Bill S-3 (Historical)

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

This enactment amends the Indian Act to provide new entitlements to registration in the Indian Register in response to the decision in Descheneaux c. Canada (Procureur général) that was rendered by the Superior Court of Quebec on August 3, 2015, and to provide that the persons who become so entitled also have the right to have their name entered in a Band List maintained by the Department of Indian Affairs and Northern Development. This enactment requires the Minister of Indian and Northern Affairs to initiate consultations on issues related to registration and band membership and to conduct reviews on sex-based inequities under the Indian Act, and to report to Parliament on those activities.

[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.

[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.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

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

[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—

[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.

[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.

[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.

[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?

[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.

[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.

[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—

[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.

[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?

[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.

[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.