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

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I share my colleague's concerns on how we, as Canada, eventually get this right.

In the interim, we are staring down the barrel of a court deadline that is not going away. We have to pass some legislation, and that is why I stood in this place to say that I agreed with the spirit of the legislation, even with it being an interim measure that is going to keep incrementally moving us forward.

I want to commend the women the member mentioned for their advocacy and their fight in this regard. Without those voices, things do not change.

One of the things I wanted to focus on in my speech was the fact that no date was given on the consultation element, which was added on November 7. During debate today, the government could have provided a lot more information on that. Perhaps that would have remedied some of the concerns of my colleague.

This is not perfect. We need to continue to fix it but, in spirit, it is an incremental step that needs to proceed.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, here we are again, at the 11th hour, attempting to send Bill S-3 back to the Senate for royal assent prior the December 22, 2017, deadline. I guess we would call this “flying by the seat of our pants” legislation. There is a court-imposed deadline, so the government is going to get it done regardless. We have talked about that in the House most of the day.

Bill S-3 was tabled in response to a Superior Court of Quebec decision, Descheneaux v. Canada, in 2015, and other clearly identified issues. The court found that several aspects of Indian registration under the Indian Act violate the Charter of Rights and Freedoms, because there were differences between how status was passed down from first nation women compared to first nation men. These provisions were struck down, and Parliament was given a limited time to pass an alternative. The new deadline to pass legislative changes, after two extensions, is next month, on December 22. The court has indicated that it has no interest at all, which we have talked about, in giving the Liberal government a third extension.

When Bill S-3 was first brought to the Senate about a year ago, in fact exactly a year ago this month, the government sought to remedy the situation by bringing it back to 1951. However, several independent senators proposed adding what is known as the “6(1)(a) all the way” approach. This amendment would have all Indians registered as 6(1)(a), with equal rights and entitlements regardless of matrilineal or patrilineal descendants, back to 1869. The government, though, rejected those proposals.

After rejecting them on June 21 this year, the Liberal government undertook behind-the-scenes consultations with senators over the summer months to seek consensus around an alternate proposal. The resulting proposed changes were tabled in the Senate earlier this month, on November 7, and would come into force in two stages. The first one we have talked about. The aspects of the bill passed by the House of Commons in June would come into effect by the court-imposed deadline of December 22. Second, newly added clauses, which would extend the proposed remedies for sex-based inequities in the Indian Act back to 1869, would not be enforced until after a consultation process with indigenous peoples on how to proceed. That is the million-dollar question. No date has been given as to when the process would begin or even conclude.

We have talked a lot about this bill, but let us talk about what the previous Conservative government did. It had a long history of supporting gender equity for first nation women. The Conservative government introduced the Family Homes on Reserves and Matrimonial Interests or Rights Act in 2013, which offers a balanced and effective solution to a long-standing injustice and legislative gap that affects people living on reserve, particularly women and children. As a result, many of the legal rights and remedies relating to matrimonial interests in the family home that are available off reserve, in the context of a relationship breakdown, death of a spouse or common-law partner, or family violence, are now available to individuals living on reserve.

The former Conservative government also reintroduced legislation to guarantee to people living on reserve the same protections that other Canadians enjoy under the Canadian Human Rights Act, which came into law on June 18, 2008. It also passed Bill C-3, the Gender Equity in Indian Registration Act, in 2010, in response to McIvor v. Canada in 2009. Bill C-3 allowed for the eligible grandchildren, or women who lost status as a result of marrying non-Indian men, to be entitled to registration if they or their siblings were born on or after September 4, 1951.

It should be noted that the Liberals, including the current Minister of Crown-Indigenous Relations and Northern Affairs, actually voted against the Family Homes on Reserves and Matrimonial Interests or Rights Act from 2013, which was introduced and passed by the former Conservative government. It should also be noted that the legislation that made the Canadian Human Rights Act apply on reserves was tabled by the Conservatives, and then all parties worked together to pass the legislation.

Essentially, prior to Bill C-3, the Gender Equity in Indian Registration Act of 2010, and the proposed changes in Bill S-3, Indian status was passed down to the next generation from the father but not through the mother. Therefore, if a first nation male had children with a non-first-nation female, his status would be passed down, but not vice versa. That is what we are talking about here today in the House.

I had a call this week from a friend in Saskatchewan. He is from the Cree first nation. He is unequivocally in favour of Bill S-3. He has a status Indian niece who is married to man from Honduras. Not long ago, they celebrated the birth of their first child. My friend said that he is the cutest little Honduran Indian anyone has ever seen. Perhaps with the passage of Bill S-3, that description should change and he would be the cutest little Indian Honduran anyone has ever seen. Would that not be nice? I think that is what we are headed for after December 22.

My friend also had a very good idea that he passed along to me earlier this week. It is regarding the “ 6(1)(a) all the way” approach back to 1869. He suggested giving non-status indigenous people up to 10 years to get their geneology sorted out. That seems like a long time. However, it could be a gradual process. Some people will have their family trees available now, while others will have to dig around and find the right roots and the proof. I think this is a pretty excellent idea he came up with. It would also give the department an opportunity to work through these changes and prepare for the financial implications they would entail.

At this point, it is unknown exactly how many Canadians would become eligible, or would even apply to register, and what the financial implications would be for the Canadian taxpayer. We have no idea whatsoever. It could be 200,000. It could be 400,000. It depends how far back people go in the tree. We need some time to figure this out. I do not know if it would have any implications for roughly one-half of my province's indigenous population.

We, the official opposition, as we have stated all day in the House, support Bill S-3 at second and third readings, because it contains several necessary changes to the Indian Act toward greater gender equality and is the next step beyond the amendments made by the former Conservative government with Bill C-3, back in 2010.

What I do not agree with is this “flying by the seat of their pants” method of legislating by the government. It has had more than enough time to table a good, clean piece of legislation that everyone could get on board with and get passed. Instead, it chose a path it knew would encounter resistance and delays, especially in the Senate.

I do not believe we can please all of the people all of the time, but we as legislators have an obligation to please as many Canadians as possible all of the time. That is our duty, and it really should not be muddied. However, we are going to support Bill S-3. I want to say, on behalf of the people of Saskatchewan, they are excited about the bill and are hoping it passes, and then we can move forward as of December 22.

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

Mr. Speaker, I want to thank my colleague for his speech and for articulating some of the positives, and of course, some of the concerns about this piece of legislation. The positives are that it responds to the court decision as well as to some additional issues that were identified. However, the concern is that it is not perfect yet. I will be the first to acknowledge that.

Given the court deadline and that decisions profoundly impact communities in terms of their membership, it has been a long haul to get here. I would like the member to speak to the implications of the wait to get it perfect, especially for the people who have been waiting so patiently for so long.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, yes, we have debated this in the House now for a little more than a day. It is good to get this legislation moving. We have talked about it here in the House. We sent it to the Senate. It had to deal with it, and many of the independents did not like the first look at it. Now we are bringing it back here.

We have to move forward. Time is of the essence. We are talking about 1951 onward. Many family trees do not exist before 1951. We know that. There is documentation needed on reserves in the provinces and territories in this country. However, it is a good start that we are moving forward on Bill S-3 now.

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

Mr. Speaker, we know that discrimination has existed for a very long time, nearly 150 years under the Indian Act. When I look back and see that these inequities go back to 1869, it is actually shocking. It was nearly 100 years before I was born. Since then, we have not been able to make the corrections that have been needed.

I am very pleased and proud that the government is moving forward at this stage with remedying some of these sex-based inequities. I am happy that the timeframe from 1951 onward will come into effect immediately. I think we all have a responsibility to ensure that those that occurred prior to that period, going back to 1869, are done as soon as possible.

Does the member agree that there needs to be proper and fair consultation with indigenous governments, over as short a period as possible, to get this right and to ensure that all these inequities can be corrected, for the benefit of all indigenous Canadians?

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move:

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

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

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

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

[The Assistant Deputy Speaker, Anthony Rota]

The amendment seems to be in order.

Questions and comments, the hon. parliamentary secretary.

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

Mr. Speaker, I thank my colleague for her invested interest in what is happening with this bill and, certainly more important, what is happening with sex-based inequities that exist within the Indian Act right now.

I have said before and I will say again in this House that if it were the preference of all of us we would be repealing the act and replacing it with something else. Unfortunately, government has a responsibility to ensure that we are doing proper duty in terms of having a legislative framework and, until we can bring that forward, we are in a situation where we have to make appropriate amendments in as quick and accurate a way as possible to try to rid the act of some of the terrible racial and discriminatory clauses that are enacted upon people. That is basically where we are today in this debate.

In this bill, government would remedy all sex-based inequities that exist in this act going back to 1869. Where the clause would become effective is that from 1951 onward it would be enacted immediately. What the Government of Canada is saying is that it is our full intent and our full commitment to ensure that there is also correction back to 1869, but there is a process that we must engage with first nations governments and with chiefs to ensure that this is done appropriately. The government has also outlined in this bill that it would provide time frames and full and open reports to Parliament.

In the 150 years it has taken us to get to where we are today, surely the member opposite can support the spirit and the intent of what the bill would do to help so many indigenous women in Canada, and be a champion to ensure that this work gets implemented sooner rather than later, so that all of these people who should be captured under the act would be captured in as short a time as possible.

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

Mr. Speaker, with respect to my colleague, whom I enjoy and appreciate very much, I will say in the strongest way I can that I will not be a champion for incremental equality. That is not the work of parliamentarians.

One hundred and fifty years is absolutely too long.

The member opposite sets up a bit of a red herring. We are not here today talking about repealing the Indian Act. That will be a good day when that is what we are debating. What we are debating is the implementation of repeated court rulings that both the Liberal and Conservative governments have received to remove gender discrimination. The bill we had before us in this House that the current government introduced, that we debated and voted on, on June 21, was a very short stage, just the 1951 cut-off. It did not have the commitment to go backward, and that is what we are pushing for, complete gender equality. It is not something that needs to be consulted on.

The government, having received push-back from the Senate and having had its bill refused, now is back with another half measure. However, it still is not supported by the indigenous women affected, it is not supported by the indigenous women lawyers who have been fighting this all these decades, and neither should we as parliamentarians accept a bill that is a half-hearted measure and incremental equality. We have waited too long for indigenous women to have fairness in our country.

[Kennedy Stewart, NDP, Burnaby South, BC]

Mr. Speaker, it is a privilege to stand in this place and speak to such an important issue. I do have to recognize the incredible work my colleagues have done on this, and will continue to do until we repeal the Indian Act and we have full justice and equality in our country, which is sadly lacking.

I would like to explain how I have come to understand the issue we are debating today. I grew up in rural Nova Scotia, in the Annapolis Valley. Through my entire early childhood years, I can never remember much discussion of my indigenous neighbours except to hear about Glooscap's legend and a few other quaint stories, important to local people at times. I really had no context, because in Nova Scotia, like all across our country, there had been great discrimination against first nations Mi’kmaq people from that area.

I remember when I was a kid, I went to a drive-in movie. The sun was just setting, and I was sitting there in the car. I remember looking over and there were kids looking across the drive-in movie fence. I asked my mom who those folks were. She said they lived on the local reserve. Until that time, I had never really realized there were indigenous people living in my community.

We had always had debates about the Acadians, whom the British had pushed off the land. In fact, the land on which my parents' house stood was on Acadian land. We could still see some of the old structure. However, we never had a conversation about the Mi’kmaq. It never really came into the conversations in our household or in our school. It was never taught, except for a few local legends, which were always capitalized on by the colonizers.

It starts to eat away at someone. As a young person, I was not quite sure how to deal with this stuff. However, it was present. I am happy to say that when I was driving along a Nova Scotia highway about six months ago, I started to notice they are naming the reserves on the highway signs. One can actually know, going down the highway, that there is a community there that was never named in the past. That is a very small step toward reconciliation and bringing equality. I am 50 years old. It has taken decades and decades for just that small thing to get done.

I remember the first time I ever said the word “genocide” about indigenous people in Canada. I was a young lecturer at Simon Fraser University, and I was teaching the administration of justice. With my colleague, Paddy Smith, a great mentor of mine, we decided the course had never had a full lecture about aboriginal rights in Canada, so we decided this would be a good time to start.

When one actually starts to research the history of the administration of justice in Canada, one realizes just one lecture, one course, or one degree is not enough, that there need to be entire institutions that look at this sad history.

I remember standing in front of a class of 200 people for the first time saying that Canadians had committed genocide. When I talked about how the Beothuk people were wiped off the face of the earth by our ancestors, it made me realize, with shame, how this whole history had been hidden. At least I can say those first-year students had some sense, somewhere to start, to ask how do we get to reconciliation.

That was probably 15 years ago. I worked on a program and did some research for the Department of Justice looking at on-reserve voting during that period as well.

The amount of damage starts to get overwhelming. Coming from Nova Scotia, where we had the original Europeans coming over, it is reported historically that there was some co-operation there. We went from this co-operation to oppression, to cultural genocide when we think about the residential schools right across the country.

My colleague from Skeena—Bulkley Valley, earlier today was talking about South Africa coming to look at our reserve systems and saying, “This is how you do it. Let's do it back home.”

Then I come to the House of Commons where all of these decisions were made. People just like us here in the House today put act after act forward, which then went to the Senate. Perhaps it was before Canada had a legislature as well. The British are definitely to blame for this. In the House of Commons, act after act after act reinforced and made worse the terrible treatment of people who I did not even know were my neighbours when I was growing up.

We owe it to our future generations and past generations of those who suffered to do the right thing, and I do not think we are doing the right thing. What I am hearing in this debate is that some administrative inconveniences are stopping us from doing the just thing. That does not seem to balance out, especially after the Truth and Reconciliation Commission, especially after we looked at all the damage that was done to our neighbours, to the people we should love as much as we love ourselves. Then we get into a debate like this with a bill that goes back and forth between the other place and here. It sounds like people are saying that the bill is an administrative inconvenience, and that seems to be holding up justice, which does not make any sense to me.

I have a constituent in my riding who is in her seventies. She has been trying for 20 years to get her status. She has hired her own lawyers and has been helped by MPs in Burnaby and elsewhere. She came to my office and said she had tried over and over again to get her status but wants to try once more. We are trying to help her get her status, not for herself but for her future generations. Her husband recently passed away. She is indigenous; he was not. She has had to hide from her culture for so long and really wants to be proud of it, and this seems to be the time to do it. Look at what she has to go through. She has to hire her own lawyers and to go to members of Parliament for help. She has to revisit what her family members went through in the past. This seems totally unnecessary, especially when her male family members do not have to do the same thing.

We can talk about dotting the i's and crossing the t's and all of that kind of stuff, but really, when we get down to people, it does not matter. This should be done right away. It seems to me that this could be done very simply despite all of the administrative inconvenience. All we are doing is amending an act that should have been repealed in the first place.

If one is looking at this from the perspective of someone who has suffered, it must be inconceivable that we are doing this. I am deeply ashamed. We can do much better. It does not make any sense to me that one day we are talking about genocide and the next day we are questioning where a clause must go.

I really hope that after we get through this debate, we can get on with the real work.

[The Assistant Deputy Speaker, Anthony Rota]

Pursuant to an order made earlier today, all questions on the motion are deemed to have been put and the recorded division is deemed to have been requested and deferred until Monday, December 4, at the ordinary hour of daily adjournment.

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 from November 30 consideration of the motion in relation to the amendments made by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), and of the amendment.

[The Speaker, Geoff Regan]

Pursuant to order made on Thursday, November 30, 2017, the House will now proceed to the taking of the deferred recorded division on the amendment to the motion.

(The House divided on the amendment, which was negatived on the following division:)

Vote #424