National Post


Minister of Justice Jody Wilson-Raybould

A freeze on new Indian status registrations could begin late next week after a Quebec judge ruled against granting parliament more time to get its act together.

The government is expected to appeal the ruling Monday. If that proves unsuccessful, registration rules will be voided by court order July 4 and the system by which indigenous people register for official status under Canadian law will likely grind to a halt across the country. Officials had previously estimated this could affect up to 35,000 people per year.

Liberals find themselves in this bind after reaching a stalemate with the Senate on Bill S-3, ostensibly the first step in addressing a 2015 Quebec Superior Court ruling that found major sex-based inequities in the Indian Act.

“The government of Canada, the department of Indian affairs, played double or nothing and got nothing,” said David Schulze, the lawyer for plaintiffs in the original court case. “They entirely created this situation by ignoring the Senate. Before they ever ignored the Senate, they absolutely ignored the people behind this case.”

The court had given Canada about two years, including an extension earlier this year, to make legislative fixes addressing issues highlighted in the case.

Senators voted unanimously to pass an amended version of the bill intended to expand status to any indigenous person who may have faced status revocation, or a prevention from obtaining status, because of unequal treatment towards women.

But despite Liberal MPs having brought forward the exact same amendment when Conservatives were pursuing an Indian Act update in 2010 — and Attorney General Jody Wilson-Raybould advocating all measures to eliminate discrimination when she was a B.C. regional chief at that time — the government said it couldn’t commit to such a broad measure without further consultation.

Indigenous Affairs Minister Carolyn Bennett said a “phase two” government response could include addressing additional discrimination issues.

Senators and advocates, including the lawyer for plaintiffs in the original Descheneaux court case, argued the government should address any and all discrimination now rather than delaying a decision as previous governments had done for decades.

Still, Liberals removed the amendment from the bill and volleyed it back to the Senate on National Aboriginal Day. The House then rose for the summer before getting a response from senators.

The next day, it became clear the Senate wouldn’t be ceding to the House when government representative Sen. Peter Harder “stayed” debate on Bill S-3, punting it to after the summer. Marilou McPhedran, the independent senator who moved the Senate amendment, told the Post she thought Harder made this decision because the government wouldn’t have won a vote: senators were ready for a fight.

Both houses apparently expected a request to move the deadline forward would be granted, if worse came to worse and the bill didn’t pass into law. But on Tuesday, Justice Chantal Masse denied the government’s last-minute request for an extension. (Plaintiffs in the case had previously requested one because they agree with the Senate’s position.)

“The government, for reasons of its own, decided to live very dangerously and now they’ve created this gigantic mess,” Schulze said.

The head registrar at Indigenous and Northern Affairs Canada had previously flip-flopped on whether registration will stop only in Quebec or all the way across the country, if an appeal court judge decides to uphold Masse’s decision Monday, but Schulze said there are “serious legal arguments to be made that the registrar should obey the judgment everywhere.”

He listed possible reasons for urgent status applications, which would be stymied until parliament reaches an agreement, this September at the earliest. Among them: toddlers may require non-insured health benefits available with a status card; someone may want to ensure their right to land on a reserve; or someone with a job offer in the United States may want to benefit from different treatment, under American law, for people with status cards.

We are currently examining a number of options to minimize the impact on individuals who may soon be denied their status and benefits because of this

“We are currently examining a number of options to minimize the impact on individuals who may soon be denied their status and benefits because of this,” said Sabrina Williams, Bennett’s press secretary.

“While we are disappointed the Senate did not pass the bill before the court imposed deadline, the government remains committed to passing legislation expeditiously to both comply with the court and so the government can move on the important work of further reforms to the outdated Indian Act.”

Williams confirmed the government filed for leave to appeal Thursday, “so that individuals who have already applied for status aren’t affected by the Senate’s failure to pass S-3.” She could not confirm how many people are expected to be immediately affected or whether registration will indeed halt across Canada.

From Schulze’s point of view, the Senate, with its mandate to protect minorities, is trying to prevent some forms of discrimination against indigenous women from being preserved because of the way Bill S-3 is currently written. “And they’re saying, whoa, that is one step further than we’re willing to go. And I think the government will have to address that reality. … And the court has become extremely impatient.”