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

[Martin Reiher]

Sure.

It is possible for Canada to go back to the court to seek an extension of time. In order to be successful, from past experience, we know that we cannot go too soon. The government has to show that it did what it had to do and did best efforts to meet the deadline. Granting a suspension of a declaration when legislation is declared invalid is a remedy. It's something that the court will not do lightly. Granting the extension it will not do lightly either.

Actually, the Supreme Court of Canada, in Carter in January this year, set a very high threshold, and indicated that it's only in extraordinary circumstances that such an extension will be granted.

[The Chair, Liberal, Andy Fillmore]

We're out of time. Thanks.

We're moving into the five-minute questions now.

The first such question is from David Yurdiga.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

I'd like to thank the minister for coming today to answer our questions.

I found it quite disheartening when the department initially told us that they did extensive consultations, and then we learned that this wasn't necessarily true. Just after the department testified to this committee, we found out that all of the witnesses afterwards weren't consulted.

When did you become aware of this?

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

I had understood that the drafting of this piece of legislation was to carry out a court decision and that there would be some consultation, but because of the time frame—and I think I was persuaded—the bulk of the consultation would take place in phase two. Phase one was just doing what the court told us we had to do. But when I realized the plaintiffs hadn't been consulted—and it really was a mistake; there was a letter drafted that was never sent—I was actually really embarrassed and immediately called the plaintiffs and had a very good conversation about this long fight they've had.

I must say that this happened to me once before, a decade ago, on the Quarantine Act, where again, I realized that my idea of consultation and other people's ideas of consultation may not be exactly the same.

Putting citizens and particularly first nations, Inuit, and Métis people into the DNA of what is a meaningful consultation is something we really have learned and we have to get better at.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

I'd like to reframe that. Don't you receive briefings from the department on a constant basis, and why didn't you pick up on the consultation process?

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

Yes. Usually the briefings are general, in terms of the general level of consultations and what we've been hearing.

I think in this situation, because it was time limited and was viewed to be really just executing a court decision, I probably didn't ask as many questions as I should have about the consultation, but I do now understand, and I had, I think, believed honestly in my heart that the real bulk of the consultations was taking place in phase two.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Minister, we heard from most of the witnesses that Bill S-3 is flawed. Will you listen to first nations and ask for an extension, or will you ignore first nations' request to have an extension requested?

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

Ignore is not exactly what I do. I'm hearing intently the concerns that have been raised.

I think there has been a misunderstanding about what an extension can do. The fact is this extension would be only for three to six months, and there's no way we could address all of the issues that have been raised at these two committees in that three- to six-month period. We would have to actually...in order to be drafting the new legislation now, in terms of getting through the cabinet process to ask to do it, then go back with the bill, and to get it through both Houses. I think there's a bit of a misunderstanding as to what actually is possible in seeking an extension and why a court would give us an extension.

I understand the cynicism that people think this revision to the Indian Act is about the train leaving the station and how much can we get on it as it's leaving. It's as though we won't come back to it. I'm here to say that the meaningful consultation will start in February, and we will come back with a proper plan for that.

[The Chair, Liberal, Andy Fillmore]

Thank you, both.

The next five-minute round is for Don Rusnak, please.

[Don Rusnak, Liberal, Thunder Bay—Rainy River, ON]

Actually, Michael McLeod is going to take that.

[The Chair, Liberal, Andy Fillmore]

You're yielding the time to Michael McLeod.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Mr. Chair.

Thank you, Minister, for presenting today.

I think most of us who have been following the issue for years were quite pleased to see that the government was moving forward and moving away from the previous government's position that they were looking at appealing this. However, this issue is very complex. It's very complicated.

I come from the Northwest Territories, where half of our population is aboriginal. We have eight aboriginal governments there. We still have a lot of issues around who belongs to what organization. We still have a lot of people who are being left out. I think that at some point all of our organizations will be self-governing and under self-rule and the Indian Act will no longer apply. We've already seen movement in the Tlicho government and in the community of Deline.

My concern is that if we don't do this now, it may not happen. We heard presentations today from a number of people who presented some very good research and very good arguments on why we should defer it. They talked about getting the bill right. We also heard from some of our colleagues who've said that they don't trust the government.

I'm not sure what will happen in the future. I know there are 35,000 people who are looking for this to move forward, and that number may grow. Realistically, if we don't do it now, how long would you anticipate that it's going to take to get it right, to deal with all the issues that are out there? I can't say that I know what all of them are. I'm not an expert in this field. What do we expect that assessment of 35,000 people to grow to? We're hearing that it has already grown by 150 people or more.

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

You know that my preference is that we get this done now with the 35,000. This is serious, in terms of whether it's about health benefits or post-secondary. This is what we're hearing from people. They don't want to wait any longer. What we are hoping for.... Whether it takes a year or two years to get the rest of these inequities dealt with in a bill, we are committed to getting those done and getting it right in that way. We do not believe that we have time to deal with the inequities that are not sex based in the time available or that the court would give us sufficient time to get it right.

I think you know, as most people know.... I don't think that parliamentary committees are the way the crown consults. We actually do have to get out and do our work first and then bring it back to committee, with hopefully all of these other inequities dealt with.

[Michael McLeod, Liberal, Northwest Territories, NT]

This issue has been causing a lot of discussion right across Canada. I've heard from people in my riding. I've heard from people who would like to look at this in terms of reconciliation. This is an issue that could bring us all the way back to when treaties were signed and when the script was imposed on people. I'm not sure if that phase two will actually allow for that to happen.

Is that something people can anticipate? Can they anticipate having the discussion go all the way back to, in our case, Treaty No. 11 in 1921, to talk about it? Even in my family, some people were allowed to take status, while other people were not. I have cousins who have status and cousins who do not. It depended on a lot of different things. I'll leave it with you as a question.

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

That's a great question, because I think the whole issue of membership and registration we want eventually to be determined by nations themselves. This isn't something Canada should decide in the way that the Indian Act was written: that we decide who has status and who doesn't have status. We want to get out of this line of business. That's why it's exciting to actually get it right, as in, what would that look like?

[The Chair, Liberal, Andy Fillmore]

Minister, we're out of time on that one, I'm afraid.

The next question is from Cathy McLeod, please.

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

To go back to your comment that you need to do the consultation and then the committees do their work, we're not the environment, and I absolutely agree. Unfortunately, we've seen with Bill S-3 that this is exactly what's happening: the consultation happened after the legislation was drafted. In this case, luckily, it came to committee simultaneously while it was in the Senate, and certainly the flaws are coming very much to light. Again, I look at Mr. Descheneaux's lawyer with his four pictures of very inadequate responses of the legislation.

We've had a committee. We've had expert witnesses. The vast, vast majority of them have all indicated that they believe there are still flaws. We're not privy to whether it will come from the Senate with a minor fix or not, but the advice to this committee by the vast majority of witnesses from across the country is to take a little bit more time, get this right, ask for the extension.

The position you've taken at the table today is that you're not going to do that. So what all these witnesses have said to us is something that is not, you believe, the way to go forward. Whether it was National Chief Bellegarde or whether...and I can go through the list. You've seen the testimony.

What you're telling us today is that, really, it's very nice that they came, but we're going to go forward, just as you sort of went forward with the drafting without their input. Is that what we're hearing today?

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

No, I think what we're saying is that if we were to ask for an extension, it would be in order to get the work of this bill through the two houses in a timely fashion. I think we do not believe we'd be granted an extension in order to deal with all the other inequities. I think that is the advice that we've been given, that it needs to be basically the ballpark of what the plaintiffs argued. In order to seek justice for those plaintiffs, that would be the purpose of an extension.

We're very grateful that because of the sibling issue in Bill S-3, the Indigenous Bar pointed out this other group that will lend itself to an amendment. With that, we do believe we will have a bill that will deal with what the court asked us to do.

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

On November 21, my question to the department was on the proposed amendments to the Indian registration to comply with the Descheneaux decision and to eliminate all known sex-based inequities. I asked if they were confident that we have taken care of this as an issue, and the response was yes. But we're hearing that the response should have been no, because the Indigenous Bar Association and others have said that it doesn't deal with all the known sex-based inequities. We've heard that from many, many witnesses, that this does not deal with it.

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

I think what the Indigenous Bar pointed out to us was that the bill itself created a new group. In fixing the other ones, we created a new group, and now that can be dealt with through the amendment.

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

Again, with all respect, I think this is showing that when you rush something and you don't talk to the people who are so knowledgeable.... When McIvor joined us, she had such knowledge that she brought to the table. I think there are misses and I think there are some more misses. I think we've heard concerns from other witnesses.

If the amendments pass in the Senate, I still don't think.... We're not going to be back doing this again, through a court challenge, wasting everyone's time and energy because we haven't got it right.

[The Chair, Liberal, Andy Fillmore]

We're out of time there, Cathy. We're over five minutes.

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

Mr. Chair, if I may, that is the good work of a parliamentary committee, to actually point out something that's been missed. That's what I really believe is important, and somebody that comes with the remedy to fix it. I want you to believe that this is the important work of parliamentary committees, but that we need to go out and consult in order to do the rest of the inequities.

[The Chair, Liberal, Andy Fillmore]

I want to say thank you to all of the witnesses, and Minister Bennett and your staff team.

Committee members, I've intentionally left about a minute and a half for a short bit of committee business, so I'll ask you to stay in your chairs.

With Charlie Angus removing himself from our committee, we're left without a second vice-chair. It's our duty to elect Romeo Saganash.

Grant has a bit of process for us, so can we listen to Grant for a moment, please?

[The Clerk of the Committee, Mr. Grant McLaughlin]

Pursuant to Standing Order 106(2), the second vice-chair must be a member of an opposition party other than the official opposition.

I am more than prepared to receive motions for the second vice-chair.