Gender Equity in Indian Registration Act

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

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

Sponsor

Chuck Strahl  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

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

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

Elsewhere

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

April 22nd, 2010 / 3:45 p.m.
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Liberal

Todd Russell Liberal Labrador, NL

We've had lots of arguments about section 67 around this table, and a lot of debate, and the government says what a wonderful thing it is because now we'll open up this avenue for remedy for first nations people. But every time a first nations person brings a complaint against the government or the crown before the Canadian Human Rights Commission, they say the Canadian Human Rights Commission has no jurisdiction to hear that complaint against the federal government, because we don't provide a service.

So basically all the federal government has done to this point is limit the complaints against, maybe, a band. They're trying to insulate themselves against a Canadian human rights complaint and only allow people who bring that complaint to basically lodge it against a band. It seems that they're trying to do the same thing under clause 9 of Bill C-3. That's what it seems like to me.

April 22nd, 2010 / 3:40 p.m.
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Chief Commissioner, Canadian Human Rights Commission

Jennifer Lynch

May I put this in a bit of context to begin with?

If Bill C-3 is passed, the commission can continue to receive complaints regarding the Indian status provision. These could include the alleged residual discrimination referenced by witnesses before this committee, due to the historical preference given to men under the Indian Act.

We have a section in our act, paragraph 41(b), that allows us to refer a matter back to a process under another act of Parliament, which in this case is the Indian Act. Therefore, if the facts of the complaint suggest that a complainant could gain status as a result of Bill C-3, the commission may require a complainant to reapply for Indian status under the new rules, as a start.

Now, if after being dealt with under the Indian Act the complainant still believes the results of the status provision are discriminatory, he or she could return to the commission. We then look... At the current time, we would expect that the Attorney General might argue that this is not a service within the meaning of the act, and if a court decides that, it would mean that complaints could not be brought to the Canadian Human Rights Commission.

Let's say that a complaint does get to the tribunal, and the tribunal is thinking of awarding a remedy. That was the lead-in part of your question--had we looked at clause 9? We do have a concern that clause 9 would likely limit persons who benefit from Bill C-3 from successfully being awarded remedies at the Canadian Human Rights Tribunal.

It would also likely limit compensation in mediated settlements, because it would be used.... You can well imagine that, wherever we can, we engage parties in dialogue to help processes of settlement. In any kind of a mediation, if there is a section such as this, no doubt the respondent would say that they're not going to agree to remedies because there's this clause 9. In law, they don't have to.

The remedies the tribunal could.... I don't know if you'd like me to tell you about the sorts of remedies the tribunal could order, but--

April 22nd, 2010 / 3:40 p.m.
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Liberal

Todd Russell Liberal Labrador, NL

Okay. Now, a number of witnesses have come before us and said that there is a relationship between this particular clause and, I guess, the government's position that.... First of all, as I understand it, clause 9 saves harmless the government from anybody suing or going after them for compensation or any residual discrimination that had arisen basically from 1985 until the passage of Bill C-3.

This generally seems to be what I understand that clause to do: “You can't sue us because we didn't really know what the hell was going on, and we didn't really acknowledge any residual discrimination, so you can't come back now after the fact, after we pass Bill C-3, and sue us for damages”.

But the government has said that maybe they can launch a complaint with the Human Rights commission, and then the witnesses say that the government fights the jurisdiction of the Canadian Human Rights Commission to hear any such complaints, so really, there is no avenue for any individual to seek a remedy or a ruling that they have been discriminated against and that they should be compensated in some way, shape, or form.

Is that a fair assessment of the situation?

April 22nd, 2010 / 3:40 p.m.
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Liberal

Todd Russell Liberal Labrador, NL

Thank you, Mr. Chair.

Good afternoon to each of you. It's always good to have you in front of our committee. I thank you for the work you do on behalf of all Canadians.

Has the commission had an opportunity to look at clause 9 of Bill C-3?

April 22nd, 2010 / 3:30 p.m.
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Jennifer Lynch Chief Commissioner, Canadian Human Rights Commission

Thank you very much, Mr. Chair and honourable members.

I'm very pleased to have the opportunity to contribute to the committee's review of Bill C-3, an act to promote gender equality in the registration provisions of the Indian Act.

I would like to acknowledge that I meet you here today on the traditional territory of the Algonquin people.

You've already introduced my colleagues who are joining me here today. We've brought these particular colleagues because they are those who specialize in our aboriginal work and aboriginal initiatives.

Many witnesses have spoken to you concerning Bill C-3, and there appears to be consensus that the bill is a narrow legislative response to a narrow order.

In our view, the best value that the commission can bring to you as a witness is to provide you with information on the extent to which our complaint process can be used to redress allegations of discrimination under the Indian Act.

I will begin with a brief description of our role and mandate.

The Canadian Human Rights Act is 33 years old. The act established the Canadian Human Rights Commission and provides the commission with the mandate to receive and process complaints of discrimination in employment or services. The act also directs the commission to engage in any other activities that will give effect to the purpose of the act.

The purpose of the act is found in section 2, and the drafters showed enormous insight when they wrote this clause, which reads that the purpose of the act is to give effect to the principle that every individual should have the right, equal with others, to make for themselves the lives that they are able and wish to have, free from discrimination.

The Canadian Human Rights Commission is part of the larger Canadian human rights system. Every province and territory has its own form of a commission or tribunal. Our mandate is quite specific. There are 11 grounds of discrimination under the CHRA. The grounds most relevant to Bill C-3 and our discussion today are sex, age, marital status, including common-law, and family status.

Family status is a very broad ground, so I will provide a definition. Family status refers to the interrelationship 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, nephews or nieces, and cousins.

The organizations under our mandate include all federal departments and agencies, plus corporations operating in federally regulated industries such as transportation, banking, and telecommunications. This means that anyone who feels that they have experienced discrimination on one of the enumerated grounds while working as an employee, or while receiving services from one of these organizations, can file a complaint with the commission.

The commission receives, screens, and processes complaints. We do not decide complaints beyond deciding whether to dismiss them or refer them for conciliation or to the fully independent Canadian Human Rights Tribunal for further inquiry and a hearing.

To give effect to the principle of section 2 of the act, the commission also works to promote and advance human rights in Canada. We perform an education and outreach function. We collaborate with workplaces to help influence a shift towards a culture of human rights, integrating human rights into daily practice. We develop research, policies and tools. And we provide advice to Parliament. An example of such advice is our 2005 special report to Parliament, A Matter of Rights, where we called for the repeal of section 67.

With that background, I turn now to the commission's ability to redress allegations of discrimination under the Indian Act.

For three decades, we had no such jurisdiction. That was changed upon the repeal of section 67 of the Canadian Human Rights Act in 2008. As you are all aware, section 67 restricted the ability of people living or working in communities operating under the Indian Act to file complaints of discrimination if the discrimination they were complaining about was related to that act. This section was included as a temporary measure in an effort to not disrupt discussions on reforming the Indian Act.

The repeal finally gave more than 700,000 aboriginal persons living under the Indian Act full access to human rights protection in Canada. A three-year transition period built into the repeal legislation means that complaints against first nations governments can only be filed starting in June 2011. However, the right to file complaints against the federal government came into effect with repeal.

We are now receiving complaints related to the federal government's administration of programs and services under the Indian Act. This has provided us with some early experience in dealing with such complaints.

Some testimony heard by this committee has pointed to the commission's complaint process as an available mechanism to remedy discrimination under the Indian Act, including any possible residual discrimination not covered by Bill C-3. 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.

Since the passage of the section 67 repeal, we have received challenges to the commission's jurisdiction in this area. For example, the commission has received several complaints related to Indian status. Three of these are similar to the McIvor case, in that they each involve Indian status and raise questions of residual discrimination following the passage of Bill C-31. We have referred all three complaints to the tribunal.

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.

As l mentioned earlier, the Canadian Human Rights Act provides complaint processes only for discrimination based on employment or service. 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. The commission is intervening in a current case before the tribunal, in the public interest, to put forward a legal analysis that indeed the determination of status is a service.

Of course, the commission cannot make the ultimate decision around what is within our jurisdiction, nor should my remarks be taken as indicating one outcome or another. It is to be expected that an issue of this complexity and importance could proceed from the tribunal to the Federal Court's trial and appeal divisions, and possibly to the Supreme Court of Canada.

In closing, I would like to make two other points.

The first is that the commission supports a comprehensive review of the Indian Act until an approach to governance that recognizes first nations' inherent right to self-government is in place, for a number of reasons.

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.

Were it not for the courage, persistence, and resolve of people like Ms. Sharon McIvor, many of these long-standing issues would never be addressed.

This piecemeal approach has limited impact, particularly when large numbers of people are affected. The commission supports a proactive, systematic approach, one that would include full participation of aboriginal people, build upon existing knowledge, and lead to timely and effective change. The commission recognizes that this will take time.

My second and final point is that the commission is very interested in the government's announced plan for an exploratory process and looks forward to learning more about its scope and objectives. The commission is prepared to assist in any way it can within its jurisdiction and area of expertise.

I look forward to answering your questions.

April 22nd, 2010 / 3:30 p.m.
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Conservative

The Chair Conservative Bruce Stanton

Good afternoon, members, guests and witnesses.

Welcome to the 11th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Pursuant to the Order of Reference of Monday, March 29, 2010, we have on the agenda today 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).

This afternoon we welcome the Canadian Human Rights Commission. We have with us Chief Commissioner Jennifer Lynch; Deputy Chief Commissioner David Langtry; Valerie Phillips, legal counsel; and Michael Smith, senior policy analyst. I know that Mr. Smith has joined us for the last several meetings, and we appreciate the attention of the commission.

Members, we have one hour for this first section. As you saw in our notice, after our first hour, we'll be taking up further consideration of this bill.

Ms. Lynch, I know that you have probably done this before and know that we begin with a 10-minute presentation, after which we'll go to questions from members. At this committee, we do a seven-minute question-and-answer round.

Welcome to our committee. Please begin.

April 20th, 2010 / 5:40 p.m.
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Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

First of all, I am honoured to meet you. We have with us the grand chiefs of the First Nations of Ontario, Saskatchewan and part of the Six Nations from British Columbia. The majority of aboriginal peoples in Canada are probably represented here.

I have a general question and, if I have time, I will ask a more specific one. You are all chiefs involved in your communities. I know that, because I meet you on occasion during first nations' assemblies. What was your reaction to the government's tabling of Bill C-3? I am aware that there were very few consultations in the legal sense, regarding the decisions of the Supreme Court. Can one of you quickly tell me how you reacted to the tabling of this bill?

April 20th, 2010 / 4:05 p.m.
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Director General, Abenakis Band Council of Odanak, Grand Council of the Waban-Aki Nation

Daniel Nolett

Thank you, Mr. Chairman.

I would first like to point out that the Abenaki nation has been active in trying to have the legislation amended. We brought a case before the Superior Court in March 2009. Representatives of the Abenaki nation also intervened in the McIvor case to fight discrimination under the Indian Act.

I agree with those who have already spoken that Bill C-3, in its current form, maintains certain discriminatory aspects that have not been changed. This afternoon, I would like to bring two specific cases to your attention. You have received documents and tables that illustrate these cases of discrimination.

First, there is the rule concerning brothers and sisters, which is represented by the case of Susan and Tammy Yantha. This is in the document. Bill C-3 does not resolve this kind of problem. In 1951, when the registry was created, only the sons were granted Indian status in cases where an Indian man fathered children outside marriage with a non-Indian woman.

In 1985, because of the changes brought in with Bill C-31, the daughters from that kind of union were able to obtain status under subsection 6(2). As you can see in the table, the first generation, that is, the Indian man and the non-Indian wife, came under the 1951 legislation. In the second generation, Susan Yantha's father was an Indian, but her mother was not. So if Ms. Yantha had had a brother, he would have been granted status under subsection 6(1). In 1985, Ms. Yantha obtained her status under subsection 6(2). Her daughter, Tammy Yantha, who is the third generation, still does not have her status, whereas if Susan had had a brother, his children would have their status under subsection 6(1). The current legislation, Bill C-3, does not grant status to the children of Susan Yantha. The bill ignores those cases.

Let us come back to the other example, which is directly related to McIvor; it involves cousins. This case involves Kim Arseneault who is a member of the Wôlinak first nation and part of the third generation.

In 1985, her grandmother regained her status under Bill C-31. She had lost her status because she married and had children with a non-Indian. In 1985, she regained her status on the basis of subsection 6(1). One of her children was Kim's mother, who was born in the 1950s and gave birth to Kim before 1985.

A careful analysis of Bill C-3—I understand that this can be complicated, but the table we have provided will help you follow—shows that Kim will regain her status under subsection 6(2). But if Kim were descended from a man, she would have status under subsection 6(1), like all the third-generation children.

Because Kim is a third-generation descendant of a woman and was born before 1985, in accordance with the amendments, she would recover her Indian status under subsection 6(1). With Bill C-3, owing to gender discrimination, Kim will regain her status only under subsection 6(2).

April 20th, 2010 / 4 p.m.
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Michèle Taina Audette Representative, Marche Amun, Grand Council of the Waban-Aki Nation

Thank you very much. I would personally like to sincerely thank the Abenaki Nation for having thought about a great project, the Marche Amun. I would like to greet everyone here this afternoon.

In my opinion, Bill C-3, which merely complies with the British Columbia Court of Appeal decision in McIver versus Canada, only goes a small way toward eliminating the discriminatory aspects of the Indian registration rules. Moreover, I think that the department is using this bill to do as little as possible about the problem. The department is moving too quickly, and there may be serious problems as a result in the short, medium and long terms.

The members around this table have an incredible opportunity, and you should use it to entirely eliminate all the discriminatory aspects of the Indian Act. It is particularly fortunate that the BC Court of Appeal ruling in a way prevents you from correcting those flaws. I urge you to help me, to help us, those taking part in the Marche Amun, to write a new page in the history of the First Nations and the aboriginal peoples of Canada. Let us put an end, once and for all, to the discrimination that has existed for too long a time already.

In history, gender-based discrimination was brought in, without our asking for it, in 1868. Legislative provisions passed at that time provided that Indian status could be passed down only through the male line. You know how it works: when an aboriginal man married a non-aboriginal woman, she became an Indian and so did her children. But when a woman, such as my mother and our grandmothers, married a non-aboriginal man or an aboriginal man without status, she lost her aboriginal and treaty rights. So did her children. In the language of the Indian Act, she would lose her status and also be evicted from her community and her territory.

It is sad to see that women are still paying the price in 2010, as we speak. Aboriginal women continue to be victims of discrimination based on gender—this is the case of Kim Arseneault, whom my colleague will introduce to you in a few minutes—and that discrimination exists in a number of areas.

Such discrimination violates the Canadian Charter of Rights and Freedoms, as Ms. Gabriel mentioned. I would add to that certain conventions that Canada has signed and is not adhering to: the American Declaration of the Rights and Duties of Men, the International Convention on the Elimination of All Forms of Discrimination Against Women and, in particular, the Convention on the Rights of the Child.

Yes, Mr. Lemay, there are many people working hard to come to speak with you today.

On May 4, a symbolic event will begin. A group of women will be walking 500 kilometres from Wendake to Ottawa, to Parliament Hill, to deliver a message to Prime Minister Stephen Harper and his Minister of Indian Affairs and Northern Development, Mr. Strahl.

Each day, we will be repeating the same message to everyone in Quebec, to all Quebeckers, and also to Canadians. We want to say that Canada is bringing in legislation to reinforce—and I mean reinforce—gender inequality, and we are demanding that Canada eliminate that kind of discrimination.

As to the obligation to reveal the name of the father of our children when they are born, it is not something that is imposed on any Canadian women. If she brings her child to the emergency department of the hospital, no one will ever ask her to prove the identity of the father before looking after her child. That is what has been happening to us in our communities since 1985. Then there is the right of women and their children to obtain Indian status. Those categories must be eliminated.

I would also remind you that there is ongoing discrimination with respect to band membership for these women and their children. Suppose that certain communities have restrictive membership rules. If Bill C-3 is passed, women and children in that situation will not be able to go back to those communities. In addition, the government has refused to allocate more money for the increase in the registration for Indian status. Women are once again paying the price. They are still suffering from the harm done in 1985. Bill C-3 will create or recreate the same reprisals that have taken place since then.

What breaks my heart, as the mother of five children—including one that is more Indian than I am, one that has no status, and that really illustrates the situation—is that Ottawa always has the exclusive right to determine who is an Indian and who is not. I am 38, even though the act considers me to be 17. I think that there are people in the communities who can make this determination.

In closing, I want to say that if Bill C-3 is passed as it stands, the discrimination will continue. It will continue and I do not want to be a party to that. And I would ask that the respected members of this committee refuse as well to be a party to this injustice.

On behalf of myself and my children, I want to say that you have an opportunity to make a difference. Please do the right thing.

Thank you.

April 20th, 2010 / 3:50 p.m.
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Grand Chief Lucien Wabanonik Grand Chief, Assembly of First Nations of Quebec and Labrador

Thank you, Mr. Chair, for giving us a bit more time. I'm sure you understand that this is an extremely sensitive issue for our people and our nations. We appreciate your flexibility with regard to the time allotted to us.

Ladies and gentlemen, members of the committee, on November 24, 2009, in the wake of the short engagement process set up as part of the initiative seeking to modify the registration program with the Indian Registrar, Chief Ghislain Picard of the AFNQ wrote to the Minister of Indian Affairs and Northern Development to suggest that he extend the suspension period of the declaration of invalidity handed down by the Court of Appeal for British Columbia on April 6, 2009.

The chiefs of the first nations of Quebec and Labrador were summoned to a brief meeting on November 4, 2009, with government officials who clearly did not have a proper grasp of the issue. In Chief Picard's opinion, this meeting did not fulfil the Government of Canada's duty to consult with the first nations, because consultation is really what we are talking about here.

The federal government was supposed to consult us on this important issue. However it would appear that the period granted to Parliament for such an important matter is somewhat artificial. It would seem to be in the government's interest to use certain bogus constraints to shirk its responsibility for eliminating all discriminatory distinctions contained in the registration rules for Indians and for formulating, in collaboration with the first nations, a plan designed to implement these modifications.

In any case, the new deadline of June 5, 2010 should not be used as an excuse to only partially eliminate one single discriminatory distinction among those that still exist in the Indian Act or to refuse to prepare for, in conjunction with the first nations, the many effects that the changes to the registration rules will have. But at the same time, we believe that the eight remaining weeks between now and when the House rises should be sufficient to allow Parliament to improve 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), as concerns the requirements of the Canadian Charter of Rights and Freedoms.

We believe that these eight weeks should be sufficient to allow the government to reach an agreement with us concerning an implementation plan designed to manage the influx of new arrivals in our communities. Furthermore, if, despite the good faith and efforts of all the parties involved, eight weeks turns out to be insufficient, the government should take advantage, in a timely fashion, of the openness shown by the British Columbia Court of Appeal in its April 1 ruling, and request another extension of the suspension period of the declaration of invalidity.

If Canada is truly the champion of justice and fairness for all, then Parliament must make the necessary changes to Bill C-3 to ensure that the brothers and sisters rule is eliminated from the registration rules, along with the distinction that was ruled illegal in the McIvor decision.

During the brief encounter between the chiefs of Quebec and Labrador and the department officials as part of the engagement process, it was impossible to obtain any kind of information on what the government, thanks to its recent experience with Bill C-31, intends to do to mitigate the problems caused by the application of the proposed changes to the registration rules. We concluded that the minister had not yet addressed the question when drafting of Bill C-3 began last fall.

The implementation of Bill C-3 will create many problems, including problems accessing information for people targeted by the bill; problems arising from changes made to the registration rules and benefits accompanying Indian status; problems linked to the registration process and deadline; social and political problems integrating new entrants into first nations communities, on or off reserve; potential problems due to a limited job market, cultural differences or simply natural hostility in the face of an imposed decision; and finally, problems linked to the financial and other capacities required to integrate new entrants into the reserves and provide them with the programs and services to which they are entitled.

It is thus essential that the Department of Indian Affairs agrees with the first nations on a road map for implementing the amendments to registration rules before Bill C-3 is adopted. This committee can ensure that the government does so. It is equally essential that a provision requiring the ministers to regularly report to Parliament on the issue of the implementation of the amendments to the registration rules is added to Bill C-3, with the specific issues this report must cover outlined there.

The first nations of Quebec and Labrador hope over time that not only are all discriminatory distinctions eliminated from the Indian registration rules, but that these rules are no longer needed. The first nations hope to recover the complete authority in matters of membership they enjoyed before the middle of the 19th century. This presupposes the political and economic autonomy of first nations favoured by the recognition of our traditional rights and by the treaty process. It is only once these objectives are attained that article 33 of the United Nations Declaration on the Rights of Indigenous Peoples will be fully fulfilled. Indigenous people have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

For the time being, the first nations of Quebec and Labrador ask the committee to take the first two following measures and to encourage the government to take the third: one, improve Bill C-3 to eliminate all Indian registration rules that create discriminatory distinction; two, introduce a provision into Bill C-3 obliging the government to report to Parliament on the implementation and the amendments of the registration rules; three, create with first nations a plan to implement the amendments to the Indian registration rules introduced with Bill C-3.

That finalizes my presentation, Mr. Chair. Thank you for listening.

April 20th, 2010 / 3:30 p.m.
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Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Chair, I'll soon be making a proposal—I'll wait for my Liberal colleagues first—that the clause-by-clause consideration of the bill be postponed to next Tuesday. I'll explain why later. I realize there are many people with us now and that is something I regret. I respect the witnesses, and they have only five minutes to make a statement concerning a bill that is key to their future, not ours, theirs.

With all due respect, Mr. Chair, this process is beginning to weigh on me. I would like the witnesses to have the time they need to explain their positions. If ever we do not have time to ask them questions, we could continue Thursday during the first hour. The witnesses are here and I know that some of them have worked very hard to prepare for today. This is probably one of the most important bills we have debated, along with Bill C-8, An Act respecting Family Homes situated on First Nation Reserves and Matrimonial Interests or Rights in or to structures and lands situated on those reserves, and Bill C-21, An Act to amend the Canadian Human Rights Act. So I think we can take another day or two. I'm ready to listen to the people here today; we have until 6:30 p.m. If we're not finished, then we can continue Thursday afternoon. Five minutes is not enough to discuss section 6 of this 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).

Mr. Chair, I am not questioning your good faith. I know you want to do the right thing. I have the utmost respect for that, but there are essential aspects. The members of the committee have questions and so do the witnesses. It is their future that is at stake here, and I say this with all due respect.

April 15th, 2010 / 5:20 p.m.
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Lawyer, Barreau du Québec

Renée Dupuis

I wanted to tell you that we have taken note of the amendment you suggest. As regards the type of amendment we consider necessary, it seems important to us, if we want to take action on the judgment, that the amendment ensure consistency in the act and that it isn't a literal response to Ms. McIvor's personal situation. Otherwise, rather than talking about Bill C-3, An Act to promote gender equity in Indian registration, we'd be talking about Bill C-McIvor. However, we believe that a Bill C-McIvor would create a new discrimination and would not resolve other existing discriminations.

We could come back once we've analyzed your amendment.

April 15th, 2010 / 5:15 p.m.
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Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

I'm going to try to be precise. First, I want to thank Ms. Dupuis, the Barreau du Québec, the Canadian Bar Association and Ms. Hodgson-Smith.

I thank the people from the Barreau du Québec, who have made us aware of a problem. We are going to re-examine clause 9. I also very much appreciate the position of the Canadian Bar Association.

I'm going to read you the text of an amendment. I don't need a response from the Barreau du Québec or the Canadian Bar Association today. However, if possible, I would like you to send us a written opinion on a possible amendment.

Do you believe, as I do, that, if we pass Bill C-3 as it stands, the discrimination against aboriginal women will continue? We won't have resolved the discrimination problem and it will continue. Do you agree with me? That's perfect.

Now I'm speaking to the representatives of the Canadian Bar Association. If we amended paragraph 6(1)(a) to read: “or if that person was born before April 17, 1985 or was a direct descendant of such and such a person”, do you believe that might solve the discrimination problem? That's what I understand from your recommendation, which appears on page 9 in French and in English, with regard to the amendment to Bill C-3.

Do we agree? If possible, I would like you to analyze that. I'm not asking you for an immediate answer, quite obviously. However, would your recommendation be consistent with my recommendation or our possible recommended amendment?

I will close by putting another question to the representatives of the Canadian Bar Association. I wonder why you are proposing an amendment. You propose to delete the proposed addition of subparagraph 6(1)(c.1)(iv) to the Indian Act, and you then propose a number of interesting criteria. Wouldn't it be better to simply stick to your last recommendation?

There, I hope I didn't lose you, but I would like to hear what you have to say on the subject.

April 15th, 2010 / 4:35 p.m.
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Renée Dupuis Lawyer, Barreau du Québec

Thank you for allowing me to speak, Mr. Chairman.

The Barreau du Québec's specific comments on Bill C-3 in response to the McIvor judgment concern a certain number of clauses, but the two main clauses concern the proposed paragraph 6(1)(c.1) and clause 9 of the bill. We have noted that there may be problems of concordance in clause 2(1) of the bill, that is to say that, in the French version, “une personne” is replaced by “toute personne”. And, from a reading of the present act using this new wording, we believe there are problems of concordance that must be reviewed. We therefore suggest that concordance is assured for this expression in all other sections of the Indian Act.

With respect to clause 2(2), we note that the proposed amendment restates the present test, in both the English and French versions, and we wondered about the purpose of this clause. In a very substantial manner, in paragraph 6(1)(c.1) which would be added to the Indian Act and which, according to the objective pursued by the government, is to serve to eliminate the discrimination identified by the Court of Appeal for British Columbia, we note that this new paragraph concerns the children of a marriage born before April 17, 1985, which introduces a distinction between children born before and after that date. In addition, the amendment concerns only the children of a union formalized by marriage. The bill does not correct the discrimination against children born outside marriage prior to 1985, more particularly children born outside marriage to an Indian father and a non-Indian mother, depending whether they are boys with status under subsection 6(1) or girls with lesser status under subsection 6(2).

The Barreau also wonders about the proposed subparagraph 6(1)(c.1)(iv), which, to obtain enhanced status, appears to require that a child must be, himself or herself, a parent. We believe that this element should not be added as a condition for change of status, since introducing this condition creates discrimination between the members of a single group depending on whether or not they have had children. Whether or not a person has had children should not be a condition for enhanced status. In fact, the proposed subparagraph 6(1)(c.1)(iv) merely enhances the status of children who already have children. The Barreau du Québec suggests that the question of grandchildren be handled separately. We submit that the bill should offer the option of granting status in accordance with the provisions of subsection 6(1) to all children, whether or not they are parents.

Furthermore, the Barreau—

April 15th, 2010 / 4:30 p.m.
See context

Conservative

The Chair Conservative Bruce Stanton

Order.

We'll start the second round.

Welcome to all the witnesses.

On the study of Bill C-3 we have three presentations. In order to get through questions--I don't know if we have given you this in advance--if you could shorten your presentations to seven and a half minutes as opposed to ten, that would be helpful. It would at least give us time to get through one round of questions. I hope that's not too great an imposition.

We'll begin with

Ms. Nicole Dufour and Ms. Renée Dupuis, from the Barreau du Québec. Go ahead, please.