moved the second reading of, and concurrence in, amendments made by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act, in response to the Superior Court of Quebec decision in Descheneaux v. Canada.
I want to acknowledge that we are gathered on traditional Algonquin territory.
Today, we pay tribute to the tireless efforts of the women, including Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bedard, Sharon McIvor, Senator Sandra Lovelace Nicholas, Senator Dyck, and so many others who have fought to ensure that the descendants of women who lost their status because of sex-based discrimination are treated equally to the male line.
I want to be clear that I stand in solidarity with the indigenous women who have been fighting for gender equality in the Indian Act registration for decades. I hear their pain, the hurt of receiving a letter in which they were told that their marriage would cost them their indigenous status and knowing their descendants would also lose their indigenous identity.
Our government is committed to working with first nations, parliamentarians, impacted individuals, and experts to ensure all sex-based discrimination is eliminated once and for all from registration provisions in the Indian Act.
Bill S-3 was introduced by the government in response to the Descheneaux court decision and is focused on eliminating residual inequities flowing from the historical sex-based discrimination in Indian Act registration.
As members are well aware, this legislation was introduced in the context of a court-imposed deadline to remedy the specific charter breaches found by the Superior Court of Quebec in that case. In recognition of the court-mandated deadlines, the government launched a two-stage approach in response to the Descheneaux decision.
The first stage was focused on passing legislation to remedy sex-based discrimination in Indian Act registration, which violated the charter, whether ruled by a court or not.
The second stage was to occur immediately after the passage of Bill S-3. It was to be a comprehensive and collaborative process with first nations, impacted individuals, and experts on the needed broader reform of Indian Act registration, membership, and citizenship.
This consultation is enshrined in the bill and must commence within six months of royal assent.
I want to thank the Senate for its diligence and willingness to work with the government and across party and caucus lines to strengthen Bill S-3.
The government has worked closely with the Standing Senate Committee on Aboriginal Peoples and many other senators on numerous amendments to the original version of Bill S-3. These amendments have greatly improved this legislation.
For example, the bill now proactively addresses further groups impacted by residual sex-based discrimination, which were identified during the Senate committee hearings by the Indigenous Bar Association.
The bill also now addresses the issue of unstated paternity by enshrining additional procedural protections in law.
As members will recall, there was one amendment proposed by the Senate that the House of Commons did not support. While well intentioned, the scope of the amendment, now commonly known as the “6(1)(a) all the way” amendment, would have focused on other Indian status issues beyond residual sex-based discrimination in registration.
As mentioned, Bill S-3 was introduced in response to the ruling in Descheneaux. Accordingly, the bill seeks to eliminate sex-based inequities in the registration provisions of the Indian Act.
While the government is launching co-designed consultations early next year regarding broader Indian Act registration and membership issues, these matters are outside the scope of the current legislation. Moreover, independent legal experts, including the Indigenous Bar Association, highlighted to the House committee that significant legal ambiguities were created by the way the amendment was drafted. The government also had significant concerns regarding the inadequate time afforded for meaningful consultation with first nations and other impacted parties regarding the practical implications of such an approach within the court-mandated deadline.
Given these legitimate concerns, last June, the House of Commons amended Bill S-3 to remove the “6(1)(a) all the way” amendment. The Senate expressed significant concern that without the “ 6(1)(a) all the way” amendment, or a comparable replacement, Bill S-3 would not eliminate all residual sex-based discrimination from registration provisions in the Indian Act.
Bill S-3, as passed by the House of Commons last spring, remedied all sex-based discrimination in Indian Act registration since the modern Indian registry was created in 1951. Given that the modern Indian registry came into effect in 1951, the current state of the law requires remedies for Indian Act sex-based registration inequities to apply from that date forward. This has become commonly known as the 1951 cut-off and reflects the B.C. Court of Appeal ruling in the McIvor decision. While the 1951 cut-off is specifically referenced in Bill S-3 as a key component of the mandated future consultations, many senators and first nations advocates have argued strongly that amendments specifically dealing with the 1951 cut-off should be included in this bill.
The government acknowledges the understandable and justified scepticism of first nations and parliamentarians about decades of inaction by governments of all political stripes on the 1951 cut-off. We have listened to the arguments put forward by the Senate as well as other indigenous voices and are now proposing to amend Bill S-3 to deal with the 1951 cut-off. The proposed clause would put 6(1) status to all women who lost status through sex-based inequities and to their descendants born prior to 1985.
This includes circumstances prior to 1951. The proposed clause would eliminate sex-based inequities that date back to 1869.
The effect of this clause would be to remove the two-parent rule for the descendants, born between 1869 and 1985, of women who lost status because of sex-based discrimination. The government amendment is also drafted in a way so as to avoid any internal contradictions within the Indian Act, and therefore, would not create any legal ambiguity.
The government believes that in keeping with the scope of Bill S-3, the proposed amendment is the best way to eliminate all remaining sex-based discrimination from registration provisions in the Indian Act.
The Senate passed Bill S-3 with the government's new amendment on November 9.
It is important to note that during the debate in the other place, the new government amendment garnered majority support from all the Senate caucuses and groups. Senators Dyck, Lovelace Nicholas, Sinclair, Christmas, and Patterson were among the many prominent senators from each of the caucuses and groups that publicly supported Bill S-3 with the new government amendment included.
Senator Lillian Dyck said the following in the debate in the other place:
The motion today legislates the intentions of the “6(1)(a) all the way” but in a different manner than the McIvor amendment. The end result is the same and the legislative mechanism proposed can actually be seen as an improvement over the McIvor amendment. If we pass Bill S-3 as amended by today's motion, all of the female sex-based discrimination will be eliminated in the Indian Act.
During his speech, Conservative critic Senator Patterson stated:
I believe that by supporting this message—and it is a bit of an act of faith—we are doing right by indigenous women and their descendants.
Senator Sinclair also spoke in favour of the motion. He stated:
I would like to add my support for this motion and indicate that I intend to vote for it....
The amendments before us, to my relief, leave no legal distinction between indigenous men and women. It brings the act, therefore, into compliance with the Charter.
Both the Assembly of First Nations and the Native Women's Association of Canada also support the amended bill.
An updated democraphic analysis, which was commissioned by the government over the summer, is now public.
The government made this demographic data public in the interest of transparency, but does not believe this to be a reliable way of estimating potential impacts.
These numbers significantly overestimate the number of individuals who would successfully obtain Indian status. The limitations of the current demographic projections, even with the additional independent demographic work, further underscore the need for meaningful consultation on the best possible implementation plan.
The government will continue to work on further refining current demographic estimates and looks forward to the broad-based consultations on Indian Act registration and membership, to begin in early 2018, to assist in this process. The government is committed to ensuring that the removal of the 1951 cut-off is implemented in the right way, in terms of both first nations communities and the individuals who will become entitled to registration.
We have always been clear that significant changes impacting first nations would be done in consultation and partnership. This approach is in keeping with the commitment to a renewed, respectful relationship, based on the recognition of rights, and to implementing the United Nations Declaration on the Rights of Indigenous Peoples. That is why while the balance of Bill S-3 will be brought into force immediately after royal assent, the amendment dealing with the 1951 cut-off will be brought into force after the conclusion of co-designed consultations.
These co-designed consultations will be about how to remove the 1951 cut-off, not whether to do it. They will be focused on identifying additional measures or resources required to do this right and on working in partnership to develop a comprehensive implementation plan, to be launched simultaneously.
Some have raised concerns about this approach, but while speaking during the Senate debate, Senator Christmas summarized the realities succinctly:
I believe it’s also essential to recognize that the consultation with First Nation communities that will flow from the bill’s requirements on consultation and reporting back to Parliament reflect the basis of the Principles respecting the Government of Canada’s relationship with Indigenous peoples, announced in July of 2017.
In doing so:
The Government recognizes that Indigenous self-government and laws are critical to Canada’s future, and that Indigenous perspectives and rights must be incorporated in all aspects of this relationship. In doing so, we will continue the process of decolonization and hasten the end of its legacy wherever it remains in our laws and policies.
During the same debate, Senator Sinclair added:
I want to point out that this bill attempts to reconcile two different constitutional obligations that the government has: One is, of course, to comply with the Charter when it comes to gender discrimination; the other is to comply with its constitutional obligation to consult with indigenous people.....
So while it is with reluctance that I see us delaying the implementation of a Charter right, I can also see the need to do so because of that competing constitutional obligation to consult. And so I am prepared to support this legislation because it enshrines the right.
Bill S-3 also has numerous clauses to provide accountability to Parliament on its implementation and the related consultations. Within five months of royal assent, the bill requires the government to report to Parliament on the design of the consultations and how they are progressing, and a further update to Parliament is required within 12 months of royal assent.
There is also a three-year review clause in the bill, which requires the government to report to Parliament on the provisions of section 6 of the Indian Act enacted by Bill S-3.
The purpose of this review is to confirm that all sex-based inequities under the registration provisions have been eliminated.
If the government fails to pass legislation before December 22 to address the Charter issues outlined in the Descheneaux decision, the sections struck down by the court will be inoperative in Quebec. The practical implication would be that these provisions would then become inoperative within Canada, as the registrar would not be in a position to register people under provisions found to be non-charter compliant.
Ninety per cent of status Indians are registered by the federal government under the provisions that were declared of no force and effect in the Descheneaux decision. These individuals are consequently unable to access the benefits that come with registration.
We cannot lose sight of the thousands of individuals who will not be able to register if the court deadline passes and the provisions noted above become inoperable, or of the up to 35,000 people who will become eligible to register as soon as this bill receives royal assent.
Bill S-3, as amended, would remove all residual sex-based inequities from registration provisions in the Indian Act. As Senator Christmas said during the debate in the other place, “The government did its job—in listening and in acting. Now it is time for all of us to do our job and adopt this amendment without delay.”
I urge all members to support the amended message from the Senate and pass Bill S-3 in its current form.
