Bill S-2 amendments to eliminate second-generation cutoff pass major hurdle

The Senate has passed a significant set of amendments to Bill S-2 at the report stage, moving Canada one step closer to ending the controversial second-generation cutoff under the Indian Act. The amendments, introduced by Senator Paul Prosper, expand the scope of the bill beyond its original intent. Both Prosper and Indigenous Service Minister Mandy Gull-Masty are expected to speak tomorrow at the AFN Special Chiefs Assembly, where the future of the bill—and the debate over consultation and Indigenous legal identity—will continue. Longtime rights advocate Sharon McIvor, who took the government to court over the issue and won an earlier case will also join the panel, as will lawyer Drew Lafond of MLT Aikins and ISC Assistant Deputy Minister Catherine Lappe. The AFN has already passed a number of resolutions calling on the government to end the second generation cut off, most recently last year. Originally S-2 was written to comply with a B.C. court ruling. In its original form it restored status to between 3000 to 6000 people who lost status through old enfranchisement rules. The amendments were crafted after weeks of hearings at the Senate Standing Committee on Indigenous People, where 57 witnesses testified. In addition to restoring status to descendants of those enfranchised under historic provisions—such as people who gave up status to vote or to keep their children out of residential schools—the amended bill would now eliminate the second-generation cutoff entirely. The cutoff means some people, with what is known as 6(2) status, cannot pass status to their children unless they partner with another status person. Under the proposed changes, that limitation would end. The amendments would also eliminate the “unknown paternity” rule, which denies children of status mothers their rights if the father is unnamed on birth records. Mi’kmaq Senator Brian Francis, who voted in favour of the amendments, said after years of waiting he did not want to lose an opportunity to finally address discrimination in the Act. “ I believe that Minister Mandy Gull-Masty is genuine. That has never been a question,” he said during debate. “However, a political promise is not legally binding. There is no guarantee that the federal government with the systems, structures, and processes will follow through even if we wanted to trust her. We cannot ignore that. Federal minority governments tend to have shorter lifespans.” Indigenous Services Minister Mandy Gull-Masty, who introduced Bill S-2 in the Senate, has warned the Senate’s amendments go too far. She says they require more time and deeper consultation with First Nations. Senator Pierre Moreau, who holds a unique role as a Conservative senator working within the Government Representative’s Office, defended that position. “While I hear senators saying our constitution says there shouldn’t be any discrimination – and I agree and we all agree and we agree the Indian Act is discriminatory – and I refer to a shameful colonial past in my statement. I think these are very strong words. But a senator’s oath to respect the constitution applies to all aspects of the constitution and especially Section 35, and a duty to consult.” Prosper pushed back. “ We can’t allow consultation to be weaponized this way,” he said. “Senator Moreau tells us to reject the report on the basis of our constitutional obligations around consultation, but what of our obligations to uphold the charter, what of our obligations under the United Nations Declaration of the Rights of Indigenous Peoples Act?” The original version of Bill S-2 was tabled to bring Canada into compliance with a ruling in Nicholas v. Canada, a B.C. Supreme Court case that found parts of the Indian Act unjustly excluded certain descendants of enfranchised individuals. That version would have restored status to a narrow group of 3,000 to 5,000 people. But the Senate’s amended version could restore status to many more. The bill must still pass third reading in the Senate, then move to the House of Commons, where it faces another three readings and a committee review. At each stage, the amendments could still be reversed. Continue Reading