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Third reading of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as amended

1st Session, 42nd Parliament, Volume 150, Issue 126

Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak to Bill S-3, An Act to amend the Indian Act (elimination of sex based inequities in registration).

As long ago as 1869, legislation was enacted to cause Indian women to lose their status if they married non-Indian men. However, Indian men who married non-Indian women kept their status and the non-Indian wives were granted status. In other words, sex discrimination has existed in determining Indian status for a long time.

The patrilineal line has been favoured and the matrilineal line has been continually disadvantaged. Without status, these women and their children had to and continue to have to leave their communities. They essentially become homeless for marrying the wrong guy, a non-status man.

The bill before us today, Bill S-3, is the third bill since 1985 that is meant to remove the sex-based discrimination in the Indian Act. In all three circumstances, the government has only acted to remedy sex-based discrimination when forced to do so by the courts. In turn, Parliament was forced to consider amendments under tight deadlines with the threat of shutting down all registration if Parliament failed to act in time.

The first attempt at removing sex-based discrimination of Indian status was in 1985 with Bill C-31. This was a result of a successful challenge at the UN by our colleague Senator Sandra Lovelace Nicholas, and this was aided by the coming into force of the Charter of Rights and Freedoms.

At the time the government knew that Bill C-31 didn't fix all sex-based discrimination. The government knew that many who should have been granted status would be left out, but officials promised this would be fixed in future. That didn't happen. Under Bill C-31 amendments, roughly 130,000 descendants were registered, including me.

The second attempt to remove sex-based discrimination in the Indian Act was in 2010 with Bill C-3. The Government of Canada again knew that Bill C-3 was flawed and did not capture all sex-based discrimination. Once again, assurances were made that an exploratory process would fix this. While this process was funded, launched and completed, no legislative amendments or significant policy changes were made. Under Bill C-3, another 38,500 descendants were registered. Now in 2016-17, as a result of the Superior Court of Quebec decision in Descheneaux, we have Bill S-3 before us.

During the initial study of this bill, the Standing Senate Committee on Aboriginal Peoples heard overwhelming testimony from witnesses that consultation on this bill was very rushed and did not satisfy any duty to consult. The government even conceded this point and only called these "engagement sessions."

More importantly, witnesses expressed that Bill S-3 did not eliminate all sex-based discrimination and asked the committee either to amend the bill to ensure all sex-based discrimination was removed or force the government to seek a court extension in order to remedy fully situations of sex-based discrimination in Indian registration. As such, the committee voted to hold the bill in abeyance and wrote to Minister Bennett to seek a court extension.

In our letter we wrote:

We urge you, as Minister, to not only consult with indigenous organizations but to include in this consultation process individuals who have been affected by gender-based discrimination.

Accordingly if an extension is granted, we urge the government to make every effort to ensure that all scenarios of gender based discrimination are resolved, presenting the Senate with amendments to S-3 or a new bill that achieves the stated goal of eliminating all gender based inequities.

The government was granted an extension with a new deadline of July 3, 2017. That is the deadline we have hovering over our heads now.

Honourable senators, the committee passed a resolution to resume the study of Bill S-3 on May 9. The government proposed six amendments to Bill S-3. Broadly speaking, those amendments incorporated two additional scenarios where sex-based inequities could be found as a result of changes to address the siblings and cousins issues included in Bill S-3. Additionally, the government amendments provided more requirements on the content and reporting mechanisms outlined in phase 2 consultations of the bill.

In the government's attempt to remedy sex-based discrimination in Bill S-3, it has decided to focus on eliminating known sex-based discrimination in the Indian Act. While the title of the bill purports to achieve the elimination of the sex-based inequities in registration, we should be clear from the outset that Bill S-3 with only the government amendments does not achieve that.

In taking this approach, the government continues to force indigenous women and their descendants to fight long costly battles to have status recognized. According to the Indigenous Bar Association, seven such cases alleging discrimination in the registration provisions of the Indian Act are currently before the courts.

Many witnesses who appeared at the Standing Senate Committee on Aboriginal Peoples were clear that Bill S-3, with the amendments proposed by the government, does not go far enough. The bill still does not eliminate all sex-based discrimination in the registration provisions of the Indian Act.

These witnesses stated that the government ought to include women who lost their Indian status prior to 1951. The problem with the 1951 cutoff was identified during the parliamentary study of Bill C-3 in 2010. At the time, then AFN B.C. Regional Chief Jody Wilson-Raybould wrote to the government to demand that Parliament eliminate the 1951 cutoff. The then Liberal opposition proposed an amendment to rectify this, but the amendment was ruled out of order by the Speaker of the House of Commons.

The amendment proposed now by Senator McPhedran and adopted at committee is the same type of amendment proposed in 2010 by the Liberals in the House of Commons. Senator McPhedran's amendment is commonly referred to as the "6(1) (a) all the way" solution. This amendment allows individuals born before 1985 to acquire 6(1)(a) status. This would capture those women and descendants excluded by the 1951 cutoff rule.

Honourable senators, I supported this amendment at committee. This amendment moves us substantially closer to eliminating all sex-based discrimination in registration provisions of the Indian Act. Unfortunately, the government has clearly stated that it will not support Senator McPhedran's amendment because it deems it necessary to consult further.

As I noted earlier, previous consultations have not remedied the pre-1951 cutoff issue, so why would we believe another round of consultations will produce anything different now?

The government has sweetened the consultation promise by proposing to engage in a nation-to-nation relationship with First Nations on the issue of Indian registration. This sounds enticing, but many witnesses, particularly Kim Stanton from LEAF and Dr. Pam Palmater, stated the government should not be consulting away constitutionally protected equality rights.

As Dr. Palmater stated:

There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away. The constitutionally protected aboriginal right to determine one's own citizens is conditioned on section 35(4)'s guarantee of equality for Indigenous men and women. UNDRIP also guarantees these rights equally between indigenous men and women. There is simply no legal mechanism by which to consult out of gender equality.

Another argument the government has put forward in opposition to Senator McPhedran's amendment is that the government does not know how many status Indians will be added to the registry and subsequently how much it will cost in entitled benefits, such as the non-insured health benefits and post-secondary education programs.


This reasoning is neither valid, nor ethical. Refusing to act continues to put Aboriginal women at risk. Sharon McIvor, one of our witnesses, stated:

. . . by legislatively yanking us out of our communities away from our families, away from our support and leaving us out in many instances on our own because of marriage breakdown where you have no place to go, has caused the situation where Aboriginal women and girls are vulnerable. We are prey out there.

They say when we get murdered or go missing, we live an at-risk lifestyle. I can tell you I was born into an at-risk lifestyle because I'm an Aboriginal female, and when people look at you as an Aboriginal female, they see prey. . . .

Colleagues, Ms. McIvor is absolutely correct. According to a 2016 report from Statistics Canada, simply being Aboriginal is a risk factor for violence for women, but not for men.

Colleagues, refusing to implement the "6(1)(a) all the way" amendment is not an option for us as senators, nor is it an option for members of Parliament. We are debating fundamental equality rights. We cannot continue to deny granting Indian women the same rights as Indian men. Dr. Palmater summed this entire issue up in this way:

. . . I would much rather have unintended consequences for doing the right thing — and that's gender equality — than for trying really hard to have gender inequality. And this is not only your moral obligation as Canadians, as representing the government; it's your legal obligation. This Senate simply has no choice. The Charter says absolute equality. The Constitution says absolute equality. How we could argue in 2017 that only for indigenous women it doesn't have to be equality.

Colleagues, the government takes an economic position on the issue of fundamental rights for Aboriginal women. This is clearly wrong. Cost is not a valid factor for denying Indian women equal rights to Indian men. Mary Eberts stated this clearly at committee.

The government has stated that as many as 2 million new status Indians might be created in accepting Senator McPhedran's amendment. They also say they don't know the actual numbers. I agree with Senator Sinclair's comment when he told the minister at committee:

To tell us it can range from 80,000 to 2 million is almost like fear-mongering, because you're not giving us information upon which we can make a reliable decision.

As I stated on Tuesday in a response to Senator Lang's questions, I believe this number is overinflated; it is meant to frighten us into continuing to exclude the pre-1951 descendants in this bill. This overinflated number is meant to cause us to reject Senator McPhedran's amendment based on an unrealistic fear of huge financial implications. The government officials want us to behave like Chicken Little and be afraid of the imaginary disastrous consequences.

On the other hand, Dr. Palmater made a solid argument in favour of including these descendants. According to her estimates, the number of newly entitled status Indians would be around 200,000. Remember, under Bill C-31, about 130,000 new registrants were added, and the sky didn't fall. Under Bill C-3, 45,000 were added, and the sky didn't fall. So why should we remain fearful?

Dr. Palmater also put these costs into context by comparing the numbers with newly born Canadians and with newly arrived immigrants. She said:

Adding 200,000 people to register on a one-time basis, compared to adding 750,000 new Canadians every year, what's the cost? Millions of Canadians are born every year and immigrants are welcomed to this country, but you can't afford to pay for 200,000 indigenous women and their children?

Honestly, we're talking peanuts in a territory that's ours to begin with. You want to talk about reconciliation, then basic gender equality has got to be the starting point. . . .

She further commented on the government's lack of interest to include the pre-1951 women and their descendants in legislation. She said:

I worked at INAC and I worked at Justice so I know what they're doing. This is about limiting the number of Indians to save money.

I repeat. She said, "This is about limiting the number of Indians to save money."

Lastly, in regard to Senator McPhedran's amendment, I would like to address the proposal from the government that we should depend upon phase 2 to deal with the pre-1951 cut off.

The Hon. the Speaker: Honourable senator, your time has expired. Are you asking for five more minutes?

Senator Dyck: Yes, please.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Dyck: Thank you, senators.

The list enumerated by the government on topics to be dealt with in phase 2 is quite long and far-reaching. Many witnesses expressed very little faith in phase 2 producing further legislative change. While I commend the government for providing more requirements and reporting mechanisms in phase 2, I too am skeptical whether phase 2 will deliver the sweeping changes necessary to address all forms of discrimination in the registration provisions of the Indian Act. As I noted earlier, these women and their descendants have been promised more inclusive changes after further consultations in the past with Bill C-31 and Bill C-3, and no real change materialized. There is no reason to believe that doing the same thing again — consulting again — will lead to a different outcome.

Not that long ago, this chamber was seized with Bill C-6, which amended the Citizenship Act. Senator Omidvar, the eloquent and most capable sponsor of this bill, stated in her third reading speech of this bill that, "The nub of the issue is that it seeks to put an end to a law that treats different kinds of citizens differently . . ." She went on to say, "In my pedestrian language: different strokes for different folks."

Many senators spoke in this chamber about that very issue. Most of us agreed that it was unconscionable, as well as unconstitutional, to treat Canadian citizens differently on the basis of whether they held citizenship in another country as well. The majority of us agreed not to strip Canadian citizenship from dual nationals convicted of a terrorism offence.

Well, colleagues, since 1869, the Indian Act has stripped citizenship — status — from Indian women simply based on whether or not they marry another status Indian. While Bill C-31 and Bill C-3 restored citizenship to a fraction of their descendants, and Bill S-3 will add a few more, Senator McPhedran's amendment will restore status, or citizenship, to the descendants of women whose status was stripped away before 1951. The government is opposed to restoring citizenship to this group, but if we don't restore their status, we are treating their citizenship differently, based simply on the date — September 4, 1951 — when the Indian Register was created in Ottawa. It would be unconscionable and unconstitutional for the government to reject Senator McPhedran's amendment to Bill S-3.

As noted before, the government has promised to explore restoration of the status to these descendants following more extensive consultations in Phase II, during nation-to-nation discussions. However, according to Dr. Palmater:

Canada cannot have these critical Nation to Nation discussions without ensuring that Indigenous women and their descendants have an equal opportunity to be at those tables — speaking not as excluded individuals, but as true representatives of their First Nations. It would not meet legal consultations tests or gender equality tests. There is simply no choice but to remedy gender discrimination first. Gender equality in Indian registration is an absolute constitutional pre-requisite to engaging in legal consultations on constitutional matters with First Nations.

Colleagues, to conclude: For a true nation-to-nation discussion, the descendants of women whose status has been stripped away and has not been restored must be part of the nation-to-nation discussions in phase 2. We must pass Bill S-3 and urge the government not to remove Senator McPhedran's amendment to it.

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