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 bill was last introduced in the 40th Parliament, 3rd Session, which ended in March 2011.

Sponsor

Chuck Strahl  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:20 a.m.
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Liberal

Todd Russell Liberal Labrador, NL

Mr. Speaker, I thank the parliamentary secretary for his words and for helping to clarify what is a very complex issue.

He did mention in his remarks the timeline that we are facing of April 6, which is only days away and we are only at second reading of this particular bill.

The government had intended to table this bill last fall or when the House came back in late January or early February. How does the member feel prorogation affected the timing?

It is my understanding that the minister or the government has asked the B.C. Court of Appeal for an extension. I may be correct or incorrect on that particular assumption, but has the government asked for extension and, if so, what was the reply?

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:20 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, in terms of the request for an extension from the courts, we did ask for an extension but we have not heard a response.

I did make a commitment in the aboriginal affairs committee that as soon as we received a response I would certainly let the other parties know, although I think it would generally be a matter of public knowledge at that time in any case.

In terms of the timing of getting this bill before Parliament, we are doing quite well. This is our second week here and I have been pressing to get this bill before the House, which I have, and I think we will give it quick passage through second reading and then into committee where we can deal with it.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:20 a.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, would the parliamentary secretary agree with me that perhaps he should have prefaced his comments with the statement that this House of Commons, this Parliament believes that the Indian Act is a paternalistic, obnoxious instrument of oppression that is unworthy of any western democracy and, in fact, is unworthy of any civilized free society?

I believe that the parliamentary secretary could have prefaced his remarks by recognizing that the social condition and the status of aboriginal people in our culture is perhaps Canada's greatest shame, and that there is and should be a sense of urgency to remedy some of the historic atrocities contained within the Indian Act.

Perhaps he should have acknowledged that the Indian Act was really designed as an instrument, not only of oppression but of extinction. In fact, it had recipes for extinction built into it. For instance, when a 6(1)(a) Indian, they categorized rights as 6, chapter (1) section (a), and a 6, chapter (1), section (c), marry. the results shall have a 6(1)(c) that forfeits their rights. It is not called disenfranchised. It is called enfranchising because they then become full status human beings as non-Indians.

I would just like my colleague to acknowledge and perhaps explain the position of his government. Does he acknowledge that Bill C-3 does not confer rights on aboriginal women, that this bill recognizes and finally acknowledges the inherent rights of those people who gained those rights by their birthright not bestowed upon by the government?

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, the Indian Act is very controversial of course and we do have some first nations in Canada who have negotiated their way out of the Indian Act for all provisions of the Indian Act with the singular exception of the registration provision very often because this whole determination of who is and who is not a registered Indian or a status Indian is a very complex and debatable issue.

Even after Bill C-3, we have bands that operate under custom code that will determine who their members are without reference to Bill C-3. We also have bands that have chosen to remain strictly under the Indian Act provisions that will have members added to their roles through the bill.

Therefore, there is no single response or catch-all phrase, but this is a narrow targeted and focused bill.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I want to follow up on the excellent questions from the member for Labrador and the member for Winnipeg Centre this morning.

I thank the government for introducing Bill C-3. The fact is that Sharon McIvor should never have had to launch a court case in the first place. It took 21 years for this process to take place and it should never have taken that long in the first place.

We will be supporting the bill. We feel that it is long overdue to rectify this situation.

However, I do not understand why this was left until the last possible minute. The parliamentary secretary indicated that April 26 is our date. The question really is, as the member for Labrador suggested, whether the government could have acted earlier and given us more time to deal with the issue.

Having said that, we will be supporting the bill to get it to committee and then if there are any amendments we can deal with them at that time.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, I would remind members that the engagement process was an ongoing process that continued right through into the new year. Therefore, we have not lost any time over this.

Beyond the engagement process, an exploratory process will carry on subsequent to the passage of the bill at second reading. I do not see us as being tardy in any way.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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Conservative

Dick Harris Conservative Cariboo—Prince George, BC

Mr. Speaker, I listened to the comments of the member for Winnipeg Centre and he is quite correct. Why has this taken so long? I am not talking about the most recent period because, as the parliamentary secretary said, there is a process to go through.

The Liberal government was in power from 1993 to late 2005, a total of 13 years. It had ample time within that vast period of government to deal with this issue and yet the Liberals treated that issue as if it were so far below the importance in their minds that it was never even contemplated.

I congratulate our minister for having the mind to realize the importance of this issue and bring it to our government's attention, and we have dealt with it.

Could the parliamentary secretary tell the House whether there was any justification for a 13 year hands off approach to this most important issue that the Liberal government displayed?

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:30 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, I do not know about the specifics on what we are now calling Bill C-3 in terms of that comment or question, but there has been a whole host of areas, whether it has to do with drinking water, housing or child and welfare services, where I believe we have had a sense of urgency and we have improved the circumstances very significantly in our time in office.

I would like to think that we will continue in a dramatic way in that same direction.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:30 a.m.
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Liberal

Todd Russell Liberal Labrador, NL

Mr. Speaker, it is a pleasure to stand in the House today and 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 bill is in response to a long-running battle in the courts spearheaded by Sharon McIvor. This action is being taken because the courts have said that the government must take action on this particular case. I congratulate Sharon McIvor and the others who have walked with her on the journey to heal the wounds of inequality and injustice.

It is pertinent for the House to know that it has taken 20 years. The court case was launched in 1989 and it took 17 years, until 2006, for it to be heard. Every obstacle was thrown in the way. I will not get into a debate about what government was in power when. The case was launched under the Mulroney government, carried on under the Chrétien and Martin governments, and continued on under the present Prime Minister's government.

However, there is something wrong with the system when it takes 20 years in the courts to resolve an issue of inequity. It takes time and resources and eats up people's lives, and we are talking about people's lives. I really do not care what government was in power. There must be a better way. There are smart lawyers in the Department of Justice. Someone must have sat back and thought that this really was an issue of inequity. They must have wondered if there was a better way to deal with it, such as through discussion or negotiation.

I note as well that, when it comes to resources, Sharon McIvor used the court challenges program, as have many other women, to try to advance their particular cause of equity. It was in 2006 that the current government killed the court challenges program that promoted the cause of equity. That added further to Sharon's struggle for money to see this case through to its successful conclusion, at least in some people's minds.

Does the title of this bill accurately reflect the intent of the bill, which is to provide equity? Many would argue that it tries to achieve that particular objective but it would be wrong for the House to think that this legislation would resolve all of the issues of inequity based on sex or on one's maternal line. Many other issues have not been addressed.

Let us take a quick look at what Bill C-3 is about and put it into context.

The McIvor case was the first of many cases to reach a decision under section 6 of the Indian Act. The case is about Indian status. It does not talk about band membership, citizenship or section 35 rights.

Sharon McIvor challenged the constitutionality of the Indian Act under section 6 as a violation of section 15 of the charter. The argument was that there was preferential treatment for descendants who traced their Indian ancestry along the paternal line over those who traced their ancestry along the maternal line, and that there was preferential treatment for male Indians who married non-Indians and their descendants over female Indians who married non-Indians and their descendants.

The B.C. Supreme Court ruled in favour of Sharon McIvor. It said that there was discrimination on the basis of sex and matrimonial descendance and ordered that section 6 was of no force and effect only with respect to the conferral of Indian status. The order resulted in inequality, the B.C. Supreme Court ruled, regarding the passage of status.

However, even though Sharon McIvor had won, Canada appealed the decision to the B.C. Court of Appeal. The Court of Appeal found discrimination in section 6 as well but on a much narrower basis. The court said that Bill C-31 created a new inequality because it enhanced the position of those affected by the double mother rule. Children of non-Indian mothers and non-Indian paternal grandmothers lost status at age 21 but restoring their status in section 6(1) meant that they could pass status regardless of the status of one parent.

The court only struck down sections that gave this enhanced status, and that is sections 6(1)(a) and 6(1)(c), so the ruling was in relation to a more limited category of people affected, which is why the government did not appeal because there were protected vested rights. The court gave the federal government one year to amend this provision.

Sharon McIvor in fact felt that even though she had won, the ruling was not what she wanted or felt she needed to resolve the issue of inequity. She filed for a leave to appeal to the Supreme Court of Canada. The appeal was denied on November 5, 2009.

The B.C. Court of Appeal's decision does not result in those who are already registered under the impugn provisions being struck off the registry, which basically means nobody will lose the rights they now have under the Indian Act, as this would result in a charter challenge itself.

What was the government's response? The government had a deadline to meet of April 6 of this year. The court said that it would give the government one year to bring in the legislation to deal with the inequity under section 6 of the Indian Act. The government released a discussion paper outlining what some of the options might be, some of the processes that it would go through. It then went through an engagement process. Engagement is an important word. It is not a consultation process because the government felt it had no legal requirement to consult, but only to engage the opinions of people to listen.

People had problems with that. People felt the engagement process was limited. Only about 150 individual submissions were made to the department. There were some regional and national meetings, but people, as a whole, felt it was very limited, that they did not get the full range of views they should have on this important legislation.

After the engagement process, the government gave notice that it would table a bill back in December. We were informed that the bill would be narrowly scoped to only deal with the equality as set out by the B.C. Court of Appeal. The government did admit that it would only deal with the B.C. Court of Appeal decision, that it would not deal with other issues arising out of the Indian Act, other issues of inequality or discrimination that exist.

Up against this April 6 timeline set by the Court of Appeal, the government has now brought forth legislation at the eleventh hour. The timing constraint is certainly compounded, and was compounded, by the prorogation of Parliament, which removed many days from the parliamentary calendar. I know the government says it is serious, but if it is serious about getting the legislation through, then annual prorogations are not the way to do it.

In examining this bill, we want to be diligent, we want to be expeditious, but we should not be rushed.

When we look at some of the content of the bill, people have written to me and to the department. They have indicated there are certain provisions of the proposed legislation that are still very problematic, and that they may raise other potentially new cases of discrimination.

I refer to a briefing note, a submission that was made by Dr. Pamela Palmater, who did her doctoral thesis on the Indian Act and the whole issue of status and the conferral of status. I will only refer to one section, just to give members and those who are listening a sense of where some other issues of discrimination may arise.

She says that section 6(c.1)(iv) of the proposed Bill C-3 provides that a person:

—had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;

She says:

This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.

I mention this because the committee will have to take the time to understand what the implications are of this legislation. We do not want to make the situation worse. We want to improve the situation. We want to respond effectively and efficiently to the B.C. Court of Appeal's decision.

Neither does the legislation address the second generation product rule or situations of undeclared or unknown paternity. Again, these are matters that the committee will seriously have to consider.

The case is also shrouded in other fundamental rights issues, which the Government of Canada says this bill does not raise. I tend to agree that the bill does not raise these issues, the issues of jurisdiction, who determines citizenship, who determines membership. Why do we have a very paternalistic piece of legislation, one of the greatest examples of colonial infrastructure left in the western world that determines who is Indian and who is not. It is not determined by birth, by culture or by descendancy. It is determined by a statute in the House. There is definitely something wrong with the legislation, for which there are many descriptions. We are only dealing with one part of it now, but this whole bill raises other fundamental issues.

People ask this question. Why should Canada interfere in the determination of who can be registered as an Indian under the Indian Act? They say that it contravenes international conventions like the United Nations Declaration on the Rights of Indigenous People, which states that indigenous people 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 state in which they live.

Indigenous peoples have the right to determine their own identity or their own membership. I believe all members of the House would agree. Hopefully in the future we will be able to deal with these matters. The government acknowledged that by announcing an exploratory process to deal with these more substantive and fundamental questions.

The government should not delay or prolong that process. National aboriginal groups, regional aboriginal groups and individuals want to see this go forward in an expeditious manner. We want to ensure that it is done in a proper way and properly resourced, and let us call it a consultation process as opposed to an exploratory process.

We also have to be cognizant of questions around implementation. Is the department ready? Is the Office of the Indian Registrar ready? Are people being notified of possible changes that are coming? It will not be automatic that one gets status. The fact is people will have to apply and provide documentation, so there will be an onus on individuals to provide, in some cases, some very personal information. That in itself can be problematic, but is the system ready to take on new registrants?

Also, what are the impacts? There is a possibility that there could be up to 45,000 new registrants. That is what a noted demographer, Mr. Clatworthy, has indicated in his study commissioned for the department. He also gives a breakdown of how many people would likely register on reserve as opposed to off reserve, and what the implications would be then in terms of program and service implications and cost. We have asked the government this question. The government says that while it is looking at it, it does not know what the impact will be on programs such as non-insured health benefits, post-secondary education and if there is an influx of people on a reserve and what happens to the existing housing prices and the need for other services, other types of infrastructure.

While we ask all these questions, we believe the intent of the bill is to try to meet the test or dictates of the B.C. Court of Appeal. We believe it is worthy of support at second reading. We hope it will close one gap in the law, even if it does not address others that remain. It definitely requires full examination in committee.

Despite the shortened time frame due to the court decision and the government's prorogation, we hope there will be a full and fair hearing with a broad cross-section of witnesses. I look forward to hearing those witnesses and, if possible, to making the bill a better one.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:45 a.m.
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Liberal

Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, those of us who are dedicated to understanding the issues facing our first nations are very concerned with respect to the issues that the bill raises and the issues on which my colleague has given us an overview. From what the member has said, my observation is that section 6(c.1)(iv) is very pertinent and of concern to the first nations community. It has introduced a new form of discrimination based on the status of children.

This seems to be the nature of the appeal stemming from the McIvor initiative that attempted to focus on the whole issue of inequity between paternal and maternal rights. The inference I draw from the member's overview is that this added form of discrimination is contrary to the very intent that Sharon McIvor had. In fact, it will contribute to the saying that justice delayed is justice denied.

Is it within the purview of the committee, given that the Court of Appeal really established the parameters of the B.C. decision within which the inequity could be legally addressed, to address that new form of discrimination, or is this a case where we are trying to catch up on bad legislation?

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:45 a.m.
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Liberal

Todd Russell Liberal Labrador, NL

Mr. Speaker, it seems there can be, and many times is, some very confusing wording and approaches to status. I have talked to experts and asked them a question on this bill or on the Indian Act as it now exists. There are many confusing circumstances.

We have to ensure the bill does not create other cases of discrimination. That is our fundamental role. We have to ensure we respond appropriately to the B.C. Court of Appeal to ensure we resolve the issue of inequity on which it had passed judgment. That is what we have to do and that is what the committee's work will be.

There are many who will pass opinions. As I mentioned, Dr. Pamela Palmater has gone through the bill and found some areas where she feels that discrimination may arise from what we study in Bill C-3. Whether that is the case or not, the committee will have to judge this. If it is possible to make amendments to deal with any further cases of discrimination that may arise, I think we will do everything in our power to make those amendments so other cases of discrimination do not arise.

We know one thing for sure. Many times, when the government responds to this, it creates other possibilities of inequity. We have to look forward and not deal only with the present situation.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:55 a.m.
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Bloc

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—