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.

Gender Equity in Indian Registration Act

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased to speak 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 Bloc Québécois supports the principle of this bill designed to allow those who suffered discrimination because of Bill C-31 passed in 1985 to reconnect with their origins.

Indian registration is indeed the first step in gaining not only Indian status, but also peer recognition in the community.

Membership is a very important concept, as it entitles individuals to live on reserve, participate in political processes such as the election of band chiefs, own property on reserve and share band resources. It permits recognition of one's origins and the practice of one's culture.

In 1996, many questions were already being raised about the impact of Bill C-31. There were concerns about possible adverse effects on the debate about whether or not someone is a band member, an issue that is not only complex, but also an integral part of a person's identity. To illustrate this complexity, I will read two excerpts from a report prepared by the Library of Parliament in February 1996 and revised in 2003.

The debate over membership is complex and multifaceted. A consideration of the issue leads to questions about what it means to belong to a community, about who has the right to define community membership, and about the changing nature of the Indian population. For many years, externally imposed rules for status and membership have produced internal divisions within Indian communities. The impacts of Bill C-31 have further emphasized political, social and financial concerns and introduced new problems.

The growth in the number of status Indians living off reserve as a result of Bill C-31 has also increased the need to clarify the responsibilities of federal and provincial governments in providing and funding the services required. Problems have arisen, moreover, because many of the programs and funds for status Indians are available only to those who live on reserve. Some of those who wished to live on reserve could not, however, because of a lack of services, such as housing. Furthermore, despite the increase in services, many off-reserve Bill C-31 registrants did not know how to access them and thus did not take advantage of them. INAC has been criticized for not making this information more readily available.

These quotes show just how complex recognition is.

Does the implementation of Bill C-3 raise new questions about the implementation of Bill C-31? The Bloc Québécois thinks it does.

The McIvor decision forced the government to close the loophole created by the 1951 act and the unacceptable amendment to the 1985 act, which was itself trying to close the enormous loophole created by the enactment of the Canadian Charter of Rights and Freedoms.

The 1876 Indian Act stated that a woman marrying a non-Indian would lose her status and stop being an Indian in the eyes of Canadian law. The act and all of the legislation succeeding it marginalized women in aboriginal society and considerably diminished their social and political role in community life. Indian women were subject to a law that discriminated against them on the basis of their race, gender and marital status.

In 1951, the Indian Act was amended, but still marginalized women marrying non-Indians. Such women could not be registered on the new federal register of status Indians.

In 1985, after new provisions were added to the Canadian Charter of Rights and Freedoms, Bill C-31 attempted to close the loophole in the Indian Act, but women's children still did not have the same rights as men's children.

The federal government waited 25 years to introduce a bill recognizing the Indian status of individuals who had been discriminated against in the past. This issue is not just about First Nations and women. It is about equality and human rights. The Indian Act discriminated against women because it denied Indian status to the grandchildren of aboriginal women, but not to those of aboriginal men. Bill C-3, which was introduced today, will correct part of the problem.

If not for Sharon McIvor's hard work and perseverance, if not for the 2007 British Columbia Supreme Court ruling, which was confirmed by the British Columbia Court of Appeal on April 6, 2009, the federal government would never have introduced this bill.

The bill must go to committee so that various stakeholders can have an opportunity to express their opinions about the effect that Bill C-3 will have on their communities. The committee will also have to come up with a better plan for implementing the bill so as to avoid making the same mistakes that were made in 1985 with Bill C-31.

Count on us to help make that happen. The Bloc Québécois' excellent critic for this file, the member for Abitibi—Témiscamingue, will do everything in his power to ensure that the committee hears what everyone has to say.

At December 31, 2000, more than 114,000 individuals had acquired Indian status.

I will be speaking about Sharon McIvor's struggle, which is the basis for our debate.

In 1985, the federal government amended the Indian Act through Bill C-31, which gave Indian status to women married to non-Indians. However, in many cases, these women could not pass this status to their children.

In 1985, Sharon McIvor, a law student from British Columbia and descendant of the Lower Nicola Indian Band—her mother was a status Indian woman and her father a non-status Indian man—applied to regain her status. She obtained her Indian status but was told her children were not eligible.

In 1987, Ms. McIvor wrote a letter requesting a review of the decision. In 1989, she received a reply upholding the denial of Indian status to her children. She launched a court case challenging the Indian Act.

Shortly before Ms. McIvor's case was heard in court in 2006, the federal government agreed to restore status to her children. Ms. McIvor continued with the court case. In 2006, Ms. McIvor's case was first heard in court.

In October 2006, the federal government abolished the court challenges program, which had helped Ms. McIvor defend her case. It was the Conservative government that made this decision. With the elimination of the program, Ms. McIvor found it difficult to fund the defence of her case. The government's decision came just after Ms. McIvor won her case in the British Columbia Supreme Court.

In June 2007, Justice Ross of the British Columbia Supreme Court ruled in favour of Ms. McIvor. She maintained that the law “implies that one’s female ancestors are deficient or less Indian than their male contemporaries. The implication is that one’s lineage is inferior.”

In July 2007, the federal government announced that it would appeal the decision. In 2008, the case was heard by the British Columbia Court of Appeal. On April 6, 2009, a decision was made in favour of Ms. McIvor. I—

[The Deputy Speaker, Conservative, Andrew Scheer]

I must interrupt the honourable member. He will have another 12 minutes after question period.

The House resumed from March 26 consideration of the motion that 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), be read the second time and referred to a committee.

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

Mr. Speaker, I am pleased to speak 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). It is a long title for a short bill. New Democrats will be supporting this bill at second reading.

It is important not only for the women and their children in Nanaimo—Cowichan but for the women and their children in British Colombia and across this country.

This somewhat technical bill is the result of a long-standing court case that Sharon McIvor had in British Columbia.

I am going to quote from the legislative summary because it deals with some of the technical aspects.The British Columbia Court of Appeal ruling gave rise to Bill C-3. The summary states:

The decision dealt with the case of Sharon McIvor, who had lost status when she married a non-First Nations man and had been reinstated in 1985 under paragraph 6(1)(c) of the post-Bill C-31 Indian Act. Her son, Jacob Grismer, having only one First Nations parent, acquired status under subsection 6(2) but was unable to transmit that status to his children owing to his own marriage to a non-First Nations woman. In contrast, persons in the male line affected by the 1951 double mother rule, which legislated loss of status at age 21, had been reinstated for life under paragraph 6(1)(c) and were thus able to transmit status to their children whether or not they married out. The Court found that this circumstance placed persons in Jacob Grismer's position at a disadvantage amounting to an unjustified section 15 Charter violation, and issued a suspended declaration of invalidity of paragraphs 6(1)(a) and (c) of the Act to allow Parliament to amend the Act before 6 April 2010.

When we talk about paragraph 6(1)(a) and 6(1)(c) and subsection 6(2), it gets very confusing and convoluted but it was an important ruling by the B.C. Supreme Court.

I want to put the whole discussion around citizenship and status in context and give the very big picture. I am going to start with the United Nations Declaration on the Rights of Indigenous Peoples.

Article 8 of the UN declaration states:

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural v alues or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 33 of the UN declaration states:

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

With respect to the UN declaration the Conservative government indicated in the throne speech that it would take the next steps. That is why it is important to read into the record some of the articles in the UN declaration because it sets the context for why discussions around citizenship and status are so important.

In terms of history, I am sure many Canadians are not aware that first nations from coast to coast to coast have a very long history of making their own citizenship and membership decisions.

In July 2008 the Assembly of First Nations and Indian and Northern Affairs joint technical working group outlined some history in a technical briefing paper. It indicated that early colonial powers relied upon first nations criteria to determine early colonial definitions of an Indian, including birth, marriage, adoption, residency, self-identification, kinship and community ties.

However, the consolidation of colonial legislation policy into the first Indian Act in 1876, which included legal definitions of the terms “Indian” and “statutory criteria” for who was and was not able to register as an Indian essentially laid the groundwork for the complete segregation from those who remained Indian and assimilation through the loss of status and existing rights.

The article goes on to talk about various changes, but I want to talk about other ones. The Gradual Enfranchisement Act of 1869 was the first law denying Indian status to an Indian woman who married out and which prevented her children from acquiring status. This provision was carried forward into the first Indian Act in 1876. From 1869 on, federal Indian legislation included successive Indian acts and introduced and solidified gender-based criteria within the definition of an Indian and in the treatment of Indian men and women.

This included the central role of patrilineal descent requirements and gender-based discrimination in the treatment of Indian to non-Indian marriages whereby Indian women who married a non-Indian lost their status and their children were not entitled to be registered. In contrast, Indian men who married non-Indians retained their status and their non-Indian spouse and offspring were entitled to be registered as Indians.

The article talks about the definition in 1876 and states:

In addition, the Act and subsequent amendments also continued and furthered the policy of enfranchisement, which became compulsory in a number of circumstances. For example, enfranchisement was automatic if an Indian became a doctor, lawyer, Christian minister, or earned a university degree.

Not only did gender discrimination become an integral part of the Indian Act from 1869 until the present day, but there was an enfranchisement policy that if first nations decided to get an education, they lost their status.

The 1951 amendments to the Indian Act further entrenched gender-based criteria in the definition of an Indian and ineligibility for registration and some precedents set by earlier Indian acts continued to prevail.

For example, Indians were defined as male persons of Indian blood and their descendants and wives. A woman derived her status through her father and then through her husband. If she married a non-native, a Métis, or a non-status Indian, she lost her status. Since children derive their status through their fathers, her children and future generations would also be ineligible to register.

The child of an unmarried registered mother would have status unless it was demonstrated that the father of the child did not have status. People who received or whose ancestors received land or money scrip were not considered Indians and therefore not eligible to be registered.

There is a long, long history of many attempts to limit from the outside from what was a colonial government and then turned out to be a patriarchal government later on, who would be considered first nations, or in those days Indian, in this country. Today we are debating a piece of legislation that very narrowly addresses one aspect of that discriminatory practice that became inherent in the Indian Act.

I want to touch on a couple of other things in the history. In 1961, there was an amendment to end the compulsory enfranchisement of men or bands. The rules indicating that if they had an education they no longer could be enfranchised were removed in 1961. This is how long the fight for equality has been going on.

In the early 1970s Jeannette Lavell and Yvonne Bédard challenged the discriminatory language of section 12(1)(b) of the Indian Act. Both women had lost their Indian status because they had married white men. The Supreme Court ruled that the Indian Act was not discriminatory as the women gained the legal rights of white women at the same time they lost their status as Indian women. In the 1970s the courts seemed to be saying that it is better to be a white woman than a first nations woman.

This continued to have devastating consequences for women. Indian women who would later marry a non-Indian would lose their status as would the children of their marriage. These disenfranchised women were prohibited from residing on reserve, inheriting family property, receiving treaty benefits, participating in band councils and other affairs of the Indian community, and being buried in cemeteries with their ancestors. Not only did they lose their status, but they also lost the right to be part of their cultural and linguistic community. Many of these women or their ancestors had been leaders in their communities.

This of course was in stark contrast to first nations men who could marry whomever they desired with impunity. In fact, a non-Indian woman who married an Indian man would gain Indian status. According to the Royal Commission on the Status of Women, approximately 4,605 Indian women lost their Indian status by marrying white men between the years of 1958 and 1968.

In 1981, Sandra Lovelace, a Maliseet woman from Tobique—Mactaquac, forced the issue by taking her case to the United Nations human rights committee, contending that she should not have to lose her own status by marriage. Of course, this subsequently led to what is now known as Bill C-31 from 1985. I am going to come back and touch on that in just a moment because, although we are discussing Bill C-3, there are some lessons to be learned from Bill C-31 from 1985.

In the current context, what we have is a very narrow attempt, based on the B.C. Supreme Court decision, to deal with some gender inequities in the Indian Act. I know a number of members in this House were present for the debate on the repeal of section 67 of the Human Rights Act that now allows first nations members to file human rights complaints on a variety of issues. At the time, witnesses came before the Standing Committee on Aboriginal Affairs and Northern Development to say that what we are in effect doing is beginning to make changes to the Indian Act on a piecemeal basis, and what we can end up with is unintended consequences by not taking a step back and having a more holistic approach to the whole Indian Act.

When we start tinkering with one section, we often do not know what the impact will be further down the road, and I am going to come back to Bill C-31 in that context. However, regarding the current context and what this bill does not deal with, the band council of the Wabanaki Nation has provided a briefing document that talks about the fact that this piece of legislation does not deal with a couple of other problems.

It talks about the sibling rule, where at the time of birth, Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother. It goes on to say that a brother would have the right to be registered at the time of his birth since the Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother, but they did allow for the registration of their illegitimate sons. That is still a case that is outstanding and it is just one example of some of the challenges in the status aspect of the Indian Act which is not dealt by Bill C-3.

Again, I have indicated that New Democrats are prepared to support the bill at second reading; however, I would urge the government to take a much broader look at the Indian Act and its potential impacts.

I want to talk a little about resources, and this is where I am going to talk about Bill C-31 a bit. The Six Nations of the Grand River have prepared a citizenship briefing note, and it raises the spectre around the fact that Indian and Northern Affairs is pursuing an amendment to the Indian Act to respond to the directions from the B.C. Court of Appeal, to be in place by April 6, 2010.

First nations have not been adequately consulted regarding amendments, nor provided clear information on the impact on their communities, and Six Nations is not alone in raising concerns around the impact on the communities.

Just touching briefly on the issue of consultation, the government acknowledges that in this particular case, it has not done consultation. What it has said in that context was that the time was limited, that there was a mandate from the B.C. Supreme Court that it had to move forward. There are some very grave concerns that all aspects of this bill and its potential impacts have not been adequately examined. In fact, the government itself has been unable to give any clear idea of the impacts on communities.

What it has said is that it has estimated that there will be upwards of 45,000 people who could be reinstated as a result of Bill C-3, and that is from Mr. Stewart Clatworthy's report, who is a demographer and has done some work regarding this issue.

There have been no announcements and no budget allocations to deal with the increased administrative duty that comes attached to this bill. Back when Bill C-31 passed in 1985, The Globe and Mail reported that the government officers on two shifts a day were adding more than 500 people per week to the country's official Indian population. The system became swamped with more than 38,000 applicants seeking status for more than 76,000 people. That was in 1985 with Bill C-31.

Of course, we know that Bill C-31 had some other impacts on communities. Bill C-31 created additional problems. There was increased financial pressure on first nations to provide services to newly enfranchised members, and this was housing, health services, education, all of the kinds of services that come along with status.

It created divisions in some communities and families with an impact on community cohesion and identity. Part of that challenge arose because there simply was not enough money to allow people to move back to their home communities.

Just a reminder, some of these women who had married non-status men had been raised in their communities, had the cultural and the linguistic connections, and yet once they regained their status there simply was not enough housing to allow them to move home.

It did create divisions in some communities because of those very limited resources. It has led to a decline in status population and an increased restriction on the ability to transmit status to their children.

I want to turn on that point. There is something called the second generation cutoff in Bill C-31. And again, I would presume it was an unintended consequence because surely the government of the day would not have legislated assimilation, which is in fact what the second generation cutoff does in Bill C-31. The reason I am raising this in the context of Bill C-3 is again that unintended consequence.

In reassessing the population impacts of Bill C-31, Stewart Clatworthy prepared a report on February 26, 2001. Although it is a very lengthy report, I just want to quote from one part of it. Mr. Clatworthy assessed the continuation of the current rules of Bill C-31. He said that if Bill C-31 did not change, if it was the status quo, this is what we could anticipate as the impact of the second generation cutoff. He said:

The number of survivors and descendants who do not qualify for registration is expected to increase from the current level of about 21,700 to nearly 400,000 within two generations.

He was projecting a serious acceleration of the numbers of people who will lose status. He said:

After three generations (year 2074) individuals who are not entitled to registration are projected to form the majority of the population.

Many people have referred to this as legislated assimilation. I want to come back to what I started with when I indicated that prior to contact, and even in the early days of colonial rule, the colonial government of the day took first nations definitions of who was first nations from first nations.

In the context of Bill C-3, although I recognize that there was a court imposed deadline, it could have been an opportunity, once that court decision was issued, for the government to implement a full consultative process to look at all aspects of citizenship and membership.

This was an important opportunity to right some of the wrongs around the gender inequality but also to look at some of the unintended consequences of Bill C-31.

I look forward to having discussions in committee about the complex nature of status and citizenship. I am expecting that we will have some very excellent presentations before the committee that lay out some of the challenges.

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

Mr. Speaker, in order not to miss a single word of my colleague’s speech, I listened very closely to both the original version and the translation. I thought it was important to understand exactly what my colleague was saying. Since I bump into her sometimes and we work together on the Standing Committee on Aboriginal Affairs and Northern Development, I want to thank her for the work she did on this and is still doing, because it is not finished.

If we go all the way and approve and pass this bill, whether with amendments or not, does she think there will still be discrimination between native men and women? If so, does she have a solution? How could we eliminate the discrimination that has existed since the passage of the Indian Act?

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

Mr. Speaker, I know the member for Abitibi—Témiscamingue works tirelessly on the aboriginal affairs committee and is very knowledgeable about the serious issues facing aboriginal communities across this country.

I do not believe that Bill C-3 would deal with all of the gender inequalities that are inherent in the current Indian Act. I had indicated in my speech that there is still a problem with illegitimate daughters. Illegitimate daughters have a different status, whereas illegitimate sons maintain their status. That is just one example of some of the challenges still in place in the Indian Act.

We have known unequivocally since 1973 that there are serious problems with the status provisions in the Indian Act. Here we are in 2010 picking at one small aspect of it. We need a comprehensive approach to status of citizenship.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I would like to thank the member for what all members have come to expect from her, which is a thoughtful, comprehensive, and well thought out speech to the House, as well as one that is very fair.

It seems to me that Bill C-3 deals with a very critical and important issue not only to the first nations of this country but to many Canadians who want to have a just and progressive relationship develop between the first nations and all Canadians, and progress for all bands across this country.

It also seems to me that substance and process are both engaged by this bill. Process, in particular, that the bill raises is the importance of consultation with first nations, the involvement of first nations, and the right of first nations to help shape a proper response to the very critical issue about the definition of who does and does not obtain Indian status in this country.

I would like the member to comment, if she would, on the importance of process, as well as the substantive issues engaged by this bill.

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

Mr. Speaker, the member for Vancouver Kingsway raises a very important issue.

As the member is well aware, there have been numerous Supreme Court decisions in Canada that talk about the duty to consult. There have been various efforts to define what that would look like, including an interim paper the government issued on consultation. However, even in the process of developing that interim consultation process, first nations have not been included adequately in it. What we have, again, is a process that is imposed somewhere else without adequate input from first nations.

Some first nations have done a tremendous amount of work themselves regarding the definition of what a duty to consult would look like. Because this is not the only piece of legislation that is going to come before us, I suggest that we need to look at the Supreme Court decisions regarding duty to consult and at the very good work that first nations have done regarding duty to consult, and come up with a process so that we do not have to continuously raise this in the House.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I too would like to echo the comments by the member for Vancouver Kingsway that the member has presented a very well thought out presentation on Bill C-3.

It seems to me that Sharon McIvor has gone through a lot to bring things to where they are right now, when she should not have had to do any of it. These problems should have been rectified years ago. It was not until the Conservative government of John Diefenbaker that native people even had the right to vote in this country in the 1960s. Where have the governments been all these years?

The member certainly understands the issue better than almost anyone in the House. She has indicated that there is still going to be a problem with illegitimate daughters. The question I have for her is this. Does she feel that we are going to be able to deal with that issue of this particular bill at the committee stage?

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

Mr. Speaker, at this stage we will certainly be looking at the outstanding issues, those raised by the New Democrats anyway, around gender inequality that currently exist in the legislation. The question becomes whether or not we could introduce an amendment that would be considered to be within the scope of the bill.

The hon. member for Elmwood—Transcona mentioned the fact that Sharon McIvor has been at this for 20 years. She and her family have been struggling with this very important issue for so long that it would seem that we need to move expeditiously to ensure Sharon and her family are no longer disenfranchised. Having said that, we need to look at all the other people who are impacted by the inequalities in the legislation.

It is incumbent upon us as members of the standing committee to make sure we do our due diligence when the bill comes before committee, so that we are looking at other aspects where people are being shut out. We need to look at the resource implications for bands. We also need to look at whether there would be unintended consequences, as there were in Bill C-31 in 1985. Are there going to be unintended consequences that would shut somebody else out, which we did not catch when we were considering the legislation?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, Chief Atleo of the Assembly of First Nations has highlighted the fact that the government has provided little information thus far to either this House or to first nations leaders. He is concerned about the possibility of a huge influx, perhaps tens of thousands, of people obtaining new status registrations. He has asked how the government could claim to be acting in the interests of first nations without allocating the resources that would obviously be needed to accompany a bill that may affect thousands of families and communities across this country.

I would be very interested in the member's comments about the resources she feels may or may not be necessary for first nations to deal with the issues raised by this bill.

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

Mr. Speaker, the resource issue is extremely important. Not only does it impact on the ability of bands to deliver things like housing and other social services, but the people who regain status will be entitled to education and health benefits, even if they live off-reserve. To date the government has been absolutely silent on what kind of resources it will put toward members who regain status.

In addition, the government's own numbers are shaky. The government is estimating 45,000 up to 100,000. That will have a significant impact on any band council's resources. We already know bands are underfunded with a 2% funding cap, and if another level of people regaining status is added in, bands will simply not be able to deal with the influx.

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

Mr. Speaker, it is a pleasure for me to rise and speak to Bill C-3. It brings back memories. Already when you were the chair of the Standing Committee on Aboriginal Affairs and Northern Development, we started discussing this bill or at least the imminent emergence of a bill to amend section 6 of the Indian Act, an act that is probably by far the most discriminatory legislation that Canada passed all last century.

I would like to acknowledge the outstanding job done on this bill by our researcher in the social affairs division, Ms. Hurley, who works for the Library of Parliament. She submitted a superb document, which we received today, on the history and the reasons why we are talking today about the McIver decision of the British Columbia Court of Appeal and why we want to amend the Indian Act.

We started trying to deal with the Indians in 1850, of course in a Canadian way. There was the American way. Everyone remembers the American way and Wounded Knee, where virtually all the Sioux and several other aboriginal communities were exterminated. They were driven off their lands through war.

In Canada, we took a gentler approach, although it was just as assimilatory in intent as the American way, which was to exterminate. We decided on a somewhat gentler approach and all the ensuing governments to the present day should look themselves in the mirror and say they are responsible for the fact that we are today debating BillC-3 to hopefully put an end—even if only partially—to unparalleled discrimination against women in Canada and against aboriginal women.

I have rarely seen a bill trying to end such discrimination in an existing piece of legislation. The act was called an Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act thirty-first Victoria, chapter forty-two. The bill was passed in 1869. Nothing could be more paternalistic than that.

In 1850, the first statutory definition of “Sauvages” in Canada was brought in. I am going to offer a history lesson on assimilation, for those who are listening to us. A better job of causing a people to disappear could not be done than the job Canada did with the Indians, with the first peoples. That much is clear. The reason some of them survive today is certainly not down to the governments that came one after another; it is because the aboriginal people had great resilience.

In 1850, the first statutory definition of “Sauvages” was inclusive, that is not me saying it, we have to go back to the Act for the Better Protection of the Lands and Property of Indians in Lower Canada, Statutes of Canada 1850, chapter 42. The Indians’ land was taken, and it was the federal government that flatly declared itself the trustee. But there were quite a lot of Indians. A way had to be found for there to be fewer of them.

A law passed in 1869 brought in the first provision under which the marriage of an Indian woman to a non-Indian resulted in the woman and her children losing status. A man retained all his rights and powers, while a woman who married a white man lost all her rights. And that has been the case since 1850.

The Bloc wants to speak out against that situation in the House. Over the next few months, we will try to find solutions. They will not be easy solutions, because the aboriginal peoples of Canada have been the victims of discrimination and assimilation in recent years.

It was in 1951 that an attempt was finally made to incorporate the double mother rule, under which a person who was registered at birth lost their status and their band membership at the age of 21 if their parents had married after the Indian Act came into force, in September 1951, and if their mother and father’s mother had gained status solely by marriage.

In other words, there was no problem if a man married a white woman, if an Indian man married an Indian woman and if an Indian man married a white woman. But if an Indian woman married a white man, she lost all her rights. That is what happened.

As far as I know, it is still women who bear children. Unless and until that changes, very clearly it is women who will be victims of discrimination under the Indian Act. That is still the case today and it will still be the case in the future, even if Bill C-3 is passed.

We are going to solve the problem in committee. We agree that the bill should be studied in committee.

Sometime last year, the House passed Bill C-21 to repeal section 67 of the Indian Act, which states that the Canadian Human Rights Act does not apply on reserve. That was impressive. Under Bill C-21, as of June 2011, the Canadian Human Rights Act will apply to aboriginal communities. Bill C-3 will add to the rights of women in these communities.

I hope that the government will see the light and adopt the UN Declaration on the Rights of Indigenous Peoples. I hope this will happen in my lifetime and during Mr. Speaker's tenure. Sadly, for the time being, we are nowhere near seeing this happen.

What is the McIvor decision? It is not very complicated. I have mentioned the milestones of the Indian Act. There was 1869, and then 1951. Another very important date after 1951 was 1985. That year, the Liberals, who thought they were so clever, introduced Bill C-31. The government at the time had a strong majority, and thus it was able to pass this legislation, which took effect in 1985. The problem is that Bill C-31, as it was passed, did not solve the problems.

Bill C-31 was supposed to remove discrimination, restore Indian status and ties to the band, that is membership rights, and enable bands to take charge of the status of their members on their own. Then the dispute started because, as they say, “The devil is in the details”, “Le diable est dans les détails” or, as you might sometimes hear in Quebec, “Le yâble est dans les détails”. I cannot wait to hear what the translators will do with that. So the “yâble” is in the details.

[An hon. member]

Le diable!

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

I said “le yâble” not “le diable”. That would be too easy to translate. So this was a very exceptional situation and the problem was still not fixed. Not only was the problem not fixed, but others were created. Basically, bands were given control over the status of their members. Bill C-31 gave bands some powers, but you had to belong to one.

So why would you want to register as an Indian? This is an extremely important concept. Indian registration is indeed the first step in gaining not only Indian status, but also peer recognition in the community. Membership is a very important concept, as it entitles individuals to live on reserve, participate in political processes such as the election of band chiefs, own property on reserve and share band resources. It permits recognition of one's origins and the practice of one's culture. And that is the problem.

Bill C-31 was passed in 1985 and that is when the problems began. Ms. McIvor is one of its victims. It is the reason we are discussing this in Parliament. She went to the courts. She found, she still finds and I hope that she will always find the double standard to be discriminatory. I do not want to go into technical details, but the double standard is found in subsections 6(1), 6(2) and 6(3) of the Indian Act. To sum up, nothing changed. If an Indian woman marries a white, she loses all her rights. Bill C-31 did not fix this problem. It upheld it. However, a limit was set. If the woman was born before 1951, she had the right to Indian status. If she was born after 1951, she did not have that right.

So what happened? Ms. McIvor took it to the British Columbia Court of Appeal. As we speak, a dozen or so of these complaints are before the courts in various jurisdictions across Canada, including one or two similar cases currently before Quebec courts. The fundamental argument is that we must put an end to the discrimination that exists when an Indian woman marries a non-Indian man. The operative word is “marriage”. Indeed, in the Indian Act, there is no mention of couples. So under that piece of legislation, if a couple lives together without being married, any children born to the couple are illegitimate. Bill C-3, which we are debating here today, does not address that issue. It always talks about marriage.

As soon as an Indian woman marries a non-Indian man, she loses all her rights. She will not get them back under Bill C-3.

So Ms. McIvor took her case to the British Columbia Supreme Court, which ruled in her favour. The federal government appealed the decision before the Federal Court, and the case was then heard by the Federal Court of Appeal.

On April 6, 2009, the Federal Court of Appeal ruled that section 6 of the Indian Act is discriminatory and that the government had to take steps to correct the situation. That is why we are currently examining the Sharon McIvor bill, that is, Bill C-3, to amend the Indian Act.

The problem is that it does not correct the situation. In 1985, regarding the changes proposed by Bill C-31, the government was asked how many new aboriginal people would be registered. It estimated that approximately 56,800 people would become new members of aboriginal communities.

Unfortunately for the government, on December 31, 2000, 114,000 people obtained Indian status, which helped stop assimilation. In the event this bill is passed, how many new aboriginal people will be registered? The government is unable to answer that question.

The worst answer came from departmental officials. For now, INAC estimates there will be roughly 40,000 or 45,000 new people, but the majority probably live off reserve. It is the “but” that is important here. Even if Indian status is given to new people who live off reserve, they will probably be assimilated, like many aboriginals living off reserve and in big cities.

Today, the question is whether there is enough money to include these new people. We do not know and that is worrisome. The federal government has frozen the annual budget increase for aboriginal people at 2%. There will be a serious problem when Bill C-3 comes into force.

We will see the reaction of aboriginals appearing before committee. The Bloc Québécois will ask that it be mostly women because they are the ones being discriminated against. With all due respect, the men have not lost anything. Initially, large band councils were headed by women. The Indian Act put an end to the passing on of tradition by women.

I will stop here, but if the House gave me permission to continue for another 10 minutes, I would be very happy.