and services. It can also carry profound significance for personal identity, family continuity, community belonging and the legal recognition of relationships between generations.¹²

The Litigation, and the Legislative Solution That Did Not Arrive

The plaintiffs commenced their constitutional challenge in June 2021. They alleged that the relevant registration provisions violated sections 7 and 15 of the Charter.¹³ In January 2022, the parties agreed to place the litigation in abeyance while pursuing a legislative solution. The Minister of Indigenous Services committed to addressing the inequity so that individuals with a family history of enfranchisement, and their descendants, would have the same registration entitlement they would have possessed had the enfranchisement not occurred.¹⁴ That commitment eventually resulted in Bill C-38, introduced in December 2022. Among other proposed reforms, Bill C-38 would have amended the registration provisions challenged in Nicholas.¹⁵ The legislative process did not resolve the plaintiffs’ claims. The plaintiffs terminated the abeyance and reactivated their litigation in May 2024. Bill C-38 subsequently died on the Order Paper after Parliament was prorogued and then dissolved for a general election in early 2025.¹⁶ In January 2025, Canada amended its response to concede that the challenged provisions infringed section 15 and that the infringement could not be justified under section 1.⁷¹ Bill S-2, which contained substantially similar amendments relating to enfranchisement, was introduced in the Senate in May 2025.¹⁸ By the time the plaintiffs’ summary judgment application was heard, the parties agreed on the central constitutional conclusion and substantially agreed on the form of the declarations. The principal dispute concerned the remedy’s timing. Canada asked the Court to suspend the declarations to give Parliament an additional opportunity to enact a national solution. The plaintiffs maintained that the discriminatory provisions should cease to operate immediately.¹⁹

The Equality Violation Was Conceded, but It Still Mattered Why

Canada’s concession meant that the Court did not have to resolve the section 15 claim through a fully contested constitutional trial. Justice Fitzpatrick nevertheless explained why the concession was legally justified. The modern section 15 framework asks two principal questions:

1. Does the law create or contribute to a distinction based on an enumerated or analogous ground?
2. Does the distinction impose a burden or deny a benefit in a manner that reinforces, perpetuates or exacerbates disadvantage?²⁰

The challenged provisions satisfied both stages.

The legislation drew a distinction based on race or ethnic origin

Section 6 distinguished between descendants of enfranchisees and people with the same degree of First Nations ancestry who were not descended from an enfranchised person. The distinction did not arise from a neutral administrative criterion. It depended on a family’s relationship to a historical legal process directed specifically at First Nations people. Canada acknowledged that this amounted to a distinction based on race or ethnic origin, both enumerated grounds under section 15.²¹ The comparison was particularly revealing. Two individuals could have the same degree of First Nations ancestry. Yet the descendant of an enfranchised person could receive the more limited subsection 6(2) entitlement, while the other individual could receive subsection 6(1) entitlement. The difference was not based on any present-day circumstance relevant to the individual’s identity, family or community. It arose solely because the first individual’s ancestor had been subjected to, or had participated in, a historical legal process intended to remove that ancestor from the Indian Act regime.

The distinction perpetuated historical disadvantage

The provisions also perpetuated disadvantage by carrying the consequences of enfranchisement into later generations. The plaintiffs did not themselves apply for enfranchisement. Their entitlements were diminished because of the legal treatment of a parent, grandparent or great-grandparent. Section 6 therefore made the consequences of an assimilationist policy inheritable. Justice Fitzpatrick captured the problem in a particularly important passage:

“Thus, the problematic exchange underpinning historical enfranchisement (whereby divesting oneself of ‘Indianness’ brought the benefits of full citizenship) continues to have a residual effect on the descendants of enfranchisees.”²²

The harm was not merely symbolic. The provisions could deny registration, reduce a person’s category of entitlement and impair the ability to transmit entitlement to a child. Nor could registration be characterized as a minor statutory benefit. Drawing on decisions including McIvor v Canada (Registrar of Indian and Northern Affairs), Descheneaux c Canada (Procureur général) and Gehl v Canada (Attorney General), the Court recognized that registration is important because of its relationship to identity and community belonging, as well as its connection to tangible programs and benefits, including certain health and post-secondary education benefits.²³ The constitutional problem was therefore both historical and contemporary. A policy designed to facilitate assimilation continued to determine whether present-day descendants received equal recognition under federal law. Canada conceded that the infringement could not be justified under section 1. The Court consequently did not need to conduct a full proportionality analysis. It also did not need to decide the plaintiffs’ alternative section 7 claim.²⁴

A Precise Remedy for a Precise Constitutional Defect

Once the Court accepted that the provisions violated section 15 and could not be justified, section 52(1) of the Constitution Act, 1982 required an appropriate remedy. Legislation inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.⁵² The Court did not invalidate section 6 as a whole. Instead, relying on the remedial principles discussed in Ontario (Attorney General) v G, it granted a tailored declaration directed at the specific statutory language producing the unequal treatment.²⁶ Justice Fitzpatrick declared unconstitutional and of no force or effect:

• the words “pursuant to an order made under subsection 109(2)” in paragraph 6(1)(a.1) of the Indian Act; and
• all of paragraph 6(1)(d).²⁷

The remedy was carefully confined.

First, it removed the statutory language responsible for the differential treatment without invalidating unrelated portions of the registration scheme. Second, it did not remove or diminish anyone’s existing registration entitlement. Third, it did not prevent Parliament from enacting broader reforms concerning other aspects of registration or band membership. Fourth, it closely tracked the government’s own proposed legislative response. As Justice Fitzpatrick observed, the revision was “exactly what was to be accomplished through Bill C-38.”[28] The declaration was, however, subject to an important limitation. It did not apply to people who had been members of a band enfranchised under section 112 of the 1970 Indian Act.²⁹ The case addressed the continuing consequences of the forms of individual enfranchisement captured by the impugned provisions. It did not resolve every consequence arising from every historical form of enfranchisement. That limitation matters. The Court did not declare the entire historical enfranchisement regime constitutionally remedied. Its order responded to the statutory provisions and factual circumstances placed before it.

Why Leave an Unconstitutional Law Temporarily in Place?

The most difficult part of the decision concerned whether the declarations should take effect immediately. Constitutional supremacy provides the starting point. Once a court determines that legislation is unconstitutional, the ordinary result is that the legislation is of no force or effect. A suspended declaration temporarily preserves the operation of an unconstitutional law and therefore requires justification. Under Ontario v G, the government bears the burden of demonstrating that immediate invalidity would threaten a sufficiently important public interest and that the benefits of temporarily suspending the declaration outweigh the harms caused by continuing the unconstitutional law.³⁰ Suspended declarations are exceptional. Legislative inconvenience, administrative preference or a general desire that Parliament act first will not necessarily justify delaying relief. Canada relied primarily on two considerations: the possibility of inconsistent registration rules across Canada and the existence of an ongoing legislative process.

The risk of a geographically uneven registration regime

The Indian Act is federal legislation operating across Canada. Canada argued that the immediate effect of a declaration made by a British Columbia superior court could produce different registration rules for applicants within the Court’s jurisdiction and applicants elsewhere in the country.³¹ Justice Fitzpatrick accepted that this could create an “undesirable and confusing patchwork of registration rules.”³² Two individuals with materially identical family histories could receive different treatment depending on whether the British Columbia declaration applied to them. The Court did not accept every aspect of Canada’s argument. Immediate invalidity would not deprive anyone of an existing entitlement or dismantle the broader registration regime. Justice Fitzpatrick considered Canada’s suggestion that immediate relief would produce administrative “chaos” to be “hyperbolic to a degree.”³³ The narrower concern was nonetheless legitimate. A geographically uneven remedy could produce inconsistent entitlement under a national statute, an especially difficult outcome in litigation intended to eliminate unequal treatment within the registration scheme.

Parliament was already considering corrective legislation

Canada also relied on its legislative efforts. Bill C-38 had been introduced to correct the enfranchisement-related inequity but did not complete the legislative process. Bill S-2 had since been introduced to continue that work. Canada argued that a suspension would allow Parliament to enact a solution applicable throughout the country.³⁴ That history cut both ways. The proposed legislation demonstrated that Canada had already identified a workable amendment. At the same time, affected individuals had already waited while Bill C-38 failed to become law. A government cannot ordinarily justify the continued operation of unconstitutional legislation merely by pointing to its intention to remedy the problem at some later date. Justice Fitzpatrick also considered the administrative context. Indigenous Services Canada had placed 1,462 potentially affected registration applications on hold since June 2023. Canada anticipated that the proposed reforms could lead to approximately 6,200 additional registrations over 13 years.³⁵ Those figures did not establish that immediate implementation would be impossible. They did, however, show that the declaration would affect a meaningful number of applications and that a coherent transition would have practical value. Balancing the continuation of an admitted equality violation against the risk of inconsistent national administration, the Court concluded that a limited suspension was justified:

“In summary, I am satisfied that, on balance, the Declarations should be suspended to allow Canada to reinvigorate the legislative process toward enacting the amendments to the Indian Act, consistent with the Declarations.”³⁶

Justice Fitzpatrick suspended the declarations until April 30, 2026. The approximately 10-month period was selected to encompass Parliament’s anticipated sittings through the end of April.³⁷ The suspension was not an endorsement of indefinite legislative delay. It was a temporary accommodation intended to provide Parliament with a defined opportunity to implement a nationally applicable solution.

Immediate Relief for the People Who Brought the Case

Suspending the declarations created an obvious fairness problem. Without further relief, the successful plaintiffs would remain subject to provisions Canada had admitted were unconstitutional. The Court avoided that result by granting each plaintiff an individual constitutional exemption under section 24(1) of the Charter.³⁸ The distinction between the two forms of remedy is important:

• the declarations under section 52(1) addressed the validity and operation of the impugned legislation generally; and
• the exemptions under section 24(1) provided personal relief to the individuals whose Charter rights had been infringed.

Relying on Ontario v G, Justice Fitzpatrick observed that an individual remedy will often be appropriate where a general declaration is suspended. The importance of safeguarding constitutional rights weighs heavily in favour of personal relief, and a compelling reason is required to deny it.³⁹ No compelling reason existed in Nicholas. Canada agreed that the plaintiffs should receive exemptions. Justice Fitzpatrick also recognized the plaintiffs’ role in bringing the constitutional defect before the Court. They had, in her words, braved the “storm of constitutional litigation.”⁴⁰ It would have been inequitable to require them to continue waiting under an admittedly discriminatory law while Parliament considered how to extend equivalent relief nationally. For the plaintiffs, the declarations therefore had immediate effect. This part of the judgment is more than a procedural detail. Constitutional litigation can demand substantial time, resources and personal commitment from individual claimants. By granting exemptions, the Court recognized that the plaintiffs had not only established a violation affecting their own families; they had also pursued a remedy capable of benefiting a broader group of descendants.

Retaining Jurisdiction Without Supervising Parliament

Justice Fitzpatrick also agreed to remain seized of the proceeding and retained the authority to vary the suspension period if necessary.41 This did not give the Court continuing supervisory jurisdiction over Parliament. The Court could not control the legislative agenda, prescribe the content of amendments or require Parliament to enact a particular bill. The retained jurisdiction was narrower. It permitted any issue concerning the duration of the suspension to return to the judge who was already familiar with the evidentiary record, legislative history and remedial balance. Justice Fitzpatrick granted the request on the grounds of efficiency and judicial economy.42 Costs were left unresolved. If the parties could not reach an agreement, they were given leave to bring a costs application within four months.43

What Nicholas Does, and Does Not, Decide

The precision of the judgment is one of its strengths. It also makes it important not to overstate the decision’s scope. The decision establishes that:

• the identified words in paragraph 6(1)(a.1) and all of paragraph 6(1)(d) unjustifiably infringed section 15;
• the provisions perpetuated disadvantage by assigning inferior registration and transmission rights because of a family history of individual enfranchisement;
• the unconstitutional provisions were invalid under section 52(1);
• the general declarations were temporarily suspended;
• the plaintiffs received immediate individual exemptions under section 24(1); and
• the Court retained the ability to reconsider the duration of the suspension.

The decision does not establish that:

• every historical inequity in section 6 has been resolved;
• every form of historical enfranchisement falls within the declarations;
• registration, band membership, First Nation citizenship and Indigenous identity are legally interchangeable;
• every descendant of an enfranchised person automatically qualifies for registration without an individualized assessment; or
• suspended declarations are appropriate whenever Parliament is considering related legislation.

The exclusion relating to band enfranchisement under former section 112 is particularly significant. Individuals affected by collective band enfranchisement were outside the declarations as framed. Their circumstances may require further legislative reform or separate litigation.

Why Nicholas Matters

Nicholas is significant because it recognizes that discrimination can survive the formal repeal of the policy that created it. Parliament removed enfranchisement from the Indian Act in 1985, but the registration scheme continued to carry its effects forward. The plaintiffs’ disadvantage was not merely a historical grievance. It was produced by legislation that remained in force. The decision also confirms that section 15 is concerned with intergenerational consequences. The plaintiffs received less favourable treatment because of the way the law had classified and treated an earlier generation. Substantive equality required the Court to examine that inherited disadvantage rather than viewing the contemporary registration provisions in isolation. The judgment is also important for its treatment of registration. The Court did not suggest that federal registration defines Indigenous identity. It did, however, recognize that registration carries both legal and personal significance. The denial or reduction of entitlement may affect access to benefits, but it may also affect identity, belonging, family continuity and the ability to transmit legal recognition to one’s children. At the same time, the remedy reveals a genuine institutional tension. Immediate constitutional relief is especially important where the government concedes that a law is discriminatory. But the uneven operation of a federal statute across provincial boundaries could create new disparities among the people the remedy was intended to assist. Justice Fitzpatrick addressed that tension by separating general and individual relief. The declarations were temporarily suspended to allow for a nationally coherent response, while the plaintiffs received immediate exemptions. That approach did not eliminate the cost of delay for other affected descendants, but it ensured that legislative and administrative concerns did not entirely displace the rights of the successful claimants. Most importantly, the judgment rejects the premise that the consequences of enfranchisement may continue indefinitely merely because they have been preserved through technical registration rules. A policy designed to facilitate the legal disappearance of First Nations peoples cannot be treated as constitutionally spent while its effects continue to determine which descendants receive recognition and which do not.

Conclusion

Nicholas v Canada (Attorney General) is not simply a decision about the wording of section 6 of the Indian Act. It is a decision about what happens when an expressly assimilationist policy continues to shape legal entitlement generations after its formal repeal. The Court’s conclusion was precise. Descendants of enfranchisees could not constitutionally be assigned inferior registration rights because of their family history. The distinction was based on race or ethnic origin, perpetuated the disadvantage associated with enfranchisement and violated section 15 of the Charter. The remedy was equally deliberate. Justice Fitzpatrick invalidated only the statutory language responsible for the discrimination, temporarily suspended the general declarations to address concerns about national inconsistency, and granted immediate relief to the plaintiffs. The decision therefore advances two related principles. The first is substantive: historical enfranchisement cannot constitutionally continue to diminish the registration rights of descendants. The second is remedial: where institutional concerns justify delaying a general declaration, courts must still take seriously the immediate rights of the people who brought the constitutional violation to light. The Indian Act has repeatedly been amended in response to successful challenges to discriminatory registration rules. Nicholas is another important chapter in that history, but it also exposes the limits of incremental reform. Each successful challenge may remove a particular inequality while leaving the broader structure of federal control over registration intact. For descendants affected by enfranchisement, however, the decision carries a direct and important message: the attempted legal erasure of an earlier generation cannot serve as a continuing basis for denying equality to the generations that followed.

How Barriston Law Can Help

The continuing reform of the Indian Act’s registration provisions can create important legal, governance, and operational considerations for First Nations and Indigenous organizations. Changes to federal registration entitlement may affect community planning, membership administration, governance policies, access to programs and services, and communications with members and affected families. These considerations are particularly complex because registration under the Indian Act, band membership, and First Nation citizenship are legally distinct and may be governed by different statutory, constitutional, and community-based frameworks. Barriston Law’s Indigenous Legal Department advises First Nations and Indigenous organizations on the legal and governance issues arising from Indian Act registration, band membership, citizenship, and legislative reform. Our team can assist with:

• reviewing membership codes, citizenship laws, and related governance policies;
• advising on the legal distinctions between federal registration, band membership, and First Nation citizenship;
• assessing how changes to federal registration entitlement may interact with existing community laws and governance structures;
• supporting First Nations responding to inquiries from members and families affected by historical enfranchisement;
• reviewing the potential governance and administrative implications of decisions such as Nicholas v Canada (Attorney General);
• advising leadership and administration on the implementation of legislative or policy changes affecting registration and membership;
• assisting with community engagement and the development of clear communications concerning registration, membership, and citizenship; and
• providing strategic advice concerning constitutional litigation, Crown–Indigenous relations, treaty rights, specific claims, and other matters affecting First Nations governments and Indigenous organizations.

The decision in Nicholas demonstrates that the consequences of historical enfranchisement did not end when Parliament abolished the enfranchisement process. For First Nations, addressing those consequences may involve more than reviewing individual registration entitlements. It may also require careful consideration of community laws, governance authority, administrative capacity, family relationships, and the distinction between federal recognition under the Indian Act and a Nation’s inherent authority to determine its own citizens. Every First Nation’s legal and governance framework is different. Barriston Law works with communities to develop practical, community-centred approaches that respect those differences while helping leadership understand and respond to changes in the surrounding legal landscape.

Contact Barriston Law

To learn more about how Barriston Law can support your First Nation or Indigenous organization with registration, membership, citizenship, governance, constitutional litigation, or related matters, visit barristonlaw.com or contact our Indigenous Legal Department directly. Written by Garnik Martirosov