Evidence of meeting #10 for Indigenous and Northern Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-3.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Dianne Corbiere  Representative, Indigenous Bar Association
Ellen Gabriel  President, Quebec Native Women Inc.
Chief Lucien Wabanonik  Grand Chief, Assembly of First Nations of Quebec and Labrador
Daniel Nolett  Director General, Abenakis Band Council of Odanak, Grand Council of the Waban-Aki Nation
Michèle Taina Audette  Representative, Marche Amun, Grand Council of the Waban-Aki Nation
David Nahwegahbow  Representative, Indigenous Bar Association
Paul Dionne  Lawyer, Grand Council of the Waban-Aki Nation
Angus Toulouse  Ontario Regional Chief, Chiefs of Ontario
Guy Lonechild  Federation of Saskatchewan Indian Nations
Chief Stewart Phillip  President, Union of British Columbia Indian Chiefs
David Walkem  Chief, Union of British Columbia Indian Chiefs
William K. Montour  Chief, Six Nations of the Grand River
Richard Powless  Advisor, Six Nations of the Grand River
R. Donald Maracle  Chief of the Mohawks of the Bay of Quinte, Association of Iroquois and Allied Indians
Sharon Venne  Treaty Researcher, As an Individual
Pamela Palmater  Chair, Ryerson University's Centre for the Study of Indigenous Governance, As an Individual

6:20 p.m.

Treaty Researcher, As an Individual

Sharon Venne

Okay. The judges in the court of appeal said in paragraph 66:

I do not doubt that the arguments might be made to the effect that the elements of Indian status should be viewed as aboriginal or treaty rights. The interplay between statutory rights of Indians and the constitutionally protected aboriginal rights is a complex matter that has not to date been thoroughly canvassed in the case law. It seems likely that, at least for some purposes, Parliament's ability to determine who is or who is not an Indian is circumscribed.

That's from the B.C. Court of Appeal. We suggest that the committee have some independent lawyers--that is, other than the Department of Justice lawyers--provide you with evidence regarding this important statement and how it might circumscribe the powers of this committee.

The committee is dealing with the issue of status. As you know, in Bill C-31 there was an issue created where people could define membership. We now have a situation in the first nations where people who are status are not receiving benefits, people who are membership Indians are not recognized as status, and there's no link between the two. Our treaty right as first nations needs to be restored. If you're going to involve those who are not part of that relationship, then the committee is actually creating mischief in relation to unfinished treaty business.

The Canadian government has failed to maintain the honour of the crown. It has failed to fulfill the crown's sacred commitments. In each and every instance, the government has benefited and profited from the failure to honour the treaties. These are not innocent oversights.

We are here today to review those proposed amendments to the Indian Act. We are fully aware of the purpose. Parliament in 2010 wants to do what successive Parliaments have done since 1876. Parliament wants to pretend the treaty did not happen. It wants to pretend that section 35 of the Constitution did not happen. Parliament wants to pretend that the rest of the world voted to accept the Declaration of the Rights of Indigenous Peoples as an international standard. The colony of Canada still wants to hang on to its colonial past by defining who is an Indian.

The committee can look to the future and bring Canada into the 21st century by establishing and implementing the treaty relationship. All of Canada's prosperity is based on the expropriation of the benefits from the treaty relationship without honouring the obligations of the treaties.

To this end, we will make a number of recommendations, hopefully to be implemented in our lifetime.

6:20 p.m.

Conservative

The Chair Conservative Bruce Stanton

Ms. Venne, I'm going to ask, since we've only got about 30 second left, how many recommendations you have.

6:20 p.m.

Treaty Researcher, As an Individual

Sharon Venne

I have four.

6:20 p.m.

Conservative

The Chair Conservative Bruce Stanton

Okay. Can you just step through them very quickly?

6:20 p.m.

Treaty Researcher, As an Individual

Sharon Venne

Yes. They are: that Parliament move away from the physical support of individuals and move towards the physical support of first nations; that the whole concept of status should be climbing in significance and moving towards first nations identification; that the government go back to the structure of the treaty, understanding that the crown is the treaty partner, not the federal government; and that this relationship be based on the honour of the crown.

Thank you.

6:20 p.m.

Conservative

The Chair Conservative Bruce Stanton

Thank you very much. That was great.

We'll go to Dr. Palmater next for 10 minutes. She is the chair of Ryerson University's Centre for the Study of Indigenous Governance.

Welcome, Dr. Palmater.

April 20th, 2010 / 6:20 p.m.

Dr. Pamela Palmater Chair, Ryerson University's Centre for the Study of Indigenous Governance, As an Individual

Thank you very much.

Thank you for inviting me to speak to you today about this incredibly important matter. I don't think anything has been said so far about self-government and self-determination in our own jurisdiction that I don't agree with.

That being said, my presentation deals more with the nuts and bolts of Bill C-3. It's also important to note that I'm not acting as anyone's legal counsel. I'm not here on behalf of any political organization. The people I represent are my ancestors, my extended family, my children, and our future generations--seven generations into the future.

My name is Pam Palmater and I'm a Mi'kmaq woman; however, my status in life is that of a non-status Indian. I am a first-generation non-status Indian because I descend from a matrilineal lineage as opposed to a patrilineal lineage. This negatively impacts every single member of my family; not just myself as a non-status Indian, but my children. All of my siblings will be differently impacted by Bill C-3 because of our own particular fact scenarios. Some of us were born before 1951, some of us are illegitimate, and some of us are adopted. All of these things will create further divisions in our family.

I see six major problems with Bill C-3. Subclause 2(2) of Bill C-3 simply re-enacts paragraph 6(1)(a) of the Indian Act as it reads now and will not accomplish the goal of eliminating gender discrimination. There is nothing in the McIvor court of appeal that prevents Canada from addressing larger forms of gender discrimination.

When the Supreme Court of Canada recognized the treaty right of the Mi'kmaq people in the Marshall case for commercial-based fishing, their response was not that they signed only one agreement with one first nation with regard to eels; there was a much larger response. They signed agreements on a whole array of fish species with all willing first nations. At no time did they say we were limited by Marshall to only deal with that fact scenario.

Similarly, when Lovelace brought her case to the international forum, Canada's response was to not simply reinstate paragraph 12(1)(b) on women; they reinstated their children and gave bands the option of controlling their own membership. They changed the legal presumption for unstated paternity from that of Indian paternity to non-Indian paternity, and they reinstated a whole host of other individuals. It's inconceivable that we can sit here today and say that somehow, because of this one singular case, we're limited in our abilities.

On my second problem, assuming that subclause 2(2) of Bill C-3 is not amended, subclause 2(3) of the bill, which adds proposed subparagraph 6(1)(c.1)(i) to the Indian Act, is still problematic because it contains a 1951 cut-off date. We've heard previously at committee that there is no 1951 cut-off date and people will not be negatively impacted, especially if those people have siblings who were born post-1951, but I would take those assurances lightly because that is not what the act says.

My third problem is that subclause 2(3), which adds proposed subparagraph 6(1)(c.1)(iv) to the Indian Act is probably the most problematic because it creates a new distinction not enacted in the Indian Act before. It creates a distinction between the children of Indian women who married out who have non-status Indian kids and those who don't have non-status Indian kids. It is completely unnecessary for Canada to create a new distinction that will, for all intents and purposes, discriminate on the basis of family status.

My fourth problem is that clauses 7 and 8 of Bill C-3 do not provide adequate protections for those to be registered under Bill C-3 with regard to band membership. This is in stark contrast to what we did in 1985. Some limited protections were enacted to protect those who were reinstated with regard to band membership. There is no conceivable reason that we cannot do that now. The Lovelace case was not about band membership. This one isn't either, but that doesn't mean that gender protections can't be incorporated.

Fifth, even if this committee will not consider a broader amendment to address gender discrimination in section 6, the current bill would still have to be amended as it does not entirely address even the gender discriminations that were raised in McIvor. Double mother clause descendants still have better status than paragraph 12.(1)(b) descendants. In my actual 15-page submission--I don't know if everyone has it yet, it's probably not come from translation--I provide charts that explain that.

The main point here is that not to remedy the minimal gender discrimination that was raised in McIvor defeats the entire purpose of Bill C-3. What are we talking about if we're not going to at least do what was in McIvor?

The final problem is clause 9. Clause 9 is an offence to Indian women and their descendants who have already waited more than 25 years for justice. It is also counter to both the spirit and the intent of the Charter of Rights. INAC officials appeared before this committee and stated that even though Bill C-3 didn't deal with the larger gender and other discrimination issues, the repeal of section 67 of the Canadian Human Rights Act would provide an avenue for individuals to bring forward claims of discrimination. Yet, at the very same time, Canada is appearing before the Canadian Human Rights Commission, denying the commission's jurisdiction to even hear these complaints on the basis that status is not a service. It seems somewhat disingenuous for Canada to limit the remedy under Bill C-3 under the guise that there are alternate remedies when in fact that might not be the case.

I have nine specific recommendations.

One, Canada should withdraw this bill, seek an extension of time, and redraft more appropriate legislation.

If this cannot be done, then I would suggest that an amendment be made to clause 2 of Bill C-3 by adding the words “or was born prior to April 17, 1985, and was a direct descendant of such a person to paragraph 6.(1)(a) of the Indian Act”.

Number three, delete clauses 3 and 4 of Bill C-3 and any reference to the very problematic section of proposed paragraph 6.(1)(c.1) of the Indian Act.

Number four, a new clause should be added before or after clauses 7 and 8 of Bill C-3 that provides protections for Bill C-3 individuals with regard to band membership, especially for those born pre-1985.

Number five, clause 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in regard to status.

Number six, adequate funding should be provided to first nations for band-delivered programs and services based on their actual increased membership numbers and to enable bands to review and compare their band membership codes to the Charter of Rights and to the Canadian Human Rights Act and make the necessary amendments to ensure that their codes respect gender equality.

Number seven is that Canada, in partnership with national, provincial, and regional aboriginal organizations, first nations communities, and individuals negotiate a process by which to compensate those affected by Bill C-3 in the fairest, quickest manner possible. They have already waited more than 25 years.

Number eight is that additional legislation be immediately drafted in partnership with those same aboriginal groups to proactively address the remaining aspects of gender discrimination in the Indian Act.

Number nine is that Canada, in partnership with those same groups, negotiate the mandate, terms of reference, funding structures, and deliverable objectives of a joint consultation process that will lead to further amendments to the act dealing with the other discrimination issues in the short term, but negotiate a similar process for the long term to establish modern treaties, self-government, and first nations jurisdiction over citizenship.

Do I have any time left?

6:30 p.m.

Conservative

The Chair Conservative Bruce Stanton

About 10 seconds.

6:30 p.m.

Chair, Ryerson University's Centre for the Study of Indigenous Governance, As an Individual

Dr. Pamela Palmater

Okay.

Points to stress: Bill C-3 does not fully deal with the gender discrimination of McIvor; two, Canada is not limited by the McIvor decision; if Bill C-3 goes through unamended, it will conflict with the Canadian Human Rights Act; four, the assumption is that Bill C-31 had unintended consequences. We all know this isn't the case.

6:30 p.m.

Conservative

The Chair Conservative Bruce Stanton

Thank you, Dr. Palmater.

Now we'll go to Chief Donald Maracle. I see that the chief is joined today by Velma Hill-Dracup--welcome--and also by Keith Sero. Mr. Sero is a councillor with the Mohawks of the Bay of Quinte, as is Ms. Hill-Dracup.

We'll turn it over to Chief Maracle. Please proceed. You have 10 minutes.

6:30 p.m.

Chief of the Mohawks of the Bay of Quinte, Association of Iroquois and Allied Indians

Chief R. Donald Maracle

She:kon sewakwe:kon.

Bonjour.

Good evening, everyone.

We offer our best wishes to the members of this House of Commons committee.

I'm here on behalf of the Association of Iroquois and Allied Indians. I found out on Friday that I was going to be presenting today for the grand chief, so I'll do my best.

The Association of Iroquois and Allied Indians includes eight communities in southern Ontario, with a membership of 20,000 people. The Mohawks of the Bay of Quinte, of which I am chief, has 8,000 of those members.

The presentation has been handed out to you today. Bill C-3, Gender Equity in Indian Registration Act, on first nations citizenship is contrary to the Royal Proclamation of 1763 and the Treaty of Niagara of 1764. The Royal Proclamation of 1763 was executed at the close of Pontiac's war and was intended to recognize first nations sovereignty and autonomy in their own territories in a nation-to-nation relationship. The Treaty of Niagara was a peace and friendship treaty with the crown one year after the assertion of sovereignty that confirmed the mutual respect and the crown's commitment to respect first nations jurisdiction over their own land and people.

The Indian Act was unilaterally introduced in 1876, during the height of the residential school establishment, and was never agreed to in any treaty with first nations. Section 35 of Canada's Constitution Act recognizes and affirms first nations, aboriginal, and treaty rights. Aboriginal and treaty rights are inherent rights that have never been relinquished to Canada and still exist.

Bill C-3 is inconsistent with the inherent right to self-government recognized in section 35.1 of the Constitution Act. First nations have the right to exercise our own jurisdiction and govern ourselves without the influence or interference of federal legislation. These rights include the inherent right to determine who our members are.

The Royal Commission on Aboriginal Peoples recognized that citizenship is vested in the first nations right to determine our own citizenship and our own criteria for citizenship. The United Nations has also spoken to this matter in article 33.1 of the declaration, which states that indigenous peoples have the right to determine our own identity and membership in accordance with our customs and our traditions.

The crown always has a duty to consult on any legislative or policy matter that affects our people or the well-being of our communities. The Supreme Court of Canada has recognized that the federal government is required to consult and accommodate first nations when they are contemplating action that could affect aboriginal and treaty rights.

Bill C-3 infringes and derogates first nations treaty and aboriginal rights. This is another case of Canada's assertion that their own laws do not apply to themselves when dealing with first nations. Canada held a number of public engagement sessions--

6:35 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Chairman, I have a point of order.

6:35 p.m.

Conservative

The Chair Conservative Bruce Stanton

Oui.

6:35 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Did I understand correctly that the chief distributed a document? If it was distributed, it was not done so in both official languages. So the document should not be in the hands of committee members without a translation of it. I don't have it and I don't have the translation. I see that others have documents that I do not have.

6:35 p.m.

Conservative

The Chair Conservative Bruce Stanton

The clerk received the document and it is currently being translated. We do not have it here.

6:35 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Some have it.

6:35 p.m.

Conservative

The Chair Conservative Bruce Stanton

No.

6:35 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

So it was not distributed.

6:35 p.m.

Conservative

The Chair Conservative Bruce Stanton

No, they have not yet been distributed.

6:35 p.m.

Chief of the Mohawks of the Bay of Quinte, Association of Iroquois and Allied Indians

Chief R. Donald Maracle

Karen Campbell handed them out at the beginning of the session.

6:35 p.m.

Conservative

The Chair Conservative Bruce Stanton

It was sent to the clerk, but it must be translated before it can be circulated to the--excuse me, just a moment.

Okay. A document was circulated by one of the staff of the witnesses. Documents that are provided privately to witnesses around the table, because they don't come through the clerk, don't necessarily have to follow the protocol. We do ask witnesses to provide documents for distribution in both official languages. We have encountered this issue before, so when you refer to the document, as you've given it to us here today, it will have to be translated and then provided to the members at large. Understand that some of the members here don't have the opportunity to make reference to it. If you could guide your comments accordingly, that would be helpful.

Thank you, Chief.

6:40 p.m.

Chief of the Mohawks of the Bay of Quinte, Association of Iroquois and Allied Indians

Chief R. Donald Maracle

Je m'excuse, Monsieur Lemay.

Canada held a limited number of public engagement sessions in limited timeframes as information sessions. The duty to consult and accommodate cannot be delegated to third parties like INAC or AFN. Meaningful consultation must occur with the actual rights holders, who are our members. There is a huge issue of capacity and resources. First nations lack the capacity and resources to administer their own membership rules, while Indian Affairs continues to take a paternalistic role in asserting oppressive policies like the Indian Act.

First nations lead every category of socio-economic statistics in Canada, including poverty and unemployment. Bill C-3 will add to those socio-economic problems with first nations due to a lack of resources and services such as housing, education, health care, and policing for current membership. Canada has not committed to any new resources to go with the sharp increase in membership proposed under Bill C-3.

I've handed out informally a report that was published in The Hill Times on Monday, March 1, 2010, about the socio-economic conditions on all reserves in Canada, and in particular the current chronic underfunding, which is the basis of a human rights complaint with the Human Rights Commission as well as the United Nations special rapporteur.

Bill C-3 does not recognize first nations institutions, processes, and approaches to determining our own membership. First nations have had these processes in place for thousands of years prior to contact. Traditional forms of mediation and alternative dispute resolution such as the elders council and circles must be established, recognized, and used. In addition, the repeal of the Canadian Human Rights Act, set to take effect in 2011, will put first nations in a vulnerable position for litigation for membership in a variety of scenarios, including denial of services, which cannot be provided due to the lack of services and funding. Again, Indian Affairs tells us there will be 20,000 to 45,000 new members, but there is no commitment to provide the financial resources to accompany and make provision for new members on reserve. First nations resources and services will be stretched even further as a result of Bill C-3.

In addition, Canada does not recognize that first nations with very limited land bases will require additional land to service a population. The Department of Indian Affairs Ontario regional office is bankrupt when it comes to having the ability to fund water treatment systems and urban-style subdivisions that are required to make provisions for new housing. While we currently have 18,000 acres of land on a reserve, a lot of that land cannot be developed because it is swampland. First nations have the poorest land and are often on extensive waiting lists for basic services that other people take for granted, such as the provision of safe drinking water.

I speak as a community chief for one of the large first nations in Ontario. We currently have a waiting list of 105 people for housing in our area. Affordable housing is an issue. There's not enough money for post-secondary education for people to pull themselves out of poverty through education. I think most people sitting at this table would recognize and value education as an important asset to get yourself out of poverty. Simply passing legislation to cure a human rights issue, yet visiting a whole raft of socio-economic problems on communities that are already strapped is really not a very progressive step. I realize the court has ordered Canada to correct the injustice to aboriginal women, and we do support that. However, there needs to be a holistic approach to this problem; otherwise the socio-economic problems are going to worsen for first nations people.

6:40 p.m.

Conservative

The Chair Conservative Bruce Stanton

Thank you, Chief Maracle. I appreciate that.

Now we will go to questions from members.

We'll begin with Mr. Russell for seven minutes.

6:40 p.m.

Liberal

Todd Russell Liberal Labrador, NL

Thank you, Mr. Chair, and good evening.

I thank you all for your patience. I know it's been a long wait, but I think the work is very important, and what you're presenting to us is certainly going to inform us, as committee members, in trying to improve this particular bill.

I was very intrigued by the statement made by Ms. Palmater that Bill C-3 does not even meet the test as set out by McIvor. I was wondering if you could expand on that a little bit. I think that is certainly a question we'll have to put to the departmental officials as well, to get their response.

I think you raise a very good question. When there were other cases around aboriginal rights in some instances or around status in other instances, the government took some pains to move beyond strictly what the court had adjudicated in their decisions, had broadened it out a little bit. You mentioned two examples: Marshall and of course the Lovelace case. In this particular instance, it seems the government has taken a lot of time to make it as narrow as possible, almost making the bill fit exactly the family situation that had arisen in the McIvor case, and that's it. And if they're lucky enough, other people might fit in there somewhere. That seems to be the approach. I would like your opinion on the first point, on where it doesn't meet McIvor, because that's very important.

The second issue is around Canadian human rights. Am I sensing that you're saying we're setting up first nations for complaints? You know, more people will get status, but we don't provide resources. That's what the government is doing. Therefore, as Chief Maracle has stated, if they can't get access to housing or other basic services, that will give rise to more human rights complaints. Is that the relationship I'm hearing between what Bill C-3 does and the repeal of section 67, which will come into effect within another year?

6:45 p.m.

Chair, Ryerson University's Centre for the Study of Indigenous Governance, As an Individual

Dr. Pamela Palmater

With regard to your first comment about Canada making the choice to make it very limited, we have lots of examples of how Canada has responded in a much larger way to deal with the fundamental issues. I should also add that Canada creates new Indians all the time. We have Conne River, we have Innu, and now we're going to have the FNI. But when it comes to Indian women and their descendants trying just to get equality, nothing more. I think it was Chief Montour or Mr. Powless who said this: Canada has to be brought to the table kicking and screaming. That's a significant concern.

In the translated version I have included two charts, one that shows how the situation between Indian women who married out and double mother clause people are still not equal, even after Bill C-3. I've also included a chart that shows my family as an example of how that's not the case. The majority of double mother clause descendants will still have paragraph 6(1)(a) status and then can pass on subsection 6(2) status to their grandchildren. That is not the case for paragraph 12(1)(b) descendants, and that is where the inequity is. You can't just pick and choose which double mother clause people you're going to talk about. We're talking about all the double mother clause people.

To your question with regard to the Canadian Human Rights Act and the interplay with Bill C-3 in that, I agree with what you said: for sure we're setting up first nations. What I was specifically getting to is that clause 9, which denies compensation for those who have suffered discrimination, not pre-1985 but post-1985 when the charter was in play, could potentially limit the remedies at the Canadian Human Rights Commission.

If you go to the Canadian Human Rights Commission and say you're being discriminated against on the basis of status, and DOJ doesn't win their argument about jurisdiction, or delays because of the joint process, then what is their remedy? If Canada is insulated from liability under Bill C-3, how will that impact the Canadian Human Rights Act? I haven't seen any analysis from DOJ, INAC, or any bodies yet. I would be interested to see what the Canadian Human Rights Commission says.

That is my primary concern, to be saying, you have an avenue under the Canadian Human Rights Act, but maybe you don't if we pass this bill.