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What is Bill S-3 and Why You Should Know About It

Liz Guilbault fills readers in on an important legislative showdown.

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On June 21, 2017 the Senate tabled Bill S-3, the bill that would eliminate sex-discrimination from the Indian Act. In 2015, the Descheneaux[1] decision ruled that provisions in the Indian Act discriminated on the basis of sex contrary to s. 15 of the Charter. The judge gave the government of Canada a year and a half to rectify the discrimination, after which date the provisions would be declared of no force and effect. A back and forth has since occurred over this summer between the House of Commons and the Senate. The House of Commons did not want to accept the amendments the Senate made to the Indian Act. Now, we sit in limbo awaiting next moves.

Provisions in the Indian Act determine who can register as a “status-Indian”. Programs and services are available for those with status unavailable to those who are not registered. Status can be passed down through generations, but only if the status seeker meets certain criteria. These criteria, such as the Double Mother rule[2] and the Second Generation Cut-off rule,[3] form the substance of where the gender-discrimination lies. After a series of amendments beginning in 1951, then 1985, then 2010, the government attempted to rectify the various forms of gender-discrimination occurring within the Act. However, because these previous attempts only rectified the provisions pursuant to the particular circumstances of the claimants in the respective court challenges, big holes of discrimination in the Act still exist today.

After the Descheneaux case in 2015, the Senate wrote Bill S-3. The bill eliminates all forms of gender-discrimination in the Indian Act, not just the situations of the claimants in the case. The bill rectifies gender-discrimination issues going back to the creation of the Act. The bill passed in the Senate and was then sent to the House of Commons.

The House of Commons did not accept the bill as it stood. Minister of Indigenous and Northern Affairs Carolyn Bennett stated that the government was concerned about the cost of opening up the criteria of who can gain status.[4] The House of Commons voted against the Senate bill. The House of Commons proposed amendments that remove a much narrower amount of gender-discrimination in the Act.

A moment of legal reflection would inform any person that cost is not a legitimate reason for refusing to ameliorate discrimination in a piece of legislation. Moreover, a piece of legislation that furthers racist, sexist, dehumanizing and denigrating policies cannot be defended for any reason in Canada today.

An extension was granted to the government to amend the bill over the summer by an appellate Quebec judge. The government has until Dec. 22, 2017 to make a change to the Indian Act before the register provisions will be declared of no force and effect. If the provisions are declared of no force and effect, there would be no way for a person to apply to register for status, and any person who is in the application process of being registered will not be allowed to register.

The House of Commons amendment has been sent to the Senate to be voted on before Dec. 22. If the Senate votes against the House of Commons amendment and the provisions are declared of no force and effect, the Senate could be blamed for not ameliorating what discrimination they could by simply accepting the House of Commons’ version of the bill.

Should the Senate stand firm in defending the right to equality for all Canadians? Or should they accept the progression by baby steps to eliminating only some of the blatantly racist and sexist provisions in the Indian Act? Is there something behind the elected Liberal government’s backwards position on Bill S-3, that stands in such stark contrast to their stated position to reconciliation? We will have to wait and see if these questions will be answered on Dec. 22.

[1] 2015 QCCS 3555

[2] The Double Mother Rule: a person who has a non-status mother and a non-status grandmother would be stripped of their status when they reached the age of 21.

[3] The Second Generation Cut-Off Rule: if a status person has a child with a non-status person, that child only receives 6(2) status. Then, if that 6(2) status person has a child with a non-status person, their child will not receive status. Status will not pass beyond the second generation of status holders who have children with non-status persons.

[4] Gloria Galloway, “Bennet urges MPs to kill Senate amendment that aims to take sexism out of the Indian Act,” The Globe and Mail Inc (2017). Link: <https://beta.theglobeandmail.com/news/politics/bennett-urges-mps-to-kill-senate-amendment-that-would-take-sexism-out-of-the-indian-act/article35256574/?ref=http://www.theglobeandmail.com&>

Liz Guilbault is a 2L and Editor-in-Chief of Juris Diction. 

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