UPDATE – DESCHENEAUX CASE

On August 3, 2015, Madam Justice Chantal Massse of the Québec Superior Court ruled in the Descheneaux case that most of the registration rules in the Indian Act to be invalid because they discriminate on the basis of sex when granting “Indian status” and therefore violate the Canadian Charter of Rights and Freedoms.

However, Justice Masse suspended the effect of her declaration of invalidity for 18 months in order to giver Parliament time to amend the Indian Act and make it compliant with the Charter.

Justice Masse’s decision did not give anyone a new right to status: instead, she ruled it was up to Parliament and not the Court to change the Indian Act. If Parliament did not act before the deadline, registration under the Indian Act would simply cease for almost everyone.

The government finally introduced its proposed amendments in the Senate in late October 2016, entitled Bill S-3, but the Senate Committee on Aboriginal Peoples asked the Minister of Indian and Northern Affairs to conduct better consultation and eliminate all sex discrimination from the registration rules.In January 2017, the government obtained an extension of its deadline to July 3rd from Justice Masse, but only presented its revised amendments to the Senate in May 2017.

The Senate decided Bill S-3 does not go far enough and on June 1st adopted amendments – referred to as “6(1)(a) all the way” – that would give the same status to all descendants of a woman who lost her status if they were born before the new rules came into effect in 1985. However, the Minister said she would oppose this change when Bill S-3 came before the House of Commons.

After the Minister’s lawyers told Justice Masse that they would not use the June 19th hearing date set aside for a motion to extend the suspension, the lawyers for Stéphane Descheneaux, Susan and Tammy Yantha and the Abenaki brought their own motion. On June 20th, Justice Masse refused to grant the extension, ruling that the court could not become involved in dispute between the House of Commons and the Senate.

On June 21st, the House of Commons adopted Bill S-3 without the “6(1)(a) all the way” amendments and sent it back to the Senate, but on June 22nd, the Government Representative in the Senate adjourned debate on Bill S-3 and both the House of Commons and the Senate adjourned for the summer.

In the last week of June the government presented its own motion and asked Justice Masse to extend the suspension of her declaration of invalidity till December 26, but Justice Masse ruled on June 27th that nothing had changed since her previous decision and denied Canada’s motion.

The government filed an appeal on the issue of extending the suspension, which will be heard in Montreal on August 9th. Until then, a safeguard order issued by Justice Nicholas Kasirer of the Québec Court of Appeal – with the consent the lawyers for Descheneaux, the Yanthas and the Abenaki – allows the Registrar to continue to apply the existing registration rules in the Indian Act.

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