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.

[Dr. Pamela Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

[Witness speaks in Mi'kmaq] Pam Palmater. I'm from the sovereign Mi'kmaq Nation on unceded territories in Mi’kma’ki.

I want to thank you for allowing me to come today to speak to some of my concerns with Bill S-3. First, I think it's important to acknowledge that we're on Algonquin territory. Second, we're here today for the efforts of indigenous women who have continued this battle for many decades, like Mary Two-Axe Early, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, Sandra Lovelace, and now the second generation of litigants fighting for gender equality for indigenous women, including Jeremy Matson, Lynn Gehl, Nathan McGillivary, and of course, Stéphane Descheneaux.

My primary concerns will be laid out in the submission that is being handed out.

The most important one is that Bill S-3 does not address all known gender discrimination. It doesn't. You've heard from other witnesses who have given very specific examples. My examples are not exhaustive, but they include grandchildren who trace their descent through Indian women who married out pre-1951, the illegitimate female children and their descendants who trace descent from Indian men born pre-1951, and also the differentiation and hierarchy that was created between paragraph 6(1)(a), the male category, and paragraph 6(1)(c), primarily the female category. They have come to be known as the “real Indians” and the “wannabe Indians”. In fact, 6(1)(c)s are the same in descent; they just happen to be indigenous women and their descendants.

A problem that also causes gender discrimination is with Bill S-3. They've now included even more complex differentiation in terms of categories. You have proposed paragraphs 6(1)(c.01), (c.2), (c.3), and (c.4). This also disproportionately impacts the descendants of Indian women who married out. Here's the problem with that. There is no legal or policy justification on behalf of Indian Affairs to have everyone identified in this way.

Programs and services are addressed through contribution agreements based on a membership or the status Indian registry. They never have to record whether you get health, if you're a 6(1)(a), (b), (c), (d) (e), (f), or 6(2). There's no justification for it, so then what's the alternative reason for it?

What it does is it places a scarlet letter on women and their descendants for having committed the sins of marrying out, having had illegitimate children, or worse, being born female. That's a scarlet letter that doesn't attach to Indian men and their descendants who have married out and have intermarried for many successive generations.

The other issue is the hierarchy of Indian status between subsections 6(1) and 6(2), those who can pass on status and those who can't. Those in the “who can't” section are somehow seen as defective and cannot pass on their status to others. It disproportionately impacts indigenous women, the children of unwed Indian mothers who cannot name the father, or who will not name the father because of the reasons that LEAF annotated, and also when fathers deny paternity or when they refuse to sign application forms. INAC has given the power to Indian men to have an impact on the children of indigenous women in this way. Last is the denial of compensation to women who have suffered discrimination for so long.

Bill S-3 also does not provide adequate protection for membership. You'll recall that pre-1985, Indian status and membership is synonymous. Even after Bill S-3, it will only be synonymous for Indian men, not for Indian women. Bill C-3 didn't provide those protections, and now Bill S-3 doesn't provide those protections.

The constitutional protection for gender equality is just that. Section 15 of the charter is equality for men and women. Subsection 35(4) of the Constitution, for anyone who wants to exercise aboriginal treaty rights, must be guaranteed equally between men and women. Article 44 of UNDRIP, which this government has said it's going to implement, also says there's equality between men and women. There is no legal option to negotiate, consider, consult, or agree our way out of gender equality.

If you look at the traditional laws of indigenous nations in this country, I have yet to find one in all of my research that promotes gender inequality.

Canada cannot proceed to phase two without addressing all gender inequality. It acts as a legal prerequisite. You cannot talk to our first nations without our indigenous women and their descendants there. It is unconstitutional. It violates all of our traditional laws, and it would act as a legal barrier to even starting the conversation in phase two.

Bill S-3 also needs to be accompanied by funding for first nations. You'll know that INAC has set aside millions of dollars for itself to deal with Bill S-3 applications, but it didn't set aside a single cent for first nations to deal with this at the community level.

Canada obviously failed to engage in any sort of legal consultations by its own admission.

The impact of Indian registration, as we discussed, is very serious. It's not just about programs and benefits; it's a root cause of murdered and missing indigenous women. It's lack of access to elders, language, ceremonies, and even access to powwows. There are powwows children cannot attend unless they have a status card, no matter how they were raised or whether they were raised in a first nation community.

It also won't address any of the pending litigation. Sharon McIvor's litigation is still outstanding. The Descheneaux cases are still in the hopper. There are Lynn Gehl's, Jeremy Matson's, and Nathan McGillivary's cases, and the Canadian Human Rights Commission has many. And of course, there's the Bill C-3 class action that was brought about because of gender discrimination.

My recommendations, very quickly, are for paragraph 6(1)(a) all the way. Every indigenous man and woman who had children prior to 1985, married or not, should all get the same kind of status so that indigenous women and their descendants don't have to wear the scarlet letter of paragraph 6(1)(c). You need rightful compensation for those who have been knowingly denied gender equality since 1982. For pre-1982, Justice said that's a barrier; there have been legal consultations.

My last word to you is that if we do not address gender discrimination now, in all likelihood, it won't happen. In phase two, they want us to deal with aboriginal treaty rights, nation to nation, getting rid of the Indian Act, and the minister has said that her standard for that is absolute consensus. There will never be, in the history of humanity, consensus on gender equality, but that's the law of the land.

Thank you.

[Krista Nerland, Associate, Olthuis Kleer Townshend - LLP, Women's Legal Education and Action Fund]

Thanks, Kim.

LEAF is focusing our submissions today on what the government calls phase one, essentially Bill S-3 before you. LEAF supports the broader nation-to-nation conversation about moving beyond Indian Act status towards first nation citizenship that will follow. In the meantime, it's our position that it's not acceptable to leave in place a status regime that discriminates against indigenous women. With that in mind, we'd like to make five basic points about the bill today.

First, the Native Women's Association of Canada I think has already explained to this committee that indigenous women were left out of the development of this bill and that it was presented to them as a fait accompli . This is a mistake. It should go without saying that indigenous women's groups should be partners in remedying sex discrimination against indigenous women under the Indian Act.

Second, contrary to its title, this act does not remove or eliminate all the sex discrimination in the Indian Act status provisions. It's at best a partial response. For example, the bill seems to allow for the granting of lesser status to certain people born prior to 1951 who trace their Indian status through the female line. In addition, the status provisions, or more particularly the way that INAC implements them, impose a disproportionate burden on women who cannot identify the father of their children, for instance, because of rape, incest, or domestic violence. It leaves those women and their children without equal access to the status provisions under the act. This is sex discrimination and is prohibited by both section 15 of the charter and by international law.

In our view, Bill S-3 is an unfortunate replica of the narrow, piecemeal approach that Parliament took six years ago after the British Columbia Court of Appeal's decision in McIvor. If this bill passes as it is, we'll all be back here in a year, or two years, or five years, as another indigenous woman or one of her descendants has spent years before the courts trying to get equal access to status under the act. It is unacceptable, and it's inconsistent with the charter's substantive equality guarantee to force indigenous women and their descendants to endure the financial and emotional hardship of years of protracted litigation to address discrimination that we already know is in the Indian Act.

LEAF urges this committee to ensure that Parliament's legislative response to Descheneaux removes all sex discrimination from the status provisions now. This will be a strong foundation for the broader nation-to-nation conversation about moving beyond the Indian Act that follows.

Third, the best way to do this is to stop creating layers and layers of status that leave intact the old discrimination under the act. There are better options. Six years ago, after the decision in McIvor, the government proposed a similarly narrow and piecemeal reform bill, not unlike the one before you today. At the time, an amendment was put forth that effectively gave everyone status under an amended form of paragraph 6(1)(a) rather than creating more layers of inferior status. A provision like that would go a lot further to addressing the sex discrimination in the act, although it's worth noting that this would not address the discrimination against women who cannot or will not state the paternity of their children. That's something that needs to be addressed in addition.

Fourth, the Superior Court of Quebec's deadline of February 3, 2017 should not be relied on as justification for a bill that doesn't do that job. If you can't remove all the sex discrimination now, then you need to ask for an extension in order to ensure that, as it goes through, the bill addresses all of the discrimination that we know to be in the Indian Act.

Finally, LEAF urges the government to ensure that first nations communities and organizations have both the land and the resources they need to support new registrants. What this means can't be determined unilaterally in Ottawa, but it needs to happen in partnership with those first nations governments and organizations.

By way of conclusion, I want to emphasize what's at stake for the people who are excluded from status as a result of these discriminatory provisions. It's not just about the material benefits, post-secondary funding, health. Although those can be significant, being denied status can also mean exclusion from community life, the denial of human dignity and self-worth, loss of band membership, and the ability to live on reserve. The United Nations Committee on the Elimination of Discrimination against Women has stated that these provisions in the Indian Act are among the root causes of violence against indigenous women in Canada. These harms are serious, and indigenous women and their descendants have already endured them for over 145 years. It's essential that the government get this bill right.

Thank you for allowing us to make submissions.

[David Taylor, Executive Member, Aboriginal Law Section, Canadian Bar Association]

Thank you. Good afternoon, Mr. Chair and honourable members.

I'm pleased to appear before the Standing Committee on Indigenous and Northern Affairs.

I'll give my presentation in English, but I would be happy to answer questions in French.

The CBA aboriginal law section is pleased to contribute to the Standing Committee on Indigenous and Northern Affairs' pre-study of Bill S-3's subject matter.

I would begin by recalling the words of Madam Justice Ross of the Supreme Court of British Columbia in her reasons at trial in McIvor v. the Registrar, Indian and Northern Affairs Canada:

...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children.

It is therefore not surprising that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.

One of our main points concerns the manner in which this bill was brought forward and is being considered by Parliament.

When Bill S-3 was introduced at first reading in the Senate, consultations with regard to the first phase of the government's response to the Descheneaux decision were far from over. While we understand that the Indigenous Affairs consultations regarding Bill S-3 were to conclude last Friday, December 2, it remains the case that moving forward in the legislative process while there were still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them, as required by the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the House are designed for the amendment of bills based on public feedback, the honour of the crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.

We are also concerned by clause 8 of Bill S-3, which precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal crown have been on notice since at least the 2009 decision in McIvor by the British Columbia Court of Appeal that the amendments to the Indian Act in 1985 did not entirely resolve the discriminatory aspects of the Indian status system and, in fact, created new discriminatory elements.

On this point, Madam Justice Masse held in Descheneaux:

The year is now 2015. The 1985 Act from which the discrimination arises has been in force for a little more than 30 years.

The general finding of discrimination in the 2009 judgment of the Court of Appeal for British Columbia in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished in the measures in the 2010 act. The discrimination suffered by the plaintiffs arises from the same source as the one identified in the case.

Canada was aware that work remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.

By continuing to withhold eligibility for Indian status from certain women and their descendants, government realizes a cost saving: controlling costs by having fewer members. The result of discrimination should not be an economic benefit to the government.

Removing clause 8 from Bill S-3 would change the financial incentive going forward and would send a clear message from Parliament that the government will not be given a licence to discriminate through absolution for the past consequences of its actions where government was clearly on notice through prior court decisions that its broader legislative scheme was not on sound constitutional footing.

As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of Bill S-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.

The subject matter of Bill S-3 should also be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broader review of this question.

Indeed, in the second-last paragraph of her reasons for judgment, Madam Justice Masse held:

Parliament should not interpret this judgment as strictly as it did the [Court of Appeal for British Columbia's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

Given the long history of discrimination involved in the Indian status system, the phase two process will benefit from timely parliamentary scrutiny long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.

In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory and contrary to section 15 of the charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly, the legislative process, both here and in the phase to come, should set its sights higher in an attempt to rectify the inequities that have long been identified in the Indian status system.

Those are our submissions.

Thank you.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you for the invitation to appear before you today on Bill S-3.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries, and academics, with a mandate that includes seeking improvement in the law and the administration of justice.

Our aboriginal law section consists of members from all parts of Canada specializing in aboriginal law. With me today is David Taylor, an executive member of that section. David will summarize some of the highlights from our brief and respond to your questions.

Thank you.

[The Chair, Liberal, Andy Fillmore]

Good afternoon, everyone. We'll come to order now.

This is the House of Commons Standing Committee on Indigenous and Northern Affairs. Today we're convening pursuant to Standing Order 108(2) to study the subject matter of Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration. We're meeting today, as we always do, on unceded Algonquin territory, and we're very grateful for that.

We have a very packed panel for the first hour, so we've asked our five speakers to limit their remarks to seven minutes each. That will leave 25 minutes for questions from the committee itself. I'll wave a yellow card so that speakers will know they have a minute to conclude, and then a red card to finish up.

I would ask you to do your very best to stay within the time limit in order to make sure we get some questions in and that everyone can be heard fairly. Without further ado, I'd like to introduce this panel of speakers.

First, from the Canadian Bar Association, we welcome Gaylene Schellenberg, Lawyer, Legislation and Law Reform, and David Taylor, Executive Member, Aboriginal Law Section. From the Women's Legal Education and Action Fund, we have Kim Stanton, Legal Director, and Krista Nerland, Associate at Olthuis Kleer Townshend - LLP. Appearing today as individuals are Pamela Palmater, Chair in Indigenous Governance, Ryerson University, Department of Politics and Public Administration, as well as Mary Eberts, and Ellen Gabriel.

Welcome to all of you. We're very pleased that you could join us today.

We will launch right into it with the Canadian Bar Association and its two representatives.

I invite you to share the time between you as you see fit within those seven minutes. You have the floor. Thank you very much.

Indigenous Affairs

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

Mr. Speaker, issues of registration, membership, and citizenship go to the heart of identity in community. Bill S-3 will correct known sex-based discrimination in Indian registration. We know that a real conversation needs to happen on these issues. That is why I have committed to launching a formal consultation on registration, membership, and citizenship early next year to deal with the other issues that are not in this bill. I look forward to hearing from communities from coast to coast to coast.

I am committed to finding a real reform forward, but right now 35,000 people can get their rights if this bill goes through, and—

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, today we are continuing with opposition day. Tomorrow the House will consider the report stage of Bill C-29, the second budget bill, and it will continue studying that bill Monday and Tuesday of next week.

For the remainder of the week, we plan to call the following bills: Bill S-4, the tax conventions legislation, and Bill S-3, the Indian tax amendment, provided we get these two bills from the Senate; Bill C-25, the business frameworks bill; and Bill C-30 concerning CETA. All these bills are at second reading.

It is my hope that parties will be able to negotiate on how to proceed in advancing these very important initiatives. Something I have committed to is working well with other parties, and I will continue to do that.

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

Thank you, witnesses. It's certainly very compelling testimony.

It's interesting that we're doing what they call a pre-study. I've been here since 2008, and typically we get bills that are well through their process. A pre-study is a really interesting way to have a discussion. I'm also looking at what's happening in the Senate right now.

To be quite frank, I think everyone here had some very compelling points. Mr. Matson, you indicated very clearly that discrimination is still there, as did Ms. McIvor, and then there's the bigger picture in terms of where we go.

We've come back in 1985; we've come back in case after case. I think we need to spend phase two looking at that big picture that you're talking about.

In phase one, which we're doing right now, Bill S-3, let's get the discrimination out so that this is fixed, so that we're not back here, not spending a lot more money in courts, not repeating this process that we've always done.

Having said that, with what has happened in the Senate and with what has happened here, I want to table my motion right now, which really is saying that the minister should ask for a bit of an extension and get this one right. I will just read it again:

That, in light of recent testimony the Committee has heard during its study of the subject matter of Bill S-3, An Act to Amend the Indian Act (elimination of known sex-based inequities in registration), the Committee: 1) suspend its study in recognition of the Bill's technical flaws and inadequate First Nations consultations; 2) resume its study once the Government of Canada has consulted with involved parties and ensured there are no technical flaws; 3) recommend that the Government of Canada request an extension on passing legislation from the Superior Court of Quebec, as recommended by Assembly of First Nations National Chief Perry Bellegarde; and that the Committee report this recommendation to the House.

Obviously we can debate this, but for me, the testimony is clear. We have to spend a bit of time fixing this. Phase two needs to be really focused on solving the big picture issues. Let's get discrimination out, and let's take our time to do it right.

[Sharon McIvor]

I'm unclear about what they want to consult about. Perhaps it's membership. I don't know.

I know that they don't have the right to consult about discrimination. No one has the right to say it's okay to discriminate. They did it for Bill C-31. They did it for Bill C-3, and it looks like it's their intention to do it for Bill S-3. Whoever they consulted is saying that it's okay to discriminate. We don't want any more. There are some that want more members, as well, but the consultation has never, ever been sufficient. I cannot think of any consultation in the last 50 years that has resulted in anything. You go and talk, and you do what you want to do anyway.

My immediate concern with Bill S-3 is that it seems that instead of taking out all the known discrimination in the Indian Act, the minister has now decided, “Well, we won't take it all out, even though we know it's there, and we'll consult with people about how we're going to do it.” It doesn't make any sense to me.

I'm not a big fan of consultation in this kind of legislation.

Yes, when you're looking at land, resources, all those kinds of things, absolutely. But on whether or not you should take discrimination against an identified group out of the Indian Act, consultation won't get you anywhere. You can't do it. You cannot consult and get somebody's agreement and then continue to discriminate, and then continue to discriminate while you're consulting.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you, Mr. Chair.

I would like to welcome all the witnesses appearing today.

Since I will be speaking French, I suggest that you use the earpiece for simultaneous interpretation.

Let's talk about Bill S-3, which is a government bill.

Based on the various testimony we have heard, it seems that each of you has reservations and considers it to be imperfect. This bill does all the same respond to a Superior Court decision. I understand that this is not our ultimate objective, but it is at least a first step.

I would like to hear your views on what the second phase of the government consultation process should include and what the result should be. The minister has pledged to hold this consultation to guide her, and the committee is meeting today to hear your views.

Mr. Matson, you may begin and give us your opinion.

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

I'd like to welcome our witnesses here today. Your testimony will be instrumental in our moving forward on Bill S-3.

It seems to me that the Bill S-3 consultations were very limited. Some were consulted and some were not, which poses a problem. If we want to get a real perspective of what first nations need and how they want to proceed, it seems to me that it should be coming from first nations, not from us.

If we had to change Bill S-3 to make it work, what changes are necessary so it will be all-inclusive and get rid of some of the issues we're hearing today? What changes would you like to see in Bill S-3?

We'll start with whoever wants to answer that, or I can hear from each individual witness.

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

Thank you for appearing before this committee today.

I tend to agree with a lot of what was said here today, but what I struggle with is that this is a very large country and we're dealing with this one issue as a pan-aboriginal issue because of the Indian Act.

The Indian Act was designed to control indigenous people across this country; we all know that. It's done a very good job of destroying communities. It destroyed my community. I'm the only first nation member of Parliament from Ontario.

From sitting here listening to witnesses testify either way about this piece of legislation, and other things we've heard here, the one thing that's clear to me is that certain communities are at different levels in terms of governing and in terms of capacity to control their own destiny.

This is my worry, and this is why I see the need for this change to the Indian Act. There are still communities that are so dependent upon the Indian Act that these changes will hopefully help these people—and hopefully we'll get the numbers from the department about where these people are coming from—so that they don't slip through the cracks.

They're at the very bottom of this country, and they need the support that comes from the Indian Act, because they don't have anything else. That's the reason I see the need for these changes, so that we bring them in and they have those benefits and protections.

But that's not what I see, going forward. I see our communities—and MP Gary Anandasangaree and I were with the Mississaugas where they signed an accord to co-operate and negotiate with the government as a nation. That's where we need to be going. Having an agreement over land, resources, and how that relationship is going to look is what first nations and other indigenous communities across this country, in my view, need to move towards.

But right now we're discussing Bill S-3, and of course your community is in a different position. It's great to hear that perspective at this committee, but what would you suggest we do as the government in respect of this legislation, understanding that it's not going to affect just your community but is going to affect all those other communities?

I'm not saying that this is right. We have to get away from the pan-aboriginal approach to dealing with communities, because the Mohawks are very different from the Cree in northwestern Ontario or different from the Tsleil-Waututh in Vancouver. The way I explain it is that in Europe people in northern Poland do not enjoy and like the same things and don't have the same culture and language as people in southern Spain, although they're all Europeans. We need to do things differently, and dealing with it under one department and dealing with our indigenous people across this country as a homogeneous society or cultural group is wrong.

What, given the situation we're in, would you suggest we do with this piece of legislation?

[Jeremy Matson]

As an individual, I wasn't privy to any information about nation to nation. I belong to a nation and I have a relationship with my nation. Just as I have a relationship with the crown and with section 6 of the Indian Act, I have my own relationship with my own nation.

Also, every family within the Squamish Nation is affected by Bill C-31 and Bill C-3 and now Bill S-3, so it's important to communities such as mine.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

My question was whether you think the way the government has handled Bill S-3 is consistent with the mandate letters that said to build a nation-to-nation relationship.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Were you aware that S-3 was being drafted?