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)

December 5th, 2016 / 3:30 p.m.
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David Taylor Executive Member, Aboriginal Law Section, Canadian Bar Association

Thank you. Good afternoon, Mr. Chair and honourable members.

I'm pleased to appear before the Standing Committee on Indigenous and Northern Affairs.

I'll give my presentation in English, but I would be happy to answer questions in French.

The CBA aboriginal law section is pleased to contribute to the Standing Committee on Indigenous and Northern Affairs' pre-study of Bill S-3's subject matter.

I would begin by recalling the words of Madam Justice Ross of the Supreme Court of British Columbia in her reasons at trial in McIvor v. the Registrar, Indian and Northern Affairs Canada:

...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children.

It is therefore not surprising that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.

One of our main points concerns the manner in which this bill was brought forward and is being considered by Parliament.

When Bill S-3 was introduced at first reading in the Senate, consultations with regard to the first phase of the government's response to the Descheneaux decision were far from over. While we understand that the Indigenous Affairs consultations regarding Bill S-3 were to conclude last Friday, December 2, it remains the case that moving forward in the legislative process while there were still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them, as required by the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the House are designed for the amendment of bills based on public feedback, the honour of the crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.

We are also concerned by clause 8 of Bill S-3, which precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal crown have been on notice since at least the 2009 decision in McIvor by the British Columbia Court of Appeal that the amendments to the Indian Act in 1985 did not entirely resolve the discriminatory aspects of the Indian status system and, in fact, created new discriminatory elements.

On this point, Madam Justice Masse held in Descheneaux:

The year is now 2015. The 1985 Act from which the discrimination arises has been in force for a little more than 30 years.

The general finding of discrimination in the 2009 judgment of the Court of Appeal for British Columbia in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished in the measures in the 2010 act. The discrimination suffered by the plaintiffs arises from the same source as the one identified in the case.

Canada was aware that work remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.

By continuing to withhold eligibility for Indian status from certain women and their descendants, government realizes a cost saving: controlling costs by having fewer members. The result of discrimination should not be an economic benefit to the government.

Removing clause 8 from Bill S-3 would change the financial incentive going forward and would send a clear message from Parliament that the government will not be given a licence to discriminate through absolution for the past consequences of its actions where government was clearly on notice through prior court decisions that its broader legislative scheme was not on sound constitutional footing.

As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of Bill S-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.

The subject matter of Bill S-3 should also be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broader review of this question.

Indeed, in the second-last paragraph of her reasons for judgment, Madam Justice Masse held:

Parliament should not interpret this judgment as strictly as it did the [Court of Appeal for British Columbia's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

Given the long history of discrimination involved in the Indian status system, the phase two process will benefit from timely parliamentary scrutiny long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.

In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory and contrary to section 15 of the charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly, the legislative process, both here and in the phase to come, should set its sights higher in an attempt to rectify the inequities that have long been identified in the Indian status system.

Those are our submissions.

Thank you.

December 5th, 2016 / 3:30 p.m.
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Gaylene Schellenberg Lawyer, Legislation and Law Reform, Canadian Bar Association

Thank you for the invitation to appear before you today on Bill S-3.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries, and academics, with a mandate that includes seeking improvement in the law and the administration of justice.

Our aboriginal law section consists of members from all parts of Canada specializing in aboriginal law. With me today is David Taylor, an executive member of that section. David will summarize some of the highlights from our brief and respond to your questions.

Thank you.

December 5th, 2016 / 3:30 p.m.
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Liberal

The Chair Liberal Andy Fillmore

Good afternoon, everyone. We'll come to order now.

This is the House of Commons Standing Committee on Indigenous and Northern Affairs. Today we're convening pursuant to Standing Order 108(2) to study the subject matter of Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration. We're meeting today, as we always do, on unceded Algonquin territory, and we're very grateful for that.

We have a very packed panel for the first hour, so we've asked our five speakers to limit their remarks to seven minutes each. That will leave 25 minutes for questions from the committee itself. I'll wave a yellow card so that speakers will know they have a minute to conclude, and then a red card to finish up.

I would ask you to do your very best to stay within the time limit in order to make sure we get some questions in and that everyone can be heard fairly. Without further ado, I'd like to introduce this panel of speakers.

First, from the Canadian Bar Association, we welcome Gaylene Schellenberg, Lawyer, Legislation and Law Reform, and David Taylor, Executive Member, Aboriginal Law Section. From the Women's Legal Education and Action Fund, we have Kim Stanton, Legal Director, and Krista Nerland, Associate at Olthuis Kleer Townshend - LLP. Appearing today as individuals are Pamela Palmater, Chair in Indigenous Governance, Ryerson University, Department of Politics and Public Administration, as well as Mary Eberts, and Ellen Gabriel.

Welcome to all of you. We're very pleased that you could join us today.

We will launch right into it with the Canadian Bar Association and its two representatives.

I invite you to share the time between you as you see fit within those seven minutes. You have the floor. Thank you very much.

Indigenous AffairsOral Questions

December 5th, 2016 / 3 p.m.
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Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

Mr. Speaker, issues of registration, membership, and citizenship go to the heart of identity in community. Bill S-3 will correct known sex-based discrimination in Indian registration. We know that a real conversation needs to happen on these issues. That is why I have committed to launching a formal consultation on registration, membership, and citizenship early next year to deal with the other issues that are not in this bill. I look forward to hearing from communities from coast to coast to coast.

I am committed to finding a real reform forward, but right now 35,000 people can get their rights if this bill goes through, and—

Business of the HouseOral Questions

December 1st, 2016 / 3:05 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, today we are continuing with opposition day. Tomorrow the House will consider the report stage of Bill C-29, the second budget bill, and it will continue studying that bill Monday and Tuesday of next week.

For the remainder of the week, we plan to call the following bills: Bill S-4, the tax conventions legislation, and Bill S-3, the Indian tax amendment, provided we get these two bills from the Senate; Bill C-25, the business frameworks bill; and Bill C-30 concerning CETA. All these bills are at second reading.

It is my hope that parties will be able to negotiate on how to proceed in advancing these very important initiatives. Something I have committed to is working well with other parties, and I will continue to do that.

November 30th, 2016 / 5:10 p.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, witnesses. It's certainly very compelling testimony.

It's interesting that we're doing what they call a pre-study. I've been here since 2008, and typically we get bills that are well through their process. A pre-study is a really interesting way to have a discussion. I'm also looking at what's happening in the Senate right now.

To be quite frank, I think everyone here had some very compelling points. Mr. Matson, you indicated very clearly that discrimination is still there, as did Ms. McIvor, and then there's the bigger picture in terms of where we go.

We've come back in 1985; we've come back in case after case. I think we need to spend phase two looking at that big picture that you're talking about.

In phase one, which we're doing right now, Bill S-3, let's get the discrimination out so that this is fixed, so that we're not back here, not spending a lot more money in courts, not repeating this process that we've always done.

Having said that, with what has happened in the Senate and with what has happened here, I want to table my motion right now, which really is saying that the minister should ask for a bit of an extension and get this one right. I will just read it again:

That, in light of recent testimony the Committee has heard during its study of the subject matter of Bill S-3, An Act to Amend the Indian Act (elimination of known sex-based inequities in registration), the Committee: 1) suspend its study in recognition of the Bill's technical flaws and inadequate First Nations consultations; 2) resume its study once the Government of Canada has consulted with involved parties and ensured there are no technical flaws; 3) recommend that the Government of Canada request an extension on passing legislation from the Superior Court of Quebec, as recommended by Assembly of First Nations National Chief Perry Bellegarde; and that the Committee report this recommendation to the House.

Obviously we can debate this, but for me, the testimony is clear. We have to spend a bit of time fixing this. Phase two needs to be really focused on solving the big picture issues. Let's get discrimination out, and let's take our time to do it right.

November 30th, 2016 / 5:10 p.m.
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Union of B.C. Indian Chiefs

Sharon McIvor

I'm unclear about what they want to consult about. Perhaps it's membership. I don't know.

I know that they don't have the right to consult about discrimination. No one has the right to say it's okay to discriminate. They did it for Bill C-31. They did it for Bill C-3, and it looks like it's their intention to do it for Bill S-3. Whoever they consulted is saying that it's okay to discriminate. We don't want any more. There are some that want more members, as well, but the consultation has never, ever been sufficient. I cannot think of any consultation in the last 50 years that has resulted in anything. You go and talk, and you do what you want to do anyway.

My immediate concern with Bill S-3 is that it seems that instead of taking out all the known discrimination in the Indian Act, the minister has now decided, “Well, we won't take it all out, even though we know it's there, and we'll consult with people about how we're going to do it.” It doesn't make any sense to me.

I'm not a big fan of consultation in this kind of legislation.

Yes, when you're looking at land, resources, all those kinds of things, absolutely. But on whether or not you should take discrimination against an identified group out of the Indian Act, consultation won't get you anywhere. You can't do it. You cannot consult and get somebody's agreement and then continue to discriminate, and then continue to discriminate while you're consulting.

November 30th, 2016 / 5:05 p.m.
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Liberal

Joël Lightbound Liberal Louis-Hébert, QC

Thank you, Mr. Chair.

I would like to welcome all the witnesses appearing today.

Since I will be speaking French, I suggest that you use the earpiece for simultaneous interpretation.

Let's talk about Bill S-3, which is a government bill.

Based on the various testimony we have heard, it seems that each of you has reservations and considers it to be imperfect. This bill does all the same respond to a Superior Court decision. I understand that this is not our ultimate objective, but it is at least a first step.

I would like to hear your views on what the second phase of the government consultation process should include and what the result should be. The minister has pledged to hold this consultation to guide her, and the committee is meeting today to hear your views.

Mr. Matson, you may begin and give us your opinion.

November 30th, 2016 / 5 p.m.
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Conservative

David Yurdiga Conservative Fort McMurray—Cold Lake, AB

I'd like to welcome our witnesses here today. Your testimony will be instrumental in our moving forward on Bill S-3.

It seems to me that the Bill S-3 consultations were very limited. Some were consulted and some were not, which poses a problem. If we want to get a real perspective of what first nations need and how they want to proceed, it seems to me that it should be coming from first nations, not from us.

If we had to change Bill S-3 to make it work, what changes are necessary so it will be all-inclusive and get rid of some of the issues we're hearing today? What changes would you like to see in Bill S-3?

We'll start with whoever wants to answer that, or I can hear from each individual witness.

November 30th, 2016 / 4:55 p.m.
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Liberal

Don Rusnak Liberal Thunder Bay—Rainy River, ON

Thank you for appearing before this committee today.

I tend to agree with a lot of what was said here today, but what I struggle with is that this is a very large country and we're dealing with this one issue as a pan-aboriginal issue because of the Indian Act.

The Indian Act was designed to control indigenous people across this country; we all know that. It's done a very good job of destroying communities. It destroyed my community. I'm the only first nation member of Parliament from Ontario.

From sitting here listening to witnesses testify either way about this piece of legislation, and other things we've heard here, the one thing that's clear to me is that certain communities are at different levels in terms of governing and in terms of capacity to control their own destiny.

This is my worry, and this is why I see the need for this change to the Indian Act. There are still communities that are so dependent upon the Indian Act that these changes will hopefully help these people—and hopefully we'll get the numbers from the department about where these people are coming from—so that they don't slip through the cracks.

They're at the very bottom of this country, and they need the support that comes from the Indian Act, because they don't have anything else. That's the reason I see the need for these changes, so that we bring them in and they have those benefits and protections.

But that's not what I see, going forward. I see our communities—and MP Gary Anandasangaree and I were with the Mississaugas where they signed an accord to co-operate and negotiate with the government as a nation. That's where we need to be going. Having an agreement over land, resources, and how that relationship is going to look is what first nations and other indigenous communities across this country, in my view, need to move towards.

But right now we're discussing Bill S-3, and of course your community is in a different position. It's great to hear that perspective at this committee, but what would you suggest we do as the government in respect of this legislation, understanding that it's not going to affect just your community but is going to affect all those other communities?

I'm not saying that this is right. We have to get away from the pan-aboriginal approach to dealing with communities, because the Mohawks are very different from the Cree in northwestern Ontario or different from the Tsleil-Waututh in Vancouver. The way I explain it is that in Europe people in northern Poland do not enjoy and like the same things and don't have the same culture and language as people in southern Spain, although they're all Europeans. We need to do things differently, and dealing with it under one department and dealing with our indigenous people across this country as a homogeneous society or cultural group is wrong.

What, given the situation we're in, would you suggest we do with this piece of legislation?

November 30th, 2016 / 4:50 p.m.
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As an Individual

Jeremy Matson

As an individual, I wasn't privy to any information about nation to nation. I belong to a nation and I have a relationship with my nation. Just as I have a relationship with the crown and with section 6 of the Indian Act, I have my own relationship with my own nation.

Also, every family within the Squamish Nation is affected by Bill C-31 and Bill C-3 and now Bill S-3, so it's important to communities such as mine.

November 30th, 2016 / 4:50 p.m.
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Conservative

Arnold Viersen Conservative Peace River—Westlock, AB

My question was whether you think the way the government has handled Bill S-3 is consistent with the mandate letters that said to build a nation-to-nation relationship.

November 30th, 2016 / 4:40 p.m.
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Conservative

Arnold Viersen Conservative Peace River—Westlock, AB

Were you aware that S-3 was being drafted?

November 30th, 2016 / 4:40 p.m.
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Chief, Mohawk Council of Kahnawake

Chief Kahsennenhawe Sky-Deer

I find it very surprising that Chief Rick O'Bomsawin—you're familiar with him—didn't know about it, because I even questioned him when they came to present in Montreal with regard to the S-3 amendments that were going to be coming. I asked him point-blank. I said, “Chief, did you consider how pushing forward this legislation all the way to the Supreme Court was going to impact first nations across Canada?” He looked at me and said, “I knew you were going to put me on the spot.” I said, “Well, what are your thoughts?” He said, “Sometimes what your own principles and thinking are might not be the same as what the community's are.”

I looked at him, puzzled, and it got me thinking. It's funny that Kahnawake are called the “counting Indians” because we tend to count blood quantum, and how native you are. The reason for that is, I think, historically, our people depended on going to work in the United States, and the United States has criteria about who could live and work in the United States, the Jay Treaty. There was a requirement to be 50% blood quantum. For us, it was very important to maintain that. I think that persevered over time into our laws. When you look at a community like Odanak, there's no criteria of who could be identified in that community as being Ojibwa or Abenaki.

November 30th, 2016 / 4:35 p.m.
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Conservative

Arnold Viersen Conservative Peace River—Westlock, AB

Last week, on Monday, on November 21, we heard from the litigants in the Descheneaux v. Canada case. They were some of our first witnesses on Bill S-3. Mr. Descheneaux and his chief were here, and they told us that they hadn't been consulted at all on the drafting of this bill, even though they were more than willing to work with the department. They in fact told us that the first they had learned about the bill was when we called them to come to testify before this committee.

I note that the minister has since apologized to them, saying that we probably should have worked together to draft a new bill.

I was just wondering whether you have any comments about engagement on this bill. Were you engaged at all prior to this? As well, do you think that not engaging with the litigants in the case was adequate?

I'll just open it up, starting at one end and working across.