Thank you very much.
Thank you for inviting me to speak to you today about this incredibly important matter. I don't think anything has been said so far about self-government and self-determination in our own jurisdiction that I don't agree with.
That being said, my presentation deals more with the nuts and bolts of Bill C-3. It's also important to note that I'm not acting as anyone's legal counsel. I'm not here on behalf of any political organization. The people I represent are my ancestors, my extended family, my children, and our future generations--seven generations into the future.
My name is Pam Palmater and I'm a Mi'kmaq woman; however, my status in life is that of a non-status Indian. I am a first-generation non-status Indian because I descend from a matrilineal lineage as opposed to a patrilineal lineage. This negatively impacts every single member of my family; not just myself as a non-status Indian, but my children. All of my siblings will be differently impacted by Bill C-3 because of our own particular fact scenarios. Some of us were born before 1951, some of us are illegitimate, and some of us are adopted. All of these things will create further divisions in our family.
I see six major problems with Bill C-3. Subclause 2(2) of Bill C-3 simply re-enacts paragraph 6(1)(a) of the Indian Act as it reads now and will not accomplish the goal of eliminating gender discrimination. There is nothing in the McIvor court of appeal that prevents Canada from addressing larger forms of gender discrimination.
When the Supreme Court of Canada recognized the treaty right of the Mi'kmaq people in the Marshall case for commercial-based fishing, their response was not that they signed only one agreement with one first nation with regard to eels; there was a much larger response. They signed agreements on a whole array of fish species with all willing first nations. At no time did they say we were limited by Marshall to only deal with that fact scenario.
Similarly, when Lovelace brought her case to the international forum, Canada's response was to not simply reinstate paragraph 12(1)(b) on women; they reinstated their children and gave bands the option of controlling their own membership. They changed the legal presumption for unstated paternity from that of Indian paternity to non-Indian paternity, and they reinstated a whole host of other individuals. It's inconceivable that we can sit here today and say that somehow, because of this one singular case, we're limited in our abilities.
On my second problem, assuming that subclause 2(2) of Bill C-3 is not amended, subclause 2(3) of the bill, which adds proposed subparagraph 6(1)(c.1)(i) to the Indian Act, is still problematic because it contains a 1951 cut-off date. We've heard previously at committee that there is no 1951 cut-off date and people will not be negatively impacted, especially if those people have siblings who were born post-1951, but I would take those assurances lightly because that is not what the act says.
My third problem is that subclause 2(3), which adds proposed subparagraph 6(1)(c.1)(iv) to the Indian Act is probably the most problematic because it creates a new distinction not enacted in the Indian Act before. It creates a distinction between the children of Indian women who married out who have non-status Indian kids and those who don't have non-status Indian kids. It is completely unnecessary for Canada to create a new distinction that will, for all intents and purposes, discriminate on the basis of family status.
My fourth problem is that clauses 7 and 8 of Bill C-3 do not provide adequate protections for those to be registered under Bill C-3 with regard to band membership. This is in stark contrast to what we did in 1985. Some limited protections were enacted to protect those who were reinstated with regard to band membership. There is no conceivable reason that we cannot do that now. The Lovelace case was not about band membership. This one isn't either, but that doesn't mean that gender protections can't be incorporated.
Fifth, even if this committee will not consider a broader amendment to address gender discrimination in section 6, the current bill would still have to be amended as it does not entirely address even the gender discriminations that were raised in McIvor. Double mother clause descendants still have better status than paragraph 12.(1)(b) descendants. In my actual 15-page submission--I don't know if everyone has it yet, it's probably not come from translation--I provide charts that explain that.
The main point here is that not to remedy the minimal gender discrimination that was raised in McIvor defeats the entire purpose of Bill C-3. What are we talking about if we're not going to at least do what was in McIvor?
The final problem is clause 9. Clause 9 is an offence to Indian women and their descendants who have already waited more than 25 years for justice. It is also counter to both the spirit and the intent of the Charter of Rights. INAC officials appeared before this committee and stated that even though Bill C-3 didn't deal with the larger gender and other discrimination issues, the repeal of section 67 of the Canadian Human Rights Act would provide an avenue for individuals to bring forward claims of discrimination. Yet, at the very same time, Canada is appearing before the Canadian Human Rights Commission, denying the commission's jurisdiction to even hear these complaints on the basis that status is not a service. It seems somewhat disingenuous for Canada to limit the remedy under Bill C-3 under the guise that there are alternate remedies when in fact that might not be the case.
I have nine specific recommendations.
One, Canada should withdraw this bill, seek an extension of time, and redraft more appropriate legislation.
If this cannot be done, then I would suggest that an amendment be made to clause 2 of Bill C-3 by adding the words “or was born prior to April 17, 1985, and was a direct descendant of such a person to paragraph 6.(1)(a) of the Indian Act”.
Number three, delete clauses 3 and 4 of Bill C-3 and any reference to the very problematic section of proposed paragraph 6.(1)(c.1) of the Indian Act.
Number four, a new clause should be added before or after clauses 7 and 8 of Bill C-3 that provides protections for Bill C-3 individuals with regard to band membership, especially for those born pre-1985.
Number five, clause 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in regard to status.
Number six, adequate funding should be provided to first nations for band-delivered programs and services based on their actual increased membership numbers and to enable bands to review and compare their band membership codes to the Charter of Rights and to the Canadian Human Rights Act and make the necessary amendments to ensure that their codes respect gender equality.
Number seven is that Canada, in partnership with national, provincial, and regional aboriginal organizations, first nations communities, and individuals negotiate a process by which to compensate those affected by Bill C-3 in the fairest, quickest manner possible. They have already waited more than 25 years.
Number eight is that additional legislation be immediately drafted in partnership with those same aboriginal groups to proactively address the remaining aspects of gender discrimination in the Indian Act.
Number nine is that Canada, in partnership with those same groups, negotiate the mandate, terms of reference, funding structures, and deliverable objectives of a joint consultation process that will lead to further amendments to the act dealing with the other discrimination issues in the short term, but negotiate a similar process for the long term to establish modern treaties, self-government, and first nations jurisdiction over citizenship.
Do I have any time left?
