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.

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

I'm going to try to be precise. First, I want to thank Ms. Dupuis, the Barreau du Québec, the Canadian Bar Association and Ms. Hodgson-Smith.

I thank the people from the Barreau du Québec, who have made us aware of a problem. We are going to re-examine clause 9. I also very much appreciate the position of the Canadian Bar Association.

I'm going to read you the text of an amendment. I don't need a response from the Barreau du Québec or the Canadian Bar Association today. However, if possible, I would like you to send us a written opinion on a possible amendment.

Do you believe, as I do, that, if we pass Bill C-3 as it stands, the discrimination against aboriginal women will continue? We won't have resolved the discrimination problem and it will continue. Do you agree with me? That's perfect.

Now I'm speaking to the representatives of the Canadian Bar Association. If we amended paragraph 6(1)(a) to read: “or if that person was born before April 17, 1985 or was a direct descendant of such and such a person”, do you believe that might solve the discrimination problem? That's what I understand from your recommendation, which appears on page 9 in French and in English, with regard to the amendment to Bill C-3.

Do we agree? If possible, I would like you to analyze that. I'm not asking you for an immediate answer, quite obviously. However, would your recommendation be consistent with my recommendation or our possible recommended amendment?

I will close by putting another question to the representatives of the Canadian Bar Association. I wonder why you are proposing an amendment. You propose to delete the proposed addition of subparagraph 6(1)(c.1)(iv) to the Indian Act, and you then propose a number of interesting criteria. Wouldn't it be better to simply stick to your last recommendation?

There, I hope I didn't lose you, but I would like to hear what you have to say on the subject.

[Renée Dupuis, Lawyer, Barreau du Québec]

Thank you for allowing me to speak, Mr. Chairman.

The Barreau du Québec's specific comments on Bill C-3 in response to the McIvor judgment concern a certain number of clauses, but the two main clauses concern the proposed paragraph 6(1)(c.1) and clause 9 of the bill. We have noted that there may be problems of concordance in clause 2(1) of the bill, that is to say that, in the French version, “une personne” is replaced by “toute personne”. And, from a reading of the present act using this new wording, we believe there are problems of concordance that must be reviewed. We therefore suggest that concordance is assured for this expression in all other sections of the Indian Act.

With respect to clause 2(2), we note that the proposed amendment restates the present test, in both the English and French versions, and we wondered about the purpose of this clause. In a very substantial manner, in paragraph 6(1)(c.1) which would be added to the Indian Act and which, according to the objective pursued by the government, is to serve to eliminate the discrimination identified by the Court of Appeal for British Columbia, we note that this new paragraph concerns the children of a marriage born before April 17, 1985, which introduces a distinction between children born before and after that date. In addition, the amendment concerns only the children of a union formalized by marriage. The bill does not correct the discrimination against children born outside marriage prior to 1985, more particularly children born outside marriage to an Indian father and a non-Indian mother, depending whether they are boys with status under subsection 6(1) or girls with lesser status under subsection 6(2).

The Barreau also wonders about the proposed subparagraph 6(1)(c.1)(iv), which, to obtain enhanced status, appears to require that a child must be, himself or herself, a parent. We believe that this element should not be added as a condition for change of status, since introducing this condition creates discrimination between the members of a single group depending on whether or not they have had children. Whether or not a person has had children should not be a condition for enhanced status. In fact, the proposed subparagraph 6(1)(c.1)(iv) merely enhances the status of children who already have children. The Barreau du Québec suggests that the question of grandchildren be handled separately. We submit that the bill should offer the option of granting status in accordance with the provisions of subsection 6(1) to all children, whether or not they are parents.

Furthermore, the Barreau—

[The Chair, Conservative, Bruce Stanton]

Order.

We'll start the second round.

Welcome to all the witnesses.

On the study of Bill C-3 we have three presentations. In order to get through questions--I don't know if we have given you this in advance--if you could shorten your presentations to seven and a half minutes as opposed to ten, that would be helpful. It would at least give us time to get through one round of questions. I hope that's not too great an imposition.

We'll begin with

Ms. Nicole Dufour and Ms. Renée Dupuis, from the Barreau du Québec. Go ahead, please.

[Chief Jody Wilson-Raybould]

As members of this committee know, the AFN represents 630-plus first nations communities through our national chief and our regional chiefs. In terms of developing consensus, I don't think anybody would dispute eradicating, with respect to Bill C-3, the discrimination.

Also, I don't think there is a first nations community across this country that would dispute an acknowledgement of their inherent right to determine what's best for their communities and to be provided with the mechanisms, legislative or otherwise, to actually move down that process of nation building, to determine for oneself, as an autonomous nation, what is most appropriate based on their cultural traditions and values for their own individual community. The Assembly of First Nations, in terms of that dialogue, I believe would be all for it.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much.

It's great to be able to speak with you here today.

I think it's important, first of all, that our committee hear that Bill C-3 indeed will be addressing the McIvor case. This is, I think, one aspect of it, but again the major discussion seems to be, right now, about where we're going in the future as far as the exploratory process is concerned.

You had mentioned earlier how it was so important that this be rooted in the community. That perhaps comes from Megan's questions earlier, when she talked about consensus. I'd like to go back to what John was talking about, regarding some of the resistance that is sometimes felt.

I wonder if you could start by explaining the mechanisms the AFN has to get consensus among its various aboriginal communities.

[Todd Russell, Liberal, Labrador, NL]

When I asked government officials about whether they had done projections on, for instance, costs--it's not always the most savoury type of discussion, but it's a realistic one, isn't it--they hadn't done them for long- or short-term health benefits, post-secondary education, or the implications for communities when it comes to providing services or housing. So the government really needs to get on with doing its work, even in light of Bill C-3.

On the exploratory process again, you don't like the word exploratory. I believe I heard you say you think we've done enough of this exploration, so where would you like to see it go?

Sometimes people see this talk we're often engaged in as a way to deflect dealing head-on with some very crucial issues. I mean, it might be nice to explore, to talk for two years, but at the end of that, people need to see something delivered at their community level as well. What do you see being delivered at the end of this process?

I'm not that confident in this process, let me tell you that. I'd have to see a hell of a lot more meat on the bones before I'd give the government a thumbs-up on this.

At any rate, I'd like to see what your vision for this process might look like.

[Chief Jody Wilson-Raybould]

Karen can correct me if I'm wrong, but no, we haven't done that substantive analysis. Doing that analysis requires going into a community to understand the particular circumstances of that community. That's a long process, but it's an important process.

I can speak on behalf of my own first nation. We are a nation of some 930 members, and the implications, as a result of Bill C-3 in its current form, are that more than 500 people would be coming back into our community. I'm not questioning those numbers except from my perspective as a council person in my own community, knowing that we are facing a potentially large number of registrants. That's not a bad thing. They simply need to be provided for in an appropriate way.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Just to follow up, when it comes to Bill C-3, we have projections from Mr. Clatworthy, who has been hired by the department, on the impacts of roughly 45,000, and on how they are dispersed between on-reserve and off-reserve. I'm just wondering whether the AFN has done any analysis on that, so that we could have a comparator. I'm not doubting his numbers, but it would be nice to see if there was a comparator.

[Chief Jody Wilson-Raybould]

This is a really important question, and one that I hope I'll be able to provide an answer to that makes clear the distinction between what you're asking--between Bill C-3 and the exploratory process.

I do not necessarily see the two as existing in isolation. I view Bill C-3 and the amendments to the Indian Act and the rectification of discrimination as it is right now, and potentially as it could be to rectify all gender discrimination, as a step forward certainly. I do recognize and applaud the government's commitment to engage in an exploratory process around the issue of citizenship.

Again I have to go back to my comments that citizenship and status are not related. They are fundamentally different. As you reference with respect to modern arrangements or modern agreements that have been negotiated by first nations, yes, within a chapter there is a provision that welcomes as members those persons who are eligible to be registered under the Indian Act within their agreement that has been negotiated in a modern context.

That's not to say that the recognition, or that clause in the agreement, will not be dispensed with or disbanded when our nations are on this process of nation-building and becoming more self-governing and implementing their agreement in a really meaningful way on the ground that acknowledges where their citizens want to go, that the requirement of having the recognition of people eligible to be registered as a requirement for eligibility to benefit from a treaty or otherwise will dissipate and it will not need to exist anymore because our nations are on that path, as you reference, with respect to developing our own systems of governance and becoming self-determining. That, in my opinion, goes well beyond any determination of who and what one is under a piece of legislation.

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

I think we all recognize that this is a complicated picture. I was struck by a couple of things you said. You said something along the lines that you should think of yourselves as citizens rather than as Indian Act registrants. There's some confusion between registration and membership, and you focused quite a bit on governance and how changes on that front would be very critical.

I'd like to reassure you that the government does recognize that governance and capacity are directions that are vitally important. We want to get there too. Doing so is in everybody's best interests.

Specific to Bill C-3, I think it's important I get on the record that Bill C-3, of course, would not preclude further legislation. At the same time, I heard you loud and clear when you said that long-term solutions do not lie in further tinkering with the Indian Act. That puts us in quite a dilemma here, in a sense, because Bill C-3 is designed to address a very specific case, the McIvor case.

We know there are further legal actions dealing with registration that are in the system, but I'm also struck that we have negotiated agreements between the Government of Canada and first nations in various parts of Canada. Many of those were with first nations that obviously had significant governance and capacity. That's why they were involved in those discussions. Sometimes “significant” would be an understatement; “very well capacitated” might be better. Whenever we have those agreements, they tend to include as one of the provisions the fact that only those people who fit into the Indian Act registration classifications are eligible for membership or citizenship.

In order to square the circle here, to get to where you would like to get, is not passage of Bill C-3 and adoption of the exploratory process a reasonable and practical direction to try to move us forward?

[Chief Jody Wilson-Raybould]

Right. The second generation cut-off that will ultimately result is not something that will be addressed within the scope of this particular bill. I certainly recognize that as a result of Bill C-3 in its current form, there is going to be an influx of potential persons who are eligible to be registered. The government has indicated or estimated that there will be in the range of 45,000.

That certainly can--and will, as it did in 1985--pose problems for first nations communities that have to administer programs and services to their citizens. As I said in my opening comments, I have said, and we at the Assembly of First Nations and our chiefs have said clearly, that there is a need to ensure there are adequate resources to enable our first nations communities to address the potential influx of new registrants resulting from the bill in its current form or the potential influx of people resulting from an amendment to the bill.

[Chief Jody Wilson-Raybould]

Thank you for the question.

I recognize that there is a divergence of opinion among first nations leadership and first nations generally across the country. As I indicated in my statement, I believe that any discrimination should be eradicated in this day and age.

The question of consultation is somewhat difficult for me to address, because there is some assumption that there is a need for consultation to amend the Indian Act. I'm not saying there isn't, but as a lawyer, I look at consultation and accommodation in the legal context of aboriginal title and rights. In this case, with respect to the government changing the Indian Act, there is also a form of consultation. The Indian Act is an antiquated piece of legislation. It certainly is complicated, and there are varying degrees with respect to engagement with first nations on issues that seek to amend it.

There have been a lot of changes to the Indian Act over the years. Making fundamental changes, which are driven by first nations, to enter into a treaty or to negotiate a self-government arrangement requires a referendum within a community. In this particular case, with respect to Bill C-3 to get rid of discrimination, there is a different form of consultation.

I recognize that there have been engagements across the country with respect to Bill C-3 and citizenship, but the broader and more important discussion that the first nations leadership across the country has raised is around that citizenship issue and how to be respectful of first nations ability to determine for themselves who they are and who their citizens will be.

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

I'm going to speak to Chief Wilson-Raybould.

Grand Chief, thank you for being here with us. I agree with my colleague in recognizing Grand Chief Atleo and Chief Lonechild.

As you will see, I am very precise. I'm speaking to the lawyer. We have begun our proceedings, and I will ask you to examine one point. I don't need an answer today. I'm also speaking to Grand Chief Atleo, who I know will listen closely.

This is a draft amendment that we are going to try to introduce. I would like paragraph 6(1)(a) to be amended to read: “or if that person was born prior to April 17, 1985 and was a direct descendant of such and such a person.”

In my opinion, and I'm not the only one to think this, that is the only way to prevent the perpetuation of the discrimination you suffer and will continue to suffer if Bill C-3 is passed in its present form. I would like you to consider this amendment, to look at it and to send your comments to the committee. I already know that the government will probably not agree because this may go too far, but we can debate that here amongst ourselves. I would like to know whether the First Nations would be satisfied with that amendment. That was my first comment.

Furthermore, I don't believe—and I say this sincerely—in the exploratory process they want to put in place. In 20 years, this still will not be resolved. I would like you to talk to me about possible amendments. I'm not saying they can be introduced immediately.

Discrimination and registration are two completely separate things. I think we can address discrimination, or at least in part. However, with regard to registration, section 11 of the Indian Act should be amended. I would like to hear your comments on that subject. I think we can do part of the job with section 6, but as for section 11, that is to say registration... I don't think we need to explain section 11 to you. That concerns the power of the communities to register their members.

I would like to have your comments on that subject.

[Todd Russell, Liberal, Labrador, NL]

Yes. I think most of us would agree that we shouldn't have to wait another 20 or 25 years consuming another generation to get from Bill C-31 in 1985, to Bill C-3 in 2010, to some other bill 25 years from now.

In terms of the exploratory process, I understand that much of your comment was taken up with issues of self-determination, self-government--i.e., we shall determine who we are, we know who we are, we just want the means to be able to determine that in our own fashion. And I certainly agree with that.

These exploratory talks.... Very interestingly, I watched a documentary, Talking Around the Table, just last night, which featured Chief Wilson. I'm sure you're very familiar with him.

At any rate, I think it was a lesson to me. I mean, substantive talks were offered at that particular time: three first ministers' conferences with all the premiers, the Prime Minister, Trudeau at the time, and then Mr. Mulroney. But at the end of the day, many would say that they didn't advance that far.

How confident are you that these exploratory talks are going to shed more light or to imbue the process with something that's deliverable for first nations people? What would it take, in your view, for these to work? What would the process look like? What kind of resources would you require? You know--

[Todd Russell, Liberal, Labrador, NL]

What I hear you saying, what I've heard other witnesses say, what I'm reading in some of the literature, and what I believe even the government itself may acknowledge, is that gender discrimination will continue to exist under the Indian Act, even with the passage of Bill C-3. Is that a fair statement to make?