Ottawa –The Senate Committee on Aboriginal Peoples wrote a letter to Indigenous Affairs Minister Carolyn Bennett on Tuesday urging her to act on senators’ and Indigenous witness’s concerns that proposed amendments to the Indian Act are deficient and come after inadequate consultation with Indigenous peoples.

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) was drafted in response to a 2015 Superior Court of Quebec ruling that found provisions of the Indian Act relating to registration violate equality provisions of the Canadian Charter of Rights and Freedoms.

“Despite the title of the bill, the committee has heard evidence to suggest that gender-based discrimination would persist even if this bill were passed,” senators wrote in the letter to Minister Bennett.

The plaintiffs in Descheneaux v. Canada (Attorney General), challenged the Indian Act in 2011, arguing its method for registering Status Indians is unconstitutional because it discriminates on the basis of sex. The court case highlighted gender-based discrimination in the treatment of siblings and cousins descending from the matrilineal line. One of the plaintiffs, Stéphane Descheneaux, a member of the Abenakis of Odanak First Nation, had been denied status because his grandmother had married a non-Native man.

The trial judge struck down sections of the act but gave the federal government until February 2017 to make legislative amendments.

Bill S-3 addressed the two issues identified in the court case as well as gender-based discrimination against omitted minors. However, witnesses told the committee about additional discriminatory scenarios and significant deficiencies — including the government’s lack of consultation with First Nations people and women’s groups, and other instances of discrimination in the registration provisions of the Indian Act — that the bill does not address.

Last week committee members voted 10 to 2 to report against Bill S-3. But after further discussion, the committee decided instead to hold the bill in abeyance, giving the minister time to seek a court extension. This would allow the government to discharge its constitutional duty to consult with Indigenous peoples and to present amendments or draft a new bill that would address the bill’s deficiencies.

With unanimous support, committee Chair Senator Lillian Eva Dyck, bill sponsor Senator Frances Lankin, and bill critic and committee Deputy Chair Senator Dennis Patterson, pursued the option of a letter in an effort to ensure that the end result is a better and more inclusive bill.

Quick Facts

• In August, 2015 Justice Chantal Masse’s ruling in Descheneaux v. Canada (Attorney General) struck down sections of the Indian Act that she found violated the Charter right to equality. She suspended the effect of her judgement for 18 months to give the government time to make changes. The plaintiffs have signalled they would support an extension of this deadline.

• The Assembly of First Nations (AFN), the AFN Women’s Council, Quebec Native Women Inc., the Canadian Bar Association and the Indigenous Bar Association — among others — have all identified deficiencies with the process and content of the bill.

• Justice Masse noted in the conclusion of her ruling that “the task of ensuring that [the Indian Act] has no unjustifiable discriminatory effects is a significant challenge. These are not, however, reasons that justify not taking on that challenge once again.”

• Bill S-3 is the third legislative attempt to fix gender-based discrimination in the registration provisions of the Indian Act.

Quotes

“I have struggled with this bill. In my mind, we have been rushed to do this bill. That always puts us on the spot because we are supposed to be the ‘Chamber of Sober Second Thought.’”

- Senator Lillian Eva Dyck, Chair of the committee

“I believe that this in no way detracts from our position that this is a deeply flawed bill.  In fact, I think it is a great triumph of sober second thought: we decided to hold the government to account and it is going to result in them seeking an extension, something they have said all along they would not consider.”

- Senator Dennis Patterson, Deputy Chair of the committee

Associated Links

• Click to watch and read witness testimony from the Senate Committee on Aboriginal Peoples’ hearings on Bill S-3.
• Click to read the decision Descheneaux v. Canada (Attorney General).
• Follow the committee on social media using the hashtag #APPA.

For more information, please contact:

Shaili Patel
Office of the Hon. Senator Lillian Eva Dyck
Chair of the committee
Senate of Canada
613-947-1877 | shaili.patel@sen.parl.gc.ca

Claudine Santos
Office of the Hon. Senator Dennis Patterson
Deputy Chair of the committee
Senate of Canada
613-996-1839 | claudine.santos@sen.parl.gc.ca

Andrew Miller
Office of the Hon. Senator Frances Lankin, Sponsor of Bill S-3
Senate of Canada
613-995-2795 | andrew.miller@sen.parl.gc.ca