Indian Act

Bill to Amend—Amendments from Commons—Motion to Concur in First and Third Amendments and Amend Second Amendment—Debate Continued

November 8, 2017

Hon. Dennis Glen Patterson: Honourable senators, on November 17, 2016, I stood before this chamber at second reading of this bill. As critic, I described the bill as it had been described to me at a Senate briefing. I believed then that this bill would eliminate the residual gender-based inequities enshrined in the Indian Act that pertained to registration.

But when the bill was referred to the Standing Senate Committee on Aboriginal Peoples, it became immediately apparent that this was not a simple case of eliminating gender-based discrimination once and for all. Indeed, witnesses told our committee there were several circumstances identified under which discrimination would persist.

Colleagues, I know you agree that some of the best work of this great institution is done in committee. As Senator Dyck pointed out yesterday, I believe our scrutiny of Bill S-3 was carried out in a non-partisan and rigorous manner. Every senator sought to discharge their duty to honour and respect the Constitution and human rights of indigenous people, especially First Nations women and their descendants. As Senator Joyal urged us in his statement on the occasion of the Senate’s one hundred and fiftieth anniversary earlier this week:

. . . we should never forget the oath of office that each of us subscribed to before taking our seat, that is, speaking on behalf of its regions and the linguistic and cultural minorities that characterize our national social fabric.

Under the experienced leadership of Senator Dyck, our committee was able to effectively examine the deficiencies of this bill and bring to light issues surrounding consultation and scope that would have left many First Nation women and their descendants without a means to claim their rightful status.

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Our committee’s combined knowledge, experience and expertise enabled us to exercise every mechanism that parliamentary procedure afforded us to bring about the bill we have before us today in the amended message. I am grateful and honoured to have had a part in that committee’s leadership.

As a father of four Inuit beneficiaries, I cannot help but reflect on what my children’s lives would have been like had they not qualified to be beneficiaries due to my non-Inuit parentage. What would it have been like for them to exist between two worlds — an Inuit and a non-Inuit world — never quite belonging to either? The federal government has allowed Inuit to determine their membership in modern treaties and has also endorsed the Inuit approach that if one parent — either parent, whether a man or woman — is a beneficiary, then their children are also considered to be Inuit, with all the rights that are their entitlement. These modern treaties were afforded the highest protection in the law by being entrenched under the Constitution of Canada. It is unfair, discriminatory and hypocritical that Canada should allow different rules to prevail, by a long-standing federal statute, for First Nations.

Senators, while I am supportive of the message before us as amended, I would be remiss in my duty as a member of Her Majesty’s Loyal Opposition if I did not speak to three areas of concern that I still have with this bill.

The first pertains to the consultation period on how the government will remove the 1951 cut-off. Both times our committee studied this bill, witnesses described the consultation as lacking. National Chief Perry Bellegarde of the Assembly of First Nations told us that First Nations impacted by the bill were not properly resourced or given enough time to adequately review the proposed amendments to the Indian Act. We were astonished to find out that the plaintiffs inDescheneaux — the case that forced the writing of this bill — and their counsel were not consulted in the first round. Additionally, Aboriginal women’s groups such as the Native Women’s Association of Canada, the Assembly of First Nations Women’s Council and Quebec Native Women Inc., legal associations that specialize in Aboriginal law such as the Canadian Bar Association, the Indigenous Bar Association, and the Women’s Legal Education and Action Fund, as well as key individuals such as Sharon McIvor and Dr. Pam Palmater, were not consulted to ensure that the bill achieved its stated intent and that there were no negative legal implications of this bill.

Ms. Francyne Joe, President of NWAC, told us very clearly that engagement — and that is what the department called it — “. . . does not mean consultation, and consultation does not mean consent. Indigenous women need to lead these discussions.”

It is my fervent hope that the government will take the lessons learned from this experience and ensure that the co-developed process outlined in the bill will satisfy the demands of indigenous women, both status and non-status, to be a main driver of this consultation period.

Second, I must admit that I would prefer a firm date for the coming into force of the provisions that would remove the 1951 cut-off. I understand that time is being given to launch a co-developed consultation process and to develop a proper implementation plan. However, it is unusual for me to see the coming into force of any part of a bill left so open-ended. It will be of the utmost importance, therefore, that we continue to remain vigilant and hold the government to account to ensure that the consultation period and the creation of an implementation plan are done in a timely manner.

My final concern is related to the less-than-firm numbers provided to us in the recently released Clatworthy report. I appreciate that there was little time, from when the second court extension was granted to now, to generate an accurate report; however, having to pass this provision without being sure of the potential impacts is difficult for me.

Justice Chantal Masse, who presided over the Descheneaux case, said in her decision that “It also goes without saying that the issue of the costs that more inclusive provisions would incur is one element among many that Parliament may consider,” and she is right. I believe that any responsible government, at any level, should know what the potential impacts of their policies would be — ethically, socially and financially. The public deserves to know the costs and the implementation plan before this bill is fully proclaimed.

That said, human rights cannot be legislated based on costs alone. That is why I continue to be supportive of this message as amended. I look forward to the opportunity to give this process the proper scrutiny it deserves when the government reports back to this chamber through our committee at the 5- and 12-month marks, as they have committed to do in this bill. The issues of no set timeline to end the consultation period and a lack of accurate cost projections on the impact of this bill are two instances where we can, and will, hold the government to account. We have done this rigorously in the past in considering this bill, and we will do that again.

Honourable senators, I believe it is our duty as legislators to seize this opportunity to eliminate the persistent inequity between descendants of the matrilineal and patrilineal lines. Many women and their descendants, as Senator Dyck so eloquently expressed in this chamber yesterday, have waited for decades for their rights to be re-established, and some of their descendants have waited their whole lives to have their rights acknowledged.

The path from the introduction of Bill S-3 to today has been long, hard fought and fraught with high emotion. The Descheneaux decision was rendered on August 3, 2015; and in light of the election, Parliament was given until February 3, 2017, to rectify the issues with registration that were brought to light by the case. In December 2016, after pressure from our committee, which refused to report the bill back to the Senate, the government agreed to seek an extension. One was granted in January 2017, moving the deadline for legislation to July 3, 2017. After this chamber again made clear that it would not support anything short of the total elimination of gender-based inequality in registration, the government once again sought an extension, bringing us to the third and final deadline we are now facing of December 22, 2017.

I believe that by supporting this message — and it is a bit of an act of faith — we are doing right by indigenous women and their descendants. I believe that by supporting this message, we are showing that we are listening to the words of Justice Masse, who stated:

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. . . .

From the perspective of Canadian citizens, all of whom are potential litigants, the failure to perform this legislative duty and the abdication of power that may result are obviously not desirable.

This from a judge.

Honourable senators, the exclusion of women and their descendants from their rightful status and entitlements, I believe, has been a factor and will be shown to be a factor in the disproportionally high number of indigenous women and girls who have suffered from homelessness, poverty, unemployment, health issues, and who have tragically, in too many cases, gone missing or been murdered.

I join Senator Dyck in calling this a truly transformative moment. We stand at the brink of a significant paradigm shift that seeks to move away from decades of previous policies of legislated limitations on the status of Indian women and toward policies that foster reconciliation and inclusion.

In closing, I would like to thank Senators Dyck, Lovelace Nicholas, Watt, Christmas and Sinclair, who, as indigenous senators, have led the charge for change. I would also like to thank all the members of the Aboriginal Peoples Committee and their capable staff, and in particular, my Conservative Senate colleagues for their dedication to ensuring that the resulting legislation addresses the desires and needs of indigenous women and their descendants. Thank you to Senator Lankin and all those who have worked hard on this bill.

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In conclusion, I hope that all senators will join me in supporting this message, as amended. Thank you.

Speech – S-3, Amendment to the Government Message