Bill C-3 (Historical)
Gender Equity in Indian Registration Act
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)
This bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.
Chuck Strahl Conservative
This bill has received Royal Assent and is now law.
Scope of Private Members' Bills
April 30th, 2013 / 1:35 p.m.
Sadia Groguhé Saint-Lambert, QC
Mr. Speaker, I rise today on the question of privilege—which is not truly a question of privilege—raised by my colleague from Toronto Centre. The question has to do with the eighth report of the Standing Committee on Citizenship and Immigration, which recommends to the House that it:
...be granted the power during its consideration of Bill C-425, An Act to amend the Citizenship Act (honouring the Canadian Armed Forces) to expand the scope of the Bill such that the provisions of the bill be not limited to the Canadian Armed Forces.
I want to share why I think this question should be ruled out of order. However, before I share my arguments, I would like to correct what has been said so far. When the hon. Leader of the Government in the House of Commons, the member for York—Simcoe, spoke on April 25, 2013, he misled he House. In speaking about the amendment, he implied that the eighth report of the Standing Committee on Citizenship and Immigration is:
...asking the House to debate it for a number of hours and decide whether we think it is within the scope [of the bill]...
As you know, Mr. Speaker, that is not at all the case. This report does not ask us to determine whether the proposed amendments are within the scope of the bill. On the contrary, as I will explain later on, the committee clearly showed that it knows the proposed amendments are outside the scope of the bill. The report asks the House to give the committee the power to expand the scope of the bill and not to make judgments about amendments that could be made in committee.
I must also add that the member for Toronto Centre clearly did not do his homework before he spoke prematurely on the concurrence of this report before a motion to concur even made it to the order paper. A committee may seek an instruction from the House to expand the scope of a bill. In the second edition of House of Commons Procedure and Practice, O'Brien and Bosc are clear:
Once a bill has been referred to a committee, the House may instruct the committee by way of a motion authorizing what would otherwise be beyond its powers, such as, for example...expanding or narrowing the scope or application of a bill. A committee that so wishes may also seek an instruction from the House.
That is exactly what the Standing Committee on Citizenship and Immigration is trying to do with its eighth report.
However, and this is the reason for my speech, there is a limit to the instruction that the House can give to a committee. I would like to quote from O'Brien and Bosc once again:
A motion of instruction will be ruled out of order if it does not relate to the content of the bill, if it goes beyond the scope of the bill (for example, by embodying a principle that is foreign to it...
That is why, Mr. Speaker, I firmly believe that you must intervene and rule that the Standing Committee on Citizenship and Immigration's request for instruction is out of order. This request is far too broad and does not allow the House to determine if the committee is likely to include a principle that is foreign to the bill.
There is some precedent where motions of instruction were deemed to be in order and were debated in the House. However, in each of those instances, the instructions were far clearer than those sought by the Standing Committee on Citizenship and Immigration today. One example is from April 27, 2010, when the member for Nanaimo—Cowichan moved the following motion of instruction:
That it be an instruction to the Standing Committee on Aboriginal Affairs and Northern Development, that it have the power during its consideration of 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), to expand the scope of the Bill 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.
This motion was very clear and was ruled to be in order with good reason. It gave the Standing Committee on Aboriginal Affairs and Northern Development permission to expand the scope of the bill in question, while providing strict limits as to how the committee could do that. By voting on this motion, the House was assured that the committee would not include a principle that is foreign to it in the bill.
In contrast, the motion of instruction that we have before us is simply asking the House for the power to expand the scope of the bill so that it is not limited to just the Canadian Armed Forces. What does that mean exactly? What amendments does the committee want make to the bill so that it applies to more than just the Canadian Armed Forces?
As it currently stands, the bill allows permanent residents who are members of the Canadian Armed Forces to get their citizenship more quickly. By asking that the bill apply to more than just members of the Canadian Armed Forces, is the committee suggesting that it would like to amend the bill so that permanent residents who are working in professions that are not related to the Canadian Armed Forces can also get their citizenship more quickly?
It is not at all clear. How can the House decide on such a motion of instruction when it does not know how the committee will proceed or whether the committee will try to include a principle that is not foreign to it in the bill?
I would also like to add that, if the committee's motion of instruction were to be found in order, it would set a dangerous precedent. By allowing a standing committee to expand the scope of a bill without specific instructions, we would be going down a very dangerous path under the current circumstances. Given this majority government's tendency to use private members' business to forward their own agenda, private members' business would be used as a way for the government to get around the rules.
Catherine Dauvergne, a law professor at the University of British Columbia, appeared before the committee as an individual during the examination of Bill C-425. She could not have provided a better explanation of the danger associated with such solicitation of instructions. She said:
...such a profound change to our Citizenship Act such as the one the minister is proposing must not be done by a process like this, by a private member's bill. That process reduces the time allowed for debate and for this committee to do its work and it protects the changes that the minister is proposing. This is controlling democracy.
Mr. Speaker, as you know, section 3 of the Canadian Charter of Rights and Freedoms Examination Regulations states:
In the case of every Bill introduced in or presented to the House of Commons by a Minister of the Crown, the Minister shall, forthwith on receipt of two copies of the Bill from the Clerk of the House of Commons, (a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms...
By asking standing committees to broaden the scope of bills to include suggestions from ministers, the government is not fulfilling its responsibility to examine the bills, as stated in the Canadian Charter of Rights and Freedoms Examination Regulations.
Pursuant to Standing Order 91.1(1), the constitutionality of private members' business is studied only by the Subcommittee on Private Members' Business, before a bill is debated at second reading.
By trying to expand the scope of the bill after second reading, the government is avoiding the constitutional test and will therefore be able to amend private members' bills as it sees fit, instead of presenting those concepts in government bills that must pass the constitutional test of the Minister of Justice.
Mr. Speaker, let me conclude by urging you to pay particular attention to the eighth report of the Standing Committee on Citizenship and Immigration, which the NDP feels should be ruled out of order.
Such a request for instruction is much too broad for the House to be able to ensure that the changes subsequently made by the committee will not include concepts that are foreign to the bill and will not violate the charter.
Giving such latitude to a standing committee will set a very dangerous precedent that this majority government will certainly use in a partisan and anti-democratic fashion.
Thank you for your attention. To help you with your study of this important issue, I will provide you with the evidence from the study of Bill C-425 conducted by the Standing Committee on Citizenship and Immigration.
I am convinced that, once you look at the evidence, you will also agree that the eighth report of the Standing Committee on Citizenship and Immigration is out of order.
March 21st, 2013 / 9:25 a.m.
Director, International Affairs and Human Rights, Native Women's Association of Canada
No, that's not what I was referring to. I wasn't referring to being protected from Indian men. Michèle also made reference to how we're marginalized in the Indian Act, even currently, with issues such as status. I know that's not the matter at hand, but when we talk about protections.... When you have Indian status, that directly correlates with membership, benefits, housing, schooling—all of your treaty or band rights. Right now, even with the implementation of Bill C-31 and Bill C-3, we still have a situation that hasn't been rectified, where women and men with the exact same parents are not sitting with the same Indian status, thereby leading to their not having the same rights to pass on to their children and grandchildren.
Although it looks on the surface that it's addressed by Bill C-3, if you examine Sharon McIvor's case, which she's taking to the UN, you will see that she still does not have the same, as it were, “Cadillac of rights”, as her brother. They have the exact same parents, but for the fact that she is a woman, she has lesser rights. That has an impact when you are talking about their continuing to pass on those rights. Those were more the protections that I was looking at.
In 2013, half of the aboriginal women population are not married—80% of women are single mothers raising their own children alone. When they go to register their children for Indian status with their band, it's not up to their band but the registrar at Indian Affairs. The mother will indicate who the father is on the Indian birth registry to ensure that her child has status. When that form gets to the national registrar in Ottawa—one registrar—the office will strike it out as void if the father has not signed that birth registry. That's a practice that is currently under way. In many cases, the woman is not with the man. She could have been raped. It could have been a case of incest. She could have had a child with a man who is married. Of course he's not going to want to sign the birth registry. She is at the will of the man. Therefore, there's a negative assumption that the child is not native, thereby removing the mother's rights to be eligible for housing for possibly five children. She'll be allocated a house for herself, because the way that the funding agreements go, they will only count status Indians. That's what I refer to when I talk about women being further marginalized and having lack of protections within the Indian Act. It's more a result of the impositions of the Indian Act and the inequalities in government processes. It's not something aboriginal men are doing.
March 21st, 2013 / 9:15 a.m.
Director, International Affairs and Human Rights, Native Women's Association of Canada
For me, the idea isn't that I would not want the words “Indian residential school“ removed from the act. What I am cautious about is any history being taken from the Indian Act that demonstrates what occurred with Indian residential schools at a time when the Truth and Reconciliation Commission is under way and in the process of making ongoing recommendations about implementing strategies that could heal the generations who currently exist.
I would hate to think that the Indian Act would be amended in a piecemeal fashion, striking out the section on Indian residential schools so that we could thereby look back, without an alternative in place, and say that never happened. We already have many members of Parliament and Canadians who say that was 100 years ago, when in fact it wasn't. The last school closed in 1996. This is a very real issue.
I respectfully submit that despite the MP’s personal experience, Michèle and I, as first nation women, have lived the personal experience that we have been advocating about for some 30 years, and we've been personally affected by Indian residential schools. We've been impacted by Bill C-3 and by Bill C-31. However, I would never propose that I have the solution or would never come forward to tinker with the Indian Act in a piecemeal fashion for my personal benefit when I know, even as a lawyer, that any case that goes forward to the Supreme Court of Canada is a huge risk because it's not only about my case but also about the 633 first nation communities and hundreds of thousands and millions of people who will be impacted by this legislation and by cases that go forward and are decided by the Supreme Court of Canada.
With all due respect, personal issues aside, we still need to proceed in a manner consistent with the UN declaration, in a manner consistent with how it's been set out in the Supreme Court of Canada decision.
February 16th, 2012 / 4:20 p.m.
Chief, Band No. 38, Mohawks of the Bay of Quinte
It's really a resourcing question. We have a very successful revolving community housing loan fund. We mortgage the houses to our members. We currently have about $17 million in mortgages to our members.
The problem is with the various pieces of legislation that have been passed over the years: Bill C-31 in 1985 and now Bill C-3. The growth of our membership has quadrupled since 1985, and the resources have not kept pace with the growth in the community. Really, the Government of Canada doesn't have any growth funding to deal with growth pressures, oftentimes resulting from the very legislation that it passes of granting membership to additional people to cure the injustices of the Indian Act.
It is true we won a number of national awards. Also, we had an apprenticeship program in the nineties, where we trained 20 people to become licensed carpenters. Many of those people were able to carry on and set up very successful businesses, where they were able to build homes on the reserve through contracts, and off reserve. They're in the business, much like any other off-reserve builder building homes for non-natives and running very reputable companies and also employing a lot of our people.
There needs to be more training done in the area of the trades. We need electricians; we need plumbers. They're always building roads or installing sewers, or repairing them in the municipalities. There would be work opportunity there if there were proper apprenticeship programs set up in our community to train our people to fill those jobs.
Canada does not need to import people from the far ends of the earth. What it needs to do is focus more effort on training people who are unemployed in this country and first nations people to help fill some of those jobs. As I have indicated, 75% of our members live off reserve in various cities and towns. Our people have been engaged historically on building some of the most prominent buildings in the world, the highest skyscrapers. The Mohawk people were high-steel workers. There is plenty of opportunity through adequate training programs. I think they just need to be organized. You need to get people, find out about the labour market, and maybe find out more information on what the labour market need is out there, where the jobs are. You need to provide the training and then help our people relocate and maybe get established in some of these cities and towns where there are good-paying jobs. Our people do go where those jobs are.
John Duncan Vancouver Island North, BC
I gather there have been a lot of efficiencies created since the process started. There was a staff of 55 dedicated solely to that function of registering Bill C-3 applicants. The department also augmented its call centre capability and capacity to ensure efficient client services.
We are anticipating the completion of 23,000 files by the end of March, which will bring us within our service standard to register applicants within six months.
Greg Rickford Kenora, ON
Thank you, Minister.
Now I'm going to shift gears here. My colleagues and I have a number of matters that were addressed in your speech that we'd like some further information on. I'm going to start, Minister, with the state of the implementation of gender equity in the Indian registration act, referring of course to Bill C-3. Could you give us an update in regard to that?
November 29th, 2011 / 4:05 p.m.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
November 29th, 2011 / 4 p.m.
November 15th, 2011 / 12:05 p.m.
Chief Betty Ann Lavallée National Chief, Congress of Aboriginal Peoples
Thank you, Mr. Chair.
Good morning to the members of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.
It's an honour to be here on the unceded territory of the Algonquin people to present you with some priority issues of the Congress of Aboriginal Peoples.
With me today is our new vice-chief, Dwight Dorey, who will be speaking to you concerning the Daniels case and subsection 91(24) of the Constitution Act of 1867. My presentation to you will focus on remaining discrimination in the Indian Act, matrimonial real property, band membership, along with aboriginal citizenship, education, and the long-gun registry. There are many more issues that will need to be discussed at a later date, including health, economic development, housing, homelessness, language, and culture.
Since 1971, the congress has been at the forefront of the aboriginal people's movement in Canada, advocating for our constituency of forgotten peoples. We advocate for the rights and interests of status and non-status Indians living off reserve and Métis. The year 2011 marks the 40th anniversary of the founding of our organization. Despite the successes that have occurred over the last 40 years, the Canadian public continues to associate aboriginal issues with Indians living on reserves. The reality is that 80% of the ancestral aboriginal population now live off reserve, with 60% living in urban areas. This is the most significant demographic factor for policy makers, yet it's the one where the least action takes place because of jurisdictional issues.
On May 18, we were pleased to learn that Prime Minister Harper had changed the name of Indian Affairs and Northern Development to Aboriginal Affairs and Northern Development Canada. This was an important step, better to reflect the scope of the minister's responsibilities for all aboriginal peoples. This type of straightforward thinking and inclusive decision-making is what we need to make progress.
The Indian Act remains the principal expression of the federal government's jurisdictional policy over Indians and lands reserved for Indians under subsection 91(24) of the Constitution Act of 1867. The political and social reality affecting aboriginal peoples is based by and large on this outdated legislation. The Indian Act status and membership rules have a long history of impacting the lives of aboriginal peoples. For example, of the almost $10 billion per year that the federal government invests in aboriginal-specific programming, almost 90% goes to assist on-reserve status Indians. This outdated policy framework needs to be reshaped and recast to reflect the fact that the federal government has the responsibility to act in a fiduciary capacity for all aboriginal peoples.
This was the central finding of the largest, most extensive inquiry undertaken in Canadian history, the Royal Commission on Aboriginal Peoples. In 1996, it reported that the relationship between aboriginal peoples and non-aboriginal peoples needed to be fundamentally restructured. The facts of aboriginal life have changed, and it's time for policies and frameworks to reflect the new reality.
CAP is pleased that the government has reintroduced Bill S-2 concerning matrimonial real property. This legislation will address a longstanding gap and will better protect the rights of aboriginal people, particularly women living on reserve. For many years, we've been calling for an effective MRP regime on reserve. Aboriginal women on reserve face unfair and unconstitutional discrimination in the exercise of their right to a fair share of matrimonial real property after the breakup of a marriage or common-law relationship. We view the bill as a positive step to ensure that aboriginal women and children receive equitable distribution of matrimonial real property assets in the event of divorce, separation, family violence, or death.
The congress has never bought into the Indian Act, and we have a long history of fighting this legislation. Back in 1974, with financial assistance from our organization, Jeannette Corbiere Lavell was the first non-status woman to bring a challenge to the Indian Act. Today, our women continue to be discriminated against through the Indian Act, but through the brave work of people like Sharon McIvor, Sandra Lovelace Nicholas, as well as many others, we are taking this legislation apart piece by piece.
I'm a registered subsection 6(2) Indian. Under the law, my son is not entitled to be registered as an Indian. We are graded like cattle or grades of beef. It is unadulterated discrimination, and fighting this is the central priority for the congress.
In January of this year, Canada proclaimed into force Bill C-3, Gender Equity in Indian Registration Act. This was a direct result of the McIvor decision, which took 20 years to move through the courts. Because this legislation is very narrow in scope, sex discrimination, unfortunately, remains in the status registration provisions. Not all descendants of the Indian women who lost status through marrying out have gained status back. The first generation was covered by Bill C-31 in 1985, the second generation through this year's Bill C-3, but further generations remain cut off from Indian status.
The only way to be sure that such discrimination is eliminated from the Indian Act is to place descendants of status Indian women on the same footing as descendants of Indian men. Today aboriginal women are not treated equally as transmitters of status. As a result of this discrimination, thousands of their descendants have been forgotten.
Another remaining problem relates to the post-1985 Indian Act registration rules and how they operate in cases of unstated paternity. In 1985 Canada went from a one-parent descendancy rule, which favoured Indian men, to a new system called the second generation cut-off rule. Now whether you were an Indian man or woman, mixed parenting is only allowed for one generation. After the second generation of mixed parenting, a person is no longer an Indian. Today, when a status mother does not disclose the father's identity, the child's registration can only be based on the mother's entitlement. From 1985 to 1999, this resulted in the downgrading or outright loss of Indian status to approximately 50,000 Indian children.
The new second-generation cut-off rule will result in a drastic reduction of the status Indian population over the course of a few generations. Status Indians, like many other Canadian citizens, fall in love and have children with people from other cultures. This common social occurrence, when paired with the second-generation cut-off rule, has the perverse result of depriving the children of these unions of either their Indian status or the ability to pass status to their own children.
It has been estimated that within 60 years only one-third of the descendants of the current status Indian population will be entitled to status. The number will continue to decline. Academics and demographers alike have argued that the Indian registration rules introduced in 1985 will lead to the legislative extinction of status Indians.
A clear solution to this problem would be for Canada to return to a one-parent descendancy rule for Indian status and apply it equally to men and women. However, everyone here can acknowledge that the capacity of courts to deal with these issues is very limited. CAP is seeking a political commitment to examine and address aboriginal citizenship, with all the associated broader questions.
Since the passage of Bill C-3 in December 2010, the federal government has launched the exploratory process. It is not a consultative process, which we like, and I'm pleased to say the government has not pre-determined or pre-defined the agenda or questions with regard to Indian registration, band membership, and aboriginal citizenship. CAP is currently engaged with the process and we're hosting dialogue sessions across Canada.
Section 74 of the Indian Act allows bands to elect chiefs and councils according to their own customs. Currently about 30% of bands have adopted their own custom codes. Under these rules a band can admit to membership people who do not have status. They can also deny membership to any status Indian except Indian women restored under paragraph 6(1)(c).
Despite this apparent opportunity to break away from the Indian Act, 30% of the bands have adopted membership rules that are more restrictive than the Indian Act itself. CAP was pleased when the Conservative government delivered on its promise to repeal section 67 of the Canadian Human Rights Act. Since 1977, section 67 has shielded bands from complaints of discrimination stemming from membership codes plus other issues.
In June of this year the transition period ended. We expect that many of the custom election codes will now be challenged under the Canadian Human Rights Act. My understanding is that Aboriginal Affairs and Northern Development has not provided any resources to the bands to review and update their membership codes or to ensure they are in compliance with the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms. That is really unfortunate, because there are some bands that are being very proactive in addressing this issue. I believe in giving credit where credit is due.
In regard to aboriginal citizenship, CAP takes the position that the right of aboriginal peoples to determine our own citizenship is an inherent right derived from the Creator and protected both under section 35 of the Constitution Act, 1982, and under the UN Declaration on the Rights of Indigenous Peoples. Our right to self-government was never distinguished.
We view the exploratory process as the beginning of a long process of questioning and thinking, and as we move towards self-determination and citizenship, we are being given the chance to come up with the solutions to long-lived problems we've had to face.
The possible self-government structures for urban aboriginal peoples are wide-ranging. CAP has been working on these challenging issues for many years and at the same time struggling with the reserve focus of federal government policies and programs. Federal and provincial wrangling has slowed progress for urban aboriginal populations.
With the resolution of the federal government's responsibility regarding Métis and non-status Indians, aboriginal and state relations will be very clear, and some of the on-reserve and off-reserve distinctions will be resolved.
My colleague Dwight will speak further to that.
The education of our children and youth is a priority of the first order for us. Aboriginal youth have the highest dropout rates, the lowest levels of literacy, and the lowest levels of skills development. The odds are better that our youth will end up in jail than that they will graduate from high school. It is education that will improve our economic situation and our lives. It is education that is integral to reducing poverty in our communities and eliminating our dependencies.
At the Summit on Aboriginal Education held in February, we were encouraged by the discussions about strengthening aboriginal success in education. The provincial and territorial ministers of education have recognized that in the next 15 years, aboriginal students will represent over 25% of the elementary student population in some provinces and territories. We encourage the Prime Minister to call a first ministers meeting on education at which an interjurisdictional commitment to improve school experiences for our students could be mobilized.
Last, I want to talk to you about the Canadian firearms registry. Currently, aboriginal firearms owners who are not compliant with the Firearms Act can incur criminal liability for unauthorized possession of non-restricted firearms under sections 91 and 92 of the Criminal Code. In the last couple of weeks, the government gave notice concerning the bill to abolish the long-gun registry.
CAP joins many other aboriginal organizations across Canada in calling for an end to the long-gun registry. We view the licensing and registration requirements imposed by the registry as an infringement on our right to hunt. Aboriginal hunters and harvesters are not part of the crime problem, and the registry is ineffective and wasteful. The infringement on aboriginal treaty rights to hunt, trap, or fish is not acceptable to our organization. CAP remains supportive of regulations requiring hunters and harvesters to secure an acquisition licence and to follow rules for the safe storage of firearms.
In conclusion, I wish to express our appreciation for the attention the Prime Minister has brought to aboriginal issues by meeting with national aboriginal leaders. In the days ahead, my colleague and I look forward to active engagement with various House of Commons standing committees that have an important role to play in moving the aboriginal agenda forward.
At this point I'll turn to my colleague, Vice-Chief Dwight Dorey, to speak on the issue of section 91.24.