Tuesday, May 30, 2017

The Standing Senate Committee on Aboriginal Peoples has the honour to present its

SIXTH REPORT

Your committee, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), has, in obedience to the order of reference of November 17, 2016, examined the said bill and now reports the same with the following amendments:

1. Clause 1, pages 1 to 3:

(a)  On page 1,

(i)  replace line 4 with the following:

“1 Section 5 of the Indian Act is amended by adding the following after subsection (5):

(6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.

1.1 (1) Paragraph 6(1)(a) of the Act is re-”, and

(ii) add after line 7 the following:

“(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;

(a.2) the purpose of this provision is to entitle to registration under paragraph (a) those persons who were previously not entitled to registration under paragraph (a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985;”;

(b)  On page 2,

(i) add after line 10 the following:

“(c.02) that person meets the following conditions:

(i) the name of one of their parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subparagraph 12(1)(a)(iv) or subsection 12(2), as each provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as either of those provisions,

(ii) their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and

(iii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;”, and

(ii) replace lines 30 and 31 with the following:

“(ii) their father was at the time of that person’s birth entitled to be registered or, if he was no longer living at that time, was at the time of death entitled”; and

(c) On page 3,

(i) add after line 7 the following:

“(c.5) that person meets the following conditions:

(i) one of their parents is entitled to be registered under paragraph (c.4) and one of that parent’s parents is entitled to be registered under paragraph (c.3) or, if that parent or parent’s parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph (c.4) or (c.3), as the case may be, came into force, had he or she not died,

(ii) their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and

(iii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;

(c.6) that person meets the following conditions:

(i) one of their parents is entitled to be registered under paragraph (c.02) — or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which that paragraph came into force, had he or she not died — and the name of one of that parent’s parents was omitted or deleted from the Indian Register on or after September 4, 1951 under subsection 12(2), as that provision read immediately before April 17, 1985, or under any former provision of this Act relating to the same subject matter as that provision,

(ii) their other parent is not entitled to be registered or, if that other parent is no longer living, was not at the time of death entitled to be registered or was not an Indian at that time if the death occurred before September 4, 1951, and

(iii) they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985 and their parents were married to each other at any time before April 17, 1985;”, and

(ii)  replace lines 30 and 31 with the following:

“(d) a person who is described in paragraph (1)(c.01) or (c.02) or any of paragraphs (1)(c.2) to (c.6) and who was no longer living on the day”.

2. Clause 2, pages 3 and 4:

(a)  On page 3, replace line 38 with the following:

“registered under any of paragraphs 6(1)(c.01) to (c.6),”; and

(b)  On page 4,

(i)  add after line 11 the following:

“(a.1) they are entitled to be registered under paragraph 6(1)(c.02) and one of their parents ceased to be a member of that band by reason of the circumstances set out in subparagraph 6(1)(c.02)(i);”,

(ii)  replace line 35 with the following:

“died;”, and

(iii)  add after line 42 the following:

“(g) they are entitled to be registered under paragraph 6(1)(c.5) and one of their parents is entitled to be registered under paragraph 6(1)(c.4) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6(1)(c.4) came into force, had he or she not died; or

(h) they are entitled to be registered under paragraph 6(1)(c.6) and one of their parents is entitled to be registered under paragraph 6(1)(c.02) and to have his or her name entered in the Band List or, if that parent is no longer living, was so entitled at the time of death or would have been so entitled on the day on which paragraph 6(1)(c.02) came into force, had he or she not died.”.

3.  New clause 7.1, page 5: Add the following after line 38:

“7.1 The provisions of the Indian Act that are amended by this Act are to be liberally construed and interpreted so as to remedy any disadvantage to a woman, or her descendants, born before April 17, 1985, with respect to registration under the Indian Act as it read on April 17, 1985, and to enhance the equal treatment of women and men and their descendants under the Indian Act.”.

4.  Clause 8, page 6: Replace lines 14 and 15 with the following:

“registered under paragraph 6(1)(c.01) or (c.02) or any of paragraphs 6(1)(c.2) to (c.6) of the Indian Act.”.

5.  New clauses 8.1 to 8.3, page 6: Add the following after line 15:

“Consultations and Reports

8.1 (1) The Minister must, within six months after the day on which this Act receives royal assent, initiate consultations with First Nations and other interested parties in order to address, in collaboration with those First Nations and other parties, issues raised by the provisions of the Indian Act related to registration and band membership, including consultations on:

(a) issues relating to adoption;

(b) the 1951 cut-off date for entitlement to registration;

(c) the second-generation cut-off rule;

(d) unknown or unstated paternity;

(e) enfranchisement;

(f) the continued federal government role in determining Indian status and band membership; and

(g) First Nations’ authorities to determine band membership.

(2) The Minister, the First Nations and the other interested parties must, during the consultations, consider the impact of the Canadian Charter of Rights and Freedoms and, if applicable, of the Canadian Human Rights Act, in regard to those issues.

(3) The Minister must cause to be laid before each House of Parliament, within five months after the day on which this Act receives royal assent, a report on the design of a process by which the Minister is to carry out the consultations described to in subsection (1).

(4) The Minister must cause to be laid before each House of Parliament, within 12 months after the day on which the consultations begin, a report on the progress made as a result of the consultations and collaboration. The report must set out details as to the consultations carried out, including details related to:

(a) issues relating to adoption;

(b) the 1951 cut-off date for entitlement to registration;

(c) the second-generation cut-off rule;

(d) unknown or unstated paternity;

(e) enfranchisement;

(f) the continued federal government role in determining Indian status and band membership; and

(g) First Nations’ authorities to determine band membership.

(5) Each report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.

8.2 (1) The Minister must, within three years after the day on which this Act receives royal assent,

(a) undertake the following reviews:

(i) a review of the provisions of section 6 of the Indian Act that are enacted by this Act in order to determine whether all of the sex-based inequities have been eliminated with respect to those provisions, and

(ii) a review of the operation of the provisions of the Indian Act that are enacted by this Act; and

(b) cause to be laid before each House of Parliament a report on those reviews that includes, if he or she determines that any sex-based inequities still exist with respect to the provisions of section 6 of the Indian Act that are enacted by this Act, a statement of any changes to the Indian Act that he or she recommends in order to reduce or eliminate those sex-based inequities.

(2) The report stands referred to any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established to review matters related to Aboriginal affairs.

8.21 The Minister must publish every report laid before Parliament under sections 8.1 and 8.2 on the Department’s website immediately after their tabling.

8.3 Words and expressions used in sections 8.1 to 8.21 have the same meaning as in the Indian Act.”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations to the Sixth Report of the Standing Senate Committee on Aboriginal Peoples (Bill S-3)

Bill S-3 was introduced in the Senate on October 2016 in response to the ruling of the Superior Court of Quebec in Descheneaux v. Canada (Attorney General). In that decision the Court declared invalid Sections 6(1)(a), (c) and (f) and Section 6(2) of the Indian Act as being contrary to the Canadian Charter of Rights and Freedoms on the basis that they discriminated against Indigenous women and their children. The Court suspended it’s declaration of invalidity to allow the government an opportunity to amend the legislation to bring it into line with the Charter and warned the government to look at all of the gender discrimination provisions in the Indian Act, and not simply those addressed in Descheneaux.

In November 2016, Bill S-3 was referred to the Standing Senate Committee on Aboriginal Peoples. During the initial study of Bill S-3, the committee heard from various witnesses that there had not been adequate engagement and consultation on Bill S-3. Further, the committee heard that Bill S-3 did not eliminate all sex-based discrimination in Indian registration. As such, your committee decided not to proceed with Bill S-3 but instead held it in abeyance and asked the government to address these concerns.  The government obtained an extension of the court deadline to July 3, 2017 to allow Parliament to amend the Act.  In May 2017, the committee resumed its study of Bill S-3, and the government proposed a series of amendments for your committee’s consideration.

Your committee feels that Bill S-3, even with the proposed government amendments, continues a piecemeal approach in dealing with sex discrimination, whereby amendments to the Indian Act are introduced on a case-by-case basis in response to court decisions. Once again we are undertaking this work under a court imposed deadline. If we fail to act, it could result in the inability for the government to register individuals seeking status. This approach leaves us, as legislators, in the position of deciding who is eligible for Indian status now and who will continue to wait.

Your committee heard from government witnesses that their proposed amendment would only address “known sex-based discrimination,” and similar scenarios of discrimination to those addressed in Descheneaux. Additionally, the government proposed an amendment in response to the issue of unknown and unstated paternity arising from the recent Ontario Court of Appeal decision in Gehl v. Attorney General (Canada). During clause-by-clause your committee accepted these proposed amendments with modifications.

Nonetheless, your committee heard from legal experts and First Nations witnesses that the proposed government amendments to Bill S-3 still did not eliminate all sex-based discrimination. Your committee feels that the federal government’s approach allows discrimination in the registration provisions to persist with the promise that it will be fixed in the future.

To remedy this concern, and to ensure that registrations can continue past the point of the new court deadline, your committee passed a broader amendment, which purpose is “to entitle to registration under s. 6(1)(a) those persons who were previously not entitled to registration” due to the differential treatment of Indian men and women born prior to 1985 in the registration provisions of the Indian Act. We agree with a number of witnesses who told us this amendment would provide the opportunity to finally restore rights to a larger number of Indigenous women and their children. Regrettably, the department was unable to provide us with information on the number of people affected by this amendment. In the future, we hope that the department will make such information available to us.

To ensure that your committee can hold the government accountable to its Phase II commitments, we supported the proposed government amendments to Bill S-3, which require publicly accessible progress reports to be tabled in Parliament. Even with these amendments, your committee is concerned about the absence of consequences should the minister fail to table a report by the deadline, or fail to act on issues discussed during these consultations. Nonetheless, we are hopeful that this process can result in concrete actions to finally end discrimination in the registration provisions of the Indian Act.