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.

[Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development]

Thank you, Madam Chair and honourable members.

My name is Martin Reiher, and I am the assistant deputy minister of resolution and individual affairs at the Department of Indian Affairs and Northern Development. Joining me today are: Candice St-Aubin, executive director, new service offerings; Nathalie Nepton, executive director, Indian registration; as well as Karl Jacques, from the Department of Justice.

Thank you for the opportunity to give you an update on the government's response to the Superior Court of Quebec's decision in the Descheneaux case and bring you up to date on new developments since your last meeting on this bill, which was held on November 21 of last year.

As you will recall, in August 2015 the Superior Court of Québec ruled, in the Descheneaux decision, that key Indian registration provisions affecting 90% of the registered Indian population under the Indian Act contravened the Canadian Charter of Rights and Freedoms by perpetuating differential treatment in entitlement to Indian registration between a woman and a man and their respective descendants.

In response to that decision, the government announced a two-stage approach. The first stage involves legislative amendments through Bill S-3, which will be followed by a process on broader issues related to registration. That will be a collaborative process with first nations and other indigenous groups.

Bill S-3, introduced in the Senate on October 25, 2016, will remedy situations of known sex-based inequities in registration. For the purposes of Bill S-3 we refer to known sex-based inequities as situations that are solely sex-based and have been found to be discriminatory by the courts or are similar to such situations. Bill S-3 is therefore not restricted to situations in which a court has already ruled but extends to situations in which the courts have yet to rule and where it is clear that a sex-based charter would be found.

During the deliberations of your committee and of the Standing Senate Committee on Aboriginal Peoples, witnesses and members of both committees expressed concerns about whether BillS-3 addressed all possible situations of sex-based inequities, as well as concerns regarding the level of engagement with first nations and impacted individuals. The Standing Senate Committee on Aboriginal Peoples suspended the study of the bill and requested that the government seek an extension to continue engagement on issues within the scope of the bill.

On January 20, 2017, the Superior Court of Quebec granted a five-month extension to remedy the discrimination identified in the Descheneaux case.

That extension has enabled us to begin a mobilization process and ensure that justice will be done as quickly as possible for some 35,000 individuals who will become eligible for Indian registration once Bill S-3 is passed.

As part of a letter sent to you on February 6, 2017, we shared with you a four-tiered action plan that was developed to guide the engagement activities during the short period of time provided by the court, a plan that built on the engagement sessions held in the fall.

I would now like to provide you with an overview of additional engagement activities that were held. The government was able to conduct 10 additional engagement sessions from January through April 2017. Bilateral discussions were held with the Canadian Bar Association, the Aboriginal Legal Services, and the Feminist Alliance for International Action.

The department provided support to the Native Women's Association of Canada to design and lead a series of engagement sessions with its provincial and territorial member associations, and their report was provided to this committee. The department also provided support to the Indigenous Bar Association to complete a review of the bill to identify situations of sex-based inequities not captured originally in the bill. The report was also shared with this committee.

Finally, technical discussions were held with legal representatives from the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada, the Indigenous Bar Association, and the plaintiffs' legal counsel in the Descheneaux case.

We know that even with this extension, there was not enough time to truly consult, and we acknowledge the tremendous effort and long hours that organizations put into this work. We heard about a wide range of issues through these different fora, some within the scope of Bill S-3 and others falling outside.

What is evident from these discussions is that people are very passionate and committed to addressing issues of inequity in administration. At the same time, it was highlighted that jurisdiction over Indian registration and band membership should not remain under the government's control.

As mentioned earlier, we provided support to the IBA and NWAC to review the bill. In their reports, issues such as unstated paternity and the 1951 cut-off were flagged, as well as amendments to avoid inequities that would be created by Bill S-3 in its original state.

The government has heard recommendations from this extended engagement regarding outstanding sex-based inequities. During the study of the bill at the Senate committee we welcomed a number of important amendments to the bill, which now addresses some of the situations flagged.

Amendments were made to address further groups identified by the IBA that would be discriminated against based on sex if the original bill had been passed. The committee also adopted an amendment to the bill regarding the issue of unstated paternity, which will enshrine into legislation additional procedural protection as contemplated by the Ontario Court of Appeal in the Gehl decision.

The committee passed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to provide an update on progress towards broader reform.

Lastly, I would like to speak to the amendment—referred to as 6(1)(a) “all the way”—adopted in committee, adding subparagraphs (a.1) and (a.2) to a new paragraph 6(1)(a) of the current Indian Act.

The government is unable to support this amendment, first because as drafted it is unclear and in contradiction with some of the provisions of the Indian Act, and second because its intended effect puts it outside the scope of Bill S-3, which is deemed as addressing known sex-based inequities. The amendment, in fact, contradicts the current state of the law by granting a remedy explicitly rejected by the Court of Appeal of British Columbia in its 2009 McIvor decision as not being in line with charter requirements.

The amendment is also in contradiction to subparagraph 6(1)(c.1)(iv) of the Indian Act, a provision that was not struck down by the courts in the Descheneaux case and is still in the Indian Act.

Moreover, by purporting to provide an entitlement to registration to all direct descendants born prior to 1985 of individuals previously entitled under the old Indian Act, the intended effect of the amendment would affect descendants of individuals who were enfranchised not only due to marriage but also for reasons unrelated to their gender.

Finally, the amendment would not appear to grant membership to the individuals it targets.

Such a broad amendment casts the net much wider than what is required to achieve the goal of Bill S-3 and would have wide-ranging, unforeseen implications. More work is required to understand the implications, and we wish to have more discussions with first nations partners on the best way to address these broader issues.

To that end, stage two will begin, following the coming into force of Bill S-3, and will be the opportunity to examine the broader issues relating to registration, membership, and citizenship, with the objective of identifying options for future reform.

In conclusion, I would like to highlight the consequences of not passing the bill before the revised court deadline of July 3. Let's not lose sight of the individuals directly affected by this bill. About 90% of the registered Indian population is registered under one of the provisions struck down by the court in Descheneaux. As you know, if Bill S-3 is not in force on July 3, these sections will be inoperative in Quebec, and the practical implication for the registrar is that she would not be in a position to register people under those provisions in the rest of the country.

We must ensure that we do not deny justice to the plaintiffs and to the other 35,000 individuals affected by the decision, while also ensuring that meaningful consultation with indigenous groups is conducted adequately to address other complex matters. Consistent with Canada's commitment to reconciliation and a nation-to-nation relationship with indigenous people, the minister gave her personal commitment to co-designing a process with indigenous people, including communities, impacted individuals, organizations, and experts to deliver a substantive report.

Thank you.

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

Madam Chair, on that particular point, as you know, of course, we're seized with Bill S-3 and the suicide study. We're not looking at the land claim initiative until into the fall. I propose that we perhaps extend that deadline even a little bit further. I think that would allow for some opportunity to get some strong witnesses. I don't see any negatives to perhaps looking at a two-week extension from your proposed date.

[The Chair, Liberal, MaryAnn Mihychuk]

Good morning, everyone. Welcome to our committee.

I would like to start by saying that we are on the traditional territory of the Algonquin people and that these lands are unceded.

Pursuant to Standing Order 108(2) and the motion adopted on Wednesday, October 26, 2016, the committee is resuming its study on the subject matter of Bill S-3, an act to amend the Indian Act (elimination of sex-based inequities in registration).

On another matter, we did not receive many witness suggestions from committee members for the study on specific claims and comprehensive land claims, so I propose that we extend the deadline to June 8 for you to forward, to the clerk, witnesses and site visits.

Ms. McLeod.

Indian Act

[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 first time.

(Motion agreed to and bill read the first time)

Message from the Senate

[The Deputy Speaker, Bruce Stanton]

I have the honour to inform the House that messages have been received from the Senate informing this House that the Senate has passed the following bills, to which the concurrence of the House is desired: Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration); and Bill S-5, An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts.

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 debate on the Conservatives' opposition motion. This evening, we will proceed with Bill C-45, the cannabis act, at second reading.

Tomorrow morning, we will commence report stage of Bill C-44, the budget. In the afternoon, we will return to Bill C-45.

Our hope for Monday and Tuesday is to send Bill C-45 to committee, and also to deal with report stage of Bill C-44. Other bills for next week include the Senate amendments to Bill C-6, the Citizenship Act; and Bill S-3, provided the bill is passed by the Senate.

Should time permit, we would also like some debate on Bill C-49, transportation modernization; and Bill C-24, to amend the Salaries Act.

We have had a conversation among House leaders. I look forward to continuing those conversations, and I will do my best to report to this House the information that I have, and we will do our best to work well together so that all members can do the good work that we are sent here to do.

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

No, I think what we're saying is that if we were to ask for an extension, it would be in order to get the work of this bill through the two houses in a timely fashion. I think we do not believe we'd be granted an extension in order to deal with all the other inequities. I think that is the advice that we've been given, that it needs to be basically the ballpark of what the plaintiffs argued. In order to seek justice for those plaintiffs, that would be the purpose of an extension.

We're very grateful that because of the sibling issue in Bill S-3, the Indigenous Bar pointed out this other group that will lend itself to an amendment. With that, we do believe we will have a bill that will deal with what the court asked us to do.

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

To go back to your comment that you need to do the consultation and then the committees do their work, we're not the environment, and I absolutely agree. Unfortunately, we've seen with Bill S-3 that this is exactly what's happening: the consultation happened after the legislation was drafted. In this case, luckily, it came to committee simultaneously while it was in the Senate, and certainly the flaws are coming very much to light. Again, I look at Mr. Descheneaux's lawyer with his four pictures of very inadequate responses of the legislation.

We've had a committee. We've had expert witnesses. The vast, vast majority of them have all indicated that they believe there are still flaws. We're not privy to whether it will come from the Senate with a minor fix or not, but the advice to this committee by the vast majority of witnesses from across the country is to take a little bit more time, get this right, ask for the extension.

The position you've taken at the table today is that you're not going to do that. So what all these witnesses have said to us is something that is not, you believe, the way to go forward. Whether it was National Chief Bellegarde or whether...and I can go through the list. You've seen the testimony.

What you're telling us today is that, really, it's very nice that they came, but we're going to go forward, just as you sort of went forward with the drafting without their input. Is that what we're hearing today?

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

Minister, we heard from most of the witnesses that Bill S-3 is flawed. Will you listen to first nations and ask for an extension, or will you ignore first nations' request to have an extension requested?

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

Thank you.

I asked that question, Madam Minister, because already 2017 is pretty close for me and I notice at what a snail's pace the Human Rights Tribunal decision is being implemented by your government. After one ruling by the Canadian Human Rights Tribunal and two subsequent orders, we're still not where we're supposed to be in that decision. That's why I'm asking if you're going to move fast on this one.

My problem with the present bill, and I want to get to Mr. Reiher on this one afterwards, but the first one is you're asking us.... There has been consensus by all the panellists and witnesses on this question, that this bill from the Senate is still discriminatory. It is still not charter compliant totally, and you're asking the members of this committee to stand up and support this bill. You're asking me to go against my duty as a member of Parliament to stand up in the House and uphold the rule of law.

Your colleague, Mr. Carr, has certainly a different understanding of what the rule of law is. He's thinking police. I'm thinking something else here.

The rule of law according to the Supreme Court of Canada is upholding the Constitution in this country and in that Constitution there's the Charter of Rights and Freedoms and in that Constitution there are section 35 aboriginal treaty rights.

You're asking me to do the contrary of what my duty as a member of Parliament is by suggesting that I stand up in support of Bill S-3.

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

We've heard that in so many things, that the national organizations have important people there with policy. What we've heard very clearly is that people want us to be able to talk directly to the people affected, the communities, the community organizations that are the most affected. Even in Mr. Descheneaux's own community, there are many people who will be left behind as Bill S-3 goes through.

Talking to those people, I think will be very important in actually hearing what they have to say, such that they don't have to go to court to get their rights. We want to make a good policy decision that will get rid of all of these discriminations and inequities that are still in the Indian Act.

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

Thank you so much. I'm pleased to be back to discuss Bill S-3, acknowledging that we're meeting on the traditional territory of the Algonquin people. I appreciate this opportunity to meet with you to explain the government's proposed approach to dealing with the Descheneaux decision.

I'm joined by Indigenous and Northern Affairs Canada officials Joëlle Montminy, who you know as the assistant deputy minister, resolution and individual affairs, and Nathalie Nepton, the executive director of Indian registration and integrated program management. She is the Indian registrar. We are trying to put her out of work. We are trying to get this business returned to first nations themselves. Also with me is Candice St-Aubin, executive director, resolution and individual affairs, and from the Department of Justice, Martin Reiher, general counsel.

First I want to pay tribute to the many courageous first nations women whose tireless work brought these matters to light. They are women like Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bédard, Senator Lovelace Nicholas, and Sharon Donna McIvor. We would also like to recognize Stéphane Descheneaux, Susan Yantha, and Tammy Yantha, whose courageous fight will eliminate the discriminatory treatment of tens of thousands of people.

I want to thank the committee for your tremendous work on this bill under challenging circumstances.

The Senate committee has also done tremendous work during its studies for which we thank it. Hearings of the Senate committee on aboriginal peoples have identified one further group that should be included in this bill, and I believe it will be included through an amendment introduced in the Senate.

Meeting the court deadline of February 3 required us to make difficult choices about the scope of the bill and to balance the necessary time for engagement with indigenous people and that for parliamentarians to discharge their responsibilities.

The Prime Minister and this government have committed to renewing the relationship between the crown and indigenous people. This means, whenever possible, working in partnership to resolve issues outside of the courts. This is why the government decided to withdraw the appeal of the Descheneaux decision, which we inherited when we came into office, and to then move immediately to remedy the inequities highlighted in that decision as well as other known sex-based discrimination within registration under the Indian Act.

There's no question that the complexity of the issues that had to be remedied combined with the court's deadline for legislation significantly limited the government's ability to engage with first nations. Mistakes were made, including my department's failure to directly engage with the plaintiffs. I have taken action to ensure that does not happen again. I've now personally spoken with each of the plaintiffs and have committed to them that they will be meaningfully engaged as we move forward in designing the process for phase two.

Despite this, I still believe that passing the reforms contained in Bill S-3 and proceeding with a more broad-based collaborative approach to address other more complex issues is the fairest and most responsible way to proceed.

We need to remedy these sex-based inequities before the court-imposed deadline.

This is not just about the plaintiffs but also about up to 35,000 other individuals who are currently being denied their rights. Witnesses have argued that this bill should simply be amended to deal with other potential forms of discrimination. Addressing other issues related to potential inequities in registration would have profound impacts on indigenous communities. We all know that repeated unilateral decisions made by the federal government regarding indigenous peoples have often had disastrous unintended consequences.

Dealing with the issues raised here will require extensive consultation with communities about impacts far more complex than just ensuring adequate resources, including those involving fundamental issues such as the cultural integrity of communities.

The Prime Minister and the government have been very clear that, to achieve their shared goal, Canada and indigenous peoples must work in partnership to build consensus and jointly develop solutions.

This is at the heart of why we have implemented a two-stage approach in our response to Descheneaux. A number of witnesses have also suggested that the solution to the limited time for consultation is simple: request a court extension. While I understand the preference to deal with all of these important issues at once, this is simply not an option within the time provided by the court even with an extension.

The length of any such extension would be extremely limited, effectively three to six months. Taking into account the cabinet legislative processes that would be part of that extension, that would provide minimal additional time to consult. In fact, it's very likely that at the end of the process, we would have the same bill before Parliament with little or no change.

I understand the cynicism of indigenous people and parliamentarians about whether the government will follow through on phase two, and even if we do, whether it will lead to meaningful reform.

Governments of all stripes have failed to follow through on such promises for decades.

I am giving you my word that phase two will be launched in February 2017. This process not only will be jointly designed with first nations, but will include the input of experts and those who have had rights denied by this archaic and colonial system. I can assure you that we will include truly inspiring individuals, such as Sharon McIvor, Jeannette Corbiere Lavell, and Senator Lovelace Nicholas.

Phase two must engage with a broad group of people to ensure future attention is informed by perspectives from everyone who may be impacted. There will not always be consensus, and the government may need to make tough policy decisions in the interests of protecting rights, but those decisions will not be made unilaterally without the input of all those affected.

However, I urge you to support the current bill and provide immediate justice for up to 35,000 impacted people. I would also draw your attention to witnesses such as the Congress of Aboriginal Peoples, the Native Women's Association, and Jeanette Corbiere Lavell, who have said that Bill S-3 should be passed.

I commit that immediately after this important step we will move forward in partnership and in a good way to achieving broader reform together, and that would be the policy reforms that are required. In your own words, in final goals, we will, as I have said, put the registrar out of work.

Thank you. Meegwetch. Merci beaucoup.

[Don Rusnak, Liberal, Thunder Bay—Rainy River, ON]

Ms. Gabriel, what you said in your seven-minute presentation really spoke to me because I think it's what we need to be doing at this committee, what we need to be doing as a government. The Indian Act is something that was designed to destroy our people. Tinkering with it or doing certain things to it does nothing to move our people forward. We're just perpetuating all the problems that have existed in our communities for far too long.

Having said that, I worked in many isolated first nations communities with people who have absolutely been destroyed by the Indian Act, who are absolutely dependent. I've asked this question of department officials—and I'm sure the committee will get the answer on it: Who are these 40,000 people who the minister said today are going to be affected by Bill S-3, and who are the people who may potentially be affected by certain amendments?

Then I ask myself, there's a finite set of resources within the Department of Indian and Northern Affairs, so are these people who are currently under the Indian Act who absolutely depend on the Indian Act going to be affected by a resourcing problem if more people are admitted for status under the Indian Act?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you to the panel for your very candid assessments of Bill S-3.

We certainly take no offence, Ms. Gabriel. You remind us of the reasons we're all here, especially as MPs, in order to work on such an important issue.

I'm a little conflicted here, I must admit. As we have very limited time, I'll be really specific with my question. I also want to be able to yield some time to my colleague from Thunder Bay. In the time I have, though, I want to ask this specific question of each one of you, the three organizations as well as the two individuals who are appearing.

As we see Bill S-3, do we pass it, with the commitment from the minister and the department to go into phase two consultation?

Do we amend it? If we do amend it, what are the specifics that...? I know you've all mentioned it, but perhaps you can give us very specific points.

Do we not amend it and just go into phase two, knowing full well that it will be in violation of the ruling?

I know it's probably a difficult position to put you in, but I think this will be helpful for us as we deliberate.

[Mary Eberts, As an Individual]

Thank you very much for inviting me. I also offer thanks to the Algonquin Nation, which hosts all of us on its territory.

I have been counsel in many cases where women or women and their children have sought to challenge the denial of status under the Indian Act. I have also made representations to this House and to the Senate on behalf of the Native Women's Association of Canada and on behalf of Indian Rights for Indian Women on the issues relating to registration and women.

On this occasion, I appear as an individual. I do not speak for any client.

I would like to add some recognitions to those offered by Dr. Palmeter. In the Descheneaux case, two other plaintiffs were also women: Susan Yantha and her daughter Tammy. They challenged the inability of a woman to pass on her status to a child born out of wedlock in certain circumstances. I would also like to recognize or complete the recognition of Mary Two-Axe Earley by recognizing Jenny Margetts and Nellie Carlson, who helped found the western branch of Indian Rights for Indian Women.

I have two points to make today. Bill S-3 is under-inclusive, and the process being used for amending the registration provisions by way of Bill S-3 is not in accordance with the recommendations of Madam Justice Masse.

I begin with some comments on the origins of discrimination against women, which I ask you to bear in mind as you consider whether to endorse a narrow approach to remediation of this law, as has been installed in Bill S-3, or a broader approach to remediation of the law, as has been recommended by Dr. Palmeter, Sharon McIvor, and others.

It's crucial to remember that one of the main purposes of the Indian Act was to hasten the “civilization”—meaning assimilation—of aboriginal people. One of the primary mechanisms for achieving assimilation was the definition of “Indian” included in the act. Anyone not within that definition was, because of that exclusion, assimilated, that is, no longer the responsibility of the Government of Canada.

Why was this done? We should never forget. Even when there was a treaty about land, the first nation was assigned its land and the land was administered under the Indian Act. The connection between Indian land and the Indian Act has a key consequence. If the number of status Indians could be reduced to zero, then the connection between aboriginal people and their lands would be severed. There has always been a link between the disentitlement of women from conferring status in their own right and the coveting of Indian land.

Historically, women were the primary targets for exclusion from the act. One reason for this was the male privilege that reigned supreme in the Victorian era, when the act was first conceived. Another was the willingness to override indigenous laws about membership. These two reasons acted together. The Indian Act enforced the Victorian family with its paterfamilias, overriding the rules of many indigenous cultures that had the woman as the source of membership in the nation. For example, the Tsimshian “stick law” provided that a woman and her children were always members of the nation, welcome back even after they had separated from it through marriage or for other reasons.

The one exception to this male hegemony over status was the right of the Indian woman to confer status on a child whom she bore out of wedlock. This was not an unqualified right. It was possible under many versions of this legislation for the child's entitlement to status to be challenged. When the case of Martin v. Chapman held that a male Indian could also confer status on his child—namely, his son born out of wedlock—that right did not carry with it any possibility that someone could protest that the father was not an Indian.

This, too, is a sign of disproportionate power for the male under the Indian Act system. Simple acknowledgement of the child as his own, whether or not it's true, would confer status on the child. In the “unstated” or “unacknowledged” paternity rules under the present act, we see a powerful restatement of this male privilege, where withholding that acknowledgement, or the impossibility of getting it, prejudices the child's acquisition of full status.

Each time reform of the Indian Act holds back on giving full rights to women, either in the present day or vis-à-vis past rules, we are perpetuating the system that used disinheritance of women and their children as a tool of assimilation. If we continue this assimilationist approach in the construction and administration of the Indian Act, we are continuing the approach of the colonizer, so well summed up in this statement by Duncan Campbell Scott, then deputy superintendent of Indian Affairs. He said this in 1920:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

Let me mention some areas of under-inclusiveness. Let me begin by saying I agree with Dr. Palmater and Sharon McIvor about the practicability and the wisdom of amending 6(1)(a) for all purposes. I also agree with the CBA in its recommendation about clause 8. I would refer you to the brief of the Grand Conseil de la Nation Waban-Aki for some further instances where Bill S-3 does not fulfill its mandate.

If I may, I have one last point about consultation. I agree with the witnesses who have said that consultation is not appropriate in a case where you are remediating violations of equality rights. Bill C-31 was the product of consultation and we see now, 30 years later, people are still litigating the unconstitutionality of what that consultation produced.

Thank you.