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

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

Mr. Speaker, often we say we are honoured to stand up in this House. However, today I am actually very disappointed to have to stand up in the House and talk to the amendments I have proposed, why I proposed these amendments, and how the current government has failed to live up to both its promises with respect to the 2015 election and its commitments regarding engagement with indigenous people before it puts proposed legislation on the table.

Members will recall that back in 2015 the government said there would be no omnibus legislation and that it would never table omnibus bills. It also said that if something was not in the budget it would not be in any budget implementation act. Those were commitments it made to Canadians across this country and it has repeated. However, what we have learned, like with its promises for a balanced budget and democratic reform, is that it is simply not following through on its promises. For some reason, it has managed to get away with people not calling it on that. However, I think it is time that Canadians realize that many of the things the government has said it is not following through on.

What has happened? We had the budget implementation act, Bill C-86, land on our tables and it was 802 pages. That is a significant size for a bill. I guess I should not have said, “land on our tables”, because the bills are not printed anymore and there are very few copies. However, it is really quite a massive implementation act.

We do not get a paper copy anymore. Therefore, as we try to look through and understand what is in this massive bill with the tools we are given, like we often do in this House, the government did not even bother to use a format in the budget implementation act that would link us to the sections we wanted to read. In the case that I am talking about, there were three particular areas that related to indigenous legislation, and I could not even get to read what was in the act in a reasonable manner. I had to scroll for minutes and minutes to get to where I needed to be. Therefore, not only do we not have a hard copy, but the government has made it virtually impossible to try and get to the sections of the bill that we need to get to without going through a very onerous process. Quite simply, it should be ashamed of itself because that is not acceptable.

What do we have in this particular bill? As I indicated, there were three sections, division 11, division 12 and division 19, that were specifically related to the indigenous changes.

I am going to focus on division 19, which enacts the addition of lands to reserves and reserve creation act. That was not in the budget of 2017. It was not in the budget of 2018. It was almost impossible to find, but is a significant change the government is proposing, and should be a stand-alone piece of legislation. I hope when people vote for the report stage amendments that the government will reintroduce it in the way it should have introduced it in the first place, as a stand-alone piece of legislation that will go to the indigenous affairs committee to review further.

The next thing that we spot is that it is in the budget implementation act, but it was not referred to the indigenous affairs committee. A motion was brought forward at the indigenous affairs committee saying that we should at least look at this so that we understand what the intentions are, what the government is trying to do, so that we could determine if there were any suggestions we needed to make through amendments. The Liberal majority on the committee voted that down. Therefore, division 19 has had virtually no scrutiny in Parliament. The second reading debate was cut so short that there was no time to even have a conversation about division 19.

One of the interesting things is this. The government has said there is no relationship more important to it than that with indigenous peoples in Canada. It has also committed to a consultation process before it introduces legislation. It committed to the UN Declaration on the Rights of Indigenous Peoples, which ensures that, when laws are going to impact indigenous peoples in this country, the government will have a robust consultation process before it introduces any legislation.

I will talk about what happened as the Senate was doing a pre-study on this particular division.

Susan Waters, the director general, lands and environmental management branch in INAC said, “The Treaty Land Entitlement Committee was part of our outreach and engagement. We work closely with them. We are working with them to address the issues that were identified in the arbitration.... The Treaty Land Entitlement Committee are very much aware; we have spoken with them personally, and we continue to speak with them about this proposal.”

Chris Henderson, the executive director of Treaty Land Entitlement Committee of Manitoba, said:

We are concerned about this proposed legislation simply by the fact that nobody from the government ever asked us if we want the act, and also in terms of how will this act improve the land conversion process under the 1997 TLE framework agreement.... Now, with this proposed new ATR legislation, nobody from the Government of Canada ever came to us or our member First Nations to ask us, first, do you want this ATR legislation; and, second, what impacts will there be if we do propose legislation? We were never asked those questions. So out of nowhere, we have this new proposed ATR legislation before the House of Commons. At this point, it's somewhat premature to ask us if we want it because, again, we were never asked to begin with if it's something we asked for.

What we have in division 19 is a change, and it could be a significant change. However, we do not know how significant it is, because we have not had the opportunity to have it referred to committee to do our due diligence in terms of bringing witnesses forward. There is no question that the government has absolutely failed. I bet if I went across this country and asked chiefs if they knew about the new addition to reserve legislation that was hidden in the budget implementation act, they would be very puzzled and very concerned.

Really, how does that meet the government's commitment? It is another case of the government continuing to stand up and say the nice words but when it comes to doing the work, it just does not get it done. This is why it was such a mistake to put this into the budget implementation act.

We looked at Bill S-3, which was a stand-alone piece of proposed legislation. The government said not to worry, it had it all right, it was a response to a court case, we heard from the officials and it looked like it might be a reasonable path forward. What we found when it got to committee was that it was actually a mess. People who came to us in committee said that it was a problem and that it was a mess.

I hope the other two divisions are fine, but they have not had the scrutiny of divisions 11 and 12. There is the First Nations Land Management Act, which is very significant, the First Nations Fiscal Management Act, which is again pretty significant, on organizations and operations. However, nothing has been done.

I think it would be important for the Liberals especially and all members of the House to say that we promised we would not do this, but we did it. We have some testimony over in the Senate, and it should lead us to be a little concerned about what we have done. We need to actually support the amendments proposed by the Conservatives and do some proper process in terms of making sure that we are going to move forward with a piece of legislation that is going to get the job done. Otherwise, again, it is another broken promise and another failure of the Liberals.

Bill C-86—Time Allocation Motion

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

Mr. Speaker, in this budget implementation act there are three bills concerning important indigenous issues that should be separate and standalone bills.

First of all, when trying to go to the relevant areas of the document, there are no links. The document is so massive it takes 10 minutes to even get to one area of the bill. No hard copies were provided.

As well, we were shut down at committee when we wanted to look at the three standalone bills. After the mess the government made with Bill S-3, it is a travesty that the committee responsible for this area is not looking at these three pieces of legislation as standalone bills.

As the shadow minister, I will not even get a chance to speak in the House at second reading of this bill. This is absolutely shameful, and I would like the finance minister to stand up and justify how he can have three pieces of indigenous legislation not subject to proper scrutiny by the people best poised to scrutinize it.

Status of Women

[Justin Trudeau, Liberal, Prime Minister]

Mr. Speaker, sex-based equity is a fundamental human right. The recent incorrect media reports containing inflated unstated paternity numbers have now been corrected.

Bill S-3 eliminated all sex-based discrimination from the Indian Act registration provisions, including enshrining additional procedural protections for unstated paternity. We recognize that there are a number of flaws within the Indian Act. That is why we have committed to work with indigenous peoples across this country to move forward beyond the Indian Act. We look forward to that path toward reconciliation with them over the years and decades to come.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Mr. Speaker, Bill S-3, an act to amend the Indian Act, still contains gender-based discrimination.

The Superior Court of Quebec ordered Canada to address all exclusions based on gender, but Bill S-3 only removes certain obstacles. Gender inequality continues to exist today, in 2018.

As this is Gender Equality Week, can the Prime Minister confirm today that he will eliminate all inequalities in Bill S-3, an act to amend the Indian Act?

United Nations Declaration on the Rights of Indigenous Peoples Act

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

Mr. Speaker, I had the great honour of meeting modern-day pilgrims coming from the faith communities across Canada, young people, people well into their eighties who had been walking for days. Members of the Mennonite Church and young activists were expressing themselves through their church in a way that I had never seen before.

The cause they had taken up, in the spirit of the calls to action of the Truth and Reconciliation Commission, was to urge the government and Parliament to adopt Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples. It was such a beautiful marrying of faith, activism, and commitment to improving the country, to indigenous reconciliation, and to our parliamentary process. To see protest signs with a bill number on them is not something we see every day. It was the bill that was advanced by my New Democrat colleague, the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou.

I am so honoured to have been greeted by that final pilgrimage coming into Ottawa. I am also grateful to be at the service of the people of Nanaimo—Ladysmith in Coast Salish territory, representing that riding at this time in Parliament, because this is a historic day.

My colleague said so powerfully in his opening statement this afternoon that there was no reconciliation in the absence of justice. He reminded us that UNDRIP had been reaffirmed eight times by the United Nations, by consensus. He reminded us that no state in the world opposed UNDRIP, and that even the Harper Conservatives in 2010 acceded to UNDRIP. Therefore, it is well past the time.

The framework for UNDRIP is the framework for reconciliation for Canada. It was used by Justice Sinclair in the Truth and Reconciliation Commission as the framework for the report. In turn, Bill C-262 responds directly to the calls to action in the TRC report, specifically calls to action 43 and 44.

I am reminded of the words of my friend and colleague from Snuneymuxw, a former Snuneymuxw chief, Doug White III. Kwul’a’sul’tun is his Coast Salish name, his Hul'q'umin'um' name. He said:

...to those of us personally and intimately engaged in the struggle for justice for Indigenous peoples, one can sense that while the work remains fierce and intense, there is momentum building toward potential breakthroughs.

He further stated:

Canadians are far more aware of our history of colonialism, and the required work of reconciliation. I am hopeful that in 2018, Canadians will not succumb to voices that are intent on looking backward and maintaining what has been. The reality of what has been for Indigenous peoples is nothing to be preserved.

He urges specifically the endorsement of UNDRIP, and my colleague's bill, Bill C-262.

I asked this Parliament if we need this bill, given the government has acceded to the UN treaty. I say we do.

UNDRIP article 18 calls on governments to recognize that indigenous people have the right to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves in accordance with their own procedures, yet the government has approved the Kinder Morgan pipeline and its attendant oil tanker traffic running through the waters of the Salish Sea, through the riding I represent.

The hypocrisy of the government in saying that it believes that communities should control their own destiny, that it believes in the nation-to-nation relationship and then run roughshod over democracy and those promises tells us that we need the bill and we need to legislate a commitment to UNDRIP. Despite articles 21 and 22, which specifically point to the ending of violence against women and children and the particular role of indigenous women in our democracy, the government passed Bill S-3. It specifically chose to enshrine the continuation of discrimination against the rights of some indigenous women in the Indian Act over the urging and the voices of the six women, known as the Famous Six, who had fought for 40 years in the Supreme Court. We fully expected the government, given its feminist agenda and its commitment to a nation-to-nation relationship, to do better.

We do need this legislation. I am so honoured to serve with the member. The spirit he is offering to our country, especially given his own family's personal history with residential schools, is an extremely generous gift.

I urge the House in its entirety to vote together in consensus to move our country forward.

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

Mr. Speaker, I am pleased to have this opportunity to rise today to speak to Bill C-262 at third reading. Again, I want to acknowledge the tremendous effort of the member for Abitibi—Baie-James—Nunavik—Eeyou in bringing forward the bill and the important discussion it has generated around the UN Declaration on the Rights of Indigenous Peoples.

During second reading debate, we presented a number of very specific and practical concerns. Unfortunately, in spite of further analysis at committee and detailed testimony, I continue to have reservations about the implications of enacting Bill C-262. It needs to be said first and foremost that our not supporting the bill does not mean we do not recognize the UN declaration as an incredibly important document for Canada. We recognize that it is going to require an effort from whoever is in government to live up to the standards it has set for all of us. However, we do also need to ensure that our support or non-support for any individual piece of legislation is based on a reasonable examination of the potential implications of the bill

Lawyers from Cassels Brock noted:

UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada’s world-leading legal protections for Indigenous rights; Canada is the only nation with an established system for limiting unilateral state action against Indigenous peoples. By simply adopting UNDRIP in its entirety into the Canadian context, Bill C-262 misconstrues Canada’s existing and sophisticated Indigenous rights regime and, by adding new uncertainties, risks hindering the pursuit of reconciliation.

They went on to say:

While UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law. The fact that UNDRIP is a declaration and not a convention makes this clear. Conventions are binding agreements intended to be a reflection of international law and to be incorporated into national laws. Declarations, in contrast, are statements of generally agreed-upon standards which are not themselves legally binding.

Their concerns are not inconsistent with the comments by the justice minister in 2016, when she said:

Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.

Clearly, she has changed her mind, but has given no explanation how something that was previously unworkable and a distraction is suddenly workable. To be frank, when the Justice officials came before us at committee, they really did not offer any further clarity as to how those comments align with the current government position.

The following areas are some of the concerns that are unresolved and, unfortunately, time is only going to allow me to highlight a few.

As noted by one witness, there seem to be three main interpretations of what free, prior, and informed consent means. To be frank, this was consistent with other testimony at committee, because when we asked people what it means, we were given a number of different definitions. One of the ways they described it was that it is not enough to seek free, prior, and informed consent, but enough that you try without actually obtaining it. I might suggest that the Kinder Morgan is a good example of where the government tried to get free, prior, and informed consent, but did not obtain it and moved ahead anyway.

A second interpretation states that it is “really about the type of process required and that it's possible to move away from talking about consent as long as one has the right type of consensus-oriented process.” I guess that is the free, prior, and informed, but no consent, model.

Finally there are many, especially among the first nation communities, who feel it is grounding rights in something analogous to vetoes, or the right to say yes and the right to say no. That has been heard time and time again by many communities. Certainly, Pam Palmater expressed very clearly in what alternate universe does consent not mean the right to say yes, the right to say no, or potentially veto.

I would suggest that prior to moving forward with a piece of legislation like this, the government needs to make sure that it has an agreed upon interpretation of FPIC with indigenous people so that we do not have the confusion that is out there right now. Again, I can use the Kinder Morgan example, where there are many communities saying that they have not given free, prior, and informed consent, and that the government is going forward anyway and not being consistent with the declaration. Not having that understanding will lead to certain problems down the road.

It was indicated by the proponent of the bill that FPIC, and again we are looking at a multi-jurisdictional project going over much traditional territory, means free, prior, and informed consent from every community that would be impacted. That is absolutely going to be a challenge down the road.

Article 19 of UNDRIP speaks of the need for FPIC for all laws of general application. In a country such as Canada, how would it be feasible to consult and try to obtain consent from Métis, Inuit, and all first nations for essentially every bill tabled in Parliament? Clearly, almost every bill tabled in Parliament has an impact under article 19. I am concerned that this would lead to paralysis and an inability by government to move forward on its agenda and commitment.

Marie-Claude Landry, chief commissioner of the Canadian Human Rights Commission, identified the very important question of who would have access to these rights if this legislation is passed. With the recent Daniels and Descheneaux decisions and the ongoing Bill S-3 consultations, the issue of indigenous identity is increasingly complex and must be resolved.

In addition, Dwight Newman, professor of law and Canada research chair in indigenous rights, identified a number of drafting concerns and internal inconsistencies that would create significant challenges if Bill C-262 were adopted. This leads me back to second reading debate and one of my original suggestions based on the point made by witnesses that this is a quasi-constitutional piece of legislation. Certainly, I think everyone in this House should agree that a quasi-constitutional piece of legislation deserves the scrutiny a government bill would generate, a government bill that we would get to question the minister about its nuances, and that we would have a much more robust opportunity to have debate and back-and-forth on, as opposed to a very constrained debate.

Accordingly, we not only have important unanswered questions, but also legitimate drafting concerns that were expressed during committee hearings. That said, I want to acknowledge that this bill is incredibly important. It is also symbolic, as we have heard tonight, and some have identified it as an absolutely essential component of reconciliation.

For others who have expressed concerns, they have attempted to engage in a nuanced and serious discussion, but have certainly been met with condemnation. The following are just a few examples. One witness suggested that any objections to voting for this bill were simply based on a colonialist attitude of the people who would not vote for it. A Liberal member said privately that if someone did not support this bill, they were just racist. I found that incredibly insulting.

A number of witnesses were unwilling to testify, feeling that any concerns expressed would simply be construed as being unsupportive of reconciliation. When debate is constrained, so is democracy. The debate among citizens and with political leaders is crucial to building consensus. I do not think we want this place to always be an echo chamber if we really have significant concerns about what a bill would do.

I want to note that in May 2016, the Minister of Crown-Indigenous Relations stated at the UN that the government fully intended to adopt and work to implement the United Nations Declaration on the Rights of Indigenous People. However, as my question indicated earlier, I would suggest there are many examples of where the government has not actually stood up to that standard.

In conclusion, international declarations are important to guide legislation and policy, but must be interpreted in the context of a country's existing legal framework, as opposed to adapting laws to the blunt instrument of a generic declaration. The real work of reconciliation is going to happen, of course, in our communities where we live, work, and play. We do, I believe, have the will and the momentum.

Thus, in spite of the fact that we will not support Bill C-262, we do support and are committed to moving forward with reconciliation.

Indigenous Affairs

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Crown-Indigenous Relations and Northern Affairs]

Mr. Speaker, I rise today on the traditional territory of the Algonquin people to answer this question again from my hon. colleague from Nanaimo—Ladysmith.

We are a strong feminist government, and we are proud to be such a strong feminist government. Not only that, we are the first government to ever accept and enter into full nation-to-nation co-operation with indigenous people in this country, and we are doing so totally on the premise of respect.

Our government is committed to ensuring equity for all women in Canada, and that includes ensuring sex-based equity for women with respect to registration under the Indian Act. Our government is pleased that Bill S-3, which finally eliminates all sex-based discrimination from registration provisions in the Indian Act, has now received royal assent and is law. That itself is a tremendous accomplishment, and I would expect the member opposite would be saying that the government is on the right track. More needs to be done, and that is why I am here this evening to tell her that more will be done.

This is a step toward reconciliation for first nations' women's rights, as well as for respect and equality in this country. Bill S-3 responded to the Descheneaux decision, but it went beyond the charter considerations that were addressed in the case. This included sex discrimination and circumstances prior to 1951. In fact, the bill remedies sex-based inequities dating back to 1869.

While the balance of Bill S-3 was brought into force immediately after royal assent, the clause that deals with the 1951 cut-off will be brought into force after the conclusion of co-designed consultations. That is the piece that the member opposite does not agree with. She does not believe that we should consult with indigenous people in this country on how that will happen. However, we will be tabling and updating a co-designed consultation process on the broad-based Indian Act registration and membership reform in Parliament next month. She will get to see how that process will be launched in June of this year.

The government has also made it very clear that consultations and partnership are essential prerequisites for any major changes that involve first nations in this country. That is what we call nation-to-nation working together. This approach is in keeping with our government's commitment to renewing our relationship with indigenous people, one based on recognition of rights, respect, co-operation, and partnership. We will not throw that out the window simply because the member opposite cannot wait to do what is right.

In fact, our consultations are focused on identifying what measures and resources will be required to do this right, and working in partnership to develop a comprehensive implementation plan. It has nothing to do with consulting on gender equity.

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, we are the first government in this country to recognize the very need to change the legislation that currently exists in Canada, which has been there for hundreds of years. We are restoring rights to indigenous women with respect to gender-based equality in this country, and that cannot be denied as it is clear in the legislation.

We are the first government in the history of this country to ever do so, and we have been committed to this process since the very beginning. We are determined to do this. We are determined to do it right, and with royal assent of Bill S-3, much of that process has already begun as I speak today.

We are also committed to changing the relationship that Canada has had with indigenous people in this country, and in changing that relationship we have agreed to do so in a respectful way to work together as partners. I would ask the member opposite to understand and accept that.

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Crown-Indigenous Relations and Northern Affairs]

Madam Speaker, first of all, I would like to acknowledge that we are gathered on the traditional territory of the Algonquin people. Second, I would like to congratulate all of those women who were recognized last evening, and many other women across Canada who have fought, and continue to fight, hard for gender-based equity in our country, including those within the House of Commons.

I also want to reiterate that our government is absolutely committed to ensuring gender equity for all women in Canada. That includes ensuring sex-based equity for indigenous women regarding the Indian Act registration. The government is pleased that Bill S-3, which finally eliminates all sex-based discrimination from registration provisions in the Indian Act, has now received royal assent. This is a tremendous step forward in this country for reconciliation, for indigenous women's rights, and for respect and equity in Canada. This includes circumstances prior to 1951, and in fact, the bill remedies sex-based inequities dating back to 1869.

While the balance of Bill S-3 was brought into force immediately after royal assent, the clause dealing with the 1951 cut-off will be brought into force after the conclusion of the co-designed consultations. The government has made it clear that consultation and partnership are essential prerequisites for any major changes involving first nations. We have set that out from the beginning. This approach is in keeping with its commitment to a renewed, respectful relationship, a partnership based on the recognition of rights, and to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

The effective removal of the 1951 cut-off will require extensive consultations with communities, affected individuals, and experts to ensure we get this right. The government is committed to ensuring that this measure is implemented in the right way, both in terms of first nations communities and individuals who will become entitled to registration. As Senator Sinclair noted in his speech and in other places regarding Bill S-3, while he is somewhat reluctant that he sees us delaying the implementation of the charter right, he can also see the need to do so because of that competing constitutional obligation to consult. He said that he was prepared to support the legislation because it enshrines the right, and we would ask that members of the House of Commons do the same.

Consultations will be focused on identifying additional measures and resources required to do this right, and on working in partnership to develop a comprehensive implementation plan. This is a responsible and prudent way to proceed as a government. We will ensure that the government implements these measures in a way that will eliminate or mitigate any unintended negative consequences for communities and individuals.

[The Speaker, Geoff Regan]

I have the honour to inform the House that when the House did attend Her Excellency the Governor General in the Senate chamber, Her Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill C-305, An Act to amend the Criminal Code (mischief)—Chapter 23.

Bill S-211, An Act respecting National Sickle Cell Awareness Day—Chapter 24.

Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)—Chapter 25.

Bill C-60, An Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain Acts and provisions that have expired, lapsed or otherwise ceased to have effect—Chapter 26.

Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States—Chapter 27.

Bill C-277, An Act providing for the development of a framework on palliative care in Canada—Chapter 28.

Bill C-67, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2018—Chapter 29.

Bill S-236, An Act to recognize Charlottetown as the birthplace of Confederation—Chapter 30.

Bill C-36, An Act to amend the Statistics Act—Chapter 31.

United Nations Declaration on the Rights of Indigenous Peoples Act

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

Mr. Speaker, I would like to thank the hon. member for Abitibi—Baie-James—Nunavik—Eeyou for bringing forward his private member's bill, Bill C-262. I note his important contribution to the discussion on the UN Declaration on the Rights of Indigenous Peoples. I would also like to share my profound respect for my colleague and acknowledge the important work he has done over many years that has significantly impacted indigenous policy in this country.

Before addressing the private member's bill, I would like to make a general observation. Section 35 of our Constitution and Canada's existing laws has in the past, and will in the future, ensure that indigenous rights are protected in Canada. We only need to reflect on a number of historical court decisions to understand how section 35 is shaping these rights. From the 1999 Marshall decision that confirmed the Mi'kmaq and Maliseet treaty right to catch and sell fish, to the 2014 Tsilhqot'in decision that granted aboriginal title to more than 1,700 sq kilometres of territory, a first in Canadian law, it is clear that our understanding of indigenous rights is constantly evolving. Just last week, the Supreme Court of Canada rendered a decision regarding the Peel watershed, which upheld aboriginal land use rights protected in treaties.

It might be suggested that the gap or problem in Canada is not our legal framework, but our frequent failure to live up to the obligations and the honour of the crown.

The bill before us today seeks to implement the 46 articles in the United Nations Declaration on the Rights of Indigenous Peoples, as stated in the document, “a standard...to be pursued in a spirit of partnership and mutual respect”. All parties in the House acknowledge the need for reconciliation, a better shared future, and the importance of the declaration. The 46 articles are essential guiding principles for that journey.

I do have some unanswered questions regarding how this international document will transpose into a domestic framework. In my opinion, we need some clear answers before we can move forward on Bill C-262. Let me share some general and specific concerns that need to be addressed.

In the past, the Liberals have argued vehemently that any small changes to the Indian Act and the Labour Code must only be introduced as government legislation, where there is an opportunity for comprehensive reflection and not just a couple of hours of debate. I would suggest that the bill before us today has more far-reaching implications than the right to a secret ballot for union certification. For the Liberals to support an NDP private member's bill to implement UNDRIP and not put it forward as government-initiated legislation is unfathomable. The debate will not be afforded the due diligence that it requires and deserves. Even today, members might have noticed that we did not hear from the minister. We did not have an opportunity under private members' business to even question the minister. In my mind, that is a problem.

To get into more specifics, first and foremost was the statement by the Minister of Justice in 2016, and I quote, “Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.”

The justice minister, unlike many of us who will be speaking to the bill, has access to all sorts of comprehensive briefings and advice. The minister would not have made that comment lightly, so it is critical for her to explain why she made the comment at that time, and how she now reconciles that with her recent commitment to support the bill. I would note that because it is private member's bill, we are very unlikely to get a chance to ask her that question.

On Thursday of last week, the Minister of Crown-Indigenous Relations was at committee. At that time, we had the opportunity to ask a number of questions, and I want to provide a brief summary of that testimony.

Article 19 suggests that the government ensure free, prior, and informed consent before adopting and implementing legislative measures that may affect them. When the minister was asked if that would apply to laws of general application or only laws that exclusively impact indigenous people, she clearly indicated that there would be a broader application. That brings us to a question of what future laws of broader application in this country would require free, prior, and informed consent, and how will that be determined in a country as diverse as Canada. How will that consent be given?

The national organizations acknowledge they are not rights holders, they are not the authorized decision-makers, and their mandate is advocacy. The indigenous community has indicated that it has to do a lot of work in terms of nation rebuilding. Therefore, what government structure or consultation framework would be put in place to actually engage in these consultations? To what degree would this commitment around the laws of general application fetter the government's ability to move forward? I will give some recent examples.

We certainly know that with Bill S-3, the government is committed to engaging in a consultation process. Clearly, that is not a general application law, but the government is going to have consultations with bands across the country. I have no idea how the government members are going to determine when they have concurrence and how long they are going to have to spend in a process where there will be human rights competing in terms of consent, and at the very dichotomy of the many consultations they will have to have. In that case it is first nations, but we also have the Métis and the Inuit.

The marijuana law is another example of broader application that is clearly going to have an impact in indigenous communities. Under our current framework, the government only engaged in a general consultation process. Would that bill be subject to article 19, and if so what would it do to the government's timelines and how are the Liberals going to move forward? The answer to that question is unknown, but it is important.

Today, we have been debating in the House Bill C-58, which is the privacy law. Again, we have a number of indigenous communities whose representatives have said that they have grave concerns. They have referenced the UN declaration in terms of their right to have input, and free, prior, and informed consent, but we have no system or process in terms of how we are going to move that forward. That is important work that needs to be done.

Where a lot of people have focused, the laws of general application are something we need to pay particular attention to, but there is also the issue of free, prior, and informed consent as it relates to the development of the natural resources. The minister has suggested it was not a veto and the position was supported by National Chief Bellegarde. However, he noted on three occasions that free, prior, and informed consent means the right to say yes and the right to say no. A number of lawyers have said the whole discussion is really a bit of semantics and whether it is veto or consent it has the same effect. Again, it leads to a question in law. What is the difference between “free, prior, and informed consent” and “consult and accommodate”, which is what we have in law right now? Certainly there is no question that the declaration proposes that change in our law and we need to simply know what that is going to mean because it is important. From what I have seen, the legal opinions out there are as varied as they possibly could be. As members might imagine, it leaves confusion in the minds of not only the indigenous communities but Canadians in general. We have some work to do in terms of developing a common understanding before we commit to an implementation into our legal framework.

Article 29 talks about the right to territories, lands, and resources. In British Columbia alone, that is 100% of the province. What are going to be the practical implications for perhaps the tourism operators in the Chilcotin or the ranchers who have depended on crown land, as these decisions get made? We have not talked about impacted third parties and how, as we correct the injustices of the past, we should not create a new injustice.

In conclusion, as members can see from my 10 minutes of speaking, there are a lot of important unanswered questions. My first concern is the fact that the government has committed to implementing this as a private member's bill where we are going to be limited in the debate and our opportunity to create a shared understanding. The shared understanding of all these concepts is going to be critical in terms of moving forward into success in the future for all.

Indigenous Affairs

[Pam Goldsmith-Jones, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, the Senate bill, Bill S-3amends the Indian Act to eliminate sex-based inequities in registration. Private member's billC-262 is an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Truth and reconciliation is under way. Parliament is working in service of our aspirations for a revitalized Senate, the contributions of individual members of Parliament, and listening and acting with the indigenous voices of Canada.

In my riding we too are acting in this spirit. On the Sunshine Coast, John and Nancy Denham led 30 shíshálh Nation and non-indigenous peoples in a dialogue circle. Our time together was respectful and intense. The West Vancouver Memorial Library hosted “Honouring Reconciliation: Hearing the Truth” to a full house, led by the Squamish Nation.

These are important experiences for Canadians and shíshálh and Squamish nations, as truth and reconciliation enables us to reach our full potential.

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

Mr. Speaker, the Liberals' Bill S-3 proposal does not end discrimination in the Indian Act, does not help all women, and should not be subject to consultation.

Indigenous women have been loud and clear. Discrimination should end for all indigenous women. Although Bill S-3 meets some of the court's order, it fails to bring justice for all indigenous women. Liberals promised that they would be better. They promised a real nation-to-nation relationship.

Does the minister concede that this bill fails to end gender discrimination for all indigenous women?

Business of the House

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, today we will continue the debate on Bill S-3, indigenous registration. Tomorrow, we will take up third reading debate on Bill C-63, the budget legislation.

On Monday, we will have the last opposition day in a supply cycle, meaning that we will also vote on supplementary estimates (B) and the respective appropriation bill at the end of the day.

Tuesday, we hope to complete third reading debate on Bill C-58, concerning access to information reforms.

Wednesday afternoon, we will call C-61, the first nations education legislation.

We will round off the week with Bill C-24, the Salaries Act, at report stage.

I would like to take a moment to sincerely thank all hon. members in this House for coming together on the apology of the LGBTQ2 Canadians this week.

Finally, discussions have taken place between the parties, and if you seek it, I think you will find unanimous consent for the following motion:

That, notwithstanding any Standing Order or usual practice of the House, when the House begins debate on the second reading motion of Bill C-61, An Act to give effect to the Anishinabek Nation Education Agreement and to make consequential amendments to other Acts, a Member of each recognized party, a Member of the Bloc Québécois and the Member for Saanich—Gulf Islands may speak to the said motion for not more than 10 minutes, followed by 5 minutes for questions and comments, after which the Bill shall be deemed to have been read a second time and referred to a Committee of the Whole, deemed reported without amendment, deemed concurred in at the report stage, and deemed read a third time and passed.

Indigenous Affairs

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

Mr. Speaker, our government is committed to working with parliamentarians, first nations, impacted individuals, and experts to ensure that all sex-based discrimination is eliminated from the Indian Act.

Bill S-3, as passed by the House of Commons, remedied all known sex-based discrimination with respect to registration since the Indian registry was created in 1951. We are now seeking to amend the bill to remedy sex-based inequities—