Yes, and I'm with the aboriginal bar section, not the criminal bar section.
I should add that I was counsel for one of the intervenors in the McIvor case as well, so I've been involved in this issue for a bit of time.
The committee has the legislative summary before it that gives a history of not only the McIvor case, but also the preceding amendments to the Indian Act for section 6, namely, Bill C-31, and before that, although it never was enacted, Bill C-47. I'm not going to rehash that. We've given you a written presentation giving some background from our perspective.
I'd like to focus, in my limited time, on the four recommendations we make. They're all substantive, but one of them is more substantive than the others. Let me briefly go over the three lesser substantive ones and then we'll get to the main point we want to make.
We asked the question, does Bill C-3 eliminate sex discrimination? The answer is, sort of but not quite, so we want to focus on trying to figure out what can be done.
We appreciate that the B.C. Court of Appeal provided a very narrow interpretation of section 6, and to some degree the government has responded with an equally focused piece of legislation. However, the opportunity to look at section 6—this is the first time in 25 years—shouldn't be passed by and this opportunity taken merely to respond to the court of appeal, but maybe look a little deeper to see what can be done given the constraints of the existing court order.
I'm beginning at the middle of our paper, page 4 in the English, and I believe it's page 5 in the French portion.
Our first point—and this is one the previous speaker just mentioned—was that under the proposed paragraph 6(1)(c.1), there are four conditions in order to gain section 6 status under the bill. The fourth condition is that you also have to parent a child. The CBA's first recommendation is that this last condition be removed.
The legislation, so far as we understand it, was designed to reflect the fact pattern in the McIvor case. So with Sharon McIvor's adult son, Jacob Grismer, how do we ensure his children have status? The point was made before, so I'm not going to go into it in depth.
The fact is that by requiring people in Jacob Grismer's situation to have a child before their own status is improved from a 6(2) to a 6(1) seems frankly to be a bit silly. It also adds some administrative inefficiencies, because you then have to have two different applications for re-registration under different status, as well as the child.
The Jacob Grismer generation has to apply to improve their status in order for their child to then get section 2 status. It seems that's unnecessary because that's covered in a different part of the bill. So our first recommendation is that subparagraph 6(1)(c.1)(iv) be removed from the proposed amendment to the Indian Act.
Our second recommendation—and this was addressed at length by Chief Wilson-Raybould earlier, so we just want to note that the CBA supports this—is that there should be adequate funding provided for first nations to address the influx of new members given the passage of this bill. That's our second recommendation. Sorry, I got that backwards. That was our third recommendation.
Our second recommendation also goes towards clause 9, which was raised by my colleague, and that is that it precludes people bringing actions against the government. Again, this seems like a bit of a parting shot at potential litigants. With the repeal of section 67 of the Human Rights Act, I think it does call into question how those proceedings will go given this prohibition and whether opportunities will be there for future litigation.
There are also several cases already in the courts that will have to be judged as to whether they'll be shut down by this or will be able to proceed.
The discrimination has been there, and the government has known about it, since 1985. It was well canvassed in the committee reports of the day. The government shouldn't be able to avoid liability now, in our view, just because of the passage of time, for something it has known about--this residual discrimination within the Indian Act.
I'd like to get to our last recommendation, which is our main one. I would encourage committee members to look at the table in our report. This is where we say that within the confines of the focus of this legislation, there is still residual sex discrimination. I think you heard from Ms. McIvor yesterday, and we say in our brief, that this bill does not eliminate all sex discrimination. We have provided a comprehensive list of the sex discrimination it doesn't address. Even within the four corners of the bill, there is still some residual discrimination.
What we've done here in the table is set out three scenarios. The first is prior to 1985. That would be before Bill C-31. If a woman married out, she lost her status, as did her children and her grandchildren, but the hypothetical brother did not. In fact, everyone kept their status, except in this peculiar situation, from 1951 to 1985, when the double mother rule was in place.
I should say that the double mother rule was in fact really only operative for 13 years. It came into effect in 1951, but you had to have people who were becoming age 21. So it wasn't until 1972 that the first people could actually be struck as Indians from the register. There was evidence before the court of appeal--I don't have the reference handy--that in fact of the 2,000 or so people the double mother rule could have affected, only about 100 were in fact taken off. There were two reasons for this. One was that over half of the first nations in the country were exempted from the double mother rule. The other was that the minister was able to pass ministerial orders exempting provisions of the Indian Act, including the double mother rule, from applying to first nations. Several first nations were able to be exempted from that rule. So it actually affected a very narrow group of people for a very short period of time.
The middle part of the table shows what happened after Bill C-31, and this is the problem Bill C-3 is trying to remedy and what the court of appeal grappled with. This is exactly Sharon McIvor's situation. She was reinstated. Her child got subsection 6(2) status, but the grandchildren born before and after 1985 did not get status, whereas the hypothetical brother had full status under subsection 6(1), and so did the second generation. There was a distinction, then, between the children born before 1985 and those born after 1985. If they were born before 1985, they actually kept full subsection 6(1) status, but if they were born after 1985, they got subsection 6(2) status.
With this proposed bill, there is residual discrimination. Everyone is equal, more or less, in terms of whether they have subsection 6(1) or 6(2) status, except the grandchildren born before 1985. If they were born before 1985, this bill would confer on them subsection 6(2) status. But the hypothetical brother's children would have paragraph 6(1)(c) status.
Again, we want to emphasize that Parliament should take this opportunity to end all sex discrimination. At the very least, within the four corners of this bill, it should try to be consistent and try to eliminate the sex discrimination. We have a recommendation for an additional clause, which would be subparagraph 6(1)(c)(ii).