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.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

That's why we are here today, because Bill C-3 was flawed.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think that's the reason this has phase one and phase two.

Phase one is to deal with what the court told us we had to do, and we were able to include some simple parallel cases in that piece of legislation. We knew we would have to then go out and do all the rest.

With due respect, my department has had very little experience over the last decade in going out and talking to people. With due respect, we're here today because Bill C-3 wasn't consulted on properly; therefore, that is what we are having to turn around. We have to turn around to a culture where the solutions are found by the people who know the most, those with expertise and those with lived experience.

[Dr. Pamela Palmater]

I agree that it needs to be amended. My caution is that it should be amended to make sure that men and women, married or not, and their descendants are equal pre-1985 under paragraph 6(1)(a) so that there's no hierarchy. However, this was attempted before, with McIvor in Bill C-3, and that amendment was ruled out of order for procedural reasons.

If it comes up that there's some technicality or procedure that doesn't allow you to do that, and you can't amend it properly, then an extension should be sought from the court, with the consent of the Descheneaux litigants, which they've already given, to allow further time to go back and get it right and not leave it for phase two, because phase two has that standard of consensus, and as you know, no human society ever agrees on gender equality, and we don't have the option to do that.

[Dr. Pamela Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

[Witness speaks in Mi'kmaq] Pam Palmater. I'm from the sovereign Mi'kmaq Nation on unceded territories in Mi’kma’ki.

I want to thank you for allowing me to come today to speak to some of my concerns with Bill S-3. First, I think it's important to acknowledge that we're on Algonquin territory. Second, we're here today for the efforts of indigenous women who have continued this battle for many decades, like Mary Two-Axe Early, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, Sandra Lovelace, and now the second generation of litigants fighting for gender equality for indigenous women, including Jeremy Matson, Lynn Gehl, Nathan McGillivary, and of course, Stéphane Descheneaux.

My primary concerns will be laid out in the submission that is being handed out.

The most important one is that Bill S-3 does not address all known gender discrimination. It doesn't. You've heard from other witnesses who have given very specific examples. My examples are not exhaustive, but they include grandchildren who trace their descent through Indian women who married out pre-1951, the illegitimate female children and their descendants who trace descent from Indian men born pre-1951, and also the differentiation and hierarchy that was created between paragraph 6(1)(a), the male category, and paragraph 6(1)(c), primarily the female category. They have come to be known as the “real Indians” and the “wannabe Indians”. In fact, 6(1)(c)s are the same in descent; they just happen to be indigenous women and their descendants.

A problem that also causes gender discrimination is with Bill S-3. They've now included even more complex differentiation in terms of categories. You have proposed paragraphs 6(1)(c.01), (c.2), (c.3), and (c.4). This also disproportionately impacts the descendants of Indian women who married out. Here's the problem with that. There is no legal or policy justification on behalf of Indian Affairs to have everyone identified in this way.

Programs and services are addressed through contribution agreements based on a membership or the status Indian registry. They never have to record whether you get health, if you're a 6(1)(a), (b), (c), (d) (e), (f), or 6(2). There's no justification for it, so then what's the alternative reason for it?

What it does is it places a scarlet letter on women and their descendants for having committed the sins of marrying out, having had illegitimate children, or worse, being born female. That's a scarlet letter that doesn't attach to Indian men and their descendants who have married out and have intermarried for many successive generations.

The other issue is the hierarchy of Indian status between subsections 6(1) and 6(2), those who can pass on status and those who can't. Those in the “who can't” section are somehow seen as defective and cannot pass on their status to others. It disproportionately impacts indigenous women, the children of unwed Indian mothers who cannot name the father, or who will not name the father because of the reasons that LEAF annotated, and also when fathers deny paternity or when they refuse to sign application forms. INAC has given the power to Indian men to have an impact on the children of indigenous women in this way. Last is the denial of compensation to women who have suffered discrimination for so long.

Bill S-3 also does not provide adequate protection for membership. You'll recall that pre-1985, Indian status and membership is synonymous. Even after Bill S-3, it will only be synonymous for Indian men, not for Indian women. Bill C-3 didn't provide those protections, and now Bill S-3 doesn't provide those protections.

The constitutional protection for gender equality is just that. Section 15 of the charter is equality for men and women. Subsection 35(4) of the Constitution, for anyone who wants to exercise aboriginal treaty rights, must be guaranteed equally between men and women. Article 44 of UNDRIP, which this government has said it's going to implement, also says there's equality between men and women. There is no legal option to negotiate, consider, consult, or agree our way out of gender equality.

If you look at the traditional laws of indigenous nations in this country, I have yet to find one in all of my research that promotes gender inequality.

Canada cannot proceed to phase two without addressing all gender inequality. It acts as a legal prerequisite. You cannot talk to our first nations without our indigenous women and their descendants there. It is unconstitutional. It violates all of our traditional laws, and it would act as a legal barrier to even starting the conversation in phase two.

Bill S-3 also needs to be accompanied by funding for first nations. You'll know that INAC has set aside millions of dollars for itself to deal with Bill S-3 applications, but it didn't set aside a single cent for first nations to deal with this at the community level.

Canada obviously failed to engage in any sort of legal consultations by its own admission.

The impact of Indian registration, as we discussed, is very serious. It's not just about programs and benefits; it's a root cause of murdered and missing indigenous women. It's lack of access to elders, language, ceremonies, and even access to powwows. There are powwows children cannot attend unless they have a status card, no matter how they were raised or whether they were raised in a first nation community.

It also won't address any of the pending litigation. Sharon McIvor's litigation is still outstanding. The Descheneaux cases are still in the hopper. There are Lynn Gehl's, Jeremy Matson's, and Nathan McGillivary's cases, and the Canadian Human Rights Commission has many. And of course, there's the Bill C-3 class action that was brought about because of gender discrimination.

My recommendations, very quickly, are for paragraph 6(1)(a) all the way. Every indigenous man and woman who had children prior to 1985, married or not, should all get the same kind of status so that indigenous women and their descendants don't have to wear the scarlet letter of paragraph 6(1)(c). You need rightful compensation for those who have been knowingly denied gender equality since 1982. For pre-1982, Justice said that's a barrier; there have been legal consultations.

My last word to you is that if we do not address gender discrimination now, in all likelihood, it won't happen. In phase two, they want us to deal with aboriginal treaty rights, nation to nation, getting rid of the Indian Act, and the minister has said that her standard for that is absolute consensus. There will never be, in the history of humanity, consensus on gender equality, but that's the law of the land.

Thank you.

[David Taylor, Executive Member, Aboriginal Law Section, Canadian Bar Association]

Thank you. Good afternoon, Mr. Chair and honourable members.

I'm pleased to appear before the Standing Committee on Indigenous and Northern Affairs.

I'll give my presentation in English, but I would be happy to answer questions in French.

The CBA aboriginal law section is pleased to contribute to the Standing Committee on Indigenous and Northern Affairs' pre-study of Bill S-3's subject matter.

I would begin by recalling the words of Madam Justice Ross of the Supreme Court of British Columbia in her reasons at trial in McIvor v. the Registrar, Indian and Northern Affairs Canada:

...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children.

It is therefore not surprising that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.

One of our main points concerns the manner in which this bill was brought forward and is being considered by Parliament.

When Bill S-3 was introduced at first reading in the Senate, consultations with regard to the first phase of the government's response to the Descheneaux decision were far from over. While we understand that the Indigenous Affairs consultations regarding Bill S-3 were to conclude last Friday, December 2, it remains the case that moving forward in the legislative process while there were still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them, as required by the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the House are designed for the amendment of bills based on public feedback, the honour of the crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.

We are also concerned by clause 8 of Bill S-3, which precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal crown have been on notice since at least the 2009 decision in McIvor by the British Columbia Court of Appeal that the amendments to the Indian Act in 1985 did not entirely resolve the discriminatory aspects of the Indian status system and, in fact, created new discriminatory elements.

On this point, Madam Justice Masse held in Descheneaux:

The year is now 2015. The 1985 Act from which the discrimination arises has been in force for a little more than 30 years.

The general finding of discrimination in the 2009 judgment of the Court of Appeal for British Columbia in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished in the measures in the 2010 act. The discrimination suffered by the plaintiffs arises from the same source as the one identified in the case.

Canada was aware that work remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.

By continuing to withhold eligibility for Indian status from certain women and their descendants, government realizes a cost saving: controlling costs by having fewer members. The result of discrimination should not be an economic benefit to the government.

Removing clause 8 from Bill S-3 would change the financial incentive going forward and would send a clear message from Parliament that the government will not be given a licence to discriminate through absolution for the past consequences of its actions where government was clearly on notice through prior court decisions that its broader legislative scheme was not on sound constitutional footing.

As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of Bill S-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.

The subject matter of Bill S-3 should also be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broader review of this question.

Indeed, in the second-last paragraph of her reasons for judgment, Madam Justice Masse held:

Parliament should not interpret this judgment as strictly as it did the [Court of Appeal for British Columbia's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

Given the long history of discrimination involved in the Indian status system, the phase two process will benefit from timely parliamentary scrutiny long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.

In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory and contrary to section 15 of the charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly, the legislative process, both here and in the phase to come, should set its sights higher in an attempt to rectify the inequities that have long been identified in the Indian status system.

Those are our submissions.

Thank you.

[Sharon McIvor]

I'm unclear about what they want to consult about. Perhaps it's membership. I don't know.

I know that they don't have the right to consult about discrimination. No one has the right to say it's okay to discriminate. They did it for Bill C-31. They did it for Bill C-3, and it looks like it's their intention to do it for Bill S-3. Whoever they consulted is saying that it's okay to discriminate. We don't want any more. There are some that want more members, as well, but the consultation has never, ever been sufficient. I cannot think of any consultation in the last 50 years that has resulted in anything. You go and talk, and you do what you want to do anyway.

My immediate concern with Bill S-3 is that it seems that instead of taking out all the known discrimination in the Indian Act, the minister has now decided, “Well, we won't take it all out, even though we know it's there, and we'll consult with people about how we're going to do it.” It doesn't make any sense to me.

I'm not a big fan of consultation in this kind of legislation.

Yes, when you're looking at land, resources, all those kinds of things, absolutely. But on whether or not you should take discrimination against an identified group out of the Indian Act, consultation won't get you anywhere. You can't do it. You cannot consult and get somebody's agreement and then continue to discriminate, and then continue to discriminate while you're consulting.

[Jeremy Matson]

As an individual, I wasn't privy to any information about nation to nation. I belong to a nation and I have a relationship with my nation. Just as I have a relationship with the crown and with section 6 of the Indian Act, I have my own relationship with my own nation.

Also, every family within the Squamish Nation is affected by Bill C-31 and Bill C-3 and now Bill S-3, so it's important to communities such as mine.

[Jeremy Matson, As an Individual]

Hello. My name is Jeremy Matson. I would like to thank the Algonquin people for allowing me to speak on their traditional territory. I would also like to thank Mr. Descheneaux, Ms. Yantha, Ms. Sharon McIvor, her son Jacob, Ms. Sandra Lovelace Nicholas, Ms. Bédard, Ms. Lavell, Mary Two-Axe Earley, and many others who continue to advance or who have advanced indigenous peoples' rights here in Canada.

Currently, I'm registered under subsection 6(2) of the Indian Act under Bill C-3, the McIvor bill, which is the Gender Equity in Indian Registration Act. I'm a Squamish Nation member and I have direct ancestral connections to the Tsleil-Waututh, Musqueam, and other Coast Salish nations.

I am married to my wife Taryn Matson, née Moore. We have two children: Iris Matson, who is eight years old, and August Matson, who is five years old.

I am one of many grandsons of Nora Johnston and Vino Matson. My grandparents were married in 1927, and because of her marriage to my non-aboriginal grandfather, my grandmother was commuted under the 1927 Indian Act and remained disentitled to her identity.

My father, Eugene Matson, was one of seven children born to my grandparents Nora and Vino between the years 1928 and 1942. My grandparents had approximately 30 grandchildren. We'll go into the effects of the upcoming Bill S-3 on those 30 grandchildren.

My grandmother remained disentitled as a band member or as a status Indian—a recognized Indian under the Indian Act—until April 17, 1985. Under Bill C-31, the amendments back then, my grandmother was registered under paragraph 6(1)(c) of the Indian Act and registered as a band member under section 11 of the Indian Act under the Squamish Nation.

My grandmother's seven children were registered for the first time under subsection 6(2) of the Indian Act, Bill C-31.

Canada has imposed discriminatory legislation against my family for 90 years. The intergenerational impact is significant. Canada has denied our cultural identities and/or placed my family members in an inferior position compared with those in other indigenous families in Canada, and the sole reason is gender discrimination and its adverse impacts.

I'll go a little bit into the nuts and bolts of Bill S-3 as drafted and its shortcomings and the way it affects my family.

I will be potentially entitled to paragraph 6(1)(c.2) registration under the proposed amendments. I'm going to go through my children's case. That means they'll be entitled to subsection 6(2) Indian status under this bill.

But there are a few inequalities in your tinkering with the Indian Act. You've created more problems—not you the INAN committee, but the drafters. I'll go through proposed paragraph 6(1)(c.4)—this is part of the Bill S-3 draft amendments—and show how my children meet some of these categories but will be left out from proposed paragraph 6(1)(c.4) Indian status.

The first category is for those for whom:

one of their parents is entitled to be registered under paragraph (c.2)

That would be me, as my children meet that criterion—and then they qualify under item (ii) of that proposed paragraph 6(1)(c.4) if:

their other parent is not entitled to be registered

That would be my wife.

Then item 6(1)(c.4)(iii) states, as its qualifying criterion:

they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985

My children meet that, and then it says:

and their parents were married to each other at any time before April 17, 1985

My children do not meet that category, so they're not entitled under that item of proposed paragraph 6(1)(c.4).

The newly entitled under Bill S-3—that means the generation below mine and descending generations from there, the newly entitled great-grandchildren or the second-generation cousins of my grandmother—the descendants of my grandmother, will be treated in a differential manner.

Some will be entitled to proposed subsection 6(2) Indian status, some to proposed subsection 6(1) Indian status under the Indian Act amendments in Bill S-3.

In my submission, I broke down all 30 grandchildren and how their standings would fall under Bill S-3. The first three grandchildren of my grandmother will not be entitled under this bill. They were not entitled under Bill C-3, because they were born prior to September 4, 1951, and they will remain disentitled under proposed subsection 6(1) Indian status, and their descendants will, too.

I also broke down.... I don't know what version of my submission you have. The first-generation cousins, the grandchildren, are highlighted in red. Those would be the individuals who were married prior to April 17, 1985. They will be entitled to pass proposed subsection 6(1) Indian status to their children, and the remaining non-highlighted grandchildren, which I fall under, will only be able to pass proposed subsection 6(2) Indian status to their children.

There is going to be differential treatment of siblings and families. In my family, first-generation cousins are going to be left out or left with an inferior status.

On page 6, in a detailed chart for the INAN committee, I broke down how I, my family, and my children will be treated differently, in comparison to my first-generation cousins' families and their breakdown.

I would encourage this committee to look at that, as it could be a possible recommendation. If you are staying in all the four corners of Bill S-3, and what Justice Masse has done with her decision in the Descheneaux case, my submissions and recommendations would stay within those four corners, but it would be nice to have everybody who was born prior to April 17, 1985 under proposed paragraph 6(1)(a) Indian status, as Ms. McIvor mentioned.

Not too long ago, on October 25, Canada went under review by the Committee on the Elimination of Discrimination against Women. Canada is a treaty member of that particular United Nations committee, and Canada's review was in the 65th session. On November 18, only a couple of weeks ago, CEDAW, from the United Nations, with the report CEDAW/C/CAN/CO/8-9, called Canada out about this very bill, Bill S-3. I provided that in there, but I didn't provide the reference and the web link. I forgot to put that in my submission.

Paragraph 12 of the report states that the committee:

further notes that a new Bill [S-3] amending the Indian Act is currently being developed. However, the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status.

In paragraph 13 the committee recommends that parliamentarians fix that.

This is the third CEDAW report that has announced to Canada to abolish or fix this discrimination. I currently have a petition before CEDAW about section 6 of the Indian Act and the relationship between the state and me as an individual, my children, my grandchildren, and my future descendants.

I also listed numerous other United Nations reports calling on Canada to abolish this, and I have provided links.

I'll now get to the the recommendations for Bill S-3.

It would be nice for this committee to provide a recommendation for proposed paragraph 6(1)(a) Indian status for everybody born prior to April 17, 1985, and also to provide future amendments, because there are implications, too, about April 17, 1985 to the present day. It's not just between April 17, 1985 and back to 1876, and before, that that there was discrimination. We also have to go forward after that date.

Staying within the four corners of this bill, under proposed paragraph 6(1)(c.4) I recommend providing Indian status to all the newly entitled, meaning my children's generational level, and not create differences between first-generation cousins or siblings.

Recommendation two is to provide Indian status or entitlement for all those individuals born prior to September 4, 1951. As my family history clearly displays, I have three first-generation cousins who remain disentitled under Bill S-3, even though CEDAW has recommended to Canada to fix all discrimination.

[Sharon McIvor, Union of B.C. Indian Chiefs]

Thank you.

My name is Sharon McIvor. I'm appearing at this committee for the Union of B.C. Indian Chiefs, which is a B.C. group of chiefs that has been in existence since the mid-1970s, and whose major focus is aboriginal title right and treaty rights.

Today I'm just speaking specifically to Bill S-3, the amendment to the Indian Act. You have to understand that status under the Indian Act is exclusively the jurisdiction of the federal government. It's in 91(24), so it's a relationship or recognition of who the federal government recognizes as Indians. It has nothing to do with self-determination or self-government. Those issues are out there to be discussed at another time and place.

Up until 1985, the Indian Act was blatantly discriminatory against women. Lots of pressure was brought, but mainly the Charter of Rights and Freedoms kicked in on April 17, 1985, and forced the government to deal with that ongoing discrimination.

With Bill C-31, there was an agreement at that time between Minister Crombie and his department that although he wanted all the discrimination gone, I understand that it was too expensive, so he allowed the second-generation cut-off and said that those guys could come and fight for themselves.

I took up the challenge. In July 1989 I started a case that was called the McIvor case about the ongoing discrimination in the Indian Act.

In 2010, after court decisions, the government got together to do Bill C-3. Bill C-3 continued with the discrimination. We've been here before and done this before because of the ongoing discrimination, and the government decided it was okay to continue to discriminate against aboriginal women and their descendants.

Looking at Bill S-3, it's exactly the same thing.

I can tell you what happened in 1985. The government threw out this thing to say that they had to consult with the people about whether or not they should end this discrimination.

From my perspective, and for most people who believe in human rights, discrimination isn't negotiable. As the Government of Canada, it's your responsibility to make sure your legislation complies with the charter, so you can't go out and ask all of those aboriginal organizations, which are mainly led by males, if it is okay to continue to discriminate against the Indian women. I can tell you that most of them will say, yes. We know, because in Jeannette Corbière-Lavell's case, the Assembly of First Nations and their allies were sitting against her with the government. In other cases we've taken, those male-dominated organizations sit on the other side.

It's your fiduciary responsibility to make sure that your legislation, no matter what you pass, complies with the charter. Bill S-3 does not. What Bill S-3 does is it continues the discrimination.

I have a petition with the UN Human Rights Committee to say that Bill C-3, the McIvor amendment, did not take all of the discrimination out of the Indian Act. That's sitting there. It was to be heard in July 2016. The Department of Justice put in a request to the UN committee to suspend the hearing of my petition, because of the bill—now S-3—that will bring gender equality to the Indian Act in February 3, 2017.

I handed a package to the clerk. There is a media release in which Carolyn Bennett promises that. I also have in the package the request to the UN committee by the Government of Canada, and in several places they said that by February 3, 2017, all known discrimination will be out of the Indian Act.

They knew it and they could do it, and then they were going to do a second phase, consulting nation to nation with the aboriginal people. The only thing that I'm saying today is yes to the consultation. You cannot consult about ending discrimination. You cannot consult about asking somebody else's permission if it's okay to continue to discriminate against me.

It's totally unacceptable and the position that you're taking as parliamentarians is really untenable. I absolutely can't understand why you're doing it. Discrimination is contrary to the charter and you know and I know, and you've heard probably from a lot of people, that there's still discrimination in the Indian Act. You have the ability to scrap the bill and do something that's going to take all of the discrimination out.

In 1985 the Government of Canada did something that helped take care of some of the bands' problems. The bands are not nations. The bands are an artificial construct by the Government of Canada, but what they did is they separated the membership and status. Section 10 allows absolutely every band in Canada to decide who can be a member. They cannot take membership away and the women who married out were to be put back into their birth bands, but second generation can be left out. You don't have to give membership to them. They separated that out.

The Government of Canada is determining who is an Indian and who do I have responsibility for and who do I have a relationship with. Absolutely every band in Canada has the right to make a law that determines who their membership is.

I just don't want the waters to be muddy there. What we're looking at is the Government of Canada deciding whether they're going to recognize me as an Indian. The other piece that's really important is that when I was born, I had birthrights. Outside of the human rights that every human is born with, I have aboriginal rights that come from my heritage. Those cannot be defined away. I cannot be discriminated against so I cannot exercise those rights, and recognition of me as an aboriginal person is one of those rights.

When we're looking at what you're doing with Bill S-3, what you did with Bill C-3, what you did with Bill C-31, you violated my rights as an aboriginal person. My plea to you is you can clean it up. If you look at in May 2010 the House of Commons committee reviewing Bill C-3 brought to the House an amendment to Bill C-3 which for the most part alleviated all of the concerns about the ongoing discrimination based on gender. That was rejected.

Actually, it wasn't rejected. The Speaker ruled most of it out of order and it was left in one piece, but you know how to do it. It's there. I put that in the package as well. It's a two-pager and it will alleviate most of the discrimination, all of the known discrimination. There are some things still there that need to be fixed, but for the most part it's doable and that's your fiduciary responsibility. You cannot continue to make legislation that has known discrimination in it. It's your fiduciary responsibility to take it all out. That's what the charter is all about.

Thank you.

[Frankie Coté]

I just find it a little odd—and please don't take this as an insult or anything, because I don't mean any disrespect—coming from the Conservative side, considering that the Harper government appealed this decision from the onset, and the Liberal government is the one that withdrew the appeal.

That being said, let me finish that first part. For consultation, yes, it's guaranteed that there needs to be more consultation, but that's just in general on all aspects. The courts have been clear about consultation within the legislative body. In the legislative process, through Mikisew, they went to court and they won in dealing with the omnibus bill and the changes to CEAA.

Going to the second part of your question, yes, there needs to be more money injected into it. When Bill C-31 was enacted, there was some money, but definitely not enough. There was some housing money given, but definitely not enough to meet the demands that the communities faced. With Bill C-3 there was no money injected when it came into effect.

When these people returned to their communities and asked for programs and services, it was a huge strain on communities, so definitely more money is always welcome and needed.

[Jeannette Corbiere Lavell, Citizenship Commissioner, Anishinabek Nation, Union of Ontario Indians]

Meegwetch.

[Witness speaks in Ojibwe]

I'm giving you greetings from my people, the Anishinabek Nation in Ontario. I am a member of the Wikwemikong unceded territory based on Manitoulin. I also shared my Anishinaabe name, which is Giiwedanang, which is North Star.

Having listened to the previous presentations, I am here to share with you the work that we have been doing within the Anishinabek Nation. It is what we are all talking about . It's called the Anishinabek Nation Citizenship Law or E-dbendaagzijig—“Those Who Belong.” This is the appointment I was given by the Grand Chief of Anishinabek Nation many years ago—well, not that long ago: in 2007, actually.

Just listening to everyone and looking around the table, I was thinking it might be good to take a few steps back and take some time to share with you my own personal experience with the Indian Act. It might have some relevance and bearing on what we're going through right now.

This is my status card. It says: “Jeannette Corbiere Lavell”. For 15 years, I didn't have it.

By the way, this one expired too. The irony is how can a citizen or a status member expire? But that's what happens.

In 1970, I married David Lavell, who is non-Indian—and as I pointed out, I was a member of the Wikwemikong unceded reserve—and then my rights as a member of my community were automatically taken away. I received a cheque in the mail for $35, which said that's it; you're no longer a member.

It was really hard-hitting for me, because I grew up there; my family is there; and that was my whole life—even though I did travel to Toronto, where I met my husband, but that was for work.

What I want to share with you is that changes and revisions of the Indian Act have been ongoing. Prior to that, it was revised so that our people could imbibe liquor. In 1970, when I looked at the Indian Act and the impact it was having on me, when I had no choice in the decision, it gave me that challenge. I took it all the way to the Supreme Court of Canada. That's the Lavell case, from which Bill C-31 was the result, many years later.

In 1970, we approached the chiefs—at the time it was the National Indian Brotherhood, and now it's the Assembly of First Nations—but no one really wanted to tackle this discrimination within the Indian Act, because of course it only affected indigenous women or Indian women with status.

We're still dealing with this. Here we are, 46 years later, with the same problem, so it has been ongoing. Nonetheless, this is the task you have been given as members of this committee. I understand the timeline; however, realizing the hardships that have taken place among many of our people in our communities, I say that decisions have to be made and change must be made. It is not relevant in this day and age to continue to have this kind of discrimination, especially against our women, within the laws of Canada. It must be changed.

I would like to see whatever we can do as members within our Anishinabek Nation to assist in bringing about this change.

Just to also relate, in 1973, we lost by one vote, so there wasn't any change for me and, as I've said, I didn't have my Indian status for 15 years. However, I guess the biggest impact was that legally I would not have been able to even visit my family or reside with my parents, my aunts, and my community, and this is also who I am. I have my language; I grew up there. We have our own spirituality.

When we say that Indian status is only getting access to health benefits, that's not true. To us, this is who we are as a people, that recognition. No matter where you go, you can say, “I am a member of my community, I am Anishinabek”. For me, I'm an anishinaabekwe, which is an Indian woman.

When we dealt with it in 1972-73, we didn't have any aboriginal women's organizations, but because of the determination of our women and the fact that no one was listening to us, we had to get that word out. So we formed our own provincial aboriginal women's organizations in 1973, and here they are. They just left. I am a member of the Native Women's Association of Canada as well through our provincial group.

I guess what I'm really trying to say is that there have been changes, and they have been good. They haven't been perfect, and here we are. Then Sharon McIvor worked on behalf of her grandchildren. That went through the B.C. Supreme Court and, as you well know, then we had Bill C-3. So we have Bill C-31, Bill C-3, and now we have the next step. So it's ongoing, and it won't be resolved because there will be other aspects coming out.

I hear what you're saying, that the Indian Act is not the best. However, it is the only protection that many of our people recognize, the only protection that we have. Unless we can be assured that we will have something that is strong, and that we will be a part of it, and we will have a say in the development of a governance structure, our own constitutions, and our own citizenship act, it just can't be done away with. It may take a little while longer, but as members of the Anishinabek nation in Ontario—there are 40 first nations who are members—we have started on that process.

I don't know how much time I have.

[Viviane Michel, President, Quebec Native Women Inc.]

[Witness speaks in Innu]

Good afternoon, everyone. I thank the Creator for having brought us here, and I also wish to acknowledge the vast non-surrendered Algonquin territory we are on.

Ladies and gentlemen members of Parliament, Kwe. The Quebec Native Women's association wishes to acknowledge the Anishinaabe Nation that welcomes us today on its vast non-ceded territory. Today, this welcome has particular significance, given the recent events in Quebec. It was on Anishinaabe territory that aboriginal women courageously denounced the abuse and violence there were subjected to by Sûreté du Québec police officers. The Quebec Native Women's association reiterates its message: we believe these women, and we demand an independent provincial judicial commission of inquiry in Quebec. IKWÉ solidarity.

Quebec Native Women Inc. is an organization of aboriginal women that has worked to put an end to injustice since 1974, so that our children may grow up amongst their own people and know their language, culture and traditions, and be proud of them. Since 1974, Quebec Native Women Inc. has been fighting against policies intended to assimilate our peoples, and against sex-based discrimination, that constitutes the basis of the Indian Act. Still today, in 2016, our societies are being torn apart by this.

According to the aboriginal oral tradition of the pre-colonial era, life between men and women was well defined. Although our roles were different, there were valued equally. There was mutual respect between the sexes and the generations. Aboriginal women benefited from a level of respect, equality and political power that European women of the the same era could only dream of. Several aboriginal societies were in fact matriarchal and matrilinear.

As you know, that balance between the sexes was violently destabilized by the colonial policies that were subsequently put in place deliberately by Canada. Colonization had devastating effects on our peoples, due notably to increasingly aggressive assimilation policies. These targeted our women and children in particular. The Canadian government was well aware of the importance of women in our society, particularly their role in passing on knowledge. It knew that to achieve its objectives and to eliminate the “Indian issue” and the Department of Indian Affairs in Canada , it had to uproot our peoples and tear us away from our lands and traditions.

It was expressed quite clearly in black and white that this law was created to accelerate territorial dispossession and decrease the number of aboriginals in Canada. In its annual report in 1895, the Department of Indian Affairs clearly expressed its intent to target our languages in order to assimilate us as peoples. To reach that objective the government intended to target the pillars of our societies, our women, who passed on knowledge to our children, the future of our societies.

The Indian Act served as a tool to achieve that by defining in a patriarchal and paternalistic way who was recognized as an “Indian” in Canada. During the 1800s, only those whose fathers were aboriginal were considered “Indian”, and any woman who married a non-aboriginal lost her aboriginal identity under the law.

It was this same law that imposed the residential school system on us. Its purpose was, and I quote, to “kill the Indian in the heart of the child”.

This law was built on a foundation that sought the abolition of our societies by attacking our women and children, as well as the transmission of our cultures, languages and way of life.

If Canada sincerely intends to bring about reconciliation with aboriginal peoples, it must be accountable and accept history and its repercussions on our current societies. Quebec Native Women Inc. believes that it is impossible to achieve reconciliation if our relationships are governed by a law that does not give us the right to determine our own identity, keeps us in wardship, and is based on racist and discriminatory principles.

Since the beginning of the 1970s, there have been court challenges to the Indian Act. After the very long and worthy battles led by Ms. Mary Two-Axe Early, Ms. Jeannette Corbiere Lavell and Ms. Sandra Lovelace Nicholas, Canada, that refused to recognize the sex-based discrimination of the Indian Act, saw its decision invalidated at the international level by the United Nations, which asked it to amend this act.

In 1985, Bill C-31 was passed to alleviate this discrimination. However, it did not put an end to it. On the contrary, it created new ones. It led to the creation of two categories of status. Status aboriginals were now divided into two groups: the one described in subsection 6(1) and the one described in subsection 6(2). This is painfully close to eugenics. These provisions inserted into the Indian Act the concept of the purity of bloodlines that once again divided our peoples and imposed a foreign system on our ways of governing.

In 2011, Sharon McIvor continued the struggle by standing up to sex-based discrimination due once again to the Indian Act. This led to Bill C-3, which failed to put an end to these years of discrimination.

Here we are together again today in 2016 to deal with these same issues. Quebec Native Women Inc. is asking you, ladies and gentlemen, to acknowledge the absurdity of the current context and the insidious nature of exercises like this one.

Quebec Native Women Inc. wishes to highlight the courage and perseverance of the women and men who waged these legal battles, but is forced to recognized nevertheless that each of these amendments was only a small bandaid on the serious and gaping wound of the cultural genocide attempted by Canada on aboriginal peoples.

Quebec Native Women Inc. wishes to remind Parliament of article 33(1) of the United Nations Declaration on the Rights of Indigenous Peoples, which establishes that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

Indian status, that has been divided into categories and is awarded according to criteria that will remain sexist even after the current proposed changes, represents a blatant violation of this right we have to decide who we are.

In 2011, our association held a gathering of the nations where the theme of identity was discussed with its members. Together, they expressed the nature of language, culture, belonging to a territory, values and traditions that are the markers of our identity and indigenous citizenship, and not blood quantum or the number on a card issued by the Government of Canada.

In today's context, Quebec Native Women Inc. is asking the Government of Canada to eliminate once and for all the discrimination practised against aboriginal women, including those who, for several reasons, do not declare the paternity of their child.

We also ask that the women who have suffered from discrimination since the period before 1951 may recover their status before it is too late for them.

Finally, we ask the government to eliminate the categories of status that set registered aboriginals apart and give rise to a contemptible and discriminatory hierarchy based on racist and shameful criteria such as the purity of blood.

Quebec Native Women Inc. is asking the Government of Canada to allow first nations themselves to determine who they are.

Given the government's intent to begin the second phase of the work in February 2017, the Quebec Native Women's association is proposing its collaboration with you in this process. We have expertise on this issue developed since 1974, and we believe that we can make an important contribution to reconciliation for the future of our peoples, of our women and children, for the next seven generations.

I would also like to say that we are going to run out of time to consult the 54 aboriginal communities of Quebec. This process is really inadequate. Our organization, Quebec Native Women Inc., met with representatives of the department. I invited them myself to come to our general assembly to discuss the Descheneaux decision, but only 66 women will be present. There are 54 communities to consult. The process is not adequate.

Thank you. Tshinaskumitin.

[Grand Chief Denise Stonefish, Deputy Grand Chief, Association of Iroquois and Allied Indians, Assembly of First Nations]

Thank you for the opportunity to speak to you today about Canada's effort to eliminate sex-based discrimination through this latest amendment to section 6 of the Indian Act.

As indicated, I represent seven first nations, mainly in southern Ontario. I am also the chair of the Assembly of First Nations' Women's Council. This council is an essential consultative body of the AFN under its charter, representing the interests and perspectives of first nations women who are members of our 634 first nations across Canada. As chair, I participate in meetings of the executive committee, our chiefs in assembly, and other meetings, including presentations to parliamentary committees on occasion.

As we are all painfully aware, the Indian Act was founded on the goal of complete assimilation of first nations as distinct nations. Since 1876, the Indian Act has undermined our kinship systems, our systems of governance, and many other aspects of our lives, including by enabling the imposition of the residential school tragedy. A primary tool to achieve those ends has been discrimination targeting first nations women.

This is the third time Parliament has attempted to rectify the sex discrimination in the act. In 1985, changes made under Bill C-31 left the task incomplete. In 2009, the British Columbia Court of Appeal found that the combination of the two-parent rule, the hierarchy of different types of status under subsections 6(1) and 6(2) of the Indian Act, and the second generation cut-off perpetuated sex discrimination under the act. Now the Descheneaux case has forced Parliament to make a third attempt.

We understand the compelling need for the government to respond to the discrimination identified in Descheneaux. Unfortunately, Bill S-3 will result in continued discrimination. In addition, the proposed amendments in Bill S-3 will compound the existing complexity of the Indian Act registration provisions by adding three additional subparagraphs to paragraph 6(1)(c).

The basic approach of this bill is to continue arbitrary federal control over first nation identity and simply push the residual gender-based discrimination down one generation.

Our review of Bill S-3 suggests other discrimination that will not be addressed. Number one, under Bill C-3, which addressed the McIvor decision, a woman who regains her status is deemed to be under subsection 6(1), and her children would also be eligible for subsection 6(1) status, passing on through future generations. However, a woman who lost and regained status for any reason other than that addressed under Bill C-3 was deemed to be under subsection 6(2), disadvantaging any future offspring.

Number two, Bill C-31 attempted to address the decision of the United Nations Human Rights Committee in the Sandra Lovelace case, as well as charter compliance issues. Now, under Bill C-31, a woman who regains status is deemed to be under subsection 6(1). A person, male or female, who lost and regained status under any circumstance other than marriage, under Bill C-31, is deemed to be under subsection 6(2), and any future offspring may be ineligible for status.

In our view, Canada's continued imposition of a two-parent rule, combined with the hierarchy of status transmission established by Bill C-31 under subsections 6(1) and 6(2), lies at the heart of the ongoing sex-based discrimination. We note with considerable concern that there is apparently no remedy yet for the unfair and long-standing discrimination in the department's policies respecting so-called “unstated paternity”.

I emphasize that these are not usually situations of paternity being unknown but most often of a woman having other reasons for not identifying the father of her child.

Thank you.

[Nathalie Nepton]

As indicated, $19 million has been set aside for over five years to deal with the registration of those who will become entitled as a result of Bill S-3. Definitely, when we look at lessons learned from Bill C-3, we'll take what we've learned and apply that, because that process went very well, but that process can't completely be transferred. For example, as Madam McLeod indicated, $700 I think is the figure she provided to process a file. When we process a file, we go from A to Z. We also look at genealogical research that's required, as well as other administrative issues. That means, for example, everything from requesting additional information of provinces to looking at what's required potentially for vital statistics, and trying as much as possible to assist the person who's seeking to be registered under Bill S-3.

[Nathalie Nepton]

Okay. For registrants seeking to be registered under Bill C-3, the process, as far as I know, hasn't signalled that there is a sufficient or a significant backlog. I can confirm that in writing to the committee later and provide you with an exact statistic.