Government Misses another Court Deadline to Remove Gender Discrimination from Indian Act

With Parliament and the Senate adjourned until the fall, the federal government will miss its second court mandated deadline to reform the registration provisions of the Indian Act (often referred to as “Indian status”) to eliminate gender inequality.

The federal government attempted to pass Bill S-3: An Act to amend the Indian Act (elimination of sex-based inequities in registration) into law before the summer break, but was stymied by the Senate, who deferred consideration of the proposed legislation until the fall. The Senate took this stance after the government removed a Senate amendment to the Bill intended to more broadly remedy gender discrimination in the Indian registration provisions.

Background

The federal government was forced to reform the Indian Act registration provisions after Justice Masse of the Quebec Superior Court found that they continue to discriminate against Indian women and their descendants in a decision released on August 3, 2015 in a case called Descheneaux v. Canada. Justice Masse urged the government to resolve all outstanding gender inequality in the Act and not just the unequal treatment faced by those in the exact same position as the plaintiffs in that case. The court suspended its declaration of invalidity of the registration provisions of the Indian Act, giving the government until February 3, 2017 to revise the law to eliminate gender discrimination.

On February 22, 2016 the federal government dropped its appeal of the case and in the summer of 2016 announced that it would undertake a two phase process to revise the Indian Act. Phase I would address the gender inequality issues raised in Justice Masse’s decision and Phase II would address broader issues with Indian status.

The government undertook a process of engagement with First Nations and Aboriginal organizations as part of Phase I but this was on a broad scale (not Nation to Nation) and little information was available on the potential content of the government’s proposed legislation. In the fall of 2016 the government introduced Bill S-3 in the Senate. This Bill addressed only some gender inequalities, but the government promised further inequities would be addressed in engagement on Indian status in Phase II of its process.

The Senate Committee on Aboriginal Peoples heard from many witnesses including the plaintiffs in the Descheneaux case and their legal counsel, legal advocacy groups like the Women’s Legal Education and Action Fund (LEAF), and advocates for Indigenous women such as Sharon McIvor (the plaintiff in the McIvor v Canada case) and Pamela Palmater, who argued that the government’s version of Bill S-3 did not remedy all gender discrimination and urged the Senate to take a broader approach.

In December of 2016 the Senate Committee on Aboriginal Peoples urged the government to seek an extension to the court’s February 3rd deadline in order to undertake further consultations with Indigenous peoples and reconsider the scope of the Bill. The government sought an extension and the court granted an extension to July 3, 2017. The government returned the Bill to the Senate with minor amendments that only narrowly increased the scope of the Bill. The Senate eventually passed the Bill this spring, but with significant amendments to broaden its application. Indigenous and Northern Affairs Canada has estimated that between 80,000 and 2 million people could become newly entitled to status under the Senate’s version of the Bill, versus only 35,000 under the government’s version.

Current Status

In the final sitting days of Parliament before summer break, the House of Commons passed Bill S-3, but in revised form with the Senate’s most significant amendment – which would broaden the scope of the Bill to remedy all gender discrimination – removed. Because of this significant change, the Bill had to be returned to the Senate for consideration. With only a few days left to for the Senate to pass the Bill, the plaintiffs in the Descheneaux case returned to court to ask for a further extension for the government to reconsider their Bill. The government did not support this request, and the court refused to grant it. The Senate refused to consider Bill S-3 before the summer break, which means the government will miss its second court mandated deadline of July 3, 2017.

What’s Next for Bill S-3?

The government will likely seek another extension from the court until the Senate can pass the Bill once it returns to sitting in the fall, although it is unclear how, or when, the wrangling between the Senate and the House of Commons on this Bill will be resolved. If a court extension is not granted, sections 6(1)(a),(c) and (f) and subsection 6(2) of the Indian Act will become inoperative on July 3, 2017, which would essentially halt the consideration of applications for Indian status under those sections, leaving many people in limbo and without access to services and benefits to which they are entitled. If an extension is granted, the Senate will likely continue to pressure the government to revise the Bill before it will agree to pass it into law.

This delay is in one way positive, as it provides further opportunity for the federal government to revise the Bill to be more inclusive and properly remedy gender discrimination. However, it is disappointing and discouraging for those who have been subject to gender discrimination under the Act that the government continues to fail to develop a Bill that fully remedies gender discrimination in compliance with Justice Masse’s order in time for court imposed deadlines. This delay has real impacts on those who will continue to miss out on important services and benefits such as health benefits, education funding, tax exemptions and in some cases, Band membership. The delay also has more intangible but very damaging emotional and psychological effects on many individuals who continue to be denied Indian status on a discriminatory basis, as it represents a refusal by the federal government to recognize their Indigenous identity.

Further Reading:

To read more on this topic see:

The current text of the government’s version of Bill S-3 here.

The Report of the Senate Committee on Aboriginal Peoples on Bill S-3 here.

Submissions to the Senate Committee on Bill S-3 available here.

Professor Pamela Palmater’s blog which has numerous posts on Bill S-3

The Government of Canada’s public information on Descheneaux and Bill S-3 here.

Our three part series on the problems with Indian status:

http://jfklaw.ca/the-problem-with-indian-status-part-1-so-who-gets-status-anyway/

http://jfklaw.ca/the-problem-with-indian-status-part-2-the-law/

http://jfklaw.ca/the-problem-with-indian-status-part-3-policy-and-administration/

 

Timeline of Bill S-3

Decision released in Descheneaux v Canada: August 3, 2015

Appeal Filed by Canada: September 2, 2015

Federal Election: October 19, 2015

Appeal Withdrawn by Canada: February 22, 2016

Two-Phase Federal Response to Descheneaux Announced: Summer 2016

First Reading and Introduction of Bill S-3 in Senate: October 25, 2016

Second Reading of Bill S-3 and referral to Senate Committee: November 17, 2016

Senate Committee refuses to pass Bill in current form: December 13, 2016

Justice Masse grants extension to July 3, 2017: January 20, 2017

Senate Committee presents amended version of Bill S-3: May 30, 2017

Senate passes amended version of Bill S-3: June 1, 2017

First Reading of Bill S-3 in House of Commons: June 2, 2017

Second Reading of Bill S-3 and referral to Committee: June 13, 2017

Committee Reports on Bill with amendments: June 16, 2017 (removes most significant change made by Senate)

Third Reading of Bill S-3 in House of Commons: June 21, 2017

Senate refuses to consider Bill S-3 before summer break: June 22, 2017

Court deadline to pass Bill S-3: July 3, 2017