Indian Status - Changing the Indian Act

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Government of Canada Introduces Proposed Legislation to Bolster Gender Equity In the Registration Provisions of the Indian Act

Ottawa, Ontario (March 11, 2010)

The Honourable Chuck Strahl, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians today introduced in the House of Commons Bill C-3, Gender Equity in Indian Registration Act.

"This legislation provides an excellent opportunity to address longstanding gender discrimination related to Indian registration," said Minister Strahl. “I urge my parliamentary colleagues to work with us to move the bill forward quickly to end this inequality.”

Spurred by a civil lawsuit filed by Sharon McIvor and her son Jacob Grismer, the Court of Appeal for British Columbia ruled on April 6, 2009 that the Indian Act discriminates between men and women with respect to registration as an Indian, and therefore violates the equality provision of the Canadian Charter of Rights and Freedoms. The Court gave the Government until April 6, 2010 to amend those provisions.

If enacted by Parliament, Bill C-3 will ensure that eligible grand-children of women who lost status as a result of marrying non-Indian men will become entitled to registration (Indian status) in accordance with the Indian Act. No one will lose their Indian status as a result of these amendments.

"I am aware that there are a number of broader issues related to the question of registration and membership, and important treaty realities and cultural perspectives that must be taken into account," said the Minister. "However, these issues are complex, and broader reform on these matters cannot be done overnight or in isolation."

The Minister announced that these broader issues would be explored through a joint process to be developed in conjunction with various national Aboriginal organizations and the participation of First Nations groups and individuals across the country.
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BACKGROUND:

Q1. Who will benefit from the new legislation?

All eligible grandchildren of women who lost status as a result of marrying non-Indian men will become entitled to registration (Indian status) in accordance with the Indian Act.

Q2. What are those eligibility requirements?

You should consult the web site of Indian and Northern Affairs Canada for the specific eligibility criteria. http://www.ainc-inac.gc.ca/br/is/elig-eng.asp
Generally speaking, the key criteria to be newly entitled to registration are:

* Did your grandmother lose her Indian status as a result of marrying a non-Indian?

* Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?

* Were you born on or after September 4, 1951?

Q3. Why is the Government of Canada making these amendments?

The Government of Canada is making these amendments in response to an April 2009 decision by the Court of Appeal for British Columbia in the case of McIvor v. Canada.

Q4. When will these amendments come into effect?

Once the bill has been passed by Parliament, the Governor in Council will set a date for it to come into effect. If that date is after the current deadline set by the Court of Appeal for British Columbia of April 6, 2010, then the legislation will be retroactive to that date.

Q5. Will anyone lose their Indian status as a result of this legislation?

No. This legislation will increase the number of people who are eligible for Indian registration, not decrease it. Many people will gain entitlement to registration as a result of this legislation, and no one will lose Indian status.

Q6. Will these amendments address the broader issues of Indian registration and membership?

No. Over the next few months we will be setting up an exploratory process on the broader issues associated with registration, membership and citizenship. These broader issues will be explored through a joint process to be developed in conjunction with various national Aboriginal organizations and the participation of First Nations groups and individuals across the country.
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Gender Equity in Indian Registration Act

On March 11, 2010, the Government of Canada introduced proposed legislation to enhance Gender Equity in the Registration Provisions of the Indian Act.

Spurred by a civil lawsuit filed by Sharon McIvor and her son Jacob Grismer, the Court of Appeal for British Columbia ruled on April 6, 2009, that the Indian Act discriminates between men and women with respect to registration as an Indian, and therefore violates the equality provision of the Canadian Charter of Rights and Freedoms. The Court gave the Government until April 6, 2010, to amend those provisions.

If enacted by Parliament, Bill C-3 will ensure that eligible grandchildren of women who lost status as a result of marrying non-Indian men will become entitled to registration (Indian status) in accordance with the Indian Act. No one will lose their Indian status as a result of these amendments.
History of the McIvor Decision

The Indian Act defines eligibility for Indian Status (i.e. Registered Indians). The Indian Register is the official record identifying all Status Indians in Canada.

Over the years, there have been many changes to the rules for deciding who is eligible for registration. Important changes were made to the Indian Act in 1985, when Parliament passed Bill C-31. These changes were intended to remove parts of earlier legislation that discriminated against women. The changes also gave First Nations the opportunity to control their own membership.

In April 2009, the Court of Appeal for British Columbia ruled in the case of McIvor v. Canada that certain registration provisions of the Indian Act are unconstitutional as they violate the equality provision of the Charter of Rights and Freedoms. The Court suspended its declaration of invalidity for 12 months - to April 6, 2010 - to give Parliament time to amend the Indian Act.

In order to comply with the Court of Appeal's decision and to avoid a legislative void in British Columbia, the Government of Canada is moving forward with a legislative process to amend the registration provisions of the Indian Act.

Following the launch of a discussion paper (http://www.ainc-inac.gc.ca/br/is/mci-eng.asp ) setting out the federal government's proposed legislative amendments to certain registration provisions of the Indian Act, INAC officials traveled throughout Canada to hold engagement sessions (http://www.ainc-inac.gc.ca/br/is/egs-eng.asp ) with national Aboriginal organizations, Aboriginal women's groups, and regional organizations. The purpose of these engagement sessions was to seek input from Aboriginal participants on Canada's preferred approach to moving forward with legislative amendments. A Report on the engagement process is available. (http://www.ainc-inac.gc.ca/br/is/smm-eng.asp )

With the conclusion of the engagement process, INAC officials are carefully reviewing all comments received during each session, as well as all written submissions. This input will allow the federal government to consider any issues brought-up during the process and finalize its legislation. A summary of the engagement process is available. (http://www.ainc-inac.gc.ca/br/is/smm-eng.asp )

What Information is Available?

* News Release - Government of Canada Introduces Proposed Legislation to Bolster Gender Equity In the Registration Provisions of the Indian Act
http://www.ainc-inac.gc.ca/ai/mr/nr/j-a2010/23324-eng.asp

* New Entitlement to the Indian Registration: How Do the New Legislative Changes to the Indian Act Affect Me?
http://www.ainc-inac.gc.ca/br/is/neir-eng.asp


* Frequently Asked Questions
http://www.ainc-inac.gc.ca/br/is/faq-eng.asp

* Quick Facts
http://www.ainc-inac.gc.ca/br/is/qf-eng.asp

Explanatory Papers

* Proposed Amendments to the Indian Act Affecting Indian Registration
http://www.ainc-inac.gc.ca/br/is/ep-eng.asp

* Estimates of Demographic Implications from McIvor v. Canada
http://www.ainc-inac.gc.ca/br/is/eod-eng.asp

* Discussion Paper on Needed Changes to the Indian Act Affecting Indian Registration and Band Membership McIvor v. Canada
http://www.ainc-inac.gc.ca/br/is/mci-eng.asp

Court Decisions:

* Supreme Court of Canada's decision on application for leave to appeal, November 5, 2009
http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=33201

* Court of Appeal for British Columbia's decision
http://www.courts.gov.bc.ca/jdb-txt/CA/09/01/2009BCCA0153err2.htm

* Supreme Court of British Columbia's decision
http://www.courts.gov.bc.ca/jdb-txt/sc/07/08/2007bcsc0827.htm

Engagement Process

* Report on the Engagement Process - August to November 2009
http://www.ainc-inac.gc.ca/br/is/smm-eng.asp

* Frequently Asked Questions - Engagement Process - Amendments to the registration provisions of the Indian Act As per the Court of Appeal for British Columbia's decision in the Sharon McIvor litigation
http://www.ainc-inac.gc.ca/br/is/faq-eng.asp

* August 24, 2009 Engagement Announcement
http://www.ainc-inac.gc.ca/ai/mr/nr/m-a2009/nr000000432-eng.asp

You May Also Be Interested In:

* The Indian Register http://www.ainc-inac.gc.ca/br/is/tir-eng.asp
* Are you Eligible? http://www.ainc-inac.gc.ca/br/is/elig-eng.asp
* How do you apply? http://www.ainc-inac.gc.ca/br/is/elig-eng.asp#ELI

For more information, please contact:

Special Legislative Initiative
Resolution and Individual Affairs
Indian and Northern Affairs Canada
18th Floor
10 Wellington Street
Gatineau, QC
K1A 0H4
Fax: 1-866-817-3977

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News Release

FOR IMMEDIATE RELEASE

March 11, 2010

BC Assembly of First Nations Regional Chief Jody Wilson-Raybould
welcomes introduction of Bill C-3 and calls on the Government of Canada
to address First Nations' jurisdiction over citizenship

West Vancouver B.C. - BC Regional Chief Jody Wilson-Raybould welcomes
the introduction of Bill C-3, Gender Equity in Indian Registration Act
by the federal government today but calls on the government to take
immediate steps to address broader issues of First Nations' jurisdiction
over the determination of their own citizenship.

Under Bill C-3, the eligible grandchildren of women who lost status as a
result of marrying non-Indian men will become entitled to registration
as status Indians in accordance with the Indian Act. This legislation
has been introduced in response to a ruling by the BC Court of Appeal in
the McIvor case, which involved a challenge to the Indian Act by Sharon
McIvor and her son Jacob Grismer on the basis that the Act treats the
descendants of Indian women and Indian men differently. The BC Court
of Appeal ruled that sections 6(1)(a) and (c) of the Indian Act, which
denied Indian status to the grandchildren of Indian women who lost their
status as a result of marrying non-Indian men were of no force and
effect. The Court gave the Government until April 6, 2010, to rectify
the discrimination and amend the offending provisions.

"I am pleased the federal government is proceeding with amendments to
the Indian Act to address the Court's ruling regarding gender
discrimination under sections 6(1)(a) and (c) of the Act" said Regional
Chief Wilson-Raybould. "However, there remain many descendants of our
respective Nations who are denied full participation in our communities
due to the narrow and legalistic definition of who is an "Indian" under
the Indian Act. This is not acceptable and the long-term solution does
not lie in further tinkering with the Indian Act".

"Our Nations have an inherent right to determine who is and who is not a
Citizen of our Nations in accordance with our own laws, customs and
traditions" added Chief Regional Chief Wilson-Raybould. "The long term
solution to addressing ongoing discrimination in the Indian Act lies is
the full recognition of First Nations' jurisdiction over their own
citizenship. I call on the Government of Canada to recognize First
Nations' jurisdiction over the determination of Citizenship in our
respective Nations and to support the implementation of First Nations'
Citizenship laws." She continued, "Section 35(1) of the Constitution
Act protects the Aboriginal and Treaty rights of First Nations' peoples
which includes the right to determine our own Citizenship. This basic
right is affirmed in Article 33 of the United Nations Declaration on the
Rights of Indigenous Peoples which states, "Indigenous peoples have the
right to determine their own identity or membership in accordance with
their customs and traditions."

Canada anticipates that approximately 45,000 additional persons will
become entitled to registration under the Indian Act if Bill C-3 is
enacted. "While the work continues to ensure that our Nations can
determine their own Citizenship, including the rights and
responsibilities of their Citizens, the addition of 45,000 persons added
to the Indian Register under the Indian Act system will inevitably
create pressures on the existing resources of First Nations' communities
to provide federal programs and services," stated Regional Chief
Wilson-Raybould. "In order to facilitate a smooth and responsible
implementation of Bill C-3, it is essential that adequate resources be
made available to First Nations to avoid any further hardship in First
Nations' communities."

BC Regional Chief Jody Wilson-Raybould is elected by the 203 First
Nations in British Columbia and holds the national AFN portfolio for
Citizenship with Regional Chief Stanley.

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For further information, contact:

Marcia Guno, Political Aide to the Regional Chief

604-922-7733 or marcia.guno@bcafn.ca

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Will Bill C-3 change the Indian Act and right a past wrong by ending gender discrimination,
but also create new problems?

Turtle Island Native Network points to the comments, questions and concerns raised
in the following discussion that took place in the House of Commons on

Friday, March 26, 2010

for example . . .

Liberal Member of Parliament, Mr. Todd Russell: "Mr. Speaker, it seems there can be, and many times is, some very confusing wording and approaches to status. I have talked to experts and asked them a question on this bill or on the Indian Act as it now exists. There are many confusing circumstances. We have to ensure the bill does not create other cases of discrimination. That is our fundamental role. . . If it is possible to make amendments to deal with any further cases of discrimination that may arise, I think we will do everything in our power to make those amendments so other cases of discrimination do not arise. We know one thing for sure. Many times, when the government responds to this, it creates other possibilities of inequity. We have to look forward and not deal only with the present situation."
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Gender Equity in Indian Registration Act

Hon. Stockwell Day (for the Minister of Indian Affairs and Northern Development)
moved that Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), be read the second time and referred to a committee.

Mr. John Duncan (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development, CPC):
Mr. Speaker, I am pleased to have this opportunity to speak to Bill C-3, Gender Equity in Indian Registration Act and explain why I encourage all members of the House to join me in supporting it.

Bill C-3 proposes to accomplish two objectives. First, this legislation would remove a cause of gender discrimination in the Indian Act. Second, it would meet the deadline imposed upon Parliament in a ruling of the Court of Appeal for British Columbia.

My remarks today will describe not only how Bill C-3 achieves these objectives, but also how it would serve the larger national interest.

In last year's decision by the Court of Appeal for B.C. in McIvor v. Canada, the court ruled that the two paragraphs in section 6 of the Indian Act discriminate between men and women with respect to registration as an Indian and therefore violate the equality provision of the Canadian Charter of Rights and Freedoms.

Rather than have the decision take effect right away, the court suspended the effects of the decision until April 6, 2010, and explicitly called on Parliament to enact an effective legislative solution.

What this means is we have until April 6 to implement a solution and if we fail to meet this deadline a key section of the Indian Act, one that spells out rules related to entitlement to registration also known as Indian status, will cease to have legal effect in the province of British Columbia.

This will have some significant consequences. As the members of the House will recognize, Indian status is a legal concept that confers a particular set of rights and entitlements. Should the two paragraphs of section 6 cease to have legal effect, it would lead to uncertainty and confusion about entitlements to registration in British Columbia.

The legislation now before us proposes to avert these consequences by amending certain registration provisions of the Indian Act. The bill addresses the root of the problem by removing the language that the court ruled unconstitutional.

I have no doubt that every member of the House stands opposed to discrimination based on gender. Despite this conviction, I expect that all members appreciate that equality between men and women is difficult to achieve at times.

Bill C-3 would take Canada one significant step closer to this important goal and this is what this debate is all about, the ongoing effort to eliminate gender discrimination.

Parliament, of course, has played an important role in taking corrective actions to address this issue. For example, the House endorsed the Canadian Charter of Rights and Freedoms, which is recognized internationally as a milestone in the fight against discrimination. To understand the origins of the McIvor decision we must go back to the 1980s when the charter was first enacted.

The charter required the Government of Canada to amend or rescind federal legislation that caused, aided or abetted discrimination based on gender. A significant effort was undertaken to amend the Indian Act, which clearly discriminated against women.

Perhaps the most egregious example of this discrimination was the Indian Act's treatment of a status Indian who married someone without status. If the status Indian were a woman, she would immediately lose her status. If the status Indian were a man, he would retain his status and furthermore his wife would become entitled to registration.

So these effects were dramatically different of course on their children. Children of a woman who lost status and her non-Indian husband were not entitled to registration, while children of a status man and his non-Indian wife were entitled to registration.

A provision in the former Indian Act, which was commonly referred to as the “double mother clause”, discriminated against children whose mother and paternal grandmother gained status upon marriage. These children, born after September 4, 1951, would lose their Indian status at age 21.

In an effort to eliminate these types of discrimination, Parliament endorsed a series of amendments to the Indian Act in 1985. These amendments are still known, colloquially, as Bill C-31 changes, and they remain controversial and lie at the heart of the McIvor ruling at the Court of Appeal for British Columbia.

The problem lies with the mechanisms that Bill C-31 used to rectify gender discrimination related to status entitlement and registration. I will do my best to simplify two of the key amendments from 1985.

Mr. Gary Schellenberger: Good luck.

Mr. John Duncan: Yes. “Good luck”, somebody just said.

Subsection 6.(1) provided a way for Indian women who had lost status through marriage to regain it and subsection 6.(2) made it possible for the children of these women to be registered.

Although this approach earned the approval of Parliament, and many other groups, subsequent generations were still subject to residual gender discrimination, and that is what was ruled on by the Court of Appeal for British Columbia.

Now, let me provide members with a little history to the court's decision.

Sharon McIvor is an Indian woman who married a non-Indian man before 1985. They had children together. According to the Indian Act, at that time, Ms. McIvor would have lost her status and her children would not be eligible for registration.

Through the amendments to the Indian Act, in 1985, Ms. McIvor was registered in accordance with subsection 6.(1) and her son was registered under subsection 6.(2). When this son had a child with a non-Indian woman, their children were not eligible for registration. This fact formed the basis for Sharon McIvor's arguments in McIvor v. Canada: that her descendants were not in the same position to transmit registration to their children as they would be if she were male.

To determine if this constituted bona fide discrimination, the Court of Appeal for British Columbia reviewed the Indian Act's provisions for registration following the Bill C-31 amendments to the Indian Act in 1985. The court specifically examined Ms. McIvor's situation in comparison to that of a brother. It found that the consequences of two successive generations of parenting with non-Indians actually significantly differed in the male and female lines.

While the 1985 amendments in Bill C-31 succeeded in eliminating gender discrimination in the first generation, it failed to eliminate it in subsequent generations. This is the core, essentially, of the court's ruling.

It is important to note that Bill C-3 responds directly to the court's decision by amending certain provisions of section 6 of the Indian Act. By any measure, this is a progressive and desirable step because it removes an identified cause of gender discrimination.

As a modern nation, Canada champions justice and equality for all. Canadians recognize that discrimination does weaken the fabric of our society and erodes public faith in our justice system. That is why I am pleased to bring forward this legislation identified in the court's decision.

Members of this House have demonstrated over and over again that willingness to address issues related to individual rights. It is something they wish to do. In 2008 Parliament supported the repeal of section 67 of the Canadian Human Rights Act, for example. Section 67 of this act had created an exception so that complaints for people subject to the provisions of the Indian Act could not seek redress under the Canadian Human Rights Act, which was the only exception for Canadians in the act. To rectify this situation, members of the House supported legislation to repeal this section.

Bill C-3 has much in common with the legislation that repealed this section of the Canadian Human Rights Act. Both strive to protect individual rights and promote equality. Putting an end to discrimination against first nations women is advantageous for all Canadians, which is why I am asking members to support this bill.

When speaking about protecting human rights, I would also like to take this opportunity to remind members of the House that this government has been actively seeking to address a legislative gap that undermines our justice system. I am talking about matrimonial real property legislation. I am talking about eliminating the gap that leaves first nations people, most often women and children, vulnerable and without legal protection.

Addressing issues such as gender discrimination in certain registration provisions in the Indian Act, repealing section 67, and filling a legislative gap respecting matrimonial real property will have positive and lasting impacts. For too long aboriginal people have struggled to participate fully in the prosperity of the nation due to a series of obstacles. By removing these obstacles, Canada enables aboriginal people to contribute socially, economically and culturally to this country. Parliament must play its key role in this process.

We should consider the Specific Claims Tribunal Act. The legislation was a crucial component in a larger action plan to resolve another major obstacle to good relations between first nations and the federal government, and that was a backlog of unresolved specific claims. Thanks in part to the House's endorsement of the Specific Claims Tribunal Act, every claim settled brings a first nation one step closer to realizing its full potential.

To help achieve similar progress, the government has taken action on a number of issues, from human rights to other basics, such as drinking water, education and housing. A multifaceted and collaborative action plan continues to increase the number of first nation communities with access to safe and reliable supplies of drinking water.

A series of tripartite partnerships with individual provinces and first nation groups continues to generate improvements in on-reserve educational outcomes and the quality of child and family services. The government is acting in collaboration with the people directly affected by the issues at play and Bill C-3 is no exception.

Last year, following a thorough review and analysis of the court's decision, department officials had technical briefings with representatives of five national aboriginal organizations to discuss the decision and Canada's proposed response. Following those briefings, 15 engagement sessions were held throughout the country to present Canada's proposed response to the McIvor decision and solicit feedback.

To help focus the sessions, the Government of Canada researched, published and distributed copies of a discussion paper. Hundreds of participants came to the engagement sessions and many written submissions were received.

We had several common themes emerge during the sessions and in the written submissions. Many people were expressing concerns about the broader issues of registration, membership and citizenship.

Based on the views expressed during this engagement process, we announced broader measures that extend beyond the scope of the bill before us and will be discussed in a separate forum. This will be done in partnership with national aboriginal organizations and will involve the participation of first nations and other aboriginal groups, organizations and individuals at all levels.

The findings of the exploratory process will form the federal government's next steps regarding further initiatives on these issues. As important as all of this work might be, it cannot take precedence over the importance of passing Bill C-3.

We must not lose sight of the fact that the legislation now before us responds to a specific court ruling and prescribed deadline. The ruling and deadline inform the design of Bill C-3. The proposed legislation is a precise, compact and focused response.

As Bill C-3 proceeds through the parliamentary process, the plan is to work in partnership with first nations and other aboriginal groups and organizations to identify and discuss the critical issues surrounding registration, membership and citizenship. This process will be separate from Bill C-3 in recognition of the court's deadline and the importance of acting quickly to address the situation of gender discrimination in the Indian Act.

Bill C-3 is progressive, responsive and measured. It is rooted in the principle that all citizens should be equal before the law.

Bill C-3 represents a timely and appropriate response to the Court of Appeal for British Columbia's ruling. It proposes to eliminate a cause of unjust discrimination and ensure that Canada's legal system continues to evolve alongside the needs of aboriginal peoples.

I urge all members of the House to join me in supporting Bill C-3.


Mr. Todd Russell (Labrador, Lib.):

Mr. Speaker, I thank the parliamentary secretary for his words and for helping to clarify what is a very complex issue.

He did mention in his remarks the timeline that we are facing of April 6, which is only days away and we are only at second reading of this particular bill.

The government had intended to table this bill last fall or when the House came back in late January or early February. How does the member feel prorogation affected the timing?

It is my understanding that the minister or the government has asked the B.C. Court of Appeal for an extension. I may be correct or incorrect on that particular assumption, but has the government asked for extension and, if so, what was the reply?
next intervention previous intervention [Table of Contents]

Mr. John Duncan:
Mr. Speaker, in terms of the request for an extension from the courts, we did ask for an extension but we have not heard a response.

I did make a commitment in the aboriginal affairs committee that as soon as we received a response I would certainly let the other parties know, although I think it would generally be a matter of public knowledge at that time in any case.

In terms of the timing of getting this bill before Parliament, we are doing quite well. This is our second week here and I have been pressing to get this bill before the House, which I have, and I think we will give it quick passage through second reading and then into committee where we can deal with it.
next intervention previous intervention [Table of Contents]

Mr. Pat Martin (Winnipeg Centre, NDP):
Mr. Speaker, would the parliamentary secretary agree with me that perhaps he should have prefaced his comments with the statement that this House of Commons, this Parliament believes that the Indian Act is a paternalistic, obnoxious instrument of oppression that is unworthy of any western democracy and, in fact, is unworthy of any civilized free society?

I believe that the parliamentary secretary could have prefaced his remarks by recognizing that the social condition and the status of aboriginal people in our culture is perhaps Canada's greatest shame, and that there is and should be a sense of urgency to remedy some of the historic atrocities contained within the Indian Act.

Perhaps he should have acknowledged that the Indian Act was really designed as an instrument, not only of oppression but of extinction. In fact, it had recipes for extinction built into it. For instance, when a 6(1)(a) Indian, they categorized rights as 6, chapter (1) section (a), and a 6, chapter (1), section (c), marry. the results shall have a 6(1)(c) that forfeits their rights. It is not called disenfranchised. It is called enfranchising because they then become full status human beings as non-Indians.

I would just like my colleague to acknowledge and perhaps explain the position of his government. Does he acknowledge that Bill C-3 does not confer rights on aboriginal women, that this bill recognizes and finally acknowledges the inherent rights of those people who gained those rights by their birthright not bestowed upon by the government?


Mr. John Duncan:
Mr. Speaker, the Indian Act is very controversial of course and we do have some first nations in Canada who have negotiated their way out of the Indian Act for all provisions of the Indian Act with the singular exception of the registration provision very often because this whole determination of who is and who is not a registered Indian or a status Indian is a very complex and debatable issue.

Even after Bill C-3, we have bands that operate under custom code that will determine who their members are without reference to Bill C-3. We also have bands that have chosen to remain strictly under the Indian Act provisions that will have members added to their roles through the bill.

Therefore, there is no single response or catch-all phrase, but this is a narrow targeted and focused bill.


Mr. Jim Maloway (Elmwood—Transcona, NDP):
Mr. Speaker, I want to follow up on the excellent questions from the member for Labrador and the member for Winnipeg Centre this morning.

I thank the government for introducing Bill C-3. The fact is that Sharon McIvor should never have had to launch a court case in the first place. It took 21 years for this process to take place and it should never have taken that long in the first place.

We will be supporting the bill. We feel that it is long overdue to rectify this situation.

However, I do not understand why this was left until the last possible minute. The parliamentary secretary indicated that April 26 is our date. The question really is, as the member for Labrador suggested, whether the government could have acted earlier and given us more time to deal with the issue.

Having said that, we will be supporting the bill to get it to committee and then if there are any amendments we can deal with them at that time.

Mr. John Duncan:
Mr. Speaker, I would remind members that the engagement process was an ongoing process that continued right through into the new year. Therefore, we have not lost any time over this.

Beyond the engagement process, an exploratory process will carry on subsequent to the passage of the bill at second reading. I do not see us as being tardy in any way.


Mr. Richard Harris (Cariboo—Prince George, CPC):
Mr. Speaker, I listened to the comments of the member for Winnipeg Centre and he is quite correct. Why has this taken so long? I am not talking about the most recent period because, as the parliamentary secretary said, there is a process to go through.

The Liberal government was in power from 1993 to late 2005, a total of 13 years. It had ample time within that vast period of government to deal with this issue and yet the Liberals treated that issue as if it were so far below the importance in their minds that it was never even contemplated.

I congratulate our minister for having the mind to realize the importance of this issue and bring it to our government's attention, and we have dealt with it.

Could the parliamentary secretary tell the House whether there was any justification for a 13 year hands off approach to this most important issue that the Liberal government displayed?


Mr. John Duncan:
Mr. Speaker, I do not know about the specifics on what we are now calling Bill C-3 in terms of that comment or question, but there has been a whole host of areas, whether it has to do with drinking water, housing or child and welfare services, where I believe we have had a sense of urgency and we have improved the circumstances very significantly in our time in office.

I would like to think that we will continue in a dramatic way in that same direction.


Mr. Todd Russell (Labrador, Lib.):
Mr. Speaker, it is a pleasure to stand in the House today and speak to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

The bill is in response to a long-running battle in the courts spearheaded by Sharon McIvor. This action is being taken because the courts have said that the government must take action on this particular case. I congratulate Sharon McIvor and the others who have walked with her on the journey to heal the wounds of inequality and injustice.

It is pertinent for the House to know that it has taken 20 years. The court case was launched in 1989 and it took 17 years, until 2006, for it to be heard. Every obstacle was thrown in the way. I will not get into a debate about what government was in power when. The case was launched under the Mulroney government, carried on under the Chrétien and Martin governments, and continued on under the present Prime Minister's government.

However, there is something wrong with the system when it takes 20 years in the courts to resolve an issue of inequity. It takes time and resources and eats up people's lives, and we are talking about people's lives. I really do not care what government was in power. There must be a better way. There are smart lawyers in the Department of Justice. Someone must have sat back and thought that this really was an issue of inequity. They must have wondered if there was a better way to deal with it, such as through discussion or negotiation.

I note as well that, when it comes to resources, Sharon McIvor used the court challenges program, as have many other women, to try to advance their particular cause of equity. It was in 2006 that the current government killed the court challenges program that promoted the cause of equity. That added further to Sharon's struggle for money to see this case through to its successful conclusion, at least in some people's minds.

Does the title of this bill accurately reflect the intent of the bill, which is to provide equity? Many would argue that it tries to achieve that particular objective but it would be wrong for the House to think that this legislation would resolve all of the issues of inequity based on sex or on one's maternal line. Many other issues have not been addressed.

Let us take a quick look at what Bill C-3 is about and put it into context.

The McIvor case was the first of many cases to reach a decision under section 6 of the Indian Act. The case is about Indian status. It does not talk about band membership, citizenship or section 35 rights.

Sharon McIvor challenged the constitutionality of the Indian Act under section 6 as a violation of section 15 of the charter. The argument was that there was preferential treatment for descendants who traced their Indian ancestry along the paternal line over those who traced their ancestry along the maternal line, and that there was preferential treatment for male Indians who married non-Indians and their descendants over female Indians who married non-Indians and their descendants.

The B.C. Supreme Court ruled in favour of Sharon McIvor. It said that there was discrimination on the basis of sex and matrimonial descendance and ordered that section 6 was of no force and effect only with respect to the conferral of Indian status. The order resulted in inequality, the B.C. Supreme Court ruled, regarding the passage of status.

However, even though Sharon McIvor had won, Canada appealed the decision to the B.C. Court of Appeal. The Court of Appeal found discrimination in section 6 as well but on a much narrower basis. The court said that Bill C-31 created a new inequality because it enhanced the position of those affected by the double mother rule. Children of non-Indian mothers and non-Indian paternal grandmothers lost status at age 21 but restoring their status in section 6(1) meant that they could pass status regardless of the status of one parent.

The court only struck down sections that gave this enhanced status, and that is sections 6(1)(a) and 6(1)(c), so the ruling was in relation to a more limited category of people affected, which is why the government did not appeal because there were protected vested rights. The court gave the federal government one year to amend this provision.

Sharon McIvor in fact felt that even though she had won, the ruling was not what she wanted or felt she needed to resolve the issue of inequity. She filed for a leave to appeal to the Supreme Court of Canada. The appeal was denied on November 5, 2009.

The B.C. Court of Appeal's decision does not result in those who are already registered under the impugn provisions being struck off the registry, which basically means nobody will lose the rights they now have under the Indian Act, as this would result in a charter challenge itself.

What was the government's response? The government had a deadline to meet of April 6 of this year. The court said that it would give the government one year to bring in the legislation to deal with the inequity under section 6 of the Indian Act. The government released a discussion paper outlining what some of the options might be, some of the processes that it would go through. It then went through an engagement process. Engagement is an important word. It is not a consultation process because the government felt it had no legal requirement to consult, but only to engage the opinions of people to listen.

People had problems with that. People felt the engagement process was limited. Only about 150 individual submissions were made to the department. There were some regional and national meetings, but people, as a whole, felt it was very limited, that they did not get the full range of views they should have on this important legislation.

After the engagement process, the government gave notice that it would table a bill back in December. We were informed that the bill would be narrowly scoped to only deal with the equality as set out by the B.C. Court of Appeal. The government did admit that it would only deal with the B.C. Court of Appeal decision, that it would not deal with other issues arising out of the Indian Act, other issues of inequality or discrimination that exist.

Up against this April 6 timeline set by the Court of Appeal, the government has now brought forth legislation at the eleventh hour. The timing constraint is certainly compounded, and was compounded, by the prorogation of Parliament, which removed many days from the parliamentary calendar. I know the government says it is serious, but if it is serious about getting the legislation through, then annual prorogations are not the way to do it.

In examining this bill, we want to be diligent, we want to be expeditious, but we should not be rushed.

When we look at some of the content of the bill, people have written to me and to the department. They have indicated there are certain provisions of the proposed legislation that are still very problematic, and that they may raise other potentially new cases of discrimination.

I refer to a briefing note, a submission that was made by Dr. Pamela Palmater, who did her doctoral thesis on the Indian Act and the whole issue of status and the conferral of status. I will only refer to one section, just to give members and those who are listening a sense of where some other issues of discrimination may arise.

She says that section 6(c.1)(iv) of the proposed Bill C-3 provides that a person:

—had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;

She says:

This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.

I mention this because the committee will have to take the time to understand what the implications are of this legislation. We do not want to make the situation worse. We want to improve the situation. We want to respond effectively and efficiently to the B.C. Court of Appeal's decision.

Neither does the legislation address the second generation product rule or situations of undeclared or unknown paternity. Again, these are matters that the committee will seriously have to consider.

The case is also shrouded in other fundamental rights issues, which the Government of Canada says this bill does not raise. I tend to agree that the bill does not raise these issues, the issues of jurisdiction, who determines citizenship, who determines membership. Why do we have a very paternalistic piece of legislation, one of the greatest examples of colonial infrastructure left in the western world that determines who is Indian and who is not. It is not determined by birth, by culture or by descendancy. It is determined by a statute in the House. There is definitely something wrong with the legislation, for which there are many descriptions. We are only dealing with one part of it now, but this whole bill raises other fundamental issues.

People ask this question. Why should Canada interfere in the determination of who can be registered as an Indian under the Indian Act? They say that it contravenes international conventions like the United Nations Declaration on the Rights of Indigenous People, which states that indigenous people have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the state in which they live.

Indigenous peoples have the right to determine their own identity or their own membership. I believe all members of the House would agree. Hopefully in the future we will be able to deal with these matters. The government acknowledged that by announcing an exploratory process to deal with these more substantive and fundamental questions.

The government should not delay or prolong that process. National aboriginal groups, regional aboriginal groups and individuals want to see this go forward in an expeditious manner. We want to ensure that it is done in a proper way and properly resourced, and let us call it a consultation process as opposed to an exploratory process.

We also have to be cognizant of questions around implementation. Is the department ready? Is the Office of the Indian Registrar ready? Are people being notified of possible changes that are coming? It will not be automatic that one gets status. The fact is people will have to apply and provide documentation, so there will be an onus on individuals to provide, in some cases, some very personal information. That in itself can be problematic, but is the system ready to take on new registrants?

Also, what are the impacts? There is a possibility that there could be up to 45,000 new registrants. That is what a noted demographer, Mr. Clatworthy, has indicated in his study commissioned for the department. He also gives a breakdown of how many people would likely register on reserve as opposed to off reserve, and what the implications would be then in terms of program and service implications and cost. We have asked the government this question. The government says that while it is looking at it, it does not know what the impact will be on programs such as non-insured health benefits, post-secondary education and if there is an influx of people on a reserve and what happens to the existing housing prices and the need for other services, other types of infrastructure.

While we ask all these questions, we believe the intent of the bill is to try to meet the test or dictates of the B.C. Court of Appeal. We believe it is worthy of support at second reading. We hope it will close one gap in the law, even if it does not address others that remain. It definitely requires full examination in committee.

Despite the shortened time frame due to the court decision and the government's prorogation, we hope there will be a full and fair hearing with a broad cross-section of witnesses. I look forward to hearing those witnesses and, if possible, to making the bill a better one.

Mr. Alan Tonks (York South—Weston, Lib.):
Mr. Speaker, those of us who are dedicated to understanding the issues facing our first nations are very concerned with respect to the issues that the bill raises and the issues on which my colleague has given us an overview. From what the member has said, my observation is that section 6(c.1)(iv) is very pertinent and of concern to the first nations community. It has introduced a new form of discrimination based on the status of children.

This seems to be the nature of the appeal stemming from the McIvor initiative that attempted to focus on the whole issue of inequity between paternal and maternal rights. The inference I draw from the member's overview is that this added form of discrimination is contrary to the very intent that Sharon McIvor had. In fact, it will contribute to the saying that justice delayed is justice denied.

Is it within the purview of the committee, given that the Court of Appeal really established the parameters of the B.C. decision within which the inequity could be legally addressed, to address that new form of discrimination, or is this a case where we are trying to catch up on bad legislation?

Mr. Todd Russell:
Mr. Speaker, it seems there can be, and many times is, some very confusing wording and approaches to status. I have talked to experts and asked them a question on this bill or on the Indian Act as it now exists. There are many confusing circumstances.

We have to ensure the bill does not create other cases of discrimination. That is our fundamental role. We have to ensure we respond appropriately to the B.C. Court of Appeal to ensure we resolve the issue of inequity on which it had passed judgment. That is what we have to do and that is what the committee's work will be.

There are many who will pass opinions. As I mentioned, Dr. Pamela Palmater has gone through the bill and found some areas where she feels that discrimination may arise from what we study in Bill C-3. Whether that is the case or not, the committee will have to judge this. If it is possible to make amendments to deal with any further cases of discrimination that may arise, I think we will do everything in our power to make those amendments so other cases of discrimination do not arise.

We know one thing for sure. Many times, when the government responds to this, it creates other possibilities of inequity. We have to look forward and not deal only with the present situation.


Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ):
Mr. Speaker, I am pleased to speak to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

The Bloc Québécois supports the principle of this bill designed to allow those who suffered discrimination because of Bill C-31 passed in 1985 to reconnect with their origins.

Indian registration is indeed the first step in gaining not only Indian status, but also peer recognition in the community.

Membership is a very important concept, as it entitles individuals to live on reserve, participate in political processes such as the election of band chiefs, own property on reserve and share band resources. It permits recognition of one's origins and the practice of one's culture.

In 1996, many questions were already being raised about the impact of Bill C-31. There were concerns about possible adverse effects on the debate about whether or not someone is a band member, an issue that is not only complex, but also an integral part of a person's identity. To illustrate this complexity, I will read two excerpts from a report prepared by the Library of Parliament in February 1996 and revised in 2003.

The debate over membership is complex and multifaceted. A consideration of the issue leads to questions about what it means to belong to a community, about who has the right to define community membership, and about the changing nature of the Indian population. For many years, externally imposed rules for status and membership have produced internal divisions within Indian communities. The impacts of Bill C-31 have further emphasized political, social and financial concerns and introduced new problems.

The growth in the number of status Indians living off reserve as a result of Bill C-31 has also increased the need to clarify the responsibilities of federal and provincial governments in providing and funding the services required. Problems have arisen, moreover, because many of the programs and funds for status Indians are available only to those who live on reserve. Some of those who wished to live on reserve could not, however, because of a lack of services, such as housing. Furthermore, despite the increase in services, many off-reserve Bill C-31 registrants did not know how to access them and thus did not take advantage of them. INAC has been criticized for not making this information more readily available.

These quotes show just how complex recognition is.

Does the implementation of Bill C-3 raise new questions about the implementation of Bill C-31? The Bloc Québécois thinks it does.

The McIvor decision forced the government to close the loophole created by the 1951 act and the unacceptable amendment to the 1985 act, which was itself trying to close the enormous loophole created by the enactment of the Canadian Charter of Rights and Freedoms.

The 1876 Indian Act stated that a woman marrying a non-Indian would lose her status and stop being an Indian in the eyes of Canadian law. The act and all of the legislation succeeding it marginalized women in aboriginal society and considerably diminished their social and political role in community life. Indian women were subject to a law that discriminated against them on the basis of their race, gender and marital status.

In 1951, the Indian Act was amended, but still marginalized women marrying non-Indians. Such women could not be registered on the new federal register of status Indians.

In 1985, after new provisions were added to the Canadian Charter of Rights and Freedoms, Bill C-31 attempted to close the loophole in the Indian Act, but women's children still did not have the same rights as men's children.

The federal government waited 25 years to introduce a bill recognizing the Indian status of individuals who had been discriminated against in the past. This issue is not just about First Nations and women. It is about equality and human rights. The Indian Act discriminated against women because it denied Indian status to the grandchildren of aboriginal women, but not to those of aboriginal men. Bill C-3, which was introduced today, will correct part of the problem.

If not for Sharon McIvor's hard work and perseverance, if not for the 2007 British Columbia Supreme Court ruling, which was confirmed by the British Columbia Court of Appeal on April 6, 2009, the federal government would never have introduced this bill.

The bill must go to committee so that various stakeholders can have an opportunity to express their opinions about the effect that Bill C-3 will have on their communities. The committee will also have to come up with a better plan for implementing the bill so as to avoid making the same mistakes that were made in 1985 with Bill C-31.

Count on us to help make that happen. The Bloc Québécois' excellent critic for this file, the member for Abitibi—Témiscamingue, will do everything in his power to ensure that the committee hears what everyone has to say.
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Also of interest on this topic . . .

Determining citizenship
http://www.turtleisland.org/discussion/viewtopic.php?p=11119#p11119

Bill C-3 Creates More Discrimination than it Remedies
http://nonstatusindian.blogspot.com/

[admin]

Turtle Island Native Network continues to provide updates on the Gender Equity in Indian Registration Act

On Monday the House of Commons gave approval in principle to the proposed legislation Bill C-3 and sent it on to the Standing Committee on Aboriginal Affairs and Northern Development where it will be reviewed and no doubt amended . . .

The following information and excerpts are posted here by Turtle Island Native Network, as gleaned from Monday's discussion in the House of Commons.

"I hope that the government is not expecting this bill to pass quickly, certainly not before Easter. That will not happen. It may pass before Easter 2011, but certainly not before Easter 2010. We want to hear from women. I hope that many women's groups are listening today. I would invite aboriginal women who have been negatively affected by this unfair, arbitrary and discriminatory law to talk to committee members about what they would like to see happen." Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):

"It is incumbent upon us as members of the standing committee to make sure we do our due diligence when the bill comes before committee, so that we are looking at other aspects where people are being shut out. We need to look at the resource implications for bands. We also need to look at whether there would be unintended consequences, as there were in Bill C-31 in 1985. Are there going to be unintended consequences that would shut somebody else out, which we did not catch when we were considering the legislation?" Ms. Jean Crowder (Nanaimo—Cowichan, NDP):
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The House resumed from March 26 consideration of the motion that Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), be read the second time and referred to a committee.

Ms. Jean Crowder (Nanaimo—Cowichan, NDP):
Mr. Speaker, I am pleased to speak to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). It is a long title for a short bill. New Democrats will be supporting this bill at second reading.

It is important not only for the women and their children in Nanaimo—Cowichan but for the women and their children in British Colombia and across this country.

This somewhat technical bill is the result of a long-standing court case that Sharon McIvor had in British Columbia.

I am going to quote from the legislative summary because it deals with some of the technical aspects.The British Columbia Court of Appeal ruling gave rise to Bill C-3. The summary states:

The decision dealt with the case of Sharon McIvor, who had lost status when she married a non-First Nations man and had been reinstated in 1985 under paragraph 6(1)(c) of the post-Bill C-31 Indian Act. Her son, Jacob Grismer, having only one First Nations parent, acquired status under subsection 6(2) but was unable to transmit that status to his children owing to his own marriage to a non-First Nations woman. In contrast, persons in the male line affected by the 1951 double mother rule, which legislated loss of status at age 21, had been reinstated for life under paragraph 6(1)(c) and were thus able to transmit status to their children whether or not they married out. The Court found that this circumstance placed persons in Jacob Grismer's position at a disadvantage amounting to an unjustified section 15 Charter violation, and issued a suspended declaration of invalidity of paragraphs 6(1)(a) and (c) of the Act to allow Parliament to amend the Act before 6 April 2010.

When we talk about paragraph 6(1)(a) and 6(1)(c) and subsection 6(2), it gets very confusing and convoluted but it was an important ruling by the B.C. Supreme Court.

I want to put the whole discussion around citizenship and status in context and give the very big picture. I am going to start with the United Nations Declaration on the Rights of Indigenous Peoples.

Article 8 of the UN declaration states:

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural v alues or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 33 of the UN declaration states:

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

With respect to the UN declaration the Conservative government indicated in the throne speech that it would take the next steps. That is why it is important to read into the record some of the articles in the UN declaration because it sets the context for why discussions around citizenship and status are so important.

In terms of history, I am sure many Canadians are not aware that first nations from coast to coast to coast have a very long history of making their own citizenship and membership decisions.

In July 2008 the Assembly of First Nations and Indian and Northern Affairs joint technical working group outlined some history in a technical briefing paper. It indicated that early colonial powers relied upon first nations criteria to determine early colonial definitions of an Indian, including birth, marriage, adoption, residency, self-identification, kinship and community ties.

However, the consolidation of colonial legislation policy into the first Indian Act in 1876, which included legal definitions of the terms “Indian” and “statutory criteria” for who was and was not able to register as an Indian essentially laid the groundwork for the complete segregation from those who remained Indian and assimilation through the loss of status and existing rights.

The article goes on to talk about various changes, but I want to talk about other ones. The Gradual Enfranchisement Act of 1869 was the first law denying Indian status to an Indian woman who married out and which prevented her children from acquiring status. This provision was carried forward into the first Indian Act in 1876. From 1869 on, federal Indian legislation included successive Indian acts and introduced and solidified gender-based criteria within the definition of an Indian and in the treatment of Indian men and women.

This included the central role of patrilineal descent requirements and gender-based discrimination in the treatment of Indian to non-Indian marriages whereby Indian women who married a non-Indian lost their status and their children were not entitled to be registered. In contrast, Indian men who married non-Indians retained their status and their non-Indian spouse and offspring were entitled to be registered as Indians.

The article talks about the definition in 1876 and states:

In addition, the Act and subsequent amendments also continued and furthered the policy of enfranchisement, which became compulsory in a number of circumstances. For example, enfranchisement was automatic if an Indian became a doctor, lawyer, Christian minister, or earned a university degree.

Not only did gender discrimination become an integral part of the Indian Act from 1869 until the present day, but there was an enfranchisement policy that if first nations decided to get an education, they lost their status.

The 1951 amendments to the Indian Act further entrenched gender-based criteria in the definition of an Indian and ineligibility for registration and some precedents set by earlier Indian acts continued to prevail.

For example, Indians were defined as male persons of Indian blood and their descendants and wives. A woman derived her status through her father and then through her husband. If she married a non-native, a Métis, or a non-status Indian, she lost her status. Since children derive their status through their fathers, her children and future generations would also be ineligible to register.

The child of an unmarried registered mother would have status unless it was demonstrated that the father of the child did not have status. People who received or whose ancestors received land or money scrip were not considered Indians and therefore not eligible to be registered.

There is a long, long history of many attempts to limit from the outside from what was a colonial government and then turned out to be a patriarchal government later on, who would be considered first nations, or in those days Indian, in this country. Today we are debating a piece of legislation that very narrowly addresses one aspect of that discriminatory practice that became inherent in the Indian Act.

I want to touch on a couple of other things in the history. In 1961, there was an amendment to end the compulsory enfranchisement of men or bands. The rules indicating that if they had an education they no longer could be enfranchised were removed in 1961. This is how long the fight for equality has been going on.

In the early 1970s Jeannette Lavell and Yvonne Bédard challenged the discriminatory language of section 12(1)(b) of the Indian Act. Both women had lost their Indian status because they had married white men. The Supreme Court ruled that the Indian Act was not discriminatory as the women gained the legal rights of white women at the same time they lost their status as Indian women. In the 1970s the courts seemed to be saying that it is better to be a white woman than a first nations woman.

This continued to have devastating consequences for women. Indian women who would later marry a non-Indian would lose their status as would the children of their marriage. These disenfranchised women were prohibited from residing on reserve, inheriting family property, receiving treaty benefits, participating in band councils and other affairs of the Indian community, and being buried in cemeteries with their ancestors. Not only did they lose their status, but they also lost the right to be part of their cultural and linguistic community. Many of these women or their ancestors had been leaders in their communities.

This of course was in stark contrast to first nations men who could marry whomever they desired with impunity. In fact, a non-Indian woman who married an Indian man would gain Indian status. According to the Royal Commission on the Status of Women, approximately 4,605 Indian women lost their Indian status by marrying white men between the years of 1958 and 1968.

In 1981, Sandra Lovelace, a Maliseet woman from Tobique—Mactaquac, forced the issue by taking her case to the United Nations human rights committee, contending that she should not have to lose her own status by marriage. Of course, this subsequently led to what is now known as Bill C-31 from 1985. I am going to come back and touch on that in just a moment because, although we are discussing Bill C-3, there are some lessons to be learned from Bill C-31 from 1985.

In the current context, what we have is a very narrow attempt, based on the B.C. Supreme Court decision, to deal with some gender inequities in the Indian Act. I know a number of members in this House were present for the debate on the repeal of section 67 of the Human Rights Act that now allows first nations members to file human rights complaints on a variety of issues. At the time, witnesses came before the Standing Committee on Aboriginal Affairs and Northern Development to say that what we are in effect doing is beginning to make changes to the Indian Act on a piecemeal basis, and what we can end up with is unintended consequences by not taking a step back and having a more holistic approach to the whole Indian Act.

When we start tinkering with one section, we often do not know what the impact will be further down the road, and I am going to come back to Bill C-31 in that context. However, regarding the current context and what this bill does not deal with, the band council of the Wabanaki Nation has provided a briefing document that talks about the fact that this piece of legislation does not deal with a couple of other problems.

It talks about the sibling rule, where at the time of birth, Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother. It goes on to say that a brother would have the right to be registered at the time of his birth since the Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother, but they did allow for the registration of their illegitimate sons. That is still a case that is outstanding and it is just one example of some of the challenges in the status aspect of the Indian Act which is not dealt by Bill C-3.

Again, I have indicated that New Democrats are prepared to support the bill at second reading; however, I would urge the government to take a much broader look at the Indian Act and its potential impacts.

I want to talk a little about resources, and this is where I am going to talk about Bill C-31 a bit. The Six Nations of the Grand River have prepared a citizenship briefing note, and it raises the spectre around the fact that Indian and Northern Affairs is pursuing an amendment to the Indian Act to respond to the directions from the B.C. Court of Appeal, to be in place by April 6, 2010.

First nations have not been adequately consulted regarding amendments, nor provided clear information on the impact on their communities, and Six Nations is not alone in raising concerns around the impact on the communities.

Just touching briefly on the issue of consultation, the government acknowledges that in this particular case, it has not done consultation. What it has said in that context was that the time was limited, that there was a mandate from the B.C. Supreme Court that it had to move forward. There are some very grave concerns that all aspects of this bill and its potential impacts have not been adequately examined. In fact, the government itself has been unable to give any clear idea of the impacts on communities.

What it has said is that it has estimated that there will be upwards of 45,000 people who could be reinstated as a result of Bill C-3, and that is from Mr. Stewart Clatworthy's report, who is a demographer and has done some work regarding this issue.

There have been no announcements and no budget allocations to deal with the increased administrative duty that comes attached to this bill. Back when Bill C-31 passed in 1985, The Globe and Mail reported that the government officers on two shifts a day were adding more than 500 people per week to the country's official Indian population. The system became swamped with more than 38,000 applicants seeking status for more than 76,000 people. That was in 1985 with Bill C-31.

Of course, we know that Bill C-31 had some other impacts on communities. Bill C-31 created additional problems. There was increased financial pressure on first nations to provide services to newly enfranchised members, and this was housing, health services, education, all of the kinds of services that come along with status.

It created divisions in some communities and families with an impact on community cohesion and identity. Part of that challenge arose because there simply was not enough money to allow people to move back to their home communities.

Just a reminder, some of these women who had married non-status men had been raised in their communities, had the cultural and the linguistic connections, and yet once they regained their status there simply was not enough housing to allow them to move home.

It did create divisions in some communities because of those very limited resources. It has led to a decline in status population and an increased restriction on the ability to transmit status to their children.

I want to turn on that point. There is something called the second generation cutoff in Bill C-31. And again, I would presume it was an unintended consequence because surely the government of the day would not have legislated assimilation, which is in fact what the second generation cutoff does in Bill C-31. The reason I am raising this in the context of Bill C-3 is again that unintended consequence.

In reassessing the population impacts of Bill C-31, Stewart Clatworthy prepared a report on February 26, 2001. Although it is a very lengthy report, I just want to quote from one part of it. Mr. Clatworthy assessed the continuation of the current rules of Bill C-31. He said that if Bill C-31 did not change, if it was the status quo, this is what we could anticipate as the impact of the second generation cutoff. He said:

The number of survivors and descendants who do not qualify for registration is expected to increase from the current level of about 21,700 to nearly 400,000 within two generations.

He was projecting a serious acceleration of the numbers of people who will lose status. He said:

After three generations (year 2074) individuals who are not entitled to registration are projected to form the majority of the population.

Many people have referred to this as legislated assimilation. I want to come back to what I started with when I indicated that prior to contact, and even in the early days of colonial rule, the colonial government of the day took first nations definitions of who was first nations from first nations.

In the context of Bill C-3, although I recognize that there was a court imposed deadline, it could have been an opportunity, once that court decision was issued, for the government to implement a full consultative process to look at all aspects of citizenship and membership.

This was an important opportunity to right some of the wrongs around the gender inequality but also to look at some of the unintended consequences of Bill C-31.

I look forward to having discussions in committee about the complex nature of status and citizenship. I am expecting that we will have some very excellent presentations before the committee that lay out some of the challenges.


Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Mr. Speaker, in order not to miss a single word of my colleague’s speech, I listened very closely to both the original version and the translation. I thought it was important to understand exactly what my colleague was saying. Since I bump into her sometimes and we work together on the Standing Committee on Aboriginal Affairs and Northern Development, I want to thank her for the work she did on this and is still doing, because it is not finished.

If we go all the way and approve and pass this bill, whether with amendments or not, does she think there will still be discrimination between native men and women? If so, does she have a solution? How could we eliminate the discrimination that has existed since the passage of the Indian Act?


Ms. Jean Crowder:
Mr. Speaker, I know the member for Abitibi—Témiscamingue works tirelessly on the aboriginal affairs committee and is very knowledgeable about the serious issues facing aboriginal communities across this country.

I do not believe that Bill C-3 would deal with all of the gender inequalities that are inherent in the current Indian Act. I had indicated in my speech that there is still a problem with illegitimate daughters. Illegitimate daughters have a different status, whereas illegitimate sons maintain their status. That is just one example of some of the challenges still in place in the Indian Act.

We have known unequivocally since 1973 that there are serious problems with the status provisions in the Indian Act. Here we are in 2010 picking at one small aspect of it. We need a comprehensive approach to status of citizenship.

Mr. Don Davies (Vancouver Kingsway, NDP):
Mr. Speaker, I would like to thank the member for what all members have come to expect from her, which is a thoughtful, comprehensive, and well thought out speech to the House, as well as one that is very fair.

It seems to me that Bill C-3 deals with a very critical and important issue not only to the first nations of this country but to many Canadians who want to have a just and progressive relationship develop between the first nations and all Canadians, and progress for all bands across this country.

It also seems to me that substance and process are both engaged by this bill. Process, in particular, that the bill raises is the importance of consultation with first nations, the involvement of first nations, and the right of first nations to help shape a proper response to the very critical issue about the definition of who does and does not obtain Indian status in this country.

I would like the member to comment, if she would, on the importance of process, as well as the substantive issues engaged by this bill.


Ms. Jean Crowder:
Mr. Speaker, the member for Vancouver Kingsway raises a very important issue.

As the member is well aware, there have been numerous Supreme Court decisions in Canada that talk about the duty to consult. There have been various efforts to define what that would look like, including an interim paper the government issued on consultation. However, even in the process of developing that interim consultation process, first nations have not been included adequately in it. What we have, again, is a process that is imposed somewhere else without adequate input from first nations.

Some first nations have done a tremendous amount of work themselves regarding the definition of what a duty to consult would look like. Because this is not the only piece of legislation that is going to come before us, I suggest that we need to look at the Supreme Court decisions regarding duty to consult and at the very good work that first nations have done regarding duty to consult, and come up with a process so that we do not have to continuously raise this in the House.
next intervention previous intervention [Table of Contents]

Mr. Jim Maloway (Elmwood—Transcona, NDP):
Mr. Speaker, I too would like to echo the comments by the member for Vancouver Kingsway that the member has presented a very well thought out presentation on Bill C-3.

It seems to me that Sharon McIvor has gone through a lot to bring things to where they are right now, when she should not have had to do any of it. These problems should have been rectified years ago. It was not until the Conservative government of John Diefenbaker that native people even had the right to vote in this country in the 1960s. Where have the governments been all these years?

The member certainly understands the issue better than almost anyone in the House. She has indicated that there is still going to be a problem with illegitimate daughters. The question I have for her is this. Does she feel that we are going to be able to deal with that issue of this particular bill at the committee stage?

Ms. Jean Crowder:
Mr. Speaker, at this stage we will certainly be looking at the outstanding issues, those raised by the New Democrats anyway, around gender inequality that currently exist in the legislation. The question becomes whether or not we could introduce an amendment that would be considered to be within the scope of the bill.

The hon. member for Elmwood—Transcona mentioned the fact that Sharon McIvor has been at this for 20 years. She and her family have been struggling with this very important issue for so long that it would seem that we need to move expeditiously to ensure Sharon and her family are no longer disenfranchised. Having said that, we need to look at all the other people who are impacted by the inequalities in the legislation.

It is incumbent upon us as members of the standing committee to make sure we do our due diligence when the bill comes before committee, so that we are looking at other aspects where people are being shut out. We need to look at the resource implications for bands. We also need to look at whether there would be unintended consequences, as there were in Bill C-31 in 1985. Are there going to be unintended consequences that would shut somebody else out, which we did not catch when we were considering the legislation?

Mr. Don Davies (Vancouver Kingsway, NDP):
Mr. Speaker, Chief Atleo of the Assembly of First Nations has highlighted the fact that the government has provided little information thus far to either this House or to first nations leaders. He is concerned about the possibility of a huge influx, perhaps tens of thousands, of people obtaining new status registrations. He has asked how the government could claim to be acting in the interests of first nations without allocating the resources that would obviously be needed to accompany a bill that may affect thousands of families and communities across this country.

I would be very interested in the member's comments about the resources she feels may or may not be necessary for first nations to deal with the issues raised by this bill.


Ms. Jean Crowder:
Mr. Speaker, the resource issue is extremely important. Not only does it impact on the ability of bands to deliver things like housing and other social services, but the people who regain status will be entitled to education and health benefits, even if they live off-reserve. To date the government has been absolutely silent on what kind of resources it will put toward members who regain status.

In addition, the government's own numbers are shaky. The government is estimating 45,000 up to 100,000. That will have a significant impact on any band council's resources. We already know bands are underfunded with a 2% funding cap, and if another level of people regaining status is added in, bands will simply not be able to deal with the influx.


Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Mr. Speaker, it is a pleasure for me to rise and speak to Bill C-3. It brings back memories. Already when you were the chair of the Standing Committee on Aboriginal Affairs and Northern Development, we started discussing this bill or at least the imminent emergence of a bill to amend section 6 of the Indian Act, an act that is probably by far the most discriminatory legislation that Canada passed all last century.

I would like to acknowledge the outstanding job done on this bill by our researcher in the social affairs division, Ms. Hurley, who works for the Library of Parliament. She submitted a superb document, which we received today, on the history and the reasons why we are talking today about the McIver decision of the British Columbia Court of Appeal and why we want to amend the Indian Act.

We started trying to deal with the Indians in 1850, of course in a Canadian way. There was the American way. Everyone remembers the American way and Wounded Knee, where virtually all the Sioux and several other aboriginal communities were exterminated. They were driven off their lands through war.

In Canada, we took a gentler approach, although it was just as assimilatory in intent as the American way, which was to exterminate. We decided on a somewhat gentler approach and all the ensuing governments to the present day should look themselves in the mirror and say they are responsible for the fact that we are today debating BillC-3 to hopefully put an end—even if only partially—to unparalleled discrimination against women in Canada and against aboriginal women.

I have rarely seen a bill trying to end such discrimination in an existing piece of legislation. The act was called an Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act thirty-first Victoria, chapter forty-two. The bill was passed in 1869. Nothing could be more paternalistic than that.

In 1850, the first statutory definition of “Sauvages” in Canada was brought in. I am going to offer a history lesson on assimilation, for those who are listening to us. A better job of causing a people to disappear could not be done than the job Canada did with the Indians, with the first peoples. That much is clear. The reason some of them survive today is certainly not down to the governments that came one after another; it is because the aboriginal people had great resilience.

In 1850, the first statutory definition of “Sauvages” was inclusive, that is not me saying it, we have to go back to the Act for the Better Protection of the Lands and Property of Indians in Lower Canada, Statutes of Canada 1850, chapter 42. The Indians’ land was taken, and it was the federal government that flatly declared itself the trustee. But there were quite a lot of Indians. A way had to be found for there to be fewer of them.

A law passed in 1869 brought in the first provision under which the marriage of an Indian woman to a non-Indian resulted in the woman and her children losing status. A man retained all his rights and powers, while a woman who married a white man lost all her rights. And that has been the case since 1850.

The Bloc wants to speak out against that situation in the House. Over the next few months, we will try to find solutions. They will not be easy solutions, because the aboriginal peoples of Canada have been the victims of discrimination and assimilation in recent years.

It was in 1951 that an attempt was finally made to incorporate the double mother rule, under which a person who was registered at birth lost their status and their band membership at the age of 21 if their parents had married after the Indian Act came into force, in September 1951, and if their mother and father’s mother had gained status solely by marriage.

In other words, there was no problem if a man married a white woman, if an Indian man married an Indian woman and if an Indian man married a white woman. But if an Indian woman married a white man, she lost all her rights. That is what happened.

As far as I know, it is still women who bear children. Unless and until that changes, very clearly it is women who will be victims of discrimination under the Indian Act. That is still the case today and it will still be the case in the future, even if Bill C-3 is passed.

We are going to solve the problem in committee. We agree that the bill should be studied in committee.

Sometime last year, the House passed Bill C-21 to repeal section 67 of the Indian Act, which states that the Canadian Human Rights Act does not apply on reserve. That was impressive. Under Bill C-21, as of June 2011, the Canadian Human Rights Act will apply to aboriginal communities. Bill C-3 will add to the rights of women in these communities.

I hope that the government will see the light and adopt the UN Declaration on the Rights of Indigenous Peoples. I hope this will happen in my lifetime and during Mr. Speaker's tenure. Sadly, for the time being, we are nowhere near seeing this happen.

What is the McIvor decision? It is not very complicated. I have mentioned the milestones of the Indian Act. There was 1869, and then 1951. Another very important date after 1951 was 1985. That year, the Liberals, who thought they were so clever, introduced Bill C-31. The government at the time had a strong majority, and thus it was able to pass this legislation, which took effect in 1985. The problem is that Bill C-31, as it was passed, did not solve the problems.

Bill C-31 was supposed to remove discrimination, restore Indian status and ties to the band, that is membership rights, and enable bands to take charge of the status of their members on their own. Then the dispute started because, as they say, “The devil is in the details”, “Le diable est dans les détails” or, as you might sometimes hear in Quebec, “Le yâble est dans les détails”. I cannot wait to hear what the translators will do with that. So the “yâble” is in the details.

An hon. member: Le diable!

M. Marc Lemay: I said “le yâble” not “le diable”. That would be too easy to translate. So this was a very exceptional situation and the problem was still not fixed. Not only was the problem not fixed, but others were created. Basically, bands were given control over the status of their members. Bill C-31 gave bands some powers, but you had to belong to one.

So why would you want to register as an Indian? This is an extremely important concept. Indian registration is indeed the first step in gaining not only Indian status, but also peer recognition in the community. Membership is a very important concept, as it entitles individuals to live on reserve, participate in political processes such as the election of band chiefs, own property on reserve and share band resources. It permits recognition of one's origins and the practice of one's culture. And that is the problem.

Bill C-31 was passed in 1985 and that is when the problems began. Ms. McIvor is one of its victims. It is the reason we are discussing this in Parliament. She went to the courts. She found, she still finds and I hope that she will always find the double standard to be discriminatory. I do not want to go into technical details, but the double standard is found in subsections 6(1), 6(2) and 6(3) of the Indian Act. To sum up, nothing changed. If an Indian woman marries a white, she loses all her rights. Bill C-31 did not fix this problem. It upheld it. However, a limit was set. If the woman was born before 1951, she had the right to Indian status. If she was born after 1951, she did not have that right.

So what happened? Ms. McIvor took it to the British Columbia Court of Appeal. As we speak, a dozen or so of these complaints are before the courts in various jurisdictions across Canada, including one or two similar cases currently before Quebec courts. The fundamental argument is that we must put an end to the discrimination that exists when an Indian woman marries a non-Indian man. The operative word is “marriage”. Indeed, in the Indian Act, there is no mention of couples. So under that piece of legislation, if a couple lives together without being married, any children born to the couple are illegitimate. Bill C-3, which we are debating here today, does not address that issue. It always talks about marriage.

As soon as an Indian woman marries a non-Indian man, she loses all her rights. She will not get them back under Bill C-3.

So Ms. McIvor took her case to the British Columbia Supreme Court, which ruled in her favour. The federal government appealed the decision before the Federal Court, and the case was then heard by the Federal Court of Appeal.

On April 6, 2009, the Federal Court of Appeal ruled that section 6 of the Indian Act is discriminatory and that the government had to take steps to correct the situation. That is why we are currently examining the Sharon McIvor bill, that is, Bill C-3, to amend the Indian Act.

The problem is that it does not correct the situation. In 1985, regarding the changes proposed by Bill C-31, the government was asked how many new aboriginal people would be registered. It estimated that approximately 56,800 people would become new members of aboriginal communities.

Unfortunately for the government, on December 31, 2000, 114,000 people obtained Indian status, which helped stop assimilation. In the event this bill is passed, how many new aboriginal people will be registered? The government is unable to answer that question.

The worst answer came from departmental officials. For now, INAC estimates there will be roughly 40,000 or 45,000 new people, but the majority probably live off reserve. It is the “but” that is important here. Even if Indian status is given to new people who live off reserve, they will probably be assimilated, like many aboriginals living off reserve and in big cities.

Today, the question is whether there is enough money to include these new people. We do not know and that is worrisome. The federal government has frozen the annual budget increase for aboriginal people at 2%. There will be a serious problem when Bill C-3 comes into force.

We will see the reaction of aboriginals appearing before committee. The Bloc Québécois will ask that it be mostly women because they are the ones being discriminated against. With all due respect, the men have not lost anything. Initially, large band councils were headed by women. The Indian Act put an end to the passing on of tradition by women.

I will stop here, but if the House gave me permission to continue for another 10 minutes, I would be very happy.


Mr. John Duncan (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development, CPC):
Mr. Speaker, I will ask the member for Abitibi—Témiscamingue a question that will give him an opportunity to speak some more, because I know he has not had a full opportunity.

I will mention a couple of things and ask a question.

First, there was not a lot talked about in either of the previous two speeches by the members for Nanaimo—Cowichan and Abitibi—Témiscamingue, but there is an exploratory process that goes beyond this legislation that has been announced. That has sent the right message on the other issues that keep creeping in, which is registration, membership and citizenship issues, a broad range of issues that the bill brings to the floor.

I would also like to make a comment. The member for Nanaimo—Cowichan talked about how we were dealing piecemeal with the Indian Act. In full recognition of that, the legislation is addressing a narrow court decision, but what we have also discovered is that one size does not fit all.

Finally, the member for Abitibi—Témiscamingue made reference to Mary Hurley, our committee researcher. I would like to think the other members of the committee would join with us in congratulating her on her work. She is in her last week. I understand she is retiring this week, so special significance and special recognition to her. We wish her a long, prosperous and healthy retirement.

The Acting Speaker (Mr. Barry Devolin):
I would join the member in those sentiments.

The hon. member for Abitibi—Témiscamingue.


Mr. Marc Lemay:
Mr. Speaker, am I to understand that the Parliamentary Secretary to the Minister of Indian Affairs and Northern Development agrees with my colleagues that I should keep talking for 10 more minutes? No? Oh well, it was worth a try.

I agree with my colleague. There have been pseudo-consultations. With respect, I would add that I am not sure that the Supreme Court Act required the government to hold broad consultations. Nevertheless, I hope that the government is not expecting this bill to pass quickly, certainly not before Easter. That will not happen. It may pass before Easter 2011, but certainly not before Easter 2010. We want to hear from women. I hope that many women's groups are listening today. I would invite aboriginal women who have been negatively affected by this unfair, arbitrary and discriminatory law to talk to committee members about what they would like to see happen.


Ms. Jean Crowder (Nanaimo—Cowichan, NDP):
Mr. Speaker, the member for Abitibi—Témiscamingue gave a very thorough speech. It is no surprise that I have a couple of questions for him in reference to the process that has been set out for some sort of consultation. As always, the devil is in the details.

At this point, it is whether it will be the kind of process that was done with matrimonial real property. A report tabled by Wendy Grant-John outlined some processes around consultation and they were promptly disregarded.

There are a couple of other thorny parts around what is being disregarded. Clatworthy, back in 2001, identified the fact that the contribution of unstated paternity was a factor in determining membership. The presumption is if the woman does not identify who the father is, that he is non-status, that has accelerated the non-status position. That problem is not dealt with in this legislation.

The second one is around resources. We know the resourcing issue is critical to allow bands to deal with people who could potential regain status. Could the member elaborate on the issues around resources.


Mr. Marc Lemay:
Mr. Speaker, I would like to thank my colleague.

Quite humbly, I must say that I do not know who would be entitled. That will be a priority issue when the committee begins its study of Bill C-3 and its application.

Women's rights were compromised by Bill C-31 in 1986 and especially by the 1951 Indian Act. We must not let that happen again. The problem started in 1951. I know, that is an important year—it is the year I was born—but that year some problems made their way into the Indian Act, and governments have been trying to fix those problems ever since. I hope that this government will find the resources and give aboriginal peoples a chance to make progress. Many aboriginal people will go back to the reserves. These are people who have always wanted to go back but cannot because the reserves do not have adequate funding to accept them. Let us hope that Bill C-3 will make it possible for people to go back to the reserves.

Ms. Paule Brunelle (Trois-Rivières, BQ):
Mr. Speaker, I would like to congratulate my colleague for making us aware of this issue. When I was the critic of the status of women in 2004-05, I was truly struck by the plight of aboriginal women. These women truly experienced extreme violence. It is disturbing that a bill such as this heaps more discrimination on them. We wonder how they will find a way to turn things around.

This is the first I have heard about the bill. My colleague spoke of the loss of privileges when an aboriginal woman marries a white man. Can he give concrete examples? What are these privileges?


Mr. Marc Lemay:
Mr. Speaker, I thank my colleague from Trois-Rivières. An Indian woman who marries a white man loses all her rights. This means that she is no longer a band member and she is thrown out of the band. She has to leave the area and generally, she and her children are literally—and I do mean literally—removed forcibly from the reserve. That has happened. Therefore, she is no longer an Indian within the meaning of the Indian Act. She cannot own property on the reserve. She and her husband cannot own a house. They are expelled from the reserve.

That has happened in Quebec. It has actually started happening again with the Mohawks. It has happened in a number of other communities. There is a shortage of land. If a woman is not an Indian under the law, she is turned out. She loses her rights, her children lose all their rights under the Indian Act, that is, the right to be recognized. What is worse, they lose their culture. When you are expelled you have no rights. You are on the outside.

You would not believe that this could happen in Canada. However, that is exactly what has happened to aboriginal women over the past century and it is unacceptable. Women had power because tradition was passed on by women, by mothers. Overnight, they had their rights trampled on. This was confirmed in 1951 and in 1985. Let us hope that this is not the case when we have finished studying Bill C-3.


The Acting Speaker (Mr. Barry Devolin):
Is the House ready for the question?

Some hon. members: Question.

The Acting Speaker (Mr. Barry Devolin): The question is on the motion. Is it the pleasure of the House to adopt the motion?

Some hon. members: Agreed.

The Acting Speaker (Mr. Barry Devolin): The motion is carried. Accordingly the bill stands referred to the Standing Committee on Aboriginal Affairs and Northern Development.

(Bill read the second time and referred to a committee)
- - -

Also of interest on this topic . . .

Determining citizenship
viewtopic.php?p=11119#p11119

Bill C-3 Creates More Discrimination than it Remedies
http://nonstatusindian.blogspot.com/

[admin]

Bill C-3 – Gender Equity in Indian Registration Act

NATIONAL ABORIGINAL LAW SECTION CANADIAN BAR ASSOCIATION
April 2010

PREFACE
The Canadian Bar Association is a national association representing 37,000 jurists, including lawyers, notaries, law teachers and students across Canada. The Association's primary objectives include improvement in the law and in the administration of justice.

This submission was prepared by the National Aboriginal Law Section of the Canadian Bar Association, with assistance from the Legislation and Law Reform Directorate at the National Office. The submission has been reviewed by the Legislation and Law Reform Committee and approved as a public statement of the National Aboriginal Law Section of the Canadian Bar Association.

http://www.scribd.com/doc/30571864/Bill-C-3-%E2%80%93-Gender-Equity-in-Indian-Registration-Act

TABLE OF CONTENTS
Bill C-3 – Gender Equity in Indian Registration Act
I. INTRODUCTION ............................................................................... 1
II. BILL C-31 AND SHARON McIVOR ..................................................... 1
III. TRIAL DECISION ................................................................................ 2
IV. APPEAL DECISION ............................................................................ 2
V. SUPREME COURT OF CANADA........................................................ 4
VI. GOVERNMENT RESPONSE ............................................................... 4
VII. EXISTING REGISTRANTS ................................................................... 6
VIII. BAND MEMBERSHIP ......................................................................... 7
IX. CONTINUING DISCRIMINATION ...................................................... 7

Bill C-3 – Gender Equity in
Indian Registration Act
I. INTRODUCTION
The Canadian Bar Association’s National Aboriginal Law Section (CBA Section) appreciates the opportunity to comment on Bill C-3, the Gender Equity in Indian Registration Act, which was given first reading on March 11, 2010. Bill C-3 responds to the British Columbia Court of Appeal decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).1

The Bill represents the first time in twenty-five years that Parliament has considered the registration provisions of the Indian Act. 2 The CBA Section asks whether Bill C-3 would actually promote gender equality in Indian registration. Our answer is sort of, but not quite.

II. BILL C-31 AND SHARON McIVOR
In 1985, Bill C-313 amended the Indian Act to provide equal treatment of male and female Indians prospectively for entitlement to registration as a status Indian. Bill C-31 was directed at removing discrimination against women in the Indian Act registration provisions. Since then, all registered Indians have been subject to the “second generation cut-off rule” which occurs as a result of two successive generations of parenting with non-Indians of either sex. However, the Act’s gender discrimination was not fully remedied by Bill C-31.

Sharon McIvor was born in 1948, and was not a registered Indian. She married a non-Indian, Charles Grismer, in 1970. Ms. McIvor believed she was not entitled to status under the earlier legislation, because she understood that neither of her parents was entitled to status: both were children of non-Indian fathers. Ms. McIvor would, in any event, have lost her right to status under the former section 12(1)(b) when she married a non-Indian.

Bill C-31, sections 6(1) and 6(2) came into force in 1985. That September, Ms. McIvor applied under the amended legislation for Indian status on behalf of herself and her children. The application took years to resolve. Eventually, she obtained status under section 6(1)(c) and her son, Jacob Grismer, born before 1985, obtained Indian status under section 6(2). However, because Jacob Grismer’s wife was not a status Indian, he was unable to pass his status to his children.
Ms. McIvor and Mr. Grismer confronted the “second generation cut-off” rule before male Indians who married and had children with non-Indians prior to 1985. They challenged the 1985 amendments to the Indian Act, specifically section 6, on the basis that the status provisions contained residual discrimination on the basis of sex.

III. TRIAL DECISION
At trial,4 the judge held that section 6 of the Indian Act violated the equality rights of Sharon McIvor and Jacob Grismer under equality guarantees in section 15 of the Charter. The equal benefit of law at issue is the right to transmit Indian status and cultural identity to future generations. Individuals like Ms. McIvor and Mr. Grismer face the “second generation cut-off” rule one generation sooner than male Indians who married and had children with non-Indians prior to 1985.
The trial judge ruled the relevant sections of the Indian Act unconstitutional, and made an order granting the right to Indian status to anyone with a female ancestor who had lost her status upon marriage to a non-Indian. The judge refused to grant a stay to allow Parliament time to figure out what to do, and instead fashioned a broad complex remedy to alleviate the Act’s sex discrimination.

IV. APPEAL DECISION
The Government of Canada appealed the trial decision, and the appeal was allowed in part. The BC Court of Appeal found that the trial judge erred in granting a remedy founded on discrimination on the basis of matrilineal descent. The Court found that the proper ground of
discrimination was sex because the 1985 amendments granted some descendants of men ongoing advantages over similarly placed descendants of women.

However, the BC Court of Appeal also found discrimination on a much narrower basis than did the trial judge. Under section 12(1)(a)(iv) of the former legislation, a grandchild of the hypothetical brother of Ms. McIvor would have lost Indian status at age 21 (the “Double Mother Rule”). Under the 1985 legislation, the hypothetical brother’s grandchildren would have Indian status under section 6(1)(c) or 6(2) and be able to transmit status to any children that they have with persons with status.
Ms. McIvor’s grandchildren, on the other hand, have no entitlement to Indian status. Thus, the BC Court of Appeal found that sections 6(1)(a) and 6(1)(c) of the Indian Act violate the Charter only to the extent that they grant individuals to whom the Double Mother Rule applied greater rights than they would have had under section 12(1)(a)(iv) of the former legislation. In essence, the court held that Bill C-31 effectively went beyond preserving rights by enhancing the right to transmit status to those who formerly lost status under the Double Mother Rule.

The BC Court of Appeal also held that the trial judge erred in defining the extent of the Charter violation, as the effect of the trial decision would be to apply section 15 of the Charter retrospectively. According to Justice Groberman, the trial judge had considered it necessary to redress all discrimination that occurred prior to 1985 and would have granted Indian status to all individuals who could show that somewhere in their ancestry there was a person who had lost Indian status by virtue of being a woman married to a non-Indian.

The BC Court of Appeal narrowed the scope of a section15 infringement, but also held that the infringement was not justified by section 1 of the Charter. While the Court recognized the need to preserve vested rights of those who have status as a pressing and substantial governmental objective justifying the legislation, it held that Bill C-31 did not minimally impair the equality rights of the plaintiffs. Accordingly, it was not saved by section 1.
As a result of this Charter violation, the BC Court of Appeal declared on April 9, 2009 that sections 6(1)(a) and 6(1)(c) of the Indian Act are of no force and effect. Significantly, the BC Court of Appeal refused to “read in” provisions to overcome the discrimination as the trial judge had done in the decision below. By doing so, the court eliminated not only section
6(1)(c), by which many Aboriginal women regained their status as Indians (specifically, those who had married non-Indians before 1985) but also section 6(1)(a), under which many Aboriginal men, women and children had their pre-1985 Indian status recognized and continued post-1985. The only Indians who appear to keep their status under the judgment are: members of new Indian bands since 1985 (section 6(1)(b)), Indian men, their wives and children, who were enfranchised by Minister’s order before 1985 (section 6(1)(d)), the rare cases of those who lost status pre-1985 for becoming professionals or leaving the country (section 6(1)(e)) and the children of one or two such individuals (section 6(1)(f), section 6(2)).

However, the BC Court of Appeal suspended the effect of its judgment for 12 months to allow Parliament to respond to the declaration with a legislative remedy.
V. SUPREME COURT OF CANADA

On June 2, 2009, the federal government announced that it would not seek leave to appeal to the Supreme Court of Canada. Instead, it proceeded with legislative amendments and indicated a willingness to work with First Nations’ organizations to “facilitate the necessary bill”.
On June 4, 2009, Sharon McIvor filed an application seeking leave to appeal to the Supreme Court of Canada. On November 5, 2009, the Supreme Court denied leave to appeal.

VI. GOVERNMENT RESPONSE
The federal government scheduled several sessions with national and regional Aboriginal organizations and accepted written comments prior to Parliament’s introduction of Bill C-3, Gender Equity in Indian Registration Act. The federal government also brought a motion before the BC Court of Appeal to extend the April 2010 deadline for re-enacting provisions to July 5, 2010 or whenever the bill comes into force, whichever is sooner. On April 1, 2010, the court granted the motion, extending the suspension to July 5, 2010.5
5 McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 168, paragraphs 11 and 19. Interestingly, the court did not grant immediate registration to Mr. Grismer’s two children as a condition of the extension, as requested by the respondents. The court held that this was not a case which demanded “a special personalized order”: paragraph 18.

The main amendment proposed in Bill C-3 is the addition of section 6(1)(c.1) to the Indian Act, that would provide status to any individual: whose mother lost Indian status upon marrying a non-Indian man, whose father is a non-Indian, who was born after the mother lost Indian status but before April 17, 1985, unless the individual's parents married each other prior to that date, and who had a child with a non-Indian on or after September 4, 1951.

Section 6(1)(c.1) would apply to individuals currently registered, or entitled to be registered, under section 6(2) who meet the above criteria.6 New registration would be available to the children of individuals covered by section 6(1)(c.1) (whether born before, on, or after September 4, 1951) under section 6(2).

However, it is puzzling that under the proposed section 6(1)(c.1)(iv), one must have a child before being eligible for registration under section 6(1)(c.1).7 In our view, a person should have status according to ancestry, rather than whether that person has parented a child. The proposal in Bill C-3 would generate administrative inefficiencies, as a person eligible for registration under section 6(1)(c.1) will have to apply not only for registration of his or her child but also to change his or her own registration from section 6(2) to 6(1)(c.1) so the child may be registered. This is especially true where the section 6(1)(c.1) person has parented a child with a non-Indian.

RECOMMENDATION
The CBA Section recommends that section 2(3) of the Bill be amended to remove the proposed addition of section 6(1)(c.1)(iv) to the Indian Act.
New registration under section 6(2) will be available to individuals meeting all of the following criteria: whose grandmother lost Indian status as a result of marrying a non-Indian, who has one parent currently registered, or entitled to be registered, under sub-section 6(2) of the Indian Act, and who was born on or after September 4, 1951.

VII. EXISTING REGISTRANTS
The proposed amendments in Bill C-3 would re-enact provisions struck down by the Court of Appeal, specifically sections 6(1)(a) and 6(1)(c).
The Bill would come into force, or be deemed to come into force, on a day on or after April 5, 2010, to be fixed by order of the Governor in Council. This would protect the entitlement to registration of persons registered or entitled to be registered under those sections, so that no one would lose their registration as an Indian as a result of these amendments.

Section 9 is a concern, as it would remove the right of anyone to sue the federal government for not providing them with status as a result of the gender discrimination addressed by the Bill. If the federal government can be presumed to have been aware that Bill C-31 was not consistent with the Charter as far back as 1985, and did not act for over twenty years until the McIvor decision reached the BC Court of Appeal, the CBA Section is concerned with the justice of such a “no liability” provision. Further, we caution that including such a provision could make the Bill vulnerable to further Charter challenges.

RECOMMENDATION
The CBA Section recommends that section 9 be removed from Bill C-3.

VIII. BAND MEMBERSHIP
For bands where membership is determined by Indian and Northern Affairs Canada under section 11 of the Indian Act, applicants would be added to the band list at the time of registration. For bands that have assumed control of their membership under section 10 of the Indian Act, the applicant’s membership will be determined by rules adopted by the band.
Bill C-3 fails to provide additional resources to First Nations to address an influx of persons with status, particularly section 11 bands. The absence of funding is regrettable, in light of the federal government’s estimates that up to 42,850 individuals may be able to change their status from section 6(2) to section 6(1), and up to 39, 763 individuals will be newly entitled to registration under section 6(2).8 This may invite some First Nations to adopt more restrictive membership codes, as occurred after the passage of Bill C-31 in 1985.

RECOMMENDATION
The CBA Section recommends that the federal government provide adequate funding to support First Nations whose memberships will increase as a result of Bill C-3.

IX. CONTINUING DISCRIMINATION
Unfortunately, Bill C-3 would not completely eliminate discrimination from the registration provisions of the Indian Act. The proposals do not address discriminatory aspects of the “second generation cut-off rule” enacted in 1985, which the parties and the court studiously avoided in the McIvor case.

Perhaps more important, Bill C-3 would not sufficiently address the source of discrimination identified by the BC Court of Appeal; sections 6(1)(a) and 6(1)(c) violate the Charter to the extent that they grant individuals to whom the “Double Mother Rule” applied greater rights than they would have had under the former legislation. The chart below shows how Double Mother re-instatees would still have “better status” than those in the comparator group, even following the proposed amendments in Bill C-3.

Bill C-3 would eliminate gender discrimination, but only for some individuals. As the chart demonstrates, others would continue to suffer discrimination by receiving lesser or no status because they had an Indian grandmother, instead of an Indian grandfather. A grandchild born before 1985 descended from an Indian grandfather would be able to transmit status for one generation longer than those descended from an Indian grandmother.

The CBA Section recommends that Parliament take the opportunity provided by the McIvor decision to fully eradicate gender inequality in the registration provisions of the Indian Act, rather than simply follow the letter of the law outlined in the BC Court of Appeal decision. For example, Bill C-3 would be improved by an amendment so that a grandchild born before 1985 with a female grandparent would receive the same entitlement to status as a grandchild of a male grandparent born in the same period.

RECOMMENDATION
The CBA Section recommends that Parliament take this opportunity to fully eradicate gender inequality in the registration provisions of the Indian Act. For example, the Bill would be improved by amending section 2(3) of Bill C-3 to add to section 6(1) to the Indian Act:
(c.2) that person is a child born after September 4, 1951 and before April 17, 1985 of a parent entitled to be registered under section 6(1)(c.1).



Footnotes:
1 2009 BCCA 153.

2 R.S.C. 1985 c.I-5 (Indian Act).

3 An Act to Amend the Indian Act, S.C. 1985, c.27 (Bill C-31).

4 McIvor v. Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 827.

5 McIvor v. Canada (Registrar of Indian and Northern Affairs), 2010 BCCA 168, paragraphs 11 and 19. Interestingly, the court did not grant immediate registration to Mr. Grismer’s two children as a condition of the extension, as requested by the respondents. The court held that this was not a case which demanded “a special personalized order”: paragraph 18.

6 There are many people registered under section 6(2) who were registered post-1985 because they were not registered earlier for reasons other than gender discrimination. One of those reasons had to do with adoption. In the 1960s and 70s, numerous First Nation children were adopted out but were not registered as Indians. After 1985, they were registered as Indians but under section 6(2). In many of those cases, their mothers still had status at the time of the children’s birth and so after 1985 were reinstated because they were entitled to be registered at their birth but were not. However, they were given the same lesser status – namely section 6(2). Bill C-3 would not provide any benefit to those people who were given section 6(2) status for reasons different from the McIvor case. Unless a person meets all of the criteria, they are left out.

7 This raises a potential concern for “family status” discrimination, in that some people will only be “bumped up” from section 6(2) to 6(1) status if they parent a child. This may affect people whose band membership code denies membership to Indians registered under section 6(2) and also in communities where there is a certain stigma associated with having section 6(2) status rather than section 6(1).

8 Estimates of Demographic Implications from Indian Registration Amendments: McIvor v. Canada (Indian and Northern Affairs Canada) (Ottawa: Minister of Public Works and Government Services Canada, March 2010).

9 This was the situation in McIvor.

[admin]

Liberal Party amendments would ensure full equality for First Nations women

For Immediate Release
April 29, 2010

OTTAWA – The Liberal Party was successful in passing an amendment to Bill C-3 at a committee this week that will ensure that Parliament, once and for all, eradicates gender discrimination under the Indian Act’s provisions concerning entitlement to status.

The amendment passed at the Aboriginal Affairs Committee, despite Conservative members voting against it – showing once again the Harper government’s penchant for treating Canada’s First Nations women as second-class citizens, Liberal MPs said today.

”The Harper government has denied all attempts to eradicate this gender discrimination – just as they have spent four years ignoring pleas for a full investigation into the hundreds of murdered or missing Aboriginal women and girls,” said Liberal Aboriginal Affairs Critic Todd Russell. “Clearly, they don’t view First Nations women as worthy of their attention.

“Our amendment guarantees gender equity in the Indian Act by ensuring that no descendent of a status woman is relegated to lesser status, or no status whatsoever. We are calling on the government to support this when it comes to a full vote in the House.”

The Liberal amendment to Bill C-3 addresses the long-standing injustice that has denied some direct descendants of First Nations women the entitlement to full status under the Indian Act. Direct descendants of status men born before April 17, 1985, have always had full entitlement to status, but the descendents of status women who married non-status men, and those that were born out of wedlock, are discriminated against simply because they descend from a woman.

Bill C-3 responds to a court ruling in the 25-year fight by Sharon McIvor against the government of Canada, but does the bare minimum required. The grandchildren of status women who married non-status men, born between September 4, 1951 and April 17, 1985, would gain status under the legislation, but other gender discrimination would remain.

“The Harper government has refused to eliminate all residual discrimination, first by appealing the initial Court ruling in the McIvor case, then by shutting down debate in the House on a motion that would have expanded the scope of Bill C-3, and finally by voting against our proposed amendment in committee,” said Liberal Status of Women Critic Anita Neville.

“They have gone to great lengths to write this bill in the narrowest possible terms. The way it is now, some descendants of status women would become more equal than others. If they do not support our amendment, it means continued gender discrimination for First Nations women.”

The Liberal amendment to Bill C-3 responds to unanimous testimony at the Committee, which called on Parliament to amend the bill to remove all residual gender discrimination.

“The Conservative government must respect the voices of witnesses, including Sharon McIvor and national and regional Aboriginal organizations like the Assembly of First Nations and Native Women’s Association of Canada, and stop its denial of gender equality,” said Mr. Russell.

-30-

Contact:
Office of Todd Russell, MP, 613-996-4630
Office of Hon. Anita Neville, MP, 613-992-9475

Standing Committee on Aboriginal Affairs and Northern Development
EVIDENCE
Tuesday, April 27, 2010

Mr. Todd Russell (Labrador, Lib.):

I understand that each committee member has been provided a copy of the proposed amendment.

I move that Bill C-3, in clause 2, be amended by adding after line 16 on page 1 the following:

(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;

In proposing this particular amendment, we certainly consulted with those who had been before the committee and those who could provide some advice or some clarity on this particular amendment. This particular amendment proposes to respond to the vast majority of the witnesses, if not all of the witnesses, who indicated that there would be residual discrimination based on what was in Bill C-3. So finding an amendment that satisfies the grievances of those who appeared before us and trying to be all-encompassing when it comes to removing a residual discrimination, this is the amendment we came up with.

The effect of our amendment is to make entitlement to paragraph 6(1)(a) status totally non-discriminatory. That would be the effect, the basic impact, of this particular amendment.

Some will say, and probably rightly so, that this is more reflective of what was in the Supreme Court of B.C.'s ruling and not as reflective, maybe, of what was in the B.C. Court of Appeal's ruling, which was much narrower. But we've always made the argument that in fact the government had the ability to respond in the way it so chose to respond to the B.C. Court of Appeal's decision. So we feel that this is a way to respond effectively and efficiently to the pleas of witnesses, particularly Sharon McIvor, who came before this committee and whose long battle and whose court case has helped lay before us Bill C-3.

That's what I will say to this particular amendment, Mr. Chair.

The Chair:
Thank you, Mr. Russell.

I'm sure the admissibility question is going to be considerable, as most members would acknowledge, particularly on the Bill C-3 amendments that have been proposed. However, on the amendment proposed by Mr. Russell that's in front of us, before I get to the ruling, I just want to ask about this, because it would have implications if this amendment were adopted for this bill. It would in fact have more far-reaching implications, including the other amendments that are before us today. In lay terms, it would engulf many of the other amendments that have been proposed and would be considered by the committee.

So I'd like to ask Mr. Reiher if he could, in this particular instance, speak to the implications that this amendment would have, not just in respect to the amendments we have in front of us, but even to the very structure of Bill C-3 and what it proposes.

Mr. Martin Reiher (Senior Counsel, Operations and Programs Section, Department of Justice):
Thank you, Mr. Chair.

Indeed this amendment would take a radically different approach from the one that is taken in Bill C-3. This would amend paragraph 6(1)(a) of the Indian Act, which basically was the provision allowing the registration after 1985 of all the individuals who were previously entitled to registration. The amendment would allow any person born before April 17, 1985, to be registered under paragraph 6(1)(a) of the Indian Act if that person was able to identify an ancestor who was, at the time of his or her death, entitled to be registered, which obviously increases significantly the number of persons entitled to registration under the Indian Act.

I would point out that I'm not clear personally on the purpose of the last three and a half lines of the proposed amendment, which read, “or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f)”.

This is a reference to the previous act and not to the current legislation. Individuals who were entitled to be registered under section 11 of the previous act are actually covered by paragraph 6(1)(a). So to my understanding--
next intervention previous intervention

The Chair:
As a point of clarification, when you say “the previous act”, it's the act as it existed before 1985.
next intervention previous intervention

Mr. Martin Reiher:
Thank you, yes.

I would just point out that these words, the words following from line 3 of the proposed amendment—“or of a person”, etc.—would appear to be unnecessary to achieve the goal of this amendment.

That said, this is simply to point out a difficulty with this specific amendment, but in terms of the impact, I think I've described the impact of the amendment.
next intervention previous intervention

The Chair:
Perhaps as a follow-up question—I just want to get this and then I'll go back to Mr. Russell—what effect would this amendment have on those persons who are now registered under subsection 6(1) categories under the Indian Act? In a way, this is extending paragraph 6(1)(a) status to a group, but in what way would that affect people who are registered in different categories, if at all?

Mr. Martin Reiher:
I believe individuals who are currently entitled to registration under one provision of subsection 6(1) would maintain their entitlement and would potentially gain an additional entitlement. There might be dual entitlement for many individuals. This is obviously something that we try to avoid when we develop legislation, but that would presumably not result in the loss of entitlement to individuals.

There's one thing I would like to point out in terms of the logic of the Indian Act. This amendment, because it goes back in the past, would actually have the result not only of allowing the registration of descendants of Indian women who lost status upon marrying a man, but also, for example, individuals who took scrip in the past and their descendants, which was another rule.

You know, scrip was a certificate provided to Métis people. They could choose to receive money instead of being covered by treaties. Thereafter, they could no longer be considered Indians, and their descendants the same. In this case, their descendants would become entitled to registration.

The Chair:
Okay.

Mr. Russell.


Mr. Todd Russell:
As to impact, I think the testimony before the committee by Mr. Gray and Mr. Reiher was that it's hard for the department to quantify or qualify impact, because it's on an individual basis. That particular argument was made when we asked what the financial implications would be.

The department could not quantify the impact in terms of exactly how many people we might get, because it's on an individual basis. While this would probably allow more individuals to apply for registration, I think the same argument would hold: that the department does not really know. It just expands the category of eligibility, but if the department couldn't quantify for Bill C-3, I don't hear anybody saying that they could either quantify or qualify it for this particular amendment.

I might be wrong, but I certainly would like to hear what the department says, because when we asked questions on Bill C-3, that was the answer I received.


The Chair:
All right. Thank you both for clearing that up.

Thank you, Mr. Russell, for your proposed amendment under clause 2.

I would like to give the ruling now on this particular amendment.

[Translation]

Bill C-3 amends the Indian Act by specifying a new right of registration in response to the McIvor v. Canada case. The amendment seeks to amend the act by specifying an additional right for children born prior to April 17, 1985 of a parent registered under paragraph 6(1) (a) or subsection 11(1) as it read before April 17, 1985.

[English]

House of Commons Procedure and Practice, second edition, reads on page 766 as follows: “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.” Therefore, in the opinion of the chair the introduction of the additional entitlement to registration under this amendment is a new concept that is beyond the scope of Bill C-3 and is therefore inadmissible.

Members, we'll have to move on to the next—

Hon. Larry Bagnell (Yukon, Lib.):
Mr. Chair, can I just ask a point of clarification?

The Chair:
Mr. Bagnell, yes.

Hon. Larry Bagnell:
If the bill is titled “gender equity in Indian registration” and the amendment is just making for “gender equity in registration”, how is it incompatible?

The Chair:
Principally it's because under the Standing Orders there is no ability for the committee to expand the scope or the application of the law beyond the scope that is given and provided in the bill.

I could perhaps turn to Mr. Cole. He might want to expand on that idea. Mr. Cole, as members will know, is the legislative clerk who has been assigned to this committee.

Mr. Cole, do you want to...?

Mr. Wayne Cole (Procedural Clerk):
The bill seeks to respond to the decision of the court of appeal in the McIvor case, and the provisions of the bill, as approved by the House at second reading, are limited strictly to making the necessary changes to the act. The advice has been given that attempts to extend that exceed the scope of the bill as it was approved by the House.
next intervention previous intervention

The Chair:
Mr. Russell.


Mr. Todd Russell:
There's no doubt around this committee table that we respect your particular position and the vast majority of the rulings that you have made, and we certainly respect the work of our legislative clerk. But on this issue, I think we would like to challenge the chair's ruling on this particular amendment, because it's necessary that we take every step possible to respond to the witnesses and to approach an amendment strategy that responds to the witnesses who came in unanimity before the committee.

From a procedural perspective, is a motion to challenge the chair the way that this has to be done? Is it open for debate? Can you give me some clarification on that?


The Chair:
The ruling is really not debatable. It's a member's prerogative if they wish to challenge the ruling of the chair. They can do that. At that point most chairs would typically seek to have an assertion of the chair's ruling. If that is overturned, then the amendment, insofar as our committee is concerned, can be debatable at that point.



Mr. Todd Russell:
With all due respect to you, I'd like to challenge your particular ruling on this particular amendment.


The Chair:
Okay, that being the case, I would seek a motion to maintain the chair's ruling.

Mr. John Duncan (Vancouver Island North, CPC):
I so move.


The Chair:
We need a decision on that.


Mr. John Duncan:
Could we have a recorded vote while we're at it?


The Chair:
We will have a recorded vote.

An hon. member: So the question is about the decision of the chair—

The Chair: The motion is to sustain the ruling of the chair.

(Ruling of the chair overturned: nays 6; yeas 5)

The Chair: This does pose an interesting question. It actually takes us back to our earlier discussion, that if this amendment were adopted—and I may have to seek some counsel from Mr. Cole on this question—it would effectively engulf the other amendments that we have before us, save and except two amendments to clause 3 proposed by Mr. Lemay and an amendment proposed by Ms. Crowder to clause 1. All of the other clause 2 amendments are, for all intents and purposes, negated by the adoption of this amendment.

At this point in time, we haven't adopted this amendment. It is, I assume, available now for discussion, because it has not been ruled inadmissible. But should this amendment be adopted by the committee, it does call into question the other amendments that we have, save and except those three.

I'll get to you, Ms. Crowder, in a second.

If members wish, we can proceed to consider debate on the amendment, but just keep in mind that we'll have to come back to this other question.

Ms. Crowder.

Ms. Jean Crowder (Nanaimo—Cowichan, NDP):
Could we take a five-minute recess?


The Chair:
It's up to the committee.

Is there agreement to suspend for five minutes?

Mr. John Duncan:
Do we have a rationale?


Ms. Jean Crowder:
Yes. Since this particular amendment would supersede all other proposed amendments to clause 2, I wouldn't mind a quick clarification with my colleagues on the opposition side.


The Chair:
Is that acceptable to members?


Mr. John Duncan:
If the opposition wants to have a five-minute caucus, I have no problem with that.


The Chair:
All right, we'll suspend for five minutes. We'll resume our meeting at 4 p.m.


The Chair:
We'll resume consideration now.

We'll now debate the amendment put forward by Mr. Russell, subsequent to the ruling on its admissibility being overturned. We'll now hear questions or comments on the amendment.

Mr. Duncan.

Mr. John Duncan:
This morning we had the debate on the motion from Jean Crowder in the House of Commons. There was quite a bit of discussion revolving around unintended consequences. I think we've just seen a classic example of unintended consequences. The opposition has tabled amendments. There was a lack of recognition that one of those amendments would usurp many of the other amendments. This is why I think this is the wrong venue in which to be trying to tinker with a very complex issue that courts have ruled on and that we're trying to respond to, and this is why we set up the exploratory process.

This amendment would certainly increase significantly those eligible for Indian status in Canada, in comparison with Bill C-3 as tabled. It goes much further than the Court of Appeal for British Columbia, so I think it's completely consistent with the chair's ruling that this is beyond the scope of the bill.

I don't know what more to say about it. This is about as broad an amendment as one could imagine. The unintended consequences go well beyond what any witness.... If this were what had been tabled in Bill C-3, we would have had a very different set of witnesses come before this committee, I can assure you. It is most inappropriate that we would even entertain something this broad.

The Chair:
Thank you, Mr. Duncan.

Mr. Russell.

Mr. Todd Russell:
Mr. Chair, I thank the parliamentary secretary for his comments and his acknowledgment that this would entitle a far greater number of people to be registered and not discriminated against. I think that's a fine acknowledgement on the part of the parliamentary secretary, which only speaks to the problems and the deficiencies in the bill before us, which is why we try an amendment strategy.

The reason we've introduced this is that the government has not responded in any way, shape, or form to much of the protest, if you want to put it that way, on the part of so many witnesses and on the part of parliamentarians such as us, and even most recently the motion that was put before the House this morning. I think that adequate offers were made and adequate avenues were open to the government. This amendment speaks to the fact that we had to respond in the most appropriate way we know how.

The parliamentary secretary speaks about unintended consequences. We knew very well that this particular amendment would engulf, to some extent, the other amendments that were coming before us. When it comes to consequences, I would only say that we had government witnesses come before us who really could not speak in any adequate way, shape, or form about the consequences of Bill C-3. So I doubt whether one can speak now with any more clarity about the consequences of this particular amendment that's before us.

The only consequence would be that more people would be entitled to register. It would end gender discrimination once and for all. To me, that is totally consistent with at least the principle of the bill, which was to extend or to try to eradicate some form of gender discrimination under the Indian Act. The argument here would be that the scope and principle go together and that you would have to deny both in order to deny at all.

I think it's totally consistent with what the government at least purports to do in Bill C-3.


The Chair:
Thank you, Mr. Russell.

Ms. Neville.

Hon. Anita Neville (Winnipeg South Centre, Lib.):
Thank you very much.

Mr. Chair, this is clearly a complex and very difficult bill, and it's difficult for everybody around this table. Whatever way we go is a no win. Whatever way we go there will be litigation. Whatever way we go there will be people who are dissatisfied. I have a great deal of difficulty, in this day and age, supporting any proposition, any amendment, that would consciously leave one group of people in this country less equal than others, and in this situation, it's clearly aboriginal women, or some aboriginal women and their children, who would be less equal than others.

I know Ms. Crowder's effort this morning to put the motion before Parliament was to deal with the issue in a manner that's respectful to all parties, to allow this committee to do its work.

I want to read into the record, because I think it came after we had hearings, a brief that came from LEAF, the Women's Legal Education and Action Fund, which has often been an intervenor on a number of equality cases at the Supreme Court. They say in their brief, and I hope you'll bear with me so I can read this:

The Government of Canada can and should amend the Indian Act to fully and finally eliminate sex discrimination from the status provisions. The Government of Canada is not limited to implementing only the remedy required by the British Columbia Court of Appeal in Mclvor v. Canada. The Court’s ruling in Mclvor does not create a “rigid constitutional template”. The Supreme Court has affirmed the role of Parliament to “build” on a Court’s ruling, particularly where the judicial scheme “can be improved” by the legislature. For example, in its decision in R. v. O’Connor in 1995, the Supreme Court of Canada laid down a procedure for the disclosure of confidential records of sexual assault complainants which purported to balance the equality rights of complainants and the rights of accused to full answer and defence. In 1997, Parliament enacted amendments to the Criminal Code which differed from the procedure delineated by the Court and which ostensibly went further to protect women’s equality rights and protect their confidential records from disclosure to those accused of sexually assaulting them. In upholding the new legislation in R. v. Mills in 1999, the Supreme Court of Canada emphasized the importance of Parliament building on the Court’s earlier decision in O’Connor.

Mr. Chair, as parliamentarians who have heard from a whole host of witnesses who are all aware of the inherent inequity in this bill and that there will be intended consequences of gender discrimination, gender inequality, I think it's incumbent upon us as legislators that we move forward with my colleague's amendment. I would hope that we would speak out with some unanimity on the reality of what gender equality means in this country.


The Chair:
Thank you, Ms. Neville.

Now we'll go to Mr. Rickford.

Mr. Greg Rickford (Kenora, CPC):
Thank you, Mr. Chair.

With the greatest of respect, what's incumbent upon legislatures is to be responsible. I'm going to speak quite frankly to members of the opposition who have not had as much Kool-Aid as others have and believe that this specific motion here is the direction we want to go. I think we should understand that this bill as it's written now responds to the McIvor decision. If we look at the second prong of this exercise, or this process, as the parliamentary secretary raised in debate today, it's important that we understand we should not make the same mistake that the lower court made. There were unintended consequences at that court. The court of appeal rightly confined the issue, and Bill C-3 responds to that. It deals urgently with more than 45,000 people to whom it will have application.

In my view, the exploratory process deals with the second part of this process, and that is to reconcile. We heard that theme consistently here. With the greatest of respect around the gender equity issue, we know that there are competing claims and a host of rights that are at stake here: first nations governance, capacity, issues around status or registration membership and citizenship.

I would have thought, frankly, that we would have been thinking about more refined amendments for discussion, debate, perhaps negotiation, rather than this blanket kind of thing that not only sets us up for unintended consequences but is not consistent with what we heard, more importantly, from the stakeholders. There continues to be debate and serious questions around the implications of something like this proposed amendment from Mr. Russell. What we did hear is a desire from stakeholders and witnesses to understand through another process how we can, or if we can, deal with some of the other issues that would arise as we expand this.

This government was committed to Bill C-3 as it's written because it deals with the court decision. That's the substantive part. As a matter of policy, we entertained ourselves with the very serious realization that a process would have to take place to see how this would go on implementation. That's the responsible way to go.

I urge members of the opposition who are thinking about supporting this amendment to understand that jeopardizing it by supporting this kind of amendment, as the language is now, puts the people who are contemplated by Bill C-3, as it stands right now, in jeopardy and disables and disarms some of the quality contributions we heard from stakeholders with respect to a host of other issues and rights that pose serious competing claims on what I believe, and we believe, should come from the first nation stakeholders themselves.

Thank you.



The Chair:
Thank you, Mr. Rickford.

I have no other speakers on the list. Is the committee ready for the question?


Mr. Todd Russell:
Yes.

(Amendment agreed to)

The Chair:
That brings us to additional amendments on clause 2.

In light of our earlier discussions in terms of the scope of the amendment that we just passed, I really should at this point defer to Ms. Crowder, who is up next in terms of her amendment, and this is in respect to the deletion of lines 32 through 35 on page 2 of Bill C-3.

Ms. Crowder, I'll put it over to you.


Ms. Jean Crowder:
I'll withdraw my amendment.


The Chair:
You wish to withdraw the amendment? Okay. That's fine.

[Translation]

Mr. Lemay, over to you.


Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
I ask for the amendment to be withdrawn.

[English]

The Chair:
Okay. So you choose to withdraw that as well.

That takes us to the second amendment proposed by Ms. Crowder, in respect to the creation of a new paragraph under 6(1) entitled (c.2).


Ms. Jean Crowder:
I'll withdraw my amendment.


The Chair:
Okay, the amendment is withdrawn.

[Translation]

Mr. Lemay, do you want to keep the amendment to clause 2?


Mr. Marc Lemay:
Is that BQ-2, Mr. Chair?


The Chair:
Yes.


Mr. Marc Lemay:
I ask for that amendment to be withdrawn.

[English]

The Chair:
Okay.

[Translation]

How about amendment BQ-3?


Mr. Marc Lemay:
I ask for it to be withdrawn.

[English]

The Chair:
Okay. So BQ-3 has been withdrawn by Mr. Lemay.

That brings us to amendment....This was circulated after the first set, this is

[Translation]

BQ-3.1.


Mr. Marc Lemay:
I ask for it to be withdrawn.


The Chair:
Okay. Amendment BQ-3.1.

[English]

is withdrawn.

Shall the amended clause 2 carry?

Mr. John Duncan:
I ask for a recorded vote, please.

The Chair:
Okay, a recorded vote.

(Clause 2 as amended agreed to: yeas 6; nays 5)


The Chair:
We'll now proceed to clause 3. Clause 3 is as presented. I note there will be an amendment to create an additional or a new clause, clause 3.1.

As I see it, we'll pose the question on the existing clause 3 and then we will go to the amendment to create the new clause.

Shall clause 3 carry?

Mr. Todd Russell:
Oui.

Mr. John Duncan:
Can you back up, please? Do we have amendments to clause 3?

[Translation]

The Chair:
Mr. Lemay has introduced a new clause. It is clause 3.1.

[English]

It's a new clause, so we'll actually ask the question on the existing clause 3. The effect of Mr. Lemay's amendment would be to create, in fact, a new clause. So that's a separate question. Okay?


Mr. John Duncan:
Okay.


The Chair:
Ms. Crowder.


Ms. Jean Crowder:
Can I ask for clarification from the department? Given the amendment we just passed, does clause 3 make any sense?


The Chair:
The question has been put by one of our members. Mr. Reiher, do you wish to comment?


Mr. Martin Reiher:
Thank you.


The Chair:
Could you hold for a second? We actually haven't got to debate on this. So let's go in order here. We'll come to that amendment, but we do have existing—


Ms. Jean Crowder:
Not the amendment. My question is on the existing clause 3.


The Chair:
Oh, on the existing clause, okay.


Ms. Jean Crowder:
Given the amendment that we passed—


The Chair:
Thank you for the clarification.


Ms. Jean Crowder:
—does the existing clause 3 make any sense?


The Chair:
So now let's go to Mr. Reiher, then, for that question.


Mr. Martin Reiher:
Thank you.

Just to be very clear, my understanding of the question is that assuming that the Indian Act is amended with an amendment to paragraph 6(1)(a) along the lines of what was discussed today, then would the addition of paragraph (c.1) to section 6 make sense. I believe what it would do is to cover the same individuals, to provide dual entitlement to the same individuals. So if that were the situation, I think that is what would be the impact.

Now, in terms of how this should inform the vote on this clause, I think you should consider what would be the form of the bill later on in this process, if that's understandable.

The Chair:
It's understood.

If I may—and I shouldn't—comment, this is indicative of the implications, sometimes, when you create a much larger or broader-sweeping amendment. It has perhaps some implications for other parts that you may not have considered. I say that without prejudice.

We'll go to the question.

Mr. Bagnell.

Hon. Larry Bagnell:
I just want to summarize what you said. Basically you said that if we keep clause 3 it will create a double entitlement, which you'd try to get rid of. So if we just eliminated clause 3, the people would still be entitled because of the now-amended clause 2.

Mr. Martin Reiher:
The amended clause 2 would entitle a very large number of individuals.

Just to clarify my answer.... Thank you; this gives me an opportunity. We are answering questions without the opportunity to consider this very carefully.

I just realized now that the amended clause would expand significantly the entitlement of registration for individuals born before April 17, 1985, whereas the proposed new paragraph 6(1)(c.1) would actually allow entitlement after that date. So the proposed new paragraph 6(1)(c.1) would still cover individuals, I believe, who are not covered by clause 2 as amended.


The Chair:
Is that okay?

Is there any other debate on clause 3?


Mr. John Duncan:
Once again here we are, talking about unintended consequences. This is really unfair to legal counsel, to the officials we have as witnesses: to be presenting them with a scenario in which they're having to offer an opinion on something on the fly. If we start deleting or keeping proposed sections or clauses based on what we think we know and report that back to the House, I'm concerned that it can be an embarrassment to the committee, to be quite truthful.

The Chair:
Okay.

Is there any other debate on clause 3?

(Clause 3 agreed to)

[Translation]

The Chair: We now move to amendment BQ-4.

Mr. Lemay, you have the floor.


Mr. Marc Lemay:
Mr. Chair, I introduced two amendments that deal with a new clause, clause 3.1. We are asking that the government report to Parliament on the progress and implementation of this bill. We chose amendment BQ-4. We are going to ask that it, not BQ-5, be voted on. We will ask for BQ-5 to be withdrawn once BQ-4 is passed.

There is only one difference between amendments BQ-4 and BQ-5. In BQ-4, we are asking that a report be laid before Parliament every two years while, in BQ-5, it is every three years. After studying the matter, we concluded that it was better to ask for a report every two years. This is a request that we received from Quebec Native Women Inc. We reflect it here, Mr. Chair.

[English]


The Chair:
I can report to the committee that the amendment is admissible, so we'll entertain debate on the amendment.

Mr. Duncan.


Mr. John Duncan:
Thank you, Mr. Chair.

I'm not surprised that the chair has ruled this in order and within the scope of the bill. But the logic I'm having some difficulty with is that Monsieur Lemay put two amendments forward, one for two years and one for three years. Any of the discussions I've had would indicate that the longer the timeframe, the more will have settled out after passage of the bill, because the whole registration process is going to take some time. The concern is that after two years we'll just be really getting going in terms of some of the registration numbers, so that three years would be more meaningful, and I would argue that four or five years might be a better number as well.

If you're agreeable to an amendment to change two years to three, four, or five years, I'd be quite accommodating.

The Chair:
Monsieur Lemay, vous avez la parole.

[Translation]

Mr. Marc Lemay:
Mr. Chair, we chose two years because it seemed clear to us that, two years after the passage of the bill, the report we will get will be very short. That seems quite clear to us. Things have to be put into place.

However, two years after the first report, we expect a much more complete report. That is why we prefer to opt for two years. As with Bill C-21, it seemed important to us that, every two years, Parliament should know what is happening with the implementation of this very important bill. All we are doing is reflecting the request made to us by Quebec Native Women Inc.


The Chair:
Thank you, Mr. Lemay.

First Mr. Russell, followed by Mr. Bagnell.

Mr. Russell, you have the floor.

[English]

Mr. Todd Russell:
Thank you, Mr. Chair.

I'm understanding that we have the two-year period in the proposed additional clause before us. I'm certainly going to speak in favour of it. I was quite surprised that the parliamentary secretary said that registrations would only have just begun and that we would hardly be able to measure them in two years, since the government itself has talked about the urgency of getting this particular bill through. If there's urgency in terms of allowing people to register, there would presumably be lots of activity within the first couple of years related to this bill, and something to report.

I want to speak in favour of this particular additional clause to report after two years.

The Chair:
Thank you.

Mr. Bagnell.

Hon. Larry Bagnell:
I want to ask the mover a point of clarification. The way I read the clause, there is just one report, coming either two or three years after the bill. But when he was speaking, it sounded as though it would be every two years or every three years. Can I get clarification?

[Translation]

Mr. Marc Lemay:
My colleague is perfectly correct. I went a little far, Mr. Chair. It is two years after the coming into effect. So it is just one report. If the House wants another one, it would have be requested at that time. Yes, it is just one report.

[English]


The Chair:
I see no other speakers. Are you ready for the question on the amendment?

Mr. John Duncan:
Can I request a recorded vote?


The Chair:
We're doing a recorded vote.


Mr. Todd Russell:
Another recorded vote?

(Amendment agreed to: yeas 11; nays 0)


The Chair:
Thank you.

In accordance with Mr. Lemay's request.... He indicated he will not move amendment BQ-5, which makes sense, of course, because it was really just a different term.

Thank you, Mr. Lemay.

We will now proceed to clause 4.

(Clauses 4 to 8 inclusive agreed to)

The Chair: Shall clause 9 carry?

[Translation]

Mr. Marc Lemay:
Where is my amendment?


The Chair:
Yes, Mr. Lemay


Mr. Marc Lemay:
I am sorry, Mr. Chair. I thought I needed to make an amendment, but I do not need to. To reflect the requests of several witnesses, Mr. Chair, it seems clear to us that we have to vote against clause 9. We are asking that that clause not be passed.

[English]


The Chair:
Okay, that is the question. Does anyone wish to comment on Mr. Lemay's intervention in respect to clause 9?

Mr. Duncan.


Mr. John Duncan:
Yes, we did receive some concerns from witnesses. I do agree on the subject, but I think there was a lack of comprehension of what the clause is designed to protect. It's designed, most importantly, to protect first nations bands who have made decisions in the period since 1985 from liability from people who presumably will be eligible for registration under the terms of this bill. It's for clarity. It's in there to include the crown as well.

Rather than my spouting off about this, I would ask that the witnesses from DOJ and the other department be asked to comment on this clause.


The Chair:
Certainly.


Mr. John Duncan:
I think it's a crucial item. Without the clause, we're sending the wrong signal to people in terms of their expectation of first nations. I think the committee may regret it in the future, if we were to do that.

The Chair:
Okay, Mr. Reiher.


Mr. Martin Reiher:
Thank you, Mr. Chair.

Clause 9 indeed protects both the crown and the council of a band from any claim for compensation, damages, or indemnity for decisions, or because of “anything done or omitted to be done”--in other words, for decisions made on the basis of the fact that certain individuals who will have an entitlement to registration after the amendments are in force were not entitled before. Obviously, the goal of this clause is to avoid reopening decisions that were made in the past, including agreements, and including specific decisions with respect to individuals who sought benefits, etc.

This is a “for greater certainty” clause, because even without this clause, it is the state of the law that normally damages are not awarded once legislation has been struck down. First of all, when a court rules on a charter challenge, for example, when what is being sought is a declaration of invalidity, the courts are generally very reluctant to award damages in addition to a declaration of invalidity. In technical words, section 52 of the Constitution Act, 1982 has the effect of rendering legislation considered contrary to the Constitution inoperative, and section 24 of the charter allows a court to issue damages. These two remedies are usually not combined.

In addition to this, there is a doctrine in the case law called limited immunity for the crown. According to this doctrine, if a decision made by the government or its officials on the basis of legislation is made in good faith, there can be no damages if legislation supporting the decision is later found to be contrary to the Constitution. This is why this clause is for greater certainty, at least from the crown's perspective.

We believe that this clause would nonetheless be useful, because it clarifies the state of the law. It sends a clear message. Madame Lynch, the president of the Human Rights Commission, indicated that this would prevent individuals from trying to get damages or compensation through litigation, if in fact there would be little hope of doing so. So this would avoid litigation by individuals, for example. It would therefore avoid raising expectations, and it would send a very clear message to the courts as well.

My last comment is that certain concerns were raised with respect to the possibility of bringing complaints before the Canadian Human Rights Commission, for example. This clause clearly doesn't prevent any complaint being brought before the commission. It will be up to the commission to determine whether the complaint is receivable. What this clause would do is simply circumscribe the remedies that may be awarded for the true complaint under the Canadian Human Rights Act.



[Translation]

The Chair:
Thank you, Mr. Reiher.

We will move to Mr. Lemay and then to Mr. Bagnell.

Mr. Lemay, you have the floor.


Mr. Marc Lemay:
When they appeared before us, the representatives from the Canadian Bar Association, along with Mr. Dupuis, from the Quebec Bar, expressed concern about clause 9. The following words sum up those concerns:

Section 9 is a concern, as it would remove the right of anyone to sue the federal government for not providing them with status as a result of the gender discrimination addressed by the bill. If the federal government can be presumed to have been aware that Bill C-31 was not consistent with the Charter as far back as 1985, and did not act for over twenty years until the McIvor decision reached the BC Court of Appeal, the CBA section is concerned with the justice of such a “no liability” provision. Further, we caution that including such a provision could make the bill vulnerable to further Charter challenges.

Mr. Chair, this is one of the reasons why we are going to vote against clause 9. Representatives from aboriginal communities asked us to when they appeared before us, I feel. They found that denying them the right to make claims of that kind was discriminatory.


The Chair:
Thank you very much.

Now we move to Mr. Bagnell.

[English]


Hon. Larry Bagnell:
I want to ask about another point.

My understanding from other situations is that when something is covered, as you said, in case law, that's a universal type of principle and it is accepted, such as going back, in this particular case, retroactively on things. That's a pretty strong argument that a lot of the courts would support.

This clause may have the unintended consequences of actually weakening that case. I think what we've been told in other situations is that when you draw attention to something separate from the normal way of doing things, it actually brings the whole situation into question. It may actually work detrimentally to the purpose of this clause 9.
next intervention previous intervention

The Chair:
Did you wish to comment, Mr. Reiher?

Mr. Martin Reiher:
Thank you, Mr. Chair.

It seems to me a clear indication from Parliament that there can be no compensation for a lack of entitlement for individuals who are covered by these new amendments. It would actually assist and strengthen a principle that exists in the case law but would in no way weaken it.

The Chair:
Thank you.

Mr. Duncan.


Mr. John Duncan:
Everyone's comments so far have largely been focused on the federal government. I think there's a failure to recognize that there's been a fundamental change. The fundamental change is that the Canadian Human Rights Act has been amended. The net effect of the amendments to the Canadian Human Rights Act is that remedy could be sought from the first nations and it may not even target the federal authority. I think clause 9 is important.

And I would ask the witnesses one further question. Is it not the case that Bill C-31, the 1985 amendment, contained a very similar clause, and that clause in no way pre-empted McIvor and a whole bunch of other things from coming forward? This is not eliminating the possibility of many things from occurring, but it is very specifically referring to outcomes specific to Bill C-3, remedies they might seek that would be.... I'm losing myself, but I think I've asked my question for the witness.


The Chair:
Go ahead.

Mr. Martin Reiher:
Thank you, Mr. Chair.

This is an important verification. Clause 9 is fairly precise and circumscribed. It prohibits awards of damages on the basis of the fact that the individuals who will gain entitlement further to this amendment did not have an entitlement before. It in no way prevents other charter challenges to the Indian Act, or further challenges and awards of damages for something not related to the lack of previous entitlement.

Mr. John Duncan:
What about Bill C-31?

Mr. Martin Reiher:
There was a similar clause in the bill amending the Indian Act in 1985. If I recall correctly, it was clause 21, 22, or 23. There are other provisions in the statutes dealing with aboriginal issues or other issues limiting the liability of the crown as well. This is not unique.

The Chair:
Thank you very much, Mr. Duncan and Mr. Reiher.

Let's go to Ms. Crowder.

Ms. Jean Crowder:
I have a question for the department. You mentioned the wording “done or admitted to be done in good faith in the exercise of their powers”. I wonder if people are making an argument around part of this to protect first nations band councils from any complaints. If that were amended to remove “indemnity from Her Majesty in right of Canada, any employer or agent of Her Majesty”.... I'm sorry, leave in that part; take out the government. Leave in band councils so they would be liable. Is that possible?

I want to refer back to the 1988 report. The issues we're talking about of residual discrimination are well known. They were tabled in Parliament, so it might be difficult to argue that the government in good faith didn't know about them. Could that be amended to just protect band councils and leave the government out on a limb?
next intervention previous intervention

Mr. Martin Reiher:
On whether decisions are made in good faith or not, it's not because provisions are litigated that we can assume what the result will be. Government officials have to apply legislation until it's struck down. So with respect, I wouldn't conclude that there is good faith simply because later on provisions are--
next intervention previous intervention

Ms. Jean Crowder:
Sorry, can I ask for clarification? Are you saying that even though the government may be aware of alleged residual discrimination, until there is litigation they don't have to act?

Mr. Martin Reiher:
Thank you for the question. What I'm trying to say is that in a democratic society like ours there are courts and tribunals to adjudicate on disagreements between individuals, as well as between individuals and the state. Further to the attempt in 1985 to remove the discrimination from the Indian Act, issues were raised and litigated. The McIvor decision was the first in this set of litigation. What I'm expressing is that the government had a different view on whether the Indian Act was still discriminatory, and it couldn't be concluded before the court rendered a decision on whether there would be a pronouncement of discrimination or not.

On the first nations, clause 9 would protect a band council, for example, where there was prohibited distribution to members. It's conceivable that persons added to the Indian registry and the band list of a band would attempt to participate in past prohibited distribution on the basis that they should have been members of that band before. So I believe that clause 9 would protect the council of a band.


Ms. Jean Crowder:
My question, though, is what would happen if we left band councils protected and removed the section around “Her Majesty in right of Canada, any employee or agency of Her Majesty”, and just put band councils?

Mr. Martin Reiher:
I can't speculate on how this provision would be interpreted. Clearly it wouldn't target the government; it would simply protect the first nation. It is possible.... There was a previous question that was asked by one member of this committee a few minutes ago about whether including this clause might actually weaken an existing doctrine because Parliament would have tried to modify it by adding something.

I think that the dimension of Her Majesty, the crown, in this provision might have the effect of sending the signal that Parliament wanted to amend that doctrine. In other words, it might actually create a situation where the courts would be unclear on the state of the law with respect, for example, to the limited immunity or the restricted immunity doctrine.

The Chair:
Thank you.

Ms. Crowder, are you okay on all of that?


Ms. Jean Crowder:
I don't have the legal background to determine whether removing the government from this clause would cause the courts to be uncertain of the interpretation of the clause. I guess that would remain to be tested in courts, presumably.

The Chair:
Thank you, Ms. Crowder.

Now we'll go to Mr. Duncan.

Mr. John Duncan:
Thank you.

I wasn't sure where the conversation would go or end up. But what I will say is we had the broad change adopted by overturning the chair, and I believe that is completely out of order. In terms of this amendment, which is arguably problematic, I can assure--to the best of my knowledge--that this is not within the minister's mandate to go forward with the bill without this clause. So if you want to invest in this clause, it's worthwhile to have that as background.
next intervention previous intervention

The Chair:
Are there any other comments?

So, shall clause 9 carry?

[English]

Mr. John Duncan:
Could we have a recorded vote, please?
next intervention previous intervention

The Chair:
It will be a recorded vote.

(Clause 9 negatived: nays 6; yeas 5)

[Translation]

The Chair: Shall clause 10 carry?

[English]

(Clause 10 agreed to)

The Chair: Now we will go to the short title, and we have an amendment there. I'll go to Ms. Crowder to speak to her amendment. We are now back to clause 1, members.

Ms. Crowder, you have the floor.


Ms. Jean Crowder:
Very briefly, I think that the amount of discussion that we've had today and certainly from the witnesses calls into question whether this is truly a gender equality bill. So I am proposing that the short title be amended to say, “This Act may be cited as the Act amending certain definitions and registration provisions of the Indian Act."

The Chair:
Okay. Is there debate or are there any questions?

Mr. Duncan.


Mr. John Duncan:
Yes, I think this is disingenuous. The title of the bill is “An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada...”. That's very clear. I think what the opposition has been doing is characterizing that title quite differently, and it's quite clear that title does circumscribe what Bill C-3, as tabled in the House, is trying to do.


The Chair:
I didn't actually speak to the admissibility of this particular amendment. It is in fact admissible as it currently is because of the changes implemented by the committee here this afternoon.

For the benefit of members, I'm advised by the legislative clerk that a change in the title would have to be compelled by a change to the bill. In other words, as has been done here through the amendment to clause 2, when you make a substantive change to the bill that would compel a change to the title, then it would be and is admissible.

If I can just go backwards, had the amendment not been adopted as it related to clause 2, this amendment in fact probably would not have been admissible. I say that just to inform members of how these things work.

The amendment is admissible. Is there any further debate on the clause 1 amendment by Ms. Crowder?


Mr. Todd Russell:
I call the question.

The Chair:
Okay.


Mr. John Duncan:
Could we have a recorded vote, please?

The Chair:
Okay, we'll go to a recorded vote on amendment NDP-0.1.

(Amendment agreed to: yeas 6; nays 5)

The Chair:
Now we'll go to clause 1 as amended.


Mr. John Duncan:
That's the title. We'll ask for a recorded vote on this.


The Chair:
We'll have a recorded vote on clause 1. This is the short title. I'll just remind members that we also will have the title. That will be another question that's coming.

(Clause 1 agreed to: yeas 6; nays 5)

The Chair: Next, shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill as amended carry?


Mr. John Duncan:
Hang on a second here. What is the question again?

The Chair:
Shall the bill as amended carry?

Mr. John Duncan:
We want a recorded vote on that.

The Chair:
Okay. I'm at your pleasure.

An hon. member: I thought you were asleep there.


Hon. Larry Bagnell:
I'll bet you on the outcome. Do you want to make a bet on the outcome?

Mr. John Duncan:
No. I thought my arguments were so convincing that you'd change your mind, Larry.


Hon. Larry Bagnell:
Okay.


The Chair:
Let's proceed with the vote.

(Bill as amended agreed to: yeas 6; nays 5)

[Translation]

The Chair: Shall the chair report the bill as amended to the House?

[English]

Some hon. members: Agreed.
previous intervention

The Chair:
Shall the committee order a reprint of the bill as amended for the use of the House at report stage?

Some hon. members: Agreed.

The Chair: There being no other business on the orders of the day, thank you, committee members, for your indulgence this afternoon.

This meeting is adjourned.
- - -

Also of interest on this topic . . .
http://www.turtleisland.org/discussion/viewtopic.php?p=11362#p11362

[admin]

Friday, May 21, 2010
Copy of Letter sent to Minister of INAC asking Canada to Amend Bill C-3
Dear Minister Strahl;

RE: Bill C-3

I understand that next week the House will start debate at the report stage of Bill C-3. Please accept this letter as my official request for you to make meaningful amendments to the bill in order to finally end gender discrimination.

Barring substantive amendments, I would ask that you withdraw Bill C-3 as currently drafted and re-introduce a bill that better reflects the values and principles of our Charter of Rights and Freedoms, our Constitution, and our country as a whole. If you cannot withdraw the Bill for some procedural reason, then I ask that your government vote against it and start over.

Had your government been open to considering reasonable amendments to the Bill in order to address gender discrimination, we, those affected by gender discrimination, would not be put in the position of having to find solutions to the legislative mess created by Canada. The duty always seems to be placed back on the excluded to find ways to make inclusion financially, politically and legally acceptable. This is an unfair burden on Indian women and their descendants who are already disadvantaged from their exclusion.

Indian women and their descendants had no power over which to protect themselves against the assimilationist goals of Canada in 1867, 1951, 1985 or 2010. Furthermore, despite being asked to appear as witnesses and provide more than ample proof that the Indian Act still discriminates against Indian women and their descendants before the Standing Committee, Canada has proceeded as though our unanimous voices do not count in this process. This makes a mockery of the entire process.

The honour of the Crown requires that Canada do more than participate in a superficial "engagement" process which does not consider and take into account our voices, our legitimate concerns and interests and our overall legal rights. By denying our voices, you violate the most basic tenet of the very democracy that Canada holds out as the basis of their nation.

It is time that Canada stopped treating us like wards and started to hear and act on our voices. It is long past the time to stop treating us like museum oddities that are slowly disappearing with time. It is time to stop treating us as though we are only a "race" of people that only deserve a voice if we meet complex, biological calculations of Indian blood. It is time to stop treating us as though we are frozen in time and that anyone who does not wear feathers, obtain a moderate livelihood from hunting or live on a reserve are not entitled to call themselves "Indians".

We did not go away when you took our lands, controlled our resources, outlawed our customs, dishonored our treaties, sent us to residential schools, enfranchised our women and children, or bullied us into poverty. We are here to stay, regardless of the political backlash we may endure from standing up for our rights. Why not put action behind your words and start a new relationship with Aboriginal peoples?

We have a duty to our ancestors who suffered at the hands of settlers and colonial governments to protect our rights, to protect those rights for our future generations seven generations into the future. Supporting yet another amendment to the Indian Act which will not only NOT address the minimal discrimination found in the McIvor appeal case as between double mother clause and section 12(1)(b) reinstatees, but will create new forms of discrimination is irresponsible, unjust and shameful.

Some may pose the question as to whether some amendment is better than no amendment. I would highlight the long, hard struggle of Sharon McIvor over the last 25 years after the last amendment to the Indian Act. Bill C-31 may have granted limited entitlements to limited numbers of people back then, but it created new forms of discrimination at a time when we all knew better and when our Charter asked us to do better. I do not believe that sacrificing the rights of large numbers of individuals for the immediate gratification of a few is a fair trade. Canada has the power to enact an OIC which treats us like Indians while amendments are made to the Act. Canada did it for the Innu and can easily do it for Indian women and their descendants - it's a matter of choice.

Canada has an opportunity to finally show some good faith, to act on both its honour and its legal duties and obligations to take the unanimous voices heard before the Standing Committee on Bill C-3, and make an amendment that finally addresses all gender discrimination in the Indian Act. This is not to say that the Indian Act is the ultimate solution. In fact, most consider other alternatives like First Nation citizenship to be the longer term solution. However, we cannot in good faith allow the Act to continue to discriminate against Indian women and their descendants while we take the next 20-30-20-100 years to work out self-government arrangements.

I ask your government and all the opposition parties to either agree to make substantive amendments to Bill C-3 as it currently reads, or if that is not possible, withdraw the bill, or if that is not possible then vote against it and start over with an amendment that finally grants Indian women and their descendants real substantive equality.

I trust you will consider my comments and concerns and implement my recommendations as noted above. Merci beaucoup de votre consideration.


Sincerely;

(original signed and faxed)

Dr. Pamela D. Palmater, and on behalf of my children and our heirs and heirs forever.

CC: Todd Russell, MP (on behalf of Liberals)
Jean Crowder, MP (on behalf of NDP)
Marc Lemay, MP (on behalf of BQ)

[admin]

Collective support for Amendments to Bill C-3 (Gender Equity in Indian 
Registration Act)


June 1, 2010



We, the undersigned Indigenous organizations and individuals, have 
considered Bill C-3 (Gender Equity in Indian Registration Act) introduced by 
the Minister in response to the direction given by the B.C. Court of Appeal 
in the McIvor v. Canada (Indian Registrar) case to eliminate discrimination 
in Indian Act against descendants of Indian women who lost status due to 
marriage.



We acknowledge that these changes are minor and will not address broader 
issues of discrimination under the Indian Act (such as the second generation 
cut-off under s. 6(2) which currently denies generations of children 
status), or the recognition of Indigenous nationhood, citizenship and laws 
as protected under s. 35(1) of the Constitution Act, 1982 and reflected in 
the United Nations Declaration on the Rights of Indigenous Peoples which 
directs that:

* Indigenous peoples and individuals have the right not to be 
subjected to forced assimilation or destruction of their culture.
* States shall provide effective mechanisms for prevention of, and 
redress for:
* Any form of forced assimilation or integration.



Recognition of Indigenous peoples' right to determine our own citizenship 
according to our own laws - which respect and honour the role of Indigenous 
women within Indigenous societies and cultures - is essential to our 
continued survival as peoples.



There are immediate changes which can be made to Bill C-3 to address issues 
of immediate discrimination against Indian women and their descendants. Such 
changes were suggested by the Standing Committee, but overruled by the 
Speaker. It is within the power of the Prime Minister and Cabinet to 
institute changes to Bill C-3 which would eliminate several areas of 
discrimination that remain against descendants of Indian women who lost 
status due to:

(a) Their grandmother's marriage to a non-status man, if they were born 
before the September 4, 1951 cut-off date currently reflected in Bill C-3; 
and
(b) The fact that the Registrar "deemed" their father/grandfather to be 
non-status. Currently, Bill C-3 restores status to people who lost status 
due to marriage of an Indian woman to a non-status man, but does not address 
the situation of people who were born outside of marriage and lost status 
because the Indian Registrar deemed their father to be non-status.



There is an opportunity to prevent further discrimination against Indigenous 
women and their descendants through some minor amendments to Bill C-3 to 
apply the Act to both those who lost status due to marriage to a non-status 
person, and those who lost status even though they were born outside of 
wedlock because the Registrar deemed their father to be non-status.



We strongly urge the Government and opposition parties to make amendments to 
Bill C-3 to:



1. Eliminate the 1951 Cut-Off date for return of status, and to include 
those who are denied status, even though their Indian woman ancestor lost 
status due to marriage, because they were born before September 1951.


2. Include those who lost status because they were born outside of marriage, 
and the Registrar deemed their father to be non-status (under s. 11(e) of 
the Indian Act as it then was).



These amendments are necessary to address issues of fundamental justice and 
fairness to Indian women and their descendants who continue to face 
discrimination under the Indian Act. If these minor amendments to Bill C-3 
are not made, Canada will face future Charter challenges, and will 
perpetuate discrimination against Indigenous women and their descendants.



Finally, long-term solutions do not lie in further tinkering with the Indian 
Act. Our Nations have an inherent right to determine who is and who is not a 
Citizen of our Nations in accordance with our own laws, customs and 
traditions. This is fundamental to self-government.

The real and ultimate 
solution to addressing ongoing discrimination in the Indian Act lies in the 
full recognition of First Nations' jurisdiction over our own citizenship.



Respectfully submitted on behalf of:



Union of B.C. Indian Chiefs

Grand Chief Stewart Phillip, President

Chief Willie Charlie, Vice-President

Chief Bob Chamberlin, Secretary-Treasurer



First Nations Summit

Grand Chief Doug Kelly

Dan Smith

Grand Chief Edward John



BC Assembly of First Nations

Regional Chief Jody Wilson-Raybould