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.

United Nations Declaration on the Rights of Indigenous Peoples Act

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I am pleased to have this opportunity to rise today to speak to Bill C-262 at third reading. Again, I want to acknowledge the tremendous effort of the member for Abitibi—Baie-James—Nunavik—Eeyou in bringing forward the bill and the important discussion it has generated around the UN Declaration on the Rights of Indigenous Peoples.

During second reading debate, we presented a number of very specific and practical concerns. Unfortunately, in spite of further analysis at committee and detailed testimony, I continue to have reservations about the implications of enacting Bill C-262. It needs to be said first and foremost that our not supporting the bill does not mean we do not recognize the UN declaration as an incredibly important document for Canada. We recognize that it is going to require an effort from whoever is in government to live up to the standards it has set for all of us. However, we do also need to ensure that our support or non-support for any individual piece of legislation is based on a reasonable examination of the potential implications of the bill

Lawyers from Cassels Brock noted:

UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada’s world-leading legal protections for Indigenous rights; Canada is the only nation with an established system for limiting unilateral state action against Indigenous peoples. By simply adopting UNDRIP in its entirety into the Canadian context, Bill C-262 misconstrues Canada’s existing and sophisticated Indigenous rights regime and, by adding new uncertainties, risks hindering the pursuit of reconciliation.

They went on to say:

While UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law. The fact that UNDRIP is a declaration and not a convention makes this clear. Conventions are binding agreements intended to be a reflection of international law and to be incorporated into national laws. Declarations, in contrast, are statements of generally agreed-upon standards which are not themselves legally binding.

Their concerns are not inconsistent with the comments by the justice minister in 2016, when she said:

Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.

Clearly, she has changed her mind, but has given no explanation how something that was previously unworkable and a distraction is suddenly workable. To be frank, when the Justice officials came before us at committee, they really did not offer any further clarity as to how those comments align with the current government position.

The following areas are some of the concerns that are unresolved and, unfortunately, time is only going to allow me to highlight a few.

As noted by one witness, there seem to be three main interpretations of what free, prior, and informed consent means. To be frank, this was consistent with other testimony at committee, because when we asked people what it means, we were given a number of different definitions. One of the ways they described it was that it is not enough to seek free, prior, and informed consent, but enough that you try without actually obtaining it. I might suggest that the Kinder Morgan is a good example of where the government tried to get free, prior, and informed consent, but did not obtain it and moved ahead anyway.

A second interpretation states that it is “really about the type of process required and that it's possible to move away from talking about consent as long as one has the right type of consensus-oriented process.” I guess that is the free, prior, and informed, but no consent, model.

Finally there are many, especially among the first nation communities, who feel it is grounding rights in something analogous to vetoes, or the right to say yes and the right to say no. That has been heard time and time again by many communities. Certainly, Pam Palmater expressed very clearly in what alternate universe does consent not mean the right to say yes, the right to say no, or potentially veto.

I would suggest that prior to moving forward with a piece of legislation like this, the government needs to make sure that it has an agreed upon interpretation of FPIC with indigenous people so that we do not have the confusion that is out there right now. Again, I can use the Kinder Morgan example, where there are many communities saying that they have not given free, prior, and informed consent, and that the government is going forward anyway and not being consistent with the declaration. Not having that understanding will lead to certain problems down the road.

It was indicated by the proponent of the bill that FPIC, and again we are looking at a multi-jurisdictional project going over much traditional territory, means free, prior, and informed consent from every community that would be impacted. That is absolutely going to be a challenge down the road.

Article 19 of UNDRIP speaks of the need for FPIC for all laws of general application. In a country such as Canada, how would it be feasible to consult and try to obtain consent from Métis, Inuit, and all first nations for essentially every bill tabled in Parliament? Clearly, almost every bill tabled in Parliament has an impact under article 19. I am concerned that this would lead to paralysis and an inability by government to move forward on its agenda and commitment.

Marie-Claude Landry, chief commissioner of the Canadian Human Rights Commission, identified the very important question of who would have access to these rights if this legislation is passed. With the recent Daniels and Descheneaux decisions and the ongoing Bill S-3 consultations, the issue of indigenous identity is increasingly complex and must be resolved.

In addition, Dwight Newman, professor of law and Canada research chair in indigenous rights, identified a number of drafting concerns and internal inconsistencies that would create significant challenges if Bill C-262 were adopted. This leads me back to second reading debate and one of my original suggestions based on the point made by witnesses that this is a quasi-constitutional piece of legislation. Certainly, I think everyone in this House should agree that a quasi-constitutional piece of legislation deserves the scrutiny a government bill would generate, a government bill that we would get to question the minister about its nuances, and that we would have a much more robust opportunity to have debate and back-and-forth on, as opposed to a very constrained debate.

Accordingly, we not only have important unanswered questions, but also legitimate drafting concerns that were expressed during committee hearings. That said, I want to acknowledge that this bill is incredibly important. It is also symbolic, as we have heard tonight, and some have identified it as an absolutely essential component of reconciliation.

For others who have expressed concerns, they have attempted to engage in a nuanced and serious discussion, but have certainly been met with condemnation. The following are just a few examples. One witness suggested that any objections to voting for this bill were simply based on a colonialist attitude of the people who would not vote for it. A Liberal member said privately that if someone did not support this bill, they were just racist. I found that incredibly insulting.

A number of witnesses were unwilling to testify, feeling that any concerns expressed would simply be construed as being unsupportive of reconciliation. When debate is constrained, so is democracy. The debate among citizens and with political leaders is crucial to building consensus. I do not think we want this place to always be an echo chamber if we really have significant concerns about what a bill would do.

I want to note that in May 2016, the Minister of Crown-Indigenous Relations stated at the UN that the government fully intended to adopt and work to implement the United Nations Declaration on the Rights of Indigenous People. However, as my question indicated earlier, I would suggest there are many examples of where the government has not actually stood up to that standard.

In conclusion, international declarations are important to guide legislation and policy, but must be interpreted in the context of a country's existing legal framework, as opposed to adapting laws to the blunt instrument of a generic declaration. The real work of reconciliation is going to happen, of course, in our communities where we live, work, and play. We do, I believe, have the will and the momentum.

Thus, in spite of the fact that we will not support Bill C-262, we do support and are committed to moving forward with reconciliation.

Indigenous Affairs

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Indigenous and Northern Affairs]

Mr. Speaker, I rise today on the traditional territory of the Algonquin people to answer this question again from my hon. colleague from Nanaimo—Ladysmith.

We are a strong feminist government, and we are proud to be such a strong feminist government. Not only that, we are the first government to ever accept and enter into full nation-to-nation co-operation with indigenous people in this country, and we are doing so totally on the premise of respect.

Our government is committed to ensuring equity for all women in Canada, and that includes ensuring sex-based equity for women with respect to registration under the Indian Act. Our government is pleased that Bill S-3, which finally eliminates all sex-based discrimination from registration provisions in the Indian Act, has now received royal assent and is law. That itself is a tremendous accomplishment, and I would expect the member opposite would be saying that the government is on the right track. More needs to be done, and that is why I am here this evening to tell her that more will be done.

This is a step toward reconciliation for first nations' women's rights, as well as for respect and equality in this country. Bill S-3 responded to the Descheneaux decision, but it went beyond the charter considerations that were addressed in the case. This included sex discrimination and circumstances prior to 1951. In fact, the bill remedies sex-based inequities dating back to 1869.

While the balance of Bill S-3 was brought into force immediately after royal assent, the clause that deals with the 1951 cut-off will be brought into force after the conclusion of co-designed consultations. That is the piece that the member opposite does not agree with. She does not believe that we should consult with indigenous people in this country on how that will happen. However, we will be tabling and updating a co-designed consultation process on the broad-based Indian Act registration and membership reform in Parliament next month. She will get to see how that process will be launched in June of this year.

The government has also made it very clear that consultations and partnership are essential prerequisites for any major changes that involve first nations in this country. That is what we call nation-to-nation working together. This approach is in keeping with our government's commitment to renewing our relationship with indigenous people, one based on recognition of rights, respect, co-operation, and partnership. We will not throw that out the window simply because the member opposite cannot wait to do what is right.

In fact, our consultations are focused on identifying what measures and resources will be required to do this right, and working in partnership to develop a comprehensive implementation plan. It has nothing to do with consulting on gender equity.

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, we are the first government in this country to recognize the very need to change the legislation that currently exists in Canada, which has been there for hundreds of years. We are restoring rights to indigenous women with respect to gender-based equality in this country, and that cannot be denied as it is clear in the legislation.

We are the first government in the history of this country to ever do so, and we have been committed to this process since the very beginning. We are determined to do this. We are determined to do it right, and with royal assent of Bill S-3, much of that process has already begun as I speak today.

We are also committed to changing the relationship that Canada has had with indigenous people in this country, and in changing that relationship we have agreed to do so in a respectful way to work together as partners. I would ask the member opposite to understand and accept that.

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Indigenous and Northern Affairs]

Madam Speaker, first of all, I would like to acknowledge that we are gathered on the traditional territory of the Algonquin people. Second, I would like to congratulate all of those women who were recognized last evening, and many other women across Canada who have fought, and continue to fight, hard for gender-based equity in our country, including those within the House of Commons.

I also want to reiterate that our government is absolutely committed to ensuring gender equity for all women in Canada. That includes ensuring sex-based equity for indigenous women regarding the Indian Act registration. The government is pleased that Bill S-3, which finally eliminates all sex-based discrimination from registration provisions in the Indian Act, has now received royal assent. This is a tremendous step forward in this country for reconciliation, for indigenous women's rights, and for respect and equity in Canada. This includes circumstances prior to 1951, and in fact, the bill remedies sex-based inequities dating back to 1869.

While the balance of Bill S-3 was brought into force immediately after royal assent, the clause dealing with the 1951 cut-off will be brought into force after the conclusion of the co-designed consultations. The government has made it clear that consultation and partnership are essential prerequisites for any major changes involving first nations. We have set that out from the beginning. This approach is in keeping with its commitment to a renewed, respectful relationship, a partnership based on the recognition of rights, and to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

The effective removal of the 1951 cut-off will require extensive consultations with communities, affected individuals, and experts to ensure we get this right. The government is committed to ensuring that this measure is implemented in the right way, both in terms of first nations communities and individuals who will become entitled to registration. As Senator Sinclair noted in his speech and in other places regarding Bill S-3, while he is somewhat reluctant that he sees us delaying the implementation of the charter right, he can also see the need to do so because of that competing constitutional obligation to consult. He said that he was prepared to support the legislation because it enshrines the right, and we would ask that members of the House of Commons do the same.

Consultations will be focused on identifying additional measures and resources required to do this right, and on working in partnership to develop a comprehensive implementation plan. This is a responsible and prudent way to proceed as a government. We will ensure that the government implements these measures in a way that will eliminate or mitigate any unintended negative consequences for communities and individuals.

[The Speaker, Liberal, Geoff Regan]

I have the honour to inform the House that when the House did attend Her Excellency the Governor General in the Senate chamber, Her Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill C-305, An Act to amend the Criminal Code (mischief)—Chapter 23.

Bill S-211, An Act respecting National Sickle Cell Awareness Day—Chapter 24.

Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)—Chapter 25.

Bill C-60, An Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain Acts and provisions that have expired, lapsed or otherwise ceased to have effect—Chapter 26.

Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States—Chapter 27.

Bill C-277, An Act providing for the development of a framework on palliative care in Canada—Chapter 28.

Bill C-67, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2018—Chapter 29.

Bill S-236, An Act to recognize Charlottetown as the birthplace of Confederation—Chapter 30.

Bill C-36, An Act to amend the Statistics Act—Chapter 31.

United Nations Declaration on the Rights of Indigenous Peoples Act

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I would like to thank the hon. member for Abitibi—Baie-James—Nunavik—Eeyou for bringing forward his private member's bill, Bill C-262. I note his important contribution to the discussion on the UN Declaration on the Rights of Indigenous Peoples. I would also like to share my profound respect for my colleague and acknowledge the important work he has done over many years that has significantly impacted indigenous policy in this country.

Before addressing the private member's bill, I would like to make a general observation. Section 35 of our Constitution and Canada's existing laws has in the past, and will in the future, ensure that indigenous rights are protected in Canada. We only need to reflect on a number of historical court decisions to understand how section 35 is shaping these rights. From the 1999 Marshall decision that confirmed the Mi'kmaq and Maliseet treaty right to catch and sell fish, to the 2014 Tsilhqot'in decision that granted aboriginal title to more than 1,700 sq kilometres of territory, a first in Canadian law, it is clear that our understanding of indigenous rights is constantly evolving. Just last week, the Supreme Court of Canada rendered a decision regarding the Peel watershed, which upheld aboriginal land use rights protected in treaties.

It might be suggested that the gap or problem in Canada is not our legal framework, but our frequent failure to live up to the obligations and the honour of the crown.

The bill before us today seeks to implement the 46 articles in the United Nations Declaration on the Rights of Indigenous Peoples, as stated in the document, “a standard...to be pursued in a spirit of partnership and mutual respect”. All parties in the House acknowledge the need for reconciliation, a better shared future, and the importance of the declaration. The 46 articles are essential guiding principles for that journey.

I do have some unanswered questions regarding how this international document will transpose into a domestic framework. In my opinion, we need some clear answers before we can move forward on Bill C-262. Let me share some general and specific concerns that need to be addressed.

In the past, the Liberals have argued vehemently that any small changes to the Indian Act and the Labour Code must only be introduced as government legislation, where there is an opportunity for comprehensive reflection and not just a couple of hours of debate. I would suggest that the bill before us today has more far-reaching implications than the right to a secret ballot for union certification. For the Liberals to support an NDP private member's bill to implement UNDRIP and not put it forward as government-initiated legislation is unfathomable. The debate will not be afforded the due diligence that it requires and deserves. Even today, members might have noticed that we did not hear from the minister. We did not have an opportunity under private members' business to even question the minister. In my mind, that is a problem.

To get into more specifics, first and foremost was the statement by the Minister of Justice in 2016, and I quote, “Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.”

The justice minister, unlike many of us who will be speaking to the bill, has access to all sorts of comprehensive briefings and advice. The minister would not have made that comment lightly, so it is critical for her to explain why she made the comment at that time, and how she now reconciles that with her recent commitment to support the bill. I would note that because it is private member's bill, we are very unlikely to get a chance to ask her that question.

On Thursday of last week, the Minister of Crown-Indigenous Relations was at committee. At that time, we had the opportunity to ask a number of questions, and I want to provide a brief summary of that testimony.

Article 19 suggests that the government ensure free, prior, and informed consent before adopting and implementing legislative measures that may affect them. When the minister was asked if that would apply to laws of general application or only laws that exclusively impact indigenous people, she clearly indicated that there would be a broader application. That brings us to a question of what future laws of broader application in this country would require free, prior, and informed consent, and how will that be determined in a country as diverse as Canada. How will that consent be given?

The national organizations acknowledge they are not rights holders, they are not the authorized decision-makers, and their mandate is advocacy. The indigenous community has indicated that it has to do a lot of work in terms of nation rebuilding. Therefore, what government structure or consultation framework would be put in place to actually engage in these consultations? To what degree would this commitment around the laws of general application fetter the government's ability to move forward? I will give some recent examples.

We certainly know that with Bill S-3, the government is committed to engaging in a consultation process. Clearly, that is not a general application law, but the government is going to have consultations with bands across the country. I have no idea how the government members are going to determine when they have concurrence and how long they are going to have to spend in a process where there will be human rights competing in terms of consent, and at the very dichotomy of the many consultations they will have to have. In that case it is first nations, but we also have the Métis and the Inuit.

The marijuana law is another example of broader application that is clearly going to have an impact in indigenous communities. Under our current framework, the government only engaged in a general consultation process. Would that bill be subject to article 19, and if so what would it do to the government's timelines and how are the Liberals going to move forward? The answer to that question is unknown, but it is important.

Today, we have been debating in the House Bill C-58, which is the privacy law. Again, we have a number of indigenous communities whose representatives have said that they have grave concerns. They have referenced the UN declaration in terms of their right to have input, and free, prior, and informed consent, but we have no system or process in terms of how we are going to move that forward. That is important work that needs to be done.

Where a lot of people have focused, the laws of general application are something we need to pay particular attention to, but there is also the issue of free, prior, and informed consent as it relates to the development of the natural resources. The minister has suggested it was not a veto and the position was supported by National Chief Bellegarde. However, he noted on three occasions that free, prior, and informed consent means the right to say yes and the right to say no. A number of lawyers have said the whole discussion is really a bit of semantics and whether it is veto or consent it has the same effect. Again, it leads to a question in law. What is the difference between “free, prior, and informed consent” and “consult and accommodate”, which is what we have in law right now? Certainly there is no question that the declaration proposes that change in our law and we need to simply know what that is going to mean because it is important. From what I have seen, the legal opinions out there are as varied as they possibly could be. As members might imagine, it leaves confusion in the minds of not only the indigenous communities but Canadians in general. We have some work to do in terms of developing a common understanding before we commit to an implementation into our legal framework.

Article 29 talks about the right to territories, lands, and resources. In British Columbia alone, that is 100% of the province. What are going to be the practical implications for perhaps the tourism operators in the Chilcotin or the ranchers who have depended on crown land, as these decisions get made? We have not talked about impacted third parties and how, as we correct the injustices of the past, we should not create a new injustice.

In conclusion, as members can see from my 10 minutes of speaking, there are a lot of important unanswered questions. My first concern is the fact that the government has committed to implementing this as a private member's bill where we are going to be limited in the debate and our opportunity to create a shared understanding. The shared understanding of all these concepts is going to be critical in terms of moving forward into success in the future for all.

Indigenous Affairs

[Pam Goldsmith-Jones, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, the Senate bill, Bill S-3amends the Indian Act to eliminate sex-based inequities in registration. Private member's billC-262 is an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Truth and reconciliation is under way. Parliament is working in service of our aspirations for a revitalized Senate, the contributions of individual members of Parliament, and listening and acting with the indigenous voices of Canada.

In my riding we too are acting in this spirit. On the Sunshine Coast, John and Nancy Denham led 30 shíshálh Nation and non-indigenous peoples in a dialogue circle. Our time together was respectful and intense. The West Vancouver Memorial Library hosted “Honouring Reconciliation: Hearing the Truth” to a full house, led by the Squamish Nation.

These are important experiences for Canadians and shíshálh and Squamish nations, as truth and reconciliation enables us to reach our full potential.

The House resumed from November 30 consideration of the motion in relation to the amendments made by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), and of the amendment.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, the Liberals' Bill S-3 proposal does not end discrimination in the Indian Act, does not help all women, and should not be subject to consultation.

Indigenous women have been loud and clear. Discrimination should end for all indigenous women. Although Bill S-3 meets some of the court's order, it fails to bring justice for all indigenous women. Liberals promised that they would be better. They promised a real nation-to-nation relationship.

Does the minister concede that this bill fails to end gender discrimination for all indigenous women?

Indian Act

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, it is an honour to be standing on Algonquin territory.

I will be splitting my time with the member of Parliament for Burnaby South.

After much pressure, Liberals have a new Bill S-3 fix to end legislated discrimination against indigenous women, but only after consultations. This is not supported by the women who have been fighting this inequality in court for 40 years. It shows again that Liberals are not upholding their promise to respect indigenous people and to bring full gender equality.

I do not understand why a government that calls itself a feminist government needs to consult on whether indigenous women should have human rights, because they do. We want the Prime Minister and his government right now to remove all sex discrimination from the Indian Act.

Since its inception, the Indian Act has accorded privilege to male Indians and their descendants and disregarded female Indians as second class. To sum up where we are right now, despite unprecedented government promises of indigenous reconciliation and respect, Liberals are trading off human rights based on budget lines. Indigenous women who have been fighting 40 years in court for gender equality watched in dismay June 21, National Aboriginal Day of all days, as the Liberals gutted reforms that would have made the Indian Act less vile. These were moved by my colleague, the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou and others.

Canada's laws still say that indigenous people with a university degree, military service, or a white husband lose their Indian status. Would one not think that a government that pledged to a nation-to-nation relationship built on respect would want to remove all of those conditions?

“Indigenous women deserve the equality the charter is intended to ensure and protect”, said litigant Lynn Gehl, and they do. There is much support for the government ending all sex discrimination in the Indian Act. Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which clarifies state obligations on self-determination, including the right to determine membership. UNDRIP already has application in Canadian law.

Also, the United Nations Committee on the Elimination of Discrimination Against Women just a year ago called out the current government for the need to act on this file. It said:

...the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status...The Committee recommends that the State party remove all remaining discriminatory provisions of the Indian Act that affect indigenous women and their descendants, and ensure that aboriginal women enjoy the same rights as men to transmit status to their children and grandchildren.

It did not to set out a very long timeline or an indeterminate timeline. It did not say consult on it. It said that Canada, to uphold its international commitments on human rights, must remove all gender discriminations against indigenous women.

The government has failed, and it has given the House again a flawed bill.

After 40 years of litigation by indigenous women, many of whom are still alive, and indigenous lawyers who have been fighting alongside them, the government failed to ask them what they thought or have them inform the proposed legislation now before the House.

Here are two indigenous women lawyers, and I am paying attention to their words.

Pam Palmater, chair of Ryerson University's centre for the study of indigenous governance, said:

...this bill does not remedy gender discrimination. ...according to the numbers, it actually will only remedy about 10 percent of the known gender discrimination under the Indian Act, and that, by far, is not a bill that's acceptable.

Another indigenous lawyer, now the Liberal justice minister, was the B.C. regional chief of the Assembly of First Nations. This is what she told the House standing committee in 2010 on Harper's version of Bill S-3:

What this bill does not do is address the other Indian Act gender inequities that go beyond the specific circumstances of Sharon McIvor and Sharon McIvor's grandchildren.

This year, the Ontario Native Women's Association said:

By rejecting the “6(1)(a) All The Way” amendment to Bill S3 the federal government has betrayed its promise to Indigenous women. The amendment would have reinstated our sisters and removed all sex based discrimination from the Indian act.

Three warriors whom we are still informed by, these powerful indigenous women, litigated starting 40 years ago against both Conservative and Liberal governments repeatedly. Jeannette Corbiere Lavell litigated for 40 years and is not helped by Bill S-3. Sharon McIvor, litigant and now defence lawyer, asked why they would consult on whether they can continue to be discriminated against. Lynn Gehl, also a longtime challenger of this discrimination in courts, said that the minister of Indian and Northern Affairs is using consultation as a weapon. That is no way to move forward.

Many indigenous women's groups have called attention to the provisions of clause 10,another flaw identified in Bill S-3. With this clause, the government is justifying past discrimination and past violations of human rights. It acts as an incentive to allow the government to continue to discriminate with impunity until it chooses to address it or is forced to address it. It underscores the sense of colonial entitlement. It undermines the rule of law. The government cannot be given immunity for its conduct.

My colleague the member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou moved two times, at committee and in the House, for the government to remove clause 10 on that basis and the government twice has voted it down.

Some of the up and coming women leaders are Shania Pruden, of Pinaymootang First Nation in Manitoba, and Teanna Ducharme, also known as Ayagadim Majagalee, a Nisga'a woman. They both were part of the daughters of the vote taking their seats in the House just six months ago and they both testified at the status of women committee, strong, powerful, young indigenous women speakers. The late Shannen Koostachin informs the work of the House so often. Helen Knott is a Treaty 8 activist on ending violence against women associated with mega projects such as the Site C dam, which again the government is letting indigenous women down on.

In their names our responsibility as parliamentarians is to say again we cannot afford half measures in this country anymore. Gender equality and first nations respect is the solemn promise of the government and of me and my New Democrat colleagues. We are going to keep working hard to keep those promises.

I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following:

“a message be sent to the Senate to acquaint Their Honours that, in relation to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), the House:

1. agrees with amendments 1 to 8 and 9(a) made by the Senate;

2. proposes that amendment 9(b) be amended by replacing the words “on a day to be fixed by order of the Governor in Council, but that day must be after the day fixed under subsection (1).” with the words “18 months after the day on which the order referred to in subsection (1) is made.”.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, I think the shorter, the better. We have been dealing with this for a long time.

When I was talking to my friends from Saskatchewan earlier this week, they were talking about needing time to find their family trees. The Internet in northern Saskatchewan, and in fact, in northern Canada, is very poor. A lot of people want to do proper research on their family trees, if we are going to go back to 1869, which is the wish of many of them. I think that is why they wanted a little more of a timeline.

Yes, let us consult right away. Let us get the process moving. This is a good start. We are 85% there. We need to be at 100%, which means shorter consultations. Moving Bill S-3 along would certainly help.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, yes, we have debated this in the House now for a little more than a day. It is good to get this legislation moving. We have talked about it here in the House. We sent it to the Senate. It had to deal with it, and many of the independents did not like the first look at it. Now we are bringing it back here.

We have to move forward. Time is of the essence. We are talking about 1951 onward. Many family trees do not exist before 1951. We know that. There is documentation needed on reserves in the provinces and territories in this country. However, it is a good start that we are moving forward on Bill S-3 now.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Mr. Speaker, here we are again, at the 11th hour, attempting to send Bill S-3 back to the Senate for royal assent prior the December 22, 2017, deadline. I guess we would call this “flying by the seat of our pants” legislation. There is a court-imposed deadline, so the government is going to get it done regardless. We have talked about that in the House most of the day.

Bill S-3 was tabled in response to a Superior Court of Quebec decision, Descheneaux v. Canada, in 2015, and other clearly identified issues. The court found that several aspects of Indian registration under the Indian Act violate the Charter of Rights and Freedoms, because there were differences between how status was passed down from first nation women compared to first nation men. These provisions were struck down, and Parliament was given a limited time to pass an alternative. The new deadline to pass legislative changes, after two extensions, is next month, on December 22. The court has indicated that it has no interest at all, which we have talked about, in giving the Liberal government a third extension.

When Bill S-3 was first brought to the Senate about a year ago, in fact exactly a year ago this month, the government sought to remedy the situation by bringing it back to 1951. However, several independent senators proposed adding what is known as the “6(1)(a) all the way” approach. This amendment would have all Indians registered as 6(1)(a), with equal rights and entitlements regardless of matrilineal or patrilineal descendants, back to 1869. The government, though, rejected those proposals.

After rejecting them on June 21 this year, the Liberal government undertook behind-the-scenes consultations with senators over the summer months to seek consensus around an alternate proposal. The resulting proposed changes were tabled in the Senate earlier this month, on November 7, and would come into force in two stages. The first one we have talked about. The aspects of the bill passed by the House of Commons in June would come into effect by the court-imposed deadline of December 22. Second, newly added clauses, which would extend the proposed remedies for sex-based inequities in the Indian Act back to 1869, would not be enforced until after a consultation process with indigenous peoples on how to proceed. That is the million-dollar question. No date has been given as to when the process would begin or even conclude.

We have talked a lot about this bill, but let us talk about what the previous Conservative government did. It had a long history of supporting gender equity for first nation women. The Conservative government introduced the Family Homes on Reserves and Matrimonial Interests or Rights Act in 2013, which offers a balanced and effective solution to a long-standing injustice and legislative gap that affects people living on reserve, particularly women and children. As a result, many of the legal rights and remedies relating to matrimonial interests in the family home that are available off reserve, in the context of a relationship breakdown, death of a spouse or common-law partner, or family violence, are now available to individuals living on reserve.

The former Conservative government also reintroduced legislation to guarantee to people living on reserve the same protections that other Canadians enjoy under the Canadian Human Rights Act, which came into law on June 18, 2008. It also passed Bill C-3, the Gender Equity in Indian Registration Act, in 2010, in response to McIvor v. Canada in 2009. Bill C-3 allowed for the eligible grandchildren, or women who lost status as a result of marrying non-Indian men, to be entitled to registration if they or their siblings were born on or after September 4, 1951.

It should be noted that the Liberals, including the current Minister of Crown-Indigenous Relations and Northern Affairs, actually voted against the Family Homes on Reserves and Matrimonial Interests or Rights Act from 2013, which was introduced and passed by the former Conservative government. It should also be noted that the legislation that made the Canadian Human Rights Act apply on reserves was tabled by the Conservatives, and then all parties worked together to pass the legislation.

Essentially, prior to Bill C-3, the Gender Equity in Indian Registration Act of 2010, and the proposed changes in Bill S-3, Indian status was passed down to the next generation from the father but not through the mother. Therefore, if a first nation male had children with a non-first-nation female, his status would be passed down, but not vice versa. That is what we are talking about here today in the House.

I had a call this week from a friend in Saskatchewan. He is from the Cree first nation. He is unequivocally in favour of Bill S-3. He has a status Indian niece who is married to man from Honduras. Not long ago, they celebrated the birth of their first child. My friend said that he is the cutest little Honduran Indian anyone has ever seen. Perhaps with the passage of Bill S-3, that description should change and he would be the cutest little Indian Honduran anyone has ever seen. Would that not be nice? I think that is what we are headed for after December 22.

My friend also had a very good idea that he passed along to me earlier this week. It is regarding the “ 6(1)(a) all the way” approach back to 1869. He suggested giving non-status indigenous people up to 10 years to get their geneology sorted out. That seems like a long time. However, it could be a gradual process. Some people will have their family trees available now, while others will have to dig around and find the right roots and the proof. I think this is a pretty excellent idea he came up with. It would also give the department an opportunity to work through these changes and prepare for the financial implications they would entail.

At this point, it is unknown exactly how many Canadians would become eligible, or would even apply to register, and what the financial implications would be for the Canadian taxpayer. We have no idea whatsoever. It could be 200,000. It could be 400,000. It depends how far back people go in the tree. We need some time to figure this out. I do not know if it would have any implications for roughly one-half of my province's indigenous population.

We, the official opposition, as we have stated all day in the House, support Bill S-3 at second and third readings, because it contains several necessary changes to the Indian Act toward greater gender equality and is the next step beyond the amendments made by the former Conservative government with Bill C-3, back in 2010.

What I do not agree with is this “flying by the seat of their pants” method of legislating by the government. It has had more than enough time to table a good, clean piece of legislation that everyone could get on board with and get passed. Instead, it chose a path it knew would encounter resistance and delays, especially in the Senate.

I do not believe we can please all of the people all of the time, but we as legislators have an obligation to please as many Canadians as possible all of the time. That is our duty, and it really should not be muddied. However, we are going to support Bill S-3. I want to say, on behalf of the people of Saskatchewan, they are excited about the bill and are hoping it passes, and then we can move forward as of December 22.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, recognizing that Bill S-3 before us does nothing to remedy gender equality rights for the indigenous women, Sharon McIvor, Jeannette Corbiere Lavell, and Lynn Gehl, collectively, have been fighting this in court for 40 years, as has Chief O'Bomsawin, elected to represent the members of the Descheneaux case. They all oppose this.

Next week Sharon McIvor is going to Washington to address the Inter-American Commission on Human Rights and to testify that the time delay in the government's version of Bill S-3, the time delay for the elimination of discrimination against indigenous women, returns us to what we debated on June 21.

This is a flawed bill. I would like to hear my colleague's views on that.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I will be splitting my time with the member for Saskatoon—Grasswood.

I will attempt to build on some of the comments that my colleague just made in his question and answer period.

I think that anyone in this place would be hard pressed to argue that the Indian Act is anything other than deeply flawed. Passed in 1867, among its many flaws is that it is based upon archaic gender systems. Further, it could be argued that the act was, in its design, never meant to be anything more than a way to entrench paternalism and to assimilate first nations while simultaneously reducing the number of people who could claim status.

The Indian Act paternalistically lumped together a diverse population of people and forbade first nation people and communities from expressing their identities through governance and culture. Subsequent amendments to the act made things worse, not better, for first nations by more deeply entrenching colonial practices into law.

Amendments made in 1884 required first nation children to attend residential schools and made it illegal for first nation people to practise religious ceremonies, such as the potlatch. An amendment in 1914 outlawed dancing off-reserve, and in 1925, dancing was outlawed entirely. Amendments to the Act in 1927 made it illegal for first nations people and communities to hire lawyers or bring about land claims against the government without the government's consent.

Putting it mildly, these issues demonstrate a dark past in terms of the actions of legislators and Canadian officials against first nations people.

The 1996 report of the Royal Commission on Aboriginal Peoples stated that “...Recognition as 'Indian' in Canadian law often had nothing to do with whether a person was actually of Indian ancestry.” Instead “status” was used as a tool of assimilation and cultural destruction. For example, a first nation person could lose status if he or she graduated university, became a Christian minister, or achieved professional designation as a doctor or lawyer.

In 1961, the government finally removed section 112, the so-called “compulsory enfranchisement” section, to end this and other assimilatory practices, but the damage had been done. For nearly a century, first nation people were given an impossible choice: try to live traditionally in spite of the outlawing of many cultural and religious practices, or attempt to interact with non-indigenous society and risk losing status. All of this is in addition to the patriarchal system that the Indian Act imposed.

The patriarchal system of the Indian Act is the crux of our debate today.

Bill S-3 was tabled in response to a Superior Court of Quebec decision, Descheneaux c. Canada and other clearly identified issues. The court found that several aspects of Indian registration under the Indian Act violated the Charter of Rights and Freedoms, because there were differences between how status was passed down from first nation women compared to first nation men. These provisions were struck down by the courts, and Parliament was given a limited time to pass alternatives. The new deadline to pass legislative changes, after two extensions, is December 22, a date that is quickly approaching.

Aspects of the bill that directly respond to the Descheneaux decision should come into effect upon the bill receiving royal assent. Essentially, these amendments seek to remedy gender inequity in the Indian Act for those born after 1951.

The Liberal government added new amendments to Bill S-3 on November 7. Now embedded in the legislation is a consultation period to discern how to best remedy gender inequity for those born between 1869 and 1951. No date has yet been given of when these consultations will begin or when changes will come into force. There have been two court extensions and three different deadlines to get this passed. I note the court has indicated it has no interest in giving the Liberal government another extension. The clock has run out, and it is unfortunate to see that this was not properly planned to encompass consultations ahead of the passing of the legislation.

In a failed attempt to meet the original court-imposed deadline of February 3, the government engaged in very little consultation prior to tabling. In November 2016, members of the Standing Committee on Indigenous and Northern Affairs heard from numerous witnesses that consultation was inadequate, and that indigenous organizations had little time or opportunity to submit their reflections. Additionally, the plaintiffs were not even consulted or contacted in any way by the department or the minister's office. The litigant said that the first time he knew about the bill was when he was called to committee to testify.

Mr. Stéphane Descheneaux said, “we've never been called or asked which way we saw that stuff...I was thinking that they would come to the band and meet us, and say that they're going to go that way, or they're looking to go this way.”

Chief Rick O'Bomsawin said:

[They] told us that we were consulted, that they consulted with chiefs last summer. I have not found one chief that they consulted. They've never consulted me, and it was our case. They never even called us.

This is problematic, and while I agree with the spirit of the bill and its attempts to correct its wrongs, Lord knows that across political stripes and different governments we have tried to correct wrongs. It is clear that the Liberal government needs to own up to the fact that its consultations with first nations on this legislation have been poorly planned. Furthermore, the Indigenous Bar Association testified that the bill was riddled with technical flaws and in no way would do what the title suggested to “eliminate all sex-based inequities in registration.”

After a great deal of pressure from opposition, senators, and indigenous organizations across the country, including the national chief of the Assembly of First Nations, the Liberals withdrew the legislation from consideration by the Senate aboriginal peoples committee, went back to the court to ask for an extension, and returned the bill to the drawing board. The bill we are debating today is the end result of this process. As I have noted with past examples, there is a real human cost to getting this wrong. That said, the legacy of getting this wrong would have future costs as well.

Lalana Paul, a consultant with the Native Council of Prince Edward Island, says that in the Indian Act, “You see so much sexual discrimination, it's appalling that it's still in there.”

Lisa Cooper, president and chief of the native Council of Prince Edward Island, said, “I have the right to live a traditional and cultural life that I should be able to pass on to my kids.”

Lynn Gehl, a 55-year-old writer whose grandmother belonged to a first nation, fought a 22-year-long legal battle and was finally able to win partial status. However, thanks to the Indian Act, she remained unable to pass her status down to her children. This meant that she was deprived of the chance to vote for her indigenous government and live on land reserves, as well as access to tax breaks and expanded health coverage that she would have otherwise been entitled to receive. She said, “I should be able to pass on my status but I can’t because of gender discrimination.”

Sharon McIvor said that because of the Indian Act, “Aboriginal women and their descendants have been separated from their families and communities, treated as less worthy, less human, less Indian, and not full members of their cultures and communities.”

These stories tell of the deep human impact on first nations of the choices that Canada's legislators make. Given the history of ongoing discrimination, it is imperative that we get this one right.

I know the government has made a commitment to restore relationships with first nations. I could read the list of accomplishments our previous government attempted to do in this regard. However, we need to do better. I have not spoken to this topic very often in the House of Commons, but it is the quiet meetings that I have in my office with chiefs, leaders, and members of first nations communities that really impart to me that all of us in this place need to have a different look at how we approach these relationships. When I look at the process on how the bill has gone back and forth and the consultation process going forward, it is concerning.

Again, I know my colleagues in my party have made it clear that we support the spirit of the bill, and I want to commend the work of my colleague who is the opposition critic in this area. It does build upon previous attempts to clarify and remedy some of the wrongs in this regard. However, I would implore the government members to be clear on what this consultation process means. They need to be transparent with affected members of first nations communities so we can get this relationship thing right.

I want to acknowledge the comments of my colleague from Winnipeg. We are going somewhere. I would like to be going in the right direction. I encourage all members of the House that perhaps we can do a bit better than this.