OTTAWA — Indigenous senators suggested this week that the federal government can't be trusted to follow through with sweeping changes that remove sex-based status discrimination from the Indian Act.
"Promises were made in 1985 and 2010 to eliminate all female sex discrimination in status. And those promises were not kept," Independent Liberal Sen. Lillian Eva Dyck told HuffPost Canada.
A majority of senators passed the latest iteration of Bill S-3 on Thursday, adding compromise amendments that could restore Indian status to Indigenous women who married non-Indigenous men prior to 1951 — the year the Indian register came into effect.
The newly independent Senate felt legislative change should extend to 1876, when the Indian Act was struck. The Liberal government, however, wanted to enshrine status only to women who lost theirs since 1951.
The Grits estimated their bill would impact some 40,000 individuals. The senators' change would extend status from anywhere between 80,000 to two million individuals, according to the government.
The compromise — to study granting status to women and their descendents from 1876 to 1951 by launching consultations with no firm deadline — was suggested by the government's representative in the upper chamber, Sen. Peter Harder. It was greeted with harsh words from the senators who felt the lack of an explicit deadline means the government might not follow through.
We should not trust the government. We don't trust the government.Sen. Lillian Dyck
Independent Liberal Sen. Serge Joyal delivered a speech in the Senate about the government's history of broken promises. "Unfortunately, with this bill, it doesn't end. There is still darkness ahead of us," he said.
Dyck started her comments with praise.
"I believe it's the first time in the 12 and a half years that I have been here that we have actually taken the time to debate a bill related to First Nations with such in-depth debate, and I'm very pleased that that is happening," she told her colleagues.
Dyck, a longtime advocate for ending sex-based discrimination in the controversial Act, has been personally affected by the current rules; her Cree mother lost her legal status in 1943 after marrying a Chinese man.
She cautioned: "We should not trust the government. We don't trust the government."
Debate around the bill resulted in passionate exchanges among senators.
"This sexism was imposed by outside forces," Brazeau said. The Quebec senator said he had two great-grandmothers who lost their status because of discrimination in the Indian Act.
"It was forced upon Indigenous women by newcomers to this land. This mandatory, state-sanctioned sexism was not a creation of Indigenous communities, and yet the effect upon these women and their descendants was immediate and has been long-lasting."
Government under court deadline to make Indian Act changes
Bill S-3 was first introduced in the upper chamber in the fall of 2016 in response to a Quebec Superior Court ruling that found sections of the Indian Act in violation of the Charter of Rights and Freedoms.
A Quebec father, Stephane Descheneaux, had brought his case to court after he was unable to pass down his Indian status to his three daughters because his grandmother had lost her status when she married a non-status man.
Descheneaux argued that if his Indigenous grandparent was a man, he wouldn't have the same problem.
Full legal status is currently determined through a patrilineal system of record-keeping. The Indian Act, as it is currently worded, stipulates that First Nations women lose their status if they marry non-status people. It's a discriminatory provision that inhibits descendants of those specific unions from claiming status.
Bill S-3 would reverse that practice and restore status rights and benefits to First Nations women and her descendants born before 1985, the year when equality rights were entrenched through the adoption of the Charter of Rights and Freedoms.
A previous court case prompted the Conservative government to appoint an Indigenous-led committee to explore broader status registration issues. The 1951 cut-off date was identified as significant for Indigenous groups and government because that's when status registration became officiated.
The court had warned the federal government not to shirk its responsibility, reminding it that future legal cases might be on the horizon if the remedy enacted was inadequate. An excerpt from the Aug. 3, 2015 ruling bluntly reads: "From the perspective of Canadian citizens, all of whom are potential litigants, the failure to perform this legislative duty and the abdication of power that may result are obviously not desirable."
Because the ruling came a day after the federal election call, the then-Conservative government responded by filing an appeal. The new Liberal government withdrew the appeal in early 2016 and has been granted three extensions to make the court-mandated legislative changes.
Senators feel hope and trepidation
The Liberal government then introduced legislation in the Senate as a strategic way to expedite passage before the court-extended July 3, 2017 deadline.
But standoffs between the Senate and the House caused the federal government to miss that summer deadline. It now has until Dec. 22 to update the Indian Act and address the gender-based inequalities.
This week, Brazeau, who found the lack of an implementation date problematic in the government's amendments, tried to table a motion to put a 18-month deadline on the proposed consultations.
But his amendments were voted down over concerns an additional back-and-forth between the Senate and House would risk further delays.
No deadline puts 'thousands' of Indigenous women in limbo: senator
The Liberals' Senate bill introduction strategy collapsed after Independent Sen. Marilou McPhedran proposed to go beyond the scope of the government's bill, and address sex-based discrimination all the way back to 1876. The senators agreed.
The change spurred strong resistance from the Liberal government. But its apparent about-face — with Harder's amendments — was initially greeted with praise in the upper house.
"Finally, Indian women will be recognized in law as having equal rights as Indian men to transmit their status as registered Indians and all that goes with it — your language, your culture, your connection to your family, your connection to your community," said Dyck, voice shaking, in the Senate Tuesday. She urged her colleagues to support Harder's motion.
But by week's end, the tone surrounding the bill had turned to skepticism. Senators raised concerns the government's sprawling consultation period would chew up time and jeopardize the expansion of new rights.
Finally, Indian women will be recognized in law as having equal rights as Indian men to transmit their status as registered Indians and all that goes with it.Sen. Lillian Dyck
Sen. Sandra Lovelace Nicholas, an independent Liberal, warned passage of the bill in the Senate with no fixed date for implementation on the government's end invited the possibility of more delays.
"Without a specific date, that still leaves thousands of Indigenous women in limbo," Lovelace Nicholas said. The Maliseet senator lost her status in 1970 after she married an non-Indigenous American.
Lovelace Nicholas said without a fixed timeline, "it feels like we are in another situation of take-it-or-leave-it legislation.
"Indigenous people have a long history of being brought to the brink of a better relationship with the government only to have it postponed, denied, or forgotten; half promises and partial settlements followed," she said.
"So you will understand that I am not celebrating until I see this government follow through and this bill and its amendments become law."
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