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Consideration of the sixth report of the Standing Senate Committee on Aboriginal Peoples (Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration))

1st Session, 42nd Parliament, Volume 150, Issue 124

Hon. Lillian Eva Dyck moved the adoption of the report.

She said: Honourable senators, Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) comes back from the Standing Senate Committee on Aboriginal Peoples with eight amendments.

In total, the government proposed six amendments. All six proposed government amendments were accepted. An additional two amendments were also accepted. I will now proceed to explain each amendment passed by the committee in the order they were adopted.

The first amendment amended clause 1 to include a new section 1-1 on unknown or unstated parentage. This amendment is a result of the Ontario Court of Appeal decision in Gehl v. Attorney General (Canada) which was decided in April 2017. This amendment ensures procedural fairness and clarifies the type of evidence the Registrar shall consider when determining parentage on applicants in situations of unknown or unstated paternity. It provides for the provisions of acceptable evidence to favour inclusion unless there's very credible contradictory evidence. This amendment was supported by the government.

The second amendment amended clause 1 by adding the following after line 7:

(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), (e), or (f) as they read immediately prior to April 17, 1985.

(a.2) The purpose of this provision is to entitle the registration under s. 6(1)(a) those persons who were previously not entitled to registration under s. 6(1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985.

This amendment was proposed by a number of witnesses that appeared before our committee. I'm sure Senator McPhedran, the mover of the amendment, will speak to it in more detail during the course of our chamber debate. This amendment was not supported by the government.

The third amendment amended clause 1 by including two other scenarios where sex-based inequities can occur as a result of the initial remedies to address the siblings and cousins issues included in Bill S-3. These scenarios were identified by the Indigenous Bar Association. This amendment was supported by the government.

The fourth amendment amended clause 1 to correct a drafting error. This amendment was supported by the government.

The fifth amendment amended clause 2 to allow all individuals entitled for registration under the new categories, 6(1)(c.02), 6(1) (c.5) and 6(1)(c.6), to also be entitled to have their names entered on a band list maintained by the department. This is a consequential amendment to creation of new categories of registration in sections 6(1)(c.02), 6(1)(c.5) and 6(1)(c.6) of the Indian Act that Bill S-3 will create.

The sixth amendment amended clause 7, on page 5, by adding the following after line 38:

7.1 The provisions of the Indian Act that are amended by this Act are to be liberally construed and interpreted so as to remedy any disadvantage to a woman or her descendants born before April 17, 1985 with respect to registration under the Indian Act as it read on April 17, 1985, and to enhance the equal treatment of women and men and their descendants under the Indian Act.

This amendment is an interpretive clause.

The seventh amendment amended clause 8 to provide that all of the new categories for eligibility for Indian registration created by the amendments proposed by the Indigenous Bar Association are referred to in the existing non-liability clause. This is a consequential amendment to the third amendment. This amendment was supported by the government.

The eighth amendment amended clause 8 to include various requirements for consultation by the minister and reports to Parliament for Phase II. Included in this amendment is the requirement for the minister to report, within five months of Royal Assent, to each House of Parliament on the design of consultations that the minister is to carry out in Phase II. Further, the minister is required to report within 12 months on progress made on Phase II. Lastly, within three years the minister must undertake a statutory review on this act, as well as section 6 of the Indian Act. The review must be tabled in each House of Parliament, including what the minister recommends in order to reduce or eliminate any persisting sex-based inequities. All reports must be published on the department's website immediately after tabling. The government supported this amendment.

Colleagues, the committee has also chosen to append observations to this report. I will now read the observations into the record because I believe that the observations provide a good context for the amendments.

These are the observations:

Bill S-3 was introduced in the Senate in October 2016 in response to the ruling of the Superior Court of Quebec in Descheneaux v. Canada, Attorney General. In that decision, the court declared invalid section 6(1)(a), (c) and (f) and section 6(2) of the Indian Act as being contrary to the Canadian Charter of Rights and Freedoms on the basis that they discriminated against indigenous women and their children. The court suspended its declaration of invalidity to allow the government an opportunity to amend the legislation to bring it into line with the Charter and warned the government to look at all of the gender discrimination provisions in the Indian Act and not simply those addressed in Descheneaux.

In November 2016, Bill S-3 was referred to the Standing Senate Committee on Aboriginal Peoples. During the initial study of Bill S-3, your committee heard from various witnesses that there had not been adequate engagement and consultation on Bill S-3. Further, the committee heard that Bill S-3 did not eliminate all sex-based inequities in Indian registration. As such, your committee decided not to proceed with Bill S-3, but instead held it in abeyance and asked the government to address these concerns.

The government obtained an extension of the court deadline to July 3, 2017, to allow Parliament to amend the act. In May 2017, the committee resumed its study of Bill S-3 and the government proposed a series of amendments for your committee's consideration.

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Your committee feels that Bill S-3, even with the proposed government amendments, continues a piecemeal approach in dealing with sex-based discrimination whereby amendments to the Indian Act are introduced on a case-by-case basis in response to court decisions.

Once again, we are undertaking this work under a court-imposed deadline. If we fail to act, it could result in the inability of the government to register individuals seeking status. This approach leaves us, as legislators, in the position of deciding who is eligible for Indian status now and who will continue to wait.

Your committee heard from the government witnesses that their proposed amendment would only address known sex-based discrimination and similar scenarios of discrimination to those addressed in Descheneaux. Additionally, the government proposed an amendment in response to the issue of known and unstated paternity arising from the recent Ontario Court of Appeal decision in Gehl v. Attorney General (Canada).

During clause-by-clause consideration, your committee accepted these proposed amendments with modifications. Nonetheless, your committee heard from legal experts and First Nation witnesses that the proposed government amendments to Bill S-3 still did not eliminate all sex-based discrimination. Your committee feels that the federal government's approach allows discrimination in the registration provisions to persist with the promise that it will be fixed in the future. To remedy this concern and to ensure that registrations can continue past the point of the new court deadline, your committee passed a broader amendment whose purpose is "to entitle to registration under section 6(1)(a) those persons who were previously not entitled to registration" due to differential treatment of Indian men and women born prior to April 17, 1985, in the registration provisions of the Indian Act.

We agree with a number of witnesses who told us that this amendment would provide the opportunity to restore rights finally to a larger number of indigenous women and their children. Regrettably, the department was not able to provide us with information on the number of people affected by this amendment. In future, we hope the department will make such information available to us.

To ensure that your committee can hold the government accountable to its Phase II commitments, we supported the proposed amendments to Bill S-3, which require publicly accessible progress reports to be tabled in Parliament. Even with these amendments, your committee is concerned about the absence of consequences should the minister fail to table a report by the deadline or fail to act on issues discussed during these consultations. Nonetheless, we are hopeful that this process can result in concrete actions to put an end to discrimination in the registration provisions of the Indian Act.

As chair of the Standing Senate Committee on Aboriginal Peoples, I recommend the report to you.

The Hon. the Speaker: Are honourable senators ready for the question?

Some Hon. Senators: Question.

The Hon. the Speaker: Senator Lang, do you have a question?

Hon. Daniel Lang: Could the chair impart any information that the committee received during the course of its hearings, on the long-term financial implications of the question of the bill as presented, and as the bill now amended is going to have in respect to the obligations that would be taken on with the expansion of the numbers?

Perhaps she could also tell us if she has any idea of how many more Canadians would be involved, as far as being recognized, with the broadening of the definitions?

Senator Dyck: Thank you for the question, Senator Lang. Unfortunately, the government did not have the numbers that they expected. They did actually suggest it could be anywhere from — I don't remember the exact lower number — say 20,000 up to 2 million. I do, however, suspect that 2 million is an overestimate, because currently, according to Statistics Canada, there are about 700,000 or 800,000 status Indians. For there to be 2 million from the women who married out would be impossible mathematically. Even if half of the population had married out, that would still only be equal to what we have now.

So I think the numbers that they presented at committee were overinflated. A member of the committee — and I can't remember who — said they thought the numbers the government floated at the committee were, in a sense, almost fear mongering, that they were inflating the numbers. We do not know. Several of the witnesses, including Dr. Pamela Palmater, thought the number would be around 200,000.

Senator Lang, as you suggested, there are financial implications to this, in that if we were to include another 200,000 status Indians, there would have to be consideration for things like the non-insured health benefits, perhaps increased support to the post-secondary education benefits and that kind of thing.

Those are decisions that the government will have to take. However, those decisions should have been thought of for at least the last 30 years, because we have known that this is going to happen since at least 1985 when we dealt with Bill C-31 and also since we passed Bill C-3 in 2010.

So the Department of Justice, the Department of Indian and Northern Affairs and the government have known this is coming, so they should have been prepared. I hope that answered your question.

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