Bill C-3 (Historical)

Gender Equity in Indian Registration Act

An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs)

This enactment provides a new entitlement to Indian registration in response to the decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) that was issued by the Court of Appeal for British Columbia on April 6, 2009.

Admissibility of Amendments to Bill C-3—Speaker's Ruling

[The Speaker, Liberal, Peter Milliken]

I am now prepared to rule on the point of order raised by the Parliamentary Secretary to the Leader of the Government in the House of Commons on April 29, 2010 concerning amendments contained in the report from the Standing Committee on Aboriginal Affairs and Northern Development on Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

I would like to thank the parliamentary secretary for having raised this important matter as well as the hon. members for Labrador, Abitibi—Témiscamingue and Yukon for their comments.

In presenting his point of order, the parliamentary secretary argued that two of the amendments to Bill C-3 contained in the first report from the Standing Committee on Aboriginal Affairs and Northern Development, tabled on April 29, 2010, were beyond the scope of the bill as approved by the House at second reading.

The first motion presented by the member for Labrador during clause-by-clause consideration of the bill reads as follows:

That Bill C-3, in Clause 2, be amended by adding after line 16 on page 1 the following:

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

As reported by the parliamentary secretary, this motion was ruled out of order by the chair on the basis that it went beyond the scope of the bill as approved by the House at the second reading stage. The ruling was appealed and overturned by a majority vote and the amendment was subsequently adopted by a similar vote.

In respect of the second amendment under dispute concerning the short title of the bill, the parliamentary secretary argued that it had only been allowed to proceed because of the adoption of the first amendment. He noted that in the absence of any amendment requiring it, no motion to amend a bill's title was admissible under our rules.

The member for Labrador argued that the court ruling in which the bill responded identified discriminatory provisions related to registration in the Indian Act beyond those specific to the McIvor case. He stated that in its ruling the court of appeal pointed out that there may be other parts of the act that caused gender discrimination. He also drew to the attention of the House that there existed considerable latitude for the government to respond to the court's decision. In doing so, he cited a number of examples where legislation had gone well beyond the modifications to the law required by court decisions. He concluded that the amendment in question was entirely consistent with bills responding to court rulings.

The Chair has carefully examined Bill C-3, the Committee’s report as well as the proceedings in the Committee dealing with clause-by-clause consideration of the bill.

As has been frequently noted, the Speaker’s involvement in committee matters is limited except in cases where a committee has exceeded its authority. The adoption of amendments that are beyond the scope of a bill is such a case.

I would like to remind the House that the Speaker's role in these matters is limited strictly to determining the procedural issue that has been raised. While some members may be of the opinion that a different bill, perhaps broader in scope, ought to have been introduced, I must base my decision on the bill that actually was introduced and approved by the House at second reading.

House of Commons Procedure and Practice, p. 766, states:

An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the present case, in order to determine the scope of the bill, we need to put this legislative measure in its unique context. Bill C-3 was drafted in response to a ruling of the court of appeal for British Columbia, which struck down certain provisions of the Indian Act based on unequal treatment with respect to registration accorded to the descendants of some Indian women arising out of earlier amendments to the Indian Act made in 1985. The bill seeks to redress the specific inequality identified by the court. As such, it is of extremely narrow scope. It removes gender discrimination arising from transitional effects of the 1985 amendments as they relate to a particular family structure.

The amendment, adding a new sub-paragraph a.1 to the conditions of registration in section 6 of the Indian Act, deals with all persons born prior to April 17, 1985 who are descended from those registered under the Indian Act, or entitled to be so registered, prior to that date. Individuals, whose status is not affected in any way by Bill C-3 as adopted at second reading, would have a different status as a result of this amendment. It may be that the amendment seeks to redress an inequality arising out of the Indian Act, but it is not addressing the specific inequality identified by the Court and initially targeted by Bill C-3. Consequently, the amendment exceeds the scope of the bill as set by the House at second reading and is therefore inadmissible.

The second amendment, changing the short title of the bill, is dependent on the broadening of scope resulting from the first inadmissible amendment. As such, in the absence of any other amendment requiring a change to the original short title, it too is inadmissible.

I therefore rule that the amendment to clause 2 of Bill C-3 and the amendment to the short title are null and void and no longer form part of the bill as reported to the House. In addition, I am ordering a reprint of Bill C-3 be published to replace the reprint ordered by the committee.

I thank hon. members for their attention.

Admissibility of Amendments to Bill C-3

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

Mr. Speaker, I rise on the same point of order. If possible, I would like to add to what my colleague just said.

The member from Labrador presented this very important amendment. We are asking the Chair to accept this amendment, which is very important to the development and the future of aboriginal communities.

If I may, I would like to talk about something important. Two days ago, a group of about 100 aboriginal women left Wendake, a Huron community near Quebec City, headed for Parliament. They will stop in Trois-Rivières, Montreal and Gatineau, before arriving here on June 1. They are marching to speak out against Bill C-3. Why? Because this bill does not do enough—that is what they told us in committee—and because Bill C-3 will continue to allow the systematic discrimination that aboriginal women have been subjected to since 1876.

When I spoke in this House after Bill C-3 was introduced, I told the government that it could expect amendments to this bill, because it was very important to listen to what the aboriginal peoples had to tell us. We did our job.

There are things in life that I do not understand, and this is one of them. We, the politicians, are criticized for not doing our job. But when we do our job, we are told that we did it too well. Something is wrong here. It is true that Bill C-3 is a response to the McIvor decision of the British Columbia Court of Appeal, but it is important to read this decision in its entirety, which the legislator, the Conservative Party, does not seem to have done.

I wonder why the Conservative Party did not read the full decision. Because if it had, it would have realized that the judges of the British Columbia Court of Appeal say that this is the issue before them and that they are going to rule on it. They rule that Ms. McIvor has been the victim of discrimination under section 15 of the charter since 1985. Therefore, the problem has to be addressed. The judges add, however, that the discrimination against aboriginal communities and specifically against aboriginal women under sections 6.1 and 6.2 of the act will continue unless the government puts an end to this discrimination. I am not the one who said this; it was the judges of the British Columbia Court of Appeal. That is what we did, and my colleague from Labrador proposed amendment No. 1, which is extremely important and would put an end to this discrimination.

I believe that you have the power to accept this amendment. I will not repeat my colleague's arguments, which are very solid and which I agree with completely. As my anglophone colleagues would say, I concur with my colleague. I concur with his legal arguments. It seems clear to me as well that you can go as far as we were asked to go thanks to amendment No. 1.

But it gets worse, Mr. Speaker. If you rejected this amendment, what would happen? Women would no longer have any recourse and would have to keep on going to court. But the Conservative Party, in its wisdom, closed the door to potential court action by cutting funding for the court challenges program, which Ms. McIvor had used to stand up for her rights.

So what will happen? If this amendment is not accepted, not only will aboriginal women continue to be discriminated against, but the government will be taken to court again, and it will be another 20 years before we end this debate.

[Todd Russell, Liberal, Labrador, NL]

Mr. Speaker, today I rise to respond to the point of order raised on Thursday, April 29, 2010 by the Parliamentary Secretary to the Leader of the Government in the House of Commons concerning two amendments to Bill C-3 adopted by the Standing Committee on Aboriginal Affairs and Northern Development.

The parliamentary secretary shared in his opinion that these two amendments should be ruled out of order because he felt they went beyond the scope of the bill.

Given the significance and profound issues; that is, sex discrimination and gender equality, that have prompted the introduction of Bill C-3, I feel it is vitally important to present counter arguments before you give your ruling, Mr. Speaker.

First, I would like to quote from the sixth edition of Beauchesne's Parliamentary Rules & Forms. At page 205 it states in subarticle 689(2):

The committee may so change the provisions of the bill that when it is reported to the House it is in substance a bill other than that which was referred. A committee may negative every clause and substitute new clauses, if relevant to the bill as read a second time.

Article 694 on page 206 states:

Amendments may be made in every part of a bill, whether in the title, preamble, clauses or schedules; clauses may be omitted; new clauses and schedules may be added.

Beauchesne's sixth edition also states on page 205 in subarticle 689(3):

The objects (also referred to as the principle or scope) of a bill are stated in its long title, which should cover everything contained in the bill as it was introduced.

The long title of Bill C-3 as listed on the bill's cover page under the number assigned to the bill is “An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). Therefore, the principle and/or scope defined in this title is to respond to the decision of the B.C. Court of Appeal. To understand what “to respond” means in the context of this legislation, it is necessary to return to the decision of the B.C. Court of Appeal that is referenced in this legislation.

The court ruled that two 1985 amendments to the Indian Act failed to eliminate gender discrimination in the second and subsequent generations. Paragraph 161 of the ruling states:

Sections 6(1)(a) and 6(1)(c) of the Indian Act 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 s. 12(1)(a)(iv) of the former legislation. Accordingly, I would declare ss. 6(1)(a) and 6(1)(c) to be of no force and effect, pursuant to s. 52 of the Constitution Act, 1982. I would suspend the declaration for a period of 1 year, to allow Parliament time to amend the legislation to make it constitutional.

Nowhere in its ruling did the court prescribe a remedy to the Government of Canada. In fact, in paragraph 160 it states:

In the end, the decision as to how the inequality should be remedied is one for Parliament.

Although the court arrived at a narrow constitutional finding based on the specific facts of the McIvor case, it accepted the broad harms suffered by aboriginal women and their descendants because of non-entitlement to Indian status. In fact, the Court of Appeal left open the possibility of future equality challenges to the status provisions.

More important, previous precedent exists to support the notion that the court's ruling in McIvor v. Canada does not create a rigid constitutional template. The Supreme Court of Canada has affirmed the role of Parliament to build on a court's ruling, particularly where the judicial scheme can be improved by the legislature.

In its decision in R. v. O'Connor in 1995, the Supreme Court of Canada laid down a procedure for the disclosure of confidential records of sexual assault complainants which purported to balance the equality rights of complainants and the rights of accused to full answer and defence.

In 1997 Parliament enacted amendments to the Criminal Code which differed from the procedure delineated by the court and which ostensibly went further to protect women's equality rights and protect their confidential records from disclosure to those accused of sexually assaulting them.

In upholding the new legislation in R. v. Mills in 1999, the Supreme Court of Canada emphasized the importance of Parliament building on the court's earlier decision in O'Connor. In this case the government chose a more expansive legislative remedy than that suggested in the O'Connor ruling after hearing from women's organizations and others.

Another example is the case of M. v. H. in 1999, which involved a section 15 charter challenge to the definition of spouse under the Ontario Family Law Act. The remedy ordered by the Supreme Court impacted only the definition of spouse in the Ontario Family Law Act, but the government of Ontario introduced omnibus legislation to change the definition of spouse in all provincial statues. Further, the federal government, which was not even a party in M. v. H., brought in the Modernization of Benefits and Obligations Act in 2000 to respond to the court's ruling.

There are other examples. These precedents confirm that the governmental response to a court ruling can clearly include the implications of the decision but is not restricted by it. Therefore, we argue that the amendments to Bill C-3 are admissible.

I would like to reiterate that the B.C. Court of Appeal did not order a specific remedy in its ruling, and instead ordered a declaration of invalidity. The purpose of a declaration of invalidity is to give the legislature the scope and flexibility to respond to a declaration of constitutional invalidity in the most appropriate way, after the democratic process of hearing the submissions of those most impacted.

Constitutional scholar Peter Hogg explains in chapter 36 of his text, Constitutional Law of Canada, that in many cases where the court has found a law to be unconstitutional, the court would prefer the legislature to design the appropriate remedy.

This is exactly what has happened in McIvor v. Canada. The B.C. Court of Appeal left it to Parliament to determine an appropriate remedy. The government introduced Bill C-3. The committee then heard unanimous testimony that residual gender discrimination would remain under the status provisions of the Indian Act if Bill C-3 were not amended. All witnesses encouraged the committee to amend the bill in order to eliminate all residual discrimination.

The amendment I introduced in committee to clause 2, which was fully supported by all opposition parties, is a response to this testimony. It will once and for all eliminate this residual discrimination and ensure that the Government of Canada lives up to its responsibilities concerning gender equality.

Based on this precedent and the broad implications of the B.C. Court of Appeal ruling in McIvor v. Canada, which is referenced in the long title of Bill C-3, I would argue that the amendment I introduced to clause 2 should be considered one of many possible responses to the court's ruling, and as such should be considered admissible. If this amendment is admissible, the parliamentary secretary's challenge to the admissibility of the amendment to the title should also be dismissed.

In Bill C-3, the Conservative government has introduced a piece of legislation that purposefully leaves gender discrimination in the Indian Act's provisions on status entitlement. If we know, which we do, that gender inequality or sex discrimination exists, as parliamentarians we have an obligation to remedy it. Common sense as well as unanimous testimony of witnesses at committee dictate that this is wholly unacceptable. My amendment responds to this fact and, as I have argued, is fully within the scope of Bill C-3.

I respectfully ask, given that generation after generation has fought for this equality, these arguments be given great consideration, as I am confident they will. Let us once and for all end sex discrimination that exists under the Indian Act.

First Nations

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

Mr. Speaker, the Amun march is continuing today. Aboriginal women left Wendake, near Quebec City, for Ottawa and will be passing through Trois-Rivières, Montréal, Laval and Gatineau, and arriving at Parliament on June 1.

This 500 km march is a protest against the injustices suffered by aboriginal women because of the Indian Act, in spite of Bill C-3, which does not correct all the discrimination that they experience.

The purpose of the march is to heighten public awareness and, above all, to send a clear message to the government: no to discrimination against first nations women. They must be allowed to pass their Indian status to their child without being required to divulge the father's name and they must retain their rights even if they marry a non-native, and thus avoid expulsion from their community.

My Bloc Québécois colleagues and I salute the courage and determination of these women and we wish them a safe journey.

Admissibility of Amendments to Bill C-3

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

Mr. Speaker, I would also like to echo the sentiments of the member for Wascana.This is a complicated matter and given the fact that Bill C-3 is not on the House agenda for next week, I would like an opportunity for the NDP to consider the government's position on this matter of scope, and to prepare a response once we have been able to consider all of the points that the member raised.

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I rise on a point of order with respect to the admissibility of two amendments made in committee to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

Without commenting on the merits of those amendments, I submit that they are beyond the scope of the bill and should be ruled out of order.

House of Commons Procedure and Practice, second edition, states at page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

Citation 698(1) of the sixth edition of Beauchesne states that an amendment is out of order if it is irrelevant to the bill or beyond its scope. This issue has arisen on many occasions.

In a ruling on April 28, 1992, Speaker Fraser elaborated on the admissibility of amendments to bills referred to in committees after second reading:

When a bill is referred to a standing or legislative committee of the House, that committee is only empowered to adopt, amend or negative the clauses found in that piece of legislation and to report the bill to the House with or without amendments. The committee is restricted in its examination in a number of ways. It cannot infringe on the financial initiative of the Crown, it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be.

The Speaker does not get involved in committee issues except in cases where a committee has exceeded its authority, such as an amendment that is beyond the scope of a bill. In such cases, the Speaker is responsible for ruling on the admissibility of such amendments after the bill has been reported to the House. This is because the motion to refer the bill to committee after second reading establishes the principle and the scope of the bill. As a result, a committee report that is not consistent with that motion must be corrected.

On March 11, 2010, Bill C-3 was introduced. The bill's long title is an Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). The court ruled that two 1985 amendments to the Indian Act failed to eliminate gender discrimination in the second and subsequent generations. Those amendments provided a way for Indian women who had lost status through marriage to regain it and made it possible for the children of those women to be registered.

On March 29, 2010, the House of Commons unanimously adopted Bill C-3 at second reading and referred it to the Standing Committee on Aboriginal Affairs and Northern Development.

On April 23, 2010, the member for Nanaimo—Cowichan gave notice of a motion of instruction to the committee, which stated that it has the power 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. This motion clearly indicates that the opposition was aware that changing the provisions of the bill with respect to a grandchild born before 1985 would be beyond the scope of the bill.

On April 27, 2010, the member for Labrador moved the following amendment in committee, which stated:

That Bill C-3, in Clause 2, be amended by adding after line 16 on page 1 the following:

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

Government counsel indicated in committee that:

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

The chair agreed with the advice of government counsel and ruled that the amendment was beyond the scope of Bill C-3 and was therefore inadmissible. The chair asked the committee procedural clerk to provide the committee with further detail on the ruling. The procedural clerk stated that the amendment exceeded the scope of the bill as it was approved in the House.

The member for Labrador acknowledged in committee that the amendment exceeded the scope of the court's decision by adding a new entitlement to registration by stating:

[The amendment is] not as reflective, maybe, as what was in the B.C. Court of Appeal's ruling, which was much narrower...It just expands the category of eligibility--

Notwithstanding the advice of government counsel, House staff and the acknowledgement of the member for Labrador, the opposition members of the committee voted to overturn the chair's ruling and adopted the amendment. The committee also made a change to the short title of the bill. The bill as introduced had a short title which stated: “This Act may be cited as the Gender Equity in Indian Registration Act”. The opposition members of the committee voted to change the short title of the bill to read: “This act may be cited as the act amending certain definitions and registration provisions of the Indian Act”.

The chair ruled that this change was admissible because of the first amendment that I described. However, the chair emphasized that if the opposition members of the committee had not overturned his ruling that the first amendment I described was inadmissible, the amendment to clause 1 would also have been inadmissible. In this regard, page 770 and 771 of the second edition of House of Commons Procedure and Practice states:

The title may be amended only if the bill has been so altered as to necessitate such an amendment.

The change to the title of the bill is a further recognition that the first amendment is beyond the scope of the bill. Precedents clearly support the inadmissibility of these changes.

On February 27, 2007, in the case of Bill C-257, An Act to amend the Canada Labour Code (replacement workers), the Speaker ruled:

Given the very narrow scope of Bill C-257, any amendment to the bill must stay within the very limited parameters set by the provisions of the Canada Labour Code that are amended by the bill...Therefore, on strictly procedural grounds, the Chair must conclude that the ruling of the chair of the committee was correct: these last two amendments do go beyond the scope of the bill as adopted at second reading and are therefore inadmissible.

Bill C-257 and Bill C-3 both have a particularly narrow scope that responds to narrow policy circumstances. As a result, the ruling on Bill C-257 would equally apply to Bill C-3.

I also cite a January 29, 2008, ruling with respect to an act to amend the Immigration and Refugee Protection Act. In that case, the committee decided not to adopt an amendment that would have been beyond the scope of the bill.

In responding to a letter from a member, the Speaker agreed with the committee decision and stated that the amendment would have been beyond the scope of the bill and therefore would have been inadmissible. The Speaker stated:

The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill...because it simply expanded the appeal provision already contained in the bill...in my opinion, the amendment was indeed inadmissible--

The April 23, 2010 motion proposing an instruction to the committee to expand the scope of the bill as well as the testimony of government counsel, House staff, the member for Labrador, and the committee chair's ruling all indicate that the amendment to Bill C-3 is beyond the scope of the bill and therefore should be ruled out of order.

Mr. Speaker, if you find this to be so, I submit that the amendment to the short title would also need to be ruled out of order since it would no longer correspond to the provisions of the bill.

Aboriginal Affairs and Northern Development

[Bruce Stanton, Conservative, Simcoe North, ON]

Mr. Speaker, I have the honour to table, in both official languages, the first report of the Standing Committee on Aboriginal Affairs and Northern Development.

The report is in relation to Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

The committee has studied the bill and has decided to report the bill back to the House, with amendments.

[The Chair, Conservative, Bruce Stanton]

All right. Thank you both for clearing that up.

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

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

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

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

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

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Russell.

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

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

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

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

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

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

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

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

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

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

[The Chair, Conservative, Bruce Stanton]

Good afternoon, members. Welcome back to our consideration of Bill C-3, pursuant to the order of reference of Monday, March 29: Bill C-3, an act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

Members, we're back under, as we had planned, the clause-by-clause consideration of this bill. We welcome back Martin Reiher of the Department of Justice and Mr. Roy Gray from the Department of Indian Affairs and Northern Development, who are here, really, for consultation purposes. We're not expecting any presentations.

Members, you'll recall at our last meeting I did indicate that we were going to pursue another line of consideration around the issue of the unstated paternity and illegitimate children issue. That issue did not come forward, as we've seen at least thus far, from any of the amendments that had been proposed. My preference would be just to proceed directly to clause-by-clause consideration, so we'll leave that for another time.

We haven't done this too often, but it's great to be back here considering clause-by-clause analysis of the bill. You actually have the agenda in front of you. I'll confirm or affirm that all of the amendments that have been proposed by the various members have been received by the committee. Of course that doesn't preclude the possibility of further amendments while we take up consideration of this bill.

We will proceed with the clause 2 amendments.

(On clause 2)

I'd like to first start by inviting the sponsor of the bill to move his amendment and speak to it if he wishes, and then we'll proceed from there.

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

[John Duncan, Conservative, Vancouver Island North, BC]

Madam Speaker, the member must recognize that the government has a process in place to deal with legislation. I am not the minister but I can assure the member that the question that has been posed is above and beyond the scope of Bill C-3, which is what we are debating here today. I am not the one to answer that question.

[Todd Russell, Liberal, Labrador, NL]

Madam Speaker, the parliamentary secretary talked about the government's genuine effort to fill a legislative gap. If Bill C-3 were not passed, there would still be a legislative gap. Would the government be as sincere within that particular scenario in terms of bringing forward another bill?

[John Duncan, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development]

Madam Speaker, I am happy to speak to this motion moved by the NDP member for Nanaimo—Cowichan.

I would like to clarify something in the last question and comment period. I was not in the 2006-08 Parliament, so that would explain why I was not on the aboriginal affairs committee of that Parliament. I do have a long history with the committee dating back to 1994 and right up until 2006, and then in this current Parliament.

I witnessed the unintended consequences of the 1985 legislation up close and personal because 1994 was not that far removed from 1985. We are now a full generation beyond that, it being 25 years since the 1985 amendments. We are into another attempt to address some of the issues that flow from the whole question of registration. This is a complex and complicated area. The whole question of identity is tied up in questions of registration which fall under the Indian Act, questions of membership which are determined for 230 of the 634 first nations by the first nations themselves, and an allowance for all of them to adopt a membership code if they so desire, and we have questions of citizenship.

From a number of witnesses we heard from on the first nations side at committee, there was a broad statement that became fairly generalized, which was that first nations have the inherent right to determine their membership. I think it would be presumptuous of us to go too far into that discussion during the discussion of Bill C-3. However, it is very germane to the parallel process that we wish to put in place and which has had buy-in from the national aboriginal organizations. We wish to put in place an exploratory process to look at citizenship, membership and registration considerations with a view to further changes that could be adopted above and beyond Bill C-3.

This is a backdrop to what we know we have. We have an archaic Indian Act. Archaic as it might be, we have modern-day treaties that have been negotiated, every point gone through with a fine-toothed comb by legal counsel, and when all is said and done, lo and behold, we find most often that section 6, the portion of the Indian Act dealing with registration, is the only part of the Indian Act that remains intact and built into that modern treaty. The reason for that quite simply is it is such a complex thing to get rid of, it is easier to adopt it.

That is not where the pressure is coming from to make the changes, such as what is being proposed under Bill C-3. That came from the court case of Sharon McIvor in British Columbia.

The Government of Canada is responding to a long debated, long discussed, long considered question about transmission of status to grandchildren where there is a difference in transmission of status between a male Indian who married out and a female Indian who married out. That is where the bill is coming from.

The court recognized that there is no way to address all of the issues without impacting on the people who have been living under the old provisions of registration, citizenship and membership all these years. This then becomes part of the balancing act. The broad, sweeping statements that have been made this morning on this issue have conveniently omitted or forgotten about the other side of the ledger. There are a lot of implications, ramifications and potential unintended consequences that flow from anything beyond the government travelling down the road where it has a court mandate. We should not do that without a full process to look at all of this. That is why we put in place a parallel process called the exploratory process. Until today, I thought that everybody was comfortable with that.

This is an interim step in everyone's mind. It does affect 45,000 potential new entrants across the country. There are some practical implications of 45,000 new applicants. The Registrar of Indians will have to gear up, hire more people, create a whole new regime in order to take a large number of new applications. I cannot imagine the implications for the registrar if we were to go beyond that. I fail to see why this interim step is being viewed with negativity. We know from a lot of ad hoc evidence that there are a lot of people who are very interested in being new entrants. The number of calls that are being made to the department and general conversations indicate that this has really engaged a lot of people.

A witness who came before committee made a statement which was very incisive. She said that we probably would not be debating this bill and that it would not be controversial except for one thing, that there is money involved. I think she hit the nail on the head. We are talking about government certification of ethnicity that has financial consequences in the way of benefits. That is another way to look at this.

We have to be realistic in that this is a complicated issue for the public. The public may not understand why there is so much discussion about what basically amounts to an official designation, but that is what it is all about in terms of some consequences. We want to make sure that we are not endorsing amendments that are of concern regarding unintended consequences which we cannot predict reliably. I would remind the opposition members of this.

The Canadian Human Rights Commission attended our committee meetings with a high degree of interest. Members will recall that the last Parliament adopted the amendment to the Canadian Human Rights Act, which I had been advocating since approximately 1994 in this place, to delete section 67 of the Canadian Human Rights Act. That section exempted first nations people living on reserve from the provisions of the act. In other words, there were Canadians to whom the Canadian Human Rights Act did not apply and who were pre-empted and prevented from appealing to the Canadian Human Rights Commission.

As of July next year, there is a phase-in and under the new legislation that provision is removed. There is an expectation the Canadian Human Rights Commission will be involved in the future in questions of registration in some cases. There is no clarity at this point as to whether it would be some or all, or potentially none, but I cannot imagine that somehow. That is another downstream consequence where we cannot predict exactly where we are going on this train. It is clear there are changes coming, but it is not clear at all what the ramifications will be.

We encouraged the participation of the Canadian Human Rights Commission. The commission is encouraged by its participation that it will be able to deal with this. It has set up a committee within the Canadian Human Rights Commission in order to ensure that it is proactively looking at this whole question of registration and any complaints that may flow from it.

Clause 9 in Bill C-3 is very important from the standpoint regarding any implications financially that flow from people being denied status between 1951 and 1985, and who are empowered by Bill C-3 as we have presented it. There would be no liability attached to either the Crown or to the first nations in terms of those individuals being able to seek compensation for their lack of membership during that time frame.

This is not something that has been talked about much this morning, but it is one that was criticized. I think it protects probably the first nations entities more so than the Crown. It is in there for clarity, but it is important clarity and I wanted to mention it.

The legislation we now have before us proposes to achieve two goals: first, to eliminate a cause of gender discrimination in the Indian Act; and second, to provide a timely and direct response to the ruling of the B.C. Court of Appeal.

We are aware of a number of broader issues related to the question of registration and membership. However, given the short timeframe and in the interest of avoiding a legislative void in British Columbia, we are seeking to implement changes that directly respond to the British Columbia Court of Appeal's decision.

Bill C-3 does offer a solution to these specific issues by amending the Indian Act to address the gender discrimination identified by the court. We are aware of broader questions of registration and membership because our government has been acting in collaboration with the people directly affected by the issues at play.

Last year, following a thorough review and analysis of the court's decision, department officials had technical briefings with representatives of five national aboriginal organizations to discuss the decision and Canada's proposed response. Following those briefings, 15 engagement sessions were held throughout the country to present Canada's proposed response to the McIvor decision and solicit feedback. As I have said, there was a lot of feedback but there is also a lot of interest in new entrants wanting to register. They are simply waiting at this point for this bill to go through.

Hundreds of participants came to the engagement sessions and many submissions were received. There were some common themes during the sessions. Many people expressed their concerns about the broader issues of registration, membership and citizenship. These concerns need to be considered and discussed. These broader issues are, as I and others have said, complex and there is a diversity of views among first nations.

For that reason, we will be undertaking a collaborative process with national aboriginal organizations to plan, organize and implement forums and activities that will focus on the gathering of information and identifying broader issues for discussion. This exploratory process, the terms of reference and the mandate are things that will be put together collaboratively. This is not a top-down exercise. I think it is a very enlightened way to approach a very complicated and complex issue.

It is the appropriate thing to do and it should begin promptly but it cannot begin promptly if we do not have an interim step in place, and the interim step is passing this legislation. That is what is was predicated on and that is what will commence it. The wide array of views on status, membership and citizenship must be shared and carefully considered. They cannot be viewed in isolation and they cannot be addressed in a rushed manner.

This will be a process that will inform the government on the next steps. As important as this work is and will be, it cannot take precedence over Bill C-3. Bill C-3 responds to a specific court ruling and prescribed deadline. I can say with certainty that the proposed legislation is precise, compact and focused. Unlike the debate and discussion this morning, the bill is precise, compact and focused.

I will remind members that we are working on a deadline and we need to meet that deadline. The decision to grant that deadline was rendered on April 1 of this year and it takes us through to July 5. We need to get this done in this spring session. We have an opportunity to process Bill C-3.

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

Madam Speaker, I am pleased to have the opportunity to speak in this debate and to support my colleague's motion to ask the House to direct the committee to expand the scope of Bill C-3.

This is a very complex piece of legislation. We have heard much discussion on it already and I am not prepared to go into the substantive issues of the legislation today, but want to speak more to the process.

We have heard much about the urgency of the bill, the fact that we have to do it because the clock is running out. I want to read into the record a quote from the B.C. Court of Appeal which granted an extension until July 5, 2010. It said:

Under the circumstances, we might well have acceded to a request for a longer suspension of our declaration had it been sought. The Attorney General’s factum, however, sought only a 12-month suspension of any declaration of invalidity.

Therefore, we know that the court is likely to grant a further extension if a comprehensive redrafting of the bill was to take place. The decision, and I am emphasizing what my colleague said, to prorogue Parliament further undermined the effort to move the bill along.

We have heard much about the discussion. We have heard the parliamentary secretary say earlier that allowing the scope of Bill C-3 to expand will create “unintended consequences”. I would submit that refusing to allow the committee to address residual discrimination as instructed by most of the witnesses, the government is knowingly creating intended consequences which means gender discrimination.

What the bill means, and I have said it in committee and I will say it here, is that it will create a situation where some aboriginal women will be more equal than others and in a country like ours and a country that purports to respect the charter and respect human rights, this is simply not acceptable.

The member opposite, I think, said, “Equality is difficult to achieve”. I would submit that equality is not difficult to achieve. There are amendments that might be made to the bill that would, in fact, extend equality to all aboriginal women in this country. It only requires the political will of members opposite to ensure that it happens.

The government never really considered a comprehensive remedy to all the gender discrimination concerning status entitlement. First, it appealed the original decision of the B.C. Supreme Court, which called for a broader solution. Then when responding to the 2009 B.C. Court of Appeal, it did not consider a comprehensive solution and put forward several solutions in a limited engagement process that would knowingly leave residual discrimination. Finally, when introducing Bill C-3, it crafted it in such a narrow way that it does not allow the committee to consider comprehensive amendments.

I want to speak to the issue of status and why it is so important for aboriginal women. I am quoting in part from the submission put forward by LEAF. It states:

Denial of status and the corresponding lack of acceptance in one’s community and degraded sense of identity and self-worth, is an independent harm. It is also legislatively connected to the denial of band membership. Under the Indian Act band membership rules...and under the majority of membership codes of First Nations who have assumed control over membership, lack of status results in exclusion from band membership and from having the right to reside in one’s home community/territory. This means that non-status women and children cannot live in their home community. They are treated as “outsiders”. They are unable to practice and transmit their culture and language within the community, and their children’s aboriginal culture and language cannot be nurtured within the community.

I would say that that is very important. In fact, the B.C. Court of Appeal judge acknowledged that when he said:

--I am of the view that the trial judge was correct in accepting that intangible benefits do flow from the right to Indian status.

I think it is important for all aboriginal women and children to have the opportunity to be treated equally by the Government of Canada within their own bands. We have heard much of the exploratory process. The exploratory process or, what I would prefer, a consultation process has a whole host of issues that it can deal with but need not deal with. There is no other group in this country that we would go on an exploratory process to see whether they are equal in our country.

All aboriginal women should be recognized as equal within their own communities before the government of this great country that we live in. I see this as a real effort to diminish aboriginal people. I see the title of this bill, an act to promote gender equality, as misleading and, repeating what we have said over here many times, contributing to what I see as a culture of deceit. This is not what this bill is all about. It is, in fact, creating a situation where some women will be more equal than others.

I would submit to members on both sides of the House that we do the right thing, that we take this motion seriously, that we direct the committee to look at the bill to the fullest possibility, and expand it so that all aboriginal women and their children will have the opportunities, rights and sense of community to which they are entitled. It is incumbent upon us as parliamentarians to ensure that this happens.

In concluding my remarks, I plead with all members of the House to look at gender equality in its truest sense of the word for all aboriginal women. Some are not more equal than others.