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.

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

Thank you, Madam Chair.

Thank you, Minister, for joining us today to talk about a very important piece of legislation.

I want to point out first that it has been a very bizarre process. Typically in House of Commons committees we will study the bill after it's been referred from the House. In this case, way back in November, we supported it to do our due diligence, recognizing your Supreme Court of Canada deadline, and looked into a prestudy while the committee was looking at it. We're now doing another prestudy, and I understand there's a rush to clause-by-clause. Also, there hasn't been one minute's worth of debate in House. I do want to flag that as certainly a very unusual circumstance in terms of my experience as a parliamentarian since 2008.

Having said that, I have some significant concerns that relate to what was said back in November and what we're hearing now. I want to go back to November 21. I asked the departmental officials if they were confident that Bill S-3, as it stood on that day, “would eliminate all known sex-based inequities”. I was told on the record that they were “confident”.

The official said:

In terms of your specific question for sex-based discrimination, yes, this bill is addressing everything that is wrong.

That is what was told to us then.

Today, we see a sort of amended version come back. We have, of course, the Gehl case and some other changes that have been made, and you're talking about making changes based on what the Indigenous Bar Association told you about sex-based inequities.

On Tuesday, I said:

The definition of “known” is when the courts have directed, as opposed to “known” by looking at the issue broadly?

At that time, Mr. Reiher said:

Actually, as we indicated, it's what the court has decided, plus what is clear.

To me, way back in November, you knew about the court case that was proceeding. You knew about these issues. When I asked again on Tuesday if this is dealing with “all sex-based inequities”, how can I have confidence in the answer that it is, when clearly I was given the same answer in November and we're dealing with changes? Indeed, to me, it's inconceivable that you knew about one case going through the courts and it wasn't dealt with.

Perhaps you could explain to me how we can have confidence now when in November we were given the same information and it was clearly wrong.

[Carolyn Bennett, Liberal, Minister of Indigenous and Northern Affairs]

Thank you, Madam Chair. It's great to be back at committee, and thank you for inviting me here to talk about Bill S-3, as we acknowledge that we come together on the traditional unceded territory of the Algonquin people.

Thank you also for understanding the urgency of this bill, and also for your work during this prestudy.

As you know, in response to the recommendations of the standing Senate committee, the government sought and was granted a five-month extension to consider Bill S-3. Through the additional time provided, there have been numerous improvements made to the original version of Bill S-3, which the government has welcomed and supported. The bill now proactively addresses further groups impacted by sex-based inequities, which were identified by the Indigenous Bar Association. The recent Ontario Court of Appeal decision in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.

In addition, I acknowledge the understandable skepticism of first nations, impacted individuals, and parliamentarians about whether the second stage of registration membership reform will actually lead to meaningful change. That is why in this bill we are proposing a series of amendments to report back to Parliament on a number of occasions, in a number of ways, to update you and all Canadians on our progress towards broader reform. Three separate reports to Parliament are now in this legislation.

On the stage two process, I need you to know that I am committing personally, on behalf of the government, to co-designing a process with first nations, including communities, including also the impacted individuals, organizations, and experts, to deliver substantive registration reforms, including potential future legislative changes. This will be a process in which the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.

I want to be clear that in stage two, charter compliance will be the floor, not the ceiling, and there may well be areas of needed reform on which there is no consensus to be achieved. The government has made it clear that consensus will not be a prerequisite for action. However, if the government is to act absent consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation engagement, and credible evidence about the potential impacts of reform.

Balancing the needed time to engage impacted people with that for parliamentary process has allowed only two truncated three-month engagement periods, even with the extension granted by the court.

Given the context of the limited engagement possible within the timelines imposed by the court, I think it’s important to address the intended scope of Bill S-3.

The goal of Bill S-3 is to remedy the known sex-based inequities relating to the registration in the Indian Act, which falls short of charter compliance.

This is not restricted to situations in which a court has already ruled but also extends to situations in which the courts have yet to rule but in which we believe a sex-based charter breach would be found. However, the government has been clear that in circumstances in which the courts have ruled that policies are charter compliant, in which situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultations, as is stated in the UN Declaration on the Rights of Indigenous Peoples.

Despite supporting numerous amendments proposed and adopted by the Senate committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment to clause 1 of Bill S-3 would seem to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985 of individuals previously entitled as Indians under previous Indian Acts, possibly back to 1876. In simpler terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.

While I believe this amendment was put forward with the best of intentions, the way the amendment is drafted creates ambiguity as to whether it would have the intended effect.

This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the committee and by the Indigenous Bar Association when it testified before this committee. If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities well beyond those that are sex-based.

The government is open to considering this approach through stage two, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the actual practical implications of implementing such an approach. While the government is initiating that work now, preliminary estimates are not based on reliable data and contain huge ranges of numbers of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest that either end of the spectrum is what the impact would be but to note the huge range of current estimates and the need for better data.

In addition to the current lack of understanding of the practical implications of the approach, it’s clear that the necessary consultation hasn’t occurred.

This clause may have profound impacts on communities, which could find themselves with huge numbers of new members with little or no connection to their community and without any meaningful prior consultation. I want to understand the perspectives and concerns of the vast number of potentially impacted people who have not yet even been asked their opinion on “6(1)(a) all the way”. This particular clause was not part of any prior consultation.

I want to be clear: I stand in solidarity with the indigenous women who have been fighting on these issues for decades. I hear their pain and hurt from having received a letter in which they were told their marriage made them a white woman. Whether these remaining issues are charter issues or not, I want to be part of fixing these ongoing problems. But we must be careful not to repeat the mistakes of the past, whereby, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire and unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right.

The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed. As many of you may be aware, the court deadline for this legislation is July 2.

If, by July 3, we don’t have legislation passed that addresses the charter compliance issues outlined in the Descheneaux decision, the clauses struck down by the court will be inoperative in Quebec.

The practical implication would be that these provisions would then become inoperative within Canada: 90% of status Indians are registered by the federal government under the provisions that would be inoperable. In addition to the up to 35,000 individuals waiting for their rights to be granted through Bill S-3, we cannot lose sight of the thousands of individuals who will not be able to register if the court deadline passes and the provisions noted above become inoperable.

In conclusion, I ask you to vote against proposed paragraph 6(1)(a)—the “all the way” clause—and send this bill back to the Senate in a form that respects our duty to consult and allows us the time, through stage two, to finally get this right.

[Dr. Pamela D. Palmater]

Definitely, that clause should be deleted. We also recommended that the same section in Bill S-3 be deleted. It acts as an incentive to allow the government to continue to discriminate with impunity until they choose to address it or are forced to address it on their good old time. In my submission, I highlight that. I can resubmit it here to say specifically that it needs to be deleted, because they all know that it's discrimination.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

Welcome, and thank you to all of you on this panel. I appreciate very much your words.

I want to start with something that you asked, Sharon. In your letter to the senators, you talked about the concerns raised by communities on the potential impacts of paragraph 6(1)(a) on the way. You said the following in one of the paragraphs:

As I have explained in the past, I take fundamental exception to this argument. Indian bands and communities have no legitimate say in whether the Government of Canada continues to discriminate against me and other Indian women because of our sex. The Government of Canada has an obligation under constitutional and international law and a fiduciary duty not to discriminate on the basis of sex, whether Indigenous bands and communities agree or not. By now most Indigenous bands and communities do not wish to see discrimination on the basis of sex continue.

In your opening remarks you talked about the people you represent, that you're not here only as an individual. You talked about the other women you represent here, which is pretty legitimate, in my view.

Then you asked in your remarks, speaking to us, who we represent, who we speak for, which is, I think, the fundamental question here. Certainly as a member of Parliament I represent my constituents, but as a member of Parliament and as a legislator I also speak for the rule of law. I have a fundamental duty as a member of Parliament to uphold the rule of law. What does that mean? It means respecting the Constitution. In our Constitution is the Charter of Rights and Freedoms and section 35 on inherent rights. That's what we are here for. So thank you for asking that question.

Pam, you're right in saying that we shouldn't even be here discussing this. I absolutely agree with that. That is the reason for my total, absolute, and profound disdain for the Indian Act. It is inconsistent with the fundamental human rights of indigenous peoples of this country, and it shouldn't be there. I have expressed that. Whether it's in our Constitution or in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples, those rights are inherent. They exist because we exist as indigenous peoples. I think that should be our starting point all the time, whether we discuss policy or legislation.

My question is fairly simple. You're recommending that we support Bill S-3 as a committee and recommend that Parliament adopt this legislation. I agree with that as well. I asked a question previously of NWAC, on Tuesday, and also of the Quebec Native Women’s Association, about clause 10. That's the “no liability” clause in Bill S-3, which in my view is problematic. With this clause, we are essentially asking this committee and Parliament to justify past discrimination and past violations of human rights.

I want to hear from each and every one of you on this issue. What would you recommend with respect to clause 10 in particular?

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you very much for being here again. Thank you for your patience, the decades of dealing with this issue again and again. I have a personal friend, Dr. Marlene Brant Castellano, whom you might know, who also was treated in this manner, and it was rectified under previous legislation. Regardless, I've always found it appalling that this situation even exists.

I was at a women's restorative justice symposium back in 2014. I didn't know the situation existed until Marlene and.... Memee Dawn Harvard was there, and Waneek Horn-Miller and Jeannette Corbiere Lavell, who also testified here. I got to see her again and had a conversation with her that day.

I was stunned that this situation exists. Most people out there are not aware of this at all. I still am overwhelmed by all of the discussions and Bill S-3, which was here, and then it went to the Senate, and it has come back and it has been amended. Just trying to wrap my head around this whole convoluted mess has been very difficult for a lowly MP like me, who has not dealt with it for decades as you have who understand it with every fibre of your being and are revolted by it in every fibre of your being. You can tell through your passion that this is the way you feel about it.

I also know on the other side and have heard from my own chief the deep concern that they have in their community about being overwhelmed. They're one of the reserves that is growing and growing substantially through outsiders coming in. He's concerned not just about having the funds, though the funds definitely are one issue, but the human resources to be able to deal with an influx—a large influx, potentially—of people coming in. In our suicide study, we've also seen this as one of the key aspects of dealing with the social predeterminates of health: the lack of human resources and infrastructure in place to deal with existing issues in many indigenous communities.

Then you have Senator Sinclair, who also has expressed concerns about the paragraph “6(1)(a) all the way” clause because of some unintended consequences that could result from the clause as it stands today.

We've had testimony from the Indigenous Bar Association and from NWAC as well, who have some concerns. I'm not trying to pit one against the other at all. All I'm trying to point to is that the reality of the situation may necessitate doing this in a staged fashion. There are 35,000 people who have already been identified.

I know you're not going to like this. I can see it already in your faces that, once again, you shudder at it. But if the process is there, the commitment is there, and the commitment is written into the act. It's not a case of saying that we don't recognize that the discrimination and the racism in the system is appalling as it stands right now. It is new legislation, however, and the duty to consult, the duty to prepare, the duty to ensure that the resources exist to deal with this in a...to deal with this at all, just because, in reality, the resources aren't there today....

Do you not see some level of validity in having a consultative process, not to justify that we need to rid ourselves of this once and for all, but to lay out a framework so that we can implement this in a responsible way?

I'll open it up to all, because I know all of you are just dying to jump down my throat on this, so, please, by all means go ahead.

[Dr. Pamela D. Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

Hi.

[Witness speaks in Mi'kmaq]

I am from the sovereign Mi'kmaq Nation on unceded Mi'kmaq territory. I acknowledge that we are here on unceded Algonquin territory, as well, which carries a huge responsibility.

I hope that every one of the committee members recognizes what a historic moment they are in. Today, in this room alone, we have Jeannette Corbiere Lavell, who took Canada to court on this issue. We have Senator Sandra Lovelace Nicholas, who took Canada to court and won on this issue. We have Lynn Gehl, who won on this issue. We have Sharon McIvor, who won on this issue. Unfortunately, Yvonne Bédard isn't here, but we have Stéphane Descheneaux, and Susan and Tammy Yantha. As well, there are many more in the hopper.

How many more times are you going to require that indigenous women spend their entire lives trying to get equality, in a country where equality is actually the law? You don't have a choice here. This committee, in fact, should be moot.

This is a very clear message. The fact that the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism is in this country, and for indigenous women, racism. It is the law. You have no legal choice but to pass this bill—none whatsoever.

It's not a matter of whether someone likes it. It's not a matter of whether the male organizations like it, or other people like it.

We have equality for same-sex partners in this country. There were no demographics done. There were no cost projections done. You didn't bring in people who were anti-gay. It's a matter of equality. You do it because it's the law and you have to do it. As democratic people in a just society who value equality, you come together and say, “We will bear whatever the cost, whatever the implications of ensuring that equality.”

For indigenous women, however, it's a bit different. It's a matter of life and death. That's the difference. This isn't just a matter of administration, what phase we will do, or what kind of funding agreement we will have with the AFN; this is a matter of life and death. It should be a done deal.

Here's the other historic part about Bill S-3. When have I ever come before any committee—ever—or written about any federal legislation and said, “I support this bill”? You can count the number of times on one finger, and there's a reason for that. Nobody wants the Indian Act. Nobody wants paternalistic, racist, sexist government telling us what to do anymore. Oftentimes this happens without our consultation or consent. However, this is a piece of federal legislation that is subject to equality laws. You don't have a choice here.

Bill S-3 is historic for another reason. It represents the consensus of the Senate, a non-partisan consensus. How often do we get that in this political country? I would offer, not too often.

You also have Senator Murray Sinclair, who is the head of the Truth and Reconciliation Commission, who is the expert on how to bring about reconciliation in Canada. I met with him yesterday and he told me to please remind this committee that he was in favour of this bill. In fact, he doesn't believe it goes far enough, but he is in favour of this bill and that is significant.

There is no oppositional outcry. That is also very significant, because INAC has worked very hard in the last six months to manufacture dissent. Money is very powerful. You can go to any indigenous organization and say, “Listen, support us on this, and we'll give you millions of dollars in phase two to talk and talk, something we've done a hundred times.” Well, here's the relevant part: no national or regional organization is a rights holder. They're not a government. They have no say. It's the people who are impacted who have a say.

They may sell us out for consultation money, but that's beside the point. The law still applies; and the court issue is, in fact, equality.

It's not just section 15 of the charter that guarantees equality between men and women, or section 3 of the Canadian Human Rights Act that specifically prohibits the federal government from discriminating between men and women. Subsection 35(4) of the Constitution Act is very important, because you often look to first nations to say, “Well, what's your view? It's your aboriginal right to determine citizenship. Do you want to discriminate against indigenous women?” Well, subsection 35(4) says that if you're going to assert an aboriginal right, by the way, it's guaranteed equally between male and female people. In case that wasn't clear, the international consensus under article 44 says that every single right in the United Nations Declaration on the Rights of Indigenous Peoples, which Canada supports without qualification, is subject to male and female equality. Most importantly, there isn't a single indigenous law or legal system in Turtle Island that justifies or sustains inequality between human beings—needless to say, male and female people.

Our treaties guarantee these rights for heirs, and heirs forever, not just the guys. Just because the male organizations have failed, and just because they're not here advocating, doesn't mean we are not entitled to that equality.

Here's the hard part that you have. If you want to continue to be racist and sexist as the government—if you really want to—that's going to be hard, because you are going to have to take a complex set of Indian registration mechanisms and make it even more complex to make sure you register the minimal number of people possible and maintain the legislative extinction dates for every first nation in this country. If that's your goal, then you don't have the ability to talk about reconciliation, nation to nation, or anything else.

What you are saying, if you don't pass this bill and if you do not stand with indigenous women on equality, is that indigenous women don't deserve equality. However, you must also accept the consequences. That means it's on you when indigenous women go murdered and missing, because the United Nations has already told Canada that it is one of the primary root causes of murdered and missing indigenous women. You're saying that it's okay for Canada to continue to steal indigenous children from indigenous women at rates that far exceed any other country in the world. Overrepresentation in prison.... What you're telling serial killers and rapists is that they can continue to target indigenous women at seven times the national rate because they get to do it with impunity. No one cares, or we would have acted on this already. You will also maintain the legislative extinction dates, and there's no reason for it. Enough is enough.

In 2017, Trudeau promised a new, nation-to-nation relationship based on equality and respect for aboriginal and treaty rights that would end violence against indigenous women. They would abandon the adversarial relationship and abandon forever the top-down paternalistic decision-making powers and even repeal Harper's laws, which I will remind you include the very discriminatory Bill C-3 that came out of the McIvor case.

Words mean nothing. Phases or ministerial commitments mean nothing. Actions mean everything, and there is nothing stopping you. There is nothing in the McIvor case, Lovelace case, Gehl case, or Descheneaux case that says you cannot remedy gender equality. In fact, just as Masse said, please don't do what you usually do. Please just fix this once and for all, and please do not buy into the federal government's fearmongering around millions and millions of people being registered. That is a blatant lie. It is meant to promote fearmongering amongst first nations, and it is not true.

There are fewer than 900,000 registered Indians now. Of those, 50% are women and 50% are children. Fewer than 100,000 people cannot make two million people. We may be baby-makers, but we can't make two million people.

I'm asking that this committee support the Senate's amendment and not have any more delays in granting equality for indigenous women.

Thank you.

[Sharon McIvor, As an Individual]

Good morning. Thank you for inviting me.

My name is Sharon McIvor. I am Nlaka'pamux, from south-central British Columbia. I've worked on this issue and many other issues, but on this issue for almost my entire life.

I want to start by saying that there's an understanding that the oppressed and those who have been discriminated against have never gotten their freedom or equality by asking for it from those who have oppressed them and discriminated against them, so I'm just wondering what the heck I am doing here.

This issue has been going on for many years, as you know, way longer than the 30 years. For us, we're talking about 525 years where immigration has seriously interfered with who we are. As you know, for 150 years the immigrants have had the ability to make laws that lock us into a position where we cannot move. I understand that the communities are suffering, but the communities aren't suffering because of the women. They are suffering because of the lack of their women.

I also want to say that I'm listed on the program as “an individual”. I want to make it clear that I'm speaking not only for Sharon McIvor. I'm speaking for Mary Two-Axe Earley, Jenny Margetts, Nellie Carlson, Susan Blankenship, and Edna Blankenship. The list could go on for a long time. I'm also speaking for Jeannette Corbiere, Helen Blankinship, and all of those who are still alive who have had the Indian Act and the operation of the colonial government affect their lives so badly.

I also want to talk a bit about who you are speaking for. In theory, you're speaking for the Canadians, because they've elected you and put you in place, but if you look at this historically, John A. Macdonald was a racist and a sexist. When he was prime minister, a lot of these policies got their teeth and started affecting the aboriginal communities—in particular, the Indian women. As for the bureaucrats, Duncan Campbell Scott was a very famous bureaucrat who worked very hard throughout his tenure to make sure that as many Indians as possible lost their right to be recognized as Indians.

Now we're talking about a piece of legislation today. As some of you probably know, I've been here before on this matter, with Bill C-31, Bill C-3, Bill S-3, and all of the different changes that have been forced by the court. I've also been around and involved in regard to dozens of ministers of Indian Affairs. For example, I talked to Minister Irwin about the matrimonial property issue, the matrimonial on-reserve property issue, and he said, “Sharon, I'm a family court lawyer, I know the issue and I know it well, and I know it's not good, but I can tell you, I will not touch the Indian Act with a 10-foot pole.”

We know that you're forced to be here because of Descheneaux. You were forced to be there because of McIvor. You were forced to be here because of the charter equality rights section kicking in. I think the 10-foot pole analogy has worked itself out really well, and I can tell you that until you get another court decision, you won't be back here. You can promise all the promises, because you did. You did in 1985. You promised that they would go out and consult, and apparently you have in your files, your archives, 20,000 documents that prove the communities agreed to leave the discrimination in.

When we went to court, those documents were used as a justification for keeping me out of the courtroom from July of 1989 to October of 2006. We finally were able to get to trial. We never did have disclosure of those 20,000 documents. We still have no idea of the contents of the documents that gave the justification to continue the discrimination against the aboriginal women.

When I went to court, the Government of Canada put forward that they had looked over all of my history and had decided that in fact I was entitled to status, good enough to pass it on to my son, because my son and I were in the case together. I was a subsection 6(2), which meant that on my own I didn't have the right to pass it on, and my husband was white, and my son did not have status because of my 6(2) status. They came to us in July of 2006 and said that they had looked at the records and had discovered that I was in fact entitled to better status and my son could have 6(2) status. They then said, “Now that the case is moot, let's all go home.”

We refused to do that, and in September 2006 they brought a motion to have our case declared moot. They did not succeed in the motion, but at that time we asked the court to declare that my son was entitled to status, because that was the justification they used to have it declared moot. The crown refused to consent to my son having status. Although they were using it as justification for having the case declared moot, they refused to consent that he could have status. Because we had not put an application in to have the declaration, we needed the consent of both parties. So he did not get status in September 2006.

When we went back to court for trial in October 2006, we did bring the motion, and it was heard first by Madam Justice Ross. We didn't have a clue how they figured out why I would have better status to pass it on to my son. We asked the Department of Justice to argue our motion for us because we didn't know how they figured it out. They said that I was entitled to status because my grandmother, who was always a status Indian for her entire life, was not married to my grandfather, therefore, my mother had status at birth. My mother was not married to my father, so therefore I had status at birth, and I lost my status in 1970 when I married my white husband. Therefore, I came back as a 6(1)(c). The married-out women got a paragraph 6(1)(c) status, and my son was entitled to a subsection 6(2) status.

That piece is the one I want to talk to you about today because in 2006 I got subsection 6(1) status, my son got 6(2), my brother, who did absolutely nothing on this issue, got 6(1)(a) status; and his first wife, in 1972, and his second wife, in 1983, both white women, were entitled to 6(1)(a) status. In fact, my sister-in-law, in 2007, got 6(1)(a) status. A white woman got 6(1)(a) status. This was in 2006, and we didn't resolve ours until 2010.

All I wanted to say is that the operation of the act is still giving white women paragraph 6(1)(a) status, and I can't get 6(1)(a) status.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Madam Chair.

I'll ask my questions quickly. I have only five minutes, and I want to clarify certain parts of the positions taken by the witnesses.

Grand Chief Norton and Chief Picard, in the letter you submitted, which we looked at a few minutes ago, you referred to the potential significant impact of the proposed changes to the act in Bill S-3.

Are you referring to

section “6(1)(a) all the way”?

Are you referring to all the changes following the Senate amendments?

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

We agree on this point. Thank you for your response.

Earlier, you said we were responsible for repairing the harm done. However, I think the purpose of the clause is basically to justify today a past human rights violation, which I find totally unacceptable.

My second question goes to the reluctance of the present government to move forward with section “6(1)(a) all the way”.

Ms. Michel also made this clear.

That is essentially on the basis that they want to consult further. Is there any justification to continue to consult with indigenous peoples on whether or not they would like to be discriminated against further? That is such a ridiculous pretext not to move forward with Bill S-3.

I'd like your comments on that, Lynn.

[Cynthia Smith]

We support the concern expressed by the Native Women's Association of Canada. We have said so from the first interventions on the first version of Bill S-3, if I may say so. We still have reservations with regard to that provision. That was clause 8 in the previous bill, but it is clause 10 in this bill.

The concern over that disclaimer has also been mentioned by other aboriginal women and organizations. It is a very important concern, and so it is for us, as well. This is the only piece of legislation in Canada that allows discrimination without the government taking responsibility for it. That makes no sense to us.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Meegwetch.

[Member speaks in Cree]

I think everyone on this committee realizes my total, absolute disdain for the Indian Act, but we still have to deal with it. It's still there until it's gone.

I would like to put a question to Ms. Michel.

I want to begin by thanking you for your testimony before the commission of inquiry in Val-d'Or on the relationship between aboriginal people and members of some public services. Thank you for your testimony. Many people really appreciated it.

During their testimony earlier this week, the representatives of the Native Women's Association of Canada raised a serious concern about clause 10 of Bill S-3. In essence, that clause stipulates that no individual who acquires the rights to register after the legislation goes into force can seek damages. So that is a legal disclaimer for the Crown.

The representatives of the Native Women's Association of Canada expressed a serious concern over that clause. I would now like to hear what the representatives of Quebec Native Women Inc. think about it.

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

Once Bill S-3 receives royal assent and it goes into phase two, how do you envision phase two rolling out, and what are your expectations from phase two?

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

Thank you, Madam Chair, and good morning to our guests.

Once Bill S-3 receives royal assent, with or without the amendments, how do you envision phase two rolling out, and what are your expectations?

I'd like to hear from each of our presenters this morning.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Madam Chair.

Professor Wilson, I was ashamed to learn on Friday at a KAIROS blanket exercise for reconciliation on the Hill that indigenous people who earned a degree—to be a teacher, engineer, doctor, or whatever—were forced to give up their Indian status.

Everybody around the room is looking surprised by that, too. I had no idea. What a total calamity for the economy and discrimination. I'm embarrassed on behalf of the country, but I am embarrassed that as a legislator I didn't know that before. I'd like to hear your thoughts on that terrible story.

I have also been hearing from my colleague Romeo Saganash that this is still built into the Indian Act. Addressing that is part of the changes proposed in Bill S-3 to end gender-based discrimination, but we hear that the Liberal government is proposing to oppose the amendment regarding paragraph 6(1)(a), which would end that discrimination around employment and getting degrees, on the basis that more consultation is needed. Can you fill the committee in on that history, in your view?

[Viviane Michel, President, Quebec Native Women Inc.]

[Witness speaks in Innu]

Madam Chair, vice-chairs, members of the committee, kuei.

I would like to begin by thanking the Anishinabe Nation for welcoming us on its vast unceded territory.

Quebec Native Women Inc., a member organization of the Native Women's Association of Canada, was founded in 1974 in response to the sex-based discrimination in the Indian Act. For over 40 years, the native women of Quebec have been joining forces to denounce this paternalistic, assimilatory and colonialist piece of legislation.

Our position has always been clear, and we remain firm in our demands. We want the Government of Canada to remove from the act any sex-based discrimination and any resulting types of discrimination. We are asking for our right to grow among our people, practice our culture and traditions, speak our languages and pass it all down to our children and future generations.

In 1982, Canada passed a so-called constitutional piece of legislation, including a Canadian charter of rights and freedoms. There is no higher law in the country than the Constitution, which provides all Canadian or aboriginal citizens with basic rights that must be respected and protected. Among them is the right not to be discriminated against based on sex and race.

When we know that such discriminatory principles in terms of sex and race are the foundation of the Indian Act, it is normal to wonder about the place of such legislation in Canada. The country is allegedly celebrating its 150th anniversary this year, but what is there really to celebrate?

Quebec Native Women Inc. attended the 16th meeting of the UN Permanent Forum on Indigenous Issues. We deplore Canada's speech at that event, according to which the country defends the rights of aboriginals, especially the rights of women, but how many aboriginal women have been uprooted, torn away from their families, their community and their identity because Canada implemented and is fighting to maintain one of the most violent laws in terms of discrimination based on sex and race.

We deplore the fact that we once again need to discuss it, in 2017, and fight against that same piece of legislation that belittles us and discriminate against us as women and as aboriginals. We are being discriminated against on two fronts. While our aboriginal communities traditionally see us as a gift of life, Canada has introduced into the imaginations of societies the idea that the life of an aboriginal woman is not as valuable as the life of a man. Our women are disappearing; they are killed, abused and sexually assaulted by state forces and the population, with complete impunity.

The UN Committee on the Elimination of Discrimination Against Women and the Inter-American Commission on Human Rights both concluded that the sex-based discrimination in the Indian Act was one of the root causes of the violence against aboriginal women and girls today.

Therefore, Quebec Native Women Inc. demands that the House of Commons ensure the respect for the Constitution for every aboriginal citizen, especially every aboriginal woman and her descendants who have been disowned, repudiated, forgotten and buried by governments wishing to assimilate them and to be done once and for all with the Indian issue in Canada, until no Indians are left.

To do this, Quebec Native Women Inc. demands, first of all, that the government accept the amendment known as “6(1)(a) all the way”.

Quebec Native Women Inc. also demands en end to discrimination stemming from unstated or unknown paternity. Women have the right not to put the father's name on the birth certificate without penalizing their child. No so-called Canadian women have their child discriminated against when the father's name does not appear in the registries. The child is just as Canadian as the mother. Why would it be any different for first nations?

Quebec Native Women Inc. also demands that the government do away with the status categories defined in subsections 6(1) and 6(2) of the act. Since 1985, the categories have been giving rise to many discriminatory scenarios, including within the same family. Think about it. Would you want some of your children to be considered as Canadians and others as non-Canadians because they were born after April 17, 1985? That's completely ridiculous.

As many other representatives have said before us, it would be impossible to completely eliminate sex-based discrimination without those changes. Without the amendments suggested by the Senate and without eliminating the categories defined in subsection 6(1) and 6(2), Bill S-3 continues discrimination under the Indian Act against our women.

Quebec Native Women Inc. has heard the government repeatedly insist on a second phase, which would be broader and would allow for further discussion on those demands. We think it is absurd that the government has delayed amendments to the Indian Act by five months under the pretext of failing in its duty to hold consultations and that it is once again justifying its inaction by using the same pretext. Let us be clear: we are in favour of defending the government's duty to consult aboriginal peoples, but not under the circumstances established by the government surrounding Bill S-3.

Quebec Native Women Inc. feels strongly about reminding the government that it cannot use that obligation to justify keeping provisions that are discriminatory or unconstitutional. Quebec Native Women Inc. feels that the government does not need to consult communities to find out whether it must put an end to its discrimination against women.

Let's be honest: the government knows that the Indian Act is discriminatory. It knows exactly what the solutions to end that discrimination are. This is not ignorance on the government's part, but rather inertia and a lack of political will.

What did Jeannette Vivian Corbiere Lavell, Sandra Lovelace Nicholas, Mary Two-Axe Early, Sharon McIvor, Lynn Gehl and others do but tell you about the realities and discriminations women and their descendants face?

This April, a report on the information sessions provided by Quebec Native Women Inc. during the extension of sitting period related to Bill S-3 was submitted to the Department of Aboriginal Affairs and Northern Development. The report outlines the impressions of women on Bill S-3, and we are bringing their voices before you today. They have had enough and don't want to wait for a second phase for things to happen.

The government is planning to spend about two years on the second phase. Can you tell us what you will find out in two years that has not already been revealed to you over the past 30 years. Aboriginal women are patient and resilient, as they have told you many times, and continue to be so today, but it is your duty to listen to us and to act accordingly.

Quebec Native Women Inc. reminds you that the foundations of the act are paternalistic, patriarchal, colonialist and assimilatory. We want to share our concerns with you. We are seeing our people incorporate those legislatives principles and use them against their own. We cannot deny the effects of the Indian Act, residential schools and the 1960s scoop. They are still here today, sometimes even among our own people.

The history of colonization and assimilation has left its marks, and many wounds are still open and must heal within our own people and among our people. That healing of our people will be enabled by recognizing those of us whom governments have cast aside, so that we could together imagine a future for our people and our communities.

The native women of Quebec and Canada are bringing their voices together to demand that you put an end, once and for all, to sex-based discriminations, so that our young people and the next seven generations could heal from the assimilatory and enfranchising policies, from residential schools and from this cultural genocide.

We demand that you accept amendment “6(1)(a) all the way” beginning in the 1800s and that you eliminate the categories defined in subsection 6(2). You are constantly talking about reconciliation with our people. That reconciliation starts here, by giving back to the women and their descendants the place the government has taken away from them.

Quebec Native Women Inc. demands that you think about future generations and ensure that they don't have to fight for their identity and against discrimination. Let us rather fight for a world where our young people can reconnect with what it means to be Anishinabe, Eeyou, Innu, Abenaki, Atikamekw, Mohawk, Naskapi, Wendat, Malecite, Micmac or Inuit, rather than leaving them a world where they are losing the essence of their identity by losing a bit more of themselves in the fight against a system and a colonialist and assimilatory pieces of legislation like the Indian Act.

You are not responsible for what other governments did before you, or perhaps even what your ancestors did to our peoples, but you are responsible today should you decide to be complicit in the forced assimilation of our peoples by failing to accommodate the demands that have been put to you.

You have the power to decide for us. You took that power. We never gave it to you. Will you listen to us once and for all?

Thank you for making a decision you would make for your own women, your own children and your own future generations.