Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 14 - Evidence - December 6, 2016
OTTAWA, Tuesday, December 6, 2016
The Standing Senate Committee on Aboriginal Peoples, to which was referred BillS-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 9: 01 a.m. to give clause-by-clause consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the Web. I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional lands of the Algonquin peoples.
My name is Lillian Dyck. I have the pleasure, honour and privilege of chairing the Standing Senate Committee on Aboriginal Peoples. I now invite my fellow senators to introduce themselves.
Senator Watt: Charlie Watt, Nunavut.
Senator Lovelace Nicholas: Senator Lovelace, New Brunswick.
Senator Lankin: Frances Lankin, Ontario.
Senator Maltais: Senator Maltais, Quebec.
Senator Oh: Senator Oh, Ontario.
Senator Beyak: Senator Lynn Beyak, Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Patterson: Dennis Patterson, Nunavut.
The Chair: Today we finish our study of BillS-3, but before we move to clause-by-clause consideration, I will ask the clerk to read out the membership of the committee in case we have to do any votes.
Mark Palmer, Clerk of the Committee: The Honourable Senator Dyck, the Honourable Senator Beyak, the Honourable Senator Lovelace Nicholas, the Honourable Senator Maltais, the Honourable Senator Martin, the Honourable Senator Meredith, the Honourable Senator Moore, the Honourable Senator Oh, the Honourable Senator Patterson, the Honourable Senator Raine, the Honourable Senator Sinclair, the Honourable Senator Tannas, the Honourable Senator Carignan, P.C., and the Honourable Senator Harder, P.C.
The Chair: Before we proceed to clause-by-clause consideration, does anyone have any questions on the procedure in place?
Senator Patterson: Madam Chair, I'd like to move a motion with respect to this bill, and I'd like to give an explanation before doing so.
As the critic for BillS-3, I've struggled with how to proceed today, and other senators have expressed to me their difficulties in dealing with this bill in the admittedly rushed time frame that we had to consider it.
I've carefully considered all the testimony we've heard over the past four committee meetings, reviewed the briefs that have been submitted and listened to the testimony given during the pre-study being done simultaneously in the other place. In the end, the vast majority of witnesses seemed clear in their advice to the committee: Do not proceed with this bill and take the time to do it right.
I would like to note that even the plaintiffs in the litigation that prompted this bill, the case of Descheneaux, also provided the same advice to the committee.
I've identified many deficiencies in the bill based on the body of evidence, and I've outlined those issues in a document that I am willing to share with you. I should mention that we were unable to have the excerpts of testimony and other quotes translated in time for this meeting.
I'd like to distribute the document this morning. Parts of it are only in English at the moment, although translation is proceeding. If there is agreement in terms of parts of it being provided in English, Madam Chair, the document could be handed out to you this morning.
The Chair: Is it agreed by the committee that we distribute the document?
Hon. Senators: Agreed.
Senator Patterson: Thank you.
The document outlines the various issues that I've identified and provides what I believe are compelling quotes supporting my position.
Madam Chair, I don't think we can overlook the calls for meaningful consultation, as this bill significantly alters access to rights for thousands of people across the country. I found it shocking, and I think we all found it shocking — and I do acknowledge the minister's apology — that the government would not have seen fit to engage with the litigants from the very beginning.
I'm also very concerned about the short amount of time we've been given to contemplate this bill. Due to the purported urgency of the bill, I returned home early from a committee fact-finding trip and cancelled another engagement outside the country to support the expeditious consideration of the bill.
I thought at the time, and I think I mentioned it in my address on the bill in the Senate Chamber, how could one argue against gender equality? But as I listened to our witnesses, I became more and more convinced that this bill is actually about gender equality only for some, despite the title, "Elimination of sex-based inequities in registration.''
I think many things need to happen with this bill. I believe that more consultation is required — and we heard, graphically, about the deficiencies in consultation — and that more time needs to be given to professional organizations and legal and subject-matter experts in order for them to examine all the potential implications of this bill.
If the title of this bill stands, we need to ensure that all sex-based inequities — not just the simple ones or the known ones, as the minister suggested — are taken care of. Colleagues, to me, that means ensuring that there is no difference between the descendants of the matrilineal and patrilineal lines.
Our witnesses have put forward several scenarios that suggest sex-based discrimination would continue to persist after this bill is passed. Committee members may be aware that even within recent days there have been quite a few communications of concern from reputable persons and organizations about this bill and about allowing it to go forward in its present form.
There has been some debate as to whether or not the witnesses' interpretations are correct, and I acknowledge that. However, I suggest it is not the duty of this committee, nor do we have the time, to vet and research in detail every scenario presented. I believe it is the duty of this committee to report back to the Senate, whether or not we were compelled by the witnesses' testimony, to support or reject this bill. I, for one, lean toward the latter.
I believe that based on the body of evidence before us, there are doubts as to whether or not this bill can deliver as promised. It purports, as I said, to eliminate all sex-based inequality.
Now, I do know the minister made a clear distinction during her appearance by emphasizing that it eliminates all known sex-based inequity, but on November22, 2016, Assistant Deputy Minister Joëlle Montminy stated:
On BillS-3, we are proposing amendments to the Indian Act to comply with the decision in Descheneaux and with the goal of eliminating all sex-based inequities in Indian registration.
That was the statement I continually went back to when considering all subsequent testimony, so the minister's distinction was a surprise to me coming late in our deliberations.
I say this with considerable hesitation because I acknowledge this is a government bill that was introduced in the Senate, but I do believe we need to respect the will of the elected other place and I do really believe that the right thing to do here is for the government to withdraw the bill and seek an extension. I don't think this should be taken lightly, but I believe that we have a duty as independent senators — and the Senate is increasingly independent — to speak out and act when we see a bill, especially one that deals with human rights and with Charter rights, to point out its flaws.
I've heard the government's explanation as to why they believe an extension wouldn't make a difference to this discussion, and frankly I don't agree with their reasoning. I believe they're operating on hypotheticals, and we cannot make decisions on legislation that has such a significant impact on First Nations and on the rights of women based on hypotheticals.
I wish to thank the members of the committee, the sponsor of this bill and the departmental witnesses, all of whom have devoted time and energy to very intense discussion and scrutiny of this bill. I think that the transcripts of this committee will show that we worked in good faith and with due diligence on this bill, and I do acknowledge the hard work and time everyone has put into it. But the solid evidence that I have heard and I believe we have heard is that the bill is deeply flawed, and I believe that the government, not the Senate, needs to take the time to fix it.
Thank you for the opportunity to explain.
With that, Madam Chair, I wish to now move that the committee report BillS-3 to the Senate with the recommendation that it should not be proceeded with further in the Senate.
The Chair: Thank you. Now we can proceed with debate.
Senator Lankin: As the sponsor of the bill, I'm going to take a moment to address some of the points that Senator Patterson has raised. Let me say that I appreciate the thought that has gone into Senator Patterson's position and the recommendation that's coming forward. It may not surprise you that I disagree with him, and I will go through the reasons for that.
But I do want to say that I think the situation that all of us in the Senate, the House of Commons and the executive branch of government are in, dealing in good faith with indigenous peoples, is a critical one at this point in time and for our future relations. This should be thought of very carefully as we weigh the pros and cons of the arguments.
It is not apparent to me that there is a clear right way and wrong way on this, and I would urge us to give careful thought both to the relationship that is being established and needs to be built and the past years of inaction that bring us to this point — and it's an unfortunate point that we're at — as well as the role of the Senate with respect to a piece of government legislation and the will of the elected house of Parliament.
Let me come to the arguments that Senator Patterson has put forward.
First of all, I think, Senator Patterson, that you present an argument that the overwhelming positions taken by the groups who came forward to testify at this committee was that there should be a delay and that we should move forward to try to compel the government one way or another to seek an extension and to take the time to further consult on not just "gender base'' but on a number of other issues, if you listen to all the testimony.
I want to ask senators to cast their minds back and to parse the reasons why people put forward that there should be an extension, because they were very different, and they are actually counter to each other. I think that's important in understanding where the government has found itself in charting its policy path forward.
The presentation we have heard makes reference to a number of people, the litigants and others who have said that there is further work to do with respect to amendments to this bill that should be done in the shorter term and not be put off to stage two consultations. We can talk about the litigants' lawyer, Mr. Schulze, and the letter he recently sent to the assistant deputy minister, which was circulated to all of us. He set out four points that he thought should be included in the bill and that we should seek an extension in order to address those four points. He admits in that letter that none of those four points are about gender-based discrimination. That's important to remember. He also admits that none have had a court ruling that have looked to establish them as Charter violations. They may be; they may not be. Our job is to look at the bill before us with respect to Charter implications, not at the whole Indian Act. That could be another very useful exercise for us to do, but presumably that is what stage two of this process is going to address.
So Mr. Schulze in his own letter makes those two admissions. I think that is critical, and I would argue that that actually negates his argument for an extension from our consideration.
Dr. Palmater and Sharon McIvor and in a more recent letter Shelagh Day from the Feminist Alliance for International Action have put forward very compelling arguments in their testimony and in their written appeals to us about the pre-1951 cut-off issue. I admit that is a bedeviling issue, but once again, when we look at it, it is an issue of family status, age and years of dissent. The court itself in the McIvor decision refused to deal with the pre-1951 cut-off and said, in the court's words, that there is no evidence that you could support someone being discriminated against today in terms of a Charter case and the right to a Charter case under this pre-1951 cut-off. Would an individual from the late 1800s, fifth generation down, even have a Charter case? It has not been tested, but this ruling suggests not.
What is the cut-off? What is the time for understanding the cultural dissent issues, the rights of individuals with respect to that and the nature of any discrimination? Differential treatment is not necessarily discrimination under the Charter. The court has said that.
That doesn't mean that the issue shouldn't be addressed. Does it mean that it should be attempted to be addressed without the kind of extensive consultation that is being proposed in stage two? And if you accept that and you accept that it is not straight gender discrimination, it shouldn't prohibit this bill from going forward and dealing with the gender discrimination provisions that were ruled on in Descheneaux.
Much has been spoken to with respect to the appeal and direction from the court in obiter to deal with other issues and to not let them fester and come back to the court over and over again.
I had circulated a document to people that looked at what was actually in the Descheneaux ruling and what was in the in obiter. The in obiter said do more than what we're just ruling. In fact, this bill does. This bill includes two other provisions that were not in the Descheneaux ruling, part of the court decision, but are clear gender discrimination.
The government has said to us they are, in fact, moving on the direction from the court in the in obiter by stage two. That's a policy decision. It's not our place at a Senate committee to be revealing a government policy decision of this nature when they, at this point in time on behalf of Canada and on behalf of all of us, own the building of a nation-to- nation relationship and the importance of the legal and the moral obligation for consultation and accommodation.
What do consultation and accommodation mean? A lot has to be built and understood over time on that. Every province takes its obligation differently in terms of how they proceed with it. The federal government, in this case, has put forward that they believe this is the right way to take a major policy consideration that is very complex and to meet the obligation of consultation and accommodation.
If we go on in terms of the testimony of people who have said that we should postpone and seek an extension and move forward with these issues in a broader consultation, we come to testimony that's very different than Mr. Schulze or Dr. Palmater or Ms. McIvor or Ms. Day.
The AFN and the national chief were before us. The national chief made it clear that felt a very long extension should be sought and we should take time to put these issues of gender discrimination in the mix with all the issues. He added something people have not talked about, which are the land issues and the land rights of existing members under treaty agreements and how the impact of new members coming into those bands might have an effect on that. That's a very different motivation and issue than what has been brought up by the previous people that I spoke of. So you have, from two extremes, people arguing the same point but with a different end goal in mind.
The further consultation of all issues would leave up to 35,000people without being able to achieve these rights and may, in the long-run, lead to a very uncomfortable, divisive and discriminatory gender debate. That doesn't help anything. Once again, the government is looking at how to steer through these competing interests and competing considerations, and they have taken a policy decision. I'm not sure what place we have in determining whether that policy decision is right or wrong. We may not like it. I may personally believe that there are other ways to approach this, but that's not our role in this Senate committee.
I want to point out that there were people testifying who made the case that we should proceed. The Native Women's Association of Canada very clearly wants these other issues dealt with, wants to be involved in the full and proper consultation, recognizes the time constraints, but wants this bill passed so that these women and their children and their issue is addressed. They will come back to address other issues over a longer period of time.
Other people have made comments about supporting this process and moving with this bill and then stage two, for example the Congress of Aboriginal Peoples and Jeanette Corbiere Lavell. There are people on both sides about whether to move this bill forward now and consult on the other issues, or whether there are people who want to consult on all issues for different reasons. That leaves us all in a quandary. It is the nature of consultation between Canada and indigenous peoples, and I don't think that stage two will be a cake walk of discussion in communities.
It will be important and, if handled correctly, it will be groundbreaking in terms of what could be accomplished in the spirit of reconciliation. It's not a very great start to it, on an act that I believe is outside of the proper scope of the Senate committee, in considering this government policy decision of how to deal with these issues and what portion of them to put to stage two legally mandated and morally obligated consultation and accommodation.
There are a number of issues people have referred to that they want included in here, like the issues of adoption, for example, or the issues of unnamed parent. They are not gender-based discrimination. They're not part of the scope of this bill. That's why we're not seeing amendments being brought forward to address those issues, because they would be ruled out of scope.
That being the case, why are we taking a position to recommend not proceeding with this bill and forcing it into another stage of process of seeking an extension to deal with issues that are not under the scope of the bill?
With respect to the one issue that some will argue about whether it is gender based, that being the 1951 cut-off, there are issues of matrilineal lineage, there are issues of family status and age, and there are issues of the court's own previous dealings with this, saying it is complex, complicated and not necessarily a Charter violation.
I personally hope that this issue is dealt with, and if not, that it is taken to court and it is found to be a Charter violation. These issues need to be remedied, but once again I think it is outside of the scope of this committee and our dealing with this today.
I have heard the arguments that have been made. First, the IBA, the Indigenous Bar Association, found an error that was created in the drafting of this bill. That means there could be many more and that we need more time. I have heard others say, in fact, that we need more consultation on this. I've heard different arguments on different sides of this issue from the same senator, and that, to me, does not help the committee parse through this very difficult set of cascading issues.
The only outstanding issue of gender discrimination is the pre-1951 cut-off. It is arguable with respect to the interpretation of that as a gender-only issue. A policy position has been taken as a result of that with respect to the government's duty to consult. I believe that this committee is not in a position where we should be overriding or attempting to override or make policy on the government's behalf.
If we move to clause-by-clause consideration — and there are amendments on specific clauses — I have further comments, Madam Chair, with respect to the specifics. However, at this point in time, unless other comments provoke me, I don't want to speak again. I will leave my comments at that. Thank you.
The Chair: Thank you.
Before we proceed, I think it would be a good idea to read out the motion again since a couple of people arrived after the motion was put on the floor. The motion reads:
That the committee report BillS-3 to the Senate with a recommendation that the bill should not be proceeded with further in the Senate.
Senator Lankin: Madam Chair, my colleague senators will have to help me with this because I am still learning process. If we deal with clause-by-clause consideration and report the bill, amended or not, is it possible to include observations? I would recommend that there is much that this committee has to say together, in unity, about the situation that we all find ourselves in and the shame of actions past that bring us to this point and our desire to see these things addressed and redressed during the stage two process.
The Chair: Yes. Thank you, senator. Observations are part of the normal process.
We will now turn to Senator Sinclair.
Senator Sinclair: What would be the impact of this motion if it's approved by this committee? Does it mean that the committee is foreclosed from further consideration at any point in time, or does that mean that we cannot put forward amendments, or does that mean that the Senate is going to be called upon to vote to accept the report and it might reject the report and send it back to this committee to do its work?
The Chair: Thank you.
The clerk has just verified that should this motion pass, we will do a report — I hope I'm getting this correctly — that will then go to the Senate indicating our actions, and then on the floor of the Senate Chamber we can debate that report and accept it or not accept it.
Senator Sinclair: What if it isn't accepted? That's my question. Does that mean we continue to do our work here?
The Chair: No, there will be third reading in the chamber.
Senator Sinclair: It will stay in the chamber for third reading?
The Chair: Yes.
Senator Sinclair: And at that point amendments would need to be considered?
The Chair: Yes.
Senator Sinclair: Because I have amendments that I want to make to this bill. This would preclude further amendments and discussion at this point in time?
The Chair: Right here in this room, but depending on what happens in the chamber, they could come up in the chamber.
Senator Sinclair: I understand. No amendments could then be considered by this committee at this time.
The Chair: If this motion passes, no, there won't be any amendments considered.
Senator Sinclair: I apologize for arriving late. I was in the scroll meeting, and so I haven't heard the arguments in favour of the motion, if any have been made. Maybe they have not, but I have not heard the arguments in favour.
The Chair: Yes, arguments have been made by Senator Patterson. There was a printed copy distributed. You probably don't have a copy.
Senator Sinclair: I have just seen a paper prepared by Senator Patterson. Is this the document?
The Chair: Yes, and he did go through it briefly.
Senator Sinclair: All right. Then I would like to make some comments with respect to the request that the committee stop deliberating further and report it out that the bill not be considered further by the Senate. I think that would be a terrible mistake and for the reasons that we talked about at the last meeting of the committee when unfortunately not all senators stayed in order to hear us when we were in camera.
The bill was prepared in reply to a particular court decision that dealt with the issue of the discriminatory provisions of the act that were presented as part of the Descheneaux application and of course the other family members of Descheneaux.
At the time that this matter was raised at our last in camera session, I made the point — and I realize it wasn't on the record and it may not have been shared with everybody — that there is no doubt that this bill did not deal with all of the gender discrimination issues. The IBA proposal was intended to address what I considered to be the most significant exclusion from the gender-based discriminatory policies of the government.
Let me generally say that there are two areas of gender discrimination that one could argue continued. One deals with the post-1951 period in which the illegitimate children of women and the illegitimate children of men who had status under the Indian Act were dealt with differently. The illegitimate children of men, under BillC-31, were allowed to register under 6(1) and could pass status on to their children. The illegitimate children of women, under BillC-31, were registered under section6(2) and could not pass status on to their children.
That gender discrimination, in my view, had to be dealt with and needed to be corrected. The IBA caught that and proposed an amendment, and Justice Canada responded and indicated that they are prepared to support an amendment.
The amendment I was going to propose as we went through this bill clause by clause was that there had to be an amendment to deal with that.
The pre-1951 issue was the whole question of how women were treated before 1951 and the impact of that treatment and the fact that some of that treatment continued after 1951 when the Indian Act was amended. The provisions in the Indian Act continued to reflect that the children of women who had been forced to marry out or had lost status and had been forced to deregister were not included in the Indian Act.
Now that was raised with the minister last time and was discussed. That's a huge category of people, probably in the hundreds of thousands of people. Sharon McIvor reflected upon that in her presentation to us at the committee level as well. We all have to acknowledge that if we amended the bill to ensure that all people before 1951 were included in the amendment, we would be opening up to a broad pool.
I read the letter that was shared with us from Mr. Schulze, a lawyer for the Descheneaux family, in which he continues to maintain that as long as the pre-1951 category is excluded, this bill is still contrary to the Charter. I actually don't disagree with that. I think it's quite likely that one could argue that the Charter continues to be breached, not necessarily on the basis of gender discrimination but on the basis of family situation or perhaps another category of discrimination.
However, what the minister didn't clearly say, and what my view is as well, is that merely because there is a Charter breach does not mean that a bill will be struck down, because we must always remember that a bill can be allowed to breach the Charter if the government can demonstrably justify under section1 of the Charter that the discrimination is necessary in the public interest. In this case, because of the huge pool of people that could otherwise be brought into membership because of elimination of the pre-1951 cut-off and because of comments that the Supreme Court and the Court of Appeal in British Columbia have already made with regard to the McIvor case, in which they refused to look at the category before 1951, my thinking is that a section1 argument, that to continue to utilize the 1951 cut-off is demonstrably justified, has very strong support.
We have an undertaking from the government that they will refer this issue of the pre-1951 group to the part 2 analysis to see what the impact would be, what the numbers would look like and whether or not the government and the First Nations people affected by that should in fact come to some agreement as to how to deal with that.
Ms. McIvor in her presentation to us has made the very valid point that it continues to create a different class of people after 1951, such as she referred to in her particular family circumstances. I don't doubt that, but if the government can make the case that it's demonstrably justified, I think they are entitled to make that case. But it's not for us to say that this bill fails because they have to go to court to make the case. Our responsibility, in my view, is to look at this particular bill to see whether it meets the requirement as set out in the court decision in Descheneaux. As I said at the last meeting, in my view, with the IBA's proposed amendment it does, because the IBA's proposed amendment now fairly deals with the issue of the illegitimate children of the women who are caught in the BillC-31 conundrum, in other words, the siblings and cousins distinction.
With that amendment, assuming it gets supported by this committee, I think we're probably wiser to allow the act to continue to go forward in order to allow the registrar to register those individuals and to allow the government to refer all other potential issues of conflict with the Charter to its phase two study.
At this point in time, for us to refuse to allow the bill to go forward is allowing the situation to run the risk of not being approved by the court. What is the court likely to do in February or what is the court likely to do with the February deadline? There seems to be an assumption inherent in this motion that somehow the court will magically give an extension and therefore allow the government more time to study this thing before it drafts a bill.
The government has to draft a bill; otherwise, on February17 nobody will be able to register for status under the Indian Act because 6(1) will be struck down and nobody will be entitled to register. The impact of that will not be good or helpful to those who are not able to proceed with their applications.
The fact that the registrar will not be able to do any more registrations after that period of time — and we heard the minister say that, and the registrar was here and said the same thing — causes me a great deal of concern if the court does not grant an extension.
If the court does grant an extension, it will be with terms and conditions. They will not simply say, "We're going to give you another six months.'' The court will then impose conditions on the extension. What will those conditions be? I don't know and you don't know. If that is the case, why are we turning this back to the courts to say, "You fix it, because we can't''?
We can fix this; we can fix this by passing this bill and by saying to the government, "Now go and do phase two.'' In keeping with the commitment the minister made to us that she would report back to this committee and to the house on what it is that she is going to do — and has been doing and will do with regard to these consultations — if we put a provision in this bill, if we amend this bill to require the minister, legislatively, to report to this committee and to the committee of the house on the work she is doing, we will be able to have significant input and control on what it is the government is doing.
For us to not pass this bill I think is irresponsible, and we shouldn't do that; we shouldn't treat indigenous people that way. My view is that we've already allowed governments in the past to mess this up royally. Now we are going to say we will mess it up a little bit more so we will not have any certainty with regard to who can and who cannot register in the future. The court may or may not give you an extension, and may or may not give you conditions of the extension.
We can fix the bill now because we have a plan and we have the ability to make the necessary amendments. I agree that this bill is not perfect and that it needs to be amended, but I think there are amendments that we can put together dealing with the post-1951 situation that the IBA considered. We need to keep the minister's feet to the fire vis-à-vis this committee and the committee of the house so that we have ongoing input as a Senate committee in terms of what is going on in the future.
So I speak against the motion to delay this any further by referring it back to the house without a recommendation to support the bill. For us to ask the Senate Chamber not to approve this will just create more chaos. The fact is we should not do that. I think it would be irresponsible of us to make such a motion.
Senator Meredith: I completely concur with Senator Lankin and Senator Sinclair with respect to their comments on this particular bill.
At our last meeting, Senator Tannas asked the minister about registration and the fact that certain comments were made with respect to sex-based inequities in registration. The qualifier, Senator Tannas, was the registration. That's the critical point, and I think the IBA has caught that and addressed it.
I think it's important for us to look at pieces of legislation that we have passed before that were not perfect. I reference the last registration that took place with respect to indigenous groups in Newfoundland. That was also not a perfect bill; however, this committee passed it.
I see the same scenario here. The minister has appeared before us, as well as the assistant deputy minister and witnesses. The witnesses indicated that they were not consulted and that the government dropped the ball on that. My concern is about the individuals who will now be further impacted. Senator Sinclair has raised that clearly with respect to registration.
It's important that we not become obstructionist at this committee and that we allow the legislation to go forward, with the commitment from the minister that there will be a phase two and with the commitment that this committee will be very engaged with respect to what happens at phase two.
My recommendation is that we allow this bill to continue and that we do not further involve the 25,000 to 35,000 individuals who will be impacted by this bill. It's important that we see flaws in bills and flag them, which we have done in terms of observations and which is the normal procedure at this committee; however, to outright stop this bill would be totally irresponsible of us. I believe we should continue this process and move forward.
Therefore, I cannot support any recommendation at this point to stop this bill. We need to be pragmatic and focused. We need to see the flaws in pieces of legislation. We need to recognize the people who are being impacted and we need to ensure that we are doing the right thing.
During the previous administration, pieces of legislation have come before this committee that were flawed, and we still moved forward. This situation is similar. It's important that we recognize the deficiencies but also the opportunity to fix things going forward. For me, as a member of this committee, it's critical that we allow this bill to move forward, again, with the recommendations that have been accepted and pointed out by the IBA. We must ensure that the people who need this bill indeed get this bill in order to ensure that they are properly registered and that — I must stress this — we are fixing the inequities in registration.
[Translation]
Senator Maltais: First of all, I would like to point out that, since I am here as a replacement, I will not go into depth. I did nonetheless listen carefully to the lengthy indictments by Senator Lankin and Senator Sinclair. My comments will focus instead on the role of the Senate.
We are parliamentarians and we have a role to play as legislators. I would point out that the Senate exists by virtue of the Constitution and its role is devolved to its committees. When the Senate decides to refer a bill to committee for consideration, that is entirely its role and its right.
Consultation remains a fundamental role of the Senate. We stand up for those who have no voice. If a bill has not gone through the necessary consultations, we have missed our chance as legislators.
I would like to remind Senator Sinclair that the decision in Descheneaux does not in any way deprive people of their rights. I would also remind him that Quebec did not sign the Constitution Act, 1982, and that the earth has not stopped turning since then. I do not think that the decision in Descheneaux deprives citizens of their rights. I will leave it up to the judge to interpret this situation.
The government decided, for lack of time, not to sufficiently consult Aboriginal peoples. I have served in various parliaments over the past twenty years or so. Instead of drafting an incomplete law, it is preferable not to make one all. If a law is incomplete, it is open to any interpretation. The big winners with an incomplete law are the lawyers on both sides, that is, lawyers for the crown and for the defence. Cases drag out before the courts for years, which hurts both sides.
Accordingly, I think it is important for Senator Patterson's motion to allow for consultation that will address the concerns of Aboriginal peoples. Then everyone around the table will be able to say that the Aboriginal peoples are satisfied with the consultation and have been fully heard. It will take as much time as is needed. Next year we will celebrate the 150th anniversary of Confederation. So it would be better to wait. Once a law is created, however, it will be complete and not meaningless and full of loopholes.
[English]
Senator Tannas: Senator Lankin has addressed many of the concerns that I wanted to voice, but I think it's worth talking about one more time.
First of all, what I heard as I listened to the testimony was the significant number of groups of people who encouraged us not to let the opportunity go by to get things right and a hue and cry that the consultation/engagement process was nowhere near up to any standard of any government, much less a government with a Prime Minister that has been so passionate and so open about wanting to turn the page on relations between indigenous people and the federal government.
I was further persuaded by the fact that one of our very early expert witnesses, the Indigenous Bar Association, having first said they had barely any time with this bill but in the short time they had it found a mistake — what is now being called a mistake but was in fact an exclusion — that did not square with the arrogant title of the bill, which is the "Elimination of sex-based discrimination.''
That really led me to what Senator Lankin alluded to, which is if a committee that is supposed to be considering the government's best effort at legislation turns up a mistake in such short order with such modest resources as we have, there must be more. Just like when you find a mouse in your motor home, you know that there are more somewhere.
The third thing for me was just how depressingly familiar this scenario is. I'm one of the newer senators prior to the 20-odd that have recently come, but I felt when I saw this scenario play out with us again. We've got the government saying in a last-minute promise that we'll fix stuff later, and to me, we're being asked under pressure to do what is right. I think that's fine. That's the job we signed up for. There is pressure and our job is to figure out what is right to do, but I just can't get past the idea that a 5,000-person department gets away with this. If we go ahead and fix this up and send it on, I see zero accountability coming from that department. Once again, they bumble their way off the stage with smirks on their faces, and to me that is the hardest thing to stomach.
Now, I have to say I am persuaded by what Senator Lankin has proposed as an amendment, what the IBA has put forward as an amendment and their confirmation that they think we've got all we can get except for the 1951 cut-off, which to me, when you are talking about hundreds of thousands of new members, there is a lot of consultation that needs to go into figuring out how we welcome that many new folks.
So I'm here to look for consensus. That has been the way we've operated the committee, and I'm keen to hear more, especially from other senior and trusted members of the committee.
But I want to say that no matter what happens here, I think we should take this as a moment where we commit to putting the lens and shining a light on the 5,000 people in this department, and I'd like to know what goes on all day long there. I would like to understand why the value that we get from there seems to be less than what I think it ought to be and what others think it ought to be. That's for another day, but I want to serve notice — and I hope I can enlist others — that we need to do some serious review and consultation on what to do about the department.
I'll leave it there. Thank you.
Senator Lovelace Nicholas: I agree with the motion only because I've been getting calls and letters saying, "Please don't pass the bill.'' Now we have a chance for the government to be accountable and make sure this gets done right. For many years, we were always the last ones to be consulted. We got the legislation, and now they get to consult. That's the wrong way of doing things.
What if we're not happy with phase two? What if they just say, "Take it or leave it,'' like they've always done? I think it's the right thing to do to stop this bill and take time to do it right.
Thank you.
Senator Raine: We really are in a little bit of a conundrum here because we know that passing this bill will provide relief in the short term for one group of people at the expense going forward of more people whose rights are not being properly recognized. If we look at the past and how we have done this, and if we look at the history, whenever we put a bandage on a big wound, it doesn't really get better. It just moves it down the road.
I would support the motion from Senator Patterson, simply because I think we will then have everyone's attention on fixing these inequities properly. My fear is that if we go to phase two, we open up a whole other issue which is the elephant in the room, and that is the issue of collective versus individual rights and registration and every First Nation has its own traditions and ways of doing things, and it will never get resolved. So we will have left behind a group of people whose rights we know are not recognized.
I do not understand the message that we got from INAC officials that we can't ask for an extension; they won't grant us an extension. We don't know that. In fact, I've come to the conclusion that we needed to get to where we are now with a bill on the table, ready to focus on this, before they would grant an extension. They weren't going to give an extension to let us take our time getting here; but with this bill now on the table, I think we have a very good reason to ask for an extension because we want to make it more complete. I believe that without asking for that extension, we will not have done what we should do.
I support the motion to delay this bill and work on it a little bit more. Thank you.
The Chair: Thank you.
Are there any other comments?
Senator Patterson: Madam Chair, I'm willing to hear from all members of the committee before responding on my motion, so if there are other members that wish to provide input, I'd be most willing to hear that.
I know you're the neutral chair, but I'm sure committee members would agree, I would welcome your views as one of the Aboriginal members of this committee.
The Chair: If somebody else would take the chair.
Senator Patterson, I believe it has to be you.
Senator Sinclair: A point of order, I don't know all the Senate rules, but if it's his motion, how can he chair the meeting? It seems to me Senator Tannas should chair the meeting.
Senator Scott Tannas (Deputy Chair) in the chair.
Senator Dyck: Thank you.
Like everybody else at the committee, I have struggled with this bill and listened very carefully to all the witnesses, considered the past history, and struggled with the consequences if we don't proceed.
In my mind, we have been rushed to do the bill, and that always puts us on the spot because we are supposed to be the chamber of sober second thought. I do think we need time to consider it.
I look back at my own time in the Senate. There was only one other time that I can remember where I felt we had to make a decision right away. At that point in time, it had to do with the shutting down of the Chalk River nuclear reactor in case it exploded. Did we want to keep it in order to provide radio-labelled medicines for people with cancer? That was a critical decision.
This is a critical decision, but it's not something life and death at the moment. We are considering two groups: those that the bill has decided they will grant the rights to registration from 28,000to 35,000 people, and those who are not included, which our witnesses told us could be as many as 100,000 people according.
In the past, with Senator Lovelace Nicholas' issue, we admitted 130,000 people with BillC-31. The economy didn't collapse. Nothing terrible happened.
With BillC-3, we admitted another 30,000. The economy didn't collapse. The government managed to find the resources to provide the non-insured health benefits and maybe pumped up post-secondary student support.
I believe the evidence from LEAF, Ms. McIvor and Dr. Palmater made it very clear that we're not just talking about the Charter rights of indigenous women under the Indian Act. We're also talking about the constitutional rights. It hasn't been proved by a court yet, but why do we have to always go to the courts?
Indigenous women under the Constitution are guaranteed equal rights to those of Aboriginal men. Aboriginal men and women, under section25.4, are supposed to have the same rights. They do not. If we pass this bill, we will still be denying the descendants the same rights.
It isn't just the Charter compliance. I get the argument that section1 could apply. The government could apply that, but why are they applying it? Is it over the resources? They actually said, "We don't want to open that can of worms.'' Well, I think it's time we opened it. Senator Lovelace Nicholas and I have been waiting 40 years for us to look at that. We keep pushing it aside because we say it's too complex. Other witnesses have said it's not really all that complex. We should do it.
Concerning the arguments with regard to shutting down the Indian registry, the witnesses told us that it only applies to Quebec. In the document that the government submitted to the UN to get them to take Sharon McIvor's case off the UN table, it said the decision only applies to the Province of Quebec, but what they're doing is by policy, they're going to apply it to the rest of the country. So really we're only shutting down 10percent of the registry.
We're always faced with the argument, well, it's going to be good for this and we forget who it's going to be bad for. The people who it has been bad for have been shut out for far too long, and just think we cannot ignore that group again. We cannot listen to the promises, because we've heard those promises with BillC-31. We've heard the promises with BillC-3. We have had consultations and dialogue sessions with all the national leaders in relation to both of those bills, and here we are back at the table again saying we need more consultations.
What has the government done since then? They have these consultations but we have come up with nothing. I'm not prepared that go again and we say, "We believe you and your promises,'' even with the amendments. So I'm in support of the motion.
The Acting Chair: Before Senator Dyck takes the chair again, are there any questions for her specifically? Thank you.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Are they any other comments?
Senator Sinclair: I've had a chance to look quickly at Senator Patterson's document which he shared with us this morning. It emphasizes —- perhaps more so than the other night when we were talking about the issue of the rationale for delaying, if I can use that word, the proceedings of the committee — the fact that consultation with regard to the provisions of this particular bill were relatively weak. There is no question that they weren't what they could have been or should have been, but they had to be hurried. In fact, presenting a bill as a fait accompli is probably not out of line with government policy generally, but certainly with regard to this, there's a higher onus on government to consult with indigenous groups when they're affecting their rights.
In regard to that, I note that the decision was made in the spring of this year not to proceed with the appeal, and therefore it was at that point in time that the preparation of the bill and the consultation with regard to the bill started with any degree of earnestness. Therefore, time was shortened even more from the time when the court decision came down than is normally the case, so we're not looking at 12 months for the government to engage in consultation. It was a relatively short period of four to five months for that consultation to occur.
The degree to which consultation needed to occur was with regard to the gender-based discrimination provisions that the Descheneaux decision dealt with. That particular issue, I would have thought, would have been relatively clear cut and would not have required a great deal of consultation other than, of course, the fact that there are provisions that the government decided not to deal with in this bill, that they should have dealt with from the beginning. That has to do with the post-1951 differential treatment of illegitimate children of women and illegitimate children of men, which they should have recognized from the outset, and was raised with them very early on in the preparation of this bill.
Now that they've agreed that it can be dealt with through an amendment, and I have an amendment that I'm prepared to put forward for this committee to consider, I think it will be dealt with.
I just want to comment, though, about the reference, which we've heard a few times now, to the issue of if the Descheneaux decision is allowed to go forward without an extension, then it only affects those who apply for status in Quebec and not the rest of Canada. I've heard that reference, and it's kind of an odd suggestion to me that we would be endorsing continuing gender-based discrimination against women in the rest of Canada but allowing for the women of Quebec not to be discriminated against. That would be the impact of the Descheneaux decision applying only in Quebec. In effect this committee will be saying to the rest of Canada, "We can discriminate and we are allowing discrimination to occur against all the other women of Canada, but in Quebec, because of Descheneaux, we're not going to allow that discrimination to occur.''
Keep that in mind if that argument is maintained. That's the reason why the minister has said, and the registrar has confirmed, that if the Descheneaux decision stands as it presently is, that they must treat all women all across Canada the same way, because that would be so patently unfair for the women in the rest of Canada to be subject to gender discrimination but only the women in Quebec would benefit from Descheneaux. I don't think anyone sees the logic of that.
My point is that we shouldn't base too much of a principled stand on the question of whether the decision applies in Quebec or across Canada. I think it needs to apply all across Canada. All women all across Canada need to benefit from the Descheneaux decision if the court's decision of striking down the provision is continued.
However, the point I wanted to make earlier on is the implication of the court striking down the decision is that subsections 6(1) through (c) are all struck out. There is no provision under 6(1) and 6(1)(a), 6(1)(b) and 6(1)(c) any longer if Descheneaux is allowed to stand. What is the implication of that? There is no legal analysis, but my view is that means that most of section6(1) will be gutted and women applying for registration after Descheneaux will not be able to register. It's that simple. I'm not sure what the government is going to do at that point in time.
The other reality I want to point out is that this bill, as incomplete as it is, can be perfected, can be made as good as it can be in the circumstances by recognizing that there needs to be two phases. I'm not suggesting that we ignore the fact that there is a heavy amount of consultation that needs to be undertaken with regard to those provisions that are not captured by the amendments of this bill. That consultation is part of what the government is committed to in phase two of their process.
I'm like Senator Tannas. I don't trust governments, particularly the department, when it comes to this particular provision, and I think we need to hold their feet to the fire. I think we need to monitor what they're doing, and I'm prepared to move an amendment requiring the minister to report regularly to this committee and the House of Commons committee on what it is they're doing with regard to this consultation process.
I think with that amendment and with the gender discrimination amendment that I have that deals with the post- 1951 provision, then I'm satisfied that the concern is met.
The pre-1951 group is not a gender-based group. If you look at Mr. Schulze's letter, he acknowledges that this is not a gender-based category. This is a category of people who are being discriminated against for other reasons.
I don't disagree with that. The question of how they get brought in requires a long period of consultation, and I think that's what we say needs to occur. But you can't hold the bill back while they're doing that consultation. We need something in place in the meantime, and that's why I encourage us to consider this bill.
Thank you.
Senator Lankin: I wanted to have one more opportunity to speak before the mover of the motion finishes off the debate for us. I hear the trend in terms of people's comments. I want to reinforce a couple of things Senator Sinclair just said and bring up one more point.
First of all, I want to speak to the premise that this affects Quebec only. About 90percent of the registrations take place under this provision. If struck down and if applied nationally, a huge number of people would be disenfranchised. That's the words I would use. The historical use of that word would be something different and perverse, but I would see people being denied their rights.
The government is not in a position to ignore the Descheneaux ruling if that provision is struck down — if we don't pass the bill — for the rest of Canada and only apply it in Quebec. They don't have the latitude to take a provision that they're not appealing — that would be a different circumstance; they've withdrawn the appeal — and say, "We're only going to apply what the rule has told us is a Charter-based violation. We're only going to apply the effect of that ruling in Quebec and not the rest of Canada.'' It's not an option for a Canadian government to do that.
We must be mindful of what a rejection without an extension would create in terms of a very discriminatory impact on indigenous peoples.
If there is an application for an extension and an extension is granted, I'm wondering what committee members predict might be the result. Is this likely to be an extension for as long as it takes to do stage two, to engage in all of those issues? I see some senators indicating no. It would probably be narrower than that, grounds that we would be seeking extension on. Would it be to deal with the other non-gender-based issues like adoption and unknown parent? Probably not, because that's not in the context of the ruling or the bill. There has been, as was directed in obiter in Descheneaux, a response from the government as to how they're going to proceed with regard to that in stage two.
I think it brings us back to the pre-1951 cut-off. I find so compelling the arguments that Senator Lovelace Nicholas and Senator Dyck make about the years of waiting, but to predict that that issue, when taken out to more extensive consultation, would be dealt with in the three to six months that the court might give us as an extension is, I think, a heroic assumption. I don't mean that with any disdain, but I do not think it would be an easy feat to accomplish; let me put it that way.
Given the recommended direction, I worry we will end up back here with a similar bill, having delayed the implementation of rights for 35,000 women and descendants, and having, in some senses, delayed the engagement on a broader set of issues on phrase 2.
I understand the direction. I have a lot of respect for the concern that senators are raising that leads them to a sense that we should be able to do better as a country. I agree with that sentiment. What I don't agree with is holding up rights for some people on the hope that in a short extension from the court we might get to these other issues when many of them will have to be dealt with in the stage two consultations, in any event, because they affect, as Senator Raine said, these collective and individual issues — the cultural impacts on communities and the views of individual indigenous communities on who are cultural members of the community and who are not.
We might have opinions on all of those things, but our opinions aren't the ones that are important. It is the opinions that will be expressed and explored in an attempt to seek a consensus approach to move into forward in indigenous communities on issues that have not been resolved for many years, and I don't think that will be done in a short court extension.
I feel that we are, perhaps, in passing this making a process statement, which could be made in other ways that would not deny people their rights. I think that would be the better way to go. I'm not sure I have convinced anyone of that, but I respect the opinions that have been put on the table.
[Translation]
Senator Maltais: I would like to make a minor correction to what Senator Lankin said. I never spoke about the Aboriginal peoples of Quebec. I talked about all the Aboriginal peoples of Canada. We must not create two categories of citizens among Aboriginal peoples. If we resolve the issues for 50percent of citizens, that leaves the other 50percent. Why create a law that divides when we have the opportunity as legislators to create a law that meets the needs of the vast majority of Aboriginal peoples?
In my youth, I lived with Aboriginal peoples. I do not claim to know them as well as you do, but I can tell you that they are Canadians who have all the rights of Canadians. We do not have the right to create two classes of citizens among them. That is not the legislator's role. We create a law that strives for perfection and, along the way, it can be amended, which unfortunately takes many years, sometimes 25, 30 or 40 years.
Today, I unreservedly support Senator Patterson's motion. When we put forward a proposal that meets the needs of the vast majority of Aboriginal peoples, I will vote for a bill that guarantees their rights.
I remind you that a parliament does not have the right to make laws that leave out a group of Canadians. We are a legislative chamber and we must use a consensual approach in our work.
[English]
Senator Lankin: I'd like to make a correction to something that was said.
Senator Maltais, I didn't mention you at all. Senator Dyck had indicated that the reach of the Quebec exclusion didn't have to be across Canada. I wasn't responding to you.
Senator Lovelace Nicholas: This is a follow-up on what Senator Lankin said. According to my life, our rights have always been denied. As you know, we always have to go to court just to get recognized.
As I said before, it's about time that we don't have to go to court just to get our rights recognized. There is still discrimination in this bill, and I totally disagree with it.
Senator Martin: I wish that we as a committee had more time to continue this very difficult discussion. I don't feel ready, and yet I know it's urgent for all of us to work within certain time frames.
I spoke last week. I normally am not able to come on Tuesdays, but the Rules Committee is not meeting, and therefore I am here to hear my colleagues and make very difficult decisions in adopting a bill that's clearly flawed and exclusionary and potentially creates further issues for the department, the country and the people. The part I've been struggling with is that we've been asked to do it right now because there is this urgency of need that has to be addressed.
I was prepared to see if we could do something now and then trust in what happens in phase two. Yet, today, listening to my colleagues on both sides who have the experience, knowledge and the institutional memory to remember what happened in the past, I actually feel more stressed than I did before this meeting. At the same time, I'm listening for insights that will help me make the best decision.
I have two prior examples of what I have witnessed that perhaps may help the committee.
One is regarding the veterans of the Korean War. I remember that when they were finally recognized for their service and sacrifice, the tool used by the department had been designed for World War I and World War II veterans only, and therefore it didn't capture the specific situations and circumstances of the Korean War. Therefore, people were excluded.
It took me two or three years to fight for those individuals who were denied their status as veterans. That exclusion, and the fact that tool was flawed, really taught me about the pain they went through and about what we implemented and how difficult it was to push it out.
It wasn't even the fault of the department in that they were just following the rules and parameters they were given.
I understand if we do something and it excludes, that in and of itself creates the pain and the effort involved in having to undo something that we may be actually enacting through flawed legislation.
The other example that I am thinking of is the War World II sexual slaves of the world and the comfort women who the governments and leaders of the day agreed to compensate and yet the women themselves had not been consulted. The women were not asked, "Is this okay?'' I saw these 90-year-old women. They were like pawns that were being — I don't want to use the word "played,'' but that's how it felt. It just felt that it was such disrespect to what they had already gone through.
I'm just listening to the voices of the people I feel we need to listen to. I'm listening to Senator Lovelace Nicholas and Senator Dyck and Senator Watt. Today we heard from Senator Sinclair, which is why I'm still struggling. I'm struggling with what we're supposed to do with this.
I spoke last week, leaning toward one side, but I feel that the courts should be listening, too. They are serving the people, and what is in the best interests is that we need more time. I will trust that that's what will happen.
If we're back here again in the fall with whatever extension we are given, or it may be early in the spring and it's not complete, we will make that decision again and struggle with it again. I know that we will do that again. But for this round I feel that it's very difficult. I wish I did not have to make it, but I will be supporting Senator Patterson's motion.
Senator Oh: I'm concerned with the current status of this bill. Can we all say with confidence that we have studied the issue of this bill in depth? Are we comfortable that our support for this bill will not create more problems in the future? I'm afraid that we continue to exclude people from their status and also create more categories of people in times to come.
How can we continue to describe people by their legal status? How can we continue to tell them that even if they can gain this status, not every one of them will be equal?
If you remember, Minister Carolyn Bennett was here on November30 and said:
My department's failure to directly engage with the plaintiffs was not only unacceptable but embarrassing for me as a minister ....
Why would we also want to make the Senate embarrassed? The minister feels she was embarrassed about the whole issue. Let's get this right and not just for the sake of getting it done. I support this motion.
Senator Moore: I first of all want to say I subscribe to and agree with Senator Tannas' comments with regard to holding the department's feet to the fire. I thought somewhere along the way I heard it was 7,500 people in that department, not 5,000.
It seems to me, after everything I have heard in the last few weeks, it is clear that the court would grant an extension. I don't think there is any doubt about that. So then what?
Do we expect then that the department will come in with an amendment, the same bill or a new bill, but at least with provisions that will cover those who were discriminated against by the 1951 cut-off?
I'm standing by Senator Lovelace Nicholas on this, and that's how I feel about it.
Senator Patterson: I'm glad we had a chance to hear from almost everyone.
Just to respond to some of Senator Lankin's comments, I never did say that there was unanimous support for delaying the bill. I paid attention to the Native Women's Association of Canada's recommendation that we hold our noses and pass the bill. It was notable to me that they made that comment having described a really deplorable situation of consultation. They said they got a lecture from the department and they were presented with a fait accompli. They also believed that going ahead would impact 35,000 people, and I think there is some real question about that. Whether it's fair or not or logical or not, I think there is some real question with that. I'll mention that a little bit further.
I was also surprised that Senator Lankin strongly felt that the Senate has no business dealing with policy issues. It seemed to me that the government itself invited us to address policy issues by talking about their strategy of a second phase of consultation that would deal with broader issues and also touched on those other issues.
I want to also mention Mr. Schulze and Senator Sinclair's comments about the 1951 cut-off. I think it is foggy about gender discrimination. I'm not sure if we know what that means. Mr. Schulze talked about the differential treatment between married and unmarried women, and I understand from Senator Sinclair that children, male or female, are affected equally by the impact of this bill. Maybe this is not gender discrimination, but I have doubts about that.
The bill purports to eliminate all sex-based discrimination. I still have some doubts about whether that has happened. We've been challenged by Senator Sinclair that not passing the bill in this committee is irresponsible. To me, it's pretty simple. Passing the bill, in my mind, perpetuates the 6(1) and 6(2) inequities. Sharon McIvor has urged us not to do that. Senator Lovelace Nicholas, who started this decades ago, has urged us not to do that.
Senator Sinclair makes the argument, "I thought I might have heard from the government that there was a reason for excluding the pre-1951 persons based on section1 of the Charter. This is a reasonable discrimination.'' We didn't hear that from the government. It's a major issue, it's a sleeping elephant in the room, and it was never raised by the government.
I would have thought that a thorough, rash justification for narrowing the focus of this bill would have been, "Look, we left out maybe a lot of people, but there was a reason for that.'' We didn't hear that. I think that is another deficiency of the bill.
I want to talk about the 35,000 people to be affected. We talked about the department. The registrar gave evidence on November22 and said of the impact of the bill not being brought into effect:
.... I will not be able to register anyone who may be entitled to be registered in Quebec. Most likely I would not proceed to continue to register people from other provinces either, because while the provisions have been struck down in Quebec, technically speaking, in my view, continuing to register people would be moot because it would create two systems of registration.
We don't know what is going to happen, and if we pass this bill it's going to be left to the whim of an official from the department that, sadly, no one seems to trust, and I'm not comfortable leaving this important issue to the discretion of the department. I think we need clarity in the bill.
I just want to say about the extension, we've had so many opposing views from the minister and the department. The department said strongly they believed they wouldn't get an extension. LEAF, an experienced and credible litigant in these matters, said they were quite sure an extension would be granted. The department said if they did get an extension that it would be six months.
Let's look at that. Senator Raine said we have a bill that goes some distance. We have engagement, finally, through this parliamentary process, of the main players. It didn't happen because the engagement — the department would not dare call it consultation — began in the summer. It began in the summer because the department took roughly six months from the time the appeal was granted to get its affairs in order to go out to the people. And when they went out to the people, they presented a bill that was, as the Native Women's Association of Canada said, was a fait accompli. It was not engagement about how to deal with the response to Descheneaux and the gender discrimination issue. It was: Here's the response. What do you think of it? Take it or leave it, basically.
I believe there is a very good chance that there will be an extension. I agree with Senator Moore. In the McIvor case in B.C. when an extension was granted, the court paid close attention to the deliberations in Parliament, and I think we should hold our heads high and say that we in both houses have studied the issues in considerable detail and advanced the discussion to focus on the critical issues, so we're not starting from a blank slate if the court gave an extension. I believe, and I said this when the minister was here, an extension to allow further time should focus on Descheneaux and the in obiter ruling and make sure we have it right.
We have a thoughtful amendment that Senator Lankin has circulated, and I believe that may be the one that Senator Sinclair is endorsing about reporting back. I think that's a good idea. The minister was enthusiastic about it the other night, but what little I know about the process of government, I'm not sure the minister had the authority of cabinet to make that generous commitment to support reporting back. So we're not even sure if this amendment is approved in clause-by-clause consideration that it would be adopted by the government.
I think that if we reject the bill and report back, as I'm recommending in my motion, there is a very good chance of getting a six-month extension. That would allow the department the time to build on the engagement that is really just crystallizing now. Look at the thoughtful amendments that have been proposed without haste and come back to us with a bill that finally addresses gender discrimination as the title of the bill purports to do.
Finally, I want to say that I don't think this has to be a complicated or lengthy process. Phase two is another story. I will hearken back to what I said at the very beginning of this committee. The Inuit have figured it out and it's working. My children actually are beneficiaries under the Nunavut Land Claims Agreement because there is one parent that is a beneficiary. It's a simple rule: one parent, whatever sex, not favouring men, either parent — in the case of my four children, or my three children of my own blood, the mother.
So I think this can be done right and it can be done properly. I think we've pinpointed the issues that we maybe all would admit we didn't have the time to fully explore.
Parliament will sit until June, as it usually does. A six-month extension in December would give the department the time to do its job properly and present a better bill.
I envisage this consultation taking place in a different way rather than being presented with a fait accompli, raising the issues we've addressed and getting a more genuine engagement.
Madam Chair, thank you. Those are my comments. I do recommend that we deal with this motion today. The Senate in its wisdom can determine what to do with our motion, but I'm quite compelled by the statements that were made by our chair and by Senator Lovelace Nicholas. I would like to call the question on my motion. Thank you.
The Chair: Yes.
Senator Sinclair: Madam Chair, before that occurs, I want to clarify a point that I was challenged on today, if I can respond to it, if you don't mind.
The Chair: Sorry. I didn't quite hear what you said, Senator Sinclair.
Senator Sinclair: Before the vote is held, I want to respond to the impact of the decision across the country, if you don't mind, because it appears to be an important issue here. I invite you all to consult with legal counsel of your choosing to confirm this. But subsections 6(1)(a), (c) and (f) were struck down by the court, but the court's decision was suspended. That means that subsections 6(1), (c) and (f) continue to be in force in law, and the court has found those to be discriminatory on the basis of sex. So people are being discriminated against on the basis of sex at present because the court decision is in suspension. If the court decision is not continued in suspension, then the department will go back to the discriminating against women in February because the court suspension is not lifted.
Right now, the department is saying that they will be discriminating against women all across the country without this bill, and that's the point you need to understand. If we do not report on this bill, we are authorizing continuing sexual discrimination against women across the country. That's why you need to understand that by continuing the suspension of the court's decision, discrimination will continue. That's the point you need to understand. By passing the bill, we will be stopping discrimination. That's the impact of this motion.
The Chair: Thank you.
Senator Tannas: I have a question. If that was a concern, couldn't the government as part of their submission to the court, say, "Look, from this day forward, we know we have an obligation. We've recognized it. We are going to accrue the liability and pay it retroactively when the bill comes into force.'' Could they not do that, if that was the issue versus getting it right?
Senator Sinclair: What you're asking is could the government continue to implement this bill or start implementing this bill as though it were law?
Senator Tannas: No, they could just simply keep a record. From the date they get the extension until the bill is passed, they would recognize that when the bill is passed they would retroactively compensate people back to February3. That would have the effect of other than a delay in payment, it would wipe out that argument you have just discussed. Could they do that?
Senator Sinclair: I don't think you could retroactively change someone's legal status.
Senator Tannas: It's about the money, right?
Senator Sinclair: No, it's not about that. It's about the recognition of rights.
Senator Tannas: Okay. Well, then, for a few months, over decades — the moral piece, you are right, but it's more about the financial issues, I would assume, than it is about three more months on top of 50 years to get it right.
Senator Sinclair: No. It's about the fact that people will not be entitled to be registered on the basis of sex for a long period of time to come, whatever the court decision ends up being in terms of the period of suspension. Whether it's six months, as you suggest, or whether it is a longer period of time while further studies are being undertaken, all the children born in the next period of time will not be able to be registered.
The women who are now not entitled to be registered because they don't qualify under the current provisions will not be able to get registered under the act. That means that in terms of their entitlement to live in their communities or to obtain housing, they will have to continue to live in a situation off-reserve, where they don't want to live. You can't compensate for some of those things financially.
To write it off as simply a loss of cash for a period of time, that is not really what this is about.
The women are telling you that they want their status recognized; they want their ability to register recognized. By not passing this bill, you are preventing them from having their status recognized. It's as simple as that.
The Chair: We are getting close to the end of our sitting time and I believe we're ready to vote on the motion.
Senator Patterson: Recorded vote.
The Chair: Is it agreed that the committee report Bill S-3 to the Senate, with a recommendation that the bill should not proceed further in the Senate?
Mark Palmer, Clerk of the Committee: The Honourable Senator Dyck?
Senator Dyck: I agree with the motion.
Mr. Palmer: The Honourable Senator Beyak?
Senator Beyak: I agree with the motion.
Mr. Palmer: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: I agree with the motion.
[Translation]
Mr. Palmer: Honourable Senator Maltais?
Senator Maltais: I vote in favour of the motion.
[English]
Mr. Palmer: The Honourable Senator Martin?
Senator Martin: Agree.
Mr. Palmer: The Honourable Senator Meredith?
Senator Meredith: I disagree with the motion.
Mr. Palmer: The Honourable Senator Moore?
Senator Moore: Agreed.
Mr. Palmer: The Honourable Senator Oh?
Senator Oh: Agreed.
Mr. Palmer: The Honourable Senator Patterson?
Senator Patterson: Agreed.
Mr. Palmer: The Honourable Senator Greene Raine?
Senator Raine: I agree.
Mr. Palmer: The Honourable Senator Sinclair?
Senator Sinclair: Disagree.
Mr. Palmer: The Honourable Senator Tannas?
Senator Tannas: Agree.
Mr. Palmer: Yeas, 10; nays, 2.
The Chair: Motion carried.
According to rule12-23(5):
When a committee report recommends that the Senate not proceed further with the bill, the report must state the reasons for this. If the report is adopted, the Senate shall not proceed further with the bill.
Given the time that we have now, which is only five or six minutes, we will take time tomorrow evening to continue to prepare the report for tabling in the Senate.
Hon. Senators: Agreed.
The Chair: Thank you, senators.
(The committee adjourned.)