Moved the adoption of the report.

She said: Honourable senators, I begin by acknowledging that I am speaking from the traditional, unceded territories of the Algonquin Anishinaabe Peoples.

In my capacity as the Deputy Chair of the Standing Senate Committee on Indigenous Peoples, I am honoured to rise to speak on Bill S-2, An Act to amend the Indian Act (new registration entitlements). As Senator Audette is both the Chair of the Standing Senate Committee on Indigenous Peoples and the bill’s sponsor, she recused herself from her role as chair for the duration of this study in order to preserve the neutrality of the chair. As deputy chair of the committee, I took on the role of chair for the committee’s study on Bill S-2.

Bill S-2 amends the Indian Act to address the legacy impact of enfranchisement by providing new entitlements to those who were enfranchised or whose ancestors were enfranchised. Those who are not eligible for entitlements also have the right to have their names entered into a band list maintained by Indigenous Services Canada. This measure is in response to the Supreme Court of British Columbia’s ruling in Nicholas v. Canada (Attorney General) that found that paragraph 6(1)(a.1) and the entirety of paragraph 6(1)(d) of the Indian Act unjustifiably infringe on section 15 of the Canadian Charter of Rights and Freedoms.

Bill S-2 goes beyond the Nicholas decision and includes other amendments to the Indian Act. It amends the act to provide for persons to voluntarily deregister their status. Deregistration involves an individual requesting to have only their name removed from the Indian Register but would maintain their entitlement to being registered without impacting subsequent generations.

The bill also amends the Indian Act to allow women who were automatically transferred to their husband’s band upon marriage prior to 1985 to have a right to membership in their natal bands.

Finally, Bill S-2 amends the Indian Act to replace outdated and offensive language by replacing the term “mentally incompetent Indian” with “dependent adult.”

In its review of Bill S-2, the Standing Senate Committee on Indigenous Peoples held 12 meetings and heard from 62 unique witnesses. This includes two separate appearances from Minister Gull-Masty. Further, the committee received and published 49 briefs from organizations and individuals across Canada. While all witnesses who appeared before our committee were supportive of the above amendments to the Indian Act, there was near-unanimous agreement that it did not go far enough in removing ongoing discrimination that affects First Nations People to this day.

Senators, the issue of discrimination that was almost unanimously raised by witnesses is the second-generation cut-off. Specifically, the amendments that Parliament adopted in 1985 created two categories of Indian status, known as 6(1) and 6(2) Indian status. Indian status in general is the legal standing of a person who is registered under the Indian Act, and it comes with a set of legal rights, restrictions and entitlements that are defined in the Indian Act.

Someone with 6(1) Indian status can pass along status to their children regardless of whether they marry a non-status person. If they do marry a non-status person, their children will have what is known as 6(2) status. However, if that individual with subsection 6(2) status has a child with a non-status person, their children will not have status. They will no longer be recognized as a status Indian by the government and will lose their Aboriginal rights, their treaty rights and their identity.

National Chief Cindy Woodhouse Nepinak told our committee that while the Assembly of First Nations supports addressing the discriminatory elements that Bill S-2 seeks to remedy, they also stated that the bill is another “. . . piecemeal approach to ending discrimination that has not worked and will not work to bring justice and lasting solutions.”

National Chief Cindy Woodhouse Nepinak continued:

. . . the Assembly of First Nations endorses legislative amendments to the Indian Act that repeal the second-generation cut-off rule and introduce a system whereby an individual who is a direct descendant of a status Indian or an individual entitled to be registered as a status Indian or would be eligible to obtain status.

Dr. Pam Palmater told our committee that while she supports Bill S-2 she believes the Senate:

. . . must make an amendment to eliminate the second-generation cut-off in this bill. It simply cannot enact yet another bill . . . with these incrementally tiny steps while having an iron grip on the legislative extinction in disappearing Indian formula. . . .

Zoë Craig-Sparrow from Justice for Girls told our committee:

I fundamentally disagree with any suggestion that there is a cohesive position from Indigenous Peoples that it is best to move forward on Bill S-2 as is and address the second-generation cut-off later. You cannot end discrimination incrementally. We cannot ensure equality for a few, and then wait years, if ever, for another bill to pass where piecemeal amendments are made and substantive equality remains a pipe dream, especially not when we have the opportunity here to do both.

Cora McGuire-Cyrette, Chief Executive Officer of the Ontario Native Women’s Association, told us:

Continuing the second-generation cut-off will result in the numbers of registered Indians declining over time, eventually leading to the extinction of status Indians and entire communities. A one-parent rule not only tackles the urgent issue of extinction but also sex discrimination.

She called on our committee to “ . . . to fully remedy the residual sex discrimination in the Indian Act . . . .”

Many witnesses also raised the Standing Senate Committee on Indigenous Peoples’ 2022 report entitled Make it stop! Ending the remaining discrimination in Indian registration. This report called for the Government of Canada to introduce legislation repealing subsection 6(2) of the Indian Act. The committee responded to the calls of the overwhelming majority of our witnesses to address this harmful element of discrimination in the Indian Act.

In response, there were four amendments made to the bill that were approved by the committee. The first amendment to Bill S-2 has four components. First, it amended paragraph 6(1)(a.3) of the Indian Act to remove the 1985 cut-off.

Second, it amended paragraph 6(1)(f) of that act to move to a one-parent rule.

Third, it repealed subsection 6(2) and 6(2.1) of the act to remove the second-generation cut-off.

Fourth, it amended paragraph 6(3)(b) of that act to ensure that future generations can still be registered even if their parent is deceased if that parent was entitled to be registered under the new rules, and it removed reference to section 6(2) to ensure consistency.

The second amendment amended paragraph 11(1)(d) of the Indian Act, repealed 11(2)(a) and amended 11(2)(b). This second amendment ensures that those newly entitled to register — based on the removal of the second-generation cut-off — will be added to section 11 band lists.

The third amendment added two “for greater certainty” clauses to the bill to ensure that there are no unintended consequences related to the removal of subsection 6(2) from the Indian Act by clarifying that the registrar must recognize any entitlements to be registered that existed under subsection 6(2) of the Indian Act immediately before the day on which these amendments to Bill S-2 come into force.

The fourth amendment is a delay in the coming-into-force provision related to the previous three amendments. The original amendment was six months, and the committee approved a subamendment that changed the coming-into-force provision to 12 months. This would allow more time for the minister to finish her consultative work and introduce stand-alone legislation that might address additional concerns and how to welcome back the newly entitled.

Furthermore, the committee also voted down the “no liability” provisions found in clauses 10 and 11 of Bill S-2, which prevented persons from making claims for compensation for harms suffered due to inequities in the discriminatory registration provisions of the Indian Act.

The removal of clauses 10 and 11 is in line with calls from almost all witnesses, as the “no liability” provisions created a barrier to justice.

As Ms. Buffalo stated:

We object to the no-liability clauses for those individuals who have been harmed and continue to be harmed by the Indian Act membership amendments. Those must be in line with reconciliation and they must include redress and remedy.

Sharon McIvor of the Indian Act Sex Discrimination Working Group said:

We have not been able to identify any other Canadian law that includes a bar to compensation for discrimination. The bars violate the Charter, and international treaties Canada has ratified. After everything else, First Nations women should not have to litigate in order to eliminate this bar.

Further, the Standing Senate Committee on Indigenous Peoples report Make It Stop! Ending the remaining discrimination in Indian registration also spoke to barriers to compensation and its objection to non-liability clauses. I quote from the report:

The committee agrees with witnesses that reparations, including compensation and a formal apology, are essential to recognize the harms experienced by First Nations women and their descendants as a result of discrimination in the registration provisions under the Indian Act. . . . Additionally, the committee believes that non-liability clauses must be repealed to enable First Nations women and their descendants to access compensation. . . .

As such, the removal of these two clauses is consistent with the current testimony and the committee’s previous studies on discrimination in registration practices.

The committee also made numerous observations in its report regarding Bill S-2.

Senator, your time has expired. Are you asking for more time to complete and maybe take questions? Are you asking for five minutes?

Yes, please.

Is leave granted, honourable senators?

Thank you, Your Honour.

I have several observations, so I’m going to read them very quickly:

Number 1, the committee welcomes the provisions in Bill S-2 that correct the historic injustice of enfranchisement and which restore entitlement to individuals and their descendants.

Number 2, the committee heard numerous instances of discrimination resulting from the Indian Act based on race, sex and marital status.

Number 3, the committee recognizes the importance of First Nations exercising self-determination and affirms that First Nations should decide who is a citizen of their nation, and that this should rest with the Nation itself.

Number 4, the committee heard from witness who contend that the bars to compensation in the Indian Act violate the Charter and international treaties Canada has ratified. The committee agrees with these witnesses that First Nations women should not have to resort to litigation.

Number 5, the committee believes a clear statutory commitment is required that provides adequate, sustainable and predictable funding to First Nations to administer new regulations regarding status and membership.

Number 6, the committee observed there was confusion regarding the meaning of terms “Indian status,” “band membership” and “citizenship,” as at times the terms were conflated during the study.

Number 7, the committee observed there is a lack of clarity over who “rights holders” are, which is of particular importance for the purposes of federal consultation related to ongoing sex- and race-based discrimination under the act.

Number 8, while Bill S-2 provides the ability for those who regain their status or those who were automatically transferred to their husband’s band to return to their natal band, it does so only for those First Nations who have their band membership managed by Canada under section 11 of the Indian Act. It should not be optional for a First Nation that manages its membership list under section 10 to potentially deny new membership.

Number 9, the committee also heard that the loss of status and connection to community also cuts people off from their inherent treaty relationship with Canada. It is imperative that any restoration of status also carry the recognition of treaty entitlements. The committee calls on Canada to fully restore treaty entitlements and benefits to those who regain their status.

I want to close by thanking all the senators, clerks, analysts and staff who worked on this report.

Perhaps most importantly, I want to thank the witnesses who appeared before our committee. Thank you for your tenacity and perseverance, for sharing your personal stories and for standing up against discrimination. The committee has heard you and has acted to the best of its ability to address the issues laid before us in your testimony.

Thank you, honourable senators. Hiy hiy.

Honourable senators, I would like to acknowledge that we gather on the unceded territory of the Algonquin Anishinaabeg and to express my commitment to truth and reconciliation with First Nations, Inuit and Métis People.

I rise to address the report of the Standing Senate Committee on Indigenous Peoples on Bill S-2, An Act to amend the Indian Act (new registration entitlements).

First of all, I want to thank the committee and express my deep respect for its work. I also want to call attention to the excellent job done by Senator Greenwood, who presided over this study. Like the government, I personally undertake to sincerely and humbly support efforts to rid the Indian Act of any lingering inequities. We all share this objective, and we need to work on it together. With the committee’s report completed just a few days ago, I wanted to take the first opportunity to comment on the important issues it raises. We all need to remember that a court deadline is involved here, but most of all, that the future of approximately 3,500 people depends on the passage of this bill.

Colleagues, like most of you in this chamber, I am not of Indigenous descent and, like most of you, I am called to address and decide upon changes to the Indian Act, an act that has deeply disrupted and dislocated the lives of generations of Indigenous people.

Not only are we called to deliberate on fundamentally Indigenous matters, colleagues, we are asked to do this with full knowledge that Indigenous Peoples in this country have suffered from well over a century of discrimination and state-sanctioned oppression, in a word, from a history of colonialism.

While Canada has taken significant measures and has conducted reforms to acknowledge the serious injustices of the past, they persist nonetheless. They’re the product of a shameful colonial past prolonged by the discriminatory practices of successive governments. To address this, we need to proceed with truth and honesty as we advance toward our ultimate goal of reconciliation.

In pursuit of this ultimate goal, Canada has taken on constitutional obligations to demonstrate to Indigenous peoples its sincere and determined commitment to leaving its colonial past behind and its desire to view the future through the lens of nation-to-nation relations, thereby enabling Indigenous communities to choose their own destiny.

As senators, our responsibility is to ensure that the government meets its obligations as set out by the Supreme Court of Canada, not to attempt to circumvent them.

When the Standing Senate Committee on Indigenous Peoples reviewed the amendments presented to us in its report, I stated, and I repeat today, that we all agree on the problems posed by the second-generation cut-off, and that we are united in our desire to eradicate discrimination in the Indian Act. The minister agrees, and I fully support her view, that the issue of the second-generation cut-off must be resolved. So our issue is not with the substance of the matter, but rather how to achieve our goal.

Honourable senators, let us recall the substance of Bill S-2.

The principal intent of Bill S-2 is to respond to the Nicholas decision. In Nicholas, the government committed to introduce legislation to fix the inequities caused by enfranchisement-related provisions.

The former bill, Bill C-38, An Act to amend the Indian Act (New Registration Entitlements), now reintroduced as Bill S-2, was tabled on December 14, 2022, and proposed four amendments to address issues and recommendations made during the 2018-19 collaborative process, including enfranchisement and deregistration.

As the minister stated, Bill S-2 proposes restoring entitlement to individuals and their descendants who lost it to enfranchisement, often involuntarily.

In addition, upon receiving Royal Assent, Bill S-2 would give First Nations individuals the power to remove themselves from the Indian Register and reclaim control over their identity. It would eliminate outdated and offensive language from the act about dependent persons. It would make it easier for people to rejoin the First Nation band of their birth.

Colleagues, the minister has acknowledged that Bill S-2 does not address all concerns with the Indian Act. It was drafted to respond to specific concerns, primarily in response to the Nicholas case.

In August of this year, the British Columbia Supreme Court ruled that the government has until April 30, 2026, to satisfy the concerns raised in Nicholas.

If we respect the intent of the bill as originally drafted, both chambers can facilitate the completion of the work and passage of this important piece of legislation before the court deadline.

Passing this legislation would have an immediate and material effect on approximately 3,500 First Nations members. The Standing Senate Committee on Indigenous Peoples heard directly from some of those people who would be directly impacted such as Michel Callihoo Nation Society who, in their brief, stated that while some inequities will remain:

The Bill, if passed into law, represents a significant step towards the reconciliation of the painful relationship between Canada, the disestablished Michel Band #472, and the modern descendants of the historic Treaty 6 Band.

Some might not think this is enough. Nonetheless, it is a positive gain, a concrete step forward directly impacting the lives of thousands of people. Why would we hold it up?

It is important to remember that the minister recognized that inequalities remain in the Indian Act. She also pointed out that section 10 of the Indian Act makes it difficult for First Nations to reclaim control over their membership lists because of high voting thresholds, which are growing increasingly inaccessible. Of course, she also talked about the second-generation cut-off, which took up the bulk of the committee’s time on this study.

With all due respect, I’d like to once again share the government’s position and reiterate the minister’s commitment to senators, First Nations and Canadians. At the end of September, when she first appeared before the Indigenous Peoples Committee, Minister Gull-Masty recognized that the second-generation cut-off continues to erode entitlement over generations. She then said:

Under the rule, if an entitled person marries someone who is not entitled, their children hold entitlement but their children — the second generation — don’t.

That, in a nutshell, is what the second-generation cut-off is all about.

In September, the minister also explained that she was listening and that consultations on the second-generation cut-off were under way. She reiterated her message to senators when she appeared before the Indigenous Peoples Committee a second time in early November and in a brief that she submitted to the committee on November 7. I would invite senators to read that important document.

I want to return to the November 7 brief the minister submitted to the Standing Senate Committee on Indigenous Peoples. The minister stated, “For me, it is not whether we will address the second-generation-cut off, but how.”

Senators, this is the dilemma we face. What will be the “how”? How will we move forward? How will we get through this impasse? The means we employ are crucial here. Certainly, the ends cannot justify the means. When it comes to the duty to consult, the means are what ultimately define the ends. Indigenous community must determine the path forward. Community must craft and bring forward their own solutions.

The minister continues by explaining that she is listening — and she is listening in the way she should — via consultation with communities and rights holders.

Let me return to her brief:

[The government] launched a co-developed consultation process in November 2023. This process is focused on addressing the remaining inequities in the Indian Act that we are committed to addressing, including the second-generation cut-off . . . .

The minister continues to explain:

Right now, we are hearing from many First Nation rightsholders and organizations on proposed solutions on the path forward and how we can address the second-generation cut-off. . . .

Through this process, we want to ensure that we propose a solution to the remaining inequities that have the consensus of First Nation rightsholders and that we avoid unintended consequences that could entrench new barriers or exclusions and replicate the very kinds of discrimination we are working to eliminate. The goal must be to move forward in a way that strengthens fairness and restores rights, rather than opening the door to future harms.

Colleagues, we have heard statements like “The government has been consulting for over 40 years.” I agree. No one denies that different types of consultation with various degrees of complexity have been occurring over the last decades. The legacy of colonialism in Canada has made reconciliation a difficult and complicated process. Nonetheless, consultations must be specific, led by the Crown and rooted in communities, not by a parliamentary committee.

As the minister stated in her second appearance, “The duty to consult is not merely a checkbox.”

Her department is currently concluding the process of hearing from First Nations organizations and from rights holders on the second-generation cut-off. The minister stated:

These engagements form the basis for a direct, in-depth discussion with First Nations on how to address changes in the act. Introducing an amendment to Bill S-2 without meeting our fundamental legal duty to consult would repeat outdated processes that unilaterally impose legislative solutions.

The minister goes on to highlight the importance of the process she is undertaking. Let me reference her again at length:

I want to be very clear on this point. Canada must uphold its duty to consult under section 35 of the Constitution Act, 1982. It is the responsibility of the Government of Canada, and it is one that I take very seriously. As a former Grand Chief in my Nation, as a Deputy Chief in my community, it is a position that I reaffirm that we are obliged to ensure that the government respects the duty to consult. That message continues in my role as a minister. It is not one that I will change.

Honourable senators, in this very chamber, we have a long tradition of holding the government to account on its constitutional obligation to consult. During the Forty-second Parliament, in his comments on how it was problematic that private members’ bills here at the Senate and in the other place were not subject to any form of application of the duty to consult, former senator Dan Christmas said:

I wish to put it on the record that, as we struggle to understand and determine how the Senate can and will deal with Indigenous reconciliation, willingly embracing the duty to consult with Indigenous peoples is something that must absolutely occur across Parliament and throughout the whole of government.

At third reading, again during the Forty-second Parliament, when commenting on Bill S-3, which made important changes to the Indian Act on the elimination of sex-based inequities in registration, former senator Lillian Dyck stated:

During the initial study of this bill, the Standing Senate Committee on Aboriginal Peoples heard overwhelming testimony from witnesses that consultation on this bill was very rushed and did not satisfy any duty to consult. . . .

Colleagues, the process of consultation is defined. It cannot be rushed nor can it be done in a simulated way. With the greatest of humility, how can we as senators not take the duty to consult as seriously as the minister does? The duty to consult is not void, symbolic or some secondary administrative step. It is a constitutional right which was hard-earned by Indigenous Peoples — a constitutional obligation which we as senators should uphold and be vigilant about as to its application by the government, as did Senators Dyck and Christmas.

As it stands, by supporting such an amendment, I’m sorry to say the Senate is condoning the bypassing of this hard-earned obligation placed on the Crown — hard-earned by Indigenous Peoples.

As part of our work, we must demonstrate our commitment to affirming the inherent right of Indigenous peoples to “free, prior and informed consent,” to the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan and to the commitments made in the United Nations Declaration on the Rights of Indigenous Peoples itself.

Colleagues, while we continue to correct the injustices of the Indian Act, our actions must reflect these commitments.

Honourable senators, the media paid close attention to our study of this bill, given its direction. They quickly reported on the Standing Senate Committee on Indigenous Peoples’ clause-by-clause review. Readers unfamiliar with our bicameral system could easily get the impression from reading these news reports that the Indian Act had indeed been amended to address the issue of the second-generation cut-off. Without arguing the merits of media coverage of legislation at this stage of the process, the attention generated by Bill S-2 forced the minister to make her views known through extra-parliamentary channels.

Before concluding, I think it is useful to include in our deliberations what the minister said to The Canadian Press. Her message reflects the position of the other place and how firmly the government opposes the proposed amendments.

Minister Gull-Masty explains:

Looking at what the Senate is proposing, this is the work that they chose to do. But for me, I think it’s so much more important to go back to community and ask them, what are the criteria (you want for First Nations status)?

She continues:

Being a status Indian is a construct of the Indian Act. Being First Nations is, what I think, community needs to do the work of defining. That’s part of the collaborative process. That’s where I believe community members, right now, have to take the opportunity to tell their chiefs and councils, “This is what I think; this is how we want to define it.”

Colleagues, in plain language, the minister explains her obligation to rights holders and to communities and her duty to consult. What leaves me perplexed, frankly, is that we are debating changes to a law that we know would not survive a court challenge by the very groups affected by this bill.

Honourable senators, there are two options before us: Adopt this report and wait for the message stage to receive the bill restored to its original form and risk delaying its passage before the April court deadline. Or we can fulfill our constitutional obligation and our long tradition of holding the government to account on its constitutional obligation to consult, not adopt this report, let the minister complete the consultation process, which is due in the next weeks, and wait for a stand-alone bill on the issue that the amendment attempts to address.

For each of the 3,500 individuals and their descendants who will regain entitlement, I respectfully urge you to reject this report so that we may continue to work with the minister and the government in addressing the second-generation cut-off.

Thank you. Meegwetch.

Would the Government Representative take a question?

Yes, of course.

Senator Moreau, are you aware of the 2018 decision in Mikisew Cree First Nation v. Canada, which clearly states:

“The Crown has no legal duty to consult during law making.”

I understand that this is what we do, what we have done and what we must do.

We can certainly add a third option, which would be to pass a bill with thoughtful amendments. This option should be added. We should also have a democratic debate.

Senator Moreau, I’m an Innu woman and therefore subject to the Indian Act. I’m also the first Innu woman to be a senator. The minister — whom I like very much — and I dream of having the same thing, specifically the one-parent rule since the James Bay and Northern Quebec Agreement. Why must my rights as an Indian woman — since we’re talking about the Indian Act — be subject to a duty to consult, when not long ago, in this very chamber, Bill C-5 didn’t receive the same treatment and didn’t face the same reality and the same actions? I didn’t get the sense that there was any duty to consult. Why must human rights and women’s rights, under the Canadian Charter of Rights and Freedoms, be subject to a lengthy process that isn’t required by the court? It’s because we’re debating a bill, but we don’t seem to be applying the same requirement to the government currently in power.

Thank you.

Thank you for the questions, Senator Audette.

You know, in a former life I had the privilege of working closely with Indigenous communities, including Innu communities in Quebec. I have the utmost respect for them. I understand your question, that you don’t want a legal debate on the application of constitutional provisions or my interpretation of Supreme Court of Canada decisions.

I’m well aware of the decision that you’re referring to. The duty to consult has also been set out in other Supreme Court of Canada decisions. I’m sure that Senator Prosper is aware of these decisions as well.

The duty to consult is governed by a very specific mechanism. It’s an obligation imposed on the Crown. It was enshrined not only in the Constitution Act, Canada’s supreme law, but also in the interpretation it was given by the Supreme Court, which oversaw the entire consultation process. The reason why the Supreme Court oversaw the consultation process is that Indigenous communities brought this question before the court and asked to what extent the duty to consult applied to the government and the Crown. The Crown’s duty to consult First Nations was a victory won by the First Nations themselves through the Supreme Court’s interpretation of section 35 of the Constitution.

What I find striking today isn’t the substance of the debate because, generally speaking, when someone is against a legislative matter, it’s because the government sees things one way and the opposition sees them another. There is no disagreement over the substance of the debate here. The minister twice told the committee that she completely agreed with the witnesses about the discriminatory effects of the Indian Act and the obligation to put an end to that and remedy the situation.

However, contrary to the human rights you referred to and other rights enshrined in the Constitution, the Crown’s right to amend provisions relating to First Nations is subject to the duty to consult.

We’ve talked about this several times, and you’ve rightly pointed out on occasion what I mentioned in my speech, which is that consultations have been going on for 40 years. Just saying that consultations have been happening for 40 years doesn’t mean that that consultation satisfies the criteria imposed by the Supreme Court and section 35 of the Constitution Act.

Speaking specifically to the second-generation cut-off, the minister said that consultations carried out in accordance with the Crown’s obligations have been under way since 2023 and will wrap up in December 2025. After the consultations, the provisions can be properly integrated into a bill, and the ultimate goal that you and I share — correcting the inequities in the Indian Act — can be achieved.

The minister added her personal view of consultation, that it is not up to the government to draw up a plan, present it to the First Nations and ask for their agreement. For the minister, consultation goes much further than that. For the minister, consultation is a process that allows the First Nations themselves to define and outline what will eventually be included in a bill to determine their future.

In my opinion, this is the best definition of a nation-to-nation relationship. One nation should not dictate to another how things will be done. Instead, it is about agreeing on how the parties want things to be done. That is the principle of consultation.

I have the utmost respect for the work that the committee has done. I’m not of Indigenous descent. I have read and heard the poignant testimonies of people who say they experience discrimination. No one can come away from this kind of exercise unmoved.

To resolve the problem these people have, the government’s position, and mine, is that we have a duty and an instruction manual — which seems highly simplistic to me — that we can follow to get there and to ensure that the legislation implemented can withstand any court challenge.

I hope that this overly long intervention has answered your question. To sum up, our task is not to decide what is right for them. Instead, we must work together to establish what they think is right for them.

I’m not asking that we give up on taking corrective action to rid the Indian Act of discrimination. I’m asking that we work together to achieve that goal in the right way.

I know that the report by the committee that studied this question is not ill-intentioned. I think that the only disagreement we have concerns how to get there. We all know that every effort must be made to get there.

Before we continue, I would ask honourable senators not to hold their earpiece while speaking. They should place it on their desk or in their ear.

Senator Moreau, would you take another question?

Yes.

Senator Moreau, I will agree with you that Senator Greenwood did an absolutely stellar job chairing this committee process. It was very difficult, and we heard some very difficult testimony. I want to come back to the topic of consultation, which was the thrust of your argument. I want you to react to a couple of quotes.

I’m going to quote Professor Pam Palmater. Any day I can quote her is a good day, in my view. She spoke when we were looking at Bill S-3. Bill S-3 was one of the last times the government made an incremental change to the Indian Act. She said some things in 2017, and she said them again in 2025. I’ll just quote:

There are some things that the federal government can’t consult on — whether or not to discriminate on the basis of race or sex, whether or not to maintain a legislative extinction formula and contribute to an act of genocide . . . .

She is basically telling us that you can’t consult on whether to continue discriminating. She was saying, you can consult, and should consult, continuously, constantly, in the building of that relationship, but not on whether you can discriminate. I’d like your reaction to that.

I have a second quote from Senator Joyal, who was present and argued on the issue of Bill S-3. He said in November 2017:

We are here debating this because we insisted, because the Senate stood up to its constitutional duty to speak for a minority. Now the government asks us to accept their word, that one day, along the road, after consultation, everything will be fine in the land of bounty that is Canada. On the basis of past history, should we believe this?

If you could react to the quotes from Professor Pam Palmater and former Senator Joyal, I would appreciate it.

I certainly understand the quotes you just shared.

This consultation is not about discrimination or non-discrimination. The Charter of Rights and Freedoms and the Constitution say there must be no discrimination, and that’s essentially what those quotes are saying. The purpose of consultation is not to figure out if we should perpetuate a situation that conflicts with the Constitution. As I said to Senator Audette, that’s the reason why the government and members of the commission are essentially on the same wavelength. Discrimination must end. This is not a consultation about discrimination. We know it exists, and we know changes need to be made.

To continue in the same vein as the quote from Senator Joyal, the Supreme Court and the Constitution require us to conduct consultations when changing the legal situation with regard to what applies to Indigenous nations. What is this duty? What the minister came to clarify further, beyond how this should be done, is that it must be done within a structured framework. As the minister stated, and as indicated in the report she submitted, to which I referred in my speech, consultations within that structured framework began in 2023. These consultations weren’t conducted with the aim of determining whether the Indian Act is discriminatory; I think everyone has already come to that conclusion.

Consultations began in 2023 to determine how a solution could be reached to resolve the issue related to the second generation.

This consultation is not intended to determine whether the current situation is discriminatory; clearly, it is. Rather, the consultation is to determine, in your opinion, what solutions should be implemented to address the second-generation issue.

The minister went even further during her testimony. We were all there when she testified. She said that the issue of second-generation discrimination is very complex in that the solutions are different or could be different from one community to another. That is precisely one of the objectives of consultation. The minister believes that consultation does not mean painting a picture and submitting it by saying, “This is what I think is right,” but rather saying, “Explain to me what you see as a problem and what you think is the best way to fix it.”

This consultation is being conducted with a view to achieving reconciliation. What does reconciliation look like when negotiated on a nation-to-nation basis? It is certainly not for one nation to tell the other what it believes is good for it.

I will say it again: In the end, I see no malice or ill intent in the committee’s recommendations. I see only testimony that adds to the specific consultation process required of us under section 35 of the Constitution Act and the provisions and clarifications provided by the Supreme Court in order to arrive at the best possible solution.

I know you’re a lawyer, so I’ll raise this point. There is a solution that, were it to be integrated into legislation, would withstand any attempt at a legal challenge on the basis that the process was not in fact followed correctly.

We have two situations with Bill S-2. It could make things right for 3,500 people. I imagine you too have heard, and I have read this in some of the evidence, that most of the people said that the proposed content of Bill S-2 would resolve the situation, and we should move forward.

The important issue you raised — and it’s more of a political issue than a legal one — is this: How can people trust that the government will follow through with this process and introduce a bill to resolve the second-generation issue? This is a political issue that comes down to the credibility not only of the minister, who actually said as much to a Senate committee, but also of the government, which supports its minister’s intention to introduce a bill.

I am the Government Representative in the Senate, and I don’t have the authority to commit to introducing a bill myself. The best answer to your question is the credibility of the government, which is committed to answering that question.

Legally, the only way to respond is to pass legislation that will have followed the procedures required by the Constitution, legislation that is guided by the Supreme Court and can truly remedy this situation.

Senator Clement, do you have a brief supplementary question?

Only if we can return to legal issues, because I don’t really agree that this is merely a political argument.

That’s not what I said.

From a legal standpoint, we know that Bill S-2 is a response to the Nicholas case, but Bill S-3 is a response to the Descheneaux decision.

Bill S-3 goes further than the court’s recommendation, but without any consultation. The committee went a little further than what the Descheneaux decision suggested. We have the ability to go beyond what the courts have recommended.

I would like to add something else, and I’m not sure how you will respond, but the Crown doesn’t take action unless it needs to intervene in a dispute involving a First Nation.

I will respond to the last part of your question. I didn’t mean to suggest that your argument was strictly political. I want to clarify that. As for the last part of your question, it is true that governments tend to react when the courts impose obligations on them. Bill S-2 is a good example of that. A court ruling has been handed down and a deadline has been imposed.

I would say — and I did say this in the introduction to my remarks — that I have a great deal of respect for the work done by the committee. I get the impression that the government has listened very carefully to everything surrounding Bill S-2 and has gone above and beyond to address the issue related to the second generation. There have been newspaper articles and numerous testimonies. The Senate committee report indicated that we absolutely must move forward on this.

The minister appeared twice before the ministerial committee to make a commitment, and she reiterated that commitment in a public statement that was reported on by the media. While I don’t want to minimize the importance of the courts, I would say that the court of public opinion is probably already seized of the issue. Furthermore, I’d like to reiterate what I said earlier regarding the question of credibility. Both the minister and the government have an interest in resolving this issue, so in that regard, as the Government Representative, I’m hopeful that action will be taken.

Senator Moreau, thank you for your comments. I appreciate them. I have a couple of questions.

With respect, this bill isn’t a movement of the government. It wasn’t initiated by the government out of the goodness of their hearts. We all know that. It was done after they fought and lost a long and bitter court battle. It was determined that these people had been discriminated against.

It goes to credibility. How is it credible for a government to fight tooth and nail to deny these things and only grant them when the court orders them to? Those of us who were here in 2017 were in the exact same moment, when the government was responding to a court order and promising us that they would fix this problem.

First, how do you square the credibility you talk about in that situation and the situation we are in now?

Second, we made another amendment by virtue of deletion. We deleted a clause that prevented anyone from receiving or seeking compensation for this. You didn’t mention it. Does that mean the government is okay with that deletion or are we to ignore it and hope it comes back? Thank you.

I will answer your question in French. First, with regard to the first part of your comment, there’s nothing I can really say to ease your doubts about the fact that the bill was indeed introduced in response to a court ruling that the government opposed.

Senator Tannas, I will raise the following argument because you mentioned credibility. I remember having this conversation with you immediately following the minister’s testimony. To my knowledge, and I did not do any historical research, this is the first time that a government minister responsible for Indigenous Services Canada is from an Indigenous community herself. I was extremely touched by the testimony that she gave before the Senate committee when she said the following:

I am deeply affected by the issue of second-generation discrimination. It really hits close to home because my own family was discriminated against on this basis.

You referred to the past, but the minister talked about the future, and she said, “I am not your normal, average minister.”

I am a minister who has the opportunity to implement measures that will correct a form of discrimination to which I myself have been subjected.

In my opinion, the minister’s credibility is tremendous. Her intentions are sincere; that’s clear from her testimony. I think that addresses the very legitimate concern you raised about what the government did in the past. I don’t want to make this about political credibility, but the Prime Minister gave these responsibilities to a person from Indigenous communities, a person who sat alongside Indigenous Chiefs, alongside senators sitting in this chamber today who were former Indigenous Chiefs, and said:

You and I, when we were Indigenous leaders in our respective communities, we fought tooth and nail to ensure that the Crown is subject to a requirement to consult.

Indigenous leaders across this country, former and present, fight for the right daily to ensure that the right to be consulted is awarded to them.

I can’t imagine a person who fought like that and who was, to borrow your expression, an adversary, becoming a minister of the Crown and not implementing the elements that made her who she is today, a great Indigenous leader.

On the issue of credibility, Senator Tannas, the future will tell. I have no more arguments to present you with, but I believe that the conditions confronting us today are far different than the conditions confronting the Senate in 2017, because the person leading the charge on this important issue is someone who was personally a victim of discrimination, and who now has some of the tools needed to correct the situation.

On your second question, as I understand it, the government is showing some signs of openness. I wouldn’t want to get sidetracked by technicalities, but whether or not the provision is included in the bill won’t have much of a real impact on the way things work out. That’s what I gathered from my conversations with legal experts on the issue. I also don’t get a sense that the government would be totally unreceptive to a direct argument on this issue.

I would like to talk more about the duty to consult. The witnesses who spoke at the committee, some of which were recommended by the minister’s office and her government, clearly stated that they are ready to move forward on issues relating to the second-generation cut-off. Those were people elected by their communities, people who have been there for a long time. Some of them said they weren’t there 20 years ago, but they’re there now.

What do we do about those elected leaders, who are ready? On the one hand, we have a speech from someone who is a former Chief, and some of those who are elected representatives now are ready. I think sometimes people use speeches.

Senator Moreau, here’s what I want to ask you. I’m Innu. I’m a senator, and the Indian Act affects me. Many Chiefs came to see us, so why wouldn’t we rely on our credibility, our expertise and our knowledge to resolve this discrimination that has been going on since 1985?

The credibility of the people who came to speak is not being questioned in any way. Senator Audette, no one is questioning the sincerity of the people who appeared before the committee, and nor is the minister. In fact, as you mentioned, it was the minister’s office that recommended that some of these individuals appear before the committee as witnesses.

However, there is a difference between accepting the statements made by individuals who appear before a committee and respecting the obligation to follow a procedure — which I agree may seem cumbersome — that the Crown took on through the Constitution Act and that the Supreme Court has imposed.

Let’s be clear. When the Innu Chiefs who appeared said that they are ready, I see that as good news. However, no matter how ready they may be, the Crown cannot be exempted from its duty to consult those directly affected by the measures it wishes to implement and to follow the constitutional consultation process. That is essential. The consultation will only be easier for them. The very validity of the legislative measure to be passed is at stake. We can’t say that we’ll move any faster, because we run the risk of ending up with legislation that isn’t worth the paper it’s written on.

Senator Moreau, you spoke earlier about political credibility and the minister’s political credibility on this, but when I look at who voted “yes” to these amendments at the committee, I see a lot of political credibility from the Indigenous population of Canada among our Senate colleagues here. All of these descriptions are from their own Senate bios: Senator Francis, an Indigenous former Chief; Senator Greenwood, an Indigenous scholar of Cree ancestry, a leader in her field of medicine; Senator Audette, a recognized Indigenous leader of Innu descent; Senator McCallum, a First Nations woman of Cree heritage, a leader in her field of medicine; and Senator Prosper, a former Mi’kmaw Chief.

Given that, wouldn’t you say that the political credibility is significant when we are looking at a vote of 10 to 1, with all of those senators being on the side of the 10?

I certainly did not intend to minimize the credibility of any of the members in this room and certainly not of any senators of Indigenous descent who are members of the Standing Senate Committee on Indigenous Peoples. That is not the issue; the issue is we have a constitutional obligation. No matter how credible we are here, as the chamber of sober second thought, we don’t have the possibility of adopting a law and ensuring this law will be binding if we do not submit the Crown to the obligation of consultation.

It is not a question of political credibility. It is not a question of credibility among members of the Senate. I’m honoured to sit with such credible people — all of them — but that is not the question here. The question is whether we want to uphold the obligations of the Crown and uphold our duty to respect our constitutional obligations. This is what it is all about.

Yes. I will try to answer your questions one by one.

First, do we care about court deadlines? Of course, we do. The government cares about court deadlines. That’s the reason why we want Bill S-2 to be adopted, because Bill S-2 is the response to the Nicholas case. That brings me back to my basic argument. What the committee is trying to do by amendment, the government is not opposed to — the finality of resolving the second-generation cut-off — but the government is subject to certain obligations imposed by the Constitution, the rules and the precision laid out by the Supreme Court of Canada in many decisions.

That is why the government asked to adopt Bill S-2 as it was originally proposed and then to adopt, in a stand-alone bill further down the road, what else has to be adopted to change the Indian Act. This is the commitment of the minister. You were there; I remember vividly that you were there, and you asked a question. I know how involved you are and how emotionally involved you are in that situation. I understand and respect that totally.

But this is the answer of the government, and this is the commitment that the minister has given to you and to all members of the committee.

Senator Moreau, today I’m hearing you speak about the right way to get there to end the second-generation cut-off and the federal government’s duty to consult. I have heard that several times. I’m mindful that in June 2025, Bill C-5 was passed quickly despite vociferous concerns voiced by Indigenous leaders about a lack of consultation. At the Standing Senate Committee on Indigenous Peoples, in the committee report and among senators here today, we have heard that there has been 40 years of government consultations and discussions with community about ending the second-generation cut-off. Can you help me understand why it seems that the duty to consult seems vital for some legislation and not others?

Thank you for the question. If you don’t mind, I will answer in French.

You mentioned Bill C-5. I apologize to Senator Audette, I should have answered that question because Senator Audette asked why Bill C-5 hadn’t gone through the consultation process.

The main reason is that Bill C-5 doesn’t directly concern the rights of Indigenous communities. Quite the opposite, Bill C-5 aims to establish an additional consultation process and even a special committee whose composition was the subject of recommendations provided to the government. Under a process provided in Bill C-5, the committee would be composed of Indigenous leaders who would ensure that the rights of Indigenous communities are upheld after they’re implemented.

Bill C-5 governs the implementation of major projects, and so it’s meant for wide-scale implementation, with no immediate and direct impact on rights applicable to Indigenous nations.

Bill S-2 is entirely different. It directly concerns these rights and seeks to correct a situation identified by the court in Nicholas.

Consultation under section 35 of the Constitution Act wasn’t required for Bill C-5, but it was required for Bill S-2. Moreover, if we take amendments proposed by the members of the Indigenous Peoples Committee into account, those provisions directly affect the Indigenous peoples issue.

I’ll be very frank with you. The government could have raised a point of law in the Senate claiming that the amendments set out in Bill S-2 are actually outside the scope of Bill S-2. The government chose not to go that route for one very specific reason. It doesn’t want to go that route because it doesn’t want to look like a cold technocrat that has no intention of resolving the situation.

In fact, the minister herself is emotionally involved. The senator alluded to that earlier in a question posed during Question Period when she said some harsh words were exchanged. Why? Because we’re keenly aware of the fact that the issues raised by the amendments proposed by the committee are highly emotional due to the inequities Indigenous peoples were subjected to. I recognize that, and the government also recognized it in its remarks on the whole.

The choice being made today seems to be to briefly ask why this is being done at the committee report stage. It is to ensure that all senators have the opportunity to hear the government’s position. What I’m doing today is not only reiterating the commitments made by the minister herself very publicly before the committee, but I’m also saying that Bill S-2 doesn’t address these issues and that the problem will have to be fixed another way.

The process to do so is already under way, since specific consultations meeting the criteria of section 35 and the decisions of the Supreme Court of Canada have been ongoing since 2023 and are expected to be completed in December 2025, that is, in two weeks’ time.

I think I’ve addressed both points in your question. If not, I’ll do so by answering a supplementary question.

I know there are other senators who have questions. Thank you for that. No supplementary.

Senator Moreau, thank you for your comments. To your last point, I think many First Nations have very different views about whether Bill C-5 directly impacts, but that’s not the discussion today.

I want to come back to the point you raised about the minister indicating she was serious in her commitment to this. As I said at committee and as I said privately to her — as many others did — I have no doubt in the sincerity of her conviction to solve this issue. However, the minister did say at one point that consultations had started, and then at another point we had additional evidence that they had not started. She said that stand-alone legislation would be introduced in the coming months but had no specific date.

I was here in 2017 and — more to the point — Sharon McIvor, who testified, talked about hearing this kind of commitment from 18 successive ministers responsible for this area.

I also was here when we passed the disability benefit, and we heard from the first disabled minister responsible for that benefit a strong commitment that she would see that through. She was later removed from cabinet. We saw recently how precarious the position of the government is. We know that to develop legislation after consultation it is likely unrealistic that we would see something sooner than two to three years down the road unless you can tell us differently today. Is there is a cabinet order currently for stand-alone legislation?

I was there when you raised that issue in committee, Senator Pate, and during some discussions you had with the minister.

As you know, I can’t share information that would be considered cabinet confidence. I have to abide by the rules when I attend cabinet committee meetings.

Regarding your question, I’m very pleased to see that you’re not questioning the minister’s intentions, her good will or her credibility when she says she wants to tackle this problem.

Regarding the distinction you made between the minister and the government, which is absolutely fine, I’ll refer you to the answers I gave Senator Tannas and other senators who spoke: Issues around the importance of resolving the discriminatory second-generation cut-off have reached a wider audience than the Senate. The government has made promises. The media — which I called the people’s court, though that may be an exaggeration — and public opinion are aware of the situation. It’s a matter of credibility and honour for the government to follow through on the commitment it made.

Regarding the substance of the bill — and I believe you’re among those who accept this way of seeing things — Bill S-2 will resolve the problems associated with the issues argued before the court in Nicholas. Passing Bill S-2 as it was tabled would benefit at least 3,500 people currently waiting to have their situation regularized.

So I will reiterate the government’s position and that will conclude my answer: let’s resolve what can be resolved right away, while ensuring that the legislation will remain in force once it’s passed.

Since you’re a legal expert, let me run this by you: What’s the point of having the Senate support amendments to a bill that the House of Commons would reject and that would require us to come back later, at the risk of exceeding the time limit set for the government by the court to pass provisions resolving the issue raised in Nicholas? Furthermore, what’s the point of having the Senate support a provision that, if adopted in violation of constitutional obligations provided under section 35, would in all likelihood be legitimately challenged in court and lead to the act being struck down?

I believe in leaving well enough alone, and in this case, I suggest to the senators that well enough is the right course, although it would have been best to have followed that course sooner.

I request a supplementary, because I was asked a question. Thank you.

Senator Moreau, the opportunity here, and the obligation to consult, is on how to end discrimination. The Charter obligation is to end discrimination.

Without the amendments that were made in committee, two things will happen. I just want to summarize what we’ve already heard. The first is about ending the discrimination. The government says it wants to, so why wouldn’t it accept the Senate amendments? That seems to be a very obvious question.

Secondly, if there were a bar to pursuing further legal action, if, in fact, the government were sincere — I’m not talking about the minister or you; I’m talking about the government — at this point, we would likely have a cabinet order for stand-alone legislation, which presumably the government would want us to know about, and we would not have a bar on future action.

Passing this legislation as it is — I think we all have to be clear — means that we’re leaving it in the hands of future people like Sharon McIvor, the many witnesses, Dawn Lavell-Harvard and her children, the many senators in this chamber and their grandchildren to bring forward this legislation. Why not just solve it now? Why would the government not do that?

To the question of why, the answer is because there has been no prior consultation concerning those specific dispositions that are the amendments proposed by the committee, and since there has been no previous consultation on those dispositions, they could be challenged successfully in court. That is the answer to the question.

As to whether there’s a cabinet order at this point, I hold to the previous answer I gave you, and I know that you understand why perfectly.

I didn’t intend to stand, but I must stand and participate in this very helpful debate.

I thank you, Senator Moreau, and I thank all of my colleagues for engaging in this absolutely critical debate.

It’s critical to those who have been waiting for so long to have their rights restored, or at least given to them, to recognize them and to avoid further discrimination and the extinction that we’ve been hearing about.

I was a member of the Indigenous Peoples Committee for almost seven years. I was a part of the Make it Stop! report, and in good conscience, I have a really hard time leaving it as it is, trusting and taking yet another leap of faith.

We keep being asked to take leaps of faith, and it’s very hard when many of the times we’ve taken leaps of faith — many of which have been mentioned here today — we actually fell. What was promised was not delivered.

For me, one of the real serious issues here is, frankly, our credibility as Canada’s chamber of sober second thought.

I heard what you said, and I believe you — that if we pass this bill with these amendments, as was passed by committee, there’s a very good chance it will be rejected by the House of Commons. There’s also a chance — I’m not sure this is necessarily the way it will go — that we may not meet the deadline. That’s an arguable point.

I’m concerned about our credibility as a chamber. Did we not listen when we produced the Make it Stop! report? Did we not listen to the many very credible witnesses who have a personal stake in the outcome of this?

I want to ask you, Senator Moreau — I know Senator Pate was trying to get at this — do we have any evidence or assurance that there is a plan in place if we were to pass this bill unamended and complete the important piece that the rest of the people — and the generations of people — who are waiting for this will be served and be served soon? I’d like you to talk about our reputation as a chamber and our job as senators, not just to listen, but to act on what we hear. Also, what is the government saying in terms of making assurances that action will be taken to resolve these issues?

To the first part of your question regarding credibility and what we should do as senators, I hope the answer I’m about to give you won’t be regarded in any way as a brutal argument.

I would say that one of our obligations as senators — and this is part of the oath we swear when we become a member of this chamber — is to ensure respect for the Constitution of Canada. The primary duty of a senator, then, is to ensure respect for the Canadian Constitution.

I can imagine senators saying, “Sure, but the Constitution says we must not discriminate.” I agree, and we will always agree on that. However, we also all agree that the Indian Act is discriminatory, and I even used the words “shameful colonial past” in my opening remarks as a member of the government. Those are extremely strong words.

Our obligation and our oath of office as senators to uphold the Constitution of Canada applies to all provisions of the Constitution, including section 35, which is the duty to consult. I know that when we see certain rights being denied — which understandably stirs up intense emotions because of the discrimination these people have suffered — this view may feel overly legalistic, but it is our duty. This duty doesn’t get put on hold; it validates our future actions and the fact that those actions will successfully pass the test of the courts.

What credibility would the Senate of Canada have if there was a possibility of us passing a law while knowing full well that it falls short of our constitutional obligations? I believe that our credibility is tied to the fact that what must be done is not necessarily easy, but that what we do must comply with a provision that is part of a society that believes in the rule of law. The rule of law imposes an obligation on us here, and First Nations representatives have rightly demanded that we take action, and we would not be fulfilling that obligation by passing amendments that haven’t been subject to consultation.

Regarding your second question, why should we wait when there are people waiting? All pettiness aside, there are 3,500 people waiting, people who are so close to having a law that, if passed by April 30, 2026, will resolve their situation once and for all.

Perfect is the enemy of the good. The good requires us to ensure that we resolve what we can resolve correctly and in accordance with our constitutional obligations, so that those 3,500 people have their status regularized. The best thing to do is to continue our work to eliminate the discrimination contained in the Indian Act — discrimination that we all unanimously condemn — but in such a way that the final solution can truly be implemented correctly, fairly and without issue.

Thank you very much, Senator Moreau. I didn’t hear any assurances, but maybe you’ll give me those in a minute.

There is all this talk of emotion. It is, of course, emotional, because you’re speaking of people’s rights. But, frankly, I’m responding from a position of rationality, and I don’t think it’s rational to keep doing the same thing when that same thing doesn’t work again and again. Let’s be honest here: It’s not emotional to be trying to push, in whatever way we can and using whatever mechanisms we have as a chamber, to finally, once and for all, move forward and respond to not just people’s but nations’, groups’ and communities’ demands — their pleas — for us to do the right thing and get the job done. I applaud our committee for the very brave, courageous and important work they did.

I want to be clear: What I’m putting out here and what we’re hearing from others is rational. It’s not just emotional. It’s both of those things, and it’s people wanting to do the right thing and finally finding ways to do so.

I wasn’t reducing your argument to an emotional one. I am well aware that your intervention is also based on rational criteria, and I welcome that. What I am saying, however, is that the Senate made its voice heard loud and clear through the committee’s work. The minister heard our message. She confirmed and reiterated that she agrees with the objective being pursued, but she pointed out that we have obligations regarding how to achieve it. Why do things that don’t work? I say that because it would be pointless to adopt a provision that deals with the rights of Indigenous Peoples without first fulfilling the necessary obligations.

Regarding assurances, I’m sorry, I didn’t mean to dodge the question. The minister has issued a statement. In terms of my obligations and the oaths I have sworn as a member of the Privy Council, I’m not in a position to reveal any discussions that may be happening in the other place on this issue. I would like to reiterate my previous answers, specifically, that the government, through its minister, has publicly committed to finding a solution to the discrimination that persists in the Indian Act and to the issues that are not addressed by Bill S-2.

I want to share some words from B.C. First Nations, Senator Moreau. Chief Barbara Cote told our committee to:

Take this opportunity to eliminate the second-generation cut-off now. You cannot continue to consult on rights violations. You cannot consult on legislative extinction, which amounts to genocide.

It has been 40 years since the second-generation cut-off came into effect, and in the view of B.C. First Nations, it is time to stop consulting and address the rights violations and end the post-1985 sex and race discrimination.

I would like to hear your response to that.

Second, it has been 40 years. How can or will the government take into account the different conversations and consultations that have occurred on this topic over the past 40 years?

The government is taking into account all the information that has been communicated on the issue of discrimination against the second generation. I said in my introductory remarks that the government has been consulting on this issue for 40 years, but the phrase “the government has been consulting for 40 years” does not imply that the nature of the consultations and the constitutional obligations relating to these consultations, which have been further clarified in recent Supreme Court decisions, have been followed.

The debates we are having today in this chamber, however serious they may be, do not fall within the definition of consultation under section 35 of the Constitution Act. The conversations that may have taken place between First Nations representatives and previous governments do not fall within the definition of consultation under the provisions of the Constitution Act. The consultation provided for refers to a duty that is strictly regulated by the Constitution and the courts.

I want to thank Senator Pate, who pointed out during her remarks that the minister initially said that consultations had not started but later clarified that consultations on the provisions meant to fix the discriminatory second-generation cut-off had started in 2023 and will conclude in December, next month. These are consultations. In December, the last 40 years should no longer constitute an argument for the government, since the consultation will have been done. In December, January and February, people will be able to ask the Government Representative in the Senate, the minister and the Prime Minister: “You’ve finished the consultations, so what do you intend to do moving forward?”

I heard the following question asked in a number of interventions: “Why should we believe the government again?” After today’s pleas, once the consultations end in December, given the minister’s statements and commitments, the government will have a much harder time saying that there is still a duty to consult, because the consultations will be over. In theory, the Indigenous communities affected by the rights in question will have proposed solutions, and the government will have a duty to respond.

I won’t try to deny that, in the past, governments have said things and not done them. It would be non-partisan to say that no government ever kept all of its promises, and everyone here is old enough to know that.

We are dealing with a deeply emotional issue, an issue based on eminently rational considerations. This debate is in the public eye, and the core issue is of great importance to senators, to the members of the commission and to the minister herself. I would therefore have a hard time imagining the government keeping mum on this issue for years to come.

Senator Moreau, I would like some clarification. The consultation process regarding the amendments proposed in the committee report ends in December.

What is this commission? Is the consultation being conducted by the commission or by the government?

The consultations end in December. I dare to hope that the department has gotten more efficient since the arrival of the new government, otherwise it will need to be reviewed. I have been here for 23 years and I keep hearing practically the same things.

Given that we are the chamber of sober first thought in this case and that the consultation process ends in December, is it possible for us to send the report with the amendments to the other place? The other place would get the relevant department to analyze the consultations and look at the necessary legislation. If necessary, the other place could provide the sober second thought by proposing amendments or improvements or removing certain elements in order to meet the April deadline, couldn’t it?

If there’s goodwill — and I have no doubt of yours at all — and seeing all the senators who share the same opinion, we could send it off quickly. If the members of the other place don’t agree with us, they could return the bill to us before the end of March and then we could tell them whether we agree with them or not.

In this case, I believe that’s our role. What do you think?

How can we not listen carefully to the wise words of the dean of our Senate?

I can tell you, Senator Ringuette, that what we say here today will reach the other place one way or another. I have no doubt that the recommendations in the report, in its current form, regardless of the decision the Senate makes on how to proceed with this report, will also be communicated to the minister and to the other place. As far as I’m concerned, I can easily commit to forwarding the report directly to the minister’s office this afternoon. There’s no doubt about that.

Now I’d like to address the technical aspect of the recommendation you’re making. In order for a provision to be passed into law, it must be subject to consultation. The amendments we’re discussing here have not been subject to any consultation. They relate to issues dealing with the discriminatory second-generation cut-off. This issue has been the subject of consultations since 2023 and the consultations will end in December 2025. Based on these consultations, elements of the proposed amendments may eventually be included in a bill, or perhaps in another form, to be proposed by the government.

Since the amendments were tabled before any consultation on them took place, they can’t be directly transposed into a bill. That would not meet the consultation criterion. Any suggestions proposed in the form of amendments or otherwise could, following consultation — and if the groups consulted and the government so desire — form part of the solutions.

I have not conducted a detailed legal analysis, but I assume that there are likely elements proposed in the amendments that should be included in the solution.

It is important to know that the discussions we are having today, which are fundamental, will be heard in the other place one way or another. How will the government respond? I don’t know. I can’t make any promises. But I do believe that the seriousness of the discussions we are having here today will be reflected in the government’s deliberations at the end of the consultations.

First, I would like to thank Senator Greenwood and Senator Audette as well as the committee and Senator Prosper in our group for the wonderful, extensive work that they have done.

As a non-lawyer, I’m rising because I’m wondering how a regular Canadian would think about this. I’m thinking about the people watching, and the phrase that went through my mind is “Justice delayed is justice denied.” I did a little bit of research, and I came up with a paper entitled “Is justice delayed justice denied? An empirical approach.”

They looked to analyze the relationship between judicial timeliness and the quality of justice across 175 countries. What they found, unsurprisingly, is:

Assuming the validity of our estimation strategies, our results suggest that countries characterized by fast judiciaries also enjoy high levels of quality of justice.

My question to you, Senator Moreau, is justice delayed justice denied in this case? How long is too long?

The maxim you are referring to is one that is generally used in law. I am not looking to criticize or give a law lesson, but it is generally used when talking about access to the courts. Anyone who has a right and wants to go to court must be able to do so within a reasonable time frame. Otherwise, even though the right exists, it will not be the courts that decide. This is tantamount to denying the existence of a right.

In my view, this maxim does not apply in the case of legislation, and certainly not in the case before us. Here, we are not talking about Bill S-2, but rather about the amendments that the committee wishes to make to Bill S-2. I am not talking about whether the amendments are justified or not. Essentially, and I want to make this clear, the minister, the government and I all believe that the Indian Act must be amended to eliminate the discrimination it contains.

The difficulty we face is that constitutional obligations are obligations related to our duty to consult before making amendments. The government believes that this ongoing consultation process could lead to solutions that could be incorporated into a bill specifically designed to resolve this issue.

Essentially, it is a different way of looking at the method that should be proposed, and the government believes that a law that receives Royal Assent without having been subject to the consultation process could be deemed invalid if challenged in court.

I responded to one of our colleagues a little earlier by saying that we have an obligation, as senators, when we take the oath of office and become members of this institution, to uphold and defend the Constitution of Canada, not to pick and choose the parts of the Constitution that suit us, but to defend it in its entirety.

As we heard earlier, the Constitution prevents discrimination. This consultation isn’t about whether the act is discriminatory or not. I think we all recognize that the Indian Act is discriminatory. However, the matter before us is that the amendments we make have to follow a specific procedure, a procedure hard won by Indigenous communities. That’s what we must respect, and that is the Crown’s obligation.

Senator Moreau, earlier you said the House of Commons might not pass this if we in the Senate sent the bill back to the House of Commons — not back, sent for the first time — with these amendments. But let’s remember this bill is numbered as Bill S-2, and that numbering means that the government decided to initiate this bill in the Senate. That was your government’s choice.

If the Senate decides to amend this bill, the government will have to deal with it. The House of Commons routinely amends C-bills in their house before they send them to us all the time, government bills or not government bills. I would also like to point out the government in the House of Commons currently has a near majority of MPs.

Well, Steven Guilbeault just quit cabinet, so I don’t know if he’s staying in caucus, but you’re pretty close to the number you would need, so, hopefully, you can get some support there for Senate amendments.

I would also point out that two of the Indigenous senators I referenced earlier who voted yes to Bill S-2 amendments at committee are lawyers, and three out of the remaining five senators who voted yes to these amendments at committee are also lawyers and, as such, would be keenly aware of the constitutional obligations that you referenced earlier. How would you respond to those two matters?

With regard to your question about how the Senate bill will be received by the House of Commons, I would say that the answer can be found in the minister’s public statements. The government is opposed to the amendments because they do not comply with the constitutional duty to consult.

With regard to the second question about how I feel about the fact that some senators are lawyers and that they voted in favour of the amendments, I don’t want to speak for them. I am telling you the government’s opinion. As I said earlier, I have a lot of respect for all of my colleagues and for the work that they have done. You had to be at committee to hear the testimony. Lawyer or not, this is not an easy situation.

I understand the intention and I do not think that anyone is acting in bad faith or that they have any ulterior motives in speaking in favour of the amendments.

I think there are two ways of looking at things. One way would be to say that the Senate is clearly sending a message to the government that it should take quick action in accordance with these amendments, because they outline what we want it to do. In my opinion, the government has received that message. The minister herself said it. She appeared before the committee more than once.

Now, she’s saying that since Bill S-2 in its current form seeks to address the status of 3,500 people, since a court has issued its opinion and since the bill addresses the court’s request set out in Nicholas, the bill must be passed.

As for the rest, you and I won’t often agree on partisan aspects of policy, but maybe we can come to terms on specific situations and on the importance of the state and the Crown’s obligation to comply with the Constitution regardless of what opinions legal experts might throw around. The Crown itself believes in its obligation to comply.

You and all of our colleagues will have an opportunity to challenge the government’s sincerity if it fails to act in the short or medium term, after Bill S-2 is passed, to end the discrimination arising from the Indian Act, which the minister herself recognizes.

Senator Batters, I think you have enough experience in politics to know that the government would have a lot fewer cards to play if it didn’t act on the minister’s commitments.

I would like to echo what Senator Pate said earlier, specifically, that we have seen this in the past. Governments that have done so have probably paid the price for failing to honour formal commitments on issues as fundamental as those we are discussing today, namely, ending discrimination against Indigenous Peoples at a time when the government has embarked on a process of reconciliation and wishes to establish a relationship for nation-to-nation negotiations. It seems to me that any defensive arguments that might follow would be rather tenuous.

You didn’t want me to answer Senator Audette’s first question; you confirmed that the minister made a commitment concerning the timeline for introducing a bill. I can’t make that commitment because my powers are limited. The minister can make commitments that I don’t have the power to make.

However, I can confirm that the consultations currently under way will end in December. The minister will receive a report at the end of the consultations and will follow through on the commitments she made before the Standing Senate Committee on Indigenous Peoples by proposing what she considers to be the best way to resolve the issue.

As I understand it — and as I think you and Senator Audette understand it — the minister has made a commitment to submit a proposal to resolve the issue of the discriminatory second-generation cut-off.