Bill C-3 (Historical)

Gender Equity in Indian Registration Act

An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs)

This enactment provides a new entitlement to Indian registration in response to the decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) that was issued by the Court of Appeal for British Columbia on April 6, 2009.

Indian Act

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, before the Indian Act, first nations, Métis and Inuit thrived and passed on intergenerational love from generation to generation. The Indian Act is an attempt to erase indigenous peoples from the lands we now call Canada.

Bill C-38 is about status. It could have been about addressing discrimination to the fullest extent. I struggle to support Bill C-38, an act to amend the Indian Act. I am conflicted and disappointed to witness yet another form of incremental change proposed by the Liberal government.

As the Indian Act Sex Discrimination Working Group have clearly stated, the United Nations Declaration on the Rights of Indigenous Peoples says indigenous peoples have “the right not to be subjected to forced assimilation or destruction of their culture”. This bill does not meet this minimum standard. For decades, first nations have fought for their rights to be upheld. If Bill C-38 is passed as it is, discrimination against first nations women and their families will continue.

There are two reasons I support getting this bill to committee. Number one, while experts say it does not go far enough, this bill is needed, and number two, the failings of this bill to respect the rights of indigenous peoples will show, through public discourse at committee stage, that amendments are necessary.

Bill C-38 was tabled because of a court case, Nicholas v. Canada. It is not because the government is taking a proactive, co-operative approach to reconciliation. Introducing this bill is the minimum requirement set out in that case. After years of discrimination caused by enfranchisement in the Indian Act, 16 courageous plaintiffs sued the Canadian government in June 2021. They agreed to pause proceedings on the condition that legislation be introduced to address this inequity.

The Liberals' commitment to reconciliation with indigenous peoples is abysmal. If their commitment was real, Bill C-38 would be fulsome. It would have addressed all discriminatory provisions of the Indian Act. Incremental changes are not sufficient to ensure the advancement of indigenous peoples' rights.

I acknowledge that the Indian Act must be abolished. It is a complicated assimilative tool going back generations. The Liberal government has shown that it is not ready to abolish the act. Bill C-38, like previous court cases, makes amendments that are narrow in scope. Future court cases will be imminent if amendments are not made to this bill. Discrimination will be allowed to continue without the ability to seek reparations.

The Liberal government has shown that it is not ready to undertake the full-scale reconciliation needed to adhere to international law as the governing party. The following background will be the tip of an iceberg. All parliamentarians must commit to learning more about the Indian Act and how it continues to implement the genocide of indigenous peoples.

The Indian Act was established in 1867. John A. Macdonald understood the strength of first nations, Inuit and Métis as a threat to his causes. He had to find a way to weaken them. The Indian Act was the tool to continue the process of genocide against the first peoples who thrived on the lands we now call Canada. The Indian Act is a long-ago piece of legislation that was introduced in 1867. The act remains today.

Since its inception, the Indian Act has continued to deny equality for first nations. The Indian Act allows discrimination without justification. The Indian Act denies women status and therefore rights by gaining status. The Indian Act introduced residential schools, created reserves and imposed a band council system. The Indian Act also tells first nations who can have status and who cannot.

Before the creation of bands by this act, indigenous peoples had their own forms of governance. I am thankful for the strength of those who maintained their governance. I am thankful to Inuit elders. I am thankful to hereditary chiefs. I am thankful to the Wet'suwet'en. I am thankful to the Tseeweyhum family and the many others who keep indigenous legal orders alive.

The Canadian government has known about sex-based inequities in the Indian Act for decades. Bill C-31 in 1985, Bill C-3 in 2011 and Bill S-3 in 2017 have attempted to eliminate sex-based inequities. None of these bills worked to the fullest extent; what they did was complicate indigenous identity for some and not for others.

The Indian Act continues to divide indigenous peoples against each other. With each amendment, the Indian Act becomes more complex and confusing to navigate for indigenous peoples. Indeed, I am told by many how confusing it is to know if they have status, how to get status and if their children will be able to get it. They ask, “What are the implications of being removed?”

It is a shame that in 2020, the Minister of Indigenous Services tabled one of three reports after Bill S-3 to amend the Indian Act was passed. The final report made recommendations that are not being addressed in Bill C-38 by the Minister of Indigenous Services today.

As of 2020, there were over 12,000 applications for status still needing review. The special Bill S-3 processing units created in 2016, as of February 2023, have 1,770 files in progress and 3,990 files in the queue. The bill before us would do nothing to address this backlog. First nations are waiting up to 18 months for a decision by Indigenous Services Canada. This is unacceptable.

Bill C-38 would address enfranchisement, deregistration, loss of natal band membership and certain offensive language. These are long-awaited amendments that indigenous peoples have demanded for decades.

Enfranchisement is a particular genocidal policy and a clear example of Canada's attempts to assimilate indigenous peoples. Enfranchisement was either voluntary or involuntary. Women were enfranchised when they married a non-indigenous man between the years of 1869 and 1985. Other examples of enfranchisement included going to university, becoming a doctor or lawyer, working as a minister, seeking to vote and if one sought freedom from residential schools. Amendments introduced in 1985 attempted to remove enfranchisement. Obviously this did not work.

Bill C-38 would still discriminate against women and children who were involuntarily enfranchised. Descendants are unable to transmit entitlement to registration to the same extent as families that were never enfranchised. Those who were enfranchised as a band or collective have no entitlement to register under the Indian Act today.

I will now turn to deregistration, which provides for removing status from membership. There can be any number of reasons to deregister. These provisions would keep the safety of not impacting the children of those who may have deregistered.

The third component of Bill C-38 is on natal band membership. Bill C-38 would provide a legal mechanism to re-affiliate women to their natal bands. This amendment would serve to allow for membership to be reinstated on a band list based on specific conditions. It would address reinstatement of membership for a group of individuals who were originally prevented from being reinstated based on oversight.

Finally, the bill would amend outdated language, which is a small but important step. The offensive language regarding first nations peoples who require dependency on others would be amended. The offending definition of “mentally incompetent Indian” would be replaced with “dependent person”.

Bill C-38 would address these cases, and it is estimated it would impact around 4,000 people. Many more would remain discriminated against.

The Liberals had a chance to remove discrimination from the Indian Act once and for all. Bill C-15, on the United Nations Declaration on the Rights of Indigenous Peoples, became law in Canada. The Liberals had a chance to introduce that bill so that it would be in alignment with international law. Instead, they are introducing more piecemeal legislation. The past court challenges, Descheneaux v. Canada, McIvor v. Canada, and Matson v. Canada, make it clear. The Senate committee on aboriginal peoples makes it clear. The Indian Act Sex Discrimination Working Group makes it clear. So many more make it clear. The Liberal government's pattern of reluctant piecemeal changes in response to litigation is unjust.

There is no justification for Canada to ignore, and indeed infringe on, indigenous people's rights. Parliaments would debate again after the passage of Bill C-38 why it is not okay to keep disrespecting indigenous peoples and infringing on their rights.

Two other major issues not addressed are the second-generation cut-off and the ability to seek reparations. The second-generation cut-off in section 6(2) is not addressed in Bill C-38. This is shocking, given how much attention has been paid to this section in past works. In its Bill S-3 review, the ministry of Indigenous Services Canada reported on it. The Indian Act Sex Discrimination Working Group in its works reported on it. The Senate committee on indigenous peoples reported on it. They all recommended to remove provisions related to the second-generation cut-off.

If bands reject second-generation cut-off, it is because they are not being properly resourced by Indigenous Services Canada to meet the needs of their increasing membership.

Section 6(2) is sexist, and it is problematic. Who a child's mother is, is usually readily apparent. Who the father is, is not always apparent. Whether the father acknowledges his paternity, and this can be counted as the second-status parent for purposes of eligibility for status, is essentially his decision. The two-parent rule continues Canada's program of forced assimilation. Maintenance of the two-parent rule would fulfill the genocidal intention of the Indian Act, getting rid of “the Indian problem”.

Until this rule is amended, hundreds of thousands of indigenous people, mostly women and their descendants, will be discriminated against.

First nations children were robbed of their mothers. First nations children continue to be robbed of their mothers. The current child welfare system continues to separate indigenous peoples from each other. The Liberals say they will consult on second-generation cut-off. Consultation should not be necessary. Discrimination is discrimination. No amount of consultation will result in the justification of it. The government must interpret the rule of law as adhering to international human rights laws and the charter.

We are told by the Liberals that the public portion of this consultation will not begin until 2024. It will be much longer before legislation is drafted and presented before the House again. This tactic to delay is a denial of the rights of indigenous peoples. We should not have to wait for discriminatory provisions to be removed. There is no justification for discrimination to be allowed to continue.

Another form of oppression is preventing indigenous peoples from seeking reparations. Bill C-38 includes specific clauses that will not allow victims of these policies to seek reparation for the discrimination they have experienced. First nations women and children will continue to be harmed, yet they will not be able to seek reparations, even if discrimination is found.

In past bills, there were related provisions legislating that governments are not liable for harms done under the act. Persons are prevented from seeking claims against the government for discrimination caused by the implementation of the Indian Act.

These injustices remain in Bill C-38. According to human rights laws, Canadians are allowed to seek reparations. Why can first nations not do so?

Bill C-38 is a flawed proposal. While it addresses some injustices in the Indian Act, discrimination against first nations would continue. Bill C-38 continues the Liberal incremental approach to reconciliation.

The Liberals' interpretation of Nicholas v. Canada is about status. Bill C-38 must not just be about status; it must be about addressing discrimination and violations of basic human rights. It must be about reconciliation.

I ask this again: Why is it that when Canadians experience human rights violations, they are allowed to seek reparations, when first nations are not?

I hope that Bill C-38 can be salvaged. I hope that, at committee, we hear from experts explaining why improvements must be sought to ensure that first nations' rights are on par with Canadian human rights.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I am pleased to rise today to speak to Bill C‑38, an act to amend the Indian Act, which corrects serious mistakes committed in the past regarding the status of many first nations members.

Today, I speak on behalf of the Bloc Québécois, but also as a member of the Huron‑Wendat Nation. First, let me say one thing: The Indian Act is a colonial law that introduced a system of domination and ghettoization. Its very name is just as racist as the N-word can be. I cringe whenever I see the word “Indian” on my status card. Cosmetic or vocabulary changes do nothing to fix the fact that this is a law on ghettos. This law was put in place by a conqueror in order to park people on reserves. It is a throwback to British colonialism and a culture that became woven into English Canadian colonialism. The Indian Act must be abolished and replaced by a new, respectful regime founded on a dialogue between nations. International relations begin at home.

Be that as it may, although it merely amends the scandalous Indian Act, the bill before us today remains incredibly relevant. The spirit of Bill C‑38 stands as a sentinel against the injustices perpetrated by the Indian Act, which continues to cast long shadows, even into present-day Canada. It courageously tackles the evils that continue to impede deregistration, enfranchisement and reaffiliation with the natal band, despite multiple attempts at amendment. This noble bill embodies a common quest and a never-ending conversation with the indigenous nations that stretch across our vast land. No fewer than 50 virtual sessions, held from August to December 2022, enabled first nations, indigenous organizations and all those concerned to engage in dialogue and express themselves.

The government anticipates that close to 3,500 individuals will be granted the right to registration as a result of these legislative amendments, thus opening a door towards the righting of many historical wrongs. This bill, like a small breath of fresh air, offers thousands of Canadians of indigenous lineage the chance to reconnect with their cultural heritage. It gives them access to the rights rooted in Indian status in Canada, but goes far beyond that, by allowing them to fully reclaim their identity.

It is worth recalling that prior to 1985, enfranchisement was a sinister assimilation policy under the Indian Act. Under this vile legislation, first nations individuals lost their entitlement to registration as well as membership in their home communities. Enfranchisement could be voluntary, but the government could also impose enfranchisement on individuals, either by virtue of their profession or because they had been residing outside of Canada for five years. When men were enfranchised, their wives and children were automatically enfranchised. This led to entire families and their descendants losing entitlement to registration, membership in their communities, and any associated benefits under the Indian Act.

In 1985, Bill C‑31 created new categories under section 6 of the act for determining eligibility for registration, which restored access to registration for a large number of people and their first-generation descendants. As part of these changes, the emancipation process was eliminated from the act, and people who had already been voluntarily or involuntarily emancipated could request that their registration be restored. Although the provisions of the Indian Act regarding registration and membership were amended in 2011 through Bill C‑3 on gender equity in Indian registration and in 2017 through the passage of Bill S‑3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général), these legislative reforms focused mainly on eliminating gender inequities in the registration process.

However, other injustices rooted in the grim past of emancipation are insidiously persistent. The descendants of those who were at one time subject to emancipation are still unable to pass on their right to registration in the same way as those who were not affected by this measure. Similarly, those who were subject to emancipation as a member of a band or community continue to be excluded from registration today.

The introduction of Bill C-38 offers the promise of better days ahead. After it is passed, many people will be in a different registration category and others will be newly eligible for registration. What is more, if the problems of individual and collective enfranchisement are resolved, nearly 3,500 people will be given the invaluable access to registration.

Right now, the Indian Act does not provide for the possibility of voluntary deregistration at the specific request of the interested parties. However, thanks to the proposed amendments, it will be possible for a person to have their name removed from the Indian register for various reasons, such as wanting to join indigenous tribes in the U.S. that do not allow those registered under the Indian Act to enrol; wanting to identify as Métis; deciding to no longer be recognized on the federal Indian register; or withdrawing consent to be registered as an adult, for those whose parents registered them as children.

Mercifully, Bill C‑38 will guarantee that, when a person has their name removed from the register, they will still legally retain their entitlement to be registered under the Indian Act, the right to be registered again in the future, and the right to transmit this precious birthright to their descendants.

For some individuals, deregistration is vital because it is a matter of having control over their own identity. For others, it is a barrier to gaining membership in other indigenous groups, like Métis, if they have mixed ancestry. This has long hindered many people from accessing important services and benefits they should be entitled to through a group they wish to identify with.

For example, Métis lose their right to Métis membership if they are registered under the Indian Act. Bill C‑38 will provide individuals with the right and ability to have their names removed from the Indian register. Once deregistered, the individual will not have the right to access any programs, services, settlements or benefits associated with Indian Act registration. Even if the individual later seeks to be re-registered, that individual will have no retroactive claim to any such benefits for the period in which they were deregistered. However, any individual who opts to deregister will retain their entitlement to registration under the Indian Act, including the ability to regain their status in the future.

When a woman who is registered under the Indian Act is a member of the band that she was born into, in other words, either the mother's or father's band, this is referred to as being a member of her natal band. If passed, Bill C‑38 would recognize the acquired rights of all first nations to membership with their natal band. This bill would provide a legal framework to re-affiliate women and their descendants to their natal bands who were automatically moved to their husbands' band list upon marriage. Bill C‑38 provides a valuable opportunity to re-establish important cultural and community connections for first nations women and their families.

Since this bill is intended as a response to historical wrongs perpetrated by Ottawa and its racist, sexist legislation that discriminates against indigenous people, it is imperative to remain vigilant to ensure that this bill does not itself become an indirect instrument of assimilation and cultural erasure of indigenous people by allowing overly broad access to their recognized Indian status for those unfamiliar with indigenous cultures.

Luckily, the limited yet still significant scope of individuals who will now be eligible does not seem to pose a threat of diluting indigenous identity, as once provided for in the Indian Act, along with ethnocide. The indigenous groups that the Bloc Québécois consulted did not seem consider that an imminent risk. However, we will remain watchful.

It is imperative that this bill be considered in its entirety, with careful attention paid to its consequences and impacts, to ensure that it truly rectifies past wrongs while respecting the rights and identity of indigenous peoples.

From the 19th century on, women and their descendants have been the victims of blatant gender discrimination when it comes to registration and band membership.

In 1869, with the passage of the Gradual Enfranchisement Act, the definition of “Indian” was no longer based on first nations kinship and community ties. The act was deliberately designed to remove families headed by a non-Indian man from first nations communities by building on the predominance of men over women and children. The 1869 law also included a provision concerning interracial marriages. Known as the “marrying out rule”, it was retained in the first Indian Act of 1876. This rule removed entitlement to registration from Indian women who married non-Indian men, while granting entitlement to non-Indian women who married Indian men. In addition, children of entitled men who married non-Indian women became entitled under the Indian Act, while children of women who “married out” were no longer entitled. This is clearly a flagrant inequality.

In 1951, important amendments were made to registration, namely, the creation of a centralized Indian register. Later, other amendments further reinforced the discrimination against women and their descendants, especially the double mother rule. Gender discrimination in the Indian Act was challenged under national and international human rights legislation, which brought to light the fact that women were excluded from first nations communities and were being deprived of the ability to retain their indigenous identity in the eyes of Canadian law.

For decades, indigenous women fought for their rights in court, challenging the patriarchal provisions of the Indian Act. In the 1960s and 1970s, women like Jeanette Lavell from the Wikwemikong nation, Yvonne Bedard from the Six Nations of the Grand River, elder and advocate Mary Two‑Axe Earley from the Kanien'kehà:ka nation, and Senator Sandra Lovelace Nicholas from the Malecite nation took legal action to fight the Indian Act's discrimination against women and their descendants. These courageous women paved the way to reform and justice and thus helped to advance the cause of indigenous women's rights and to fight the systemic injustice that has long marked the history of the Indian Act.

The chief commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Marion Buller, said the following after tabling the more than 2000-page report:

Despite their different circumstances and backgrounds, all of the missing and murdered are connected by economic, social and political marginalization, racism, and misogyny woven into the fabric of Canadian society.

As much as indigenous communities need to rebuild, Quebeckers and Canadians need to become aware of the collective trauma experienced by these communities, understand it, and ensure that nothing this disgraceful ever happens again. Quebec Native Women had this to say:

[In the case of many of the missing or murdered women] [o]ne might claim that the person responsible for [their] death is the one who gave [them] the beating that led to [their] passing. In fact, this interpretation was favored by former Canadian Prime Minister Stephen Harper when he insisted on the criminal, as opposed to sociological, nature of the murders of Indigenous women in the country (La Presse Canadienne, 2014)...Beyond the single act of violence perpetrated by one person against another, it is the accumulation of each of the above-mentioned acts of violence that led to [their] death.

According to Viviane Michel, a former president of Quebec Native Women, it is essential that indigenous women, families and communities have the opportunity to be heard as part of any inquiry. She also said that understanding the deep roots underlying the systemic discrimination faced by indigenous women is crucial to ensuring their dignity and safety.

In listening to the testimony of indigenous women, Quebec Native Women counted four types of violence.

The first type of violence is structural violence. This all-encompassing form of violence refers to the systemic effects of policies of erasure and assimilation since at least the middle of the 19th century. The Indian Act is the quintessential example of a system that governs all areas of the lives of first nations people, including political, economic, social, legal and cultural.

The second type of violence is institutional violence. This second form of violence, which necessarily flows from the first, has more to do with the repercussions associated with specific institutional regimes, whether in education, health or public safety. The residential school system is a prime example. Not only did this violence manifest itself in the lives of residential school survivors, but its consequences have spanned generations and have permanently altered the life trajectories of thousands of children by insinuating themselves into every aspect of their existence.

The third type of violence is family violence. This expression is frequently used in an indigenous context to emphasize the fact that violence affects not only couples, but also the children and potentially other people connected to the family.

The fourth and final type of violence is personal violence, which includes instances of physical violence, psychological manipulation and financial control, to name but a few. It involves individuals.

In their descriptions of the encounters, the families and survivors who spoke to the National Inquiry into Missing and Murdered Indigenous Women and Girls all linked their experiences to colonialism, in its historical or modern form, through one or other of four main factors: historical, multigenerational or intergenerational trauma; social and economic marginalization; maintaining the status quo and institutional lack of will; ignoring the agency and expertise of indigenous women and girls.

The trauma of Canada's indigenous people is both individual and collective. Expert witness Amy Bombay's testimony at the child and family welfare hearing highlighted the importance of the concept of historical trauma to speak to what she called the cumulative emotional and psychological wounding that happens over the lifespan and across generations, emanating from massive group trauma experiences.

It is the response to this trauma that perpetuates this colonialist legacy, which has become embedded in all of Canada's indigenous cultures through no fault of their own. This response, which can take the form of various social problems, is always aimed at surviving this trauma. Throughout history, the Canadian government and the clergy planned the collective trauma with the ultimate goal of driving all indigenous communities to extinction. Those communities have since been left to deal with the consequences alone. One day, Canada will have to confront this reality.

We have a duty to remember precisely because the past determines our present and future. However, this duty to remember only makes sense in this case if we learn from the past. If we, like the Prime Minister of Canada, get used to shedding crocodile tears and settling for continuing under the Indian Act, then our collective duty to remember will be in vain. We need to build a new system, ideally an independent republic of Quebec, based on a new, respectful dialogue with all nations. That is what the Bloc Québécois is advocating for.

Tiawenhk.

[Lee Allison Clark, Manager, Policy and Research, Native Women's Association of Canada]

Good afternoon, honourable members.

Thank you for the invitation to come here today on behalf of the Native Women's Association of Canada, to speak about the administration of and accessibility by indigenous peoples to the non-insured health benefits program.

I want to acknowledge that the land that I and others here today are on is the traditional and unceded territory of the Algonquin Anishinabe people.

As you all likely know, NWAC is a national indigenous organization representing indigenous women, girls, two-spirit, transgender and gender-diverse people in Canada. As we all know, accessibility, availability and acceptability of health services indirectly and directly impact indigenous people's health and health outcomes.

Although the NIHB program provides critical financial support for accessing services, more must be done to ensure that indigenous women, girls, two-spirit, transgender and gender-diverse people have access to essential health care services that are acceptable, culturally and gender sensitive, and trauma-informed.

The NIHB program represents a lifeline for indigenous people. Indigenous women utilize the NIHB at higher rates than indigenous men. Previous amendments to the Indian Act have meant that a greater number of individuals can claim or restore their status. Bill C-3, the Gender Equity in Indian Registration Act, and Bill S-3 aimed to eliminate known sex-based inequities in registration. Because of this, many people became entitled to register under the Indian Act.

Understanding that the population with access to NIHB has grown significantly in the past years, with a vast amount of the growth occurring in small and remote communities, NWAC really welcomes discussions on ways to better this. Today I will highlight several scenarios that underscore where the NIHB falls short, and I will welcome discussion throughout the hour to provide tangible solutions to these shortcomings. The examples I will present in the next few minutes represent just the tip of the iceberg.

In nearly every sharing circle, focus group or engagement session focusing on health care experiences that NWAC has held with indigenous women, girls, two-spirit and gender-diverse people, difficulty in accessing services, availability of services, quality of services and experiences of discrimination, racism and sexism are raised. Whether due to straightforward racism or discrimination embedded in institutions, health care services are often inaccessible to the folks who need them the most.

As with many other countries worldwide, women typically have higher prescription rates than men have. This is also true in Canada and remains true for indigenous women when compared with their male indigenous counterparts and the Canadian population overall. Therefore, the NIHB remains critical for indigenous women to survive, and is a gendered issue.

However, the NIHB drug coverage plan, as continually highlighted by the Canadian Pharmacists Association and others, provides less drug coverage than the average Canadian receives. When we consider that indigenous women, girls, two-spirit, transgender and gender-diverse people encounter one of the highest disproportionate burdens of health disparities in Canada, which stems from various determinants of health, this can be catastrophic.

Access to birthing services close to home is something Canadians expect. This is not the case for indigenous pregnant people. A recent study published in the Canadian Medical Association Journal found that indigenous pregnant people in Canada experience striking inequities in access to birth close to home when compared with non-indigenous folks.

Although the NIHB covers many of the expenses associated with travel for pregnancy, it is limited to one pregnant person and the addition of another person, as of 2017. However, often this other person is a doula or a midwife, not a family member or friend. Children are left behind. This is problematic.

Birthing on or near traditional territories in the presence of family and community is a long-standing practice of foundational, cultural and social importance that contributes to overall maternal and infant well-being among indigenous people. It gives them a good start. Most Canadians have the luxury of giving birth near their home, with their partner in the room or perhaps with their family in the waiting room. NIHB simply does not allow for this, creating a standard for indigenous birthing people that is less than that for the Canadian population.

Layers of racism and sexism continue when you consider dental care for indigenous women, girls, two-spirit, transgender and gender-diverse people. Wearing dentures, receiving off-reserve dental care, asking to pay for dental services, perceiving the need for preventive care, flossing more than once a day, having fewer than 21 natural teeth, fear of going to the dentist, never having received orthodontic treatment and perceived impact of oral conditions on quality of life all have been correlated with experiencing a racist event at the dentist's office. Simple tasks that many Canadians take for granted, such as getting their teeth cleaned, become a potentially traumatic event for indigenous folks. This doesn't even begin to tackle the layers of issues that are rife within finding and accessing the dentist.

Before contact with European settlers, first nations and Inuit healers bore the responsibility of health for their people and relied upon a rich body of knowledge of traditional medicines and socio-cultural practices. The administration of the NIHB program must integrate this and be culturally and gender sensitive, as well as gender-informed, if we are ever to fully walk the path of reconciliation.

However, respecting the Ottawa Charter for Health Promotion, which was developed in 1986—so many years ago—and as outlined by PHAC, “reductions in health inequities require reductions in material and social inequities.”

When considering the NIHB, this means increasing coverage of easy access to and increasing the availability of preventive allopathic and traditional medicine.

In sum, we cannot risk any more indigenous women, girls, two-spirit, transgender and gender-diverse people falling through the cracks when looking to access the care they have a right to. NWAC wants to be part of the solution of how best to increase accessibility and better the administration of the NIHB program.

I look forward to presenting some more detailed recommendations throughout the hour.

Thank you. Meegwetch.

[Vice-Chief Richard Derocher, Meadow Lake Tribal Council]

Good afternoon, everyone. Thanks for the opportunity to speak before the committee.

To Mr. Lehr, you did a wonderful job on your presentation.

First of all, I am the Cree Vice-Chief of the Meadow Lake Tribal Council, MLTC. The Meadow Lake Tribal Council is in northwest Saskatchewan. We comprise nine first nations, five of which are Cree and four of which are Dene. Our land base takes up just about all of northwest Saskatchewan. We have a population of about 16,000 people. The growth in our territory, the growth of different communities, is very different. Some communities are growing economically; some are not. Some are growing in wellness; some are not. I serve a wide variety of where people are at in their communities.

I want to talk about housing specifically in regard to budget.

I was a councillor in Flying Dust First Nation for 18 years and a band manager for four years, so I know my particular first nation, a Cree first nation. The Flying Dust First Nation has had the same budget for over 30 years in housing.

That is one issue we have. Other than the indexing that we get, there has been no increase in the housing budget for the last 30 years. I believe in Flying Dust it's just under $300,000, and to insure their homes is about $180,000 a year, which leaves approximately $100,000 to $110,000 to build or renovate. I'm sure it's no different for all other first nations in the territory, the MLTC territory.

That leaves us with a definite problem: How do you accommodate housing situations in our first nations when you're building with $110,000?

Remember the area we're in. We're in northwest Saskatchewan. The cost for building is about 20% to 30% more than in southern Saskatchewan. Even close to where I am in Meadow Lake, Saskatchewan, the cost is about 20% to 30% higher.

The price to build the average house in northwest Saskatchewan is about $230,000, and that's for a three-bedroom bungalow. You can't even finish off a house with that. How do you also look at your renovation list? Our houses are getting depleted and there are no monies to put them into the way housing should be. Therefore, in regard to housing, the chiefs and councils of those communities are very boxed in.

There is another huge impact on housing. With the new bills that are coming, like Bill C-3 and the different membership cases that have been presented by Canada and put into the first nations, our population is growing, not only because of normal population growth but because of new members coming onto the first nations either by the grandmother clause or any other new membership cases. That makes the situation even harder, because now there are new members with expectations of on-reserve housing because that's what they see, which then puts more pressure on the chief and council.

I want to talk to you about overcrowding in houses as well. The average home in the Meadow Lake Tribal Council has 7.9 people per house.

I'm going to use Flying Dust as an example, because I am from there and I'm very familiar with the numbers. Flying Dust has 2.2 people per house. Flying Dust has quite a good housing program, but the shortage is still there. There are only 2.2 people in the houses we do have mainly because of small families and because Flying Dust made what we call an “elders' lodge”, which houses 10 elders in single dwelling units. They are not elders' lodges as you know as long-term care facilities. They are more levels one and two, where they can look after themselves or are looked in on frequently by the nursing staff and family visits.

The overcrowding, as I indicated, is just over 7.9 people per home, I believe. This creates mental wellness problems, especially for our teenage children.

Young adolescents or teenagers get into an arguments with their parents. All of us who are parents know this happens. They get into a little scuffle with their brother or sister or parents. In a normal house, that individual gets to go into their bedroom, sort things out and get their thoughts together. In our homes, that's not possible. They're sharing rooms—sometimes two and three children or maybe two teenagers to a room—which doesn't give them that space to get their thoughts together.

What happens in this case is the young people leave the home frustrated and mad. They go and look for other options, which usually leads to alcoholism, drug addiction and seeking friends. Sometimes it's gang related.

That's the reality of being in northern Saskatchewan and having no place to get your thoughts together. That's one that I speak of often—

[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.

[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.

[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.

[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.

[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.

[Yvonne Jones, Liberal, Parliamentary 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 Amendment

[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?

[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.

[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.

[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.

[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.