OTTAWA — The government is rushing an Indian Act update through the Commons because of a court-mandated July 3 deadline, but it isn’t asking for an extension despite the court’s apparent openness to the idea.
Instead, the plaintiffs in the landmark Descheneaux case are the ones asking for more time — something for which Sen. Murray Sinclair also advocates — for the government to figure out how better to eliminate discrimination in indigenous registration.
A motion on a deadline extension expected Monday comes as the government and Senate continue to butt heads.
In summer 2015, a Superior Court of Quebec judge handed the government an 18-month deadline to fix registration rules that have long discriminated against indigenous women and their descendents.
The government introduced a bill in the Senate last fall to address inequities, but the Senate committee studying it spotted major issues. The committee successfully pressured Liberals to seek a new court extension, and they got it, punting the deadline to July 3.
A new-and-improved version of Bill S-3 was brought forward in May. But senators weren’t satisfied, passing an amendment from independent Sen. Marilou McPhedran that seeks to address broader issues of discrimination and make the system entirely non-discriminatory.
The Liberal government is opposing the McPhedran amendment even though the Liberals proposed the same amendment in 2010, when the Conservative government was amending the Indian Act. A department official estimated in committee the amendment could open status up to between 80,000 and two million people, but admitted Indigenous and Northern Affairs Canada had never compiled such data.
While the amended bill passed the Senate, it is expected Liberals will remove it in the House of Commons. Then, it’ll have to be sent back to the Senate again for final approval — or, if senators so choose, they can reject any changes and punt the bill back to the Commons again.
But the clock is ticking. It’s almost summer break, and July 3 looms. As many as 35,000 people could immediately face difficulty obtaining Indian status if laws aren’t updated before the deadline.
Bennett argued Tuesday evening in the Commons there wasn’t enough time for consultations on reform beyond what was drafted in Bill S-3 because of the “tight court mandated deadline.” She said, “I urge all members to act responsibly and to take into account the urgency with which we must act to pass this bill.”
According to the lawyer for original plaintiff Stéphane Descheneaux, the government position amounts to fear-mongering from a government spewing “absolutely preposterous nonsense” about the law’s complexity. He and his client support the Senate’s position.
It’s really quite obvious what the minister and her department want right now. They want the Senate to feel compelled to concede to the minister’s version of the bill
“It’s really quite obvious what the minister and her department want right now. They want the Senate to feel compelled to concede to the minister’s version of the bill, out of fear that after July 3 nobody will be registered as an Indian anymore,” Schulze said. “They’ve taken 23 months to just do the minimum in S-3.”
Justice Chantal Masse is granting hearings Monday and, if needed, Tuesday to hear from parties and intervenors. Lawyer David Schulze will bring a motion to Masse on the plaintiffs’ and intervenors’ behalf. “I think it’s a serious possibility (that it will be granted),” Schulze said.
An official in Bennett’s office said the government doesn’t intend to extend the court deadline but may be forced to if the July 3 deadline can’t be met.
Bennett has repeated the bill is only the “first stage” of its response to the Descheneaux decision, awaiting a “broader reform of registration and membership provisions within the Indian Act.”
“We need to pass this legislation immediately,” she said in a statement to the National Post Wednesday, adding the legislation “also binds the government to move forward immediately with broader reforms of the outdated provisions of the Indian Act dealing with registration.”
Schulze was skeptical of this promise, saying wider reforms have been promised for decades with no action. The Senate amendment would prevent further piecemeal court challenges, with piecemeal legislative answers, he said.
In the Descheneaux judgment that started it all, Justice Chantal Masse had written that parliament could go further than her judgment and take “appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether they are based on sex or another prohibited ground, in accordance with its constitutional obligation.”
In her pitch to the House of Commons Tuesday Bennett used Sinclair’s position to support her own arguments. She said Sinclair had found “ambiguity” in the McPhedran amendment.
But Sinclair clarified his position with a letter to the indigenous affairs committee dated Tuesday and circulated by email. He said he voted against the McPhedran amendment in committee because, in his words, “I do not believe the amendment accomplishes what it is intended to do. It simply does not go far enough to address sex-based discrimination.”
Sinclair said in light of the court hearings scheduled for next week the government should seek an extension and “remove the urgency,” thereby giving itself enough time to “explore all possible scenarios” to address discrimination.
• Email: mdsmith@postmedia.com | Twitter: mariedanielles