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.

April 2nd, 2019 / 9 a.m.
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Executive Director, First Nations Summit Society

Howard Grant

There is limited data being collected in regard to the right data. As an example, the government is applauding themselves, patting themselves on the back and saying, “Wow, look at this—from 1985 onward the graduation rate for post-secondary is on the rise.” Absolutely not. If you use the same factors prior to 1985 on reserve exclusively you'd see a decline, because all of the current investment for post-secondary in particular right now is going toward the more urban population, the so-called city Indians. They're taking advantage of that. You had Bill C-31, Bill C-3 and whatnot, and the new Indians and the self-identified natives, and all of those are put into your database, the government database.

Now, that rate looks like it's on the rise, but if you use exclusively on reserve, because those are the people who are going to stay at home.... They're raised there and they're culturally involved. When we send our children off reserve to communities, they lose that in the majority of cases. Imagine sending your children aged 7 to 14, who are living in rural and remote communities, to schools outside of your reserve because there are none there. It's a challenge, and the most important lesson of education is being lost. It's what I call the dinner table talk education. That's the important part. You have not only the education that you learn from high school or post-secondary, but the cultural side of your community as well that's quite important.

I'll give you an example. We have an individual who is a forester, an arborist, and is trying to manage an economic development opportunity. He saw a grove of trees up on the mountainside and said that we should cut that down, invest and make an economic opportunity, but that was a very significant archeological and whatever site for the community. That resource was never to be touched, but just because the person who was the band manager of the day or the forester didn't realize those kinds of things, it may as well be a non-aboriginal person moving in.

Indian ActGovernment Orders

November 30th, 2017 / 4:50 p.m.
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Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Mr. Speaker, here we are again, at the 11th hour, attempting to send Bill S-3 back to the Senate for royal assent prior the December 22, 2017, deadline. I guess we would call this “flying by the seat of our pants” legislation. There is a court-imposed deadline, so the government is going to get it done regardless. We have talked about that in the House most of the day.

Bill S-3 was tabled in response to a Superior Court of Quebec decision, Descheneaux v. Canada, in 2015, and other clearly identified issues. The court found that several aspects of Indian registration under the Indian Act violate the Charter of Rights and Freedoms, because there were differences between how status was passed down from first nation women compared to first nation men. These provisions were struck down, and Parliament was given a limited time to pass an alternative. The new deadline to pass legislative changes, after two extensions, is next month, on December 22. The court has indicated that it has no interest at all, which we have talked about, in giving the Liberal government a third extension.

When Bill S-3 was first brought to the Senate about a year ago, in fact exactly a year ago this month, the government sought to remedy the situation by bringing it back to 1951. However, several independent senators proposed adding what is known as the “6(1)(a) all the way” approach. This amendment would have all Indians registered as 6(1)(a), with equal rights and entitlements regardless of matrilineal or patrilineal descendants, back to 1869. The government, though, rejected those proposals.

After rejecting them on June 21 this year, the Liberal government undertook behind-the-scenes consultations with senators over the summer months to seek consensus around an alternate proposal. The resulting proposed changes were tabled in the Senate earlier this month, on November 7, and would come into force in two stages. The first one we have talked about. The aspects of the bill passed by the House of Commons in June would come into effect by the court-imposed deadline of December 22. Second, newly added clauses, which would extend the proposed remedies for sex-based inequities in the Indian Act back to 1869, would not be enforced until after a consultation process with indigenous peoples on how to proceed. That is the million-dollar question. No date has been given as to when the process would begin or even conclude.

We have talked a lot about this bill, but let us talk about what the previous Conservative government did. It had a long history of supporting gender equity for first nation women. The Conservative government introduced the Family Homes on Reserves and Matrimonial Interests or Rights Act in 2013, which offers a balanced and effective solution to a long-standing injustice and legislative gap that affects people living on reserve, particularly women and children. As a result, many of the legal rights and remedies relating to matrimonial interests in the family home that are available off reserve, in the context of a relationship breakdown, death of a spouse or common-law partner, or family violence, are now available to individuals living on reserve.

The former Conservative government also reintroduced legislation to guarantee to people living on reserve the same protections that other Canadians enjoy under the Canadian Human Rights Act, which came into law on June 18, 2008. It also passed Bill C-3, the Gender Equity in Indian Registration Act, in 2010, in response to McIvor v. Canada in 2009. Bill C-3 allowed for the eligible grandchildren, or women who lost status as a result of marrying non-Indian men, to be entitled to registration if they or their siblings were born on or after September 4, 1951.

It should be noted that the Liberals, including the current Minister of Crown-Indigenous Relations and Northern Affairs, actually voted against the Family Homes on Reserves and Matrimonial Interests or Rights Act from 2013, which was introduced and passed by the former Conservative government. It should also be noted that the legislation that made the Canadian Human Rights Act apply on reserves was tabled by the Conservatives, and then all parties worked together to pass the legislation.

Essentially, prior to Bill C-3, the Gender Equity in Indian Registration Act of 2010, and the proposed changes in Bill S-3, Indian status was passed down to the next generation from the father but not through the mother. Therefore, if a first nation male had children with a non-first-nation female, his status would be passed down, but not vice versa. That is what we are talking about here today in the House.

I had a call this week from a friend in Saskatchewan. He is from the Cree first nation. He is unequivocally in favour of Bill S-3. He has a status Indian niece who is married to man from Honduras. Not long ago, they celebrated the birth of their first child. My friend said that he is the cutest little Honduran Indian anyone has ever seen. Perhaps with the passage of Bill S-3, that description should change and he would be the cutest little Indian Honduran anyone has ever seen. Would that not be nice? I think that is what we are headed for after December 22.

My friend also had a very good idea that he passed along to me earlier this week. It is regarding the “ 6(1)(a) all the way” approach back to 1869. He suggested giving non-status indigenous people up to 10 years to get their geneology sorted out. That seems like a long time. However, it could be a gradual process. Some people will have their family trees available now, while others will have to dig around and find the right roots and the proof. I think this is a pretty excellent idea he came up with. It would also give the department an opportunity to work through these changes and prepare for the financial implications they would entail.

At this point, it is unknown exactly how many Canadians would become eligible, or would even apply to register, and what the financial implications would be for the Canadian taxpayer. We have no idea whatsoever. It could be 200,000. It could be 400,000. It depends how far back people go in the tree. We need some time to figure this out. I do not know if it would have any implications for roughly one-half of my province's indigenous population.

We, the official opposition, as we have stated all day in the House, support Bill S-3 at second and third readings, because it contains several necessary changes to the Indian Act toward greater gender equality and is the next step beyond the amendments made by the former Conservative government with Bill C-3, back in 2010.

What I do not agree with is this “flying by the seat of their pants” method of legislating by the government. It has had more than enough time to table a good, clean piece of legislation that everyone could get on board with and get passed. Instead, it chose a path it knew would encounter resistance and delays, especially in the Senate.

I do not believe we can please all of the people all of the time, but we as legislators have an obligation to please as many Canadians as possible all of the time. That is our duty, and it really should not be muddied. However, we are going to support Bill S-3. I want to say, on behalf of the people of Saskatchewan, they are excited about the bill and are hoping it passes, and then we can move forward as of December 22.

Indian ActGovernment Orders

November 30th, 2017 / 3:50 p.m.
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Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

Mr. Speaker, unfortunately, the party did not have the benefit of having me for the past decade, but I am here now. We cannot change the past. We can only change the future. With that said, I am happy to talk about the record of the Conservative Party with respect to indigenous rights.

Let us not forget that we brought forward the Family Homes on Reserves and Matrimonial Interests or Rights Act, a measure to restore gender equality in the way matrimonial property was treated, which most of the Liberals voted against.

We also gave people living on reserve the same protections other Canadians enjoy as part of the Canadian Human Rights Act. We also brought forward Bill C-3, the Gender Equity in Indian Registration Act, allowing eligible grandchildren of women who had lost their status as a result of marrying non-Indian men to be entitled to registration.

I think our record is clear. We were moving in a positive and good direction, and now that I am on board, it is even better.

Indian ActGovernment Orders

November 30th, 2017 / 3:35 p.m.
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Conservative

Marilyn Gladu Conservative Sarnia—Lambton, ON

Mr. Speaker, I am pleased to rise today to speak to Bill S-3. I will be sharing my time with the member for Peace River—Westlock.

When I was chair of the Standing Committee on the Status of Women, we did a number of studies, in particular on gender equality. Gender equality is built on many pillars, but essentially, its aim is to ensure that men and women are treated equally in all aspects.

Correcting an irregularity like the one raised in this bill is a simple and obvious way to move towards real gender equality. I am proud to support Bill S-3 and I appreciate having the opportunity to speak in favour of this legislation here today. An individual's status should not be based on their sex. It is a question of history and culture, and righting this wrong is a logical step.

I am very happy to talk about Bill S-3. For those who are not familiar with this bill, it amends the Indian Act. It seeks to remedy gender inequality for those born after 1951.

The changes to the act, specifically, are to replace the long title; to delete from the bill a clause that has been quite controversial, and there has certainly been some discussion about the “6(1)(a) all the way” clause today; and to add the United Nations Declaration on the Rights of Indigenous Peoples to the list of documents the Minister of Crown-Indigenous Relations and Northern Affairs has to consider during promised forthcoming consultation on those issues. Those are really the changes to the bill.

I am definitely in support of gender equality. I talked about my experience on the status of women committee. I would also mention that I have two non-status Métis daughters. Gender equality, when it comes to status, is very important. I am glad to see that this bill would take steps in that direction.

If we think about the record of the party I represent, we did a lot of things when it came to gender equality for first nations women. You may recall the Family Homes on Reserves and Matrimonial Interests or Rights Act, which was brought forward to address differences in the way women were treated with respect to matrimonial property over men.

It is notable that the Minister of Crown-Indigenous Relations and Northern Affairs actually voted against that measure. I see that there is a change of tune now on the other side when it comes to gender equality.

In addition to that, we re-introduced legislation to guarantee people living on reserve the same protection other Canadians enjoy under the Human Rights Act. That was another thing the Conservative Party was proud to bring in. We also addressed, under Bill C-3, the Gender Equity in Indian Registration Act, in 2010, the McIvor v. Canada case to allow eligible grandchildren of women who lost their status as a result of marrying a non-Indian man to be entitled to registration.

Members can see that the party has a history of taking steps to try to restore gender equality in our first nations and Inuit societies.

With that, I am certainly glad to see this bill moving along. That said, I would be remiss if I did not talk about how botched this legislation already is. It is bad enough that the Supreme Court had to order the government to do something, but to then have to get two court extensions shows a lack of planning and a lack of an ability to execute.

I noted that there were lots of struggles on the way to getting this bill here. It does not seem that it is just this bill. It seems that the government has great difficulty executing any number of things when it comes to first nations people.

We know that there was a big push to spend $8.4 billion to eliminate the problem of not having clean water in first nations communities across the country. We see now 120 more boil water advisories than we had at the beginning, and we are two years into it. It really shows a lack of ability to execute.

The other example would be the murdered and missing aboriginal women effort. I have quite a number of things to say about that one. First of all, in almost two years, 20 people have resigned or been fired from that initiative.

The government talks about its nation-to-nation relationship and that it is going to consult broadly and everything else. Here is an example of a consultation where it has talked to very few victims. The Liberals have spent a huge amount of money, and it is two years up the road.

There has been a lot of press on this issue saying that people are dissatisfied: there is no plan, there is no schedule, there are inadequate computers and Internet access, there are limited aftercare plans for the family members who are trying to participate, there was an eight-month delay in opening offices, and there was a four-month delay in hiring staff. There is a whole shopping list of things that are wrong with the murdered and missing aboriginal women inquiry. It does not inspire confidence that the government will be able to execute properly in the go forward.

The Liberals need to not be all talk and no action. They need to learn how to execute and actually say the things they mean and then follow up and do the things they need to do.

If we want to talk about examples of places where the Liberals say they want a nation-to-nation relationship but then do not actually follow through, we can look at a number of examples. We see, for example, that the courts said that indigenous children were being discriminated against with respect to welfare, yet the government was ordered to pay $150 million and dragged its feet on that. How can they have a nation-to-nation relationship when they will not even do what the courts are ordering them to do to give restitution to children? It is ridiculous.

We can talk about the oral health of indigenous people. We see that the government would rather spend $110,000 fighting in court than pay $6,000 for dental work for an indigenous child. That again does not say to indigenous people that the government wants a nation-to-nation relationship. It is pretty much hypocrisy.

I am concerned about Bill S-3. I see that it is well intentioned, but in the execution of it, it could become problematic. There were amendments in the Senate, and I am glad to see that some of them were taken along, because that does not always happen. A lot of times, when the Senate has brought amendments, they are refused here. That is a total waste of the taxpayers' money in terms of the Senate, because if the Senate is doing all this work to bring amendments, and they are rejected here, it seems a little pointless.

The fact that there are so many Senate bills coming forward is also a bit problematic. We have a limited amount of time in the House, and the government is running on promises that it is having trouble keeping, but there are a lot of promises, and it is getting late in the mandate to start delivering on some of those things. Every one of the Senate bills disrupts the agenda of the day.

Although I am in favour of Bill S-3, and certainly of gender equality and the restoration of that to first nations people, I wanted to point out a few of those things I see.

In closing, I would like to reiterate my support for this bill. While the Liberal government seems to be incapable of keeping a single election promise, I am pleased that at least it appears to support this effort to achieve gender equality with respect to the transmission of Indian status.

I would again like to thank my colleagues across party lines for their efforts today, as well as the Senate for the hard work it has accomplished since the beginning of the study. The Liberal government has already managed to extend the deadline twice, but the court appears to have no intention of extending it a third time.

It is time to pass this legislation in order to solve a problem that the government seems to be avoiding.

Indian ActGovernment Orders

November 29th, 2017 / 5:10 p.m.
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Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Mr. Speaker, I rise today to speak to Bill S-3, an act to amend the Indian Act.

This Senate bill is in response to the superior court of Quebec's decision in Descheneaux v. Canada and has undergone several iterations. I am pleased to support this set of amendments, which will effectively eliminate sex discrimination under the Indian Act.

I want to begin by acknowledging that we are gathered here on the traditional unceded lands of the Algonquin peoples.

It is hard to believe that we are having this debate today, in 2017, on sex equality. It is even more disturbing that those making the decision on such a fundamental issue of Indian status for first nations peoples are not members of any first nations communities themselves but are primarily from settler communities. The irony is not lost on me. What is equally absurd is that it has been primarily men making these decisions. Our Indian Act, unfortunately, makes this absurd debate necessary.

The renewed relationship our government seeks to establish with first nations communities on a nation-to-nation basis will untangle first nations peoples from the shackles of colonialism and the Indian Act and will set our country towards a path of true reconciliation.

The Indian Act is deeply rooted in racism and has for generations resulted in uneven and racialized outcomes for our first nations peoples. The Indian Act essentially controls the lives of our first nations peoples. It defines who is and who is not an Indian, where they live, whom they should live with, and so on. It separates first nations peoples from the rest of Canada, physically, through reserves, but also in virtually every aspect of life.

The numbers speak for themselves. I am just going to give some examples. In 2011, 26.2% of first nations people on reserve lived in overcrowded housing, compared to 4% of non-aboriginal people. In education, 39.8% of first nations people do not have high school or a post-secondary degree. Only 12.1% of non-indigenous people do not have a high school diploma or a post-secondary degree. We could go on with life expectancy, suicide, and income.

On virtually every measure available to assess social well-being, Canada's first nations people rank lower in comparison to their settler counterparts. None of the constraints of the Indian Act, however, have been more scrutinized and more painful than the definition of who is and who is not an Indian.

Notably, this Indian Act discriminates against women in a systemic and structural way, leading to inequities in membership and having an effect on their daily lives. Discrimination based on sex has affected the children, grandchildren, and their generations of kin by excluding them under the Indian Act. The amendments to Bill S-3 we are debating today aim to correct that trajectory and ensure that sex discrimination is eliminated from the Indian Act once and for all.

I want to walk members through the history. The issue of sex discrimination has been dealt with by Parliament on several occasions. However, in each round, the amendments made in the House did not go far enough to ensure that sex discrimination was eliminated altogether.

The amendments initially considered under Bill S-3 were in response to a superior court of Quebec decision in Descheneaux v. Canada, rendered in 2015. The Quebec court deemed the provisions of the Indian Act to be in violation of the Canadian Charter of Rights and Freedoms, as it treated grandchildren descended from a status Indian man and a status Indian women differently by providing status to the former and denying it to the latter.

Madam Justice Chantal Masse cautioned the government to ensure that any legislation that stemmed from the decision ought to have an expansive view of the issue of sex-based discrimination under the Indian Act. I would like to quote paragraph 239 of her decision:

When Parliament chooses not to consider the broader implications of judicial decisions by limiting their scope to the bare minimum, a certain abdication of legislative power in favour of the judiciary will likely take place. In such cases, it appears that the holders of legislative power prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force statutory amendments to finally bring them in line with the Constitution.

After considerable back and forth with the other place, we are here today to eliminate sex-based discrimination in the Indian Act altogether.

During debate this summer, we heard from many witnesses, including women whose lifetime of work advanced the issue of gender equality in the Indian Act. It was a very painful experience for most of them. We also heard from many bands and communities that they alone have the right to define the citizenship of their people. I believe that both seemingly divergent views are not incompatible. Ultimately, first nations people should have the say as to who their citizens are, but in a manner that does not discriminate against one particular gender.

I want to take a couple of minutes to outline previous attempts to remove sex-based discrimination from the Indian Act. The sex-based inequities in the law we are grappling with today have their roots in the patrilineal transfer of Indian status that existed in the Indian Act prior to 1985, and the subsequent imperfect attempts to end discrimination in the act.

With the introduction of the Constitution Act, 1982, and the Charter of Rights and Freedoms, explicit discrimination in the Indian Act finally had to be changed to comply with section 15 charter rights.

Bill C-31 was introduced to make the Indian Act charter compliant. It unfortunately did not go far enough. In fact, it is Bill C-31, including the introduction of the second generation cut-off and the subsection 6(1) and 6(2) categories of Indian status that inevitably opened new sex-based inequities and the inability of individuals to pass on status to their children and grandchildren. The residual sex-based inequities that remained in the act resulted in a rise in registration-related legal challenges.

One such challenge was launched by Sharon McIvor. Dr. McIvor's case centred on her ability to transfer status to her children. Since Dr. McIvor married a non-Indian, she was only able to transfer section 6(2) status to her son, Mr. Grismer. As Mr. Grismer also married a non-Indian, he was not able to transfer status to his children. However, had Sharon McIvor had a brother who was also married to a non-Indian, prior to 1985 their child would have been entitled to status under 6(1). Because of this discrimination, the B.C. Court of Appeal struck down paragraphs 6(1)(a) and 6(1)(c) of the Indian Act and gave Parliament one year to respond.

Bill C-3 was introduced by the previous Conservative government in response to the McIvor decision. However, the government decided that it would interpret the decision as narrowly as possible and that it would not address other obvious examples of sex-based discrimination in the act.

At the time, Marc Lemay, a former Bloc MP, rightly pointed out, “As we speak, a dozen or so of these complaints are before the courts in various jurisdictions across Canada, including one or two similar cases currently before Quebec courts.” I have no doubt that the cases in Quebec he was referring to were those of Stéphane Descheneaux and Susan and Tammy Yantha.

It only took six years for us to arrive back here again to pass amendments to the Indian Act to address discrimination, which should never have existed, with Bill S-3. Like Bill C-3, Bill S-3 did not initially take an expansive approach to addressing discrimination in the Indian Act. Initially, Bill S-3 addressed only the cases ruled by the Superior Court of Québec: the cousins and siblings issue and the issue of omitted minors.

I can continue to give more examples of where we have failed, but it is very clear that today, as we stand, we have the right balance to ensure that we eliminate sex-based discrimination from the Indian Act once and for all.

There would be a process of consultation that would ensure that people, particularly women, would not have to go to court to assert their rights. It is embedded in the legislation today. The bill would ensure that any discrimination based on sex, dating back to 1869, would be addressed once and for all. This is an important amendment we need to make to the Indian Act.

As my colleagues have previously said, as we walk toward elimination of the Indian Act, this is a necessary evil that will ensure that we do not continue to discriminate on the basis of sex.

Indian ActGovernment Orders

November 29th, 2017 / 4:50 p.m.
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Labrador Newfoundland & Labrador

Liberal

Yvonne Jones LiberalParliamentary Secretary to the Minister of Indigenous and Northern Affairs

Mr. Speaker, I have a couple of comments I would like to make and a question. First of all, the member opposite talked about repealing the Indian Act, and it is probably the desire of all of us, at least on this side of the House, to repeal the act, but we also know that we have a fiduciary responsibility and that, in the absence of other legislation, it is not responsible for government to proceed in that way at this time.

However, we are creating a way and a mechanism to get there. That is the broader agenda of what government is engaged in and what the Minister of Crown-Indigenous Relations and Northern Affairs has spoken to. In the meantime, we also have a responsibility to honour the rulings of the court. The rulings of the court indicate that we eliminate all sex-based discrimination against women within the Indian Act. That is exactly what we are doing.

In fact, it has been with the tremendous support of the Senate that we are able to get to where we are today. I would like to ask the member a question, because Senator Sinclair has said:

I would like to add my support for this motion and indicate that I intend to vote for it.... The amendments before us, to my relief, leave no legal distinction between indigenous men and women. It brings the act, therefore, into compliance with the Charter.

The member opposite also knows that we have gone beyond the 1951 cut-off amendment in Bill C-3. In fact, we have made amendments in the bill that would include circumstances prior to 1951 and remedy sex-based inequities back to 1869. I ask why the member opposite will not support these amendments in Bill S-3.

Motions in AmendmentIndian ActGovernment Orders

June 20th, 2017 / 5:15 p.m.
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Conservative

Mark Strahl Conservative Chilliwack—Hope, BC

Madam Speaker, first, it was our Conservative government that gave women living on reserve the same matrimonial real property rights as other Canadian women living off reserve, something the Liberals voted against.

When the Liberals were in opposition, in response to Bill C-3, which dealt with McIvor case, the Minister of Justice and the Minister of Indigenous and Northern Affairs brought forward those exact same amendments, which senators have brought forward to amend Bill S-3.

Could the member tell us what has changed between now and then, other than she now sits on that side of the House of Commons?

June 15th, 2017 / 9:30 a.m.
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Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

I totally respect where the member is coming from when it comes to human rights. I don't think anyone in this committee would disagree with his position in that respect.

The difficulty we have is this timeline. I know everyone says we can get an extension, but we did that once, and we're right back where we were at the end of the first extension. If we get another five-month extension, we're going to be in exactly the same place we're in today. There's not enough time to properly deal with some of the issues that the Indigenous Bar Association and Senator Sinclair....

We're bringing about significant legislative change, and we have a duty to consult all indigenous peoples on the changes that are going to have such a huge impact on many of their communities. We just finished discussing an amendment on DNA. We, around this table, can think that we have all the answers to solve it, but we also know that there are certain complexities that need to be dealt with, and those complexities are derived within what the Mohawks had to say. They said they don't care what Bill S-3 says, and that they're the ones who are going to decide who's a member of their community, not the government.

I know in an ideal world we'd like to blow up the Indian Act and let all indigenous peoples make that determination, and I think it's the goal of all of us here to see that happen sooner than later. Until then, we have a duty to consult with all indigenous communities, and that's going to take time. Another five-month extension—or three months, or whatever it is they would give us—is not enough time to resolve this. In the meantime, if we do find ourselves back here in five months in the same situation, those 35,000 people who could have already been starting the registration process are still going to be stuck waiting to start that registration process.

As MP Anandasangaree had communicated, I do truly believe that our ministers, Minister Wilson-Raybould and Minister Carolyn Bennett, do want to see this resolved once and for all, and to get it done right, not just rush into it and get it done under what Senator McPhedran has proposed here in “6(1)(a) all the way”. There are flaws in that amendment, so there's no sense in my mind of passing something we know has flaws when we should be taking the opportunity to get it done right.

I totally respect where you're coming from, but I just think the two-phase process will enable us to get this done right once and for all. Do we wish that Bill C-3 could have done it back in 2010? Sure, but it didn't. So now we're stuck here again at this table, trying to make this determination. Let's get this done right, take the time necessary to do it, and put this behind us once and for all.

Thank you.

June 8th, 2017 / 9:20 a.m.
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President, Quebec Native Women Inc.

Viviane Michel

Of course, we can see the contradiction. It is obvious. It's really the outcome of your laws. The expression “divide and conquer” applies, but we can't even agree amongst ourselves.

I can understand the challenges of aboriginal communities: their economic survival, the lack of access to housing, the lack of funding, underfunding, and so on. I can understand their whole situation. I am working with my colleagues at the Assembly of First Nations, and I understand those realities. I myself lived in an aboriginal community. So I know what I am talking about when it comes to things like language and culture.

However, today we are talking about issues that directly affect women. The existence of women is important. Why were women targeted in this piece of legislation? It's because we, as women, are responsible for transmitting language and culture.

In a different context, prior to 1985, a Quebec woman who married an aboriginal was considered a pure aboriginal. Don't you see how ridiculous that is?

The ultimate goal of the Indian Act truly was assimilation. Who was penalized? It was us, the women, as carriers of future generations and guardians of culture and language.

I know that there may be some contradictions today; that's clear. However, we will speak for women, as this act is truly founded on sex-based discrimination, and we, as women, are targeted. Nevertheless, I know that there are other issues related to life in aboriginal communities.

As part of Bill C-3, I walked from Quebec City to Ottawa and I understood why my colleagues were reluctant to support us. In fact, even though 40,000 aboriginals were registered, budgets in communities remained unchanged. That's the economic side.

Existence is truly an important issue. Why are you the ones who recognize who we are, through your laws? We are not given an opportunity to recognize ourselves. That would mitigate many issues. I believe that it would establish a better balance among our nations.

June 6th, 2017 / 11:10 a.m.
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Director, Board of Directors, Indigenous Bar Association

Drew Lafond

What's responsible is subjective assessment. In our view, what problems would arise in connection with the 6(1)(a) “all-the-way” approach.... You'll recall that during our previous submissions to the Senate in May—and this was identified in our written submissions as well—we identified that the draft language proposed by the Liberal government in 2010 in connection with the Bill C-3 negotiations and discussions at that time.... The clause during that round of negotiations was ruled out of order, so it wasn't considered and, unfortunately, it essentially died at that point.

We have now reintroduced the discussion in our written submissions. We raised it as a possibility during our oral submissions, as a good starting point for eliminating sex discrimination within the Indian Act. What appears to have happened is that Senator McPhedran has simply taken the language from the proposed Liberal amendment back in 2010, inserted that into 6(1)(a), and then added a provision under (a.2), which is simply an interpretation provision or clarification provision, which interprets (a.1). Therefore, there really hasn't been a lot of modification of the Liberal proposal put forward back during the Bill C-3 negotiations.

We cautioned against simply inserting that in its current form. We identified it at that time as a good starting point, as I indicated. You run into technical problems with the language by simply inserting that into a bill because you run the risk of inconsistencies or some unintended consequences with that. We haven't been able to identify the full extent of those.

When I looked at it last week, the only one who came to mind was the question of who we are referring to when we refer to a person who was born prior to 1985 and is a direct descendent of the person referred to. Looking at the person referred to in paragraph (a) or a person referred to in paragraph 11(1)(a), (b), (c), (d), (e), or (f), as read immediately prior to April 17, 1985, the first issue that came to mind was, does that refer to only peoples who are alive or peoples who are deceased? Or are we dealing with descendants of people who were living immediately prior to 1985 or people who had passed away? There is a deeming provision in the Indian Act, section 6, and it reads, “(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a);“ That's under (6)(3), but, unfortunately, that reference is only in connection with paragraph (1)(f) in subsection (2).

There are these small technical problems that you will encounter when you insert a paragraph like that into a bill, and our concern stems from that. I think it echoes the concerns of senators.

Also, we don't know if we can have a proper articulation of what the 6(1)(a) “all-the-way” approach is, and then moving to the next phase, does the legislation accurately implement that intention?

Dealing with subparagraph (a.1), I understand the political strategy. This was something that was introduced by the Liberals, so shouldn't the Liberals be more inclined to adopt it? It's a very admirable approach from a political standpoint. From a legal standpoint, we still have some questions that we haven't had an opportunity to fully canvas.

June 6th, 2017 / 9:50 a.m.
See context

David Schulze Legal Counsel, Council of the Abenaki of Odanak

Thank you, Madam Chair.

Ladies and gentlemen members of the committee, I will address you today in English.

Thank you for inviting us. I'm David Schulze. I was counsel for Stéphane Descheneaux, Susan and Tammy Yantha, and the Abenaki of Odanak and Wôlinak in the Descheneaux case. I am joined by Chief Rick O'Bomsawin of Odanak and Mr. Stéphane Descheneaux.

Now, I know we did this before Christmas, but I offered to briefly take the committee through the status rules again so that we know what we're talking about, because these issues are not simple.

By way of context, you will recall the challenge that Madam Justice Masse put before Parliament in her judgment. She said she was disposing of Mr. Descheneaux and Susan and Tammy Yantha's case, but as she said, “Parliament is not exempted from taking [other] measures to identify and settle all other discriminatory situations...whether they are based on sex or another prohibited ground.” We will look at whether this bill does that.

Briefly, how does status work? There are two subsections in section 6 of the Indian Act that give you status: 6(1) and 6(2). This chart quickly explains it to you, but it's not always easy to follow. Keep this in mind. A person registered under 6(1) will always have a status child. A person registered under 6(2) will never have a status child if they don't parent with another status Indian. It is always better, if you would like your children to have status and to be able to inherit your house on reserve, to be a 6(1) than a 6(2). That is the bottom line.

This system of 6(1) and 6(2) is the way the federal government, in 1985, tried to solve the discrimination in the Indian Act. Just as an aside: before 1985, status under the Indian Act was purely patrilineal, with one exception. Status was for Indian men, their wives, and their children. That was it. The only exception was for an Indian woman who had a child out of wedlock with an unidentified father. If they couldn't show the father was not an Indian, that child could be registered. Otherwise, there was no one on earth who had their Indian status from their mother; they had it from their father. An Indian woman lost it if she married a non-Indian man, and a non-Indian woman gained it if she married an Indian man. That's how it worked, and that had to be cured in 1985. Why 1985? Because that's when section 15 of the charter came into effect.

The government came up with what they called the second-generation cut-off. After two generations of parenting with a non-Indian, the third generation, the grandchild, has no status. If you look at the cabinet documents from the early 80s, they actually call this a 50% blood quantum. That's what they call it. It is, in effect, really a kind of grandparent threshold. Most of the time, if you have two status grandparents, you will have status, but as you'll see, it's not 100%. You see up here on the chart how a 6(1) will always produce a 6(2). If you have two 6(1)s, they each have a 6(2), and those 6(2)s marry: boom, you've got a 6(1) again. There won't be a quiz on this afterwards.

There's a sort of strength in having 6(1) ancestors, so that—as you'll see here—you can end up with a 6(2) grandchild, but it's not 100%. It won't always be enough. If you spread them out the wrong way, and if you don't have enough 6(1)s in your family tree, you can have the same number of status grandparents and end up with no status. The fact is, as I said, it's always better to be 6(1) than 6(2). The government likes to go to court and say there's no difference between 6(1) and 6(2); they're all Indians. That's very nice for everybody except somebody who is 6(2) and is facing the prospect of having children with no right to stay on the reserve.

Here's the other thing you absolutely have to understand. I'll just go back to one other chart. In this example, that 6(1) status doesn't mean the person was born an Indian. Remember, the non-Indian woman who married in, who married an Indian man before 1985, she got status. She is as 6(1) as anyone else. The 6(1) ancestors are counted whether or not they were born Indians or whether they acquired it by marriage.

When I said the name of the game is to have 6(1) grandparents and great-grandparents, that includes women who married in, and that's what gives us the “cousins” rule that led to the McIvor case.

That's how, in a nutshell, the grandchildren of a woman who married out before 1985, under Bill C-31, under the original amendments, weren't going to get status unless the woman's children parented with Indians. If her brother married a non-Indian, however, his grandchildren would get status. His grandchildren get counted as having two status grandparents and hers don't, because she got her status back in 1985, but of course her husband stays a non-Indian. That's the “cousins rule”. That's what McIvor was about.

The government said they were solving that in Bill C-3. As they often do in the Department of Indian Affairs, however, they didn't see what they didn't want to see. They figured that, because Sharon McIvor's son married after 1985, they would only look at women who married out and whose children had their children after 1985 under the new rules. So Sharon McIvor's son had status but her grandchildren didn't.

They ignored the fact that there were generations of men and their sons and their grandsons marrying before 1985. If a man married out before 1985, and if his son then married out before 1985, he didn't have 6(2) grandchildren; he had 6(1) grandchildren. He could not have anything other than status great-grandchildren.

The comparator is Mr. Descheneaux. Mr. Descheneaux's grandmother married out, and after 1985 he was a 6(2). His children still don't have status. His great uncle would produce 6(1) grandchildren and status great-grandchildren, which Stéphane couldn't, because he traced his lineage to a grandmother who married out, not to a grandfather who married out. That's the Descheneaux part of the Descheneaux case in a nutshell. Parliament messed up. They knew exactly what they were doing. The Abenaki came before them in 2010 and pointed this out.

This is the comparator. The grandfather married out and has six status great-grandchildren. Stéphane has children without status. Under Bill S-3, they will have status. That part of the discrimination is cured by Bill S-3.

There was another case, and I won't get into it in great detail, but I want you to understand what we're dealing with. It was all patrilineal before 1985. The result was, to make a long story short, if an Indian man had a child out of wedlock before 1985, his son could be registered but his daughter could not. Post-1985, they looked at the daughter and determined that since she had only one 6(1) parent she was a 6(2). That's how we got Susan Yantha, who had a different status from her brothers. That's how the same parents could have two children, a son and a daughter, each with a different status.

I want all of you to think about the absolute absurdity of the fact that I had to go before the Superior Court and argue that this was really discrimination under the charter, when Justice Canada stood up and said it wasn't. That is how first nations and their lawyers have to spend their time. That is also cured under this bill.

However, Indian Affairs managed to mess it all up. They messed it up in the bill that was provided and tabled, because now they've made sure that if an Indian man had a child out of wedlock before 1985, the status can go all the way to his great grandchildren through his daughter, but they forgot about the fact that there were women who had children out of wedlock before 1985 who could have their...and if it could be shown that the father was non-Indian, that kid's status could be removed. Again, I won't go through the details, but to make a long story short, they were going to leave that woman's descendants in a worse position than Susan Yantha's children and grandchildren.

They actually told me in a meeting when Chief O'Bomsawin and I met with the staff of the assistant deputy minister and Mr. Reiher, “Yes, we saw that problem but we didn't think it was discriminatory. Then, you know, the Indigenous Bar Association pointed it out before the Senate. Then we decided it was discriminatory, and we fixed it.”

They said they fixed it. Then they had to come back before the Senate last month and fix it again, because they actually hadn't gone enough generations forward. That's where we are with Bill S-3. It's a patch on a patch on a patch on a patch on a patch.

They also cured this problem. I think we really don't have time to take you through it, but it has to do with these particular effects. If an Indian woman had a child by an Indian man but then her second husband was non-Indian, her children under the age of 21 by the first husband would lose status. Those children would end up disadvantaged relatives to their older brothers if those brothers were too old to have lost status. That is cured by this bill and that's all to the good.

This is the scenario that I brought up with Mr. Reiher and that he thinks is not discriminatory. I will try to take you through it extremely quickly as well. Before 1985, an Indian man could decide to enfranchise himself, his wife, and his children. This leads to the following situation, and this is a real situation in Odanak.

A woman was enfranchised before the age of 21, when her dad enfranchised the whole family. Her grandchildren don't have status. Her older sister wasn't enfranchised by their dad, because she was already married to a non-Indian, so she benefited from the McIvor decision; she will benefit from the Descheneaux amendments; and she will have status great grandchildren. This woman will not even have status grandchildren.

The department tells me that this is not discrimination based on sex. I say it is. I say it is for the simple reason that this woman's mother had enfranchisement imposed on her by this woman's father. Indian Affairs says that's okay, because if her brother had enfranchised himself and the sister-in-law, they would be in the same place.

My vision of equality is not that. If we end up with men who have privileges, but are treated no better than women who have no privileges, I don't think that is equality. The Department of Indian Affairs and Justice Canada do.

That's where we are with Bill S-3. That's the overview, and now we have this amendment from the Senate. I'm going to try to make a few relatively simple points about it.

The first one is this, and it's very important that you understand it. Here are the points I want to make. Without the amendments the Senate has brought, the registration rules under the Indian Act, the status rules, will continue to discriminate, and they will continue to violate the charter. There's no dispute about that.

The second point I want to make is that the Abenaki nation was not consulted and not engaged with on Bill S-3.

The third point I want to make is that there is no confidence among aboriginal communities about stage two.

The final point is that there is time right now to do this right.

I want to come back to those points. The first point is that there will be discrimination and the charter will be violated, and you might say they're the same thing. They're not exactly the same thing. The department has told you that the McIvor decision means that they don't have to do this or that, and that the Senate is going too far because it is going further than what McIvor said they had to do.

Let's be very clear on what McIvor said, and I'll try to do this without taking you to the finer points of the double mother rule, which always gives people a headache.

December 5th, 2016 / 4:50 p.m.
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Liberal

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

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

December 5th, 2016 / 4:50 p.m.
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Liberal

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.

December 5th, 2016 / 4:10 p.m.
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Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual

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.

December 5th, 2016 / 3:45 p.m.
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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.