Thank you, Madam Chair. It's great to be back at committee, and thank you for inviting me here to talk about Bill S-3, as we acknowledge that we come together on the traditional unceded territory of the Algonquin people.
Thank you also for understanding the urgency of this bill, and also for your work during this prestudy.
As you know, in response to the recommendations of the standing Senate committee, the government sought and was granted a five-month extension to consider Bill S-3. Through the additional time provided, there have been numerous improvements made to the original version of Bill S-3, which the government has welcomed and supported. The bill now proactively addresses further groups impacted by sex-based inequities, which were identified by the Indigenous Bar Association. The recent Ontario Court of Appeal decision in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.
In addition, I acknowledge the understandable skepticism of first nations, impacted individuals, and parliamentarians about whether the second stage of registration membership reform will actually lead to meaningful change. That is why in this bill we are proposing a series of amendments to report back to Parliament on a number of occasions, in a number of ways, to update you and all Canadians on our progress towards broader reform. Three separate reports to Parliament are now in this legislation.
On the stage two process, I need you to know that I am committing personally, on behalf of the government, to co-designing a process with first nations, including communities, including also the impacted individuals, organizations, and experts, to deliver substantive registration reforms, including potential future legislative changes. This will be a process in which the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.
I want to be clear that in stage two, charter compliance will be the floor, not the ceiling, and there may well be areas of needed reform on which there is no consensus to be achieved. The government has made it clear that consensus will not be a prerequisite for action. However, if the government is to act absent consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation engagement, and credible evidence about the potential impacts of reform.
Balancing the needed time to engage impacted people with that for parliamentary process has allowed only two truncated three-month engagement periods, even with the extension granted by the court.
Given the context of the limited engagement possible within the timelines imposed by the court, I think it’s important to address the intended scope of Bill S-3.
The goal of Bill S-3 is to remedy the known sex-based inequities relating to the registration in the Indian Act, which falls short of charter compliance.
This is not restricted to situations in which a court has already ruled but also extends to situations in which the courts have yet to rule but in which we believe a sex-based charter breach would be found. However, the government has been clear that in circumstances in which the courts have ruled that policies are charter compliant, in which situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultations, as is stated in the UN Declaration on the Rights of Indigenous Peoples.
Despite supporting numerous amendments proposed and adopted by the Senate committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment to clause 1 of Bill S-3 would seem to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985 of individuals previously entitled as Indians under previous Indian Acts, possibly back to 1876. In simpler terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.
While I believe this amendment was put forward with the best of intentions, the way the amendment is drafted creates ambiguity as to whether it would have the intended effect.
This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the committee and by the Indigenous Bar Association when it testified before this committee. If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities well beyond those that are sex-based.
The government is open to considering this approach through stage two, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the actual practical implications of implementing such an approach. While the government is initiating that work now, preliminary estimates are not based on reliable data and contain huge ranges of numbers of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest that either end of the spectrum is what the impact would be but to note the huge range of current estimates and the need for better data.
In addition to the current lack of understanding of the practical implications of the approach, it’s clear that the necessary consultation hasn’t occurred.
This clause may have profound impacts on communities, which could find themselves with huge numbers of new members with little or no connection to their community and without any meaningful prior consultation. I want to understand the perspectives and concerns of the vast number of potentially impacted people who have not yet even been asked their opinion on “6(1)(a) all the way”. This particular clause was not part of any prior consultation.
I want to be clear: I stand in solidarity with the indigenous women who have been fighting on these issues for decades. I hear their pain and hurt from having received a letter in which they were told their marriage made them a white woman. Whether these remaining issues are charter issues or not, I want to be part of fixing these ongoing problems. But we must be careful not to repeat the mistakes of the past, whereby, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire and unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right.
The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed. As many of you may be aware, the court deadline for this legislation is July 2.
If, by July 3, we don’t have legislation passed that addresses the charter compliance issues outlined in the Descheneaux decision, the clauses struck down by the court will be inoperative in Quebec.
The practical implication would be that these provisions would then become inoperative within Canada: 90% of status Indians are registered by the federal government under the provisions that would be inoperable. In addition to the up to 35,000 individuals waiting for their rights to be granted through Bill S-3, we cannot lose sight of the thousands of individuals who will not be able to register if the court deadline passes and the provisions noted above become inoperable.
In conclusion, I ask you to vote against proposed paragraph 6(1)(a)—the “all the way” clause—and send this bill back to the Senate in a form that respects our duty to consult and allows us the time, through stage two, to finally get this right.
