OTTAWA — A Quebec Superior Court judge ruled Tuesday against giving the federal government more time to pass court-mandated changes to the Indian Act that would prevent sex-based discrimination.
The ruling came after the government told the court Monday it would not seek an extension to the July 3 deadline to make the changes. After that date, status registration under the Indian Act will grind to a halt unless new laws are in place.
The Liberal government has attempted to rush its proposed changes to the act through parliament before it rises for summer break to accommodate the court-imposed deadline, but like the federal budget, they remain a point of contention between the House of Commons and the Senate.
Though the government opted not to join plaintiffs and intervenors in the landmark Descheneaux case in seeking an extension to the deadline, Justice Chantal Masse is reserving the right to rule differently should the government change its mind before July 3.
In a phone call after the ruling, the plaintiffs’ lawyer David Schulze said ordinarily the government would have sought an extension if it wasn’t sure a bill could be passed in time, but has instead entered a holding pattern, part of the brinkmanship in which it is engaged with the Senate. According to Schulze, Masse said Tuesday that it would be “out of the question for the Superior Court to become involved in a dispute between the Senate and the House of Commons.”
The original Descheneaux court decision came in summer 2015, compelling the government to fix the Indian Act so it would no longer discriminate against applicants for Indian status on the basis of sex. The Senate has already forced the government to ask for one court extension already, when a Senate committee found major problems with the original draft of the changes contained in Bill S-3.
A new version of the bill was brought to the Senate in May. Senators made a major amendment that proponents say would remove many types of discrimination from the Indian Act, not just the discrimination that had been addressed in the Descheneaux case. But the government decided to remove the amendment last week as the bill passed through the House of Commons.
The Senate will need to defer to the House and accept the change, letting the bill continue on its way to becoming law, or decide to fight for its amendment and send the bill back to the House again, putting the government at risk of failing to meet the court’s deadline. It’s a “game of chicken,” as Schulze put it.
The amendment’s supporters include independent Sen. Patrick Brazeau, who told the Senate one of his children faces difficulty getting status because of sex-based discrimination. And those senators aren’t alone, with some MPs voicing their concerns Tuesday about the government’s lack of support for the amendment. “Who else is asked that your human rights be delayed once again? Indigenous women in this country have waited for so long, for so long,” said New Democrat MP Romeo Saganash.
Indigenous Affairs Minister Carolyn Bennett has been pressuring senators to cave so registration rules aren’t struck down, which would leave up to 35,000 people unable to register. Bennett has also warned many thousands of people could be newly eligible for status — and band membership — if the Senate amendment were adopted. Her department has estimated that number could reach around 80,000 people.
Rick O’Bomsawin, the Chief of the Odanak Abenaki (the First Nation of plaintiffs in the case), said Tuesday he felt the government was approaching the situation from a financial point of view, rather than attempting to solve the underlying problem. In refusing the Senate’s amendment, he said, Canada is essentially saying “it’s alright to discriminate against First Nations women.”
“I don’t understand. I guess I’m puzzled by it. I will not let it go. Like I said before if we have to be back in court again we’ll be back in court again,” O’Bomsawin said.
Masse had encouraged the government to address “all other discriminatory situations” present in the bill rather than only acting upon her judgment. But Tuesday she said the court’s place now is to let parliament play its role. “She felt that a bill before parliament is a political matter,” said Schulze.
Independent Sen. Murray Sinclair, who was the first indigenous judge appointed in Manitoba, has encouraged the feds to seek an extension and “remove the urgency” so parliament can look at the best way to remove discrimination from the Act.
An official from Bennett’s office told the Post the government will only seek an extension if it absolutely has to. It was being debated at third reading in the House Tuesday evening and will likely be referred back to the Senate within a day or two.
Email: mdsmith@postmedia.com | Twitter: mariedanielles
