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

Status

This bill has received Royal Assent and is, or will soon become, law.

Summary

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

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

Elsewhere

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

Votes

Dec. 4, 2017 Passed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
Dec. 4, 2017 Failed Motion respecting Senate amendments to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (amendment)
June 21, 2017 Passed Concurrence at report stage of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)
June 21, 2017 Failed Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) (report stage amendment)

Indian ActGovernment Orders

June 13th, 2017 / 7:55 p.m.
See context

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

Mr. Speaker, first, I congratulate the minister for her leadership on many files in indigenous affairs, but specifically, for withdrawing the appeal by the previous federal government against the Quebec Court of Appeal so that we can find solutions to this.

There are impassioned arguments for a much broader reform for registration and membership under the Indian Act. Many argue that Bill S-3 would not go far enough. I know this is only the first stage of our response, the government's response, to the Descheneaux decision. Would the minister explain what is anticipated in stage II of the plan?

Indian ActGovernment Orders

June 13th, 2017 / 7:30 p.m.
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Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

moved that Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be read the second time and referred to a committee.

Mr. Speaker, acknowledging that we come together on the traditional territory of the Algonquin people, I stand here to speak to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

On August 3, 2015, the Superior Court of Quebec, in its decision in the Descheneaux case, ruled that key registration provisions of the Indian Act unjustifiably violate equality rights under section 15 of the charter, and declared them of no force and effect.

The court suspended its decision for a period of 18 months until February 3, 2017, to allow Parliament time to make the necessary legislative changes. That decision was appealed before the court before the current government took office, but that appeal was withdrawn by this government in February of 2016.

Bill S-3 is the first stage of the government's two-staged response to the Descheneaux decision, and needed broader reform of registration and membership provisions within the Indian Act.

I will take this opportunity to thank the Standing Senate Committee on Aboriginal Peoples for its thorough and invaluable work under tight court mandated deadlines. I also want to thank the members of the Standing Committee on Indigenous and Northern Affairs for their understanding regarding the urgency surrounding this bill and for their work during pre-study of Bill S-3.

In keeping with the recommendations of the standing Senate committee, on January 20, 2017, the government sought and was granted a five-month extension of the court's ruling to permit more time to consider Bill S-3. Through the additional time provided by this extension, and the diligent work of the Senate committee, there have been numerous improvements made to the original version of Bill S-3, which have been welcomed and supported by the government.

The bill now proactively addresses further groups impacted by sex-based inequities which were identified by the Indigenous Bar Association. The recent decision by the Ontario Court of Appeal in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.

In addition, I acknowledge the understandable skepticism of first nations and parliamentarians about whether the second stage of registration and membership reform would actually lead to meaningful change. That is why the government proposed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to update members and all Canadians on the progress toward broader reform. Three separate reports to Parliament are now in this legislation to hold the government to account regarding the second stage process, focused on broader reform of registration and membership provisions in the Indian Act.

The bill now would require the government to launch the collaborative stage II consultation process on issues within six months of the royal assent of Bill S-3. The bill would also require that as part of that process, the government consider the impact of the charter and, if applicable, the Canadian Human Rights Act. The requirements for the government to report to Parliament on the design of the collaborative consultation process within five months of the royal assent of Bill S-3, and to report to Parliament on the progress of that process within 12 months of the launch of those consultations are also included in the legislation.

The second report must also include details regarding the 1951 cut-off, the second generation cut-off, the categories for Indian registration, enfranchisement, adoption, and unstated/unknown parentage.

The bill also includes a three-year review clause regarding the amendments to section 6 of the act enacted by Bill S-3. The objective of this review is to determine whether all sex-based inequities have been eliminated. The bill also includes a declaration by the government regarding recommended amendments to the Indian Act.

I am committing, on behalf of the government and personally, to co-designing a process with first nations including communities, impacted individuals, organizations, and experts to deliver substantive registration reforms, including potential future legislative changes.

I have spent decades working on the issue of meaningful consultation, and finding ways to ensure that consultation incorporates voices beyond the usual suspects and provides participants with sufficient resources to engage. I can assure members and all Canadians of the government's absolute commitment that this will be a process where the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.

In stage II, charter compliance will be the floor, not the ceiling, and there may very well be areas of needed reform where no consensus is achieved. The government has made it clear that consensus will not be a prerequisite for action.

However, if the government is to act in the absence of consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation, and credible evidence about the potential impacts of reform. We must develop reforms which can be implemented in a way that ensures we have integrity in the system. Balancing the needed time to engage impacted people, through the parliamentary process, has allowed for only two truncated three-month engagement periods, even with the extension granted by the court.

There was not enough time to hold significant consultations on reforming Indian registration and band membership under the Indian Act.

Because of the tight court mandated deadline, the opportunity for consultations was limited, and I think it is important to talk about the intended scope of Bill S-3.

The goal of Bill S-3 is to remedy known sex-based inequities relating to registration in the Indian Act, which fall short of charter compliance based on the current state of the law. This is not restricted to situations where a court has already ruled, but extends to situations where the courts have yet to rule, and where we believe a sex-based charter breach would be found.

However, the government has been clear that in circumstances where the courts have ruled policies to be charter compliant, or where situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultation.

These issues have to be addressed during the second phase of the reform of registration and band membership under the Indian Act. It is important to note that this second phase will be a collaborative process.

The government must develop and initiate consultations on the broader reform within six months after the passage of Bill S-3, as stated in the bill.

Despite supporting numerous amendments proposed and adopted by the standing committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment is to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985, of individuals entitled to status under previous Indian acts, including those who lost that status for whatever reason. In simple terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.

Although the simplicity of this approach may seem appealing, I would ask all members to consider this position cautiously. While I believe the amendment was put forward with the best of intentions, the way the clause is drafted creates ambiguity as to whether or not it would do what it is apparently intended to do. This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the Senate committee, and by the Indigenous Bar Association at the House committee.

In fact, Drew Lafond of the IBA testified about the wording of the clause, noting, “We cautioned against simply inserting that in its current form...You run into technical problems with the language by simply inserting that into a bill because you run the risk of there being inconsistencies or some unintended consequences with that.

If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non sex-based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the British Columbia Court of Appeal in the McIvor decision, where it was clear that this remedy is not required to make the provisions charter compliant.

The Supreme Court of Canada then refused leave to appeal that decision. This does not mean the government will not consider this as a potential approach in the context of a policy decision to address broader registration and membership reform. The government is open to considering this approach through stage II, and may be where it ends up, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the practical implications of implementing such an approach.

While arguing in the Senate committee for the need for further engagement on this clause, Senator Sinclair made that point noting: “The question becomes what impact will that have upon First Nation government. That is not a question we have the answer to...”

While the government is initiating that work now, preliminary estimates are not based on reliable data, and contain huge ranges of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest either end of the spectrum is what the likely impact would be, but to note the huge range of current estimates and the need for better data.

In addition to the current lack of understanding of the practical implications of such an approach, it seems obvious that the necessary consultations were not held.

Many communities expressed concerns that this approach could have serious repercussions for them.

Communities could find themselves with huge numbers of new members with little or no connection to their community and without meaningful prior consultation. I want to understand the perspectives and concerns of vast numbers of potentially impacted people who have not yet been asked their opinion on the “6(1)(a) all the way” clause.

I want to be clear that I stand in solidarity with the indigenous women who have been fighting on all of these issues for decades. I hear their pain, the hurt of receiving a letter in which they were told that their marriage made them a white woman.

Whether courts have determined these remaining issues as charter issues or not, I want to be part of fixing these ongoing problems. I want to know from the people who have been advocating and studying these issues for a very long time whether this approach is the one we should take and if so, whether this clause is the best way to implement that approach.

We must be careful not to repeat the mistakes of the past where, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire, unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right. The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed.

As many members already know, the deadline for passing this bill is July 3rd.

If we do not have legislation passed that addresses the Descheneaux decision before July 3, the section struck down by the court will be inoperative in Quebec. The practical implication would be that these provisions will 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 under the provisions struck down by the Descheneaux decision. These applicants would then be unable to access benefits that come with registration and membership. In addition to up to 35,000 individuals waiting for their rights to be granted through Bill S-3, we cannot lose sight of the thousands of individuals who would not be able to register if the court deadline passes and the provisions noted above become inoperable.

I urge all members to act responsibly and to take into account the urgency with which we must act to pass this bill.

I ask all members to send the bill to committee swiftly so that it can be amended and sent back to the Senate in a form that delivers on the rights of 35,000 people now, and allows the government to begin the broader reform in a way that respects our duty to consult, international documents such as the United Nations Declaration on the Rights of Indigenous Peoples, and the need to get this right through the stage II process.

If this clause is interpreted in a way that implements the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non-sex based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the B.C. Court of Appeal in the McIvor decision where it was clear that this remedy was not charter compliant.

I ask again that the House send the bill to committee now so that we can amend it. Then we can begin this very important work of stage II where we can get rid of all the inequities in the Indian Act, once and for all, and finally get this right.

Indigenous AffairsOral Questions

June 9th, 2017 / 11:35 a.m.
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Labrador Newfoundland & Labrador

Liberal

Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs

Mr. Speaker, my colleague knows very well that we are committed to ending sexual discrimination against indigenous women. He also knows that it is necessary to pass Bill S-3 in the House of Commons in order to ensure that thousands of people who are currently being denied their rights in Canada gain rights.

When members opposite were in government, they fought indigenous women on sexual discrimination for years in the courts. Our government is acting on it. We have withdrawn the appeal submitted by the former government and we are going to do the right thing.

Indigenous AffairsOral Questions

June 9th, 2017 / 11:35 a.m.
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Labrador Newfoundland & Labrador

Liberal

Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs

Mr. Speaker, fighting discrimination is a priority for our government and ending sexual discrimination against indigenous women is a priority as well. We are tackling this on two fronts.

The first stage is Bill S-3. That bill will take an approach to reform registration, membership, and citizenship in partnership with indigenous people. The second step that we have adopted will be to immediately engage in formal consultations with indigenous groups and those impacted by discriminatory—

Canada Elections ActGovernment Orders

June 8th, 2017 / 9:05 p.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Mr. Speaker, in June, typically we sit late to deal with very important legislation like budget implementation acts, and gender equity, which we have not talked about yet, Bill S-3, that has come from the Senate. Instead tonight, we are sitting here until midnight dealing with two problems that the Prime Minister created himself. We just finished debating one bill in terms of how he had to create equity among his ministers because he said he would have an equitable minister situation, but he actually did not.

We are now debating a bill about political fundraising that is a problem he created but he has not fixed with the bill. It is a bit of razzle-dazzle to say we are going to be more open and transparent, but the bottom line is that he is still going to have those cash for access fundraisers, and that is what the problem was.

I can say with certainty that former prime minister Stephen Harper never had cash for access fundraisers. If there were ever a time when ministers by mistake ended up at an event with stakeholders, they immediately left and paid back the money.

The Liberals have been shameful in their cash for access, and they have introduced the bill and are trying to bamboozle the public by saying they are doing a better job and are going to be open and transparent. They have not fixed the problem, and they should be ashamed.

Business of the HouseGovernment Orders

June 8th, 2017 / 3:25 p.m.
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Waterloo Ontario

Liberal

Bardish Chagger LiberalLeader of the Government in the House of Commons and Minister of Small Business and Tourism

Mr. Speaker, this afternoon, we will continue the debate we began this morning on the NDP opposition day motion.

This evening, we will return to Bill C-24, an act to amend the Salaries Act and to make a consequential amendment to the Financial Administration Act. Following that, we will begin second reading of Bill C-50 on political financing.

Tomorrow will be dedicated to debating Bill C-44 on the budget.

As for next week, our hope is to make progress on a number of bills, including Bill C-6 concerning citizenship; Bill C-50 respecting political financing; Bill C-49, transportation modernization; and Bill S-3, amendments to the Indian Act.

Finally, next Monday, Tuesday, and Wednesday shall be allotted days.

As the member very well knows, I always look forward to working with all members. I look forward to continuing our conversation.

June 8th, 2017 / 11:40 a.m.
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Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

Thank you to the minister and to the staff for all of you participating in this historic hearing about Bill S-3. I appreciate your attention and your co-operation, our sincere thank you, meegwetch.

For the committee members, I would just like to do a Bill S-3 reminder, a reminder that if members are wanting to prepare and submit amendments to get in touch with legislative counsel as soon as possible. If the committee proceeds clause by clause on Bill S-3 on Thursday, the 15th, which is in our schedule, I would ask that members submit their final amendments to the clerk by Tuesday, June 13. You can also do it on the floor but it's better if it's in a more formulated process so that the comprehensive packages can be prepared for our Thursday meeting.

Cathy.

June 8th, 2017 / 11:40 a.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you for that clarification.

My next question I want to ask again, and it's my third time asking, are you confident that Bill S-3, that you are proposing the committee accept, will eliminate all known sex-based inequities in the act?

June 8th, 2017 / 11:35 a.m.
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Liberal

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

Absolutely. Nathalie is the registrar, and they are in the process of hiring extra resources to deal with this group of people who will receive status because of Bill S-3.

Nathalie, did you want to add something?

June 8th, 2017 / 11:30 a.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

That's not a lot of time.

When is phase two going to be rolling out? Obviously, we want to get Bill S-3 through the House shortly. When does phase two start?

June 8th, 2017 / 11:15 a.m.
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Liberal

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

The issue, Romeo, for even the early conversations, is that there are other inequities in the Indian Act, like enfranchisement. There are a number where we will have to get the data, and we'll have to figure out how we implement this. That is what phase two is about. We want to get rid of all of the inequities in the Indian Act. These in Bill S-3 are the ones the court told us to do, and we did even more than the court asked.

Now we have to go on and get rid of the rest of them, and I am committed to doing that.

June 8th, 2017 / 11:05 a.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, Madam Chair.

Thank you, Minister, for joining us today to talk about a very important piece of legislation.

I want to point out first that it has been a very bizarre process. Typically in House of Commons committees we will study the bill after it's been referred from the House. In this case, way back in November, we supported it to do our due diligence, recognizing your Supreme Court of Canada deadline, and looked into a prestudy while the committee was looking at it. We're now doing another prestudy, and I understand there's a rush to clause-by-clause. Also, there hasn't been one minute's worth of debate in House. I do want to flag that as certainly a very unusual circumstance in terms of my experience as a parliamentarian since 2008.

Having said that, I have some significant concerns that relate to what was said back in November and what we're hearing now. I want to go back to November 21. I asked the departmental officials if they were confident that Bill S-3, as it stood on that day, “would eliminate all known sex-based inequities”. I was told on the record that they were “confident”.

The official said:

In terms of your specific question for sex-based discrimination, yes, this bill is addressing everything that is wrong.

That is what was told to us then.

Today, we see a sort of amended version come back. We have, of course, the Gehl case and some other changes that have been made, and you're talking about making changes based on what the Indigenous Bar Association told you about sex-based inequities.

On Tuesday, I said:

The definition of “known” is when the courts have directed, as opposed to “known” by looking at the issue broadly?

At that time, Mr. Reiher said:

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

To me, way back in November, you knew about the court case that was proceeding. You knew about these issues. When I asked again on Tuesday if this is dealing with “all sex-based inequities”, how can I have confidence in the answer that it is, when clearly I was given the same answer in November and we're dealing with changes? Indeed, to me, it's inconceivable that you knew about one case going through the courts and it wasn't dealt with.

Perhaps you could explain to me how we can have confidence now when in November we were given the same information and it was clearly wrong.

June 8th, 2017 / 10:50 a.m.
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Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

Thank you, Madam Chair. It's great to be back at committee, and thank you for inviting me here to talk about Bill S-3, as we acknowledge that we come together on the traditional unceded territory of the Algonquin people.

Thank you also for understanding the urgency of this bill, and also for your work during this prestudy.

As you know, in response to the recommendations of the standing Senate committee, the government sought and was granted a five-month extension to consider Bill S-3. Through the additional time provided, there have been numerous improvements made to the original version of Bill S-3, which the government has welcomed and supported. The bill now proactively addresses further groups impacted by sex-based inequities, which were identified by the Indigenous Bar Association. The recent Ontario Court of Appeal decision in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.

In addition, I acknowledge the understandable skepticism of first nations, impacted individuals, and parliamentarians about whether the second stage of registration membership reform will actually lead to meaningful change. That is why in this bill we are proposing a series of amendments to report back to Parliament on a number of occasions, in a number of ways, to update you and all Canadians on our progress towards broader reform. Three separate reports to Parliament are now in this legislation.

On the stage two process, I need you to know that I am committing personally, on behalf of the government, to co-designing a process with first nations, including communities, including also the impacted individuals, organizations, and experts, to deliver substantive registration reforms, including potential future legislative changes. This will be a process in which the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.

I want to be clear that in stage two, charter compliance will be the floor, not the ceiling, and there may well be areas of needed reform on which there is no consensus to be achieved. The government has made it clear that consensus will not be a prerequisite for action. However, if the government is to act absent consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation engagement, and credible evidence about the potential impacts of reform.

Balancing the needed time to engage impacted people with that for parliamentary process has allowed only two truncated three-month engagement periods, even with the extension granted by the court.

Given the context of the limited engagement possible within the timelines imposed by the court, I think it’s important to address the intended scope of Bill S-3.

The goal of Bill S-3 is to remedy the known sex-based inequities relating to the registration in the Indian Act, which falls short of charter compliance.

This is not restricted to situations in which a court has already ruled but also extends to situations in which the courts have yet to rule but in which we believe a sex-based charter breach would be found. However, the government has been clear that in circumstances in which the courts have ruled that policies are charter compliant, in which situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultations, as is stated in the UN Declaration on the Rights of Indigenous Peoples.

Despite supporting numerous amendments proposed and adopted by the Senate committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment to clause 1 of Bill S-3 would seem to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985 of individuals previously entitled as Indians under previous Indian Acts, possibly back to 1876. In simpler terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.

While I believe this amendment was put forward with the best of intentions, the way the amendment is drafted creates ambiguity as to whether it would have the intended effect.

This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the committee and by the Indigenous Bar Association when it testified before this committee. If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities well beyond those that are sex-based.

The government is open to considering this approach through stage two, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the actual practical implications of implementing such an approach. While the government is initiating that work now, preliminary estimates are not based on reliable data and contain huge ranges of numbers of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest that either end of the spectrum is what the impact would be but to note the huge range of current estimates and the need for better data.

In addition to the current lack of understanding of the practical implications of the approach, it’s clear that the necessary consultation hasn’t occurred.

This clause may have profound impacts on communities, which could find themselves with huge numbers of new members with little or no connection to their community and without any meaningful prior consultation. I want to understand the perspectives and concerns of the vast number of potentially impacted people who have not yet even been asked their opinion on “6(1)(a) all the way”. This particular clause was not part of any prior consultation.

I want to be clear: I stand in solidarity with the indigenous women who have been fighting on these issues for decades. I hear their pain and hurt from having received a letter in which they were told their marriage made them a white woman. Whether these remaining issues are charter issues or not, I want to be part of fixing these ongoing problems. But we must be careful not to repeat the mistakes of the past, whereby, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire and unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right.

The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed. As many of you may be aware, the court deadline for this legislation is July 2.

If, by July 3, we don’t have legislation passed that addresses the charter compliance issues outlined in the Descheneaux decision, the clauses struck down by the court will be inoperative in Quebec.

The practical implication would be that these provisions would then become inoperative within Canada: 90% of status Indians are registered by the federal government under the provisions that would be inoperable. In addition to the up to 35,000 individuals waiting for their rights to be granted through Bill S-3, 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.

In conclusion, I ask you to vote against proposed paragraph 6(1)(a)—the “all the way” clause—and send this bill back to the Senate in a form that respects our duty to consult and allows us the time, through stage two, to finally get this right.

June 8th, 2017 / 10:40 a.m.
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Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual

Dr. Pamela D. Palmater

Definitely, that clause should be deleted. We also recommended that the same section in Bill S-3 be deleted. It acts as an incentive to allow the government to continue to discriminate with impunity until they choose to address it or are forced to address it on their good old time. In my submission, I highlight that. I can resubmit it here to say specifically that it needs to be deleted, because they all know that it's discrimination.

June 8th, 2017 / 10:35 a.m.
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NDP

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

Thank you, Madam Chair.

Welcome, and thank you to all of you on this panel. I appreciate very much your words.

I want to start with something that you asked, Sharon. In your letter to the senators, you talked about the concerns raised by communities on the potential impacts of paragraph 6(1)(a) on the way. You said the following in one of the paragraphs:

As I have explained in the past, I take fundamental exception to this argument. Indian bands and communities have no legitimate say in whether the Government of Canada continues to discriminate against me and other Indian women because of our sex. The Government of Canada has an obligation under constitutional and international law and a fiduciary duty not to discriminate on the basis of sex, whether Indigenous bands and communities agree or not. By now most Indigenous bands and communities do not wish to see discrimination on the basis of sex continue.

In your opening remarks you talked about the people you represent, that you're not here only as an individual. You talked about the other women you represent here, which is pretty legitimate, in my view.

Then you asked in your remarks, speaking to us, who we represent, who we speak for, which is, I think, the fundamental question here. Certainly as a member of Parliament I represent my constituents, but as a member of Parliament and as a legislator I also speak for the rule of law. I have a fundamental duty as a member of Parliament to uphold the rule of law. What does that mean? It means respecting the Constitution. In our Constitution is the Charter of Rights and Freedoms and section 35 on inherent rights. That's what we are here for. So thank you for asking that question.

Pam, you're right in saying that we shouldn't even be here discussing this. I absolutely agree with that. That is the reason for my total, absolute, and profound disdain for the Indian Act. It is inconsistent with the fundamental human rights of indigenous peoples of this country, and it shouldn't be there. I have expressed that. Whether it's in our Constitution or in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples, those rights are inherent. They exist because we exist as indigenous peoples. I think that should be our starting point all the time, whether we discuss policy or legislation.

My question is fairly simple. You're recommending that we support Bill S-3 as a committee and recommend that Parliament adopt this legislation. I agree with that as well. I asked a question previously of NWAC, on Tuesday, and also of the Quebec Native Women’s Association, about clause 10. That's the “no liability” clause in Bill S-3, which in my view is problematic. With this clause, we are essentially asking this committee and Parliament to justify past discrimination and past violations of human rights.

I want to hear from each and every one of you on this issue. What would you recommend with respect to clause 10 in particular?