Bill S-3, an Act to Amend the Indian Act

January 17, 2017

Bill S-3, An Act to Amend the Indian Act

(Elimination of sex-based inequities in registration)

Request for an Extension of the Superior Court of Quebec Order

in Descheneaux v. Canada

ACTION PLAN

CONTEXT

On July 28, 2016, the Government of Canada announced a two-staged approach in response to the August 2015 Quebec Superior Court decision in Descheneaux v. Canada:

Under Stage I, the Government committed to engage with First Nations and other Indigenous groups on proposed legislative amendments to the Indian Act to address the specific sex-based inequities found by the Court in the Descheneaux decision (i.e. cousins and siblings) and another known sex-based inequity (omitted minors). Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration) was introduced in the Senate of Canada, on October 25, 2016.
Under Stage II, the Government committed to launching a collaborative process with First Nations and other Indigenous groups to address broader issues relating to Indian registration, Band membership and citizenship with a view to future reform. Some of the issues to be explored under the collaborative process involve distinctions in Indian registration that are based on date of birth and family status, ancestry and/or race. These could touch on issues such as adoption, second-generation cut-off, unstated/unknown paternity and voluntary deregistration. Other matters, also to be discussed under Stage II, relate to broader policy questions, such as Canada’s continued role in determining Indian status and membership. These subject matters are complex, and some are subjective in nature as they focus on where to draw the line in respect to culture, ethnicity and race, and how to find the appropriate balance between individual and collective rights.Impacted individuals, communities and organizations bring a wide range of views, often competing views, on how to address these matters. Registration and membership issues can also have significant demographic and financial impacts for Indigenous communities and governments, which must be carefully assessed.

In light of Canada’s commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous Peoples, the Government will not act unilaterally to bring about legislative change in respect of these broader-related and complex issues.

This is why issues beyond sex-based inequities in Indian registration were not included in Bill S-3. They will be examined under Stage II where the parties will have sufficient time to enter into meaningful consultations with a view toward future reform.

While the Government intends to design Stage II in collaboration with First Nations and other Indigenous groups, it is assumed that a process for meaningful consultation will include a pre-engagement stage to identify the issues to be addressed, the types of activities to be undertaken and the funding required to support the participants. This will also include direct engagement, on multiple occasions, with the leadership of national and regional Indigenous organizations. Concurrently, sufficient time will be required to consult directly with community members, other impacted individuals and experts.
This broad-based consultation process is expected to take between 12 to 18 months to complete and would be followed by a period of approximately 12 months to analyze and reflect upon the findings, submit recommendations to the federal Cabinet and to complete subsequent legislative process for reform. It is therefore anticipated that a minimum of 24 months will be required to complete Stage II in a manner which is consistent with Canada’s commitment to reconciliation and a renewed nation-to-nation relationship with Indigenous Peoples.

The two-staged approach is designed to ensure that justice is served in a timely manner for the plaintiffs in the Descheneaux case and the projected 35,000 individuals in similar situations, while ensuring that other important policy issues relating to Indian registration and band membership under the Indian Act can be addressed in a comprehensive manner and through meaningful consultations.

BILL S-3

The proposed amendments in Bill S-3 aim to address the inequities in the acquisition and transmission of Indian status between the female and male line in respect of siblings and first cousins, as identified in the Descheneaux decision, as well as another identified sex-based inequity in Indian registration flowing from the pre-1985 removal or omission of minor children from the Indian Register, who were born of Indian parents, or of an Indian mother, and whose mother married a non-Indian after their birth.

The Government has stated its willingness to address, with an appropriate amendment to Bill S-3, an inequity raised by the Indigenous Bar Association (IBA) at the Standing SenateCommittee on Aboriginal Peoples. As pointed out by the IBA, under the proposed amendments put forward by Bill S-3, a new inequity is created in respect of the grandchildren born out of wedlock prior to 1985 of an Indian woman and a non-Indian man. Once included in Bill S-3, the amendment recommended by the IBA would eliminate this differential treatment.

The Government is further prepared to consider additional amendments which fall within the scope of Bill S-3which may be identified through further engagement with Indigenous groups,impacted individuals and experts. Should additional sex-based inequities be brought forward, more time will then be required to allow the Government to conduct a legal review, assess the demographic and financial impacts and draft amendments to Bill S-3. Finally, the Government is also prepared to support an amendment to Bill S-3 regarding statutory reporting to Parliament on the implementation and findings of the collaborative process under Stage II.

The Standing Senate Committee on Aboriginal Peoples began its study of Bill S-3 on November 22, 2016. During the Committee’sdeliberations, witnesses and members of the Committee expressed concernsregarding the level of engagement with First Nations and other Indigenous groups prior to the introduction of the Bill. Other than the amendment proposed by the IBA, it is the Government's view that other suggestions proposed to the Senate Committee to improve the registration provisions of the Indian Actfall outside the scope of the bill. Issues raised dealt with other grounds of discrimination andare planned to be addressed under Stage II.

On December 6, 2016, the Senate Committee suspended consideration of Bill S-3, and on December 13, 2016, in correspondence to the Minister of Indigenous and Northern Affairs Canada (INAC), the Senate Committee recommended that the Government seek an extension of the Superior Court order of August 3, 2015, to continue the engagement process.

CONSIDERATIONS

In keeping with the recommendations of the Standing Senate Committee, the Government is seeking a six-month extension of the August 3, 2015 order of the Quebec Superior Court in Descheneaux v Canada.

A six-month extension would allow the Government to further engage on Bill S-3 to confirm that the proposed amendments provide the appropriate remedy for situations found in Descheneaux and to ensure that the Bill addresses other known situations of sex-based inequities. The engagement activities to be conducted during a six-month extension will also be the opportunity to hear from impacted parties on how an effective Stage II could be structured and implemented.
Included in the six-month extension is the time required to draft any additional amendments as well as to complete the legislative process, beginning in early spring 2017, to pass Bill S-3 into law by the end of the parliamentary session on June 23, 2017 and have an order-in-council passed immediately following for the coming into force of the bill.
An extension would, however, delay the formal launch of the Stage II collaborative process given that its scope and structure will be informed by the final form of the Bill.

ACTION PLAN - TARGETED ENGAGEMENT AND LEGISLATIVE ACTIVITIES

Below is a description of the engagement and legislative activities that would be undertaken within a six-month extension.

A)Engagement Activities

First Nations andOther Indigenous Groups

In July 2016, the Government announced its response to theDescheneaux decision andlaunched an engagement process with First Nations and other Indigenous groups on the proposed legislative amendments to the Indian Act to address residual sex-based inequities in Indian registration as part of Stage I.

As of January 14, 2017, 17 engagement sessions have been held across Canada. The number of participants in individual sessions has ranged from 25 to 145. Participation in the sessions has been inclusive of First Nations (status Indians and members of Bands), Métis and non-status Indians. This includes: First Nation Chiefs, Councilors, administrators and community members; representatives of Treaty, Nation, regional and national organizations, including women’s organizations. (See Annex A for details)

Should the Superior Court of Quebec grant an extension of the suspension of its declaration of invalidity, INAC would offer to meet with a number of First Nations and other Indigenous groups to allow for continued discussions surrounding the proposed amendments in Bill S-3 to address residual sex-based inequities in Indian registration. These may include:

Meetings / Rationale
Assembly of First Nations of Quebec and Labrador (APNQL) / A session was held with the APNQL in September 2016 with the participation of the Chief of Odanak.Further engagement would provide an opportunity to hear the views of those affected by the proposed legislative changes.
British Columbia First Nations Summit / The Summitrepresents a large number of British Columbia First Nations, many of them involved in treaty negotiations. They were key players in the 2011 Exploratory Process and are a critical voice in designing Stage II.
Treaty 6, 7 & 8
Alberta / These treaty groups are very focused on their Treaty relationship with the Crown.Several representatives bring international experience workingon the United Nations Declaration on Rights of Indigenous Peoples (UNDRIP).
New Brunswick Mi'kmaq / The New Brunswick Mi’kmaq First Nations are veryactive in regards to Canada’s continued role in Band membership and the demographics and financial impacts of Descheneaux on their communities. They have expressed a strong interest to be a part of current and future discussions and have offered to make themselves available.
Anishinabek Nation (Union of Ontario Indians) / The leadership from the Union of Ontario Indians represents a large urban and diverse population. Discussions to date have included the lens of the United Nations Declaration on the Rights of Indigenous Peoples.
Union of British Columbia Indian Chiefs / The Union of British Columbia Indian Chiefs has not yet participated in formal engagement as part of Stage I and has expressed a strong interest to invite INAC to meet with its membership to discuss Descheneaux and the broader issues.
Yukon Self-Governing Nations / Expressed interest in discussing the specific implications of the federal response to the Descheneaux decision as it relates to the specific circumstances of self-governing First Nations.
Assembly of First Nations / Discussions with the AFN took place in July 2016. In light of Bill S-3, additional formal engagement would be beneficial .
Congress of Aboriginal Peoples / Through Stage I, engagement has occurred with the Congress and some of its regional affiliates. In light of Bill S-3, additional formal engagement would be beneficial.

Plaintiffs / Odanak and Wôlinak First Nations

INAC would engage directly with the plaintiffs in Descheneaux to confirm that the proposed amendments in Bill S-3 bring an appropriate remedy to their situations and to consider any other scenarios of known sex-based inequities in registration.

In addition, INAC would offer to the Chiefs and Councils of the Odanak and Wôlinak First Nations the opportunity to hold community-based sessions with the membership of their First Nations.

3.Individuals Impacted by Sex-Based Inequities

In keeping with the recommendation of the Senate Committee, and in cooperation with the Native Women’s Association of Canada, INAC would support the organization of a forum to foster discussions with individuals who have been impacted by sex-based inequities in Indian registration. This would provide an opportunity for impacted individuals to share their experience and views on how best to address these issues.

4.Legal Experts

INAC would hold technical discussions with representatives of the Indigenous Bar Association and the Canadian Bar Association, and other legal experts, to provide an opportunity for their review and analysis of the proposed amendments under Bill S-3, and to confirm that all known sex-based inequities in registration have been included in the bill.

B)Legislative Activities

The House is scheduled to adjourn for the summer on June 23, 2017 (subject to change). The Senate is scheduled to adjourn for the summer on June 30, 2017 (subject to change). The House of Commons and Senate are expected to reconvene on September 18, 2017 and September 19, 2017, respectively.

Due to procedural rules and the role of Parliamentarians in determining how long they wish to debate at each stage, it is impossible to determine precisely how much time the remainder of the parliamentary process will take. In order for Bill S-3 to complete the legislative process, a series of legislative steps are required. (See Annex Band the attached calendars of sitting days for the House of Commons and the Senate for details of the steps which must be completed during the scheduled sitting days of Parliament).

Annex A – Engagement Sessions Held/Planned to Date

Host Organization / Location / Date / Number of Participants (Approximate)
Assembly of First Nations of Quebec and Labrador / Montreal, Quebec / September 8-9, 2016 / 45 (Chiefs and observers)
Native Council of Nova Scotia / Liverpool, Nova Scotia / September 18, 2016 / 145 (Chiefs and community members)
Native Women’s Association of Canada / Gatineau, Quebec / September 26, 2016 / 65 (Provincial, territorial and regional representatives + members)
Anishinabek Nation (Union of Ontario Indians) / Sudbury, Ontario / September 28, 2016 / 30 (Chiefs, Councilors and Indian Registry Administrators)
Congress of Aboriginal Peoples / Gatineau, Quebec (Presentation to Annual General Assembly) / October 1, 2016 / 120 (Board of Directors + members)
Confederacy of Treaty 6 First Nations, Treaty 7 First Nations’ Chiefs and Treaty 8 First Nations of Alberta / Edmonton, Alberta / October 5, 2016 / 60 (Chiefs, Councilors, finance officers, community members)
Naut’sa Mawt Tribal Council / Vancouver, British Columbia / October 12, 2016 / 120 (Chiefs, Indian Registry administrators and observers)
First Nations Summit of British Columbia / Vancouver, British Columbia / October 20, 2016
(Brief presentation on proposed legislative amendments at Annual General Assembly) / 100 (Chiefs, Councilors, members and observers)
File Hills Qu’Appelle Tribal Council / Saskatoon, Saskatchewan / November 16, 2016 / 140 (Chiefs, Indian Registry administrators and community members)
Madawaska Maliseet First Nation / Saint Mary’s, New Brunswick / November 21, 2016 / 15 (Chiefs + community members)
Atlantic Native Women’s Association / Halifax, Nova Scotia / November 23, 2016 / 45 (representatives of Indigenous women’s groups from 4 Atlantic provinces)
Mi'gmawe'l Tplu'taqnn Inc. / Miramichi, New Brunswick / November 24, 2016 / 40 (Chiefs and community members)
Southern Chiefs of Manitoba / Winnipeg, Manitoba / December 1, 2016 / 40 (Chiefs and community members)
Quebec Native Women Inc. / Laval, Quebec / December 2, 2016 / 35 (Board of Directors and members)
Dene Nation of NWT / Yellowknife, NWT / December 7, 2016 / 30 (community members)
Council of Yukon First Nation / Whitehorse, Yukon / December 13, 2016 / 20 (Grand Chief and community members)
Native Council of Prince Edward Island / Charlottetown, Prince Edward Island / January 14, 2017
British Columbia Association of Aboriginal Friendship Centres / Vancouver, British Columbia / January 17, 2017

Annex B– Legislative Process for Bill S-3

The bill has been considered by the Standing Senate Committee on Aboriginal Peoples, which has adopted a motion that the bill not further proceed in the Senate. At present, the adoption of the motion has not yet been reported to the Senate.
The Committee would need to meet and adopt a motion authorizing it to resume consideration of the bill. The Committee could then either invite further witness testimony, or proceed to clause-by-clause consideration of the bill. The length of time for these stages is at the discretion of the Committee. The Committee meets on Tuesdays and Wednesdays.
Following clause-by-clause consideration of the bill, the Chair of the Committee would need to present the Committee’s report to the Senate. This typically takes place on the sitting day following clause-by-clause consideration of the bill.
The bill would need to be considered by the Senate at Report Stage. It is expected that the report will contain amendments. If the report contains amendments, a motion for concurrence in the report may be moved on the sitting day following the day upon which the report was presented. The length of time for this stage is at the discretion of the Senate; additional amendments may be moved, without notice, at the discretion of Senators.
The bill would need to be considered by the Senate at Third Reading. This stage could begin on the sitting day following the day upon which Report Stage concluded, and the length of time for Third Reading is at the discretion of the Senate. Unlike in the House of Commons, further amendments could be moved, without notice, at the discretion of Senators, which could prolong debate at this stage.
Following Third Reading and passage of the bill, the Senate must send a message to the House of Commons. This could take place on the same day as passage.
The bill would need to be given First Reading in the House of Commons, which would typically occur on the next sitting day from when the bill was passed by the Senate.
The motion for second reading and referral to a committee would need to be considered by the House of Commons, which cannot take place on the same day as First Reading. The length of time for Second Reading is at the discretion of the House.
Following the motion for referral to a committee, the bill would need to be considered by the Standing Committee on Indigenous and Northern Affairs. Although the Committee has conducted a study of the subject-matter of the bill, the Committee could nevertheless, as part of its official study of the bill, invite further witness testimony. Alternatively, it could proceed directly to clause-by-clause consideration of the bill. The length of time for these stages is at the discretion of the Committee. The Committee meets on Tuesdays and Thursdays.
The Chair of the Committee would need to present the Committee’s report to the House of Commons, which typically occurs on the next sitting day.
The bill would need to be considered by the House of Commons at Report Stage. This may not take place until the second sitting day following presentation of the committee’s report. The length of time for Report Stage is at the discretion of the House; if a substantial number of amendments are moved, the length of Report Stage can be substantially increased.
The bill would need to be considered by the House of Commons at Third Reading. If there are no amendments proposed during Report Stage, Third Reading may take place on the same day. The length of time for Third Reading is at the discretion of the House.
If the House of Commons amends the bill in Committee and/or at Report Stage, the bill would have to be sent back to the Senate following Third Reading and passage. The amended bill would then need to be considered by the Senate, as both Chambers must adopt identical versions of a bill in order for it to become law.
In order to become law, Royal Assent must be granted, and each Chamber must be informed.