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.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon, Chief Wilson-Raybould, and Ms. Campbell. I also want to acknowledge the national chief, who is with us today.

Chief Lonechild, it's good to have you with us as well, and of course all of those who are listening in.

When I listened to your comments, certainly I found little to disagree with, but I'd like to clarify a number of points that you raised.

Do you feel that Bill C-3 adequately responds to the McIvor decision at the B.C. Court of Appeal? I think our first bit of business is to make sure that the government has adequately responded to that particular decision.

In your view, after having had a look at it--and believe me, I'm no lawyer, and all these different categories sometimes can get a bit challenging--and from your analysis of it, does the bill that we have in front of us adequately respond to the B.C. Court of Appeal's decision?

[Chief Jody Wilson-Raybould]

Thank you, Mr. Chair.

On behalf of the Assembly of First Nations, I would like to thank you, Chair, and the members of the committee for welcoming me here today to speak on behalf of Bill C-3.

I would like to acknowledge Karen Campbell, who is from our offices, and acknowledge as well the national chief and my fellow colleague, Regional Chief Guy Lonechild.

I'll briefly introduce myself. My name is Puglaas--Jody Wilson-Raybould--and I come from the Musgamagw Tsawataineuk people of northern Vancouver Island. I am registered under subsection 6(1) of the Indian Act, and I am a member of the We Wai Kai Nation, formerly known as the Cape Mudge Indian Band. I am on council for my home first nation and I am the regional chief for the AFN from British Columbia. For the AFN I co-lead the portfolio on supporting first nations governments, and within that portfolio is the subset of citizenship and nation building.

I know this committee has already heard a lot of the background information with respect to McIvor, and I was pleased to see that Sharon herself appeared here two days ago, so I won't go over that background information. What I wish to provide to the committee today are some general observations on what it means to belong to a first nations community and a vision for the future of first nations that goes beyond the determination of status and membership under the Indian Act to one that recognizes the authority of our first nations across Canada to determine our own citizenship and our rights and responsibilities from that citizenship.

Since the original trial decision in McIvor, I have heard from a number of first nations people, both men and women, who are genuinely excited about the prospect of becoming registered under the Indian Act as a result of the proposed amendments. At one level this is about correcting discrimination, but at a more fundamental level it is about belonging and about association with a group. For policy-makers and administrators, the issue of increasing members might be viewed simply in terms of budget pressures, service provision, and access to resources; at its core, however, this is about community, and this is powerful. Our people are our greatest resource.

As it was in the 1980s regarding Bill C-31, it is a shame that the debate over registration sometimes solely becomes focused on scarce and limited financial resources and tax exemptions rather than the benefits of inclusiveness and self-determination.

In British Columbia, as in other parts of the country, our nations are developing our own models of citizenship. The nation decides who is a part of that nation, who is a citizen, notwithstanding the legacy of the Indian Act and membership. In the context of modern claims, the determination of citizenship is a fundamental conversation that results in the collective setting the rules and the individual electing to be a citizen or not. Citizens are beneficiaries of treaties and can participate in the political institutions created through the treaty or agreement, but--and more importantly, for the collective--in exchange they are subject to the obligations of citizenship.

In announcing the proposed amendments to the Indian Act, Minister Strahl also announced an exploratory process centred around registration, membership, and citizenship issues. I congratulate the minister on this initial step and commitment, but we can go further.

A discussion of citizenship within the broad context of nation building would be evidence of a fundamental shift in the relationship between our nations and the crown, consistent with the spirit of intent of our historic treaties, and necessary to conclude modern land claims arrangements with nations that enjoy unextinguished aboriginal title and rights. It reflects the beginning of a healthier and more mature relationship between our peoples and the crown, not only with respect to the determination of citizenship outside of the Indian Act, but also to govern through our own institutions of government, with appropriate jurisdiction and authority outside of the Indian Act. This discussion necessitates going beyond exploration and information-gathering on a wide range of issues.

There are many opportunities for first nations in this country, but there are necessary prerequisites before our nations will fully realize these opportunities.

First and foremost, there is a need for appropriate governance, which includes, of course, the determination of citizenship. There is also a need for fair access to lands and resources so that our first nations economies will be viable, with adequate own-source revenue generation, power to support critical aspects of our governance, and the provision of programs and services.

In addition to appropriate governance and lands and resource settlements, we of course need well-educated and healthy citizens. Our citizens, perhaps more than any other Canadians, are required to participate in decision-making around our own very existence and future.

Given the colonial legacy with Canada and before significant and fundamental change can occur in our communities, there is a requirement for public votes and referendums. To put it another way, to become fully decolonized we need to vote in favour of change, so we need a citizenry that can not only participate in the workforce and become active contributors to our own society and Canadian society generally, but also a citizenry that can engage in a serious conversation about social change and be part of that change. Ultimately, it will be our people's recognition of themselves as citizens of their nations and not as Indian Act registrants or members of bands that will mark the transformation of our nations.

This, of course, poses many challenges, not the least from those leaders and those in our communities who have internalized the Indian Act's identity and are overshadowed by the administrative determinism established through this colonial ordinance. Stated another way, for some first nations people, their identity has become intertwined with the colonial definition of “Indian” under the law-invested statutory rights.

Turning to Bill C-3, the AFN supports any amendments to the Indian Act that would rid it of discrimination. Discrimination in any nature or form is not acceptable, this notwithstanding that many of the chiefs and the communities they represent have not gone through the process to establish citizenship rules beyond the Indian Act or Indian Act membership codes, and are very concerned about the potential financial implications of implementing Bill C-3.

It will be essential that adequate resources be made available to first nations to avoid any further hardship in first nations communities and for our citizens, regardless of where they reside. There must be a realistic picture regarding additional funding requirements on the ground.

The McIvor case was started by our people. Sharon was supported by our people, and we continue to support the efforts of all our people to end discrimination wherever it may be found. I am fully aware that other witnesses before me have called to end all discrimination that exists under the Indian Act and would like the committee to broaden the scope of the bill. We support these aspirations. I am also advised that any expansion of the bill's purpose to go beyond addressing gender discrimination would probably require a new bill to be introduced, thereby delaying the rectification of gender discrimination. At the very least, if the committee is not able to go beyond gender discrimination issues in this bill, this committee, I respectfully submit, should assure itself that the amendments are being made to address all gender discrimination issues in the Indian Act and not just those applied in the case of Sharon McIvor.

In closing, long-term solutions do not lie in further tinkering with the Indian Act. Our nations have an inherent right to determine who is and who is not a citizen of our nation in accordance with our own laws, customs, and traditions. This is fundamental to self-governance. The real and ultimate solution to addressing ongoing discrimination in the Indian Act lies with full recognition of first nations' jurisdiction over our own citizenship. The contribution that will be made by our full citizenry, when legally recognized through appropriate citizenship processes and in part supported by interim legislation such as Bill C-3, will be profound. While some registrants or citizens of our nations may be somewhat apprehensive to return, and in some cases may initially be made to feel unwelcome by those who have an interest to exclude them, we must not forget that we are family. We will have connections and we have potential for making great contributions to our nations.

The excitement in the eyes of those who identify with being part of our nations but who, through no fault of their own, have been excluded legally from their inheritance is empowering, and it is a sign of better times to come as our nations take full control of our lives and our future. It starts with determining who we are.

Finally, Parliament is in a unique position to work in partnership with first nations to undertake a comprehensive review of the Indian Act and its related policies and regulations, to examine their intrusion into first nations jurisdiction, and to put forward mechanisms for recognition of, and staged and supported implementation of, first nations jurisdiction. We hope that you will support this critical work of supporting first nations governments.

I will end as I began: this is part of a broader process that we recommend around indigenous nation building and rebuilding.

Thank you for your time. Gilakasla.

I would happy to answer questions from the committee. Thank you.

[The Chair, Conservative, Bruce Stanton]

Good afternoon, ladies and gentlemen members, witnesses and guests.

We are starting the ninth meeting of the Standing Committee on Aboriginal Affairs and Northern Development. On the agenda, pursuant to the Order of Reference of Monday, March 29, 2010, we are considering 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, ladies and gentlemen, we welcome our continuing consideration of Bill C-3.

We welcome the Regional Chief of the Assembly of First Nations for British Columbia, Chief Jody Wilson-Raybould. With her is Karen Campbell, who is the senior policy analyst, strategic policy, planning and law.

You've probably done this before, so you know the drill.

Have you done it before?

[Betty Ann Lavallée]

You're correct. We're prepared to support Bill C-3, based on the fact that we have been told there will be a supporting process that will give us the opportunity to have input from the ground up. We only had measured input on this document because of the timeframe and the amount of funding. But we believe that with this parallel process we can go a long way toward not just resolving the issue of citizenship, but through working with our other national political organizations, reconstituting our historical nations in the hope that some day we won't be having this discussion again.

[The Chair, Conservative, Bruce Stanton]

We're just about wrapped up. I have one summary question for Ms. Lavallée, just so we completely understand where we're at in the process. I heard some measured support for the initiative here, but later there was a qualification that really rejected many of the proposals in the bill.

Are you in a position to see that the measures proposed by Bill C-3, recognizing that they're not a complete fix, but if they take us part of the way to realizing the inequities in the Indian Act and the fact that this other process in front of us will explore many of the other concerns...? I think even the bill anticipates that there are other issues around registration and membership that need to be addressed. Is CAP giving tentative support for these measures on the basis that this other process will continue that evolution?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Okay, great.

Ms. Lavallée, I just want to point out something for everybody. In the recent court of appeal extension consideration, the court actually pointed out that:

Under the circumstances, we might well have acceded to a request for a longer suspension of our declaration had it been sought. The Attorney General's factum, however, sought only a 12-month suspension of any declaration of invalidity.

So in fact we could have had the time to do the appropriate work to address broader discriminatory measures, if the government, or in this case the Attorney General, had only asked for an extension. I just wanted to set that out, because people are saying we had to act within the 12 months when in fact the courts might have considered a much longer time, because they recognized that it was desirable for government to consult with first nations people before proceeding with amendments to the legislation. So it was possible that we could have actually done a much better job of this, by the court's own statement. I just wanted to put that on the record.

I want to turn to your discussion paper and thank you, because I understand that members did receive this. You pointed out a couple of important things in here and I want to refer to the Powley decision. In here you state that the Supreme Court “has already stated in Powley that Métis identity cannot be determined by blood quantum. It seems no more appropriate for Indians as a means of identification than it is for Métis.” That's on page 14, just before the conclusion under the heading “True Partnership for Change”.

I think that's a valid point, because one of the things we've heard fairly consistently from witnesses is that it really isn't up to the government to be determining this with some arbitrary criteria. I thought this was an interesting section of the paper, because not only did you identify some discriminatory practices that are still in place, but you also identified the very issues around blood quantum and who gets to determine citizenship. I just want to acknowledge that it was a really important point you raised around who is determining citizenship and why is there this arbitrary blood quantum. As you well know, many of the nations say, “Butt out. It's up to us to determine who has citizenship”. So I'd like you to comment on that.

Then I also want you to comment on your recommendation. I just want to be clear. You're suggesting that we actually abandon what's in Bill C-3. There is the person in the first part and the second part and third part. Instead, you are suggesting that we take the original 1985 bill and take paragraph 6(1)(a) of the Indian Act and insert the words, “or was born prior to April 17th, 1985, and was a direct descendant of such a person”. So you're suggesting that we abandon subparagraphs 6(1)(c)(i), (ii), (iii), (iv) and everything else, and just use your proposed amendment. That's what you're saying. So do away with all these other qualifiers that they've put in here.

I think you've already acknowledged that it won't deal with the broader discrimination. It won't deal with every case of discrimination, but in your view—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I am going to jump in.

I would like to settle one issue right away. I don't think extensive consultations are needed on Bill C-3. And my reason for believing that is simple. The question is whether this bill is discriminatory or not and whether the Indian Act is discriminatory or not. And the answer is yes.

Even if I went all across Canada to meet with the 78 communities, they would all tell me, just as Ms. McIvor has, that this bill is discriminatory and will perpetuate discrimination. Once that has been established, we have a problem.

I did not understand your amendments. With all due respect, Ms. Lavallée, you were speaking quickly when you discussed the amendments you are recommending to Bill C-3.

Could you tell me which clause of the bill you would like to see amended?

[Todd Russell, Liberal, Labrador, NL]

I just want to follow up with my colleague Larry.

I think we fundamentally agree with your premise about reconstituting nations, that it's an issue of citizenship. It's a principle that has been certainly affirmed under the United Nations Declaration on the Rights of Indigenous Peoples, which we hope will be affirmed by our country at some point.

I think there's also some understanding that the Indian Act itself is a discriminatory piece of legislation. We know that. Bill C-3 does not speak to scrapping the Indian Act. What Bill C-3 speaks to is facets of discrimination that exist within this discriminatory piece of legislation. CAP was an intervenor supporting Sharon McIvor and her arguments that were made, as I understand it.

So if we could end the gender discrimination under the Indian Act with amendments to Bill C-3, would that be something you could agree with? If we could end the gender discrimination under the Indian Act by amending Bill C-3, in that framework, is that something CAP could agree with?

[Betty Ann Lavallée]

Well, not just urban--isolated, rural, remote.

It's going to put a demand on our provincial territory organizations to be able to deliver programs and services throughout the provincial areas and to be able to provide the basic needs in some cases.

The reality is it doesn't matter what amendments you make to Bill C-3, it's not going to change the discriminatory provisions of Bill C-3. This is not an issue of labelling people. This is an issue of reconstituting nations. Bill C-3 is only going to be a temporary measure, because discrimination has occurred under the Indian Act, under the restoration provisions, since the Indian Act was conceived. You've got a hundred or more years of history to undo.

The fact of the matter is, again, we have people sitting in Ottawa and in courts making decisions without actually going out to grassroots people and asking them what they want. That goes against what the Supreme Court of Canada has consistently said. You have to consult and accommodate the peoples in the community.

We don't want another Indian Act. We want to see our nations--historical nations, our 73 nations--reconstituted, where you're a member of the nation.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Mr. Chairman. You're doing a good job, as always.

Thank you all for coming.

Good to see you again, Ms. Lavallée.

Conrad, good to see you. As the former president of a friendship centre, you know I carry your case here in Ottawa a lot. It's amazing that you continue to do what you do, considering your budgets have been frozen for, I don't know, 17 years or something. It will be great to get you some more money.

I'm assuming that we have a continued agreement this afternoon, basically, with the premise that Bill C-3 would enfranchise maybe 45,000 more people. But there are really a couple of hundred thousand who are gender-discriminated because of the gender of one of their parents or grandparents--a relative. If possible, you would like us to amend to include everyone so there's no gender discrimination. It's a fairly simple right.

In fact, Ms. Lavallée, you gave some of the steps that need to be added to do that. My question for you is if there were a couple of hundred more status Indians in Canada created because of this amended bill, what effect would that have on your organization, if any?

[Karen Green]

Yes, I just wanted to say that status membership is a legal construct created by the Indian Act. We're trying to deal with a citizenship issue--who are the citizens of our nations?--through language that's very difficult and divisive. It is a very imperfect instrument for trying to have this conversation. Does it mean that we should be immobilized? No, but it may not be the best way to have the conversation. What has happened, even among ourselves, is that all of these distinctions have been created because of this law.

We're trying to move forward. We know what happened with Bill C-31. We know what might happen with Bill C-3. And we have to find a way to move forward so that we can live without those distinctions in our minds, because they have been divisive. They haven't served any purpose other than to streamline, for funding purposes, who's an Indian and who isn't.

[Jeannette Corbiere Lavell]

I would like to go to back to prior to 1876, when our people, our chiefs, and the leadership at the time had the right to determine who their people were and who their citizens were. We could recognize that. They signed treaties as sovereign nations, with all the applicable rights that go along with being a nation, including the right to determine their citizens and the right to their language, history, and culture. You know, that should be there and recognized. It was changed without our participation.

You said that it wasn't until 1970, but even in 1970 we did it, because we had become aware of Canadian human rights legislation and the Canadian Bill of Rights. We found out about these things as we went into the education system, and we realized that something, perhaps, could be done. We didn't all necessarily become lawyers, but I think we stepped into our traditional role of taking that step to protect our communities. You put yourself in a position so that if it's your path, your direction from the creator, this is what you have to do.

I think that is happening again. Our women are determined to ensure that our people continue to exist. The way Bill C-31 is right now--and I think Bill C-3 will just slow that process down--will still result in the same mistake, which is no more status Indian members on some of our reserves. I don't think we want to go through that whole process again, so maybe now is the opportunity to do something about it.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon. It's great to have you with us, Ms. Lavell and Ms. Green. It's always a pleasure. And I do want to acknowledge your long journey as well, and the contributions and struggles you have made in the cause for equality.

A couple of questions are arising from what you have said. Would it be fair for me to say that NWAC, which is also studying Bill C-3, acknowledges that there would be continued gender inequality or discrimination under the Indian Act? Would that be a fair statement?

[Jeannette Corbiere Lavell, President, Native Women's Association of Canada]

Meegwetch, Honourable Chair.

[Witness speaks in Ojibway]

My Anishinabe name is North Star, and I'm from the Wikwemikong Unceded Indian Reserve on Manitoulin Island. I would also like to acknowledge the territory of the Algonquin people.

Having said that, I would just like to take a minute and recognize your invitation for us to be one of the first presenters here. We recognize and appreciate that. Generally, we're usually at the end, but we do get the last word in at times.

While Sharon is here, I'd also like to say that we are thankful to her for all of her efforts. It is through her energy and determination and many times her own funding that we were able to see Bill C-3 come into being. It was through her sheer will this has come about. We recognize this and support her. She will be one of our achievers when we look back at our aboriginal history, along with all of the other ones she talked about who've gone on.

I think this is a really important time in our history. Having said that, I want to share with you that thanks to her, I have five grandchildren, two of whom have full status. My oldest grandson, Nigani, has full status, as does my oldest granddaughter, Autumn Sky. However, my three little ones, Kyana, Eva, Ulbriana, do not have recognition as members of my community right now. But hopefully we will be able to see this happen and I will be able to tell them that they are full members of my community, their grandmother's community, that they will be recognized and will be able to learn our language, learn our history, learn our ceremonies, and learn our culture, because that is who we are and it is very important.

This is the underlying issue in what we're talking about here. If any of you feel that connection to your homes, your homeland, if it's Canada or elsewhere, you know how important it is, and that's what we feel about our communities. Marriage should not have anything to do with it. I would just like to state that from the very beginning.

Just as a little side point, paragraph 12(1)(b) of the Indian Act did not come from us as aboriginal people. That was imposed on us from you know where. We would really like the opportunity to return to our traditions, to who we are as a people, our practices and customs, including having that respect and recognition for our women, remembering that it is our women who will ensure our future generations. That is our responsibility, to ensure that our nations will be here tomorrow and for many generations to come.

Right now, there have been studies done that show that in three years' time, one reserve in Ontario, the Scugog First Nation, will have its last status Indian born in 2013. Now what's going to happen to that first nation? If we continue the way we are going, that is what's going to happen to many others. I don't think any of us in Canada, whether aboriginal or not, will allow that to happen. We recognize that Canada is a great country.

I also want to say that the Native Women's Association of Canada consists of provincial and territorial organizations right across the country and we represent first nations, Métis, and Inuit women. We were created and we support the issue we are talking about here today.

As I said to Sharon, we do support all the work she has done, and we will continue to support her work in bringing about equity to eliminate any of that ongoing discrimination that is present within the current bill. I hope it will not be present in the next piece of legislation that comes about. I think all of you here, with our support--and our little push, perhaps--will make sure that for my grandchildren, the three I was telling you about, their recognition back into my community will have meaning. It will mean something to them. They can say that they have full recognition equal to their cousins, cousins who are descended from a male ancestor.

Right now that is not there, but hopefully we will be able to see that. It will be up to you to ensure that those three little girls will have just as many rights, that they are not lesser than, or that they will not be excluded.

I understand that's what Sharon is talking about. There should not be any more discrimination within legislation.

I was going to take you back through our history, but I'll make it brief. I know that time is going, and Sharon has already covered many of the definitions and all the descriptions.

I will just tell you that from 1876 to 1970, no one challenged the Indian Act. It was just a given. I guess that right, for us, to make changes in the legislation that was affecting us just was not there. We did try in 1970--I tried--and, as Sharon pointed out, lost by one vote. The time was just not right. We had most of the aboriginal organizations, especially the National Indian Brotherhood at the time, who opposed us. We lost by one vote.

Had the time been different, or had it happened now, I don't think the story would be the same. We are changing, and the time is right for us all to work together to bring about true equity, true justice, for all of us as Canadians and as aboriginal people within our community.

I was also going to say to you that because we didn't have a voice in the early seventies, we created our aboriginal women's organizations. Mind you, this is just recognizing the role we had. We actually brought it forward, and thank goodness, because we will not stop our struggle to achieve this equity until we follow the teachings of our grandfathers and our grandmothers--that is, to recognize that our children are gifts from the Creator. As mothers, as grandmothers, as great-grandmothers, we have the responsibility to care for them, to nurture them, to ensure that they have the rights and the benefits so they can grow into strong, wise, and protecting people. They will be our future. I think we can do it if we do look at this legislation.

Now, if we look at definitions within Bill C-3, it is contentious. I know there is a lot of work to be done. But I would just like to share with you my recent association and work with the Anishinabek Nation in Ontario. I was the commissioner on citizenship there, and we drafted our own citizenship law. It was unanimous in all the communities. We recognized that as long as you had one parent who was Anishinabek--within our description of Anishinabek Nation--you would be entitled to recognition and membership as citizens within the Anishinabek Nation. That would be within our own citizenship law.

It is workable because of the attitude right now—what is happening within government, in the throne speech, with the Prime Minister mentioning that Canada is looking at endorsing the United Nations Declaration on the Rights of Indigenous Peoples. This would be a great opportunity to also work with us as aboriginal peoples, as aboriginal nations, so that we can determine who our citizens are. That is our right as a nation and it would be much easier on the rest of the government if we had that right.

[The Chair, Conservative, Bruce Stanton]

I call the meeting to order.

We are resuming consideration of Bill C-3, an act to promote gender equity in Indian registration. We're delighted to have with us Jeannette Corbiere Lavell, who is the president of the Native Women's Association of Canada. She is joined by Karen Green, the executive director.

Because we have a full hour, we will proceed directly to Ms. Lavell's presentation.

You've done this before, of course, and it's great to have you back at our committee. You may make a ten-minute presentation, Ms. Lavell, and then we'll go to questions from members.

Ms. Lavell.