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 / 9:15 a.m.
See context

Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

The minister's commitment consists in collaborating on process development. Right after Bill S-3 is passed, contracts will be awarded to various aboriginal organizations, so that the process, which will be launched within six months of the bill's passing, can be developed in collaboration.

June 6th, 2017 / 9:15 a.m.
See context

Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

No, we don't agree.

In the government's opinion, that is not a situation covered by the bill. It is a complicated situation that deserves to be looked at in the context of the next stage of the consultation. It is a situation of a woman married to an aboriginal man who loses her status when her husband decides to enfranchise himself. According to Mr. Schulze, the fact that a woman is forced to be enfranchised, according to the language used in the Indian Act, at the time, after her husband makes the decision, is indicative of sex-based discrimination.

We think that the man's situation is similar to that of the woman, in that context. We have often heard it said that enfranchisement was not a choice for aboriginal individuals covered by the Indian Act, but that it was often an obligation based on social pressures or an obligation that occasionally arose automatically, under the act.

We feel that the fact that a woman is forced to be enfranchised because her husband is enfranchised does not lead to a distinction between those two situations. So in order to deal with the situation in question, we would have to deal with all enfranchisement situations in the same way. That is beyond the scope of Bill S-3, and further discussion is required with communities on how to do that.

June 6th, 2017 / 9:05 a.m.
See context

Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

I will remind the committee that in the fall economic statement of 2016, $149 million was set aside for the implementation of Bill S-3, including $19 million for the—

June 6th, 2017 / 9 a.m.
See context

Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Thank you for the question.

The Superior Court of Quebec was basically dealing with two situations.

The first was the situation of the plaintiff Stéphane Descheneaux, who was affected by what is referred to as the “cousins issue”. He was unable to transmit Indian status to his children in the way a descendent of a man in the same situation as his own would be able to.

The “cousins issue” was first dealt with by the British Columbia Court of Appeal, in 2009, in the McIvor case and partially resolved through Bill C-3 in 2010.

However, at the time, the situation was not fully resolved, and Mr. Descheneaux's situation was not addressed. In his situation, there remained a difference between maternal and paternal lines. The situation was deemed to be contrary to section 15, as it constituted a distinction that was not justifiable under section 1 of the charter.

The second situation is that of the two Yantha women, mother and daughter. That situation involves what is referred to as the “siblings issue”. In the legislation that preceded the act of 1985, legitimate female women and children born to an Indian father, but out of wedlock, were not eligible for Indian registration. That situation was remedied by the act of 1985, but in such a way that there remained a distinction between paternal and maternal lines. Those women's ability to transmit Indian status was different from that of their male counterparts. Once again, that distinction based on gender was found to violate section 15 of the charter. So those two situations are remedied by Bill S-3.

June 6th, 2017 / 9 a.m.
See context

Liberal

Rémi Massé Liberal Avignon—La Mitis—Matane—Matapédia, QC

Thank you, Madam Chair.

I want to thank the department officials for joining us to testify during the study on Bill S-3.

I would like to begin with the bill's objectives and with what led to its creation. As we all know, in August 2015, the Superior Court of Quebec ruled that paragraphs 6(1)(a), 6(1)(c) and 6(1)(f), as well as subsection 6(2) of the Indian Act violated equality rights guaranteed under the Canadian Charter of Rights and Freedoms because they created a differential treatment between maternal and paternal lines in the acquisition and transmission of Indian status. The court made a declaration of invalidity, which was suspended for 18 months and was then extended, as you mentioned, until July 3, 2017, to enable Parliament to pass the legislative amendments needed to bring the act into line with the charter.

Here's my first question. On what basis did the Superior Court of Quebec find that section 6 of the Indian Act violated the equality provisions of the charter?

June 6th, 2017 / 8:50 a.m.
See context

Martin Reiher Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Thank you, Madam Chair and honourable members.

My name is Martin Reiher, and I am the assistant deputy minister of resolution and individual affairs at the Department of Indian Affairs and Northern Development. Joining me today are: Candice St-Aubin, executive director, new service offerings; Nathalie Nepton, executive director, Indian registration; as well as Karl Jacques, from the Department of Justice.

Thank you for the opportunity to give you an update on the government's response to the Superior Court of Quebec's decision in the Descheneaux case and bring you up to date on new developments since your last meeting on this bill, which was held on November 21 of last year.

As you will recall, in August 2015 the Superior Court of Québec ruled, in the Descheneaux decision, that key Indian registration provisions affecting 90% of the registered Indian population under the Indian Act contravened the Canadian Charter of Rights and Freedoms by perpetuating differential treatment in entitlement to Indian registration between a woman and a man and their respective descendants.

In response to that decision, the government announced a two-stage approach. The first stage involves legislative amendments through Bill S-3, which will be followed by a process on broader issues related to registration. That will be a collaborative process with first nations and other indigenous groups.

Bill S-3, introduced in the Senate on October 25, 2016, will remedy situations of known sex-based inequities in registration. For the purposes of Bill S-3 we refer to known sex-based inequities as situations that are solely sex-based and have been found to be discriminatory by the courts or are similar to such situations. Bill S-3 is therefore not restricted to situations in which a court has already ruled but extends to situations in which the courts have yet to rule and where it is clear that a sex-based charter would be found.

During the deliberations of your committee and of the Standing Senate Committee on Aboriginal Peoples, witnesses and members of both committees expressed concerns about whether BillS-3 addressed all possible situations of sex-based inequities, as well as concerns regarding the level of engagement with first nations and impacted individuals. The Standing Senate Committee on Aboriginal Peoples suspended the study of the bill and requested that the government seek an extension to continue engagement on issues within the scope of the bill.

On January 20, 2017, the Superior Court of Quebec granted a five-month extension to remedy the discrimination identified in the Descheneaux case.

That extension has enabled us to begin a mobilization process and ensure that justice will be done as quickly as possible for some 35,000 individuals who will become eligible for Indian registration once Bill S-3 is passed.

As part of a letter sent to you on February 6, 2017, we shared with you a four-tiered action plan that was developed to guide the engagement activities during the short period of time provided by the court, a plan that built on the engagement sessions held in the fall.

I would now like to provide you with an overview of additional engagement activities that were held. The government was able to conduct 10 additional engagement sessions from January through April 2017. Bilateral discussions were held with the Canadian Bar Association, the Aboriginal Legal Services, and the Feminist Alliance for International Action.

The department provided support to the Native Women's Association of Canada to design and lead a series of engagement sessions with its provincial and territorial member associations, and their report was provided to this committee. The department also provided support to the Indigenous Bar Association to complete a review of the bill to identify situations of sex-based inequities not captured originally in the bill. The report was also shared with this committee.

Finally, technical discussions were held with legal representatives from the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada, the Indigenous Bar Association, and the plaintiffs' legal counsel in the Descheneaux case.

We know that even with this extension, there was not enough time to truly consult, and we acknowledge the tremendous effort and long hours that organizations put into this work. We heard about a wide range of issues through these different fora, some within the scope of Bill S-3 and others falling outside.

What is evident from these discussions is that people are very passionate and committed to addressing issues of inequity in administration. At the same time, it was highlighted that jurisdiction over Indian registration and band membership should not remain under the government's control.

As mentioned earlier, we provided support to the IBA and NWAC to review the bill. In their reports, issues such as unstated paternity and the 1951 cut-off were flagged, as well as amendments to avoid inequities that would be created by Bill S-3 in its original state.

The government has heard recommendations from this extended engagement regarding outstanding sex-based inequities. During the study of the bill at the Senate committee we welcomed a number of important amendments to the bill, which now addresses some of the situations flagged.

Amendments were made to address further groups identified by the IBA that would be discriminated against based on sex if the original bill had been passed. The committee also adopted an amendment to the bill regarding the issue of unstated paternity, which will enshrine into legislation additional procedural protection as contemplated by the Ontario Court of Appeal in the Gehl decision.

The committee passed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to provide an update on progress towards broader reform.

Lastly, I would like to speak to the amendment—referred to as 6(1)(a) “all the way”—adopted in committee, adding subparagraphs (a.1) and (a.2) to a new paragraph 6(1)(a) of the current Indian Act.

The government is unable to support this amendment, first because as drafted it is unclear and in contradiction with some of the provisions of the Indian Act, and second because its intended effect puts it outside the scope of Bill S-3, which is deemed as addressing known sex-based inequities. The amendment, in fact, contradicts the current state of the law by granting a remedy explicitly rejected by the Court of Appeal of British Columbia in its 2009 McIvor decision as not being in line with charter requirements.

The amendment is also in contradiction to subparagraph 6(1)(c.1)(iv) of the Indian Act, a provision that was not struck down by the courts in the Descheneaux case and is still in the Indian Act.

Moreover, by purporting to provide an entitlement to registration to all direct descendants born prior to 1985 of individuals previously entitled under the old Indian Act, the intended effect of the amendment would affect descendants of individuals who were enfranchised not only due to marriage but also for reasons unrelated to their gender.

Finally, the amendment would not appear to grant membership to the individuals it targets.

Such a broad amendment casts the net much wider than what is required to achieve the goal of Bill S-3 and would have wide-ranging, unforeseen implications. More work is required to understand the implications, and we wish to have more discussions with first nations partners on the best way to address these broader issues.

To that end, stage two will begin, following the coming into force of Bill S-3, and will be the opportunity to examine the broader issues relating to registration, membership, and citizenship, with the objective of identifying options for future reform.

In conclusion, I would like to highlight the consequences of not passing the bill before the revised court deadline of July 3. Let's not lose sight of the individuals directly affected by this bill. About 90% of the registered Indian population is registered under one of the provisions struck down by the court in Descheneaux. As you know, if Bill S-3 is not in force on July 3, these sections will be inoperative in Quebec, and the practical implication for the registrar is that she would not be in a position to register people under those provisions in the rest of the country.

We must ensure that we do not deny justice to the plaintiffs and to the other 35,000 individuals affected by the decision, while also ensuring that meaningful consultation with indigenous groups is conducted adequately to address other complex matters. Consistent with Canada's commitment to reconciliation and a nation-to-nation relationship with indigenous people, the minister gave her personal commitment to co-designing a process with indigenous people, including communities, impacted individuals, organizations, and experts to deliver a substantive report.

Thank you.

June 6th, 2017 / 8:45 a.m.
See context

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Madam Chair, on that particular point, as you know, of course, we're seized with Bill S-3 and the suicide study. We're not looking at the land claim initiative until into the fall. I propose that we perhaps extend that deadline even a little bit further. I think that would allow for some opportunity to get some strong witnesses. I don't see any negatives to perhaps looking at a two-week extension from your proposed date.

June 6th, 2017 / 8:45 a.m.
See context

Liberal

The Chair Liberal MaryAnn Mihychuk

Good morning, everyone. Welcome to our committee.

I would like to start by saying that we are on the traditional territory of the Algonquin people and that these lands are unceded.

Pursuant to Standing Order 108(2) and the motion adopted on Wednesday, October 26, 2016, the committee is resuming its study on the subject matter of Bill S-3, an act to amend the Indian Act (elimination of sex-based inequities in registration).

On another matter, we did not receive many witness suggestions from committee members for the study on specific claims and comprehensive land claims, so I propose that we extend the deadline to June 8 for you to forward, to the clerk, witnesses and site visits.

Ms. McLeod.

Indian ActRoutine Proceedings

June 2nd, 2017 / 12:10 p.m.
See context

Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

moved that Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be read the first time.

(Motion agreed to and bill read the first time)

Message from the SenateGovernment Orders

June 1st, 2017 / 5:20 p.m.
See context

Conservative

The Deputy Speaker Conservative Bruce Stanton

I have the honour to inform the House that messages have been received from the Senate informing this House that the Senate has passed the following bills, to which the concurrence of the House is desired: Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration); and Bill S-5, An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts.

Business of the HouseOral Questions

June 1st, 2017 / 3:10 p.m.
See context

Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, this afternoon, we will continue debate on the Conservative's opposition motion. This evening, we will proceed with Bill C-45, the cannabis act, at second reading.

Tomorrow morning, we will commence report stage of Bill C-44, the budget. In the afternoon, we will return to Bill C-45.

Our hope for Monday and Tuesday is to send Bill C-45 to committee, and also to deal with report stage of Bill C-44. Other bills for next week include the Senate amendments to Bill C-6, the Citizenship Act; and Bill S-3, provided the bill is passed by the Senate.

Should time permit, we would also like some debate on Bill C-49, transportation modernization; and Bill C-24, to amend the Salaries Act.

We have had a conversation among House leaders. I look forward to continuing those conversations, and I will do my best to report to this House the information that I have, and we will do our best to work well together so that all members can do the good work that we are sent here to do.

December 5th, 2016 / 5:25 p.m.
See context

Liberal

Carolyn Bennett Liberal Toronto—St. Paul's, ON

No, I think what we're saying is that if we were to ask for an extension, it would be in order to get the work of this bill through the two houses in a timely fashion. I think we do not believe we'd be granted an extension in order to deal with all the other inequities. I think that is the advice that we've been given, that it needs to be basically the ballpark of what the plaintiffs argued. In order to seek justice for those plaintiffs, that would be the purpose of an extension.

We're very grateful that because of the sibling issue in Bill S-3, the Indigenous Bar pointed out this other group that will lend itself to an amendment. With that, we do believe we will have a bill that will deal with what the court asked us to do.

December 5th, 2016 / 5:20 p.m.
See context

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

To go back to your comment that you need to do the consultation and then the committees do their work, we're not the environment, and I absolutely agree. Unfortunately, we've seen with Bill S-3 that this is exactly what's happening: the consultation happened after the legislation was drafted. In this case, luckily, it came to committee simultaneously while it was in the Senate, and certainly the flaws are coming very much to light. Again, I look at Mr. Descheneaux's lawyer with his four pictures of very inadequate responses of the legislation.

We've had a committee. We've had expert witnesses. The vast, vast majority of them have all indicated that they believe there are still flaws. We're not privy to whether it will come from the Senate with a minor fix or not, but the advice to this committee by the vast majority of witnesses from across the country is to take a little bit more time, get this right, ask for the extension.

The position you've taken at the table today is that you're not going to do that. So what all these witnesses have said to us is something that is not, you believe, the way to go forward. Whether it was National Chief Bellegarde or whether...and I can go through the list. You've seen the testimony.

What you're telling us today is that, really, it's very nice that they came, but we're going to go forward, just as you sort of went forward with the drafting without their input. Is that what we're hearing today?

December 5th, 2016 / 5:15 p.m.
See context

Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Minister, we heard from most of the witnesses that Bill S-3 is flawed. Will you listen to first nations and ask for an extension, or will you ignore first nations' request to have an extension requested?

December 5th, 2016 / 4:55 p.m.
See context

NDP

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

Thank you.

I asked that question, Madam Minister, because already 2017 is pretty close for me and I notice at what a snail's pace the Human Rights Tribunal decision is being implemented by your government. After one ruling by the Canadian Human Rights Tribunal and two subsequent orders, we're still not where we're supposed to be in that decision. That's why I'm asking if you're going to move fast on this one.

My problem with the present bill, and I want to get to Mr. Reiher on this one afterwards, but the first one is you're asking us.... There has been consensus by all the panellists and witnesses on this question, that this bill from the Senate is still discriminatory. It is still not charter compliant totally, and you're asking the members of this committee to stand up and support this bill. You're asking me to go against my duty as a member of Parliament to stand up in the House and uphold the rule of law.

Your colleague, Mr. Carr, has certainly a different understanding of what the rule of law is. He's thinking police. I'm thinking something else here.

The rule of law according to the Supreme Court of Canada is upholding the Constitution in this country and in that Constitution there's the Charter of Rights and Freedoms and in that Constitution there are section 35 aboriginal treaty rights.

You're asking me to do the contrary of what my duty as a member of Parliament is by suggesting that I stand up in support of Bill S-3.