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.

Indian Act

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I rise today to continue debate on a bill from the Senate, Bill S-3, an act to amend the Indian Act with the elimination of sex-based inequities in registration.

Prior to doing so, I would like to translate for those watching at home on CPAC what happened just prior to this debate, in which the House was engaged in a three-hour conversation about the problems facing immigrants to Canada, and the consultants that sometimes prey on them. It was debate on a report that came out of our committee in which there was unanimous support for the recommendations. At the end of that three-hour debate, we watched the Liberals express their opposition to a unanimously accepted report proposing a crackdown on bad immigration consultants, and then force a vote later next week to vote against it. Does anyone watching actually understand the Liberal motivation behind that particular manoeuvre? I am sure that many of my Liberal colleagues cannot explain it, but maybe somebody else out there can.

Returning to the bill, because this has been some time in coming, I want to first acknowledge the incredible and heroic work of my colleague from Abitibi—Baie-James—Nunavik—Eeyou. I do not use the word “heroic” often or lightly. However my colleague, for much of his life, being a first nations person by his very birthright but more so by his decision and inclination, has tirelessly fought for the rights of indigenous peoples in this country, in Quebec, at the United Nations, and around the world. He is one of the leading voices in this country speaking about the rights, the responsibilities of the government, the tragedy, the multitude of errors, and the racist legislation and policies that have emanated from this exact place, this room, for generations against the first peoples of this country.

My colleague has been determined. He has been incredibly articulate, and it is his opinion, along with those of the people who first brought this case, upon which I will rely this afternoon, in terms of my concerns for this bill, Bill S-3.

Not only my colleague from Abitibi—Baie-James—Nunavik—Eeyou is opposed to this legislation. So are the proponents, the lady warriors who litigated this case for four decades, who remain opposed to this legislation. Their letter to the Minister of Justice states that:

Our reading of the motion introduced by Senator Peter Harder in the Senate on November 8, 2017 is that we, and the many Indigenous women who are similarly situated, will not be accorded 6(1)(a) status when Bill S-3 passes.

I will get into what “accorded 6(1)(a) status” means, but suffice it to say that the intention of this bill to remedy a racist and sexist policy of the federal Government of Canada will not be carried out in full by the passage of this legislation. Nor has the consultation, which was promised by this government in arriving here today, been done. The minister herself admitted embarrassment and shame at the lack of consultation that she and her government promised and failed to do.

We can understand why it would be difficult for first nations peoples, having had many experiences of their hopes being raised and false promises being made, to return back to the same old saga again, where the federal government in Ottawa says it will get things right and talk to them to make sure they are right, and the next thing the government does is nothing. The government did not talk to the first nations, include them, or bring in their wisdom. Rather, at the eleventh hour in this case, the government brought forward a piece of legislation and admitted it did not consult anybody, admitted it was bad, but said we are out of time and we need to pass the bill now, and it will do the trick.

It is not going to fix the problem, in whole. That is according to the people who first litigated the case. I trust them more than anybody else.

Let us start with first principles, the Indian Act, a colonial, racist piece of legislation that was created at the founding of this country, which the Prime Minister himself admits is colonial, racist, and sexist in design. That is what we are amending here today.

We are amending a racist piece of legislation, a sexist piece of legislation, a colonial piece of legislation to make it slightly better, not entirely better, not even better for all of the women and their descendants who are affected by its sexism, but just for some of them and only going back to 1951. People who were affected prior to 1951 and their descendants are not touched by Bill S-3 at all. They will not be deemed into new status. They will not be deemed to be aboriginal, when they are.

Only a federal government that says it believes in nation-to-nation dialogue, only a federal government that says that self-determination is important but then when it comes down to the question of who one is, what identity one is, remains in control of that decision and says that Ottawa knows best, that it will decide who are and who are not first nations, which is a continuation here in this bill.

Let us walk back, because it is important how we arrived here. It was not some great government benevolence that said this terrible piece of legislation discriminates against first nations women, which it did and does. Let us find out how.

There are two classifications for status. Through the course of this discussion I am loath to use the word, but the word is applied in law, and this is the word we have to use, because we are talking about the Indian Act. Indian status is described in the “Indian” Act. This name and this word was applied by Europeans to the first peoples here because they thought they were in India, because they thought that when they left Europe and arrived on our shores, they were in India. They were looking for the secret passage to India to enable the spice trade and other things that Europeans at the time were interested in, 350 to 400 years ago.

In 2017, we still use the term in our legislation to describe the first nations people of this country as Indians. Imagine how offensive this is to first nations people listening to this debate, the first nations people who continue to live under the Indian Act in the prescription of basic government services that the rest of the country enjoys without the racist terminology being applied.

Imagine if non-first nations Canadians had legislation using racist terminology to describe them, like immigrants from my home country of Ireland and all the racist epithets that were used against my people for years. If that were written into law and I went to apply for medical or dental or education benefits, I would have to apply under a terminology of law that was inherently racist against my people. We continue with this public secret. We continue to walk with this and say that we have evolved and acts like this will make it better.

When we ask the government if it wants to do nation-to-nation relationships, if it wants to do reconciliation, that when it listens to the current chief of the Assembly of First Nations say time and time again that the Indian Act is a colonial, race-based piece of legislation that we must end, that we need an exit strategy, as he calls it, the government replies by saying “there go the first nations leaders and the NDP again saying to get rid of the legislation”. Of course we should get rid of the legislation.

Who else would survive under this legislation happily? What other ethnic group, particularly a group that was here first, since time immemorial, would happily live under legislation that was inherently racist in its design, in its application, and in its use? Would Polish Canadians happily suffer under that? Would Canadians from Caribbean communities happily suffer under racist legislation in name and application?

Under the Indian Act, section 6(1) determines that if both parents are of first nations status, the child will be first nations. Section 6(2) says that if one person has status and has a child by another person who is not first nations, that child will only continue to be first nations if the male parent was first nations, but if it was a first nations woman who had a child with a non-first nations man, that child is no longer first nations. That is what we are attempting to address today.

This was true up until the 1970s and 1980s. Children of first nation parentage were denied their status under the law because their mom had the audacity to choose who would be her partner. A woman in the 1920s, 1930s, 1940s, and 1950s had to make a decision. If she fell in love with someone who happened to be non-native and had children with that person, her children could never be first nation. They could not be a member of their local first nation in voting. They could not be a member of their local first nation in celebration. They could not be a member of their local first nation in terms of government programs that were applied to them and their parents. This is sexism, if one's progeny are determined by whether one is a woman or a man. It is discriminatory.

However, it was not the government that decided to make a change, but the courts. In this case, the Quebec Superior Court said to the Government of Canada in 2015, all those many years ago, this is discriminatory. This is against the Charter of Rights and Freedoms of Canada where we cannot discriminate against someone based on their sex. It took until 2015 for this to be resolved in court. However, it was not resolved. All the court can do is say that this part of the law is wrong, that it infringes on the rights of Canadians, and that it must be struck down and replaced with something, which happened in August 2015.

What did the then federal government do under former Prime Minister Harper? He appealed and said that he disagreed with the court's findings. He disagreed with the idea that we cannot make a determination about someone in this country based on their sex, disagreed that it is unconstitutional, and said he would appeal it. We were going to spend more taxpayer money, and hundreds of millions have been spent over the years fighting aboriginal rights and title in court, to fight for the principle, according to the former government, that the children of first nation people should be first nation or not depending on the sex of the parent.

The Quebec court said that we must change the law, Canada appealed under the former government, and then a new government came in and dropped the appeal. The courts do not care which party is running the Government of Canada, and it uses the term “crown”. These terms come back from our past. We are a colonial offshoot. The court said that the crown must remedy this and had 18 months to do so. It seems reasonable to me to have 18 months to consult with people, and if changes would be made to the Indian Act, they could be made in the most fulsome and proper way possible. It may be a good idea, in those 18 months, if the government of the day consulted with the women who first brought forward the case 40 years ago and who are still active.

However, 17 months later, with a month to go, the government pops up with Bill S-3. Amazingly, as the Liberals brought forward this legislation, they were challenged on it, because any fixes to this act are important, particularly to the people who might be affected. When the minister in charge of this was first commenting on it, this is what she said:

The Government is also exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes, and more information on this will be forthcoming

That sounds good: we are going to consult. However, a year later at committee she is asked how the consultations went. Here is what she said:

My department's failure to directly engage with the plaintiffs was not only unacceptable but embarrassing for me as minister.

There was a promise that they were going to consult to fix this, but a year later, the Liberals are embarrassed and call it unacceptable. To my mind, “unacceptable” means that one does not accept something. However, clearly it is acceptable, because here is the legislation.

Imagine the personal sacrifice of the plaintiffs, the women who fought for this over four decades. For 40 years, without money and political support, they fought for a principle, for the right not to be treated unfairly under a racist piece of legislation. The government did not bother to talk to the women who were involved, but those women have come forward and said, as I noted at the start of my speech with, that Bill S-3 did not remedy the problem they had first fought for in court.

What is going to happen with this legislation? I suspect that the Liberals will vote for it. It will get challenged and go back to court. It will start at the lower court, work its way up, probably to the Quebec Superior Court or the Supreme Court, with the government of the day spending more taxpayer dollars challenging its version of events, that this change should only go back to 1951, that that is good enough and we should accept it. We are going to repeat the errors of history.

I recall the apology to first nations in this place on behalf of the Government of Canada by former Prime Minister Stephen Harper. It is important to remember that with any of the apologies, even the one recently to the LGBTQ community, it is not the Prime Minister himself who is making the apology; it is the Government of Canada. It is the Parliament of Canada expressing regret and begging forgiveness in some cases for the mistakes made by previous governments, whatever their political stripe. It really does not matter who was in charge at the time.

The apology for the residential school travesty was warmly accepted by first nations people in the riding I represent in northwestern British Columbia. Despite years of oppression and oppressive legislation, there was an opening of the hearts of the people whom I represent, to say that in the face of all the harm done to them over the many years, they understood that the government now recognized that it was wrong, and they accepted our apology. I thought that was true until the government at the time that had made the apology cancelled the Aboriginal Healing Foundation two months later, which had been established to help the survivors of residential schools deal with the trauma of residential schools. What does an apology mean if one's next act is to continue the same thing one was apologizing for?

I was recently in a remarkable community in my riding, a place called Bella Coola. The Heiltsuk people have lived in Bella Coola forever. It is an incredible valley. It has glaciers and mountains and a massive river that is causing all sorts of concerns given climate change. The Heiltsuk had been living there and growing an incredible culture. On the way to the local school with the local chief councillor and another councillor, there was this beautiful plaque with a great first nation symbol on the front and beside it, many names. The names are of all the residential school survivors from that community, all of the children who were taken from their parents over decades. Their names are enshrined in the wall to remind the children who were not taken from their parents of what happened before.

The chief councillor went to the wall, pointed to his own name, and said he was taken when he was five. He pointed to the name right above his and said it was his mother's name, who was taken when she was six. He said he only found out that she had even been to a residential school when this plaque was unveiled. I asked what he meant, and he said she never talked about it and the community never talked about it. The shame was so incredibly great that only during the ceremony honouring the victims did he find out that his mom had been through the same horror he had been through. I asked when he had told his kids that, and he said it was when he was 53, when he was right enough to be able to talk to them. It is hard to understand of impact of it, as a father, of having my kids taken by another culture and government and then beaten, raped, and oppressed. The emotions are powerful.

When we look at opportunities like this to do away with the continued practice of racists and oppressive legislation, the bare minimum of decency requires that we talk to the people who have been oppressed. The bare minimum of intelligence is to use the wisdom and understanding of those most affected. Bill S-3 does not do that. The government chose not to do that. It admits embarrassment and shame now, but it is not good enough. If it is going to do something and wants to rebuild a relationship, then it should do it. It should do it with integrity and not keep issuing apologies and continuing to do things that it will have to apologize for again in the future. First nations deserve better. This country deserves better.

The House resumed from November 29 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).

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

Thank you. I have a comment, a request, and then a question.

First, I would like to make a comment in response to my colleague Kevin Waugh. I would suggest that a patrilineal approach is for a secret table in Ottawa with chiefs and government. Something that gives first nations the tools around transparency is the exact opposite of patriarchal. It is actually giving community members important information. I do want to just make that comment.

The next is actually a request. I think both of the ministers, more than perhaps many people, understand how challenging things are and can be in the north. They know there has been $5.6 million spent on an outside rink that the heritage minister indicated was going to go somewhere in Ottawa-Vanier. Already we spend $1.2 million of taxpayers' money on the canal per year, so I would just request, to the best of your abilities, that you advocate for this rink to go to a community in the north, and I'll be happy to come and cut the ribbon with you when they put it up there. I think it really is something that doesn't sit well with many taxpayers, and they might have some degree of comfort knowing that it went to a community in need.

I'm actually going back to the issue of the United Nations declaration. I know the minister said that National Chief Bellegarde said it doesn't mean veto. He has also said three times that it means the right to say “yes” and the right to say “no”. I've mentioned this a number of times. We've talked about the complication when things go across jurisdictional boundaries. We talk about the free, prior, and informed consent. We look at what you've committed in Bill S-3, where you're going to try to come up with something but you have a lot of commitments that criss-cross each other, as we talked about in the debates yesterday about Bill S-3. We've talked about it in terms of pipelines.

To give any degree of comfort in terms of what you're doing and where you're going, have you considered a Supreme Court of Canada reference in terms of what that will mean in these complicated situations, so that before you move forward in a way that has not had appropriate interpretations, we have the right to an appropriate interpretation?

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

Mr. Speaker, it was a little over a year ago, I believe, when my colleague asked us to pre-study Bill S-3 so we could move it forward to make the Supreme Court of Canada deadline, which as we now know, has had to be extended numerous times since.

Mr. Descheneaux came before us at committee and stated that he had no contact with the government. He was the plaintiff in the case, and he had had no contact with the government before it tabled the bill. He was the successful litigant who had brought the case forward.

Can my colleague explain to Mr. Descheneaux why there was such a gap in the process? In spite of the government's commitment to ongoing consultation, it brought forward legislation when it had not even consulted the successful plaintiff.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act.

This Senate bill is in response to the superior court of Quebec's decision in Descheneaux v. Canada and has undergone several iterations. I am pleased to support this set of amendments, which will effectively eliminate sex discrimination under the Indian Act.

I want to begin by acknowledging that we are gathered here on the traditional unceded lands of the Algonquin peoples.

It is hard to believe that we are having this debate today, in 2017, on sex equality. It is even more disturbing that those making the decision on such a fundamental issue of Indian status for first nations peoples are not members of any first nations communities themselves but are primarily from settler communities. The irony is not lost on me. What is equally absurd is that it has been primarily men making these decisions. Our Indian Act, unfortunately, makes this absurd debate necessary.

The renewed relationship our government seeks to establish with first nations communities on a nation-to-nation basis will untangle first nations peoples from the shackles of colonialism and the Indian Act and will set our country towards a path of true reconciliation.

The Indian Act is deeply rooted in racism and has for generations resulted in uneven and racialized outcomes for our first nations peoples. The Indian Act essentially controls the lives of our first nations peoples. It defines who is and who is not an Indian, where they live, whom they should live with, and so on. It separates first nations peoples from the rest of Canada, physically, through reserves, but also in virtually every aspect of life.

The numbers speak for themselves. I am just going to give some examples. In 2011, 26.2% of first nations people on reserve lived in overcrowded housing, compared to 4% of non-aboriginal people. In education, 39.8% of first nations people do not have high school or a post-secondary degree. Only 12.1% of non-indigenous people do not have a high school diploma or a post-secondary degree. We could go on with life expectancy, suicide, and income.

On virtually every measure available to assess social well-being, Canada's first nations people rank lower in comparison to their settler counterparts. None of the constraints of the Indian Act, however, have been more scrutinized and more painful than the definition of who is and who is not an Indian.

Notably, this Indian Act discriminates against women in a systemic and structural way, leading to inequities in membership and having an effect on their daily lives. Discrimination based on sex has affected the children, grandchildren, and their generations of kin by excluding them under the Indian Act. The amendments to Bill S-3 we are debating today aim to correct that trajectory and ensure that sex discrimination is eliminated from the Indian Act once and for all.

I want to walk members through the history. The issue of sex discrimination has been dealt with by Parliament on several occasions. However, in each round, the amendments made in the House did not go far enough to ensure that sex discrimination was eliminated altogether.

The amendments initially considered under Bill S-3 were in response to a superior court of Quebec decision in Descheneaux v. Canada, rendered in 2015. The Quebec court deemed the provisions of the Indian Act to be in violation of the Canadian Charter of Rights and Freedoms, as it treated grandchildren descended from a status Indian man and a status Indian women differently by providing status to the former and denying it to the latter.

Madam Justice Chantal Masse cautioned the government to ensure that any legislation that stemmed from the decision ought to have an expansive view of the issue of sex-based discrimination under the Indian Act. I would like to quote paragraph 239 of her decision:

When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

After considerable back and forth with the other place, we are here today to eliminate sex-based discrimination in the Indian Act altogether.

During debate this summer, we heard from many witnesses, including women whose lifetime of work advanced the issue of gender equality in the Indian Act. It was a very painful experience for most of them. We also heard from many bands and communities that they alone have the right to define the citizenship of their people. I believe that both seemingly divergent views are not incompatible. Ultimately, first nations people should have the say as to who their citizens are, but in a manner that does not discriminate against one particular gender.

I want to take a couple of minutes to outline previous attempts to remove sex-based discrimination from the Indian Act. The sex-based inequities in the law we are grappling with today have their roots in the patrilineal transfer of Indian status that existed in the Indian Act prior to 1985, and the subsequent imperfect attempts to end discrimination in the act.

With the introduction of the Constitution Act, 1982, and the Charter of Rights and Freedoms, explicit discrimination in the Indian Act finally had to be changed to comply with section 15 charter rights.

Bill C-31 was introduced to make the Indian Act charter compliant. It unfortunately did not go far enough. In fact, it is Bill C-31, including the introduction of the second generation cut-off and the subsection 6(1) and 6(2) categories of Indian status that inevitably opened new sex-based inequities and the inability of individuals to pass on status to their children and grandchildren. The residual sex-based inequities that remained in the act resulted in a rise in registration-related legal challenges.

One such challenge was launched by Sharon McIvor. Dr. McIvor's case centred on her ability to transfer status to her children. Since Dr. McIvor married a non-Indian, she was only able to transfer section 6(2) status to her son, Mr. Grismer. As Mr. Grismer also married a non-Indian, he was not able to transfer status to his children. However, had Sharon McIvor had a brother who was also married to a non-Indian, prior to 1985 their child would have been entitled to status under 6(1). Because of this discrimination, the B.C. Court of Appeal struck down paragraphs 6(1)(a) and 6(1)(c) of the Indian Act and gave Parliament one year to respond.

Bill C-3 was introduced by the previous Conservative government in response to the McIvor decision. However, the government decided that it would interpret the decision as narrowly as possible and that it would not address other obvious examples of sex-based discrimination in the act.

At the time, Marc Lemay, a former Bloc MP, rightly pointed out, “As we speak, a dozen or so of these complaints are before the courts in various jurisdictions across Canada, including one or two similar cases currently before Quebec courts.” I have no doubt that the cases in Quebec he was referring to were those of Stéphane Descheneaux and Susan and Tammy Yantha.

It only took six years for us to arrive back here again to pass amendments to the Indian Act to address discrimination, which should never have existed, with Bill S-3. Like Bill C-3, Bill S-3 did not initially take an expansive approach to addressing discrimination in the Indian Act. Initially, Bill S-3 addressed only the cases ruled by the Superior Court of Québec: the cousins and siblings issue and the issue of omitted minors.

I can continue to give more examples of where we have failed, but it is very clear that today, as we stand, we have the right balance to ensure that we eliminate sex-based discrimination from the Indian Act once and for all.

There would be a process of consultation that would ensure that people, particularly women, would not have to go to court to assert their rights. It is embedded in the legislation today. The bill would ensure that any discrimination based on sex, dating back to 1869, would be addressed once and for all. This is an important amendment we need to make to the Indian Act.

As my colleagues have previously said, as we walk toward elimination of the Indian Act, this is a necessary evil that will ensure that we do not continue to discriminate on the basis of sex.

[Yvonne Jones, Liberal, Labrador, NL]

Mr. Speaker, Bill S-3 is sexist, and the Indian Act is sexist and racist. It is a colonialist piece of legislation. We will be the first to admit that. At some point it has to be repealed and replaced.

The Assembly of First Nations has said that it supports passing the current amended version of Bill S-3, which is the bill we are debating today.

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

Mr. Speaker, I am pleased to speak to Bill S-3 today, and I will be splitting my time with the member of Parliament for Scarborough—Rouge Park.

The minister, in her address earlier today, gave a tremendous overview of the changes and critical components that make up the amendments in Bill S-3. As members know, since last fall, the government has been working to make these amendments based on the superior court decision of Quebec in the case of Descheneaux and in the last number of months we have worked with the Senate to clarify certain components of the bill and to ensure there were no charter violations and that we could, in fact, go beyond what was being recommended to ensure that we were doing everything we could possibly do at this stage to end any clauses with sex-based inequities within the bill.

Today, I want to thank all of those who did this work in the Senate Standing Committee on Aboriginal Peoples, senators, witnesses, and many others who appeared before the committee. We also appreciate the support and co-operation they gave government to make what we believe are some really significant improvements that we are happy to propose in this bill.

A number of previously unknown groups that were impacted by sex-based inequities were added to the bill and the government has worked with senators to address the issue of unstated paternity by enshrining additional procedural protections in law through Bill S-3. The bill was also amended to require the government to report back to Parliament on a number of occasions and in a number of ways to update parliamentarians and all Canadians on its progress toward broader Indian Act registration and membership reform. All of the amendments were welcomed and supported by the government.

The Senate Standing Committee on Aboriginal Peoples also added an amendment to Bill S-3, with the intent of implementing what was known as the 6(1)(a) clause or 6(1)(a) all-the-way approach. Basically, the intent of this amendment was to provide entitlement to 6(1)(a) Indian status to all of those who had lost their status back to 1869 and all of their descendants born prior to 1985. This amendment was passed and referred to the House of Commons.

We are amending the bill that has been passed by the Senate in three particular ways: first, we are changing the title of the bill; second, we removed 6(1)(a) all-the-way amendment; and third, a reference to UNDRIP was added to the bill review clause. As members know, UNDRIP was signed onto by this government and members can expect much more detail around our commitment to and implementation of UNDRIP to come in the weeks to follow.

It has been a long process to get here. I know that many have said that we should just repeal the Indian Act. I can guarantee that is a sentiment that has been shared by the Minister of Crown-Indigenous Relations and Northern Affairs and our government for a long time. However, we know that our responsibility is really to ensure there is legislation in place in Canada that responds to the needs of indigenous people. Our goal at the end of the day is to ensure that is in place.

In the meantime, we have made significant changes and amendments to this bill. In fact, through this bill, we are ensuring that we will provide status to all women who have lost their status through sex-based discrimination, as well as their descendants born prior to 1985 or after 1985 if their parents married each other prior to that date. This includes circumstances prior to 1951 and, in fact, remedies sex-based inequities going back to 1869.

Should the House of Commons pass the version of Bill S-3 that the Senate passed on November 9, the bill, with the exception of the 1951 cut-off amendment, would be brought into force immediately after receiving royal assent. This is something that has been welcomed by indigenous governments across Canada.

At that time, the second generation cut-off rule would be eliminated for women who lost their status as a result of gender-based inequities and had children between 1951 and 1985, as well as for their descendants who were born during that same period. The additional amendment regarding the 1951 cut-off, which was proposed by the government and is included in the current version of Bill S-3, would be brought into force after further consultations and the co-development of a comprehensive implementation plan to address the impacts of removing the 1951 cut-off.

That seems to be the obstacle that my colleague who spoke previously is having some trouble with. However, this is a responsible and prudent way of proceeding, that the government implement this amendment in a way that would eliminate or mitigate any unintended negativity or consequences for communities and individuals. We have been hearing this from many people, and we know all agree that this needs to be done, but we have to be responsible about how it gets done. We have to ensure that those who are to care for and absorb those extra constituencies within their nations have the ability to provide the services and the care in an appropriate way.

The version of the bill that is before the House today would remedy all residual Indian Act registration inequities flowing from sex-based discrimination. I think that is the important factor. Just as the Senate has supported this motion and has outlined its support in many speeches and comments within the Senate, we do the same on this side of the House within the Government of Canada, because we know it is the right thing to do. It is time for us to really make the drastic changes that indigenous Canada has been asking for and wanting for a very long time. This is just the beginning. There is a lot more work to do, and we can assure members that the government is ready to do that.

We ask that all members support the bill before the House today.

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

Mr. Speaker, I have a couple of comments I would like to make and a question. First of all, the member opposite talked about repealing the Indian Act, and it is probably the desire of all of us, at least on this side of the House, to repeal the act, but we also know that we have a fiduciary responsibility and that, in the absence of other legislation, it is not responsible for government to proceed in that way at this time.

However, we are creating a way and a mechanism to get there. That is the broader agenda of what government is engaged in and what the Minister of Crown-Indigenous Relations and Northern Affairs has spoken to. In the meantime, we also have a responsibility to honour the rulings of the court. The rulings of the court indicate that we eliminate all sex-based discrimination against women within the Indian Act. That is exactly what we are doing.

In fact, it has been with the tremendous support of the Senate that we are able to get to where we are today. I would like to ask the member a question, because Senator Sinclair has said:

I would like to add my support for this motion and indicate that I intend to vote for it.... The amendments before us, to my relief, leave no legal distinction between indigenous men and women. It brings the act, therefore, into compliance with the Charter.

The member opposite also knows that we have gone beyond the 1951 cut-off amendment in Bill C-3. In fact, we have made amendments in the bill that would include circumstances prior to 1951 and remedy sex-based inequities back to 1869. I ask why the member opposite will not support these amendments in Bill S-3.

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

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

[Member spoke in Cree]

[Translation]

Mr. Speaker, first of all thank you for giving me the opportunity to speak to this issue, which has been very important to me for many years.

I would like to begin by talking about the context in which we are debating changes to the Indian Act, to eliminate all forms of discrimination, especially against indigenous women who have been treated unfairly for many years under this act.

Earlier, I mentioned just how racist, sexist, colonialist, and outdated I think the Indian Act is. That is why I agree with the member for Saanich—Gulf Islands, who suggested earlier that we should simply get rid of the Indian Act for all these reasons.

I find it rather strange to rise today to speak to an act that we should get rid of. Why? To paraphrase the Prime Minister: because it's 2017. We should have gotten a lot further by now, especially when it comes to policies affecting the first peoples of this country.

In December 2015, after the current government was elected, I was in the room when the Prime Minister promised several things to Canada's chiefs. There were five major items in his speech. One of the promises he made in the 2015 speech to all indigenous leaders in Canada was that the government would review every piece of legislation passed unilaterally by previous governments and get rid of them. I was very pleased with this promise made to Canada's indigenous leaders because it is something I have been thinking about for a very long time.

When I heard the Prime Minister making this promise to all of Canada's chiefs, the first act that sprung to mind was the Indian Act. I believe that it is possible to replace the Indian Act with something else, especially in this era of reconciliation in Canada.

One of the other important promises that this government made to indigenous people was that it would adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples. In my view, this is the most important promise. Why not accept this framework, which would allow us to move forward?

I will read Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples.

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

This is the new framework that must guide our debates on these issues in the House.

I do want to mention that I was pleased to hear the Minister of Justice say last week that the current government would support Bill C-262, which has to do with the United Nations Declaration on the Rights of Indigenous Peoples. I am happy that the government is supporting this bill. This bill addresses the 43rd call to action by the Truth and Reconciliation Commission, which calls upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

We should let this framework that is the UN declaration guide all of our debates involving the rights of indigenous peoples, whether on the Indian Act or other agreements. This is what Bill C-262 proposes, and I am happy to hear that the government will support it. We will see how these issues are debated next Tuesday, during the first hour of debate on Bill C-262.

However, as I pointed out in my question to my colleague, even if the bill is passed, it will not include the three lady warriors who fought against the discrimination perpetuated under the Indian Act for nearly 40 years. I think this is cause for concern.

One part of this bill aims to eliminate all discrimination committed under the authority of the Indian Act. As an indigenous person, I would have a hard time rising in the House to support a bill that does not fully eliminate discrimination. I will never rise in support of a bill that continues to discriminate against this country's first peoples. It will not happen.

As the bill currently stands, there remains entrenched sex-based discrimination in the bill. Ideally, the government would respect the wishes of the parties to the case, as well as stakeholders, in keeping with the current international human rights standards, specifically articles 3, 4, 7, 8, and 9, which I have just read, and article 33 of the UN Declaration on the Rights of Indigenous Peoples.

We want all gender discrimination to be eliminated from the bill before it is passed by the House of Commons. We also want the liability clause to be removed entirely. I will never take away the right of an individual to sue the government for past wrongs. I will never allow this place to pass legislation that eliminates that right. Therefore, I will be moving amendments to that effect shortly.

We must remain critical of a bill that does not entirely address all discrimination, and also critical of the slow pace of change and the failure by successive governments thus far to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples, since adhering to the declaration would provide a basis for Canada to address all systemic problems within the Indian Act. It is important to do so in this era of reconciliation.

I would like to address the insubstantial nature of what passed the Senate and is poised to be adopted by this chamber. I say this because the government is promising to do only what the courts have ordered. No one should be fooled by the rhetoric into thinking that this bill, as it stands, addresses paragraph 6(1)(a) registration rights for indigenous woman, who have been seeking that status for over 40 years of litigation, namely Jeannette Corbiere Lavell, Sharon McIvor and, most recently, Dr. Lynn Gehl. Beneath the rhetoric, the bill represents an insubstantial aspiration that leaves complete discretion to the government to extend 6(1)(a) to everyone because there is no mechanism for implementation or accountability. In fact, this bill leaves so much to be desired that Sharon McIvor and Dr. Pam Palmater are headed to Washington to make a submission to the Inter-American Commission on Human Rights to ask them to intervene regarding Bill S-3 to make sure this government addresses all gender discrimination.

Many indigenous women's groups have called attention to the provisions of proposed section 10. With this clause, the government is justifying past discrimination and past violations of human rights. If we truly believe in the rule of law in this place, then this cannot happen. With this clause the government is justifying past injustices, and this should not be tolerated.

The government would continue to discriminate with impunity until it chooses to address it or is forced to address it. In my view, this underscores the sense of colonial entitlement. It undermines the rule of law. The crown has a fiduciary responsibility to first nations. It owes fiduciary duties to the people. It cannot be given impunity for its conduct because that would essentially enable breaches of the law and breaches of potential fairness to many people. With this bill, we are giving it licence to do whatever it wants, without consequence.

I want to quote Lynn Gehl, who says:

Not addressing the 1951 cutoff because the court said that the issue was one of matrilineal lineage versus sex discrimination was wrong.

....I’m of the position that the hierarchy created in 1985 between Indian men and their descendants as they are registered as a 6(1)(a) and Indian women who are only registered as a 6(1)(c) must be abolished if you want to eliminate the sex discrimination and end this process of amending the Indian Act.

In their letter that I referenced earlier, Sharon McIvor, Jeannette Corbiere Lavell, and Lynn Gehl wrote to the ministers and said:

We are writing to request confirmation that when Bill S-3 passes in the House of Commons there will be no change to the current category of Indian status accorded to Sharon McIvor (6 (1)(c)), and Jeannette Corbiere-Lavell (6(1)(c)), and Dr. Lynn Gehl (6(2))....

They continued:

None of us is affected by the 1951 cut-off introduced by Bill C-3 in 2010. Our reading of the motion introduced by Senator Peter Harder in the Senate on November 8, 2017 is that we, and the many Indigenous women who are similarly situated, will not be accorded 6(1)(a) status when Bill S-3 passes.

Again, this is equality delayed and the consequence is equality denied.

I too share the concern about the consultation process. It seems that the government only consults when it is convenient. Yes, I agree with the minister that there is a constitutional obligation to consult indigenous peoples when their rights and interests are affected, but it has to be applied throughout. I do not recall if the indigenous nations affected by the Site C dam, for instance, were ever consulted. In fact, it was to the contrary. They were being intimidated by BC Hydro with lawsuits. That constitutional obligation to consult has to be applied throughout.

In the case of the bill before us, I reiterate that it falls short of settling everything. The bill continues to discriminate. The Indian Act, in fact, is archaic and we need to get rid of it. The no-liability clause, as I mentioned, is a major problem. If we recall, last June I proposed amendments to that effect, which were rejected. If the amendments introduced back in June had been accepted, we would not be here today. We would not be debating this issue anymore. Unfortunately, they were rejected.

Since my time is quickly running out, I will close by saying that it is essential that the House consider the suggestion I just made of getting rid of the Indian Act altogether and giving first nations, Inuit, and Métis the right to decide whether or not to recognize their own members.

I think that is one of the fundamental rights that we successfully negotiated in the United Nations declaration on the rights of indigenous peoples. It is up to indigenous communities to decide who their members are, something that the Indian Act still does not allow them to do.

I am therefore proposing amendments so that the motion would now read as follows:

That 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 6, 8 and 9(a) made by the Senate;

2. proposes that amendment 7 be amended by replacing the words “Replace line 3 with the following: 'ly before the day on which this section comes into'” with “Delete clause 10”;

3. proposes that clause 11 of Bill S-3 be amended by adding the following on page 9 after line 33:

“(3) The consultations must be completed within 18 months of the day on which this Act receives Royal Assent.”

4. proposes that amendment 9(b) be amended by replacing “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 date that the order in subsection (1) is made”.

Those are the amendments that I am proposing, and I hope that the House will accept them this time.

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

Mr. Speaker, one of the questions that remain is the fact that even after the passage of Bill S-3, none of the lady warriors who litigated this issue for some 40 years would be accorded 6(1)(a) status. In fact, they wrote a letter to the minister who spoke before and the Minister of Justice, which states, “Our reading of the motion introduced by Senator Peter Harder in the Senate on November 8, 2017 is that we, and many other indigenous women who are similarly situated, will not be accorded 6(1)a) status when Bill S-3 passes.”

This is squarely equality delayed, and therefore equality denied. I would like my colleague to comment.

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

Mr. Speaker, I am also pleased to rise in debate today on Bill S-3, an act to amend the Indian Act on the elimination of sex-based inequities in registration. For anyone who might be paying attention to the debate, it might sound very complex and convoluted, so I will start with a very simple comparison and then perhaps move to the actual process.

The Conservatives intend to support the legislation. However, the government botched it all along the way. Therefore, I will reflect on the many problems that were experienced in getting us to this place.

I had the great privilege in the 1980s to be hired as a nurse for a small band. I had no idea of the issues of status or registration in bands. I was from an urban area and was hired to work in a rural community. Fairly early on in my time there, one of the community health representatives took me to visit some of the elders, and one elder in particular, Maggie. She told me that we were not supposed to visit as she was not an Indian anymore since the government took away her registration, that she was really not part of them but was part of them.

Maggie had been born in the late 1800s. In the early 1900s, she had married someone from a neighbouring community, who happened to be a white man, and she lost her status. In this case, the husband died a few years later. The community knew who the band members were and made special accommodation to ensure they welcomed their elders into the community. However, it was always very difficult for them because of the issues of housing and non-insured health benefits. She did not have those things by virtue of the fact that she had married a white person. We surreptitiously visited her and, as a nurse, I was able to take care of Maggie. She was a real inspiration to me in terms of what she did and how she did it.

In comparison, a gentlemen lived there and he had married someone from the neighbouring community. This had no impact on him. His wife was able to move to the community, they had non-insured health benefits, and his children continued to receive the benefits the community provided. That was an eye-opener. It did not make any sense. For the gentleman who married a woman from another community, there were no changes, yet there were significant changes for Maggie, which impacted her until the day she died. Clearly this was an inequity, and it was identified by many.

The minister talked about Sharon McIvor and so many others who had been advocating for many years for changes and to put in place legislation that would deal with these problems. It seemed simple, but as we went through the process of looking at the legislation and the massive charts in front of us, we came to realize how complicated this whole thing was and the fact that the government was determining who was 6(1)(a) or 6(1)(b). It was an amazingly complex process.

It is close to a year since the bill was first introduced. It was introduced in the Senate, with a looming court deadline that needed to be taken care of. In appreciation of the court deadline, the House of Commons committee, knowing it was introduced in the Senate, said that it would pre-study the bill and bring in some witnesses. We were trying to be co-operative with the Liberals. We knew there was a court deadline and we were trying to get the legislation dealt with in a reasonable way.

We started to have our hearings. One of the first people we had before us was Mr. Descheneaux, and his lawyer. They said that they did not know the legislation was even going to be tabled until they were called as witnesses. This is the plaintiff who won the case. The government responded by tabling legislation without even talking to the plaintiff. It was shocking to committee members to hear the government, which has talked about having consultations and how important it is, had not talked to the plaintiff.

Some other things happened as we were moving the bill through Parliament.

On the first day of testimony, which was November 21, 2016, department officials testified that they were confident the bill would address all sex-based inequities in the Indian Act. I will quote what we were told with respect to that.

I asked the officials this:

First, in terms of your statement...this would eliminate all known sex-based inequities, are you confident that we're not going to be looking at another court case and another piece of legislation coming down the pike? Are you confident that we have...taken care of...[the] issue?

Ms. Joëlle Montminy stated:

We are confident. With these amendments, we are dealing with all known sex-based inequities in Indian registration. That's not to say there are not other types of inequities that are going to be brought forward by various groups. We do have active litigation on this. It could relate to other...issues.

We know there still are some outstanding issues that perhaps relate to veterans, but we had their guarantee that the sex-based inequities were taken care of.

The next day I spoke with Mr. Descheneaux, and his statement is quite interesting. He was at committee the next day. He 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.

Then we had heard from Chief Rick O'Bomsawin, who stated that the minister's office:

...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.

We knew the Senate was hearing the same issues at that time and was becoming as concerned as we were.

I understand that the staff were blamed. At the Senate aboriginal committee on November 30, the minister said, “My department's failure to directly engage with the plaintiffs was not only unacceptable but embarrassing for me as minister. I have now personally spoken with each of the plaintiffs...”.

I have to remind members that the government came into office with this very firm commitment to always ensure it had proper consultation and engagement. This is the first piece of legislation it has tabled with respect to the indigenous affairs file, with absolutely minimal or almost no consultation.

National Chief of the Assembly of First Nations, Perry Bellegarde, called on the Liberals to withdraw the legislation, ask the superior court for an extension, and use the time to fix the bill and engage in proper consultation. National Chief Bellegarde stated his team had not had adequate time to undertake a full review of these amendments, and when asked whether or not the consultations had been adequate, he gave a firm answer. That answer of course was no.

The Assembly of First Nations, the AFN Women's Council, the Quebec Native Women's Association, the Canadian Bar Association, and the Indigenous Bar Association, among others, all identified deficiencies with the process and content of the bill.

The minister talked about some of the things my colleague Senator Patterson said. On November 17, he said:

...witnesses described the consultation as lacking. National Chief Perry Bellegarde of the Assembly of First Nations told us that First Nations impacted by the bill were not properly resourced or given enough time to adequately review the proposed amendments to the Indian Act. We were astonished to find out that the plaintiffs in Descheneaux—the case that forced the writing of this bill—and their counsel were not consulted...

He reiterated some of the same concerns.

With the early introduction, we all tried to move the bill forward. Then we quickly realized the government had utterly failed in doing the consultation it so often says is important, but it had not actually done. Then we had witnesses who showed us design after design. In spite of what the officials said, the bill was not going to fix the inequities we needed to deal with. Again, we had to add some amendments to deal with a number of other issues.

The Senate committee put the bill into abeyance. The minister had to ask for a court extension to do its additional duties, which was to consult. On December 13, the Senate committee sent a letter to the minister, urging her to act on the witnesses' concerns. The minister then withdrew the bill and sought an extension of the court, which was granted until July 3, 2017.

We know the Senate continued to have significant concerns and issues. We voted in the House in June on an amended bill. We sent it back to the Senate, because we knew the court deadline was in the summer. The Senate refused to deal with it, or they rose in the summer before it dealt with the legislation. Again, the minister had to go back to the court to ask for a new deadline. We might see a bit of a pattern here, with deadline after deadline being missed.

Finally, we are at a place where, hopefully, all sides in the House will support moving forward. The Senate has agreed to move forward. In spite of what should have been done a year ago, the people who should have had the process of their registrations started in response to this particular case have been sitting back.

In terms of Bill S-3, many community members have been very patient. On this side of the House, in the official opposition, we have stood up many times for first nations gender equity and rights. Looking at what we have in front of us, it kind of draws me back to the debate around matrimonial real property rights. That was a really important piece of legislation to protect women. Mr. Speaker, I know you were here at the time. You will recall who voted against protection for women on reserve with the matrimonial real property legislation. It was the Liberals.

We are going to be supporting this, but we need to remember the record of the Liberals when it has come to issues around gender equity and first nations. Who was the government that put forward legislation so human rights would apply on reserve? It was the Conservative government at the time. I am really quite proud of our record in terms of moving some of these issues forward in a positive way, and again note that we will be supporting this bill and hopefully finally dealing with this.

In conclusion, the minister has talked very optimistically about her communication and consultation process and reporting back to the House. I am very concerned about the process she is going to undertake and whether the Liberals will ever get to any resolution on this issue, and suspect that we might end up back in the courts again.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, in the course of Bill S-3, the conversations I had with the hon. minister in this place in June and the attempts to remove all vestiges of historic gender-based discrimination have now come to a good place. The new and expanded role of a Senate with independent senators and indeed the role of indigenous senators in the other place, Senator Dyck, Senator Dan Christmas, Senator Murray Sinclair, have helped enormously in bringing about that sober second thought which we used to think the other chamber was capable of providing, particularly from an indigenous perspective.

While I certainly applaud and appreciate that we are taking the bill forward, as amended, to passage, it is time to repeal the Indian Act, and this is the first time I have said that in the House. There is a lot of discussion about how we need to consult with first nations and indigenous people before we repeal it. They did not pass it. It is a vestige of a colonial history and it is inherently discriminatory and racist.

I know the minister has now had the department split in two, but this question is squarely in front of her, and it is a tough one. However, when can we start the conversation about when, not if, we repeal the Indian Act?

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

Mr. Speaker, I thank the minister for her speech on a topic that I, as an aboriginal person, always find difficult to address. It is hard to address a topic like the Indian Act.

As hon. members know, I have always considered the Indian Act to be archaic, colonialist, sexist, and racist. All those adjectives apply in this case.

I would like to know whether the minister believes that the current version of Bill S-3 eliminates all forms of discrimination under the Indian Act. I would like to hear what she has to say about that.

[Carolyn Bennett, Liberal, Minister of Crown-Indigenous Relations and Northern Affairs]

moved the second reading of, and concurrence in, amendments made by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act, in response to the Superior Court of Quebec decision in Descheneaux v. Canada.

I want to acknowledge that we are gathered on traditional Algonquin territory.

Today, we pay tribute to the tireless efforts of the women, including Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bedard, Sharon McIvor, Senator Sandra Lovelace Nicholas, Senator Dyck, and so many others who have fought to ensure that the descendants of women who lost their status because of sex-based discrimination are treated equally to the male line.

I want to be clear that I stand in solidarity with the indigenous women who have been fighting for gender equality in the Indian Act registration for decades. I hear their pain, the hurt of receiving a letter in which they were told that their marriage would cost them their indigenous status and knowing their descendants would also lose their indigenous identity.

Our government is committed to working with first nations, parliamentarians, impacted individuals, and experts to ensure all sex-based discrimination is eliminated once and for all from registration provisions in the Indian Act.

Bill S-3 was introduced by the government in response to the Descheneaux court decision and is focused on eliminating residual inequities flowing from the historical sex-based discrimination in Indian Act registration.

As members are well aware, this legislation was introduced in the context of a court-imposed deadline to remedy the specific charter breaches found by the Superior Court of Quebec in that case. In recognition of the court-mandated deadlines, the government launched a two-stage approach in response to the Descheneaux decision.

The first stage was focused on passing legislation to remedy sex-based discrimination in Indian Act registration, which violated the charter, whether ruled by a court or not.

The second stage was to occur immediately after the passage of Bill S-3. It was to be a comprehensive and collaborative process with first nations, impacted individuals, and experts on the needed broader reform of Indian Act registration, membership, and citizenship.

This consultation is enshrined in the bill and must commence within six months of royal assent.

I want to thank the Senate for its diligence and willingness to work with the government and across party and caucus lines to strengthen Bill S-3.

The government has worked closely with the Standing Senate Committee on Aboriginal Peoples and many other senators on numerous amendments to the original version of Bill S-3. These amendments have greatly improved this legislation.

For example, the bill now proactively addresses further groups impacted by residual sex-based discrimination, which were identified during the Senate committee hearings by the Indigenous Bar Association.

The bill also now addresses the issue of unstated paternity by enshrining additional procedural protections in law.

As members will recall, there was one amendment proposed by the Senate that the House of Commons did not support. While well intentioned, the scope of the amendment, now commonly known as the “6(1)(a) all the way” amendment, would have focused on other Indian status issues beyond residual sex-based discrimination in registration.

As mentioned, Bill S-3 was introduced in response to the ruling in Descheneaux. Accordingly, the bill seeks to eliminate sex-based inequities in the registration provisions of the Indian Act.

While the government is launching co-designed consultations early next year regarding broader Indian Act registration and membership issues, these matters are outside the scope of the current legislation. Moreover, independent legal experts, including the Indigenous Bar Association, highlighted to the House committee that significant legal ambiguities were created by the way the amendment was drafted. The government also had significant concerns regarding the inadequate time afforded for meaningful consultation with first nations and other impacted parties regarding the practical implications of such an approach within the court-mandated deadline.

Given these legitimate concerns, last June, the House of Commons amended Bill S-3 to remove the “6(1)(a) all the way” amendment. The Senate expressed significant concern that without the “ 6(1)(a) all the way” amendment, or a comparable replacement, Bill S-3 would not eliminate all residual sex-based discrimination from registration provisions in the Indian Act.

Bill S-3, as passed by the House of Commons last spring, remedied all sex-based discrimination in Indian Act registration since the modern Indian registry was created in 1951. Given that the modern Indian registry came into effect in 1951, the current state of the law requires remedies for Indian Act sex-based registration inequities to apply from that date forward. This has become commonly known as the 1951 cut-off and reflects the B.C. Court of Appeal ruling in the McIvor decision. While the 1951 cut-off is specifically referenced in Bill S-3 as a key component of the mandated future consultations, many senators and first nations advocates have argued strongly that amendments specifically dealing with the 1951 cut-off should be included in this bill.

The government acknowledges the understandable and justified scepticism of first nations and parliamentarians about decades of inaction by governments of all political stripes on the 1951 cut-off. We have listened to the arguments put forward by the Senate as well as other indigenous voices and are now proposing to amend Bill S-3 to deal with the 1951 cut-off. The proposed clause would put 6(1) status to all women who lost status through sex-based inequities and to their descendants born prior to 1985.

This includes circumstances prior to 1951. The proposed clause would eliminate sex-based inequities that date back to 1869.

The effect of this clause would be to remove the two-parent rule for the descendants, born between 1869 and 1985, of women who lost status because of sex-based discrimination. The government amendment is also drafted in a way so as to avoid any internal contradictions within the Indian Act, and therefore, would not create any legal ambiguity.

The government believes that in keeping with the scope of Bill S-3, the proposed amendment is the best way to eliminate all remaining sex-based discrimination from registration provisions in the Indian Act.

The Senate passed Bill S-3 with the government's new amendment on November 9.

It is important to note that during the debate in the other place, the new government amendment garnered majority support from all the Senate caucuses and groups. Senators Dyck, Lovelace Nicholas, Sinclair, Christmas, and Patterson were among the many prominent senators from each of the caucuses and groups that publicly supported Bill S-3 with the new government amendment included.

Senator Lillian Dyck said the following in the debate in the other place:

The motion today legislates the intentions of the “6(1)(a) all the way” but in a different manner than the McIvor amendment. The end result is the same and the legislative mechanism proposed can actually be seen as an improvement over the McIvor amendment. If we pass Bill S-3 as amended by today's motion, all of the female sex-based discrimination will be eliminated in the Indian Act.

During his speech, Conservative critic Senator Patterson stated:

I believe that by supporting this message—and it is a bit of an act of faith—we are doing right by indigenous women and their descendants.

Senator Sinclair also spoke in favour of the motion. He stated:

I would like to add my support for this motion and indicate that I intend to vote for it....

The amendments before us, to my relief, leave no legal distinction between indigenous men and women. It brings the act, therefore, into compliance with the Charter.

Both the Assembly of First Nations and the Native Women's Association of Canada also support the amended bill.

An updated democraphic analysis, which was commissioned by the government over the summer, is now public.

The government made this demographic data public in the interest of transparency, but does not believe this to be a reliable way of estimating potential impacts.

These numbers significantly overestimate the number of individuals who would successfully obtain Indian status. The limitations of the current demographic projections, even with the additional independent demographic work, further underscore the need for meaningful consultation on the best possible implementation plan.

The government will continue to work on further refining current demographic estimates and looks forward to the broad-based consultations on Indian Act registration and membership, to begin in early 2018, to assist in this process. The government is committed to ensuring that the removal of the 1951 cut-off is implemented in the right way, in terms of both first nations communities and the individuals who will become entitled to registration.

We have always been clear that significant changes impacting first nations would be done in consultation and partnership. This approach is in keeping with the commitment to a renewed, respectful relationship, based on the recognition of rights, and to implementing the United Nations Declaration on the Rights of Indigenous Peoples. That is why while the balance of Bill S-3 will be brought into force immediately after royal assent, the amendment dealing with the 1951 cut-off will be brought into force after the conclusion of co-designed consultations.

These co-designed consultations will be about how to remove the 1951 cut-off, not whether to do it. They will be focused on identifying additional measures or resources required to do this right and on working in partnership to develop a comprehensive implementation plan, to be launched simultaneously.

Some have raised concerns about this approach, but while speaking during the Senate debate, Senator Christmas summarized the realities succinctly:

I believe it’s also essential to recognize that the consultation with First Nation communities that will flow from the bill’s requirements on consultation and reporting back to Parliament reflect the basis of the Principles respecting the Government of Canada’s relationship with Indigenous peoples, announced in July of 2017.

In doing so:

The Government recognizes that Indigenous self-government and laws are critical to Canada’s future, and that Indigenous perspectives and rights must be incorporated in all aspects of this relationship. In doing so, we will continue the process of decolonization and hasten the end of its legacy wherever it remains in our laws and policies.

During the same debate, Senator Sinclair added:

I want to point out that this bill attempts to reconcile two different constitutional obligations that the government has: One is, of course, to comply with the Charter when it comes to gender discrimination; the other is to comply with its constitutional obligation to consult with indigenous people.....

So while it is with reluctance that I see us delaying the implementation of a Charter right, I can also see the need to do so because of that competing constitutional obligation to consult. And so I am prepared to support this legislation because it enshrines the right.

Bill S-3 also has numerous clauses to provide accountability to Parliament on its implementation and the related consultations. Within five months of royal assent, the bill requires the government to report to Parliament on the design of the consultations and how they are progressing, and a further update to Parliament is required within 12 months of royal assent.

There is also a three-year review clause in the bill, which requires the government to report to Parliament on the provisions of section 6 of the Indian Act enacted by Bill S-3.

The purpose of this review is to confirm that all sex-based inequities under the registration provisions have been eliminated.

If the government fails to pass legislation before December 22 to address the Charter issues outlined in the Descheneaux decision, the sections struck down by the court will be inoperative in Quebec. The practical implication would be that these provisions would then become inoperative within Canada, as the registrar would not be in a position to register people under provisions found to be non-charter compliant.

Ninety per cent of status Indians are registered by the federal government under the provisions that were declared of no force and effect in the Descheneaux decision. These individuals are consequently unable to access the benefits that come with registration.

We cannot lose sight of the thousands of individuals who will not be able to register if the court deadline passes and the provisions noted above become inoperable, or of the up to 35,000 people who will become eligible to register as soon as this bill receives royal assent.

Bill S-3, as amended, would remove all residual sex-based inequities from registration provisions in the Indian Act. As Senator Christmas said during the debate in the other place, “The government did its job—in listening and in acting. Now it is time for all of us to do our job and adopt this amendment without delay.”

I urge all members to support the amended message from the Senate and pass Bill S-3 in its current form.