Mr. Speaker, I rise on a point of order with respect to the admissibility of two amendments made in committee to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).
Without commenting on the merits of those amendments, I submit that they are beyond the scope of the bill and should be ruled out of order.
House of Commons Procedure and Practice, second edition, states at page 766:
An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.
Citation 698(1) of the sixth edition of Beauchesne states that an amendment is out of order if it is irrelevant to the bill or beyond its scope. This issue has arisen on many occasions.
In a ruling on April 28, 1992, Speaker Fraser elaborated on the admissibility of amendments to bills referred to in committees after second reading:
When a bill is referred to a standing or legislative committee of the House, that committee is only empowered to adopt, amend or negative the clauses found in that piece of legislation and to report the bill to the House with or without amendments. The committee is restricted in its examination in a number of ways. It cannot infringe on the financial initiative of the Crown, it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be.
The Speaker does not get involved in committee issues except in cases where a committee has exceeded its authority, such as an amendment that is beyond the scope of a bill. In such cases, the Speaker is responsible for ruling on the admissibility of such amendments after the bill has been reported to the House. This is because the motion to refer the bill to committee after second reading establishes the principle and the scope of the bill. As a result, a committee report that is not consistent with that motion must be corrected.
On March 11, 2010, Bill C-3 was introduced. The bill's long title is an Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). The court ruled that two 1985 amendments to the Indian Act failed to eliminate gender discrimination in the second and subsequent generations. Those amendments provided a way for Indian women who had lost status through marriage to regain it and made it possible for the children of those women to be registered.
On March 29, 2010, the House of Commons unanimously adopted Bill C-3 at second reading and referred it to the Standing Committee on Aboriginal Affairs and Northern Development.
On April 23, 2010, the member for Nanaimo—Cowichan gave notice of a motion of instruction to the committee, which stated that it has the power to expand the scope of Bill C-3 so that a grandchild born before 1985 with a female grandparent would receive the same entitlement to status as a grandchild of a male grandparent born in the same period. This motion clearly indicates that the opposition was aware that changing the provisions of the bill with respect to a grandchild born before 1985 would be beyond the scope of the bill.
On April 27, 2010, the member for Labrador moved the following amendment in committee, which stated:
That Bill C-3, in Clause 2, be amended by adding after line 16 on page 1 the following:
(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;
Government counsel indicated in committee that:
...this amendment would take a radically different approach than the approach that is taken in Bill C-3. [Bill C-3] would amend 6(1)(a) of the Indian Act, which basically was the provision allowing the registration after 1985 of all the individuals who were previously entitled to registration. The [proposed] amendment would allow any person born before April 17, 1985 to be registered under section 6(1)(a) of the Indian Act if that person was able to identify an ancestor that was at the time of his or her death entitled to be registered, which obviously increases significantly the number of persons entitled to registration under the Indian Act.
The chair agreed with the advice of government counsel and ruled that the amendment was beyond the scope of Bill C-3 and was therefore inadmissible. The chair asked the committee procedural clerk to provide the committee with further detail on the ruling. The procedural clerk stated that the amendment exceeded the scope of the bill as it was approved in the House.
The member for Labrador acknowledged in committee that the amendment exceeded the scope of the court's decision by adding a new entitlement to registration by stating:
[The amendment is] not as reflective, maybe, as what was in the B.C. Court of Appeal's ruling, which was much narrower...It just expands the category of eligibility--
Notwithstanding the advice of government counsel, House staff and the acknowledgement of the member for Labrador, the opposition members of the committee voted to overturn the chair's ruling and adopted the amendment. The committee also made a change to the short title of the bill. The bill as introduced had a short title which stated: “This Act may be cited as the Gender Equity in Indian Registration Act”. The opposition members of the committee voted to change the short title of the bill to read: “This act may be cited as the act amending certain definitions and registration provisions of the Indian Act”.
The chair ruled that this change was admissible because of the first amendment that I described. However, the chair emphasized that if the opposition members of the committee had not overturned his ruling that the first amendment I described was inadmissible, the amendment to clause 1 would also have been inadmissible. In this regard, page 770 and 771 of the second edition of House of Commons Procedure and Practice states:
The title may be amended only if the bill has been so altered as to necessitate such an amendment.
The change to the title of the bill is a further recognition that the first amendment is beyond the scope of the bill. Precedents clearly support the inadmissibility of these changes.
On February 27, 2007, in the case of Bill C-257, An Act to amend the Canada Labour Code (replacement workers), the Speaker ruled:
Given the very narrow scope of Bill C-257, any amendment to the bill must stay within the very limited parameters set by the provisions of the Canada Labour Code that are amended by the bill...Therefore, on strictly procedural grounds, the Chair must conclude that the ruling of the chair of the committee was correct: these last two amendments do go beyond the scope of the bill as adopted at second reading and are therefore inadmissible.
Bill C-257 and Bill C-3 both have a particularly narrow scope that responds to narrow policy circumstances. As a result, the ruling on Bill C-257 would equally apply to Bill C-3.
I also cite a January 29, 2008, ruling with respect to an act to amend the Immigration and Refugee Protection Act. In that case, the committee decided not to adopt an amendment that would have been beyond the scope of the bill.
In responding to a letter from a member, the Speaker agreed with the committee decision and stated that the amendment would have been beyond the scope of the bill and therefore would have been inadmissible. The Speaker stated:
The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill...because it simply expanded the appeal provision already contained in the bill...in my opinion, the amendment was indeed inadmissible--
The April 23, 2010 motion proposing an instruction to the committee to expand the scope of the bill as well as the testimony of government counsel, House staff, the member for Labrador, and the committee chair's ruling all indicate that the amendment to Bill C-3 is beyond the scope of the bill and therefore should be ruled out of order.
Mr. Speaker, if you find this to be so, I submit that the amendment to the short title would also need to be ruled out of order since it would no longer correspond to the provisions of the bill.