Senator prepared to fight for indigenous women’s rights

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This article was published 18/06/2017 (2503 days ago), so information in it may no longer be current.

OTTAWA — Three Manitoba parliamentarians are leading a showdown with the Liberal government over how many Canadians with indigenous roots are entitled to official Indian status.

“We’re headed toward an impasse,” said Sen. Marilou McPhedran, whom the Liberals appointed in October. “It’s really a shock.”

Bill S-3 aims to remove gender-based discrimination from the lineage provisions of the Indian Act, which prevent women who marry non-indigenous men from giving their descendants Indian status.

The federal Liberals tabled the bill in November after a Quebec court case in August 2015 found the policy violated charter rights.

Known as the Descheneaux case, a judge gave Ottawa until Feb. 3 to rectify the situation, before extending the deadline to July 3. That’s when some 35,000 people would be able to sue the government if they’re not given a way to apply for Indian status.

In response, the Liberals wrote Bill S-3 to deal with those who lost their lineage from 1951 onwards. The bill also mentions a consultation process to look at older cases, but only commits to solving discrimination from the post-war era.

For decades, advocates have asked Ottawa to reverse lineage discrimination based on sex dating to the Indian Act’s 1876 passing. The government has gradually loosened those grounds after four decades of court cases and United Nations proceedings.

McPhedran moved an amendment last month to extend Bill S-3 to cases dating to 1876, which the Senate approved in its final vote.

Indigenous Affairs Minister Carolyn Bennett said that would be a mistake and urged MPs to reject the amendment.

“35,000 people have been waiting two years since the court decision to exercise their rights. We need to pass this legislation immediately,” her office wrote in a statement. Bureaucrats have already been preparing 54 staff to deal with the new applications as the July 3 deadline looms.

Bennett warned McPhedran’s amendment would overwhelm First Nations with an influx of requests, and leave status rules unclear. Her department pointed to a Winnipeg demographer’s 2005 study, which suggested such a move would mean up to two million people could suddenly be eligible for Indian status.

The demographer, Stewart Clatworthy, told the Free Press he agrees that’s technically possible but says it’s an extreme scenario where the legislation passed without including any clarifying interpretations.

For example, a clause left too vague “would eliminate the Métis population” who have built their own history as indigenous people with mixed roots and fold them into First Nations groups. Clatworthy said he expects parliamentarians will tighten up the bill and suggested it might merit more time in Parliament.

“People are running around trying to determine what this might mean and to put some precision to it, so the legislation doesn’t create more uncertainty,” he said.

Another Manitoba senator, Murray Sinclair, has stepped up for McPhedran’s amendment, after initially voting against it for the same reasons. He now says the original bill doesn’t go far enough.

In a letter obtained by the Free Press, Sinclair is urging the government to seek an extension. “This will remove the urgency to pass what is another piecemeal bill.”

Winnipeg Centre MP Robert-Falcon Ouellette, who has Cree ancestry, is pushing his Liberal colleagues to pass the bill. He told the Commons in a speech the bill was an emotional topic at a recent sun dance at Spruce Woods Provincial Park near Glenboro.

“The women at this sun dance asked me again and again about Bill S-3. They asked me, ‘What are you doing about Bill S-3 and why is the government willing to take away our rights?’”

Ouellette said it was “absolutely shameful” his party would “deny the birthright of my cousins, of my brothers and sisters in the sun dance.”

“This is a debate that has been going on for many generations in this country and it is a painful thing for me to stand here,” he said. “I was hoping that it would not come to this moment, but I must have the courage.”

Last week, the Liberal-dominated House committee removed McPhedran’s amendment, curtailing the bill’s scope to cases dating from 1951 onwards and sending it to the House for a final vote, scheduled for Tuesday. It’s expected to pass, which would send it back to the Senate for its final vote.

Traditionally, senators approve the elected government’s decisions, but McPhedran says some are prepared for a fight. She claims an unnamed colleague told her “this is a hill to die on. This is a matter so grave… the Senate needs to stand up for indigenous women in this country if the government won’t.”

The Senate might be given more time. The government says it won’t ask the court for an extension, but the plaintiff in the Descheneaux case has taken the exceptional move of doing so instead.

A lawyer familiar with the case says the judge seems likely to oblige. The judge’s decision is expected Tuesday.

dylan.robertson@freepress.mb.ca