Bill C-31 (Historical)

Tlicho Land Claims and Self-Government Act

An Act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other Acts

[Mary Eberts, As an Individual]

Thank you very much for inviting me. I also offer thanks to the Algonquin Nation, which hosts all of us on its territory.

I have been counsel in many cases where women or women and their children have sought to challenge the denial of status under the Indian Act. I have also made representations to this House and to the Senate on behalf of the Native Women's Association of Canada and on behalf of Indian Rights for Indian Women on the issues relating to registration and women.

On this occasion, I appear as an individual. I do not speak for any client.

I would like to add some recognitions to those offered by Dr. Palmeter. In the Descheneaux case, two other plaintiffs were also women: Susan Yantha and her daughter Tammy. They challenged the inability of a woman to pass on her status to a child born out of wedlock in certain circumstances. I would also like to recognize or complete the recognition of Mary Two-Axe Earley by recognizing Jenny Margetts and Nellie Carlson, who helped found the western branch of Indian Rights for Indian Women.

I have two points to make today. Bill S-3 is under-inclusive, and the process being used for amending the registration provisions by way of Bill S-3 is not in accordance with the recommendations of Madam Justice Masse.

I begin with some comments on the origins of discrimination against women, which I ask you to bear in mind as you consider whether to endorse a narrow approach to remediation of this law, as has been installed in Bill S-3, or a broader approach to remediation of the law, as has been recommended by Dr. Palmeter, Sharon McIvor, and others.

It's crucial to remember that one of the main purposes of the Indian Act was to hasten the “civilization”—meaning assimilation—of aboriginal people. One of the primary mechanisms for achieving assimilation was the definition of “Indian” included in the act. Anyone not within that definition was, because of that exclusion, assimilated, that is, no longer the responsibility of the Government of Canada.

Why was this done? We should never forget. Even when there was a treaty about land, the first nation was assigned its land and the land was administered under the Indian Act. The connection between Indian land and the Indian Act has a key consequence. If the number of status Indians could be reduced to zero, then the connection between aboriginal people and their lands would be severed. There has always been a link between the disentitlement of women from conferring status in their own right and the coveting of Indian land.

Historically, women were the primary targets for exclusion from the act. One reason for this was the male privilege that reigned supreme in the Victorian era, when the act was first conceived. Another was the willingness to override indigenous laws about membership. These two reasons acted together. The Indian Act enforced the Victorian family with its paterfamilias, overriding the rules of many indigenous cultures that had the woman as the source of membership in the nation. For example, the Tsimshian “stick law” provided that a woman and her children were always members of the nation, welcome back even after they had separated from it through marriage or for other reasons.

The one exception to this male hegemony over status was the right of the Indian woman to confer status on a child whom she bore out of wedlock. This was not an unqualified right. It was possible under many versions of this legislation for the child's entitlement to status to be challenged. When the case of Martin v. Chapman held that a male Indian could also confer status on his child—namely, his son born out of wedlock—that right did not carry with it any possibility that someone could protest that the father was not an Indian.

This, too, is a sign of disproportionate power for the male under the Indian Act system. Simple acknowledgement of the child as his own, whether or not it's true, would confer status on the child. In the “unstated” or “unacknowledged” paternity rules under the present act, we see a powerful restatement of this male privilege, where withholding that acknowledgement, or the impossibility of getting it, prejudices the child's acquisition of full status.

Each time reform of the Indian Act holds back on giving full rights to women, either in the present day or vis-à-vis past rules, we are perpetuating the system that used disinheritance of women and their children as a tool of assimilation. If we continue this assimilationist approach in the construction and administration of the Indian Act, we are continuing the approach of the colonizer, so well summed up in this statement by Duncan Campbell Scott, then deputy superintendent of Indian Affairs. He said this in 1920:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

Let me mention some areas of under-inclusiveness. Let me begin by saying I agree with Dr. Palmater and Sharon McIvor about the practicability and the wisdom of amending 6(1)(a) for all purposes. I also agree with the CBA in its recommendation about clause 8. I would refer you to the brief of the Grand Conseil de la Nation Waban-Aki for some further instances where Bill S-3 does not fulfill its mandate.

If I may, I have one last point about consultation. I agree with the witnesses who have said that consultation is not appropriate in a case where you are remediating violations of equality rights. Bill C-31 was the product of consultation and we see now, 30 years later, people are still litigating the unconstitutionality of what that consultation produced.

Thank you.

[Lynne Groulx, Executive Director, Native Women's Association of Canada]

Thank you very much.

Good afternoon, Mr. Chairman, committee members, and distinguished witnesses and guests.

My name is Lynne Groulx. I'm the executive director of the Native Women's Association of Canada. My colleague Amy, who is with me here, is a senior manager at NWAC. She's also a researcher par excellence, and she will probably be able to answer many of the questions that you might have on this subject.

First, I'd like to acknowledge the Algonquin peoples on whose traditional territory we are meeting today.

Thank you for the opportunity to present. I am a Métis woman of mixed Algonquin and French descent. I bring with me the voices of my ancestors, the concerns of aboriginal women from across Canada, and the hopes of our future leaders, our youth.

NWAC is the national aboriginal organization in Canada that represents the interests and concerns of aboriginal women and girls. NWAC is made up of provincial and territorial members' associations from across the country. Our network of first nations and Métis women spans north, south, east, and west, into urban and rural on-reserve and off-reserve communities.

We've all read the staggering headlines reporting the high rates of suicide among aboriginal youth, including some girls as young as nine years old. In light of these recent tragedies, I encourage all of you to join me in picturing someone in your life who you deeply care for, whether it be a family member, a friend, or a colleague. For me, I envision my own daughter, a 17-year-old aboriginal woman full of potential and enthusiasm for life. It is devastating to hear on the news that another one of our communities is struggling with this issue of youth suicide. The thought of losing my own daughter to suicide is absolutely unbearable.

In Canada, we must act quickly and compassionately to address this urgent crisis occurring in our aboriginal communities. We must allow the reality and the impacts of these suicides not only to touch our hearts but to drive us to take action now. I cannot stress this enough. Every single life matters.

The forced assimilation through discriminatory government practices such as the Indian Act, residential schools, the sixties scoop, and Bill C-31 have tremendous negative impacts on the health and well-being of aboriginal people. Socio-economic and cultural factors that contribute to the suicide crisis among aboriginal people include but are not limited to: poverty, unemployment, lack of access to health and social services, substandard housing, food insecurity, and the loss of culture, language, and the land.

Many continue to suffer the impacts of these policies generations later, including my own daughter. Aboriginal women and girls, their families, and their communities continue to experience anxiety, depression, homelessness, post-traumatic stress, and other mental health problems and illnesses that can contribute to harmful behaviours such as drug and alcohol abuse, self-harm, and suicide.

For decades, researchers have been reporting and continue to report various high suicide rates among adults and youth in our aboriginal communities that are several times higher than rates among non-aboriginal peoples. In the past year, the community of Bearskin Lake First Nation in northern Ontario declared a state of emergency after a series of deaths, including that of a 10-year-old girl. Then, the Pimicikamak Cree Nation in northern Manitoba, over a three-month period, had six youth suicides. In the month of March, Attawapiskat First Nation in northern Ontario declared a state of emergency after 100 people had attempted suicide since September 2015 alone.

In the latest news reports, Stanley Mission, La Ronge, and Deschambault Lake in northern Saskatchewan lost five young girls aged 10 to 14 within a week, because of suicide. These innocent children, who should be outside playing and enjoying their youth, have lost hope and are choosing to end their lives. For many isolated aboriginal communities, suicide or attempts at suicide have become normalized behaviour.

Recently, NWAC collaborated with Statistics Canada on an article, “Past-year suicidal thoughts among off-reserve First Nations, Métis and Inuit adults aged 18 to 25: Prevalence and associated characteristics”. Some of the key results do not come as a surprise. At 27%, the prevalence of lifetime suicide thoughts among young adults was almost double that of their non-aboriginal counterparts, at 15%. Most interestingly, aboriginal young women in particular showed a trend towards a higher prevalence of lifetime suicidal thoughts and were more likely than men to report mood or anxiety disorders and a bullying environment in school.

Research shows that high self-worth, strong family ties, strong social networks, and education can help prevent suicide in our communities. Also, in 2008, research by Chandler and Lalonde found that community and individual empowerment, control over personal lives, connection to culture, participation of women in local band councils, and the control of child and family services within the community protect against suicide.

The remote first nation of Bella Bella in British Columbia is a great model for preventing youth suicide by reconnecting the youth with land and culture. They built a youth centre to run youth programming 14 hours a day, seven days a week, which focused on traditional songs and culture, hunting and fishing activities, language revitalization, and education on their history and community.

There's also another indigenous youth program in terms of southern Treaty No. 3, which has identified five key priorities for moving forward. Those priorities are listed in a report and come from the youth themselves: one, the need for support to learn how to be a healthier family; two, crisis support workers; three, support around death, loss, and suicide; four, access to elders and culture; and five, safe spaces. We think this is a very interesting and informative report.

It's time to act on the knowledge and the need for change as voiced by our communities. We need to develop gender-appropriate and community-driven youth programs and services to help build self-esteem and self-worth and rebuild the connection among our youth to land and culture.

We acknowledge the Liberal government's recent commitment of $70 million in new funding over the next three years to address health and the suicide crisis involving indigenous peoples living on and off reserve territories. However, long-term solutions, improved resources, and gender and culturally aware mental health services, both on- and off-reserve, are urgently needed to effectively address the crisis and the underlying systemic issues contributing to the risk of suicide and suicidal thoughts in aboriginal youth across Canada.

It is too often easy for leadership and governments to forget about these matters as long as they do not occur on their doorsteps. If Canada refuses to spend the necessary funds on aboriginal communities, thereby denying children access to clean water, safe housing, education, and equitable health care, Canada is essentially deciding by doing so that aboriginal families and children matter less. This institutional form of racism allows for disproportionate spending.

On January 26, 2016, the Canadian Human Rights Tribunal issued a landmark ruling that found the federal government guilty of racially discriminating against first nations children in its delivery of child welfare services on reserves. The Canadian government was ordered to take immediate action to ensure its program budget responds to the unique needs of first nations children and their families and to apply Jordan's principle to all first nations children on- and off-reserve.

It has been nearly one year since that decision, and still the Liberal government has not adequately responded to the discriminatory underfunding of child welfare services and is also failing to properly implement Jordan's principle. Cindy Blackstock has stated that equity in social services can reduce the tragedy of youth suicide, but still the Canadian government has not acted on this.

Canada is a wealthy country, and our children deserve better. We must continue to work together to realize our children's potential and to help them have hope so that they can begin to accomplish their dreams. That requires us to take bold and immediate steps forward to create the change necessary and to make it a reality.

Let's show them that we are a caring and inclusive society where the future is bright. Thank you.

[Teresa Edwards]

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.

[Clément Chartier]

Thank you, Mr. Chair.

First, we talk about the historic Métis Nation, a distinct people who emerged primarily in western Canada, but also extend into Ontario—with a common history and common language, Michif, and with a flag—having all the indicia that make a people a people. So we're not talking about mixed ancestry people; we're talking about a people.

And we do extend into the Northwest Territories, and at this time, the Métis in the Northwest Territories are not affiliated with the Métis National Council, through their choice.

Part of the criteria we have for joining the Métis National Council is that you have to have the ballot box selection—one person, one vote—and it has to be Métis only. In 1994, the Métis Nation of the Northwest Territories decided that, no, they were going to continue with their way of electing people, and also retaining non-status Indians or Bill C-31 members. I'm not quite sure where they are right now. They are part of our nation but they're not part of our governance and infrastructure.

You asked about the Métis in eastern Canada. Well, I don't know of Métis in eastern Canada. I know there are people of mixed ancestry, and I do know they call themselves Métis, but they're not part of the historic Métis Nation homeland, or part of the Métis Nation itself, so they wouldn't be Métis Nation citizens. But we're not going to go out there and say that they can't identify or express who they are. They're just not part of our nation, in the same way that the Blackfeet are not part of the Cree or not part of the Haudenosaunee. We're a distinct people.

How many of our people are registered? I don't have those statistics, but we've been going through a process. In 2002, we adopted criteria to make clear who the citizens of our nation are, and in 2003, the Supreme Court of Canada basically reaffirmed that. Since 2004, the federal government has provided us with money to do a registry of our people, and we're still in the process of doing that.

For example, I think in Saskatchewan we had about 40,000 people who had signed up for membership prior to that. Now they're going through the whole process. We need everyone to reapply because there may be some who don't fit the criteria. They may be of mixed ancestry, but they may not be descendants of the historic Métis Nation.

The Supreme Court of Canada, again, has been very clear on that. And this year, in the Cunningham case, dealing with Métis settlements, the Supreme Court of Canada stated that settlement lands were set aside for the Métis, and the purpose is so that.... The land is important for the identity and culture of the Métis. It stated that removal of people who have taken Indian status under Bill C-31 is a legitimate exercise. So basically, we have some confirmation from the highest court and recognition of our existence as a distinct people.

We are in the process, and it'll take us several more years, and perhaps longer, of coming to an exact number of who we actually represent, because the benefits that people get from joining are the right to vote and the right to participate in our democratic processes. But there is no real benefit attached to it, as there is with Indian status for non-insured health benefits, and so on and so forth. I'm sure if we had that, more people would probably register, but we're hoping people register because of the affiliation they want. But it's not a requirement. They're still Métis, we still represent them. So we can't give you an accurate number. We could always find a number for where we're at in re-registering our people, but I couldn't give you that today.

In terms of the relationship with the provinces, we have the protocol. At the Council of the Federation meetings, I've asked the five premiers, from Ontario westward, if the federal government invited them to the table, would they come. They said yes, to deal with issues. So based on that, in September—a couple of months later—Minister Strahl and I entered into this protocol for a bilateral relationship. But there's also a permissive multilateral relationship where we would invite the provinces to engage with us, including on a number of issues—health, education, and economic development.

Thus far the five provincial governments have engaged with us on economic development. We've had two Métis economic development symposiums. Our last one was where the Minister of Aboriginal Affairs and Northern Development, who is also the federal interlocutor for the Métis, sat with the five ministers of aboriginal affairs and our leadership. We did this in December, and we've agreed that our senior officials will continue meeting, and in 2013 we'll come back to principles with a national economic development strategy for the Métis. So we're in that process.

I've written a letter to Minister Aglukkaq and raised it with the Prime Minister—I believe that was in February—that we'd like to have a similar process with respect to health, asking the federal minister to invite her provincial counterparts to come to the table with us. We see a big role for the provinces in this; we're not saying the federal government has to carry the full load.

In terms of legislation and legislating our constitution, a big issue is the financing of our governance. We want to move toward block funding. Currently we get 30 to 40 agreements at different times for small amounts, and most of our time is taken up doing reports and looking at these things. Treasury Board guidelines have permitted block funding for about four years now, so we are engaging again with the federal interlocutor to look at these issues.

What impact would the constitution have on our provincial affiliates? Basically the Métis National Council comprises the five provincial affiliates, or governing members as we call them. As we talk about our own constitution we're also looking at their constitutions to see how they will fit. At the very end we should at least have a division of powers, and jurisdictions would be very clearly spelled out, similar to the Constitution Act of 1867 with the division of powers.

They are very supportive. We are in a two-and-a-half year process. We hope by December 2013 to adopt internally a constitution and then move to the next stage. This process is being funded by the federal government.

Gender Equity in Indian Registration Act

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Speaker, I am pleased to have the opportunity to comment on the bill. I am supporting Bill C-3, but I am supporting it with considerable reluctance and certainly not with much enthusiasm.

There should be no doubt that Bill C-3 moves the agenda forward on addressing gender discrimination in the status provisions of the Indian Act, but it is only one very small partial step toward full equality for aboriginal women and their descendants.

The government has brought forward these amendments as a response to and because of the efforts of Sharon McIvor of British Columbia. In my previous remarks on Bill C-3, I paid homage to the other brave aboriginal women who have fought the battle for full equality and have pushed the courts to recognize discrimination under the law and subsequently pushed Parliament to remedy the injustice. I would like to do so again today.

These women are Mary Two Axe Early, Jeannette Corbiere Lavell, Yvonne Bédard, Sandra Lovelace and, as I mentioned earlier, Sharon McIvor. Yet in acknowledging these individuals, I feel great sadness for them that the battle for full equality is falling to yet another generation of aboriginal women. We can be sure it will be the battle for aboriginal women. Discrimination is discrimination is discrimination and at some point we must take it upon ourselves as parliamentarians the responsibility to fully eradicate all gender discrimination in the Indian Act.

When Bill C-31 was passed in 1985, Parliament and the government of the day knew that the residual discrimination would remain. I want to read into the record some of the comments made. It is important that we know this because 25 years later we are poised to pass a bill that also leaves residual discrimination.

In April we heard in committee from Martin Reiher of the Department of Justice. He said Bill C-31:

—is a very focused answer to the McIvor decision, given the limited time we had to develop legislation in response to the British Columbia Court of Appeal decision of April 9, 2009. There are other issues that have been raised in litigation that are not dealt with by this bill at this time. Depending on subsequent court decisions, obviously, the government might have to consider how to respond to these other decisions.

I also want to read from Sharon McIvor, an increasing hero of mine, when she said to the committee in April:

—But when the act was changed in 1985, parliamentarians knew there was residual discrimination. [Former Minister] Crombie's records show that they understood that some of us would still suffer from the residual discrimination....yet they forced someone like me to take it through the courts and have the courts decide that it was discriminatory....I am here today to ask you, to plead with you, to include all of those women and their descendants who are discriminated against, not just the narrow view that the B.C. Court of Appeal addressed. As parliamentarians you know that the court does not draft legislation. They just put it back into your lap so you can do what is right.

A final quote from April that I will cite is from Gwen Brodsky, who is counsel to Ms. McIvor. She said:

—the 1985 act was--failed remedial legislation. Bill C-3 is a set-up for yet another instance of failed remedial legislation, for disappointment to aboriginal women and their descendants, who have been waiting for a long, long time for Parliament to do the right thing. That must be dealt with immediately.

Earlier this year the Liberal Party tried to end the cycle and address all the remaining residual discrimination in the Indian Act's provisions concerning entitlement to status. When Bill C-3 came before the aboriginal affairs committee, we introduced amendments that would have granted descendants of status Indian women born prior to April 17, 1985, full status under the Indian Act, exactly what had also been given to the descendants of status Indian men.

These amendments, although passed by committee through the unanimous support of the opposition parties, were ruled inadmissible by the Speaker after Bill C-3 was returned to the House.

We need a comprehensive legislative remedy. The amendments were ruled out of order as being beyond the scope of Bill C-3, which reads “provides a new entitlement to Indian registration in response to the decision in McIvor v. Canada”.

Again, I want to emphasize what others have said about the need for a comprehensive remedy.

Chief Jody Wilson-Raybould said in April at committee:

With respect to discrimination in any form, I do not agree with it whatsoever. I believe that it would be the position of any reasonable person, as you say, to eradicate discrimination wherever and whenever possible in today's age.

Jeannette Corbiere Lavell, president of the Native Women's Association of Canada, said again this year that if all discrimination was eliminated:

—then I would think that as aboriginal women, as an aboriginal women's organization, maybe part of our work would be done. We could move on to other things. But that would be really good to see if it took place in the very near while.

One last quote, although I have many comments, is by Betty Ann Lavellée, national chief of the Congress of Aboriginal Peoples. In April of this year she said:

—I want to see any and all forms of discrimination end once and for all, so that our children are not having this same discussion 25 or 35 years from now.

It is unfortunate that the government chose to write Bill C-3 in a way that responds solely to the narrow reading of the B.C. Court of Appeal in the McIvor case without providing the option to Parliament to address further residual discrimination through the legislation.

This regrettable choice has forced all stakeholders and opposition parties to make an extremely difficult choice regarding Bill C-3. How can we say no to equality for some when saying no means equality for none? What we can do, and we have tried, is to improve the bill, but as I will try and explain, the government has made this impossible.

I would like to remind the House that the B.C. Court of Appeal was only able to rule on the gender discrimination in the Indian Act experienced by Sharon McIvor and her son. That was the case before the court, not the full gamut of gender discrimination under the act.

While the court acknowledged that other types of discrimination most likely existed, its decision in the McIvor case could not apply a remedy to those issues as well. Therefore, the court ruled narrowly in favour of McIvor and left it to those of us in Parliament to craft a more fulsome response. Let me repeat, it was the government that then decided what this response would look like.

The government could have chosen to provide a legislative remedy to the McIvor situation, while also leaving the door open for Parliament to expand the legislation through amendments in order to get rid of the residual discrimination. If it had conducted a fulsome consultation with aboriginal leadership, aboriginal women, women's groups and communities, it would have heard a resounding desire to end the discrimination once and for all. That is certainly what we heard at committee. Instead, Bill C-3 was introduced without any real consultation and in a matter that meant all amendments would be out of order.

This is how Bill C-3 came to be, a bill that takes one more step in the long and arduous battle for full equality for aboriginal women, a bill that would extend status to approximately 45,000 aboriginal women and their descendants, but a bill that will leave the fight for full equality once again yet to another generation. Very soon we will be voting on Bill C-3, but at some point, as parliamentarians must decide when we are going to right this wrong.

We are now faced with Sharon McIvor taking her case off to the UN. Sharon announced that she would file a complaint against Canada at the United Nations. She has contended that Canada continues to discriminate against aboriginal women and their descendants in the determination of eligibility for registration as an Indian.

As she said, in taking this case forward:

I contested this discrimination under the charter. It took 20 years in Canadian courts, and I achieved only partial success. Now I will seek full justice for Aboriginal women under international human rights law. Canada needs to be held to account for its intransigence in refusing to completely eliminate sex discrimination from the Indian Act and for decades of delay.

She went on to say:

Because neither Canadian courts nor Parliament have yet granted an adequate and effective remedy for the sex discrimination which has been a hallmark of the Indian Act for more than a hundred years, I will take my case to the United Nations Human Rights Committee.

I would contend that it is unfortunate and, perhaps some might describe, shameful that this case has yet to go to the UN human rights committee. It will undoubtedly result in a further rebuke to Canada in the international arena, something our country and the government does not need.

As I said at the beginning, I am supporting the bill. I am doing it with reluctance, not with much enthusiasm. I look forward to seeing it move through Parliament.

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

Mr. Speaker, the member for Elmwood—Transcona is absolutely right. What we have had in place in this country since 1995 is a 2% funding cap, and that cap has already left first nations communities seriously behind because they have had a population growth in some cases of up to 11%. So do the math; 2% funding cap, 11% growth in population, and we see that there is a crunch happening on reserves.

Now we are talking about adding up to 45,000 more people, potentially. We know there are going to be increases, so I would argue that rather than having a study to see what the numbers might look like, we could at least put in place some plans around incremental funding that could be ramped up as the numbers become more apparent. We know there are going to be a number of people, based on our 1985 experience about the number of people under Bill C-31 that regained status. We already know that is going to happen. We know there is already a funding crunch on reserves. So we should be putting in that incremental plan to deal with it, not waiting for the results of another study.

Motions in Amendment

[Todd Russell, Liberal, Labrador, NL]

Mr. Speaker, I would say there was a similar clause about the same time the charter came into being in 1985. It did not stop certain challenges at that particular time; it did not provide the clarity the member speaks of.

I would say that the greatest clarity we can have in this House and the greatest clarity we can provide to first nations women across this country is to end gender discrimination once and for all. We have the ability as parliamentarians to do it. The government can withdraw Bill C-3 and come back with something that makes sense and puts this debate to bed once and for all.

Why do we want another generation to have to fight sections of Bill C-31 and the residual discrimination that will continue to exist under the Indian Act?

Bill C-3--Gender Equity in Indian Registration Act

[Bruce Stanton, Conservative, Simcoe North, ON]

Madam Speaker, I caught about half of the remarks of the member opposite who is also a great contributing member to our committee, I might add. But on the question in terms of trying to expand the scope of the bill to, as she says, address some of these discriminatory issues, would she not agree that in the past, as in 1985, as with the lower Court of Appeal, the presumption that some of these measures will in fact address those gender issues? We have seen in the past where they have actually given rise to other unintended consequences. The very issue we are dealing with today was for all intents and purposes an unintended consequence of Bill C-31.

Therefore, would it not behoove the House to proceed in a measured and guarded way in line with what the Court of Appeal has given us and then use the secondary exploratory process to get a more broader examination of these issues?

[Bruce Stanton, Conservative, Simcoe North, ON]

Madam Speaker, I rise in the House today to speak to the motion of the hon. member for Nanaimo—Cowichan who, I must say, makes a tremendous contribution to our committee work through her knowledge and experience that she lends each and every day that we are in committee.

Today we are dealing with a very complex question, as I am sure hon. members know. It is a question that has peaked our interest these last few weeks and has been an ongoing claim before the court,s particularly from Ms. McIvor, but there are others as well who wish to address some of these provisions of the Indian Act that raise difficult questions relating to membership and registration.

Last month our government was proud to introduce Bill C-3, the gender equity in Indian registration act. The primary objective of the legislation is to remove a cause of gender discrimination under the act.

The second objective is to meet the deadline imposed upon Parliament in a ruling of the Court of Appeal of British Columbia. That is an important point because initially the court gave Parliament until April 6 to correct this. It ruled certain sections of the Indian Act invalid, discriminatory and having no effect, but allowed Parliament one year. It then understood, as we resumed the session early in March and that provided Parliament was getting to work on these amendments, that it would see to it to give us an additional three months.

We all realize that there is a time limit and we need to get the bill through the House to at least address the critical issue that the Court of Appeal identified for us.

Rather than have its decision take effect right away, the court suspended the effects of the decision until this year and required us to enact effective legislation to solve the problem. The court has given us until July 5, but if we fail to meet this deadline, a key section of the Indian Act, which is the one that spells out the rules related to entitlement to registration, also known as Indian status, will cease to have legal effect in British Columbia.

This takes us right back to the question I just asked the hon. member for Halifax. The consequences are the area of question, the almost limbo that it would put the whole essence of registration in British Columbia, but it also calls into question the fact that paragraphs 6(1)(a) and 6(1)(c) that would be reinstated under Bill C-3, if they are not reinstated it would not take too long I would suspect before other decisions would come forward in other provinces that would throw those registration provisions into question. Should the two paragraphs of section 6 cease to have legal effect, it would lead to uncertainty and would produce a legislative gap that would prevent the registration of individuals associated with British Columbia bands.

In many ways, this is the crux of our approach to Bill C-3. It is essential that we respond as directed by the decision of the B.C. Court of Appeal and also that we implement this response, which is Bill C-3, with extremely tight timelines, as I have just described.

The legislation now before us proposes to change the provision used to confer Indian status on the children of women, such as Ms. McIvor. Instead of subsection 6(2), these children would acquire status through subsection 6(1). This would eliminate the gender based discrimination identified by the court.

I believe that every member of the House stands opposed to discrimination based on gender, of that we are all well aware and it is clear. Despite this conviction, however, I expect that all members appreciate that equality between men and women is difficult achieve. Bill C-3 would take Canada one significant step closer to this important goal. This issue is all about the ongoing effort to eliminate gender discrimination, and it is ongoing, as I will describe.

The government's approach has always been to act in collaboration with the people directly affected by these issues at play. Bill C-3 is no exception. Last year, following a thorough review and analysis of the court's decision, departmental officials had technical briefings with representatives of five 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 to 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.

Several common themes emerged during the sessions and in the written submissions. Many people were expressing concerns about broader issues of registration, membership and citizenship. We know that the broader reform on these matters cannot be developed overnight or in isolation, least of all just within the context of a parliamentary committee with a short timeframe.

Based on the views expressed during that engagement process, we have announced that these broader issues will be considered in another exploratory process, a process that will extend beyond the scope of this bill before us and that will be taking place over the next few months.

I think all members should recognize that this is something that came directly from those who were involved and participated in the consultations in advance of Bill C-3. This is not something that was just picked out of the air as a way to create a more expeditious route for the adoption of Bill C-3. This is something that was recognized, suggested and recommended by the leadership of various aboriginal groups right across the country.

This will be done in partnership with national aboriginal organizations. It will involve the participation of first nations groups, organizations and individuals at all levels. The findings of the exploratory process will inform the government's next steps regarding initiatives on these issues.

Far from being conclusive, Bill C-3, by its very nature, recognizes that it will solve the question and the problem of the case of McIvor v. Canada that was before the B.C. Court of Appeal. It was necessarily narrow and concise in its scope so as to solve that problem but to not give up on the question of moving forward to address some of these other issues around membership and citizenship.

I am confident that the exploratory process will provide an opportunity for a comprehensive discussion and assessment of these broader issues. This work, however, as I pointed out, will be done separately from the legislation. It allows us to focus our attention on the legislation that is now before us and the solution that it offers to the specific concerns that were identified by the B.C. Court of Appeal.

As important as this work might be, it cannot take precedence over Bill C-3. It must not lose sight of the fact that the legislation now before Parliament responds to a very specific court ruling and a prescribed deadline, as I said earlier, of July 5. The ruling and the deadline informed the very design of Bill C-3 and it is for this reason alone that the proposed legislation is, as I say, very precise, very compact and focused.

Not for one minute have any of the members, certainly not the members around our committee, suggested otherwise, that there are not other issues that need to be dealt with. As a matter of fact, none of the committee members, although I cannot speak for all of them, would have been surprised by what we heard from the witnesses. The member for Labrador commented earlier this morning about what we heard from the witnesses. He is absolutely correct. None of us were surprised by that because we knew, even through the consultation process, that these discriminatory issues existed and needed to be dealt with. However, we also had the urgency of the McIvor question, something the court handed to us that we had to deal with urgently.

As Bill C-3 proceeds through the process, we must and will continue to work in partnership with first nations and other aboriginal groups and organizations to identify and discuss these critical issues. This is a process we have talked about that will remain separate, and we will proceed on that basis.

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 British Colombia Court of Appeal'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. In essence, Bill C-3 represents a forward step by a country committed to the ideals of justice and equality.

I know there have been a number of comments and discussions by members in questions and comments and, through the course of this debate, it has been identified that there are other areas of membership and registration that members and the government should be considering in terms of making the Indian Act more responsive to these gaps and questions that continue to be raised by aboriginal leaders and individuals across the country.

I would encourage members, certainly those members on committee, to read, if they have not already read it, the B.C. Court of Appeal's decision to see what the appeal judge said in respect of why the Court of Appeal narrowed the scope of that decision, because it had some justification to do that. It was looking at Bill C-31, which was passed in 1985. This legislation, at that time, had been around for 24 years, and because it had been in place for such a long time, people, in this particular case aboriginal people, had become acclimatized to the provisions of that bill. Families and aboriginal organizations had each made decisions based upon that legislative regime that existed.

When a Parliament comes along and decides to change and amend the very regime by which people had made decisions and existed in the course of 24 years in this case, there is no question that one can look back and say that yes, some discrimination occurred there. The court clearly has upheld that assertion that there was discrimination there.

However, once we go back and amend it, we need to be careful, because what we might also be doing by conferring rights and privileges to one group of people is upsetting the equality and certainty that existed among those families that were there.

It is a rather interesting principle to get one's head around, but I would like to read one section of the decision that I think squarely hits the nail on the head. In this case, the Appeal Court judge is talking about Bill C-31. It reads as follows:

The legislation at issue has now been in force for 24 years. People have made decisions and planned their lives on the basis that the law as it was enacted in 1985 governs the question of whether or not they have Indian status. The length of time that the law has remained in force may, unfortunately, make the consequences of amendment more serious than they would have been in the few years after the legislation took effect.

Contextual factors, including the reliance that people have placed on the existing state of the law, may affect the options currently available to the Federal government in remedying the Charter violation. It may be that some of the options that were available in 1985 are no longer practical.

That gives us a sense of the difficulty that we have with amendments to the scope of Bill C-3.

Members will know that Bill C-3 was passed at second reading, and by our own procedural rules we are not allowed to expand its scope. Indeed, that is the very reason we are here today: we are discussing the question as to whether the House would consent to allowing the committee to expand the scope of the bill.

This is a question that deserves serious consideration. We have to tread very carefully. Committee members know that the kinds of issues brought to us by the witnesses we heard are legitimate. As the member for North Vancouver mentioned, there is far from being a consensus of opinion. There are differences in what we heard in terms of how some of the registration provisions would be implemented, particularly at the community level.

The member for Labrador mentioned, for example, the remarks of one of our witnesses, Pam Palmater, who is from Ryerson University. I must say that Ryerson is my alma mater as well; I had to throw that in.

Ms. Palmater was very clear. She brought a different perspective to our committee because she spoke as an aboriginal person who did not have status and lived off reserve. She had a perspective different from what we heard from people who came from a different experience, having lived on reserve all their lives.

There is no doubt that anyone would be challenged in trying to understand some of the intricacies in the bill, but what remains clear is that we have a mission in front of us to carry on.

As I outlined, the first thing we need to do is address the issue that the British Columbia Court of Appeal put in front of us in regard to the weaknesses in Bill C-31 as they apply to the McIvor v. Canada case. That is before us and that is what Bill C-3 does.

We recognize that there are other issues. That is the exploratory process that we now need to put in place. We need to bring some certainty to the registration provisions, sections 6(1)(a) and 6(1)(c), so that we have a position that people can depend on going forward. We need to continue to work with aboriginal groups right across the country to refine some of the citizenship and membership questions.

I will leave it at that. I invite questions from members. Some members will actually be working together in committee this very afternoon on this question, and I know the discussion will continue.

I must say that it has been a fruitful discussion. This is an issue that we do not always get a chance to talk about, particularly here in the House. It is a rare occasion when we can have such a full debate on a question that is very important to aboriginal people right across the country.

[Megan Leslie, NDP, Halifax, NS]

Madam Speaker, I am proud to speak to the motion put forward by the hon. member for Nanaimo—Cowichan to expand the scope of Bill C-3 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.

There are a few problems with Bill C-3. For example, it attempts in section 9 to take away the right to sue. It is a bit problematic. Some witnesses came forward and said we really need to look at this section again.

Quite a number of witnesses are concerned about the fact that there may not be resources to process applications in a timely way. We saw that when Bill C-31 was enacted. That is another area where there is a bit of a problem, and we need to look at it.

The motion we are speaking to deals directly with the fact that under Bill C-3 there is still gender discrimination, despite the government's attempt to address gender discrimination as a response to the McIvor decision. The Assembly of First Nations made a good comment specifically about this. It said that this legislation would defer discrimination to one or two generations later. It would entrench differential treatment of women.

The AFN is also concerned with other problems, like increased financial pressure, the creation of divisions within some communities and families, and declining status.

Let me get back to the motion before us. The AFN has been very clear that Bill C-3 would not adequately deal with the differential treatment of women.

Permit me to give the House a quick overview of this situation.

This stems from a case that Sharon McIvor brought forward. Ms. McIvor was born in 1948 and was not a registered Indian. She married a non-Indian in 1970. Ms. McIvor did not believe she was entitled to status under the Indian Act, but regardless she would have lost her right to status under the Indian Act when she married a non-Indian.

When Bill C-31 came into force in 1985, Ms. McIvor applied for Indian status on behalf of herself and her children. This was an incredibly long process, but after many years she obtained Indian status. But her son Jacob Grismer was not able to pass his status on to his children because his wife was not a status Indian. Mr. Grismer and Ms. McIvor challenged the 1985 amendments to the Indian Act on the basis that the status provisions contained residual discrimination based on sex. They won their case at the B.C. Court of Appeal.

Even though they won their case, we still find ourselves standing here in the House of Commons debating what is essentially the same issue, residual discrimination based on sex.

Let us look at the government's response to the McIvor decision.

A really good presentation was done at committee by the Canadian Bar Association. It encapsulated the government's response.

The federal government scheduled several sessions with national and regional aboriginal organizations. It accepted written comments prior to the introduction of Bill C-3.

The government has now come up with this bill. There are quite few pieces, but the main amendment proposes the addition of section 6.(1)(c.1) to the Indian Act. It 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 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.

The CBA pointed out, and it is a bit puzzling, that a woman would have to have a child for this to be triggered. It seems there is a bit of discrimination here based on family status because a woman would actually have to have a child to fall under this section of the act. This is a bit odd to say the least.

To look at what this actually does and what this actually means, we can go back to the CBA brief. It put together an excellent chart. Conceptually, this might be a hard thing to think about and navigate in the mind to understand what this means in reality. But it is not actually rocket science. It is pretty clear if we can wrap our heads around the concepts.

The CBA has put together this beautiful chart listing this proposed amendment by Bill C-3. It has two examples: Sharon McIvor, married to a non-Indian man, and a hypothetical brother who is married to a non-Indian woman. If we follow this chart down and see what happens to their children and grandchildren and whether or not they have status, with these changes proposed in Bill C-3, the bulk of the situations would be actually the same. That is great. There would not be any discrimination.

Her son, married to a non-Indian woman, has status. The son of the hypothetical brother married to a non-Indian woman has status. That is great. They are all on par there. Sharon's grandchild, born after 1985, has status. That is great. The hypothetical brother's grandchild, born after 1985, has status. Again, everything is on the up and up.

This is where it comes a bit off the rails. For Sharon McIvor's grandchild, born before 1985, there is no status and therefore continuing discrimination. However, the hypothetical brother has a grandchild born before 1985 too and that grandchild has status. We are not talking about strange, adverse effects, discrimination that is hard to figure out or differential impact. We are not talking about hidden discrimination. This is overt. If we follow the lineage, the grandchild of the brother gets status while the grandchild of the sister does not. It is pretty straightforward if we think about it that way.

I would like to read from a submission of the Grand Council of the Waban-Aki Nation. They put together a great submission about the siblings rule and give a different situation. We have Sharon McIvor, and they talk about a woman named Susan Yantha. Susan Yantha was born in 1954 from a common-law union between Clément O'bumsawin, an Abenaki affiliated with the community of Odanak, and Anita Paradis, a non-Indian. At the time of Susan's birth, the Indian registration rules did not allow for the registration of “illegitimate” daughters of an Indian father and a non-Indian mother.

At the beginning of the 1970s, Susan married a non-Indian with whom she had a daughter, Tammy. Born from non-status parents, Tammy obviously had no right to be registered in the Indian register at the time of her birth.

In 1985, the federal government adopted Bill C-31 in a stated effort to eliminate discriminatory registration rules from the Indian Act. Pursuant to the new rules, Susan only had a right to section 6(2) “non-transmissible status” because she only had one Indian parent, her father. As a result, her daughter Tammy had no right to be registered. It goes without saying that Tammy's daughter, now aged four, has no right to be registered either.

Let us compare Susan's situation and that of her descendants to that of a hypothetical brother of hers, born in the same circumstances, and the situation of his descendants. That brother, whom we will call Arthur, would have had the right to be registered at the time of his birth. While the Indian registration rules did not allow for the registration of “illegitimate” daughters of an Indian father and non-Indian mother, they did allow for the registration of their “illegitimate” sons.

If Arthur had married a non-Indian, as Susan did, his wife would have acquired Indian status by marriage. Had Arthur and his wife had a child at the same time as Tammy was born, that child would have had the right to Indian status as a legitimate child of a status male, but would have lost that status upon reaching the age of 21 years because of the double mother rule.

With Bill C-31, Arthur, his wife and their child would have each been conferred transmissible 6(1) status in 1985, the goal of Bill C-31 being also to preserve the “vested” rights of those who had Indian status at the time the new rules were introduced. As to Arthur's child, his status would have not only been preserved but also enhanced, since under the new rules he would have enjoyed status indefinitely, not only until the age of 21, and could have passed on his status.

As a result, the child of the child of Arthur, or Arthur's grandchild, would have the right to non-transmissible section 6(2) status. This blatantly discriminatory treatment was described by the Minister of Indian Affairs in a letter written to Susan Yantha in 2002. As I said, that was a submission of the Grand Council of the Waban-Aki Nation.

It is pretty obvious there is discrimination. Also, to be blunt, it is obvious there is a solution and it is right in front of us. There have not been changes to the Indian Act concerning this issue since 1985. This is the golden opportunity, in 2010, to make sure the act does not discriminate against any women who fall under the Indian Act. The solution that has been brought forward by government is so narrow in its scope that all it does is address the injustice in which Sharon McIvor found herself. What we are going to have to deal with 25 years from now is the injustice that the next Sharon McIvor in a different situation will have experienced.

I would like to talk about solutions. My colleague from Labrador talked about how at committee witness after witness has come forward and has said that they know how to fix this. Witness after witness has said that there are some problems with funding and how to process applications and there is a problem with section 9, but at the very least, can we at least get the discrimination piece right?

There was a submission made by LEAF, the Women's Legal Education and Action Fund. It has followed this case through its entire history. It made a submission to committee. LEAF confirms its support for an amendment that will achieve the goal of eliminating all forms of discrimination against aboriginal women and their descendants. LEAF submits that the committee has the jurisdiction to propose amendments to the bill to achieve this end and believes the committee has jurisdiction because the bill is very broad in its scope. LEAF stated, “It is an act 'to promote gender equity in Indian registration' by 'responding' to the BCCA”--B.C. Court of Appeal--“decision in McIvor. The response by government can and should be comprehensive and should fully eradicate any vestige of inequality in the determination of Indian status”.

That is pretty straightforward. LEAF does have a legal eye and calls into question whether or not the committee has the jurisdiction to deal with this issue. It is important that LEAF raised this. It says that if it does have the jurisdiction then this is what the committee should do, but of course, it talks as well about if there is not the jurisdiction. In the event that the committee determines it is beyond its scope to propose amendments to fully eliminate sex discrimination, LEAF submits that consistent with the submissions made by aboriginal women and their organizations, the bill should be withdrawn and a new bill which fully redresses the discrimination suffered by aboriginal women should be introduced.

I find that very interesting. I am in agreement with the idea that the committee does have the jurisdiction to amend it. We can amend, but if the committee finds it does not have that power, then why are we only responding to the very narrow situation in which Sharon McIvor found herself? Why are we waiting for the next court challenge to come down the pike to deal with the residual discrimination in the act?

On that note, Dr. Pamela Palmater, a Mi'kmaq woman from New Brunswick and also the chair of Ryerson University's study of indigenous governments made a submission to the committee. I would like to read part of her submission about the conclusion. She said:

Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for widespread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon.

On that point, we have heard from the parliamentary secretary several times about this process to which Ms. Palmater referred. There is nothing bad about this further exploration process. That is fabulous. Let us explore away. Let us come up with great ideas. Let us be visionary and think about the future.

We do not need to actually envision the future when it comes to this bill. We do not actually need to pull in the best ideas on how to make this bill better because they are already here. All of the best ideas were put forward in committee about how to actually address gender discrimination under this section of the Indian Act. It is stunning to me that we are not seizing this opportunity.

I had the pleasure of sitting in on committee either last week or two weeks ago when the Canadian Bar Association appeared. I read its recommendation. It even drafted the section for us on how we could make the bill better and stronger. Of course, when it made its submission and I saw the writing in black and white about how to change the act, I thought it was a great idea, that those CBA folks are pretty smart and thank goodness they came because now we are going to fix the bill. I certainly was wrong and I am surprised because I find it mind-boggling that we would not actually bring in that provision.

I want to read the end of Ms. Palmater's submission to the House:

Let's try to get it right this time - my children are counting on you to uphold Canada's commitment to gender equality and human rights both in the letter and in spirit.

That says a lot. Those are very heartfelt words from Ms. Palmater about what we need to do.

In conclusion, I strongly support this motion by the member for Nanaimo—Cowichan. I am thrilled she brought it forward and applaud her for doing so. It was the smart thing to do and the right thing to do. I am completely baffled as to why we are not actually implementing the recommendations.

As my colleague from Labrador said, every single person who came forward in committee said this has to change and we can seize the moment and address gender discrimination. We are not doing it and I stand here wondering why. I hope my colleague is successful in this motion.

[Todd Russell, Liberal, Labrador, NL]

Mr. Speaker, I am proud to speak in favour of the motion put before this House by the hon. member for Nanaimo—Cowichan. I thank her for taking the opportunity to do that and for giving us an opportunity to debate an issue during what really is an historic time not only within the House but within our committee and the country.

Significant changes to the Indian Act do not happen often. The last time that such significant amendments were being debated was in 1985, 25 years ago. Those particular amendments came about because of huge and momentous court battles and struggles before the United Nations by some very courageous women, women like Corbiere-Lavell, who is now the president of the Native Women's Association of Canada, and Sandra Lovelace, who is now a senator.

Subsequent to 1985, another 25 year legal battle took place to once and for all get rid of sex discrimination within the Indian Act. We as parliamentarians are at an historic crossroads where we have an opportunity, once and for all, to rid the very archaic and parochial Indian Act of all sex discrimination.

This motion says that we should instruct the committee to allow the committee to go beyond the scope of the bill to make significant amendments. Why would we do this? We would do it because every witness who appeared before committee said that there would be residual discrimination. Government witnesses tacitly said that this was so. They never explicitly said so, but there was a tacit assumption on the part of even the government's own witnesses, such as lawyers from the Department of Justice and those who work within the Department of Indian Affairs, that there would be residual discrimination.

Beyond those particular witnesses, national organizations, such as the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada and the National Association of Friendship Centres, put forward possible amendments to the bill at committee and encouraged us to once and for all get rid of sex discrimination. Each of them in their submissions said that there would be ongoing sex discrimination under the Indian Act.

Regional organizations, such as the Union of B.C. Indian Chiefs, the Assembly of First Nations of Quebec and the Quebec Native Women Inc., also made presentations. I will go through some of their specific comments as we debate this in the House.

Legal organizations also came before us, such as the Canadian Bar Association, which represents over 30,000 legal minds in this country, and the Bureau du Québec. These organizations also said that there would be ongoing residual discrimination.

We also heard from individuals, experts, people with their doctorates in the Indian Act and people like Pam Palmater, who came with not only a professional opinion but one also imbued from her studies and from what she had learned throughout her time and in her own family. She brought a personal experience to this issue and she said that there would be residual discrimination.

The person who has waged battle for equality for the last 25 years, Sharon McIvor, came before committee and said that even with Bill C-3, even with what the government has presented to this House and what we are now debating in committee, there will be no true equality under the Indian Act for her and her grandchildren as compared to those in the male line. She also said that there will be continuing gender discrimination.

With all of that evidence in front of the government, why would it want to continue sex discrimination? Why would it not want to now take the opportunity to rid the Indian Act of gender inequality? Why would we as parliamentarians not rise to the task to end gender inequality when we see it and when we know it exists by virtually everyone's admission? The government sometimes talks a good talk about gender equality for women but we do not see it walk the walk. We do not see it step up to the plate.

I will go through what some of the witnesses told us, sometimes through written submissions. I will quote the Women's Legal Education and Action Fund because it lists out three specific examples where gender discrimination will continue to exist, even with Bill C-3. It said, “Aboriginal women and their descendants who regain status under Bill C-3 are not entitled to equal status with their male counterparts. Descendants of women born before 1951 will not be entitled to status, whereas descendants of men born before 1951 are entitled to status. Descendants of women in common-law or other non-marital unions with non-status men are not entitled to status”.

It goes on to say, “Bill C-3 does not address the existing Indian Act policy, pursuant to which all cases of unconfirmed paternity are presumed to be non-status. In response to Bill C-3, individual aboriginal women, aboriginal women's organizations, aboriginal governments and chiefs, including the Assembly of First Nations and legal experts, have demanded the eradication of all sex discrimination under the Indian Act”.

It emphasized the point right in B.C where some of the members opposite like to say that this will have the greatest impact because the B.C. Court of Appeal did apply specifically to the Province of B.C., but the proposes amendments under Bill C-3 would apply across the country.

The Union of British Columbia Indian Chiefs, when it appeared before the committee, said that Bill C-3, Canada's response to the B.C. Court of Appeal decision in McIvor v. Canada, was a limited approach which continues discrimination under the Indian Act against indigenous women and their descendants. It went on to say that we should make a number of amendments to eradicate sex discrimination and gender discrimination from the Indian Act, and it lists them.

The Congress of Aboriginal Peoples, a national organization, also came to the committee and admitted that there would still be gender discrimination under the Indian Act. It said that it wanted to make some changes. One of them was that, as an interim measure, Canada should amend section 6.1(a) of the Indian Act to include the following words, “Or was born prior to April 17, 1985 and was a direct descendant of such a person to Section 61(a) of the Indian Act”.

That is not in Bill C-3. That is in direct contrast to what is in Bill C-3. This would broaden it and get rid of many forms of discrimination. Of course, there were others dealing with other issues, but it was the Congress of Aboriginal Peoples that made that particular submission.

Members of the Quebec Native Women Inc. came to us and said that while they recognized the need to amend the archaic nature of the Indian Act, which is of itself discriminatory, they deplore the restrictive vision of the federal government focusing solely on a patchwork remedy to the specific problem of discrimination brought to light in the McIvor case. They went on to say:

This is a missed opportunity for the Government of Canada to finally eradicate the historical and institutionalized forms of discrimination that Aboriginal women and their descendants have been subjected to under the Indian Act since 1876. The Government’s proposal to amend the Indian Act will indeed cause further destructive divisions within families.

I mentioned earlier that individuals came before the committee presenting testimony. One was Pam Palmater who has a unique family situation with various parentage for various kids within her family and she outlined it to the committee. Under Bill C-3 they would be treated differently. There will be different status for different children just because their grandmother was a woman. They do not come from a paternal line, but from a maternal line, and she outlined that very clearly. She also wrote to the committee. She was quite succinct, but this is how she summed it up:

Canada has introduced a minimalist amendment to the Act and is seeking to deny compensation to those Indian women and their descendants who were wrongfully denied their identities,--

She went on to say:

The Court of Appeal in McIvor found the discrimination to be newly created in 1985 and not prior to the coming into force of the Charter.

So she is also bringing in the issue of the charter that came into force after Bill C-31 and the type of remedy that would be available to people admitting that there was discrimination between 1985 and the present.

She said and I am paraphrasing, to not once and for all get rid of the discrimination is to perpetuate the very negative stereotypes against Indian women that McIvor and others fought against, that they are less worthy, less aboriginal and less able to transmit their aboriginality to their children simply by virtue of being aboriginal women.

She went on to make a further argument that they must be allowed the opportunity to bring forward a charter challenge based on the discrimination that existed since 1985 to the present even with Bill C-3 brought in because we know there will be residual forms of discrimination.

Then we had presentations by the Canadian Bar Association. It has a section entitled “Continuing Discrimination”. It said:

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.

I have only taken excerpts from certain presentations by witnesses that were made before the aboriginal affairs committee, but I believe this whole debate comes down to the motion. Why not allow the committee to have its scope broadened on the bill and to allow us to make the amendments?

There are probably going to be amendments introduced even later today in committee and someone will rule whether they are in order or they are not in order. We will vote subsequently to that, but why not give the committee the opportunity and the latitude to introduce amendments based on what witnesses have brought before the committee to once and for all end gender discrimination? Why would the government not want that to happen?

I understand that this motion, brought before the House, will give the committee more latitude, more of a breadth of opportunity to make amendments that bring gender equality to all aboriginal women when it comes to provisions of the Indian Act.

Why would the government want to deny us that simple opportunity? Then we can take the time in committee to propose those amendments and once and for all get rid of gender discrimination. Why would the government want to perpetuate gender discrimination when it has the opportunity to eradicate it?

In 2010 we have as parliamentarians, almost at any age I suppose, these opportunities and we should take them and not deny them.

This is all we are asking the government to do. We think it is a sensible approach. The government talks about its extension from the B.C. Court of Appeal where the court granted one year and now it is going until the first week in July. The B.C. Court of Appeal said in its decision that if the government wanted more time, because it knows how significant these issues are and how complex they can be, it would have granted that time to the government.

However, the government talks about the deadline, but when its lawyers come before the committee, the government admits that it really did not have any legal obligation to even bring in Bill C-3. If Bill C-3 falls, who says it will bring in another bill.

If the government is true to its words, true to what it says, it will eliminate gender discrimination. But if Bill C-3 fails, I would ask the government, is it going to bring in another bill to deal with all of the sex discrimination that exists under the Indian Act? If it will not, why would it not? If it has taken the opportunity and made all these arguments about Bill C-3, I would think that the government would live up to its own rhetoric and bring in another bill in a very quick timeframe to deal with the residual discrimination.

It cannot use all of the arguments and rationale for bringing in Bill C-3, then have it fail and say it is not going to bring in another bill. I do not think the government can have it both ways.

I would say to the aboriginal caucus members of the Conservative Party of Canada to fight within their party for the change that is required. They should fight within their party to ensure that the committee can do its work today and for the aboriginal women who have fought so hard for many generations, or else what is an aboriginal committee or a caucus for if they do not fight those battles within their own party.

This is a historic time. It is an opportunity for us all to join together as parliamentarians and end gender discrimination and sex discrimination under the Indian Act once and for all. There is nothing that stands in our way. The House has been given an opportunity to vote on the motion that will allow the committee to do its work and the committee to respond to the witnesses that came before us. If we cannot respond to the witnesses who come before us in committee, what is the use of committees?

We hear witnesses because they are supposed to be able to influence us to make the appropriate changes. There has been unanimity from witnesses who came before us to make changes to end gender discrimination. Why would we not allow the committee the opportunity to do just that?

I am glad to speak to this motion. I invite questions. In speaking here today I want to honour those like Sharon McIvor and other women who have stood with her and indeed many Canadians who have stood with her for the last 25 years to once and for all get rid of gender discrimination. It is the right thing to do.

[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?

Motions in Amendment

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

Mr. Speaker, the member for Delta—Richmond East covered a number of points that I know I will not have time to address, of course, but I will touch on a couple of them.

One is that it is always interesting to me that in this House we have discussions in which it is said that first nations must be held to different standards than the rest of Canada.

When it comes to environmental concerns, I just need to point to the fact that I know the Department of Fisheries and Oceans was considering two mining permits that were going to kill freshwater lakes, which fish reside in, as tailing ponds. Therefore, on the one hand we have the non-aboriginal population that continues with environmental impacts that affect us, whether it is the tar sands or tailing ponds, so I am not sure that it is a legitimate argument.

When it comes to overlaps, the member is absolutely right. There are some concerns with overlaps. Certainly, the Penelakut, the Cowichan people and the Sencoten have all signalled some concerns around overlaps.

I know that the Penelakut and Cowichan have been quite actively working with the Tsawwassen to address some of the concerns around the overlaps. The government has provided some additional funding, both provincially and federally, certainly to Penelakut, to help with some of the research, background and negotiation around that. The overlaps are a concern. I know from speaking to people from Cowichan and Penelakut that they are working to try to resolve some of those concerns.

When it comes to off reserve people having a say, we have a court decision which recognizes that people who belong to a particular nation have the right to have a say in what happens on their traditional territories. We know that Bill C-31 from 1985 recognized that women who had married out of their community had the right to be reinstated to their communities, but they were impacted, as they were not allowed to return to their communities because there simply were not the resources to allow them to return.

So now what I am hearing people say is that because these people, largely women and their families, could not return to the reserve because of a lack of resources, they should not have any say in what happens. That is a much larger question around where governments choose to put their time, energy and resources.

Canadian Human Rights Act

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

Mr. Speaker, this is an important day in the House as we bring back the amended Bill C-21. Specifically, we are dealing with a couple of amendments.

Unfortunately, this bill has been decades in coming. I will share just a bit of history around this bill. Originally in 1977 an exception was provided that first nations living on reserve could not file complaints under the Canadian Human Rights Act against anything in the Indian Act. Part of the history around that so-called temporary exemption from 1977 being put in place was of course that there were discriminatory provisions in existence in the Indian Act.

One of those discriminatory provisions was around the fact that first nations women who married non-aboriginal men were actually excluded from living on reserve or maintaining their status. The report that came out in 2005 from the Canadian Human Rights Commission, “A Matter of Rights”, talked about the impacts on the community. I have a quote from that report about what happens to families:

The effect of this discriminatory provision was the effective banishment of over one hundred thousand women, their spouses, and their children from their communities and traditional homelands. This caused great psychological, emotional and economic suffering. This was especially true in cases where marriages broke down and First Nation women were not allowed to return home.

What we had in place was a system that disenfranchised thousands and thousands of women and their families. Because the department of the day knew this discriminatory provision was in place and was not at that time prepared to deal with that discriminatory provision, it asked for this exemption and it was put in place.

Subsequent to that, this particular part of the Indian Act was repealed and women were granted their status. I am going to come back to that in a minute, because that was Bill C-31 from 1985, which was one of the reasons that so many people who came before committee were so vocal about wanting some of the amendments that were put in place.

I am not going to read all the recommendations from “A Matter of Rights”, but there were five key recommendations. Part of what the Canadian Human Rights Commission recommended in 2005, before legislation was developed, was that consultation take place with first nations and that “an interpretive provision”, which would take into consideration the rights and interests of first nations, be put in place, and that there would be a transitional period of at least 18 to 30 months, and so on. There were a number of other recommendations.

However, part of the challenge that this House and the committee faced was that when the piece of legislation came before the committee, it was of course a very simple piece of legislation and did not include any of those elements. The bill was developed without consultation with first nations communities.

Therefore, to the Conservative government's surprise, there were a number of concerns raised by witness after witness who came before the committee. People were saying that in the past governments have passed bills in the House that have had some unintended consequences, and they did not want to see that happen.

The committee listened quite respectfully to the witnesses and subsequently proposed a number of amendments, which included an extended transitional period for 36 months. They included an interpretive clause and a non-derogation clause. The amendments we are dealing with today have done some refinement on the non-derogation clause and on some additional wording around gender principles.

I want to come back for a moment to the Canadian Human Rights Commission and why the committee faced some challenges around needing to hear so much more information, because the report of the Canadian Human Rights Act Review Panel, “Promoting Equality: A New Vision”, made a number of specific recommendations with regard to the repeal of section 67.

The panel said specifically,“Any effort to deal with the section 67 issue must ensure adequate input from Aboriginal people themselves”. We saw what happened when that did not happen: it took months for us to get to the place where there was some agreement in getting the bill back in the House.

The panel talked about resources. To go back to Bill C-31, one thing was very clear in Bill C-31, and in a minute I will quote the Native Women's Association of Canada. What was very clear under Bill C-31 was that there were inadequate resources once women regained their status in their communities. There was not enough housing. There were not enough other support services for women who could have returned to their community.

Therefore, one of the things that the Human Rights Commission recommended was that these resources be put in place. It said that resources must be put in place so that people actually have access to any redress mechanisms that might be deemed suitable once a complaint was filed.

It talked about the fact that there should be cultural recognition and said:

At the same time, the Act should permit a balancing of the values of the Aboriginal people and the need to preserve Aboriginal culture...These points raise huge questions about the social and economic structure of Aboriginal life and its legal underpinnings. Such matters deserve far more study than we have been able to give them. So again, there is a need for adequate consultations.

It talked about the balancing provision and stated:

The Panel believes it is highly important to balance the interests of Aboriginal individuals seeking equality without discrimination with important Aboriginal community interests. A balancing provision means that a Tribunal would actually hear evidence and representations on the issue of whether the interests of the individual and the community are properly balanced.

It talked about self-government and said:

The Panel believes something more should be done in order to ensure greater say in the human rights roles that apply to Aboriginal governments. This would be consistent with the principle of self-government.

Thus, the Canadian Human Rights Commission itself acknowledged the fact that there needed to be a number of other mechanisms put in place in order to make sure that this piece of legislation did not have the same kind of impact that Bill C-31 has had. Bill C-31 has had some difficulties in terms of the fact that when women were reinstated there were not the resources that I referred to, but there is also a second generation cut-off.

The second generation cut-off means that people whose parents were not both first nations could end up losing their status by the time the second generation is born. That is an unintended consequence. A report did some analysis on key reserves across the country and did some estimates on when the last status person would be born on those reserves. Some would say that quite cynically the government is not dealing with that provision because then first nations people would come under the guidance of the provinces rather than the federal government.

Bev Jacobs, president of the Native Women's Association of Canada, said in a press release:

Twenty-five years after having the Charter, NWAC is well aware that having rights on paper does not guarantee the ability of all individuals to exercise those rights. NWAC believes that consultation with Aboriginal peoples and specifically, Aboriginal women, is necessary to ensuring the rights are meaningful and exercisable. We are also well aware that membership provisions under Bill C-31, off-reserve rights, health, housing and education policies as well as the continuing lack of a matrimonial real property law regime that applies on reserve are issues that the federal crown will most likely see complaints filed about.

She goes on further in that press release to say:

--It is important for both the CHRC and First Nations communities to have the resources to build a relationship that acknowledges and respects human rights.” This is the only way equal rights for all can be promised.

We know that this very important piece of legislation, the repeal of section 67 of the Canadian Human Rights Act, which does provide the right for first nations people on reserve to file complaints under discriminatory provisions under the Indian Act, in itself will not guarantee human rights unless there are resources in place.

The Native Women's Association of Canada talked about resources around education and housing. We know, of course, that the children from Attawapiskat are here on the Hill today, talking about how their human rights are being violated by the fact that they do not have access to a school. They do not have access to the education that every other Canadian child off reserve expects as a fundamental human right. When Ms. Jacobs from the Native Women's Association of Canada talks about this, she knows full well that many communities simply do not have those resources that would make sure that their human rights were not violated.

In a brief that the Native Women's Association put forward to the committee on the repeal of section 67 of the Canadian Human Rights Act, it talked about the fact that governments, both the current Conservative government and previous Liberal government, should not have waited so long, and again quotes the Canadian Human Rights Commission, which said:

However, the Commission would prefer that the Government take a proactive approach to preventing potential discrimination and not wait for complaints to be filed and potentially lengthy proceedings to take place. The Commission, therefore, urges the Government, in consultation with First Nations, the Commission and other relevant bodies, to review provisions of the Indian Act and relevant policies and programs to ensure that they do not conflict with the Canadian Human Rights Act and other relevant provisions of domestic and international human rights law. Such a review should focus in particular on the impact of Bill C-31....

In conclusion, I am very pleased that the House has decided that it would support Bill C-21, the repeal of section 67, and I urge the government to ensure that the resources are put in place to deal with potential human rights complaints and also to ensure that the resources are available to the Canadian Human Rights Commission so it can go out and work with first nations governments to ensure this understanding is in place.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I think the member's question reflects the frustration of many people, not just in this House but within the first nations communities as well.

I would like to remind the member, though, about one of the things that I think happens in this process. For over 100 years, first nations people have had their lives and their rights trampled upon through a process of colonization. As for what is important about the duty to consult, I disagree with the member. We cannot underestimate the importance of the duty to consult.

What first nations people are saying to us over and over again is that they need to be part of the process and they need to be ensuring that our aboriginal treaty rights, as entrenched in the Constitution of this country, are respected. I do not even understand this concept of entrenching them in the Constitution if we are not going to respect them. The duty to consult is paramount in how we move forward.

In fact, we have had over 100 years of colonization and the imposition of policies and laws that have devastated our lives, most recently as Bill C-31, which I know the member is really aware of in terms of the implications. That is now going to the Supreme Court of Canada. The B.C. Supreme Court ruled in favour of the woman whose rights had been abused through the process of Bill C-31. This is going to have a huge impact in terms of status Indian roles in Canada.

This is really critical. This is what first nations women are saying in the dialogue sessions. They are not just saying that they have issues like severe housing issues. One of the primary issues, and I have to make this statement, is that they are concerned about their families. Through every system for first nations families, whether it is health, education or child welfare, they are not being provided money for prevention to ensure that their families stay together. And then we have the housing crisis.

Yes, all those day to day issues are issues that we have to hear about, but we need to hear from the women themselves.