moved that Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), be read the second time and referred to a committee.
Mr. Speaker, acknowledging that we come together on the traditional territory of the Algonquin people, I stand here to speak to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
On August 3, 2015, the Superior Court of Quebec, in its decision in the Descheneaux case, ruled that key registration provisions of the Indian Act unjustifiably violate equality rights under section 15 of the charter, and declared them of no force and effect.
The court suspended its decision for a period of 18 months until February 3, 2017, to allow Parliament time to make the necessary legislative changes. That decision was appealed before the court before the current government took office, but that appeal was withdrawn by this government in February of 2016.
Bill S-3 is the first stage of the government's two-staged response to the Descheneaux decision, and needed broader reform of registration and membership provisions within the Indian Act.
I will take this opportunity to thank the Standing Senate Committee on Aboriginal Peoples for its thorough and invaluable work under tight court mandated deadlines. I also want to thank the members of the Standing Committee on Indigenous and Northern Affairs for their understanding regarding the urgency surrounding this bill and for their work during pre-study of Bill S-3.
In keeping with the recommendations of the standing Senate committee, on January 20, 2017, the government sought and was granted a five-month extension of the court's ruling to permit more time to consider Bill S-3. Through the additional time provided by this extension, and the diligent work of the Senate committee, there have been numerous improvements made to the original version of Bill S-3, which have been welcomed and supported by the government.
The bill now proactively addresses further groups impacted by sex-based inequities which were identified by the Indigenous Bar Association. The recent decision by the Ontario Court of Appeal 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 and parliamentarians about whether the second stage of registration and membership reform would actually lead to meaningful change. That is why the government proposed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to update members and all Canadians on the progress toward broader reform. Three separate reports to Parliament are now in this legislation to hold the government to account regarding the second stage process, focused on broader reform of registration and membership provisions in the Indian Act.
The bill now would require the government to launch the collaborative stage II consultation process on issues within six months of the royal assent of Bill S-3. The bill would also require that as part of that process, the government consider the impact of the charter and, if applicable, the Canadian Human Rights Act. The requirements for the government to report to Parliament on the design of the collaborative consultation process within five months of the royal assent of Bill S-3, and to report to Parliament on the progress of that process within 12 months of the launch of those consultations are also included in the legislation.
The second report must also include details regarding the 1951 cut-off, the second generation cut-off, the categories for Indian registration, enfranchisement, adoption, and unstated/unknown parentage.
The bill also includes a three-year review clause regarding the amendments to section 6 of the act enacted by Bill S-3. The objective of this review is to determine whether all sex-based inequities have been eliminated. The bill also includes a declaration by the government regarding recommended amendments to the Indian Act.
I am committing, on behalf of the government and personally, to co-designing a process with first nations including communities, impacted individuals, organizations, and experts to deliver substantive registration reforms, including potential future legislative changes.
I have spent decades working on the issue of meaningful consultation, and finding ways to ensure that consultation incorporates voices beyond the usual suspects and provides participants with sufficient resources to engage. I can assure members and all Canadians of the government's absolute commitment that this will be a process where the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.
In stage II, charter compliance will be the floor, not the ceiling, and there may very well be areas of needed reform where no consensus is achieved. The government has made it clear that consensus will not be a prerequisite for action.
However, if the government is to act in the absence of consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation, and credible evidence about the potential impacts of reform. We must develop reforms which can be implemented in a way that ensures we have integrity in the system. Balancing the needed time to engage impacted people, through the parliamentary process, has allowed for only two truncated three-month engagement periods, even with the extension granted by the court.
There was not enough time to hold significant consultations on reforming Indian registration and band membership under the Indian Act.
Because of the tight court mandated deadline, the opportunity for consultations was limited, and I think it is important to talk about the intended scope of Bill S-3.
The goal of Bill S-3 is to remedy known sex-based inequities relating to registration in the Indian Act, which fall short of charter compliance based on the current state of the law. This is not restricted to situations where a court has already ruled, but extends to situations where the courts have yet to rule, and where we believe a sex-based charter breach would be found.
However, the government has been clear that in circumstances where the courts have ruled policies to be charter compliant, or where situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultation.
These issues have to be addressed during the second phase of the reform of registration and band membership under the Indian Act. It is important to note that this second phase will be a collaborative process.
The government must develop and initiate consultations on the broader reform within six months after the passage of Bill S-3, as stated in the bill.
Despite supporting numerous amendments proposed and adopted by the standing 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 is to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985, of individuals entitled to status under previous Indian acts, including those who lost that status for whatever reason. In simple terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.
Although the simplicity of this approach may seem appealing, I would ask all members to consider this position cautiously. While I believe the amendment was put forward with the best of intentions, the way the clause is drafted creates ambiguity as to whether or not it would do what it is apparently intended to do. This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the Senate committee, and by the Indigenous Bar Association at the House committee.
In fact, Drew Lafond of the IBA testified about the wording of the clause, noting, “We cautioned against simply inserting that in its current form...You run into technical problems with the language by simply inserting that into a bill because you run the risk of there being inconsistencies or some unintended consequences with that.
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. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non sex-based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the British Columbia Court of Appeal in the McIvor decision, where it was clear that this remedy is not required to make the provisions charter compliant.
The Supreme Court of Canada then refused leave to appeal that decision. This does not mean the government will not consider this as a potential approach in the context of a policy decision to address broader registration and membership reform. The government is open to considering this approach through stage II, and may be where it ends up, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the practical implications of implementing such an approach.
While arguing in the Senate committee for the need for further engagement on this clause, Senator Sinclair made that point noting: “The question becomes what impact will that have upon First Nation government. That is not a question we have the answer to...”
While the government is initiating that work now, preliminary estimates are not based on reliable data, and contain huge ranges of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest either end of the spectrum is what the likely 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 such an approach, it seems obvious that the necessary consultations were not held.
Many communities expressed concerns that this approach could have serious repercussions for them.
Communities could find themselves with huge numbers of new members with little or no connection to their community and without meaningful prior consultation. I want to understand the perspectives and concerns of vast numbers of potentially impacted people who have not yet been asked their opinion on the “6(1)(a) all the way” clause.
I want to be clear that I stand in solidarity with the indigenous women who have been fighting on all of these issues for decades. I hear their pain, the hurt of receiving a letter in which they were told that their marriage made them a white woman.
Whether courts have determined these remaining issues as charter issues or not, I want to be part of fixing these ongoing problems. I want to know from the people who have been advocating and studying these issues for a very long time whether this approach is the one we should take and if so, whether this clause is the best way to implement that approach.
We must be careful not to repeat the mistakes of the past where, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire, 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 members already know, the deadline for passing this bill is July 3rd.
If we do not have legislation passed that addresses the Descheneaux decision before July 3, the section struck down by the court will be inoperative in Quebec. The practical implication would be that these provisions will then become inoperative within Canada as the registrar would not be in a position to register people under provisions found to be non-charter compliant.
Ninety per cent of status Indians are registered under the provisions struck down by the Descheneaux decision. These applicants would then be unable to access benefits that come with registration and membership. In addition to 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 would not be able to register if the court deadline passes and the provisions noted above become inoperable.
I urge all members to act responsibly and to take into account the urgency with which we must act to pass this bill.
I ask all members to send the bill to committee swiftly so that it can be amended and sent back to the Senate in a form that delivers on the rights of 35,000 people now, and allows the government to begin the broader reform in a way that respects our duty to consult, international documents such as the United Nations Declaration on the Rights of Indigenous Peoples, and the need to get this right through the stage II process.
If this clause is interpreted in a way that implements 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. This clause would go well beyond the intended scope of Bill S-3, dealing with significant non-sex based registration issues, including enfranchisement, adoption, date of birth, and others. In fact, the amendment seeks to implement the precise remedy explicitly rejected by the B.C. Court of Appeal in the McIvor decision where it was clear that this remedy was not charter compliant.
I ask again that the House send the bill to committee now so that we can amend it. Then we can begin this very important work of stage II where we can get rid of all the inequities in the Indian Act, once and for all, and finally get this right.