Gender Equity in Indian Registration Act

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

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

Sponsor

Chuck Strahl  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

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

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

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Gender Equity in Indian Registration ActGovernment Orders

March 29th, 2010 / 4:15 p.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I too would like to echo the comments by the member for Vancouver Kingsway that the member has presented a very well thought out presentation on Bill C-3.

It seems to me that Sharon McIvor has gone through a lot to bring things to where they are right now, when she should not have had to do any of it. These problems should have been rectified years ago. It was not until the Conservative government of John Diefenbaker that native people even had the right to vote in this country in the 1960s. Where have the governments been all these years?

The member certainly understands the issue better than almost anyone in the House. She has indicated that there is still going to be a problem with illegitimate daughters. The question I have for her is this. Does she feel that we are going to be able to deal with that issue of this particular bill at the committee stage?

Gender Equity in Indian Registration ActGovernment Orders

March 29th, 2010 / 4:10 p.m.
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NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I would like to thank the member for what all members have come to expect from her, which is a thoughtful, comprehensive, and well thought out speech to the House, as well as one that is very fair.

It seems to me that Bill C-3 deals with a very critical and important issue not only to the first nations of this country but to many Canadians who want to have a just and progressive relationship develop between the first nations and all Canadians, and progress for all bands across this country.

It also seems to me that substance and process are both engaged by this bill. Process, in particular, that the bill raises is the importance of consultation with first nations, the involvement of first nations, and the right of first nations to help shape a proper response to the very critical issue about the definition of who does and does not obtain Indian status in this country.

I would like the member to comment, if she would, on the importance of process, as well as the substantive issues engaged by this bill.

Gender Equity in Indian Registration ActGovernment Orders

March 29th, 2010 / 4:10 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I know the member for Abitibi—Témiscamingue works tirelessly on the aboriginal affairs committee and is very knowledgeable about the serious issues facing aboriginal communities across this country.

I do not believe that Bill C-3 would deal with all of the gender inequalities that are inherent in the current Indian Act. I had indicated in my speech that there is still a problem with illegitimate daughters. Illegitimate daughters have a different status, whereas illegitimate sons maintain their status. That is just one example of some of the challenges still in place in the Indian Act.

We have known unequivocally since 1973 that there are serious problems with the status provisions in the Indian Act. Here we are in 2010 picking at one small aspect of it. We need a comprehensive approach to status of citizenship.

Gender Equity in Indian Registration ActGovernment Orders

March 29th, 2010 / 3:50 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I am pleased to speak to 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). It is a long title for a short bill. New Democrats will be supporting this bill at second reading.

It is important not only for the women and their children in Nanaimo—Cowichan but for the women and their children in British Colombia and across this country.

This somewhat technical bill is the result of a long-standing court case that Sharon McIvor had in British Columbia.

I am going to quote from the legislative summary because it deals with some of the technical aspects.The British Columbia Court of Appeal ruling gave rise to Bill C-3. The summary states:

The decision dealt with the case of Sharon McIvor, who had lost status when she married a non-First Nations man and had been reinstated in 1985 under paragraph 6(1)(c) of the post-Bill C-31 Indian Act. Her son, Jacob Grismer, having only one First Nations parent, acquired status under subsection 6(2) but was unable to transmit that status to his children owing to his own marriage to a non-First Nations woman. In contrast, persons in the male line affected by the 1951 double mother rule, which legislated loss of status at age 21, had been reinstated for life under paragraph 6(1)(c) and were thus able to transmit status to their children whether or not they married out. The Court found that this circumstance placed persons in Jacob Grismer's position at a disadvantage amounting to an unjustified section 15 Charter violation, and issued a suspended declaration of invalidity of paragraphs 6(1)(a) and (c) of the Act to allow Parliament to amend the Act before 6 April 2010.

When we talk about paragraph 6(1)(a) and 6(1)(c) and subsection 6(2), it gets very confusing and convoluted but it was an important ruling by the B.C. Supreme Court.

I want to put the whole discussion around citizenship and status in context and give the very big picture. I am going to start with the United Nations Declaration on the Rights of Indigenous Peoples.

Article 8 of the UN declaration states:

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural v alues or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 33 of the UN declaration states:

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

With respect to the UN declaration the Conservative government indicated in the throne speech that it would take the next steps. That is why it is important to read into the record some of the articles in the UN declaration because it sets the context for why discussions around citizenship and status are so important.

In terms of history, I am sure many Canadians are not aware that first nations from coast to coast to coast have a very long history of making their own citizenship and membership decisions.

In July 2008 the Assembly of First Nations and Indian and Northern Affairs joint technical working group outlined some history in a technical briefing paper. It indicated that early colonial powers relied upon first nations criteria to determine early colonial definitions of an Indian, including birth, marriage, adoption, residency, self-identification, kinship and community ties.

However, the consolidation of colonial legislation policy into the first Indian Act in 1876, which included legal definitions of the terms “Indian” and “statutory criteria” for who was and was not able to register as an Indian essentially laid the groundwork for the complete segregation from those who remained Indian and assimilation through the loss of status and existing rights.

The article goes on to talk about various changes, but I want to talk about other ones. The Gradual Enfranchisement Act of 1869 was the first law denying Indian status to an Indian woman who married out and which prevented her children from acquiring status. This provision was carried forward into the first Indian Act in 1876. From 1869 on, federal Indian legislation included successive Indian acts and introduced and solidified gender-based criteria within the definition of an Indian and in the treatment of Indian men and women.

This included the central role of patrilineal descent requirements and gender-based discrimination in the treatment of Indian to non-Indian marriages whereby Indian women who married a non-Indian lost their status and their children were not entitled to be registered. In contrast, Indian men who married non-Indians retained their status and their non-Indian spouse and offspring were entitled to be registered as Indians.

The article talks about the definition in 1876 and states:

In addition, the Act and subsequent amendments also continued and furthered the policy of enfranchisement, which became compulsory in a number of circumstances. For example, enfranchisement was automatic if an Indian became a doctor, lawyer, Christian minister, or earned a university degree.

Not only did gender discrimination become an integral part of the Indian Act from 1869 until the present day, but there was an enfranchisement policy that if first nations decided to get an education, they lost their status.

The 1951 amendments to the Indian Act further entrenched gender-based criteria in the definition of an Indian and ineligibility for registration and some precedents set by earlier Indian acts continued to prevail.

For example, Indians were defined as male persons of Indian blood and their descendants and wives. A woman derived her status through her father and then through her husband. If she married a non-native, a Métis, or a non-status Indian, she lost her status. Since children derive their status through their fathers, her children and future generations would also be ineligible to register.

The child of an unmarried registered mother would have status unless it was demonstrated that the father of the child did not have status. People who received or whose ancestors received land or money scrip were not considered Indians and therefore not eligible to be registered.

There is a long, long history of many attempts to limit from the outside from what was a colonial government and then turned out to be a patriarchal government later on, who would be considered first nations, or in those days Indian, in this country. Today we are debating a piece of legislation that very narrowly addresses one aspect of that discriminatory practice that became inherent in the Indian Act.

I want to touch on a couple of other things in the history. In 1961, there was an amendment to end the compulsory enfranchisement of men or bands. The rules indicating that if they had an education they no longer could be enfranchised were removed in 1961. This is how long the fight for equality has been going on.

In the early 1970s Jeannette Lavell and Yvonne Bédard challenged the discriminatory language of section 12(1)(b) of the Indian Act. Both women had lost their Indian status because they had married white men. The Supreme Court ruled that the Indian Act was not discriminatory as the women gained the legal rights of white women at the same time they lost their status as Indian women. In the 1970s the courts seemed to be saying that it is better to be a white woman than a first nations woman.

This continued to have devastating consequences for women. Indian women who would later marry a non-Indian would lose their status as would the children of their marriage. These disenfranchised women were prohibited from residing on reserve, inheriting family property, receiving treaty benefits, participating in band councils and other affairs of the Indian community, and being buried in cemeteries with their ancestors. Not only did they lose their status, but they also lost the right to be part of their cultural and linguistic community. Many of these women or their ancestors had been leaders in their communities.

This of course was in stark contrast to first nations men who could marry whomever they desired with impunity. In fact, a non-Indian woman who married an Indian man would gain Indian status. According to the Royal Commission on the Status of Women, approximately 4,605 Indian women lost their Indian status by marrying white men between the years of 1958 and 1968.

In 1981, Sandra Lovelace, a Maliseet woman from Tobique—Mactaquac, forced the issue by taking her case to the United Nations human rights committee, contending that she should not have to lose her own status by marriage. Of course, this subsequently led to what is now known as Bill C-31 from 1985. I am going to come back and touch on that in just a moment because, although we are discussing Bill C-3, there are some lessons to be learned from Bill C-31 from 1985.

In the current context, what we have is a very narrow attempt, based on the B.C. Supreme Court decision, to deal with some gender inequities in the Indian Act. I know a number of members in this House were present for the debate on the repeal of section 67 of the Human Rights Act that now allows first nations members to file human rights complaints on a variety of issues. At the time, witnesses came before the Standing Committee on Aboriginal Affairs and Northern Development to say that what we are in effect doing is beginning to make changes to the Indian Act on a piecemeal basis, and what we can end up with is unintended consequences by not taking a step back and having a more holistic approach to the whole Indian Act.

When we start tinkering with one section, we often do not know what the impact will be further down the road, and I am going to come back to Bill C-31 in that context. However, regarding the current context and what this bill does not deal with, the band council of the Wabanaki Nation has provided a briefing document that talks about the fact that this piece of legislation does not deal with a couple of other problems.

It talks about the sibling rule, where at the time of birth, Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother. It goes on to say that a brother would have the right to be registered at the time of his birth since the Indian registration rules did not allow for the registration of illegitimate daughters of an Indian father and a non-Indian mother, but they did allow for the registration of their illegitimate sons. That is still a case that is outstanding and it is just one example of some of the challenges in the status aspect of the Indian Act which is not dealt by Bill C-3.

Again, I have indicated that New Democrats are prepared to support the bill at second reading; however, I would urge the government to take a much broader look at the Indian Act and its potential impacts.

I want to talk a little about resources, and this is where I am going to talk about Bill C-31 a bit. The Six Nations of the Grand River have prepared a citizenship briefing note, and it raises the spectre around the fact that Indian and Northern Affairs is pursuing an amendment to the Indian Act to respond to the directions from the B.C. Court of Appeal, to be in place by April 6, 2010.

First nations have not been adequately consulted regarding amendments, nor provided clear information on the impact on their communities, and Six Nations is not alone in raising concerns around the impact on the communities.

Just touching briefly on the issue of consultation, the government acknowledges that in this particular case, it has not done consultation. What it has said in that context was that the time was limited, that there was a mandate from the B.C. Supreme Court that it had to move forward. There are some very grave concerns that all aspects of this bill and its potential impacts have not been adequately examined. In fact, the government itself has been unable to give any clear idea of the impacts on communities.

What it has said is that it has estimated that there will be upwards of 45,000 people who could be reinstated as a result of Bill C-3, and that is from Mr. Stewart Clatworthy's report, who is a demographer and has done some work regarding this issue.

There have been no announcements and no budget allocations to deal with the increased administrative duty that comes attached to this bill. Back when Bill C-31 passed in 1985, The Globe and Mail reported that the government officers on two shifts a day were adding more than 500 people per week to the country's official Indian population. The system became swamped with more than 38,000 applicants seeking status for more than 76,000 people. That was in 1985 with Bill C-31.

Of course, we know that Bill C-31 had some other impacts on communities. Bill C-31 created additional problems. There was increased financial pressure on first nations to provide services to newly enfranchised members, and this was housing, health services, education, all of the kinds of services that come along with status.

It created divisions in some communities and families with an impact on community cohesion and identity. Part of that challenge arose because there simply was not enough money to allow people to move back to their home communities.

Just a reminder, some of these women who had married non-status men had been raised in their communities, had the cultural and the linguistic connections, and yet once they regained their status there simply was not enough housing to allow them to move home.

It did create divisions in some communities because of those very limited resources. It has led to a decline in status population and an increased restriction on the ability to transmit status to their children.

I want to turn on that point. There is something called the second generation cutoff in Bill C-31. And again, I would presume it was an unintended consequence because surely the government of the day would not have legislated assimilation, which is in fact what the second generation cutoff does in Bill C-31. The reason I am raising this in the context of Bill C-3 is again that unintended consequence.

In reassessing the population impacts of Bill C-31, Stewart Clatworthy prepared a report on February 26, 2001. Although it is a very lengthy report, I just want to quote from one part of it. Mr. Clatworthy assessed the continuation of the current rules of Bill C-31. He said that if Bill C-31 did not change, if it was the status quo, this is what we could anticipate as the impact of the second generation cutoff. He said:

The number of survivors and descendants who do not qualify for registration is expected to increase from the current level of about 21,700 to nearly 400,000 within two generations.

He was projecting a serious acceleration of the numbers of people who will lose status. He said:

After three generations (year 2074) individuals who are not entitled to registration are projected to form the majority of the population.

Many people have referred to this as legislated assimilation. I want to come back to what I started with when I indicated that prior to contact, and even in the early days of colonial rule, the colonial government of the day took first nations definitions of who was first nations from first nations.

In the context of Bill C-3, although I recognize that there was a court imposed deadline, it could have been an opportunity, once that court decision was issued, for the government to implement a full consultative process to look at all aspects of citizenship and membership.

This was an important opportunity to right some of the wrongs around the gender inequality but also to look at some of the unintended consequences of Bill C-31.

I look forward to having discussions in committee about the complex nature of status and citizenship. I am expecting that we will have some very excellent presentations before the committee that lay out some of the challenges.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:55 a.m.
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Bloc

Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, I am pleased to speak to 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).

The Bloc Québécois supports the principle of this bill designed to allow those who suffered discrimination because of Bill C-31 passed in 1985 to reconnect with their origins.

Indian registration is indeed the first step in gaining not only Indian status, but also peer recognition in the community.

Membership is a very important concept, as it entitles individuals to live on reserve, participate in political processes such as the election of band chiefs, own property on reserve and share band resources. It permits recognition of one's origins and the practice of one's culture.

In 1996, many questions were already being raised about the impact of Bill C-31. There were concerns about possible adverse effects on the debate about whether or not someone is a band member, an issue that is not only complex, but also an integral part of a person's identity. To illustrate this complexity, I will read two excerpts from a report prepared by the Library of Parliament in February 1996 and revised in 2003.

The debate over membership is complex and multifaceted. A consideration of the issue leads to questions about what it means to belong to a community, about who has the right to define community membership, and about the changing nature of the Indian population. For many years, externally imposed rules for status and membership have produced internal divisions within Indian communities. The impacts of Bill C-31 have further emphasized political, social and financial concerns and introduced new problems.

The growth in the number of status Indians living off reserve as a result of Bill C-31 has also increased the need to clarify the responsibilities of federal and provincial governments in providing and funding the services required. Problems have arisen, moreover, because many of the programs and funds for status Indians are available only to those who live on reserve. Some of those who wished to live on reserve could not, however, because of a lack of services, such as housing. Furthermore, despite the increase in services, many off-reserve Bill C-31 registrants did not know how to access them and thus did not take advantage of them. INAC has been criticized for not making this information more readily available.

These quotes show just how complex recognition is.

Does the implementation of Bill C-3 raise new questions about the implementation of Bill C-31? The Bloc Québécois thinks it does.

The McIvor decision forced the government to close the loophole created by the 1951 act and the unacceptable amendment to the 1985 act, which was itself trying to close the enormous loophole created by the enactment of the Canadian Charter of Rights and Freedoms.

The 1876 Indian Act stated that a woman marrying a non-Indian would lose her status and stop being an Indian in the eyes of Canadian law. The act and all of the legislation succeeding it marginalized women in aboriginal society and considerably diminished their social and political role in community life. Indian women were subject to a law that discriminated against them on the basis of their race, gender and marital status.

In 1951, the Indian Act was amended, but still marginalized women marrying non-Indians. Such women could not be registered on the new federal register of status Indians.

In 1985, after new provisions were added to the Canadian Charter of Rights and Freedoms, Bill C-31 attempted to close the loophole in the Indian Act, but women's children still did not have the same rights as men's children.

The federal government waited 25 years to introduce a bill recognizing the Indian status of individuals who had been discriminated against in the past. This issue is not just about First Nations and women. It is about equality and human rights. The Indian Act discriminated against women because it denied Indian status to the grandchildren of aboriginal women, but not to those of aboriginal men. Bill C-3, which was introduced today, will correct part of the problem.

If not for Sharon McIvor's hard work and perseverance, if not for the 2007 British Columbia Supreme Court ruling, which was confirmed by the British Columbia Court of Appeal on April 6, 2009, the federal government would never have introduced this bill.

The bill must go to committee so that various stakeholders can have an opportunity to express their opinions about the effect that Bill C-3 will have on their communities. The committee will also have to come up with a better plan for implementing the bill so as to avoid making the same mistakes that were made in 1985 with Bill C-31.

Count on us to help make that happen. The Bloc Québécois' excellent critic for this file, the member for Abitibi—Témiscamingue, will do everything in his power to ensure that the committee hears what everyone has to say.

At December 31, 2000, more than 114,000 individuals had acquired Indian status.

I will be speaking about Sharon McIvor's struggle, which is the basis for our debate.

In 1985, the federal government amended the Indian Act through Bill C-31, which gave Indian status to women married to non-Indians. However, in many cases, these women could not pass this status to their children.

In 1985, Sharon McIvor, a law student from British Columbia and descendant of the Lower Nicola Indian Band—her mother was a status Indian woman and her father a non-status Indian man—applied to regain her status. She obtained her Indian status but was told her children were not eligible.

In 1987, Ms. McIvor wrote a letter requesting a review of the decision. In 1989, she received a reply upholding the denial of Indian status to her children. She launched a court case challenging the Indian Act.

Shortly before Ms. McIvor's case was heard in court in 2006, the federal government agreed to restore status to her children. Ms. McIvor continued with the court case. In 2006, Ms. McIvor's case was first heard in court.

In October 2006, the federal government abolished the court challenges program, which had helped Ms. McIvor defend her case. It was the Conservative government that made this decision. With the elimination of the program, Ms. McIvor found it difficult to fund the defence of her case. The government's decision came just after Ms. McIvor won her case in the British Columbia Supreme Court.

In June 2007, Justice Ross of the British Columbia Supreme Court ruled in favour of Ms. McIvor. She maintained that the law “implies that one’s female ancestors are deficient or less Indian than their male contemporaries. The implication is that one’s lineage is inferior.”

In July 2007, the federal government announced that it would appeal the decision. In 2008, the case was heard by the British Columbia Court of Appeal. On April 6, 2009, a decision was made in favour of Ms. McIvor. I—

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:45 a.m.
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Liberal

Todd Russell Liberal Labrador, NL

Mr. Speaker, it seems there can be, and many times is, some very confusing wording and approaches to status. I have talked to experts and asked them a question on this bill or on the Indian Act as it now exists. There are many confusing circumstances.

We have to ensure the bill does not create other cases of discrimination. That is our fundamental role. We have to ensure we respond appropriately to the B.C. Court of Appeal to ensure we resolve the issue of inequity on which it had passed judgment. That is what we have to do and that is what the committee's work will be.

There are many who will pass opinions. As I mentioned, Dr. Pamela Palmater has gone through the bill and found some areas where she feels that discrimination may arise from what we study in Bill C-3. Whether that is the case or not, the committee will have to judge this. If it is possible to make amendments to deal with any further cases of discrimination that may arise, I think we will do everything in our power to make those amendments so other cases of discrimination do not arise.

We know one thing for sure. Many times, when the government responds to this, it creates other possibilities of inequity. We have to look forward and not deal only with the present situation.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:30 a.m.
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Liberal

Todd Russell Liberal Labrador, NL

Mr. Speaker, it is a pleasure to stand in the House today and speak to 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).

The bill is in response to a long-running battle in the courts spearheaded by Sharon McIvor. This action is being taken because the courts have said that the government must take action on this particular case. I congratulate Sharon McIvor and the others who have walked with her on the journey to heal the wounds of inequality and injustice.

It is pertinent for the House to know that it has taken 20 years. The court case was launched in 1989 and it took 17 years, until 2006, for it to be heard. Every obstacle was thrown in the way. I will not get into a debate about what government was in power when. The case was launched under the Mulroney government, carried on under the Chrétien and Martin governments, and continued on under the present Prime Minister's government.

However, there is something wrong with the system when it takes 20 years in the courts to resolve an issue of inequity. It takes time and resources and eats up people's lives, and we are talking about people's lives. I really do not care what government was in power. There must be a better way. There are smart lawyers in the Department of Justice. Someone must have sat back and thought that this really was an issue of inequity. They must have wondered if there was a better way to deal with it, such as through discussion or negotiation.

I note as well that, when it comes to resources, Sharon McIvor used the court challenges program, as have many other women, to try to advance their particular cause of equity. It was in 2006 that the current government killed the court challenges program that promoted the cause of equity. That added further to Sharon's struggle for money to see this case through to its successful conclusion, at least in some people's minds.

Does the title of this bill accurately reflect the intent of the bill, which is to provide equity? Many would argue that it tries to achieve that particular objective but it would be wrong for the House to think that this legislation would resolve all of the issues of inequity based on sex or on one's maternal line. Many other issues have not been addressed.

Let us take a quick look at what Bill C-3 is about and put it into context.

The McIvor case was the first of many cases to reach a decision under section 6 of the Indian Act. The case is about Indian status. It does not talk about band membership, citizenship or section 35 rights.

Sharon McIvor challenged the constitutionality of the Indian Act under section 6 as a violation of section 15 of the charter. The argument was that there was preferential treatment for descendants who traced their Indian ancestry along the paternal line over those who traced their ancestry along the maternal line, and that there was preferential treatment for male Indians who married non-Indians and their descendants over female Indians who married non-Indians and their descendants.

The B.C. Supreme Court ruled in favour of Sharon McIvor. It said that there was discrimination on the basis of sex and matrimonial descendance and ordered that section 6 was of no force and effect only with respect to the conferral of Indian status. The order resulted in inequality, the B.C. Supreme Court ruled, regarding the passage of status.

However, even though Sharon McIvor had won, Canada appealed the decision to the B.C. Court of Appeal. The Court of Appeal found discrimination in section 6 as well but on a much narrower basis. The court said that Bill C-31 created a new inequality because it enhanced the position of those affected by the double mother rule. Children of non-Indian mothers and non-Indian paternal grandmothers lost status at age 21 but restoring their status in section 6(1) meant that they could pass status regardless of the status of one parent.

The court only struck down sections that gave this enhanced status, and that is sections 6(1)(a) and 6(1)(c), so the ruling was in relation to a more limited category of people affected, which is why the government did not appeal because there were protected vested rights. The court gave the federal government one year to amend this provision.

Sharon McIvor in fact felt that even though she had won, the ruling was not what she wanted or felt she needed to resolve the issue of inequity. She filed for a leave to appeal to the Supreme Court of Canada. The appeal was denied on November 5, 2009.

The B.C. Court of Appeal's decision does not result in those who are already registered under the impugn provisions being struck off the registry, which basically means nobody will lose the rights they now have under the Indian Act, as this would result in a charter challenge itself.

What was the government's response? The government had a deadline to meet of April 6 of this year. The court said that it would give the government one year to bring in the legislation to deal with the inequity under section 6 of the Indian Act. The government released a discussion paper outlining what some of the options might be, some of the processes that it would go through. It then went through an engagement process. Engagement is an important word. It is not a consultation process because the government felt it had no legal requirement to consult, but only to engage the opinions of people to listen.

People had problems with that. People felt the engagement process was limited. Only about 150 individual submissions were made to the department. There were some regional and national meetings, but people, as a whole, felt it was very limited, that they did not get the full range of views they should have on this important legislation.

After the engagement process, the government gave notice that it would table a bill back in December. We were informed that the bill would be narrowly scoped to only deal with the equality as set out by the B.C. Court of Appeal. The government did admit that it would only deal with the B.C. Court of Appeal decision, that it would not deal with other issues arising out of the Indian Act, other issues of inequality or discrimination that exist.

Up against this April 6 timeline set by the Court of Appeal, the government has now brought forth legislation at the eleventh hour. The timing constraint is certainly compounded, and was compounded, by the prorogation of Parliament, which removed many days from the parliamentary calendar. I know the government says it is serious, but if it is serious about getting the legislation through, then annual prorogations are not the way to do it.

In examining this bill, we want to be diligent, we want to be expeditious, but we should not be rushed.

When we look at some of the content of the bill, people have written to me and to the department. They have indicated there are certain provisions of the proposed legislation that are still very problematic, and that they may raise other potentially new cases of discrimination.

I refer to a briefing note, a submission that was made by Dr. Pamela Palmater, who did her doctoral thesis on the Indian Act and the whole issue of status and the conferral of status. I will only refer to one section, just to give members and those who are listening a sense of where some other issues of discrimination may arise.

She says that section 6(c.1)(iv) of the proposed Bill C-3 provides that a person:

—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;

She says:

This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.

I mention this because the committee will have to take the time to understand what the implications are of this legislation. We do not want to make the situation worse. We want to improve the situation. We want to respond effectively and efficiently to the B.C. Court of Appeal's decision.

Neither does the legislation address the second generation product rule or situations of undeclared or unknown paternity. Again, these are matters that the committee will seriously have to consider.

The case is also shrouded in other fundamental rights issues, which the Government of Canada says this bill does not raise. I tend to agree that the bill does not raise these issues, the issues of jurisdiction, who determines citizenship, who determines membership. Why do we have a very paternalistic piece of legislation, one of the greatest examples of colonial infrastructure left in the western world that determines who is Indian and who is not. It is not determined by birth, by culture or by descendancy. It is determined by a statute in the House. There is definitely something wrong with the legislation, for which there are many descriptions. We are only dealing with one part of it now, but this whole bill raises other fundamental issues.

People ask this question. Why should Canada interfere in the determination of who can be registered as an Indian under the Indian Act? They say that it contravenes international conventions like the United Nations Declaration on the Rights of Indigenous People, which states that indigenous people have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the state in which they live.

Indigenous peoples have the right to determine their own identity or their own membership. I believe all members of the House would agree. Hopefully in the future we will be able to deal with these matters. The government acknowledged that by announcing an exploratory process to deal with these more substantive and fundamental questions.

The government should not delay or prolong that process. National aboriginal groups, regional aboriginal groups and individuals want to see this go forward in an expeditious manner. We want to ensure that it is done in a proper way and properly resourced, and let us call it a consultation process as opposed to an exploratory process.

We also have to be cognizant of questions around implementation. Is the department ready? Is the Office of the Indian Registrar ready? Are people being notified of possible changes that are coming? It will not be automatic that one gets status. The fact is people will have to apply and provide documentation, so there will be an onus on individuals to provide, in some cases, some very personal information. That in itself can be problematic, but is the system ready to take on new registrants?

Also, what are the impacts? There is a possibility that there could be up to 45,000 new registrants. That is what a noted demographer, Mr. Clatworthy, has indicated in his study commissioned for the department. He also gives a breakdown of how many people would likely register on reserve as opposed to off reserve, and what the implications would be then in terms of program and service implications and cost. We have asked the government this question. The government says that while it is looking at it, it does not know what the impact will be on programs such as non-insured health benefits, post-secondary education and if there is an influx of people on a reserve and what happens to the existing housing prices and the need for other services, other types of infrastructure.

While we ask all these questions, we believe the intent of the bill is to try to meet the test or dictates of the B.C. Court of Appeal. We believe it is worthy of support at second reading. We hope it will close one gap in the law, even if it does not address others that remain. It definitely requires full examination in committee.

Despite the shortened time frame due to the court decision and the government's prorogation, we hope there will be a full and fair hearing with a broad cross-section of witnesses. I look forward to hearing those witnesses and, if possible, to making the bill a better one.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:30 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, I do not know about the specifics on what we are now calling Bill C-3 in terms of that comment or question, but there has been a whole host of areas, whether it has to do with drinking water, housing or child and welfare services, where I believe we have had a sense of urgency and we have improved the circumstances very significantly in our time in office.

I would like to think that we will continue in a dramatic way in that same direction.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, I want to follow up on the excellent questions from the member for Labrador and the member for Winnipeg Centre this morning.

I thank the government for introducing Bill C-3. The fact is that Sharon McIvor should never have had to launch a court case in the first place. It took 21 years for this process to take place and it should never have taken that long in the first place.

We will be supporting the bill. We feel that it is long overdue to rectify this situation.

However, I do not understand why this was left until the last possible minute. The parliamentary secretary indicated that April 26 is our date. The question really is, as the member for Labrador suggested, whether the government could have acted earlier and given us more time to deal with the issue.

Having said that, we will be supporting the bill to get it to committee and then if there are any amendments we can deal with them at that time.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:25 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, the Indian Act is very controversial of course and we do have some first nations in Canada who have negotiated their way out of the Indian Act for all provisions of the Indian Act with the singular exception of the registration provision very often because this whole determination of who is and who is not a registered Indian or a status Indian is a very complex and debatable issue.

Even after Bill C-3, we have bands that operate under custom code that will determine who their members are without reference to Bill C-3. We also have bands that have chosen to remain strictly under the Indian Act provisions that will have members added to their roles through the bill.

Therefore, there is no single response or catch-all phrase, but this is a narrow targeted and focused bill.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:20 a.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, would the parliamentary secretary agree with me that perhaps he should have prefaced his comments with the statement that this House of Commons, this Parliament believes that the Indian Act is a paternalistic, obnoxious instrument of oppression that is unworthy of any western democracy and, in fact, is unworthy of any civilized free society?

I believe that the parliamentary secretary could have prefaced his remarks by recognizing that the social condition and the status of aboriginal people in our culture is perhaps Canada's greatest shame, and that there is and should be a sense of urgency to remedy some of the historic atrocities contained within the Indian Act.

Perhaps he should have acknowledged that the Indian Act was really designed as an instrument, not only of oppression but of extinction. In fact, it had recipes for extinction built into it. For instance, when a 6(1)(a) Indian, they categorized rights as 6, chapter (1) section (a), and a 6, chapter (1), section (c), marry. the results shall have a 6(1)(c) that forfeits their rights. It is not called disenfranchised. It is called enfranchising because they then become full status human beings as non-Indians.

I would just like my colleague to acknowledge and perhaps explain the position of his government. Does he acknowledge that Bill C-3 does not confer rights on aboriginal women, that this bill recognizes and finally acknowledges the inherent rights of those people who gained those rights by their birthright not bestowed upon by the government?

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:05 a.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Yes. “Good luck”, somebody just said.

Subsection 6.(1) provided a way for Indian women who had lost status through marriage to regain it and subsection 6.(2) made it possible for the children of these women to be registered.

Although this approach earned the approval of Parliament, and many other groups, subsequent generations were still subject to residual gender discrimination, and that is what was ruled on by the Court of Appeal for British Columbia.

Now, let me provide members with a little history to the court's decision.

Sharon McIvor is an Indian woman who married a non-Indian man before 1985. They had children together. According to the Indian Act, at that time, Ms. McIvor would have lost her status and her children would not be eligible for registration.

Through the amendments to the Indian Act, in 1985, Ms. McIvor was registered in accordance with subsection 6.(1) and her son was registered under subsection 6.(2). When this son had a child with a non-Indian woman, their children were not eligible for registration. This fact formed the basis for Sharon McIvor's arguments in McIvor v. Canada: that her descendants were not in the same position to transmit registration to their children as they would be if she were male.

To determine if this constituted bona fide discrimination, the Court of Appeal for British Columbia reviewed the Indian Act's provisions for registration following the Bill C-31 amendments to the Indian Act in 1985. The court specifically examined Ms. McIvor's situation in comparison to that of a brother. It found that the consequences of two successive generations of parenting with non-Indians actually significantly differed in the male and female lines.

While the 1985 amendments in Bill C-31 succeeded in eliminating gender discrimination in the first generation, it failed to eliminate it in subsequent generations. This is the core, essentially, of the court's ruling.

It is important to note that Bill C-3 responds directly to the court's decision by amending certain provisions of section 6 of the Indian Act. By any measure, this is a progressive and desirable step because it removes an identified cause of gender discrimination.

As a modern nation, Canada champions justice and equality for all. Canadians recognize that discrimination does weaken the fabric of our society and erodes public faith in our justice system. That is why I am pleased to bring forward this legislation identified in the court's decision.

Members of this House have demonstrated over and over again that willingness to address issues related to individual rights. It is something they wish to do. In 2008 Parliament supported the repeal of section 67 of the Canadian Human Rights Act, for example. Section 67 of this act had created an exception so that complaints for people subject to the provisions of the Indian Act could not seek redress under the Canadian Human Rights Act, which was the only exception for Canadians in the act. To rectify this situation, members of the House supported legislation to repeal this section.

Bill C-3 has much in common with the legislation that repealed this section of the Canadian Human Rights Act. Both strive to protect individual rights and promote equality. Putting an end to discrimination against first nations women is advantageous for all Canadians, which is why I am asking members to support this bill.

When speaking about protecting human rights, I would also like to take this opportunity to remind members of the House that this government has been actively seeking to address a legislative gap that undermines our justice system. I am talking about matrimonial real property legislation. I am talking about eliminating the gap that leaves first nations people, most often women and children, vulnerable and without legal protection.

Addressing issues such as gender discrimination in certain registration provisions in the Indian Act, repealing section 67, and filling a legislative gap respecting matrimonial real property will have positive and lasting impacts. For too long aboriginal people have struggled to participate fully in the prosperity of the nation due to a series of obstacles. By removing these obstacles, Canada enables aboriginal people to contribute socially, economically and culturally to this country. Parliament must play its key role in this process.

We should consider the Specific Claims Tribunal Act. The legislation was a crucial component in a larger action plan to resolve another major obstacle to good relations between first nations and the federal government, and that was a backlog of unresolved specific claims. Thanks in part to the House's endorsement of the Specific Claims Tribunal Act, every claim settled brings a first nation one step closer to realizing its full potential.

To help achieve similar progress, the government has taken action on a number of issues, from human rights to other basics, such as drinking water, education and housing. A multifaceted and collaborative action plan continues to increase the number of first nation communities with access to safe and reliable supplies of drinking water.

A series of tripartite partnerships with individual provinces and first nation groups continues to generate improvements in on-reserve educational outcomes and the quality of child and family services. The government is acting in collaboration with the people directly affected by the issues at play and Bill C-3 is no exception.

Last year, following a thorough review and analysis of the court's decision, department officials had technical briefings with representatives of five national aboriginal organizations to discuss the decision and Canada's proposed response. Following those briefings, 15 engagement sessions were held throughout the country to present Canada's proposed response to the McIvor decision and solicit feedback.

To help focus the sessions, the Government of Canada researched, published and distributed copies of a discussion paper. Hundreds of participants came to the engagement sessions and many written submissions were received.

We had several common themes emerge during the sessions and in the written submissions. Many people were expressing concerns about the broader issues of registration, membership and citizenship.

Based on the views expressed during this engagement process, we announced broader measures that extend beyond the scope of the bill before us and will be discussed in a separate forum. This will be done in partnership with national aboriginal organizations and will involve the participation of first nations and other aboriginal groups, organizations and individuals at all levels.

The findings of the exploratory process will form the federal government's next steps regarding further initiatives on these issues. As important as all of this work might be, it cannot take precedence over the importance of passing Bill C-3.

We must not lose sight of the fact that the legislation now before us responds to a specific court ruling and prescribed deadline. The ruling and deadline inform the design of Bill C-3. The proposed legislation is a precise, compact and focused response.

As Bill C-3 proceeds through the parliamentary process, the plan is to work in partnership with first nations and other aboriginal groups and organizations to identify and discuss the critical issues surrounding registration, membership and citizenship. This process will be separate from Bill C-3 in recognition of the court's deadline and the importance of acting quickly to address the situation of gender discrimination in the Indian Act.

Bill C-3 is progressive, responsive and measured. It is rooted in the principle that all citizens should be equal before the law.

Bill C-3 represents a timely and appropriate response to the Court of Appeal for British Columbia's ruling. It proposes to eliminate a cause of unjust discrimination and ensure that Canada's legal system continues to evolve alongside the needs of aboriginal peoples.

I urge all members of the House to join me in supporting Bill C-3.

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March 26th, 2010 / 10:05 a.m.
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Vancouver Island North B.C.

Conservative

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

Mr. Speaker, I am pleased to have this opportunity to speak to Bill C-3, Gender Equity in Indian Registration Act and explain why I encourage all members of the House to join me in supporting it.

Bill C-3 proposes to accomplish two objectives. First, this legislation would remove a cause of gender discrimination in the Indian Act. Second, it would meet the deadline imposed upon Parliament in a ruling of the Court of Appeal for British Columbia.

My remarks today will describe not only how Bill C-3 achieves these objectives, but also how it would serve the larger national interest.

In last year's decision by the Court of Appeal for B.C. in McIvor v. Canada, the court ruled that the two paragraphs in section 6 of the Indian Act discriminate between men and women with respect to registration as an Indian and therefore violate the equality provision of the Canadian Charter of Rights and Freedoms.

Rather than have the decision take effect right away, the court suspended the effects of the decision until April 6, 2010, and explicitly called on Parliament to enact an effective legislative solution.

What this means is we have until April 6 to implement a solution and if we fail to meet this deadline a key section of the Indian Act, one that spells out rules related to entitlement to registration also known as Indian status, will cease to have legal effect in the province of British Columbia.

This will have some significant consequences. As the members of the House will recognize, Indian status is a legal concept that confers a particular set of rights and entitlements. Should the two paragraphs of section 6 cease to have legal effect, it would lead to uncertainty and confusion about entitlements to registration in British Columbia.

The legislation now before us proposes to avert these consequences by amending certain registration provisions of the Indian Act. The bill addresses the root of the problem by removing the language that the court ruled unconstitutional.

I have no doubt that every member of the House stands opposed to discrimination based on gender. Despite this conviction, I expect that all members appreciate that equality between men and women is difficult to achieve at times.

Bill C-3 would take Canada one significant step closer to this important goal and this is what this debate is all about, the ongoing effort to eliminate gender discrimination.

Parliament, of course, has played an important role in taking corrective actions to address this issue. For example, the House endorsed the Canadian Charter of Rights and Freedoms, which is recognized internationally as a milestone in the fight against discrimination. To understand the origins of the McIvor decision we must go back to the 1980s when the charter was first enacted.

The charter required the Government of Canada to amend or rescind federal legislation that caused, aided or abetted discrimination based on gender. A significant effort was undertaken to amend the Indian Act, which clearly discriminated against women.

Perhaps the most egregious example of this discrimination was the Indian Act's treatment of a status Indian who married someone without status. If the status Indian were a woman, she would immediately lose her status. If the status Indian were a man, he would retain his status and furthermore his wife would become entitled to registration.

So these effects were dramatically different of course on their children. Children of a woman who lost status and her non-Indian husband were not entitled to registration, while children of a status man and his non-Indian wife were entitled to registration.

A provision in the former Indian Act, which was commonly referred to as the “double mother clause”, discriminated against children whose mother and paternal grandmother gained status upon marriage. These children, born after September 4, 1951, would lose their Indian status at age 21.

In an effort to eliminate these types of discrimination, Parliament endorsed a series of amendments to the Indian Act in 1985. These amendments are still known, colloquially, as Bill C-31 changes, and they remain controversial and lie at the heart of the McIvor ruling at the Court of Appeal for British Columbia.

The problem lies with the mechanisms that Bill C-31 used to rectify gender discrimination related to status entitlement and registration. I will do my best to simplify two of the key amendments from 1985.

Gender Equity in Indian Registration ActGovernment Orders

March 26th, 2010 / 10:05 a.m.
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Conservative