Sex-Based Discrimination and Bill S-3
On December 4th, Parliament passed Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec in Descheneaux c. Canada.
This Bill continues to perpetuate discrimination in the Indian Act on the basis of age, sex and marital status and exposes an apparent lack of sincerity on the part of the government in promised further consultation.
Bill S-3 makes no effort to conform the registration provisions of the Indian Act with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and contains provisions that suggest the government has per-determined its response to consultations with Indigenous peoples on these matters. If this government has already determined the actions it will take following consultation, this casts significant doubt on its intention to engage in these consultations in good faith.
Over the years, the courts have struck down some of the registration provisions in the Indian Act that violate Indigenous people’s equality rights under section 15 of the Charter, yet the government limits these legislative amendments strictly to the discrimination found in each case. Despite valiant efforts by some parliamentarians to include clauses to Bill S-3 that would effectively remove all discriminations from the Indian Act registration provisions – commonly referred to as “6(1)(a) all the way” – the Bill passed the House of Commons without these amendments.
Under Bill S-3, the government will continue to determine who does and does not qualify for “Indian” status.
Recently, the Government has changed its initial opposition to Romeo Saganash’s Private Member’s Bill, Bill C-262. Justice Minister Wilson-Raybould announced in November that the government now supports the Bill, which requires the conformity of all of Canada’s laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – including the Articles 33 right of indigenous peoples to determine their own identity and membership. How the government intends to reconcile Article 33 of UNDRIP with the provisions of the Indian Act which vest the authority to decide the status of indigenous peoples with the federal government is, at best, unclear.
Bill S-3 contains layered coming into force provisions that will see amendments to Indian Act registration provisions in two stages. The first stage amendments will address only that discrimination which the Court found to be unconstitutional in Descheneaux; whereas the second stage amendments will address a broader range of discrimination under these provisions, though not all discrimination.
If Bill S-3’s second stage amendments are, in fact, the government’s intended response to coming consultations on discriminatory registration provisions, this suggests that the government may have already decided how it will respond to the consultation processes, regardless of what it learns. Is this what the government considers to be meaningful consultation?
Removing all discrimination from the Indian Act is clearly the right thing to do. Consultation in achieving this objective is only laudable if that consultation is done meaningfully and in good faith. The government must not undermine the value and importance of consolation by using it as a stall tactic.