Bill S-3 (Historical)

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

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

The House proceeded to the consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as reported (with amendment) from the committee.

Speaker's Ruling

[The Assistant Deputy Speaker, Carol Hughes]

Motions Nos. 1 to 4 will be regrouped for debate and voted upon according to the voting pattern available at the table.

The hon. member for Saanich—Gulf Islands has informed the Chair that she does not wish to proceed with Motion No. 1.

Motions in Amendment

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

moved:

Motion No. 2

That Bill S-3, in Clause 2, be amended

(a) by adding after line 4 on page 2 the following:

“(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f), as each provision read immediately prior to April 17, 1985;”;

(b) by adding after line 18 on page 5 the following:

“(4.1) Section 6 of the Act is amended by adding the following after subsection (1):

(1.1) The purpose of paragraph (1)(a.1) is to entitle to registration under paragraph (1)(a) those persons who were previously not entitled to registration under paragraph (1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985.”

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

, seconded by Mr. Beaulieu, moved:

Motion No. 3

That Bill S-3, in Clause 2, be amended

(a) by adding after line 4 on page 2 the following:

“(a.1) that person was born prior to April 17, 1985, and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f), as each provision read immediately prior to April 17, 1985;”;

(b) by adding after line 18 on page 5 the following:

“(4.1) Section 6 of the Act is amended by adding the following after subsection (1):

(1.1) The purpose of paragraph (1)(a.1) is to entitle to registration under paragraph (1)(a) those persons who were previously not entitled to registration under paragraph (1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985, including, in particular, persons who were not entitled to be registered on the ground that

(a) they were female persons who were married to a person who was not registered;

(b) they were persons whose mother was registered but whose parents were not married to each other at the time of their birth;

(c) they were female persons whose father was registered but whose parents were not married to each other at the time of their birth; or

(d) they were female persons who were married to a person who was enfranchised under this Act as it read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter.”

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

moved:

That Bill S-3 be amended by deleting Clause 10.

Madam Speaker, [member spoke in aboriginal language]

[Translation]

First, I could not help reiterating my disappointment in the Speaker's ruling on the question of privilege raised by the member for Winnipeg Centre. I am going to accommodate the House and repeat my message in both official languages.

It is all the more disappointing that it has been decided, with unprecedented and delicate irony, on the eve of National Aboriginal Day, that I will no longer have the right to speak my own language here in the House of Commons. This is frustrating, not to say insulting, because my language has been spoken for 7,000 years. It was spoken before a word of French or English was ever spoken in this country that we now call Canada.

I am going to accommodate the House.

This afternoon, the Speaker rendered his ruling on the question of privilege that was raised by the member for Winnipeg Centre, which is extremely disappointing, especially on the eve of National Aboriginal Day.

On the very eve of National Aboriginal Day 2017, in this country that you now call Canada, I am told that there are only two official languages in this place, and that I cannot speak the language that has been spoken in this country, on this territory, for the last 7,000 years, even before a single word in English or French was heard in this place. In this country, that you now call Canada, I am told that I cannot use my language. Allow me to express my disappointment.

Tomorrow is a sacred day for all indigenous peoples in this country. It is so sacred. However, hearing this ruling from the Speaker was the most terrible thing I have heard in this chamber in the six years that I have been sitting in this place. In fact, if members want to know, the words in Cree for the Speaker of the House is [Member spoke in Cree] which means “the boss of those who speak in the House”.

However, I rise again on Bill S-3, which is a bill that should eliminate any gender inequities in the Indian Act.

In doing so, I need to refer to a couple aspects of where we are at this moment as we speak. As we know, there were important amendments that stemmed from the work of the Senate, important amendments that not only attempted to respond to the Quebec Superior Court ruling in the Descheneaux case, but also addressed the other inequities and discriminations that exist under the Indian Act.

That was the purpose of the amendments submitted by the Senate. Unfortunately, the majority Liberal members of the Standing Committee on Indigenous and Northern Affairs decided that those amendments were unacceptable. That is very unfortunate, because discrimination in this country should not even be allowed in 2017. That is so unjust. That is one aspect that I will be talking about in the remaining time I have.

There is also the aspect of the liability of the crown, which needs to be addressed. It is one of the most important calls to action of the TRC. It is number 26 of the TRC which deals with this aspect. Again, it is a provision that is included in the amendments that are before us. I believe it is a proposition to accept human rights violations that were done in the past and accept them in 2017. In all conscience, I as an indigenous person will never accept that proposition. We cannot justify past wrongs, past human rights violations in this place in 2017. Wrongs of the past are wrongs. We cannot say today to forget about them and move on. That is not how it works.

The other aspect I would like to address in the couple of minutes I have left is the fact that the government is telling us to trust it, that there is a second phase coming up, and it will deal with the other concerns that we are talking about six months after this bill is ratified by the Senate. Again, who else is asked that their human rights be delayed once again? Indigenous women in this country have waited for so long. Now we are asking again to do away with their human rights, that we will deal with them later on. That is absolutely unacceptable. On this side of the House, that cannot be accepted.

Let me quote one of our expert witnesses who came before us, Pam Palmater. She had this to say to our committee:

How many more times are you going to require that indigenous women spend their entire lives trying to get equality, in a country where equality is actually the law?

We do not have a choice here. This issue should in fact be moot. There is a very clear message here. The fact the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism and racism is in this country, and especially for indigenous women.

The provisions that were truncated from the proposed Senate amendments were once accepted by both the Minister of Indigenous and Northern Affairs and the Minister of Justice. In fact, this is what the Minister of Justice said to Parliament back in 2010. She insisted that Parliament eradicate discrimination wherever and whenever possible. Now she has changed her mind. The proposition that I have before us is the very minimum that we need this House to adopt.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Madam Speaker, I would like to thank the member for Abitibi—Baie-James—Nunavik—Eeyou for his work on this file. I have worked with him on committee in the previous Parliament. I remember his eloquent words as a survivor of residential schools, and I listened to his eloquent words again today in three languages, which we appreciate here because of the work he is doing with respect to languages. Once a language is lost, we know that it is lost forever. Therefore, I hope we can all work together in this place to find solutions to the issues that he has raised.

I want to ask the member a question with respect to the decision by the government not to seek an extension of the July 3 deadline for the implementation of this bill, when it was offered by the court, and when the plaintiff had gone back to court to seek an extension on behalf of the government. Could he comment on the failure of the government to seek that extension, and what are his views with respect to that decision?

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

Madam Speaker, what I understand from what is going on here is that we are heading toward a battle between the Senate and the House as we speak, because this is what the Senate wants, but it is not what the government wants. Second, the government has botched the obligation that we have to correct the Indian Act. The Liberals did not move on this after they were elected. They waited 18 months before doing anything about it, and here we are today hard-pressed to adopt what they think should be adopted.

Finally, I know that hearings were held yesterday and today, and that the Quebec Superior Court dismissed the motion to extend Parliament's deadline for eliminating sex discrimination. However, the judge, Chantal Masse, emphasized that she remains available to hear another motion for an extension before the deadline of July 3. That is important to know, because what we have before us as we speak, which was proposed by the current majority government, is a botched proposal, and we need to start over again.

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

Madam Speaker, I want to thank my colleague not only for his speech today but also for his contributions to the debate on this bill. He understands this very well. He knows the time limits the government is working toward. Therefore, in his opinion, should the government not honour the court ruling, and move forward with the acceptance of the 35,000 individuals who have currently been waiting up to two years for this?

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

Madam Speaker, I understand the parliamentary secretary's question and where she is coming from. However, one of the things she fails to mention in her question is that the Quebec Superior Court judge said that we needed to look beyond fixing the issue with respect to the Descheneaux case, so it does not preclude the possibility of fixing other things that are problematic in the Indian Act.

The parliamentary secretary fails to understand that. However, I understand it. I do not think that discrimination should continue in this country. This is a country that recognizes equality for all. That includes indigenous women. If she thinks we should not proceed right away with that, and that we need to consult with respect to the human rights of indigenous women and indigenous women alone, that is problematic for me, and goes against the rule of law in this country.

As members of Parliament, we are called upon to uphold the rule of law. That includes respecting the Constitution, which includes the Charter of Rights and Freedoms, and section 35 rights as well. Therefore, there is a lot of work that needs to be done. That is where I am coming from. I know she has a limited view of how we should proceed.

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

Madam Speaker, it is an honour to rise in this place to put my views forward following the member for Abitibi—Baie-James—Nunavik—Eeyou. He said exactly, in much clearer, more passionate language and with greater depth of experience, the reasons that I am also putting forward amendments to try to repair Bill S-3, so that it does not perpetuate gender-based discrimination against indigenous women and their descendants.

As members know, Bill S-3 comes to us as a result of yet another court case raising the issue of discrimination under the Indian Act. Let us step back for a moment and acknowledge the Indian Act itself is a monument to discrimination. The Indian Act is a racist piece of legislation, and I grieve that we are not as a Parliament taking on the challenge of eliminating the spectre of a piece of legislation about which many Canadians may not know. It was a piece of legislation on which South Africa modelled apartheid. It needs to be replaced, it needs to be gone, but what we have before us is a slice of that discrimination that is embedded in a discriminatory act which treats indigenous women and their descendants quite differently than it treats indigenous men.

The case was brought to the Quebec court by Stéphane Descheneaux. The court set a deadline, the case was heard and resolved in 2015. The deadline was extended once, and as we just heard in my hon. colleague's comments in response to a question, just today the plaintiff returned to court, and asked if Madam Judge Masse would extend that deadline once again. As the deadline now sits, this Parliament needs to resolve the matter by July 3, or there will be consequences in the issuing of status cards, and there will be unacceptable consequences. On the other hand, it is certainly distressing and incomprehensible to me that given how flawed the bill is that the Government of Canada has not gone to the court to ask for an extension.

Should we be able in this place now to accept either my amendment, or the amendment put forward by the hon. member for Abitibi—Baie-James—Nunavik—Eeyou, then at least we have a piece of legislation which does not perpetuate gender discrimination. If we accept those amendments and the government feels it creates a tremendous chaos out there, we are not sure where we are going to go next. It does not have to move forward on the legislation, all it has to do is go to the judge and ask for an extension.

The Quebec court in this matter has made it very clear as of less than an hour ago, when the press conference from the plaintiff took place, that it is ready and willing to give an extension. The judge was not willing to given an extension on the deadline today on an application from the plaintiff, because she did not want to put the Quebec Superior Court in the position of arbitrating between the Senate of Canada and the House of Commons. It is very clear, very fresh and pertinent, and timely information that the extension could be had if the government seeks it. I would wish the government would seek it.

However, let us go back to why these amendments really matter. It is a question of justice. It is a question of discrimination, and it is a question of whether we can draw a line in the sand and accept all the historical wrongs that happened if someone was a descendant based on relationships before 1951. Before 1951, we are just going to say that it does not matter anymore, and we are going to limit it to 35,000 people, because that is a manageable number. This is something I have never seen before in any debate on rights, that we only give fairness to X number of people, and we are not prepared to extend it to all the people. It is unconscionable.

I want to go back, and my colleague has already mentioned the testimony of Professor Pam Palmater, who is uniquely qualified in this debate not only because she is a distinguished lawyer and professor, and comes from the territory of the Mi'kmaq First Nation in Nova Scotia, but she has written a book which directly bears on this. Her book is Beyond Blood: Rethinking Indigenous Identity.

Her research has shown that, for example, and I will quote her:

The hierarchy of Indian status between section 6(1) and 6(2) have and continue to disproportionately impact Indigenous women and their descendants since its creation in 1985. It is an unconscionable formula based on racist ideas related to blood quantum that were designed to legislate Indians out of existence.

She is referring to sections of the Indian Act. She goes on to say:

As a result, Canada's own demographer can pin point with relative accuracy the extinction dates of each First Nation in Canada based on birth, death and out-marriage rates.

Some might wonder what out-marriage means. The essence of this discrimination is that, if a first nations man marries a non-indigenous woman, their children continue to be recognized as Indians for the purpose of the Indian Act, but if a first nations woman marries a non-indigenous man, the children are not recognized. Further, with respect to children of unwed mothers who are not willing or able to name the father, or fathers who deny paternity, we go through a whole hierarchy of subtractions, subtraction of indigenous women's rights through a hierarchy of different classes of people.

If my amendment or the amendments put forward by the NDP are accepted, we could restore at least those pieces of Bill S-3 that were put forward in the Senate. They were supported by the Senate but removed from the bill by the government. They are what would make it possible to support Bill S-3 and get it through the House. With those removed, we are back in a situation where the defence that I hear from the government is that there will simply be too many people and we will not know quite how many there are. As I said, this cannot be a question of numbers.

Again, from evidence that was heard in the Senate committee, if the estimate is 200,000 people instead of 35,000 people who have rights through ancestry and parenthood once historic discrimination against women is removed, that is roughly equivalent to the number of new immigrants we take into Canada every year. We need to put 200,000 into some context. Why would we deny rights based on the question that this might be too many new people?

The fundamental crying need in this area of law is to get rid of the Indian Act, and then we could be talking about how to move forward from here. However, we are dealing only with this piece based on the court decision and the court case brought by Stephane Descheneaux. It seems to me that we do not have any choice other than to eliminate gender-based discrimination.

In the minute I have left, I want to turn again to the words of Professor Palmater, because it could not be clearer. She said:

There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional Nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away. Traditional Indigenous Nations did not permit inequality between genders. The constitutionally-protected Aboriginal right to determine one’s own citizens is conditioned on section 35(4)’s guarantee of equality for Indigenous men and women.

Of course, that is section 35(4) of the Canadian Constitution.

UNDRIP which provides extensive protections for indigenous peoples also guarantees these rights equally between Indigenous men and women.

I want to underscore this sentence from Professor Palmater's testimony, “There is simply no legal mechanism by which to consult out of gender equality.”

She went on to say:

Discrimination is discrimination—whether five layers of discrimination are piled on top of us or “only” one layer—Indigenous women and our descendants bear an unfair burden of trying to convince others it should end.

I urge every member of the House to vote for the amendments, and then we can pass Bill S-3 with a clear conscience.

[The Assistant Deputy Speaker, Carol Hughes]

The hon. Minister of National Revenue on a point of order.

[Diane Lebouthillier, Liberal, Minister of National Revenue]

Madam Speaker, pursuant to Standing Order 32(2), I have the honour to table, in both official languages, the 2016 report on exports of military goods from Canada and the 2016 annual report to Parliament on the administration of the Export and Import Permits Act.

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

Madam Speaker, I want to ask a question for the member opposite. The Minister of Indigenous and Northern Affairs has said time and time again that it is her intention to correct all of the discriminatory pieces that are contained within the Indian Act over a two-phase process. Will the member opposite support that process to ensure proper consultation with all people who have asked to be involved and to ensure that their voices are heard as we move to stage two of the changes that need to be made within the bill?

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

Madam Speaker, first let me just say once again that there is no need for haste. We do not need to deal with this now. We merely need to ask the court. The court has made it clear that it is more than willing to give an extension, but on this concept of phase two, again I want to turn to the testimony of Professor Palmater:

If we don't address gender equality now, it will never be addressed. Canada's plans to shove "complex" gender issues to Phase ll under the impossible standard of "consensus" means we'll never see full gender equality.

I thought the whole intent of reconciliation was to do better by indigenous peoples. If this is the case then we have no real choice but to remedy all gender discrimination in Bill S-3. That is what I am committed to. I am trying to remedy the gender discrimination in Bill S-3.

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

Madam Speaker, my colleague said we simply need to ask for an extension. I think the government deserves lots of criticism on this particular file. I think there is lots of room where things could have and should have been done better, but there was an extension requested and the government was given five months. To be frank, the five months did not allow the opportunity to do the work that needed to be done.

Certainly, we heard from the officials that the bill did go beyond Descheneaux and added a number of other circumstances. They indicated that all known sex-based inequities have been dealt with in the bill.

I am not convinced about simply asking for an extension, if it is five months, when there is a proposal that the next phase happen over 18 to 22 months. I do not think we would have an alignment with an extension that would be granted and really the time to do the necessary work that has to be done.