Hon. Brian Francis: Honourable senators, I rise today not in my capacity as the leader of the Progressive Senate Group but as an independent senator.

On November 18, the Committee on Indigenous Peoples voted 10 to 1 in favour of amending Bill S-2, An Act to Amend the Indian Act to fully repeal the second-generation cut-off and replace it with a one-parent rule. This decision was not made in a vacuum. The witnesses who appeared before the committee repeatedly stated that without amendments, Bill S-2 would correct harm linked to enfranchisement but leave intact one of the most persistent and structural forms of that discrimination and, overwhelmingly, called for amendments.

For example, on October 22, Grand Chief Kyra Wilson of the Assembly of Manitoba Chiefs which represents 63 First Nations, explained:

I’m here to confront the issue that threatens the survival of our nations, Canada’s continued use of section 6(2) of the Indian Act as a policy of legislated genocide.

Grand Chief Wilson explicitly called for the immediate elimination of the two-tiered system embedded in section 6 of the Indian Act in favour of a one-parent requirement to address the harm inflicted on multiple generations, including children like her daughter who are not only being denied status and associated rights and benefits, but also their sense of identity and belonging.

Similarly, on November 4, Grand Chief Math’ieya Alatini of the Council of Yukon First Nations — who spoke on behalf of 14 First Nations — made the same appeal. She explained that:

The second-generation cut-off . . . continues to divide our families into haves and have not. These tools are mechanical . . . designed to gradually reduce the number of status Indians over time. In practice, they divide cousins, bar grandchildren from programs and services, and turn identity into paperwork.

Grand Chief Alatini added:

If Bill S-2 is truly about reconciliation and not merely litigation management, then we must address all the known discrimination now, not later. Later is not neutral. Every year you wait, more children are cut off.

Colleagues, the message that was repeatedly and consistently communicated in committee was to act now, not later.

In 2022, the Committee on Indigenous Peoples issued Make it stop! Ending the remaining discrimination in Indian registration which called for — among other things — the repeal of the second-generation cut-off by no later than June 2023.

Many witnesses who testified during the study of Bill S-2 pointed to the report in their testimony. Among them was Marilyn Slett, Chief Councillor of the Heiltsuk Tribal Council as well as Secretary-Treasurer of the Union of British Columbia Indian Chiefs, which represents more than 130 First Nations.

On October 1, she said:

This very committee recommended that Canada repeal all discriminatory provisions, including section 6(2), in the 2022 report Make It Stop. . . . We request that the Senate’s consistent support remain the same to remove all of the discriminatory provisions from the act.

Having served as chair of the Committee on Indigenous Peoples in 2022, I am proud that members voted in a principled and consistent way.

Had we turned our backs on the witnesses and many others who have called for urgent reforms for decades, I believe our committee would have been on the wrong side of both the evidence and our responsibilities. Instead, we have once again stood alongside First Nations — particularly women and children — in firm support of restoring equality in a manner that endures across generations. I am hopeful that the Senate will follow suit now.

Before I proceed, I want to note that I can only remember two other instances when the Senate rejected the adoption of a committee report on a bill with amendments. The decision to revert a bill to its previous form is rare enough that it cannot be taken lightly. The integrity, independence and credibility of the committee and its members must be safeguarded unless there is a clear and compelling reason.

Everyone who appears at a committee does so with the expectation that their input will not only be respected but serve to shape and strengthen our work. If we fail to do that, we risk damaging our collective reputation.

A chamber of sober second thought cannot function effectively unless it is both willing and able to make amendments to legislation when needed. That is how we counterbalance executive and majoritarian power to, among other things, protect vulnerable populations who have been historically excluded, ignored and harmed by Canada and, in specific, the Senate.

I am, frankly, concerned about the message the chamber would send to witnesses by rejecting the report. As a result, I will use this opportunity to shed light on exactly who this chamber would be turning its back on by rejecting this report. I simply cannot — and will not — do that.

Colleagues, last week, the Government Representative in the Senate, Senator Pierre Moreau, called on the Senate to reject the report. I want to use this opportunity to acknowledge the core arguments presented in justification and to provide rebuttals. In the process, I hope to make abundantly clear why I intend to vote to adopt the report and encourage all senators to do the same.

Let’s begin with one of the main arguments put forward last week to defend the rejection of the report. It was the claim that the amendments contradict, rather than strengthen, its purpose. Last Thursday, Senator Moreau reiterated several times that the principal intent behind Bill S-2 is to respond to a decision of the Supreme Court of British Columbia in Nicholas. He argued that the federal government does not oppose addressing broader inequities under the Indian Act, but it does not support doing so within this bill.

Additionally, Senator Moreau suggested that the committee amendments go beyond the original scope of the bill, but the federal government refrained from challenging their admissibility to avoid appearing coldly technocratic. Are these concerns well founded? I do not believe so.

In Nicholas, the Supreme Court of British Columbia agreed with Canada that section 6 of the Indian Act taken as a whole perpetuates discrimination by limiting both the right to be registered as an Indian and the right to transmit status to one’s descendants. The court affirmed that this legislative structure creates legal distinctions based on race or ethnic origin that unjustifiably infringe section 15 equality rights.

In its submission, Canada acknowledged that individuals without a family history of enfranchisement are generally registered under section 6(1), which gives them the full ability to transmit status to their children. In sharp contrast, descendants of enfranchised individuals are typically placed under section 6(2), which restricts their ability to pass status to the next generation.

This denial of equal benefits, both in registration and transmission, effectively treats the affected population as “less Indian,” leaving them with lesser status — or none — earlier and unfairly, solely because of enfranchisement.

To meet the minimum constitutional remedy required by the court, the federal government introduced Bill S-2, and previously Bill C-38, so that descendants of enfranchised people gain the same entitlement to Indian status and to transmit Indian status as everyone else with the same ancestry. As a result, enfranchised families are treated as “equal,” but only within a system that continues to legislate their eventual extinction, just like every Indian. Their descendants remain on a pathway to being entirely erased through the second-generation cut-off.

The amendments proposed by the committee address another expression of the same discrimination the court identified. In 1985, the Indian Act was amended with the stated goal of bringing its registration provisions into compliance with the equality rights guaranteed under section 15 of the Charter. The legal process of enfranchisement, which served as a central tool for the assimilation of First Nations Peoples since before Canada was created, came to an end then. However, discrimination continues in the form of the second-generation cut-off, which was introduced in 1985 to prevent children from inheriting status and associated rights and benefits to children after two generations of parenting with someone who is not entitled to registration.

Instead of immediate erasure, Canada now relies on delayed erasure to gradually reduce the number of status Indians over time. No other group in Canada faces the legislated disappearance of their people.

On October 29, Dr. Wilton Littlechild, a commissioner of the Truth and Reconciliation Commission, described it as “an act of forced assimilation” that fits within the definition of genocide.

Similarly, in a brief, Dr. Pam Palmater cited the legal analysis of genocide prepared by the National Inquiry into Missing and Murdered Indigenous Women and Girls, which concluded that the systemic denial of status and membership under the Indian Act is part of a broader pattern of colonial policies that meet the legal definition of genocide. She argued that eliminating the second-generation cut-off is essential because it is not merely an administrative rule; it continues past policies designed to end the legal existence of “Indians” over time — Indians to whom Canada owes specific obligations.

Our committee has strengthened and complemented the core remedial function of Bill S-2. In specific, we amended section 6 of the Indian Act because it continues to arbitrarily sort families across generations. In doing so, we have tried to ensure that Indian status does not continue to be transmitted differently based on whether someone was born before or after April 17, 1985.

At present, there are siblings with the same parents who can end up with different registration categories based solely on when they were born. The committee has also proposed to shift the requirement for entitlement and transmission from two parents to one parent to repeal the two-tier system of Indian status. This change puts an end to the era of legislated extinction.

At the same time, the committee has attempted to address the issue of unstated paternity. Dr. Mary Eberts, who is a constitutional lawyer, argued that the second-generation cut-off gives men a biological advantage. It is far easier for a man to name the mother than for a woman to safely name the father. There are many reasons why, including domestic violence and sexual assault. As a result, Dr. Eberts argued that the second-generation cut-off is not neutral. It continues the historic sex-based discrimination and race-based discrimination built into the Indian Act. As a result, it violates section 15 and cannot be justified.

Colleagues, the next area I want to focus on is consultation. Last week, it was suggested that the amendments adopted by the committee disregard the constitutional duty to consult and, where appropriate, accommodate Indigenous Peoples under section 35 of the Constitution. In fact, Senator Moreau repeatedly insisted that the federal government cannot exempt itself from its obligation to consult those affected by measures it wishes to implement that could adversely affect their rights. These arguments are difficult to reconcile with established facts.

Last week, Senator Moreau was asked by Senator Michèle Audette, who is the sponsor of Bill S-2, whether he was familiar with the 2018 case of Mikisew Cree First Nation v. Canada under which the Supreme Court of Canada agreed with Canada that there is no constitutional duty to consult Indigenous Peoples during the development, drafting or enactment of legislation. He responded that he was aware of the decision.

Minister Mandy Gull-Masty and Senator Moreau have repeatedly insisted that there is a legal and constitutional duty to consult before amending the Indian Act. However, it was the Liberal government, under Prime Minister Justin Trudeau, that fought vigorously to ensure that no such duty exists. That became painfully clear after Bill C-5 was fast-tracked last June to grant the federal government sweeping powers to bypass existing laws and regulations to fast-track projects in the “national interest.”

I cannot help but ask: Why was it acceptable then to enact legislation without engagement or consultation despite the significant concerns over its impact on the rights of Indigenous Peoples? It seems extremely selective, to say the least. This inconsistency makes consultation appear no more than a political tool.

Senator Moreau suggested that amendments to the Indian Act must be put on hold until the collaborative process meant to address the second-generation cut-off and voting thresholds are completed in December 2025. He also maintained that the central question behind the collaborative process is not whether to eliminate discrimination but how, and he maintained it should be First Nations who determine the answer through consensus. That high threshold is not placed on any other group in Canada.

There is no clear threshold, no clear parameters and no firm timeline for when discrimination through the second-generation cut-off will end. In fact, we’ve heard a few contradictory statements. There was an initial promise to table stand-alone legislation in the coming months that was promptly backtracked. We also heard that the consultations had begun. However, later we were told that was not true. As a result, we have no real guarantee that the second-generation cut-off and related inequities will be addressed any time soon.

One of the key themes heard by the committee is that after more than four decades, political promises are simply not enough. That is not an attack on Minister Mandy Gull-Masty. We are not focused on individuals. We are focused on the larger “machinery” of government.

Zoë Craig-Sparrow, the Vice-President of Justice for Girls, expanded on this point:

Even though this minister is an Indigenous woman — which is so wonderful and inspirational to see — she is still a representative of the government and has to act as a minister, not an individual. She is making a promise that we know and she knows she might not be able to keep. Justice Canada advises the minister, and she has to follow their directives.

Even so, in your Make it stop! report and the law, it does not say, “Wait until there is an Indigenous minister.” Even though she says the same thing as all the other ministers before her, they say, “This time, because she’s Indigenous, believe her, and just wait a little longer.” No, it says, “End it now.” The obligation of equality is an obligation of immediacy under international law. We’ve waited long enough.

I believe that Minister Mandy Gull-Masty is genuine. That has never been a question. However, a political promise is not legally binding. There is no guarantee that the federal government with its 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.

The first budget under Prime Minister Mark Carney passed with a vote of 170 to 168. We barely avoided another election, and this outcome still remains possible.

To me, it simply does not matter which party is in power. The approach has remained the same: Canada only makes narrow fixes when compelled by the courts. I doubt this long-standing pattern will break anytime soon. So, if there is a rare opportunity to act now to end broader discrimination, why would we waste it? Parliament is encouraged — and even expected — to go further.

Colleagues, I am not a lawyer. I will never pretend to be one. That said, I understand that Canada cannot reference ongoing consultation as a justification for continuing to violate the Constitution, including section 15 of the Charter.

The duty to guarantee equality rights is not discretionary. Yet, more than once, it has been implied that the duty to consult is somehow higher in the hierarchy. My understanding, however, is that the Charter is paramount.

According to Andrews v. Law Society of British Columbia, in 1989, all federal and provincial laws must comply with section 15 equality rights. The court stated then:

The right to equality before and under the law, and the rights to the equal protection and benefit of the law contained in s. 15, are granted with the direction contained in s. 15 itself that they be without discrimination. Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination reinforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law. It is against this evil that s. 15 provides a guarantee.

In other words, Canada cannot continue to say, “We know that discrimination exists; however, please continue to wait patiently while consultations continue for 2, 5, 10 years or even longer before we put a stop to it.”

The witnesses we heard from agreed. For example, on November 5, we heard from Chief Barbara Cote of the Shuswap Band. She appeared on behalf of the British Columbia Assembly of First Nations, or BCAFN. She stated:

The minister told the Senate that there cannot be a one-size-fits-all solution to the second-generation cut-off, but, senators, section 15 of the Charter is one size fits all. Section 15 affirms equality. Section 15 of the Charter says you cannot discriminate on the basis of sex or race, and that is one size fits all. Equality is for everyone.

The minister also said that the answers must come from communities. Well, the answer from communities in B.C. is clear: 204 of Canada’s 630 First Nations are saying, “Eliminate the second-generation cut-off now.” That is one third of all First Nations.

Chief Barbara Cote also added:

BCAFN is part of Indigenous Services Canada’s Collaborative Process, and we have been consulted over decades on this. Given the timeline set out for the process, it will be four or five years before new legislation removing the second-generation cut-off could be in effect. Even this depends on the Liberals staying in power.

Senators, we are suffering the impacts of the second-generation cut-off now. It must be immediately removed, as 27% of all First Nations individuals in B.C. are section 6(2)s. In Shuswap, 40% of my members are section 6(2)s. Our children and grandchildren are being excluded right now, not in some distant future.

On the question of whether further consultation is needed, Dr. Pam Palmater reminded us on October 7 that:

. . . there are some things that the federal government can’t consult on — whether or not to discriminate on the basis of race or sex, whether or not to maintain a legislative extinction formula and contribute to an act of genocide. So you can’t.

What you can consult on, however, is how do you support First Nations, how do you support the people who are newly registered, how do you ensure there’s enough housing and infrastructure.

Unsurprisingly, after four decades of waiting for Canada to take decisive action to address the second-generation cut-off, there is widespread and justified skepticism that Canada is again using consultation as a delay tactic, perpetuating discrimination and inequality under the guise of engagement.

The Supreme Court has repeatedly rejected the notion that equality cannot be incremental. According to Vriend v. Alberta, in 1998:

If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.

Let me be clear: I do not oppose meaningful consultation. As a former Chief, I have experienced its strengths and weaknesses first-hand.

What I oppose is the use of consultation as a tactic to prolong inequality. Canada has to address the severe ongoing and irreparable harms it has inflicted through the Indian Act. Yet, all progress made to date has been hard fought over the past four decades.

So, as you deliberate on whether or not to adopt the report, I urge you to remember that the decision not to address broader discrimination is not neutral. Every delay deepens, prolongs and multiplies the harm.

Colleagues, I will now turn to my last point. It has been suggested that accepting the amendments would result in delaying remedies to the more than 3,500 individuals affected by the discrimination identified in Nicholas.

Senator Moreau argued that the House of Commons would likely reject the amendments. It was implied that the adoption of the report would now allow Parliament to meet the deadline of April 30, 2026, to amend the Indian Act to bring it into compliance with the Charter.

However, in Nicholas, Justice Fitzpatrick acknowledged the court is fixing the narrowest possible constitutional problem “. . . without limiting Parliament’s ability to craft any further legislative changes that it may consider appropriate.” She also added that she would remain “seized,” meaning she would retain jurisdiction to extend the suspension if needed.

It would not be the first time an extension has been required. For example, it happened in Descheneaux when the Indian Act was last amended. As a result, nothing prevents Canada from seeking an extension to, among other things, address the second-generation cut-off and other inequities. That said, I do not believe that an extension is absolutely needed.

The predecessor of Bill S-2, Bill C-38, showed us what happens when there is a lack of genuine desire and commitment. However, the federal government is entirely capable of expediting the process when it deems it necessary. That is exactly what happened a few weeks ago with Bill C-3, An Act to amend the Citizenship Act (2025). It all boils down to a matter of political will.

Justice Masse in Descheneaux called on Parliament to fix all discriminatory situations that may arise from the issue identified, not just the one in front of the court, to ensure constitutional compliance. She added:

When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

Like Justice Masse, Justice Fitzpatrick in Nicholas also acknowledged the court is fixing the narrowest possible constitutional problem, but “. . . without limiting Parliament’s ability to craft any further legislative changes that it may consider appropriate.”

These rulings serve to strengthen the argument that broader corrective amendments to Bill S-2 are legitimate.

The Committee on Indigenous Peoples has acknowledged that the minimum remedy required by the court was the floor, not the ceiling. As a result, we have tried to refine what the bill is trying to do. The role of the Senate is not simply to pass legislation; it is also to provide sober second thought. In practical terms, this means that we have an obligation to ensure legislation actually solves the legal problem it claims to address. In the context of repeated violations of section 15 of the Charter, it is especially important that we fulfill our mandate to ensure that Parliament does not pass incomplete laws that leave structural forms of discrimination intact and trigger further litigation.

Colleagues, the question before us today is whether we are willing to continue to deny long-overdue equality to First Nations Peoples, particularly women and children. I have yet to hear a convincing argument about why we should not act now to end discrimination. The adoption of the report would send a loud and clear message that the era of legislated extinction must end now. I urge you to vote in favour.

There are many eyes on the Senate. First Nations Peoples, who have waited decades for equality and justice, are watching. Many are here today. I sincerely hope we do not let them down. Wela’lin, thank you.