Justice Nicholas Kasirer of the Court of Appeal of Quebec has issued a safeguard order to temporarily avert a total shutdown of the Indian Act status registration process, following a failure of the federal government to pass S-3 by the Senate in the dying days of this past parliamentary sitting.
In the initial Quebec Superior Court case two years ago, Stephane Descheneaux and Susan and Tammy Yantha successfully argued that section 6 of the Indian Act violated Charter-entrenched equality rights by creating gender discrimination for status registration. The court struck down the impugned law, giving the government little choice but to rectify gender-specific aspects of the Indian Act: “the Court declares […] that paragraphs 6(1)(a),(c) and (f) and subsection 6(2) of the Indian Act unjustifiably infringe section 15 of the Canadian Charter of Rights and Freedoms and are inoperative”.
In response to the judgment and within an 18-month period of court-ordered suspended invalidity, the government introduced S-3, tackling specific recent issues related to cousins, siblings and omitted minors: “the differential treatment of first cousins whose grandmother lost Status due to marriage with a non-Indian […] differential treatment of women who were born out of wedlock of Indian fathers [and] differential treatment of minor children, compared to their adult or married siblings, who were born of Indian parents or of an Indian mother, but lost entitlement to Indian Status because their mother married a non-Indian”.
The government’s initial bill drew the line for the expansion of status to those affected after the 1951 creation of the Indian Register—but beyond any of these particular factual scenarios, Justice Chantal Masse of the Superior Court had ruled in Descheneaux that emphasis on particular discriminatory provisions of the Indian Act by no means exempts “Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether they are based on sex or another prohibited ground, in accordance with its constitutional obligation to ensure that the laws respect the rights enshrined in the Canadian Charter”.
In the course of the S-3 legislative process, Senators acted on the judge’s prescription for a more ambitious approach, amending the government’s bill to eliminate any remaining distinctions between the descendants of men and women who married non-Indians back to the creation of the Indian Act in the 1800s. Indigenous Affairs Minister Carolyn Bennett, the member of cabinet responsible for the legislation, told the Senate’s aboriginal people’s committee that their amendments risked adding “hundreds of thousands, or even millions, of new people” to the Indian Register.
Independent Senator Marilou McPhedran spearheaded the Senate’s efforts to extend the bill’s scope and told National Post that she looked on as the Liberal majority in the House of Commons voted down the more ambitious approach: “I can tell you that I was in the gallery and it wasn’t annoyance, it was heartbreak. It was just a sense of, ‘why are they doing this? How does this make any sense for the values that have been espoused by this government?’” McPhedran has noted that the Senate’s changes were derived from amendments originally proposed by the Liberals while in opposition.
Minister Bennett explained that the issue looks somewhat different from her seat on the government side of the House: “Having been in opposition for a decade, sometimes we’re able to propose where we haven’t really understood all of the implications, or we haven’t had the resources to go and do the kind of consultation that is required,” she said.
In the dying days of the parliamentary sitting, the Senate then voted not to pass the narrow version of the bill that the government evidently favoured, generating the current impasse.
Parliament will be unable to take further action on the Descheneaux ruling until it returns from summer adjournment in mid-September. The Quebec Court of Appeal will hear arguments on August 9 for the further extension of the suspended invalidity.
This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.