Senators have amended government legislation that was drafted to remove some of the sexism from the Indian Act in ways that the Indigenous Affairs Minister warned she would not support, saying it could give Indian status and the accompanying benefits to as many as two million additional Canadians.
The amendment to Bill S-3 is aimed at removing sexism the legislation overlooks, and its passage reflects the willingness of the increasingly independent Senate being created by Prime Minister Justin Trudeau to take stands opposite his government's expressed wishes. The amendment was tabled by Independent Senator Marilou McPhedran and passed by the Senate's aboriginal people's committee, but must still be approved by the Senate as a whole, and then by the House of Commons, before it becomes law.
Indigenous Affairs Minister Carolyn Bennett told the committee there is not enough known about the practical effects of changing the Indian Act to remove all discrimination, but her department estimates that it would increase the Indian rolls by "hundreds of thousands, or even millions, of new people." That numerical range was later clarified by a department official as being between 80,000 and two million. There were fewer than 700,000 status Indians in Canada at the time of the last census in 2011.
Because of the unknown outcomes, and because there has not been enough consultation with First Nations, Dr. Bennett said her majority Liberal government would not support an amendment that went further than what the government itself has proposed. But Ms. McPhedran ignored the minister's warning and tabled her amendment anyway. Then the committee voted in favour. Ms. McPhedran pointed out that the amendment is based largely on amendments to Conservative legislation that were moved, without success, by the Liberals themselves when they were in opposition in 2010. And it reflects a statement of support for those proposed Liberal amendments that was signed that same year by Jody Wilson-Raybould, now Justice Minister but then the B.C. regional chief for the Assembly of First Nations.
When Dr. Bennett was asked about the Liberal change of heart, she told senators that opposition parties sometimes don't understand the big picture of things.
"Having been in opposition for a decade, sometimes we're able to propose where we haven't really understood all of the implications, or we haven't had the resources to go and do the kind of consultation that is required," she said. "So, I wouldn't say we have changed our minds. I would just say that, as government, we have to do the due diligence and do the proper consultation."
In August, 2015, Quebec Superior Court Justice Chantal Masse found that some of the sex-based discrimination in the Indian Act violates the Canadian Charter of Rights and Freedoms and ordered the government to make the necessary changes. The result is Bill S-3.
Dr. Bennett concedes the legislation will still not eliminate all of the sex-based discrimination in the Indian Act. "I think we're doing what the court told us to and a little more," she told senators, "but we're not doing the whole thing in terms of discrimination."
As the Indian Act is currently written, First Nations men who married non-status women before April 17, 1985 – when the act was rewritten to comply with the Charter of Rights – will always pass their Indian status to at least their grandchildren and in many cases to their great-grandchildren. This is the case even if their children and grandchildren parent with non-Indians. However, First Nations women who married non-status men before 1985 only pass on status up to their grandchildren, unless those grandchildren parent with other status Indians.
Ms. McPhedran's amendment to Bill S-3 is intended to eliminate any remaining distinctions between the descendants of men and women who married non-Indians before the Charter. It would go back to the creation of the Indian Act in the 1800s, while the government wants to stop at those born after the Indian Register was created in 1951.
Dr. Bennett told the committee that she has not ruled out making the sort of changes proposed by Ms. McPhedran, but she wants first to do far more extensive research and consultation – something that expert witnesses also told the committee was necessary. Dr. Bennett has asked the committee to pass the bill quickly to meet a court ordered deadline of July 3, with a promise that the government will then embark on a second phase of cleaning up the Indian Act.
But Senator Lillian Dyck, who chairs the committee, said some people say it is unfair to prolong the discrimination. They argue, she said, that "these women and their descendants have been waiting a long, long time, since almost 150 years, why are we postponing it?"