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.


Chuck Strahl  Conservative


This bill has received Royal Assent and is now law.


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.


All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Bill C-3--Gender Equity in Indian Registration ActRoutine Proceedings

April 27th, 2010 / 11:25 a.m.
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Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, I listened closely to what my colleague said before the Conservatives decided to move a motion to adjourn the debate. That motion was absurd; it would have prevented us from continuing an extremely important debate on discrimination against women.

Contrary to what the member for Medicine Hat said, the committee realized during its study of Bill C-3 that the bill would fix nothing. It is just a band-aid solution for a much bigger problem. We have a unique opportunity during this session of Parliament to deal with the issue once and for all. If we do not deal with it now, it will come up again over the next 25 years.

I would like my colleague to comment on the problem. Ms. McIvor received financial support from the court challenges program to take her case to court. Does my colleague agree that if we adjourn the debate and move on, the issue will come before the courts yet again? Does the hon. member agree that we should reinstate the court challenges program that the Conservatives eliminated?

Bill C-3--Gender Equity in Indian Registration ActRoutine Proceedings

April 27th, 2010 / 10:30 a.m.
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LaVar Payne Conservative Medicine Hat, AB

Mr. Speaker, I will be splitting my time.

I will speak against the motion of the hon. member for Nanaimo—Cowichan. Bill C-3, the gender equality IN Indian registration Act, proposes to end a cause of gender discrimination in certain registration provisions of the Indian Act. I believe it is essential to note that the central objective of this bill is ultimately one of gender equality.

At issue are some of the rules that govern registration as an Indian, which is often referred to as Indian status, specifically, what criteria the Government of Canada should use to determine who can be registered as an Indian. Today, of course, the term Indian is rarely used to refer to an individual, although terms, such as status Indian and Indian register, remain important legal concepts.

To use the word today is by no means intended to be derogatory or disrespectful. My intent here is to summarize the complex issues. This bill directly responds to a decision rendered last year by the Court of Appeal for British Columbia. The court ruled that two paragraphs in section 6 of the Indian Act are contrary to the Canadian Charter of Rights and Freedoms.

The court suspended the effect of the decision until July 5 of this year so that Parliament could take action to resolve the issue. The solution proposed in Bill C-3 is to amend the Indian Act to remove the discrimination between male and female lines that the court ruled is discriminatory.

However, if no legislative solution is in place by this date, no new registrations in the province of British Columbia can be made for the duration and validity of those provisions.

We must also bear in mind that gender discrimination in the current version of the Indian Act has a negative impact, not only on first nations peoples but on all Canadians.

I am reminded of what Her Excellency the Governor General, the Right Hon. Michaëlle Jean, said in the 2008 Speech from the Throne. She said:

Canada is built on a promise of opportunity, the chance to work hard, raise a family and make a better life. Today, it is more important than ever to deliver on this promise, and ensure that all Canadians share in the promise of this land, regardless of cultural background, gender, age, disability or official language. This Government will break down barriers that prevent Canadians from reaching their potential.

When the B.C. Court of Appeal handed down its ruling, the Government of Canada reviewed and analyzed it thoroughly. In June of last year, the Minister of Indian Affairs and Northern Development announced that the federal government would not appeal the ruling and that it would proceed with amendments to the Indian Act as ordered by the court. In August, the minister announced the federal government's engagement plan to provide information and seek input on a legislative solution.

In the same month, the engagement process got under way with the publication and distribution of a discussion paper. The discussion paper provided an overview of the issues at play, described a previous effort to amend the Indian Act to remove discriminatory provisions and outlined the Government of Canada's proposed legislative solution. The engagement process enabled interested parties to provide feedback on the proposed legislative approach, including submitting written comments to Indian and Northern Affairs Canada or by attending one of the engagement sessions held last fall throughout Canada.

The discussion paper was designed to focus and inform the engagement process. Department officials also provided technical briefings to officials of five national aboriginal organizations: the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada, the National Association of Friendship Centres and the Métis National Council.

The engagement sessions were held from early September through early November. National aboriginal organizations co-sponsored three of the sessions and department officials worked with regional aboriginal organizations to conduct another 12 sessions. Overall, a total of approximately 900 people participated in the engagement sessions held across Canada and more than 150 submissions were received by mid-November.

The process generated a great deal of discussion and a wide range of views and opinions were expressed. Concerns raised most often related to the potential financial implications for first nations and possible impact on treaty rights. In addition, many people expressed concerns about broader issues associated with Indian Act rules regarding registration, membership and citizenship.

During these engagement sessions, while many people expressed support for actions intended to eliminate gender discrimination in the Indian Act, many also called for much larger reforms.

As the Minister of Indian Affairs and Northern Development has made clear, however, Bill C-3 responds directly to the court's ruling by proposing amendments to certain registration provisions in the Indian Act. As the minister has announced, a separate exploratory process is being put in place with the involvement of first nations and aboriginal organizations to examine the broader issues raised during the engagement process.

Over the next few months the government will be collaborating with first nations and other aboriginal organizations in setting up this exploratory process as a separate and distinct process to the legislation on the broader issues associated with registration, membership and citizenship as was requested during the engagement process. Specifically, this will be done in partnership with the Assembly of First Nations, the Native Women's Association of Canada, the Congress of Aboriginal Peoples, the Métis National Council and the National Association of Friendship Centres.

All organizations, along with the Government of Canada, are willing to work together on a process designed to gather the views of individuals, communities and leaders.

Bill C-3 complements the partnership approach adopted by the Government of Canada on many issues that affect the lives of aboriginal peoples. Proposed legislation, along with the exploratory process, strengthens the relationship between Canada and aboriginal peoples.

I move:

That the debate be now adjourned.

Bill C-3--Gender Equity in Indian Registration ActRoutine Proceedings

April 27th, 2010 / 10:25 a.m.
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Vancouver Island North B.C.


John Duncan ConservativeParliamentary Secretary to the Minister of Indian Affairs and Northern Development

Mr. Speaker, I just want to say how disappointed I am in terms of this motion.

The government has been very straightforward. The committee has been very straightforward. We have offered departmental officials to talk about this whole bill, the amendments and the possibilities. We have had very good witnesses. We have had people say that we really need to get on with Bill C-3. Anything that members might want to do in the way of amendments will have unintended consequences. I have had conversations with representatives from national aboriginal organizations. We have offered an exploratory process that would go beyond this bill, as a parallel process that would basically take very considerable time to accomplish.

We are not trying to disguise our behaviour or anything flowing from the McIvor case. The bill is a direct response to a Supreme Court of British Columbia decision, nothing more, nothing less. Everything else can be addressed through the exploratory process.

I would just like to put that on the record because we certainly have a different set of talking points suddenly coming from the opposition.

Bill C-3--Gender Equity in Indian Registration ActRoutine Proceedings

April 27th, 2010 / 10 a.m.
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Jean Crowder NDP Nanaimo—Cowichan, BC


That it be an instruction to the Standing Committee on Aboriginal Affairs and Northern Development, that it have the power during its consideration of Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), to expand the scope of the Bill so that a grandchild born before 1985 with a female grandparent would receive the same entitlement to status as a grandchild of a male grandparent born in the same period.

Mr. Speaker, I want to draw the attention of the House to two references in O'Brien and Bosc to support this motion. One is on page 752 of the English edition and it deals with a motion to instruct a committee. It states:

Once a bill has been referred to a committee, the House may instruct the committee by way of a motion authorizing what would otherwise be beyond its powers, such as, for example, examining a portion of a bill and reporting it separately, examining certain items in particular, dividing a bill into more than one bill, consolidating two or more bills...A committee that so wishes may also seek instruction from the House.

The House may give instructions to a Committee of the Whole or indeed to any of its committees. More than one motion of instruction may be proposed in relation to the same bill, but each such motion must be moved separately. Motions of instruction respecting bills are permissive rather than mandatory in that it is left to the committee to decide whether or not to exercise the powers given to it by the House.

It is clear from that reference that the House can instruct a committee on the scope of the bill. The second reference is from page 994 of the English edition of O'Brien and Bosc. It states:

Once a committee has begun a study, the House may also give it additional direction, known as “instructions”. They are sometimes mandatory, but are usually permissive. A mandatory instruction orders a committee to consider a specific matter or to conduct its study in a particular way. A permissive instruction gives the committee the power to do something that it could not otherwise do, but does not require it to exercise that power. Committees may, if they wish, request an instruction from the House by presenting a report to it.

The reason that I believe that this motion is necessary is because we have before the House Bill C-3, which is a result of a B.C. Supreme Court decision that responded very narrowly. We have heard from numerous witnesses and from briefs before the aboriginal affairs committee the fact that there still is residual discrimination left over as a result of this very narrow definition.

Procedurally, we know that a committee by itself cannot expand the scope of the bill; however, there are two ways to expand the scope of the bill. One is for the House to give instruction, and again, I want to reiterate this is permissive so it is up to the committee to determine whether it would take this instruction, and the second way is for the government itself to expand the scope of the bill. To date, the government has not chosen to expand the scope of the bill, so I am requesting support of the House to give permissive instructions to the committee to allow it to expand the scope of the bill.

I want to talk a little bit about why this is important. In 1988, the fifth report of the Standing Committee on Aboriginal Affairs and Northern Development tabled a report in the House that outlined residual discrimination that was left over from the 1985 Bill C-31, which was a bill that recognized the fact that women who married non-aboriginal men could regain status in some way. But Bill C-31 still left discriminatory practices in place. The fifth report from 1988 acknowledged a number of areas where there was still discrimination. On page 30, it said:

In 1985 over 50% of all children born to status Indian mothers were born out of wedlock.All these children are now automatically registered as 6.(2) if there is no signed acknowledgment of paternity.

This is the issue concerning non-stated paternity. We heard from witnesses at committee that non-stated paternity often will discriminate against women who for a variety of reasons are unwilling to state the paternity. There were remedies suggested in this report which have not been acted on, which included having women sign an affidavit.

Further on in the report, it said:

One of the most frequently cited examples of residual sex discrimination has been the discriminatory treatment of reinstated “12(1)(b)” women in terms of the rights of their children, grandchildren and non-Indian or non-status spouses under the amended Indian Act relative to the rights held by the descendants and non-Indian spouses of Indian men who “married out” before April 17, 1985. The rights concerned involved entitlement to Indian status, entitlement to band membership and reserve residency. The other frequently cited example is the sexually discriminatory treatment of illegitimate children born before April 17, 1985 of male status Indians and non-status women in regard to entitlement to status and band membership.

Further on in the report, there are a number of other examples of residual sex discrimination, which were brought to the attention of the committee. One of them required an unmarried Indian woman to name the father of her children, which I have already talked about. Later in the report, on page 36, it talked about the complexity of the act. It said:

The registration entitlement provisions have become increasingly complex since the first consolidated Indian Act in 1876. Unfortunately, the 1985 amendments continue this tradition. The entitlement provisions respecting registration and band membership now constitute a complex set of rules expressed in highly technical language. The entitlement of a particular individual is dependent upon the entitlement of his or her parents and/or grandparents under the present Act. In the case of individuals applying for reinstatement or first time registration because of discriminatory provisions of the Indian Act, an intimate knowledge of previous versions of the Act is also required. In short, these provisions cannot be easily understood by laypersons including the many people affected by the Indian Act.

Bill C-3 does nothing to alleviate those problems that were identified.

I will turn to modern-day times. The report was from 1988 and there have been no amendments to the Indian Act that have dealt with that residual discrimination until this date. A couple of decades have gone by where women and their offspring continue to be treated differently than men.

On April 22 the Canadian Human Rights Commission appeared before the committee. Its terminology was slightly different. It talked about alleged residual discrimination, but it outlined a couple of important points. It talked about family status because that is still alleged residual discrimination under the current Bill C-3. The CHRC official stated:

Family status is a very broad ground so I will provide a definition. Family status refers to the inter-relationship that arises from bonds of marriage, kinship or legal adoption, including the ancestral relationship, whether legitimate, illegitimate, or by adoption. It also includes the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, and cousins.

We have examples of that residual discrimination that is still going on between siblings. I am going to come back to that case in a moment. Dr. Palmater, when she appeared before the committee, outlined that family discrimination still exists within her own family.

Later in the testimony, the Human Rights Commission talked about a couple of key points, which other members of the committee are going to be speaking to today. The HRC official said:

My key message to you today is that this is by no means definite. The Commission’s ability to redress allegations of discrimination under the Indian Act remains uncertain...The Attorney General of Canada has given notice that it will be challenging the Commission’s jurisdiction, claiming that determination of status by the registrar is not a service under section 5 of the CHRA...Therefore, if a court were to find that the determination of status is not a service, the Commission would no longer have the authority to accept complaints related to Indian status. By extension, this could raise similar questions as to whether or not the determination of band membership is a service.

That aspect is important. What the committee certainly heard was not an acknowledgement of residual discrimination but a tacit admission. The government and the department have indicated that one remedy for people would be to go before the Canadian Human Rights Commission, but the CHRC clearly indicated that this may not be a remedy. It may well be that we could wait a few more decades before this residual discrimination is addressed.

In its closing remarks, the Canadian Human Rights Commission stated:

The Committee has already heard that the Indian Act has had discriminatory effects, including residual gender-based discrimination. A case-by-case, section-by-section approach to resolving discriminatory provisions of the Indian Act will be costly, confrontational and time-consuming. Moreover, the Act places the burden on complainants who do not necessarily have access to legal resources.

Again, testimony before the committee indicated that there are currently 14 court cases in the works regarding various complaints concerning status provisions in the Indian Act.

We know that in the case of Ms. McIvor it was 20 years before she was able to have her case finally resolved. The resolution was not the one Ms. McIvor had hoped for.

Again, this is all part of the argument that it is critical to take this opportunity now that we are opening up the Indian Act to look at the status provisions and deal with all aspects of the sexual discrimination still present in the act.

In its testimony at committee, the Canadian Bar Association highlighted a number of areas. One was as follows:

There are many people registered under section 6(2) who were registered post-1985 because they were not registered earlier for reasons other than gender discrimination. One of those reasons had to do with adoption. In the 1960s and 70s, numerous First Nation children were adopted out but were not registered as Indians. After 1985, they were registered as Indians but under section 6(2). In many of those cases, their mothers still had status at the time of the children’s birth and so after 1985 were reinstated because they were entitled to be registered at their birth but were not. However, they were given the same lesser status--namely section 6(2). Bill C-3 would not provide any benefit to those people who were given section 6(2) status for reasons different from the McIvor case. Unless a person meets all of the criteria, they are left out.

This is another case of that residual discrimination.

The Canadian Human Rights Commission talked about family status being one of the areas where there is potential for discrimination. The Canadian Bar Association identified that and said:

This raises a potential concern for “family status” discrimination, in that some people will only be “bumped up” from section 6(2) to 6(1) status if they parent a child. This may affect people whose band membership code denies membership to Indians registered under section 6(2) and also in communities where there is a certain stigma associated with having section 6(2) status rather than section 6(1).

These various categories continue to promote a lack of harmony and conflicting relationships. This is an opportunity for the House to deal with that.

The Canadian Bar Association also dealt with section 9 and said that section 9 is a concern as it would remove the right of people to sue the federal government for not providing them the status as a result of the gender discrimination addressed by the bill. The association cautioned that this would make the bill vulnerable to further court challenges.

The Canadian Human Rights Commission identified the fact that it may also limit its ability to provide a remedy if section 9 of the bill stands. Later on in its brief, the commission talked about continuing discrimination:

Unfortunately, Bill C-3 would not completely eliminate discrimination from the registration provisions of the Indian Act. The proposals do not address discriminatory aspects of the “second generation cut-off rule” enacted in 1985, which the parties and the court studiously avoided in the McIvor case.

Perhaps more important, Bill C-3 would not sufficiently address the source of discrimination identified by the B.C. Court of Appeal; sections 6(1)(a) and 6(1)(c) violate the Charter to the extent that they grant individuals to whom the “Double Mother Rule” applied greater rights than they would have had under the former legislation. The...Double Mother re-instates would still have “better status” than those in the comparator group, even following the proposed amendments in Bill C-3.

That is a serious concern, that even in a McIvor-like situation we are going to continue to perpetuate that kind of discrimination.

I mentioned that I wanted to talk briefly about Dr. Palmater's presentation to the committee on April 20. This is an example of that ongoing family discrimination which Bill C-3 does not address. She talked about her own family and said:

I have one sister who was adopted, three who were born pre-1951, and three who are illegitimate. This will mean very different things for us under Bill C-3 or for any limited gender discrimination remedy.

What she is talking about is that because of the birthdates of her siblings and legitimacy versus illegitimacy, people will have either no status or different status even with the changes under Bill C-3.

In this day and age when we acknowledge there are discriminatory practices still inherent, why would we not take this opportunity to address those? Why would we leave people hanging out there for possibly a couple more decades? I need to remind the House that some of these people who would be impacted are getting older and they simply may run out of time to have their particular cases addressed.

I want to reference briefly the Lovelace case. Dr. Palmater argued in her presentation that the government could have expanded the scope of the bill. It did not need to narrowly address the B.C. Supreme Court decision. She said:

When Canada responded to the Lovelace case with Bill C-31 in 1985, it did not limit the amendment to the reinstatement of section 12(1)(b) women, it also amended the Act to allow bands to control their own membership; changed the legal presumption for unstated paternity from a default of Indian paternity (unless protested) to a presumption of non-Indian paternity and reinstated other categories of previously enfranchised Indians. Canada is no more limited in its ability to amend the Act now, than it was in 1985.

Not only does Bill C-3 not address all of the gender discrimination in the registration provisions of the Indian Act, but it does not even entirely address the limited form of discrimination found in the Court of Appeal in McIvor between double mother clause and section 12(1)(b) reinstates and their descendants.

The Court of Appeal in McIvor specifically stated that it would not draft the legislation. Canada is therefore left with the responsibility to do so in a manner which respects gender equality. There was nothing in the Court of Appeal case to prevent Canada from addressing the larger issue of gender discrimination as between sections 6(1)(a) and 6(1)(c).

Later in Dr. Palmater's presentation she outlined a number of suggestions for amendments to the act that would address residual sex discrimination. I will not go through all of the proposed amendments. It is clear from the number of people who appeared before committee that there are serious problems.

A matter of concern for the committee is that as part of the rules of this House, if this bill should be defeated, the government would be under no obligation to respond to the court of appeal decision, nor could it reintroduce a bill substantially similar to the bill that is before the House. That presents a challenge for the House in terms of our ability to deal with that residual discrimination.

The Union of B.C. Indian Chiefs appeared before the committee. This issue is of particular concern in British Columbia because it was the B.C. Supreme Court that struck down sections 6(1)(a) and 6(1)(c) as of April 6. The B.C. people who could gain status will be directly impacted by this piece of legislation.

The Union of B.C. Indian Chiefs requested a couple of things, that the act be amended to also include those who were born before September 4, 1951 and those who lost status not due to the fact that their mother and grandmother lost status through marriage but those children born outside of a marriage who lost status because a registrar universally deemed them to have a non-status father. As I mentioned earlier, that touches on unstated paternity. The union called for the deletion of clause 9 which limits government liability.

The Waban-Aki Nation has a current court case which specifically relates to the difference between how siblings are treated. The Waban-Aki Nation, in its presentation, talked about the siblings rule.

Susan Yantha was born in 1954. At the time of her birth the Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother. There is an analysis comparing her with a hypothetical brother. The brother, whom we will call Arthur, would have had the right to be registered at the time of his birth since the Indian registration rules, which did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother, did allow for the registration of their illegitimate sons. Although there were some changes, it did not fully address the way that different siblings could pass on status to their children.

When the Court of Appeal heard the government application for extension, it was cognizant of the fact that it was desirable for government to consult with first nations before proceeding with amendments to the legislation. It indicated that under the circumstances, it might well have acceded to a request for a longer suspension of its declaration had it been sought.

It is clear that had the government sought it, the courts would have agreed to give a longer period of time so that legislation could be drafted which appropriately addressed the residual discrimination that was outstanding.

I would urge this House to support this motion, pass on permissive instructions to the committee to allow it to expand the scope of the bill, and take an opportunity to address meaningfully the residual discrimination.

April 22nd, 2010 / 4:15 p.m.
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Chief Commissioner, Canadian Human Rights Commission

Jennifer Lynch

I'll give an example generically and then I can move to Bill C-3 as well.

That means we do not receive complaints.... Let me put it in a positive light. We have jurisdiction over complaints if they are based on one of our 11 enumerated grounds--religion, age, sex, family status, etc.---and the alleged act of discrimination must have happened in an employment setting or a service setting.

For example, let's take the banks. If I'm a bank employee and I feel I didn't get a promotion or what have you, I could complain to the Canadian Human Rights Commission. If I'm a customer of the bank and I go to the bank and I feel that for some reason they kept me waiting too long in line because of my colour or whatever, I could complain to the Canadian Human Rights Commission.

If I am a woman working in the trucking industry and I'm experiencing what I believe to be discrimination, I can complain to the Canadian Human Rights Commission, because we have jurisdiction over employment and services being provided.

But if you own the ABC motel and refuse people of a certain group, that doesn't come to us. It's a service, but it's not under our jurisdiction. That's what a service is.

When we get to the specifics in the world of status and funding, this is where we're getting challenges from the Attorney General that these are not services. I'll give you an example for a service.

Three complaints that we've sent to the tribunal recently are McIvor-like complaints--two brothers and a sister--and the Attorney General of Canada has filed a preliminary motion to stay the tribunal proceedings until Bill C-3 has been passed. The Attorney General has given notice that it will be challenging whether the determination of Indian status is a service within the meaning of section 5 of the CHRA. That's one. Now, in these three cases, they would all receive Indian status as a result of Bill C-3, hence the request for a stay. That's one kind of service.

We have another case before the tribunal as to whether funding is a service, funding by the federal government. It relates to aboriginal children in foster care. It's known as the Child and Family Services case. It's alleged that Indian and Northern Affairs Canada discriminates against aboriginal children in the provision of a service by inadequately funding child welfare services, and that the funding formula results in underfunding of services to keep families together and over-funding of services to put children in foster care.

Again, the argument will be made that this is not a service, that funding is not a service. Actually, on this whole definition of service, the courts have been quite broad in defining government services as service; however, there could be a narrowing. This is what we are waiting to find out through the courts.

April 22nd, 2010 / 4:10 p.m.
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Legal Counsel, Canadian Human Rights Commission

Valerie Phillips

I think that's unclear, but my instinct would be that it's unlikely, unless the bill itself is found to be discriminatory.

There have been people before you who have raised flags about family status discrimination, for example, as a possibility in the act, so there is a question whether Bill C-3 contains discriminatory provisions.

But as to whether it could be challenged for not correcting full discrimination, I don't think so. If it's not in compliance with the B.C. Court of Appeal ruling, there may be some legal remedy there.

April 22nd, 2010 / 4:10 p.m.
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Valerie Phillips Legal Counsel, Canadian Human Rights Commission

May I clarify if you are asking whether Bill C-3 itself would be challenged for failing to remedy all of the residual discrimination?

April 22nd, 2010 / 4:10 p.m.
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John Duncan Conservative Vancouver Island North, BC

Would it be reasonable to assume there could be things flowing from this Bill C-3 that would fall under a provincial human rights act as opposed to the federal?

April 22nd, 2010 / 4:05 p.m.
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John Duncan Conservative Vancouver Island North, BC

It's a very nice area--my compliments.

I want to go to Mr. Russell's comments about clause 9 of Bill C-3, because I think they were a mischaracterization almost in their entirety. It's a very narrow clause, which, when you read it, is quite clear.

It's talking only about monetary compensation from things that flow from Bill C-3, only in respect to membership, and it protects not just Her Majesty, but band councils. If band councils look at the ramifications of Bill C-3, they'll see that they're wide open, as open as the government, and this would be a huge concern.

In terms of this kind of prohibition of compensation, Bill C-31 had exactly the same thing. It was not controversial. It didn't pre-empt any of the legal challenges.

The legal challenges under the changes to the Indian Act proposed by Bill C-3 for the most part would still be eminently challengeable; it's only on this monetary compensation business, dating back essentially to 1985, that this is a question. I just wanted to clarify that.

In the same vein, I was struck by your testimony when you said, I think, that the jurisdiction of the Human Rights Commission was not really the issue here but the remedies available under the Canadian Human Rights Tribunal. Now, was that statement in respect to clause 9 or was that a general statement? What did you actually mean by that?

April 22nd, 2010 / 3:50 p.m.
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Marc Lemay Bloc Abitibi—Témiscamingue, QC

I want to read you something. I am not sure whether you are able to study this proposed amendment. The problem, and you agree with me, has to do with section 6 of the act. I do not need an answer today, but I would like one by 4 o'clock tomorrow afternoon. That should be enough time. We have to make our amendments.

It is being proposed that section 6(1)(a) of the Indian Act be amended by adding: “or was born prior to April 17, 1985, and was a direct descendant of such a person.” That is the first point.

As for the second point, clause 2 of Bill C-3 seeks to amend section 6. I would agree that it is complex. Subparagraph 6(3)(c.1)(iv) would read as follows:

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

If that subsection were removed, do you think it would reduce or, at the very least, eliminate a great deal of residual discrimination? That was raised in your excellent presentation, which I fully accept. I do not need an answer until 4:30 tomorrow afternoon.

April 22nd, 2010 / 3:50 p.m.
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Marc Lemay Bloc Abitibi—Témiscamingue, QC

Very well.

So, unless I am mistaken, even though you are not experts, after reading the bill once and reviewing it in general terms, it is clear to you that discrimination will continue if this bill is passed as is.

April 22nd, 2010 / 3:50 p.m.
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Chief Commissioner, Canadian Human Rights Commission

Jennifer Lynch

Let me clarify that when we were called to appear we prepared by reviewing Bill C-3. We are not experts in the area, wo when you talked to me about an in-depth study, I read into it that you meant an in-depth study to develop an expertise in the area.

We're not experts. We've been following the proceedings and have seen that there's a consensus. That's what my opening remarks referred to.

April 22nd, 2010 / 3:50 p.m.
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Marc Lemay Bloc Abitibi—Témiscamingue, QC

I am trying to understand because in your document, you wrote, “My key message to you today is that this is by no means definite”. When you say “this is by no means definite”, it means that residual discrimination not covered by Bill C-3 will continue to take place. Has someone studied that on your end?

April 22nd, 2010 / 3:50 p.m.
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Chief Commissioner, Canadian Human Rights Commission

Jennifer Lynch

We have not performed an in-depth study of Bill C-3.

April 22nd, 2010 / 3:50 p.m.
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Marc Lemay Bloc Abitibi—Témiscamingue, QC

Thank you.

I apologize. I did not mean any disrespect. I was a bit late because the Olympic athletes are here, and being involved in the Olympic movement, I wanted to greet them.

That said, thank you for being here. I have some very specific questions for you. Did you do an in-depth study of Bill C-3?