Indigenous and Northern Affairs Committee on April 22nd, 2010

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am trying to understand because in your document, you wrote, “My key message to you today is that this is by no means definite”. When you say “this is by no means definite”, it means that residual discrimination not covered by Bill C-3 will continue to take place. Has someone studied that on your end?

[Jennifer Lynch]

Let me clarify that when we were called to appear we prepared by reviewing Bill C-3. We are not experts in the area, wo when you talked to me about an in-depth study, I read into it that you meant an in-depth study to develop an expertise in the area.

We're not experts. We've been following the proceedings and have seen that there's a consensus. That's what my opening remarks referred to.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Very well.

So, unless I am mistaken, even though you are not experts, after reading the bill once and reviewing it in general terms, it is clear to you that discrimination will continue if this bill is passed as is.

[Jennifer Lynch]

The answer is that the committee has heard from a number of witnesses who have highlighted areas of alleged discrimination, such as... Well, I can give you examples if you want--

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Ce n'est pas nécessaire.

[Jennifer Lynch]

But there seems to be sufficient information available to this committee--that we have observed--to suggest that this bill will not fully harmonize Indian status entitlement between descendants of men and of women.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Okay, we are getting there. So discrimination will continue to take place. That is what you are saying. Is that right?

[Jennifer Lynch]

We're not--

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Imagine, even Mr. Duncan understood that. It is not meant as a criticism towards you. Yes, there will be discrimination.

[Jennifer Lynch]

Well, thank you.

I think we all agree this is a very complex area. We have examined this ourselves and we have listened to your witnesses and I would agree with you--yes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I want to read you something. I am not sure whether you are able to study this proposed amendment. The problem, and you agree with me, has to do with section 6 of the act. I do not need an answer today, but I would like one by 4 o'clock tomorrow afternoon. That should be enough time. We have to make our amendments.

It is being proposed that section 6(1)(a) of the Indian Act be amended by adding: “or was born prior to April 17, 1985, and was a direct descendant of such a person.” That is the first point.

As for the second point, clause 2 of Bill C-3 seeks to amend section 6. I would agree that it is complex. Subparagraph 6(3)(c.1)(iv) would read as follows:

(iv) 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;

If that subsection were removed, do you think it would reduce or, at the very least, eliminate a great deal of residual discrimination? That was raised in your excellent presentation, which I fully accept. I do not need an answer until 4:30 tomorrow afternoon.

[Jennifer Lynch]

Mr. Chairman, we're here to provide whatever information we can within our area of expertise. This is an extremely complex area.

You have before you the submissions of the Canadian Bar Association, which has gone into great depth in making this analysis and represents 37,000 lawyers, me included. I would like to defer to the Canadian Bar Association.

I don't want to be disrespectful to you, sir, but I could launch my brightest minds for the next 24 hours to give an opinion, and it wouldn't be an opinion of expertise. I'm really asking your indulgence to not require a specific answer from us on this particular question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

You made me lose a minute, that does not make sense.

[The Chair, Conservative, Bruce Stanton]

There is a document by the Barreau du Québec on the same subject, which we will send you this afternoon.

Okay?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, but yes, since my time is up. Do not worry, I will come back to it.

[The Chair, Conservative, Bruce Stanton]

Okay. Let's go to Ms. Crowder for seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank you for coming before the committee.

You're absolutely right: this is a very complex issue. I'm not a lawyer, and I guess from a layperson's perspective, I find it really troubling that what we have is what I'm going to say is alleged residual discrimination, which everybody seems to be well aware of. We have any number of documented cases of alleged residual discrimination, whether it's the Canadian Bar Association talking about potential family status discrimination, which you highlighted in your presentation, or the Wabanaki and sibling discrimination. We have the problems with unstated paternity, which compound the difficulty.

From a human rights perspective, I'd like to put a question to you. We have, as I think the minister indicated, 14 cases currently winding their way through the court system around varying complaints on status. You now have a number of cases before you that you've referred to the tribunal around status. Has there been anything around citizenship as well?

[A voice]

No.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

So it's status.

So people have two options at this point with the repeal of section 67. They can go through the court system or they can file a complaint. You indicated in your presentation that we can wait for it to unroll case by case. Let's assume they win. We can piecemeal, case by case, amend the Indian Act and potentially end up with unintended consequences, as we did with Bill C-31.

Or, as you've suggested, we need to do a more comprehensive approach. Can you talk a little bit about specifics around that? Because the exploratory process you mentioned is not necessarily getting widespread support; it's not deemed as consultation. Is there something you can recommend? Again, it may be outside of your area of expertise. If you can't recommend something like that, can you talk a little bit about remedies? Because the remedy won't necessarily change legislation, right?

[Jennifer Lynch]

That's right.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

So let's say there's a discriminatory practice in the Kim Arsenault case and the Wabanaki. It's a sibling rule. Because of the date of birth here--Kim Arsenault was born prior to 1985--she won't regain the same level of status as in the McIvor decision. There is a court case going on. If she should file a complaint before the commission, and they refer it to the tribunal, which determines that it was discriminatory and there's a remedy, it won't change the law--

[Jennifer Lynch]

It could be appealed to the Federal Court.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

That could take years.

[Jennifer Lynch]

Yes. Exactly.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

We could continue to put people through this kind of grief and trauma and all of that for years, with no change to the law.