The Indigenous Affairs Minister is asking MPs to pass a government bill aimed at removing some of the sexist provisions of the Indian Act, but to first take out a Senate amendment that would more broadly eliminate all the act's sex-based discrimination.
Carolyn Bennett told the Indigenous Affairs Committee of the House of Commons on Thursday that the legislation, as it was drafted by the government, would go as far as courts have said is necessary to comply with the Charter of Rights.
She promised that if Bill S-3 is passed into law by a court-ordered deadline of July 3 to make changes to the Indian Act, she would engage in a second phase of consultation to determine what to do about the remaining discrimination in the document. Among other things, the act makes it easier for some men, than for some women, to pass their Indian status and the associated rights and benefits on to their descendants.
The amendment that was introduced by independent Senator Marilou McPhedran "could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequalities, well beyond those that are sex-based," Dr. Bennett told the committee.
But advocates for First Nations women say it is completely inappropriate for the government to be contemplating a consultation around how much discrimination is acceptable.
"Although Carolyn Bennett says 'we need to consult, it's going to cost a lot of resources and communities will be affected,' we are the only group in Canada that they have to consult with other people to find out if it's okay to discriminate against us," said Sharon McIvor, a B.C. lawyer and activist who brought one of the constitutional challenges over the sex discrimination. Her case reached the B.C. Court of Appeal in 2009.
The appeal court ruled that, although the Indian Act was discriminatory under the Charter, the bulk of the discrimination was justified because its purpose was to preserve the existing rights of Indigenous men and their descendants.
The government is using the ruling in the McIvor case to justify its decision to allow some of the sexism in the act to continue. First Nations women who lost their Indian status because they married non-Indigenous men and who had children before 1951, when the Indian Register was created, would still not be able to pass their status on to their children.
Ms. McPhedran's amendment to Bill S-3 would eliminate any remaining distinctions between the descendants of status Indians, regardless of gender, going back to the 1800s.
The government has studies that it says show that between 80,000 and two million new status Indians could be created if Ms. McPhedran's amendment were allowed to stand, although it acknowledges that the estimate is based on poor quality data and the range is so large as to be meaningless.
Dr. Bennett argues that increasing the number of status Indians could put enormous strain on First Nations communities, which could suddenly experience an influx of new members. For that reason, she said, it is imperative that the government consult with chiefs before going further than the court has ordered.
"We have not adequately consulted with those who could be impacted and we do not currently have the demographic information to understand the practical implications of implementing such an approach," the minister said.
The case that is forcing the changes to the Indian Act was brought by a man named Stéphane Descheneaux from the Abenaki community of Odanak in Quebec who was unable to pass on his Indian status to his three daughters because his First Nations descent came from his grandmother. She lost her status when she married a non-Indigenous man. Had his Indigenous grandparent been a man, Mr. Descheneaux would have been able to pass his status on to his children and grandchildren.
There have been a number of cases in which courts have found the Indian Act to be sexist, including those of Ms. McIvor and Mr. Descheneaux.
The Quebec Superior Court ruled in August, 2015 that Mr. Descheneaux's Charter rights had been violated and ordered the government to fix the provisions of the Indian Act that discriminated against him. Bill S-3, without Senator McPhedran's amendment, does that and also cleans up some additional sexism to grant Indian status to an additional 35,000 people.
But Pam Palmater, a Mi'kmaq lawyer, professor and activist, said it is wrong to allow any discrimination to remain in the Indian Act.
"Equality is actually the law," Dr. Palmater told the Commons committee. "The fact that the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism is in this country – and for Indigenous women, racism."