Bill S-3 (Historical)

An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général)

This enactment amends the Indian Act to provide new entitlements to registration in the Indian Register in response to the decision in Descheneaux c. Canada (Procureur général) that was rendered by the Superior Court of Quebec on August 3, 2015, and to provide that the persons who become so entitled also have the right to have their name entered in a Band List maintained by the Department of Indian Affairs and Northern Development. This enactment requires the Minister of Indian and Northern Affairs to initiate consultations on issues related to registration and band membership and to conduct reviews on sex-based inequities under the Indian Act, and to report to Parliament on those activities.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, panellists, for your candidness this afternoon. I want to welcome my friend to the committee and thank Mr. Angus for his great advocacy.

I'm a little confounded this afternoon because I think there's a strong realization—I know there was when we embarked on this—regarding the serious failures of the Indian Act. I fully share Romeo's sentiments in terms of its premises.

The challenge is that we have a deadline set. The issue is how to balance that, if we balance it.

I'm going to ask you some very pointed questions, and I would really like all three organizations to give a very direct answer.

With respect to the current Bill S-3 legislation that's before us, do we move forward with it, along with the consultation process for phase 2? Do we not move forward? Do we go to court to get the extension?

It seems as though I'm hearing “all three of these”, so I would like to get a direct answer from all of you. If we are going to court, what is the timeline that would be appropriate?

You have all raised very complex issues and, in fact, issues of nationhood and self-determination can't happen in three months.

How do we balance that? I would really like to get a sense from all three of you.

[National Chief Perry Bellegarde]

Again I go back to saying you need more time to get it done right, even though there is that court order. Bill S-3 is there; you're making amendments now to the Indian Act.

The issue is the Indian Act. You're tinkering with the Indian Act right now; that's what you're doing. A court told you that you have to tinker with it because there is unfairness and there is injustice there between male and female, and you're trying to correct that. I get that; you're trying to fix it. You're putting a band-aid on a great big cut, and it's very temporary.

You have to move beyond the Indian Act and start recognizing the right to self-determination and look at things like whether someone will no longer be a Cree indigenous person if the Indian Act is done away with tomorrow and they lose their status card. Our rights don't come from the Indian Act. We have inherent rights and we have a treaty relationship with the crown, and we have to exert jurisdiction over our own citizenship. But that also has to be linked to a new fiscal agreement on total population on and off the reserve. There is an issue of portability of rights to services and programs. You're not a treaty Indian only if you live on Little Black Bear. In the Corbiere decision, chiefs and councils represent all their people, on and off the reserve. Now there is going to be the issue and expectation of portability of services and programs and rights.

You can't just tinker with this; it has to be more comprehensive, and it's going to take some time.

I offer four points: longer consultation time to get it right; support a law and policy review. All of the outdated laws and policies that this government has, from compensation claims to specific claims to additions to reserve to the inherent right, are based on termination of rights and title, not on recognition. We have to exert jurisdiction over our own citizenship; that's what we have to do, but it has to be linked to a fiscal relationship with the crown, which we're working on. And then, don't forget the land issue.

I remember that in 1985, when Bill C-31 came in, all of our chiefs said that the crown was just making half a treaty Indian: you get this status card and you have access to the post-secondary funding programs, and then you get the non-insured health benefits through Health Canada, but where is the access to land? If you're going to do this, do it properly and comprehensively. That's my advice—four points.

[Francyne Joe, President, Native Women's Association of Canada]

Thank you.

I am Francyne Joe, president of the Native Women's Association of Canada, and I'm a proud member of the Shackan first nation located in Merritt, British Columbia. While I worked for Canada Border Services for over five years, I'm also experienced in human resource management, economic development, entrepreneurship, and insurance, all in an effort to educate and encourage aboriginal people to pursue their aspirations.

I'm here today with Lynne Groulx, NWAC executive director, and Marilee Nowgesic, NWAC's special advisor and liaison.

First, I would like to acknowledge the Algonquin nation, whose traditional territory we are meeting on today. I bring with me the voices of my ancestors, the concerns of aboriginal women from across Canada, and the hopes of our future leaders, our youth.

Since 1974, the Native Women's Association of Canada has been the only national aboriginal organization in Canada that represents the voice, the interests, and the many concerns of aboriginal women. NWAC is made up of 12 provincial and territorial member associations from across the country. Our network of first nations and Métis women spans the north, south, east, and west into urban and rural on- and off-reserve communities. Our personal sense of identity is that we are part of nations, and NWAC needs to be part of any nation-to-nation discussion. It's crucial that our gender-specific perspectives be heard and acted upon. The Native Women's Association of Canada recognizes the Government of Canada's stated commitment to end all of the known sex-based discrimination that is embedded in the Indian Act. This is a long-standing priority issue. It could result in missed opportunities to build our collaborative relationship and to ensure that we deal with the complex layers and multiple forms of sex discrimination in the Indian Act.

There are three key messages I want to deliver today.

First is the current backlog on registration and membership at INAC. Bill S-3 leaves out indigenous women, and their basic rights are being denied. This is a fundamental breach of their rights to entitlements under the Indian Act, such as housing, education, health, and economic development. From a traditional understanding, indigenous women cannot be separated from the impacts of colonization, systemic issues, and the policies and laws that have reduced the stability of our environment, the practice of our spirituality, and the expression of our inherent right to self-determination. We want to caution the government about the timeline. Indigenous women have multiple priorities at this time of the year. Children are in school and have extracurricular activities. Women are preparing for the harvest, hunting, and traplines. They're preparing for Christmas holiday celebrations with family and friends.

Second is that engagement does not mean consultation, and consultation does not mean consent. Indigenous women need to lead these discussions. The two-part process, as described by the Government of Canada, is to be in reconciliation with indigenous peoples through a renewed nation-to-nation relationship, based on the recognition of rights, respect, co-operation, and partnership. As of September 28, we have had only one information session by department representatives. This does not constitute engagement, partnership, or respect.

The government has already announced that it will have a two-stage approach in response to the Superior Court of Quebec's decision in the case of Descheneaux, and this must be done by February 3, 2017.

NWAC is particularly looking forward to addressing not only the systemic issues but also the impact those issues have had on indigenous women. As I've said before, these include our personal sense of identity, since we are also part of the nation; the lack of belonging and recognition experienced in some communities when women want to return to their home community; the undermining of indigenous women's governance roles and the ability to coordinate collections of issues; and the financial under-resourcing of our organization. NWAC is the organization that has the expertise on indigenous and gender-specific perspectives.

Third is that indigenous women themselves have the right to determine their own identity. Articles 33.1 and 33.2 of UNDRIP regard indigenous peoples' rights to determine their own identity and the structures of their institutions in accordance with their own procedures; of course, this is paraphrased.

As a national aboriginal women's organization that has spent over 10 years being undermined and ignored, and having our funding cut by 60% by the federal government, NWAC is in the process of actively rebuilding our capacity to substantively respond and coordinate a national response within a short timeline. Our current rebuilding status needs to be factored into the engagement processes at this time and should not be used as a way to undermine our participation in these key discussions and decisions.

While we are currently working on addressing the procedures and processes that will drive the missing and murdered indigenous women and girls inquiry commission, we are the lead organization for indigenous women to bring their issues, their concerns, and sometimes their missing voices to effectively address the inequities.

NWAC will work with all levels within the Government of Canada to end the inequities and discrimination that have been part of the Indian Act since 1876.

Kukwstsétsemc. Meegwetch.. Thank you for your time.

[Grand Chief Denise Stonefish, Deputy Grand Chief, Association of Iroquois and Allied Indians, Assembly of First Nations]

Thank you for the opportunity to speak to you today about Canada's effort to eliminate sex-based discrimination through this latest amendment to section 6 of the Indian Act.

As indicated, I represent seven first nations, mainly in southern Ontario. I am also the chair of the Assembly of First Nations' Women's Council. This council is an essential consultative body of the AFN under its charter, representing the interests and perspectives of first nations women who are members of our 634 first nations across Canada. As chair, I participate in meetings of the executive committee, our chiefs in assembly, and other meetings, including presentations to parliamentary committees on occasion.

As we are all painfully aware, the Indian Act was founded on the goal of complete assimilation of first nations as distinct nations. Since 1876, the Indian Act has undermined our kinship systems, our systems of governance, and many other aspects of our lives, including by enabling the imposition of the residential school tragedy. A primary tool to achieve those ends has been discrimination targeting first nations women.

This is the third time Parliament has attempted to rectify the sex discrimination in the act. In 1985, changes made under Bill C-31 left the task incomplete. In 2009, the British Columbia Court of Appeal found that the combination of the two-parent rule, the hierarchy of different types of status under subsections 6(1) and 6(2) of the Indian Act, and the second generation cut-off perpetuated sex discrimination under the act. Now the Descheneaux case has forced Parliament to make a third attempt.

We understand the compelling need for the government to respond to the discrimination identified in Descheneaux. Unfortunately, Bill S-3 will result in continued discrimination. In addition, the proposed amendments in Bill S-3 will compound the existing complexity of the Indian Act registration provisions by adding three additional subparagraphs to paragraph 6(1)(c).

The basic approach of this bill is to continue arbitrary federal control over first nation identity and simply push the residual gender-based discrimination down one generation.

Our review of Bill S-3 suggests other discrimination that will not be addressed. Number one, under Bill C-3, which addressed the McIvor decision, a woman who regains her status is deemed to be under subsection 6(1), and her children would also be eligible for subsection 6(1) status, passing on through future generations. However, a woman who lost and regained status for any reason other than that addressed under Bill C-3 was deemed to be under subsection 6(2), disadvantaging any future offspring.

Number two, Bill C-31 attempted to address the decision of the United Nations Human Rights Committee in the Sandra Lovelace case, as well as charter compliance issues. Now, under Bill C-31, a woman who regains status is deemed to be under subsection 6(1). A person, male or female, who lost and regained status under any circumstance other than marriage, under Bill C-31, is deemed to be under subsection 6(2), and any future offspring may be ineligible for status.

In our view, Canada's continued imposition of a two-parent rule, combined with the hierarchy of status transmission established by Bill C-31 under subsections 6(1) and 6(2), lies at the heart of the ongoing sex-based discrimination. We note with considerable concern that there is apparently no remedy yet for the unfair and long-standing discrimination in the department's policies respecting so-called “unstated paternity”.

I emphasize that these are not usually situations of paternity being unknown but most often of a woman having other reasons for not identifying the father of her child.

Thank you.

[The Chair, Liberal, Andy Fillmore]

We'll come to order.

This is the indigenous and northern affairs committee of Parliament. We're meeting today on the hereditary land of the Algonquin People, for which we're very grateful.

Today we're continuing our study of Bill S-3, an act to amend the Indian Act, specifically eliminating sex-based inequities in registration.

We have three 10-minute panels in this first hour, so we're going to try to move along really quickly, and I'm going to be quite strict with time so we can fit everybody in and get in all the questions we need to.

The first panel is the Assembly of First Nations, with three people joining us: Perry Bellegarde, who is the national chief of AFN; Denise Stonefish, by videoconference, who is the deputy grand chief, Association of Iroquois and Allied Indians; and also Stuart Wuttke, legal counsel, Assembly of First Nations.

Welcome to you all.

And without further ado, I'm happy to yield the floor for 10 minutes to you.

Indigenous Affairs

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, if empowering first nations is like Bill S-3, where they did not even bother to talk to the chief and defendant, that is a very poor example. Band members are having to take their leadership to court to get basic financial information.

On this side of the House, we are with people like Charmaine Stick, who the minister is forcing to go to court for this information. The Liberals should be ashamed. Why is the minister forcing Charmaine to go to court instead of showing some leadership and enforcing the law?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you for that clarity, and I did read that.

My understanding is that the bill before us, Bill S-3, addresses the issue of gender inequality in respect to registration. Any other issue is outside of the issue of gender, certainly perhaps charter related, but that is not specifically defined in the ruling. Right?

We have a deadline of February 3. My question for you really is, at this stage, what do you expect us to do? The court doesn't have to grant us additional time. At this point the court, based on the ruling if it stands, could basically not register anyone applying for registration. We don't want to have a state of confusion and, as such, the bill before us does address the comprehensive issue of gender discrimination from my understanding. In terms of going beyond that, I think that's where the consultation process probably may need to do a better job in reaching out and being proactive. But the second part of it is what we're really talking about.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you.

You may have heard, Chief, that in the presentation by government officials, there was a reference of the department continuing to assess the potential cost increases of Bill S-3 on the post-secondary education program and its funding approach. We know that the 2% cap with respect to sponsorship at the post-secondary level continues to be in place. A statement like this indicates that certainly there are no figures with regard to the additional needs. Does this statement concern you? Do you think this is a major concern that warrants an extension, but also is something that we need to take very seriously as parliamentarians?

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Thank you very much for your very powerful presentations. I almost wish we'd heard them first to really place just how serious the situation is that we're facing.

My question for you, Mr. Descheneaux, and for you, Chief O'Bomsawin, relates to the bigger picture that we're discussing here.

The UN Declaration on the Rights of Indigenous Peoples expressly forbids forced assimilation.

Mr. Descheneaux, you spoke about your personal questions and those of your children, about who you are and what this means for your identity.

We've heard the way in which this process around Bill S-3 in unfolding, heard about the lack of consultation, and heard about the fact that you heard about this—as you put it, being kind—two weeks ago. We're hearing from other first nations. We've heard from the AFNQL, and they are expressing serious concerns about the lack of consultation as well. Can you expand on how you feel about this process and how it relates to that question of forced assimilation?

You may answer in English or in French.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Do you think Bill S-3 goes far enough? Are there some areas that are not being addressed? Obviously, Bill S-3 would address some of the issues, but are there going to be some complications as a result of it?

[Nathalie Nepton]

As indicated, $19 million has been set aside for over five years to deal with the registration of those who will become entitled as a result of Bill S-3. Definitely, when we look at lessons learned from Bill C-3, we'll take what we've learned and apply that, because that process went very well, but that process can't completely be transferred. For example, as Madam McLeod indicated, $700 I think is the figure she provided to process a file. When we process a file, we go from A to Z. We also look at genealogical research that's required, as well as other administrative issues. That means, for example, everything from requesting additional information of provinces to looking at what's required potentially for vital statistics, and trying as much as possible to assist the person who's seeking to be registered under Bill S-3.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you to the panellists for taking our questions today.

I want to continue on with the line of questioning of my colleague Michael McLeod.

We see that Bill S-3 potentially guarantees Indian status, but it's not clear how it will encourage bands to include these people within their organization. Are there any programs or consultations planned to encourage these new members of first nations to be part of whatever band they are linked to?

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

To the first part of the answer, and obviously it was echoed in the presentation, we know that the 2% funding cap continues to be in place and results in existing inadequacies in terms of services and infrastructure on reserve. Obviously, we did hear about some of the funds that will be allocated as a result of this change in Bill S-3.

Given the fact that the 2% cap is still in place, do you perceive there to be a challenge when you are now admitting so many more people to the membership of communities when, in fact, ongoing services are already being frozen in terms of funding and don't reflect the current population numbers?

Perhaps you could speak to that tension that's emerging.

[Joëlle Montminy, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development]

Thank you very much. I'm Joëlle Montminy.

I am the assistant deputy minister of the Resolution and Individual Affairs Sector at Indigenous and Northern Affairs Canada. You have already introduced my colleagues.

I would like to thank you for the opportunity to be here today to provide this committee with information on the government's response to the Descheneaux decision. As you know, the response involves amendments to Bill S-3, an Act to amend the Indian Act, aimed at eliminating residual sex-based inequities in Indian registration, which will be followed by a collaborative process with indigenous groups on broader related issues.

I would like to say a few words on the Descheneaux decision.

In August 2015, the Quebec Superior Court ruled that the provisions of the Indian Act violated the equality provisions of the charter because they perpetuated residual sex-based inequities in Indian status.

The Descheneaux case dealt with the differential treatment between the male and female lines in the acquisition and transmission of Indian status relating to first cousins of the same family and siblings. As a result, the court declared several key provisions of the Indian Act invalid and suspended its decision for 18 months to allow time for the necessary legislative amendments. Canada originally filed an appeal, but the decision came down during the election, and the appeal was withdrawn in February 2016 by the new government.

In order to comply with the decision, legislation must be passed by February 3, 2017. In the absence of a legislative response by this deadline, Canada will be unable to register the majority of individuals seeking status in the province of Quebec and possibly in other jurisdictions as the key provisions in the Indian Act will be inoperative.

Last July the government launched a two-stage approach to respond to the Descheneaux decision. As part of the first stage, the government started holding information sessions with indigenous groups and introduced legislative amendments to the Indian Act through Bill S-3 to eliminate residual sex-based inequities in Indian registration.

The second stage will be a jointly designed, collaborative process with indigenous groups to examine the broader and systemic issues relating to Indian registration, band membership, and citizenship. The purpose of this process will be to identify areas for future reform.

Before examining the proposed amendments in more detail, I'd like to provide you with some background on Indian registration to better understand the context of Bill S-3.

Under section 6 of the Indian Act, the federal government exercises exclusive authority in the determination of who is an Indian. Eligibility for Indian status is determined on the basis of an individual's descent from a person registered or eligible to be registered as an Indian.

Prior to contact with European settlers, we know that first nations had diverse ways of identifying their citizens, including clan, kinship, and hereditary systems. These were displaced as a result of the introduction of the concept of “Indian” in colonial and then Canadian legislation.

Starting in 1869, patrilineal descent rules and sex-based criteria for Indian status and band membership were entrenched in federal laws, and continued under successive changes to the Indian Act. Under these rules, Indian women who married non-Indian men lost status, as did their children, and through enfranchisement, individuals and their descendants lost Indian status if they became a doctor, a lawyer, Christian minister, joined the military, or earned a university degree.

In 1985, the Indian Act was amended through Bill C-31 to comply with the charter. This was the first step in addressing sex-based and other inequities in Indian registration. As part of these amendments, Indian women who married non-Indians no longer lost status, and those who had previously lost status could be reinstated, as were their children. Enfranchisement was also abolished, and individuals who had previously lost status could be reinstated, as could their children.

The 1985 amendments also introduced categories for Indian registration through subsection 6(1) of the Indian Act, and also limitations on the transmission of Indian status after two consecutive generations of parenting with a non-Indian through subsection 6(2). That's commonly known as the second-generation cut-off. It's important to note that the second-generation cut-off rule was implemented in direct response to concerns raised by first nations during consultation on Bill C-31.

Finally, Bill C-31 also reinstated first nation authorities to control their membership through section 10 of the Indian Act.

Despite these amendments, some residual sex-based inequities stemming from the past were carried forward. New issues arose as a result of the introduction of categories of Indian registration—I've mentioned subsections 6(1) and 6(2)—that resulted in an increase in legal challenges.

The first case that was significant was the McIvor case, which was decided by the B.C. Court of Appeal in 2009. In response to that case, Parliament passed Bill C-3, the Gender Equity in Indian Registration Act, in 2011. Bill C-3 amended certain registration provisions to ensure that eligible grandchildren of women who had lost status as a result of marrying non-Indian men could then become entitled to registration, which is basically extending the eligibility to one more generation.

Following Bill C-3, the government also launched an exploratory process to gather the views of indigenous groups regarding issues related to registration, membership, and citizenship. Over 3,500 individuals participated in this initiative, and the findings revealed a myriad of perspectives.

This brings us to Bill S-3, which proposes amendments to Indian registration to comply with the Descheneaux decision and to eliminate all known sex-based inequities. Bill S-3 would amend subsection 6(1) of the Indian Act to extend eligibility for Indian status to descendants of the female line. These changes would specifically address issues relating to cousins, siblings, and removed or omitted minors.

This is a bit difficult to describe just in words, so later on you can consult the deck that we've provided to you and the comparator charts on pages 22, 24, and 26, where you'll be able to see the effect of the changes that I will describe.

The cousins issue relates to the differential treatment in the acquisition and transmission of Indian status that arises among first cousins of the same family depending on the sex of their Indian grandparents in situations where the grandparent was married to a non-Indian prior to 1985. This results in different abilities to acquire and transmit status between the maternal and paternal lines.

The siblings issue concerns the different treatment in the ability to transmit Indian status between male and female children born out of wedlock between the 1951 and 1985 amendments to the Indian Act. Indian women in this situation cannot transmit status to their descendants, unless their children's father is a status Indian. Indian men in similar circumstances can transmit status to their children, regardless of whether they parent with a non-Indian woman.

Guided by the advice of the court to not take a narrow approach in our legislative approach, a third issue has been included in the bill. It deals with removed or omitted minors.

Prior to 1985, registered minor children who were born of Indian parents or of an Indian mother lost their status, as did their mother if she married a non-Indian man after their birth. This is in contrast to their adult or married siblings, who retained their status.

While Bill C-31 restored Indian status to women and their children in this situation, it did not make eligible the children of the reinstated minor. The proposed amendments in Bill S-3 would address this issue and extend eligibility for Indian status under subsection 6(1) to the children of the reinstated minor child.

As would be expected, the proposed legislative changes will result in an increase in the number of individuals who will become entitled to Indian status. There will also be a change in the status category for some already registered individuals.

Based on demographic analysis, between 28,000 and 35,000 individuals will become newly entitled for Indian status as a result of Bill S-3. This increase will impact the costs of two federal programs that are directly linked to registration: INAC's post-secondary education program, and Health Canada's non-insured health benefits program for first nations and Inuit.

The government's fall economic statement released on November 2 identified approximately $149 million for the implementation of Bill S-3. In addition, the department is continuing its evaluation of the potential costs of the post-secondary education program.

Changes to entitlement for Indian status may affect funding over a longer term for other programs. INAC will monitor the impacts over time on the mobility of first nations who may decide to move to reserves.

As previously mentioned, starting in the summer of 2016, information sessions were held with indigenous groups, and we heard a multitude of perspectives. Some concerns that were expressed related to the short time frame for information sessions, the limited scope of the proposed changes, the impacts of accommodating newly entitled members, and the narrow focus on technical amendments that perpetuate colonial Indian structures.

Recognizing these concerns, the government is committed to the second stage of this initiative. The deadline of February 3, 2017, imposed by the court is insufficient to allow us to conduct meaningful consultations with indigenous groups to address all these complex issues in a short time frame, so in considering this, the government will launch the second stage in February 2017, which will be joint work with indigenous groups to address broader issues with a view to future reform.

Thank you.

[The Chair, Liberal, Andy Fillmore]

We'll come to order now. Welcome, everyone, to the indigenous and northern affairs standing committee. We are meeting today to hear testimony on Bill S-3, an act to amend the Indian Act, specifically the elimination of the sex-based inequities in registration.

We have two panels today. The first panel is with us right now. We are welcoming four officials from the Department of Indigenous and Northern Affairs Canada: Joëlle Montminy, assistant deputy minister, resolution and individual affairs sector; Candice St-Aubin, executive director, resolution and individual affairs sector; Nathalie Nepton, executive director, Indian registration and integrated program management; and Effie Panousos, senior policy adviser and manager, treaties and aboriginal government. You are joined today by Martin Reiher, general counsel, from the Department of Justice. Welcome to you all. We're very pleased you're here with us.

We are happy to offer you 10 minutes to use among yourselves as you see fit.

If you are ready, we'll get right into it. Thank you.