Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 22 - Evidence - May 16, 2017 (afternoon meeting)
OTTAWA, Tuesday, May 16, 2017
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 3:34 p.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good afternoon. 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 via the Web. I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin people.
My name is Lillian Dyck, from Saskatchewan. I have the privilege of chairing the Standing Senate Committee on Aboriginal Peoples. I would now invite my fellow senators to introduce themselves.
Senator Lankin: Senator Frances Lankin from Ontario.
Senator Lovelace Nicholas: Senator Lovelace from New Brunswick.
Senator Marwah: Senator Sabi Marwah from Ontario.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
The Chair: This afternoon we welcome Honourable Carolyn Bennett Minister of Indigenous and Northern Affairs and her officials to speak to us on Bill S-3, which as you know, we have been considering since last November 2016.
Joining us today is the Minister, and from the department we have Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs, Indigenous and Northern Affairs Canada, as well as his predecessor Joëlle Montminy, Former Assistant Deputy Minister, Resolution and Individual Affairs, Indigenous and Northern Affairs Canada. They are accompanied by Candice St-Aubin, Executive Director, Resolution and Individual Affairs Sector, Indigenous and Northern Affairs Canada and Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Indigenous and Northern Affairs Canada.
Welcome again to the officials, and we will now turn the table over to the minister to begin her presentation. After that, we will have questions from the honourable senators.
Hon. Carolyn Bennett, P.C., M.P., Minister of Indigenous and Northern Affairs: Thank you for convening this special meeting. I too want to acknowledge that we are on the traditional unceded territory of the Algonquin people. It's an honour to be here with you today.
Thank you for introducing our team. They are an impressive lot. Just for clarification, I think that Natalie is technically the registrar, and so that's her role. So as we consider some of the amendments, and the role of the registrar, these are the legal beagles as we go forward, and we thank you again for your assistance in this reconsideration of the bill.
[Translation]
As you know, Bill S-3 is the first stage of the government's two-staged response to the Descheneaux decision and to broader reform of Indian registration and band membership.
[English]
I want to thank the committee for your invaluable work, including this special meeting, and your understanding of the tight court mandated timelines that we're under, balancing the needed time to engage impacted people. With that, the parliamentary process has allowed for only two truncated three-month engagement periods, even with the extension that was granted by the court.
Given this context, I think it's important to clarify what the government means by addressing "known sex-based inequities'' in Bill S-3.
First, I need to be very clear: Charter compliance is not negotiable. Bill S-3, as amended, will remedy known sex- based inequities relating to the registration to the Indian Act, which falls short of Charter compliance. This is not restricted to situations where a court has already ruled, but extends also to situations where the courts have yet to rule, and where we believe a sex-based Charter breach would be found.
We took this step by including the omitted minors' amendment in the original bill, and through the work of the Indigenous Bar Association, or the IBA, have identified other amendments to deal with sex-based issues in registration yet to be ruled on by the courts.
In circumstances where the courts have ruled policies to be Charter compliant, or where situations are more complex than purely alleged sex-based inequities, the government has excluded them from Bill S-3 in favour of the collaborative stage 2 process for broader reform.
The additional time afforded by the court extension has not only provided us with the opportunity to expand and enhance the quality of our engagement, but also to identify several ways to further expand and improve upon the original bill.
[Translation]
The department has already outlined the details of those expanded engagements. In the interest of allowing adequate time for questions, I won't outline those engagements in my remarks.
[English]
I am happy to confirm that these discussions, the work of NWAC and the IBA, along with the decision of the Ontario Court of Appeal in the Gehl case during this period, have provided the government with opportunities to propose a number of important improvements to the bill.
As you are aware, we are proactively addressing further groups identified by the IBA which would be discriminated against based on sex once Bill S-3 is passed.
We are also proposing an amendment to the bill regarding the issue of unstated paternity, which will enshrine the additional procedural protections contemplated in the Gehl decision into legislation.
The government will also propose a series of amendments to report back to Parliament on a number of occasions and in a number of ways to update you and all Canadians on our progress toward broader reform.
While we believe these amendments will greatly improve Bill S-3, I would like to speak directly to why the government has decided not to address the issue of the 1951 cut-off in this bill.
Many have argued eloquently that despite the fact this bill has only had two truncated three-month engagements and a compressed parliamentary study, the government should still remove the 1951 cut-off in Bill S-3. Some have gone further, suggesting everyone impacted by a myriad of problematic registration and membership policies prior to 1985 should be registered under 6(1)(a). While the simplicity of this approach may be appealing, I would ask you to consider this position very cautiously.
[Translation]
This government campaigned on ensuring a new relationship between Canada and Indigenous peoples.
[English]
A commitment that decisions impacting their rights and their communities would be done in partnership and with the benefit of meaningful consultation.
The B.C. Court of Appeal found, in Ms. McIvor's case, that it's not necessary to reach back prior to 1951 in Indian registration to be Charter compliant and rejected the precise approach she argues should be included in this bill. The Supreme Court of Canada then refused leave to appeal.
This is not to say a different court may rule differently in the future or that this is not a situation that should be addressed. However, given the current state of the law, removing the 1951 cut-off is not a matter of Charter compliance, and it is also important to note these sex-based issues related to the 1951 cut-off are intertwined with a number of other forms of alleged discrimination, including date of birth and marital status.
Addressing the 1951 cut-off is a policy decision that a government must not take unilaterally.
[Translation]
We currently don't even have reliable demographic information to understand the potential impact of such a decision.
[English]
Preliminary demographic information, which was filed during the Descheneaux litigation and shared with this committee, shows that implementing Ms. McIvor's proposal could extend status to hundreds of thousands, or even millions, of new people and radically alter the composition of communities.
However, that preliminary work, based on INAC registry and census data, contains huge ranges of potential impacts and is not sufficient yet to base decisions upon. We need much more detailed information and have already started to undertake this work. Dealing with the 1951 cut-off requires meaningful consultations with First Nations, both communities and others affected people, with the benefit of an accurate understanding of the practical and demographic implications.
The government believes an amendment to remove the 1951 cut-off in this bill, or any such similar amendment, absent adequate consultation and without knowing the practical implications beforehand would be irresponsible, and we will not be able to accept such an amendment.
I also acknowledge the understandable skepticism of First Nations and parliamentarians about whether stage two will proceed and whether it will actually lead to meaningful reform of membership and registration under the Indian Act. I want to make clear to this committee, and to the witnesses that testified before you, that I am personally committed to co-designing a process with First Nations, including communities, impacted individuals, organizations and experts, to deliver substantive reforms, including potential legislative changes.
I also want to assure you that I have spent decades working on the issue of meaningful consultation and ensuring it incorporates voices beyond the usual suspects and that participants are properly resourced to engage meaningfully. This will be a process where the voices of the full range of impacted people will be represented at the table and will incorporate a human-rights lens.
In stage 2, Charter compliance will be the floor, not the ceiling.
You have all heard the consistent criticism of the piecemeal approach taken by successive governments. The collaborative stage 2 process will end this misguided approach and address Indian registration and band membership reform in a comprehensive way.
While there may be areas of needed reform where no consensus is achieved, that will not be a prerequisite for action. However, if the government is to act absent consensus, it only increases the necessity for it to be based on a foundation of meaningful consultation and credible evidence about the potential impacts of such a decision.
I also want to highlight the consequences of not passing a bill before the revised court deadline of July 3, and ensure that we do not lose sight of the individuals directly impacted by the current bill.
About 90 per cent of the registered Indian population is registered under one of the provisions struck down by the court in Descheneaux.
As you know, if we do not pass a Bill S-3 by July 3, these sections will be inoperative in Quebec, and the practical implication for the registrar is that she would not be in a position to register people under those provisions in the rest of the country. I also urge you to remember that up to 35,000 people we know are currently being discriminated against and not to delay justice for these individuals any longer.
As you have heard from National Chief Bellegarde, from NWAC, the Indigenous Bar Association and others, it is time to pass this bill and to move forward with broader reform through stage 2.
I am absolutely committed to addressing the myriad of issues surrounding registration and membership. However, even with the best of intentions, we must not repeat the misguided approach of the past by proceeding without all of the impacted voices at the table or without the necessary evidence or we risk, yet again, creating unintended consequences and actually causing further harm.
Thank you for your consideration. Chi-miigwech.
Senator Patterson: Thank you for being here again, minister. I want to say that I do know what a difficult job you have. I do admire the energy that you have put into this job and beforehand as critic. Your commitment to Aboriginal peoples and their issues is not in dispute.
However, I must say that last time we considered Bill S-3 back in November and December of 2016, the stakeholders told us, as you know, that they were disappointed with the lack of time to give this due consideration. We asked you and your officials to consider seeking an extension. I was pleased that you did so and that one was granted on January 20, 2017, by the court.
That gave us about four months to get to where we are now. Yet just today, for example, we heard from NWAC and other key organizations like them, but NWAC, in particular, was only given the opportunity to engage on March 20, about a month to engage with all their membership across Canada and report back. It was a Herculean task. They were adamant that this was not meaningful engagement.
I am well aware and impressed with your government's commitment to rebuilding a nation-to-nation relationship with First Nations and your position on fully embracing the UN declaration. How do you respond to the testimony we've heard from virtually every witness that what has happened to date has not been meaningful consultation?
Ms. Bennett: I agree, but we have had these court-mandated deadlines, and we had said in the fall that the maximum extension we were getting was not going to be sufficient for us to be able to do this full piece of work that's required. You sent the letter to us and asked to get an extension, and we did exactly that. I think that all the parties knew that they were going to be involved in this next chapter, and I think that NWAC was asked in January to begin that work. It is the reason why for us to design, with NWAC and the other organizations, a really comprehensive approach to phase 2, so never again do we end up with these unintended consequences of making a change that actually disenfranchises or is unfair to other populations.
Today is about us building the trust, that we are serious about doing phase 2 and doing it properly, such that we don't have to come back here again on this bill. We hope that we will be able to get rid of all of the discrimination in the Indian Act and be able to work toward self-determination and membership in all of the things that mean that First Nations would be able to have control over their status and their membership.
Senator Patterson: Thank you. Respectfully, Madam Minister, NWAC told us just this morning that they were only asked on March 6 to become engaged and then it took two weeks to arrange for the necessary financial arrangements for them to start their work on March 20.
I would like to turn to another matter that was discussed this morning in our committee, and also by other witnesses who appeared recently. You made some reference to it in your remarks, I believe, indirectly, and that is the proposed amendment that was put to then Bill C-3 via then Aboriginal Affairs critic MP Todd Russell, and he proposed to register everyone under 6(1)(a) with an amendment. I guess we've come to call it "6(1)(a) all the way.'' Maybe that's a simplistic label.
Now, I understand that option is not considered possible and I would like to ask you further, why not? I have got to tell you, we've heard some very passionate and compelling testimony from those who are affected by what they call these piecemeal approaches to addressing sex-based discrimination in registration and they were really eloquent: Pam Palmater, Sharon McIvor, Shelagh Day, LEAF, the Indigenous Bar Association and others.
They are concerned that according to this amendment that has been recommended by the government in Bill S-3, the department has allocated 18 months to consult with First Nations in phase two and tackle many of the issues we have raised here thus far. By July 3, the imposed court deadline, the latest, it will have taken us, by my math, 23 months to get to this point — almost two years — on what the department might call the low-hanging fruit of all this.
What happens if it takes longer than 18 months? What if it takes two years or five years? I think I'm speaking for many of these witnesses. How long can we knowingly allow broader discrimination to continue? Shouldn't we try to fix the problem in this bill now, and actually eliminate sex-based discrimination once and for all?
Ms. Bennett: Senator, it's an excellent point. The issue for me is if things haven't been properly considered we'll be back in the same position we were with Bill C-3, which ended up with the Descheneaux case in the first place. You have to consider everything. It means even with 6(1)(a) all the way, that actually hasn't been considered by this committee or other groups have not had a chance to comment on what that might be. What I'm hearing is that it could have a very serious impact, implications at the moment on voting and on a number of these rules we have in place, could make quite a difference in the kind of rules around voter turnout. In order to make a decision on a school system, we are already having issues in that somebody who doesn't vote is viewed as a no, not just that they don't happen to live in the community and whatever.
We need to make sure that as we implement this that we have considered all of the impacts, and we want to do what is fair. We are really prepared to make the policy changes that are required, whether there is a total consensus or not. We want to do what's right, but we're going to have to get out and hear from everybody so we don't end up with these unintended consequences where we fix one thing and that accidentally causes another problem.
I don't think we have had enough deliberation on 6(1)(a) all the way, and we certainly don't have any demographic information on this at all. The estimates are sometimes a million people apart.
Senator Patterson: Thank you, minister. Given this, I'm concerned about the title of the bill. It's only one clause: An Act to amend the Indian Act (elimination of sex-based inequities in registration).
You have said in your remarks today that you're talking about known sex-based inequities. There are more. There are calls to do more and have broader amendments. If we're not going to be able to do that, would you agree that we should at least correct the title of the bill and not call it elimination of sex-based inequities, for sure, but perhaps call it "partial elimination of sex-based inequities?''
I'm not trying to be flippant, but it seems to me it's important that the bill does what it says it's going to do in the title.
Ms. Bennett: I would entertain what would make this committee comfortable. I was reminded yesterday or the day before that the title of Bill C-3 was sort of a response to the McIvor case, I think, and referred to gender equity and Indian registration. But I think the point of it was that we're going to do what the court told us to and no more. Here I think we're doing what the court told us to and a little more, although we know we're not doing the whole thing in terms of discrimination. If you have an idea for a change in the title that would make you more comfortable to be able to get this thing done, we would be happy to entertain that.
Senator Patterson: Thank you.
Senator Lankin: Thank you, Minister, for attending here with us. I appreciate the remarks that you have made.
In this process, your department has embraced further suggestions coming forward and worked with groups like the IBA. That's produced more amendments and more amendments. We just received copies of more correspondence from David Schulze with more suggested amendments and more suggested amendments at committee this morning.
I am actually at the point where I say, that's the reason why you proposed a phase 2 in the first place. Let's get to it. I think the simplicity of 6(1)(a) all the way is very compelling, but there has been no examination of the implications and the unintended consequences. I would feel it would be very irresponsible of me as a parliamentarian to embrace that at this time, as much as I embrace the idea.
In your remarks, you said something very important. You said that you are going to co-design this process of phase 2, that you're going to ensure that the voices of impacted people will be heard. I'm wanting assurance from you that it includes some of the women that Sharon McIvor and Pam Palmater have been working with, women who do not have Indian status. You said that you are going to properly resource to engage meaningfully. That means something very specific to NWAC who do not have the resources and have a huge role to play here. I want to be clear; that's a meaningful commitment.
You have said that you want to do this and will incorporate a human-rights lens, and that Charter compliance will be the floor, not the ceiling. You have said a couple of times that you will take policy decisions to do the right thing, even if a consensus isn't reached, but that you have to consult to get to that decision-making point.
I take assurance from all of that. I did also hear you say that you're prepared to have some reference to this process and the timelines in the legislation. I would hope that there could be some reference to some of the specific issues like pre-1951 cut-off, to doing this with a human rights lens and a Charter compliance lens, which is language that Senator Sinclair has suggested into our dialogue.
Please take that bundle of things and tell me if you're prepared that we work with you to write that into the legislation, and that we can give those assurances to people, in law.
Ms. Bennett: Absolutely. This is hugely important to me, that meaningful engagement is meaningful. I was a practising physician long enough to know that at times the CMA took decisions that weren't exactly how I felt. We had buttons once, I think on gun control, that said, "the CMA doesn't speak for me.'' That is what I mean by impacted individuals. We want to hear from people who didn't get their status under the previous rules. We want to make sure they know that we want to hear from them in that process.
It means that there will have to be resources given to organizations like NWAC, and that there will have to be experts with the human rights lens. We do believe that Bill S-3 is Charter compliant, and that issues around the Charter have been dealt with, but we are very serious that we can do more than the Charter in terms of fairness and in terms of what actually makes sense.
We are also prepared, with your help as a committee, to come back to make sure we're on the right track in terms of the process. We can give you an outline of how we are going to do that, and we would report back as to how it's going and what we're hearing. In these things, sometimes it's important to have the work plan and then review what we have heard so far. We would be prepared to do whatever it is that would give the kind of assurance to the committee that we're serious about phase 2.
As I said in my remarks, I certainly understand the cynicism both of the people affected and of parliamentarians. This isn't just let's get this thing done, and then you don't hear from us again, and those families or those people affected don't even know where to turn. We will make sure that it's very clear who leads that process and how we go forward in a meaningful way.
Senator Lankin: One of the more compelling arguments that has been put forward in support of dealing with the pre-1951 cut-off now is that you cannot condone consulting to do away with people's basic human rights. It hits me in the gut when I hear that. Yet I understand the duty to consult in the Canada to First Nations government-to- government relations.
I would like you to answer that criticism that you're going to go out to consult, to continue discrimination.
Ms. Bennett: It is about hearing from the people who think they are still being discriminated against. That's the main purpose of this next chapter; people who still have situations where they feel there is a policy that is not fair and not right for them and their families. We want to hear from those people, people who were turned down, people that really feel that there needs to be a policy change.
I have heard about the difficulty in terms of resources, about chiefs in council and all of that. But the purpose of this consultation, that may be an implementation issue that we would take into consideration. We may have to change some of the voting processes to make sure that there is fairness by people living in communities and those not in communities. There are other things we will need to do in order to implement on phase 2 or whatever recommendations come out that have meaningful conversation.
Minority rights or new rights sometimes impact the people who already have those rights, and you end up getting some pushback. We're totally prepared for that.
Senator Lankin: Without prejudging this process, do you dream about a day when Canada doesn't own the issue of registration and we come to a different place in the maturity of our relationships?
Ms. Bennett: Yes. I said this before at this committee. Nathalie knows this may not be the job of Canada to make these determinations in the long run. Nation-to-nation means that nations will determine their membership and their status in the same way as the Métis Nation is working hard on their registries and their ownership of that. This is going to be an ongoing journey in terms of decolonizing and working on reconciliation, but towards that government-to-government and nation-to-nation approach.
Senator Lovelace Nicholas: Thank you for being here today, and your gang, too.
I'm concerned about stage 2. Will stage 2 be embedded in the legislation and financial commitment from the government?
Ms. Bennett: We are more than prepared to do that. That is, we would come back to this committee on stage 2, with a work plan and with a commitment organized in such a way that no one is left out of that consultation, and the reporting back; absolutely. If there are amendments that would make people feel more comfortable or assured that we're serious about that, then we're prepared to entertain anything that would be included in a process and assurance that means that we can begin to exercise the rights of the 35,000 people accommodated by this bill, and work to determine those others that we know are still being discriminated against in this next chapter.
Senator Lovelace Nicholas: Senator Patterson asked what if it takes three or four years. What happens with this legislation if there is a change of government?
Ms. Bennett: That's a great question. I think that we have learned a lot from these two truncated processes about what works and what doesn't work in terms of consultation. I think that people are really committed to doubling down now and getting this work done. We have heard from a lot of very smart people, who have been thinking about this for a very long time. I don't think it will take forever, but I do think that each proposal needs to be discussed and deliberated upon such that it's not creating more discrimination for others who might come back and say, but what about us? I think that we can get this done in our mandate.
Senator Enverga: I understand the necessity of this being passed because it would benefit 35,000 individuals. May I ask your office how many people will be impacted by this? After we do the 6(1)(a) amendment, or 1951 cut-off, how many people are involved in this particular group?
Ms. Bennett: Well, I think that the numbers aren't there. That's why it's so difficult to even consider it, because they are numbers that go from 80,000 to 2 million. It's difficult for us, as a government, to say "Okay, that's great,'' when we don't even know who we are talking about or how many. I think Candace or Joëlle can speak to this.
Joëlle Montminy, Former Assistant Deputy Minister, Resolution and Individual Affairs, Indigenous and Northern Affairs Canada: the study of the demographic impact of removing the 1951 cut-off is not determinate at this point. Some work has been done by Mr. Clapworthy. I think this committee has seen one of the reports that was tabled throughout the Descheneaux litigation. A wide range of numbers have been put forward, based on various kinds of assumptions and different scenarios. As the minister pointed out, there could be up to potentially 2 million new individuals that would be eligible to be registered under some scenarios that are based on census data. Clearly, that work needs to be refined and looked at with more rigour so that we can better assess the potential impact of removing the 1951 cut-off.
Senator Enverga: I've been talking to a lot of people who have told me that the name should be changed to "partly,'' maybe put "partial elimination of certain inequities.'' At the same time, don't you think people who were affected by the 1951 ruling have waited long enough? That is over 60 years ago now. Don't you think it's about time that we looked into that — I mean that seriously — and not have this piecemeal approach?
Ms. Bennett: Absolutely. I think that's the reason why 6(1)(a) touches people's hearts. The fact that there weren't registries before then, and that we don't really know the impact, means that we have to do a very robust piece of work in phase 2. We need to make sure that things are fair because a lot of people have lived this. We're committed to getting this done. We just feel that it can't be done in this short time frame and have all the implications properly considered.
Senator Enverga: Are you committed to 6(1)(a) all the way?
Ms. Bennett: I would want to hear, as you would as a parliamentarian, more — lots of people think that, but lots of people haven't been asked that. I would want to know from the people who have been studying these things for a very long time, if that fixes things or whether it could accidentally precipitate other things. Phase 2 would involve trying to find out what would be the impact of 6(1)(a) all the way. That is, what would be the numbers affected? What would happen?
I think communities are really working at integrating and cultural integrity. The people need that kind of language and culture and community. We know that that's really good for people. We also know that we have to examine all of that in terms of a commitment so that if people have status, they also need an attachment to their community, to their land and to their people.
Senator Enverga: So 6(1)(a), all the way could be "6(1)(a), it depends?''
Ms. Bennett: I think it could be 6(1)(a) all the way. But we don't have enough information to make that decision, the scholarly approach that it would take to look at the impacts and make sure that it didn't impact others accidentally in a different way.
Senator Sinclair: Well, "6(1)(a) part of the way'' anyway.
I have,as you know,a number of concerns about the amendments, minister. I'm not going to try to get into all of them. With the assistance of Senator Lankin, we have been talking a great deal about a number of them. I want to caution you, and others within your team, about this reliance on the principle that your advisers have told you comes out of McIvor that you can ignore the pre-1951 discrimination because the B.C. Court of Appeal said so. The B.C. Court of Appeal actually didn't say that. What the B.C. Court of Appeal said was that in applying a principle that came out of the Supreme Court of Canada in a case called Benner, which involved Canadian citizenship, that if there is a current discriminatory effect based upon a prior Charter-type breach, then the current claimant can rely upon the prior breach or the prior act of discrimination to justify a remedy under section 15. It's not as clear cut as some may be leading you to believe.
My point regarding the 1951 cut-off question is that it's not a simple matter of just revoking the 1951 provision.
Current applicants today who are affected by a discriminatory act that occurred before 1951 might have a Charter remedy based upon section 15 of the Charter, because it has an ongoing effect. That act of discrimination before 1951 still has an ongoing effect for people today. In Benner, the Supreme Court says that can amount to a Charter breach. The B.C. Court of Appeal simply said, "You have to look at it on a case-by-case basis.'' So you can't simply say if it is a pre-1951 discriminatory policy or law, it's beyond the Charter. In a simplistic way, it is. You're not going to change the law using the Charter, but you might be able to grant a remedy to people today who are affected by the fact that their grandmother or their mother might have been discriminated against before 1951.
I wanted to forewarn you: That may be a situation that will come up for argument as we go forward.
That's been my concern. I've been articulating that to many people. It gets all caught up in the siblings and cousins questions. Internal jargon within the department tends to confuse the issue. It's a very simple question: If somebody today is denied status because their grandmother was discriminated against before 1951, can he get a Charter remedy or not? And I think Benner, which is a Supreme Court decision, says he can. The B.C. Court of Appeal didn't need to apply Benner because they found a different way to give a remedy to Ms. McIvor. So it isn't as clear-cut as some of your legal advisers might have led you to believe.
I want to give you an opportunity, if you don't mind, to explain why the Liberal Party has changed its position on 6(1)(a). I heard your answer to the question that was asked by Senator Patterson. But, in the conversation around Bill C-3, there was a very clear amendment that was proposed by the Liberal Caucus in the House that amending that bill to allow individuals who had been victims of past discrimination to be able to register under 6(1) in and of itself would be a sufficient answer. It would appear that now that you are government, you're no longer supporting that position.
Do you want to take another run at that for me, and I'll tell you why: If I vote to support these amendments, I have to be able to explain that to people, too.
Ms. Bennett: Having been in opposition for a decade, sometimes we were able to propose when we hadn't really understood all of the implications, or had the resources to do the kind of consultation that is required. So, I wouldn't say we have changed our minds. I would just say that, as government, we have to do the due diligence and the proper consultation.
Senator Sinclair: Which does raise another issue, and that is: Why have you not done the due diligence? Not you personally, but why has the government not done its due diligence? Surely since 1985, somebody would have anticipated the possibility that previous acts of discrimination would result in a flood of people coming in because of the Charter.
Why have you not got at your disposal information from your department as to what that potential number is? To tell us it can range from 80,000 to 2 million is almost like fear-mongering, because you're not giving us information upon which we can make a reliable decision. So do you know why that information was never put together?
Ms. Bennett: I can only say that's the reason we need phase 2. I don't have enough information to be able to really go forward with this broader application without the right numbers. Yes, I would love to know all of that.
Senator Sinclair: Maybe as part of phase 2, you can put together a hunting party to find out who is responsible for that.
Ms. Bennett: I am. The rearview mirror is never as interesting as looking forward.
Senator Sinclair: Let's look forward for a minute, then, and get away from the rearview mirror. Assume for the moment with me, if you don't mind, that this legislation doesn't make it through the Senate, or if it does, it gets amended, you don't approve it, we end up at an impasse and it doesn't become law. I assume somebody in your department has done an analysis of what the impact is going to be on Canada and upon the number of people who are applying, and what those numbers are looking like. Can you tell us what those numbers are going to be?
Ms. Bennett: I'll ask the registrar to give her best estimate, but as you know, because those provisions were struck down, she is not allowed to apply the provisions in Quebec. It is viewed that therefore it would be unwise —unfair — that she technically could not register people in the rest of the country under those provisions. But do you have a —
Senator Sinclair: Actually, she has been able to, because the decision was put on hold for the time being. She has been able to —
Ms. Bennett: I'm sorry, senator, I was thinking that as of July 3, if we don't meet the court deadline, then the registrar is in trouble. She is not in trouble; all of the people trying to register will not be registered.
Senator Sinclair: Maybe she will be in trouble too. So let's hear what her escape plan is.
Ms. Bennett: If she's in trouble, it's our fault. That's right.
Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Indigenous and Northern Affairs Canada: It's a good question. The immediate impacts that have been discussed are those 35,000 who are entitled right now who still go without a remedy, technically.
However, without being able to provide an exact number, I can tell you that, on a yearly basis, the department gets about 28,000 applications. So based upon that volume, technically speaking, the ability to register at least half those individuals could be compromised.
Ms. Bennett: So it starts with the 35,000 that would be registered under Descheneaux or under Bill S-3, and then another 14,000 a year.
Ms. Nepton: We also talk about the category amendments — all the people currently registered who would need a category change from, let's say, being registered under 6(2) to going to potentially 6(1)(c.1)(iv) or whichever number it would be. I think that would also significantly impact people, because we are talking about those who are under 6(2) and their ability to transmit status.
Senator Sinclair: Thank you. Minister, I assume that you have given some thought to a notwithstanding clause in the event that this bill doesn't make it. Have you rejected that idea?
Ms. Bennett: Yikes.
Senator Sinclair: That means "yes''?
Ms. Bennett: You tell me. I think it's pretty serious, and we are hoping we can make the case here that phase 2 is serious and that we will take the kinds of amendments that are being suggested to this committee to be able to get this thing done.
Senator Sinclair: Thank you.
Finally, I just have more of an observation. It's probably not telling you anything you don't know. We have heard from a number of people who complain about nobody ever wanting to talk to them when they call the registrar about a membership question. I wonder if the registrar and others within your department would do something to communicate our concern about the degree to which people cannot get easy access to information or discover the state of their application. That's a very serious issue for indigenous people who are already having trouble making contact with government. To find they're not being treated well is not good news.
Ms. Bennett: I couldn't agree more. That is not what we want. That's not our brand. That's not what we want people to feel. I think that, again, in terms of service and respect, that's what we're trying to do. So I think that, if people feel that way, they need to let us know because that's how we improve.
Senator Sinclair: I'm letting you know on behalf of the people who have been talking to me, all right? Thank you, minister.
The Chair: We've reached the end of our time. It's 4:30, and, on behalf of the members of the committee, I would like to thank the minister for appearing before the committee to update us on what is going on and for answering the questions from the senators. With that, the session is adjourned.
(The committee adjourned)