A Quebec judge has reluctantly granted the federal government additional months to change sections of the Indian Act that she declared to be discriminatory saying more time had already been allowed than is usual under similar circumstances.
The decision of Quebec Superior Court Justice Chantal Masse came after members of the Senate aboriginal peoples committee wrote to Indigenous Affairs Minister Carolyn Bennett in December to say the government’s proposals for fixing the act would not end the discrimination and there should be more discussions with the First Nations people affected.
The senators urged the minister to ask the court to postpone the deadline of Feb. 3 for striking down the parts of the Indian Act that spell out who can receive official Indian status. Justice Masse had found in August, 2015, that those sections violate the equality provisions of the Canadian Charter of Rights.
The minister agreed and the government asked for extra time.
In ruling last week on the requested extension, the judge said she had already given the government 18 months to make the required changes, which is six months longer than the usual delay granted by courts when laws are found to be unconstitutional. That extra time was allowed, she said, to take into account the federal election of 2015 “as well as the complexity of the act and the issues related to consulting aboriginal peoples and other interested parties.”
But striking down the sections of the Indian Act that are discriminatory would have made it difficult for anyone to be registered as a status Indian. Had an extension not been granted, Justice Masse wrote, “numerous individuals will be deprived of their right to registration without any resulting benefit for those who are victims of discrimination.”
She set a new deadline of July 3.
The case that is forcing the changes to the Indian Act was brought by a man named Stéphane Descheneaux from the Abénaki community of Odanak in Quebec. Mr. Descheneaux was unable to pass on his Indian status to his three daughters because his indigenous decent came from his 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.
But Mr. Descheneaux and his family supported the extension allowed by Justice Masse. “We didn’t want them to stop registering Indians; we wanted them to register more Indians,” their lawyer David Schulze said.
The previous Conservative government had appealed Justice Masse’s original ruling, but the Liberals withdrew the appeal in February of 2016, saying said they would fix the law.
Recognizing that many sections of the Indian Act are discriminatory – not just those that were the focus 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. But the Senate aboriginal peoples committee was not prepared to give it a rubber stamp.
The committee is dominated by Conservatives. But all of the senators on the committee, including the independents and those who call themselves Liberals, agreed that the legislation was flawed.
Lillian Dyck, the Liberal who chairs the committee, said she does not believe the committee’s actions were related to the Prime Minister Justin Trudeau’s efforts to make the Senate more independent. “We have been doing these kinds of things all along,” Ms. Dyck said, “and it just so happened that, in this case, it occurred when we are in this so-called new era.”
Editor's note: an earlier version of this story indicated that Lillian Dyck said thought that the committee's actions were related to a push for a more independent Senate. In fact, she meant that they did not. This version has been corrected.Report Typo/Error