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.

Motions in Amendment

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

Mr. Speaker, I am pleased to rise in the House to speak to Bill C-3, which is coming back with amendments at report stage.

I will quickly move on to these amendments after I draw the attention of the House to the presence today on Parliament Hill of the group of women participating in the Amun march. These women, who left a few days ago from Wendake, near Quebec City, took a break from their walk to come here today and support the opposition parties' demands that this bill go no further and that we vote against the amendments presented.

I would also like to draw the attention of members to the presence today on the Hill of the President of Quebec Native Women Inc., Ms. Gabriel. I believe that it is important to point out that, under the Indian Act—and I will come back to this as it is extremely important—women are victims of discrimination and have been ever since the Indian Act was adopted.

Women have always had to suffer the consequences of the government's actions. It is women who have always been excluded from band councils, from bands and from being registered, and they will continue to be excluded if this bill is passed as is.

Let us deal with the amendments immediately. There are two: Motion No. 1 and Motion No. 2. Motion No. 1 does not present a problem. It is straightforward, and no one can disagree with it. The government finally realized that we were right to ask that it report on its progress in implementing Bill C-3 if it were unfortunately—and I use that word advisedly—passed as is. We will support this amendment, as it does not represent a major change.

But we cannot support Motion No. 2, which we need to read and understand:

...no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty...for anything done or omitted to be done in good faith...

I said a couple of minutes ago that women would continue to be hurt if this amendment were adopted. Its wording implies that women have not been deliberately hurt. Yet that is exactly what has happened under the Indian Act: women have been deliberately hurt by successive governments since 1876. And things have not gotten any better since 1985.

I will digress for a moment, because I will have a chance to speak again when the bill comes back for third reading. We had introduced amendments and had accepted the Liberal amendment, but the Speaker unfortunately decided that that amendment could not be adopted, so the bill remains unchanged.

If this bill is passed as is, it will solve only a very small problem. I recognize that this problem does affect thousands of aboriginal people in British Columbia, but more than 100,000 aboriginal women and their children will continue to be hurt if the bill is passed as is.

What did the B.C. Court of Appeal tell us in the McIvor decision? It told us that it was our duty as politicians to review this law, which is unfair and unacceptable in 2010 and which perpetuates and will continue to perpetuate systemic discrimination against aboriginal women.

That is exactly what we did. We heard from witnesses, we heard from organizations like the Native Women's Association of Canada and Quebec Native Women Inc., we met with individual aboriginal women like Ms. Palmater and Ms. McIvor, and we also heard from organizations like the Barreau du Québec, the Canadian Bar Association, and the Assembly of First Nations. Every single one of them told us that amendments were needed to eliminate the discrimination once and for all.

We had a historic opportunity to put an end to the discrimination that exists and will continue to exist if this bill passes. No one is in favour of this bill.

The Aboriginal Women's Action Network has said that Bill C-3 maintains the discrimination against aboriginal women because they will still be required to declare the father of their child. That makes no sense, and that is not the practice anywhere else in Canada. Section 15 of the Canadian Charter of Rights and Freedoms states that no one can be discriminated against based on sex, religion, national or ethnic origin, and so on. It is strange that this does not apply to aboriginals, and especially not to aboriginal women.

Aboriginal women will be forced to continue to declare who is the father of their child, if they want their child to be registered. If they do not declare a father, it will be assumed that the father is white. Is this 2010 or 1876? This bill is setting us back 30 years.

We have an opportunity to fix the problem by voting against this bill. The opposition parties must vote against this bill. That is the beauty of a minority government: the opposition holds the power. We can vote against this bill and ensure that it is not passed. The government will say that it is urgent, and that the court gave it until July to pass this legislation; otherwise, some Indians cannot be registered.

I am asking Indians if they are willing to wait another year so that we can address this discrimination once and for all. If we vote against this bill, the government will be forced to introduce another one. We have said it loud and clear: we want to finally address the discrimination that aboriginal women are victims of.

It is unacceptable that this type of discrimination still exists in 2010. The icing on the cake is that the government is saying that Ms. McIvor's case must be remedied once and for all because the British Columbia Court of Appeal has told it to do so.

In an open letter to everyone, Ms. McIvor has asked us to vote against Bill C-3 because it will not put an end to gender discrimination. I will read it in English, since that will be easier and clearer for the members across the way.

Ms. McIvor said that Bill C-3 will not end sex discrimination in the statute's registration provisions under the Indian Act.

That could not be more clear. If I were allowed, I could speak all day long about the discrimination that aboriginal women continue to be subjected to. Bill C-3 will not put an end to this discrimination. That is why we will vote in favour of Motion No. 1 and ensure that the government can report. But will we vote against this bill at report stage in order to rescind section 9.

[Bruce Stanton, Conservative, Simcoe North, ON]

Mr. Speaker, I appreciate the comments made by the Bloc Québécois member, who sits on the committee.

I just have one question for the member, and I appreciate his suggestions this morning regarding the limits of the bill, on which it is quite well agreed there are limits, as we will discuss a little later this morning. But would not the hon. member agree that what we have in front of us is the ability to give possibly upwards of 45,000 first nations people the ability to gain their status? If the bill is not passed, the possibilities for that group of people who have been waiting a long time, and we are now into the second decade where these people should have been given the ability to gain their status, would be reduced. Yes, there is more to be done, but would not the member agree that we should at least take this first step and ensure that we can move forward for that group of people and then continue the work to address some of these other issues that we all agree are there and that must be discussed and for which measures ought to be brought forward to address?

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

Mr. Speaker, I am glad to hear him say that. My answer is no and I will explain why. In fact, the Court of Appeal forced the government to take action and it took the opposing stand. Now it does not have a choice. Luckily it decided not to take the matter to the Supreme Court. If not for the courts, the government never would have introduced such a bill. The proof is that the government introduced the bill only to satisfy the B.C. Court of Appeal.

So when I hear that, I think it would be better to wait another year and resolve the problem once and for all. It might be hard to wait another year, but they have already been waiting for 25 years. Can we not wait another year and solve the problem once and for all with a bill that will put an end to the discrimination?

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I enjoy working with the member on committee. I have one question for him and it is related to why the government would not remove all the discrimination in this bill. Does he have any hypothesis as to why?

I do not think government members want the discrimination to continue. My suggestion is that it is a lack of consultation. Over and over in committee, we have heard that there has been a lack of pre-consultation. Had there been sufficient consultation, the government would have found out about this residual discrimination in the bill and would have taken it out.

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

Mr. Speaker, the answer is yes and no, and I will explain why. We have known since 1876, since 1951 and especially since 1985 that the Indian Act was discriminatory. The discrimination is clear. As much as I respect aboriginal peoples, and everyone knows that I respect them a great deal, I do not believe much consultation is needed to answer the question as to whether subsections 6(1) and 6(2)of the Indian Act are discriminatory. The answer is yes.

The second question is knowing how to end the discrimination. The answer seems simple at first: eliminate subsections 6(1) and 6(2). It seems simple. Yes, many different things are involved at the governmental level, but as long as we continue this piecemeal approach with lawsuits that drag on for years and years, aboriginal people and aboriginal women in particular will never ever be able to achieve their full potential, because that is the problem.

Ms. McIvor spent 15 years fighting in court. That poor woman had no time to take care of anything else; she only had time for that. So it has to stop, and this is our opportunity to put an end to it once and for all.

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

Mr. Speaker, I am pleased to rise today to speak to the amendments that the government has brought forward. I want to make a couple of points to put this in context.

First, I want to acknowledge the women who took part in the AMUN March to Ottawa who are here today, along with Ellen Gabriel from the Quebec Native Women's Association.

What we have before us is a very troubling response to a very complex situation. The government, and I say this quite cynically, has called Bill C-3 the gender equity in Indian registration act. As we have heard from other members, the bill does not deal with the full range of gender discrimination that still exists under the Indian Act. We have a much broader and more complex problem with citizenship and status. Many Canadians are not aware that there is a difference between citizenship and status, and I want to highlight a couple of points on that.

We have heard about the urgency of this matter. I want to point to the ruling by the Court of Appeal of British Columbia. The court did allow an extension when the government asked for it until July, but it also indicated that under the circumstances it might well have acceded to a request for a longer suspension had it been sought. The government said this was urgent, that we had to get on with this right away instead of following the appropriate process. That simply is not true. The court indicated that it would allow the time required to do the kind of job that is needed.

I want to cite article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, which says:

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.

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

Under the Indian Act, status is imposed by the state. The state determines who is an Indian. Leading up to 1985 women were discriminated against for marrying white men. We have seen decades of fighting. A bill in 1985 introduced some changes, but the changes created all kinds of problems, which is why we now have Bill C-3 before us. From 1985 to the present we have seen a number of court cases. Ms. McIvor's is the one that prompted Bill C-3. There are 14 other outstanding court cases.

The first nations registration status of membership research report, which is from where I cited the United Nations declaration, also indicated the generations that this has been ongoing. The 1996 Royal Commission on Aboriginal Peoples report acknowledged that the Indian Act and other such legislation and policies have had a detrimental impact on aboriginal people, resulting in the muting of the collective consciousness in respect of aboriginal nationhood and citizenship in an aboriginal nation. According to RCAP, citizenship is not vested in the Indian Act band but rather in the aboriginal nation, and calls for the reconstitution of aboriginal nations and nation governments that would in turn determine criteria for citizenship.

We are not dealing with the much larger issue. As long as we continue to deal with status on a piecemeal basis, many women and men are being forced into the courts to get the government to deal with this and we are going to continue to have this kind of conflictual discussion. The government had an opportunity to do a far better job than it has done on this.

I want to specifically reference the amendments that have been proposed, but specifically the one with respect to clause 9. Others have quoted from a number of witnesses and I want to touch on a couple.

When the Chief Commissioner of the Canadian Human Rights Commission came before us at committee, she said two really important things. She said that the repeal of section 67 of the Canadian Human Rights Act would allow women and men to take these discriminatory status provisions to the Canadian Human Rights Commission. In her testimony, the commissioner indicated:

My key message to you today is that this is by no means definite. The Commission’s ability to redress allegations of discrimination under the Indian Act remains uncertain.

Even the Commissioner of the Canadian Human Rights Commission questions whether the remedy proposed is possible.

In addition, during questions and answers later when she was asked specifically about clause 9 and the impact it may have on the Canadian Human Rights Commission to bring forward a remedy if discrimination was found, she indicated that she was uncertain about the impact of clause 9. Therefore, that remedy may simply not be available.

I also want to reference the national aboriginal law section in the Canadian Bar Association's briefing note of April 2010, which said:

Section 9 is a concern, as it would remove the right of anyone to sue the federal government for not providing them with status as a result of the gender discrimination addressed by the Bill. If the federal government can be presumed to have been aware that Bill C-31 was not consistent with the Charter as far back as 1985, and did not act for over twenty years until the McIvor decision reached the BC Court of Appeal, the CBA Section is concerned with the justice of such a “no liability” provision. Further, we caution that including such a provision could make the Bill vulnerable to further Charter challenges.

There are two points on that. Nobody is clear what the repeal of section 67 means in the context of what clause 9 would do. The government has indicated that Bill C-31, back in 1985, had a similar liability clause. It has argued that in Bill C-31 in 1985 that clause has not prevented first nations from taking their cases to court. However, we are in a completely different context in 2010 because we now have the repeal of section 67 of the Canadian Human Rights Act.

This question around what clause 9 would mean in this new context has not been analyzed and nobody has been able to give a clear answer about whether first nations would still have any remedy, whether they would be able to continue with the practices that have happened since 1985 in terms of bringing court cases forward and seeking remedies. We are in a different context and I do not believe there has been the kind of analysis that would indicate the impact on that.

The other issue is that the government has claimed that part of the reason for clause 9 is to protect first nations chiefs and councils from any liability issues. If that is the case, then why was clause 9 or a similar clause not brought forward that protected chiefs and councils but still left the government open for redress?

The Canadian Bar Association raised the issue of whether the government was aware that there was ongoing gender discrimination. In the 1988 fifth report of the Standing Committee on Aboriginal Affairs and Northern Development it outlined that there were numerous issues of gender discrimination still in the act. They are clearly outlined. Whether it was unstated paternity or children born prior to 1951, there were all kinds of gender discrimination issues.

This report was tabled in the House, so clearly the government and successive governments were well aware that there was residual gender discrimination in the Indian Act. Therefore, it would be hard to claim that the government was not aware. This has been brought up in any number of other venues.

This is outside the scope of the amendments, but a very troubling question around funding continues to be unanswered. We know that with a 2% funding cap imposed in 1995, continuing increases in population and new people coming on as a result of changed status, it is very difficult for bands to manage their funding with increased populations. It seems unreasonable to put forward legislation that does not have the financial resources attached to it.

There are a number of unanswered questions that remain before us when we consider the amendments before the House.

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

Mr. Speaker, I listened closely to my colleague, who is doing excellent work as a member of the Standing Committee on Aboriginal Affairs and Northern Development. I really enjoy working with her. However, I do not think she told us what we really want to know. Allow me to explain: I listened to everything in both English and French just to make sure, but I did not hear her say what the NDP's position at report stage is.

What does the NDP plan to do about the amendments before us, Motions Nos. 1 and 2 concerning clause 9? I would really like my colleague to tell the House what the NDP's position on this issue is, without violating the seal of confession, of course.

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

Mr. Speaker, I was not attempting to equivocate. We will not be supporting the amendment.

The member knows full well that I am from British Columbia and how very difficult this decision has been for me and my colleagues.

We fully recognize that up to 45,000 people across this country could gain status as a result of Bill C-3. We also have a responsibility, as parliamentarians, when a bill comes before us, to examine the full implications of that piece of legislation. When it comes to clause 9, I am not sure that we understand the full implications of this piece of legislation. I raised the issue on the repeal of section 67 of the Canadian Human Rights Act. I am not sure that we really understand, in this new environment we are operating in, what the implications of clause 9 would be, whether there would be remedies available, and whether the Canadian Human Rights Commission could actually hear these cases and determine awards.

I am very concerned about what would happen in British Columbia, where paragraphs 6(1)(a) and 6(1)(c) will have no force and effect if this legislation is defeated. Perhaps the government will use this as an opportunity to bring back a more reasonable piece of legislation, which, of course, it has the full ability to do.

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

Mr. Speaker, clearly, the government does not want to do the right thing here and end discrimination. I would think that it is partly because of the costs, or maybe it has no plans to actually fund the costs.

The first nations band councils have not heard whether the government will be increasing spending for the roughly 45,000 people who will be gaining status. If the government is not tying the funding to population growth, and if there are many fast-growing communities already under strain as we speak, how are the liabilities of the government and the band councils going to be affected if there is no increase in funding and services cannot be offered to all the new claimants?

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

Mr. Speaker, the member for Elmwood—Transcona is absolutely correct. We have seen, even without any increase in the number of people with status, that since 1995 there has been a 2% funding cap on Indian and northern affairs funding and a 3% funding cap on first nations non-insured health benefits. The status population growth in bands has far outstripped that funding.

It was very troubling to see in the estimates tabled in the House that even though the government was fully aware that Bill C-3 would be coming forward, with its own numbers saying that there would be an increase of up to 45,000 people, there was absolutely no additional funding to deal with that increase.

In addition to that, we know that there are many other issues facing band councils. They are already squeezed for money. With the repeal of section 67 of the Canadian Human Rights Act, we know that band councils are going to be facing increased pressure from their own members, because claims can be filed against them under the Canadian Human Rights Act. Of course, bands have a limited ability to increase access to things such as housing, education, clean water, and health benefits.

One of the things we also notice is that the living index in first nations communities is down at the level of third world countries, and their ability to deal with this increased population is simply not there.

[Bruce Stanton, Conservative, Simcoe North, ON]

Mr. Speaker, I am delighted this morning to have the opportunity to speak to Bill C-3, the gender equity in Indian registration act, at report stage, and to remind all members that there are two goals this legislation now before us is set to achieve.

First, Bill C-3 would eliminate a cause of gender discrimination in the Indian Act. Second, it represents a timely and direct response to the ruling of the British Columbia Court of Appeal.

We are well aware that there are a number of broader issues related to the question of registration and membership. We heard that intently, during the course of our committee hearings, in testimony from a good margin of witnesses.

However, given the short timeframe and an interest in avoiding a legislative void in British Columbia, we are seeking to implement changes that directly respond to the British Columbia Court of Appeal decision. Bill C-3 offers a solution to the specific issues identified by the Court of Appeal by amending the Indian Act to address the gender discrimination identified by the court.

As I mentioned, we are quite aware of the broader issues of registration and membership, because the consultations prior to the tabling of this legislation involved collaboration with the people who are most greatly affected by it.

Last year, following a thorough review and analysis of the court's decision, officials from Indian and Northern Affairs Canada had technical briefings with representatives of five national aboriginal organizations to discuss the decision and Canada's proposed response. Following those briefings, 15 engagement sessions were held throughout the country to present Canada's proposed response to the McIvor decision and to solicit feedback. Hundreds of participants came to the engagement sessions, and many written submissions were received. Several common themes quickly emerged.

Many people expressed concerns about the broader issues of registration, membership, and citizenship. We appreciate the fact that these broader issues are complex. We saw in committee that even among first nations representatives and leadership there is a diversity of views. One could not conclude that there is even a singular consensus within the population or the community itself.

For these reasons, we will be undertaking a collaborative process with national aboriginal organizations to plan, organize, and implement forums and activities that will focus on gathering information and on identifying more fully those broader issues for discussion.

I would like to quote the first witness we had at the committee hearings on this bill. We heard from the Minister of Indian Affairs and Northern Development. He said, “We know that broader reform of these matters cannot be developed overnight” or “in isolation”. He went on to say, “I've announced that over the next few months we will be setting up a separate exploratory process to gain further insight into these issues, as was requested by many first nations during” the McIvor engagement process.

It is that kind of engagement that has given rise to some of the discussion, a two-part discussion, on first, putting legislation in place that addresses the decision by the British Columbia Court of Appeal, and second, on acknowledging and understanding that there is more to be done. Members here this morning have alluded to it. There is much more to be done on the issues of registration and citizenship.

The Government of Canada believes that this separate exploratory process should be collaborative and thorough. The wide array of views on status, membership, and citizenship must be shared and considered carefully. These are issues that cannot be discussed in isolation, as I have said.

However, as important as this work might be, it cannot take precedence over Bill C-3. We must not lose sight of the fact that the legislation now before us responds to a specific court ruling and a prescribed deadline. The ruling and deadline inform the design of Bill C-3. It is for this reason alone that the proposed legislation is precise, compact, and focused.

Let me remind the members of the House of the deadline we are working towards. On March 9, 2010, the government sought an extension of the British Columbia Court of Appeal's declaration of invalidity to avoid a legislative gap in British Columbia. That extension was granted on April 1, 2010, and it extended the original deadline out to July 5, 2010.

We are about six weeks away from the deadline on which there would, in fact, be a legislative gap or void on the issue of registration, particularly and specifically in British Columbia. That could potentially mean upwards of 2,500 to 3,000 registrations per year in British Columbia alone. People who would otherwise, and should, have access to registration would be denied it if this bill, in its limited and prescriptive way, is not passed. That would be the effect. There would be no ability to register those new registrants in the province of British Columbia.

As I have said, if no solution is in place, paragraphs 6(1)(a) and 6(1)(c) of the Indian Act, which deal with an individual's entitlement to registration, commonly referred to as Indian status, will for all intents and purposes cease to exist in the province of British Columbia. This would create uncertainty. Most importantly, this legislative gap would prevent the registration of individuals associated with British Columbia bands.

The positive impact of Bill C-3 should not be overlooked. Based on demographic estimates undertaken by Stewart Clatworthy, a leading expert in the field of aboriginal demography, the proposed legislation would entitle upwards of 45,000 people to have access to register under the Indian Act. That would essentially equate to 45,000 new people in our country having access, as other status Indians have, to non-insured health benefits, post-secondary education funding, and things that they are at the cusp of being able to receive. They can only do so if this bill is passed.

We all know that discrimination is one of those obstacles that prevent many aboriginal people from participating fully in the prosperity of our nation. With the removal of these obstacles, aboriginal people will have more opportunity to contribute socially, economically, and culturally to our country. That is good news for all Canadians.

Bill C-3 represents a timely and appropriate response to the British Columbia Court of Appeal ruling. It proposes to eliminate a cause of unjust discrimination and to ensure that Canada's legal system continues to evolve alongside the needs of aboriginal peoples. I would urge all members to join me in supporting the timely passage of Bill C-3 and the amendments before us today.

We have discussed some amendments this morning. There are two motions. The first motion on clause 3.1 addresses some specific items related to ensuring that the Minister of Indian Affairs and Northern Development is responsible for reporting to Parliament within two years of the amendment coming into force. That is the reporting provision.

There has been some debate on clause 9 this morning. I would simply remind members that it is not only the Government of Canada that would be seeking to uphold this legal principle so that it would not be facing untoward legal action. It is also for first nations communities and governments. They too could be in a position of having to face that kind of action and would not be in a position to do it.

This is a legal principle that should be upheld. Clause 9 makes it clear that this would be the case.

[Larry Bagnell, Liberal, Yukon, YT]

Madam Speaker, I commend the member on his excellent chairing of the committee.

If the member would like the bill passed as quickly as possible, I assume the government will not be putting up any more speakers.

[Bruce Stanton, Conservative, Simcoe North, ON]

Madam Speaker, I am not aware of the speaker schedule. I understand that members opposite have a list of speakers as well. We will certainly see how the debate goes here this afternoon and we are prepared to speak to the questions as the House desires.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I have two questions for the member, one on costing and one on the timeliness.

The member has stated that the Minister of Indian Affairs considers that this is a critical issue to address and yet 22 years have lapsed since the recommended reforms have come forward. The government has been in power for four years. I would hardly call that a timely response to a report that has been languishing for 22 years. I wonder if the member could speak to that. We have had 22 years of Liberals and Conservatives who have not addressed those proposals.

Second, it has been the policy and practice of the government every time a private member's bill is tabled to demand that costing be done and yet the government tables for debate this very significant bill in which band councils and first nations will incur substantial costs. Could the member please advise why there is not a line in this year's budget where we could not find billions of dollars to reduce corporate taxes but no resources are available to support the bands in delivering on the bill?

[Bruce Stanton, Conservative, Simcoe North, ON]

Madam Speaker, one of the unique aspects of the bill, particularly as it relates to the provisions that would allow this new group of upwards of 45,000 people to be able to receive these kinds of benefits, is that it is based on an application much of which has been the case in the past as well. When there have been changes in registration, it falls on the shoulders of potential applicants to make the decision if they wish to go ahead and apply to receive that status. They would look at what allows a person to gain status, as would be prescribed by the bill and the amendments to the Indian Act, but it would then be incumbent upon them to make that decision to go through the process.

It is very uncertain as to how many on a year-by-year basis would be applying to make that. It is one of the reasons that the uptake on the bill may be very quick. On the other hand, it might be staged over a period of time. However, these are the kinds of programs that are required. The government provides support for things like post-secondary education and non-insured health benefits. As the people who are eligible for those benefits grow and registrations grow, then the government responds accordingly.

As to what the exact number will be is very hard to predict because we just do not know how many people will sign up year in and year out.