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

Status

This bill has received Royal Assent and is, or will soon become, law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Dec. 4, 2017 Passed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
Dec. 4, 2017 Failed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (amendment)
June 21, 2017 Passed Concurrence at report stage of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)

June 6th, 2017 / 10:35 a.m.
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NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

I asked the representative from Justice Canada just a few minutes ago whether Bill S-3 was vetted against the charter to make sure of its compliance. Under the Department of Justice Act, subsection 4.1(2), they have the obligation to make sure that any legislation is consistent with the Charter of Rights and Freedoms.

The answer to that question was that, yes, they did that.

Do you agree?

June 6th, 2017 / 10:20 a.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Thank you, Madam Chair. I'd like to thank the witnesses for coming back again. I'm sure we'll be seeing each other again and again, and probably my great-grandchildren will too.

It's interesting that we would like to have stage two and to do another study, and then it will be stage three, as everything is really being pushed down the road. Why? It's probably a money issue. I have a lot of people come to my office and say that we have to fix this now, that we don't need to punt it down the road to the next election or the one after. It's very troubling.

What I'd like to see is how you would fix Bill S-3 as it stands with the amendments. Is there anything more that needs to be done?

I open up the question to all the witnesses, if they want to answer.

June 6th, 2017 / 9:50 a.m.
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David Schulze Legal Counsel, Council of the Abenaki of Odanak

Thank you, Madam Chair.

Ladies and gentlemen members of the committee, I will address you today in English.

Thank you for inviting us. I'm David Schulze. I was counsel for Stéphane Descheneaux, Susan and Tammy Yantha, and the Abenaki of Odanak and Wôlinak in the Descheneaux case. I am joined by Chief Rick O'Bomsawin of Odanak and Mr. Stéphane Descheneaux.

Now, I know we did this before Christmas, but I offered to briefly take the committee through the status rules again so that we know what we're talking about, because these issues are not simple.

By way of context, you will recall the challenge that Madam Justice Masse put before Parliament in her judgment. She said she was disposing of Mr. Descheneaux and Susan and Tammy Yantha's case, but as she said, “Parliament is not exempted from taking [other] measures to identify and settle all other discriminatory situations...whether they are based on sex or another prohibited ground.” We will look at whether this bill does that.

Briefly, how does status work? There are two subsections in section 6 of the Indian Act that give you status: 6(1) and 6(2). This chart quickly explains it to you, but it's not always easy to follow. Keep this in mind. A person registered under 6(1) will always have a status child. A person registered under 6(2) will never have a status child if they don't parent with another status Indian. It is always better, if you would like your children to have status and to be able to inherit your house on reserve, to be a 6(1) than a 6(2). That is the bottom line.

This system of 6(1) and 6(2) is the way the federal government, in 1985, tried to solve the discrimination in the Indian Act. Just as an aside: before 1985, status under the Indian Act was purely patrilineal, with one exception. Status was for Indian men, their wives, and their children. That was it. The only exception was for an Indian woman who had a child out of wedlock with an unidentified father. If they couldn't show the father was not an Indian, that child could be registered. Otherwise, there was no one on earth who had their Indian status from their mother; they had it from their father. An Indian woman lost it if she married a non-Indian man, and a non-Indian woman gained it if she married an Indian man. That's how it worked, and that had to be cured in 1985. Why 1985? Because that's when section 15 of the charter came into effect.

The government came up with what they called the second-generation cut-off. After two generations of parenting with a non-Indian, the third generation, the grandchild, has no status. If you look at the cabinet documents from the early 80s, they actually call this a 50% blood quantum. That's what they call it. It is, in effect, really a kind of grandparent threshold. Most of the time, if you have two status grandparents, you will have status, but as you'll see, it's not 100%. You see up here on the chart how a 6(1) will always produce a 6(2). If you have two 6(1)s, they each have a 6(2), and those 6(2)s marry: boom, you've got a 6(1) again. There won't be a quiz on this afterwards.

There's a sort of strength in having 6(1) ancestors, so that—as you'll see here—you can end up with a 6(2) grandchild, but it's not 100%. It won't always be enough. If you spread them out the wrong way, and if you don't have enough 6(1)s in your family tree, you can have the same number of status grandparents and end up with no status. The fact is, as I said, it's always better to be 6(1) than 6(2). The government likes to go to court and say there's no difference between 6(1) and 6(2); they're all Indians. That's very nice for everybody except somebody who is 6(2) and is facing the prospect of having children with no right to stay on the reserve.

Here's the other thing you absolutely have to understand. I'll just go back to one other chart. In this example, that 6(1) status doesn't mean the person was born an Indian. Remember, the non-Indian woman who married in, who married an Indian man before 1985, she got status. She is as 6(1) as anyone else. The 6(1) ancestors are counted whether or not they were born Indians or whether they acquired it by marriage.

When I said the name of the game is to have 6(1) grandparents and great-grandparents, that includes women who married in, and that's what gives us the “cousins” rule that led to the McIvor case.

That's how, in a nutshell, the grandchildren of a woman who married out before 1985, under Bill C-31, under the original amendments, weren't going to get status unless the woman's children parented with Indians. If her brother married a non-Indian, however, his grandchildren would get status. His grandchildren get counted as having two status grandparents and hers don't, because she got her status back in 1985, but of course her husband stays a non-Indian. That's the “cousins rule”. That's what McIvor was about.

The government said they were solving that in Bill C-3. As they often do in the Department of Indian Affairs, however, they didn't see what they didn't want to see. They figured that, because Sharon McIvor's son married after 1985, they would only look at women who married out and whose children had their children after 1985 under the new rules. So Sharon McIvor's son had status but her grandchildren didn't.

They ignored the fact that there were generations of men and their sons and their grandsons marrying before 1985. If a man married out before 1985, and if his son then married out before 1985, he didn't have 6(2) grandchildren; he had 6(1) grandchildren. He could not have anything other than status great-grandchildren.

The comparator is Mr. Descheneaux. Mr. Descheneaux's grandmother married out, and after 1985 he was a 6(2). His children still don't have status. His great uncle would produce 6(1) grandchildren and status great-grandchildren, which Stéphane couldn't, because he traced his lineage to a grandmother who married out, not to a grandfather who married out. That's the Descheneaux part of the Descheneaux case in a nutshell. Parliament messed up. They knew exactly what they were doing. The Abenaki came before them in 2010 and pointed this out.

This is the comparator. The grandfather married out and has six status great-grandchildren. Stéphane has children without status. Under Bill S-3, they will have status. That part of the discrimination is cured by Bill S-3.

There was another case, and I won't get into it in great detail, but I want you to understand what we're dealing with. It was all patrilineal before 1985. The result was, to make a long story short, if an Indian man had a child out of wedlock before 1985, his son could be registered but his daughter could not. Post-1985, they looked at the daughter and determined that since she had only one 6(1) parent she was a 6(2). That's how we got Susan Yantha, who had a different status from her brothers. That's how the same parents could have two children, a son and a daughter, each with a different status.

I want all of you to think about the absolute absurdity of the fact that I had to go before the Superior Court and argue that this was really discrimination under the charter, when Justice Canada stood up and said it wasn't. That is how first nations and their lawyers have to spend their time. That is also cured under this bill.

However, Indian Affairs managed to mess it all up. They messed it up in the bill that was provided and tabled, because now they've made sure that if an Indian man had a child out of wedlock before 1985, the status can go all the way to his great grandchildren through his daughter, but they forgot about the fact that there were women who had children out of wedlock before 1985 who could have their...and if it could be shown that the father was non-Indian, that kid's status could be removed. Again, I won't go through the details, but to make a long story short, they were going to leave that woman's descendants in a worse position than Susan Yantha's children and grandchildren.

They actually told me in a meeting when Chief O'Bomsawin and I met with the staff of the assistant deputy minister and Mr. Reiher, “Yes, we saw that problem but we didn't think it was discriminatory. Then, you know, the Indigenous Bar Association pointed it out before the Senate. Then we decided it was discriminatory, and we fixed it.”

They said they fixed it. Then they had to come back before the Senate last month and fix it again, because they actually hadn't gone enough generations forward. That's where we are with Bill S-3. It's a patch on a patch on a patch on a patch on a patch.

They also cured this problem. I think we really don't have time to take you through it, but it has to do with these particular effects. If an Indian woman had a child by an Indian man but then her second husband was non-Indian, her children under the age of 21 by the first husband would lose status. Those children would end up disadvantaged relatives to their older brothers if those brothers were too old to have lost status. That is cured by this bill and that's all to the good.

This is the scenario that I brought up with Mr. Reiher and that he thinks is not discriminatory. I will try to take you through it extremely quickly as well. Before 1985, an Indian man could decide to enfranchise himself, his wife, and his children. This leads to the following situation, and this is a real situation in Odanak.

A woman was enfranchised before the age of 21, when her dad enfranchised the whole family. Her grandchildren don't have status. Her older sister wasn't enfranchised by their dad, because she was already married to a non-Indian, so she benefited from the McIvor decision; she will benefit from the Descheneaux amendments; and she will have status great grandchildren. This woman will not even have status grandchildren.

The department tells me that this is not discrimination based on sex. I say it is. I say it is for the simple reason that this woman's mother had enfranchisement imposed on her by this woman's father. Indian Affairs says that's okay, because if her brother had enfranchised himself and the sister-in-law, they would be in the same place.

My vision of equality is not that. If we end up with men who have privileges, but are treated no better than women who have no privileges, I don't think that is equality. The Department of Indian Affairs and Justice Canada do.

That's where we are with Bill S-3. That's the overview, and now we have this amendment from the Senate. I'm going to try to make a few relatively simple points about it.

The first one is this, and it's very important that you understand it. Here are the points I want to make. Without the amendments the Senate has brought, the registration rules under the Indian Act, the status rules, will continue to discriminate, and they will continue to violate the charter. There's no dispute about that.

The second point I want to make is that the Abenaki nation was not consulted and not engaged with on Bill S-3.

The third point I want to make is that there is no confidence among aboriginal communities about stage two.

The final point is that there is time right now to do this right.

I want to come back to those points. The first point is that there will be discrimination and the charter will be violated, and you might say they're the same thing. They're not exactly the same thing. The department has told you that the McIvor decision means that they don't have to do this or that, and that the Senate is going too far because it is going further than what McIvor said they had to do.

Let's be very clear on what McIvor said, and I'll try to do this without taking you to the finer points of the double mother rule, which always gives people a headache.

June 6th, 2017 / 9:45 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Actually, as we indicated, it's what the court has decided, plus what is clear.

In the situation of the unstated paternity, at the time of the introduction of Bill S-3, we had a court decision telling us that it was not contrary to the charter. We could not consider this an inequity or a breach of the charter. We had a court decision telling us that it was compliant with the charter.

After that, we—

June 6th, 2017 / 9:40 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

That was afterwards, yes. I'm talking about Bill S-3 as it stands.

June 6th, 2017 / 9:40 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

We actually included in Bill S-3 an amendment to address the unstated paternity issue.

June 6th, 2017 / 9:40 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

I would say that Bill S-3, without 8.1 and 8.2, would address known sex-based inequities.

June 6th, 2017 / 9:35 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Thank you.

We have yet to see the options that will be developed by first nations, by indigenous peoples, and by impacted individuals, so I cannot prejudge what will happen after the process. I doubt very much that we will hear a desire to maintain the status quo. It's highly likely that the government will hear about options for reform and will look into them and come back with reports to committees first. As you know, in Bill S-3 the minister is committed not only to launch a process of consultation but also to report back to Parliament on its progress after 12 months.

Theoretically, I suppose it's possible that at the end we would be in the same place, but it's highly likely that we will have options on the table to work with and to propose reform. Of course, as was mentioned before, it's not reasonable to think that everything will be settled within 18 months and that control of this will be with first nations for the determination of their identity, etc. I think a staged response, staged reform, is highly probable, which will take a number of years to implement. At least, I think after 18 months we will have a very clear picture of the path and where people want to go.

June 6th, 2017 / 9:30 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

With regard to how long it will take to register the up to 35,000 individuals, 54 people are being hired to implement Bill S-3 quickly once it's passed and in force. We contemplate that it will take over two years. We have an assessment of how many people will apply over several years, and over two or three years we think that most of the 35,000 individuals will have applied.

Maybe I can quickly turn to my colleague, the registrar of Indian Affairs.

June 6th, 2017 / 9:30 a.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Okay, once Bill S-3 passes, what are the next steps?

June 6th, 2017 / 9:30 a.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Thank you.

What you're saying is that 18 months is a starting point and that there is the potential to extend that for whatever period is necessary to complete the task. The last time Bill S-3 came through here, in my opinion it was a joke. The consultation wasn't there. The departmental official deceived us with the consultation process, and we were really shocked about that.

However, moving forward, when Bill S-3 passes, what are the next steps? Can you explain the process to identify and re-establish Indian status? Further, there has to be some kind of timeline. We're talking about potentially doubling the amount of individuals seeking to re-establish their status.

Can you touch on each aspect of that—

June 6th, 2017 / 9:30 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Bill S-3 does not address all issues relating to the identity of indigenous people; that's for sure. This is why the government proposes a second stage to talk about the identity of indigenous people more generally. Bill S-3 addresses the sex-based inequities that we know about at this time.

June 6th, 2017 / 9:25 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Thank you.

The Senate amendment 8.1 and 8.2 proposes the adoption of a remedy that was explicitly rejected by the Court of Appeal of British Columbia in the McIvor decision in 2009 as not required under the charter. Therefore, it's the government's position that it is not contrary to the charter to pass Bill S-3 without 8.1 and 8.2.

That said, the government is prepared to listen to and explore with the impacted individuals and first nations how to address their concerns in a way that respects both the impression that there is an inequity and, at the same time, the will of communities and first nations to control their identity and their membership. That's how the government proposes to address the concern.

June 6th, 2017 / 9:25 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Thank you.

The government took to heart the injunction of the Superior Court of Québec to deal quickly with the issue before it, but also to look at broader issues. This is why a two-stage approach was proposed and will be followed. Immediately after Bill S-3 is passed, stage two will be launched to have meaningful discussions with first nations on broader issues—not only sex-based discrimination or inequities but also broader issues and how to address these issues with first nations, rather than imposing something. To avoid a patchwork approach is exactly what the government wants to do, but this requires discussions. This requires consultation with first nations and impacted individuals, which is why stage two is proposed.

June 6th, 2017 / 9:20 a.m.
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NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

I have one last question for Mr. Jacques.

Since we are dealing with issues related to the Canadian Charter of Rights and Freedoms, was section 4.1 of the Department of Justice Act applied in the case of Bill S-3?