Senators have declined to pass a government bill that would take some, but not all, of the sexism out of the Indian Act, deferring their final vote until fall and ignoring pressure to meet a court-ordered deadline of July 3 for fixing specific sections of the act.
The decision on Bill S-3, which the government introduced in the Senate as a way of expediting its passage, demonstrates the willingness of the increasingly independent Senate to chart paths that diverge from the interests of Prime Minister Justin Trudeau and his cabinet.
The Liberal government now must ask Quebec Superior Court Justice Chantal Masse for an extension to the deadline she set last January for making the act comply with the Charter of Rights and Freedoms. Justice Department lawyers refused to request an extension earlier this week in an effort to compel the senators to pass the bill before the summer recess. Justice Masse has said she is willing to consider such a request.
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.
"We're very pleased with what has happened here today, it's subtle but it's positive," independent senator Marilou McPhedran said Thursday after the Senate declined to vote on the bill. "All the government has to do is get over there [to the court] and ask for the extension, work out the terms of that, and then get to work on actually fixing what is a deeply flawed bill."
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 Ms. McPhedran and other senators said it is wrong for the government to knowingly discriminate against anybody on the basis of sex. When Bill S-3 was initially before the Senate, Ms. McPhedran introduced an amendment that aims to eliminate any remaining distinctions.
The Senate passed the amended bill unanimously and sent it to the House of Commons. On Wednesday, Liberal MPs stripped the amendment out, passed the bill and returned it to the Senate for final approval.
"This is a tremendous opportunity for the government," Ms. McPhedran said of the Senate deferral.
The vote in the House of Commons "was a shameful moment," she said. "I was there. I watched them all stand and vote against aboriginal women's rights and now they have been given a chance to actually fix [Bill S-3]."
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.
Justice Masse found that violated Mr. Descheneaux's Charter rights.
When the bill was before the House of Commons, the standing committee on Indigenous affairs heard testimony from Deborah Serafinchon, whose parents were status Indians but who was not registered as a status Indian because she was placed in the child-welfare system when she was young.
MPs were told that, had Ms. Serafinchon been a non-Indigenous woman who married a status man before 1985, when some changes were made to the Indian Act, she would have immediately been granted Indian status and been able to keep it even if she divorced her husband. But Ms. Serafinchon, who has DNA evidence of her lineage, has been rebuffed in her attempt to obtain status.