A stalled effort to reform the Indian Act has jeopardized the entire process of registering status Indians in Quebec, according to legal documents obtained by the Montreal Gazette.
The federal government has until Feb. 3 to abide by a Quebec Superior Court ruling ordering it to amend discriminatory clauses in the Indian Act. If the government can’t meet the deadline, the ruling will invalidate entire sections of the law, making it practically impossible to register status Indians in the province.
Were these provisions to be invalidated, up to 90 per cent of Indian status applicants in Quebec — a group mostly comprised of the newborn children of aboriginal couples — could be caught in a “legal void” beginning next month.
This is what Quebec’s Indian registrar, Nathalie Nepton, admitted in a sworn statement obtained by the Montreal Gazette.
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Nepton’s testimony will be presented to a Superior Court Judge Friday when federal lawyers ask the Feb. 3 deadline to be pushed back by six months. Sources close to the case say they’ll likely be granted the extension, but said the government skirted disaster by waiting until the 11th hour to take action.
The Trudeau Liberals tabled Bill S-3 last October in response to a 2015 Superior Court ruling that found the Indian Act still unfairly punishes the descendants of interracial couples. Their efforts to fix the law fell apart on Dec. 13 when the Senate Committee on Aboriginal Peoples refused to pass what it called “deeply flawed” legislation.
Indigenous Affairs Minister Carolyn Bennett said last month that the government rushed Bill S-3 and admitted its consultation process went poorly. In its filings to the Superior Court, the federal government claims it met with national and regional aboriginal leaders three times — in June, July and August —before tabling the bill in Parliament on Oct. 25.
This version of events has been disputed by sources close to the case.
“The government really botched this one,” said Stéphane Descheneaux, the Abénaki man whose fight for his daughters’ status led to the Superior Court ruling against the Indian Act. “They drafted a law without ever consulting with us. You try to figure that one out. It was a ruling in our court case that led the government to (amend the Indian Act) but they never thought to consult with us before drafting (Bill S-3).”
Descheneaux, 48, testified before a House of Commons committee on Bill S-3 once last fall but, at that point, the law had already been written. David Schulze — the lawyer who represents Descheneaux and the Abénaki nation of Odanak — says his clients had identified a number of flaws in the draft law that would allow discrimination on grounds other than gender to persist.
But when Schulze and his clients offered to meet with the government last year, he says their offers were met with indifference.
Ultimately, those same concerns were raised by the Senate Committee on Aboriginal Peoples when they instructed the Liberal government to re-write Bill S-3.
“We never received anything from anyone about a meeting; not a call, not a letter, not an email,” Schulze told the Montreal Gazette. “We had to push for meetings and even that didn’t yield much … It’s possible the government consulted with regional groups but I can only recall one meeting, on Sept. 8 at a Quebec chiefs assembly. There was a conference call, but only after the bill was tabled.”
Odanak chief Rick O’Bomsawin advised the government to seek an extension on the Feb. 3 deadline, but the Liberals insisted they could push the bill into law on time.
Descheneaux’s case stretches back to 1951 — when his grandmother was forced to leave the Odanak reserve for marrying a non-aboriginal man. At the time, a clause in the Indian Act stripped status from aboriginal women in interracial marriages. That same clause awarded Indian status to non-aboriginal women who married aboriginal men.
The law had a ripple effect through the generations: creating situations where siblings and cousins with the same amount of indigenous heritage could have different statuses depending on the gender of their indigenous parent.
When the Canadian Charter of Rights and Freedoms came into effect, in 1985, it rectified the gender discrimination that tore Descheneaux’s grandmother from her community. The charter re-granted status to thousands of women across Canada. Subsequent court rulings passed that status down to their descendants.
But in August 2015, Superior Court Judge Chantal Masse said the Indian Act still routinely discriminates against the descendants of indigenous women. Masse gave the federal government 18 months to come up with comprehensive reform to the law.
Descheneaux says he doesn’t mind waiting another six months to see new legislation.
“Look, if we’re going to get those done, let’s get it done right,” says Descheneaux, who wants to move to the Odanak reserve with his wife and three daughters. “I waited for most of my life to find out who I am. I don’t want my daughters to have that experience, to live in that uncertainty. This isn’t about not paying taxes or any sort of benefits. It’s about reaching back into the past and righting a historic wrong. It’s about knowing who we are.”
Representatives from the Minister of Indigenous Affairs and Northern Development did not return the Montreal Gazette’s messages as of this writing.
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