Indigenous and Northern Affairs Committee on June 6th, 2017

[Martin Reiher]

No, we don't agree.

In the government's opinion, that is not a situation covered by the bill. It is a complicated situation that deserves to be looked at in the context of the next stage of the consultation. It is a situation of a woman married to an aboriginal man who loses her status when her husband decides to enfranchise himself. According to Mr. Schulze, the fact that a woman is forced to be enfranchised, according to the language used in the Indian Act, at the time, after her husband makes the decision, is indicative of sex-based discrimination.

We think that the man's situation is similar to that of the woman, in that context. We have often heard it said that enfranchisement was not a choice for aboriginal individuals covered by the Indian Act, but that it was often an obligation based on social pressures or an obligation that occasionally arose automatically, under the act.

We feel that the fact that a woman is forced to be enfranchised because her husband is enfranchised does not lead to a distinction between those two situations. So in order to deal with the situation in question, we would have to deal with all enfranchisement situations in the same way. That is beyond the scope of Bill S-3, and further discussion is required with communities on how to do that.

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

I understand.

Most of my questions were previously asked by my colleague, Ms. McLeod.

You talked about the second stage of consultations, and I thought I heard you say the following during your presentation:

registration should not remain under the government's control

The government has obviously committed to undertaking that second stage of consultations, I think, within six months of royal assent.

What is your view of the second stage, which I think will remain fairly complex? That is especially true if negotiations are undertaken on a nation-to-nation basis to establish a new relationship with aboriginal peoples. I assume that the registration issue will be taken out of the government's hands and will rather be handled by communities. The question has been asked.

Do you at least have a working paper on that? How do you as a department view that?

[Martin Reiher]

The minister's commitment consists in collaborating on process development. Right after Bill S-3 is passed, contracts will be awarded to various aboriginal organizations, so that the process, which will be launched within six months of the bill's passing, can be developed in collaboration.

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

What do you mean....

[Martin Reiher]

I don't want to assume what it will be. The collaborative development will be done with first nations and groups—

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

Does that mean the drafting will also be a collaborative effort?

[Martin Reiher]

Are you talking about the bill?

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

Yes.

[Martin Reiher]

We are not yet at the bill-drafting stage, but we will definitely work together on developing the consultation process, after which we will hold a collaborative consultation.

We will then see what options will arise from that.

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

How much time do you think the process will take?

[Martin Reiher]

It will depend on what the organizations tell us, but the minister said that it could take 18 months. She feels that would be enough time to conduct sufficiently detailed studies and, at the same time, move quickly enough.

We will listen to what first nations organizations have to say.

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

I have one last question for Mr. Jacques.

Since we are dealing with issues related to the Canadian Charter of Rights and Freedoms, was section 4.1 of the Department of Justice Act applied in the case of Bill S-3?

[Karl Jacques, Senior Counsel, Operations and Programs, Department of Justice]

Thank you for the question.

Pursuant to the Minister of Justice's mandate to review the drafting of legislation and the introduction of bills in Parliament, it is the department's duty to verify constitutional compliance with the charter, as well as with the Canadian Human Rights Act. So in the case of every bill, as in the case of this one, that review is carried out.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Anandasangaree.

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

Thank you, Madam Chair.

Mr. Reiher, can you advise what effects paragraph 6(1)(a) would have on specific membership in bands and what kinds of provisions exist for those if we were to go with the amendment to be able to join the individual bands, and what numbers are at play when we talk about expansion of the membership?

[Martin Reiher]

In terms of the impact, and I understand that your question relates to the addition of 8.1 and 8.2 in the bill in the Senate committee, the goal or the intent of this amendment is to allow registration under paragraph 6(1)(a) of any direct descendant of individuals entitled under the Indian Act in the past.

Section 11 of the current Indian Act allows individuals registered under paragraph 6(1)(a) to become members of a first nation that does not control their membership, which is two-thirds of first nations in Canada. If the intended effect were achieved, there would be an influx of members in communities.

As for the numbers, we did not specifically study that because it was not an amendment contemplated by the government. That said, similar amendments were proposed in legislation in the past and a demographer studied the issue in 2005 and updated his study in 2012. The numbers, according to his report, could range from 80,000 to 2 million individuals who would newly be entitled to registration and, therefore, to membership in first nations. That is information we do have.

These numbers, the data, are not good and the quality of the work suffers from the quality of the data. Additional work is required by demographers to improve the quality of this assessment.

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

Is that report available and are you able to share it with us?

[Martin Reiher]

Yes. It was provided to the Standing Senate Committee on Aboriginal Peoples and can definitely be submitted to this committee.

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

Yes, I think that would be helpful.

How recent was that report?

[Martin Reiher]

The update was in 2012.

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

With respect to the timelines, I know we're talking about a July 3 timeline and I know that the last time your colleague was here, a representative of the department, we had similar constraints with respect to, I believe, the February 3 timeline. Someone suggested that given the enormity of the amendment before us, it may be appropriate to seek additional time from the courts. What's your thought on that? Perhaps Mr. Jacques could also comment with respect to Justice's position on obtaining more time.

[Martin Reiher]

Maybe I can start and my colleague can add to this. As you know, of course, I've said that a charter breach is significant and important to address and should not be allowed to last too long. Getting an extension is not an easy thing. The Supreme Court in the Carter decision indicated that it's only in exceptional circumstances that an extension would be provided.

We were successful in getting an extension of five months. We asked for six months. The court granted five months because the judge considered that that was the time required to pass the bill. It's always possible to go back to the court to seek additional time, but it's not guaranteed that additional time would be provided. Actually, it's an important burden to convince the court to extend a suspension when a provision has been struck down as contrary to the Constitution.

I don't know whether my colleague would want to answer.

[Karl Jacques]

I would add that, given the parameters set by the Supreme Court for the granting of an extension, such an amendment would probably require going back for a considerable period of time, which would basically bring us outside of the parameters set by the court. We would have to ask for a considerable amount of time, given the policy and the position of the department to consult broadly on these issues, which could not be done within a short amount of time.

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

Mr. Reiher, there are a lot of compelling arguments with respect to paragraph 6(1)(a). There is an issue of fundamental justice, and I think over time, we've been expanding membership in a patchwork way based on Ottawa's perception of who is to be defined under the act.

What assurance do we have that this will be properly considered over time in order to ensure that we will not be back again in two or three years dealing with the same issue? One of the clear messages from the Descheneaux decision is that we can't continue to litigate this. What is the department's plan to ensure that this is addressed in a long-term meaningful way? I want to expand it from strictly discrimination on the basis of sex to a much broader perspective.

[The Chair, Liberal, MaryAnn Mihychuk]

A very short answer, please, of 30 seconds.