We are here today on the unceded territory of the Algonquin people. We are convening to go clause by clause through .
I'd like to start the business of the meeting by indicating that, pursuant to order of reference of Tuesday, June 13, 2017, the committee begins its consideration of , An Act to amend the Indian Act (elimination of sex-based inequities in registration). We are here today to proceed with consideration of the bill.
We have with us department officials who are here to speak to any technical questions we have or potential impacts the amendments may have. They will not have an opening statement.
I'd like to provide members of the committee with a few comments on how committees proceed with clause-by-clause consideration of a bill. As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote.
If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the package each member has received from the clerk. If there are amendments that are consequential to each other, they will be voted on together.
In addition to having to be properly drafted in a legal sense, amendments must also be procedurally admissible. The chair may be called upon to rule amendments inadmissible if they go against the principle of the bill or beyond the scope of the bill, both of which were adopted by the House when it agreed to the bill at second reading, or if they offend the financial prerogative of the crown.
If you wish to eliminate a clause of the bill altogether, the proper course is to vote against the clause when it comes time to look at that clause, not to propose an amendment to delete it.
Since this is the first exercise for many new members, the chair will go slowly to allow all members to follow the proceedings properly.
If, during the process, the committee decides not to vote on a clause, that clause can be put aside by the committee so that we revisit it later in the process.
As indicated earlier, the committee will go through the package of amendments in the order in which they appear and vote on them one at a time unless some are consequential and dealt with together.
Amendments have been given a number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.
During debate on an amendment, members are permitted to move subamendments. I would prefer that you didn't. These subamendments do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment is moved to an amendment, it is voted on first. Then another subamendment may be moved, or the committee may consider the main amendment and vote on it.
Once every clause has been voted on, the committee will vote on the title and the bill itself, and an order to reprint the bill will be required, so that the House has a proper copy for use at report stage.
Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments, as well as any indication of any deleted clauses.
Thank you for your attention, everyone.
This is a committee that has worked on other very difficult issues, and I'm fairly certain will get through this in an efficient and co-operative manner.
Shall we begin?
(On clause 1)
I'm not necessarily opposed to that amendment, but I definitely have questions, first of all, with respect to DNA evidence. Second, who determines what is credible evidence? There's no definition in the Indian Act anywhere with respect to what is credible evidence in terms of determining your status of membership to a band.
I raise the question because of the Daniel's decision of the Supreme Court. For instance, many of my constituents in northern Quebec.... I thought there were only Inuit, Cree, and Algonquin: 14 Inuit communities, nine Cree communities, and two Algonquin communities. In fact, recently there has been the creation of the Métis nation of Chapais—Chibougamau in my riding, which numbers about 400 people. When I asked them on what basis they determined their status as Métis, the answer was DNA evidence.
We're now proposing to legislate DNA evidence in the Indian Act, which is an outstanding move, I believe. It's going to have much impact on the rest of the provisions of the Indian Act in terms of membership, registration, and status of Indians.
I'm wondering if a proper analysis of that proposition was made by the mover.
Madam Chair, thank you.
As tabled at this committee, I am moving to delete proposed subparagraphs (a.1) and (a.2) from Bill S-3, essentially lines 5 to 16 on page 2.
I cannot describe to you how troubling this piece of legislation is overall, and to me personally. Bill sets out to amend a deeply racist act, the Indian Act, a foundational document that essentially legalizes oppression of our first nations people.
Amending a deeply flawed piece of legislation, one that is centred on racism, is highly problematic. We are, however, at this juncture because of a court decision and the timeline set by the court for the government to respond to amendments to the Indian Act in order to address the issue of sex-based discrimination. We must therefore act as a government to address this issue.
At the outset I want to acknowledge the work of so many people who have fought on this issue for decades. I want to thank them for the many calls and emails and the conversations I've had in the last two weeks. I particularly want to thank the Senate for the considerable work they have undertaken in making changes to Bill . I especially want to thank Senator McPhedran for her work on this issue as well as her lifetime of work in advancing rights.
I was in the House two nights ago where my friend and colleague, the member for , spoke quite passionately about this issue and in support of the Senate amendments we're now deleting.
I think we all have received the correspondence from Senator Sinclair that outlines some of his concerns.
Based on all of this I think there is broad consensus on two points. First, the federal government should not be defining who is and who is not an “Indian”. Second, in the interim the federal government needs to ensure that the definition is void of discrimination. That's the consensus that I see among all the parties.
The long-term goal of Canadians, and I think for this government, ought to be to develop a nation-to-nation relationship ensuring that each nation has the absolute right to define its own peoples and to eliminate the Indian Act altogether.
In the interim, we need to ensure that we eliminate discrimination of all forms under the Indian Act.
The issue at hand was triggered by the court decision in Descheneaux. As Senator Sinclair has pointed out, we have a court-imposed deadline of July 3. While the parties seek to extend the timeline, we as legislators have a responsibility to ensure that we make our best efforts to meet the deadline, especially since we have been given an extension of five months.
Consequently, the framework, with the proposed deletion in this bill, will ensure that we can move forward in the near term, meet the set court deadlines, and enfranchise up to 35,000 people.
Madam Chair, I want to be absolutely clear. We are committed to addressing the broader issue raised by proposed paragraph “6(1)(a) all the way”. Unfortunately, the current language in the Senate amendment seeks to address a wide range of registration issues beyond sex-based inequities. These issues are beyond the scope of this bill, and there is insufficient information on how the lack of meaningful consultation would impact first nations' communities or individuals.
We are committed to co-designing a process with first nations to achieve comprehensive reform rather than a piecemeal approach, which has failed time and time again. We will launch a process on broader reform within six months of passing the bill, and we will report to Parliament within 12 months of that launch. These timelines are now in the bill itself.
Experts like the Indigenous Bar Association, whom we have heard from, have made it clear that the wording of proposed paragraph 6(1)(a) is ambiguous, contradicts other sections of the act, and could have wide-ranging, unintended consequences.
We need to address broad-based reform of the registration provisions in the Indian Act, but we need to do so with the benefit of meaningful consultations with those who are impacted, both the communities and individuals, and with the understanding of what the intended and potentially unintended consequences could be.
In the meantime, this bill will recognize the rights of up to 35,000 people we know are being discriminated against—and incidentally, it's been almost two years since the initial ruling—and provide legislated procedural protection for situations of unknown or unstated paternity.
We need to pass this bill to provide justice to tens of thousands of people now, and move forward with broader registration reform to address other historical registration issues the right way, and once and for all.
Finally, I know that those who have fought for this for a very long time are rightfully skeptical of the government. The government says, “Trust us. We will do the right thing.” They have heard this time and again. Notwithstanding the past, I am convinced our government will do the right thing, Madam Chair.
In fact, and have advocated for “(6)(1)(a) all the way” in the past. They are personally committed to ensuring that, in the near term, the government consults in a way that comes up with a proper framework for everyone involved. Together, we will ensure that our government moves swiftly toward addressing these issues.
I look forward to the conversation here, keeping in mind that we are all in a very difficult situation in trying to define the rights of people who have an inherent right and whose membership and identity are something neither I nor anyone in this committee, nor in the House, can actually in any way restrict or enfranchise.
Thank you, Madam Chair.
I want to point out that the Liberals have been supportive of this amendment since it was first proposed, as far back as 2010. For the last year and a half, you have been very aware of the Descheneaux case. You have named a bill inappropriately, and you haven't done due diligence. The Senate took an amendment and inserted.... This government had a year and a half to do due diligence. If it really supported it, it would have done the due diligence to have proper wording, proper understanding, so that today we could be voting while understanding the implications in terms of whether it deals with all the problems that we anticipate it to deal with.
We have heard time and again—in December, February, and March—that this is the answer, and then we have the Senate....
I would like to point out that I am very disappointed that something your government said it was committed to as far back as 2010 didn't have due diligence done. It is inserted by the Senate, and now we are in a very difficult position. I am concerned, and I just want to note that for the record.
Thank you, Madam Chair.
Without getting into the history of the Descheneaux decision, I'll just put it on the record that the new government was formed in October 2015. At the time, our government reviewed the Descheneaux decision. After considerable thought, it was decided that the right thing to do would be not to appeal the Quebec decision, and to set up a framework where we could address the concerns in the decision. It was in the spirit of ensuring that we expand and give justice to those 35,000 individuals who have been disenfranchised under the current legislation.
Late last year, we brought forward Bill through the Senate. It came to us, and we discussed it and sent it back to the Senate. Now, close to the deadline, we are here.
I agree with my friend that this is not optimal. This is not the way we should be legislating, but given that this is in the spirit of doing the right thing, and with a very serious commitment to following through, I think it is important that, as legislators, we deal with this in order to ensure that those people who are disenfranchised, close to two years after an actual court decision, be addressed swiftly.
Thank you, Madam Chair.
I would like to start off by saying that this is perhaps the most disappointing proposal of all, in this clause-by-clause exercise that we're doing today. I think my learned friend will appreciate the fact that, for me, being asked to delay the entitlement of human rights in this country called Canada will always be unacceptable, always. I cannot bear the thought that I will be voting for something that delays the application of human rights in Canada. Let me start off by saying that.
Second, I think we need to be mindful that there may be consequences to doing what my friend is proposing. We're going back to the House. We'll eventually vote on this bill, without the amendment that was proposed by Senator McPhedran. What will be the reaction of the Senate?
That is a point of concern for me, especially when we talk about the people who are affected by all of this. I don't want to be eventually facing a standoff between the Senate and the Parliament of Canada, because the Senate approved these amendments and they sent us a bill in its entirety, as we have it before us, in its present form.
They may, at some point, consider our changes and say “No. We need 6(1)(a) all the way in the legislation, to do justice, not just to the people who are directly affected by the Descheneaux case, but also to all of the other people who have suffered discrimination because of the Indian Act.” This is what we are also facing as legislators who have a duty to uphold the rule of law. That includes human rights, and I'm sure my learned friend can relate to that. He's a human rights expert. I think that's one aspect that we need to be mindful of.
I want to ask a question to him about one of the other aspects. In Bill , with the deletions that you're proposing, does it fix all of the human rights violations and discriminations in the Indian Act? I don't think so.
A lot of the witnesses who appeared before this committee don't think so. I hear you when you say that the Indigenous Bar Association was one of the only organizations that expressed concern with that clause, but the rest of the witnesses, the majority of the witnesses accepted that amendment from the Senate, and part of our duty as well is to consider what's being proposed to us as a committee.
I very much enjoy the company in this committee on both sides. I think we've been doing incredible work since we started, and we need to continue on that path.
It's not the fault of the people who have suffered discrimination in this country because of the Indian Act. It's not those people's fault if we are at this point today, but there's a sense of urgency.
I'm considering this in a larger perspective than that. I understand your sense of urgency with the July 3 deadline that's coming up, but the parties are also before Judge Masse on June 19, including the Descheneaux family, asking for an extension. I think it's because they also feel we need to do this right.
It's not just what was asked for by the court in the Descheneaux case, but also to address the other discrimination based on sex. That's part of our duty as parliamentarians. It's important that we consider all those aspects before approving this amendment as you propose it.
I totally respect where the member is coming from when it comes to human rights. I don't think anyone in this committee would disagree with his position in that respect.
The difficulty we have is this timeline. I know everyone says we can get an extension, but we did that once, and we're right back where we were at the end of the first extension. If we get another five-month extension, we're going to be in exactly the same place we're in today. There's not enough time to properly deal with some of the issues that the Indigenous Bar Association and Senator Sinclair....
We're bringing about significant legislative change, and we have a duty to consult all indigenous peoples on the changes that are going to have such a huge impact on many of their communities. We just finished discussing an amendment on DNA. We, around this table, can think that we have all the answers to solve it, but we also know that there are certain complexities that need to be dealt with, and those complexities are derived within what the Mohawks had to say. They said they don't care what Bill says, and that they're the ones who are going to decide who's a member of their community, not the government.
I know in an ideal world we'd like to blow up the Indian Act and let all indigenous peoples make that determination, and I think it's the goal of all of us here to see that happen sooner than later. Until then, we have a duty to consult with all indigenous communities, and that's going to take time. Another five-month extension—or three months, or whatever it is they would give us—is not enough time to resolve this. In the meantime, if we do find ourselves back here in five months in the same situation, those 35,000 people who could have already been starting the registration process are still going to be stuck waiting to start that registration process.
As MP Anandasangaree had communicated, I do truly believe that our ministers, Minister and Minister , do want to see this resolved once and for all, and to get it done right, not just rush into it and get it done under what Senator McPhedran has proposed here in “6(1)(a) all the way”. There are flaws in that amendment, so there's no sense in my mind of passing something we know has flaws when we should be taking the opportunity to get it done right.
I totally respect where you're coming from, but I just think the two-phase process will enable us to get this done right once and for all. Do we wish that Bill could have done it back in 2010? Sure, but it didn't. So now we're stuck here again at this table, trying to make this determination. Let's get this done right, take the time necessary to do it, and put this behind us once and for all.
Thank you, Madam Chair.
Mr. Saganash, every time I come to this committee, one of the things I look forward to is the comments from my good friend. I appreciate what you said, and I agree with it. I think human rights are not something you defer.
The difficulty we have here as legislators is we have a system of government where we have checks and balances, so to your first point with respect to the Senate: we have an executive, a legislative body, and the courts. We're at a point where the courts have said the legislation under the Indian Act needs to be changed. As a result, our executive branch came up with legislation that was subsequently amended by the Senate, and it is before us as the elected part of this bicameral system.
I think it's up to us to ensure that we respond to the court decision and ultimately it'll go back to the Senate for final approval if this is deemed to be adopted. The challenge we have is we've seldom been in this position in Canada whereby the elected body sets out a piece of legislation and sends it off with the possibility of an impasse. I think the learned people in the Senate will understand that they are charged with being the body of sober second thought, but ultimately as elected members of Parliament, the House of Commons has a greater role in ensuring the will of the people is expressed through the legislation we pass.
I am mindful of where the Senate stands on this. At the same time, given the broader context, I feel that senators on the whole will understand that once the House of Commons decides, they have their opinions and their amendments have been given due consideration, it's been debated in the House, and discussed at committee, ultimately if it's the will of our House to pass Bill as amended, then the Senate will need to give it due consideration.
With respect to the issue of are we addressing all sex-based inequities, I believe the Descheneaux decision requires the government to canvas the available or known areas of sex discrimination currently under the Indian Act. I am advised that the amendment being deleted will address that. What we are trying to deal with, with regard to deleting the Senate amendment “6(1)(a) all the way”, is not to broaden the scope of discrimination in other areas, which is something we shouldn't do, but we need to do in order to (a) consult and (b) ensure that we have a workable framework that doesn't put enormous strain on many of the communities.
I know we heard from a couple of witnesses who indicated that the membership—and they're absolutely right—has a right to define their membership, who is and who is not a member of their community, and it ought to be their absolute right. For us to find that balance between the Indian Act definition and the definition within the communities, I think we need to consult.
Therefore, this is really a deferral. This is delaying what I believe is inevitable, what we all believe should happen, but it should happen with a great deal of consultation, with the framework. It is quite unusual for any piece of legislation to have quite a stringent timeline for the government to consult and be able to come back and report within one year.
I think, as legislators, it is our responsibility to make sure that consultation is deep and gives us the road map to ensure that proposed paragraph “6(1)(a) all the way”, comes to fruition in the near future.
Thank you, Madam Chair.
After listening to both interventions on the other side, I'm compelled to wonder why we invited all these witnesses to this committee. The majority of the witnesses who appeared recommended that we accept proposed “6(1)(a) all the way”.
What was the purpose of them spending many hours with us and recommending to this committee, in good faith, that we adopt that legislation? I get the sense that we're putting that aside and we're only discussing the will of the government of the day. That's the problem I have—one of them.
You talk about due diligence, the time frame, the scope. There's nothing in the Descheneaux decision, and I reread it again this morning, that prevents us from going beyond what the court has asked us to do—nothing. If you know of any paragraph in the decision....
There's no place in the decision that precludes the government from going beyond what the court has requested us to correct. I think that's one of the reasons why I would vehemently oppose that deletion.
What is also disturbing for a person like me, being indigenous, who grew up in a residential school, partly on the reserve, and now as a member of Parliament who has a responsibility to all indigenous, but also to all Canadians, is that for more than 100 years we've been keeping track of what we're doing to Indians in this country. There's a specific department that has that job.
When you talk about the unintended consequences that these provisions might have, I don't buy that. I don't buy that at all.
The minister, when she appeared here, purposely used the number—two numbers as a matter of fact—and said that if we go ahead with this, it might mean between 80,000 people and two million people.... She has to take responsibility for that.
I read the exchange that she had with Senator Sinclair on that specific issue. Senator Sinclair said to her that by giving those numbers, it's like fearmongering. Well, it's not like fearmongering—I disagree with Senator Sinclair on that—it is fearmongering.
That's the only reason you have not to go ahead with these provisions, that we should again take time to consult. I know it's convenient for you guys to consult when you want to delay something. You didn't take time to consult for the Site C dam. You didn't take time to consult with the indigenous peoples for Kinder Morgan, because that's what you wanted. But for things you do not want to move on, you claim that you need to consult.
I think one of our problems in this country is that we've been over-consulted. We've been consulted to death, literally. You like it when it's convenient for you guys.
I think none of the reasons you gave to delete those provisions is valid for me, nor for the people who appeared before us. I would take great exception if I had appeared before this committee and the majority recommended in favour of these provisions that you're trying to delete. I would take great exception to that. It's an insult, as a matter of fact. They should be insulted.
That's pretty unfortunate because listening to witnesses is part of our role. That's part of consultation as well. I think a lot of people will be disappointed after this hour.
Thank you, Madam Chair.
I think most of us spoke to this issue when we had the witnesses in front of us. I'm also feeling a lot like Romeo about being in a position where we have to decide who's going to be joining the ranks of the aboriginal people according to the definition in front of us, which was decided on by somebody else. Like Romeo, I'm also aboriginal and I'm also a residential school survivor, and I agree with a lot of the comments. I also agree with a lot of the comments that Cathy has made on the process up to now and how it didn't really do a very good job. However, I've listened very carefully to the witnesses who have come forward, and I'm hearing more than one person with a legal background and with more legal expertise than I have state that there are concerns over the wording of this amendment. That includes Murray Sinclair, who has said it publicly. I think we have to take that into consideration. We have to hear the voices of the Native Women's Association of Canada, who said we need to go through the phase two process.
I really have concerns when we talk about going ahead without consulting. It is the basis on which we said we would move forward. It is a reason why I decided to run for this government, for this party. I come from an area where we practise consensus government and sharing information and communicating where we're going to go, and where collaboration is very important. I think that has to be done, and we spelled that out in going into phase two. We are currently in 10 sets of negotiations. Some of those negotiations for land claims and self-government include memberships. We have to talk to those people. We cannot just say we're going to go ahead and decide this without talking to them. That really is something that is important to many people across the country. We heard many individuals say that we do this regardless, but we also heard from organizations that represent a lot of people, which said, “Be careful. It's not worded right, and we should take the time to do it properly.”
I think we're committed to addressing the issue in phase two. Phase two has spelled out the process, and it certainly is in line with the nation-to-nation approach. That's why we need to move forward on recommendations.
I have a technical question, but as a quick response to that, when the government announced the missing and murdered indigenous women inquiry, the minister undertook what she called a design phase, and she travelled around this country. I don't know exactly for what purpose. One must wonder how that is going because I don't think anything was given to the commissioners to start off with. So if that's the kind of consultation you're talking about, I have a slight problem with that.
I hear you on what the Indigenous Bar Association has said. With all due respect, I disagree. When someone tells me to be careful, and the government buys that, it is just a pretext to delay further, in my view. I have enough experience in politics—35 years—to know that.
I prefer hearing Chief O'Bomsawin, who told us that those are his people and they can come back if they want to, that they belong, and that there is a right to belong to a community and a right to belong to a nation. I'd rather listen to that chief, who is responsible for an entire community, who tells us to let them come back and that they are his people, than listen to someone who just says to be careful without explaining what we should be careful about.
One of the things the minister told us was that we need this legislation right away because whether some students among the Abenaki attend university this fall or not depends on this. Some have told us that even if we had this legislation today, they wouldn't be able to to be registered by the fall. I'm pretty certain about that.
What is the backlog that you have right now? If they apply tomorrow morning, the day after this legislation is adopted, how much time would it take for a student to get status?
Madam Chair, we've discussed on many occasions during deliberations of this committee the need to refer to the United Nations Declaration on the Rights of Indigenous Peoples.
As a matter of fact, many of the witnesses who came before us during consideration of Bill mentioned the need to recognize that this needs to be done on a proper basis from a proper framework. Many of them referred to their right to self-determination when discussing membership, registration, and other issues.
The new government has committed to implementation of the UN Declaration on the Rights of Indigenous Peoples, so it is only fitting that we include the UN declaration in that paragraph when the minister initiates the consultations with first nations and other groups. We need to refer not only to the Charter of Rights and Freedoms, as the bill suggests, and if applicable, the Canadian Human Rights Act. The important and fundamental dimension we need to include in that paragraph is the United Nations Declaration on the Rights of Indigenous Peoples.
In fact, I would argue, Madam Chair, that if you're going to undertake the process that's provided for under Bill as phase two, what we're trying to achieve here—if you carefully read the description of what's proposed to be initiated by the minister—is exactly article 9 of the UN Declaration on the Rights of Indigenous Peoples.
Article 9 of the UN Declaration on the Rights of Indigenous Peoples stipulates:
||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.
It is already a fundamental right that has been recognized by the UN Declaration on the Rights of Indigenous Peoples. It's already a human right that's provided for under that international human rights document.
In that sense, it would be only appropriate if we could include in the enumeration in clause 11, paragraph 2, the United Nations Declaration on the Rights of Indigenous Peoples. That is what the Truth and Reconciliation Commission has asked us to do as a country, as the framework for reconciliation in this country. That is what this new government has committed to do. All I'm proposing here is to assist in achieving that goal.
Thank you, Madam Chair.
I understand that technically there may be some question. Given that I understand we have unanimous consent for the changing of the title, I will deem it appropriate to take that under consideration. Is there a discussion of the proposed amendment to the title?
Shall the title as amended carry?
Some hon. members: Agreed.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chair: Shall I report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: That concludes our business on Bill .
I would ask members to be patient. We have a small amount of committee business to take care of.
I want to thank all the participants. We are going to move into committee business, so I'll ask you to leave the room, please.
[Proceedings continue in camera]