Fixing Bill S-3 in order to guarantee rights equally between Indigenous men and women

On Tuesday, June 20th, 2017 in Parlement, Discours

Elizabeth May

Madam Speaker, it is an honour to rise in this place to put my views forward following the member for Abitibi—Baie-James—Nunavik—Eeyou. He said exactly, in much clearer, more passionate language and with greater depth of experience, the reasons that I am also putting forward amendments to try to repair Bill S-3, so that it does not perpetuate gender-based discrimination against indigenous women and their descendants.

As members know, Bill S-3 comes to us as a result of yet another court case raising the issue of discrimination under the Indian Act. Let us step back for a moment and acknowledge the Indian Act itself is a monument to discrimination. The Indian Act is a racist piece of legislation, and I grieve that we are not as a Parliament taking on the challenge of eliminating the spectre of a piece of legislation about which many Canadians may not know. It was a piece of legislation on which South Africa modelled apartheid. It needs to be replaced, it needs to be gone, but what we have before us is a slice of that discrimination that is embedded in a discriminatory act which treats indigenous women and their descendants quite differently than it treats indigenous men.

The case was brought to the Quebec court by Stéphane Descheneaux. The court set a deadline, the case was heard and resolved in 2015. The deadline was extended once, and as we just heard in my hon. colleague’s comments in response to a question, just today the plaintiff returned to court, and asked if Madam Judge Masse would extend that deadline once again. As the deadline now sits, this Parliament needs to resolve the matter by July 3, or there will be consequences in the issuing of status cards, and there will be unacceptable consequences. On the other hand, it is certainly distressing and incomprehensible to me that given how flawed the bill is that the Government of Canada has not gone to the court to ask for an extension.

Should we be able in this place now to accept either my amendment, or the amendment put forward by the hon. member for Abitibi—Baie-James—Nunavik—Eeyou, then at least we have a piece of legislation which does not perpetuate gender discrimination. If we accept those amendments and the government feels it creates a tremendous chaos out there, we are not sure where we are going to go next. It does not have to move forward on the legislation, all it has to do is go to the judge and ask for an extension.

The Quebec court in this matter has made it very clear as of less than an hour ago, when the press conference from the plaintiff took place, that it is ready and willing to give an extension. The judge was not willing to given an extension on the deadline today on an application from the plaintiff, because she did not want to put the Quebec Superior Court in the position of arbitrating between the Senate of Canada and the House of Commons. It is very clear, very fresh and pertinent, and timely information that the extension could be had if the government seeks it. I would wish the government would seek it.

However, let us go back to why these amendments really matter. It is a question of justice. It is a question of discrimination, and it is a question of whether we can draw a line in the sand and accept all the historical wrongs that happened if someone was a descendant based on relationships before 1951. Before 1951, we are just going to say that it does not matter anymore, and we are going to limit it to 35,000 people, because that is a manageable number. This is something I have never seen before in any debate on rights, that we only give fairness to X number of people, and we are not prepared to extend it to all the people. It is unconscionable.

I want to go back, and my colleague has already mentioned the testimony of Professor Pam Palmater, who is uniquely qualified in this debate not only because she is a distinguished lawyer and professor, and comes from the territory of the Mi’kmaq First Nation in Nova Scotia, but she has written a book which directly bears on this. Her book is Beyond Blood: Rethinking Indigenous Identity.

Her research has shown that, for example, and I will quote her:

The hierarchy of Indian status between section 6(1) and 6(2) have and continue to disproportionately impact Indigenous women and their descendants since its creation in 1985. It is an unconscionable formula based on racist ideas related to blood quantum that were designed to legislate Indians out of existence.

She is referring to sections of the Indian Act. She goes on to say:

As a result, Canada’s own demographer can pin point with relative accuracy the extinction dates of each First Nation in Canada based on birth, death and out-marriage rates.

Some might wonder what out-marriage means. The essence of this discrimination is that, if a first nations man marries a non-indigenous woman, their children continue to be recognized as Indians for the purpose of the Indian Act, but if a first nations woman marries a non-indigenous man, the children are not recognized. Further, with respect to children of unwed mothers who are not willing or able to name the father, or fathers who deny paternity, we go through a whole hierarchy of subtractions, subtraction of indigenous women’s rights through a hierarchy of different classes of people.

If my amendment or the amendments put forward by the NDP are accepted, we could restore at least those pieces of Bill S-3 that were put forward in the Senate. They were supported by the Senate but removed from the bill by the government. They are what would make it possible to support Bill S-3 and get it through the House. With those removed, we are back in a situation where the defence that I hear from the government is that there will simply be too many people and we will not know quite how many there are. As I said, this cannot be a question of numbers.

Again, from evidence that was heard in the Senate committee, if the estimate is 200,000 people instead of 35,000 people who have rights through ancestry and parenthood once historic discrimination against women is removed, that is roughly equivalent to the number of new immigrants we take into Canada every year. We need to put 200,000 into some context. Why would we deny rights based on the question that this might be too many new people?

The fundamental crying need in this area of law is to get rid of the Indian Act, and then we could be talking about how to move forward from here. However, we are dealing only with this piece based on the court decision and the court case brought by Stephane Descheneaux. It seems to me that we do not have any choice other than to eliminate gender-based discrimination.

In the minute I have left, I want to turn again to the words of Professor Palmater, because it could not be clearer. She said:

There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional Nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away. Traditional Indigenous Nations did not permit inequality between genders. The constitutionally-protected Aboriginal right to determine one’s own citizens is conditioned on section 35(4)’s guarantee of equality for Indigenous men and women.

Of course, that is section 35(4) of the Canadian Constitution.

UNDRIP which provides extensive protections for indigenous peoples also guarantees these rights equally between Indigenous men and women.

I want to underscore this sentence from Professor Palmater’s testimony, “There is simply no legal mechanism by which to consult out of gender equality.”

She went on to say:

Discrimination is discrimination—whether five layers of discrimination are piled on top of us or “only” one layer—Indigenous women and our descendants bear an unfair burden of trying to convince others it should end.

I urge every member of the House to vote for the amendments, and then we can pass Bill S-3 with a clear conscience.

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