An Act to amend the Indian Act (elimination of sex-based inequities in registration)


Awaiting royal assent, as of Dec. 4, 2017

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This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.


All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.


Dec. 4, 2017 Passed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
Dec. 4, 2017 Failed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (amendment)
June 21, 2017 Passed Concurrence at report stage of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)

Indian ActGovernment Orders

November 30th, 2017 / 5 p.m.
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Kevin Waugh Conservative Saskatoon—Grasswood, SK

Mr. Speaker, I think the shorter, the better. We have been dealing with this for a long time.

When I was talking to my friends from Saskatchewan earlier this week, they were talking about needing time to find their family trees. The Internet in northern Saskatchewan, and in fact, in northern Canada, is very poor. A lot of people want to do proper research on their family trees, if we are going to go back to 1869, which is the wish of many of them. I think that is why they wanted a little more of a timeline.

Yes, let us consult right away. Let us get the process moving. This is a good start. We are 85% there. We need to be at 100%, which means shorter consultations. Moving Bill S-3 along would certainly help.

Indian ActGovernment Orders

November 30th, 2017 / 5:05 p.m.
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Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Mr. Speaker, it is an honour to be standing on Algonquin territory.

I will be splitting my time with the member of Parliament for Burnaby South.

After much pressure, Liberals have a new Bill S-3 fix to end legislated discrimination against indigenous women, but only after consultations. This is not supported by the women who have been fighting this inequality in court for 40 years. It shows again that Liberals are not upholding their promise to respect indigenous people and to bring full gender equality.

I do not understand why a government that calls itself a feminist government needs to consult on whether indigenous women should have human rights, because they do. We want the Prime Minister and his government right now to remove all sex discrimination from the Indian Act.

Since its inception, the Indian Act has accorded privilege to male Indians and their descendants and disregarded female Indians as second class. To sum up where we are right now, despite unprecedented government promises of indigenous reconciliation and respect, Liberals are trading off human rights based on budget lines. Indigenous women who have been fighting 40 years in court for gender equality watched in dismay June 21, National Aboriginal Day of all days, as the Liberals gutted reforms that would have made the Indian Act less vile. These were moved by my colleague, the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou and others.

Canada's laws still say that indigenous people with a university degree, military service, or a white husband lose their Indian status. Would one not think that a government that pledged to a nation-to-nation relationship built on respect would want to remove all of those conditions?

“Indigenous women deserve the equality the charter is intended to ensure and protect”, said litigant Lynn Gehl, and they do. There is much support for the government ending all sex discrimination in the Indian Act. Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which clarifies state obligations on self-determination, including the right to determine membership. UNDRIP already has application in Canadian law.

Also, the United Nations Committee on the Elimination of Discrimination Against Women just a year ago called out the current government for the need to act on this file. It said:

...the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status...The Committee recommends that the State party remove all remaining discriminatory provisions of the Indian Act that affect indigenous women and their descendants, and ensure that aboriginal women enjoy the same rights as men to transmit status to their children and grandchildren.

It did not to set out a very long timeline or an indeterminate timeline. It did not say consult on it. It said that Canada, to uphold its international commitments on human rights, must remove all gender discriminations against indigenous women.

The government has failed, and it has given the House again a flawed bill.

After 40 years of litigation by indigenous women, many of whom are still alive, and indigenous lawyers who have been fighting alongside them, the government failed to ask them what they thought or have them inform the proposed legislation now before the House.

Here are two indigenous women lawyers, and I am paying attention to their words.

Pam Palmater, chair of Ryerson University's centre for the study of indigenous governance, said:

...this bill does not remedy gender discrimination. ...according to the numbers, it actually will only remedy about 10 percent of the known gender discrimination under the Indian Act, and that, by far, is not a bill that's acceptable.

Another indigenous lawyer, now the Liberal justice minister, was the B.C. regional chief of the Assembly of First Nations. This is what she told the House standing committee in 2010 on Harper's version of Bill S-3:

What this bill does not do is address the other Indian Act gender inequities that go beyond the specific circumstances of Sharon McIvor and Sharon McIvor's grandchildren.

This year, the Ontario Native Women's Association said:

By rejecting the “6(1)(a) All The Way” amendment to Bill S3 the federal government has betrayed its promise to Indigenous women. The amendment would have reinstated our sisters and removed all sex based discrimination from the Indian act.

Three warriors whom we are still informed by, these powerful indigenous women, litigated starting 40 years ago against both Conservative and Liberal governments repeatedly. Jeannette Corbiere Lavell litigated for 40 years and is not helped by Bill S-3. Sharon McIvor, litigant and now defence lawyer, asked why they would consult on whether they can continue to be discriminated against. Lynn Gehl, also a longtime challenger of this discrimination in courts, said that the minister of Indian and Northern Affairs is using consultation as a weapon. That is no way to move forward.

Many indigenous women's groups have called attention to the provisions of clause 10,another flaw identified in Bill S-3. With this clause, the government is justifying past discrimination and past violations of human rights. It acts as an incentive to allow the government to continue to discriminate with impunity until it chooses to address it or is forced to address it. It underscores the sense of colonial entitlement. It undermines the rule of law. The government cannot be given immunity for its conduct.

My colleague the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou moved two times, at committee and in the House, for the government to remove clause 10 on that basis and the government twice has voted it down.

Some of the up and coming women leaders are Shania Pruden, of Pinaymootang First Nation in Manitoba, and Teanna Ducharme, also known as Ayagadim Majagalee, a Nisga'a woman. They both were part of the daughters of the vote taking their seats in the House just six months ago and they both testified at the status of women committee, strong, powerful, young indigenous women speakers. The late Shannen Koostachin informs the work of the House so often. Helen Knott is a Treaty 8 activist on ending violence against women associated with mega projects such as the Site C dam, which again the government is letting indigenous women down on.

In their names our responsibility as parliamentarians is to say again we cannot afford half measures in this country anymore. Gender equality and first nations respect is the solemn promise of the government and of me and my New Democrat colleagues. We are going to keep working hard to keep those promises.

I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following:

“a message be sent to the Senate to acquaint Their Honours that, in relation to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), the House:

1. agrees with amendments 1 to 8 and 9(a) made by the Senate;

2. proposes that amendment 9(b) be amended by replacing the words “on a day to be fixed by order of the Governor in Council, but that day must be after the day fixed under subsection (1).” with the words “18 months after the day on which the order referred to in subsection (1) is made.”.

Business of the HouseRoutine Proceedings

June 21st, 2017 / 4:10 p.m.
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Waterloo Ontario


Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, I am seeking unanimous consent for the following motion. I move:

That, notwithstanding any Standing Order or usual practice of the House:

(a) if Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States, is concurred in at report stage later this day, when debate on the said Bill collapses at third reading, all questions necessary for the disposal of the Bill at that stage be put forthwith and successively without further debate or amendment, provided that, if a recorded division is requested, the bells to call in the members shall ring for not more than 30 minutes;

(b) Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be deemed read a third time and passed on division;

(c) Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act, be deemed read a third time and passed on division;

(d) a message be sent to the Senate to acquaint Their Honours that the House disagrees with the amendments made by the Senate to Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017, and other measures, because these amendments infringe upon the rights and privileges of the House;

(e) when the House adjourns today, it shall stand adjourned until Monday, September 18, 2017, provided that, for the purposes of any Standing Order, it shall be deemed to have been adjourned pursuant to Standing Order 28 and be deemed to have sat on Thursday, June 22, and Friday, June 23, 2017; and

(f) when, at any time the House stands adjourned until and including Friday, June 23, 2017, a standing committee has ready a report, that report shall be deemed to have been duly presented to the House upon being deposited with the Clerk.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 4:35 p.m.
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Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC


That Bill S-3 be amended by deleting Clause 10.

Madam Speaker, [member spoke in aboriginal language]


First, I could not help reiterating my disappointment in the Speaker's ruling on the question of privilege raised by the member for Winnipeg Centre. I am going to accommodate the House and repeat my message in both official languages.

It is all the more disappointing that it has been decided, with unprecedented and delicate irony, on the eve of National Aboriginal Day, that I will no longer have the right to speak my own language here in the House of Commons. This is frustrating, not to say insulting, because my language has been spoken for 7,000 years. It was spoken before a word of French or English was ever spoken in this country that we now call Canada.

I am going to accommodate the House.

This afternoon, the Speaker rendered his ruling on the question of privilege that was raised by the member for Winnipeg Centre, which is extremely disappointing, especially on the eve of National Aboriginal Day.

On the very eve of National Aboriginal Day 2017, in this country that you now call Canada, I am told that there are only two official languages in this place, and that I cannot speak the language that has been spoken in this country, on this territory, for the last 7,000 years, even before a single word in English or French was heard in this place. In this country, that you now call Canada, I am told that I cannot use my language. Allow me to express my disappointment.

Tomorrow is a sacred day for all indigenous peoples in this country. It is so sacred. However, hearing this ruling from the Speaker was the most terrible thing I have heard in this chamber in the six years that I have been sitting in this place. In fact, if members want to know, the words in Cree for the Speaker of the House is [Member spoke in Cree] which means “the boss of those who speak in the House”.

However, I rise again on Bill S-3, which is a bill that should eliminate any gender inequities in the Indian Act.

In doing so, I need to refer to a couple aspects of where we are at this moment as we speak. As we know, there were important amendments that stemmed from the work of the Senate, important amendments that not only attempted to respond to the Quebec Superior Court ruling in the Descheneaux case, but also addressed the other inequities and discriminations that exist under the Indian Act.

That was the purpose of the amendments submitted by the Senate. Unfortunately, the majority Liberal members of the Standing Committee on Indigenous and Northern Affairs decided that those amendments were unacceptable. That is very unfortunate, because discrimination in this country should not even be allowed in 2017. That is so unjust. That is one aspect that I will be talking about in the remaining time I have.

There is also the aspect of the liability of the crown, which needs to be addressed. It is one of the most important calls to action of the TRC. It is number 26 of the TRC which deals with this aspect. Again, it is a provision that is included in the amendments that are before us. I believe it is a proposition to accept human rights violations that were done in the past and accept them in 2017. In all conscience, I as an indigenous person will never accept that proposition. We cannot justify past wrongs, past human rights violations in this place in 2017. Wrongs of the past are wrongs. We cannot say today to forget about them and move on. That is not how it works.

The other aspect I would like to address in the couple of minutes I have left is the fact that the government is telling us to trust it, that there is a second phase coming up, and it will deal with the other concerns that we are talking about six months after this bill is ratified by the Senate. Again, who else is asked that their human rights be delayed once again? Indigenous women in this country have waited for so long. Now we are asking again to do away with their human rights, that we will deal with them later on. That is absolutely unacceptable. On this side of the House, that cannot be accepted.

Let me quote one of our expert witnesses who came before us, Pam Palmater. She had this to say to our committee:

How many more times are you going to require that indigenous women spend their entire lives trying to get equality, in a country where equality is actually the law?

We do not have a choice here. This issue should in fact be moot. There is a very clear message here. The fact the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism and racism is in this country, and especially for indigenous women.

The provisions that were truncated from the proposed Senate amendments were once accepted by both the Minister of Indigenous and Northern Affairs and the Minister of Justice. In fact, this is what the Minister of Justice said to Parliament back in 2010. She insisted that Parliament eradicate discrimination wherever and whenever possible. Now she has changed her mind. The proposition that I have before us is the very minimum that we need this House to adopt.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 4:50 p.m.
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Elizabeth May Green Saanich—Gulf Islands, BC

Madam Speaker, it is an honour to rise in this place to put my views forward following the member for Abitibi—Baie-James—Nunavik—Eeyou. He said exactly, in much clearer, more passionate language and with greater depth of experience, the reasons that I am also putting forward amendments to try to repair Bill S-3, so that it does not perpetuate gender-based discrimination against indigenous women and their descendants.

As members know, Bill S-3 comes to us as a result of yet another court case raising the issue of discrimination under the Indian Act. Let us step back for a moment and acknowledge the Indian Act itself is a monument to discrimination. The Indian Act is a racist piece of legislation, and I grieve that we are not as a Parliament taking on the challenge of eliminating the spectre of a piece of legislation about which many Canadians may not know. It was a piece of legislation on which South Africa modelled apartheid. It needs to be replaced, it needs to be gone, but what we have before us is a slice of that discrimination that is embedded in a discriminatory act which treats indigenous women and their descendants quite differently than it treats indigenous men.

The case was brought to the Quebec court by Stéphane Descheneaux. The court set a deadline, the case was heard and resolved in 2015. The deadline was extended once, and as we just heard in my hon. colleague's comments in response to a question, just today the plaintiff returned to court, and asked if Madam Judge Masse would extend that deadline once again. As the deadline now sits, this Parliament needs to resolve the matter by July 3, or there will be consequences in the issuing of status cards, and there will be unacceptable consequences. On the other hand, it is certainly distressing and incomprehensible to me that given how flawed the bill is that the Government of Canada has not gone to the court to ask for an extension.

Should we be able in this place now to accept either my amendment, or the amendment put forward by the hon. member for Abitibi—Baie-James—Nunavik—Eeyou, then at least we have a piece of legislation which does not perpetuate gender discrimination. If we accept those amendments and the government feels it creates a tremendous chaos out there, we are not sure where we are going to go next. It does not have to move forward on the legislation, all it has to do is go to the judge and ask for an extension.

The Quebec court in this matter has made it very clear as of less than an hour ago, when the press conference from the plaintiff took place, that it is ready and willing to give an extension. The judge was not willing to given an extension on the deadline today on an application from the plaintiff, because she did not want to put the Quebec Superior Court in the position of arbitrating between the Senate of Canada and the House of Commons. It is very clear, very fresh and pertinent, and timely information that the extension could be had if the government seeks it. I would wish the government would seek it.

However, let us go back to why these amendments really matter. It is a question of justice. It is a question of discrimination, and it is a question of whether we can draw a line in the sand and accept all the historical wrongs that happened if someone was a descendant based on relationships before 1951. Before 1951, we are just going to say that it does not matter anymore, and we are going to limit it to 35,000 people, because that is a manageable number. This is something I have never seen before in any debate on rights, that we only give fairness to X number of people, and we are not prepared to extend it to all the people. It is unconscionable.

I want to go back, and my colleague has already mentioned the testimony of Professor Pam Palmater, who is uniquely qualified in this debate not only because she is a distinguished lawyer and professor, and comes from the territory of the Mi'kmaq First Nation in Nova Scotia, but she has written a book which directly bears on this. Her book is Beyond Blood: Rethinking Indigenous Identity.

Her research has shown that, for example, and I will quote her:

The hierarchy of Indian status between section 6(1) and 6(2) have and continue to disproportionately impact Indigenous women and their descendants since its creation in 1985. It is an unconscionable formula based on racist ideas related to blood quantum that were designed to legislate Indians out of existence.

She is referring to sections of the Indian Act. She goes on to say:

As a result, Canada's own demographer can pin point with relative accuracy the extinction dates of each First Nation in Canada based on birth, death and out-marriage rates.

Some might wonder what out-marriage means. The essence of this discrimination is that, if a first nations man marries a non-indigenous woman, their children continue to be recognized as Indians for the purpose of the Indian Act, but if a first nations woman marries a non-indigenous man, the children are not recognized. Further, with respect to children of unwed mothers who are not willing or able to name the father, or fathers who deny paternity, we go through a whole hierarchy of subtractions, subtraction of indigenous women's rights through a hierarchy of different classes of people.

If my amendment or the amendments put forward by the NDP are accepted, we could restore at least those pieces of Bill S-3 that were put forward in the Senate. They were supported by the Senate but removed from the bill by the government. They are what would make it possible to support Bill S-3 and get it through the House. With those removed, we are back in a situation where the defence that I hear from the government is that there will simply be too many people and we will not know quite how many there are. As I said, this cannot be a question of numbers.

Again, from evidence that was heard in the Senate committee, if the estimate is 200,000 people instead of 35,000 people who have rights through ancestry and parenthood once historic discrimination against women is removed, that is roughly equivalent to the number of new immigrants we take into Canada every year. We need to put 200,000 into some context. Why would we deny rights based on the question that this might be too many new people?

The fundamental crying need in this area of law is to get rid of the Indian Act, and then we could be talking about how to move forward from here. However, we are dealing only with this piece based on the court decision and the court case brought by Stephane Descheneaux. It seems to me that we do not have any choice other than to eliminate gender-based discrimination.

In the minute I have left, I want to turn again to the words of Professor Palmater, because it could not be clearer. She said:

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. Traditional Indigenous Nations did not permit inequality between genders. The constitutionally-protected Aboriginal right to determine one’s own citizens is conditioned on section 35(4)’s guarantee of equality for Indigenous men and women.

Of course, that is section 35(4) of the Canadian Constitution.

UNDRIP which provides extensive protections for indigenous peoples also guarantees these rights equally between Indigenous men and women.

I want to underscore this sentence from Professor Palmater's testimony, “There is simply no legal mechanism by which to consult out of gender equality.”

She went on to say:

Discrimination is discrimination—whether five layers of discrimination are piled on top of us or “only” one layer—Indigenous women and our descendants bear an unfair burden of trying to convince others it should end.

I urge every member of the House to vote for the amendments, and then we can pass Bill S-3 with a clear conscience.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 5 p.m.
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Elizabeth May Green Saanich—Gulf Islands, BC

Madam Speaker, first let me just say once again that there is no need for haste. We do not need to deal with this now. We merely need to ask the court. The court has made it clear that it is more than willing to give an extension, but on this concept of phase two, again I want to turn to the testimony of Professor Palmater:

If we don't address gender equality now, it will never be addressed. Canada's plans to shove "complex" gender issues to Phase ll under the impossible standard of "consensus" means we'll never see full gender equality.

I thought the whole intent of reconciliation was to do better by indigenous peoples. If this is the case then we have no real choice but to remedy all gender discrimination in Bill S-3. That is what I am committed to. I am trying to remedy the gender discrimination in Bill S-3.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 5:05 p.m.
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Labrador Newfoundland & Labrador


Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs

Madam Speaker, I am rising to speak to Bill S-3 because it is a very important bill and one that, with these amendments and changes, will foster tremendous progress for many indigenous people in Canada. It is an act to amend the Indian Act, and it focuses on the elimination of sex-based inequities in registration. This is something that has been ongoing for many years. Both the current Minister of Indigenous and Northern Affairs and the current Minister of Justice have fought very hard over the years to ensure that sex-based inequities in registration would be eliminated. Today, we are bringing forward amendments that would allow that to happen. They have also both said they remain committed to ensuring we correct all discrimination contained within the Indian Act. That will be done in a stage-two process.

Members are asking today that several amendments be added. We need to understand that the bill today is about removing the discriminatory aspects that are related to sex-based discrimination and that the amendments that are currently being proposed by the members are outside the scope of the intended bill. It is important to note that, as a government, we recognize that changes within the Indian Act need to go much further than where this legislation is bringing us today. We have said that time and again. The government and the minister have committed very clearly, both in the House of Commons and in committee, that they would have a stage-two process to deal with those discriminatory pieces that have to be removed from the act.

They also said that charter compliance will be the floor of that stage-two process, and not the ceiling. In other words, the government has been clear that consensus will not be a prerequisite for action, but in the absence of consensus, it is more important that decisions are based on the foundation of meaningful consultation and credible evidence about the potential impacts of reform.

We are here today with Bill S-3 because of the Descheneaux decision. It was a case filed by the Descheneaux family, in which the court put upon the government several conditions for change that had to occur within the Indian Act. The former government was appealing those decisions. Our government said we would not appeal those decisions of the court because we need to correct those discriminatory clauses within the bill. We were the first government in the seven-year process that has been going on that has stepped up and said we are going to remove it. We are prepared to act on it. We will meet the conditions of the Descheneaux ruling. That is what we are doing today with Bill S-3.

Members opposite asked why the government does not go to the judge and ask for an extension. We did go and ask for an extension, and we were granted an extension, one that allowed us to look at other aspects of the bill, consult with a number of people, and further define within the scope of the ruling some of the changes that needed to be made. We were happy to do that. We know the other groups went to the judge and asked for a further extension, and today, although there was a caveat in the decision, I understand the judge denied that extension.

We are in the House today debating Bill S-3. It is a bill that would help us progress a step further in ending sex-based discrimination against indigenous women who are registering with the Department of Indigenous and Northern Affairs and registering for benefits. This bill alone would allow 35,000 more indigenous people to claim the benefits to which they are entitled.

For the last two years, they have been waiting to access the benefits and the services they are entitled to as indigenous people in Canada, but have not been able to because we have not defined those changes in law.

Today, we are making those changes in law. We are allowing the entitlements and benefits for these thousands of indigenous people who have been neglected for a very long time. Many of them have been waiting for years. As we know, the Descheneaux decision went on in the courts for many years and was fought by the Harper government. It would not accept any changes within the Indian Act as it was relative to discrimination.

When this bill went to the Senate, some amendments were proposed. Those amendments were struck down at the committee stage of the House of Commons. Despite supporting a number of the amendments proposed by the Senate, the government made it clear that it could not support one amendment that was put forward by Senator McPhedran and accepted by the committee. The intent of Senator McPhedran's amendment to clause one of Bill S-3 was to implement the approach commonly referred to as “6(1)(a) all the way”.

While there is no question that this amendment was put forward with the best of intentions, and I know it was, the way this clause is drafted creates ambiguity as to whether it will do what it apparently intends to do.

When the bar association testified before the Standing Committee on Indigenous and Northern Affairs, and I was at committee that day, its representative cautioned against simply inserting that proposed amendment in its current form into the legislation. In fact, the members of the Indigenous Bar Association who testified went on to say, “You run into technical problems with the language by simply inserting that into a bill because you run the risk of inconsistencies or some unintended consequences with that.”

If the 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, well beyond those that are sex-based. That approach seeks to address non-sex based issues, of which we realize some need to be addressed, but it is well outside of the scope of what Bill S-3 is intended to do.

The approach was explicitly rejected by the British Columbia Court of Appeal in the McIvor decision, where it was clear that under the current state of law, this remedy was not required to make the Indian Act registration provisions charter compliant. That is very important to note in this debate.

The Supreme Court of Canada refused leave to appeal, but this does not mean the government will not consider this as a potential approach in the context of a policy decision to address the broader registration and membership reform. When the minister testified before the Senate committee, she said:

I think it could be 6(1)(a) all the way. But we don’t have enough information to make that decision, the scholarly approach that it would take to look at the impacts and make sure that it didn’t impact others accidentally in a different way.

Our government is taking a responsible approach. We have agreed to go through a stage two approach. We do not currently have all the demographic information to understand the practical implications of such a decision at this time, but it is our job to ensure we do. We know what we are doing today is going to have profound and positive impacts on indigenous communities across Canada and many people. We also know our commitment to stage two will also have very profound and positive impacts for indigenous people.

The amendments proposed today are outside the scope of the government's agenda and its intention. We ask all members to support the bill as it is and support the direction of the government to bring justice to indigenous people.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 5:20 p.m.
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David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Madam Speaker, I have been a member of the House since 2014. In that time as MP, I have seen two different governments and served on three different committees. In all that time, I have never seen a bill studied and pre-studied as many times as Bill S-3. I am not sure how the government will handle phase two, considering how Bill S-3 is turning out.

Many Canadians believe the Indian Act is a good document, meant to help the indigenous people of our country. What they do not realize is how destructive, toxic, and racist this document truly is.

The Indian Act is present in the everyday lives of most indigenous Canadians, often governing their education, health care, and every service that really matters to average Canadians. With this power, the government could do a lot of good across our nation for most vulnerable people in our society. Despite the potential and outstanding recommendations of indigenous communities across the country, I have rarely heard anything good about Bill S-3 without the amendments.

When I joined the Standing Committee on Indigenous and Northern Affairs, I was joined by many new members of Parliament. Many of these members came from backgrounds and regions where indigenous knowledge was not as common. To fill the gap, the committee heard from experts across the country.

The Indian Act controls all aspects of aboriginal lives, with limitations on social, traditional, and economic activities. I can say with confidence that the majority of indigenous people across the country want either major revisions to the Indian Act or want it scrapped entirely so we can build a new solution from the ground up, with thorough consultations along the way.

When I joined the Standing Committee on Indigenous and Northern Affairs, it was my hope that I would have the ability to right some of the wrongs the Indian Act created. Bill S-3 seemed like an opportunity to do that when our committee began studying the issues almost a year ago

. When the committee began studying Bill S-3, it was clear that the government was in a rush. It had to meet a looming February 3 deadline, imposed by the Superior Court of Quebec after the government lost the Descheneaux v. Canada case. The case revolved around Indian Act discrimination against women.

What many people do not know is that the Indian Act does not categorize all aboriginals the same way. The government registry differentiates between status Indians, by categorizing them as either 6(1) or 6(2). Before 1985, people could lose their status when they married, depending on gender. Even with the changes, there were outstanding issues. This creates a situation where some cousins would have status while others did not, even though each person had one status parent and one non-status parent.

Descheneaux v. Canada arose because even with the changes in 1985, the Indian Act still robbed people of status due to sex discrimination before 1985. In the Stéphane Descheneaux case, his grandmother had lost her status by marrying a non-indigenous man in 1935 and because his mother was not status, he was not a status Indian either. If we replaced his grandmother with a grandfather, Mr. Descheneaux would be a status Indian today.

Descheneaux v. Canada also brought up the case of Susan and Tammy Yantha, which the Calgary law blog outlined as an issue created by “The version of the Indian Act in force in 1954 held that illegitimate daughters of Status Indian men and non-Status Indian women would not have Status, while illegitimate sons would have 6(1) Status.”

It was clear to the Superior Court of Quebec that changing the sex of someone in both these stories to male would mean they would have a very different relationship with Indigenous and Northern Affairs because they would be status Indian and fully entitled to the benefits that had been withheld from them.

Therefore, this was a violation of section 15 of the charter, which states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Indian Act is still enforcing discrimination based on sex, which is unconstitutional. Imagine if this rule were applied to being a Canadian citizen. I can assure that this would be resolved quickly. We would not need pre-study after pre-study. We would get it done immediately.

When the committee met first with Indigenous and Northern Affairs officials, the officials described the case and what the bill addressed: differential treatment of first cousins whose grandmother lost status due to marriage to a non-Indian when the marriage occurred before April 17, 1985; differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951, and April 17,1985; and differential treatment of minor children compared to their adult or married siblings who were born of Indian parents or of an Indian mother but lost entitlement to Indian status because their mother married a non-Indian after their birth between September 4, 1951, and April 17, 1985.

The assistant deputy minister of the resolution and individual affairs sector, Department of Indian Affairs and Northern Development, said that this was just one part of a two-phase process that would take up to 18 months to complete. She also said that the court deadline did “not allow for sufficient time to conduct meaningful consultations”. Even though the department had not entered into meaningful consultations, the deputy minister, when asked if the bill actually did what it claimed to do—eliminate sex-based inequities in registration—said that she was confident.

The next witness was Stéphane Descheneaux, the plaintiff in the case. Right off the bat, he made it clear that he had first heard of the bill only two weeks before appearing at committee. In that short amount of time, he and others had already identified apparent flaws in the legislation.

I have heard the government lecture about consulting for hours. The Prime Minister has shaken many hands and signed a variety of documents with indigenous people across the country. He often followed up these events by repeating that he is focused on a nation-to-nation relationship and consulting. Bill S-3, to me, is an example of a bill that indigenous people should have been part of during its drafting. If the government had spent—

Indian ActGovernment Orders

June 20th, 2017 / 6:30 p.m.
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David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Mr. Speaker, I will try to be as thorough as possible in my remaining three minutes.

To me, Bill S-3 is the best example of a bill indigenous people should have been part of when drafting. If the government had spent some time consulting Stéphane Descheneaux and others, while spending less time repeating talking points, it could have fixed this mess months and months ago. Instead, the government waited until it received an extension to its court mandate deadline to get to work.

The department did much better this time around. It spent less time talking about what it was going to do and more time listening. Many indigenous groups were happy to show all the problems with Bill S-3 and how it can be fixed.

While Bill S-3 can no longer claim to fix all gender-based discrimination when amended, it is a good starting point for phase two.

Indian ActGovernment Orders

June 20th, 2017 / 6:45 p.m.
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Sheila Malcolmson NDP Nanaimo—Ladysmith, BC

Mr. Speaker, when the Liberal government was in opposition, it proposed the very same amendment to the Conservative government that, now that it is the government, it rejects. This has been on the Liberal party's agenda and radar for a very long time. When they formed government, they would have been briefed on this. They have had 18 months to ask indigenous women whether the new legislation proposed in S-3 was adequate. Twice, the Senate told the government it was, because the Senate actually talked to indigenous women when the government failed to.

The message we are getting loud and clear from every native women's organization is that they want the Senate version of the bill passed. It is the perfect undertaking. That is what we are urging this government to do now. If the Liberals really are so surprised about the same amendment they proposed in 2010, and that the Minister of Justice advanced when she was an elected chief at the highest levels in British Columbia, imploring this Parliament to take the very same action she now opposes, which is stunning to me, then the government should ask for an extension, because it did not. In fact, the court ruling this morning said that the judge was unwilling to get in a battle between the Senate and Parliament unless the government itself was going to invite it in and leave the door open. The government has failed to ask for that extension. It has no credibility.

Indigenous AffairsAdjournment Proceedings

June 20th, 2017 / 10:40 p.m.
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Yvonne Jones Liberal Labrador, NL

Mr. Speaker, as the member for Nanaimo—Ladysmith already knows, today we debated Bill S-3 in the House, which would make changes to the Indian Act with respect to sex-based discrimination. We are encouraging members to support those amendments, and we are hopeful that they will, as Bill S-3 goes through the House.

As well, the government, under the direction of the minister, has said it will enter into a phase-two process to review other gender imbalances and discriminatory clauses that exist within the Indian Act and to make those changes.

I also want to ensure the member this evening that the Government of Canada continues to support the commission on missing and murdered indigenous women to the extent possible within the law. We are committed to bringing an end to the cycle of violence against indigenous women and girls in Canada. We are not waiting for the recommendations of the inquiry to act; we are already—

Indian ActGovernment Orders

June 13th, 2017 / 7:30 p.m.
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Toronto—St. Paul's Ontario


Carolyn Bennett LiberalMinister 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.

Indian ActGovernment Orders

June 13th, 2017 / 7:55 p.m.
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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 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.

Indian ActGovernment Orders

June 13th, 2017 / 8:25 p.m.
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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.

Indian ActGovernment Orders

June 13th, 2017 / 8:50 p.m.
See context


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?