Indigenous and Northern Affairs Committee on Dec. 5th, 2016

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

Who are you consulting right now?

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

Pardon?

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

Who are you consulting right now?

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

Who are we....

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

Consulting.

[Candice St-Aubin, Executive Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development]

Thank you for the question.

What we've done is we've tried to always prepare and inform people that phase two is on its way when we were doing information sessions. We've reached out to the Assembly of First Nations following their presentation here and we're trying to establish a time to start some of the pre-engagement conversations.

It has always been part of our plan for phase two that we would do pre-engagement more broadly. However, in hearing from witnesses in the past few sessions we're looking as well for guidance on who should be a part of those conversations for pre-engagement.

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

Thank you.

I asked that question, Madam Minister, because already 2017 is pretty close for me and I notice at what a snail's pace the Human Rights Tribunal decision is being implemented by your government. After one ruling by the Canadian Human Rights Tribunal and two subsequent orders, we're still not where we're supposed to be in that decision. That's why I'm asking if you're going to move fast on this one.

My problem with the present bill, and I want to get to Mr. Reiher on this one afterwards, but the first one is you're asking us.... There has been consensus by all the panellists and witnesses on this question, that this bill from the Senate is still discriminatory. It is still not charter compliant totally, and you're asking the members of this committee to stand up and support this bill. You're asking me to go against my duty as a member of Parliament to stand up in the House and uphold the rule of law.

Your colleague, Mr. Carr, has certainly a different understanding of what the rule of law is. He's thinking police. I'm thinking something else here.

The rule of law according to the Supreme Court of Canada is upholding the Constitution in this country and in that Constitution there's the Charter of Rights and Freedoms and in that Constitution there are section 35 aboriginal treaty rights.

You're asking me to do the contrary of what my duty as a member of Parliament is by suggesting that I stand up in support of Bill S-3.

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

I take a different view. I think that when the Indigenous Bar Association pointed out this extra group that needed to be in the bill, we believe there will be an amendment and with that amendment our advice is that the bill is charter compliant.

We are obviously working on all the policy pieces to get rid of these other inequities in the Indian Act. That's why we've had to do it in two phases, so that we did what the court told us to do and added a few more simple ones, and now we'll get on with the more complex ones that deal with date of birth, deal with lots of other inequities that have been pointed out here at the committee.

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

I also do not understand what you mean when you said, I think in response to one of the earlier questions, that we cannot make consensus and everybody will not agree.

I'm sorry, because human rights are not negotiable.

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

No. I agree. But as we know with overlap, with many different...there's an interpretation of rights and an assertion of rights that isn't necessarily the rights. By that I mean that whether it's paternity that's questioned or whether it's other ways, we have to figure out how we make sure the people who have the rights get to exercise those rights. That means an integrity to the system.

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

I want to get to a question that I asked the earlier panel and ask that question of Mr. Reiher. I raised the issue of this bill stemming from the Senate. Given the fact that the Senate does not have a historical relationship with indigenous peoples, I see a slight problem there already. The profound relationship that we have with indigenous peoples belongs to the crown. This bill should have been presented, if not by the Prime Minister of Canada, at least by the minister of aboriginal affairs. Do you see a problem with that?

[Martin Reiher, Senior Counsel, Operations and Programs Section, Department of Justice]

Thank you for the question. If I understand—

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

I don't know if you heard the earlier response to that question, that somebody might raise that very important constitutional issue and it's going to be “blown out of the water”. Those were the words that were used in that response. I think the minister heard it when she came in but I want to ask you the same question.

[Martin Reiher]

Thank you. If I understand properly, the question is about who introduced the legislation in the Senate. To me that's a matter of parliamentary procedure and I'm not aware of the constitutional problem that has been raised.

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

I would just ask the minister if she is aware of the concluding observations and recommendations of the Committee on the Elimination of Discrimination against Women, because the committee also has recommendations for the Government of Canada in that report, which came out on November 18, ironically, the same day as the report for Val d'Or came out. Has she taken note of the report?

[The Chair, Liberal, Andy Fillmore]

You have one second remaining. I think we'll have to come back to that answer, Romeo.

The next question is from Gary Anandasangaree, please.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Minister and your colleagues from the department.

On November 21 at our first meeting, Madam Montminy was asked a specific question with respect to whether this piece of legislation addresses the issue of sex-based discrimination. You were quoted as saying, “We are confident. With these amendments, we are dealing with all known sex-based inequities in Indian registration.” Then you went on to conclude, “In terms of your specific question for sex-based discrimination, yes, this bill is addressing everything that is wrong.”

Since that time in the Senate there were submissions made with respect to what the minister was just saying. Today, about two weeks later, can you categorically say that this particular piece of legislation addresses all known sex-based discrimination in the Indian Act?

[Joëlle Montminy, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development]

When I stated that the bill was resolving all known sex-based discrimination, it was in relation to what the court has ruled to be discriminatory, so the issue of cousins and siblings. As you know, we have also added the issue of omitted minors or removed minors. What we have found through the testimony of the Indigenous Bar Association was that there was another situation, which was actually the result of the remedy that we're bringing, vis-à-vis the sibling issue. This then creates a new comparative group and depending on certain circumstances, and it's quite complex, this could also appear to create another inequity, which we've looked at and we are prepared to address if amendments are tabled.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I guess my concern is whether we actually canvassed all the issues with respect to sex-based discrimination. I recognize that phase two will be going into a much deeper study and understanding, but I think what concerns me is that with respect to the Descheneaux ruling there was a specific...while it's an obiter, I think the intent was to make sure that we're not going back to court on the specific sex-based issues.

We heard from a very esteemed panel just before you that identified a number of compelling arguments. I just want to make sure that the minister is seized of this and that the department understands that we are addressing all of the known sex-based discrimination that is out there.

[Joëlle Montminy]

Yes.

I'm sure what you heard from the witnesses prior to this was different situations of differential treatment, but not all differential treatment equates to discrimination. Again, as the minister stated, there are a lot of different considerations that go into determining if something constitutes discrimination.

In the context of sex-based discrimination, we're confident that provided we address the amendment raised by the Indigenous Bar Association, we will have addressed this. There are other more complex situations where the discrimination based on sex might be combined with other things, such as date of birth and family status. For instance, I don't know if the previous witnesses have raised the issue of the pre-1951 cut-off. This is mostly a date of birth issue and, depending on the actual situation that is concerned, could also have some other related sex-based issues. It's not strictly a sex-based discrimination.

In this case, for instance, in the McIvor decision by the British Columbia Court of Appeal, it has been found that there was no need...that the government did not have to remedy situations pre-1951. It has gone to court, and the courts have rejected the argument of the plaintiffs in that particular case.

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

Gary, I think what we're saying is that even though the court ruled that way, we want to fix this. There are things that the court has told us we have to do. The reasons that the engagement needs to take place are regarding what other things people want us to fix, such that we could finally end all inequities in the Indian Act.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Minister, for the clarification.

In my assessment, discrimination is discrimination. I think it's pretty clear-cut. When we're dealing with an issue of sex-based discrimination, whether it's intentional or it's an outcome of a specific set of guidelines that may have a discriminatory effect, I think it's nevertheless the same.

My concern comes down to whether we should be expanding it even further. Is this what the department has identified and it's supported by other stakeholders to move forward with this particular amendment, with phase two being a much broader conversation on discrimination as a whole?

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

That's what we believe we need to do in the time constraint that the court gave us. We need to do this piece now, and then do the other one in a timely fashion to deal with all the others.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Minister, if I could, I will ask counsel as well with respect to timing. I know that's come up a number of times from witnesses. There is precedent for going back to seek additional time. I know that was sought in McIvor twice, if I'm not mistaken. What is the limitation in going back to the court to ask for more time?

[The Chair, Liberal, Andy Fillmore]

There's one minute remaining, please.