A suspension on new Indian status registrations could begin new week unless the Quebec Court of Appeal issues a safeguard order that would temporarily suspend a ruling that ordered the federal government to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms.
Quebec Superior Court Justice Chantal Masse dismissed a motion earlier this week to extend Parliament’s deadline for eliminating sex discrimination from the registration provisions in the Indian Act. Ottawa had already received a couple of extensions.
“It is important to recall here that even if the Court granted what the Attorney General of Canada calls a “final” extension period, the Attorney General is not able to guarantee that the current situation will not arise again, in exactly the same way, six months from now,” noted Justice Masse in an oral ruling, her fourth decision in Descheneaux c. Procureure générale du Canada.
The federal government will be appealing the decision on Monday before a single judge of the appeal court. The appeal court justice could stay the decision to suspend the effects of the original Masse decision until the matter is heard by a full panel of the Quebec Court of Appeal. If the appeal court does hear the matter, it is expected it would hear the case expeditiously, within the next two weeks.
But if the federal government fails to win an appeal, then that could spell trouble. Status registration, the system by which indigenous people register for official status, will come to a halt by court order as of July 4th. Status Indians are entitled to a wide range of programs and services offered by federal agencies and provincial governments.
“Without a stay of the ruling, the Department of Indigenous and Northern Affairs will no longer be able to approve the status for the vast majority of individuals who have duly applied and are entitled to it,” said Indigenous Affairs Minister Carolyn Bennett’s office in a statement. “This would cause disruption and unfair stress on thousands of people each month.”
There is some debate however over the reach of the freeze on new Indian status registrations. It is quite possible that the freeze could affect indigenous people across Canada, and not just those residing in Quebec, said David Schulze, who represents the plaintiffs in the case.
“Strictly speaking a judgment of the Superior Court is only effective in Quebec,” explained Schulze. “But there is a serious argument to be made that since Canada chose not to appeal the judgment that the judgment binds the government of Canada across Canada.”
The federal government are caught in this quandary after it was unable to reach an agreement with the Senate over Bill S-3, which is supposed to be the first step in addressing a 2015 Quebec Superior Court ruling that found the Indian Act discriminated against women and their descendants on the issue of registration.
Last month, the Senate amended a bill tabled by the Minister of Indigenous and Northern Affairs Carolyn Bennett because it did not put an end to all discrimination found in the Indian Act. The House of Commons Standing Committee on Indigenous and Northern Affairs, on Bennett’s recommendation, stripped the changes from the bill.
Both houses bandied Bill S-3 back and forth until it was too late. The Senate, by deferring its vote on the bill until the fall, in effect snubbed the deadline imposed by the court. The Senate has long maintained that Bill S-3 maintains discriminatory provisions in the Indian Act. Senators – and Schulze — argue that the federal government should address all discrimination found in the Indian Act now rather than deal with them in a second phase.
Indeed, the changes proposed by the Senate include the same amendments that Liberal Members of Parliament put forward when the Conservative government were planning to update the Indian Act in 2010. Moreover, when now Attorney General Jody Wilson-Raybould was a British Columbia regional chief back in 2010, she too argued that the Conservative government should eliminate all discrimination in the Indian Act.
“Ever since the election, the Minister (of Indigenous and Northern Affairs) and the Prime Minister have talked about how much they believe in a nation-to-nation relationship, and the strange thing is in the case of the Abenaki nation no one from Indian Affairs has shown any great interest in speaking to them,” said Schulze. “The government, for reasons of its own, decided to live very dangerously and now they have created this gigantic mess. And they have created it by not wanting to engage in any real dialogue with anyone, not with the Abenaki, now with Aboriginal women’s groups, and not with the Senate.”
In 2015, in a case brought by three members of the Abenaki of Odanak, Justice Masse found that the registration rules adopted in 1985 to bring the Indian Act into conformity with the Charter discriminated against those who traced their First Nations ancestry to a female rather than a male.
That ruling marked the third time that the issue of gender discrimination provisions in the Indian Act was the subject of legal debate. Before 1985, Indian women lost their status if they married men without Indian status, and their children had no right to be registered as Indians. Indian men however kept their status if they married non-Indian women, and gave status to their wives and children. In 1977, Senator Sandra Lovelace successfully petitioned the United Nations Human Rights Committee, which found in 1981 Canada in breach of the International Covenant on Civil and Political Rights. That prompted Canada to introduce Bill C-31 or a Bill to Amend the Indian Act, in 1985 which gave Indian status back to women who had lost it and gave status to their children.
The 1985 amendments also created new registration rules, without regard to gender. But it also created new problems. In 2009 the B.C. Court of Appeal ruled in McIvor v. Canada that the registration rules under the Indian Act discriminated against some Indian women who had lost their status. The federal government, rather than appeal to the Supreme Court of Canada, amended the registration rules in 2010 in order to give status to grandchildren born after 1951. But the new registration rules only put an end to discrimination “in the case of individuals whose situation was exactly identical” to that of Ms. McIvor’s grandchildren, noted Justice Masse in a very technical and complex 60-page ruling in Descheneaux v. Canada 2015 QCCS 3555.
“We’re dealing here with the residual effects of the transition,” said Schulze. “Pre-1985, Indian status was an almost purely patrilineal matter. It was always about who your father or husband was. Post-1995, it’s about how many status parents or grandparents you have. The problem is that the transition gave a greater value to male ancestors than female ancestors.”
Indigenous Affairs Minister Carolyn Bennett maintains that the federal government is “committed” to ensuring “fairness” in the Indian Act. “While we are disappointed the Senate did not pass the bill before the court imposed deadline, the government remains committed to passing legislation expeditiously to both comply with the court and so the government can move on the important work of further reforms to the outdated Indian Act,” she said in a statement. “We are currently examining a number of options to minimize the impact on individuals who may soon be denied their status and benefits because of this.”
But Schulze, who admits to being “extremely frustrated and very disappointed,” has yet to be convinced by Ottawa’s good faith in the matter.
“The distance between their rhetoric and what they do on a file like this is enormous,” said Schulze. “I’m sure they would be happy to have status Indians if they didn’t cost any money. That is clear from their track records. If there is a risk that they are going to end up with status Indians that they have to provide a budget for, they don’t seem to like that. It’s not a very nice conclusion to reach.”
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