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.

Motions in Amendment

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

Madam Speaker, there is a lot of blame to go around in the handling of indigenous issues in this country. I think it is not too late to ask the court for that extension in order to ensure that, when the Liberals bring forward a piece of legislation, the questions are answered about how it would be applied.

It is clear that we know that eliminating all gender discrimination, which I think should be the goal, in this piece of legislation should not even be a question. It is a matter of law, so we should do it. However, I recognize the bending over backwards; and I also recognize, by the way, good intentions on the part of the Minister of Indigenous and Northern Affairs. I just do not think it cuts it to decide we will only go halfway on resolving gender discrimination. It requires full, historical redress for gender discrimination.

I was also remiss in not acknowledging, as I began my words here, that we are here on unceded territory of the Algonquin people.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, noting the words of Sharon McIvor, who asked why consult on whether people can continue to be discriminated against, I will ask my colleague from Saanich—Gulf Islands if there is any reason to not either adopt the perfected bill as adopted and proposed by the Senate, which was informed by indigenous women, or else ask for an extension but not adopt a flawed bill, as is put before us by the government.

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

Madam Speaker, Sharon McIvor, as a witness to the Senate committee, and with all the work she has done for all these years, has it exactly right, as do most of the witnesses who came before the committee. I certainly thank the Senate for its hard work to improve the bill.

[Yvonne Jones, Liberal, Parliamentary 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.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Madam Speaker, first, it was our Conservative government that gave women living on reserve the same matrimonial real property rights as other Canadian women living off reserve, something the Liberals voted against.

When the Liberals were in opposition, in response to Bill C-3, which dealt with McIvor case, the Minister of Justice and the Minister of Indigenous and Northern Affairs brought forward those exact same amendments, which senators have brought forward to amend Bill S-3.

Could the member tell us what has changed between now and then, other than she now sits on that side of the House of Commons?

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, the hon. member's question gives me the opportunity to remind people in our country that it was his government that fought against the elimination of sex-based inequities in registration for years.

The government, under former Prime Minister Harper, spent hundreds and thousands of dollars of taxpayer money fighting indigenous people and indigenous women to ensure they did not eliminate those clauses.

We removed the bill from the courts. We are making the changes that are necessary on sex-based inequities. We are going to continue with this process, into stage two, to do what is right and just for indigenous women in Canada.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Madam Speaker, could the parliamentary secretary name a single indigenous women's organization that endorses the approach of the Liberals?

The government failed to ask anybody, any woman who had been a litigant in these cases for 40 years. They were not consulted on any element of the bill. The Senate ended up perfecting it.

Who is actually onboard in the women's movement with the government approach? At a press conference on June 8, Pam Palmater said that the Prime Minister and INAC minister claimed to be feminists and promised to respect the rule of law, but this was inconsistent with the minister's rigid non-negotiable approach. They said, again and again, that gender rights were human rights. They are not up for consultation.

How does the parliamentary secretary respond to that very strong criticism?

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, it goes without saying that many women out there today will benefit as a result of the changes we are making in the bill.

Will it go as far as we would like it to go at this current time? No, it will not. When representatives of NWAC testified before committee, and I was there that day, they said that they wanted to correct all the discriminatory pieces in the Indian Act, however, they would support the bill going to the House without being withdrawn at that time.

This question was put to them. Should we not proceed with this bill at this time? If I had the correct words, I would say them, but the answer was very simple, and that was that we should proceed.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Madam Speaker, I would like to thank the member for Labrador for reiterating once again in the House the government's commitment to ending all discrimination in the Indian Act.

Could my hon. colleague elaborate on the reasons why a two-faced approach will allow us to go even further than the Senate amendment, to reduce ambiguity, to ensure there is even more inclusiveness, and to take into consideration the rights of trans or two-spirited women? Could the member also expand on why it is so important , to take the time to get it right in the second phase to ensure we do not end up with more litigation and more women being denied their rights?

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, if the legislation, which addresses the charter issues outlined in the Descheneaux decision, is not passed before the date that has been struck by the court, the practical implication will be that these provisions will then become inoperative within Canada, as the registrar will not be in a position to register people on the provisions found to be non-charter compliant.

As well, to the member's other question, going into stage two allows us to do full consultation to deal with all the other discriminatory pieces that are in the Indian Act and to correct them in a proper manner, with proper input from people.

[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—

[The Assistant Deputy Speaker, Carol Hughes]

Unfortunately, I have to stop the speaker at this point. However, the member for Fort McMurray—Cold Lake will have three minutes to finish his speech when this is back before the House, which will be later on today.

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as reported (with amendment) from the committee, and of the motions in Group No. 1.

Indian Act

[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.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, I want to pick up a theme that was advanced by one of the Conservative colleagues, noting the very same amendment the Senate inserted into this bill and then the Liberal members of committee withdrew,“6(1)(a) all the way”, as the women's indigenous organizations are saying.

This is how it is described in a press release from the Abenaki Nation on June 18:

The clause added to Bill S-3 by the Senate was identical to a clause that the Liberal opposition had added to the Harper government’s Bill C-3 in 2010, but that then-House Speaker [Conservative Speaker]...ruled was out of order for going beyond the scope of the bill.

Now that the House Committee has changed the name of Bill S-3 on June 16th, the [Liberal]...government and Justice Minister...have followed the Harper government’s example and effectively announced they will not address sex discrimination in the Indian Act that goes beyond the specific circumstances of...Descheneaux and co-plaintiffs....

I am interested in my colleague's observations on why what the Liberals proposed during the Harper government could not now be embraced by the Liberals now that they are in power.