Canada's Original Think Tank

Consideration of the amendments by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Consideration of the amendments by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Consideration of the amendments by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Hon. Lillian Eva Dyck: 

Honourable senators, I rise today to speak to the motion tabled by Senator Harder. As you heard as he was reading out the motion, it’s a five-page-long motion that’s highly technical and complex. I thank Senator Harder for sharing the motion with me earlier so that I could delve into it and be ready to speak to it today.

I don’t intend to discuss in detail the technical aspects of the proposed amendments, though I did analyze them carefully with respect to the “6(1)(a) all the way” amendment and its intentions, and I will discuss this aspect briefly.

But before I discuss today’s motion, I want to put it into context much like Senator Harder did but in a briefer form.

With respect to the very recent context, as you know, the House of Commons’ message essentially asked for an agreement by the Senate to revert back to a version of Bill S-3 that was tabled by the government in May 2017. The Senate “6(1)(a) all the way” amendment was removed by the House of Commons in June 2017. This was the amendment drafted by Sharon McIvor and her group and tabled by our colleague Senator McPhedran.

The “6(1)(a) all the way” amendment was the amendment which would have removed all female sex-based discrimination in the Indian Act, including persons affected before 1951, and thus it was, in our consideration, a key amendment.

Today, the motion before us essentially undoes what the House of Commons did to Bill S-3 and puts it back in a form very close to what the Senate passed on June 1, 2017. The motion today legislates the intentions of the “6(1)(a) all the way” but in a different manner than the McIvor amendment. The end result is the same and the legislative mechanism proposed can actually be seen as an improvement over the McIvor amendment. If we pass Bill S-3 as amended by today’s motion, all of the female sex-based discrimination will be eliminated in the Indian Act.

Those who lost status before September 4, 1951, will also be able to gain it back, but at a later date, to be fixed by an order-in-council. This group, the pre-1951s, was a major sticking point for the government. The government initially was concerned about the possibility of anywhere from 80,000 to 1 or 2 million new Indians being eligible to be added to the registry. As we received the data from the Clatworthy report, we see that we cannot get a reliable estimate. So we have to proceed, because we don’t know what the actual numbers will be. But I’m happy that the government decided that they will move ahead regardless of not knowing the exact number.

The motion today puts into the legislation the clauses which allows those who were born before 1951 to regain their Indian status at a later date. This is a major accomplishment. They will actually be part of the legislation.

Let’s review what the Senate “6(1)(a) all the way” amendment was intended to do versus what the amendments in Senator Harder’s motion intends to do. Basically, both approaches accomplish the same goal. The intentions of the “6(1)(a) all the way” and the proposed amendments today are the same. First of all, this intention is to eliminate all discrimination against Indian women to transmit their status to their descendants because of the provisions in paragraph 6(1)(c) of the Indian Act. That is the problematic paragraph. It favours Indian men by allowing them to regain status because of the double mother rule. And it allowed Indian women who lost their status for three different reasons to regain status: one, an Indian woman who married a non-status man; two, an illegitimate female child of an Indian woman; and three, an Indian woman enfranchised because her husband lost his status.

Now you might think that would have fixed everything, but unfortunately there were problems with the 6(1)(c) amendment and we found a series of exceptions. That’s why we’re in the pickle that we’re in.

The intention of the 6(1)(c) amendment and today’s amendment was to fix this problem identified and validated in many court cases such as the Descheneauxcase, the Sharon McIvor case, and so on. If we pass today’s motion, we will fix the sex-based discrimination in 6(1)(c) by December 22. We will not fix the pre-1951 group until after that date, but the clauses that refer to that are actually in the amendment. So the legislation will be enshrined but will be enacted or legislated at a different date.

Essentially, there will be no legal difference in the rights of persons under the new 6(1)(c) and its long array of subclauses compared to the rights of persons with clauses under 6(1)(a). This was one of the cruxes of the McIvor group’s criticisms of the bill, namely that the rights of 6(1)(a) were superior to those who were included under 6(1)(c). That will no longer happen if we pass the bill, as amended, today.

In other words, honourable senators, we will get rid of the second class inferior category of 6(1)(c) persons. They are in effect 6(1)(a) persons. When we pass the final clause that deals with the pre-1951 cut-off, then we will actually amend the bill even more to take out pages and pages of subclauses under 6(1)(c), simplify it and move it up to 6(1)(a), which is exactly what the Sharon McIvor group wanted.

To recap, this is what the Sharon McIvor group wanted. They termed it as “getting rid of the subcategories.” In their amendment, they amended clause 6(1)(a) by adding two subsections, 6(1)(a)(i) and 6(1)(a)(ii), to accomplish this.

Second, with regard to these two amendments, the intentions of the “6(1)(a) all the way” amendment and the amendment in today’s motions both are intended to grant status to those who were cut off because they were born prior to 1951. That’s important to remember. As I said before, that was a major sticking point. While the “6(1)(a) all the way” amendment regarding the pre-1951 amendment was intended to come into force at the same time as the amendments related to clause 6(1)(c), the motion today stipulates that these clauses meant to include the pre-1951 group will come into force at a later date. When these amendments come into force, the subcategories of 6(1)(c) will be able to be simplified and added into the 6(1)(a) category instead, as I said a few moments ago. I hope I’ve made this clear because it’s not the easiest piece of legislation to make clear as you read the various technicalities.

Should we be concerned about the deferred date of the implementation of the pre-1951 group? The coming-into-force provision, a specific date, has not been identified. Of course we worry about that and I as an individual worry about that. But we have to counter that with the legislative mechanism to include the pre-1951 group that is actually included in the bill. This is a major milestone in regaining the rights to status as registered Indians. This has never happened before.

By convention, governments do not put into law any provisions they do not support in implementation regardless of the coming-into-force date. This is a clear statement of the government’s intention. This is much better than the vague promises in the past to conduct consultations. As we know, as Senator Brazeau pointed out, in the past with Bill C-31 and Bill C-3 on the same topic, consultations were promised, consultations occurred, and nothing happened. This is a much greater response because it actually has the clause enshrined in the bill. With the reporting and consultations in the bill, the Senate can play a very firm role in ensuring that this happens.

What we have today is far superior to past promises of conducting consultations to determine whether the pre-1951 group should even be given the right to regain their status. That bears repeating because I think we need to really get that into our brains. We’ve been trying to get this for so many decades. It’s hard to believe that we actually have it. When I listened to you, Senator Harder, I almost broke down and cried because so many women — not myself, necessarily, but many many women — have been pushing for this for so long, and to hear you say it was a pivotal moment for me.

The pre-1951 group has been granted this right in today’s proposed amendments to Bill S-3. The follow-up discussion with First Nations on Bill S-3, as you said, Senator Harder, will not be on whether the pre-1951 group should be in the legislation. It will be on how they are going to implement this. How is this going to affect your community? Because we do know there are some communities who do not support this bill. There was a group from the Kahnawá:ke nation who appeared in the House of Commons. Quite simply, their stand is marry out, get out. I don’t think the vast majority of First Nations take that view, but we have to recognize that not every band is in support of this major improvement.

With respect to consultations, if we look at section 11 of the bill on consultations and reporting, do we accept this motion today, or do we attempt to force the government to implement the pre-1951 provisions in the bill by amending Senator Harder’s rule? Do we attempt to put in a fixed date? We could do that, but I honestly don’t think that would get us anywhere.

We are on the threshold of a major victory, and I think we have the power as senators, as individual senators — Senator Lovelace Nicholas and I on the committee as indigenous women, Senator Patterson as the deputy chair of the committee, the Aboriginal Peoples Committee have pushed this, and, believe me, we will continue to push this. We will continue to monitor it. This is as good as you can get. You can’t get any better.

Realistically, when the message came from the House, we had very little. This is a major improvement over what we had. As I said, and I’ll repeat myself, the Senate can continue to play an active role and act as a watchdog on government implementation of this new amendment. Because this amendment will be actually enshrined in law, regardless of the composition of any future government if we do have an election and we don’t have a Liberal government, or if we don’t have a majority government, the Senate can continue to press the government of the day to bring this clause into force and can continue to hold the government accountable to eliminate all sex-based discrimination in the Indian Act based on the 1951 cut-off date.

I think this highlights the importance of the Senate. We have worked together in a non-partisan way, collectively, to get to this point, and we will continue, I am sure, to work collectively together to ensure that what is promised in this bill is actually implemented.

In the end, today’s motion is a good move by the government. I see it as a big step forward, especially compared to the message which I said essentially was cutting out the pre-1951 group, which more than likely will be a large group, but they deserve to be recognized, and they deserve to be part of this bill. It is a major improvement over the version of Bill S-3 returned to us by the House of Commons. I think it’s a giant leap forward for First Nation women and their descendants. I see it as a giant leap forward.

The government, in an October 31 letter from the minister, is now talking about the nation-to-nation discussions that will be ongoing. I would say that any non-status Indian whose mother, grandmother or great-grandmother lost their status due to marriage to a non-status male or those women who lost their status because they were born out of wedlock should be part of those tables. That was the intention, to include people who aren’t in the registry now. They should be part of those discussions. They are in the legislation, so they should be at this table, and I encourage them to do so. We will certainly try to contact them to make sure that happens.

I would like to acknowledge the role of the Aboriginal Peoples Committee which suspended study of this bill 11 months ago, on December 6, 2016. It was our committee that added the “6(1)(a) all the way” amendment tabled by our colleague Senator McPhedran and passed by the Senate as a whole in June. I would also like to acknowledge that Senator Patterson, Senator Sinclair and I sent a letter saying we wanted to work with the minister and that we did not want to start the discussion in the Senate chamber right away. We wanted to allow time for there to be research and analysis done to come up with a better bill.

The Aboriginal Peoples Committee has played a pivotal role. We did an in-depth study of the initial bill. It was decisive but cooperative. This initial move was possible only because of the support of our Conservative colleagues because they were the majority of the committee.

Could I have five more minutes, please?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Dyck: I would like to thank our Conservative colleagues for that, because at that time the Liberals were a minority and at that time there were only two independents on the committee. They could have done as they pleased, but they took a non-partisan approach and did what they thought was best.

I would also like to thank the witnesses Sharon McIvor and Pamela Palmater whose clear, compelling testimony encouraged us to include the “6(1)(a) all the way” amendment tabled by our colleague Senator McPhedran. The government version is shorter, cleaner, and most importantly it removes the clause at 6(1)(c.4), which is the cause of the 1951 cut-off. In the “6(1)(a) all the way” amendment tabled by Senator McPhedran, that clause would have remained in the bill and would have created a conflict. So it wasn’t necessarily the best route. Also, that amendment did not contain any coordinating amendments. So it created confusion. In fact, when Clatworthy looked at it, you can see where Clatworthy had difficulty understanding exactly what it meant as well. What we have tabled here today is a different route to the same destination. It serves the same purpose.

I would also like to mention that the Native Women’s Association and the Ontario Native Women’s Association and FAFIA, the Feminist Alliance for International Action, support a “6(1)(a) all the way” type of amendment. The Ontario Native Women’s Association has a petition that was signed by over 700 people. The FAFIA petition that went out a week ago has been overwhelmed with responses from Canadians who see this as important and as an act of reconciliation. There are 900 organizations and 300 to 400 individuals who have signed the letter to the Prime Minister. There are 14 pages of signatures on this petition. That shows us how important this is to Canadians and how we have signed on to reconciliation.

I think the government and the officials and the bureaucrats have found an acceptable solution which avoids a standoff between the Senate and the House of Commons. Such a standoff would have had serious consequences — shutting down the registry and loss of the tremendous gains for First Nation women contained in today’s motion. I urge all honourable senators to pass Senator Harder’s motion by the end of this week. I fully support the motion. Let’s move it and urge the members in the other place to concur.

To conclude, let me share this story with you. When I woke up this morning, the classic line from the movie 2001: A Space Odyssey, was prominent in my mind. It goes like this:

Something is going to happen. . . . Something wonderful.

Colleagues, if we pass today’s motion, something wonderful will happen, something that First Nation women have been waiting for, for nearly 150 years.

Finally, Indian women will be recognized in law as having equal rights as Indian men to transmit their status as registered Indians and all that goes with it — your language, your culture, your connection to your family, your connection to your community. And with that, the many First Nation women like Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, Lynn Gehl and Senator Sandra Lovelace Nicholas can breathe a sigh of relief. I know I will. Thank you.