An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Status

Considering amendments (House), as of Nov. 9, 2017

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Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

June 21, 2017 Passed Concurrence at report stage of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)

June 8th, 2017 / 8:45 a.m.
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Liberal

The Chair Liberal MaryAnn Mihychuk

Good morning.

I'd like to start by indicating that we are on the unceded territory of the Algonquin people.

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

We have many panellists who have travelled far to present to our committee, so I wish to get on with the matter of business.

We have 10 minutes for each presentation. Some groups have one presenter; others have two. It's up to you how to divide your time. We will be fairly strict on time. I'll try to give you a warning ahead of time—three minutes, two minutes, one minute, cut—so have a look at me and I'll try to signal how much time you have.

Our first panel includes representatives from the Assembly of First Nations of Quebec and Labrador; Viviane Michel and Cynthia Smith from Quebec Native Women; and Lynn Gehl.

We have Chief Picard on the line, by teleconference.

In front of us is Mr. Norton.

Perhaps you could lead off and tell us how you would like to proceed.

June 6th, 2017 / 11:35 a.m.
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Liberal

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

Over the course of previous testimony, we have received comments stemming from concerns with regard to our government's commitment to move forward with a second stage of consultation. Witnesses clearly referred to delays during other legislative steps that took five, six, seven or eight years to complete.

Bill S-3 was developed with a set of established timelines in specific provisions. Are you confident in the fact that the process, as presented, could be put forward and completed within the set timelines?

June 6th, 2017 / 11:20 a.m.
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Director, Board of Directors, Indigenous Bar Association

Drew Lafond

During the prior round of amendments before Senator McPhedran's amendment, we had been dealing with a response to the decision in Descheneaux, and the idea had been to identify instances of sex discrimination that had arisen post-1951 as a result of the 1951 legislation. We were essentially, in effect, trying to identify as many factual situations as we could that could arise under the 1951 legislation as amended by the 1985 legislation. This was the approach that had been espoused by INAC and several parties they consulted with when we were discussing what Bill S-3 should look like.

When you look at the 1951 legislation as amended in 1985, there were several factual areas that gave rise to sex discrimination, and we were caught within that. We were ultimately caught within those parameters, and that's the discussion and the dialogue that we were having at that time. How do we eliminate sex discrimination under the 1951 act as amended by the 1985 act?

When we raised the possibility of going back prior to 1951 with INAC at that time, they invoked the decision of the British Columbia Court of Appeal in McIvor, stating that the court in that case had concluded that all instances of sex discrimination prior to 1951 were essentially justified under section 1 of the charter. Now, we disagreed with that because we think the British Columbia Court of Appeal hadn't had the opportunity or the benefit of subsequent case law that has interpreted the charter, which we think may have led them to lead a different conclusion.

How do we deal with this, then, for people prior to 1951? That still, in our view, remains an open question, something that needs to be looked at very critically and very closely.

June 6th, 2017 / 11:15 a.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, Madam Chair.

I want to go back to some of the cracks in the fundamentals. The legislation, Bill S-3 as presented, does respond to a significant number of concerns. I won't talk about paragraph 6(1)(a), but I'll say that the rest of the legislation responds to a significant number of concerns.

The Indigenous Bar Association still had one or two areas that it thought the bill was not adequately responding to. Could you just quickly go over those again, minus paragraph 6(1)(a)?

June 6th, 2017 / 11:10 a.m.
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Director, Board of Directors, Indigenous Bar Association

Drew Lafond

Okay, excellent.

Put simply, the proposed paragraph 6(1)(a) “all-the-way” approach is certainly attractive. We think that it could beneficial. Unfortunately, we didn't have the opportunity to contribute to the drafting of that section, and when we did ultimately see Bill S-3 approved by the Senate at third reading in its current form, without....

June 6th, 2017 / 11 a.m.
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Drew Lafond Director, Board of Directors, Indigenous Bar Association

Thank you.

This is a little bit of a different forum for me, so I'm just getting used to it. I'm calling in from Calgary, Alberta.

My name is Drew Lafond. I am a member of the Indigenous Bar Association. The Indigenous Bar Association in Canada is a not-for-profit organization that represents indigenous lawyers, judges, academics, students, and paralegals in Canada. Generally, our objective is to see the advancement of indigenous rights in Canada and to allow indigenous peoples to secure their ability to exercise their rights of self-determination in Canada. We have a very broad mandate, and we represent quite a few individuals. Our membership exceeds 300 members within Canada from coast to coast.

I'm speaking here today further to our presentation to the Standing Senate Committee on Aboriginal Peoples. We spoke on April 16, and we also presented on November 23, 2016 before the standing Senate committee, and we made written submissions to the standing Senate committee in April 2017.

Today, I want to elaborate a little bit more on what we provided during our previous presentations.

In terms of the bill at hand, further to our previous presentation, the issue we had encountered in terms of the text of Bill, S-3 and with section 6 of the Indian Act in its entirety, was essentially that the bill had become illegible for first nations individuals. It was very difficult to interpret who within the bill qualified for Indian status.

Now, the objective of the bill—and I refer to the title of the bill as being the elimination of sex discrimination within the Indian Act—had not been achieved by November. Subsequently, when another round of revisions to the bill was presented in May, the bill itself still included several instances of sex discrimination, which we identified only a couple of days before I presented back in May.

Unfortunately, we didn't have an opportunity to review paragraph 6(1)(a) and the “all-the-way” provision. In fact, when I was presenting to the standing Senate committee, I think it was Senator Patterson who raised it as a potential alternative to the draft bill that was before the Senate at that point. Colloquially, it's a term that's been attributed to what I think the new paragraphs 6(1)(a.1) and 6(1)(a.2) will be within the current bill. The ultimate intention of paragraph 6(1)(a) “all the way”, I think—I'd hazard a guess here, and I'm paraphrasing wildly—is to ensure that anyone prior to 1985 who had been deprived of status would be reinstated, and any descendant of a person who was entitled to status under the previous provisions, who was born prior to April 17, 1985 would also be entitled to paragraph 6(1)(a) status. Again, we didn't have the opportunity to contribute to the drafting of the paragraph 6(1)(a) all-the-way approach, but I'm operating on that assumption, and that's something I'll offer comments on later.

When we appeared before the Senate in April, we brought three general issues to the forefront. The first was with respect to pre-1951 status. The question that we raised to the Senate was more a question and more of an issue that we wanted addressed in a broader scope, which was why discussion at that time focused on the arbitrary distinction between pre-1951 and post-1951 status at that point.

It was a distinction drawn by the British Columbia Court of Appeal in the McIvor decision. Ultimately, however, for the claimants, the individuals who were affected by the enfranchisement provisions under the pre-1951 and the post-1951 versions of the Indian Act, it seems to be an arbitrary decision. The only basis for it was simply that we weren't in a position at that time—and we still aren't, from what I understand—to fully quantify the impact of a reinstatement on a pre-1951 enfranchisee and his or her descendants.

Without a factual basis to support an argument as to what a pre-1951 reinstatement would look like, I think we're still disadvantaged in the sense that we don't have all the information on what the full impact of this would be. Ultimately, this is an issue that will affect Canada. It's Canada's statute. We want to avoid the ramifications of a pre-1951 mass reinstatement, which would have a detrimental impact on the ability of first nation governments to administer and conduct their own affairs.

With respect to post-1951 status, we presented draft amendments and circulated those to the Standing Senate Committee on Aboriginal Affairs. As I indicated, I wasn't contacted by any members of the Senate following our circulation of those proposed amendments. It wasn't until the following day—I think it was May 17, when the clause-by-clause reading occurred—that I was made aware of the drafting of the 6(1)(a) “all-the-way” approach. I'll speak to that in a moment.

The only other item I'd like to submit would be with respect to sections 10 and 11 of the Indian Act. There's currently an ambiguity in section 10 of the Indian Act for those bands that have adopted their own band membership codes. This was underscored in a case in the Alberta Court of Appeal in 2003.

What we would have liked the Senate to do in this case, which unfortunately did not happen, was to address, in addition to the proposed amendments to section 11 of the Indian Act, the effect of reinstating essentially anyone reinstated under the additional status provisions of section 6 to a band membership list, or a membership list equivalent, maintained by the department.

There are issues with this because it renders uncertain the status of individuals reinstated today. There remains an uncertainty as to whether those individuals would be reinstated, effective April 17, 1985. The effect of this would be that they would also be entitled to band membership. Their names would be included in the band list, effective April 17, 1985. This is an ambiguity that remains.

This situation was addressed by the Alberta Court of Appeal, and we think the decision, at least in our instance, creates some clear direction for the Senate and the House of Commons in eliminating sex discrimination. It affects the status provisions of section 6 as well as how these provisions impact automatic entitlement to band membership.

Going back to the 6(1)(a) “all-the-way” approach, I haven't been made aware of the full intention of 6(1)(a). I simply assumed that this approach could well achieve the objective of the proposed legislation, which is the elimination of sex discrimination. As we indicated in our previous submissions, the draft bill added to what was already an esoteric section 6, which was becoming illogical for first nations individuals.

Now, the only concern with respect to the—

June 6th, 2017 / 10:50 a.m.
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Francyne Joe Interim President, Native Women's Association of Canada

Good morning, as I shake myself up. It's raining outside again.

Kwe, bonjour, and good morning to Chairperson Mihychuk, committee members, distinguished witnesses, and guests.

My name is Francyne Joe, and I am the interim president of the Native Women's Association of Canada. Alongside me is our executive director Lynne Groulx; and I am happy to introduce our new director of strategic policy, Courtney Skye.

I would like to acknowledge the Algonquin nation, on whose unceded territory we are meeting today. I would further like to recognize and honour the hard work on the part of individuals, organizations, and members of the Senate, who share our interest in moving this process forward quickly.

Through the elimination of sex-based discrimination in the Indian Act, indigenous people who have experienced generations of marginalization will achieve recognition of their disenfranchisement. It will additionally enable generations of descendants to begin the process of healing and reclaiming pride in their identities as indigenous people.

Following NWAC's presentation on the findings of the engagement sessions with indigenous women and other stakeholders on this topic, several amendments have been made by the Senate to the proposed Bill S-3 that satisfy some of our most pressing concerns. These include the affirmation of a clear process for meaningful engagement, in which we commit to participating.

NWAC continues to advocate for the removal of all sex-based discrimination from the Indian Act. Accordingly, the Native Women's Association supports the amendment of Bill S-3, known as 6(1)(a) “all the way”, as passed by the Senate. However, NWAC needs to flag the “no liability” clause as a problematic addition to Bill S-3.

It is our impression that the new amendments serve to further eliminate sex-based discrimination in the Indian Act, beginning with the removal of the two-parent rule. The two-parent rule, or presumption of parentage, is discriminatory towards many individuals. Our grassroots' engagement process revealed that Bill S-3 did not address the situations of undeclared parentage, a parent being unable to sign documents due to disappearance or death, or cases in which same-sex or two-spirited individuals are parents.

The elimination of the two-parent rule will grant Indian status to disenfranchised descendants. It restores the rights of indigenous people to love who they choose and takes a positive step towards the acceptance of same-sex relationships in the affirmation of the rights of two-spirited individuals. It does not, however, address the ways in which they have suffered due to this discrimination.

We are satisfied with the addition of a legally mandated engagement and consultation process, and encourage the initiation of stage two of this bill. NWAC is fully committed to designing and implementing an engagement process that provides indigenous women with the capacity required to fully and meaningfully participate.

Consultation must be extended to all indigenous women, youth, elders, transgendered women, and two-spirited individuals. This group is not limited to the first nation communities, first nations bands, and Métis communities, whose memberships will be affected. It needs to be inclusive of all indigenous women who are being discriminated against, in recognition of the need for strong, healthy, and loving families, and shaping pride and self-knowledge in future generations.

Canada has denied indigenous children of their right to know themselves through numerous methods of colonization, including those implemented by the Indian Act. By denying women access to their treaty rights and isolating them from their communities, the Indian Act has disrupted their ability to pass on their heritage and culture to their children. Consultations on the loss of Indian status must extend to those who have experienced the effects of the sex-based discrimination in their lives. We must hear from those who have lost their connection to their culture as a direct result of sex-based discrimination in the Indian Act and the delays to this amendment.

Meaningful consultation supports the development of a mutually respectful relationship, as recommended by the calls to action of the Truth and Reconciliation Commission. This relationship must be with those affected by sex-based discrimination in the Indian Act. Consultation must extend beyond groups whose rights are currently supported by the Indian Act, including groups who currently hold Indian status.

Additionally, the inclusion of indigenous women's perspectives must be used as a metric of the indigenous peoples' ability to claim their right to self-determination as outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

NWAC has decades of experience in exposing and addressing the root cause of the marginalization of indigenous women. We must strongly recommend that comprehensive consultation and reporting occur within a framework designed with our full co-operation and ensuring that all residual forms of discrimination are removed from the Indian Act.

I will now further elaborate on our expectations in developing this important work.

NWAC has serious concerns about elements of the bill, including clause 10, the “no liability” clause. Its presence supports the sexism inherent in the Indian Act and further entrenches historic discrimination against the group most marginalized and most impacted by the discrimination of the act.

The patriarchal nature of the Indian Act has survived prior amendment and continues to amplify that discrimination against women that has been felt through generations. It was drafted in an attempt to assimilate indigenous women and our descendants by erasing our indigeneity. To include a “no liability” clause essentially divorces its creators from responsibility for their knowing attempts to disenfranchise and disempower indigenous women and their descendants.

The crown is not released from bearing responsibility for this work. This is not only a question of compensation but a recognition of the degree to which the racism faced by indigenous women is intensified by discrimination based on sex. As no process has been introduced that seeks to assist those impacted by this discrimination on their own behalf, the legacy of harm continues to threaten the well-being of women and their descendants. These people will continue to bear the burden of alleviating the discrimination for themselves.

NWAC welcomes the explicit reporting of issues outlined in subclause 11(1), with particular attention on the impacts relating to adoption of children by two-spirited people and same-sex partners, the impact of unknown or unstated paternity in cases of sexual violence, and the effects of enfranchisement of women.

Please accept our input challenging the Indian Act and supportive of our combined work in removing this discrimination. We appreciate the support of this committee in ending the systemic attack on the ability of mothers to pass on our heritage and culture to our children.

The process of colonization and assimilation continues on the bodies and in the minds of indigenous women. We had no hand in writing these laws that oppress us. It is time to reclaim our identities in law and action. There is an urgent need to respect and promote the inherent rights of indigenous peoples. Our rights derive from our cultures, spiritual traditions, histories and philosophies, all of which are passed on by our mothers. These also derive from our political, economic, and social structures, all of which have been actively disrupted by the patriarchal and colonial impositions of the crown.

Canada has committed to implementing these rights as affirmed by the United Nations Declaration on the Rights of Indigenous Peoples. It is time to restore the traditional place of pride held by women, trans-gender women and two-spirited women in our communities. The Indian Act has successfully categorized and divided our people through status designations that impact us at the community level. By revoking Indian status or not awarding Indian status to women and their children, the Indian Act makes these marginalized people easy targets for continued discrimination that is felt across generations.

NWAC recently observed the 100th anniversary of the Battle of Vimy Ridge and the indigenous women who chose to fight alongside Canada for our freedom. We have supported a nation that has never supported us. It is unacceptable that today we must continue to advocate for our equal rights to dignity, respect, and freedom from fear on our own soil. Adopting paragraph 6(1)(a) “all the way” is our shared path to reconciliation, healing, and empowerment.

NWAC fully embraces the opportunity to work with Indigenous and Northern Affairs Canada in conducting stage two of the engagement process as outlined in the amendments to Bill S-3, and we commit our full participation in its design. The positive action taken in accepting these amendments will let not only first nations women but all indigenous women, their descendants and communities, know that the Canadian government recognizes and respects our right to equality.

June 6th, 2017 / 10:35 a.m.
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NDP

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

I asked the representative from Justice Canada just a few minutes ago whether Bill S-3 was vetted against the charter to make sure of its compliance. Under the Department of Justice Act, subsection 4.1(2), they have the obligation to make sure that any legislation is consistent with the Charter of Rights and Freedoms.

The answer to that question was that, yes, they did that.

Do you agree?

June 6th, 2017 / 10:20 a.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

Thank you, Madam Chair. I'd like to thank the witnesses for coming back again. I'm sure we'll be seeing each other again and again, and probably my great-grandchildren will too.

It's interesting that we would like to have stage two and to do another study, and then it will be stage three, as everything is really being pushed down the road. Why? It's probably a money issue. I have a lot of people come to my office and say that we have to fix this now, that we don't need to punt it down the road to the next election or the one after. It's very troubling.

What I'd like to see is how you would fix Bill S-3 as it stands with the amendments. Is there anything more that needs to be done?

I open up the question to all the witnesses, if they want to answer.

June 6th, 2017 / 9:50 a.m.
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David Schulze Legal Counsel, Council of the Abenaki of Odanak

Thank you, Madam Chair.

Ladies and gentlemen members of the committee, I will address you today in English.

Thank you for inviting us. I'm David Schulze. I was counsel for Stéphane Descheneaux, Susan and Tammy Yantha, and the Abenaki of Odanak and Wôlinak in the Descheneaux case. I am joined by Chief Rick O'Bomsawin of Odanak and Mr. Stéphane Descheneaux.

Now, I know we did this before Christmas, but I offered to briefly take the committee through the status rules again so that we know what we're talking about, because these issues are not simple.

By way of context, you will recall the challenge that Madam Justice Masse put before Parliament in her judgment. She said she was disposing of Mr. Descheneaux and Susan and Tammy Yantha's case, but as she said, “Parliament is not exempted from taking [other] measures to identify and settle all other discriminatory situations...whether they are based on sex or another prohibited ground.” We will look at whether this bill does that.

Briefly, how does status work? There are two subsections in section 6 of the Indian Act that give you status: 6(1) and 6(2). This chart quickly explains it to you, but it's not always easy to follow. Keep this in mind. A person registered under 6(1) will always have a status child. A person registered under 6(2) will never have a status child if they don't parent with another status Indian. It is always better, if you would like your children to have status and to be able to inherit your house on reserve, to be a 6(1) than a 6(2). That is the bottom line.

This system of 6(1) and 6(2) is the way the federal government, in 1985, tried to solve the discrimination in the Indian Act. Just as an aside: before 1985, status under the Indian Act was purely patrilineal, with one exception. Status was for Indian men, their wives, and their children. That was it. The only exception was for an Indian woman who had a child out of wedlock with an unidentified father. If they couldn't show the father was not an Indian, that child could be registered. Otherwise, there was no one on earth who had their Indian status from their mother; they had it from their father. An Indian woman lost it if she married a non-Indian man, and a non-Indian woman gained it if she married an Indian man. That's how it worked, and that had to be cured in 1985. Why 1985? Because that's when section 15 of the charter came into effect.

The government came up with what they called the second-generation cut-off. After two generations of parenting with a non-Indian, the third generation, the grandchild, has no status. If you look at the cabinet documents from the early 80s, they actually call this a 50% blood quantum. That's what they call it. It is, in effect, really a kind of grandparent threshold. Most of the time, if you have two status grandparents, you will have status, but as you'll see, it's not 100%. You see up here on the chart how a 6(1) will always produce a 6(2). If you have two 6(1)s, they each have a 6(2), and those 6(2)s marry: boom, you've got a 6(1) again. There won't be a quiz on this afterwards.

There's a sort of strength in having 6(1) ancestors, so that—as you'll see here—you can end up with a 6(2) grandchild, but it's not 100%. It won't always be enough. If you spread them out the wrong way, and if you don't have enough 6(1)s in your family tree, you can have the same number of status grandparents and end up with no status. The fact is, as I said, it's always better to be 6(1) than 6(2). The government likes to go to court and say there's no difference between 6(1) and 6(2); they're all Indians. That's very nice for everybody except somebody who is 6(2) and is facing the prospect of having children with no right to stay on the reserve.

Here's the other thing you absolutely have to understand. I'll just go back to one other chart. In this example, that 6(1) status doesn't mean the person was born an Indian. Remember, the non-Indian woman who married in, who married an Indian man before 1985, she got status. She is as 6(1) as anyone else. The 6(1) ancestors are counted whether or not they were born Indians or whether they acquired it by marriage.

When I said the name of the game is to have 6(1) grandparents and great-grandparents, that includes women who married in, and that's what gives us the “cousins” rule that led to the McIvor case.

That's how, in a nutshell, the grandchildren of a woman who married out before 1985, under Bill C-31, under the original amendments, weren't going to get status unless the woman's children parented with Indians. If her brother married a non-Indian, however, his grandchildren would get status. His grandchildren get counted as having two status grandparents and hers don't, because she got her status back in 1985, but of course her husband stays a non-Indian. That's the “cousins rule”. That's what McIvor was about.

The government said they were solving that in Bill C-3. As they often do in the Department of Indian Affairs, however, they didn't see what they didn't want to see. They figured that, because Sharon McIvor's son married after 1985, they would only look at women who married out and whose children had their children after 1985 under the new rules. So Sharon McIvor's son had status but her grandchildren didn't.

They ignored the fact that there were generations of men and their sons and their grandsons marrying before 1985. If a man married out before 1985, and if his son then married out before 1985, he didn't have 6(2) grandchildren; he had 6(1) grandchildren. He could not have anything other than status great-grandchildren.

The comparator is Mr. Descheneaux. Mr. Descheneaux's grandmother married out, and after 1985 he was a 6(2). His children still don't have status. His great uncle would produce 6(1) grandchildren and status great-grandchildren, which Stéphane couldn't, because he traced his lineage to a grandmother who married out, not to a grandfather who married out. That's the Descheneaux part of the Descheneaux case in a nutshell. Parliament messed up. They knew exactly what they were doing. The Abenaki came before them in 2010 and pointed this out.

This is the comparator. The grandfather married out and has six status great-grandchildren. Stéphane has children without status. Under Bill S-3, they will have status. That part of the discrimination is cured by Bill S-3.

There was another case, and I won't get into it in great detail, but I want you to understand what we're dealing with. It was all patrilineal before 1985. The result was, to make a long story short, if an Indian man had a child out of wedlock before 1985, his son could be registered but his daughter could not. Post-1985, they looked at the daughter and determined that since she had only one 6(1) parent she was a 6(2). That's how we got Susan Yantha, who had a different status from her brothers. That's how the same parents could have two children, a son and a daughter, each with a different status.

I want all of you to think about the absolute absurdity of the fact that I had to go before the Superior Court and argue that this was really discrimination under the charter, when Justice Canada stood up and said it wasn't. That is how first nations and their lawyers have to spend their time. That is also cured under this bill.

However, Indian Affairs managed to mess it all up. They messed it up in the bill that was provided and tabled, because now they've made sure that if an Indian man had a child out of wedlock before 1985, the status can go all the way to his great grandchildren through his daughter, but they forgot about the fact that there were women who had children out of wedlock before 1985 who could have their...and if it could be shown that the father was non-Indian, that kid's status could be removed. Again, I won't go through the details, but to make a long story short, they were going to leave that woman's descendants in a worse position than Susan Yantha's children and grandchildren.

They actually told me in a meeting when Chief O'Bomsawin and I met with the staff of the assistant deputy minister and Mr. Reiher, “Yes, we saw that problem but we didn't think it was discriminatory. Then, you know, the Indigenous Bar Association pointed it out before the Senate. Then we decided it was discriminatory, and we fixed it.”

They said they fixed it. Then they had to come back before the Senate last month and fix it again, because they actually hadn't gone enough generations forward. That's where we are with Bill S-3. It's a patch on a patch on a patch on a patch on a patch.

They also cured this problem. I think we really don't have time to take you through it, but it has to do with these particular effects. If an Indian woman had a child by an Indian man but then her second husband was non-Indian, her children under the age of 21 by the first husband would lose status. Those children would end up disadvantaged relatives to their older brothers if those brothers were too old to have lost status. That is cured by this bill and that's all to the good.

This is the scenario that I brought up with Mr. Reiher and that he thinks is not discriminatory. I will try to take you through it extremely quickly as well. Before 1985, an Indian man could decide to enfranchise himself, his wife, and his children. This leads to the following situation, and this is a real situation in Odanak.

A woman was enfranchised before the age of 21, when her dad enfranchised the whole family. Her grandchildren don't have status. Her older sister wasn't enfranchised by their dad, because she was already married to a non-Indian, so she benefited from the McIvor decision; she will benefit from the Descheneaux amendments; and she will have status great grandchildren. This woman will not even have status grandchildren.

The department tells me that this is not discrimination based on sex. I say it is. I say it is for the simple reason that this woman's mother had enfranchisement imposed on her by this woman's father. Indian Affairs says that's okay, because if her brother had enfranchised himself and the sister-in-law, they would be in the same place.

My vision of equality is not that. If we end up with men who have privileges, but are treated no better than women who have no privileges, I don't think that is equality. The Department of Indian Affairs and Justice Canada do.

That's where we are with Bill S-3. That's the overview, and now we have this amendment from the Senate. I'm going to try to make a few relatively simple points about it.

The first one is this, and it's very important that you understand it. Here are the points I want to make. Without the amendments the Senate has brought, the registration rules under the Indian Act, the status rules, will continue to discriminate, and they will continue to violate the charter. There's no dispute about that.

The second point I want to make is that the Abenaki nation was not consulted and not engaged with on Bill S-3.

The third point I want to make is that there is no confidence among aboriginal communities about stage two.

The final point is that there is time right now to do this right.

I want to come back to those points. The first point is that there will be discrimination and the charter will be violated, and you might say they're the same thing. They're not exactly the same thing. The department has told you that the McIvor decision means that they don't have to do this or that, and that the Senate is going too far because it is going further than what McIvor said they had to do.

Let's be very clear on what McIvor said, and I'll try to do this without taking you to the finer points of the double mother rule, which always gives people a headache.

June 6th, 2017 / 9:45 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Actually, as we indicated, it's what the court has decided, plus what is clear.

In the situation of the unstated paternity, at the time of the introduction of Bill S-3, we had a court decision telling us that it was not contrary to the charter. We could not consider this an inequity or a breach of the charter. We had a court decision telling us that it was compliant with the charter.

After that, we—

June 6th, 2017 / 9:40 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

That was afterwards, yes. I'm talking about Bill S-3 as it stands.

June 6th, 2017 / 9:40 a.m.
See context

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

Martin Reiher

We actually included in Bill S-3 an amendment to address the unstated paternity issue.

June 6th, 2017 / 9:40 a.m.
See context

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

Martin Reiher

I would say that Bill S-3, without 8.1 and 8.2, would address known sex-based inequities.

June 6th, 2017 / 9:35 a.m.
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Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development

Martin Reiher

Thank you.

We have yet to see the options that will be developed by first nations, by indigenous peoples, and by impacted individuals, so I cannot prejudge what will happen after the process. I doubt very much that we will hear a desire to maintain the status quo. It's highly likely that the government will hear about options for reform and will look into them and come back with reports to committees first. As you know, in Bill S-3 the minister is committed not only to launch a process of consultation but also to report back to Parliament on its progress after 12 months.

Theoretically, I suppose it's possible that at the end we would be in the same place, but it's highly likely that we will have options on the table to work with and to propose reform. Of course, as was mentioned before, it's not reasonable to think that everything will be settled within 18 months and that control of this will be with first nations for the determination of their identity, etc. I think a staged response, staged reform, is highly probable, which will take a number of years to implement. At least, I think after 18 months we will have a very clear picture of the path and where people want to go.