Good evening. It's an honour to appear before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.
I want to thank the Algonquin people on whose traditional ancestral homelands we are assembled.
We brought copies of our presentation for everybody. Unfortunately, it's not in French, but they are available, if you want them. We also brought one copy of the book on McIvor that we did over the past couple of months, talking about the affecting of Indian registration and band membership.
I am the Congress of Aboriginal Peoples' national chief, Betty Ann Lavallée. For almost forty years the Congress of Aboriginal Peoples as a national aboriginal representative organization has represented the interests of off-reserve non-status and status Indians and Métis aboriginal people living in urban, rural, remote, and isolated areas throughout Canada. We are also the national voice for the constituency and their affiliate organizations making up the Congress family of advocates for the off-reserve aboriginal peoples of Canada.
Traditionally, the aboriginal peoples in Canada identified with their own specific aboriginal nations of peoples, whether Mi'kmaq, Maliseet, Mohawk, Ojibway, Seneca, Chipewyan, Carrier, Dakota, Nootka, and onward, as one of the 73 nations of aboriginal peoples of Canada. The aboriginal nations of peoples have been systematically divided by the federal government through Indian policy, the disinheritance of aboriginal peoples' birthright identity and the dispossessing of their access to resources. Today, we have countless classification for “Indian”: we have status Indian, non-status Indian, off-reserve Indian, on-reserve Indian, registered Indian, treaty Indian, band member, non-band member, beneficiary, non-beneficiary, and so on.
In 1985 Bill C-31, an Indian Act amendment, was introduced, and the provisions within stated that discrimination based on sex should be removed from the Indian Act; that status and band membership should be restored to those who lost it through the Indian Act; that no one should gain or lose status as a result of marriage; that persons who have acquired rights should not lose those rights; that bands who want to should be able to determine their own membership.
The 1985 amendments introduced what is referred to as the second generation cut-off rule. This means that anyone registered under section 6(1) has what is considered full status; for example, they can transmit their Indian status to their children regardless of the identity of the second parent. Indians registered under section 6(2) of the Indian Act have only half status; for example, they must parent with another Indian in order to transmit their status as an Indian to their children. Bill C-31 amendments did not address all the gender discrimination but continued to perpetuate it by reinstating only Indian women who had lost their status under paragraph 6(1)(c) of the Indian Act of 1985 and registering their children pursuant to section 6(2).
For Indian men who married non-Indian women, they and their children retained their status as Indians under section 6(1)(a) of the Indian Act. This effectively means that the descendants of Indian women who married out are treated differently—they have lesser or no status—as compared with Indian men who married out, who retain status. This is often referred to as residual discrimination.
The British Columbia Supreme Court found that there was gender discrimination in the registration provisions of the Indian Act and ordered a broad remedy. Canada appealed the decision to the Court of Appeal for British Columbia. The Congress of Aboriginal Peoples was an intervenor, along with six other aboriginal groups. All of the intervenors presented arguments in support of Sharon McIvor's case.
One major issue that required additional attention during the appeal was that of the “double mother rule” of the previous Indian Act. The double mother rule stated that children whose mother and paternal grandmother were non-Indians—that is, were only Indians by virtue of marriage to male Indians—could only be registered until they were 21 years of age. A section 6(1) Indian man can pass section 6(1) status on to his children if he marries a non-Indian woman. Those children can pass section 6(2) on to their children. However, the grandchildren's children would not be registered. In the same scenario, a section 6(1) Indian woman can pass section 6(2) status on to her children if she marries a non-aboriginal man, but those children cannot pass status to their children.
On September 12, 2009, representatives of the Canadian government attended CAP's annual general assembly and confirmed that this is not a consultative process. CAP can be an integral partner in moving this discussion forward. Our constituents have lived the effects of the Indian Act. We have the ability to consult with them, to bring their concerns to the table, and to work out mutually beneficial solutions. CAP's affiliate memberships have different connections with families divided or denied identity or registration by provisions of the Indian Act.
Canada cannot talk to one group about these proposed changes without impacting the other. CAP strongly believes the views of the aboriginal peoples of Canada should be considered and accommodated toward reconciliation. CAP's constituency of the off-reserve aboriginal peoples throughout Canada makes us an invaluable resource and partner in moving forward an interim solution to the necessary changes to the Indian Act. CAP's recommendations to the government are:
That as an interim measure, Canada amend section 6(1)(a) of the Indian Act, 1985, to include the following words: “or was born prior to April 17th, 1985 and was a direct descendant of such a person”;
That Canada ensures that the band membership provisions of the Indian Act, 1985, include those persons added by amended section 6(1)(a);
That Canada provide adequate funding to CAP to establish a national commission to extensively consult, study, and report on what CAP's constituents consider to be the most desirable amendments to the Indian Act regarding registration and band membership; and
That Canada provide adequate funding to CAP to conduct research in the area of registration and band membership to address the gender equality issues raised in McIvor.
Canada is obliged by the BCCA decision to amend the Indian Act to address the residual discrimination prior to April 6, 2010. CAP's constituents are the ones who are directly impacted by the Indian Act.
The complex legal, political, and cultural issues that surround aboriginal identity, including the ongoing fight for recognition of the non-status Indians in Canada, require immediate action. Canada's legal obligation to consult and accommodate aboriginal peoples' rights and interests for reconciliation requires a meeting of the parties. CAP is an inevitable partner, with forty years of experience and knowledge. By working the CAP recommendations, CAP and Canada can begin to build a true partnership for reconciliation and recognition of birthright identity for the largest sector of the aboriginal peoples in Canada--the off-reserve, non-status aboriginal peoples.
Generally, without being exhaustive, Bill C-3 does not address gender inequality between Indian women who married out and their descendants, and Indian men who married out and their descendants. There are at least three very specific problems with the proposed amendments.
Section 6(1)(c.1)(iii) specifically provides as follows: “was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and”.
This section is awkwardly worded, and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from? I do not see this section reflected in Canada's discussion paper, “Changes to the Indian Act affecting Indian Restoration and Band Membership: McIvor v. Canada”.
Section 6(1)(c.1)(iv) provides as follows: “had an adopted child on or after...”. This section has the effect of creating a new way to determine entitlement to registration, and as a result creates a newer form of discrimination between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's child or children. Status has always been determined based on the entitlement of one's parents. For example, parents transmit their status to their children, not vice versa.
Section 9 provides is the non-derivation clause of being able to claim or receive any compensations or damages.