Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 14 - Evidence - November 30, 2016
OTTAWA, Wednesday, November 30, 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 6:51p.m. to give consideration to the bill; and, in camera, for the consideration of a draft report.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. 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'm from Saskatchewan and I have the honour and privilege of chairing this committee. I now invite the honourable senators present to introduce themselves, starting on my left.
Senator Moore: Welcome witnesses. I'm Wilfred Moore from Nova Scotia.
Senator Pate: Kim Pate from Ontario.
Senator McPhedran: Marilou McPhedran from Manitoba.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas from New Brunswick.
Senator Bovey: Patricia Bovey from Manitoba.
Senator Sinclair: Murray Sinclair from Manitoba.
Senator Meredith: Senator Don Meredith, Ontario.
Senator Lankin: Frances Lankin, Ontario.
Senator Oh: Victor Oh, Ontario.
Senator Martin: Yonah Martin, British Columbia.
Senator Beyak: Lynn Beyak, Ontario.
[Translation]
Senator Dupuis: Renée Dupuis, senator for Quebec.
[English]
Senator Enverga: Tobias Enverga, Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Raine: Nancy Greene Raine from B.C.
Senator Patterson: Dennis Patterson from Nunavut.
The Chair: Thank you, senators. I would like to welcome all the non-affiliated independent senators who have chosen to come to this meeting tonight and to hear our witnesses as we are dealing with an important government bill. Thank you for attending.
This evening we welcome the Minister of Indigenous and Northern Affairs and officials to speak to us on BillS-3, which as you know we have been considering for the last two weeks.
Joining us tonight is the Honourable Carolyn Bennett, P.C., M.P., Minister of Indigenous and Northern Affairs. From the department we have the Assistant Deputy Minister, Ms. Joëlle Montminy, Candice St-Aubin, Nathalie Nepton, and from Department of Justice Canada we have Mr. Martin Reiher. Welcome again, officials. I think this will be your third appearance before the committee.
Having said that, we will now turn the table over to the minister to begin her presentation, and after that we will have questions from honourable senators.
Hon. Carolyn Bennett, P.C., M.P., Minister of Indigenous and Northern Affairs: Thank you so much, Madam Chair. It's great to be back at your committee. I think with the work that BillS-3 lays out, we'll be back again often, hopefully in the new year as we begin the next amount of work.
Thank you for acknowledging that we are meeting here on the traditional, unceded territory of the Algonquin people.
Again, I think it's really important that you understand that this is a team sport, and to the Assistant Deputy Minister, Resolution and Individual Affairs, we are grateful for your promotion and being here, as well as Candice and Martin. I hope you will know by the end of my remarks that at some point we want to put Nathalie out of work as the registrar. We're not sure this is our department's business to determine who's an Indian. This is an ongoing journey, and I know you in the Senate will be part of that huge success.
We appreciate the opportunity to meet with you to explain the proposed approach to dealing with the Descheneaux decision. I think it's appropriate that we first pay tribute to the many courageous First Nations women whose tireless work brought these matters to light — women like Mary Two-Axe Earley; Jeannette Corbière Lavell; Yvonne Bedard; Senator Lovelace Nicholas, who's here with us today; and Sharon Donna McIvor. We also want to thank and recognize Stéphane Descheneaux, Susan Yantha and Tammy Yantha, whose courageous fight will eliminate the discriminatory treatment of tens of thousands of people. I would also like to thank Senator Lankin for shepherding this bill, as well as your whole committee for this amazing work you've done on the bill under very challenging circumstances.
We recognize that we've asked you to wrestle with very complex and fundamental issues in a very constrained time frame. To be frank, this is not the way I would have chosen to pass the first piece of legislation from my department. As you know, the court imposed a deadline of February3, and it's forced us to make difficult choices to balance meeting that deadline with the scope of the bill, necessary engagement with indigenous peoples and ensuring parliamentarians had adequate time to discharge their essential responsibilities.
The Prime Minister and this government, as you know, have committed to renewing the relationship between the Crown and indigenous peoples based on the recognition of rights, respect, cooperation and partnership.
[Translation]
This also means, whenever possible, working in partnership to resolve issues outside the courts.
[English]
That's why the government decided to withdraw the appeal of the Descheneaux decision, which we inherited when we came into office. We decided to move immediately to remedy the inequities highlighted in that decision, as well as other known sex-based discrimination within the registration under the Indian Act.
The new relationship also means ensuring that policies that impact indigenous people are jointly developed and have the benefit of meaningful consultation. There's no question that the complexity of the issues that had to be remedied, combined with the court deadline for legislation, significantly limited the government's ability to engage with First Nations. While my department tried to do their best within those time constraints, the engagement is not as extensive as I would have liked and mistakes were made.
My department's failure to directly engage with the plaintiffs was not only unacceptable but embarrassing for me as minister. I have now personally spoken with each of the plaintiffs, explained the government's two-staged approach and committed to them, verbally and in writing, that they will be meaningfully engaged as we move forward in designing the process for stage two.
Despite the limitations with the engagement on this bill, I believe that passing the reforms contained in BillS-3 and proceeding with a more broad-based collaborative process to address other more complex issues is the fairest and most responsible way to proceed.
The reforms in this bill deal with issues already found by the courts to be discrimination, as well as other very parallel sex-based situations.
[Translation]
We need to remedy these sex-based inequities before the court imposed deadline.
[English]
This is not just about the plaintiffs, as you know, but up to 35,000 other individuals who are currently being denied their rights. I'm very aware of the many potential inequities not addressed in this bill, which have been highlighted by a number of witnesses. A number of situations have been highlighted to you as other forms of sex-based discrimination or other examples of inequities that should be remedied: unnamed parentage, the 1951 cut-off, the second generation cut-off, adoption, enfranchisement and other issues. Many witnesses have argued that this bill, despite the limited engagement, should simply be amended to deal with those issues.
It is the government's position that with the exception of the issue raised by the Indigenous Bar Association, for which we are proposing an amendment, these other issues are beyond the scope of this bill. This is supported by the IBA representative who told you:
In the context of sex equity alone on this bill, subject to our comments and proposed revisions, you can say we accept the position that we should be moving forward with the bill currently to meet the obligations that have been placed upon Parliament by the courts ....
During the question period, I'd be happy to address this in much greater detail, but I think the more important point is that addressing the issues highlighted above, and many others highlighted before this committee, would likely have profound impacts on indigenous communities.
We all know that repeated unilateral decisions made by the federal government regarding indigenous peoples have often had disastrous unintended consequences. The government must ensure that it does not inadvertently create other forms of discrimination.
We must also balance individual rights with the collective rights of indigenous people and communities. This will require extensive consultation with communities about impacts far more complex than just ensuring adequate resources, but fundamental issues such as the cultural integrity of communities.
[Translation]
Despite the critical work parliamentary committees do to hold the government to account, they cannot replace nation to nation consultation.
[English]
The Prime Minister and our government have been very clear that to achieve our shared goals, Canada and indigenous people must work in partnership to build consensus and jointly develop solutions. That is at the heart of why we have implemented a two-staged approach in our response to Descheneaux.
A number of witnesses have also suggested the solution to the limited time for consultation is simple: Request a court extension. AFN National Chief Bellegarde suggested taking another year or so to do this right. While I understand the preference to deal with all these important issues at once, this is simply not an option within the time provided by the court, even with an extension.
The length of any such extension would be extremely limited, effectively three to six months. Taking into account the Cabinet and legislative processes that would be part of that extension, it would provide minimal additional time to consult.
As the IBA representative made clear in his testimony, this would likely result in us coming back months from now with a bill very similar in scope and delay or distract from the needed work of stage two.
I would also like to clarify that simply allowing the court deadline to pass and for these provisions to become inoperable would mean that the registrar would be unable to process 90percent of the new applications across the country. The impact would not be limited to Quebec, as some witnesses have suggested.
I understand the cynicism of indigenous people and parliamentarians about whether the government will follow through on stage two and, even if we do, whether it will lead to meaningful reform. Governments of all stripes have failed to follow through on such promises for decades.
I am giving you my word that stage two will be launched in February2017 and that we will begin a process of meaningful consultation and joint work with First Nations and other indigenous groups to address these broader registration and membership issues in the Indian Act.
[Translation]
This process will not only be jointly designed with First Nations, but with the input of experts and other knowledgeable Canadians, including members of this committee.
[English]
I truly believe that this is an opportunity for the government to get it right, not just in terms of meaningful consultation but working in true partnership to jointly develop reforms.
I can assure you that I will be reaching out personally, and through my department, to truly inspiring individuals like Sharon McIvor, Jeannette Corbière Lavell, Senator Lovelace Nicholas and others to design a stage two that gives a voice to the many affected people who have been left out of previous conversations.
Stage two must engage with a broad group of people to ensure future action is informed by perspectives from everyone who may be impacted.
There will not always be consensus and the government may need to make tough policy decisions in the interests of protecting rights, but those decisions will not be made unilaterally and without the input of those affected.
I would also welcome the opportunity to come back to your committee in the spring and update you on the progress with stage two.
I urge you to support the current bill, with the IBA amendment, and provide immediate justice for up to 35,000impacted people.
I commit to indigenous peoples and this committee that immediately after this important step, we will move forward in partnership, and in a good way, to achieving broader reform together.
I want you to see that this is a step in actually getting my department out of the business. This is about us no longer having a registrar. This is a journey that we have to take together, but this is an extremely important first step to give some assurance to the people whose rights have been denied that they will see them immediately and not have to wait any longer, and that we will then get on and right the other wrongs.
Thank you. Merci. Meegwetch.
The Chair: Thank you, madam minister. We will now open the floor to questions from senators.
Senator Patterson: Thank you, Madam Minister, and to your colleagues.
We're having a difficult time dealing with this complex bill, and I want to be candid with you about my reservations about it. The bill is entitled An Act to amend the Indian Act (elimination of sex-based inequities in registration). I think that's what we should focus on in reviewing this bill.
I know stage two will go beyond that, as you've said in your remarks, to deal with other examples of inequities that may not be strictly based on gender. But I think we should focus on the sex-based inequities in looking at this bill, because that's what this bill says it will do: eliminate sex-based inequities.
You've said tonight that the government will propose an amendment, which we have not yet seen, that will deal with one of the sex-based inequities noted by the Indigenous Bar Association representative. That is good to hear. I believe it's probably an illustration that the bill may have fallen short of its intent, perhaps because of the short time frame that we all understand was available.
I'd like to ask you about another four classes of inequities that Mr. Schultz, the solicitor for the litigants, outlined in detail to this committee on the first occasion that we considered the bill.
I do appreciate your acknowledgment that it was a mistake. I think you said it was unacceptable that the department failed to engage with the plaintiffs. I appreciate that admission; we were shocked about that as well. But it seems to me that that is still continuing.
To give a little further background, your official, Ms. Montminy, has told the committee twice, I believe, that the Schultz scenarios that were drawn to the attention of the committee are not gender-based or sex-based. She said that as recently as this week in her testimony to the committee. She said:
What the plaintiff's counsel brought forward as proposed further changes are not sex-based discrimination situations. He admitted this and it's on the record.
Madam Minister, I did review the testimony of Mr. Schulze at our first meeting considering this bill, and our chair said, talking about going back:
...would we not still have sex discrimination because the Indian man never loses his status, but if we go back enough times the Indian woman will still lose her status if we go back another generation. Is that correct?
Mr. Schultz: You're absolutely correct, Senator Dyck.
So I don't see Mr. Schulze as having said that the four scenarios he addressed were not sex-based. In fact, he said they were.
I guess I'd like to ask you specifically. Commendations for engaging with the Indigenous Bar Association and bringing forth an amendment from that, but have you engaged with the plaintiffs' counsel about these persisting discrimination situations and looked at whether or not amendments would also be required to do as the bill claims to do, eliminate sex-based inequities in registration?
Ms. Bennett: I think the language we've been using is known sex-based discriminations that are absolutely simple. There are other discriminations based on date of birth, adoption or unnamed parentage that are more complex, and those are the ones that we believe need to have consultation and engagement with communities as to how you would sort it out when there wasn't a registry and how you would deal with this. A parliamentary committee is just not the place to sort out how communities would interpret this and deal with it.
We believe we have to do these simple ones now, and then we have to deal with the ones that have complexity in terms of not only interpretation but enforcement and engagement. How would you actually implement these others without consulting communities properly?
I think we've got into trouble with First Nations, Inuit and Metis people before. They do not think that meaningful consultation is at a parliamentary committee. That actually has to be nation to nation. So we can't add things in. We're only dealing with basically what the court told us we had to do. The rest must be engaged with community.
This is how we have carved out this piece that we need to go ahead with because of the 28,000 to 35,000 people who have won in court in terms of that definition of sex-based. For the rest that are more complex, we are going to have to sort out not only how we include them in legislation in the future but how that would be implemented. That's why we believe we really need a robust phase two.
Certainly, I hear from the plaintiffs that they don't want that to take forever. They want it time-limited in some way. They want to know that we will get on with this. We're certainly prepared to come back to this committee in the spring, and as often as you want me to, to let you know how we're doing on phase two. But I really do think that the issue of the judgment is about the situation of the plaintiffs themselves. That's all that could be dealt with actually in an extension, is what is in the plaintiffs' case. That's why I don't think we can do any further engagement without going out to communities and hearing from them. It's why I don't think that could be done in a short extension, which would take us to August, at the most. You know well, senator, how long it takes here in Parliament to get things through two houses, to be able to get it to cabinet, to Treasury Board and all of the things that would have to happen.
Senator Patterson: I'm sure that parliamentarians in both houses have all been seriously engaged with this bill. Of course, the other place has engaged in a pre-study and heard from many of the same witnesses we've heard from. I think we're all committed to the goal of dealing with these inequities.
We've had some eminent legal experts as recently as yesterday before the committee, and I'm referring to LEAF, the Women's Legal Education and Action Fund that has done great work in Aboriginal legal issues, and the Canadian Bar Association, who have said if we want to eliminate gender-based inequities as a follow-up to Descheneaux, putting aside the other major issues that you've described that have to be dealt with carefully and over more time, it doesn't have to take a long time.
While we want to deal with the people that were affected by Descheneaux, many of us are concerned about leaving others behind who will continue to be left out based on gender if we don't make this bill more fulsome. Tonight is the first time at least I recall hearing that we're dealing with known sex-based inequity. That's the first time we've heard this. The bill suggests elimination of sex-based inequities in registration.
What I would say to you, minister, is, I don't think Parliament will start on a blank slate if the bill comes back to us with the fulsome, the known, the identified gender-based inequities dealt with. It was suggested to us by the witnesses that this doesn't need to take a long time. It could be done effectively in the three to six months that you've mentioned the court might provide.
I think the litigation says it has to be shown that the government has made a genuine effort to address the issue. Certainly all of the proceedings will show a genuine effort on the part of the government and on the part of parliamentarians, but our duty is to look at the legislation critically and look for flaws in it.
I would put to you that the government could have asked for more time. I guess some of us are surprised that that option wasn't more seriously considered when we heard the complaints about the engagement, which you know about from the Native Women's Association of Canada and others. They were presented with a fait accompli and they had very little time. Even the plaintiffs said all they got was notice of the bill when they were asked to come before our committee.
Could we not do a better job with this bill — not with the broader issues, but with this bill — if we were to ask for a little more time to deal with it in the new fiscal year? Yes, these people have been left out for decades, but there are others that we should include that appear to have been left out. As I say, Mr. Schulze identified four scenarios that I don't think have been seriously examined by your officials.
Ms. Bennett: Thank you for the question. I think it's important for you to realize that the extension can only be achieved for what was in the plaintiffs' case. The extension isn't for: Couldn't we do everybody else? The extension is for: Have we not had enough time to deal with what was in the plaintiffs' case and to put it into legislation so that the registrar can keep doing her work? That's what the court has to decide in terms of granting an extension.
My concern is that if I went to First Nations communities and said there will be three to six months of an extension to deal with all of these other discriminations that may have some sex in them, but it's date of birth, whether there was a registry or not, adoption, second-generation cut-off, then there's no way I would feel that I have done meaningful consultation with the people who would be affected by that bill in three to six months.
First, I'm not sure the court would grant the extension if we were going at them, saying, "Can't we do all of the rest of this at the same time?'' Second, if we tried to do all of the other at the same time and put these things in, I think we would really let down the people affected by the bill on certainly things like second-generation cut-off and unnamed parentage and the 1951 cut-off and adoption. Enfranchisement is one of the clearest things we can explain to Canadians, that people who got a post-secondary education or ended up a doctor or a lawyer lost their status. These are straightforward things that don't happen to be in this case because they're not sex-based, but they're things I want to get on with really quickly. It means doing some sort of meaningful engagement on these other inequities and to begin that work right away in February so we can get rid of these other ones too.
Senator Lankin: Minister, thank you. I have two questions. I want to follow up on what Senator Patterson asked you about the phraseology "known gender discrimination'' and understand from you what the significance of that is. I think I understand very well the complexities that you're talking about in terms of pre-1951, for example, and your difficult balance that you speak of in terms of nation-to-nation relations and moving on things. But the known gender discrimination piece presumably can include pre-1951. What do you mean when you say that?
Ms. Bennett: I think I mean "known'' as so close to what was in the case that there's no question and that we wouldn't be adversely affecting or needing to more broadly consult on the implementation or the kinds of things that the other questions will raise. We're never really sure what a new legal interpretation will do, but we do believe that this bill, as amended by the IBA, will deal with the known ones, the ones that are so tightly related to Descheneaux that we can do this cleanly now, and then we want proper time to consult the more complex ones that would have more difficulty implementing. Because I think as we go out to consult, it's not only whether people qualify; it would be also how would you implement it when there wasn't a registry? This is not straightforward.
That's why I think we need a proper consultation on the pre-1951 and adoption and unnamed parentage. It's again some people claim rights and don't have them. How do we determine that? That would be part of the consultation with the people who would be affected by the new bill.
Senator Lankin: Thank you. You're probably losing sleep over this. I know I have been. I've been struggling with some of the trade-offs and balances that you're faced with from a government perspective. I've come to terms with some of the things Mr. Schulze put forward, like a second-generation cut-off is not a gender-based issue, and even unknown parentage, although I would argue that it is primarily a provision that impacts women culturally and other reasons, but not only. And there are some other examples.
But the pre-1951 issue is the most powerful expression of that from Sharon McIvor, when she says, "I'm a 6(2), and my brother is a 6(1) because of date of birth, because of heritage, because of the fact that there wasn't a registration process or a registry prior to 1951.'' And it's even more powerful when she says, "You can't consult about not giving someone their rights under the Charter.'' So her simple solution is just to make us all 6(1)s.
You've talked about the pre-1951 and what those complexities are. I'd like you to address that, because my guts are twisting on this and my feminist head wants to do something, but I want to understand beyond the nation to nation. I want to understand the complexities you're talking about and what circumstances would arise from that. "Why can't you just make us all 6(1)s, make me the same as my brother?''
Ms. Bennett: Maybe I should ask the people who would have to implement that. But my gut tells me that without going out and talking to people about how that would affect them, because it's not quite as clean as when there is a registry, that you don't want untoward consequences of people claiming rights who don't have them. We see that sometimes.
Joëlle, do you want to explain what happened?
Joëlle Montminy, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Indigenous and Northern Affairs Canada: Thank you very much. This is a very big issue, and we heard a lot about the simple solution of just expanding the scope of the bill to make sure we can extend benefits to all people pre-1951.
Even though Ms. McIvor told us this was clear discrimination that should be remedied in this bill, the reality is that — and I don't want to make this too legalistic — the Court of Appeal did not agree with Ms. McIvor with respect to the pre-1951 issue. I can quote from the Court of Appeal, but basically the court said that to go back that far, to fix the regime from 1861 to 1951, was going too far, and in that case it was not something that the court felt should be necessarily remedied.
That is not to say that from a policy perspective that this is not something that the government would not want to look at, but that goes to the point of the minister if we were to go beyond what has been considered a clear situation of discrimination. As you know, when you look at whether it constitutes discrimination and whether it's justifiable, you have to look at various criteria, including balancing the individual and the collective rights.
In the case of Ms. McIvor asking that we go all the way back from pre-1951, this is not something that has been found to be clear, known discrimination that has to be remedied. Again, from a legal perspective, I think what the ministry is saying when we talk about known discrimination, things that have been ruled favourably by the court, we will address that. Other issues where people feel it should be dealt with, those fall more within a policy choice that the government could make, but I think should make only after having done meaningful consultation.
Ms. Bennett: I think that's sort of what we put in our remarks. Phase two needs to be done in collaboration with Sharon McIvor and the others. We actually need to have them make their case so we can do it from a policy perspective, because the courts haven't ruled.
I think this is what others have felt, which has made me sleep a bit better, senator. The plaintiffs actually fought this and won in court and there are now 28,000 to 35,000 people who are entitled to rights. I think they deserve that now. Then we will deal with the others as quickly as we possibly can. Again, it is about a policy decision, not a court finding that we have to honour. I'd like to make the policy decisions that eliminated inequities, but we have to get on with the only ones we've been directed to do right now.
Senator Tannas: Thank you, minister, for being here. I just want to make it clear that this nomenclature of known inequities is new as of today. It's not something that we heard from your folks at all. We heard the elimination of sex- based discrimination and we heard no qualifiers about that, so we took that literally, that that was the goal.
As Senator Patterson said, the Senate committee, with relatively modest resources, was able to uncover a number of instances of people pointing at other sex-based inequities, and we were certainly able to uncover deep displeasure from a number of places that I would have thought would have been supportive.
We are troubled by this, and lots of us are troubled for you and what it means for you and the government, as you say, in your first kick at it. There's got to be a sheen o cynicism that's there. So I'm sorry for you.
I'm delighted that you talked about your department and acknowledged what happened. Something I mentioned to some of the officials was that if you goof up, say you're sorry, and I'm glad you did. I think that will mean something along the way.
If our little committee was able to quite quickly pull together and uncover displeasure and examples where things haven't been covered, including the Indigenous Bar Association, who testified that they were consulted at the last minute, are you absolutely satisfied that even in this case that consultation has happened to any satisfactory degree? We all know the imperative of the date.
Ms. Bennett: It's probably me that's put in the word "known.'' That's the way I think of things. The court told us to do this. There were other ones that were completely paralyzed. I'm a doctor, so it's a case that's very similar and I could use the same prescription. But if it's complicated by other things, if it's pediatric, I have to go out and find out if it's the right medicine.
In using the word "known,'' it was the way I was trying to say the ones that are so similar that we can get on with it now. With the more hybrid, complex cases, to my mind, as the minister responsible for the relationship, I don't think I can go at that unilaterally without going out and consulting.
I think having sat in opposition long enough on your sister committee in the house, I was railing about parliamentary committees thinking that they could do meaningful consultation that had to be done by the Crown.
We can't tackle, at this committee, what is being raised by some of the witnesses because we don't really have a mandate to do that from the people who would be affected by who we would toss into the bill in terms of other inequities or other differential treatments that may or may not qualify as true discrimination. We all know that differential treatment doesn't necessarily equate to discrimination, so somewhere there's a debate, and I'm very interested in having those conversations with people.
When we decided not to appeal the case, it was because we wanted to get on with it. We felt that there was true discrimination that the court had found. We were able to bring in a few others because they were so similar, and that's what I meant by "known.'' Maybe I should have used a different word, but I definitely didn't put in the word "all.''
We are trying to do the best we can with the ones that are known, and there may be other ones that are complicated by date of birth or adoption and all the others, such as unnamed parentage, but those are more complex than what the court told us we have to do or the registrar doesn't get to register people until we fix it.
Senator Patterson: With the greatest of respect, I took a quick look at the court judgment, and I do not believe that the judge in Descheneaux just asked the government to fix that issue.
If I can just quickly read a sentence from the judgment:
Parliament should not interpret this judgment as strictly as it did the BCCA's judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.
I do believe that our expectation and the title of the bill, which may not be correct now — elimination of sex-based inequities in registration — would suggest that we should be looking, in keeping with the expectation of the court, beyond the narrow issues that were identified in Descheneaux.
Ms. Bennett: Senator Patterson, you know more about this than I do, but I understand that in obiter means that this is a nudge, a gentle recommendation. It's not in the judgment itself. If they really wanted us to do that, they would have given us five years. What we're hoping to do in phase two is do it much tighter than that, because we're really committed to doing this, but if it's a year or two, or whatever our advisers — meaning the people affected — tell us they think is possible, we will come back with that done.
In the meantime, we felt that that nudge or that advice allowed us to tuck in some other people that were absolutely clean and clear-cut where there wouldn't be any debate.
That's how we interpreted this. Others may have interpreted it differently, but this was the cleanest way we felt we could deal with this and then deal with the complex ones with meaningful consultation with communities and the people affected.
Senator Meredith: Thank you, minister, for being here tonight. We really appreciate the time you've taken to come and satisfy our concerns with respect to this piece of legislation.
One thing I heard yesterday was with respect to the IBA having suggested or recommended an amendment. Given this late hour and the fact we're trying to move this bill forward, can you can elaborate on that? Then I have a have a follow-up as well.
Ms. Bennett: Sure. Given, as you say, the late night — I know you're spending the second hour deliberating — I would like to hand it over to our colleague from the Department of Justice to just explain the amendment.
As you know, the IBA felt that we accidentally created a new group, so this is going to deal with making sure that there are no unintended consequences as there had been with McIvor. That's why we're here today.
Martin Reiher, General Counsel, Department of Justice Canada: Thank you. The new paragraph6(1)(c.4) granted entitlement to the children of women affected by the siblings issue prior to 1985. We're addressing the siblings issue in this bill.
This amendment grants an entitlement to the children of women who were affected by the siblings issue. These children are the grandchildren of men who parented out of wedlock with non-Indian women. We have to compare this with the grandchildren of women who parented out of wedlock prior to 1985. These individuals may be entitled to registration under 6(2) and not 6(1).
The only parent entitled to registration is the child of a woman who parented out of wedlock. This is because under the pre-1985 regime, the child born out of wedlock to an Indian woman was entitled to registration but could be the subject of a protest within 12 months of the addition of their name to the register. If there was no protest, then the child remained on the registry, but if there was protest by the band or by a member or an interested person, and if the registrar was satisfied that the father was a non-Indian, the child was removed from the band list.
In 1985, that child was granted an entitlement under paragraph6(1)(c). The children of that person are entitled to registration under paragraph6(1)(f) if the other parent was an Indian, but only under 6(2) if the other parent was not entitled, with the result that the next generation of parenting is not entitled to registration.
There is indeed, as pointed out by the IBA, a distinction between the male and the female line in these circumstances. The amendment that could be proposed to address this would essentially provide an entitlement under 6(1) to the individuals who have one parent who was omitted or deleted from the Indian registry on or after September4, 1951, under subsection12(2) as it read prior to April17, 1985, or any other former provision to the same effect. Their other parent would not be entitled to registration, as the other provision stated, and these persons would have to have been born before April17, 1985, or could have been born after if their parents married before 1985.
This very complex language is to mirror the parallel situation that I've described. This is the amendment.
Ms. Bennett: We have this handy diagram that we prepared. Unfortunately, it's still only in English, but we will provide it for you, senator, as we table the amendment. It's the born-out-of-wedlock-to-Indian-women amendment.
Senator Meredith: Thank you. That's very helpful in terms of that qualifier with respect to ensuring that we address that particular issue so there are no further complications for this very complicated bill.
In that same vein, the Canadian Bar Association's David Taylor advised us regarding one of the other provisions in section8 with respect to compensation. Minister, I'd like you to talk to me about that with respect to retroactivity of individuals who are registered and their right to retroactive compensation. Is that something that your department is looking to do, or not? Is that sealed with respect to any kind of compensation that these individuals who were registered would have?
Ms. Bennett: I think this non-liability clause is probably best explained by the Justice Department too.
Senator Meredith: You're not passing the buck, are you? I just wanted to hear directly from you.
Ms. Bennett: I'm dealing with my MD status here.
Mr. Reiher: To answer the question, clause8 of the bill has the effect of preventing claims by individuals newly entitled to registration under BillS-3 for compensation for benefits that they were not entitled to in the past. That is the policy behind clause8.
Senator Meredith: Right, but we heard yesterday that there could be litigation related to that for those individuals who were registered. What's the government's action plan on that if there is litigation?
Mr. Reiher: There is currently litigation on a similar clause in BillC-3 and the government is defending this provision.
That kind of provision actually reflects a common law rule, and it was put in the bill for clarity. It also protects First Nations, as bands are mentioned in the clause. These clauses are relatively common in federal legislation when there is a change in legislation, and they are defendable legally.
The Chair: Before we proceed to Senator Enverga, there are two quick questions I'd like to ask. First, you brought up the subject that you're intending to table an amendment. When will the committee see the amendment? When do you intend to present it to us?
Ms. Bennett: The routine would be to table it during clause-by-clause. But because it so clearly reflects what the IBA suggested, if you wanted to have a look at it before that, I would be more than happy to share it for your deliberations this afternoon. Do we have it in French as well? It's available.
The Chair: So you will distribute it to the committee ahead of time? That would be much appreciated.
Ms. Bennett: I think that's a good idea.
The Chair: Thank you. My second question is with regard to Senator Patterson's intervention about the Descheneaux judgment, where they were talking about including cases beyond strictly what happened to Stéphane Descheneaux and Tammy Yantha. You said it was an in obiter statement, sort of nudging.
Also, in that decision, the judge says that it's giving Parliament a year and a half, but because of the election and other issues, you haven't had that year and a half. The judge was saying that he thought it could be done within a year and a half. I guess the question becomes: Why didn't you then ask for three to six months if you were going to expand beyond strictly the two rulings?
Ms. Bennett: I think because it was in obiter, again, it isn't actually in the body of the judgment. They gave us a year- and-a-half because of the election. Traditionally, they would have only given us a year.
Again, I think we did honour the judge's advice by including these other ones that are very similar in the bill and then having chosen, obviously, to deal with the more complex ones in phase two. I think we did honour the advice, the nudge, and took in way more than just the plaintiffs because we did believe that they too had rights that needed to be and should be exercised. Between the two, we couldn't do everything in the time allowed, but we could do more than was in the absolute judgment of the bill.
The Chair: Thank you.
Senator Enverga: Thank you, Madam Minister and officials. I understand we share the same goal; we would like to give justice and resolution to those affected by this ruling. During our hearings with other witnesses, all we heard was consultation, consultation, consultation. At the same time, they also mentioned that you do it once and you do it right. Basically those are the things we heard during our last few meetings.
People have expressed that they're tired of the piecemeal approach and tired of doing things little by little. They're actually willing to wait, as long as we do it right.
If we pass this and go to the second round, you mentioned that you're keeping your word that stage two will be launched in February2017. Do you have a hard date of when you will be finishing the phase two?
Ms. Bennett: Thank you for the question. We understand why people are cynical. They think this train is leaving and everybody should get on it. I understand why people quite often don't think that phase two will ever happen. I understand why people are fed up with piecemeal approaches to chipping away at this terrible piece of legislation called the Indian Act.
But there are many other ways that we are getting out from under the Indian Act, whether that's land management — there are just so many ways that we have to do things in a piecemeal way as we gradually move out to our goal of self-government. My job is to build institutions that are First Nations-, Inuit- and Metis-led and to stop delivering programs and to stop having a registrar who actually is determining things on behalf of First Nations people.
I understand the frustration, but I think getting it right and taking as long as it needs is not something we can do because we're not going to get an extension that allows us to get it right. If it lapses, then the registrar cannot register other people because those provisions have been struck.
This is urgent, and there are 35,000 people waiting. My understanding is that people who now have those rights — and they'll be enacted in this bill — are not really understanding as to why they should have to wait when they fought all this time, and they were in court for a very long time, to achieve this win in court that precipitated this bill.
Senator Enverga: I asked, though, if we passed this bill right now and you go to phase two, what is the hard deadline for phase two?
Ms. Bennett: That's a very good question. I think that will be negotiated. I think people are thinking a year, but once we consult with the people affected, whether it's Sharon McIvor or the kinds of people who know about the journey, if people think we can get it done in a year, we would try to get it done within the year. It also means First Nations themselves. It also means unnamed parenting and some of these other things.
This is a large number of people. This is huge. There are lots of First Nations that are very worried about having all these people added to their roster, so we actually need to consult and do this in a way that we can implement without wrinkles and without ending up back in court such that more rights are denied. If we don't get this right, we'll be back in court again. My job is to keep us out of court.
Senator Enverga: You mentioned a year after phase one? It would be done in a year?
Ms. Bennett: Yes.
Senator Enverga: Let's say we tell Aboriginal people, "In two years' time, we promise that we will do it right, and that will be the last time we will be talking about this.'' Is that possible? Can you promise that to our viewers?
Ms. Bennett: I can give you my word that I'll give it my best shot; that's what we're going to try to do. You never know when you engage in consultation as to what you turn up that is controversial or where there will be pushback in certain ways.
There are certain things, for instance the whole thing of enfranchisement. I would love to do them all at once, but it may be a little bit harder to achieve consensus on some than others. Enfranchisement seems pretty straightforward to me. The other ones may be more complicated and difficult to implement, but we are going to give it our best shot.
Senator Lovelace Nicholas: Welcome, honourable minister. I've been getting letters saying "we need an extension,'' and they're always saying that BillC-31 didn't go far enough and it was an ultimatum for us at the time, just us and our children. This bill now does not go far enough. Why don't we just get it right once and for all so somebody else doesn't have to come along in 20years and go to court again?
Ms. Bennett: I understand exactly. That's heartfelt in terms of the people who feel that way, but practically we don't actually have that leeway. I don't think we can get it right without properly consulting on this and trying to develop some consensus so that we avoid more litigation, and I don't think we can do that in three to six months, which would be the maximum extension that we could get, if we could get it at all, because sometimes the court won't grant the extension if they think we're going after things that were beyond the scope of the decision.
I understand exactly where that's coming from, but what I'm hoping, senator, is that with your help we can design a process that people feel included in that will begin in February to get rid of these other inequities. We will get right to work on a meaningful consultation on all these other inequities.
Senator Lovelace Nicholas: I just feel that you are the government, and I know for a fact that you could get it done if you wanted to so we don't have to deal with this again.
Ms. Bennett: I wish it was the case. We are the government, but in a time frame of three to six months, even in the work you've done in this committee and in the other place, in three to six months, for us to be able to have Royal Assent to a new bill, meaning back to committee and back to cabinet, this unfortunately takes time in terms of due process within the government and the parliamentary systems.
I think what we were trying to lay out, the three to six months, we would have to backdate from August3 to Parliament rising in June. We would have very little time for consultation. We would be drafting a new bill now, having not really done the consultations or the due diligence with the people affected. It unfortunately takes that kind of time to be able to move things through government. I wish we could do things more quickly.
Senator, we don't want to be doing this anymore. If First Nations were in charge of this themselves, they could do things a lot faster. They could fix mistakes or little wrinkles in a law or in a policy that they've written themselves. That's where we want to go. We don't think it should be this red light, green light, coming back and forth to our department. Three to six months, in my world, is just not very long.
Senator Lovelace Nicholas: I am sorry to say that it wasn't the Aboriginal people who created this problem in the first place. That's why I think it's mandatory to get this done once and for all. I thank you.
Ms. Bennett: Thank you for that. I think you're absolutely right. They didn't create it. But in order to fix it, and fix it once and for all, we've got to do this thoroughly. If we rush this through and haven't done the due diligence, we will end up back in court. Because without consensus on these things, there will be litigation. Our job is to go out and try to get consensus so that the things we're able to move forward in the next phase are things that have a real consensus and we don't have to deal with it ever again.
Senator Lovelace Nicholas: Thank you.
The Chair: I have to ask this question. You keep talking about consensus. Who are you consulting to get consensus? What about the descendants of the Indian women who were denied their status? Where do they fit in this consultation? Why shouldn't they be the prime people getting the consultation rather than Assembly of First Nations or CAP or whoever?
Ms. Bennett: I think that's a great question. That's why we need people like you, madam chair, Senator Lovelace Nicholas and Sharon McIvor. How do we make sure that the right people are consulted in phase two? I do not believe this can be decided in a parliamentary committee. We actually need to go out and talk to the people affected by this, if we're going to get it right.
Senator Moore: Thank you, Minister and other witnesses, for being here. We didn't go back beyond 1951; correct?
Ms. Bennett: No. There wasn't a registry then.
Senator Moore: We're saying that to go back beyond that is now a policy decision, a legal or a court decision. I'm concerned, as is Senator Lovelace Nicholas, that what is going to end up here is that the First Nations people will have to go to court again to get satisfaction.
Ms. Bennett: With due respect, Senator Moore, that's exactly what we're trying to avoid.
Senator Moore: What was the date of the McIvor decision, please?
Ms. Bennett: 2009.
Senator Moore: I don't agree that the comment in the judgment is obiter. That comment wouldn't have been made unless the judge of the honourable court knew this was very important, knew the past history and knew it was being approached in a piecemeal manner. I want to know what the department has done since 2009 to fix this. You knew that there was an issue. You knew that there were people left behind after McIvor. What has it done since then?
Ms. Bennett: There was an exploratory process, I understand, that was undertaken.
Senator Moore: You weren't the minister, so I don't expect you to answer for it, but somebody has to tell us what happened and what didn't happen.
Ms. Bennett: What happened was Descheneaux.
Senator Moore: Exactly.
Ms. Bennett: There's an exploratory process, but I'll let the people who were on this file long before me answer.
Candice St-Aubin, Executive Director, Resolution and Individual Affairs Sector, Indigenous and Northern Affairs Canada: Thank you for your question, Senator Moore. What I can speak to is what we have done.
Following the decision in 2009, you do recall in 2011 we brought forward the BillC-3 McIvor decision, the act to address that. Again, scoped quite tightly, you're very correct in that.
At the time, however, there was a decision taken that we would also provide support to First Nations and other indigenous groups directly for themselves to have their own consultations and discussions and for them to also discuss what those broader issues would be, because we did recognize at the time that the BillC-3 act was limited in scope.
From the exploratory process, there were over 100 reports that came in, nationally, women's groups, national indigenous groups as well as regional indigenous groups. That report produced the list of issues that we've raised today and you've heard from witnesses as well.
I should also say this was not a consultation. The federal government was not present at the time. We were just funders to enable groups to come together to decide who should be at those conversations at those tables. They were done through a myriad of formats, be it conferences, policy forums, legislative reviews, etcetera. They compiled a list of key issues that they felt impacted not only registration but really membership, citizenship and identity. So we would use that then to inform or give a sense of and pull back the information from that process and use that as a stepping stone with regard to stage two as well.
Senator Moore: BillC-3 was 2010, was it not?
Ms. St-Aubin: Yes. Apologies. I said 2011. It was 2010.
Senator Moore: We've had six years since then, and there's been no movement. I've heard, I think in evidence from other witnesses, that if we went back beyond 1951, there would be approximately another 300,000 new registrants. Have you looked at that and costed it? The proposal by Todd Russell and indeed by Dr. Pamela Palmater the other night, did you look at those? If we're talking about cleaning this up, you've had some very good ideas put before you. So did you look at those? If not, why not? Was it money, because of the non-insured health benefits that would accrue, which I don't think were that much compared to the budget of your department? Where are we with these things?
Ms. Bennett: Maybe Joëlle wants to explain what happened. There were amendments. They were defeated. It was a different government. Again, with due respect, senator, we want to go forward and get these 35,000 people their rights.
Senator Moore: I'm looking at the 300,000.
Ms. Montminy: This is the point I was making earlier. The amendment that was brought forward during the Bill C- 3 debate was the desire on the part of Ms. McIvor to go back prior to 1951 all the way to 1869. This was taken under deliberation at the time, as an amendment. Then it was ruled out of scope of the bill at the time because the bill was to address the McIvor decision.
The McIvor decision, as I explained earlier, had rejected that part. It found some discrimination vis-à-vis the situation of Ms. McIvor. Also the court said you do not have to go back prior to 1951. Again, I'd be happy to read from this part of the judgment if it helps clarify. The court said that:
"With respect to the remedy of . . .''
Senator Moore: This is in McIvor?
Ms. Montminy: This is the B.C. Court of Appeal in the McIvor decision. With respect to this issue, to go back all the way prior to 1951, the Court of Appeal rejected that remedy and stated:
...It is not apparent to me that a person who is, for example, the fifth generation descendant of a woman who lost status in the 1870s can make a claim under s. 15 of the Charter. First, the discrimination giving rise to the claim long pre-dates the Charter. Second, such a remote descendant of a person who suffered discrimination would not appear to have standing to raise a claim.
It is further noted that to the extent that the present descendant were to argue that she could be the victim of discrimination, the claim would not be based on sex but rather on matrilineal descent, which may not be analogous grounds for discrimination.
Two things: The court said if you go that far back, obviously you're going to a point when there was no Charter and trying to rewrite history to apply the Charter at the time is not necessary in this case. Also, it says if we were to do this, this may not be the kind of ground of discrimination that they would find to be based on sex strictly either. So it's the date of birth. We were explaining earlier that with some of these remedies, the pre-1951 cut-off is not just a sex-based issue. We're talking about rules that were sex-based, but in order to find remedies all the way back, it brings into line other issues, such as date of birth and family status and so on.
Senator Moore: Do you rely on that decision to deny people today?
Ms. Bennett: I think what Joëlle is saying is that there's this legal obligation piece and then there's a policy piece of doing what's right and what's fair. That's what we did in Anderson. In Anderson we decided to settle the case. Even though Newfoundland wasn't in Canada then, we decided that the right thing to do was to settle the case, even though technically Canada was not responsible in a certain way.
We want to do the right thing. We want to get out of court. But some of these things that are policy decisions, not legal obligations, then have to be dealt with differently, and policy decisions need proper consultation as opposed to us just doing what the court told us we had to.
Senator Moore: I understand that, minister, but it seems to me that often coming out of policies are causes for legal action and these people have to go back to court again. I'm so embarrassed that this continues. I'm with Senator Lovelace Nicholas; I don't know why this isn't cleaned up now. Thank you.
Ms. Bennett: Senator, I just want to say that these are not things I can do unilaterally and they're not things a parliamentary committee can do unilaterally. These are things that require consultation with all of the people affected as the people that the chair identified. We have to talk to these people and find out what is fairness to them. How would you implement it? How would you enforce it? How would you determine whether somebody has rights or doesn't have rights or is just claiming rights? We want to do the right thing in the policy, but we want to get it right, and that means having to go out and consult the people affected.
Senator Moore: Thank you.
Senator Raine: Some of the questions I was going to ask have already been asked, but it leaves me with a few items. One is about the categories of 6(1) and 6(2) in terms of status. Will what we're doing with this amendment change that? Why would we have two different statuses in the registry system when, from what I can see, they were sort of artificially imposed? I don't think the bill that we have today is really addressing those kinds of changes. We know the bill doesn't fix the problem and it's really more piecemeal-type solutions. I'm not very comfortable with it at all.
Ms. Bennett: You have many, many people agreeing that if we get rid of the second-generation cut-off, it would be a great thing. It just doesn't happen to be sex-based. So it's again one of the things that we would love to do, but we can't do it based on this court order. We have to go out and consult and get all of these rules in the registry sorted out.
Senator Raine: I don't think you can have a second generation without sex.
Ms. Bennett: I have many patients who did, actually.
Senator Raine: I'm getting frustrated because I keep hearing why we can't do things, and I would like to hear why we can do things. We know there's discrimination happening. It's been happening for many, many years, going right back to the beginning, and it's been discrimination against female Aboriginal or indigenous women. We have a chance now to fix this.
Ms. Bennett: I don't think you do, actually. I think this is not sex-based discrimination, but there are many, many inequities and discriminations that still exist, and we have to get to work right away in February to deal with all the others. This is a balance between individual and collective rights. This is not something we can unilaterally do in the complexities. I'd love to deal with enfranchisement. I'd love to deal with some of these ones that seem pretty straightforward to me, as I said, but we have an obligation to consult with the people affected as well as the communities and the individuals.
Senator Raine: Will you commit to consulting equally with the people who are disenfranchised?
Ms. Bennett: Absolutely. Those voices are the most important. As you know, the people who have rights aren't tending to want to give them up or to give them to others and spread it thinner. Those are exactly the people we're going to have to consult.
Senator Raine: It is interesting, because when you have a lawyer who has been in this field for a long time saying, "I can't even say what section my kids will be registered under, and I'm a lawyer,'' there's something very, very wrong with our system. I feel very sad that I don't think this legislation is really going to help.
Ms. Bennett: It may not help Pam, in that she fought very hard to get her rights back, and I would commend to you her book, but I think that we don't want us to be making those decisions anymore. Pam and all of the people like Pam have to come together and figure out what the rules should be. That's when we know we will have won, when we're not in the business anymore of making those decisions.
Senator Raine: One final point —
The Chair: Could we move on to Senator Sinclair? We're running kind of late.
Senator Sinclair: I could do this all night. I've spent many years doing this all night, talking about the Indian Act.
I want to observe, minister, that there is a certain level of distaste here among the committee members, partly because, to use a metaphor, it's like we're being invited to join you on a sinking ship, and watching you try to steer it through the waters is really difficult for us on the committee. I'm concerned that if this committee and the Senate don't pass the bill, we're going to be left with a lot of people dangling in the air come next February unless your department or your government takes the steps necessary to get the extension that would be needed in order to prevent that from happening.
The question that occurred to me as I was listening to some of the submissions that were being made is that I had a bit of a difficult time following Mr. Reiher's coverage of the amendment, only because the actual specific document has to be before us in order for me to appreciate whether it does cover the major concern that I had, which is the differential treatment of illegitimate children since 1951; and if the differential treatment, based upon male versus female parent from 1951, is dealt with adequately by that amendment, it addresses a major concern that I had with regard to the bill.
There is another issue that I wanted to perhaps make an observation or maybe put in the form of a question. You've enunciated your word, given your word to this committee, that you will begin the consultation process in phase two by February of next year and that you will complete it within a specified period of time, in response to Senator Enverga's question about the hard deadline.
I think the real question that raises for me is whether you and the officials of your department would be prepared to report back to this committee on a regular basis about the progress that you're making on that consultation — not as an exchange of our promise to pass the bill but simply because if the bill does pass, it will do so knowing that there is this consultation process that will be undertaken that Sharon McIvor — and others like her — has a great deal of concern about, the issue of negotiating away rights or negotiating discriminatory treatment.
On that point, I have to tell you that she was very persuasive in her presentation. You cannot consult away the rights of women or their children or their grandchildren. The consultation process, I think, to the extent that it might allow for that, concerns me greatly, and I think it concerns many members of the committee. We'll need to have some assurance that that is not part of the consideration.
With the inclusion of the illegitimate children issue and the manner in which it's now being addressed, if I understand your proposed amendment properly, that should go a long way to appeasing that concern. The bill already amends the legislation by allowing those who were excluded prior to 1951 to be included now, and that would also extend to their children, if I understand the way the legislation is intended to work, although some of those may fall under 6(2) and not 6(1).
The bill is dealing with a messy situation, so I'm concerned about whether or not we have adequate information for the members of the committee to be able to address it on a clause-by-clause basis. I just express that concern. We may need, in fact, to have some of you come back and explain things further in order to understand the consultation process.
To go back to my question, are you able or willing to undertake to come back?
Ms. Bennett: Absolutely. At the will of the committee, whatever you'd like me to do. I'd be happy to come back in February with a work plan, maybe even with a few options in terms of what we're hearing or what we think we'd like to do, with the hard time frame on it, and that we would need to begin engaging now for us to be able to make sure that we could come back with a work plan and with the kinds of things that we're thinking about in terms of how we would talk to the people affected, but also the communities, and to be able to find this balance of individual and collective rights.
Madam Chair, do you know, if this is only in English, whether we can hand it out? Can we put it in a pile somewhere and people can pick it up?
The Chair: If the committee agrees to passing it out, we can do that. Does the committee agree to it?
Hon. Senators: Agreed.
The Chair: Yes, it can be distributed.
Senator Sinclair: When will the French be available? Will you distribute the French version soon?
Ms. St-Aubin: Yes. It's just not with us now.
The Chair: Senator Sinclair, did you have any other questions?
Senator Sinclair: No. I 'm tired.
The Chair: I'm going to ask one quick question before we move on to Senator Dupuis.
Minister, you have on a number of occasions said we have to find the right balance between individual and collective rights. What do you mean by that?
Ms. Bennett: I'm learning, senator, that whether it's the plaintiff or whether it's an impact on a community, there is a balance of collectivity that can be impacted by the decisions we take, so it's a matter of us listening and then finding out that maybe there isn't a difference on something that's so clear in terms of rights. I can't imagine on enfranchisement that there is any question, but there sometimes might be. If, again, you didn't have a process to make sure that people asserting rights actually had those rights, that would have a negative effect on a community, if all of a sudden there was a big open door and there wasn't some integrity into who was came through it, based on a new view. I think we're seeing that with Metis rights; we're seeing it with lots of other rights. The fact that they're asserted doesn't mean they're real. I think that's what I mean.
The Chair: The reason I ask the question is that it concerns me, and I know it concerns other senators, and I'm looking in particular at Senator Lovelace Nicholas, that the Indian women who were denied status through marriage and their descendants have rights. But let's say when you want membership or when you want to be involved with the First Nation communities, those First Nation communities may say, "Sorry, we don't respect your rights.'' But those rights were denied from 1869, so in my view, it's not a balance. Those rights should be restored, and that's where I get concerned. If the consultation then is putting up the rights of those women and their descendants, is that the right way to go? That's my concern.
Ms. Bennett: I think it's the right to self-determination and also the difference, as you know, between status versus membership. People with status, as we have heard, have the right to post-secondary education. That would be something that we need to honour, but in self-determining, self-governing nations, there have been problems, and we're well aware of that.
[Translation]
Senator Dupuis: Thank you, Madam Minister. I think your last answer draws our attention to the issue that is truly at the heart of BillS-3, namely that women's rights are considered individual rights, whereas collective rights are considered as those of the First Nations or band councils. I am not sure that is the right perspective.
My question is the following. From the time that the legislator, in 1982, gave itself the constitutional obligation to uphold rights, whether they are the rights of men or of women who are Aboriginal, this is a general obligation, a constitutional obligation. It requires the government, under the Charter, to review its legislation and eliminate any inherent discrimination.
The exercise that was carried out in 1985, in relation to BillC-31, showed that pre-1982 discrimination had been transferred to another generation. So we did not complete the exercise we were supposed to do in 1982, namely, a mandatory review of laws to ensure they comply with the Constitution. This was well documented by the Royal Commission on Aboriginal Peoples, in 1996. Pre-1985 discrimination was transferred to the next generations.
What we see is that the McIvor case, in 2010, relating to BillC-3, was in response to a judgment. I am asking you then whether this is not exactly the opportunity we need in 2016, since the British Columbia Court of Appeal stated, "well, before 1951, we don't deal with that, legally speaking''. This is what the Supreme Court had said, in 1964, in Lavell.
Does this not point to the legislator's obligation to examine the issue of discrimination in the Indian Act and call upon us to eliminate it? We know that, according to McIvor, it is too narrow and does not cover everything. Is it possible to skip over BillS-3 and go straight to the second stage of your consultation?
Ms. Bennett: That is exactly the purpose of the second stage, to remedy discrimination before the court that predates the Charter, as in McIvor. This is a policy issue for our government. It is not like a court decision, as in Descheneaux. So it is very important to hold consultations with the people concerned and to follow through on our promise.
[English]
Senator Dupuis: I was wondering if the very title of the bill is not misleading in the sense that if we're saying that it's elimination of sex-based inequities in registration —
[Translation]
The French text does not match; that is not what it says.
[English]
Even in English, one would think that BillS-3 would deal with all sex-based inequities, which is not the case here, I understand.
Ms. Bennett: During your clause-by-clause, you have the right to change the title of the bill.
[Translation]
We are talking about numerous inequities.
[English]
You're absolutely right. I said that we didn't say "toutes les iniquités.''
[Translation]
Matters that are too complex are too difficult for this issue and this bill.
[English]
But I think you've raised a very good point.
The Chair: We probably have 10 or 15 minutes for a second round, with short questions, please.
Senator Patterson: I think one of the important issues we've been discussing tonight is about the scope of the bill. Minister, you've stated several times that, with regard to known sex discrimination, you need to do as the court directs.
I just looked at the decision again, and if I may, another paragraph, 239. This is from Descheneaux, Madam Justice Masse:
When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.
That's from the court.
In McIvor, in granting an extension in 2010, the court noted:
We have been provided with some material that indicates that the bill's passage through the House of Commons has been slowed down because some members of the House wish to broaden the bill to deal with issues beyond those specifically raised by this Court's decision of April6, 2009.
If I can just get to my question: We haven't discussed it tonight, but this time started in June. The court appeal was abandoned in February by the government. You started engagement — that's what your officials call it, "engagement,'' not "consultation'' — only in June. It was a bare beginning at engagement.
I'm not referring to the broader consultation in phase two, but I have to say that if we're going to do a better job of making sure we've caught all of the gender implications — and you found a flaw from the IBA, who barely looked at the bill; they told us they had very little time to look at the bill — wouldn't we want to consider that, given the bare start at engagement, given the new amendment which will now add to the scope of the bill, and given the possibility of other related, wouldn't we be better off taking just a little bit more time to finish the job with Descheneaux before we proceed to the broader issue, which may well take more time than we would hope?
Ms. Bennett: First, senator, with respect to the part of the judgment that you read, I don't believe that we've done the bare minimum. We could have done the bare minimum of exactly what the court told us to do. We decided to expand it and include the ones that were absolutely clear-cut and within what we thought was the intent of the judgment.
In order to do more in terms of the more complex ones, we believe we have to get out and consult with the people affected by the bill — those women who lost their rights, the communities. We have to do a better job on the ones that are not as straightforward as the ones that we've been able to include in this bill.
As I say, we do not believe that expansion to include all other discriminations that may or may not have some obviously gender implications but are complicated by date of birth and other things can be done in three to six months.
Just in terms of the delay that you talked about, from the time we decided to drop the appeal, even that process within government in terms of doing the kind of research it takes, you have to draft a memorandum to cabinet. I had to go to cabinet to get permission to go this way and persuade my cabinet colleagues that we would include a few more than the court told us we absolutely had to, and that's why there are these 35,000 people now waiting to be able to exercise their rights.
That's why we want to then get on and do phase two properly. Any other delay gets in the way of us doing phase two properly. If we could just get this done, we can get on and do all these other ones that the committee is rightfully very worried about, as am I.
The Chair: One question for each senator, please.
Senator Lankin: Having only one question is hard, madam chair. It's very difficult. Let me see if I can put them all together.
I understand that there is a legal duty to consult and accommodate. It's not just your desire to consult; it's a legal duty to consult. I am comfortable with what you're proposing and appreciate the assurances.
I think one of the things we have to care about is the issue of Charter compliance. It's been raised. For me, what's before us is not the Charter compliance of the Indian Act; it's the Charter compliance of this bill that's before us. I'd appreciate your comment on that. What I'm looking for is assurance, under the obligation with the Charter of Rights and the burden on government to make its legislation compliant, that in phase two, part of what is going to be central to your discussions will be that whatever comes out at the end of this is a new regime or a devolved regime, but it will absolutely be Charter-compliant and that that will be a focus of part of the conversations you will be having.
Ms. Bennett: You have that assurance. Again, I would be happy to answer that question and lots of others as we come back to your committee with the work plan, such as: What are the principles of the engagement? What are the questions we should be asking? And how does that guide those conversations? Again, you don't go out and sort of blue sky. We're going to have to know what questions we're asking and the groups, as the chair pointed out, that really must be consulted. To do that, what are we going to do with whom, when and for how long? And we'll come back with those principles.
Senator Lankin: Great. Thank you.
Senator Sinclair: One question I have flows a bit from the question that Senator Lankin has just raised, and I had intended to ask that it be considered going forward, but maybe legal counsel you brought with you might have a response.
I understand well the common law rule that an amendment to legislation does not give rise to a claim for compensation for the previous legislation or any wrong created by the previous legislation, and I understand as well that that's often put into the amending legislation to make it clearer. However, I draw a distinction between a wrong that has been created or a compensatory claim based upon a loss under previous legislation to a right for a constitutional remedy under our Constitution, which now the court has ruled has occurred.
In other words, I'm wondering how is it that the government feels that it can, in legislation, prevent an individual from seeking a constitutional right to compensation, under either section24 of the Charter or any other provision, by federal legislation. Have you given this some thought, counsel?
Mr. Reiher: Yes. Actually, the goal of this clause is definitely not to prevent any Charter remedy but just to prevent claims for damages, such as benefits associated with the status.
An example might be per capita distributions that were made in the past by bands. Would newly entitled members be able to claim these amounts of money for the past 10, 20 or 30 years? It is the same for benefits provided by the government. The intent of this clause is to say no, you have an entitlement that starts today and the entitlements are for the future, entitlement to benefits, program benefits in particular.
Senator Sinclair: Can I just follow up on a point?
The Chair: Yes. Please.
Senator Sinclair: I think it's a matter of interest to the committee members, though, to note that the court ruling in Descheneaux was very clear that the provisions of the act were incompatible with the Charter from the very moment that the Charter was enacted by this country. Therefore, anything that occurred prior to that was probably, by virtue of parliamentary supremacy, legitimate or legal.
I understand well the point, but again, I just wonder, if an individual were to bring an application for compensation for breach of a constitutional right since 1982, do you feel this provision in clause8 of the proposed bill would actually protect the government and give them immunity from such a constitutional remedy?
Mr. Reiher: Again, the clause is not intended to protect against constitutional remedies. However, I think it is well established in law that when decisions have been made under legislation that is later found to be unconstitutional, decisions made under that legislation later found unconstitutional remain valid, including, for example, decisions on benefits. Therefore, it is not possible for individuals to get these benefits back. That is not the constitutional right.
Senator Sinclair: That's why I love being a lawyer; you and I can continue to argue for a long time. In any event, thank you for your response.
Ms. Bennett: My understanding was that it also protects the band, the First Nations community, in that there will be a lot of First Nation communities who could also be implicated in that, and the kinds of dollars that would be retroactive are not practical in terms of being able to just say, "Okay, the music starts now and this is going forward; now you have rights.''
Senator Sinclair: Let me respond to you by saying that because it's federal legislation, the breach of the right is a federal law and therefore enacted by the federal government, not by the band. The band simply enforced the federal law, so there's a distinction there between the two. But as I said, lawyers will debate this for a long time, I'm sure.
The Chair: Thank you. We have come to the end of our time. I'd like to thank all honourable senators for their questions and comments this evening, and in particular our Madam Minister for appearing and answering all of our questions, as well as her officials from the department.
I'm going to detain you for a couple of minutes longer. It's been a long but very interesting evening. We've dealt with a very serious topic. Within the Aboriginal culture, we always have to inject a little bit of humour so everyone can go home and feel good. I'll tell you my story with BillC-31.
I applied under BillC-31 in 1985. I think I applied in August, and I got my registration in October. It was a very short period of time. In between the date of the bill, when the bill was enacted, and before I got my registration, I bought a new car. Now, in Saskatchewan at that time, if you were registered as a status Indian, you didn't have to pay provincial sales tax. This is related to the liability bit. So I thought, "I don't care what anybody says; I am entitled to that deduction,'' even though I wasn't registered.
So I wrote a letter to the appropriate provincial minister and said, "We have this federal bill. I wasn't registered until October. I bought the car in August. I want my $785 rebate, please, for the PST that I paid.'' And he wrote me back and said, "We will consider it at cabinet.'' Within weeks, they wrote me back and said, "Yes, we are sending you a cheque for $785.'' So that's my light-hearted story with regard to liability. Anything is possible, ladies and gentlemen.
Once again, that is the end of the meeting. The meeting is adjourned. Thank you, all.
(The committee adjourned.)