The Quebec Superior Court has turned down Ottawa's request to extend a July 3 deadline to fix specific sections of the Indian Act that discriminate against women, meaning people who have applied for Indian status – and the benefits that go with it – will not be able to receive it next week.
In a decision on Tuesday, Quebec Superior Court Justice Chantal Masse denied Justice Canada a six-month extension on a July 3 deadline to amend the Indian Act to fix registration rules that have long discriminated against Indigenous women and their descendants. The federal government said it will appeal the decision. It will not be able to approve any applications for status if it does not get an extension by Tuesday, when the court's original ruling in a Charter challenge takes effect.
"Without a stay of the ruling, the Department of Indigenous and Northern Affairs will no longer be able to approve the status for the vast majority of individuals who have duly applied and are entitled to it. This would cause disruption and unfair stress on thousands of people each month," said Indigenous Affairs Minister Carolyn Bennett's office in a statement.
Ms. Bennett's office said the government will be able to accept and process applications for new status Indians, but will not be able to give them final approval until a new law is passed.
Parliament had an opportunity to pass government legislation that would take some, but not all, of the sexism out of the Indian Act. However, the increasingly independent Senate deferred its final vote on Bill S-3 until the fall, ignoring pressure to a meet the July 3 deadline. Senators say the bill is deficient, leaving intact some parts of the Indian Act that make it easier for First Nations men than for First Nations women to pass their Indian status and the accompanying rights and benefits on to their children and grandchildren.
"While we are disappointed the Senate did not pass the bill before the court-imposed deadline, the government remains committed to passing legislation expeditiously to both comply with the court and so the government can move on the important work of further reforms to the outdated Indian Act," Ms. Bennett's office said.
Independent Senator Murray Sinclair said the government should do registrations between July 3 and the time S-3 becomes law.
"I think they should just continue as though business were going to go forward in accordance with the court's order, which is to stop discriminating against those people who are applying for registration either because of current provisions in the act or because of historical provisions which have rendered their female ancestors unregistered," said Mr. Sinclair, who admitted he was surprised by Justice Masse's decision on Tuesday.
Just last week, Justice Masse said she was willing to consider a request for an extension but, in an effort to compel senators to pass the bill before the summer recess, Justice Canada did not ask for one. On Monday – after Parliament had risen for the summer and Bill S-3 was put off until the fall – the department changed its mind and requested a six-month extension.
Even with the changes proposed by the government in Bill S-3, descendants of status men who were born before Sept. 4, 1951, when the Indian register was created, will always be granted Indian status, while people who were born before that date to status women who married non-status men will not. The government says the courts decided that provision can remain and that changing it would create 80,000 to two million new status Indians – numbers that even federal officials agree are so broad as to be meaningless. It also says it will revisit the issue in a second round of efforts to make Indian registration more equitable.
But independent Senator Marilou McPhedran and other senators said it is wrong for the government to knowingly discriminate against anybody on the basis of sex.
The Senate passed the amended bill unanimously and sent it to the House of Commons. But Liberal MPs stripped the amendment out and returned it to the Senate, where senators decided to delay final approval until the fall.
The case that is forcing the changes was brought by Stéphane Descheneaux, an Odanak man who was unable to pass on his Indian status to his three daughters because his First Nations descent came from his grandmother, who 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.