Hon. Michèle Audette: Honourable senators, I would never have thought that one day we would be in this chamber when our moms — Dawn, ma belle — stood up against the government, against the Indian Act, but also against many men who were Chiefs at that time. It is very important to talk about this chapter.

We still taste that bitterness, but the beauty, the healing and the power that I saw today — this room was and is still filled with Chiefs demanding that we go further than what Bill S-2 is proposing on the second-generation cut-off. The Chiefs are asking.

For me, I try to stay in a place where I can keep the emotions for later, but the wolverine in me — we say carcajou — wants to make sure that I honour what your mother did, very alone, walking into the Supreme Court of Canada and opening other doors for other women, such as former Senator Lovelace Nicholas, our sister from this chamber, and so on. Who paid for that? I guess they did. It was hard.

It is very important for me also to acknowledge that, finally, we have men, we have women, former Chiefs, elected Chiefs and friends who are saying, “Push this bill as much as you can because the momentum is here today and now.”

We are from that lived experience, so let’s not forget that. We try, like the Famous Five women, to enter Parliament. It is the same for us, for women affected by the Indian Act, still today. I try to smile. I try to walk here with dignity and say, yes, it is here in my blood, but, for me, I stand strong today because I believe this report with the amendment presented by the Standing Senate Committee on Indigenous Peoples should be adopted and then move to third reading.

This is what I believe. I would never think that we have to argue for that part here in Canada, ever. That wasn’t in my speech, but I needed to share that.

It is very important that, when the bill arrived, the delay was short. The B.C. court didn’t have the same time that we have today. It was very transparent, very honest. If amendments are there to improve, and if there is a willingness, I’m willing. You can quote me. It’s in my second reading speech. But now we have more time. We, the two chambers, have until April.

The committee and I, as the sponsor of the bill, made sure that we respected that time frame, that delay. We made sure that we had diversity with regard to those who would come and say that they agree or disagree, or say yes to this amendment and no to that amendment, or that they don’t like Bill S-2 at all. We had one voice, and it is important for me to mention that voice.

However, it is also important for me to remind all my colleagues about what they said regarding the duty to consult. I will say it in French because minutes count.

Consultation is a constitutional duty. I am going to quote an excerpt from section II of Part A of the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, a document released by the federal government in March 2011:

The common law duty to consult is based on judicial interpretation of the obligations of the Crown . . . in relation to potential or established Aboriginal or Treaty rights of the Aboriginal peoples of Canada, recognized and affirmed in section 35 of the Constitution Act, 1982.

This paragraph is one of the provisional guidelines presented in the spirit of renewal in 2022-23 in a report.

It is important to state the facts: they have not yet been officially adopted. The part involving women in this consultation process is to ensure that there is a gender-based analysis when talking about modern treaties and self-government. This has already been the subject of debate.

For decades, the courts have reminded us of an essential distinction. Section 35(1) provides as follows: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

I would like to share something that is not cited as often. Section 35, subsection 4 this time, states that rights are guaranteed equally to both sexes:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

That point matters to me because, according to our nations’ social norms, women have a place. Colonialism disrupted that way of doing things, but we know women have a place. This is also an opportunity to remind our brothers and sisters that it is time to reclaim our place in today’s world.

I participated in the UN debates on every article of the United Nations Declaration on the Rights of Indigenous Peoples. The room was full of people speaking Spanish because they wanted a language all countries could share. As part of a concurrent UN event, there was a debate on the UNDRIP articles. That’s when I said to my neighbour:

“Please, could you translate for me into Spanish?” That was because we were debating about which article we should adopt, the language and the brackets or removal of brackets. She said, “Okay.” So I said to this big crowd of indigenous people from around the world:

Do you know that what you are doing is very important? But I want to read and I want to see and I want to make sure that women are also included in that declaration, that everything that it says in those articles is applicable to men and women.

They applauded. I thought it was consent. Then I felt a tap on my shoulder. “Come outside.” It was said in English. At that time, my English was rustier; it wasn’t good. I had to argue with a Chief because the impression was that if we come and say “women,” it is going to dilute the declaration — those days, many moons ago.

But today those words are also in that declaration, so I’m confident that if we do a real and sincere process with the First Nations, the nations here in Canada, we will keep in mind and in our spirit many protocols from our nations, from the Constitution and from the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

These are extremely powerful and necessary tools, so why is this becoming problematic during the debates we’ve been having for some time now? I want to approach this issue honestly. When people talk about discriminatory provisions, they seem to be trying to extend the duty to consult to areas where it was never intended to apply.

I know Senator Moreau said that’s not what we’re debating, but it’s more of a nation-to-nation debate. The reason I think this approach is dangerous is that those who argue that the government has a duty to consult are creating a tool of obstruction.

Let me be clear.

I’ve heard that a lot.

I want to say, “Me too.” There is nothing I try. I’m not a lawyer. I’m a super nôhkom, a super mom and — I hope — a super senator, but I have read many Supreme Court of Canada decisions in English and in French. None of them said, “You need to consult on discrimination. You need to consult on equality, according to the Charter.”

I’ll say that in French to make sure I’m not misquoting.

Nothing I have read in the Supreme Court’s case law requires that a section 35 consultation be used to prevent or delay the equality remedies guaranteed by the Charter.

When constitutionally established injustices recognized by the higher courts are corrected, it is important that Parliament perform its duty. We are Parliament and we must perform our duty.

You’ve heard my colleagues list some sections of the Charter. Some senators talked to you about various court decisions. I’d simply like to point out that, for every decision given concerning the Indian Act and status, emancipation or discrimination between men and women under sections 6(1) and 6(2), whether subtle or overt, we, the Parliament, have said, “We can do more.” The point we are trying to make is that we have that responsibility.

We’re also trying to explain that when we have to appear before the Supreme Court of Canada or the court of appeal, a lower court or the United Nations, financial costs are involved that we as women or men can’t afford. I find it unfortunate that we need to debate this at a time when we have the power to take action so that our mothers and our sons can finally say that they’re recognized.

There are two parallel paths at this time, and I would like to conclude my remarks with something that, for me, makes no sense. Some of you might tell me that legally, it is feasible, but emotionally or politically, why should we do this as parliamentarians?

In my view, it may appear simple to propose something that is consistent and in keeping with the teachings of the judiciary, either because it is a constitutional obligation or because, since the McIvor and Descheneaux decisions, the courts have given us opportunities and encouraged us to do more. This is not a political choice; it is a matter of fundamental equality.

For me, being in this chamber and imposing a full consultation on every reform amounts to giving us a small implicit veto, which the Supreme Court refused to do in Haida Nation v. British Columbia.

The two things should not be confused; rather, the other process should be encouraged. For me, nation-to-nation relations are not to be based on the Indian Act, the law that used to be called “An Act for the gradual enfranchisement of Indians.” For me, it is a policy of assimilation. It is not about self-government, it is not a treaty right, nor is it an Aboriginal right. It is a policy designed to ensure that I stop existing, period. Through Bill C-31, part of the battle was won, but it added a new form of control to determine who was Indian and who was not.

We are Innu, we are Anishinaabe, we are Mohawk. We are not section 6(1) or 6(2) Indians, but that is what the law says, and it has a major impact. Imagine that feeling or reaction in this chamber.

When Bill C-3 was debated in this chamber and in committee, something that the court said was there is discrimination. We need to change the Citizenship Act. What it says in my view or in my world is that we always — and we always did — welcome. “Quebec” is an Innu word. “Quebec” means, “Come, get off your boat.” So we were awesome Innu People, I can tell you.

But in this chamber, when I saw Bill C-3, which was Bill C-71 —

The Hon. the Speaker: Senator Audette, your time is up. Are you asking for more time?

Senator Audette: I am asking for two minutes

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Audette: Thank you.

The parallel for me was we will welcome the second generation — how do we say in English — people who were born outside of Canada to be able to apply and become a Canadian citizen — one-parent rule.

When me, if I have one child or two — I have five — I have to prove who the father is — two-parent rule. Why, here in Canada, do we say yes to people who were born outside, and we are giving them that right? And Minister Gull-Masty, her government, her nation, the James Bay and Northern Quebec Agreement, since day one of that modern treaty, only one-parent rule.

I know it works for Cree people and Naskapi under this modern treaty and also for people who come from outside, because they have a grandparent and can apply to be a Canadian citizen, but not us.

Please think about that. Thank you.