Bill S-3 (Historical)

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

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

Indian Act

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, I was wondering if the member could give a bit more information about some of the Senate amendments that the government received, the difference in those Senate amendments, and what he feels about those Senate amendments. They are obviously very important.

The Senate amendment mentions a parent or guardian or other ancestral person. It has a large introduction, which essentially says:

...the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. ...the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application....

Essentially, we are allowing the registrar greater leeway to determine who is an Indian, so it is essentially moving back perhaps to what we used in Canada back in the late 18th century, early 19th century, in allowing people to determine who is an Indian, such as this is someone who looks like an Indian, sounds like an Indian, lives in an indigenous community, so he or she must be an Indian.

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

Mr. Speaker, the member opposite and I have had dinner together. I must commend him for his great advocacy and the work that he has done to bring forward the issue of reconciliation even in his own community. I understand he went on a 900-kilometre walk last summer with respect to the issue of reconciliation. I might be exaggerating that a bit, but that was commendable on his part. I would like to congratulate him for his work on this effort.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I think I speak for most Canadians who feel that the colonial vestiges of the last several hundred years really have no place in modern Canada.

I come from British Columbia and it is almost entirely unceded territory. Issues of identity and full inclusion in Canadian society are still very much top of mind for many indigenous people in my riding of Vancouver Kingsway and across British Columbia and Canada as a whole.

I am wondering if my hon. colleague could speak to the feeling of urgency he feels or may not feel about resolving treaty claims in Canada and whether he feels that plays any role in helping to resolve some of these issues of status and inclusion in Canadian society today.

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

Mr. Speaker, I will comment on what I do know about. In my riding two groups were missed when the Indian agent came through. They do not have reserves and we are currently trying to settle those reserve claims. The government actually calls it an expansion of reserve because it is already claimed territory. It is all Treaty 8 territory where I live.

One of the reasons I call my riding the promised land is because there is promised land and we are working toward getting reserve status for that land. One of the groups already has its phase one, which is made up of several acres of land. This group is working toward 92 square kilometres of reserve going forward. For them, this is a great source of joy and a great source of pride. There is something about being tied to land. I own five acres of land and it is my slice of paradise up in the promised land.

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

Mr. Speaker, I am wondering if the hon. member could comment about the diversity of opinion on this issue. There are organizations such as the Native Women's Association of Canada that feels we cannot move fast enough on this. Other organizations such as the Indigenous Bar Association support the principle of the bill. All of us on this side of the House support the principle of the bill. These organizations have some real concerns about the drafting of the bill, the actual words in the bill, as does Senator Sinclair, who had concerns with its drafting but ultimately supported the spirit of the bill.

I am wondering if the hon. member could comment on those concerns.

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

Mr. Speaker, I too have concerns. I mentioned my constituent who had DNA evidence that her father was Walter Twinn, one of the senators from years past, and the very fact that she lived without status. The bill would nothing to make that any better. That is one of my concerns and it is one of the concerns we heard at committee. Therefore, we will be working to rectify some of those situations.

[Adam Vaughan, Liberal, Parliamentary Secretary to the Minister of Families]

Mr. Speaker, as I referenced in the comments I made to my colleague, it is impossible, as a Canadian, to stand in the House and speak proudly of the tradition the country has etched in the soul of its aboriginal people and not feel shame, not want to fix, change, and move to a better place with new laws that, quite frankly, in many cases, just have to eliminate past laws.

My family is from Australia. I am the kid of immigrants. People may think they arrive in this country free of that history, but the minute they become citizens, they inherit the responsibility to do right. We have not done right yet in our country. Until the Indian Act is abolished, I do not see a way of achieving that.

Even as we speak of that, we know, as I look across the way to my friend who is a proud member of the House but also a proud member of the Métis nation, it is just one step in a long march toward truth and reconciliation. We have obligations to achieve that. Perhaps we can do much in this Parliament, but my sense is that a country that was founded on 400 years of colonialism, racism, and theft, it will take a long walk out of those shadows, a long way out of that forest before we get to a clearing where we have common ground, and it will be painful.

I will be splitting my time, Mr. Speaker, with the member for Winnipeg Centre.

One of the things we encounter very quickly when we have the responsibility and privilege of governance in the House is that we have the capacity to fix things, but in fixing things we have the unintended impact of also breaking things simultaneously. The challenge we face with this law and the challenge being delivered to us from the Senate is that as we seek to fix one part of this colonial tragedy and this colonial knot, we have to acknowledge we are not fixing all of it. In fixing one piece of it we may actually make solving other parts of the problem that much more difficult.

As we think we move toward reconciliation with aboriginal peoples with treaties, we have to understand that may leave the situation of people of nations without treaties in a more difficult situation. As we acknowledge we have the Métis nation and the responsibility to another group of people, differently configured, with different culture, that leaves behind conversations we should be having with our Inuit brothers and sisters. We have inherited a difficult, troubled history.

However, what gives me hope that we are moving in the right direction is we are getting criticized in a way that is fair, legitimate, and responsible. It is the personification of Loyal Opposition. The issues that were just enunciated, the poignant testimony from my colleague across the way, shows that we have not got it right. However, what we do have is a commitment from this side of the House, and I believe it is shared by all parliamentarians, to keep working at it until it is right. The failure to do that would be the failure of the country.

The challenges we have in dealing with the specific legislation in front of us right now is trying to decide whether we are trying to get better or whether we are trying to achieve perfection. The risk of perfection getting in the way of better is that perfection has been criticized by many people, including some of the strongest voices from the first nations community, in fact, some of the voices from the Truth and Reconciliation Commission itself.

Judge Sinclair, the senator from the other place, has said, “I looked seriously at how we could put an amendment together to make it say 6(1)(a) all the way, and I couldn’t come up with wording. This is not the wording that I would have come up with, and I don’t approve of this wording myself.” He voted against the amendment.

If one of the authors of the Truth and Reconciliation Commission says do not do something, we have to listen to that wise counsel. He voted in favour of the amended bill to ensure it came to Parliament, to ensure we could meet the July 3 deadline, to try to find resolution to this issue, but he cautioned us. This is the reality. Every time we move on indigenous issues in the country, we unintentionally put someone else in jeopardy, somewhere, somehow.

We have yet to find a perfect way to walk out of the forest quickly into a clearing, into common ground. Those of us who favour a process of incremental, persistent, and consistent improvement and persistent and consistent negotiation and consultation with as wide a range of people as possible are speaking in support of the motion tonight, and that is important. It is not that we do not recognize the harrowing, discriminatory, racial, and patriarchal dynamics that have been clearly highlighted. It is that we cannot solve all of it quickly without knowing in our hearts that we are going to make other mistakes that put other people in harm's way. It is hard to put people in harm's way as legislators, so we try to do things cautiously and carefully. That is why this process of incremental but persistent and consistent advancement is the one that has been chosen.

All of that being said, the thing we need to caution ourselves against most importantly is that we need to be very careful not to position competing perspectives from different aboriginal organizations and individuals against one another and somehow suggest that one is right and one is wrong. It is quite possible that when we propose solutions, they are both right and wrong simultaneously. I hope this process of the last two years, as well as the Truth and Reconciliation Commission, the legislation that has been coming from the government on a consistent basis, negotiations that have been held on a consistent basis, and consultations that have been held on a consistent basis, is showing those who have no reason to trust the Government of Canada that they can trust this process and this government to make sure that every time it moves it does so cautiously, conscientiously, and carefully.

We will make mistakes and we will not move fast enough for every person who has been affected by colonialism in this country. That is as true as the sun rising tomorrow, but I want to assure people listening and my colleagues in the House that those of us who have taken the notion of truth and reconciliation to heart, soul, and mind are moving forward with our brothers and sisters, even if we do not always agree on every single tactic, every single clause, every single rule and regulation. We will get there. We probably will not get there in my lifetime. We probably will not get there in the lifetime of most members in the House, but I am comfortable in knowing that we are moving in the right direction.

I had the privilege in the last year of consulting with aboriginal elders, Inuit elders, as well as Métis nation authorities and elders in that community, about housing in urban settings across this country. I have talked to folks from coast to coast to coast about what they see as a good housing program and everyone asked me at the beginning of the process to check in with an elder first, before doing wider consultations with the community at large second. It was wise advice that I received and good advice that I followed.

A couple of thoughts, gifts of wisdom, that were imparted to me stick with me to this moment and these are why I am comfortable supporting the government's position on Bill S-3. It was this: every time INAC or the government makes a new rule or regulation as it relates to aboriginal people, the roots of colonialism and racism grow a little deeper in this country. There is truth to that. What happens when a tree's roots grow deeper is that the branches have the capacity to grow wider, tangle, and create even more complex problems. What is really needed is the clearing that I spoke about. We need common ground to emerge and not to grow the roots deeper or the branches more complex.

We need that clearing for new life to spark and take root, a new relationship to grow, and for that to define the relationship between those of us on this side of the treaty table and those on the other side of the treaty table, those who have lived here for thousands of years and those of us who are new arrivals. We need that space to emerge. We need new opportunities, new ideas, and new life to take root, and we need a new future to emerge from the common ground, the clearing ground, in the forest. Otherwise, this country shall remain in shadows and the people who will be hurt the most from that are our indigenous brothers and sisters right across the country.

I said I was from Australia. Australia has also travelled through this painful process and has also struggled to find truth and reconciliation with its aboriginal peoples. Eddie Mabo, who is one of the great warriors for justice in that country, once asked, “What more can they do to me that they have have not already done?”

We can do more harm if we are not careful. That is why I implore this House to take the careful steps to embrace Bill S-3 and to remain committed to truth and reconciliation, because that is the way forward.

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

Mr. Speaker, I am still struggling with this. I understand that the hon. member says that perfect can be the enemy of the good, but in this case no one here is striving for perfection.

We still have the Indian Act before us, which I think we agree, and as his earlier statements made clear, is something that brings shame to the whole country. Now we have amendments proposed by the Senate that would at least ensure that gender discrimination would be removed from it. It is hardly the perfect being the enemy of the good.

I am struggling with it, but I do not believe I can vote for Bill S-3 without the Senate amendments that ensure that at least the gender discrimination pieces have been removed.

[Adam Vaughan, Liberal, Spadina—Fort York, ON]

Mr. Speaker, maybe it is not good getting in the way of perfection; maybe it is adequate getting in the way of perfection.

It comes back to the notion that we have to proceed carefully. If we make wholesale changes quickly, it will be like turning a sailboat too quickly. If the sail has not been tended to, if the waves have not been checked, if everything has not been done right and there is a quick turn of the rudder, the boat will be pitched into catastrophe and people will be put at risk. That was not necessarily the intent; the intent was simply to turn the boat around.

We have to change course as a country, but as we contemplate going about and changing course, we need to make sure that the sails are trimmed properly, that the boat is seaworthy, and that the crew on board and those we have carriage of are safe and know what is about to happen.

The challenge with the Indian Act is that it has set up some complex and very dynamic relationships in the country, and if we turn quickly, it would have the unintended consequences of loading expectations into people's lives and placing demands on institutions that have no capacity. We would be back where we started, because the boat would not actually turn. It would simply stall. We cannot stall on this issue.

If I could continue with the sailing analogy, we are looking for that better wind and that better water. We are not there yet, but it is time to make sure that we sail a little stronger and make a little more progress.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I am somewhat disturbed by what I just heard the hon. member say.

He is worried about moving too quickly. Frankly, we are talking about the Indian Act. We have spent decades and decades studying this issue. We know exactly where the problems are. I am disturbed that the member would say that we need to exercise caution at this point. Indigenous people in this country have waited long enough.

Moreover, I am disturbed by the fact that my hon. colleague talks about how we might err. How about we err on the side of more equality? How about if we err on the side of giving women equal rights? If there is an error in some way, then perhaps we have gone too far too fast. It would be nice, after 150 years of colonialism in this country and hundreds of years beyond that, if the Liberal government actually had a little bit of daring.

My final point is that this was a considered amendment by the Senate. For decades I have heard the Liberals defend the Senate as a place of sober second thought, a chamber that is supposed to bring concentrated analysis of issues, and we are supposed to take that seriously. Is my hon. colleague saying that the amendments from the Senate are ill-considered or unnecessary?

Why does he not just accept what the Senate says ought to be done, what the members on this side of the House want to be done, what indigenous people across this country want to be done, have some courage and actually make these amendments that are so desperately needed and long overdue?

[Adam Vaughan, Liberal, Spadina—Fort York, ON]

Mr. Speaker, the fallacy in that presentation is that there is unanimity among the aboriginal communities as to what the right way forward is, quickly. When we do not have unanimity, we do not act quickly and rationally.

There are many of the amendments that we do accept. There are some we are troubled with. I use the words of Judge Sinclair, one of the authors of the Truth and Reconciliation Commission, who had problems with the wording on one of these, and to listen to that senator as he said he looked seriously at how he could put an amendment together to make it say 6.1(a) all the way. He supports the position of quick change, but he also cautions against quick change that has unintended consequences. He said he could not come up with the wording.

When there is a lack of unanimity, acting quickly can impede progress. I share the sentiments that it has been too long, that Parliament should have been seized with this 150 years ago, let alone 300 years ago when we first landed and created the mess that we are now trying to untangle.

I am taken back to another phrase by Cindy Blackstock, who said that they have survived their mistakes for 10,000 years; it is our mistakes that indigenous people do not survive. I am guided by that. We all want to do the right thing. Getting there with unanimous thought is what is evading us, so there is part of this bill with which we have concerns, and we will go slower.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, I just had an interesting meeting with a lady, Alana Daniels from Long Plain First Nation. She said, “Always speak from the heart”, and so I will. I do not really have any prepared notes and I do not have anything to hold up, just a few little scribbles about my thoughts.

This weekend, I had the opportunity of participating in a sun dance under Chief David Blacksmith. It was out at Spruce Woods. It is a ceremony that lasts a minimum of around a week, but really the main ceremony is around three days. For three days and three nights, there is no food or water taken by the participants. I have done a four-year cycle, meaning four years in a row I have pierced. I do not pierce for myself. I do not ask things of the creator for myself. I ask things for others. I pray for others. I put myself and I humble myself for others. This weekend was my opportunity not to have to dance in the sun dance itself, but to be a helper, a skabe. I ran around picking up garbage, running the sweat lodge, doing the things that needed to be done to make sure that the dance was successful for those who were praying for us.

People also knew at the sun dance that I am a member of Parliament, and even though it is not a time for politics, the women at this sun dance asked me again and again about Bill S-3. They asked me, “What are you doing about Bill S-3, and why is the government willing to take away our rights? Why is the government willing to remove our birthright? Why is the government not giving back our birthright to our children, to our grandchildren, to our descendants, and their descendants?” This is a debate that has been going on for many generations in this country, and it is a painful thing for me to stand here, because I do not want to be standing here taking this position. I was hoping that it would not come to this moment, but I must have the courage.

We have been talking about this since 1978 when Sandra Lovelace went to the United Nations with others, and they fought to get their rights back, to remove the discrimination in the Indian Act. The government said it was going to give them back their rights, but it was like when we rub the lamp of a genie and the genie comes out and gives us our wish and says, “I grant you three wishes”. The wish the government gave was “I'll give you equal rights”, but it reduced the rights of men and created first- and second-class status Indians. They could see the termination of their status within the lifetime of their descendants, of their grandchildren. If they married out for love, if they met someone they happened to love, they could not bring the person into the nation as the men could before. In fact, they would see the termination of their status because they married for love, even men are like that today. That is a denial of the birthright of indigenous peoples.

We might not like the Indian Act—no one loves it—but at the end of the day, it is what we have and it defines who is an indigenous person in this country. It defines our citizenship in this country. Therefore, in 1985 when the government passed its legislation, I remember being only 10 years old and knowing about Indian status and who in the family had it and who did not have it, which cousin had it and which cousin did not have it. That is a painful thing. Why should a 10-year-old have to know who has more rights than another, who is a full citizen and who is not a citizen, who can go on the traditional territories and who cannot?

In 2010, the government was once again, after a court case, faced with making a decision. It made a decision. It was to do two rounds, a second round of consultation afterward to see if there should be additional amendments. We are still waiting for that second round of consultations to lead to legislation. Now here we are in 2017. I am 40 years old, and we have been debating this for my lifespan. Here I stand as a member of Parliament and it comes before me. I am asked to support a position that I cannot support.

Who am I to deny the birthright of my cousins, of my brothers and sisters in the sun dance? I simply cannot do it. It is absolutely shameful that we are debating this. Why should a man have to wait for justice? Why should a woman have to wait for justice. Why should the children have to wait for justice? Have we not waited long enough for justice?

Yes, the bill that the senators have sent us may be imperfect. Yes, it may not be the best type of bill, the greatest bill that the lawyers of the Justice Department had decided we should consult or debate in the House of Commons. Nonetheless, it is the bill that was submitted. INAC had an opportunity for many months since the Descheneaux case to actually come up with a solution and multiple plans, yet here we are facing an ultimatum of July 3, because they could not do the task that was laid before them by their minister. That is a disgrace about the Indian affairs department.

They ask us to trust them, and we have been asked to trust them for 150 years, only to be asked to trust them again for another two years and to hopefully see it happen. I know the minister has a good heart and cares about this issue, but what happens if the Minister of Indigenous and Northern Affairs is shuffled out of that position and it is someone else whose priority is not justice? Are we to wait again and again?

This is truly from the heart. I was going to read some stuff, but at the end of the day I do not care about what is there. I remember listening to the lady at the Indian affairs committee. I am an Indian. I assumed that name Indian because my grandfathers call me an Indian and we use it among ourselves. I am an American Indian, a North American Indian. I am also nehiyo, even more important, Cree.

When I think about the Indian Act, it is discrimination, but it does not mean that the Indian Act must continue into the future as it is. We can make those adjustments, but today the Indian Act is so important because tomorrow it will decide who will be the citizens of the indigenous nations of this land. If people have status today, they will be citizens tomorrow. If they have no status today, there is no guarantee that tomorrow they will have that status and will be able to exercise that status within an indigenous nation, nor will they have access to their traditional territories, nor to who they are and what makes them a nehiyo, Anishinabe, an Inuit, a Métis, a Michif.

This is the basis of the future indigenous nations, taking the Indian Act, which granulated us down into little components fighting among ourselves, and hopefully we will be able to come together. Yes, it is going to be difficult. Yes, it is not going to be fun, but we need to have this debate and we need to be forced into that debate.

The indigenous leaders of our country needs to be forced to face reality as they were in 1985. No chief wanted these bastards back on their territory, yet here we are, and we are still asking to be let in. We are still banging on that door; we are still saying let us into the eastern, the southern, the western, and the northern doors. Let us into our traditional territories because we have a birthright, and it is a birthright that should not be denied in 2017.

[Member spoke in Cree]

[English]

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

Mr. Speaker, meegwetch to my colleague from Winnipeg Centre. That was a heartfelt and difficult speech to make, I have no doubt. All of us who are not indigenous but wish to stand in solidarity with the indigenous peoples of this nation, as I feel as a member of Parliament, are on the horns of the dilemma of celebrating Canada 150, because I have so many pins and flags, and recognizing that it is 150 years of colonization, oppression, and as the member previously mentioned, theft. I understand the anger.

I would love to see us be able to get rid of the Indian Act in the 41st Parliament. When I discuss this with people who are more knowledgeable, they say there are certain nations that do not want to get rid of it; there are inconsistent positions.

I want to know what the member for Winnipeg Centre suggests this Parliament do to make the historical difference, to turn the page and begin the path to real justice, truth, and reconciliation.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, the 150th anniversary of this nation should be a year of celebration, because nation building is about people. If we do not lift people up, if we always tell them they are poor, they are hungry, if we say they are ignorant, if we tell them they have no hope in the future, what do they do? They commit suicide. They do not reach their full potential. In this case, what I am hoping for, what I would like to see, is the birthright returned to the indigenous people of this land.

In the beginning, it really was not Canada's right to take that birthright and define who is an indigenous person, but it did so. In this case, the Senate amendment brings us to a time when it is no longer Canada that is deciding, it is the registrar in a way that will determine if someone can prove they have an indigenous ancestry.

Who knows how many indigenous people there are in this country? The indigenous nations will be much stronger for it if they are there working together, because we have been divided so long. This would be a great gift for me, returning that birthright.

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

Mr. Speaker, I commend the hon. member from Winnipeg for his tremendous speech. Once again, he has talked about issues that are so relevant to so many people, not only in our city that we share but across Canada. There is simply so much history we cannot be proud of, beginning with Canada's relationship with indigenous people, the royal proclamation.

Our first policy toward first nations people was to Christianize. Part of the Government of Canada's policy was to make indigenous peoples Christian. From there, civilization became the policy objective, to drive the native out of the native person by any means possible. Assimilation, of course, was to make all indigenous people not indigenous, to make them Canadian. From there spawned the Indian Act, which still governs the way we deal with first nations people today, including what we are discussing today and into the future, Bill S-3.

Does the hon. member foresee a time in our lifetime, in our children's lifetime, when we will no longer have an Indian Act in our country?