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.

[Sharon McIvor]

I don't have a lot more to add. It was really clear that section 10, part of the Indian Act, was put into place to help alleviate these kinds of difficulties. I know across the country of at least 37 bands that have their own membership codes, and those membership codes continue to discriminate against the women and their descendants. Canada allowed that to happen—and we're not talking about section 10 here; we're talking only about status, not about membership. You're not addressing membership in Bill S-3.

What we're looking at is that there is the ability to determine that you could not refuse to take back the woman who married out, but you do have the right to not include anyone beyond her. There are several bands that did not take the women back at all, and those membership codes are still in place. They're challenged, but they're still in place.

We're talking apples and oranges here.

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

From my understanding, what you're suggesting is that you're unable to register, or you don't believe that you're able to register, those people who will be extended registration under Bill S-3 because, as a nation, you and your people have decided that the issue of citizenship is one that you alone are privy to. What Ms. McIvor is suggesting, and quite rightly, is that discrimination is discrimination, and cannot continue. I'm not suggesting this is contradictory, but how do we reconcile what appears to be a contradiction in some respects?

[Jeremy Matson, As an Individual]

Hello. My name is Jeremy Matson. I would like to thank the Algonquin people for allowing me to speak on their traditional territory. I would also like to thank Mr. Descheneaux, Ms. Yantha, Ms. Sharon McIvor, her son Jacob, Ms. Sandra Lovelace Nicholas, Ms. Bédard, Ms. Lavell, Mary Two-Axe Earley, and many others who continue to advance or who have advanced indigenous peoples' rights here in Canada.

Currently, I'm registered under subsection 6(2) of the Indian Act under Bill C-3, the McIvor bill, which is the Gender Equity in Indian Registration Act. I'm a Squamish Nation member and I have direct ancestral connections to the Tsleil-Waututh, Musqueam, and other Coast Salish nations.

I am married to my wife Taryn Matson, née Moore. We have two children: Iris Matson, who is eight years old, and August Matson, who is five years old.

I am one of many grandsons of Nora Johnston and Vino Matson. My grandparents were married in 1927, and because of her marriage to my non-aboriginal grandfather, my grandmother was commuted under the 1927 Indian Act and remained disentitled to her identity.

My father, Eugene Matson, was one of seven children born to my grandparents Nora and Vino between the years 1928 and 1942. My grandparents had approximately 30 grandchildren. We'll go into the effects of the upcoming Bill S-3 on those 30 grandchildren.

My grandmother remained disentitled as a band member or as a status Indian—a recognized Indian under the Indian Act—until April 17, 1985. Under Bill C-31, the amendments back then, my grandmother was registered under paragraph 6(1)(c) of the Indian Act and registered as a band member under section 11 of the Indian Act under the Squamish Nation.

My grandmother's seven children were registered for the first time under subsection 6(2) of the Indian Act, Bill C-31.

Canada has imposed discriminatory legislation against my family for 90 years. The intergenerational impact is significant. Canada has denied our cultural identities and/or placed my family members in an inferior position compared with those in other indigenous families in Canada, and the sole reason is gender discrimination and its adverse impacts.

I'll go a little bit into the nuts and bolts of Bill S-3 as drafted and its shortcomings and the way it affects my family.

I will be potentially entitled to paragraph 6(1)(c.2) registration under the proposed amendments. I'm going to go through my children's case. That means they'll be entitled to subsection 6(2) Indian status under this bill.

But there are a few inequalities in your tinkering with the Indian Act. You've created more problems—not you the INAN committee, but the drafters. I'll go through proposed paragraph 6(1)(c.4)—this is part of the Bill S-3 draft amendments—and show how my children meet some of these categories but will be left out from proposed paragraph 6(1)(c.4) Indian status.

The first category is for those for whom:

one of their parents is entitled to be registered under paragraph (c.2)

That would be me, as my children meet that criterion—and then they qualify under item (ii) of that proposed paragraph 6(1)(c.4) if:

their other parent is not entitled to be registered

That would be my wife.

Then item 6(1)(c.4)(iii) states, as its qualifying criterion:

they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985

My children meet that, and then it says:

and their parents were married to each other at any time before April 17, 1985

My children do not meet that category, so they're not entitled under that item of proposed paragraph 6(1)(c.4).

The newly entitled under Bill S-3—that means the generation below mine and descending generations from there, the newly entitled great-grandchildren or the second-generation cousins of my grandmother—the descendants of my grandmother, will be treated in a differential manner.

Some will be entitled to proposed subsection 6(2) Indian status, some to proposed subsection 6(1) Indian status under the Indian Act amendments in Bill S-3.

In my submission, I broke down all 30 grandchildren and how their standings would fall under Bill S-3. The first three grandchildren of my grandmother will not be entitled under this bill. They were not entitled under Bill C-3, because they were born prior to September 4, 1951, and they will remain disentitled under proposed subsection 6(1) Indian status, and their descendants will, too.

I also broke down.... I don't know what version of my submission you have. The first-generation cousins, the grandchildren, are highlighted in red. Those would be the individuals who were married prior to April 17, 1985. They will be entitled to pass proposed subsection 6(1) Indian status to their children, and the remaining non-highlighted grandchildren, which I fall under, will only be able to pass proposed subsection 6(2) Indian status to their children.

There is going to be differential treatment of siblings and families. In my family, first-generation cousins are going to be left out or left with an inferior status.

On page 6, in a detailed chart for the INAN committee, I broke down how I, my family, and my children will be treated differently, in comparison to my first-generation cousins' families and their breakdown.

I would encourage this committee to look at that, as it could be a possible recommendation. If you are staying in all the four corners of Bill S-3, and what Justice Masse has done with her decision in the Descheneaux case, my submissions and recommendations would stay within those four corners, but it would be nice to have everybody who was born prior to April 17, 1985 under proposed paragraph 6(1)(a) Indian status, as Ms. McIvor mentioned.

Not too long ago, on October 25, Canada went under review by the Committee on the Elimination of Discrimination against Women. Canada is a treaty member of that particular United Nations committee, and Canada's review was in the 65th session. On November 18, only a couple of weeks ago, CEDAW, from the United Nations, with the report CEDAW/C/CAN/CO/8-9, called Canada out about this very bill, Bill S-3. I provided that in there, but I didn't provide the reference and the web link. I forgot to put that in my submission.

Paragraph 12 of the report states that the committee:

further notes that a new Bill [S-3] amending the Indian Act is currently being developed. However, the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status.

In paragraph 13 the committee recommends that parliamentarians fix that.

This is the third CEDAW report that has announced to Canada to abolish or fix this discrimination. I currently have a petition before CEDAW about section 6 of the Indian Act and the relationship between the state and me as an individual, my children, my grandchildren, and my future descendants.

I also listed numerous other United Nations reports calling on Canada to abolish this, and I have provided links.

I'll now get to the the recommendations for Bill S-3.

It would be nice for this committee to provide a recommendation for proposed paragraph 6(1)(a) Indian status for everybody born prior to April 17, 1985, and also to provide future amendments, because there are implications, too, about April 17, 1985 to the present day. It's not just between April 17, 1985 and back to 1876, and before, that that there was discrimination. We also have to go forward after that date.

Staying within the four corners of this bill, under proposed paragraph 6(1)(c.4) I recommend providing Indian status to all the newly entitled, meaning my children's generational level, and not create differences between first-generation cousins or siblings.

Recommendation two is to provide Indian status or entitlement for all those individuals born prior to September 4, 1951. As my family history clearly displays, I have three first-generation cousins who remain disentitled under Bill S-3, even though CEDAW has recommended to Canada to fix all discrimination.

[Sharon McIvor, Union of B.C. Indian Chiefs]

Thank you.

My name is Sharon McIvor. I'm appearing at this committee for the Union of B.C. Indian Chiefs, which is a B.C. group of chiefs that has been in existence since the mid-1970s, and whose major focus is aboriginal title right and treaty rights.

Today I'm just speaking specifically to Bill S-3, the amendment to the Indian Act. You have to understand that status under the Indian Act is exclusively the jurisdiction of the federal government. It's in 91(24), so it's a relationship or recognition of who the federal government recognizes as Indians. It has nothing to do with self-determination or self-government. Those issues are out there to be discussed at another time and place.

Up until 1985, the Indian Act was blatantly discriminatory against women. Lots of pressure was brought, but mainly the Charter of Rights and Freedoms kicked in on April 17, 1985, and forced the government to deal with that ongoing discrimination.

With Bill C-31, there was an agreement at that time between Minister Crombie and his department that although he wanted all the discrimination gone, I understand that it was too expensive, so he allowed the second-generation cut-off and said that those guys could come and fight for themselves.

I took up the challenge. In July 1989 I started a case that was called the McIvor case about the ongoing discrimination in the Indian Act.

In 2010, after court decisions, the government got together to do Bill C-3. Bill C-3 continued with the discrimination. We've been here before and done this before because of the ongoing discrimination, and the government decided it was okay to continue to discriminate against aboriginal women and their descendants.

Looking at Bill S-3, it's exactly the same thing.

I can tell you what happened in 1985. The government threw out this thing to say that they had to consult with the people about whether or not they should end this discrimination.

From my perspective, and for most people who believe in human rights, discrimination isn't negotiable. As the Government of Canada, it's your responsibility to make sure your legislation complies with the charter, so you can't go out and ask all of those aboriginal organizations, which are mainly led by males, if it is okay to continue to discriminate against the Indian women. I can tell you that most of them will say, yes. We know, because in Jeannette Corbière-Lavell's case, the Assembly of First Nations and their allies were sitting against her with the government. In other cases we've taken, those male-dominated organizations sit on the other side.

It's your fiduciary responsibility to make sure that your legislation, no matter what you pass, complies with the charter. Bill S-3 does not. What Bill S-3 does is it continues the discrimination.

I have a petition with the UN Human Rights Committee to say that Bill C-3, the McIvor amendment, did not take all of the discrimination out of the Indian Act. That's sitting there. It was to be heard in July 2016. The Department of Justice put in a request to the UN committee to suspend the hearing of my petition, because of the bill—now S-3—that will bring gender equality to the Indian Act in February 3, 2017.

I handed a package to the clerk. There is a media release in which Carolyn Bennett promises that. I also have in the package the request to the UN committee by the Government of Canada, and in several places they said that by February 3, 2017, all known discrimination will be out of the Indian Act.

They knew it and they could do it, and then they were going to do a second phase, consulting nation to nation with the aboriginal people. The only thing that I'm saying today is yes to the consultation. You cannot consult about ending discrimination. You cannot consult about asking somebody else's permission if it's okay to continue to discriminate against me.

It's totally unacceptable and the position that you're taking as parliamentarians is really untenable. I absolutely can't understand why you're doing it. Discrimination is contrary to the charter and you know and I know, and you've heard probably from a lot of people, that there's still discrimination in the Indian Act. You have the ability to scrap the bill and do something that's going to take all of the discrimination out.

In 1985 the Government of Canada did something that helped take care of some of the bands' problems. The bands are not nations. The bands are an artificial construct by the Government of Canada, but what they did is they separated the membership and status. Section 10 allows absolutely every band in Canada to decide who can be a member. They cannot take membership away and the women who married out were to be put back into their birth bands, but second generation can be left out. You don't have to give membership to them. They separated that out.

The Government of Canada is determining who is an Indian and who do I have responsibility for and who do I have a relationship with. Absolutely every band in Canada has the right to make a law that determines who their membership is.

I just don't want the waters to be muddy there. What we're looking at is the Government of Canada deciding whether they're going to recognize me as an Indian. The other piece that's really important is that when I was born, I had birthrights. Outside of the human rights that every human is born with, I have aboriginal rights that come from my heritage. Those cannot be defined away. I cannot be discriminated against so I cannot exercise those rights, and recognition of me as an aboriginal person is one of those rights.

When we're looking at what you're doing with Bill S-3, what you did with Bill C-3, what you did with Bill C-31, you violated my rights as an aboriginal person. My plea to you is you can clean it up. If you look at in May 2010 the House of Commons committee reviewing Bill C-3 brought to the House an amendment to Bill C-3 which for the most part alleviated all of the concerns about the ongoing discrimination based on gender. That was rejected.

Actually, it wasn't rejected. The Speaker ruled most of it out of order and it was left in one piece, but you know how to do it. It's there. I put that in the package as well. It's a two-pager and it will alleviate most of the discrimination, all of the known discrimination. There are some things still there that need to be fixed, but for the most part it's doable and that's your fiduciary responsibility. You cannot continue to make legislation that has known discrimination in it. It's your fiduciary responsibility to take it all out. That's what the charter is all about.

Thank you.

[Chief Kahsennenhawe Sky-Deer]

First I want to speak specifically about Bill S-3.

As the grand chief mentioned, the matter of membership and registration we feel is one that's integral to governance matters for first nations. The fact is there has been no meaningful consultation. We're aware there are going to be two phases, but the amendments are going to happen, and then there is going to be consultation after the fact, which, in our opinion, is a serious breach of Canada's duty to consult first nations and to accommodate.

The proposed amendments to the Indian Act registration criteria in response to the Descheneaux decision raise extreme concerns for Kahnawake. We have our own membership criteria and registration of who could be a status Indian.

It goes so far that now it's exacerbating the problems that we see in our community. We're going to have more people coming to our community with band cards who want to belong. They want ownership of land. They want to be part of the community, but they might never meet our criteria of who we recognize as Kahnawake, who are Haudenosaunee, who are Mohawks of Kahnawake.

There is a clear distinction, in our opinion, of who could be Mohawk, or identified as such, and what Canada's registration for status is. There is a big discrepancy there.

With regard to the specific legislation, we're aware that the amendments are targeting three main groups: siblings, cousins, and omitted minors. While the Descheneaux decision drove the proposed Bill S-3 amendments that are going to happen in February for siblings and cousins, the amendments pertaining to omission of minor children extended beyond the decision that was rendered in the court. This unilateral revision to registration criteria, again without consultation of first nations on this integral matter, goes even deeper and is another breach of Canada's duty to consult and accommodate.

The legislation lacks any provision for opting out. As the chief mentioned, we don't feel that any government or any court can decide who can be our people. That should be the sole jurisdiction of first nations. Again, the effects on membership are definitely going to impact on our right to self-determination.

The absence of some kind of provision or mechanism is going to increase what we call the discrepancy population. Kahnawake has its own membership list. The federal government maintains a list for the Mohawks of Kahnawake. That population is going to continue to grow after the Bill S-3 amendments, and, as I mentioned earlier, cause further problems. There is no additional money that is going to be promised to our communities to accommodate these people.

Again, as the chief mentioned earlier, in terms of ethnocultural erosion, we want to ensure that we protect for our future generations what it means to be a Kahnawake, what it means to speak our language, and what it means to know how to preserve our identity as a distinct people. When you have generations so removed, who have no ties to our community, no connection to those lands or to our ancestors, but who might have had an ancestor a long time ago, and still feel that they should go and be a part of that community....

We're seeing, as a result of the CAP-Daniels decision, that there are now groups that are popping up all over the country that want the benefits that go along with being a status Indian. However, they don't really understand what it means to be born into nationhood, with those rights, and to have that citizenship. To a lot of people it's “Well, I have a tax exemption card now—free this, free education.” As I said, they don't have that understanding and that sense of identity that we're trying to protect and ensure.

We're fearful of the ramifications that Bill S-3 is going to have not only on Kahnawake as a community, but on other first nations that are in a revitalization process after the Indian Act, after the residential schools. We're trying to rebuild our nations, and for Canada to unilaterally keep expanding the registration criteria of who can be a status Indian is going to further erode our identity as first nations people, the real authentic Haudenosaunee of this land.

That's all I have to say.

[The Chair, Liberal, Andy Fillmore]

Good afternoon, everyone. Welcome to the House of Commons Standing Committee on Indigenous and Northern Affairs.

We are meeting today to continue our work on Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration.

I want to explain to our witnesses today that, as you can hear from the bells that are ringing, there will be a vote in the House of Commons in 20 minutes. This gives us enough time to hear from one of the groups, the Mohawk Council of Kahnawake, and then we'll have to recess for a moment. Committee members will go and vote—it will take about 15 minutes—and then we'll come back and hear the other two witness groups and proceed through our questions at that point.

Cathy.

Indigenous Affairs

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

Mr. Speaker, the Liberals talk a good game about the importance of nation-to-nation consultation, but they are failing.

Bill S-3 has been criticized by National Chief Bellegarde, the Native Women's Association, and the Quebec Native Women Inc. The litigant said that the first time he knew about the bill was when he was called to committee to testify. Further, the Indigenous Bar Association says it is riddled with technical flaws.

When will the minister end her paternalistic Ottawa-knows-best approach and consult with those who are directly affected?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

It seems that the very first piece of legislation you bring out is Bill S-3, and they're already claiming that you're not doing that for that. Why are you not enforcing the law on the transparency issue while you're consulting, but they're saying on Bill S-3 that you didn't even consult? How can we have the some confidence that you're doing that?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

You have to put up with the fact.... I chaired the subcommittee on persons with disabilities for five years. People with disabilities really cared about that committee, and it never got televised. I think there is a lot of work we need to do to make Parliament more open, if we can. Thank you.

It's a pleasure to be back here acknowledging that we're gathered on unceded Algonquin territory, and as you've said, Mr. Chair, to be joined here by the associate deputy minister—Diane, you were here once before—the chief financial officer, Paul Thoppil, and the ADM, education and social development and partnerships, Paula Isaak.

I wanted to begin by welcoming the new critic, Romeo Saganash, in his role as

NDP spokesperson for intergovernmental indigenous affairs.

I also want to thank the committee for the pre-work you're doing on S-3, and I think I'm back next week doing that, but also for your ongoing work on suicide.

I just wanted to say that we're going to try to organize a screening of Survivors Rowe. The link with child abuse, anger, shame, drugs, alcohol, and violent suicide is very linear. I hope that we can make sure that your report is as robust as it can be on those difficult things.

I am here today to discuss the supplementary estimates (B) for Indigenous and Northern Affairs Canada.

As I said, the last time I appeared, I hope you understand that we understand that the current estimates process is archaic and unclear, and that we're looking forward to the needed reforms coming from the President of the Treasury Board for this broken system.

We have provided a deck of slides to the committee that outlines the initiatives found in the supplementary estimates. We hope that this makes a little bit clearer the request being made of Parliament. We want to begin by reiterating that the government is committed to lifting the 2% cap.

As I have said before, the 2% cap has been lifted.

The budget took into account the need for growth and cost drivers well in excess of 2%. As you know, the budget 2016 investments mean that within four years, total funding for indigenous programs will be 22% above the level of funding that would have been provided under the previous cap of 2%.

Our government is also committed to jointly designing a new fiscal relationship that will move to a needs-based approach and give first nation communities sufficient, predictable, and sustained funding to ensure their overall well-being.

Last summer, I signed a memorandum of understanding with the Assembly of First Nations to move forward with that process.

Last week, I was able to meet with the new fiscal relations committee at the AFN, for the second time, to keep going on what that new relationship would look like, and I promised Madam McLeod that it will include transparency and accountability, as they are very keen to deal with that in the new fiscal relationship.

We've also engaged the Métis nation in our process to establish permanent funding for the Métis National Council and its governing members.

As you can see, supplementary estimates (B) reflect a net increase of $644.3 million in appropriations from my department. That brings the total appropriations for INAC for 2016-17 to $9.4 billion.

The majority of the spending in supplementary estimates (B) represents the budget 2016 items. In the case of the items appearing in these estimates, INAC was able to internally cash-manage to ensure that we are already delivering on commitments in many important areas.

First Nations children deserve the best start in life. This begins with properly funded education.

This year, our government has already put funding in place for 130 school-related infrastructure projects, and budget 2016 is also providing $275 million over five years to support language and culture initiatives for youth.

The $245.8 million of funding sought by these supplementary estimates will fund additional investments in first nations elementary and secondary education. The money will both address immediate needs and pressures and aid long-term transformation. We anticipate that nearly 110,000 students will directly benefit from these investments. But there's no question and I want to stress that we know this is just a start.

As we mentioned, we're working to renew the relationship with first nations and are actively engaging with them to reform first nations primary and secondary education.

We'll talk a bit more about the money that was dedicated to initiate those reforms later on.

I would now like to turn to a priority issue, which is the prevention of family violence.

We have launched a truly national, independent inquiry in to the ongoing tragedy of missing and murdered indigenous women and girls.

As we've said, we are also not waiting for the results of the commission. We have taken immediate action this year on the root causes, with investments in women's shelters, housing, education, and child welfare.

The supplementary estimates (B) are requesting $4.8 million in funding to better support, through the family violence program, the existing network of 41 shelters for victims of family violence. This represents the first year of budget 2016 funding, which is $33.6 million over five years and $8.3 million ongoing. We are also investing $10.4 million over the next three years to support the renovation of existing shelters and the construction of five new shelters in first nations communities.

As you know, the other urgent area of need is child welfare.

We recognize that first nations require funds to expand prevention programming and provide additional front-line capacity. The goal is fewer children in care and fewer children who enter the system.

I look forward to discussing the issues with you further during your questions, as well as the areas in which the dollars seem not to have rolled out and will roll forward into next year, in both education reform and in the claims process.

I would now like to turn the committee's attention to another significant step in Canada's journey of reconciliation with indigenous peoples.

In May this year, the government reached an agreement to settle the Newfoundland day scholars class action lawsuit. This settlement includes direct compensation to survivors, as well as healing and commemoration activities. To support this, these estimates request $53 million in funding for that particular settlement.

Another significant part of my department's mandate concerns the north, and specifically for our purposes here, funding for northern and Inuit housing investments in Nunavik, Nunatsiavut, and the lnuvialuit settlement regions.

I have been in way too many homes, as you have as well, both on reserve and in Inuit and northern communities, where the conditions are truly upsetting and totally unacceptable. These estimates include $25.5 million to address immediate long-standing needs in these three Inuit regions. Over the two years, budget 2016 is providing $177.7 million in northern housing investments. Reducing overcrowding and repairing homes will directly contribute to improved health and life outcomes in northern communities.

The supplementary estimates (B) contains many other important investments as well, including $58 million in funding to continue fulfilling Canada's obligation under the Indian Residential Schools Settlement Agreement, and $72 million in funding for the specific claims settlements and Specific Claims Tribunal awards.

Ultimately, this funding will contribute to a more prosperous Canada, and will contribute to closing social and economic gaps for first nations, Inuit, Métis, and northerners.

I very much look forward to taking your questions today.

Meegwetch.

Thank you, Mr. Chair.

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

We were just looking at Bill S-3, and it is definitely going to bring more people to reserves. A lot of people want to attach their land and use the resources.

My biggest concern is that if there is no money attached to this, it's going to put a strain on a lot of the budgets for you guys and for the schooling, Can the schools accommodate it? There are other programs that will also be put under pressure.

Do you think that as part of implementing Bill S-3 there should be money attached to it?

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

Thank you, Chair.

I'd like to welcome you guys to our committee here.

I think Bill S-3 is a good start, but I think it could have been much better if the consulting process were much longer. Obviously, we do feel for anybody who is going to be falling through the cracks.

Earlier we heard from National Chief Bellegarde regarding land adjustments. Do you agree that you cannot just give a person status without a land adjustment?

Does anyone want to answer that?

[Jeannette Corbiere Lavell]

I believe that because so many of their people had lost their Indian status over the years, it dwindled to the point where we have to continue to ensure that the grandchildren, or maybe even the great-grandchildren, of those original members are not lost. Bill C-31 made a slight change

I think that is what those other bills and Bill S-3 are going to do.

[Chief Robert Bertrand, National Chief, Congress of Aboriginal Peoples]

For opening statements, Mr. Chairman, I'll be using the 10 minutes.

Mr. Chairmen, vice-chairs, committee members, representatives, and guests, my name is Robert Bertand. I am the national chief of the Congress of Aboriginal Peoples.

I would like to acknowledge the traditional Algonquin territory we all have the privilege of meeting on today.

I would like to thank the Standing Committee on Indigenous and Northern Affairs for inviting the congress to address this important and necessary discussion on Bill S-3.

I would like to commend Prime Minister Justin Trudeau and the federal government for withdrawing its appeal concerning the August 3, 2015 Superior Court of Quebec decision on the Descheneaux case to the Supreme Court of Canada. The decision to address the Descheneaux case through a two-stage approach to eliminate known sex-based inequities in Indian registration, and not to be limited to the specific facts of the Descheneaux case, is promising to hear.

Since 1971, CAP, formerly known as the Native Council of Canada, has committed itself to advocating for the needs of off-reserve status and non-status Indians, Métis, and southern Inuit peoples. We also serve as the national voice for its provincial and territorial affiliate organizations, or PTOs. Our PTOs are located across the country, from the western coast of B.C. to the eastern reaches of southern Labrador. CAP also has a national youth council.

The congress represents a large number of aboriginals in Canada. It currently represents over 70% of the aboriginal people who live off-reserve.

For over 45 years, CAP has committed itself to addressing issues affecting our constituency, and has been actively involved in cases that involve sex-based inequities in registration. That led to the passage of Bill C-31, and Bill C-3, known as the McIvor case.

Having reviewed Bill S-3, CAP feels two current instances are models for effective change towards reconciliation with off-reserve indigenous peoples. Number one is the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, and number two is the Supreme Court of Canada's historic decision on Daniels v. Canada. Seventeen years ago, our former national leader, the late Harry Daniels, along with CAP, went to the court to force the Canadian federal government to acknowledge that Métis and non-status Indians are Indians under subsection 91(24) of the Constitution Act, and that the federal government has a fiduciary responsibility to them.

The congress launched that lawsuit, funded it at each stage of the proceedings and provided support at every stage of the legal process. I am very proud to have announced on April 14, 2016, that we finally won.

It took the Daniels decision, accorded by the Supreme Court of Canada, to end the judicial limbo of Métis and non-status Indians stuck in the passing of the buck between the provinces and the federal government, as to who we should deal with and who has fiduciary responsibility. The road to reconciliation with indigenous peoples, on whose behalf CAP advocates, could not have happened until the Daniels case was addressed.

Regarding Daniels, Supreme Court of Canada Justice Rosalie Abella stated that “as the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.”

An opportunity for such remedies lies in the distinct possibilities for the federal government and the congress to come together on their progressive reconciliation, in the form of engagement and consultation on all issues affecting our people. This most certainly includes stage one action on Descheneaux v. Canada.

As part of the proposed legislative amendments to address residual sex-based inequities in Indian registration, some individuals who identify as Métis and non-status will become eligible for Indian status. I would like to clearly state that the Métis nation, as expressed by the Métis National Council, does not speak for all Métis. However, the congress respects the fact that they are a Métis nation as defined by themselves. I respectfully submit that we, as an indigenous people who are part of the Congress of Aboriginal Peoples, have for 45 years embraced the rights articulated in article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which states that:

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

Under article 4 of UNDRIP:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs....

Under article 18 of UNDRIP:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

I quote these articles because they carry a direct impact on CAP's constituency. We have a multitude of different indigenous peoples from different nations who live off reserve in communities.

In terms of Bill S-3, as I previously stated, I am pleased that the government decided to withdraw its appeal in the Descheneaux case and that it has undertaken this process to address the gender inequalities that continue to exist in the Indian Act, even after the enactment of Bill C-31 and Bill C-3. Bill S-3 will give Indian status to those who should have had status all along, and will see those born after 1951 become status Indians. However, the Superior Court of Quebec was clear that amendments should not be focused solely on the facts in Descheneaux.

With that said, I do not see why the government stopped at 1951 and did not go back further. For example, Bill C-31 went all the way back to the 1860s. Why is Bill S-3 different? There could, and almost likely will be, individuals falling through the cracks due to the gap between the 1860s and 1951 not being addressed.

I acknowledge that these issues may be addressed in stage two, but that does not immediately help the person who may be entitled to Indian status and the benefits that come with being a status Indian, such as the non-insured health benefits, NIHB, and post-secondary education.

These are issues that remain very important to CAP and to its mandate as the national organization that speaks for status Indians, non-status Indians who live off-reserve, Métis and southern Inuit.

I would like to thank you again for giving me the chance to speak with you today. Meegwetch. Merci. Thank you.

[Cynthia Smith, Legal and Policy Analyst Coordinator, Quebec Native Women Inc.]

Thank you.

I think what's very important to also keep in mind when you look at the Descheneaux case is to request that all gender-based discrimination be tackled. The thing is, with what you're bringing to the table with Bill S-3, you only go as far as 1951, but gender-based discrimination started way before that. I think this is something that is very important to keep in mind.

[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.