The federal Liberal government will bow to a recommendation of a Senate committee that is reviewing legislation to end gender-based discrimination in the Indian Act by asking the Quebec Superior Court – which said the act had to be corrected by early February – for an extension to allow more time for consultation.
Carolyn Bennett, the Indigenous Affairs Minister, told The Globe and Mail on Wednesday she believes senators were acting on genuine concerns about Bill S-3, and an Act to Amend the Indian Act, when the Senate Aboriginal Peoples committee decided not to pass the legislation and, instead, wrote her this week to suggest that she ask the court to postpone its deadline.
The senators said witnesses have told them that discrimination would persist even if the bill became law and that there should be more discussions with the First Nations people affected.
"They and I were disappointed that the [Indigenous Affairs] department hadn't reached out to the plaintiffs and so I think it diminished the confidence that they had in the process," said Dr. Bennett.
The minister said she does not believe the courts will allow the kind of time needed to fix all of the discriminatory sections of the Indian Act but she does not begrudge the senators for delaying the bill. "This is a democracy and sometimes it's a bit messy," she said.
It is the second time in a week that a cabinet minister has acceded to suggestions from senators who have found what they believe to be flaws in government legislation. On Monday, Finance Minister Bill Morneau agreed to remove controversial changes to the Bank Act from his latest budget bill in response to strong objections from Quebec and some senators.
The Senate Aboriginal Peoples committee is dominated by Conservatives, even though independent senators now occupy more seats in the Red Chamber than those aligned with a political party. But all of the senators on the committee, even the independents and those who call themselves Liberals, agreed that the letter should be sent to Dr. Bennett.
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.
Mr. Descheneaux was unable to pass on his Indian status to his three daughters because he got it through his indigenous grandmother, who lost her status when she married a non-indigenous man. Had his aboriginal grandparent been a man, Mr. Descheneaux would have been able to keep his status and to pass it on to his wife, their children and grandchildren.
The Quebec Superior Court, which heard his complaint, ruled in August, 2015, that certain sections of the Indian Act having to do with the registration of status violate the Canadian Charter of Rights and Freedoms.
The previous Conservative government appealed the ruling but the Liberals withdrew the appeal in February and said they would fix the law.
Recognizing that there are many sections of the Indian Act that are discriminatory – not just those that were the focus of the Descheneaux case – the government said it would make changes in two phases. The first phase would focus on gender-based discrimination and the second phase would look at the rest of the act.
Bill S-3, which was aimed at accomplishing the goals of the first phase, was introduced in the Senate rather than the House because the workload in the Senate was not as great at the time and the government believed it could be expedited.
Frances Lankin, the independent senator who sponsored the bill in the Red Chamber, said she believes that some of the senators who voted to delay passage of the bill did so for partisan reasons. "But," she said, "I would venture to say that the majority of the concerns that were raised, and the majority of people who supported this compromise, did it from a place of genuine concern and desire to do a good job in the Senate."
With files from the Canadian Press