Debates of Nov. 29th, 2017

Indian Act

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

Mr. Speaker, the member should probably know that this is a response to the Senate, and we perceive that it is going to be moving, and at this point, we have a December 22 deadline.

What I would like to see is that when the government says that nothing is more important and it is committing to consultation, that it actually consults. If it has an example of a case like this, where it has legislation that it has to do in response to a court case, we think it would at least talk to the plaintiff before moving forward with introducing and tabling something in the House. The minimum should be that we would have that consultation process.

I would note that the words have been very nice. The right words are being said, however, in actual fact, when the rubber hits the road, when the government is required to do some consultation, it has been quite lacking.

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

[Member spoke in Cree]

[Translation]

Mr. Speaker, first of all thank you for giving me the opportunity to speak to this issue, which has been very important to me for many years.

I would like to begin by talking about the context in which we are debating changes to the Indian Act, to eliminate all forms of discrimination, especially against indigenous women who have been treated unfairly for many years under this act.

Earlier, I mentioned just how racist, sexist, colonialist, and outdated I think the Indian Act is. That is why I agree with the member for Saanich—Gulf Islands, who suggested earlier that we should simply get rid of the Indian Act for all these reasons.

I find it rather strange to rise today to speak to an act that we should get rid of. Why? To paraphrase the Prime Minister: because it's 2017. We should have gotten a lot further by now, especially when it comes to policies affecting the first peoples of this country.

In December 2015, after the current government was elected, I was in the room when the Prime Minister promised several things to Canada's chiefs. There were five major items in his speech. One of the promises he made in the 2015 speech to all indigenous leaders in Canada was that the government would review every piece of legislation passed unilaterally by previous governments and get rid of them. I was very pleased with this promise made to Canada's indigenous leaders because it is something I have been thinking about for a very long time.

When I heard the Prime Minister making this promise to all of Canada's chiefs, the first act that sprung to mind was the Indian Act. I believe that it is possible to replace the Indian Act with something else, especially in this era of reconciliation in Canada.

One of the other important promises that this government made to indigenous people was that it would adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples. In my view, this is the most important promise. Why not accept this framework, which would allow us to move forward?

I will read Article 9 of the United Nations Declaration on the Rights of Indigenous Peoples.

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

This is the new framework that must guide our debates on these issues in the House.

I do want to mention that I was pleased to hear the Minister of Justice say last week that the current government would support Bill C-262, which has to do with the United Nations Declaration on the Rights of Indigenous Peoples. I am happy that the government is supporting this bill. This bill addresses the 43rd call to action by the Truth and Reconciliation Commission, which calls upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

We should let this framework that is the UN declaration guide all of our debates involving the rights of indigenous peoples, whether on the Indian Act or other agreements. This is what Bill C-262 proposes, and I am happy to hear that the government will support it. We will see how these issues are debated next Tuesday, during the first hour of debate on Bill C-262.

However, as I pointed out in my question to my colleague, even if the bill is passed, it will not include the three lady warriors who fought against the discrimination perpetuated under the Indian Act for nearly 40 years. I think this is cause for concern.

One part of this bill aims to eliminate all discrimination committed under the authority of the Indian Act. As an indigenous person, I would have a hard time rising in the House to support a bill that does not fully eliminate discrimination. I will never rise in support of a bill that continues to discriminate against this country's first peoples. It will not happen.

As the bill currently stands, there remains entrenched sex-based discrimination in the bill. Ideally, the government would respect the wishes of the parties to the case, as well as stakeholders, in keeping with the current international human rights standards, specifically articles 3, 4, 7, 8, and 9, which I have just read, and article 33 of the UN Declaration on the Rights of Indigenous Peoples.

We want all gender discrimination to be eliminated from the bill before it is passed by the House of Commons. We also want the liability clause to be removed entirely. I will never take away the right of an individual to sue the government for past wrongs. I will never allow this place to pass legislation that eliminates that right. Therefore, I will be moving amendments to that effect shortly.

We must remain critical of a bill that does not entirely address all discrimination, and also critical of the slow pace of change and the failure by successive governments thus far to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples, since adhering to the declaration would provide a basis for Canada to address all systemic problems within the Indian Act. It is important to do so in this era of reconciliation.

I would like to address the insubstantial nature of what passed the Senate and is poised to be adopted by this chamber. I say this because the government is promising to do only what the courts have ordered. No one should be fooled by the rhetoric into thinking that this bill, as it stands, addresses paragraph 6(1)(a) registration rights for indigenous woman, who have been seeking that status for over 40 years of litigation, namely Jeannette Corbiere Lavell, Sharon McIvor and, most recently, Dr. Lynn Gehl. Beneath the rhetoric, the bill represents an insubstantial aspiration that leaves complete discretion to the government to extend 6(1)(a) to everyone because there is no mechanism for implementation or accountability. In fact, this bill leaves so much to be desired that Sharon McIvor and Dr. Pam Palmater are headed to Washington to make a submission to the Inter-American Commission on Human Rights to ask them to intervene regarding Bill S-3 to make sure this government addresses all gender discrimination.

Many indigenous women's groups have called attention to the provisions of proposed section 10. With this clause, the government is justifying past discrimination and past violations of human rights. If we truly believe in the rule of law in this place, then this cannot happen. With this clause the government is justifying past injustices, and this should not be tolerated.

The government would continue to discriminate with impunity until it chooses to address it or is forced to address it. In my view, this underscores the sense of colonial entitlement. It undermines the rule of law. The crown has a fiduciary responsibility to first nations. It owes fiduciary duties to the people. It cannot be given impunity for its conduct because that would essentially enable breaches of the law and breaches of potential fairness to many people. With this bill, we are giving it licence to do whatever it wants, without consequence.

I want to quote Lynn Gehl, who says:

Not addressing the 1951 cutoff because the court said that the issue was one of matrilineal lineage versus sex discrimination was wrong.

....I’m of the position that the hierarchy created in 1985 between Indian men and their descendants as they are registered as a 6(1)(a) and Indian women who are only registered as a 6(1)(c) must be abolished if you want to eliminate the sex discrimination and end this process of amending the Indian Act.

In their letter that I referenced earlier, Sharon McIvor, Jeannette Corbiere Lavell, and Lynn Gehl wrote to the ministers and said:

We are writing to request confirmation that when Bill S-3 passes in the House of Commons there will be no change to the current category of Indian status accorded to Sharon McIvor (6 (1)(c)), and Jeannette Corbiere-Lavell (6(1)(c)), and Dr. Lynn Gehl (6(2))....

They continued:

None of us is affected by the 1951 cut-off introduced by Bill C-3 in 2010. Our reading of the motion introduced by Senator Peter Harder in the Senate on November 8, 2017 is that we, and the many Indigenous women who are similarly situated, will not be accorded 6(1)(a) status when Bill S-3 passes.

Again, this is equality delayed and the consequence is equality denied.

I too share the concern about the consultation process. It seems that the government only consults when it is convenient. Yes, I agree with the minister that there is a constitutional obligation to consult indigenous peoples when their rights and interests are affected, but it has to be applied throughout. I do not recall if the indigenous nations affected by the Site C dam, for instance, were ever consulted. In fact, it was to the contrary. They were being intimidated by BC Hydro with lawsuits. That constitutional obligation to consult has to be applied throughout.

In the case of the bill before us, I reiterate that it falls short of settling everything. The bill continues to discriminate. The Indian Act, in fact, is archaic and we need to get rid of it. The no-liability clause, as I mentioned, is a major problem. If we recall, last June I proposed amendments to that effect, which were rejected. If the amendments introduced back in June had been accepted, we would not be here today. We would not be debating this issue anymore. Unfortunately, they were rejected.

Since my time is quickly running out, I will close by saying that it is essential that the House consider the suggestion I just made of getting rid of the Indian Act altogether and giving first nations, Inuit, and Métis the right to decide whether or not to recognize their own members.

I think that is one of the fundamental rights that we successfully negotiated in the United Nations declaration on the rights of indigenous peoples. It is up to indigenous communities to decide who their members are, something that the Indian Act still does not allow them to do.

I am therefore proposing amendments so that the motion would now read as follows:

That a Message be sent to the Senate to acquaint Their Honours that, in relation to Bill S-3, An Act to Amend the Indian Act (elimination of sex-based inequities in registration), the House:

1. agrees with amendments 1 to 6, 8 and 9(a) made by the Senate;

2. proposes that amendment 7 be amended by replacing the words “Replace line 3 with the following: 'ly before the day on which this section comes into'” with “Delete clause 10”;

3. proposes that clause 11 of Bill S-3 be amended by adding the following on page 9 after line 33:

“(3) The consultations must be completed within 18 months of the day on which this Act receives Royal Assent.”

4. proposes that amendment 9(b) be amended by replacing “on a day to be fixed by order of the Governor in Council, but that day must be after the day fixed under subsection (1)” with the words “18 months after the date that the order in subsection (1) is made”.

Those are the amendments that I am proposing, and I hope that the House will accept them this time.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

Page 791 of House of Commons Procedure and Practice states that:

The motion must relate exclusively to the Senate amendments, and not to other provisions of the bill that are not contemplated by the amendments.

The hon. member for Abitibi—Baie-James—Nunavik—Eeyou proposed deleting clause 10 while the Senate is simply proposing a technical amendment.

He also proposed deleting clause 11 while that clause is not contemplated by the Senate amendments.

I regret to inform the hon. member that this amendment is out of order as it exceeds the scope of the Senate amendments that are before the House.

Message from the Senate

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed Bill S-218, an act respecting Latin American Heritage Month.

The House resumed consideration of amendments made by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

Indian Act

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

Before resuming questions and comments, it is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Saint-Hyacinthe—Bagot, Public Services and Procurement; the hon. member for Vancouver East, Immigration, Refugees and Citizenship; the hon. member for Lethbridge, Taxation.

The hon. Parliamentary Secretary to the Minister of Crown-Indigenous Relations and Northern Affairs.

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Indigenous and Northern Affairs]

Mr. Speaker, I have a couple of comments I would like to make and a question. First of all, the member opposite talked about repealing the Indian Act, and it is probably the desire of all of us, at least on this side of the House, to repeal the act, but we also know that we have a fiduciary responsibility and that, in the absence of other legislation, it is not responsible for government to proceed in that way at this time.

However, we are creating a way and a mechanism to get there. That is the broader agenda of what government is engaged in and what the Minister of Crown-Indigenous Relations and Northern Affairs has spoken to. In the meantime, we also have a responsibility to honour the rulings of the court. The rulings of the court indicate that we eliminate all sex-based discrimination against women within the Indian Act. That is exactly what we are doing.

In fact, it has been with the tremendous support of the Senate that we are able to get to where we are today. I would like to ask the member a question, because Senator Sinclair has said:

I would like to add my support for this motion and indicate that I intend to vote for it.... The amendments before us, to my relief, leave no legal distinction between indigenous men and women. It brings the act, therefore, into compliance with the Charter.

The member opposite also knows that we have gone beyond the 1951 cut-off amendment in Bill C-3. In fact, we have made amendments in the bill that would include circumstances prior to 1951 and remedy sex-based inequities back to 1869. I ask why the member opposite will not support these amendments in Bill S-3.

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

Mr. Speaker, I want to thank my colleague opposite for her important question. I would like to start by responding to her comments.

It is true that we cannot, in 2017, continue to live under the Indian Act. The idea of getting rid of the Indian Act did not come out of the blue. Since 1984, the Indian Act has not applied to the James Bay Cree or to the Naskapi, in northern Quebec. The Cree and the Naskapi negotiated a new law that has been in force since 1984, specifically to get out from under the Indian Act.

The member says rulings of the court must be honoured. That is fine, but so must the Canadian Human Rights Tribunal's rulings on indigenous children. Let us not forget that there is a ruling requiring the government to settle the matter, not to mention three other court orders, and maybe a fourth on the way. The member should make sure she remains consistent with what she is saying.

I do agree that it is important to honour court rulings. However, our Constitution establishes the rule of law, which requires us to abide by our Constitution. This means we must also abide by section 35 of the Canadian Constitution, which relates to aboriginal and treaty rights. In my view, the Indian Act does not respect the fundamental rights of this country's first peoples.

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

Mr. Speaker, I would like to thank my colleague, with whom I work on committee quite regularly. He has also been in this place for a long time.

This is a bit of a process question. As I indicated in my remarks, we started this over a year ago. It has been back and forth with the Senate. We certainly tried, in good faith, to move it along for two prior court deadlines.

Has the member ever seen a piece of legislation come before him where the process was so flawed and with so many challenges within the legislation that, in actual fact, it had to go right back to the starting block?

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

Mr. Speaker, my colleague asks a very good question.

The short answer is no. However, I know it is always difficult to address such matters here in the House. I have been here for just over six years, and I have never seen a process as flawed as this one, to borrow my colleague's words. I agree with her completely.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, with respect and acknowledgement to my colleague and his leadership on this issue, I want to take us back to a year ago.

The United Nations Committee on the Elimination of Discrimination against Women was very specific in its criticism of the government. This is a document dated November 18, 2016, from UN CEDAW. It notes that:

the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status.

The committee recommends that [Canada] remove all remaining discriminatory provisions of the Indian Act that affect indigenous women and their descendants, and ensure that indigenous women enjoy the same rights as men to transmit their status to their children and grandchildren.

On June 21, national indigenous day, my colleague moved amendments, and we watched the Liberal government members voting those provisions down, without even seeming to understand that they were in fact voting against full gender equality for indigenous women.

Now here we are again today with the litigants, the three women, Sharon McIvor, Jeannette Corbiere-Lavell, and Lynn Gehl. Some of these women have been fighting this for four decades. They do not support this amendment and this legislation that the government has put before us today.

In what way can this incremental gender equality be accepted for indigenous women, when it is so out of step with the commitments of the government?

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

Mr. Speaker, I thank my hon. colleague from Nanaimo—Ladysmith for her question.

It is a good thing that she reminded us about the decisions by some UN bodies on this issue. I myself worked on these issues at the international level for more than 23 years. Every time such a body issues a report addressing human rights issues, I believe it is important to keep it in mind as we develop legislation in the House. We often forget that we are signatories to a number of international human rights conventions.

I believe that these conventions should guide our legislative process. Under the Constitution, it is assumed that legislation introduced and passed in the House of Commons complies with international law, especially on matters of human rights. I believe that we too often forget this aspect of the question.

I hope that from now on, given that the government seems willing to adopt and implement the United Nations declaration on the rights of indigenous peoples, this will serve as our framework for all future bills and policies. I believe this to be essential. In this era of reconciliation, we do not have a choice; it is the path we must follow from now on.

[Yvonne Jones, Liberal, Parliamentary Secretary to the Minister of Crown-Indigenous Relations and Northern Affairs]

Mr. Speaker, I am pleased to speak to Bill S-3 today, and I will be splitting my time with the member of Parliament for Scarborough—Rouge Park.

The minister, in her address earlier today, gave a tremendous overview of the changes and critical components that make up the amendments in Bill S-3. As members know, since last fall, the government has been working to make these amendments based on the superior court decision of Quebec in the case of Descheneaux and in the last number of months we have worked with the Senate to clarify certain components of the bill and to ensure there were no charter violations and that we could, in fact, go beyond what was being recommended to ensure that we were doing everything we could possibly do at this stage to end any clauses with sex-based inequities within the bill.

Today, I want to thank all of those who did this work in the Senate Standing Committee on Aboriginal Peoples, senators, witnesses, and many others who appeared before the committee. We also appreciate the support and co-operation they gave government to make what we believe are some really significant improvements that we are happy to propose in this bill.

A number of previously unknown groups that were impacted by sex-based inequities were added to the bill and the government has worked with senators to address the issue of unstated paternity by enshrining additional procedural protections in law through Bill S-3. The bill was also amended to require the government to report back to Parliament on a number of occasions and in a number of ways to update parliamentarians and all Canadians on its progress toward broader Indian Act registration and membership reform. All of the amendments were welcomed and supported by the government.

The Senate Standing Committee on Aboriginal Peoples also added an amendment to Bill S-3, with the intent of implementing what was known as the 6(1)(a) clause or 6(1)(a) all-the-way approach. Basically, the intent of this amendment was to provide entitlement to 6(1)(a) Indian status to all of those who had lost their status back to 1869 and all of their descendants born prior to 1985. This amendment was passed and referred to the House of Commons.

We are amending the bill that has been passed by the Senate in three particular ways: first, we are changing the title of the bill; second, we removed 6(1)(a) all-the-way amendment; and third, a reference to UNDRIP was added to the bill review clause. As members know, UNDRIP was signed onto by this government and members can expect much more detail around our commitment to and implementation of UNDRIP to come in the weeks to follow.

It has been a long process to get here. I know that many have said that we should just repeal the Indian Act. I can guarantee that is a sentiment that has been shared by the Minister of Crown-Indigenous Relations and Northern Affairs and our government for a long time. However, we know that our responsibility is really to ensure there is legislation in place in Canada that responds to the needs of indigenous people. Our goal at the end of the day is to ensure that is in place.

In the meantime, we have made significant changes and amendments to this bill. In fact, through this bill, we are ensuring that we will provide status to all women who have lost their status through sex-based discrimination, as well as their descendants born prior to 1985 or after 1985 if their parents married each other prior to that date. This includes circumstances prior to 1951 and, in fact, remedies sex-based inequities going back to 1869.

Should the House of Commons pass the version of Bill S-3 that the Senate passed on November 9, the bill, with the exception of the 1951 cut-off amendment, would be brought into force immediately after receiving royal assent. This is something that has been welcomed by indigenous governments across Canada.

At that time, the second generation cut-off rule would be eliminated for women who lost their status as a result of gender-based inequities and had children between 1951 and 1985, as well as for their descendants who were born during that same period. The additional amendment regarding the 1951 cut-off, which was proposed by the government and is included in the current version of Bill S-3, would be brought into force after further consultations and the co-development of a comprehensive implementation plan to address the impacts of removing the 1951 cut-off.

That seems to be the obstacle that my colleague who spoke previously is having some trouble with. However, this is a responsible and prudent way of proceeding, that the government implement this amendment in a way that would eliminate or mitigate any unintended negativity or consequences for communities and individuals. We have been hearing this from many people, and we know all agree that this needs to be done, but we have to be responsible about how it gets done. We have to ensure that those who are to care for and absorb those extra constituencies within their nations have the ability to provide the services and the care in an appropriate way.

The version of the bill that is before the House today would remedy all residual Indian Act registration inequities flowing from sex-based discrimination. I think that is the important factor. Just as the Senate has supported this motion and has outlined its support in many speeches and comments within the Senate, we do the same on this side of the House within the Government of Canada, because we know it is the right thing to do. It is time for us to really make the drastic changes that indigenous Canada has been asking for and wanting for a very long time. This is just the beginning. There is a lot more work to do, and we can assure members that the government is ready to do that.

We ask that all members support the bill before the House today.

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

Mr. Speaker, I would like to go back to the same issue that I had asked the minister about, the consultation process and coming to an agreement, because the framework of the UN declaration is embedded in this piece of proposed legislation. I expect there are going to be significant variances of opinions across this country in terms of what to do and how to do it. How is the government going to bring this to a conclusion, respecting both the UN declaration, as it committed to in the legislation, and its commitment to actually come up with something that is going to move it forward?

I think the government has a big challenge ahead, and I would like to know how it will address those two particular issues.

[Yvonne Jones, Liberal, Labrador, NL]

Mr. Speaker, I do not think there is any doubt whatsoever of the sincerity of this government to act upon the inequities and discriminatory factors that exist within the legislation. I also do not think that there is any doubt about this government's consultation practices. We have probably consulted more with people in this country than any other government before us on all decisions that we take. We feel that is a prudent and active way of implementing new legislation, but also to be inclusive and to listen to what others have to say.

This is what Senator Sinclair said in debate, and I want to point this out to the member, because I think it is very important:

I want to point out that this bill attempts to reconcile two different constitutional obligations that the government has: One is, of course, to comply with the Charter when it comes to gender discrimination; the other is to comply with its constitutional obligation to consult with indigenous people...So while it is with reluctance that I see us delaying the implementation of a Charter right, I can also see the need to do so because of that competing constitutional obligation to consult. And so I am prepared to support this legislation because it enshrines the right.

Need I say more?

Canada knows that this is a government that has a practice of consultation. Our decisions are grounded on the views and perspectives of Canadians, and we intend to continue on that path.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, it is unfortunate that the Liberal government is taking such an important and fundamental issue so lightly. It has done what my mother would call a real shoddy job.

I will now quote someone who knows a thing or two about this, Perry Bellegarde, the national chief of the Assembly of First Nations, who said: “I will say, however, that intended efforts to fix the Indian Act are basically doomed to fail. The essence of the Indian Act is a colonial mindset that can only be tossed aside. It is time to embrace and implement the minimum standards of the United Nations Declaration on the Rights of Indigenous Peoples because each First Nation is entitled to discuss with the Crown their vision of transition to move beyond the Indian Act.”

Instead of using some kind of patchwork or band-aid solution, should the Liberal government not meet our international obligations and create a statute based on human rights, rather than a completely outdated and antiquated concept like race?

[Yvonne Jones, Liberal, Labrador, NL]

Mr. Speaker, Bill S-3 is sexist, and the Indian Act is sexist and racist. It is a colonialist piece of legislation. We will be the first to admit that. At some point it has to be repealed and replaced.

The Assembly of First Nations has said that it supports passing the current amended version of Bill S-3, which is the bill we are debating today.

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

Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act.

This Senate bill is in response to the superior court of Quebec's decision in Descheneaux v. Canada and has undergone several iterations. I am pleased to support this set of amendments, which will effectively eliminate sex discrimination under the Indian Act.

I want to begin by acknowledging that we are gathered here on the traditional unceded lands of the Algonquin peoples.

It is hard to believe that we are having this debate today, in 2017, on sex equality. It is even more disturbing that those making the decision on such a fundamental issue of Indian status for first nations peoples are not members of any first nations communities themselves but are primarily from settler communities. The irony is not lost on me. What is equally absurd is that it has been primarily men making these decisions. Our Indian Act, unfortunately, makes this absurd debate necessary.

The renewed relationship our government seeks to establish with first nations communities on a nation-to-nation basis will untangle first nations peoples from the shackles of colonialism and the Indian Act and will set our country towards a path of true reconciliation.

The Indian Act is deeply rooted in racism and has for generations resulted in uneven and racialized outcomes for our first nations peoples. The Indian Act essentially controls the lives of our first nations peoples. It defines who is and who is not an Indian, where they live, whom they should live with, and so on. It separates first nations peoples from the rest of Canada, physically, through reserves, but also in virtually every aspect of life.

The numbers speak for themselves. I am just going to give some examples. In 2011, 26.2% of first nations people on reserve lived in overcrowded housing, compared to 4% of non-aboriginal people. In education, 39.8% of first nations people do not have high school or a post-secondary degree. Only 12.1% of non-indigenous people do not have a high school diploma or a post-secondary degree. We could go on with life expectancy, suicide, and income.

On virtually every measure available to assess social well-being, Canada's first nations people rank lower in comparison to their settler counterparts. None of the constraints of the Indian Act, however, have been more scrutinized and more painful than the definition of who is and who is not an Indian.

Notably, this Indian Act discriminates against women in a systemic and structural way, leading to inequities in membership and having an effect on their daily lives. Discrimination based on sex has affected the children, grandchildren, and their generations of kin by excluding them under the Indian Act. The amendments to Bill S-3 we are debating today aim to correct that trajectory and ensure that sex discrimination is eliminated from the Indian Act once and for all.

I want to walk members through the history. The issue of sex discrimination has been dealt with by Parliament on several occasions. However, in each round, the amendments made in the House did not go far enough to ensure that sex discrimination was eliminated altogether.

The amendments initially considered under Bill S-3 were in response to a superior court of Quebec decision in Descheneaux v. Canada, rendered in 2015. The Quebec court deemed the provisions of the Indian Act to be in violation of the Canadian Charter of Rights and Freedoms, as it treated grandchildren descended from a status Indian man and a status Indian women differently by providing status to the former and denying it to the latter.

Madam Justice Chantal Masse cautioned the government to ensure that any legislation that stemmed from the decision ought to have an expansive view of the issue of sex-based discrimination under the Indian Act. I would like to quote paragraph 239 of her decision:

When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

After considerable back and forth with the other place, we are here today to eliminate sex-based discrimination in the Indian Act altogether.

During debate this summer, we heard from many witnesses, including women whose lifetime of work advanced the issue of gender equality in the Indian Act. It was a very painful experience for most of them. We also heard from many bands and communities that they alone have the right to define the citizenship of their people. I believe that both seemingly divergent views are not incompatible. Ultimately, first nations people should have the say as to who their citizens are, but in a manner that does not discriminate against one particular gender.

I want to take a couple of minutes to outline previous attempts to remove sex-based discrimination from the Indian Act. The sex-based inequities in the law we are grappling with today have their roots in the patrilineal transfer of Indian status that existed in the Indian Act prior to 1985, and the subsequent imperfect attempts to end discrimination in the act.

With the introduction of the Constitution Act, 1982, and the Charter of Rights and Freedoms, explicit discrimination in the Indian Act finally had to be changed to comply with section 15 charter rights.

Bill C-31 was introduced to make the Indian Act charter compliant. It unfortunately did not go far enough. In fact, it is Bill C-31, including the introduction of the second generation cut-off and the subsection 6(1) and 6(2) categories of Indian status that inevitably opened new sex-based inequities and the inability of individuals to pass on status to their children and grandchildren. The residual sex-based inequities that remained in the act resulted in a rise in registration-related legal challenges.

One such challenge was launched by Sharon McIvor. Dr. McIvor's case centred on her ability to transfer status to her children. Since Dr. McIvor married a non-Indian, she was only able to transfer section 6(2) status to her son, Mr. Grismer. As Mr. Grismer also married a non-Indian, he was not able to transfer status to his children. However, had Sharon McIvor had a brother who was also married to a non-Indian, prior to 1985 their child would have been entitled to status under 6(1). Because of this discrimination, the B.C. Court of Appeal struck down paragraphs 6(1)(a) and 6(1)(c) of the Indian Act and gave Parliament one year to respond.

Bill C-3 was introduced by the previous Conservative government in response to the McIvor decision. However, the government decided that it would interpret the decision as narrowly as possible and that it would not address other obvious examples of sex-based discrimination in the act.

At the time, Marc Lemay, a former Bloc MP, rightly pointed out, “As we speak, a dozen or so of these complaints are before the courts in various jurisdictions across Canada, including one or two similar cases currently before Quebec courts.” I have no doubt that the cases in Quebec he was referring to were those of Stéphane Descheneaux and Susan and Tammy Yantha.

It only took six years for us to arrive back here again to pass amendments to the Indian Act to address discrimination, which should never have existed, with Bill S-3. Like Bill C-3, Bill S-3 did not initially take an expansive approach to addressing discrimination in the Indian Act. Initially, Bill S-3 addressed only the cases ruled by the Superior Court of Québec: the cousins and siblings issue and the issue of omitted minors.

I can continue to give more examples of where we have failed, but it is very clear that today, as we stand, we have the right balance to ensure that we eliminate sex-based discrimination from the Indian Act once and for all.

There would be a process of consultation that would ensure that people, particularly women, would not have to go to court to assert their rights. It is embedded in the legislation today. The bill would ensure that any discrimination based on sex, dating back to 1869, would be addressed once and for all. This is an important amendment we need to make to the Indian Act.

As my colleagues have previously said, as we walk toward elimination of the Indian Act, this is a necessary evil that will ensure that we do not continue to discriminate on the basis of sex.

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

Mr. Speaker, it was a little over a year ago, I believe, when my colleague asked us to pre-study Bill S-3 so we could move it forward to make the Supreme Court of Canada deadline, which as we now know, has had to be extended numerous times since.

Mr. Descheneaux came before us at committee and stated that he had no contact with the government. He was the plaintiff in the case, and he had had no contact with the government before it tabled the bill. He was the successful litigant who had brought the case forward.

Can my colleague explain to Mr. Descheneaux why there was such a gap in the process? In spite of the government's commitment to ongoing consultation, it brought forward legislation when it had not even consulted the successful plaintiff.

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

Mr. Speaker, we would not have even had to deal with Descheneaux had the previous government ensured that the McIvor decision was implemented in an expansive way. The decision in Descheneaux said that we needed to look at an expansive way of defining membership.

Yes, it has taken some time. It has gone back and forth to our learned colleagues in the Senate through a number of iterations. I think we are in the right place right now to pass this and to ensure that no other person has to go through the painful process of litigation to assert their rights because of discrimination based on sex.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, as I did earlier, I want to highlight that it is unfortunate that the Liberal government is trying to patch up the problem rather than taking a more global approach to the issue.

I would like to quote the current Minister of Justice, who was the regional chief of the BC Assembly of First Nations. In 2010, she said this to the House of Commons standing committee:

What this bill does not do is address other Indian Act gender inequities that go beyond the specific circumstances of Sharon McIvor and Sharon McIvor's grandchildren.

The Liberals criticized the previous government for only addressing a specific case, but they are doing the same thing today.

Is it a habit to say one thing when in opposition and to do the opposite when in government?

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

Mr. Speaker, it is fair to say that there is a comprehensive plan in place by our government to ensure that we reach the point of true reconciliation with our indigenous people. That includes having two very capable ministers whose mandates will ensure that we develop long-term nation-to-nation relationships while addressing the short-term needs and concerns of our indigenous communities. It is a program that is backed by a significant amount of investment.

There is absolutely no question that we have a long way to go. However, with all the efforts made by our government, including our commitment to UNDRIP, I think we are well on that path. This is an issue we can move forward with in a non-partisan way. It is unnecessary to keep going back to the previous divisions among our parties. It is important that we move forward as one to ensure that true reconciliation takes place in Canada.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, listening to the debate reminds me of when Bill C-51 was being passed by the previous government. It was a bill with flawed security legislation, tied into a bundle of legislation, that would take away some rights from Canadians. The NDP and Green parties felt that we should get rid of the legislation altogether, versus determining how we could surgically fix the legislation.

I wonder if the member for Scarborough—Rouge Park could comment on the parallel situation we face here, where throwing out the legislation is not the right answer, but surgically fixing it is.

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

Mr. Speaker, this is deeply flawed legislation. The Indian Act should not exist in our books. It has hurt so many generations of people, and it demonstrates a horrible human rights record for our country. I concur with my other colleagues that the Indian Act needs to go.

In the interim, it is impossible to repeal it without having the proper mechanisms in place to ensure our legal obligations, our international obligations, and our need to implement UNDRIP are met. That will take some time. Until then, the surgical insertion of these amendments is necessary, but we definitely are going toward a path where we need to eliminate the act altogether.

The House resumed from November 22 consideration of the motion, and of the amendment.