Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 22 - Evidence - May 17, 2017
OTTAWA, Wednesday, May 17, 2017
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 6:45 p.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all members of the public who are either here in the room or watching via the Web this evening's session of the Standing Senate Committee on Aboriginal Peoples. For the sake of reconciliation, I would like to acknowledge that we are sitting on the traditional unceded land of the Algonquin people.
My name is Lillian Dyck. I'm from Saskatchewan, and I am the chair of this committee. I have the honour and privilege of serving as the chair of this committee. I would like the senators to introduce themselves, starting on my left.
Senator McPhedran: Senator Marilou McPhedran, Independent senator for Manitoba.
Senator Lovelace Nicholas: Senator Lovelace Nicholas from Tobique. Liberal Independent.
Senator Pate: Kim Pate, Independent from Ontario. You started a trend.
Senator Sinclair: Murray Sinclair, from Manitoba, thinking about Reform Independent but not quite there yet, okay?
Senator Lankin: Frances Lankin, Independent, Ontario.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Omidvar: Ratna Omidvar, Independent from Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Enverga: Tobias Enverga from Ontario, Conservative.
Senator Patterson: Dennis Patterson, Nunavut.
The Chair: Thank you, senators. Tonight we are continuing our study on Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). It is our intention this evening to go to clause by clause. Before we do that, I would like to deliver some opening remarks that were prepared by our clerks for the edification of senators as to how this will proceed.
I would like to remind senators of a number of points. If, at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we all have the same understanding of where we are in the process. So don't be afraid to ask questions.
In terms of the mechanics of the process, I wish to remind senators that, when more than one amendment is proposed to be moved within a particular clause, amendments should be proposed in the order of the lines of a particular clause. Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so. One small point, if a senator is opposed to an entire clause, I would remind you that, in committee, the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause standing as part of the bill. This comes from a citation from Beauschesne.
I would also remind senators that some amendments that are moved may have consequential effects on other parts of the bill. Again, according to Beauschesne, an amendment must not be inconsistent with or contradictory to the bill as so far agreed to by the committee, nor must it be inconsistent with a decision that the committee has given upon a former amendment.
In the spirit of this statement, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in the bill where his or her amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision-making.
Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them.
Because no notice is required to move an amendment, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members have any questions about the process or about the propriety of anything occurring, you can certainly raise a point of order. As chair, I will listen to the argument, consult with the clerks, and decide whether there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained. As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation and I ask all of you to consider other senators who may wish to speak and to keep your remarks to the point and as brief as possible due to the time allotted for the meeting.
Finally, I wish to remind honourable senators that, if there is any uncertainty as to the results of a voice vote or show of hands, the most effective route is to request a roll-call vote, which provides the most unambiguous results. Senators are aware that any tied vote negates the motion in question. Are there any questions? If not, we can proceed.
I would also say that, if any senators have other amendments other than the package that we have received so far, it may be helpful to distribute them now so that we can insert them into the packages of amendments that we have now so that they are dealt with in the proper order.
Senator McPhedran: Do we have copying capacity?
The Chair: Yes, we could have them copied and distributed. Senator Sinclair?
Senator Sinclair: May I make a comment? It's really just a request for leniency a little bit. Senators will recall that this bill came before us several months ago, and, at the request of this committee, it was sent back to the minister to involve other members of the community, particularly from indigenous groups, to consult about the changes. There was a consultation process that occurred, and, from that consultation process, a number of proposed amendments from the government have been prepared. Also, we have been — inundated might be too hard a word, but — we certainly have received a significant number of other proposed amendments. I'm sure all senators will verify that. So sorting through this as we go is going to be tricky. I don't want anyone to think that there is anything untoward being done if we happen to ask that we revert to a particular clause because the paperwork isn't in the right order. It's important for us to deal with these on a clause-by-clause basis; I understand that. I'm not sure that I have got everything in front of me for those amendments that I intend to support and ask to speak to. Senator Lankin, as the sponsor of the bill, is also going to be speaking to and proposing some amendments, particularly on behalf of the government.
I also want to ask if the chair would show a bit of leniency when it comes to the rule about going against the principle that was in the bill at the time that second reading occurred because, since then, as a result of the consultation we asked for, it would appear, I think, that there are some principles that have now been altered somewhat in the proposed amendments.
So recognizing the rule in Beauschesne, I think we also need to recognize that, as a government bill, if the government proposes to change it in order to recognize the consultation impact, then I think we should at least consider that and not rule it out of order for that reason. We may not like the amendment, and we can vote against the amendment, but not for the technical reason that it might go against the principle which was in the original bill.
The other concern I have is I sure hope we have enough time to get through all of this.
The Chair: Yes. I share that concern as well.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Senator McPhedran: I have an amendment related to 6(1)(a).
The Chair: We have three amendments already for clause 1, and we're not sure yet where yours fit in, Senator McPhedran.
Senator McPhedran: Okay. Is mine being copied?
Adam Thompson, Clerk of the Committee: It is being copied.
Senator McPhedran: Thank you.
The Chair: Do senators have a copy of the bill in front of them so we can check the location of where it might be? Senator Sinclair?
Senator Sinclair: I'm not sure we're ready to proceed yet, but with regard to the first clause, I have an amendment I want to propose, but I want to make sure that Senator McPhedran's concern is addressed first.
The Chair: Yes. We should try to get them in the proper order.
Senator Sinclair: Yes.
The Chair: In the package that you have, the package that has been distributed already and that was stapled together, they're in the proper order. We are now considering additional amendments that have not yet been distributed. We are trying to sort out where they would go in the order.
A1 deals with clause 1, page 1, line 4.
Senator Sinclair: I have an amendment I would like to propose. Would you like me to read it out? I think I should put it on the record.
I'll take guidance from the clerk. Which one should we deal with, clerk?
The Chair: If we could indicate where the amendment is located in the bill.
Senator Sinclair: My proposed amendment deals with replacing line 4 on page 1 with a lengthy provision.
The Chair: Senator Sinclair, is your amendment different than A1?
Senator Sinclair: It's A1 in the package of materials, yes.
The Chair: Senator McPhedran, your amendment would be —
Mr. Thompson: Senators, if I may, as I read the two amendments, the amendment that Senator Sinclair intends to propose would essentially insert new text above the existing section 1, whereas Senator McPhedran's proposed amendment would deal with the contents of current section 1. I believe it would be Senator Sinclair's amendment, and Senator McPhedran's amendment would flow next.
Senator Sinclair: This has been distributed? This is A1 of the package of materials.
The Chair: Yes, everybody has it.
Senator Sinclair: I'll read it into the record, chair, if you wish. I move:
That Bill S-3, in clause 1, be amended by replacing line 4 on page 1 with the following:
Sections 1-1
1 Section 5 of the Indian Act is amended by adding the following after subsection (5):
Unknown or unstated parentage
Sections 1-1
(6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person's entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent, or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.
I'm seeking guidance from the clerk. The last two lines of A1, that doesn't need to be moved at this point, does it?
Mr. Thompson: I would include that at this point.
Senator Sinclair: Yes. "Sections 1.1-1.1,'' does that need to be —
Mr. Thompson: I would read the bolded portion that would renumber the existing clause.
Senator Sinclair: Okay.
1.1 (1) Paragraph 6(1)(a) of the Act is re-
It changes the numbering from 1 to 1.1 on, currently, line 4 in the proposed bill.
I move that. Do we have a seconder and I'll speak to it? Do we need a seconder?
Mr. Thompson: No.
Senator Sinclair: Do you want me to speak to it now?
The Chair: Yes, if you could.
Senator Sinclair: Thank you. This is the issue that was raised with the representatives from the department who were here relating to the Ontario Court of Appeal decision in Gehl, in which the Court of Appeal ruled that the registrar should have taken into consideration evidence of Dr. Gehl's paternal grandfather or father — I have forgotten now — ancestor, in any event, that there was enough evidence there from which an inference could be drawn that he was, in fact, entitled to be registered, which the registrar had failed to do. As a result, the Court of Appeal ruled that the registrar had failed in her duty and order that Dr. Gehl be registered under the act.
This inserts into the act now a clause requiring the registrar to do what the Court of Appeal in Ontario said she was to do, which is to look at all of the relevant evidence to draw any necessary inferences in favour of the applicant and then to deal with it accordingly without having to go through the process of identifying who that person was.
You may remember that in the Gehl decision the registrar decided against Dr. Gehl for, among other reasons, the fact that the name of the father could not be determined. This provision says it doesn't have to be determined as long as there's other evidence to show that he was likely a person who was entitled to be registered at the time that she was born.
The evidence they took into consideration in the Gehl decision was the fact that her ancestor lived on the reserve, he was treated as a member by the reserve, he participated in the activities of the reserve, and even though the name was not disclosed to Dr. Gehl by her father's mother or by any other person, the evidence available to the registrar was sufficient for the registrar to conclude, as it was for the Court of Appeal to conclude that he was a member of the band and therefore would have been entitled to be registered. He may in fact have been registered, but his name was not known. I think that explains this.
Senator Lankin: I just want to add a couple of words to this.
We heard from the department, in response to the Gehl decision, that that decision was made by the registrar's office under a policy of the registrar's office in terms of what was required to be considered as evidence. There was a commitment from the department and from the minister that this policy would be changed. As a committee, our discussions led us to say we should write that into the legislation. On the first part of this, it in fact does write it into the legislation.
The parties that have been interested in making submissions on this, including the IBA and the indigenous legal services, and counsel Mary Eberts was here, they have looked at versions of this and their concerns and considerations were incorporated in this section.
In addition to that, in consultation with Senator Sinclair, the issue that we spoke about at committee of creating an onus on the registrar to look favourably on credible evidence, and what the test is, has been spelled out here. At one point in time we talked about balance of probabilities, but in fact this takes it further, in that any credible evidence that's presented by the applicant in support of the application or that the registrar otherwise has knowledge of, because sometimes there are documents within the registry and there's nothing in the policy and, until we put in legislation, nothing to compel that to be brought to the table and considered, and that reasonable inference in favour of the person. So it creates a burden and onus that favours, unless there's very credible contradictory evidence, inclusion. The government supports this amendment.
The Chair: All those who are agreed to the motion?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried. The first amendment is carried.
The next one we'll consider is the one submitted by Senator McPhedran.
Senator McPhedran: Thank you so much. You'll recall the testimony before our committee of Sharon McIvor, Dr. Pamp;Palmater and, last Tuesday, Mary Eberts and Dr. Gehl, as well as David Schulze. The amendment I'm proposing has been developed in consultation with all of them. I would like to note that there is an important distinction that I think this clarifies in a way that some of what we've received from the department does not clarify, and that is the very significant difference between the responsibility of the government in its legislation to be very clear about status and the processes related to status; the question of membership and consultations, including what's referenced in the so-called phase 2 for consultations are about membership. They are not the same thing. This proposal is to keep the focus on what is the government's job in legislation in Bill S-3 dealing with status.
I would also like to note that, somewhat ironically, much of this wording — not precisely, but much of this wording — originates from a proposal that came from the Liberal government in 2010. This builds on this to make it clear that the title of this bill, the new title of this bill, is very clear. It has the strongest possible wording to indicate elimination of inequities that are sex-based. That's a very clear difference from what was dealt with before. It would be hard to find stronger, more positive language geared to equality of male and female Aboriginal peoples.
So the wording that is proposed is:
(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.
Then there's an additional subsection that is being proposed:
(a.2) The purpose of this provision is to entitle to 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.
Senator Lankin: Thank you very much. This provision I think we've been referring to in shorthand as 6(1)(a) all the way. It accomplishes the collapsing of all the subcategories under 6. There's something very attractive about that but for the series of unintended consequences that have not yet been researched and have not yet been identified.
If I could, for example, recall the testimony of the IBA earlier this week, at which point they indicated that the first amendment that they found when we reviewed this bill last fall that they identified was a loophole, once they moved that, they have since discovered, and you'll see we have a couple of pages of subsequent amendments now. Every time something was moved to create a category, it created another inequity.
On the one hand, it sounds attractive to collapse all of this, but this would simply, at this point in time, be yet another problem with introducing something that has not had the research and the implications.
The second paragraph is clearly on the issue of sex-based discrimination that Senator McPhedran spoke to. The first paragraph of this has potential implications for other clauses of the bill and is much broader than and involves other issues other than sex-based discrimination.
The government has been clear, and the minister was in her testimony, that they will not accept this amendment and they will seek to reverse that in the House of Commons if it comes from the Senate. That's just for your general information.
I think the more problematic issue is the unintended consequences that we've already just begun to discover the clauses that it affects and draws in.
It is the reason why, if I can go back to the original decision in Descheneaux and the judge's directions in obiter to stop doing things piecemeal and to do a whole approach, the government's response was to do just what was ordered in Descheneaux, although we've added to it now, and to leave the bigger and other questions of discrimination, not just the pre-51 sex-based discriminations, to phase 2. When you see the reporting amendment we have, you'll see that we have put direct language in that refers to all of these issues that the government must consult on, and must consult through a framework of the Charter and the Canadian Human Rights Act. We think that process will allow all of the parties to focus on this, and the reporting requires to report back on the specific issue consultations as well.
The last thing I would say is that I appreciate — and Senator McPhedran is absolutely correct that this deals with status and not with membership, except that once status is identified for at least section 11 bands, that affects the membership list. But to say that First Nations would accept that they don't have to be consulted on major changes with respect to the status and the legislation that the federal government is implementing, it would be a mistake for us to assume that.
I'll leave it at that. Thank you very much, madam chair.
Senator McPhedran: Thank you for the opportunity to reply. I think we see in the bill before us confusion and conflation. I've already made the point about the conflating of status and membership, and I'd like to focus on what is, as the legal responsibility, the obligation of government under the Canadian Charter of Rights and Freedoms, section 35(4) of the Constitution Act, and also the fact that Canada made a commitment to fully implement the UN Declaration on the Rights of Indigenous Peoples, with very strong clauses there around equality between male and female persons in First Nations.
This is not something that a government consults on. This is a legal obligation of the government to implement the existing constitutional standards of equality between male and female persons in First Nations. There is no lack of evidence to demonstrate that this inequality will continue and that phase 2 is essentially a discussion. It may not be this minister, as much as I have enormous respect for this minister. It may be a very different approach, very soon.
There is no control over what phase 2 will actually deliver, and the government should not be holding a discussion on whether or not it will continue to perpetuate discrimination against women of Aboriginal ancestry in their quest for status that started with the very first case that was ever taken outside Canada into the UN system by my esteemed colleague, the Liberal independent senator Sandra Lovelace Nicholas.
This has been going on for decades. The evidence is very strong. This amendment is put before you from some of the leaders who have been in litigation in this country, in many different forms, have been involved in the drafting aspects of this. What all of those individuals said to us was that phase 2 has absolutely no guarantee of delivering on what is the legal obligation of the government.
What I have tabled here this evening is in line with the existing legal, constitutional and international human rights obligations of this government.
The Chair: Senator Sinclair, you had a comment?
Senator Sinclair: A number, actually. Everything that Senator McPhedran says is true. I don't disagree with any of it, except this: I don't think it accomplishes what she intends. That was my concern when I saw this. This is a draft that I think came in material that the IBA sent to us —
The Chair: Similar, but not the same.
Senator Sinclair: — and also I think from Aboriginal Legal Services.
Senator McPhedran: Sharon McIvor.
Senator Sinclair: The IBA had a similar amendment they sent along to us as well.
A couple of things concern me. One is that the references to — it says "a person who is 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). "
A person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) I think is already registered under 6(1). My preliminary analysis — and I've had a chance to look at this closely, but these are the previous provisions and I'm trying to find that paragraph as it existed prior to 1985.
The Chair: I have it.
Senator Sinclair: Can I take a look at it, if you don't mind?
Paragraph 11, in the legislation prior to April of 1985, already entitles people to be registered before 1985. This paragraph (a.1) doesn't really accomplish what I think the "6(1)(a) all the way'' request was intended to accomplish, because it would end up reading simply that those who were born before 1985 and are descended from a person who can now be registered under 6(1)(a) and is a descendant of a person who is already entitled to be registered under paragraph 11 before 1985 is entitled to be registered under 6(1)(a). That's a bit of a circular argument.
I think what might have been intended is a reference to paragraph 12 as it existed before 1985, because it was paragraph 12 that dealt with enfranchisement for marriage, the double mother rule and various other provisions.
The draft doesn't accomplish what I think you're trying to accomplish, senator, and that was my concern when I saw it. I saw an earlier version of this today, and that was my reaction to it. Now, if I'm wrong, please tell me, but that's how I read it. Take a look at paragraph 11.
Senator McPhedran: Yes, I did. It's prior to 1985, because you've got the additional subsections.
The Chair: But it refers to more than 11(a). It's (b), (c), (d), (e) and (f) as well.
Senator Sinclair: Yes, no question. But basically, those categories of people are already entitled to be registered under Bill C-31. So Bill C-31, from 1985, allows all of the people who are enfranchised under paragraph 12 to be registered, and this merely says that if you have an ancestor who is already registered under 6(1)(a), then you're entitled to be registered under 6(1)(a). I understand that. But it also goes on to say "a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f),'' which are provisions which already allow people to be registered.
I'm not sure what the drafter of this particular wording thought they were accomplishing by referring to that section, when it might have been paragraph 12 that should have been referred to.
I certainly don't disagree with the principle.
However, the impact of status will be that people will be in fact entitled in some cases, in many cases, to band membership. The bands themselves are now saying and have been saying since Bill C-31 that they have a concern about their numbers being increased without the resources being increased, and the department accepts that. Before we impose that upon the department and entitle those people to be registered, there should be a process of engagement in which the entitlement is not the question. The entitlement to registration should not be the question. The question becomes what impact will that have upon First Nation government. That is not a question we have the answer to, even though we should know the answer. The department should have done the analysis, but they say they haven't.
Senator McPhedran: May I just observe that this is essentially the conclusion reached and the request this committee made back in November/December. What we had delivered back is essentially what we sent away. So this proposal, including the amendment that we have just agreed to proposed by Senator Sinclair, actually addresses what we asked to have addressed by the department months ago. There is a very significant difference between the claiming of membership and the process that bands still have the decision-making authority in terms of membership. And again I want to stress that distinction between status and membership, and this addresses status.
Membership is a process that certainly there can be all kinds of further discussions in phase two, and bands retain the authority that they have in terms of membership, but status is a matter that is the legal responsibility of the government. In a constitutional democracy, it is the legal responsibility of the government to deliver status in accordance with our Constitution and international human rights obligations.
Senator Enverga: I have more of a comment about the amendment by Senator McPhedran. I know there are certain instances where it could affect or was affecting certain clauses, but your amendment would add clarity and make it easier to understand for a lot of people. It will actually resolve a lot of issues ongoing right now.
Senator Lankin: I want to address the issue of status and membership, and perhaps this is a question and then I have a comment, but I have a question to Senator McPhedran.
Senator McPhedran, under the section 11, I believe that the bands that remain under section 11 once a person is registered, has status and is registered, must be included in the membership list. Under section 10, those bands have their own membership codes, so I think that for some bands it doesn't affect that, and for a number of others it does. Is that incorrect in your understanding?
Senator McPhedran: I think that remains to be seen, but I want to go back to what I think is the fundamental point here, that this is not about whether or not organizations within this country get to opt out of the equality rights in our Constitution. They don't have the authority to invoke section 33, which is what governments use when they want to opt out in a transparent, accountable process, when they want to opt out of fundamental rights and freedoms.
Senator Lankin: I just checked with officials because I didn't want to give any wrong information. I'm correct under section 11 and bands this would affect membership as well.
On the fundamental point, I agree with you that is the more important point and one I have incredible sympathy for and believe in, but in a constitutional democracy, as you say, when there has been a framework of government-to- government relations, there are issues there that need to be addressed as well. In this case, that is the issue of engaging with those communities about how this will be accomplished.
You'll see in a further amendment for phase two where we spell out that these issues — in particular we mention the pre-1951 cut-off and other issues — must be part of the consultation and must be done in a way that has a lens of the Charter and Human Rights Code so that we're ensuring that we go into these discussions with the goal to eliminate the remaining discrimination.
Much has been said about the referral back and asking for the extension. At the time, as I recall sitting at the table here, it was because of the IBA amendment having found an unintended consequence. We went back and said, "Fix that. You have got a title.'' Senator McPhedran is right about that. "Fix all the ones you can find.'' They came back and have fixed the one that the IBA found and have fixed several other subamendments that flow from that.
The government has always, from the beginning, taken a position that their response to Descheneaux was twofold. One was to do the actual amendments that were directed, and the second part was to do a response to the in obiter, which says stop doing it piecemeal. They want to have the whole conversation with First Nations about a range of issues, including these issues. What we are at risk of doing, and we see that by the subsequent and consequential amendments from the IBA that we will be supporting and putting forward, is that we are doing it piecemeal yet again. This is an amendment that, while it has great appeal, has had no analysis with respect to the implications of other parts of the act. It has had no consultation with many of the First Nations and local communities. It is something, as I said before, that the government has made clear goes beyond their obligation under the government-to-government duty to consult.
Senator Pate: I would like speak in support of the amendment that Senator McPhedran has proposed but also to request, given that Senator Sinclair has raised some concerns, that we should correct any changes that need to be made in terms of his referring to the wrong section.
I wish to remind him, particularly picking up on Senator Lankin's points, that we shouldn't be engaging in piecemeal but rather in nation-to-nation discussion. I absolutely agree with that. In fact, Bill S-3 is a piecemeal revision to the Indian Act and is piecemeal in the sense that it doesn't achieve the objectives stated by the government, nor the intent of the government as stated in 2010.
The fact that the department has failed to provide information that was requested by many, including this committee, and then seeks to essentially suck and blow in terms of using that as a means of not proceeding at this stage because insufficient information is available as to what this will mean for First Nations communities, is not acceptable. We have a legal obligation as a chamber of sober second thought to be looking at the protection of minorities and the protection of those who are vulnerable, and the sex discrimination makes women increasingly vulnerable, leaves women vulnerable.
We have had, as Senator McPhedran has said, successive attempts to take this to court. Yes, it's great that there's an amendment with respect to Dr. Gehl, but we still will be leaving out women if we pass Bill S-3 without these sorts of changes. I was looking at the section. I agree with what Senator Sinclair was saying, that it looks like there may be a mistake. Maybe it was supposed to refer to section 12, but we could re-examine that.
Senator McPhedran: I think the other part of this is to look at what happens to those who have "married out,'' and one of the reasons that this is worded this way is that when they marry out they don't get to be section 6(1)(a). They get slotted into 6(1)(c). Dr. Gehl, if you recall, was very clear that she was not prepared to accept 6(2) status. She wants 6(1)(a). That is most comprehensive of the status definition that is available, and that is the intent of the amendment that is under discussion here.
Senator Patterson: You know I have said this before, but I do think it's appropriate to say this again at this committee. I represent a region that has 85 per cent Aboriginal people — the highest proportion by far in the country — but they happen to be Inuit. Inuit in Canada have to deal with none of this in defining their status. The Inuit in Canada have all settled comprehensive land claim agreements. I want to observe that all it takes for an Inuk person to be recognized as entitled to rights under the land claims settlement acts is to have one parent as a beneficiary. Whether that parent is a man or a woman doesn't matter. It's a real simple rule. Everybody understands it. If you have one parent that is an Inuk, regardless of their bloodline, the children are Inuit.
I have never understood why we have such a complex regime for Indians, First Nations. I say "Indians'' because it's the Indian Act; forgive me. It was good enough for the federal government, which was a party to all of these comprehensive land claim settlements, from Nunaatsiavut, to Nunavik, to Nunavut, to the Inuvialuit in the Northwest Territories. It was good enough for the federal government to accept this simple definition. By the way, it is community committees that determined entitlement at the local level. There is no registrar for Inuit. Communities decide. I think this is the way we should be going for First Nations. The right of citizenship should be determined by those nations.
I want to start with that in looking at this amendment. I want to observe that I did move the motion not to report the bill in December. Yes, we were motivated by what the IBA, the Indigenous Bar Association, found was an omitted category of discrimination. But I was also motivated by the fact that the bill very clearly did not do what it said it would do. The committee wrote a letter to the minister. I don't have it handy, but I think it urged the minister and the department to seek more time to significantly improve the bill. That was what Madam Justice Masse also said in Descheneaux, namely, please go beyond the issue before us in this case. Please feel free to do that.
I think the government has probably — it's not unfair to say — done kind of the minimum in moving beyond Descheneaux in this bill. I understand there were time limitations, although I was concerned when we heard from the Native Women's Association of Canada that they were not contacted until March 6, after the court gave an extended time on January 20. They weren't even initially contacted until March 6. I do believe that the department could have done a much more expedited process in what Senator Sinclair called consultation but what everybody else has called engagement. That was generous of him, but I'm not sure if that met the Supreme Court definition of "consultation'' when he said that.
The bottom line, Madam Chair, is that —
Senator Sinclair: When I got married, I wasn't engaged. I was consulted. Just so you know. I come with a bias to that phrase.
Senator Patterson: So Madam Chair, I want to say that, having been a voice to slow down the passage of Bill S-3 in its early form and now having heard from some very compelling witnesses just this week, we're again doing what is called a piecemeal approach. That's what LEAF said. This is a piecemeal approach. I'm referring to the testimony of the Women's Legal Education and Action Fund representative. This is a piecemeal approach and perpetuates the hierarchy between 6(1)(a), 6(1)(c) and 6(2) Indians. It is incumbent for us to stop the clear and persistent sex discrimination that the Indian Act perpetuates.
Senator Lankin talked about unintended consequences. I do understand that. I've been in government. The minister was quite clear. I know that cabinet mandates require clear definitions of the cost implications of legislative change.
Let me quote Pam Palmater, whom I found to be quite compelling. she said:
. . . 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.
We also heard from Mary Eberts, counsel to Lynn Gehl, who said that "passing this bill would be passing a bill that is known to perpetuate discrimination.'' She cited Justice Masse in Descheneaux:
Parliament should not interpret this judgment as narrowly as it did the BCCA's judgment in McIvor. . . it must act differently this time.
I thank Senator McPhedran for introducing this amendment and, for my part, I find it difficult to vote against this amendment for the reasons I have pointed out. Thank you.
The Chair: Senator Lankin, do you have a comment?
Senator Lankin: Senator Patterson, thank you very much for your remarks. On a number of occasions, you have shown us a potential way forward in terms of how the Inuit have handled these issues. It is certainly, I think, a much better approach through negotiated agreements and not having Canada involved in determining these issues. Hopefully, that's what will come out of phase two at a larger level.
Once again I'm going to make the remark that people in indigenous communities and people who are presenters have spoken to both sides of this issue. We have heard as well that there are people who have yet to be asked to comment on this. The Native Women's Association of Canada testified before us again, as they testified last fall, and said that they preferred that we proceed with the Descheneaux amendments, but they wanted a strong commitment to dealing with these other issues. This week, they yet again said that after their consultation:
However, recognizing that indigenous women across the country generally felt that this bill addresses some discrimination in registration and will allow some women to register, NWAC sees the importance of moving forward with these amendments. We do this in good faith that phase 2 must, without exception, be focused on truly meaningful engagement, which phase 1 one did not embody.
They go on. Their comment about engagement and then moving to consultation prompted me to ask them about their response to an attempt, if we wrote the phase two commitments both on reporting and on what the consultation must be on, and on the specific spelling out the specific provisions, and using a framework of the Charter of Rights and the Human Rights Code, if that would give comfort to them in terms of the phase two processes. They answered yes, that in fact it would.
I want to remind people that there are other voices that we have heard who feel that they must be engaged in this discussion. Even with this 6(1)(a) all the way, and the other Descheneaux plus, a number of amendments beyond Descheneaux that the department identified at the beginning and have responded through this process, Mary Eberts said even that won't eliminate all of this. There is still more to do in terms of sex-based discrimination. That says we're again piecemeal and that the big answer lies in phase two.
I would go so far as to say that the big answer lies in getting Canada out of this process and getting rid of the Indian Act which is also part of what is being consulted on on a go forward basis. There are implications for bands and communities for that as well. Their voices need to be heard.
Senator Sinclair: I have already said that this does not accomplish what was intended. Let me tell you how it isn't accomplishing what was intended.
First of all, it applies only to people born before April 1985. Everybody born after April 1985 is not going to benefit from this amendment. So if you're trying to eliminate discrimination and categorization under unfair categories, that we heard about from Ms. Palmater and Ms. McIvor, this provision will say those before 1985 can't be categorized and those after can be categorized because it does limit the application only to those born after 1985.
I now understand. For the record, I want to assure people that I haven't totally lost it. I do now understand what the intention is. The intention is to take all of those people who are categorized under the various provisions under the previous section 11 of the act, before 1985, and who are now categorized under the provisions of section 6(1)(b), (c), (d), (e) and (f) and eliminate those categorizations for those people. This is what I think this is intended to do, so that everybody comes under 6(1)(a) which is the 6(1)(a) all the way jargon that you have heard about.
The problem with that again is that those born after April 17, 1985 are not going to benefit from that. You would have to consider eliminating from the current legislation 6(1)(b),(c),(d),(e) and (f) in order to do away with those categories. I don't know what the consequences of that are, but I can tell you, they will not be good consequences. I would like to know before I agree to that amendment what is going to happen if people are eliminated in that way. I suspect that there are people who qualify now under 6(1)(b), (c), (d), (e) and (f), who would not have qualified under 11(1)(a), (b), (c), (d), (e), (f) and (g). I would be concerned about eliminating doorways for people who now have one who didn't have one before. So I just am concerned that this is not a well-drafted amendment, and that it is asking us to do something which we agree with in principle. I don't disagree with the idea that everybody who qualifies in those various ways that are set out in section 11 of the previous legislation, or even under 6(1)(a) to (f) of the current legislation should all be entitled to one identical certificate, but my concern is that we don't know what the implications are of eliminating all of those subcategories.
I clearly remember Pamela Palmeter saying that the problem is when people go back to the reserves, people always say you're a 6(1)(b) or a 6(1)(c) or a 6(1)(f) and that results in discrimination at the community level. I can understand that. So people should be entitled to fight against that in some way. But I'm not sure that this is going to accomplish that.
So I think without further research, without further work, it's not good for us to pass an amendment like this. I'll tell you quite honestly, I looked seriously at how we could put an amendment together to make it say 6(1)(a) all the way, and I couldn't come up with wording. This is not the wording that I would have come up with, and I don't approve of this wording myself.
Senator McPhedran: I wanted to respond primarily to Senator Lankin's comments and wanted to share with the committee that I have had the advantage of consulting at length with Mary Eberts after her testimony here on Tuesday, including most recently this afternoon.
My understanding of our discussion was that this is wording of an amendment that she also supports. She feels that it is curative as far as is possible under the existing legislation.
To Senator Lankin's point, I didn't see in the account of Mary Eberts' testimony that there was a reference to the acceptance of insufficiency of Bill S-3 as it stands. In fact, her comments were geared to Senator Lankin's final point that she took to herself, which was that decolonization will only happen when we don't have an Indian Act. But that, with respect, colleagues, is not what is before us this evening. We have Bill S-3. Our job is to respond to what the government has said they will or will not do. We have had no evidence from any of the testimony about what consultations actually achieved in this country in any positive terms toward the stated goal in the title of Bill S-3 — the elimination of sex-based inequities. Those consultations led to exactly the piecemeal legislation that has been now questioned in the Descheneaux decision, and it is that piecemeal legislation that is exacerbated by Bill S-3. There is only so much that we can do with the legislation before us. This amendment is tabled to get us as far away as possible to a better place where sex-based inequities are eliminated to the extent that it's possible with the tools that we have under the parameters of the Indian Act.
Senator Christmas: This whole issue of gender inequality within the Indian Act, of course, is a very old issue, long before my time. There have been many discussions on this issue. Courts have ruled on it, and many pieces of legislation have been proposed. But the reality remains that we still have gender inequality within the Indian Act.
In my mind, I think the principle that is most paramount in my thinking is that we need to be able to propose and to approve legislation that has the highest form of gender equality. For me, that's the highest duty as a senator I can perform.
We're faced with a dilemma that I fully support this concept of 6(1)(a) all the way. I recognize there is some doubt whether this amendment before us achieves that. The principle we need to keep our eye on is to achieve gender equality.
Now, I recognize that it may have unintended consequences. I recognize if we accept the government's amendment, it will also have unintended consequences. The biggest one, of course, is that we'll continue to discriminate and we'll continue to have a piece of legislation in Canada that promotes gender inequality.
There are imperfections on both sides. But if I had to choose an imperfection, the imperfection that I would choose is to maintain the principle of gender equality in the highest form possible, and live with the unintended consequences rather than accept an amendment that perpetuates inequality, with all its other unintended consequences.
I wish to state that I do favour 6(1)(a) all the way. I still have doubts whether or not we have achieved it, but at this point I would encourage the drafters to continue to work until we achieve that.
Senator Tannas: I'm not a lawyer or an esteemed judge, but I read that in this amendment of Senator McPhedran that (a.1) that you've read, Senator Sinclair talks about people born prior to April 17, 1985. But then I read (a.2) to mean that they're trying to catch everybody else, because it says that this provision entitles registration under 6(1)(a), those persons not previously entitled to registration under 6(1)(a), as a result of the preferential treatment. It's saying as a result of what happened before, which was the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to the patrilineal descendants over the matrilineal.
To me, it does catch everybody, essentially, if you take a pause in the second line where it says 6(1)(a), pause, and then, if you read it that way, I think it does catch everything. Am I missing something?
Senator Sinclair: I didn't mean to suggest you were missing something, senator, but you are missing something. If you read the intent of paragraph (a.2), it says that the purpose of this provision is to entitle the registration — those persons previously not entitled to registration.
So it's an interpretation clause. It's intended to be a clause that assists in the interpretation of the previous clause. It doesn't confer any additional rights, and that's the way purpose clauses are read. It does not confer a right. It doesn't create any additional rights over and above the previous clause, which it's intended to interpret, gives.
So while what you're saying could be accomplished by amendment to (a.1), (a.2), as it now reads, certainly could be read wide enough to include everybody, but it does not confer any rights. It's merely a purpose clause.
Senator Tannas: So what's the point? What you're saying is that the interpretation clause, which I think gets us where we need to be, is in contrast with the first one, then the first one wins; the interpretation clause doesn't. What's the point of an interpretation clause?
Senator Sinclair: Well, (a.1) only applies to those born prior to April 17, 1985. It does not apply to those born after April 17, 1985, as I read it. I'm not sure that was intended, but this is the wording that was — the amendment that was proposed by the Liberal Party with regard to Bill C-3, I think.
Senator Patterson: Bill C-3.
Senator Sinclair: In 2010. That amendment did not pass at that time. This is the wording that was used at that time in various forms. The numbering wasn't the same, but the provisions are identical to what was proposed in debate at that time.
My concern is that it doesn't accomplish what it says it's trying to accomplish. I'm not sure that simply by adding or deleting the date of April 17, 1985, that we are creating what the witnesses who talked to us want created because, to go back to what I said earlier, 6(1)(b), (c), (d), (e) and (f) are still there.
Short of eliminating those, which I hesitate to do because I don't know what's going to happen to everybody who got registered under those provisions, this particular amendment is going to create not a conflict, but a different access point, I guess. I'm just saying that without looking at it more closely, more carefully, it appears that we're building in a provision that is not consistent with what is already in the legislation.
Senator McPhedran: To the point of the interpretation — we're not there yet — but I also have an interpretive clause that I want to table when we get to 7.1, to give notice on that. And also to draw to your attention the governance amendment, which we haven't come to yet, at 8.21. Senator Patterson has addressed it in a proposed amendment. This is the statutory review after three years. For those who are concerned that there might be unintended consequences, that statutory review would be very helpful for that. No matter who is the minister, no matter who makes up the government, that review has to take place. We'll get to that later in discussion.
But to some of the previous points that have been raised about the fact that 6(1)(a) only deals with pre-1985, that's because this amendment is geared to 6(1)(a), and 6(1)(a) is constructed around that cut-off date. This amendment is not trying to amend the entire Indian Act. This amendment is geared to that section and to curing the sex-based inequities, the discrimination in that section.
Senator Lovelace Nicholas: I want to support Senator McPhedran's amendment, and I agree that I don't think we should be dealing with this legislation if we can't get 6(1)(a) all the way. My colleagues are very polite when we say piecemeal; I think we're getting crumbs. Our women are just getting crumbs. It's about time they do it right.
I don't see why we're even dealing with this bill.
Senator Pate: If I could request a short recess to have some discussion, because I'm getting really confused, because I'm being told that, in fact, this is about dealing with the marrying-out provisions, and it is to try to get 6(1)(a) for those who might not otherwise have it if they were born before 1985, and it doesn't necessarily apply post-1985. Perhaps we could have a five-minute break and have a discussion.
The Chair: Is that agreed to?
Hon. Senators: Agreed.
(The committee suspended.)
(The committee resumed.)
The Chair: Thank you very much, senators. We have been discussing Senator McPhedran's motion.
Is it agreed that the motion to amend Bill S-3 in clause 1 be amended by replacing lines 6 and 7, according to — do you want me to read it out or dispense with the motion that was tabled by Senator McPhedran? Is it agreed?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Recorded vote.
Mr. Thompson: The Honourable Senator Dyck?
Senator Dyck: Agreed.
Mr. Thompson: The Honourable Senator Christmas?
Senator Christmas: Agreed.
Mr. Thompson: The Honourable Senator Doyle?
Senator Doyle: Agreed.
Mr. Thompson: The Honourable Senator Enverga?
Senator Enverga: Agreed.
Mr. Thompson: The Honourable Senator Frum?
Senator Frum: Agreed.
Mr. Thompson: The Honourable Senator Lankin?
Senator Lankin: Opposed.
Mr. Thompson: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Agreed.
Mr. Thompson: The Honourable Senator Manning?
Senator Manning: Agreed.
Mr. Thompson: The Honourable Senator McPhedran?
Senator McPhedran: Agreed.
Mr. Thompson: The Honourable Senator Omidvar?
Senator Omidvar: Opposed.
Mr. Thompson: The Honourable Senator Pate?
Senator Pate: Agreed.
Mr. Thompson: The Honourable Senator Patterson?
Senator Patterson: Agreed.
Mr. Thompson: The Honourable Senator Sinclair?
Senator Sinclair: Opposed.
Mr. Thompson: The Honourable Senator Tannas?
Senator Tannas: Agreed.
Mr. Thompson: "Yeas,'' 11; "nays,'' 3; abstentions, nil.
The Chair: The motion is carried.
Then, we have the third amendment to clause 1, which is labelled A2, page 1.
Senator Lankin: Thank you, madam chair. Referring to A2, page 1, so if everyone is with us.
I move:
That Bill S-3, in Clause 1, be amended by replacing lines 30 and 31 on page 2 with the following:
(ii) their father was at the time of that person's birth entitled to be registered or, if he was no longer living at that time, was at the time of death entitled
This is a technical amendment to the siblings issue that we heard about, and it changes a verb tense.
The Chair: I think you're reading A3. You should be on A2.
Senator Lankin: My apologies. I will come back to that. This is a very long series of IBA amendments. I'll begin, but I would ask if people are willing, that we might dispense for expediency. It is:
That Bill S-3, in Clause 1, be amended by
(a) adding after line 10 page 2 the following —
The Chair: Shall we dispense?
Senator Manning: Yes.
Senator Lankin: Thank you. You will remember that the IBA came forward with an amendment that identified, as a result of the amendments in Descheneaux, that another category was created and that there was a subsequent discrimination that was created by that. They put forward an amendment to that; that is the first of the amendments that are here. This goes on through (a), (b), (c.6), and I'll speak to the last lines in a minute. But these are subsequent amendments identified by the IBA and worked on together with the department to address the subsequent.
The first one creates a remedy with respect to siblings and their first amendment, and that created problems for people who had been protested out.
The second amendment created a problem with grandchildren under the double mother rule, and it was created because of the cousins rule. And then that created another problem, which has been fixed in the third and fourth areas here of amendments.
So the actual technical provisions that are here, the motion would remove a distinction created as a result of the remedy for the siblings issue between the grandchildren, male or female, born prior to 1985 of an Indian grandmother who parented out of wedlock with a non-Indian; and the grandchildren, male or female, born prior to 1985 or after and their parents married each other before 1985, of an Indian grandfather who parented out of wedlock with a non-Indian and had a female child or born female between 1951 and 1985. That was the first IBA. That's where they identified there was a different treatment of girl children and boy children.
In attempting to correct that, a new problem was created. So as you move on, we create a new category for entitlement under 6(1)(c.02) for grandchildren born prior to 1985 of a parent affected by the double mother rule.
I think that interpretation, we will have to deal with this alongside the effect of referring to section 11 amendments in the old legislation. We don't have that implication, but these are new rights that are being created for people and elimination of further sex-based discrimination.
The next paragraph creates a new category for entitlement for great-grandchildren born prior to 1985 whose Indian great-grandmother parented out of wedlock with a non-Indian prior to 1985.
The next area is a new category for entitlement under 6(1)(c.5) for great-grandchildren born prior to 1985 whose Indian great-grandparent parented out of wedlock with a non-Indian between 1951 and 1985. That's the siblings issue.
Then if you go to the second page here at the end, "(c) replacing lines 30 and 31 on page 3,'' this is an amendment to the deeming clause that deems if a person has deceased who was registered or would have otherwise been registered or deemed to have been registered for the purposes of the rights that are claimed by their descendants, this would amend that deeming clause to include all of the people who have newly acquired rights under the provisions that are there.
If there are more technical questions to this, I would invite the officials to come forward to speak to it. But it is the IBA amendments in a series that we worked through with that organization.
Senator Patterson: I think we have heard a lot from the officials, and I think we're here to do clause by clause, so I would suggest we do that.
This is the kind of complex and very challenging to read and understand legislation that results from the piecemeal approach. I think the amendment that we have just adopted goes in the direction of eliminating all these categories and subcategories and fixing unforeseen consequences. I do support the amendment, but I think that it would be great if we could ultimately have a more simplified system. Thank you.
The Chair: Are we ready for the question? Is it agreed that the motion to amend Bill S-3, as moved by Senator Lankin, be adopted?
Hon. Senators: Agreed.
The Chair: Agreed. The next amendment is on page A3, also a government motion. Senator Lankin?
Senator Lankin: Yes. I think this is the one I went to prematurely, isn't it?
I move:
That Bill S-3, in Clause 1, be amended by replacing lines 30 and 31 on page 2 with the following:
(ii) their father was at the time of that person's birth entitled to be registered or, if he was no longer living at that time, was at the time of death entitled
I'm just looking at that. That is not what we just did. It's a subsequent amendment. I shuffled my papers when I went ahead, and I want to make sure I had the right one.
This proposed amendment will address a drafting error in the current bill as it relates to the remedy for the siblings issue to ensure that no new inequities are created in the bill for individuals affected by the siblings issue.
Hon. Senators: Agreed.
The Chair: Agreed? Adopted.
Senator Lankin: May I have one minute to reorder my papers here?
The Chair: A4 is the next one. Excuse me, before we move to the next amendment on page A4, which deals with clause 2, shall clause 1, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed? Okay.
Senator Lankin: Are you ready to proceed?
The Chair: Before we get to that, I have to ask, shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: There is an amendment, so then you have to move an amendment to clause 2.
Senator Lankin: Thank you. I move:
That Bill S-3, in Clause 2, be amended by
(a) replacing line 38 on page 3 with the following —
may I dispense?
The Chair: Dispense.
Senator Lankin: The proposed amendment is consequential to motions that we just passed. It would ensure that individuals entitled for registration under the new category, 6(1)(c.02), 6(1)(c.5) and 6(1)(c.6), will be entitled to have their names entered on a band list maintained by the department.
This is what I was speaking to earlier, that the section 11 bands have the names from the registration automatically added to that, so this amendment speaks to that and updates that provision with the people who have newly acquired rights if this bill is passed.
The Chair: Are senators ready for the question?
Senator Doyle: Question.
The Chair: Is it agreed that the motion be adopted?
Hon. Senators: Agreed.
The Chair: Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
Senator Manning: We have an amendment.
Senator McPhedran: I would like to move for consideration of the committee an interpretation clause, and that would be 7.1 and it would read:
"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.''.
So this is to guide the interpretation of the law.
Senator Sinclair: Can I ask a question?
The Chair: Yes, Senator Sinclair?
Senator Sinclair: You want to limit it only to the amendments that are in the bill? The way it now reads is the provisions of the Indian Act that are amended by this act. Why would you not want it to read the "provisions of the Indian Act are to be liberally construed and interpreted,'' for example?
Senator McPhedran: I would be happy with that. I'm just a little concerned about getting too far beyond the parameters, and putting the bill before the Speaker as not aligning sufficiently with its scope. So I would be very happy to see it more expansive, but at the same time I don't want to place it at risk.
Senator Sinclair: I'm not pushing to amend. I'm just asking a question. So that's fine.
The Chair: Ready for the question?
Hon. Senators: Agreed.
The Chair: It's getting late in the night. Is it agreed that the motion moved by Senator McPhedran to amend Bill S-3 as indicated on the handout be adopted?
Hon. Senators: Agreed.
Shall clause 8 carry?
Senator Lankin: A couple further amendments, Madam Chair. The first is in your package, A5:
That Bill S-3, in Clause 8, be amended by replacing lines 14 and 15 on page 6 with the following:
registered under paragraph 6(1)(c.01) or (c.02) or any of paragraphs of 6(1)(c.2) to (c.6) of the Indian Act.
This is a consequential amendment to the area of the act that provides for what is commonly referred to as non- liability. It's a motion that adds references to all of the paragraphs that we have added in clause 8 to ensure that these new categories for eligibility for Indian registration is referred to in the existing non-liability clause.
The Chair: Are senators ready for the question? Shall the motion be adopted?
Senator Sinclair: Can I point out for the record that Senator Lankin inadvertently read 6 as a c, which is referenced in the clauses, so the wording of the —
The Chair: Printed text.
Senator Sinclair: — printed text should take precedence.
Senator Lankin: 6(1)(c.01) or (c.02) or any of paragraphs of 6(1)(c.2) to (c.6) of the Indian Act.
Senator McPhedran: I am seeking the guidance of the chair and the clerk on this. As you know, I have somewhat I hope will be considered friendly amendments to 8.2, but I also consulted with Senator Patterson on his amendment and my assistant is just writing it up in a readable fashion, in a legible fashion. Is it translated into French? Yes, it is translated.
The Chair: Do you know when it will —
Senator McPhedran: She left about five minutes ago. So I think it will just be a few minutes.
Senator Lankin: If I could be of any assistance, we have an amendment coming forward with 8.1 and 8.2, and the further amendment that Senator McPhedran is referring to is under 8.2, and I need to see it but I believe it will be a friendly amendment, and that our government would support that. And I would personally support it as well.
The Chair: We'll suspend for five minutes?
Senator McPhedran: Could you come back?
The Chair: We could proceed with clause 8 first though. Agreed?
Hon. Senators: Agreed.
The Chair: It's agreed that we adopt the amendment on page A5? And shall we adopt clause 8, as amended?
Senator Lankin: There are new provisions.
Hon. Senators: Agreed.
The Chair: They will be dealt with next.
Do you have your amendment, Senator Lankin?
Senator Lankin: I do, and I could put those forward and then when we receive the copies there will be a further subamendment, but we can begin some discussions on this. So we're looking at A6 page 1 and A6 page 2, and the subamendment that Senator McPhedran will be addressing will be in 8.2.
So this is clauses 8.1 and 8.2 are new. This is a provision with respect to reporting by the minister on the collaborative process and the implementation of Bill S-3, which involves the commonly referred to phase two process. Senators will remember, when we dealt with this last fall, we were concerned to ensure that the minister came before us and before the House of Commons with progress reports at a number of points in time with respect to phase two, the first such report being with respect to the engagement with First Nations to develop the consultation process, and then at a later date, the consultation process, and then to table reports on a certain timeline before both Houses of Parliament.
I will ask for dispensation on reading the whole thing, but I move that Bill S-3 be amended by adding, after line 15 on page 6, the following:
Consultation and Reports
Consultations by Minister
And I would ask for the opportunity to dispense at this point in time.
The Chair: Dispense.
Senator Lankin: So as you will see, this provision in 8.1 requires the minister, within 6 months after the date of which this bill receives Royal Assent, to initiate consultations with First Nations and other interested parties in order to address, in collaboration with those First Nations and other interested parties, a number of provisions of the Indian Act. Those provisions broadly described by the government on their discussion pages around phase two referred to registration and band membership and we have added this specifically in the legislation.
Most importantly here, in addition to the time frame to begin the consultations is that the consultations must include issues related to adoption, the 1951 cutoff date for entitlement to registration, second generation cutoff rule, unknown or unstated paternity, enfranchisement, the continued federal government role in determining Indian status and band membership and First Nations' authorities to determine band membership.
There is a requirement placed on the minister in 8.1(2), and it places a requirement on First Nations and other interested parties that they must, during these consultations, consider the Charter of Rights and the Human Rights Code. So it attempts to list some of the most pressing issues that we have heard from witnesses that need to be resolved and to do so with a lens of the Charter and human rights.
I would say that I still think we need to understand what the previous amendment with respect to the old section 11 in the previous legislation means. But in any event, during these consultations, there will be issues that will be raised about the implementation of the provisions that we are passing and about anything that is left out, and it is useful to have these spelled out and to have the lens applied.
Sub (3) is the requirement to lay reports before each House of Parliament within five months after the day in which this act receives Royal Assent on the design process that the minister will carry out the consultations under.
So this means that, in five months, the minister comes back and tells us how the consultation is going to take place, what the structure is, and, a month later, six months, has to begin that consultation.
Then, in sub (4), 12 months after the day on which the consultations begin, the minister must come back and report to both houses of Parliament on what progress has been made and must there, specifically, also report on the discussions on this range of specific issues that have been of important note. So the general report on the consultation and the specifics on these issues and how they are being determined.
We recognize that, within 12 months, the full phase two may not be completed at that point in time, but this is what we ask for in terms of a mid-term report on progress being made on the issues. You'll remember that the minister thought that the consultation may take 18 months or even 24 months, but, at this point in time, they would at least come back.
Sub (5) simply states that any report that comes be referred to the appropriate committee in each of the houses. Then, we move to 8.2. The reference to 8.2(1) is a requirement for the act and the impact of the provisions to be reviewed. This amendment was actually proposed by Senator McPhedran as an important subsequent review by committees in both houses. It would allow a review with a specific direction in order to determine whether all of the sex-based inequities have been eliminated with respect to those provisions and a review of the operations of the provisions of the Indian Act that are enacted by this particular bill. Once again, it asks that a report be laid before each house. So it is a further opportunity for senators and members of Parliament to examine whether or not, even after all of our attempts here, we actually have accomplished what we set out to do and whether there are issues that flow from phase two that also become part of these reports with respect to further gender discrimination. Again, sub (2) simply says that the report stands referred to any committee of the Senate and/or the House of Commons that is designated to review matters related to Aboriginal Affairs and that any of the words here have the same meanings as in the Indian Act. That refers back to the definitions.
Madam Chair, I don't know whether you want to take questions on this whole clause first before we move to the amendment or whether we move to the amendment to add those words, vote on that and then come back to questions on the whole clause.
The Chair: Senator Patterson, do you wish to comment on that?
Senator Patterson: Madam Chair, yes. I would just say that I think the government is to be commended for a very good effort here to provide some comfort on phase two. I think this should be supported.
I have an amendment that I would like to make. Is it appropriate now?
The Chair: Yes.
Senator Patterson: Okay. So I think Senator Lankin knows about this. I would add to this amendment the additional words after clause 8.2. That would read:
"8.2(1) The minister must publish every report laid before Parliament under sections 8.1 and 8.2 on the Department's website immediately after their tabling.'';
(b) B) in section 8.3, by replacing the words, "and 8.2'' by the following, "to 8.2(1)''.
I've got those. It has been distributed in French and English.
Senator Lovelace Nicholas: On the A6, page 1, 8.1(1)(g), Senator Lankin, on First Nations' authorities to determine band membership, I don't have an amendment, but would I be able to add that an appeal process be in place?
Senator Lankin: I would suggest that the implementation process is very much the phase two, and whether or not there continues to be an involvement of Canada in the band memberships is unclear at this point and time. But what I would certainly do is to communicate to the minister, on behalf of the communities that you've spoken to, that that will be an issue that will be raised in the phase two consultation and that they should be prepared to deal with that.
Senator Lovelace Nicholas: Thank you.
Senator Lankin: Madam Chair, if I may, with respect to Senator Patterson's amendment, it actually is already part of the communications plan that has been put in place. So I support the amendment. The government supports the amendment, I should say, not me. I do, too.
The Chair: Seeing no further questions, this is — did you have a question, Senator McPhedran?
Senator McPhedran: I just wanted to note for the record that, because of some of the procedural requirements, I'll be consulting with Senator Lankin and the department in order to bring in an additional amendment, which I think is considered a friendly amendment, and that is to specify that, in the development of the report, there will be opportunities for representations from First Nations and other interested parties and that there will be a summary of those presentations as part of the reports.
Senator Lankin: So we would anticipate that we would deal with that at third reading, and it will be considered friendly and supported. The government has indicated they support it.
The Chair: So are we ready for the question?
Hon. Senators: Question.
The Chair: First we deal with Senator Patterson's subamendment. Is it agreed that we adopt the motion moved by Senator Patterson?
Hon. Senators: Agreed.
The Chair: Agreed. And is it agreed that we adopt Senator Lankin's amendment as amended?
Hon. Senators: Agreed.
The Chair: Agreed. Then we have to go back. Shall clause 9 carry? Agreed?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
Senator Patterson: I'm going to keep my powder dry until third reading. Thank you for asking.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Pate: I would request that we make some comment about the lack of numbers and statistical information available in terms of informing some of the discussion.
The Chair: Senator Patterson, did you have a comment?
Senator Patterson: You asked about observations, Madam Chair. I have some suggestions. We may want to refer this matter to steering, but I would like to put some suggestions on the record, if I may, briefly.
The Chair: Yes. The clerk was expressing some concern about the time, but if senators are agreed to spend a few minutes now, that may be productive. Agreed?
Senator Patterson: I'll be brief.
The observations should include the fact that many witnesses supported moving toward 6(1)(a) — that approach. We would be remiss if we didn't point out the concerns about the lack of consultation, even given the time frame. Also, while the committee did accept the expanded amendments relating to phase 2, it should be observed that the bill does not contain any ramifications if the government misses the deadline it set out or if it does not act on the findings. We're all hoping phase 2 produces results, but there are no consequences to failure to do so in the bill.
The Chair: Any other comments?
Shall the steering committee be authorized to approve the text of observations in line with the comments made by the committee?
Senator Lankin: Can I ask a question? I appreciate that's the role of the steering committee. I would ask to be included in the discussion, at least, as the sponsor of the bill.
The Chair: Agreed? It could be through a member of the steering committee.
Senator Lankin: Absolutely. I'm not asking for a place on the steering committee or a vote. I'm just asking to be able to make observations on what the steering committee is proposing to append.
The Chair: For your comments to be included in the observations — to have input into what the steering committee —
Senator Lankin: Yes, that's good.
Senator Sinclair: I want to indicate that I support the suggestion from Senator Pate about numbers not being available to us. I was going to suggest that we consider wording along these lines: "The committee is concerned about being called upon to make decisions amending the membership provisions of the Indian Act that were made in the absence of appropriate information about the numbers of those affected, and that in the future, such numbers and information should be provided to the committee by the department.''
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed that the Law Clerk and parliamentary counsel be authorized to make technical, clerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed that any necessary consequential changes be made to the numbering of provisions and cross-references as a result of the amendments to this bill?
Hon. Senators: Agreed.
Senator Lankin: I just wanted to assure members of the committee that, when the minister comes back in five months with the report on the structure of the consultations that will begin six months after Royal Assent, part of that will be talking about the method of communications to reach people, the engagement that will go on and how that will be done.
I also want, however, to assure members that the department is working on a strategy to reach out to all of the people whose rights are affected by this bill, once it is passed and receives Royal Assent, to ensure that people know that they may be eligible, if they've applied in the past and have been turned down. That might be a bit more difficult with respect to some of the "6(a) all the way'' provisions, just because of time, records and lack of records. But we know there are 28,000 to 35,000 people under the Descheneaux decision who will be eligible to take up some rights. We want to ensure there's an effective communication to those people. That's being worked on as we speak.
The Chair: Any other comments?
Is it agreed that I report this bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you.
(The committee adjourned.)