Evidence of meeting #65 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Nathalie Nepton  Executive Director, Indian Registration and Integrated Program Management, Department of Indian Affairs and Northern Development
Candice St-Aubin  Executive Director, New Service Offerings, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Martin Reiher  Assistant Deputy Minister, Resolution and Individual Affairs, Department of Indian Affairs and Northern Development
Clerk of the Committee  Mr. Philippe Méla

9:15 a.m.

Independent

Hunter Tootoo Independent Nunavut, NU

Thank you, Madam Chair.

I have three quick questions for the officials in regard to some of the things in here.

My first one, given the government's commitment to working collaboratively with indigenous people of this country and renewing the relationship—

9:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Is this specifically to clause 1?

9:15 a.m.

Independent

Hunter Tootoo Independent Nunavut, NU

This one is specific to all of it, but there are some specific ones with regard to dates and registration.

9:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Because we just voted on clause 1, perhaps we could put you into the questioning.

9:15 a.m.

Independent

Hunter Tootoo Independent Nunavut, NU

I think you voted on the amendment.

9:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We just adopted clause 1. Could I ask you to participate in the next round of questioning?

9:15 a.m.

Independent

Hunter Tootoo Independent Nunavut, NU

Yes.

9:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

All right. Moving on to clause 2, we are going to MP Saganash.

Oh, I'm sorry.

MP Anandasangaree.

9:15 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you, Madam Chair.

I think Mr. Saganash was quite offended.

9:15 a.m.

Voices

Oh, oh!

9:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

My apologies.

9:15 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Madam Chair, thank you.

As tabled at this committee, I am moving to delete proposed subparagraphs (a.1) and (a.2) from Bill S-3, essentially lines 5 to 16 on page 2.

I cannot describe to you how troubling this piece of legislation is overall, and to me personally. Bill S-3 sets out to amend a deeply racist act, the Indian Act, a foundational document that essentially legalizes oppression of our first nations people.

Amending a deeply flawed piece of legislation, one that is centred on racism, is highly problematic. We are, however, at this juncture because of a court decision and the timeline set by the court for the government to respond to amendments to the Indian Act in order to address the issue of sex-based discrimination. We must therefore act as a government to address this issue.

At the outset I want to acknowledge the work of so many people who have fought on this issue for decades. I want to thank them for the many calls and emails and the conversations I've had in the last two weeks. I particularly want to thank the Senate for the considerable work they have undertaken in making changes to Bill S-3. I especially want to thank Senator McPhedran for her work on this issue as well as her lifetime of work in advancing rights.

I was in the House two nights ago where my friend and colleague, the member for Winnipeg Centre, spoke quite passionately about this issue and in support of the Senate amendments we're now deleting.

I think we all have received the correspondence from Senator Sinclair that outlines some of his concerns.

Based on all of this I think there is broad consensus on two points. First, the federal government should not be defining who is and who is not an “Indian”. Second, in the interim the federal government needs to ensure that the definition is void of discrimination. That's the consensus that I see among all the parties.

The long-term goal of Canadians, and I think for this government, ought to be to develop a nation-to-nation relationship ensuring that each nation has the absolute right to define its own peoples and to eliminate the Indian Act altogether.

In the interim, we need to ensure that we eliminate discrimination of all forms under the Indian Act.

The issue at hand was triggered by the court decision in Descheneaux. As Senator Sinclair has pointed out, we have a court-imposed deadline of July 3. While the parties seek to extend the timeline, we as legislators have a responsibility to ensure that we make our best efforts to meet the deadline, especially since we have been given an extension of five months.

Consequently, the framework, with the proposed deletion in this bill, will ensure that we can move forward in the near term, meet the set court deadlines, and enfranchise up to 35,000 people.

Madam Chair, I want to be absolutely clear. We are committed to addressing the broader issue raised by proposed paragraph “6(1)(a) all the way”. Unfortunately, the current language in the Senate amendment seeks to address a wide range of registration issues beyond sex-based inequities. These issues are beyond the scope of this bill, and there is insufficient information on how the lack of meaningful consultation would impact first nations' communities or individuals.

We are committed to co-designing a process with first nations to achieve comprehensive reform rather than a piecemeal approach, which has failed time and time again. We will launch a process on broader reform within six months of passing the bill, and we will report to Parliament within 12 months of that launch. These timelines are now in the bill itself.

Experts like the Indigenous Bar Association, whom we have heard from, have made it clear that the wording of proposed paragraph 6(1)(a) is ambiguous, contradicts other sections of the act, and could have wide-ranging, unintended consequences.

We need to address broad-based reform of the registration provisions in the Indian Act, but we need to do so with the benefit of meaningful consultations with those who are impacted, both the communities and individuals, and with the understanding of what the intended and potentially unintended consequences could be.

In the meantime, this bill will recognize the rights of up to 35,000 people we know are being discriminated against—and incidentally, it's been almost two years since the initial ruling—and provide legislated procedural protection for situations of unknown or unstated paternity.

We need to pass this bill to provide justice to tens of thousands of people now, and move forward with broader registration reform to address other historical registration issues the right way, and once and for all.

Finally, I know that those who have fought for this for a very long time are rightfully skeptical of the government. The government says, “Trust us. We will do the right thing.” They have heard this time and again. Notwithstanding the past, I am convinced our government will do the right thing, Madam Chair.

In fact, Minister Bennett and Minister Wilson-Raybould have advocated for “(6)(1)(a) all the way” in the past. They are personally committed to ensuring that, in the near term, the government consults in a way that comes up with a proper framework for everyone involved. Together, we will ensure that our government moves swiftly toward addressing these issues.

I look forward to the conversation here, keeping in mind that we are all in a very difficult situation in trying to define the rights of people who have an inherent right and whose membership and identity are something neither I nor anyone in this committee, nor in the House, can actually in any way restrict or enfranchise.

9:25 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

MP Cathy McLeod, go ahead.

9:25 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, Madam Chair.

I want to point out that the Liberals have been supportive of this amendment since it was first proposed, as far back as 2010. For the last year and a half, you have been very aware of the Descheneaux case. You have named a bill inappropriately, and you haven't done due diligence. The Senate took an amendment and inserted.... This government had a year and a half to do due diligence. If it really supported it, it would have done the due diligence to have proper wording, proper understanding, so that today we could be voting while understanding the implications in terms of whether it deals with all the problems that we anticipate it to deal with.

We have heard time and again—in December, February, and March—that this is the answer, and then we have the Senate....

I would like to point out that I am very disappointed that something your government said it was committed to as far back as 2010 didn't have due diligence done. It is inserted by the Senate, and now we are in a very difficult position. I am concerned, and I just want to note that for the record.

9:25 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Anandasangaree, go ahead.

9:25 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you, Madam Chair.

Without getting into the history of the Descheneaux decision, I'll just put it on the record that the new government was formed in October 2015. At the time, our government reviewed the Descheneaux decision. After considerable thought, it was decided that the right thing to do would be not to appeal the Quebec decision, and to set up a framework where we could address the concerns in the decision. It was in the spirit of ensuring that we expand and give justice to those 35,000 individuals who have been disenfranchised under the current legislation.

Late last year, we brought forward Bill S-3 through the Senate. It came to us, and we discussed it and sent it back to the Senate. Now, close to the deadline, we are here.

I agree with my friend that this is not optimal. This is not the way we should be legislating, but given that this is in the spirit of doing the right thing, and with a very serious commitment to following through, I think it is important that, as legislators, we deal with this in order to ensure that those people who are disenfranchised, close to two years after an actual court decision, be addressed swiftly.

9:25 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Saganash, go ahead.

9:25 a.m.

NDP

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

Thank you, Madam Chair.

I would like to start off by saying that this is perhaps the most disappointing proposal of all, in this clause-by-clause exercise that we're doing today. I think my learned friend will appreciate the fact that, for me, being asked to delay the entitlement of human rights in this country called Canada will always be unacceptable, always. I cannot bear the thought that I will be voting for something that delays the application of human rights in Canada. Let me start off by saying that.

Second, I think we need to be mindful that there may be consequences to doing what my friend is proposing. We're going back to the House. We'll eventually vote on this bill, without the amendment that was proposed by Senator McPhedran. What will be the reaction of the Senate?

That is a point of concern for me, especially when we talk about the people who are affected by all of this. I don't want to be eventually facing a standoff between the Senate and the Parliament of Canada, because the Senate approved these amendments and they sent us a bill in its entirety, as we have it before us, in its present form.

They may, at some point, consider our changes and say “No. We need 6(1)(a) all the way in the legislation, to do justice, not just to the people who are directly affected by the Descheneaux case, but also to all of the other people who have suffered discrimination because of the Indian Act.” This is what we are also facing as legislators who have a duty to uphold the rule of law. That includes human rights, and I'm sure my learned friend can relate to that. He's a human rights expert. I think that's one aspect that we need to be mindful of.

I want to ask a question to him about one of the other aspects. In Bill S-3, with the deletions that you're proposing, does it fix all of the human rights violations and discriminations in the Indian Act? I don't think so.

A lot of the witnesses who appeared before this committee don't think so. I hear you when you say that the Indigenous Bar Association was one of the only organizations that expressed concern with that clause, but the rest of the witnesses, the majority of the witnesses accepted that amendment from the Senate, and part of our duty as well is to consider what's being proposed to us as a committee.

I very much enjoy the company in this committee on both sides. I think we've been doing incredible work since we started, and we need to continue on that path.

It's not the fault of the people who have suffered discrimination in this country because of the Indian Act. It's not those people's fault if we are at this point today, but there's a sense of urgency.

I'm considering this in a larger perspective than that. I understand your sense of urgency with the July 3 deadline that's coming up, but the parties are also before Judge Masse on June 19, including the Descheneaux family, asking for an extension. I think it's because they also feel we need to do this right.

It's not just what was asked for by the court in the Descheneaux case, but also to address the other discrimination based on sex. That's part of our duty as parliamentarians. It's important that we consider all those aspects before approving this amendment as you propose it.

9:30 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Bossio.

June 15th, 2017 / 9:30 a.m.

Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

I totally respect where the member is coming from when it comes to human rights. I don't think anyone in this committee would disagree with his position in that respect.

The difficulty we have is this timeline. I know everyone says we can get an extension, but we did that once, and we're right back where we were at the end of the first extension. If we get another five-month extension, we're going to be in exactly the same place we're in today. There's not enough time to properly deal with some of the issues that the Indigenous Bar Association and Senator Sinclair....

We're bringing about significant legislative change, and we have a duty to consult all indigenous peoples on the changes that are going to have such a huge impact on many of their communities. We just finished discussing an amendment on DNA. We, around this table, can think that we have all the answers to solve it, but we also know that there are certain complexities that need to be dealt with, and those complexities are derived within what the Mohawks had to say. They said they don't care what Bill S-3 says, and that they're the ones who are going to decide who's a member of their community, not the government.

I know in an ideal world we'd like to blow up the Indian Act and let all indigenous peoples make that determination, and I think it's the goal of all of us here to see that happen sooner than later. Until then, we have a duty to consult with all indigenous communities, and that's going to take time. Another five-month extension—or three months, or whatever it is they would give us—is not enough time to resolve this. In the meantime, if we do find ourselves back here in five months in the same situation, those 35,000 people who could have already been starting the registration process are still going to be stuck waiting to start that registration process.

As MP Anandasangaree had communicated, I do truly believe that our ministers, Minister Wilson-Raybould and Minister Carolyn Bennett, do want to see this resolved once and for all, and to get it done right, not just rush into it and get it done under what Senator McPhedran has proposed here in “6(1)(a) all the way”. There are flaws in that amendment, so there's no sense in my mind of passing something we know has flaws when we should be taking the opportunity to get it done right.

I totally respect where you're coming from, but I just think the two-phase process will enable us to get this done right once and for all. Do we wish that Bill C-3 could have done it back in 2010? Sure, but it didn't. So now we're stuck here again at this table, trying to make this determination. Let's get this done right, take the time necessary to do it, and put this behind us once and for all.

Thank you.

9:35 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Anandasangaree.

9:35 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you, Madam Chair.

Mr. Saganash, every time I come to this committee, one of the things I look forward to is the comments from my good friend. I appreciate what you said, and I agree with it. I think human rights are not something you defer.

The difficulty we have here as legislators is we have a system of government where we have checks and balances, so to your first point with respect to the Senate: we have an executive, a legislative body, and the courts. We're at a point where the courts have said the legislation under the Indian Act needs to be changed. As a result, our executive branch came up with legislation that was subsequently amended by the Senate, and it is before us as the elected part of this bicameral system.

I think it's up to us to ensure that we respond to the court decision and ultimately it'll go back to the Senate for final approval if this is deemed to be adopted. The challenge we have is we've seldom been in this position in Canada whereby the elected body sets out a piece of legislation and sends it off with the possibility of an impasse. I think the learned people in the Senate will understand that they are charged with being the body of sober second thought, but ultimately as elected members of Parliament, the House of Commons has a greater role in ensuring the will of the people is expressed through the legislation we pass.

I am mindful of where the Senate stands on this. At the same time, given the broader context, I feel that senators on the whole will understand that once the House of Commons decides, they have their opinions and their amendments have been given due consideration, it's been debated in the House, and discussed at committee, ultimately if it's the will of our House to pass Bill S-3 as amended, then the Senate will need to give it due consideration.

With respect to the issue of are we addressing all sex-based inequities, I believe the Descheneaux decision requires the government to canvas the available or known areas of sex discrimination currently under the Indian Act. I am advised that the amendment being deleted will address that. What we are trying to deal with, with regard to deleting the Senate amendment “6(1)(a) all the way”, is not to broaden the scope of discrimination in other areas, which is something we shouldn't do, but we need to do in order to (a) consult and (b) ensure that we have a workable framework that doesn't put enormous strain on many of the communities.

I know we heard from a couple of witnesses who indicated that the membership—and they're absolutely right—has a right to define their membership, who is and who is not a member of their community, and it ought to be their absolute right. For us to find that balance between the Indian Act definition and the definition within the communities, I think we need to consult.

Therefore, this is really a deferral. This is delaying what I believe is inevitable, what we all believe should happen, but it should happen with a great deal of consultation, with the framework. It is quite unusual for any piece of legislation to have quite a stringent timeline for the government to consult and be able to come back and report within one year.

I think, as legislators, it is our responsibility to make sure that consultation is deep and gives us the road map to ensure that proposed paragraph “6(1)(a) all the way”, comes to fruition in the near future.

9:40 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Saganash.

9:40 a.m.

NDP

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

Thank you, Madam Chair.

After listening to both interventions on the other side, I'm compelled to wonder why we invited all these witnesses to this committee. The majority of the witnesses who appeared recommended that we accept proposed “6(1)(a) all the way”.

What was the purpose of them spending many hours with us and recommending to this committee, in good faith, that we adopt that legislation? I get the sense that we're putting that aside and we're only discussing the will of the government of the day. That's the problem I have—one of them.

You talk about due diligence, the time frame, the scope. There's nothing in the Descheneaux decision, and I reread it again this morning, that prevents us from going beyond what the court has asked us to do—nothing. If you know of any paragraph in the decision....

There's no place in the decision that precludes the government from going beyond what the court has requested us to correct. I think that's one of the reasons why I would vehemently oppose that deletion.

What is also disturbing for a person like me, being indigenous, who grew up in a residential school, partly on the reserve, and now as a member of Parliament who has a responsibility to all indigenous, but also to all Canadians, is that for more than 100 years we've been keeping track of what we're doing to Indians in this country. There's a specific department that has that job.

When you talk about the unintended consequences that these provisions might have, I don't buy that. I don't buy that at all.

The minister, when she appeared here, purposely used the number—two numbers as a matter of fact—and said that if we go ahead with this, it might mean between 80,000 people and two million people.... She has to take responsibility for that.

I read the exchange that she had with Senator Sinclair on that specific issue. Senator Sinclair said to her that by giving those numbers, it's like fearmongering. Well, it's not like fearmongering—I disagree with Senator Sinclair on that—it is fearmongering.

That's the only reason you have not to go ahead with these provisions, that we should again take time to consult. I know it's convenient for you guys to consult when you want to delay something. You didn't take time to consult for the Site C dam. You didn't take time to consult with the indigenous peoples for Kinder Morgan, because that's what you wanted. But for things you do not want to move on, you claim that you need to consult.

I think one of our problems in this country is that we've been over-consulted. We've been consulted to death, literally. You like it when it's convenient for you guys.

I think none of the reasons you gave to delete those provisions is valid for me, nor for the people who appeared before us. I would take great exception if I had appeared before this committee and the majority recommended in favour of these provisions that you're trying to delete. I would take great exception to that. It's an insult, as a matter of fact. They should be insulted.

That's pretty unfortunate because listening to witnesses is part of our role. That's part of consultation as well. I think a lot of people will be disappointed after this hour.

9:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

The end of those powerful words seems like an inappropriate time to ask technical questions, but it may give us some time to reflect.

Before I call the vote, we have an outstanding request by MP Tootoo for some clarifications and an ability to comment, so I turn the floor to him.