Canada's Original Think Tank

Debate on the motion that the Senate concur in the amendments 1 and 3 made by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Debate on the motion that the Senate concur in the amendments 1 and 3 made by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Debate on the motion that the Senate concur in the amendments 1 and 3 made by the House of Commons to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Hon. Serge Joyal: 

Honourable senators, I would like to underline the continuous efforts of Senator Sandra Lovelace Nicholas, Senator Dyck, Senator Sinclair, Senator Patterson, Senator Christmas and all the Aboriginal senators that we had the privilege of having assist us in the road to reconciliation.

That being said, we have to understand the issue at stake here. Essentially, it is the Indian Act adopted in 1876, more than 140 years ago. What are the essential elements of the Indian Act that are so insidious, so tricky and so nasty? It’s essentially the principle of discrimination.

With the Indian Act, what have we enshrined in an act of Parliament? In those days, parliamentarians voted in both chambers thinking that they were doing the right thing. What did they do? They put forward the principle that if you are an Aboriginal, you will be pushed out of the mainstream of Canada. You were either pushed onto reserves, or on reserve you were denied the natural law of succession of your forefather’s identity. How did they do it? Of course by singling out women. According to most Aboriginal tradition, the identity passed through women in matrilineal societies. The authors of the Indian Act then had one idea in mind: How do we squeeze the identity through women?

As Senator Lovelace Nicholas fought against, if you were an Indian woman marrying a non-Indian man, bingo, you were out. If your family line had any dilution of identity, you were also out. The philosophy was that through attrition the number of Indians would shrink to a point of being meaningless and suffocating on reserves. In the meantime, we tried to deprive them of their ancestral land by pushing them in front of the courts to try to reclaim title — in other words, denying their rights and then saying, “Go to court to prove your rights.” That’s what you did. That’s what Descheneaux did. That is what McIvor did. Honourable senators, there have been 250 decisions in the last 40 years in Canadian courts where we tried to take away Aboriginal title of their land.

It was fought by the Canadian government with an army of lawyers from the Justice Department of Canada and with all the money required all the way up to the Supreme Court. It cost thousands and thousands of dollars, and it tests the will of survival because you get exhausted, you get psychologically crazy with the fact that you have to always fight to maintain the dignity of who you are.

Do you know how many claims are still pending? There are 503 different claims, special claims, particular claims of the government’s failure to honour the treaties that were signed to push the Aboriginal people out of the land because Canada was moving west.

We have to reflect upon those things, and this is what is in Bill S-3. Now we are asked by the government leader to accept and remove the discrimination against women, but we won’t give you a date. Beware of the white man. There is a dictum that says, “Fool me once, shame on you. Fool me twice, shame on me.”

Honourable senators, the story of Canada in relation to Aboriginal people is a story of deception, hypocrisy and broken promises. Do you know how long it took for Descheneaux and associates to receive a decision? The decision was given in August 2015. Two years later we are still fighting against the government. Mind you, honourable senators, if we had not insisted last June on the proposed section 6(1) and the rest on this bill, you would not hear us today, and we would not be debating this afternoon how to address the issue of discrimination in relation to women in the Indian Act. That would have been out of the agenda. It would be out of the radar screen.

We are here debating this because we insisted, because the Senate stood up to its constitutional duty, to speak for a minority that has been battered for 140 years. Now the government asks us to accept their word that one day along the road, after consultation, and there is no limit on the road, everything will be fine in the land of bounty that is Canada.

On the basis of past history, should we believe this? Would you believe this, if you would have been cheated for 450 years, that someone with good and express intentions would come to you and say that after you have fought for four years, after the Minister of Justice, honourable senators, went in front of the Court of Appeal last summer and requested an extended time to come forward with the solution?

You know what the Court of Appeal stated last August in relation to that request of extension by the Minister of Justice? I will read it:

The declaration of unconstitutionality has been suspended for over 24 months now and the Attorney General of Canada is asking that it be further suspended to 29 months. Such a lengthy suspension could undermine public confidence in the ability of the courts to respect and uphold the Constitution.

What did it say? It said, essentially, that the Minister of Justice is asking for an extension that will bring the judicial system in disrepute because she is extending the time too much. That’s what is in this decision of the Court of Appeal, August 18 last summer, less than three months ago.

Now the same minister comes to us and tells us, “Well, trust me. I’ll do this in consultation.”

Unfortunately, I will have to paraphrase the government leader for whom I have a lot of admiration: Well, if the government doesn’t do its job, you parliamentarians will do the job on its behalf.

Do you want me to repeat what it means? It means that your rights are still in the hands of the majority. Your rights are not protected by this bill. Your rights will be again at the whim of the majority of parliamentarians. Who are they? The other place and us — 338 and 105 members respectively, 443.

How many Aboriginal women are there here? You will be standing on your feet again pleading to us, the majority, to recognize your rights and to continue to eliminate discrimination.

We have to be very mindful of what we are doing today on the basis of what has happened before.

I can’t trust a minister who has been fighting this tooth and nail for four years, who at the same time was fighting in the Human Rights Tribunal of Ontario for the status of Aboriginal children, fighting all the way. Even though the decision went against the government, the government was in slow motion. So much slow motion that the United Nations Human Rights Committee — you know, this is not me. The United Nations Committee on the Elimination of Racial Discrimination, on August 25, 2017 — three months ago — said that it is “alarmed,” despite its previous recommendation and multiple decisions by the Canadian Human Rights Tribunal, that “less money is reportedly provided for child and family services to Indigenous children than in other communities . . . .” Even though three years ago there were fresh court decisions, the government is still fighting and now even at the level of the United Nations.

So do you still believe the minister, who pledged to you that she is going to be coming sometime, and we will all, down the road, celebrate the happy evening that discrimination is gone?

With regard to discrimination, honourable senators, the Canadian government, in June 2016, accepted, without reservation, to subscribe to the United Nations Declaration on the Rights of Indigenous Peoples. What does Article 8 say? I will read it to you.

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

And finally, to provide for an effective mechanism for redress of “Any form of forced assimilation or integration.”

The Canadian government subscribed to that. The Prime Minister was at the podium of the United Nations last September in front of the whole world claiming that we subscribe to this without reserve. But today what are we asking for from the government? We’re asking to recognize the principle but to let it move along at the pace of a little train.

You and I, honourable senators, will be charged with the responsibility to keep him under watch.

Is this really a solution to the recognition of those minority rights? Should we not do today what should be done, which is to say to the minister that let’s make an appropriate timeline? We’re not stupid. We recognize that there is a need for consultation regarding adaptation of the structure, for the evaluation of the amount of additional money that will be needed. We know that. We’re grown adults. We are responsible.

But should we not specify a target date and say that on the basis of the past we should be very mindful that we are dealing with someone who will be fighting us in court with all the might of the Department of Justice, with all the might of the public purse, for women who are covered, in principle, in the amendment of the government but with no time frame? That is no real right.

What is a real right? It’s a right for which you can stand in a court of law and get a decision from a judge, and an order of compliance for the government that is at the root of the violation of your rights.

Honourable senators, in my soul and conscience, this is what I think about this bill and those amendments. I commend the government for having done some part, but the government would not have done it, honourable senators, if we would not have stood tall in this chamber — may I have five minutes?

The Hon. the Speaker: Honourable senators, Senator Joyal is asking for five more minutes. Is leave granted?

Hon. Senators: Agreed.

Senator Joyal: I’ll conclude, honourable senators. I get impassioned by this issue. Senator Watt can attest to this. In 1980-81, when we were drafting the amendments to the Constitution, we had to wrestle with the issue of Aboriginal women. It is through the representations of Senator Watt — at that time he was not a senator; he was an Aboriginal leader — and other Aboriginal leaders that we added a paragraph to section 35. I want to read you that paragraph because it is important that we remember today what we are doing and how we want to deal with this responsibility.

Section 35(4) states that the rights recognized to Aboriginal people are recognized equally to Aboriginal women. We were proud of doing that because we thought it would be sufficient to redress the torts and damages that have been inflicted on Aboriginal people through centuries of discrimination, assimilation and colonial policies.

When I am confronted yet again today, 40 years later, with the responsibility to try to pronounce on a decision that would have important lasting effects on Aboriginal women who must continue to fight to have their rights recognized, their dignity respected, their cultural identity appraised, and to be part of that great movement of reconciliation, I say that we must think twice before accepting the amendments as they stand, and ask ourselves whether there is an additional step we should take to ensure that there is a deadline and there is light at the end of the tunnel — even though it might be a little far, at least we know the tunnel ends somewhere. Unfortunately, with this bill, it doesn’t end; there is still darkness ahead of us.

That is why, honourable senators, I ask you to think twice before happily voting for the amendments brought forward by the government leader.