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)

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.

December 5th, 2016 / 4:45 p.m.
See context

Liberal

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

We've heard that in so many things, that the national organizations have important people there with policy. What we've heard very clearly is that people want us to be able to talk directly to the people affected, the communities, the community organizations that are the most affected. Even in Mr. Descheneaux's own community, there are many people who will be left behind as Bill S-3 goes through.

Talking to those people, I think will be very important in actually hearing what they have to say, such that they don't have to go to court to get their rights. We want to make a good policy decision that will get rid of all of these discriminations and inequities that are still in the Indian Act.

December 5th, 2016 / 4:30 p.m.
See context

Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

Thank you so much. I'm pleased to be back to discuss Bill S-3, acknowledging that we're meeting on the traditional territory of the Algonquin people. I appreciate this opportunity to meet with you to explain the government's proposed approach to dealing with the Descheneaux decision.

I'm joined by Indigenous and Northern Affairs Canada officials Joëlle Montminy, who you know as the assistant deputy minister, resolution and individual affairs, and Nathalie Nepton, the executive director of Indian registration and integrated program management. She is the Indian registrar. We are trying to put her out of work. We are trying to get this business returned to first nations themselves. Also with me is Candice St-Aubin, executive director, resolution and individual affairs, and from the Department of Justice, Martin Reiher, general counsel.

First I want to pay tribute to the many courageous first nations women whose tireless work brought these matters to light. They are women like Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bédard, Senator Lovelace Nicholas, and Sharon Donna McIvor. We would also like to recognize Stéphane Descheneaux, Susan Yantha, and Tammy Yantha, whose courageous fight will eliminate the discriminatory treatment of tens of thousands of people.

I want to thank the committee for your tremendous work on this bill under challenging circumstances.

The Senate committee has also done tremendous work during its studies for which we thank it. Hearings of the Senate committee on aboriginal peoples have identified one further group that should be included in this bill, and I believe it will be included through an amendment introduced in the Senate.

Meeting the court deadline of February 3 required us to make difficult choices about the scope of the bill and to balance the necessary time for engagement with indigenous people and that for parliamentarians to discharge their responsibilities.

The Prime Minister and this government have committed to renewing the relationship between the crown and indigenous people. This means, whenever possible, working in partnership to resolve issues outside of the courts. This is why the government decided to withdraw the appeal of the Descheneaux decision, which we inherited when we came into office, and to then move immediately to remedy the inequities highlighted in that decision as well as other known sex-based discrimination within registration under the Indian Act.

There's no question that the complexity of the issues that had to be remedied combined with the court's deadline for legislation significantly limited the government's ability to engage with first nations. Mistakes were made, including my department's failure to directly engage with the plaintiffs. I have taken action to ensure that does not happen again. I've now personally spoken with each of the plaintiffs and have committed to them that they will be meaningfully engaged as we move forward in designing the process for phase two.

Despite this, I still believe that passing the reforms contained in Bill S-3 and proceeding with a more broad-based collaborative approach to address other more complex issues is the fairest and most responsible way to proceed.

We need to remedy these sex-based inequities before the court-imposed deadline.

This is not just about the plaintiffs but also about up to 35,000 other individuals who are currently being denied their rights. Witnesses have argued that this bill should simply be amended to deal with other potential forms of discrimination. Addressing other issues related to potential inequities in registration would have profound impacts on indigenous communities. We all know that repeated unilateral decisions made by the federal government regarding indigenous peoples have often had disastrous unintended consequences.

Dealing with the issues raised here will require extensive consultation with communities about impacts far more complex than just ensuring adequate resources, including those involving fundamental issues such as the cultural integrity of communities.

The Prime Minister and the government have been very clear that, to achieve their shared goal, Canada and indigenous peoples must work in partnership to build consensus and jointly develop solutions.

This is at the heart of why we have implemented a two-stage approach in our response to Descheneaux. A number of witnesses have also suggested that the solution to the limited time for consultation is simple: request a court extension. While I understand the preference to deal with all of these important issues at once, this is simply not an option within the time provided by the court even with an extension.

The length of any such extension would be extremely limited, effectively three to six months. Taking into account the cabinet legislative processes that would be part of that extension, that would provide minimal additional time to consult. In fact, it's very likely that at the end of the process, we would have the same bill before Parliament with little or no change.

I understand the cynicism of indigenous people and parliamentarians about whether the government will follow through on phase two, and even if we do, whether it will lead to meaningful reform.

Governments of all stripes have failed to follow through on such promises for decades.

I am giving you my word that phase two will be launched in February 2017. This process not only will be jointly designed with first nations, but will include the input of experts and those who have had rights denied by this archaic and colonial system. I can assure you that we will include truly inspiring individuals, such as Sharon McIvor, Jeannette Corbiere Lavell, and Senator Lovelace Nicholas.

Phase two must engage with a broad group of people to ensure future attention is informed by perspectives from everyone who may be impacted. There will not always be consensus, and the government may need to make tough policy decisions in the interests of protecting rights, but those decisions will not be made unilaterally without the input of all those affected.

However, I urge you to support the current bill and provide immediate justice for up to 35,000 impacted people. I would also draw your attention to witnesses such as the Congress of Aboriginal Peoples, the Native Women's Association, and Jeanette Corbiere Lavell, who have said that Bill S-3 should be passed.

I commit that immediately after this important step we will move forward in partnership and in a good way to achieving broader reform together, and that would be the policy reforms that are required. In your own words, in final goals, we will, as I have said, put the registrar out of work.

Thank you. Meegwetch. Merci beaucoup.

December 5th, 2016 / 4:10 p.m.
See context

Liberal

Don Rusnak Liberal Thunder Bay—Rainy River, ON

Ms. Gabriel, what you said in your seven-minute presentation really spoke to me because I think it's what we need to be doing at this committee, what we need to be doing as a government. The Indian Act is something that was designed to destroy our people. Tinkering with it or doing certain things to it does nothing to move our people forward. We're just perpetuating all the problems that have existed in our communities for far too long.

Having said that, I worked in many isolated first nations communities with people who have absolutely been destroyed by the Indian Act, who are absolutely dependent. I've asked this question of department officials—and I'm sure the committee will get the answer on it: Who are these 40,000 people who the minister said today are going to be affected by Bill S-3, and who are the people who may potentially be affected by certain amendments?

Then I ask myself, there's a finite set of resources within the Department of Indian and Northern Affairs, so are these people who are currently under the Indian Act who absolutely depend on the Indian Act going to be affected by a resourcing problem if more people are admitted for status under the Indian Act?

December 5th, 2016 / 4:05 p.m.
See context

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you to the panel for your very candid assessments of Bill S-3.

We certainly take no offence, Ms. Gabriel. You remind us of the reasons we're all here, especially as MPs, in order to work on such an important issue.

I'm a little conflicted here, I must admit. As we have very limited time, I'll be really specific with my question. I also want to be able to yield some time to my colleague from Thunder Bay. In the time I have, though, I want to ask this specific question of each one of you, the three organizations as well as the two individuals who are appearing.

As we see Bill S-3, do we pass it, with the commitment from the minister and the department to go into phase two consultation?

Do we amend it? If we do amend it, what are the specifics that...? I know you've all mentioned it, but perhaps you can give us very specific points.

Do we not amend it and just go into phase two, knowing full well that it will be in violation of the ruling?

I know it's probably a difficult position to put you in, but I think this will be helpful for us as we deliberate.

December 5th, 2016 / 3:50 p.m.
See context

Mary Eberts As an Individual

Thank you very much for inviting me. I also offer thanks to the Algonquin Nation, which hosts all of us on its territory.

I have been counsel in many cases where women or women and their children have sought to challenge the denial of status under the Indian Act. I have also made representations to this House and to the Senate on behalf of the Native Women's Association of Canada and on behalf of Indian Rights for Indian Women on the issues relating to registration and women.

On this occasion, I appear as an individual. I do not speak for any client.

I would like to add some recognitions to those offered by Dr. Palmeter. In the Descheneaux case, two other plaintiffs were also women: Susan Yantha and her daughter Tammy. They challenged the inability of a woman to pass on her status to a child born out of wedlock in certain circumstances. I would also like to recognize or complete the recognition of Mary Two-Axe Earley by recognizing Jenny Margetts and Nellie Carlson, who helped found the western branch of Indian Rights for Indian Women.

I have two points to make today. Bill S-3 is under-inclusive, and the process being used for amending the registration provisions by way of Bill S-3 is not in accordance with the recommendations of Madam Justice Masse.

I begin with some comments on the origins of discrimination against women, which I ask you to bear in mind as you consider whether to endorse a narrow approach to remediation of this law, as has been installed in Bill S-3, or a broader approach to remediation of the law, as has been recommended by Dr. Palmeter, Sharon McIvor, and others.

It's crucial to remember that one of the main purposes of the Indian Act was to hasten the “civilization”—meaning assimilation—of aboriginal people. One of the primary mechanisms for achieving assimilation was the definition of “Indian” included in the act. Anyone not within that definition was, because of that exclusion, assimilated, that is, no longer the responsibility of the Government of Canada.

Why was this done? We should never forget. Even when there was a treaty about land, the first nation was assigned its land and the land was administered under the Indian Act. The connection between Indian land and the Indian Act has a key consequence. If the number of status Indians could be reduced to zero, then the connection between aboriginal people and their lands would be severed. There has always been a link between the disentitlement of women from conferring status in their own right and the coveting of Indian land.

Historically, women were the primary targets for exclusion from the act. One reason for this was the male privilege that reigned supreme in the Victorian era, when the act was first conceived. Another was the willingness to override indigenous laws about membership. These two reasons acted together. The Indian Act enforced the Victorian family with its paterfamilias, overriding the rules of many indigenous cultures that had the woman as the source of membership in the nation. For example, the Tsimshian “stick law” provided that a woman and her children were always members of the nation, welcome back even after they had separated from it through marriage or for other reasons.

The one exception to this male hegemony over status was the right of the Indian woman to confer status on a child whom she bore out of wedlock. This was not an unqualified right. It was possible under many versions of this legislation for the child's entitlement to status to be challenged. When the case of Martin v. Chapman held that a male Indian could also confer status on his child—namely, his son born out of wedlock—that right did not carry with it any possibility that someone could protest that the father was not an Indian.

This, too, is a sign of disproportionate power for the male under the Indian Act system. Simple acknowledgement of the child as his own, whether or not it's true, would confer status on the child. In the “unstated” or “unacknowledged” paternity rules under the present act, we see a powerful restatement of this male privilege, where withholding that acknowledgement, or the impossibility of getting it, prejudices the child's acquisition of full status.

Each time reform of the Indian Act holds back on giving full rights to women, either in the present day or vis-à-vis past rules, we are perpetuating the system that used disinheritance of women and their children as a tool of assimilation. If we continue this assimilationist approach in the construction and administration of the Indian Act, we are continuing the approach of the colonizer, so well summed up in this statement by Duncan Campbell Scott, then deputy superintendent of Indian Affairs. He said this in 1920:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

Let me mention some areas of under-inclusiveness. Let me begin by saying I agree with Dr. Palmater and Sharon McIvor about the practicability and the wisdom of amending 6(1)(a) for all purposes. I also agree with the CBA in its recommendation about clause 8. I would refer you to the brief of the Grand Conseil de la Nation Waban-Aki for some further instances where Bill S-3 does not fulfill its mandate.

If I may, I have one last point about consultation. I agree with the witnesses who have said that consultation is not appropriate in a case where you are remediating violations of equality rights. Bill C-31 was the product of consultation and we see now, 30 years later, people are still litigating the unconstitutionality of what that consultation produced.

Thank you.

December 5th, 2016 / 3:45 p.m.
See context

Dr. Pamela Palmater Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual

[Witness speaks in Mi'kmaq] Pam Palmater. I'm from the sovereign Mi'kmaq Nation on unceded territories in Mi’kma’ki.

I want to thank you for allowing me to come today to speak to some of my concerns with Bill S-3. First, I think it's important to acknowledge that we're on Algonquin territory. Second, we're here today for the efforts of indigenous women who have continued this battle for many decades, like Mary Two-Axe Early, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, Sandra Lovelace, and now the second generation of litigants fighting for gender equality for indigenous women, including Jeremy Matson, Lynn Gehl, Nathan McGillivary, and of course, Stéphane Descheneaux.

My primary concerns will be laid out in the submission that is being handed out.

The most important one is that Bill S-3 does not address all known gender discrimination. It doesn't. You've heard from other witnesses who have given very specific examples. My examples are not exhaustive, but they include grandchildren who trace their descent through Indian women who married out pre-1951, the illegitimate female children and their descendants who trace descent from Indian men born pre-1951, and also the differentiation and hierarchy that was created between paragraph 6(1)(a), the male category, and paragraph 6(1)(c), primarily the female category. They have come to be known as the “real Indians” and the “wannabe Indians”. In fact, 6(1)(c)s are the same in descent; they just happen to be indigenous women and their descendants.

A problem that also causes gender discrimination is with Bill S-3. They've now included even more complex differentiation in terms of categories. You have proposed paragraphs 6(1)(c.01), (c.2), (c.3), and (c.4). This also disproportionately impacts the descendants of Indian women who married out. Here's the problem with that. There is no legal or policy justification on behalf of Indian Affairs to have everyone identified in this way.

Programs and services are addressed through contribution agreements based on a membership or the status Indian registry. They never have to record whether you get health, if you're a 6(1)(a), (b), (c), (d) (e), (f), or 6(2). There's no justification for it, so then what's the alternative reason for it?

What it does is it places a scarlet letter on women and their descendants for having committed the sins of marrying out, having had illegitimate children, or worse, being born female. That's a scarlet letter that doesn't attach to Indian men and their descendants who have married out and have intermarried for many successive generations.

The other issue is the hierarchy of Indian status between subsections 6(1) and 6(2), those who can pass on status and those who can't. Those in the “who can't” section are somehow seen as defective and cannot pass on their status to others. It disproportionately impacts indigenous women, the children of unwed Indian mothers who cannot name the father, or who will not name the father because of the reasons that LEAF annotated, and also when fathers deny paternity or when they refuse to sign application forms. INAC has given the power to Indian men to have an impact on the children of indigenous women in this way. Last is the denial of compensation to women who have suffered discrimination for so long.

Bill S-3 also does not provide adequate protection for membership. You'll recall that pre-1985, Indian status and membership is synonymous. Even after Bill S-3, it will only be synonymous for Indian men, not for Indian women. Bill C-3 didn't provide those protections, and now Bill S-3 doesn't provide those protections.

The constitutional protection for gender equality is just that. Section 15 of the charter is equality for men and women. Subsection 35(4) of the Constitution, for anyone who wants to exercise aboriginal treaty rights, must be guaranteed equally between men and women. Article 44 of UNDRIP, which this government has said it's going to implement, also says there's equality between men and women. There is no legal option to negotiate, consider, consult, or agree our way out of gender equality.

If you look at the traditional laws of indigenous nations in this country, I have yet to find one in all of my research that promotes gender inequality.

Canada cannot proceed to phase two without addressing all gender inequality. It acts as a legal prerequisite. You cannot talk to our first nations without our indigenous women and their descendants there. It is unconstitutional. It violates all of our traditional laws, and it would act as a legal barrier to even starting the conversation in phase two.

Bill S-3 also needs to be accompanied by funding for first nations. You'll know that INAC has set aside millions of dollars for itself to deal with Bill S-3 applications, but it didn't set aside a single cent for first nations to deal with this at the community level.

Canada obviously failed to engage in any sort of legal consultations by its own admission.

The impact of Indian registration, as we discussed, is very serious. It's not just about programs and benefits; it's a root cause of murdered and missing indigenous women. It's lack of access to elders, language, ceremonies, and even access to powwows. There are powwows children cannot attend unless they have a status card, no matter how they were raised or whether they were raised in a first nation community.

It also won't address any of the pending litigation. Sharon McIvor's litigation is still outstanding. The Descheneaux cases are still in the hopper. There are Lynn Gehl's, Jeremy Matson's, and Nathan McGillivary's cases, and the Canadian Human Rights Commission has many. And of course, there's the Bill C-3 class action that was brought about because of gender discrimination.

My recommendations, very quickly, are for paragraph 6(1)(a) all the way. Every indigenous man and woman who had children prior to 1985, married or not, should all get the same kind of status so that indigenous women and their descendants don't have to wear the scarlet letter of paragraph 6(1)(c). You need rightful compensation for those who have been knowingly denied gender equality since 1982. For pre-1982, Justice said that's a barrier; there have been legal consultations.

My last word to you is that if we do not address gender discrimination now, in all likelihood, it won't happen. In phase two, they want us to deal with aboriginal treaty rights, nation to nation, getting rid of the Indian Act, and the minister has said that her standard for that is absolute consensus. There will never be, in the history of humanity, consensus on gender equality, but that's the law of the land.

Thank you.

December 5th, 2016 / 3:40 p.m.
See context

Krista Nerland Associate, Olthuis Kleer Townshend - LLP, Women's Legal Education and Action Fund

Thanks, Kim.

LEAF is focusing our submissions today on what the government calls phase one, essentially Bill S-3 before you. LEAF supports the broader nation-to-nation conversation about moving beyond Indian Act status towards first nation citizenship that will follow. In the meantime, it's our position that it's not acceptable to leave in place a status regime that discriminates against indigenous women. With that in mind, we'd like to make five basic points about the bill today.

First, the Native Women's Association of Canada I think has already explained to this committee that indigenous women were left out of the development of this bill and that it was presented to them as a fait accompli . This is a mistake. It should go without saying that indigenous women's groups should be partners in remedying sex discrimination against indigenous women under the Indian Act.

Second, contrary to its title, this act does not remove or eliminate all the sex discrimination in the Indian Act status provisions. It's at best a partial response. For example, the bill seems to allow for the granting of lesser status to certain people born prior to 1951 who trace their Indian status through the female line. In addition, the status provisions, or more particularly the way that INAC implements them, impose a disproportionate burden on women who cannot identify the father of their children, for instance, because of rape, incest, or domestic violence. It leaves those women and their children without equal access to the status provisions under the act. This is sex discrimination and is prohibited by both section 15 of the charter and by international law.

In our view, Bill S-3 is an unfortunate replica of the narrow, piecemeal approach that Parliament took six years ago after the British Columbia Court of Appeal's decision in McIvor. If this bill passes as it is, we'll all be back here in a year, or two years, or five years, as another indigenous woman or one of her descendants has spent years before the courts trying to get equal access to status under the act. It is unacceptable, and it's inconsistent with the charter's substantive equality guarantee to force indigenous women and their descendants to endure the financial and emotional hardship of years of protracted litigation to address discrimination that we already know is in the Indian Act.

LEAF urges this committee to ensure that Parliament's legislative response to Descheneaux removes all sex discrimination from the status provisions now. This will be a strong foundation for the broader nation-to-nation conversation about moving beyond the Indian Act that follows.

Third, the best way to do this is to stop creating layers and layers of status that leave intact the old discrimination under the act. There are better options. Six years ago, after the decision in McIvor, the government proposed a similarly narrow and piecemeal reform bill, not unlike the one before you today. At the time, an amendment was put forth that effectively gave everyone status under an amended form of paragraph 6(1)(a) rather than creating more layers of inferior status. A provision like that would go a lot further to addressing the sex discrimination in the act, although it's worth noting that this would not address the discrimination against women who cannot or will not state the paternity of their children. That's something that needs to be addressed in addition.

Fourth, the Superior Court of Quebec's deadline of February 3, 2017 should not be relied on as justification for a bill that doesn't do that job. If you can't remove all the sex discrimination now, then you need to ask for an extension in order to ensure that, as it goes through, the bill addresses all of the discrimination that we know to be in the Indian Act.

Finally, LEAF urges the government to ensure that first nations communities and organizations have both the land and the resources they need to support new registrants. What this means can't be determined unilaterally in Ottawa, but it needs to happen in partnership with those first nations governments and organizations.

By way of conclusion, I want to emphasize what's at stake for the people who are excluded from status as a result of these discriminatory provisions. It's not just about the material benefits, post-secondary funding, health. Although those can be significant, being denied status can also mean exclusion from community life, the denial of human dignity and self-worth, loss of band membership, and the ability to live on reserve. The United Nations Committee on the Elimination of Discrimination against Women has stated that these provisions in the Indian Act are among the root causes of violence against indigenous women in Canada. These harms are serious, and indigenous women and their descendants have already endured them for over 145 years. It's essential that the government get this bill right.

Thank you for allowing us to make submissions.

December 5th, 2016 / 3:30 p.m.
See context

David Taylor Executive Member, Aboriginal Law Section, Canadian Bar Association

Thank you. Good afternoon, Mr. Chair and honourable members.

I'm pleased to appear before the Standing Committee on Indigenous and Northern Affairs.

I'll give my presentation in English, but I would be happy to answer questions in French.

The CBA aboriginal law section is pleased to contribute to the Standing Committee on Indigenous and Northern Affairs' pre-study of Bill S-3's subject matter.

I would begin by recalling the words of Madam Justice Ross of the Supreme Court of British Columbia in her reasons at trial in McIvor v. the Registrar, Indian and Northern Affairs Canada:

...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children.

It is therefore not surprising that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.

One of our main points concerns the manner in which this bill was brought forward and is being considered by Parliament.

When Bill S-3 was introduced at first reading in the Senate, consultations with regard to the first phase of the government's response to the Descheneaux decision were far from over. While we understand that the Indigenous Affairs consultations regarding Bill S-3 were to conclude last Friday, December 2, it remains the case that moving forward in the legislative process while there were still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them, as required by the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the House are designed for the amendment of bills based on public feedback, the honour of the crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.

We are also concerned by clause 8 of Bill S-3, which precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal crown have been on notice since at least the 2009 decision in McIvor by the British Columbia Court of Appeal that the amendments to the Indian Act in 1985 did not entirely resolve the discriminatory aspects of the Indian status system and, in fact, created new discriminatory elements.

On this point, Madam Justice Masse held in Descheneaux:

The year is now 2015. The 1985 Act from which the discrimination arises has been in force for a little more than 30 years.

The general finding of discrimination in the 2009 judgment of the Court of Appeal for British Columbia in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished in the measures in the 2010 act. The discrimination suffered by the plaintiffs arises from the same source as the one identified in the case.

Canada was aware that work remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.

By continuing to withhold eligibility for Indian status from certain women and their descendants, government realizes a cost saving: controlling costs by having fewer members. The result of discrimination should not be an economic benefit to the government.

Removing clause 8 from Bill S-3 would change the financial incentive going forward and would send a clear message from Parliament that the government will not be given a licence to discriminate through absolution for the past consequences of its actions where government was clearly on notice through prior court decisions that its broader legislative scheme was not on sound constitutional footing.

As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of Bill S-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.

The subject matter of Bill S-3 should also be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broader review of this question.

Indeed, in the second-last paragraph of her reasons for judgment, Madam Justice Masse held:

Parliament should not interpret this judgment as strictly as it did the [Court of Appeal for British Columbia's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

Given the long history of discrimination involved in the Indian status system, the phase two process will benefit from timely parliamentary scrutiny long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.

In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory and contrary to section 15 of the charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly, the legislative process, both here and in the phase to come, should set its sights higher in an attempt to rectify the inequities that have long been identified in the Indian status system.

Those are our submissions.

Thank you.

December 5th, 2016 / 3:30 p.m.
See context

Gaylene Schellenberg Lawyer, Legislation and Law Reform, Canadian Bar Association

Thank you for the invitation to appear before you today on Bill S-3.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries, and academics, with a mandate that includes seeking improvement in the law and the administration of justice.

Our aboriginal law section consists of members from all parts of Canada specializing in aboriginal law. With me today is David Taylor, an executive member of that section. David will summarize some of the highlights from our brief and respond to your questions.

Thank you.

December 5th, 2016 / 3:30 p.m.
See context

Liberal

The Chair Liberal Andy Fillmore

Good afternoon, everyone. We'll come to order now.

This is the House of Commons Standing Committee on Indigenous and Northern Affairs. Today we're convening pursuant to Standing Order 108(2) to study the subject matter of Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration. We're meeting today, as we always do, on unceded Algonquin territory, and we're very grateful for that.

We have a very packed panel for the first hour, so we've asked our five speakers to limit their remarks to seven minutes each. That will leave 25 minutes for questions from the committee itself. I'll wave a yellow card so that speakers will know they have a minute to conclude, and then a red card to finish up.

I would ask you to do your very best to stay within the time limit in order to make sure we get some questions in and that everyone can be heard fairly. Without further ado, I'd like to introduce this panel of speakers.

First, from the Canadian Bar Association, we welcome Gaylene Schellenberg, Lawyer, Legislation and Law Reform, and David Taylor, Executive Member, Aboriginal Law Section. From the Women's Legal Education and Action Fund, we have Kim Stanton, Legal Director, and Krista Nerland, Associate at Olthuis Kleer Townshend - LLP. Appearing today as individuals are Pamela Palmater, Chair in Indigenous Governance, Ryerson University, Department of Politics and Public Administration, as well as Mary Eberts, and Ellen Gabriel.

Welcome to all of you. We're very pleased that you could join us today.

We will launch right into it with the Canadian Bar Association and its two representatives.

I invite you to share the time between you as you see fit within those seven minutes. You have the floor. Thank you very much.

Indigenous AffairsOral Questions

December 5th, 2016 / 3 p.m.
See context

Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

Mr. Speaker, issues of registration, membership, and citizenship go to the heart of identity in community. Bill S-3 will correct known sex-based discrimination in Indian registration. We know that a real conversation needs to happen on these issues. That is why I have committed to launching a formal consultation on registration, membership, and citizenship early next year to deal with the other issues that are not in this bill. I look forward to hearing from communities from coast to coast to coast.

I am committed to finding a real reform forward, but right now 35,000 people can get their rights if this bill goes through, and—