Bill S-3 (Historical)

An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)

This enactment amends the Indian Act to provide new entitlements to registration in the Indian Register in response to the decision in Descheneaux c. Canada (Procureur général) that was rendered by the Superior Court of Quebec on August 3, 2015, and to provide that the persons who become so entitled also have the right to have their name entered in a Band List maintained by the Department of Indian Affairs and Northern Development. This enactment requires the Minister of Indian and Northern Affairs to initiate consultations on issues related to registration and band membership and to conduct reviews on sex-based inequities under the Indian Act, and to report to Parliament on those activities.

Indian Act

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I want to thank the member for Abitibi—Baie-James—Nunavik—Eeyou from the bottom of my heart for setting so clearly before us what we should be talking about instead of Bill S-3, which are the big picture items that we and first nations and indigenous peoples in this country are still living under, and that is a racist, discriminatory, colonial bill. We are now approaching it from the point of view of one aspect of it because of the deadline of a court case, when we should be discussing how to implement the United Nations Declaration on the Rights of Indigenous Peoples.

I am enormously pleased that when the New Democrats and the Greens of British Columbia agreed on how they would govern, they agreed that the Government of British Columbia would operate under the United Nations Declaration on the Rights of Indigenous Peoples as law. Since we do have Bill S-3 before us, the member quoted Senator Dan Christmas. I want to ask a question with respect to another member of the sovereign Mi'kmaq territory, Professor Pam Palmater, who said clearly to the committee:

There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional Nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away.

She also cited as an authority the United Nations Declaration on the Rights of Indigenous Peoples. I am loath to comment on the Indian Act, Bill S-3, or anything else, since I am not under a Caucasian act, though I did like the member's suggestion that it would make it very clear to people exactly how racist and discriminatory the bill is.

As I understand it, I could vote for Bill S-3 with Senator McPhedran's amendments, but without them I cannot vote for it. Have I grasped this technical, small, yet hugely significant part of a racist and colonial scheme?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I too appreciated the comments of my colleague, whom I work with on committee. I appreciate his sentiments around the Indian Act, which he states regularly and consistently.

We have before us this bill, Bill S-3. We have looked at it twice. We looked at in a pre-study in November and we looked at it again recently in another pre-study, in a version very different from the first. Both times, as he is aware, when we asked the officials if this legislation deals with all known sex-based inequities, we were told that it did in November, but there were a number of mistakes. The bar association and Descheneaux's lawyer pointed out the Gehl case. It very quickly became apparent that the bill was lacking. We asked again just this week if the bill now takes care of all known sex-based inequities, and the officials again said it does.

I would like to ask my colleague if he has confidence that the officials are right, or can he perhaps identify any issues that are still there in this piece of legislation?

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I was going to say that I am honoured to rise to speak to the Indian Act, but that is not the case. Usually, when I rise in the House, I do it with honour and I consider it a privilege, but that is not the case today.

Earlier, I explained just how deeply opposed I am to this legislation, which has been in place for a very long time and, I would point out, was imposed unilaterally on indigenous peoples across this country. It is a shame that in 2017 we must still rise in the House to talk about something so racist, colonial, and discriminatory as the Indian Act.

We are supposedly one of the most progressive and generous countries on the planet, but the first peoples of this country are subjected to legislation such as the Indian Act. It is really unfortunate. Given the country’s international reputation, this legislation should be done away with as quickly as possible, especially given the promises that this new government made on a number of things, including the new relationship that it wants to establish with indigenous peoples.

The adoption and implementation of the UN Declaration on the Rights of Indigenous Peoples should now be the basis for any discussion in the House. I would like to point out that this was one of the most significant promises made by several parties, including my own, but also by this government.

Regarding this declaration, let us not forget that two of the Truth and Reconciliation Commission’s main calls to action are calls to action nos. 43 and 44. Call to action no. 44 calls on the government and its indigenous partners to develop a national action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples. Call to action no. 43 is also important for us in the House. It calls on the federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

That is important. We cannot say that we support all of the Commission’s calls to action except for call no. 43, because it calls on us to fully adopt and implement the declaration.

It is therefore important to remember the context in which we come to this debate on the Indian Act and the status of indigenous people in this country.

Something that has always fascinated me is that the first peoples of this country are the only people in Canada subject to a law in this way. It is mind-boggling how discriminatory this law is, come to think of it. Indigenous peoples and all other peoples on the planet are equal. Like all other peoples, indigenous peoples have the right to self-determination under international law. Article 9 of the declaration recognizes that indigenous peoples have a right to determine who should be members of their communities and nations.

However, this is not the case, and it is unfortunate that in 2017 we still have this racist, discriminatory, and also sexist legislation.

Whenever I talk about the Indian Act, I am almost tempted at times, very seriously, to rise in the House and propose a Caucasian act. Please excuse my use of a typological understanding of human biology when I limit people to racial terms, especially since the term Caucasian describes people from the geographic regions of Turkey, Armenia, and Azerbaijan, and most members in the chamber are from western Europe. Self-identity is not what is important here.

My proposition would be nothing new, as a matter of fact. Five hundred years ago when Caucasian ships began arriving on the shores of this continent, indigenous peoples began devising all sorts of appropriate responses to the invasion. Maybe, at least in the north, invasion is too strong of a word to describe the first contact, but when farmers, entrepreneurs, and business people began to be displaced by foreign investment, when doctors spoke out in alarm of undocumented immigrants bringing high levels of infectious disease onto this continent, and when community leaders began noticing the erosion of the indigenous social fabric, our warriors became our homeland security, and our knowledge keepers became our policy-makers on this continent.

For a while, official policy was to send all Caucasians back to where they came from. I will not lie, that argument still pops up from time to time in discussions with my people, but then mixed marriages, economic interdependence, and the sheer numbers became a reality, and we realized that a more nuanced solution was needed for the Caucasian problem. If I were proposing that act today, I would paraphrase John A. Macdonald and say that the great aim of this legislation is to do away with the European system, and assimilate the Caucasian people in all respects with the other inhabitants of this land as speedily as they are fit to change. I am of course paraphrasing John A. Macdonald.

I can almost hear some of the other members objecting, but will this proposal not deny my fundamental rights contained within the Canadian Constitution and the Charter of Rights and Freedoms, and violate universal human rights standards? However, I can assure everyone that rights are not important when we consider the creation of a Caucasian act. Power is the most important factor when we consider pieces of legislation designed to control and assimilate one demographic group to the exclusion of all others. Who holds power over the lives of others?

Today, the government has brought to the House Bill S-3, a Senate bill that purports to remove gender discrimination from the Indian Act. The only piece of legislation in this country, I will repeat, that exclusively governs the lives of one demographic group, namely, the indigenous people of this country. When considering this bill, it must be recognized that the colonial system is always about gaining control over another people for the sake of what the colonial power has determined to be the common good.

That is the system that is prescribed by colonial values, priorities, and objectives. Senators, MPs and expert witnesses have repeatedly told the Liberal government that Bill S-3 must go beyond the limited understanding of what legislative review of the Indian Act means, an understanding limited by colonial prescriptions.

In fact, the minister has already told the Senate that her government will reject one of the senators' amendments to the bill, and members heard, as I did, and as all of us did in this House this evening, that is what she repeated tonight.

As the Indian Act is currently written, indigenous men who married non-indigenous women before April 17, 1985, when the act was re-written to comply with the charter of rights, will always pass their Indian status to at least their grandchildren and, in many cases, to their great-grandchildren. This is the case, even if their children and grandchildren parent with non-Indians. However, indigenous women who married non-status men before 1985 only pass on status up to their grandchildren, unless those grandchildren parent with other status Indians.

Senator McPhedran's amendment to Bill S-3 is intended to eliminate any remaining distinctions between the descendants of men and women who married non-Indians before the charter. It would go back to the creation of the Indian Act in the 1800s, while the government wants to stop at those born after the Indian register was created in 1951.

We are left with the question, why is the government refusing to recognize the indigenous identity of potentially hundreds of thousands of people? Remember, self-identity is not seen as important, human rights are not seen as important. What is important is gaining and maintaining power over a subjugated group of people, meaning the indigenous people of this country.

As Dr. Lynn Gehl has explained, “They don't want to end this discrimination. The ultimate goal is to get rid of status Indians and get rid of treaty rights—so much so, that they'll target women and babies.”

I want to quote what Deborah Serafinchon said to our committee when she appeared not too long ago. She said:

I'm not a lawyer, I'm not into any of this, all I know is that I don't understand the different status of 6(1)(a), 6(1), 6(2), whatever it is. Simply, as far as I'm concerned, an Indian is an Indian. I don't understand why there's different levels of status...I'm Indian enough to be discriminated against, but I'm not Indian enough to get status.

Whenever I hear testimony like that, it bothers me a lot, because this legislation has been around for so long. I remember the day after this Prime Minister got elected, and he reiterated a lot of the promises he made to indigenous peoples. I remember the day, across the river, in December 2015 when he spoke before the chiefs at the Assembly of First Nations. One of the promises he made that day in December 2015, before the chiefs at the Assembly of First Nations, was to review and rescind any legislation that was unilaterally imposed on indigenous peoples by previous governments. He used the word governments, not the previous government, but previous governments. It would have been very logical if he started with the Indian Act 20 months ago. Now we are caught with this, and bound by a deadline set by the Quebec Superior Court.

It is also worthwhile to read into the record what Senator Daniel Christmas said with respect to the Indian Act:

The point I'm making is a very stark one: Life under the Indian Act is a horrible and unproductive existence whose ultimate destiny is insolvency and ruin, both economically and emotionally.

A lot of first nations are in the same boat now that Membertou was in the mid-1990s.

Senator Christmas went on:

I recall the awful feeling of seeing people in my community walking with their heads down. Their community was poor and without any prospects, any hope for improvement, for us or for our children.

That is what he said in the Senate. It is important to remind ourselves that those are important considerations that we need to take into account in any revision that we make to the Indian Act, whether it be to status or to any of the other elements that are contained in the earlier Indian Act.

I also want to remind members that the new government has committed to adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples, and the minister has repeated that commitment and promise on a couple of occasions since the election.

Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples reads as follows:

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

I made an earlier point about the UN declaration. The Truth and Reconciliation Commission has recommended that we fully adopt and implement the UN declaration as the framework for reconciliation in this country.

There is a bill before this House, Bill C-262, that would implement the TRC's calls to action 43 and 44. I am hopeful that once that bill is adopted, it will be the framework for any proposed legislation in this country, in this chamber, as we move forward, because although a declaration is not the same as a convention or an international treaty, a declaration does have a legal effect in this country. The Supreme Court has confirmed on a couple of occasions now that declarations do have legal effects. Declarations are “relevant and persuasive sources” to interpret domestic human rights law in this country.

My suggestion here is that the UN declaration already has application in Canadian law. That should be the basis of any legislation that stems from this House from now on, or any policy review that we do as a government in this country. It does have application, and that is what Bill C-262 would confirm as well.

I was going to go into a whole list of the effects of the Indian Act, and it is quite a long list. However, I do want to remind this House that one of the things that is still in the Indian Act—and not too many Canadians know this—is the fact that the minister still has the authority to accept or refuse my will when I pass away. It is still in the Indian Act. That is pretty outrageous. It is only for indigenous peoples.

That is why I say the Indian Act needs to go away. There are enough people in this House to make suggestions as to what to replace it with. I think it is grand time that we do it. It is 2017 in this country called Canada.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act, elimination of sex-based inequities in registration. Right off, I should acknowledge that perhaps the title is in error. I am not totally convinced that everything in the bill performs that function.

I want to make a special note. The court decision was a long time ago. We have a deadline of July 3, and this is the first hour of debate in the House. We know this sitting is coming to an end, we have a court deadline, and, to be frank, the opportunity to give this very important matter the due diligence it deserves is lacking. We have less than a month to ensure the bill responds to the Descheneaux decision.

I will put a personal face to this. I want to share my story with Canadians. Many Canadians may not understand the very complicated issue of registration and membership. I beg the indulgence of the House to go back into my history.

I grew up in an urban community, graduated as a registered nurse, and was asked to go to a semi-remote first nations community to be its nurse. That was in 1983. It was quite a large community, an interior Salish community, and I had an opportunity to work in it.

One day a community a health representative told me that everyone wanted me to visit one of the elders. I was not supposed to visit her because she did not have status anymore because the government had said so. I will call her Margaret as I do not want to share her real name.

Margaret was 80-plus years old. When she was young, she had fallen in love with someone who lived in a nearby community, married him, and her husband was tragically killed. Not only did she lose her status as an Indian, but she lost her husband and was left in complete limbo. In this case, the community welcomed her home, but that was not always the case. The people brought her back to their community and provided her with housing. This elder spoke the language beautifully, she wove beautiful baskets, and was an incredible person and support. She was very respected and looked up to, but she always had the issue of not being part of the community because of her decision to marry someone from another community.

It was not just her feeling of not being part of the community. I was told that although I should not visit her because she was not officially part of the community, they really wanted me to she her. In their hearts, everyone knew she was part of them and their community. Her benefits, her ability to get medication, to travel were affected by her status. She had health issues and at times would have to go to a larger centre. She was excluded from those simple measures. At the time, it seemed terribly unfair that this well-respected elder was stripped of her status.

For people to understand, it takes a bit of a history lesson.

I am going quote a Canadian lawyer, Alison Gray, who talked about the changes over time. She said, “Throughout the history of the Indian Act, the provisions governing entitlement to and transmission of Indian status have favoured men and discriminated against indigenous women.” That goes back to 1869.

She goes on to say:

Beginning in 1869, indigenous women who married non-indigenous men lost their status and entitlement to all benefits of status, including the ability to pass status on to their children. However, if an indigenous man married a non-indigenous woman, he not only preserved his status but he was able to confer that status on his spouse and children.

Some changes came along in 1951 called the “Double Mother rule”. I will not get into the details of that because this becomes a technical and complicated issue as we made the changes and made things more and more complex.

She continues:

In 1985, Parliament amended the registration provisions in the act to ensure compliance with s. 15 of the Charter. The intent was to remove restrictions relating to marriage and remove any sex-based discrimination. However, the result was to create a two-tiered system of status that continued to unfairly discriminate against indigenous women and their descendants.

This continued discrimination was first successfully challenged in McIvor, which resulted in amendments to the act in 2010. However, the 2010 amendments did not eliminate all the sex-based discrimination in registration, which led to the successful challenge in Descheneaux.

Both McIvor and Descheneaux involved challenges to the two-tiered status set out in s. 6. Despite being enacted for the express purpose of eliminating sex-based discrimination, s. 6 continued to discriminate against indigenous women and their descendants by limiting their ability to pass on Indian status, as compared to indigenous men and their descendants.

Almost concurrently with Descheneaux was a case the Gehl challenge. She says:

In Gehl, the challenge involves the registration provision and the government’s Proof of Paternity Policy, which sets out the evidentiary requirements for proving a child’s paternity. The claim is that the act and the policy impose a burden on registered indigenous women only, and also prevent many from passing on their Indian status to their children and grandchildren.

Of importance to this case is the two-tiered status...is available to those with two parents entitled to be registered and allows Indian status to be passed on to their children regardless of the status of the other parent. Where only one parent is entitled to be registered, a lesser form of status is granted...

I bet that most members and anyone listening to this debate are confused. We get into sections 6(1), 6(2). We have created a complexity that is a real challenge.

We have one earlier court case and the Descheneaux case. After Bill S-3 was introduced, we finally had a response to that case. I do not think anyone would argue it was a paternal system that predated 1985. An attempt was made by the government to create a system that was fairer, but it was maintained as discriminatory legislation.

Bill S-3 is the government's response. I am going to talk about the process of the response. I have some real concerns and I will take it back to my own riding where I have a number of communities.

July 29, 2016, the chief in Tk’emlúps te Secwepemc received a letter from the minister in which she said she would start an engagement process with first nations and other indigenous groups across the country. It would take place in the late summer, early fall. It would consist of information-sharing and looking at a path forward.

This is critical to communities across the country. When they get a letter from the minister, knowing they have a court decision and something that is as significant as looking at the registration process, they are very interested and want to be involved. This was supposed to happen late summer.

In August, we wrote the minister's office, stating that a local band wanted to participate in the engagement process, asking where and when the meetings would take place. We did not get a response.

In September, we followed up. The Kamloops Indian Band had reached out to us again regarding the letter it received back in July. It was eager to be part of the minister's proposed meetings, but it was very worried that it had missed them. It thought that it was too late and that it had missed something critical.

Finally, on September 20, the minister's office emailed us to say that INAC had reached out to the band, but there were no details. Less than a month later, members of the band could travel to a meeting in Vancouver to tell the government what they thought. It might have been an hour or so long. Then the actual legislation was tabled October 25.

That is one community. If we look at the hundreds of bands across the country and if they feel the same frustration on such an important matter that impacts registration and members, imagine how concerned they would be.

The legislation was tabled in the Senate. In the House, we were encouragement to do a pre-study so we could move forward and meet the court deadline. During our pre-study, department officials were specifically asked if the bill would eliminate all known sex-based inequities. I asked the officials if they were confident the bill would do that. The official said, “In terms of your specific question for sex-based discrimination, yes, this bill is addressing everything that is wrong.” This was back in December.

We were told by the officials that the bill would take care of the issues, as the title states. Clearly, what happened was the Senate continued its study and things started to go astray.

Department officials appeared first. Then we heard from the litigants who told us they had not been contacted by the department on Bill S-3. Again, despite lofty promises about the need to improve the relationship with indigenous people, there was clearly an inadequate consultation with those most directly impacted.

We were absolutely stunned when Mr. Descheneaux indicated that he had not had any contact, and it was his case that had been brought forward.

Essentially, flaws were noted. With respect to consultation, it became apparent that the bill did not eliminate all known sex-based inequities. It was taken back to the drawing board, and it was put in abeyance at committee. Then it was brought back to the Senate.

In the meantime, we now have a new deadline, and that is July 3. A number of amendments were put forward.

What would the bill do? It is complicated and technical. We have had diagram after diagram to try to understand it.

Apparently, we are dealing with inequities with a cousin issue, a sibling issue, omitted or removed minors issue, children born out of wedlock, the great-grandchildren pre-1985, the great-grandchildren pre-1985 affected by sibling loss, the issue of great-grandchildren born pre-1985 whose great-grandmother parented out of wedlock phase two. We can clearly see there are a number of things done. We fixed a bunch of the problems. There were some fixed in the original bill. Clearly, it did not fix everything. There were some more fixes made in the reintroduction, and we now have the issue the minister referred to as 6(1)(a) all the way.

There is not time to even understand paragraph 6(1)(a). It was something the Liberals proposed way back with the McIvor case when they were in opposition. Clearly, at one point they thought 6(1)(a) all the way was a very adequate solution, but now they believe it is an inadequate solution. From everything we are understanding, this was perhaps a hastily developed amendment that an opposition put forward. Then the senator put it forward. They put some language around it, but from what we can see, it is almost identical.

We now have concerns by the minister about 6(1)(a) all in. We have the Indigenous Bar Association with concerns. Senator Sinclair originally had concerns, but then he voted for it when it went to report stage and third reading. We have groups advocating for this being the final solution and a committee that does not have any more time to really understand what 6(1)(a) all in would do and what it means, because it has been left so late. Is it going to solve the problems?

To be frank, we are hearing very conflicting testimony, and because the Liberals have left it for so long, we do not have the ability to actually do due diligence, which is what a committee should really do. There are no more sessions planned for the committee to look at this legislation to understand the impact of the 6(1)(a) all in.

In summary, what we have before us with Bill S-3 is certainly a fix for many of the problems. We have an incredibly botched process from start to now, and we have a problem with a Superior Court deadline that may or may not have any flexibility. Therefore, on this side of the House we are mostly incredibly disappointed that we did not have adequate time to do important due diligence to an incredibly important piece of legislation.

I go back to my original comment, my personal story that these decisions impact real people. They impact Margaret and who she was in her community. She was a lovely woman, a beautiful, articulate, talented elder who gave so much to her community; and we, the Government of Canada, made her lesser for that, and we need to make sure we get this fixed.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Mr. Speaker, first, I congratulate the minister for her leadership on many files in indigenous affairs, but specifically, for withdrawing the appeal by the previous federal government against the Quebec Court of Appeal so that we can find solutions to this.

There are impassioned arguments for a much broader reform for registration and membership under the Indian Act. Many argue that Bill S-3 would not go far enough. I know this is only the first stage of our response, the government's response, to the Descheneaux decision. Would the minister explain what is anticipated in stage II of the plan?

[Carolyn Bennett, Liberal, Minister of Indigenous and Northern Affairs]

moved that Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be read the second time and referred to a committee.

Mr. Speaker, acknowledging that we come together on the traditional territory of the Algonquin people, I stand here to speak to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

On August 3, 2015, the Superior Court of Quebec, in its decision in the Descheneaux case, ruled that key registration provisions of the Indian Act unjustifiably violate equality rights under section 15 of the charter, and declared them of no force and effect.

The court suspended its decision for a period of 18 months until February 3, 2017, to allow Parliament time to make the necessary legislative changes. That decision was appealed before the court before the current government took office, but that appeal was withdrawn by this government in February of 2016.

Bill S-3 is the first stage of the government's two-staged response to the Descheneaux decision, and needed broader reform of registration and membership provisions within the Indian Act.

I will take this opportunity to thank the Standing Senate Committee on Aboriginal Peoples for its thorough and invaluable work under tight court mandated deadlines. I also want to thank the members of the Standing Committee on Indigenous and Northern Affairs for their understanding regarding the urgency surrounding this bill and for their work during pre-study of Bill S-3.

In keeping with the recommendations of the standing Senate committee, on January 20, 2017, the government sought and was granted a five-month extension of the court's ruling to permit more time to consider Bill S-3. Through the additional time provided by this extension, and the diligent work of the Senate committee, there have been numerous improvements made to the original version of Bill S-3, which have been welcomed and supported by the government.

The bill now proactively addresses further groups impacted by sex-based inequities which were identified by the Indigenous Bar Association. The recent decision by the Ontario Court of Appeal in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.

In addition, I acknowledge the understandable skepticism of first nations and parliamentarians about whether the second stage of registration and membership reform would actually lead to meaningful change. That is why the government proposed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to update members and all Canadians on the progress toward broader reform. Three separate reports to Parliament are now in this legislation to hold the government to account regarding the second stage process, focused on broader reform of registration and membership provisions in the Indian Act.

The bill now would require the government to launch the collaborative stage II consultation process on issues within six months of the royal assent of Bill S-3. The bill would also require that as part of that process, the government consider the impact of the charter and, if applicable, the Canadian Human Rights Act. The requirements for the government to report to Parliament on the design of the collaborative consultation process within five months of the royal assent of Bill S-3, and to report to Parliament on the progress of that process within 12 months of the launch of those consultations are also included in the legislation.

The second report must also include details regarding the 1951 cut-off, the second generation cut-off, the categories for Indian registration, enfranchisement, adoption, and unstated/unknown parentage.

The bill also includes a three-year review clause regarding the amendments to section 6 of the act enacted by Bill S-3. The objective of this review is to determine whether all sex-based inequities have been eliminated. The bill also includes a declaration by the government regarding recommended amendments to the Indian Act.

I am committing, on behalf of the government and personally, to co-designing a process with first nations including communities, impacted individuals, organizations, and experts to deliver substantive registration reforms, including potential future legislative changes.

I have spent decades working on the issue of meaningful consultation, and finding ways to ensure that consultation incorporates voices beyond the usual suspects and provides participants with sufficient resources to engage. I can assure members and all Canadians of the government's absolute commitment that this will be a process where the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.

In stage II, charter compliance will be the floor, not the ceiling, and there may very well be areas of needed reform where no consensus is achieved. The government has made it clear that consensus will not be a prerequisite for action.

However, if the government is to act in the absence of consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation, and credible evidence about the potential impacts of reform. We must develop reforms which can be implemented in a way that ensures we have integrity in the system. Balancing the needed time to engage impacted people, through the parliamentary process, has allowed for only two truncated three-month engagement periods, even with the extension granted by the court.

There was not enough time to hold significant consultations on reforming Indian registration and band membership under the Indian Act.

Because of the tight court mandated deadline, the opportunity for consultations was limited, and I think it is important to talk about the intended scope of Bill S-3.

The goal of Bill S-3 is to remedy known sex-based inequities relating to registration in the Indian Act, which fall short of charter compliance based on the current state of the law. This is not restricted to situations where a court has already ruled, but extends to situations where the courts have yet to rule, and where we believe a sex-based charter breach would be found.

However, the government has been clear that in circumstances where the courts have ruled policies to be charter compliant, or where situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultation.

These issues have to be addressed during the second phase of the reform of registration and band membership under the Indian Act. It is important to note that this second phase will be a collaborative process.

The government must develop and initiate consultations on the broader reform within six months after the passage of Bill S-3, as stated in the bill.

Despite supporting numerous amendments proposed and adopted by the standing committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment is to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985, of individuals entitled to status under previous Indian acts, including those who lost that status for whatever reason. In simple terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.

Although the simplicity of this approach may seem appealing, I would ask all members to consider this position cautiously. While I believe the amendment was put forward with the best of intentions, the way the clause is drafted creates ambiguity as to whether or not it would do what it is apparently intended to do. This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the Senate committee, and by the Indigenous Bar Association at the House committee.

In fact, Drew Lafond of the IBA testified about the wording of the clause, noting, “We cautioned against simply inserting that in its current form...You run into technical problems with the language by simply inserting that into a bill because you run the risk of there being inconsistencies or some unintended consequences with that.

If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non sex-based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the British Columbia Court of Appeal in the McIvor decision, where it was clear that this remedy is not required to make the provisions charter compliant.

The Supreme Court of Canada then refused leave to appeal that decision. This does not mean the government will not consider this as a potential approach in the context of a policy decision to address broader registration and membership reform. The government is open to considering this approach through stage II, and may be where it ends up, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the practical implications of implementing such an approach.

While arguing in the Senate committee for the need for further engagement on this clause, Senator Sinclair made that point noting: “The question becomes what impact will that have upon First Nation government. That is not a question we have the answer to...”

While the government is initiating that work now, preliminary estimates are not based on reliable data, and contain huge ranges of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest either end of the spectrum is what the likely impact would be, but to note the huge range of current estimates and the need for better data.

In addition to the current lack of understanding of the practical implications of such an approach, it seems obvious that the necessary consultations were not held.

Many communities expressed concerns that this approach could have serious repercussions for them.

Communities could find themselves with huge numbers of new members with little or no connection to their community and without meaningful prior consultation. I want to understand the perspectives and concerns of vast numbers of potentially impacted people who have not yet been asked their opinion on the “6(1)(a) all the way” clause.

I want to be clear that I stand in solidarity with the indigenous women who have been fighting on all of these issues for decades. I hear their pain, the hurt of receiving a letter in which they were told that their marriage made them a white woman.

Whether courts have determined these remaining issues as charter issues or not, I want to be part of fixing these ongoing problems. I want to know from the people who have been advocating and studying these issues for a very long time whether this approach is the one we should take and if so, whether this clause is the best way to implement that approach.

We must be careful not to repeat the mistakes of the past where, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire, unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right. The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed.

As many members already know, the deadline for passing this bill is July 3rd.

If we do not have legislation passed that addresses the Descheneaux decision before July 3, the section struck down by the court will be inoperative in Quebec. The practical implication would be that these provisions will then become inoperative within Canada as the registrar would not be in a position to register people under provisions found to be non-charter compliant.

Ninety per cent of status Indians are registered under the provisions struck down by the Descheneaux decision. These applicants would then be unable to access benefits that come with registration and membership. In addition to up to 35,000 individuals waiting for their rights to be granted through Bill S-3, we cannot lose sight of the thousands of individuals who would not be able to register if the court deadline passes and the provisions noted above become inoperable.

I urge all members to act responsibly and to take into account the urgency with which we must act to pass this bill.

I ask all members to send the bill to committee swiftly so that it can be amended and sent back to the Senate in a form that delivers on the rights of 35,000 people now, and allows the government to begin the broader reform in a way that respects our duty to consult, international documents such as the United Nations Declaration on the Rights of Indigenous Peoples, and the need to get this right through the stage II process.

If this clause is interpreted in a way that implements the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non-sex based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the B.C. Court of Appeal in the McIvor decision where it was clear that this remedy was not charter compliant.

I ask again that the House send the bill to committee now so that we can amend it. Then we can begin this very important work of stage II where we can get rid of all the inequities in the Indian Act, once and for all, and finally get this right.

Indigenous Affairs

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Indigenous and Northern Affairs]

Mr. Speaker, my colleague knows very well that we are committed to ending sexual discrimination against indigenous women. He also knows that it is necessary to pass Bill S-3 in the House of Commons in order to ensure that thousands of people who are currently being denied their rights in Canada gain rights.

When members opposite were in government, they fought indigenous women on sexual discrimination for years in the courts. Our government is acting on it. We have withdrawn the appeal submitted by the former government and we are going to do the right thing.

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Indigenous and Northern Affairs]

Mr. Speaker, fighting discrimination is a priority for our government and ending sexual discrimination against indigenous women is a priority as well. We are tackling this on two fronts.

The first stage is Bill S-3. That bill will take an approach to reform registration, membership, and citizenship in partnership with indigenous people. The second step that we have adopted will be to immediately engage in formal consultations with indigenous groups and those impacted by discriminatory—

Canada Elections Act

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, in June, typically we sit late to deal with very important legislation like budget implementation acts, and gender equity, which we have not talked about yet, Bill S-3, that has come from the Senate. Instead tonight, we are sitting here until midnight dealing with two problems that the Prime Minister created himself. We just finished debating one bill in terms of how he had to create equity among his ministers because he said he would have an equitable minister situation, but he actually did not.

We are now debating a bill about political fundraising that is a problem he created but he has not fixed with the bill. It is a bit of razzle-dazzle to say we are going to be more open and transparent, but the bottom line is that he is still going to have those cash for access fundraisers, and that is what the problem was.

I can say with certainty that former prime minister Stephen Harper never had cash for access fundraisers. If there were ever a time when ministers by mistake ended up at an event with stakeholders, they immediately left and paid back the money.

The Liberals have been shameful in their cash for access, and they have introduced the bill and are trying to bamboozle the public by saying they are doing a better job and are going to be open and transparent. They have not fixed the problem, and they should be ashamed.

Business of the House

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

Mr. Speaker, this afternoon, we will continue the debate we began this morning on the NDP opposition day motion.

This evening, we will return to Bill C-24, an act to amend the Salaries Act and to make a consequential amendment to the Financial Administration Act. Following that, we will begin second reading of Bill C-50 on political financing.

Tomorrow will be dedicated to debating Bill C-44 on the budget.

As for next week, our hope is to make progress on a number of bills, including Bill C-6 concerning citizenship; Bill C-50 respecting political financing; Bill C-49, transportation modernization; and Bill S-3, amendments to the Indian Act.

Finally, next Monday, Tuesday, and Wednesday shall be allotted days.

As the member very well knows, I always look forward to working with all members. I look forward to continuing our conversation.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Thank you to the minister and to the staff for all of you participating in this historic hearing about Bill S-3. I appreciate your attention and your co-operation, our sincere thank you, meegwetch.

For the committee members, I would just like to do a Bill S-3 reminder, a reminder that if members are wanting to prepare and submit amendments to get in touch with legislative counsel as soon as possible. If the committee proceeds clause by clause on Bill S-3 on Thursday, the 15th, which is in our schedule, I would ask that members submit their final amendments to the clerk by Tuesday, June 13. You can also do it on the floor but it's better if it's in a more formulated process so that the comprehensive packages can be prepared for our Thursday meeting.

Cathy.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you for that clarification.

My next question I want to ask again, and it's my third time asking, are you confident that Bill S-3, that you are proposing the committee accept, will eliminate all known sex-based inequities in the act?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Absolutely. Nathalie is the registrar, and they are in the process of hiring extra resources to deal with this group of people who will receive status because of Bill S-3.

Nathalie, did you want to add something?

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

That's not a lot of time.

When is phase two going to be rolling out? Obviously, we want to get Bill S-3 through the House shortly. When does phase two start?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

The issue, Romeo, for even the early conversations, is that there are other inequities in the Indian Act, like enfranchisement. There are a number where we will have to get the data, and we'll have to figure out how we implement this. That is what phase two is about. We want to get rid of all of the inequities in the Indian Act. These in Bill S-3 are the ones the court told us to do, and we did even more than the court asked.

Now we have to go on and get rid of the rest of them, and I am committed to doing that.