In her third decision in Stephane Descheneaux et Susan Yantha et Tammy Yantha c. la Procureure Générale du Canada, released on Tuesday, Justice Chantal Masse indicated that it was not the role of the court to intervene in a dispute between the House of Commons and the Senate over Bill S-3, which would remove sexist elements from the Indian Act.
Although the government did not ask for an extension of the deadline of July 3, when the bill was supposed to be passed into law, Masse said she would nonetheless remain available to hear another motion for extension until then.
David Schulze, who represents the plaintiffs in the case, said in a conference call following the release of the decision that “we brought a motion for an extension [because] we said that we were on our way to a possibility of an impasse between the two houses of Parliament”: the House of Commons and the Senate.
The lawsuit was brought by three members of the Abénakis of Odanak First Nation in Québec, who challenged the Indian registration provisions under section 6 of the Indian Act, adopted in 1985, as being unconstitutional and in contravention of the Charter. In Masse’s August 2015 decision, she found that the registration rules adopted in 1985 continued to discriminate against those who traced their First Nations ancestry to a female rather than a male, and declared several provisions of the Indian Act invalid. She gave the government until February 3, 2017 to amend these rules.
The federal government introduced legislative amendments to the Indian Act in Parliament in October 2016. Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), followed a government engagement process with First Nations and other indigenous groups.
Masse later granted a further extension for passage of the bill, until July 3, after the Senate Committee on Aboriginal Peoples suspended debate and requested that the
Minister of Indigenous and Northern Affairs consult with First Nations and address sexual discrimination in the Indian Act that the bill did not correct.
Indigenous and Northern Affairs Canada had told the court that Bill S-3 would be back before Parliament in early spring and passed by June 23rd, the date Parliament is expected to adjourn for the summer, Schulze said, but the bill was not brought back before the Senate until May 8th.
“We are [now at] June 20, 2017. No legislation has yet been passed,” Justice Masse wrote, in French. “Nor is it clear from the current process whether there will be any before the deadline of July 3, in just a few days’ time.”
“We had expected [that] Canada would have brought an extension, given that there won’t likely be a bill passed by July 3rd,” said Schulze.
Last month the Senate amended the bill put forward by the Minister of Indigenous and Northern Affairs on the grounds that it did not end all discrimination; but on the
Minister’s recommendation, he added, the House of Commons Standing Committee on Indigenous and Northern Affairs did not accept the Senate’s amendment.
“What we’re dealing with now between the House of Commons and the Senate is a game of chicken,” Schulze said in Tuesday’s conference call.
This marks “the second time the government of Canada has lost on this issue”; the first time, he said, was in the of Sharon McIvor, a native woman who lost her Indian status rights after marrying a non-native man. This was prior to the passage of Bill C-31 in 1985, which restored registration rights to native women from 1985 onwards, but did not completely restore rights to those women who had already lost them or give status rights to their children and descendants. This meant that McIvor’s son had no Indian status rights.
In 2007 the British Columbia Supreme Court ruled that distinctions in the Indian Act were discriminatory and contrary to the Charter and issued a broad remedy allowing for the registration of the descendants of native women who had lost their status. Canada appealed that judgement. The B.C. Court of Appeal agreed with the trial judge’s decision that the Indian Act infringed on McIvor’s and her son’s right to equality under the Charter, and gave the federal government until August of 2010 to amend the Act.
Rick O’Bomsawin, chief of the Abénakis of Odanak First Nation in Québec, of which the three plaintiffs are members, and an intervener in the case, expressed surprise and disappointment “that a country like Canada would think it is OK to discriminate against First Nations women.” Fears that First Nations communities will be overwhelmed by native women and their children coming to live in them after their registration rights are granted are unfounded, O’Bomsawin said in the conference call.
After the McIvor ruling in 2007, “there wasn’t a mass influx of people moving into [First Nations] communities.”
The House of Commons is currently debating the third reading of Bill S-3, which is expected to be back in the Senate on Thursday evening or Friday, Schulze told Legal Feeds.