Honourable senators, today I stand to speak at the report stage of Bill S-2, An Act to amend the Indian Act (new registration entitlements).

Since our discussion last Thursday, a recurring question has echoed in my mind over the last few days: When we hear the Speaker’s words after debate at the report stage, “Are senators ready for the question?” what exactly is the question?

As I understand it, at this stage, senators are fundamentally being asked, “Do you trust the work of the committee?” We are, all of us, experts in something — that is how we get here — but none of us are experts at everything. We rely on Senate committees to develop an expertise in certain topics. It is a combination of past experience, lived experience and years of sitting on committees that enables senators to develop a certain expertise in certain topics. This uniquely positions them to be able to consider legislation on those subject matters that can, at times, be quite complicated. They report back on their work to the main chamber, and we use those reports to guide our work.

Senators without the subject-matter expertise often trust the senators on committees to help guide them. Who, then, do the senators on committees trust for guidance and information? Our witnesses.

As Senator Greenwood noted in her speech, we held 12 meetings and heard from 62 unique witnesses. We received and published 49 briefs from organizations and individuals across Canada. Senator Greenwood also noted that:

. . . there was near-unanimous agreement that it did not go far enough in removing ongoing discrimination that affects First Nations People to this day.

As Senator Moreau so eloquently and humbly put it:

. . . 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.

Well, I am Indigenous. Of the 10 senators who voted in committee for these amendments, five of us are First Nations. For reference, there are 11 of us in this entire chamber. Four of them do not sit on the Indigenous Peoples Committee, and two others were absent that day. That means five First Nations senators and five of our allies were united in our belief that, based on all the testimony and the briefs we received, these amendments were necessary.

Senator Moreau asked senators to reject this report on the basis that government has a constitutional duty to consult. He provides the following in response to a question from Senator Clement:

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.

Colleagues, this discrimination has been ongoing for 40 years. We must weigh these comments with the testimony we heard in committee, testimony from people like Dr. Pam Palmater, who said that government cannot enact yet another bill to get rid of the second-generation cut-off “. . . with these incrementally tiny steps while having an iron grip on the legislative extinction in disappearing Indian formula.”

Testimony from people like Zoë Craig-Sparrow, who said, “You cannot end discrimination incrementally.”

Testimony from people like Cora McGuire-Cyrette, who said that:

. . . 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.

Well, we all know what happened with consultations involving Indigenous rights-holders through Bill C-5 in this chamber earlier this year. It was with great effort that we heard from just one Indigenous rights-holder Chief Moore-Frappier through our Committee of the Whole.

Yet, curiously, when we get a long-standing topic such as the second-generation cut-off, this government says that they will refuse to proceed until — you guessed it — more consultation has happened. There was no consultation undertaken with rights-holders when the second-generation cut-off was first introduced in 1985.

Colleagues, we cannot allow consultation to be weaponized in this way. Senator Moreau tells us to reject the report on the basis of our constitutional obligations around consultation, but what about our obligation to uphold the Charter? What about our obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDRIP, which creates a statutory requirement to ensure that all laws of Canada are consistent with UNDRIP?

For reference, Article 6 states, “Every indigenous individual has the right to a nationality.” Article 9 states that:

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 28 speaks to the right to redress, including “. . . just, fair and equitable compensation . . . .”

Senators, what about our constitutional duties and roles as Canada’s chamber of sober second thought?

In 2014, the Supreme Court of Canada ruled in several reference questions on Senate reform. It noted our appointments allow for “. . . freely speaking one’s mind on the legislative proposals of the House of Commons.”

Our own website states that we “. . . scrutinize legislation, suggest improvements and fix mistakes.” We defend “. . . regional interests. . .” and give “. . . voice to underrepresented groups like Indigenous peoples . . . .”

The minister points to a solution that needs to come from community as part of their department’s collective, collaborative process. Our committee heard from all but 28 of the 75 entities that took part in this collaborative process. All of the remaining 47 witnesses representing various groups and organizations called on us to act and remove the second-generation cut-off.

Pam Palmater, on whom many committees have relied on as a witness, told us, “We have been down this consultation road. We just need to fix it once and for all.”

Zoë Craig-Sparrow, Vice-President of Justice for Girls, said:

When we say this will lead to legal extinction in three to four generations, we mean of entire nations and peoples. But this is happening now, with real, tangible implications for people today like me and my family.

Similarly, Mélanie Savard, a grassroots leader from Wendake in Quebec, gave us her own example:

At 19, when I gave birth to my son, I was also condemned. No legacy of my time on Turtle Island could be passed down to my son, to my flesh and blood. If I die right now, my family heritage cannot be legally handed down to him. That means that in the next few months, I will have to sell our house — our roots and a refuge for us both. I’d rather mourn a material loss than hand down to him a sentence that will certainly haunt him for the rest of his life: the fact that he was not entitled to inherit what his mother had built for him and for us.

Colleagues, this is not a theoretical problem. It is an urgent call to action that requires us to meet our various obligations, both moral and statutory. This is what our committee has done, and this is what we are reporting back. A vote in favour of adopting this report is a vote of confidence in the work we have done on this chamber’s behalf.

We have in good faith listened to the voices of the many witnesses and those who took the time to write briefs. We have stood with community, and I stand with them now in this place before you and before all Chiefs, leaders and rights holders who have come to watch our proceedings in the gallery today and all those who are watching at home. I urge senators to stand with them as well and adopt this report. Wela’lioq. Thank you very much.

Will Senator Prosper take a question?

Yes.

Thank you, Senator Prosper, for your speech.

I’ve just had an engaged conversation with Chief Arcand from the Alexander First Nation. He, like you and like the minister, wants to see the end of the second-generation cut-off. In fact, he told me that signatories to Treaty 6 in his family will not be able to pass on their treaty status. It is something that, as a nation, they want to see remedied.

He also told me that his band membership is under section 10, and they still do not have adequate control over their membership and are currently having difficulty dealing with fraudulent claims to membership. It’s very difficult. They have to hire a lawyer and go through a court because of the way section 10 is right now, and it’s probably no different for other First Nations.

Try as I might, I see neither any provisions in your amendment passed at committee to assist nations in reclaiming control over their membership nor the time and flexibility that will be needed, nor a mechanism to deal with fraudulent claims. There will be a lot of claims if your amendment is adopted and passed in the House of Commons.

Do you agree with the understanding that these are among the many items the minister is discussing with rights holders, currently consulting on and which, I would imagine, are going to inform the creation of a stand-alone bill that the minister has promised she is bringing as early as the spring? Do you agree that this is part of what needs to be put into a piece of legislation that is then taken back to Chiefs for consultation so that every Chief and their nation can see in the legislation a successful path forward, and that this is the role of the government to do that?

I hear you say that consultation is being weaponized, but having sat on the Standing Senate Committee on Indigenous Peoples and having been part of the group that has held the government’s feet to the fire to consult, I don’t know why consultation is now seen as a weapon rather than a way to craft legislation that will protect nations and the government, because Chiefs have said they will come and sue the minister if these amendments are passed without consultation.

Thank you.

Thank you for the question. One thing that is part of these amendments is a deeming provision. Those amendments we are bringing forward are giving the government the opportunity, a year, before those provisions come into full effect. Certainly, if the government undertaking the consultations feels they need more time, they can stand upon that deeming provision from one year to whatever years —

Senator Prosper, I’m sorry to interrupt. Would you like more time to answer questions?

Yes.

Is leave granted, honourable senators?

Thank you, Your Honour.

Flexibility exists within the legislation itself to allow government to do their invaluable work while this legislation exists as a fail-safe, because we all know that with a minority government things are not quite as certain in terms of what their path is and them fulfilling their vision. It provides a fail-safe for First Nations just in case there is a change in government. Certainly, regarding complex issues with respect to section 10 and things of that nature, this will be a stopgap while those discussions take place and are later incorporated in the legislation. It takes that into account. Thank you.

Senator Prosper, thank you for taking another question. My question comes from a place of experience as a Yukoner who has borne witness to the time it took to reach the Umbrella Final Agreement, 40 years after the tabling of Together Today for our Children Tomorrow, and as a member of the Yukon government in negotiation over self-governing agreements with First Nations. As a young campaign worker in elections, I remember the section 31 discussions at the door and the amendments in 1985. As a parent and a Canadian, I’m deeply moved by the discussions of the second-generation cut-off that I have heard for some years.

In preparing for discussions on Bill S-2, I have given a lot of thought to and spent some time with the Crown-Indigenous Relations and Northern Affairs Canada document entitled 2024 Engagement on the Renewal of the Federal Consultation and Accommodation Guidelines: Companion Interim What We Learned Report. It is a document that was developed in concert with Indigenous Peoples from across the country.

In the subsection “What we learned,” within the section “Preparing for consultation,” the document states:

Consultation processes should favour an early and more partnership-based approach that prioritizes transparency and a government-to-government approach. . . .

How do the amendments you have presented reflect that there has been an early and more partnership-based government-to-government approach?

Thank you for the question, Senator Duncan. It is much appreciated.

Certainly, the discussions taking place today are substantive and directed toward consultation, but much consultation has taken place previously. We are talking about an introduction of the second-generation cut-off back in 1985, and there is even a Senate committee report that we have issued that squarely talks about addressing the second-generation cut-off issue. There have been consultations taking place.

The consultations you reference involve self-government agreements, which are rather complex in nature. The nature of removing the second-generation cut-off can be done in a coordinated manner through these amendments while incorporating what you have learned through your partnership and those ongoing discussions that were later brought in with this piece of legislation itself.

I’ll ask you the first part of my question in French, Senator Prosper.

I’m asking this question as a non-Indigenous unelected independent senator. First, I would like it to be noted in the record of our proceedings that it was very difficult for an unelected and non-Indigenous person to follow the committee proceedings and watch as an elected Indigenous female minister had to endure questions from unelected non-Indigenous people in a particularly trying manner. Personally, I found that there were still traces of colonialism and that this too needs to be fixed for reconciliation.

I have in mind what you just said, Senator Prosper, regarding the Standing Senate Committee on Indigenous Peoples and the fact that we should trust and rely on the experts, our senators, who have rightly very strongly and exhaustively examined the bill.

My question to you regards consistency with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and the need for prior and informed consultation. I remember what you said when we scrutinized Bill C-5 in a Committee of the Whole about this — so why, especially with regard to Articles 17 and 18 of UNDRIP, do you believe that a Senate standing committee would replace the need for —

Thank you, Senator Saint-Germain.

Senator Prosper, your first five minutes have expired. Do you want more time to answer questions? I also have two other honourable senators who wish to ask questions. Would you like another five minutes?

Yes, please.

Is leave granted, honourable senators?

Leave is granted.

Thank you for the question, Senator Saint-Germain.

I don’t perceive — and I think it is generally acknowledged — Senate proceedings as constituting consultation. What they do is give a general feel for the nature of what people think about the issues before the Senate.

We are talking about nearly unanimous consensus on the removal of the second-generation cut-off from a number of persons involved within the minister’s own collaborative process. Many people are calling for it. There has been substantial documentation from across the country. Over half of First Nations have called for the removal of the second-generation cut‑off.

These facts cannot be ignored and must be incorporated within the context of this bill itself.

Thank you.

Thank you, Senator Prosper, for taking my question. I ask this question from a place of ignorance, not having had the experiences that you and First Nations People have had in this country.

At times when we have issues that are polarizing, we will all get all kinds of emails around those issues. I certainly have had my share, even having been here for a short time. I certainly expect that many of you received emails about the plight of the ostriches in British Columbia.

To that end, my question is this: How many rights holders, Chiefs and others have reached out to you, sharing with you that they are opposed to having your amendments passed?

Thank you, Senator Dhillon; it is an excellent question.

Let’s take the committee proceedings first. There was limited — I wouldn’t say full or square — opposition to the removal of the second-generation cut-off. There were plaintiffs within the initial action of the Nicholas decision who were not squarely opposed to second-generation cut-off. They just wanted to get some justice for being denied through the enfranchisement provisions.

As I mentioned earlier — and as you will see in this chamber — there has been substantial support for the removal of second-generation cut-off. Earlier this morning, there was a Chief in Quebec who talked about the right of his community to determine members, through section 10, of a membership code itself. This act doesn’t really delve into section 10 communities that govern their membership codes. There is an observation there, but it is not part of the act.

I’ll reference again that there is substantial support, over half — and the numbers are increasing incrementally as we speak — among First Nations across this country for the removal of the second-generation cut-off.

Thank you.

Senator Prosper, as a former Chief for your people and for the region in the east, are you aware that the document mentioned earlier by our colleague Senator Duncan is a draft guideline on how Canada should consult and that it is not yet an official document?

Also, in that document, it talks about when we consult; it is when we talk about section 35 of the Constitution. Are you aware of that?

Thank you, Senator Audette. I was not aware that they were draft consultation guidelines and were more specific to section 35 rights. Obviously, we are talking about a provision within the Indian Act.

I think it is fair to say that the markers have been moving differently as it relates to different types of legislation. I referenced Bill C-5 earlier and the lack of consultation. Bill C-49 is another that I was engaged in, so I want to reference that as well.

Thank you, Senator Audette.

I have two other senators who want to ask questions. The extra time that was consented to has expired. Are you asking for more time?

Yes, please.

Is leave granted, honourable senators?

Senator Prosper, I wanted to refer back to the Supreme Court of Canada that noted in Reference re Senate Reform 2014:

Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process.

One of the senators said we are unelected. Do you feel that the Senate has a very important place in this issue of the second-generation cut-off?

Thank you for your question, Senator McCallum. I certainly do think this chamber has a very important place within the dialogue on any piece of legislation contemplated, whether it’s coming from the other house or derived from within this chamber. We are known as a chamber of sober second thought and, as quoted, to represent certain regional and minority interests as well that may not get the space or time needed for full deliberation. It’s squarely within the realm and confidence of this chamber to consider those questions. Thank you.

Honourable senators, I rise today not in my capacity as the leader of the Progressive Senate Group but as an independent senator.

On November 18, the Committee on Indigenous Peoples voted 10 to 1 in favour of amending Bill S-2, An Act to Amend the Indian Act to fully repeal the second-generation cut-off and replace it with a one-parent rule. This decision was not made in a vacuum. The witnesses who appeared before the committee repeatedly stated that without amendments, Bill S-2 would correct harm linked to enfranchisement but leave intact one of the most persistent and structural forms of that discrimination and, overwhelmingly, called for amendments.

For example, on October 22, Grand Chief Kyra Wilson of the Assembly of Manitoba Chiefs which represents 63 First Nations, explained:

I’m here to confront the issue that threatens the survival of our nations, Canada’s continued use of section 6(2) of the Indian Act as a policy of legislated genocide.

Grand Chief Wilson explicitly called for the immediate elimination of the two-tiered system embedded in section 6 of the Indian Act in favour of a one-parent requirement to address the harm inflicted on multiple generations, including children like her daughter who are not only being denied status and associated rights and benefits, but also their sense of identity and belonging.

Similarly, on November 4, Grand Chief Math’ieya Alatini of the Council of Yukon First Nations — who spoke on behalf of 14 First Nations — made the same appeal. She explained that:

The second-generation cut-off . . . continues to divide our families into haves and have not. These tools are mechanical . . . designed to gradually reduce the number of status Indians over time. In practice, they divide cousins, bar grandchildren from programs and services, and turn identity into paperwork.

Grand Chief Alatini added:

If Bill S-2 is truly about reconciliation and not merely litigation management, then we must address all the known discrimination now, not later. Later is not neutral. Every year you wait, more children are cut off.

Colleagues, the message that was repeatedly and consistently communicated in committee was to act now, not later.

In 2022, the Committee on Indigenous Peoples issued Make it stop! Ending the remaining discrimination in Indian registration which called for — among other things — the repeal of the second-generation cut-off by no later than June 2023.

Many witnesses who testified during the study of Bill S-2 pointed to the report in their testimony. Among them was Marilyn Slett, Chief Councillor of the Heiltsuk Tribal Council as well as Secretary-Treasurer of the Union of British Columbia Indian Chiefs, which represents more than 130 First Nations.

On October 1, she said:

This very committee recommended that Canada repeal all discriminatory provisions, including section 6(2), in the 2022 report Make It Stop. . . . We request that the Senate’s consistent support remain the same to remove all of the discriminatory provisions from the act.

Having served as chair of the Committee on Indigenous Peoples in 2022, I am proud that members voted in a principled and consistent way.

Had we turned our backs on the witnesses and many others who have called for urgent reforms for decades, I believe our committee would have been on the wrong side of both the evidence and our responsibilities. Instead, we have once again stood alongside First Nations — particularly women and children — in firm support of restoring equality in a manner that endures across generations. I am hopeful that the Senate will follow suit now.

Before I proceed, I want to note that I can only remember two other instances when the Senate rejected the adoption of a committee report on a bill with amendments. The decision to revert a bill to its previous form is rare enough that it cannot be taken lightly. The integrity, independence and credibility of the committee and its members must be safeguarded unless there is a clear and compelling reason.

Everyone who appears at a committee does so with the expectation that their input will not only be respected but serve to shape and strengthen our work. If we fail to do that, we risk damaging our collective reputation.

A chamber of sober second thought cannot function effectively unless it is both willing and able to make amendments to legislation when needed. That is how we counterbalance executive and majoritarian power to, among other things, protect vulnerable populations who have been historically excluded, ignored and harmed by Canada and, in specific, the Senate.

I am, frankly, concerned about the message the chamber would send to witnesses by rejecting the report. As a result, I will use this opportunity to shed light on exactly who this chamber would be turning its back on by rejecting this report. I simply cannot — and will not — do that.

Colleagues, last week, the Government Representative in the Senate, Senator Pierre Moreau, called on the Senate to reject the report. I want to use this opportunity to acknowledge the core arguments presented in justification and to provide rebuttals. In the process, I hope to make abundantly clear why I intend to vote to adopt the report and encourage all senators to do the same.

Let’s begin with one of the main arguments put forward last week to defend the rejection of the report. It was the claim that the amendments contradict, rather than strengthen, its purpose. Last Thursday, Senator Moreau reiterated several times that the principal intent behind Bill S-2 is to respond to a decision of the Supreme Court of British Columbia in Nicholas. He argued that the federal government does not oppose addressing broader inequities under the Indian Act, but it does not support doing so within this bill.

Additionally, Senator Moreau suggested that the committee amendments go beyond the original scope of the bill, but the federal government refrained from challenging their admissibility to avoid appearing coldly technocratic. Are these concerns well founded? I do not believe so.

In Nicholas, the Supreme Court of British Columbia agreed with Canada that section 6 of the Indian Act taken as a whole perpetuates discrimination by limiting both the right to be registered as an Indian and the right to transmit status to one’s descendants. The court affirmed that this legislative structure creates legal distinctions based on race or ethnic origin that unjustifiably infringe section 15 equality rights.

In its submission, Canada acknowledged that individuals without a family history of enfranchisement are generally registered under section 6(1), which gives them the full ability to transmit status to their children. In sharp contrast, descendants of enfranchised individuals are typically placed under section 6(2), which restricts their ability to pass status to the next generation.

This denial of equal benefits, both in registration and transmission, effectively treats the affected population as “less Indian,” leaving them with lesser status — or none — earlier and unfairly, solely because of enfranchisement.

To meet the minimum constitutional remedy required by the court, the federal government introduced Bill S-2, and previously Bill C-38, so that descendants of enfranchised people gain the same entitlement to Indian status and to transmit Indian status as everyone else with the same ancestry. As a result, enfranchised families are treated as “equal,” but only within a system that continues to legislate their eventual extinction, just like every “Indian.” Their descendants remain on a pathway to being entirely erased through the second-generation cut-off.

The amendments proposed by the committee address another expression of the same discrimination the court identified. In 1985, the Indian Act was amended with the stated goal of bringing its registration provisions into compliance with the equality rights guaranteed under section 15 of the Charter. The legal process of enfranchisement, which served as a central tool for the assimilation of First Nations Peoples since before Canada was created, came to an end then. However, discrimination continues in the form of the second-generation cut-off, which was introduced in 1985 to prevent children from inheriting status and associated rights and benefits after two generations of parenting with someone who is not entitled to registration.

Instead of immediate erasure, Canada now relies on delayed erasure to gradually reduce the number of status Indians over time. No other group in Canada faces the legislated disappearance of their people.

On October 29, Dr. Wilton Littlechild, a commissioner of the Truth and Reconciliation Commission, described it as “an act of forced assimilation” that fits within the definition of genocide.

Similarly, in a brief, Dr. Pam Palmater cited the legal analysis of genocide prepared by the National Inquiry into Missing and Murdered Indigenous Women and Girls, which concluded that the systemic denial of status and membership under the Indian Act is part of a broader pattern of colonial policies that meet the legal definition of genocide. She argued that eliminating the second-generation cut-off is essential because it is not merely an administrative rule; it continues past policies designed to end the legal existence of “Indians” over time — “Indians” to whom Canada owes specific obligations.

What our committee has done is strengthen and complement the core remedial function of Bill S-2. In specific, we amended section 6 of the Indian Act because it continues to arbitrarily sort families across generations. In doing so, we have tried to ensure that Indian status does not continue to be transmitted differently based on whether someone was born before or after April 17, 1985.

At present, there are siblings with the same parents who can end up with different registration categories based solely on when they were born. The committee has also proposed to shift the requirement for entitlement and transmission from two parents to one parent to repeal the two-tier system of Indian status. This change puts an end to the era of legislated extinction.

At the same time, the committee has attempted to address the issue of unstated paternity. Dr. Mary Eberts, who is a constitutional lawyer, argued that the second-generation cut-off gives men a biological advantage. It is far easier for a man to name the mother than for a woman to safely name the father. There are many reasons why, including domestic violence and sexual assault. As a result, Dr. Eberts argued that the second-generation cut-off is not neutral. It continues the historic sex-based discrimination and race-based discrimination built into the Indian Act. As a result, it violates section 15 and cannot be justified.

Colleagues, the next area I want to focus on is consultation. Last week, it was suggested that the amendments adopted by the committee disregard the constitutional duty to consult and, where appropriate, accommodate Indigenous Peoples under section 35 of the Constitution. In fact, Senator Moreau repeatedly insisted that the federal government cannot exempt itself from its obligation to consult those affected by measures it wishes to implement that could adversely affect their rights. These arguments are difficult to reconcile with established facts.

Last week, Senator Moreau was asked by Senator Michèle Audette, who is the sponsor of Bill S-2, whether he was familiar with the 2018 case of Mikisew Cree First Nation v. Canada under which the Supreme Court of Canada agreed with Canada that there is no constitutional duty to consult Indigenous Peoples during the development, drafting or enactment of legislation. He responded that he was aware of the decision.

Minister Mandy Gull-Masty and Senator Moreau have repeatedly insisted that there is a legal and constitutional duty to consult before amending the Indian Act. However, it was the Liberal government, under Prime Minister Justin Trudeau, that fought vigorously to ensure that no such duty exists. That became painfully clear after Bill C-5 was fast-tracked last June to grant the federal government sweeping powers to bypass existing laws and regulations to fast-track projects in the “national interest.”

I cannot help but ask: Why was it acceptable then to enact legislation without engagement or consultation despite the significant concerns over its impact on the rights of Indigenous Peoples? It seems extremely selective, to say the least. This inconsistency makes consultation appear no more than a political tool.

Senator Moreau suggested that amendments to the Indian Act must be put on hold until the collaborative process meant to address the second-generation cut-off and voting thresholds are completed in December 2025. He also maintained that the central question behind the collaborative process is not whether to eliminate discrimination but how, and he maintained it should be First Nations who determine the answer through consensus — a high threshold that is not placed on any other group in Canada.

There is no clear threshold, no clear parameters and no firm timeline for when discrimination through the second-generation cut-off will end. In fact, we’ve heard a few contradictory statements. There was an initial promise to table stand-alone legislation in the coming months that was promptly backtracked. We also heard that the consultations had begun. However, later we were told that was not true. As a result, we have no real guarantee that the second-generation cut-off and related inequities will be addressed any time soon.

One of the key themes heard by the committee is that after more than four decades, political promises are simply not enough. That is not an attack on Minister Mandy Gull-Masty. We are not focused on individuals. We are focused on the larger “machinery” of government.

Zoë Craig-Sparrow, the Vice-President of Justice for Girls, expanded on this point:

Even though this minister is an Indigenous woman — which is so wonderful and inspirational to see — she is still a representative of the government and has to act as a minister, not an individual. She is making a promise that we know and she knows she might not be able to keep. Justice Canada advises the minister, and she has to follow their directives.

Even so, in your Make it stop! report and the law, it does not say, “Wait until there is an Indigenous minister.” Even though she says the same thing as all the other ministers before her, they say, “This time, because she’s Indigenous, believe her, and just wait a little longer.” No, it says, “End it now.” The obligation of equality is an obligation of immediacy under international law. We’ve waited long enough.

I believe that Minister Mandy Gull-Masty is genuine. That has never been a question. However, a political promise is not legally binding. There is no guarantee that the federal government with its systems, structures and processes will follow through. Even if we wanted to trust her, we cannot ignore that federal minority governments tend to have shorter lifespans.

The first budget under Prime Minister Mark Carney passed with a vote of 170 to 168. We barely avoided another election, and this outcome still remains possible.

To me, it simply does not matter which party is in power. The approach has remained the same: Canada only makes narrow fixes when compelled by the courts. I doubt this long-standing pattern will break anytime soon. So, if there is a rare opportunity to act now to end broader discrimination, why would we waste it? Parliament is encouraged — and even expected — to go further.

Colleagues, I am not a lawyer. I will never pretend to be one. That said, I understand that Canada cannot reference ongoing consultation as a justification for continuing to violate the Constitution, including section 15 of the Charter.

The duty to guarantee equality rights is not discretionary. Yet, more than once, it has been implied that the duty to consult is somehow higher in the hierarchy. My understanding, however, is that the Charter is paramount.

According to Andrews v. Law Society of British Columbia, in 1989, all federal and provincial laws must comply with section 15 equality rights. The court stated then:

The right to equality before and under the law, and the rights to the equal protection and benefit of the law contained in s. 15, are granted with the direction contained in s. 15 itself that they be without discrimination. Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination reinforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law. It is against this evil that s. 15 provides a guarantee.

In other words, Canada cannot continue to say, “We know that discrimination exists; however, please continue to wait patiently while consultations continue for 2, 5, 10 years or even longer before we put a stop to it.”

The witnesses we heard from agreed. For example, on November 5, we heard from Chief Barbara Cote of the Shuswap Band. She appeared on behalf of the British Columbia Assembly of First Nations, or BCAFN. She stated:

The minister told the Senate that there cannot be a one-size-fits-all solution to the second-generation cut-off, but, senators, section 15 of the Charter is one size fits all. Section 15 affirms equality. Section 15 of the Charter says you cannot discriminate on the basis of sex or race, and that is one size fits all. Equality is for everyone.

The minister also said that the answers must come from communities. Well, the answer from communities in B.C. is clear: 204 of Canada’s 630 First Nations are saying, “Eliminate the second-generation cut-off now.” That is one third of all First Nations.

Chief Barbara Cote also added:

BCAFN is part of Indigenous Services Canada’s Collaborative Process, and we have been consulted over decades on this. Given the timeline set out for the process, it will be four or five years before new legislation removing the second-generation cut-off could be in effect. Even this depends on the Liberals staying in power.

Senators, we are suffering the impacts of the second-generation cut-off now. It must be immediately removed, as 27% of all First Nations individuals in B.C. are section 6(2)s. In Shuswap, 40% of my members are section 6(2)s. Our children and grandchildren are being excluded right now, not in some distant future.

On the question of whether further consultation is needed, Dr. Pam Palmater reminded us on October 7 that:

. . . 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. So you can’t.

What you can consult on, however, is how do you support First Nations, how do you support the people who are newly registered, how do you ensure there’s enough housing and infrastructure.

Unsurprisingly, after four decades of waiting for Canada to take decisive action to address the second-generation cut-off, there is widespread and justified skepticism that Canada is again using consultation as a delay tactic, perpetuating discrimination and inequality under the guise of engagement.

The Supreme Court has repeatedly rejected the notion that equality cannot be incremental. According to Vriend v. Alberta, in 1998:

If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.

Let me be clear: I do not oppose meaningful consultation. As a former Chief, I have experienced its strengths and weaknesses first-hand.

What I oppose is the use of consultation as a tactic to prolong inequality. Canada has to address the severe ongoing and irreparable harms it has inflicted through the Indian Act. Yet, all progress made to date has been hard fought over the past four decades.

So, as you deliberate on whether or not to adopt the report, I urge you to remember that the decision not to address broader discrimination is not neutral. Every delay deepens, prolongs and multiplies the harm.

Colleagues, I will now turn to my last point. It has been suggested that accepting the amendments would result in delaying remedies to the more than 3,500 individuals affected by the discrimination identified in Nicholas.

Senator Moreau argued that the House of Commons would likely reject the amendments. It was implied that the adoption of the report would now allow Parliament to meet the deadline of April 30, 2026, to amend the Indian Act to bring it into compliance with the Charter.

However, in Nicholas, Justice Fitzpatrick acknowledged the court is fixing the narrowest possible constitutional problem “. . . without limiting Parliament’s ability to craft any further legislative changes that it may consider appropriate.” She also added that she would remain “seized,” meaning she would retain jurisdiction to extend the suspension if needed.

It would not be the first time an extension has been required. For example, it happened in Descheneaux when the Indian Act was last amended. As a result, nothing prevents Canada from seeking an extension to, among other things, address the second-generation cut-off and other inequities. That said, I do not believe that an extension is absolutely needed.

The predecessor of Bill S-2, Bill C-38, showed us what happens when there is a lack of genuine desire and commitment. However, the federal government is entirely capable of expediting the process when it deems it necessary. That is exactly what happened a few weeks ago with Bill C-3, An Act to amend the Citizenship Act (2025). It all boils down to a matter of political will.

Justice Masse in Descheneaux called on Parliament to fix all discriminatory situations that may arise from the issue identified, not just the one in front of the court, to ensure constitutional compliance. She added:

When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

Like Justice Masse, Justice Fitzpatrick in Nicholas also acknowledged the court is fixing the narrowest possible constitutional problem, but “. . . without limiting Parliament’s ability to craft any further legislative changes that it may consider appropriate.”

These rulings serve to strengthen the argument that broader corrective amendments to Bill S-2 are legitimate.

The Committee on Indigenous Peoples has acknowledged that the minimum remedy required by the court was the floor, not the ceiling. As a result, we have tried to refine what the bill is trying to do. The role of the Senate is not simply to pass legislation; it is also to provide sober second thought. In practical terms, this means that we have an obligation to ensure legislation actually solves the legal problem it claims to address. In the context of repeated violations of section 15 of the Charter, it is especially important that we fulfill our mandate to ensure that Parliament does not pass incomplete laws that leave structural forms of discrimination intact and trigger further litigation.

Colleagues, the question before us today is whether we are willing to continue to deny long-overdue equality to First Nations Peoples, particularly women and children. I have yet to hear a convincing argument about why we should not act now to end discrimination. The adoption of the report would send a loud and clear message that the era of legislated extinction must end now. I urge you to vote in favour.

There are many eyes on the Senate. First Nations Peoples, who have waited decades for equality and justice, are watching. Many are here today. I sincerely hope we do not let them down. Wela’lin, thank you.

Honourable senators, I absolutely agree with these amendments, but I cannot support them at this time. Let me explain.

My perspective is guided by the Mi’kmaw principle as espoused by Elder Albert Marshall of Eskasoni, the Two-Eyed Seeing — the gift of learning to see from one eye with the strengths of Indigenous ways of knowing and from the other eye with the strengths of Western institutions and law. It teaches us that true progress requires balance — not choosing one world view over another but using both together for the well-being of our people.

I am also conscious of what His Majesty King Charles III referred to in this Parliament’s Speech from the Throne as the “clear-eyed” approach, facing hard truths without romanticizing them, acknowledging where systems have failed and committing to the honest, sometimes uncomfortable, work of repair.

It is in this spirit, with Indigenous insight and clear-eyed responsibility, that I speak to Bill S-2.

Bill S-2 aims to correct long-standing inequities in the Indian Act. It does so through three important amendments. First, it replaces outdated and offensive language; second, it creates a new process for individuals who wish to have their names removed from the Indian Register; third, it addresses inequities created by enfranchisement and restores entitlement to status for those affected, including allowing pre-1985 married women to transfer back to their natal band.

This bill corrects specific injustices that have affected Indigenous families for far too long. It represents progress, albeit small, and it represents harm stopped.

As Senator Audette said at second reading, this legislation is:

. . . the beginnings of a response, a response to decades of injustice that people, human beings, men and women, have experienced and continue to experience.

The bill before us today is rooted in lived experience, community knowledge and a fierce commitment to justice.

Today, I will offer some details about the scope of Bill S-2. I want to talk about the wrongs that will be righted by this legislation. This bill is only one piece of the puzzle. It is important to recognize that there are many forms of discrimination that still prevail in the Indian Act, and this bill is not attempting to address all of them.

I will discuss some remaining issues surrounding membership, considering both the second-generation cut-off generally and the specific case of the Qalipu First Nation in my province of Newfoundland and Labrador. I will also emphasize the historic significance of this bill being sponsored by First Nations women in both chambers of Parliament, and I will conclude by reiterating the importance of continuing to push back against colonialism and injustice in the Indian Act and everywhere.

I am from Flat Bay, a small Mi’kmaw community on the west coast of the island portion of our province. It is governed by Chief and council. There are no municipalities. We are a member of the Assembly of First Nations. We were Indians before being Indian was cool.

When Newfoundland joined Confederation in 1949, our province became the tenth province, but the Mi’kmaq were deliberately left out. At the union, the Indian Act statute was not drawn down. Indigenous identity in Newfoundland and Labrador was effectively erased on paper. This was not an oversight. It aligned with the national sentiment of the time: Eliminate the “Indian problem” by eliminating the Indian. On paper, we did not exist. For the most part, we did not even know. We continued to live our lives the way we had always lived.

Given time constraints, I’ll provide a condensed version — it will make Coles Notes look very short.

In the early 1970s, Indigenous people in the province began to unite. They took the federal government to court, ironically, for discriminating, as they were not treating the Indians in Newfoundland and Labrador as they were in other parts of the country. After many years of negotiations, even a hunger strike by nine warriors of Conne River, a reserve was created in Newfoundland. Flat Bay, my community, was to be next, and so on, but the political winds shifted and we fell off the radar. The court challenge continued, and that brings us to 2009, when the Qalipu First Nation was formed.

Colonial rules still shape whom Canada recognizes and whom Canada denies. Identity remains in federal control, not fully in Indigenous hands, and nowhere is that more evident than in the experience of the Qalipu First Nation.

When Qalipu was created — a landless band that is basically a corporation — it was meant to right a historic wrong, to restore recognition to the Mi’kmaq of our province who had been left out of federal policy for generations. But the process was flawed as 100,000 people applied to be registered Indians. The population of our province is only 500,000. People applied in good faith only to see the rules rewritten after the fact.

Families with deep cultural roots and community presence were rejected. Meanwhile, many who lacked true connection to Mi’kmaq heritage were granted status. We call them “paper Indians” at home. The result is an inconsistent registry that includes people who should not be there and excludes people who always should have been.

This has caused real harm. It has left legitimate Mi’kmaq families without the recognition and rights they deserve. It has allowed federal bureaucracy to determine Indigenous belonging instead of Indigenous communities themselves. It has left some of us from my community, myself included, to apply for recognition under a flawed process.

I have couple of examples of how flawed it is. There were three children and the oldest and youngest were granted status; the middle child was not. They have the same parents. The second example is about two siblings. The son got registered but the daughter did not because she was at university. This is how flawed the process of registration is.

Now, we have the Qalipu First Nation and its membership erasing us by replacing us, trying to erase my community from the Assembly of First Nations, not acknowledging our Elders in a respectful way, saying, “Oh, don’t talk to the Elders in Flat Bay,” the very people who are the foundation of the Indigenous movement in Newfoundland and Labrador. It’s injustice in its finest form.

I will note, before my social media blows up, that there are legitimate status Indians in the Qalipu First Nation, but many are not. I provide this information to serve as a backdrop to lessons learned and what must change moving forward under the Indian Act.

We must ensure that future registration is community-led, that the community itself defines a connection to the community and that the community determines who its members are.

Any future registration must have clear, reliable and transparent rules. It must include Elders and knowledge holders. It must respect lived identity, not paperwork. And it has to have fair appeals that restore dignity, not deny it.

Bill S-2 responds to the pressing issue of enfranchisement, a historic practice that continues to have devastating effects on Indigenous communities. As we have already heard, enfranchisement was the policy by which First Nations people could denounce their status to obtain certain benefits, including the right to vote. Some people underwent this process willingly, others did not.

At present, the Indian Act does not enumerate those affected by enfranchisement as persons entitled to be registered. This bill would create a new clause that offers entitlement to register for persons who were denied or lost status due to enfranchisement.

Enfranchisement ended around the 1960s, but its consequences have been inherited across generations. Those who were enfranchised, and their descendants, remain excluded from status. This bill offers a pathway to restore what was wrongly taken from them.

Witness testimony reinforced why this work cannot wait. Kathryn Fournier described enfranchisement as “genocidal in its scope.” Our doctor lawyer Indian Chief Wilton Littlechild identified inconsistencies between the Indian Act and Canada’s obligations under UNDRIP, particularly articles 6, 7, 8 and 9, which protect Indigenous identity and prohibit forced assimilation.

The Supreme Court of British Columbia in the Nicholas case confirmed that sections of the Indian Act violate the equality rights of the affected families under section 15 of the Canadian Charter of Rights and Freedoms. The court gave Canada until April 2026 to fix this violation. Bill S-2 is that fix. Passing this bill is not optional. It is a moral obligation and a Charter obligation.

It is also important to recognize the remaining registration issues that are not addressed in the scope of Bill S-2. At committee, many witnesses identified the specific priority area of the second-generation cut-off under section 6(2) of the Indian Act. We heard extensive testimony, as you’ve heard from our colleagues previously, about the harms of section 6(2). There is no doubt that this is an urgent issue that is causing harm and must be addressed.

It was so difficult at committee. There were so many tears shed, and not just from the witnesses, but from us as committee members. We are all affected by this, every status Indian here in the gallery and in the chamber. The minister herself is affected.

I commend the members of the Standing Senate Committee on Indigenous Peoples. I see the work you are doing and trying to do, but registration is a complex process that requires its own development process.

On several occasions, the Minister of Indigenous Services has iterated her commitment to working with Indigenous communities to seek a solution that is co-developed, nation-to-nation and that stems from communities themselves.

We must not hinder this work by adding amendments to Bill S-2. It is so important that we get it right. We must offer the minister time to continue seeking solutions and listening to communities before acting on section 6(2).

Passing this bill without amendment does not put an end to our work on amending the Indian Act. It does not mean that we are ignoring the urgency of other membership issues and other discriminatory provisions in the Indian Act.

Rather, it means that we are taking a step towards justice. We will and we must continue this work in the spirit of reconciliation, co-development, and in compliance with our obligations under both the Charter and UNDRIP.

Two-Eyed Seeing teaches us to do things both responsibly and respectfully. These are not simple amendments that are asked for; it requires deep nation-to-nation dialogue and community-led solutions.

With clear-eyed honesty, we must acknowledge that if we rush amendments into this bill, we risk delaying justice for enfranchised families who have already waited decades.

Colleagues, for the first time in Canada’s history, an Indigenous woman is serving as Minister of Indigenous Services, a former Grand Chief in our traditional systems; that means something. Her leadership matters. Too often, Indigenous women in positions of power are expected to carry the weight of perfection, to justify their presence, to be everything to everyone. Today, I reject that expectation. I rise in support, not to critique or challenge but to uplift.

To the National Chief of the Assembly of First Nations, Cindy Woodhouse Nepinak, I lift you up. Thank you for your leadership.

To Senator Audette, sponsor of the bill, you are phenomenal. You tackle every issue bit by bit. I am proud of the work you do. I am honoured to sit in this august chamber with you.

To Minister Gull-Masty, you are making history, but more importantly, you are making change. You are creating a new memory in the minds of our children. You are showing generations of Indigenous youth — especially girls — that we not only belong in these spaces, but we are essential to them.

Let this moment mark a shift, not just in representation, but in respect; not just in words, but in actions; not just in politics, but in the heart of this country’s journey toward true reconciliation.

A former Grand Chief — I have to say it again — is serving as Minister of Indigenous Services. I never thought I would see the day. She is leading this work, carrying the responsibility of restoring trust and advancing justice for our people. She is breaking barriers that stood for centuries.

She has been very clear. She cannot accept amendments at this time. While I hear the call to do more — and I absolutely agree that more must be done — I cannot support amendments that would jeopardize progress today. Instead, I choose to support this Indigenous minister in her historic role, and I commit to working with her to ensure that the next chapter of this process lives up to the standards our people deserve.

At this moment, with both Two-Eyed Seeing and clear-eyed honesty, I have to support this minister. Adopting Bill S-2 is both a moral imperative and a legal obligation. While adopting this bill will not resolve every remaining discriminatory provision of the Indian Act, it nevertheless represents a historic step forward, a step towards justice for Indigenous families, men and women, who have already waited too long.

Let us pass this bill without amendments, not because it’s perfect, but because justice delayed is still injustice. We will keep pushing. We will keep correcting. We will not stop until Indigenous communities and Indigenous nations fully define their own identity, their own citizenship and their own future.

We need to pass this bill, not because it’s the final answer, but because it’s the beginning — a beginning that some of our people, like Beverly Asmann and the Michel Callihoo Nation Society, have been waiting for far too long.

Wela’ lin. Thank you.

Senator McCallum, do you have a question?

Yes.

Senator White, will you accept a question?

Yes.

Thank you. We have heard alarmist language before about “untold numbers of people,” and that doesn’t reflect the reality. We heard that from Chiefs, Indigenous Services Canada, or ISC, cannot in good faith use its discriminatory underfunding as a reason for denying people their equality rights. Did you know that, according to Corbiere v. Canada (1999), the federal government cannot argue that changes to the Indian Act would be a financial burden on First Nations? I quote:

. . . the possible failure, in the future, of the government to provide Aboriginal communities with additional resources necessary to implement a regime that would ensure respect for equality rights cannot justify a violation of constitutional rights in its legislation.

Would you comment on that, please?

I’m sorry, Senator McCallum. Are we talking about the Corbiere case?

Yes.

I haven’t reviewed it in a long time even though I am lawyer. I’m not sure what the question was, but I didn’t speak about the costs or anything. I’m not sure what the question is. I’m sorry.

You had said there were people that were going to be registered at alarming numbers, and that is what my question is geared towards. We have heard in the chamber today that they need to consult about the funding and the people that are going to register. I would like you to comment on that.

Thank you very much. I didn’t speak about the cost of registration or even how many people would register. I only spoke to the process that occurred in Newfoundland and Labrador, in which 100,000 people applied for registration. I believe it was only 30,000 at the end who were actually accepted, but there are about five different court cases, so I am unsure about the status of all of them. However, I concede what you’re saying. I don’t know how to answer the question. I’m sorry.

Senator Tannas.

Senator White, that was a whopper. Thank you. That was a fantastic speech. We have heard a number of them today, and it is an honour to take part briefly in this debate and to speak about Bill S-2 at the report stage.

Many of you know that I’ve been a member of the Indigenous Peoples Committee since 2013, when I arrived in the Senate. That makes me the senior member, and as such, I can say that I’ve seen and heard a lot during those 13 years.

Nothing that I have learned or gained through the committee experience compares to the lived experience of Indigenous people in Canada, including my current and former Senate Indigenous colleagues. Serving with these people has been, and continues to be, a joy, and it is humbling at the same time.

Again, nothing that I can say compares to the lived experience of an Indigenous person. All I can do is act in accordance with my conscience, informed by what I learn in committees and in debates like those we are having here today, and guided by what I understand to be my duty as a senator.

At the first committee meeting on Bill S-2, we heard from Minister Gull-Masty. I felt the history in that occasion — the energy in the room. Greeting the first Indigenous minister on Indigenous matters was historic, and we all knew it. I was enormously impressed by her message, which was to pass Bill S-2, which, she admitted, addresses only a small subset of discriminated persons; and that she will address the others, including the second-generation cut-off, in subsequent legislation. She made those statements forcefully and with confidence.

I was inclined to believe her and to support the bill without amendment. However, after hearing the testimony of 61 more witnesses over a period of 12 days, I was forced to come to a different conclusion.

During the committee meetings, I heard of immediate and growing issues with non-status children. These would be the first generation to be cut off, who live in First Nations communities but have been excluded from school and medical funding. I can only imagine how a child feels, knowing they are somehow different, somehow less than their cousins, friends and neighbours in those communities.

During the committee meetings, I listened to the advice of the Chiefs and other community leaders, many of whom were on the consultation list. In fact, we could trace back the majority of the communities on the consultation list to witnesses at committee who advocated that we do something now to eliminate this disgrace of 40 years that is now, and only now, truly descending on the communities in full force.

During the committee meetings, I was reminded of the last time we faced similar circumstances in 2017, when the second-generation cut-off was excluded from a bill to eliminate discrimination from the Indian Act. At that time, we deferred despite a chorus of voices from witnesses asking us to add an amendment to get rid of the second-generation cut-off. Instead, we satisfied ourselves with a minister’s promise for future “action.”

That was eight years ago. Throughout the meetings, I watched and listened as my Indigenous colleagues led us through the careful questioning of the witnesses, and by the end of this process, it was clear to me what my duty was. I will support the amendments proposed in this report. I believe it is our duty to provide the government and the House of Commons our best advice on this issue of inequalities in the Indian Act.

I understand that the amendments with respect to the second-generation cut-off might possibly be stripped from the bill by the government in the House of Commons. In doing so, they will have the opportunity to provide comfort to First Nations on their commitment to correct the second-generation cut-off and to reiterate the “how,” not the “whether,” which is what it’s been termed as. This will happen because that’s what the minister spoke of here. It should be spoken of in the House of Commons — the “how,” not the “whether.” Also, maybe First Nations governments will get clarity on the “when.” That is why we should send this forward.

If that’s all we get back, colleagues — a stripped bill and a commitment on the record in the House of Commons from the government on the “when” — then I think we will have done our duty, and that’s all we can do.

Let’s vote this bill, as amended, to the House for their consideration. Thank you.

Honourable senators, I’m from Treaty 1 territory, the homeland of the Red River Métis Nation, and I’m very proud to be part of a network of parliamentarians working closely with Indigenous leaders from my province.

Earlier today, Grand Chief Daniels of the Southern Chiefs’ Organization in Manitoba issued a statement that made it very clear that he was calling on us to amend this bill and to, once and for all, propose to the government what needs to be done to fix and eliminate sex-based discrimination in the Indian Act.

I’m also honoured to be a member of the Standing Senate Committee on Indigenous Peoples today, as I was when the committee dealt with Bill S-3. This government, through Minister Gull-Masty, insists on the Senate not amending anything until after the minister finishes what she has described as a mandatory consultation process.

Please keep in mind that the wrongs addressed in this bill, so well described by Senator White, will be corrected in the amended bill presented to this chamber by the Indigenous Peoples Committee. Yes, this is the first Indigenous woman in this role, and she does deserve great respect and appreciation for her office. However, this is also a minister who admitted to the Indigenous Peoples Committee that she has not started her consultation — and one in a minority government that narrowly stayed in power just days ago. This is a minister who is making promises, albeit in good faith, that she has no capacity to keep because she could be switched out at any time. This is a minority government that could fall any day.

Sadly, it is also a fact that Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), gained support over seven years ago because of promises made by this minister’s predecessors, promises that no Liberal government since has kept.

In May 2017, former minister Carolyn Bennett told the Senate Indigenous Peoples Committee:

. . . I think it’s important to clarify what the government means by addressing “known sex-based inequities” in Bill S-3.

First, I need to be very clear: Charter compliance is not negotiable. Bill S-3, as amended, will remedy known sex- based inequities relating to the registration to the Indian Act, which falls short of Charter compliance. This is not restricted to situations where a court has already ruled, but extends also to situations where the courts have yet to rule, and where we believe a sex-based Charter breach would be found.

Colleagues, Bill S-2 was formerly known as Bill C-38, prior to the most recent prorogation of Parliament. In the lead-up to Bill C-38, according to an Indigenous Services Canada report entitled Annual Report on Registration under the Indian Act, First Nations Membership and Status Cards —2023, there were 50 individual consultation sessions, 95 organizational sessions, 40 government sessions and 55 sessions with First Nations communities.

Indigenous constitutional expert Dr. Pam Palmater compared the hard-to-find consultation in Bill C-5 to this bill, Bill S-2:

There were a lot of First Nation leaders that came forward in opposition to the Building Canada Act, stating that there needed to be more consultation, but it seems as though the government is selective in when they say, “We need to consult” versus when they say that the Mikisew Cree decision says consultation on legislation isn’t required because it undermines the role of the executive and legislative branches.

Earlier today, Senator LaBoucane-Benson sent to all senators a statement by retired senators the Honourable Lillian Dyck and the Honourable Sandra Lovelace Nicholas.

In both houses of our Parliament and across this country, the greatest of respect and appreciation must go to these courageous and visionary Indigenous women leaders. And with such respect and appreciation, as one of the senators referenced in that joint statement, along with Senator Tannas and Senator Pate, I was on the Indigenous Peoples Committee and deeply involved in the Bill S-3 process some eight years ago.

I wish to address only one point in the statement sent to us today, “. . . that second-generation cut-off perpetuates sex discrimination against women who marry non-status partners. Not true. . . .”

I am on the record in the recent Indigenous Peoples Committee proceedings on Bill S-2 as having said that I believed what happened with Bill S-3 fixed sex-based discrimination in the Indian Act. Allow me to explain. I believed then — but not now — that the promises made by the government to move rapidly as part of the deal for Bill S-3 meant that the Bill S-3 package would be delivered.

I was honoured to be with former Senators Dyck and Lovelace Nicholas in Saskatchewan in 2019 when then-Minister Bennett announced the federal government had brought the final provisions of Bill S-3 into force, allowing registration by First Nations defendants born before April 17, 1985. Former Minister Bennett stated then:

Gender equality is a fundamental human right and for far too long, First Nations women and their descendants have continued to face the effects of historical gender discrimination in Indian Act registration going back to its inception 150 years ago. I stand in solidarity with the Indigenous women who have been working so hard for decades to end sex-based discrimination in the Indian Act registration and am proud that today all remaining gender discrimination has been eliminated from Indian Act registration provisions.

Between 2019 — when that quote took place — and now, the Standing Senate Committee on Indigenous Peoples issued its powerful and concise report Make it stop! because the governmental promise of the Bill S-3 package was not kept.

Honourable senators, I see now that I was wrong, and here we are with the current minister giving commitments as her predecessors also did. With regard to the assertion in the statement that you received today that there is no sex-based discrimination with the second-generation cut-off, I offer for your careful consideration the following points in response.

Senator Francis quoted the equality rights in section 15 of the Charter. There are two “notwithstanding” clauses in the Charter. Section 33 is the section with which you will be most familiar, given current uses of this “notwithstanding” clause by governments wishing to violate Charter rights. It is the other “notwithstanding” clause in section 28 that is most relevant to reinforcing section 15 of the Charter in addressing sex-based discrimination in the Indian Act.

It states:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

With appreciation to Dr. Pam Palmater and the other experts in the working group dedicated to research and advocacy to remove sex discrimination for over 40 years, here are some points for you to consider when looking at the statement from today. The second-generation cut-off is both sex-based and race-based discrimination. It is also arguably discrimination on the basis of ethnic origin and marital status. It is incorrect to argue that it is not sex-based discrimination and only race-based discrimination, as any discrimination violates sections 15 and 28 of the Charter.

First Nations women suffer intersectional forms of discrimination because of their sex as women and their race as First Nations. The National Inquiry into Missing and Murdered Indigenous Women and Girls explained that while all Indigenous Peoples suffer from historic and ongoing genocide, Indigenous women suffer from a unique form of gender-based genocide.

Sex discrimination is evident in the second-generation cut-off. For example, there are unequal family units created. Before 1985, when First Nations men married White women, the White women gained status, as did their children. However, a First Nations woman marrying a White man lost her status, as did her children and her grandchildren and her great-grandchildren. Even when the law was changed to reinstate these women, it did not treat them equally to their White husbands. They did not gain status.

This is not about wanting to give White men Indian status, but it is about the unequal, disproportionate impact on an Indigenous woman’s family as compared to an Indigenous man’s family. In the man’s family, they are considered a family with two status Indian parents, with two sets of benefits, two sets of per capita payouts and two sets of treaty payments, meaning he, his wife and his children get more than, for example, his Indigenous sister. In the woman’s family, there is only one status Indian parent and, thus, only one set of benefits, meaning she, her partner and her children receive less.

I would like to now turn to the Standing Senate Committee on Indigenous Peoples report tabled in this chamber and the non-liability clause in Bill S-2. Is it not shameful for this government to insist on perpetuating non-liability clauses that forbid Indigenous women from seeking compensation for the harms done to them under the Indian Act?

The way in which this was addressed in the Make it stop! report, which was adopted by the Senate, was Recommendation 7 which reads:

That the Government of Canada introduce legislation . . . to enable First Nations women and their descendants to access compensation.”

The minister at the time rejected this recommendation with his vague point, “ . . . the validity of these clauses is being assessed and determined by the courts.” Let me ask you: What is the responsibility of the government to address sex-based discrimination that has been found by the courts and international courts to be illegal?

The fact that a provision is being considered by a court does not prevent Parliament from changing or repealing that provision. This government, like its predecessors, bit by bit over decades, does the minimum only when forced to do so by a court, and that is what Justice Masse criticized so clearly in the Descheneaux decision that led us to Bill S-3. Denying access to compensation for women, as well as their children, their grandchildren and their great-grandchildren, who have fought for decades against sex discrimination perpetuates that discrimination. And, senators, that discrimination is illegal.

Please note that bars to compensation apply to all causes of action, even those that are not under the Charter. In Charter cases, Crown immunity for damages arises from enacting legislation set out in the case entitled Canada (Attorney General) v. Power. The case brief from the Supreme Court of Canada notes:

Writing for the majority, Chief Justice Wagner and Justice Karakatsanis held that the state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes —

I’m sorry to interrupt, senator. Your time has expired. Are you asking for more time?

I would greatly appreciate that.

Is leave granted, honourable senators?

I will continue to quote the Supreme Court of Canada:

By shielding the government from liability in even the most egregious circumstances, absolute immunity would subvert the principles that demand government accountability.

Power reaffirms the law as it has stood for more than 20 years under Mackin v. New Brunswick (Minister of Finance) and Rice v. New Brunswick. The Standing Senate Committee on Indigenous Peoples amendment removes the bar to liability with respect to the harm caused to the wives and children of men who enfranchise by having their status automatically removed and those who lost status or whose descendants lost status because of the second-generation cut-off or the 1985 cut-off.

Following the Power decision, the standard will be whether these bars were legislated when the state:

. . . knew that the law was clearly unconstitutional, or was reckless or wilfully blind as to its unconstitutionality. . . . [or] the enactment [was] an abuse of power.

This government, through Senator Moreau, is asking senators to protect the ban on damages in Bill S-2, so I must ask: What will be the effect on the government of not passing that section?

A number of international human rights bodies, including the UN Human Rights Committee in McIvor and the UN Committee on the Elimination of Discrimination against Women in Matson have called on Canada to provide compensation for decades of sex discrimination in the Indian Act. How can the government justify leaving the non-liability clause in place in light of the decisions of UN committees calling on Canada to provide an effective remedy and reparations for discrimination and forced assimilation practices? How can this government’s denial of access by Indigenous women and their families to compensation, resulting in forced assimilation practices with impunity, be justified?

Removing the non-liability clause will not cause a floodgate of lawsuits, given the difficulty and the expense of bringing them, nor is it a valid aim to restrict access to justice. The effort to restrict compensation hearkens back to former section 141 of the Indian Act, which prohibited Indigenous people from hiring lawyers or collecting funds to advance claims in court from 1927 to 1951 — a throwback, in other words. A disproportionate number of those affected by the lacunae in section 2 are caused to be deprived of Indian status, and a disproportionate number are single mothers with children.

These women and children will continue to be denied the tangible benefits accruing to status, like medical care, income, educational support and the right to live on reserve. They also lose the right to pass on status to their children, which the cases of Lovelace, McIvor and subsequent cases describe as “a personal right,” while acknowledging broader cultural dimensions.

The losses to individuals, families and nations caused by deprivation of status are significant and, in some cases, extend over many years and generations. The damage cannot be repaired simply by having access to the benefits once individuals are registered. The law must be changed. The discrimination in the law is illegal and unconstitutional.

I hope this information is useful to your careful consideration of this historic deliberation. Meegwetch. Thank you.

Honourable senators, I would never have thought that one day we would be in this chamber when our moms — Dawn, ma belle — stood up against the government, against the Indian Act, but also against many men who were Chiefs at that time. It is very important to talk about this chapter.

We still taste that bitterness, but the beauty, the healing and the power that I saw today — this room was and is still filled with Chiefs demanding that we go further than what Bill S-2 is proposing on the second-generation cut-off. The Chiefs are asking.

For me, I try to stay in a place where I can keep the emotions for later, but the wolverine in me — we say carcajou — wants to make sure that I honour what your mother did, very alone, walking into the Supreme Court of Canada and opening other doors for other women, such as former Senator Lovelace Nicholas, our sister from this chamber, and so on. Who paid for that? I guess they did. It was hard.

It is very important for me also to acknowledge that, finally, we have men, we have women, former Chiefs, elected Chiefs and friends who are saying, “Push this bill as much as you can because the momentum is here today and now.”

We are from that lived experience, so let’s not forget that. We try, like the Famous Five women, to enter Parliament. It is the same for us, for women affected by the Indian Act, still today. I try to smile. I try to walk here with dignity and say, yes, it is here in my blood, but, for me, I stand strong today because I believe this report with the amendment presented by the Standing Senate Committee on Indigenous Peoples should be adopted and then move to third reading.

This is what I believe. I would never think that we have to argue for that part here in Canada, ever. That wasn’t in my speech, but I needed to share that.

It is very important that, when the bill arrived, the delay was short. The B.C. court didn’t have the same time that we have today. It was very transparent, very honest. If amendments are there to improve, and if there is a willingness, I’m willing. You can quote me. It’s in my second reading speech. But now we have more time. We, the two chambers, have until April.

The committee and I, as the sponsor of the bill, made sure that we respected that time frame, that delay. We made sure that we had diversity with regard to those who would come and say that they agree or disagree, or say yes to this amendment and no to that amendment, or that they don’t like Bill S-2 at all. We had one voice, and it is important for me to mention that voice.

However, it is also important for me to remind all my colleagues about what they said regarding the duty to consult. I will say it in French because minutes count.

Consultation is a constitutional duty. I am going to quote an excerpt from section II of Part A of the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, a document released by the federal government in March 2011:

The common law duty to consult is based on judicial interpretation of the obligations of the Crown . . . in relation to potential or established Aboriginal or Treaty rights of the Aboriginal peoples of Canada, recognized and affirmed in section 35 of the Constitution Act, 1982.

This paragraph is one of the provisional guidelines presented in the spirit of renewal in 2022-23 in a report.

It is important to state the facts: they have not yet been officially adopted. The part involving women in this consultation process is to ensure that there is a gender-based analysis when talking about modern treaties and self-government. This has already been the subject of debate.

For decades, the courts have reminded us of an essential distinction. Section 35(1) provides as follows: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

I would like to share something that is not cited as often. Section 35, subsection 4 this time, states that rights are guaranteed equally to both sexes:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

That point matters to me because, according to our nations’ social norms, women have a place. Colonialism disrupted that way of doing things, but we know women have a place. This is also an opportunity to remind our brothers and sisters that it is time to reclaim our place in today’s world.

I participated in the UN debates on every article of the United Nations Declaration on the Rights of Indigenous Peoples. The room was full of people speaking Spanish because they wanted a language all countries could share. As part of a concurrent UN event, there was a debate on the UNDRIP articles. That’s when I said to my neighbour:

“Please, could you translate for me into Spanish?” That was because we were debating about which article we should adopt, the language and the brackets or removal of brackets. She said, “Okay.” So I said to this big crowd of indigenous people from around the world:

Do you know that what you are doing is very important? But I want to read and I want to see and I want to make sure that women are also included in that declaration, that everything that it says in those articles is applicable to men and women.

They applauded. I thought it was consent. Then I felt a tap on my shoulder. “Come outside.” It was said in English. At that time, my English was rustier; it wasn’t good. I had to argue with a Chief because the impression was that if we come and say “women,” it is going to dilute the declaration — those days, many moons ago.

But today those words are also in that declaration, so I’m confident that if we do a real and sincere process with the First Nations, the nations here in Canada, we will keep in mind and in our spirit many protocols from our nations, from the Constitution and from the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

These are extremely powerful and necessary tools, so why is this becoming problematic during the debates we’ve been having for some time now? I want to approach this issue honestly. When people talk about discriminatory provisions, they seem to be trying to extend the duty to consult to areas where it was never intended to apply.

I know Senator Moreau said that’s not what we’re debating, but it’s more of a nation-to-nation debate. The reason I think this approach is dangerous is that those who argue that the government has a duty to consult are creating a tool of obstruction.

Let me be clear.

I’ve heard that a lot.

I want to say, “Me too.” There is nothing I try. I’m not a lawyer. I’m a super nôhkom, a super mom and — I hope — a super senator, but I have read many Supreme Court of Canada decisions in English and in French. None of them said, “You need to consult on discrimination. You need to consult on equality, according to the Charter.”

I’ll say that in French to make sure I don’t misspeak.

Nothing I have read in the Supreme Court’s case law requires that a section 35 consultation be used to prevent or delay the equality remedies guaranteed by the Charter.

When constitutionally established injustices recognized by the higher courts are corrected, it is important that Parliament perform its duty. We are Parliament and we must perform our duty.

You’ve heard my colleagues list some sections of the Charter. Some senators talked to you about various court decisions. I’d simply like to point out that, for every decision given concerning the Indian Act and status, emancipation or discrimination between men and women under sections 6(1) and 6(2), whether subtle or overt, we, the Parliament, have said, “We can do more.” The point we are trying to make is that we have that responsibility.

We’re also trying to explain that when we have to appear before the Supreme Court of Canada or the court of appeal, a lower court or the United Nations, financial costs are involved that we as women or men can’t afford. I find it unfortunate that we need to debate this at a time when we have the power to take action so that our mothers and our sons can finally say that they’re recognized.

There are two parallel paths at this time, and I would like to conclude my remarks with something that, for me, makes no sense. Some of you might tell me that legally, it is feasible, but emotionally or politically, why should we do this as parliamentarians?

In my view, it may appear simple to propose something that is consistent and in keeping with the teachings of the judiciary, either because it is a constitutional obligation or because, since the McIvor and Descheneaux decisions, the courts have given us opportunities and encouraged us to do more. This is not a political choice; it is a matter of fundamental equality.

For me, being in this chamber and imposing a full consultation on every reform amounts to giving us a small implicit veto, which the Supreme Court refused to do in Haida Nation v. British Columbia.

The two things should not be confused; rather, the other process should be encouraged. For me, nation-to-nation relations are not to be based on the Indian Act, the law that used to be called “An Act for the gradual enfranchisement of Indians.” For me, it is a policy of assimilation. It is not about self-government, it is not a treaty right, nor is it an Aboriginal right. It is a policy designed to ensure that I stop existing, period. Through Bill C-31, part of the battle was won, but it added a new form of control to determine who was Indian and who was not.

We are Innu, we are Anishinaabe, we are Mohawk. We are not section 6(1) or 6(2) Indians, but that is what the law says, and it has a major impact. Imagine that feeling or reaction in this chamber.

When Bill C-3 was debated in this chamber and in committee, something that the court said was there is discrimination. We need to change the Citizenship Act. What it says in my view or in my world is that we always — and we always did — welcome. “Quebec” is an Innu word. “Quebec” means, “Come, get off your boat.” So we were awesome Innu People, I can tell you.

But in this chamber, when I saw Bill C-3, which was Bill C-71 —

Senator Audette, your time is up. Are you asking for more time?

I am asking for two minutes.

Is leave granted, honourable senators?

Thank you.

The parallel for me was we will welcome the second generation — how do we say in English — people who were born outside of Canada to be able to apply and become a Canadian citizen — one-parent rule.

When me, if I have one child or two — I have five — I have to prove who the father is — two-parent rule. Why, here in Canada, do we say yes to people who were born outside, and we are giving them that right? And Minister Gull-Masty, her government, her nation, the James Bay and Northern Quebec Agreement, since day one of that modern treaty, only one-parent rule.

I know it works for Cree people and Naskapi under this modern treaty and also for people who come from outside, because they have a grandparent and can apply to be a Canadian citizen, but not us.

Please think about that. Thank you.

Honourable senators, today I am speaking to you as a member of the Standing Senate Committee on Indigenous Peoples at the report stage of Bill S-2, and I ask that you support our report and Bill S-2 as amended.

I wish to acknowledge the work that was done by the committee, with a special thank you to our warriors and to Professor Pam Palmater, who took time to mentor me and provide valuable advice to ensure this speech was about truth, compassion and working towards justice.

I have a special acknowledgement to our ancestors who are here with us today. I want to thank all the witnesses for their powerful, sacred testimonies and submissions. I am sorry that this quest for equality and justice appears to be on repeat.

This is not the first time Senate committees have been called on to study a bill meant to address sex-based and race-based discrimination in Indian registration in the Indian Act. We also have the benefit of the hard work done by the Indigenous Peoples Committee during its consideration of the Bill S-3 amendments in 2017, led by former senator Lillian Dyck as chair; the Human Rights Committee during its consideration of the Bill C-3 amendments in 2010, led by former senator Nancy Ruth as chair; and the Legal and Constitutional Affairs Committee during its consideration of the Bill C-31 amendments in 1985, led by former senator Joan Neiman as chair. Notably, all three reports noted similar concerns in their observations.

In 1985, the Legal and Constitutional Affairs Committee report noted the following about Bill C-31:

Some members of the Committee expressed reservations as to the constitutional validity of some amendments contained in the Bill, and about the fairness of its application to some native people.

In 2010, the Human Rights Committee report noted about Bill C-3, “Bill C-3 does not deal with all sex discrimination stemming from the Indian Act.”

In 2017, the Indigenous Peoples Committee report had extensive observations, including the following:

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. . . .

It went on to note:

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.

It is now 40 years later, and sex- and race-based discrimination in the Indian Act remains. First Nations and, in particular, First Nations women and their descendants have not enjoyed the benefit of section 15 equality rights. The Charter of Rights and Freedoms is a foundational part of Canadian law and democracy. Every Canadian and Indigenous person has the right to the protection and benefit of section 15 equality rights, including First Nations women.

Notably, section 28 of the Charter also provides:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Section 35 of the Constitution Act, 1982, protects and guarantees Aboriginal and treaty rights equally for male and female persons. Bill C-15, when enacted the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, also provides that the rights contained in UNDRIP are guaranteed equally between male and female Indigenous people. These rights, freedoms and protections applied the day they were enacted. First Nations women have had Charter equality rights since 1982, at least in theory. First Nations women are the only group of women told to wait before they can enjoy its protection.

They are told to wait until the government gets around to it; until the government is satisfied that it has had enough consultative engagement and collaborative processes, as well as studies, commissions, reports and inquiries about sex- and race-based discrimination against First Nations women; and until the government drags these women and their descendants through endless litigation and human rights complaints.

Why are they forced to litigate the same issue over and over?

In the Nicholas decision, the federal government conceded that the inability to pass on Indian status to one’s descendants is discrimination based on race or ethnic origin and violates section 15 of the Charter.

This week, the minister acknowledged that the second-generation cut-off is “very discriminatory” and that it “is probably one of the most harmful things that we see.” Let the minister’s words sink in. Yet instead of immediate remedial action, the women are told to wait another two or three years in the hopes of stand-alone legislation, which, based upon experience, is unlikely to recognize full equality rights.

Let’s be honest: Despite political promises to the contrary, no consultation process on Indian registration has ever resulted in voluntary legislative amendments. Previous court cases have recognized this government pattern of delayed equality. In the Descheneaux decision, Justice Masse highlighted that:

The general finding of discrimination in the 2009 judgment of the BCCA in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished by the measures in the 2010 Act. . . .

After finding in favour of Stéphane Descheneaux, Justice Masse went on to say that:

It does not, however, exempt Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether they are based on sex or another prohibited ground, in accordance with its constitutional obligation to ensure that the laws respect the rights enshrined in the Canadian Charter.

What more does the government need?

The Aboriginal Justice Inquiry of Manitoba, 1991; the Royal Commission on Aboriginal Peoples, 1996; the Truth and Reconciliation Commission, 2015; the National Inquiry into Murdered and Missing Indigenous Women and Girls, 2017; and numerous UN reports all told Canada to address sex discrimination against First Nations women. How many more cases must Canada lose? Lovelace, McIvor, Descheneaux, Gehl, Matson and Nicholas all call on Canada to end the race- and/or sex-based discrimination.

The honour of the Crown is called into question when the government picks and chooses when it wants to consult. Canada enacted Bill C-5, the One Canadian Economy Act, with no consultations with First Nations, even though this legislation has the power to run roughshod over section 35 Aboriginal, treaty and land rights. Canada enacted Bill C-5 over strenuous opposition from First Nations.

Canada also enacted two massive omnibus bills: Bill C-38 and Bill C-45, both of which Mikisew Cree First Nation and other First Nations said would impact their section 35 Aboriginal, treaty and land rights. Canada battled Mikisew Cree First Nation in litigation all the way to the Supreme Court of Canada, which held that Canada has no duty to consult when it enacts legislation. Therefore, any government assertion that the amendments in Bill S-2 would be declared null and void by a court due to a lack of consultation is not legally correct.

The Canadian Human Rights Tribunal decision in First Nations Child and Family Caring Society v. Canada criticized the federal government for always advancing the need to consult as a tactic to “. . . justify delay, and denials of equitable services leading to discrimination. . . .” The tribunal also reminded Canada that consultations should never be used as a replacement for providing immediate relief from discrimination.

Also, the government’s assertion that Bill S-2 must pass quickly to meet the court-imposed April 2026 deadline doesn’t hold water. The court specifically declared that it would remain seized of the matter to enable an extension of the deadline.

The most offensive part of all the government arguments on consultations is that it is ignoring the very First Nations voices that are telling the government what to do. It is ignoring the testimonies, written submissions, resolutions and public calls by the majority of First Nations in Canada to end the second-generation cut-off now.

The Assembly of First Nations, or AFN, which is the national organization that represents most of the 630 First Nations in Canada, passed a resolution after the Descheneaux case to:

. . . unequivocally support the elimination of the second generation cut-off provision found in section 6(1) and (2) of the Indian Act that results in a decline of registrants and members of First Nations.

The AFN passed a similar resolution in 2024, calling on Canada to immediately end sex- and gender-based discrimination in the Indian Act.

The BCAFN, which represents 204 First Nations, passed a resolution this past May calling on Canada to:

. . . end all legislative- and sex-based discrimination, reinstate all women and descendants affected by enfranchisement, remove the no-liability clauses in Bill S-2 and previous amendments, eliminate 6(2) status and the second generation cut-off.

The UBCIC has passed numerous resolutions calling on Canada to immediately end all sex-based discrimination without delay, including the removal of the second-generation cut-off.

In committee, many of the other organizations called for the end of the second-generation cut-off: AFN, 630 plus First Nations; BCAFN, 204 First Nations; UBCIC, 100 plus First Nations; AMC, 63 First Nations; AFNQL, 43 First Nations; Anishinaabeg Nations, 39 First Nations; SCO, 32 First Nations; the Council of Yukon First Nations, 13 First Nations; the Mi’kmaq Grand Council, 28 First Nations; Mi’kmaq Confederacy of P.E.I., two First Nations; NWAC; Ontario Native Women’s Association; QNW; Wendat Nation; St. Mary’s First Nation; Snuneymuxw; and Dene.

Honourable senators and colleagues, now is the time to stand with First Nations, stand with First Nations women and children and tell them that they do have the right to equality and to be free from sex- and race-based discrimination in all its forms. That is the law. We legally do not have a choice.

First Nations should not have to sue Canada to force it to follow its own rule of law — its own constitution.

We must show Canadians that we stand for justice and equality for all. Supporting this report and Bill S-2, as amended, would send a strong message to First Nations and First Nations women and children, conveying that they are deserving of equality and that they have a place in their own country and a place in “Building Canada Strong.”

Kinanâskomitinawow, thank you.

I wasn’t planning to speak, but I must say that the quality of today’s debate was outstanding, and it makes me proud to be a senator.

The speeches I’ve heard are remarkable for their diversity and their deeply held conviction that injustice must be remedied. I am not insensitive to this. I don’t have the passion and the history of all the previous speakers, but I would like to add to your reflections by sharing some elements that I think are important and need to be considered.

Some senators have talked about 40 years of discrimination. In reality, it’s been hundreds of years of discrimination; we know that. We’ve talked about the fact that this situation must be corrected. There’s no doubt that it must be remedied and corrected, but I also heard the minister who appeared before the committee — I watched her testimony from my office — and who came back before the committee a second time. I wanted to understand what she was trying to say. I listened carefully. I also listened to Senator Moreau, Senator Prosper, Senator White and the others, who delivered remarkable speeches. I said that earlier, but it bears repeating.

However, it seems to me that when people say, “We’ve been hearing this for 40 years and nothing has been done; the time has come to take action,” I wonder if we are overlooking certain important developments that are critical to our analysis. I am talking about the United Nations Declaration on the Rights of Indigenous Peoples.

UNDRIP was adopted by the United Nations General Assembly, despite the fact that Canada and a few other countries opposed it, but Canada changed its mind, and the government decided to support it.

When I came here almost eight years ago, we were debating MP Saganash’s bill to implement UNDRIP in the laws of Canada. It wasn’t adopted. We couldn’t move forward, because it was a private bill, and the Conservative opposition continuously delayed it until it died on the Order Paper when the election was called after four years of the first Justin Trudeau government.

It was reintroduced again. Finally, the government took the poll and made it a government bill. It was adopted in June 2021, making UNDRIP part of the law of Canada. It contains various provisions that commit the Government of Canada to review the laws and regulations of Canada to ensure they are compliant with the UNDRIP declaration.

As I said, I didn’t have a speech ready, but I checked a few things on the internet.

Article 9 of UNDRIP reads as follows, and we are committed to it:

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

I repeat: “No discrimination of any kind may arise from the exercise of such a right.” Therefore, the right of self-governance implies the right to determine who can be part of your community, but this right doesn’t authorize you to discriminate.

Article 19 reads as follows:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Is there any legislative measure that may affect any Indigenous nation in this country more than amending who can be a member of that nation?

This is what we are committed to. We passed that bill in June 2021, as I said. The bill calls for the government to put forward an action plan. This action plan was tabled in this house and the other place in 2023. I invite you to go and read it. It is a big book with big flowers and colours on the top. It is a very nicely presented document. I cannot use it; it would be called a prop according to our rules.

Read that plan. There are commitments there of the government to review all pieces of legislation. There are three different chapters, one dealing with the Métis, one dealing with the Inuit and one, the first one, dealing with First Nations. In this chapter, you will see many references to determination of who should be a member of each reserve or nation. There, it is a commitment. It is part of the work of the government that the government committed to in 2023.

So here we are; we heard the minister say, “Having engaged in the process, pursuant to the action plan, I’m willing to act on it.” In the letter that Senator Moreau sent us earlier, she provided us the schedule for it. It says this is coming. We are addressing this issue. We are coming with answers, but we have to do it properly. We need to consult. We have to implement what we voted for — we, this chamber, and the other chamber — the UNDRIP principles. We are committed to applying them and respecting them.

Today, I have heard many speeches that say we are also committed to Charter values, and we are committed to Charter values. So how do we reconcile these two sets of values — a commitment to implement changes only after consultation and cooperation, and our urge, rightly so maybe, to change things and address issues of discrimination as soon as we can? We have a tool. We have Bill S-2; we are going to extend it; we are going to address an important issue. I understand that.

But for me, this is a very challenging question because I understand the Charter call. Senator Prosper made it very clear. I heard others who made the call too; Senator Audette made it as well.

At the same time, I hear the minister and the government say we are committed to principles; we are committed to UNDRIP, and UNDRIP means something. It is something we committed to and we can’t discard when it suits us.

So now I’m going read to you — because there have been many references to the Supreme Court — I’m going to refer to a judgment of the Supreme Court that was rendered last year, 2024. That decision is Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, a very important piece of legislation that gives the right to Indigenous groups, Indigenous nations and the Inuit, to decide who should be children in care and who should look after them, and not the White in the South.

I hope that if I run out of time, you will give me a few more minutes. I would like to read six paragraphs from that judgment of the Supreme Court, which is unanimous, which is rare in the Supreme Court these days. Paragraph 3, about the right of adoption and protection of children, reads:

The Act is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership” . . . . The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples . . . or “UNDRIP”), adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing . . . and well-being of their children, consistent with the rights of the child” . . . are of particular relevance to this reference. The Declaration also refers to the right of Indigenous peoples to transmit their histories, languages and cultures to future generations . . . in addition to emphasizing the right not to be subjected to any act of violence, including “forcibly removing children of the group to another group” . . . .

Paragraph 4 reads:

While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriate measures, including legislative measures, to achieve the ends” of the Declaration . . . .

I’ll move on to paragraph 10 now:

For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation aimed at “lifting [Indigenous peoples] out of [their] condition of tutelage and dependence, and . . . prepar[ing] [them] for a higher civilization” . . . .

From paragraph 11 onwards, the reference reads:

The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system . . . became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non-Indigenous families” . . . .

Over time, Canada has abandoned its policy of assimilation in favour of a policy of reconciliation. Parliament established the Truth and Reconciliation Commission of Canada and gave it a dual mandate to “reveal to Canadians the complex truth about the history and the ongoing legacy of the church-run residential schools” and to “guide and inspire a process of truth and healing, leading toward reconciliation within Aboriginal families, and between Aboriginal peoples and non-Aboriginal communities, churches, governments, and Canadians generally” . . . .

The Truth and Reconciliation Commission of Canada —

— which was chaired by our former colleague Senator Murray Sinclair —

— issued several calls to action relating to the welfare of Indigenous children. . . .

The Commission also called upon governments to adopt and implement the UNDRIP in its entirety as a “framework for reconciliation” . . . .

In 2016, Canada made a commitment internationally to support the UNDRIP “without qualification” and to implement it . . . . The UNDRIP gives particular recognition to “the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child”. . . .

Paragraph 15, which is the last one I will quote, reads:

In 2021, Parliament enacted the UNDRIP Act, s. 4(a) of which affirms the Declaration “as a universal international human rights instrument with application in Canadian law”. It is therefore through this Act of Parliament that the Declaration is incorporated into the country’s domestic positive law. In s. 4(b), the statute states that its purpose is also to “provide a framework for the Government of Canada’s implementation of the Declaration”. In s. 5, it provides that the “Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. . . .

Tonight we are called to pass a bill which, I understand, I’m not sure —

Senator Dalphond, I’m sorry to interrupt, but your time has expired. Are you asking for more time?

I would like two minutes to wrap up.

Honourable senators, is leave granted?

Two minutes, Senator Dalphond.

Today, we’re being asked to make a decision about a bill that directly affects all Indigenous peoples in this country. We’re being asked to decide what’s good for them. I would like us to ask this question before we vote: Have we ensured they were consulted and agree with what we’re doing? Thank you.

Senator Moncion, do you have a question?

Yes, I have a question about the consultations.

Will you take a question, Senator Dalphond?

Of course, Madam Speaker.

Thank you, Senator Dalphond.

You’ve been talking about consultation, and section 35 of the Constitution Act, 1982, covers that. Don’t you find it ironic that the government is invoking the duty to consult in order to maintain a legal framework that violates Aboriginal and treaty rights by perpetuating the second-generation cut-off and effectively extinguishing the rights that the next generation is demanding? They talk about it here, but what happened with Bill C-5?

The government’s action plan recognizes that these measures are discriminatory and must be changed. The question is what rules will be followed to decide who participates in each of these communities and who can be recognized as members of them, in other words, whose ties to these communities are sufficiently significant to be recognized. This is somewhat similar to what we did with Bill C-3 in deciding who to recognize as a Canadian born abroad. We tried to identify what significant ties were required to find that the connection to Canada was sufficient.

I don’t know what kind of significant ties could be used to determine membership in the Mohawk community or another community, because I’m not an expert in that area. I am White and also a former judge. I am not the right person to decide that; it is up to the communities to decide that for themselves.

Section 35 of the Constitution Act would not apply to Bill C-5 because it only applies when treaty, Aboriginal or other rights are directly affected by a government measure. Bill C-5 doesn’t affect those rights, but if any of the selected projects go through an Indigenous reserve or across ancestral territory, they will affect that community’s rights and must be subject to consultation under section 35. If the government or the proponent fails to consult, the superior court will order them to stop and require them to consult and obtain free and informed consent. The section 35 duty is there, but it didn’t apply to Bill C-5.

I have a question for you, my former colleague.

Would you take a question, Senator Dalphond?

Of course I would take a question from my colleague.

I think it’s important to put certain things in perspective with Bill C-92. We’re talking about the Supreme Court of Canada, the Atikamekw nation, the Obedjiwan community, my granddaughter, for whom I am responsible, thanks to Bill C-92. This was a jurisdictional dispute between Quebec and the federal government, and it’s worth noting that we are talking about modern agreements and modern negotiations.

Clearly, negotiation and consultation are important, but let’s get back to basics. For this law to be enforced, there must be registered Indians. When a mother gives birth to a child and there is no father to sign, she will not be able to receive the programs that Bill C-92 would allow her to receive in Obedjiwan. Were you aware of that?

Of course, I listened to the committee proceedings, and the action plan recognizes that this is discriminatory and unacceptable. No one supports this. Again, that’s the dilemma here. The problem you are trying to fix is real. It is a serious injustice and a form of discrimination that is unacceptable and despicable.

Would the answer to that question have to be provided by a group of six, seven, 10 or 11 senators? Do the committee members who were there represent the community, the communities covered by UNDRIP?

Senator Dalphond, I’m sorry, but once again your time is up. Another senator expressed interest in asking a question. Are you requesting more time?

I sense that I am going to regret asking to speak, but yes, Madam Speaker.

Is leave granted?

Senator, you may continue with your answer.

I will close by expanding on my answer.

This evening, the decision before you is whether to set aside UNDRIP, which we committed to, on the grounds that this time something else is more important, namely section 15 of the Canadian Charter of Rights and Freedoms, or whether to accept that we introduced a mechanism that the government committed to and agreed to follow this new system. However, I gather that some colleagues were quite reluctant, and I don’t blame them. They say that they have been waiting far too long and that they have lost confidence in the government.

What I am saying is simply this: keep in mind too that the current government and the previous government committed to UNDRIP, that they passed legislation making it binding on us and that we are required to stand by the principles we accepted.

Senator McCallum, do you have a question?

Yes, I do.

Would you take a question?

With pleasure.

I met with the O’Chiese Chief and council yesterday about this, and I told them the minister is consulting. And they asked, “Consulting about what?” They consult once the second-generation cut-off is done. Then they consult with the First Nations — the rights holders — on what resources they’re going to give to the First Nations. But right now, I don’t know what they’re consulting on. They cannot be consulting and saying, “Are you going to continue with this discrimination?” Or there’s even the registration. All those administrative problems are the doing of the government. Would you answer, please?

This was more of a comment than a question, but I agree with my colleague, Senator McCallum. Following consultation, the government must not only determine the most appropriate approach to deciding who belongs to a given community in a manner that respects Indigenous peoples’ right to self-determination, but it must also supply funding once systems are in place. The government must ensure that communities have the financial means to respond to their members’ needs.

I presume that, if a change is made, there will be more members than there are now, and the government will have to live with the consequences of that, which makes sense because it’s part of reconciliation. The government will also have to ensure that appropriate services are available to all members of the community, including those who were unjustly excluded before.

I will be very brief.

Honourable senators, I was not planning to rise to my feet. I think it’s also important that we respect the customary practice that once the critic of a bill speaks, we do respect that practice. However, I have seen too often over the past few years that we don’t respect that practice. Given the fact that Senator Dalphond engaged, I will take the time to also engage inappropriately.

I’ll just say this: I’m scratching my head a little bit. We are in an institution that is supposed to be a place of sober second thought and articulate the voices of minority groups in this country who don’t feel heard all the time — and I have to say, I’m very proud of the debate. I sat back today and listened. It’s an experience to learn from knowledgeable people first-hand about our Indigenous communities. I had the privilege over the last little while to have Senator McCallum teach me a whole hell of a lot about the Indigenous people in this country.

I want to add this on the record: Senator Dalphond, UNDRIP is a document that I had a lot of trouble with because it’s written by an international forum that applies to all sorts of elements and has been imposed on the Parliament of Canada. I would always rather take the side of a solution to a problem that’s Canadian written and driven by Canadian voices for Canadians — and in this case, by Indigenous people.

When our Indigenous Peoples Committee has been given a mandate to take work on behalf of this institution, and when we appoint individuals to various committees to do that work, we do so because of their background, expertise and knowledge. We are a verification chamber. When they report back to us, we listen to the debate and to the findings. Overall, much more often than not, we accept the findings of the committees.

I want to highlight that 10 to 1 was the outcome on this report. I also want to highlight it was 10 out of 10 in terms of the members of that committee. The one dissenting voice was an ex officio member of the government. Of course, they have the right to express that dissenting voice. If I’m mistaken, I take it back, but 10 to 1 is a significant result on a vote.

Also, from the little I’ve perused the work of this committee, there was no dissenting voice among the witnesses who appeared, and there was an extensive list of witnesses.

I want to leave every member with this: At the end of the day, the government in the other place will do what they want. They have that right. They’ve been elected. But we have the right to raise flags, to highlight things for the government and the other place and to express to them some elements that they might have missed in terms of voices and corners of this country so we can help them come to a better solution.

If they think our worth is of such little value and it is that much of an inconvenience to at least be heard, then we should look in the mirror and question what we are doing here. I’m calling the question. Thank you, colleagues.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the “yeas” have it.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division, and report adopted.)

Honourable senators, when shall this bill, as amended, be read the third time?

(On motion of Senator Audette, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)