Copyright © 2019 Senator Dennis Patterson.

Speech – Third reading of S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

June 1, 2017

I do appreciate the opportunity to speak today as critic for the official opposition on Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

When I stood before you last November and spoke to this bill at second reading, I told this chamber that this bill:

. . . seeks to undo the remaining gender-based inequities with regard to . . . Indian registration. In principle, of course, this is the right thing to do. Who could be against gender equity?

And so this chamber, with the assurances that this bill would eliminate gender-based discrimination in Indian registration, as the title states, referred the bill to committee.

However, during the committee’s study of the bill, it became apparent that gender-based discrimination would persist. In some instances, it emerged that the bill, as worded, would actually create new instances of discrimination.

So your committee set forth to address these additional instances of gender-based discrimination, which included the issue of unstated paternity, the mistreatment of illegitimate children and the sexist sub-classifications of First Nations people whose rights and entitlements varied based on patrilineal versus matrilineal lines.

The majority of committee members believe that this broader approach is consistent with the approach recommended by Justice Masse in her decision on Descheneaux, when she said:

Parliament should not interpret this judgment as strictly as it did the [B.C. Court of Appeal’s] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

As a further affirmation that our committee has endorsed the right approach to ending gender-based discrimination in registration, I recently received a copy of an open letter to Prime Minister Trudeau. It says:

We know that the Indian Act is paternalistic and outdated legislation rooted in colonization and the goal of assimilating Indians. . . . However, we also recognize that for every day that the Indian Act continues, it is absolutely imperative that all remnants of gender-based discrimination be eliminated.

Prime Minister Trudeau, if you are truly a feminist Prime Minister, who sincerely means that there is no relationship more important than the one with Indigenous peoples; and you want the path forward to be based on Nation-to-Nation relations, then you must ensure that Indigenous women and our descendants are included in our Nations.

We urge you to remind your Cabinet members that the days of consulting on gender equality are over. All federal laws must be Charter compliant — and that includes Bill S-3. We urge you to support the “6(1)(a) all the way” amendment to Bill S-3.

That was signed by the Nova Scotia Native Women’s Association, the Newfoundland Native Women’s Association, the Indigenous Women’s Association of the Maliseet and Mi’kmaq Territories, the Eastern Door Indigenous Women’s Association, and the Aboriginal Women’s Association of P.E.I.

Senator McPhedran put forward an amendment during committee, as we heard yesterday, that seeks to simplify the way the government registers First Nations people. No more endless sub-classifications; everyone would now be registered as a 6(1)(a) Indian. They would have equal rights and status, regardless of gender or parentage.

After much consideration, I decided to support this amendment, along with many of my colleagues on committee, because not only do I believe that it is not the role of government to determine who is an Indian, but I do not believe that we should make registration a complicated process.

Here, I want to bring my experience from my home region to your attention. In all Inuit regions, not just Nunavut, due mainly to comprehensive land claim agreements negotiated with the Crown, Inuit beneficiaries are determined and registered by Inuit organizations. The rule is simple: All you need is one Inuk parent to qualify as a beneficiary. That’s why my four children and my four grandchildren are all beneficiaries. So I say if that’s good enough for the federal government to recognize status for Inuit, why is it not enough for First Nations? That’s why I support the simplification of a process whose complication has been compounded by endless tinkering and piecemeal approaches and, I should say, endless litigation.

While I am pleased that the committee, in a vote of 11 to 3, decided to proceed with a more inclusive approach to registration, embracing the so-called “6(1)(a) all the way” approach, I still have some reservations about this bill.

First, colleagues, the complete lack of consultation is worrisome to me. The duty to consult and accommodate is embedded in section 35 of the Constitution Act 1982 and the judicature of the Supreme Court interpreting that section and is required to be fulfilled whenever the Crown contemplates actions or decisions that affect Aboriginal and treaty rights.

Because the government went beyond the specific issues of inequalities between siblings and cousins, as described in the Descheneaux decision, and included other forms of sex-based discrimination in registration, the duty to consult cannot be questioned.

The government has stated, though, that due to time constraints they chose not to consult but to “engage” with First Nations through “information sessions.”

The committee has, unfortunately, heard that these sessions were not well received by Aboriginal organizations. They didn’t provide adequate time for participants to provide thoughtful feedback and did not discuss the proposed amendments.

In December, your committee wrote a letter to the minister, encouraging her and her department to seek a court extension. They did ask the court, and an extension was granted, which gave the government the opportunity to properly engage with key stakeholders, including the litigants and their counsel, who had not been consulted in the drafting of the first version of Bill S-3, as well as to formulate amendments that would ensure that the bill would eliminate all residual gender-based discrimination. So it was disappointing, when the bill was again considered in committee, to hear many witnesses, including Perry Bellegarde, National Chief of the Assembly of First Nations, state clearly that they did not feel that the government had satisfied its duty to consult on this bill.

I must also admit, colleagues, that I remain somewhat skeptical about the proposed phase 2. INAC has stated that they intend to consult First Nations and Metis on broader, more complex issues, such as citizenship and the so-called second-generation cutoff, over a period of 18 months. While there have been amendments introduced and accepted at committee that would commit the government to discussing certain topics with stakeholders and publicly reporting back to Parliament on their progress, there is no clear consequence for the government not following through on their consultations, nor are there any consequences for the government failing to complete consultations within the timeframe given.

Furthermore, I find the timeline to be a lofty aspiration, seeing as, by the time the current July 3, 2017 court deadline comes around, the government will have had a total of 23 months to address gender-based discrimination. No one has told us that they feel they were properly consulted, nor have we heard that it has been a straightforward and transparent process. So I am concerned about whether the government will be able to construct a process to adequately consult indigenous peoples on these very complex and broader questions, such as nationhood and citizenship.

Yet, despite my reservations, honourable senators, I believe that this bill should and must go forward as amended. I wish to commend Senator Harder for his commitment in this chamber yesterday to support sending this bill, as amended, back to the other place forthwith. It responds to the many concerns brought forward to the committee and would successfully eliminate all residual gender-based discrimination in Indian registration, as the title of the bill requires. So I commend it to your support.