This bill is from the 42nd Parliament, 1st session, which ended in September 2019.
This bill has received Royal Assent and is now law.
This is from the published bill. The Library of Parliament has also written a full legislative summary of the bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Bill numbers are reused for different bills each new session. Perhaps you were looking for one of these other S-3s:
The House proceeded to the consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as reported (with amendment) from the committee.
Speaker's RulingIndian ActGovernment Orders
The Assistant Deputy Speaker Carol Hughes
Motions Nos. 1 to 4 will be regrouped for debate and voted upon according to the voting pattern available at the table.
The hon. member for Saanich—Gulf Islands has informed the Chair that she does not wish to proceed with Motion No. 1.
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
moved:
Motion No. 2
That Bill S-3, in Clause 2, be amended
(a) by adding after line 4 on page 2 the following:
“(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f), as each provision read immediately prior to April 17, 1985;”;
(b) by adding after line 18 on page 5 the following:
“(4.1) Section 6 of the Act is amended by adding the following after subsection (1):
(1.1) The purpose of paragraph (1)(a.1) is to entitle to registration under paragraph (1)(a) those persons who were previously not entitled to registration under paragraph (1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985.”
Elizabeth May Green Saanich—Gulf Islands, BC
, seconded by Mr. Beaulieu, moved:
Motion No. 3
That Bill S-3, in Clause 2, be amended
(a) by adding after line 4 on page 2 the following:
“(a.1) that person was born prior to April 17, 1985, and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f), as each provision read immediately prior to April 17, 1985;”;
(b) by adding after line 18 on page 5 the following:
“(4.1) Section 6 of the Act is amended by adding the following after subsection (1):
(1.1) The purpose of paragraph (1)(a.1) is to entitle to registration under paragraph (1)(a) those persons who were previously not entitled to registration under paragraph (1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985, including, in particular, persons who were not entitled to be registered on the ground that
(a) they were female persons who were married to a person who was not registered;
(b) they were persons whose mother was registered but whose parents were not married to each other at the time of their birth;
(c) they were female persons whose father was registered but whose parents were not married to each other at the time of their birth; or
(d) they were female persons who were married to a person who was enfranchised under this Act as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter.”
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
moved:
That Bill S-3 be amended by deleting Clause 10.
Madam Speaker, [member spoke in aboriginal language]
[Translation]
First, I could not help reiterating my disappointment in the Speaker's ruling on the question of privilege raised by the member for Winnipeg Centre. I am going to accommodate the House and repeat my message in both official languages.
It is all the more disappointing that it has been decided, with unprecedented and delicate irony, on the eve of National Aboriginal Day, that I will no longer have the right to speak my own language here in the House of Commons. This is frustrating, not to say insulting, because my language has been spoken for 7,000 years. It was spoken before a word of French or English was ever spoken in this country that we now call Canada.
I am going to accommodate the House.
This afternoon, the Speaker rendered his ruling on the question of privilege that was raised by the member for Winnipeg Centre, which is extremely disappointing, especially on the eve of National Aboriginal Day.
On the very eve of National Aboriginal Day 2017, in this country that you now call Canada, I am told that there are only two official languages in this place, and that I cannot speak the language that has been spoken in this country, on this territory, for the last 7,000 years, even before a single word in English or French was heard in this place. In this country, that you now call Canada, I am told that I cannot use my language. Allow me to express my disappointment.
Tomorrow is a sacred day for all indigenous peoples in this country. It is so sacred. However, hearing this ruling from the Speaker was the most terrible thing I have heard in this chamber in the six years that I have been sitting in this place. In fact, if members want to know, the words in Cree for the Speaker of the House is [Member spoke in Cree] which means “the boss of those who speak in the House”.
However, I rise again on Bill S-3, which is a bill that should eliminate any gender inequities in the Indian Act.
In doing so, I need to refer to a couple aspects of where we are at this moment as we speak. As we know, there were important amendments that stemmed from the work of the Senate, important amendments that not only attempted to respond to the Quebec Superior Court ruling in the Descheneaux case, but also addressed the other inequities and discriminations that exist under the Indian Act.
That was the purpose of the amendments submitted by the Senate. Unfortunately, the majority Liberal members of the Standing Committee on Indigenous and Northern Affairs decided that those amendments were unacceptable. That is very unfortunate, because discrimination in this country should not even be allowed in 2017. That is so unjust. That is one aspect that I will be talking about in the remaining time I have.
There is also the aspect of the liability of the crown, which needs to be addressed. It is one of the most important calls to action of the TRC. It is number 26 of the TRC which deals with this aspect. Again, it is a provision that is included in the amendments that are before us. I believe it is a proposition to accept human rights violations that were done in the past and accept them in 2017. In all conscience, I as an indigenous person will never accept that proposition. We cannot justify past wrongs, past human rights violations in this place in 2017. Wrongs of the past are wrongs. We cannot say today to forget about them and move on. That is not how it works.
The other aspect I would like to address in the couple of minutes I have left is the fact that the government is telling us to trust it, that there is a second phase coming up, and it will deal with the other concerns that we are talking about six months after this bill is ratified by the Senate. Again, who else is asked that their human rights be delayed once again? Indigenous women in this country have waited for so long. Now we are asking again to do away with their human rights, that we will deal with them later on. That is absolutely unacceptable. On this side of the House, that cannot be accepted.
Let me quote one of our expert witnesses who came before us, Pam Palmater. She had this to say to our committee:
How many more times are you going to require that indigenous women spend their entire lives trying to get equality, in a country where equality is actually the law?
We do not have a choice here. This issue should in fact be moot. There is a very clear message here. The fact the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism and racism is in this country, and especially for indigenous women.
The provisions that were truncated from the proposed Senate amendments were once accepted by both the Minister of Indigenous and Northern Affairs and the Minister of Justice. In fact, this is what the Minister of Justice said to Parliament back in 2010. She insisted that Parliament eradicate discrimination wherever and whenever possible. Now she has changed her mind. The proposition that I have before us is the very minimum that we need this House to adopt.
Mark Strahl Conservative Chilliwack—Hope, BC
Madam Speaker, I would like to thank the member for Abitibi—Baie-James—Nunavik—Eeyou for his work on this file. I have worked with him on committee in the previous Parliament. I remember his eloquent words as a survivor of residential schools, and I listened to his eloquent words again today in three languages, which we appreciate here because of the work he is doing with respect to languages. Once a language is lost, we know that it is lost forever. Therefore, I hope we can all work together in this place to find solutions to the issues that he has raised.
I want to ask the member a question with respect to the decision by the government not to seek an extension of the July 3 deadline for the implementation of this bill, when it was offered by the court, and when the plaintiff had gone back to court to seek an extension on behalf of the government. Could he comment on the failure of the government to seek that extension, and what are his views with respect to that decision?
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Madam Speaker, what I understand from what is going on here is that we are heading toward a battle between the Senate and the House as we speak, because this is what the Senate wants, but it is not what the government wants. Second, the government has botched the obligation that we have to correct the Indian Act. The Liberals did not move on this after they were elected. They waited 18 months before doing anything about it, and here we are today hard-pressed to adopt what they think should be adopted.
Finally, I know that hearings were held yesterday and today, and that the Quebec Superior Court dismissed the motion to extend Parliament's deadline for eliminating sex discrimination. However, the judge, Chantal Masse, emphasized that she remains available to hear another motion for an extension before the deadline of July 3. That is important to know, because what we have before us as we speak, which was proposed by the current majority government, is a botched proposal, and we need to start over again.
Motions in AmendmentIndian ActGovernment Orders
Labrador Newfoundland & Labrador
Liberal
Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs
Madam Speaker, I want to thank my colleague not only for his speech today but also for his contributions to the debate on this bill. He understands this very well. He knows the time limits the government is working toward. Therefore, in his opinion, should the government not honour the court ruling, and move forward with the acceptance of the 35,000 individuals who have currently been waiting up to two years for this?
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Madam Speaker, I understand the parliamentary secretary's question and where she is coming from. However, one of the things she fails to mention in her question is that the Quebec Superior Court judge said that we needed to look beyond fixing the issue with respect to the Descheneaux case, so it does not preclude the possibility of fixing other things that are problematic in the Indian Act.
The parliamentary secretary fails to understand that. However, I understand it. I do not think that discrimination should continue in this country. This is a country that recognizes equality for all. That includes indigenous women. If she thinks we should not proceed right away with that, and that we need to consult with respect to the human rights of indigenous women and indigenous women alone, that is problematic for me, and goes against the rule of law in this country.
As members of Parliament, we are called upon to uphold the rule of law. That includes respecting the Constitution, which includes the Charter of Rights and Freedoms, and section 35 rights as well. Therefore, there is a lot of work that needs to be done. That is where I am coming from. I know she has a limited view of how we should proceed.
Elizabeth May Green Saanich—Gulf Islands, BC
Madam Speaker, it is an honour to rise in this place to put my views forward following the member for Abitibi—Baie-James—Nunavik—Eeyou. He said exactly, in much clearer, more passionate language and with greater depth of experience, the reasons that I am also putting forward amendments to try to repair Bill S-3, so that it does not perpetuate gender-based discrimination against indigenous women and their descendants.
As members know, Bill S-3 comes to us as a result of yet another court case raising the issue of discrimination under the Indian Act. Let us step back for a moment and acknowledge the Indian Act itself is a monument to discrimination. The Indian Act is a racist piece of legislation, and I grieve that we are not as a Parliament taking on the challenge of eliminating the spectre of a piece of legislation about which many Canadians may not know. It was a piece of legislation on which South Africa modelled apartheid. It needs to be replaced, it needs to be gone, but what we have before us is a slice of that discrimination that is embedded in a discriminatory act which treats indigenous women and their descendants quite differently than it treats indigenous men.
The case was brought to the Quebec court by Stéphane Descheneaux. The court set a deadline, the case was heard and resolved in 2015. The deadline was extended once, and as we just heard in my hon. colleague's comments in response to a question, just today the plaintiff returned to court, and asked if Madam Judge Masse would extend that deadline once again. As the deadline now sits, this Parliament needs to resolve the matter by July 3, or there will be consequences in the issuing of status cards, and there will be unacceptable consequences. On the other hand, it is certainly distressing and incomprehensible to me that given how flawed the bill is that the Government of Canada has not gone to the court to ask for an extension.
Should we be able in this place now to accept either my amendment, or the amendment put forward by the hon. member for Abitibi—Baie-James—Nunavik—Eeyou, then at least we have a piece of legislation which does not perpetuate gender discrimination. If we accept those amendments and the government feels it creates a tremendous chaos out there, we are not sure where we are going to go next. It does not have to move forward on the legislation, all it has to do is go to the judge and ask for an extension.
The Quebec court in this matter has made it very clear as of less than an hour ago, when the press conference from the plaintiff took place, that it is ready and willing to give an extension. The judge was not willing to given an extension on the deadline today on an application from the plaintiff, because she did not want to put the Quebec Superior Court in the position of arbitrating between the Senate of Canada and the House of Commons. It is very clear, very fresh and pertinent, and timely information that the extension could be had if the government seeks it. I would wish the government would seek it.
However, let us go back to why these amendments really matter. It is a question of justice. It is a question of discrimination, and it is a question of whether we can draw a line in the sand and accept all the historical wrongs that happened if someone was a descendant based on relationships before 1951. Before 1951, we are just going to say that it does not matter anymore, and we are going to limit it to 35,000 people, because that is a manageable number. This is something I have never seen before in any debate on rights, that we only give fairness to X number of people, and we are not prepared to extend it to all the people. It is unconscionable.
I want to go back, and my colleague has already mentioned the testimony of Professor Pam Palmater, who is uniquely qualified in this debate not only because she is a distinguished lawyer and professor, and comes from the territory of the Mi'kmaq First Nation in Nova Scotia, but she has written a book which directly bears on this. Her book is Beyond Blood: Rethinking Indigenous Identity.
Her research has shown that, for example, and I will quote her:
The hierarchy of Indian status between section 6(1) and 6(2) have and continue to disproportionately impact Indigenous women and their descendants since its creation in 1985. It is an unconscionable formula based on racist ideas related to blood quantum that were designed to legislate Indians out of existence.
She is referring to sections of the Indian Act. She goes on to say:
As a result, Canada's own demographer can pin point with relative accuracy the extinction dates of each First Nation in Canada based on birth, death and out-marriage rates.
Some might wonder what out-marriage means. The essence of this discrimination is that, if a first nations man marries a non-indigenous woman, their children continue to be recognized as Indians for the purpose of the Indian Act, but if a first nations woman marries a non-indigenous man, the children are not recognized. Further, with respect to children of unwed mothers who are not willing or able to name the father, or fathers who deny paternity, we go through a whole hierarchy of subtractions, subtraction of indigenous women's rights through a hierarchy of different classes of people.
If my amendment or the amendments put forward by the NDP are accepted, we could restore at least those pieces of Bill S-3 that were put forward in the Senate. They were supported by the Senate but removed from the bill by the government. They are what would make it possible to support Bill S-3 and get it through the House. With those removed, we are back in a situation where the defence that I hear from the government is that there will simply be too many people and we will not know quite how many there are. As I said, this cannot be a question of numbers.
Again, from evidence that was heard in the Senate committee, if the estimate is 200,000 people instead of 35,000 people who have rights through ancestry and parenthood once historic discrimination against women is removed, that is roughly equivalent to the number of new immigrants we take into Canada every year. We need to put 200,000 into some context. Why would we deny rights based on the question that this might be too many new people?
The fundamental crying need in this area of law is to get rid of the Indian Act, and then we could be talking about how to move forward from here. However, we are dealing only with this piece based on the court decision and the court case brought by Stephane Descheneaux. It seems to me that we do not have any choice other than to eliminate gender-based discrimination.
In the minute I have left, I want to turn again to the words of Professor Palmater, because it could not be clearer. She said:
There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional Nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away. Traditional Indigenous Nations did not permit inequality between genders. The constitutionally-protected Aboriginal right to determine one’s own citizens is conditioned on section 35(4)’s guarantee of equality for Indigenous men and women.
Of course, that is section 35(4) of the Canadian Constitution.
UNDRIP which provides extensive protections for indigenous peoples also guarantees these rights equally between Indigenous men and women.
I want to underscore this sentence from Professor Palmater's testimony, “There is simply no legal mechanism by which to consult out of gender equality.”
She went on to say:
Discrimination is discrimination—whether five layers of discrimination are piled on top of us or “only” one layer—Indigenous women and our descendants bear an unfair burden of trying to convince others it should end.
I urge every member of the House to vote for the amendments, and then we can pass Bill S-3 with a clear conscience.
Motions in AmendmentIndian ActGovernment Orders
The Assistant Deputy Speaker Carol Hughes
The hon. Minister of National Revenue on a point of order.
Motions in AmendmentIndian ActGovernment Orders
Gaspésie—Les-Îles-de-la-Madeleine Québec
Liberal
Diane Lebouthillier LiberalMinister of National Revenue
Madam Speaker, pursuant to Standing Order 32(2), I have the honour to table, in both official languages, the 2016 report on exports of military goods from Canada and the 2016 annual report to Parliament on the administration of the Export and Import Permits Act.
Motions in AmendmentIndian ActGovernment Orders
Labrador Newfoundland & Labrador
Liberal
Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs
Madam Speaker, I want to ask a question for the member opposite. The Minister of Indigenous and Northern Affairs has said time and time again that it is her intention to correct all of the discriminatory pieces that are contained within the Indian Act over a two-phase process. Will the member opposite support that process to ensure proper consultation with all people who have asked to be involved and to ensure that their voices are heard as we move to stage two of the changes that need to be made within the bill?
Elizabeth May Green Saanich—Gulf Islands, BC
Madam Speaker, first let me just say once again that there is no need for haste. We do not need to deal with this now. We merely need to ask the court. The court has made it clear that it is more than willing to give an extension, but on this concept of phase two, again I want to turn to the testimony of Professor Palmater:
If we don't address gender equality now, it will never be addressed. Canada's plans to shove "complex" gender issues to Phase ll under the impossible standard of "consensus" means we'll never see full gender equality.
I thought the whole intent of reconciliation was to do better by indigenous peoples. If this is the case then we have no real choice but to remedy all gender discrimination in Bill S-3. That is what I am committed to. I am trying to remedy the gender discrimination in Bill S-3.
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Madam Speaker, my colleague said we simply need to ask for an extension. I think the government deserves lots of criticism on this particular file. I think there is lots of room where things could have and should have been done better, but there was an extension requested and the government was given five months. To be frank, the five months did not allow the opportunity to do the work that needed to be done.
Certainly, we heard from the officials that the bill did go beyond Descheneaux and added a number of other circumstances. They indicated that all known sex-based inequities have been dealt with in the bill.
I am not convinced about simply asking for an extension, if it is five months, when there is a proposal that the next phase happen over 18 to 22 months. I do not think we would have an alignment with an extension that would be granted and really the time to do the necessary work that has to be done.
Elizabeth May Green Saanich—Gulf Islands, BC
Madam Speaker, there is a lot of blame to go around in the handling of indigenous issues in this country. I think it is not too late to ask the court for that extension in order to ensure that, when the Liberals bring forward a piece of legislation, the questions are answered about how it would be applied.
It is clear that we know that eliminating all gender discrimination, which I think should be the goal, in this piece of legislation should not even be a question. It is a matter of law, so we should do it. However, I recognize the bending over backwards; and I also recognize, by the way, good intentions on the part of the Minister of Indigenous and Northern Affairs. I just do not think it cuts it to decide we will only go halfway on resolving gender discrimination. It requires full, historical redress for gender discrimination.
I was also remiss in not acknowledging, as I began my words here, that we are here on unceded territory of the Algonquin people.
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Madam Speaker, noting the words of Sharon McIvor, who asked why consult on whether people can continue to be discriminated against, I will ask my colleague from Saanich—Gulf Islands if there is any reason to not either adopt the perfected bill as adopted and proposed by the Senate, which was informed by indigenous women, or else ask for an extension but not adopt a flawed bill, as is put before us by the government.
Elizabeth May Green Saanich—Gulf Islands, BC
Madam Speaker, Sharon McIvor, as a witness to the Senate committee, and with all the work she has done for all these years, has it exactly right, as do most of the witnesses who came before the committee. I certainly thank the Senate for its hard work to improve the bill.
Motions in AmendmentIndian ActGovernment Orders
Labrador Newfoundland & Labrador
Liberal
Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs
Madam Speaker, I am rising to speak to Bill S-3 because it is a very important bill and one that, with these amendments and changes, will foster tremendous progress for many indigenous people in Canada. It is an act to amend the Indian Act, and it focuses on the elimination of sex-based inequities in registration. This is something that has been ongoing for many years. Both the current Minister of Indigenous and Northern Affairs and the current Minister of Justice have fought very hard over the years to ensure that sex-based inequities in registration would be eliminated. Today, we are bringing forward amendments that would allow that to happen. They have also both said they remain committed to ensuring we correct all discrimination contained within the Indian Act. That will be done in a stage-two process.
Members are asking today that several amendments be added. We need to understand that the bill today is about removing the discriminatory aspects that are related to sex-based discrimination and that the amendments that are currently being proposed by the members are outside the scope of the intended bill. It is important to note that, as a government, we recognize that changes within the Indian Act need to go much further than where this legislation is bringing us today. We have said that time and again. The government and the minister have committed very clearly, both in the House of Commons and in committee, that they would have a stage-two process to deal with those discriminatory pieces that have to be removed from the act.
They also said that charter compliance will be the floor of that stage-two process, and not the ceiling. In other words, the government has been clear that consensus will not be a prerequisite for action, but in the absence of consensus, it is more important that decisions are based on the foundation of meaningful consultation and credible evidence about the potential impacts of reform.
We are here today with Bill S-3 because of the Descheneaux decision. It was a case filed by the Descheneaux family, in which the court put upon the government several conditions for change that had to occur within the Indian Act. The former government was appealing those decisions. Our government said we would not appeal those decisions of the court because we need to correct those discriminatory clauses within the bill. We were the first government in the seven-year process that has been going on that has stepped up and said we are going to remove it. We are prepared to act on it. We will meet the conditions of the Descheneaux ruling. That is what we are doing today with Bill S-3.
Members opposite asked why the government does not go to the judge and ask for an extension. We did go and ask for an extension, and we were granted an extension, one that allowed us to look at other aspects of the bill, consult with a number of people, and further define within the scope of the ruling some of the changes that needed to be made. We were happy to do that. We know the other groups went to the judge and asked for a further extension, and today, although there was a caveat in the decision, I understand the judge denied that extension.
We are in the House today debating Bill S-3. It is a bill that would help us progress a step further in ending sex-based discrimination against indigenous women who are registering with the Department of Indigenous and Northern Affairs and registering for benefits. This bill alone would allow 35,000 more indigenous people to claim the benefits to which they are entitled.
For the last two years, they have been waiting to access the benefits and the services they are entitled to as indigenous people in Canada, but have not been able to because we have not defined those changes in law.
Today, we are making those changes in law. We are allowing the entitlements and benefits for these thousands of indigenous people who have been neglected for a very long time. Many of them have been waiting for years. As we know, the Descheneaux decision went on in the courts for many years and was fought by the Harper government. It would not accept any changes within the Indian Act as it was relative to discrimination.
When this bill went to the Senate, some amendments were proposed. Those amendments were struck down at the committee stage of the House of Commons. Despite supporting a number of the amendments proposed by the Senate, the government made it clear that it could not support one amendment that was put forward by Senator McPhedran and accepted by the committee. The intent of Senator McPhedran's amendment to clause one of Bill S-3 was to implement the approach commonly referred to as “6(1)(a) all the way”.
While there is no question that this amendment was put forward with the best of intentions, and I know it was, the way this clause is drafted creates ambiguity as to whether it will do what it apparently intends to do.
When the bar association testified before the Standing Committee on Indigenous and Northern Affairs, and I was at committee that day, its representative cautioned against simply inserting that proposed amendment in its current form into the legislation. In fact, the members of the Indigenous Bar Association who testified went on to say, “You run into technical problems with the language by simply inserting that into a bill because you run the risk of inconsistencies or some unintended consequences with that.”
If the clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities, well beyond those that are sex-based. That approach seeks to address non-sex based issues, of which we realize some need to be addressed, but it is well outside of the scope of what Bill S-3 is intended to do.
The approach was explicitly rejected by the British Columbia Court of Appeal in the McIvor decision, where it was clear that under the current state of law, this remedy was not required to make the Indian Act registration provisions charter compliant. That is very important to note in this debate.
The Supreme Court of Canada refused leave to appeal, but this does not mean the government will not consider this as a potential approach in the context of a policy decision to address the broader registration and membership reform. When the minister testified before the Senate committee, she said:
I think it could be 6(1)(a) all the way. But we don’t have enough information to make that decision, the scholarly approach that it would take to look at the impacts and make sure that it didn’t impact others accidentally in a different way.
Our government is taking a responsible approach. We have agreed to go through a stage two approach. We do not currently have all the demographic information to understand the practical implications of such a decision at this time, but it is our job to ensure we do. We know what we are doing today is going to have profound and positive impacts on indigenous communities across Canada and many people. We also know our commitment to stage two will also have very profound and positive impacts for indigenous people.
The amendments proposed today are outside the scope of the government's agenda and its intention. We ask all members to support the bill as it is and support the direction of the government to bring justice to indigenous people.
Mark Strahl Conservative Chilliwack—Hope, BC
Madam Speaker, first, it was our Conservative government that gave women living on reserve the same matrimonial real property rights as other Canadian women living off reserve, something the Liberals voted against.
When the Liberals were in opposition, in response to Bill C-3, which dealt with McIvor case, the Minister of Justice and the Minister of Indigenous and Northern Affairs brought forward those exact same amendments, which senators have brought forward to amend Bill S-3.
Could the member tell us what has changed between now and then, other than she now sits on that side of the House of Commons?
Yvonne Jones Liberal Labrador, NL
Madam Speaker, the hon. member's question gives me the opportunity to remind people in our country that it was his government that fought against the elimination of sex-based inequities in registration for years.
The government, under former Prime Minister Harper, spent hundreds and thousands of dollars of taxpayer money fighting indigenous people and indigenous women to ensure they did not eliminate those clauses.
We removed the bill from the courts. We are making the changes that are necessary on sex-based inequities. We are going to continue with this process, into stage two, to do what is right and just for indigenous women in Canada.
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Madam Speaker, could the parliamentary secretary name a single indigenous women's organization that endorses the approach of the Liberals?
The government failed to ask anybody, any woman who had been a litigant in these cases for 40 years. They were not consulted on any element of the bill. The Senate ended up perfecting it.
Who is actually onboard in the women's movement with the government approach? At a press conference on June 8, Pam Palmater said that the Prime Minister and INAC minister claimed to be feminists and promised to respect the rule of law, but this was inconsistent with the minister's rigid non-negotiable approach. They said, again and again, that gender rights were human rights. They are not up for consultation.
How does the parliamentary secretary respond to that very strong criticism?
Yvonne Jones Liberal Labrador, NL
Madam Speaker, it goes without saying that many women out there today will benefit as a result of the changes we are making in the bill.
Will it go as far as we would like it to go at this current time? No, it will not. When representatives of NWAC testified before committee, and I was there that day, they said that they wanted to correct all the discriminatory pieces in the Indian Act, however, they would support the bill going to the House without being withdrawn at that time.
This question was put to them. Should we not proceed with this bill at this time? If I had the correct words, I would say them, but the answer was very simple, and that was that we should proceed.
Anita Vandenbeld Liberal Ottawa West—Nepean, ON
Madam Speaker, I would like to thank the member for Labrador for reiterating once again in the House the government's commitment to ending all discrimination in the Indian Act.
Could my hon. colleague elaborate on the reasons why a two-faced approach will allow us to go even further than the Senate amendment, to reduce ambiguity, to ensure there is even more inclusiveness, and to take into consideration the rights of trans or two-spirited women? Could the member also expand on why it is so important , to take the time to get it right in the second phase to ensure we do not end up with more litigation and more women being denied their rights?
Yvonne Jones Liberal Labrador, NL
Madam Speaker, if the legislation, which addresses the charter issues outlined in the Descheneaux decision, is not passed before the date that has been struck by the court, the practical implication will be that these provisions will then become inoperative within Canada, as the registrar will not be in a position to register people on the provisions found to be non-charter compliant.
As well, to the member's other question, going into stage two allows us to do full consultation to deal with all the other discriminatory pieces that are in the Indian Act and to correct them in a proper manner, with proper input from people.
David Yurdiga Conservative Fort McMurray—Cold Lake, AB
Madam Speaker, I have been a member of the House since 2014. In that time as MP, I have seen two different governments and served on three different committees. In all that time, I have never seen a bill studied and pre-studied as many times as Bill S-3. I am not sure how the government will handle phase two, considering how Bill S-3 is turning out.
Many Canadians believe the Indian Act is a good document, meant to help the indigenous people of our country. What they do not realize is how destructive, toxic, and racist this document truly is.
The Indian Act is present in the everyday lives of most indigenous Canadians, often governing their education, health care, and every service that really matters to average Canadians. With this power, the government could do a lot of good across our nation for most vulnerable people in our society. Despite the potential and outstanding recommendations of indigenous communities across the country, I have rarely heard anything good about Bill S-3 without the amendments.
When I joined the Standing Committee on Indigenous and Northern Affairs, I was joined by many new members of Parliament. Many of these members came from backgrounds and regions where indigenous knowledge was not as common. To fill the gap, the committee heard from experts across the country.
The Indian Act controls all aspects of aboriginal lives, with limitations on social, traditional, and economic activities. I can say with confidence that the majority of indigenous people across the country want either major revisions to the Indian Act or want it scrapped entirely so we can build a new solution from the ground up, with thorough consultations along the way.
When I joined the Standing Committee on Indigenous and Northern Affairs, it was my hope that I would have the ability to right some of the wrongs the Indian Act created. Bill S-3 seemed like an opportunity to do that when our committee began studying the issues almost a year ago.
When the committee began studying Bill S-3, it was clear that the government was in a rush. It had to meet a looming February 3 deadline, imposed by the Superior Court of Quebec after the government lost the Descheneaux v. Canada case. The case revolved around Indian Act discrimination against women.
What many people do not know is that the Indian Act does not categorize all aboriginals the same way. The government registry differentiates between status Indians, by categorizing them as either 6(1) or 6(2). Before 1985, people could lose their status when they married, depending on gender. Even with the changes, there were outstanding issues. This creates a situation where some cousins would have status while others did not, even though each person had one status parent and one non-status parent.
Descheneaux v. Canada arose because even with the changes in 1985, the Indian Act still robbed people of status due to sex discrimination before 1985. In the Stéphane Descheneaux case, his grandmother had lost her status by marrying a non-indigenous man in 1935 and because his mother was not status, he was not a status Indian either. If we replaced his grandmother with a grandfather, Mr. Descheneaux would be a status Indian today.
Descheneaux v. Canada also brought up the case of Susan and Tammy Yantha, which the Calgary law blog outlined as an issue created by “The version of the Indian Act in force in 1954 held that illegitimate daughters of Status Indian men and non-Status Indian women would not have Status, while illegitimate sons would have 6(1) Status.”
It was clear to the Superior Court of Quebec that changing the sex of someone in both these stories to male would mean they would have a very different relationship with Indigenous and Northern Affairs because they would be status Indian and fully entitled to the benefits that had been withheld from them.
Therefore, this was a violation of section 15 of the charter, which states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Indian Act is still enforcing discrimination based on sex, which is unconstitutional. Imagine if this rule were applied to being a Canadian citizen. I can assure that this would be resolved quickly. We would not need pre-study after pre-study. We would get it done immediately.
When the committee met first with Indigenous and Northern Affairs officials, the officials described the case and what the bill addressed: differential treatment of first cousins whose grandmother lost status due to marriage to a non-Indian when the marriage occurred before April 17, 1985; differential treatment of women who were born out of wedlock of Indian fathers between September 4, 1951, and April 17,1985; and differential treatment of minor children compared to their adult or married siblings who were born of Indian parents or of an Indian mother but lost entitlement to Indian status because their mother married a non-Indian after their birth between September 4, 1951, and April 17, 1985.
The assistant deputy minister of the resolution and individual affairs sector, Department of Indian Affairs and Northern Development, said that this was just one part of a two-phase process that would take up to 18 months to complete. She also said that the court deadline did “not allow for sufficient time to conduct meaningful consultations”. Even though the department had not entered into meaningful consultations, the deputy minister, when asked if the bill actually did what it claimed to do—eliminate sex-based inequities in registration—said that she was confident.
The next witness was Stéphane Descheneaux, the plaintiff in the case. Right off the bat, he made it clear that he had first heard of the bill only two weeks before appearing at committee. In that short amount of time, he and others had already identified apparent flaws in the legislation.
I have heard the government lecture about consulting for hours. The Prime Minister has shaken many hands and signed a variety of documents with indigenous people across the country. He often followed up these events by repeating that he is focused on a nation-to-nation relationship and consulting. Bill S-3, to me, is an example of a bill that indigenous people should have been part of during its drafting. If the government had spent—
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The Assistant Deputy Speaker Carol Hughes
Unfortunately, I have to stop the speaker at this point. However, the member for Fort McMurray—Cold Lake will have three minutes to finish his speech when this is back before the House, which will be later on today.
It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.
The House resumed consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as reported (with amendment) from the committee, and of the motions in Group No. 1.
David Yurdiga Conservative Fort McMurray—Cold Lake, AB
Mr. Speaker, I will try to be as thorough as possible in my remaining three minutes.
To me, Bill S-3 is the best example of a bill indigenous people should have been part of when drafting. If the government had spent some time consulting Stéphane Descheneaux and others, while spending less time repeating talking points, it could have fixed this mess months and months ago. Instead, the government waited until it received an extension to its court mandate deadline to get to work.
The department did much better this time around. It spent less time talking about what it was going to do and more time listening. Many indigenous groups were happy to show all the problems with Bill S-3 and how it can be fixed.
While Bill S-3 can no longer claim to fix all gender-based discrimination when amended, it is a good starting point for phase two.
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Mr. Speaker, I want to pick up a theme that was advanced by one of the Conservative colleagues, noting the very same amendment the Senate inserted into this bill and then the Liberal members of committee withdrew,“6(1)(a) all the way”, as the women's indigenous organizations are saying.
This is how it is described in a press release from the Abenaki Nation on June 18:
The clause added to Bill S-3 by the Senate was identical to a clause that the Liberal opposition had added to the Harper government’s Bill C-3 in 2010, but that then-House Speaker [Conservative Speaker]...ruled was out of order for going beyond the scope of the bill.
Now that the House Committee has changed the name of Bill S-3 on June 16th, the [Liberal]...government and Justice Minister...have followed the Harper government’s example and effectively announced they will not address sex discrimination in the Indian Act that goes beyond the specific circumstances of...Descheneaux and co-plaintiffs....
I am interested in my colleague's observations on why what the Liberals proposed during the Harper government could not now be embraced by the Liberals now that they are in power.
David Yurdiga Conservative Fort McMurray—Cold Lake, AB
Mr. Speaker, obviously we have to move forward. Unfortunately, the court decision had a mandated time period in which we had to address the issues.
Human rights should not be a topic where we have to extend debate. It should be automatic. Unfortunately, we cannot change yesterday, but we can change tomorrow. Moving forward, we understand that phase two is supposed address all sexual discrimination for indigenous people.
I am looking forward to phase two. It is important that there be continued progress with Bill S-3 and phase two.
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Mr. Speaker, since its inception, the Indian Act has accorded privilege to male Indians and their descendants and disregarded female Indians as second class. While piecemeal changes to this discriminatory act have been made over time, there is still a sex-based hierarchy of the status categories.
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 equality, watched in dismay last week as Liberals gutted reforms that would have made the Indian Act less vile. Canada's laws still say that indigenous people with a university degree, with military service, or with a white husband lose their Indian status. Would one not think that a government pledged to a new nation-to-nation relationship built on respect would want to fix this?
Indigenous women who lost their legal status after marrying white men convinced the Senate this month to adopt Indian Act changes to overturn these long-standing injustices. However, last week Liberal MPs stripped those changes out after the Minister of Indigenous and Northern Affairs threatened “dire unintended consequences” from what looks to me like a fundamental human right. Is there any other group in Canada the government would discriminate against in this way?
“[I]ndigenous women deserve the equality the charter is intended to ensure and protect”, so said litigant Lynn Gehl in Ottawa this month at a press conference.
Courts ordered that the government end discrimination in the Indian Act once and for all. This bill, gutted by Liberal MPs last week, could have done that.
To honour National Aboriginal Day tomorrow and to validate the Prime Minister's feminist rhetoric, the Prime Minister should do the right thing in this week's vote, maybe even in tonight's vote, and that would be to adopt the amendments proposed by my colleague in the New Democrat caucus and by the Green Party leader to restore the elements of the Senate bill that were cut by Liberal MPs at committee last week. Let us end this session of Parliament on a just note and send Canada on a good path for its 150th.
There is much support for the government ending sex discrimination in the Indian Act. Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which clarifies state obligations to respect self-determination, including the right to determine membership. Canada must get out of the business of deciding who is and is not an Indian under Canadian law.
The United Nations commission to end discrimination against women, just in November, called out the 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 relating 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 indigenous women enjoy the same rights as men to transmit their status to their children and grandchildren.
The government has failed. It has given this House a flawed bill, uninformed by any indigenous woman's input. 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 and have them inform this vital legislation before us.
The government has stalled for 18 months, knowing that it had a court-ordered requirement to do this work. It is scrambling at the end of this session to meet that court deadline. Having been given 18 months by the court to make this right, they had testimony from witnesses that could have made it right. The Liberals are now asking Parliament to pass a bill that is being heavily criticized by the majority of indigenous people.
I will quote from the Ontario Native Women's Association. It said,
By rejecting the “6(1)(a) All The Way” amendment to Bill S-3 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.
The Senate did repair that flaw. The Senate amendment, which came to this House, has support from indigenous women. That repaired bill, given to the government, was really a gift to a government that is struggling to deliver on its first nations promises.
On the eve of National Aboriginal Day and the celebration of Canada's 150th anniversary of Confederation, this would have been a real gift to the country to actually move forward and end gender discrimination under the Indian Act. Instead, the Liberal members of the committee gutted the bill, bringing us back to what we are debating today. It could be repaired by accepting the amendments that are on the floor right now.
This has left indigenous women out again. There is strong criticism, repeated again and again, by almost every indigenous women's organization we have heard from.
This has left us, then, scrambling in the final days of Parliament, disrespecting the advice of indigenous women and disrespecting Canada's deep need for reconciliation. This is breaking trust. It is a dangerous game. We have cynicism from the women most affected, and their children, when we have the Minister of Indigenous and Northern Affairs saying that there will be “dire unanticipated consequences” of this bill. Indigenous women say repeatedly that this is a human right, that gender equality is a human right already and that we do not need to consult on it.
This is a government that consults on everything, endlessly, things we did not think needed to be consulted on, such as restoring habitat protection to the Fisheries Act. In that case, we are consulted in the absence of action.
In this case, we have the government's failure to consult with the indigenous women most deeply affected. It brought a bill twice to the Senate on which there was no consultation, and now it is saying that we can only bring a half-measure bill, because we have to consult with indigenous people on the unintended and dire consequences the minister cites.
The government cannot have it both ways, not without breaking a great deal of goodwill and breaking a great deal of faith with indigenous women in this country.
As Sharon McIvor, litigant and now defence lawyer, asked at a press conference last week, why would they consult on whether they can continue to be discriminated against? Lynn Gehl, also a long-time challenger of this discrimination in court, said that the Minister of Indian and Northern Affairs is using consultation as a weapon. That is no way to move forward.
We have strong indigenous women leading in this country already. I want to pay my respects to Shania Pruden, from the Pinaymootang First Nation in Manitoba, and Teanna Ducharme, whose Nisga'a name is Aygadim Majagalee. Both of these young women, in association with the Daughters of the Vote program, came to this House and testified at the status of women committee. They are articulate, strong, brilliant leaders.
I also want to honour the late Shannen Koostachin, who initiated Shannen's dream and was at the root of the Canadian Human Rights Tribunal challenge on equality of treatment in child welfare. There are three rulings now the Canadian government has not honoured.
There is also Helen Knott, Treaty 8 leader, who is advocating and saying strongly that violence against the land is the same as violence against women. We need to move forward in a good way.
I ask the government to please either adopt the Senate amendments or ask the court for an extension so that it can really do this right. We cannot afford half measures in this country. Gender equality and first nations respect is a solemn promise of the government that I am going to keep working to have it keep.
Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs
Mr. Speaker, this afternoon the judge rejected the plaintiff's application for a further extension. The member is aware of that. More than 35,000 people have been waiting two years since this court decision was exercised to exercise their rights. She understands that we need to pass this legislation immediately to address the discriminatory gender-based gaps that exist in the Indian Act. We have also committed to stage two.
Will the member support those people who have been waiting for the past two years and support the second stage so we can do the consultations properly and get the real changes that are necessary in the bill?
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Mr. Speaker, when the Liberal government was in opposition, it proposed the very same amendment to the Conservative government that, now that it is the government, it rejects. This has been on the Liberal Party's agenda and radar for a very long time. When they formed government, they would have been briefed on this. They have had 18 months to ask indigenous women whether the new legislation proposed in S-3 was adequate. Twice, the Senate told the government it was, because the Senate actually talked to indigenous women when the government failed to.
The message we are getting loud and clear from every native women's organization is that they want the Senate version of the bill passed. It is the perfect undertaking. That is what we are urging this government to do now. If the Liberals really are so surprised about the same amendment they proposed in 2010, and that the Minister of Justice advanced when she was an elected chief at the highest levels in British Columbia, imploring this Parliament to take the very same action she now opposes, which is stunning to me, then the government should ask for an extension, because it did not. In fact, the court ruling this morning said that the judge was unwilling to get in a battle between the Senate and Parliament unless the government itself was going to invite it in and leave the door open. The government has failed to ask for that extension. It has no credibility.
Murray Rankin NDP Victoria, BC
Mr. Speaker, I would like to thank my colleague from Nanaimo—Ladysmith for her passionate advocacy on behalf of indigenous women in this context.
I was disappointed to hear her say that the Minister of Indigenous and Northern Affairs has claimed “dire unintended consequences”. I would like her to advise the House just what those consequences would be, because gender equality is a human right, as she said. One would hope that would be the number one priority. What are these dire unintended consequences? Are they real, or are they simply a smokescreen for a failure to do the right thing?
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Mr. Speaker, I share the member's frustration. We cannot think of another group within Canada that is discriminated against more than indigenous women. It is a double whammy in our system, which we really hoped this government was going to try to change.
No one should have to have consultation on their human rights. This is not unlike the Canadian Human Rights Tribunal. The government has now been issued three non-compliance orders. The courts have said that indigenous kids should get the same funding and treatment as non-indigenous kids. The government in that case said it could not afford the $155-million tab to do that. The government is very willing to spend on all kinds of other areas, but that it is not willing to spend on human rights is inexplicable, and it has some explaining to do.
Elizabeth May Green Saanich—Gulf Islands, BC
Mr. Speaker, I have talked to representatives of the government. I very forcefully won amendments. I put forward amendments to restore the provisions that eliminate all gender discrimination. I do think, in fairness to the hon. minister, that there are issues. My view is that we can solve the issues.
There is one I will mention to the hon. member. If a whole flood of new members were accepted as legitimate members of a first nation community, they would then have voting rights. Some first nations communities have a quorum that requires 25% of all those people in the nation to vote before the election is valid.
There are ways to handle unintended consequences. Deciding to continue gender discrimination is not a way to handle an unintended consequence.
Sheila Malcolmson NDP Nanaimo—Ladysmith, BC
Mr. Speaker, the member is quite right. The government has had years to examine these “unintended consequences”. The amendments proposed today are identical to those that the Liberals proposed while in opposition in 2010. They certainly should be aware of what the implications of their amendments were. They should stop their hypocrisy and move ahead to end gender discrimination against indigenous women.
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The Assistant Deputy Speaker Anthony Rota
The question is on Motion No. 2. Is it the pleasure of the House to adopt the motion?
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The Assistant Deputy Speaker Anthony Rota
In my opinion the nays have it.
And five or more members having risen:
The recorded division on Motion No. 2 stands deferred.
The next question is on Motion No. 4. Is it the pleasure of the House to adopt the motion?
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The Assistant Deputy Speaker Anthony Rota
In my opinion the nays have it.
And five or more members having risen:
The recorded division on Motion No. 4 stands deferred.
Normally at this time the House would proceed to the taking of the deferred recorded divisions at the report stage of the bill. However, pursuant to orders made on Tuesday, May 30, the divisions stand deferred until June 21, at the expiry of the time provided for oral questions.
The House resumed from June 20 consideration of Bill S-3, an act to amend the Indian Act (elimination of sex-based inequities in registration), as reported (with amendment) from the committee, and of the motions in Group No. 1.
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The Speaker Geoff Regan
Pursuant to order made on Tuesday, May 30, 2017, the House will now proceed to the taking of the deferred recorded divisions on the motions at report stage of Bill S-3.
The question is on Motion No.2. A negative vote on Motion No. 2 necessitates the question being put on Motion No. 3.
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The Speaker Geoff Regan
I declare Motion No. 2 defeated
The next question is on Motion No. 3.
Is it the pleasure of the House to adopt the motion?
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The Speaker Geoff Regan
I declare Motion No. 4 defeated.
The next question is on the main motion. Is it the pleasure of the House to adopt the motion?
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