Senators preparing for Indian Act showdown with Ottawa

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This article was published 30/10/2017 (2957 days ago), so information in it may no longer be current.

OTTAWA — Manitoba senators say they’re making headway in pushing Ottawa to fix discrimination in the Indian Act, but their tactics could lead to a risky showdown that could kill the bill.

Since this spring, independent senators Marilou McPhedran and Murray Sinclair have been at the forefront of an effort to restore Indian Act status to tens of thousands of Canadians, which might extend mental health and dental benefits to numerous Manitobans.

“Senators are pretty united that the legislation has to clear all discrimination from the Indian Act,” Sinclair said.

An August 2015 court decision ruled the Indian Act discriminates by excluding women who marry non-Indigenous men, as well as their descendants.

The Liberals tabled Bill S-3 in November 2016, to fix the lineage rules for those who lost their status from 1951 onward.

But McPhedran amended the legislation in May so it would apply to cases dating to 1876, as First Nations activists have long demanded.

That sparked a dramatic showdown with the government, who warned an unknown number of people could flood First Nations voting rolls and overwhelm services for Indian-status holders.

The Liberals gutted McPhedran’s amendment in June, saying the interim bill would accord Indian status to roughly 35,000 Canadians and kick off a consultation process to look at expanding the bill later.

The Senate dug in its heels, causing the government to yank the bill off the agenda right before the summer break, and seek a second court extension.

A Quebec court reluctantly gave the Liberals until Dec. 22 to pass the bill.

Over the summer, the Free Press revealed Ottawa had commissioned Winnipeg demographer Stewart Clatworthy to tabulate how many people would be eligible for Indian status under various iterations of the bill — including by province.

The government has not made that data public, and bureaucrats would only provide it to the budgetary watchdog under a “Protected B” classification, which is defined as information that, if made public, “could cause serious injury to an individual, organization or government.”

But recently, the government’s representative, Sen. Peter Harder, pledged “to making Mr. Clatworthy’s report public and providing it to the senators” before they debate the motion, likely “in the coming weeks.”

It became clear just how firmly senators want to extend the bill when Conservative Senate Leader Larry Smith pressed Justice Minister Jody Wilson-Raybould to widen the bill. It illustrated the Opposition party has joined many Liberal-appointed senators in supporting the amendment.

Both Smith and McPhedran cited Wilson-Raybould’s April 2010 remarks to a Commons committee that had studied sex-discrimination in the Indian Act, where she said, “It would be the position of any reasonable person… to eradicate discrimination wherever and whenever possible in today’s age.”

Wilson-Raybould, who was a senior British Columbia chief at the time, said she stood by those comments, but her previous role gives her “some authority” on possible repercussions of making too many people suddenly eligible for Indian status.

“We’re committed to doing it in the phased approach,” the justice minister said.

Regardless, Sinclair said senators are determined to get their way. Some are mulling a “free conference,” a procedural move to settle disputes between the Commons and Senate, which was last used in 1947.

Invoking a conference means both houses summon representatives to negotiate, possibly behind closed doors, to either agree on a solution or kill the bill entirely.

In such a case, no similar bill can be put forward until the next Parliament, meaning the 2019 election.

Such a situation would clearly mean missing the court deadline, which would cause the Indian-status registry to cease in Quebec and possibly other provinces.

“It’s a convoluted and complicated process,” said Sinclair, admitting it’s still being reviewed by various senators’ staff.

Senate experts say any senator could put forward a motion for a free conference, but they can also propose a message be sent to the House asking for changes to the bill — both types of motions would require a vote to pass. It’s possible the bill could bounce between both chambers multiple times.

The office of Carolyn Bennett, minister for Crown-Indigenous affairs, wrote that Ottawa is “committed to ensuring adequate time for a meaningful parliamentary debate,” through consulting with First Nations communities, experts and parliamentarians.

“We are committed to removing gender-based discrimination from registration provisions in the Indian Act, as well as addressing other existing issues surrounding registration.”

dylan.robertson@freepress.mb.ca