Evidence of meeting #39 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was phase.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Gaylene Schellenberg  Lawyer, Legislation and Law Reform, Canadian Bar Association
David Taylor  Executive Member, Aboriginal Law Section, Canadian Bar Association
Kim Stanton  Legal Director, Women's Legal Education and Action Fund
Krista Nerland  Associate, Olthuis Kleer Townshend - LLP, Women's Legal Education and Action Fund
Pamela Palmater  Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
Mary Eberts  As an Individual
Ellen Gabriel  As an Individual
Candice St-Aubin  Executive Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Martin Reiher  Senior Counsel, Operations and Programs Section, Department of Justice
Joëlle Montminy  Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Clerk of the Committee  Mr. Grant McLaughlin

3:30 p.m.


The Chair Liberal Andy Fillmore

Good afternoon, everyone. We'll come to order now.

This is the House of Commons Standing Committee on Indigenous and Northern Affairs. Today we're convening pursuant to Standing Order 108(2) to study the subject matter of Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration. We're meeting today, as we always do, on unceded Algonquin territory, and we're very grateful for that.

We have a very packed panel for the first hour, so we've asked our five speakers to limit their remarks to seven minutes each. That will leave 25 minutes for questions from the committee itself. I'll wave a yellow card so that speakers will know they have a minute to conclude, and then a red card to finish up.

I would ask you to do your very best to stay within the time limit in order to make sure we get some questions in and that everyone can be heard fairly. Without further ado, I'd like to introduce this panel of speakers.

First, from the Canadian Bar Association, we welcome Gaylene Schellenberg, Lawyer, Legislation and Law Reform, and David Taylor, Executive Member, Aboriginal Law Section. From the Women's Legal Education and Action Fund, we have Kim Stanton, Legal Director, and Krista Nerland, Associate at Olthuis Kleer Townshend - LLP. Appearing today as individuals are Pamela Palmater, Chair in Indigenous Governance, Ryerson University, Department of Politics and Public Administration, as well as Mary Eberts, and Ellen Gabriel.

Welcome to all of you. We're very pleased that you could join us today.

We will launch right into it with the Canadian Bar Association and its two representatives.

I invite you to share the time between you as you see fit within those seven minutes. You have the floor. Thank you very much.

3:30 p.m.

Gaylene Schellenberg Lawyer, Legislation and Law Reform, Canadian Bar Association

Thank you for the invitation to appear before you today on Bill S-3.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries, and academics, with a mandate that includes seeking improvement in the law and the administration of justice.

Our aboriginal law section consists of members from all parts of Canada specializing in aboriginal law. With me today is David Taylor, an executive member of that section. David will summarize some of the highlights from our brief and respond to your questions.

Thank you.

3:30 p.m.

David Taylor Executive Member, Aboriginal Law Section, Canadian Bar Association

Thank you. Good afternoon, Mr. Chair and honourable members.

I'm pleased to appear before the Standing Committee on Indigenous and Northern Affairs.

I'll give my presentation in English, but I would be happy to answer questions in French.

The CBA aboriginal law section is pleased to contribute to the Standing Committee on Indigenous and Northern Affairs' pre-study of Bill S-3's subject matter.

I would begin by recalling the words of Madam Justice Ross of the Supreme Court of British Columbia in her reasons at trial in McIvor v. the Registrar, Indian and Northern Affairs Canada:

...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children.

It is therefore not surprising that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.

One of our main points concerns the manner in which this bill was brought forward and is being considered by Parliament.

When Bill S-3 was introduced at first reading in the Senate, consultations with regard to the first phase of the government's response to the Descheneaux decision were far from over. While we understand that the Indigenous Affairs consultations regarding Bill S-3 were to conclude last Friday, December 2, it remains the case that moving forward in the legislative process while there were still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them, as required by the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the House are designed for the amendment of bills based on public feedback, the honour of the crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.

We are also concerned by clause 8 of Bill S-3, which precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal crown have been on notice since at least the 2009 decision in McIvor by the British Columbia Court of Appeal that the amendments to the Indian Act in 1985 did not entirely resolve the discriminatory aspects of the Indian status system and, in fact, created new discriminatory elements.

On this point, Madam Justice Masse held in Descheneaux:

The year is now 2015. The 1985 Act from which the discrimination arises has been in force for a little more than 30 years.

The general finding of discrimination in the 2009 judgment of the Court of Appeal for British Columbia in McIvor could have enabled Parliament to make more sweeping corrections than what was accomplished in the measures in the 2010 act. The discrimination suffered by the plaintiffs arises from the same source as the one identified in the case.

Canada was aware that work remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.

By continuing to withhold eligibility for Indian status from certain women and their descendants, government realizes a cost saving: controlling costs by having fewer members. The result of discrimination should not be an economic benefit to the government.

Removing clause 8 from Bill S-3 would change the financial incentive going forward and would send a clear message from Parliament that the government will not be given a licence to discriminate through absolution for the past consequences of its actions where government was clearly on notice through prior court decisions that its broader legislative scheme was not on sound constitutional footing.

As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of Bill S-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.

The subject matter of Bill S-3 should also be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broader review of this question.

Indeed, in the second-last paragraph of her reasons for judgment, Madam Justice Masse held:

Parliament should not interpret this judgment as strictly as it did the [Court of Appeal for British Columbia's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

Given the long history of discrimination involved in the Indian status system, the phase two process will benefit from timely parliamentary scrutiny long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.

In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory and contrary to section 15 of the charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly, the legislative process, both here and in the phase to come, should set its sights higher in an attempt to rectify the inequities that have long been identified in the Indian status system.

Those are our submissions.

Thank you.

3:35 p.m.


The Chair Liberal Andy Fillmore

Thank you very much, Mr. Taylor.

We'll move right along to the Women's Legal Education and Action Fund.

You have seven minutes, Ms. Nerland and Ms. Stanton, to share as you would like.

3:35 p.m.

Dr. Kim Stanton Legal Director, Women's Legal Education and Action Fund

Thank you.

Good afternoon. Thank you so much for inviting LEAF to speak with you today. We're very grateful to the Algonquin nation for allowing us to meet on their territory.

My name is Kim Stanton. I'm the legal director at LEAF, the Women's Legal Education and Action Fund. With me is Krista Nerland, who is with Olthuis Kleer Townshend. Krista is LEAF's co-counsel in its intervention in the Gehl and Attorney General case. This is a case that's making its way to the Ontario Court of Appeal for a hearing in a couple of weeks. It's about the way the Indian Act treats unstated and unknown paternity. We say that the policy is a form of sex discrimination against women. We note with concern that the Department of Justice continues to fight Dr. Gehl, an indigenous woman who lives with a disability, in her efforts to gain status. This is something that we really do need to rectify, and this bill doesn't do it.

LEAF is a national organization. We're a non-profit. We were founded in 1985 to promote substantive equality for women and girls through litigation, law reform, and public education. We've long been concerned about the persistence of sex discrimination in the Indian Act, and we're very disheartened that this is yet another legislative attempt to address the discrimination that falls short of providing indigenous women with justice.

Krista will provide you with a summary of our concerns about this bill.

3:40 p.m.

Krista Nerland Associate, Olthuis Kleer Townshend - LLP, Women's Legal Education and Action Fund

Thanks, Kim.

LEAF is focusing our submissions today on what the government calls phase one, essentially Bill S-3 before you. LEAF supports the broader nation-to-nation conversation about moving beyond Indian Act status towards first nation citizenship that will follow. In the meantime, it's our position that it's not acceptable to leave in place a status regime that discriminates against indigenous women. With that in mind, we'd like to make five basic points about the bill today.

First, the Native Women's Association of Canada I think has already explained to this committee that indigenous women were left out of the development of this bill and that it was presented to them as a fait accompli . This is a mistake. It should go without saying that indigenous women's groups should be partners in remedying sex discrimination against indigenous women under the Indian Act.

Second, contrary to its title, this act does not remove or eliminate all the sex discrimination in the Indian Act status provisions. It's at best a partial response. For example, the bill seems to allow for the granting of lesser status to certain people born prior to 1951 who trace their Indian status through the female line. In addition, the status provisions, or more particularly the way that INAC implements them, impose a disproportionate burden on women who cannot identify the father of their children, for instance, because of rape, incest, or domestic violence. It leaves those women and their children without equal access to the status provisions under the act. This is sex discrimination and is prohibited by both section 15 of the charter and by international law.

In our view, Bill S-3 is an unfortunate replica of the narrow, piecemeal approach that Parliament took six years ago after the British Columbia Court of Appeal's decision in McIvor. If this bill passes as it is, we'll all be back here in a year, or two years, or five years, as another indigenous woman or one of her descendants has spent years before the courts trying to get equal access to status under the act. It is unacceptable, and it's inconsistent with the charter's substantive equality guarantee to force indigenous women and their descendants to endure the financial and emotional hardship of years of protracted litigation to address discrimination that we already know is in the Indian Act.

LEAF urges this committee to ensure that Parliament's legislative response to Descheneaux removes all sex discrimination from the status provisions now. This will be a strong foundation for the broader nation-to-nation conversation about moving beyond the Indian Act that follows.

Third, the best way to do this is to stop creating layers and layers of status that leave intact the old discrimination under the act. There are better options. Six years ago, after the decision in McIvor, the government proposed a similarly narrow and piecemeal reform bill, not unlike the one before you today. At the time, an amendment was put forth that effectively gave everyone status under an amended form of paragraph 6(1)(a) rather than creating more layers of inferior status. A provision like that would go a lot further to addressing the sex discrimination in the act, although it's worth noting that this would not address the discrimination against women who cannot or will not state the paternity of their children. That's something that needs to be addressed in addition.

Fourth, the Superior Court of Quebec's deadline of February 3, 2017 should not be relied on as justification for a bill that doesn't do that job. If you can't remove all the sex discrimination now, then you need to ask for an extension in order to ensure that, as it goes through, the bill addresses all of the discrimination that we know to be in the Indian Act.

Finally, LEAF urges the government to ensure that first nations communities and organizations have both the land and the resources they need to support new registrants. What this means can't be determined unilaterally in Ottawa, but it needs to happen in partnership with those first nations governments and organizations.

By way of conclusion, I want to emphasize what's at stake for the people who are excluded from status as a result of these discriminatory provisions. It's not just about the material benefits, post-secondary funding, health. Although those can be significant, being denied status can also mean exclusion from community life, the denial of human dignity and self-worth, loss of band membership, and the ability to live on reserve. The United Nations Committee on the Elimination of Discrimination against Women has stated that these provisions in the Indian Act are among the root causes of violence against indigenous women in Canada. These harms are serious, and indigenous women and their descendants have already endured them for over 145 years. It's essential that the government get this bill right.

Thank you for allowing us to make submissions.

3:40 p.m.


The Chair Liberal Andy Fillmore

Thank you very much for that.

Before we move to Ms. Palmater, who is speaking as an individual, I want to note that Ms. Palmater provided us with a handout. We didn't have time to get it translated into both official languages. We have it in English and a draft in French. If it's okay with the committee, we'll pass it out, but I didn't want to do that without permission.

Does that sound okay to everybody?

3:40 p.m.

Some hon. members


3:40 p.m.


The Chair Liberal Andy Fillmore

Ms. Palmater, the floor is yours for seven minutes. Thank you.

3:45 p.m.

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

[Witness speaks in Mi'kmaq] Pam Palmater. I'm from the sovereign Mi'kmaq Nation on unceded territories in Mi’kma’ki.

I want to thank you for allowing me to come today to speak to some of my concerns with Bill S-3. First, I think it's important to acknowledge that we're on Algonquin territory. Second, we're here today for the efforts of indigenous women who have continued this battle for many decades, like Mary Two-Axe Early, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, Sandra Lovelace, and now the second generation of litigants fighting for gender equality for indigenous women, including Jeremy Matson, Lynn Gehl, Nathan McGillivary, and of course, Stéphane Descheneaux.

My primary concerns will be laid out in the submission that is being handed out.

The most important one is that Bill S-3 does not address all known gender discrimination. It doesn't. You've heard from other witnesses who have given very specific examples. My examples are not exhaustive, but they include grandchildren who trace their descent through Indian women who married out pre-1951, the illegitimate female children and their descendants who trace descent from Indian men born pre-1951, and also the differentiation and hierarchy that was created between paragraph 6(1)(a), the male category, and paragraph 6(1)(c), primarily the female category. They have come to be known as the “real Indians” and the “wannabe Indians”. In fact, 6(1)(c)s are the same in descent; they just happen to be indigenous women and their descendants.

A problem that also causes gender discrimination is with Bill S-3. They've now included even more complex differentiation in terms of categories. You have proposed paragraphs 6(1)(c.01), (c.2), (c.3), and (c.4). This also disproportionately impacts the descendants of Indian women who married out. Here's the problem with that. There is no legal or policy justification on behalf of Indian Affairs to have everyone identified in this way.

Programs and services are addressed through contribution agreements based on a membership or the status Indian registry. They never have to record whether you get health, if you're a 6(1)(a), (b), (c), (d) (e), (f), or 6(2). There's no justification for it, so then what's the alternative reason for it?

What it does is it places a scarlet letter on women and their descendants for having committed the sins of marrying out, having had illegitimate children, or worse, being born female. That's a scarlet letter that doesn't attach to Indian men and their descendants who have married out and have intermarried for many successive generations.

The other issue is the hierarchy of Indian status between subsections 6(1) and 6(2), those who can pass on status and those who can't. Those in the “who can't” section are somehow seen as defective and cannot pass on their status to others. It disproportionately impacts indigenous women, the children of unwed Indian mothers who cannot name the father, or who will not name the father because of the reasons that LEAF annotated, and also when fathers deny paternity or when they refuse to sign application forms. INAC has given the power to Indian men to have an impact on the children of indigenous women in this way. Last is the denial of compensation to women who have suffered discrimination for so long.

Bill S-3 also does not provide adequate protection for membership. You'll recall that pre-1985, Indian status and membership is synonymous. Even after Bill S-3, it will only be synonymous for Indian men, not for Indian women. Bill C-3 didn't provide those protections, and now Bill S-3 doesn't provide those protections.

The constitutional protection for gender equality is just that. Section 15 of the charter is equality for men and women. Subsection 35(4) of the Constitution, for anyone who wants to exercise aboriginal treaty rights, must be guaranteed equally between men and women. Article 44 of UNDRIP, which this government has said it's going to implement, also says there's equality between men and women. There is no legal option to negotiate, consider, consult, or agree our way out of gender equality.

If you look at the traditional laws of indigenous nations in this country, I have yet to find one in all of my research that promotes gender inequality.

Canada cannot proceed to phase two without addressing all gender inequality. It acts as a legal prerequisite. You cannot talk to our first nations without our indigenous women and their descendants there. It is unconstitutional. It violates all of our traditional laws, and it would act as a legal barrier to even starting the conversation in phase two.

Bill S-3 also needs to be accompanied by funding for first nations. You'll know that INAC has set aside millions of dollars for itself to deal with Bill S-3 applications, but it didn't set aside a single cent for first nations to deal with this at the community level.

Canada obviously failed to engage in any sort of legal consultations by its own admission.

The impact of Indian registration, as we discussed, is very serious. It's not just about programs and benefits; it's a root cause of murdered and missing indigenous women. It's lack of access to elders, language, ceremonies, and even access to powwows. There are powwows children cannot attend unless they have a status card, no matter how they were raised or whether they were raised in a first nation community.

It also won't address any of the pending litigation. Sharon McIvor's litigation is still outstanding. The Descheneaux cases are still in the hopper. There are Lynn Gehl's, Jeremy Matson's, and Nathan McGillivary's cases, and the Canadian Human Rights Commission has many. And of course, there's the Bill C-3 class action that was brought about because of gender discrimination.

My recommendations, very quickly, are for paragraph 6(1)(a) all the way. Every indigenous man and woman who had children prior to 1985, married or not, should all get the same kind of status so that indigenous women and their descendants don't have to wear the scarlet letter of paragraph 6(1)(c). You need rightful compensation for those who have been knowingly denied gender equality since 1982. For pre-1982, Justice said that's a barrier; there have been legal consultations.

My last word to you is that if we do not address gender discrimination now, in all likelihood, it won't happen. In phase two, they want us to deal with aboriginal treaty rights, nation to nation, getting rid of the Indian Act, and the minister has said that her standard for that is absolute consensus. There will never be, in the history of humanity, consensus on gender equality, but that's the law of the land.

Thank you.

3:50 p.m.


The Chair Liberal Andy Fillmore

Thank you, Ms. Palmater.

We'll move right to the next speaker, Mary Eberts, please.

3:50 p.m.

Mary Eberts As an Individual

Thank you very much for inviting me. I also offer thanks to the Algonquin Nation, which hosts all of us on its territory.

I have been counsel in many cases where women or women and their children have sought to challenge the denial of status under the Indian Act. I have also made representations to this House and to the Senate on behalf of the Native Women's Association of Canada and on behalf of Indian Rights for Indian Women on the issues relating to registration and women.

On this occasion, I appear as an individual. I do not speak for any client.

I would like to add some recognitions to those offered by Dr. Palmeter. In the Descheneaux case, two other plaintiffs were also women: Susan Yantha and her daughter Tammy. They challenged the inability of a woman to pass on her status to a child born out of wedlock in certain circumstances. I would also like to recognize or complete the recognition of Mary Two-Axe Earley by recognizing Jenny Margetts and Nellie Carlson, who helped found the western branch of Indian Rights for Indian Women.

I have two points to make today. Bill S-3 is under-inclusive, and the process being used for amending the registration provisions by way of Bill S-3 is not in accordance with the recommendations of Madam Justice Masse.

I begin with some comments on the origins of discrimination against women, which I ask you to bear in mind as you consider whether to endorse a narrow approach to remediation of this law, as has been installed in Bill S-3, or a broader approach to remediation of the law, as has been recommended by Dr. Palmeter, Sharon McIvor, and others.

It's crucial to remember that one of the main purposes of the Indian Act was to hasten the “civilization”—meaning assimilation—of aboriginal people. One of the primary mechanisms for achieving assimilation was the definition of “Indian” included in the act. Anyone not within that definition was, because of that exclusion, assimilated, that is, no longer the responsibility of the Government of Canada.

Why was this done? We should never forget. Even when there was a treaty about land, the first nation was assigned its land and the land was administered under the Indian Act. The connection between Indian land and the Indian Act has a key consequence. If the number of status Indians could be reduced to zero, then the connection between aboriginal people and their lands would be severed. There has always been a link between the disentitlement of women from conferring status in their own right and the coveting of Indian land.

Historically, women were the primary targets for exclusion from the act. One reason for this was the male privilege that reigned supreme in the Victorian era, when the act was first conceived. Another was the willingness to override indigenous laws about membership. These two reasons acted together. The Indian Act enforced the Victorian family with its paterfamilias, overriding the rules of many indigenous cultures that had the woman as the source of membership in the nation. For example, the Tsimshian “stick law” provided that a woman and her children were always members of the nation, welcome back even after they had separated from it through marriage or for other reasons.

The one exception to this male hegemony over status was the right of the Indian woman to confer status on a child whom she bore out of wedlock. This was not an unqualified right. It was possible under many versions of this legislation for the child's entitlement to status to be challenged. When the case of Martin v. Chapman held that a male Indian could also confer status on his child—namely, his son born out of wedlock—that right did not carry with it any possibility that someone could protest that the father was not an Indian.

This, too, is a sign of disproportionate power for the male under the Indian Act system. Simple acknowledgement of the child as his own, whether or not it's true, would confer status on the child. In the “unstated” or “unacknowledged” paternity rules under the present act, we see a powerful restatement of this male privilege, where withholding that acknowledgement, or the impossibility of getting it, prejudices the child's acquisition of full status.

Each time reform of the Indian Act holds back on giving full rights to women, either in the present day or vis-à-vis past rules, we are perpetuating the system that used disinheritance of women and their children as a tool of assimilation. If we continue this assimilationist approach in the construction and administration of the Indian Act, we are continuing the approach of the colonizer, so well summed up in this statement by Duncan Campbell Scott, then deputy superintendent of Indian Affairs. He said this in 1920:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

Let me mention some areas of under-inclusiveness. Let me begin by saying I agree with Dr. Palmater and Sharon McIvor about the practicability and the wisdom of amending 6(1)(a) for all purposes. I also agree with the CBA in its recommendation about clause 8. I would refer you to the brief of the Grand Conseil de la Nation Waban-Aki for some further instances where Bill S-3 does not fulfill its mandate.

If I may, I have one last point about consultation. I agree with the witnesses who have said that consultation is not appropriate in a case where you are remediating violations of equality rights. Bill C-31 was the product of consultation and we see now, 30 years later, people are still litigating the unconstitutionality of what that consultation produced.

Thank you.

4 p.m.


The Chair Liberal Andy Fillmore

Thank you very much.

Ms. Gabriel, you may proceed for seven minutes.

Thank you.

4 p.m.

Ellen Gabriel As an Individual

[Witness speaks in Mohawk]

I greet you in my language and acknowledge all the natural life forces that allow us to be here today, including mother earth.

I've been listening to people talk about the legalities of it, and I'm here to tell you a bit about what it's like to live in a community where there's fighting over who's more Indian than the other person. We as indigenous people are regulating Canada's dysfunction, Canada's refusal to repudiate the doctrines of superiority that have allowed Canada to tell us and define for us who is going to be an Indian under the Indian Act. You come to us and you expect us to give you the answer. Well, the answer is self-determination; not self-government, but self-determination.

I agree with everything that has been said today. Indigenous women have experienced double discrimination, first for being indigenous, and then for being women.

I find that a lot of the semantics that are being used in the propaganda to sway people to think that they are getting any kind of entitlement by having status belie the dispossession that we experience as indigenous people. We are entitled to this; it's something that our ancestors gave us. We're entitled to this from the colonizer.

We're going to be rebuilding our nations, and just as the Indian residential schools apology acknowledged those who survived the genocide, Canada needs to acknowledge further and more deeply the damages and threats to our languages and culture and the criminalizing of our traditional forms of governance. Our traditional forms of governance need to re-emerge, and we need to be part of a true partnership as a nation, and not “consultants”, because we are always considered minorities. We are not minorities. We are peoples with self-determining rights, and as such we will determine who will be our citizen.

As far as forced assimilation goes, as Mary said, under article 8 of the Declaration on the Rights of Indigenous Peoples, individuals have the right not to be subjected to forced assimilation or destruction of their culture. Yet that is exactly what is going on with Canada and its laws. As Mary said, 1985 was exactly when we started getting some movement on this, but Canada has been hesitant because of the cost. In our communities, we are being further dispossessed, because it is always the public interest and not the interest of indigenous peoples' human rights that goes first.

We are the first to experience climate change. We are the first to have less than what the ordinary Canadian considers.... As former auditor general Sheila Fraser said many years ago, it would take 28 years for in-community schools to catch up with the rest of the schools and the rest of Canada. Imagine that: children and schools are going to be set aside. That is the kind of portrait that I want you to see so you can see what you are going to be making decisions about.

We need to have the emergence and the ability to recover from the genocide that our ancestors recovered from. Canada must repair the harm that it has done to indigenous nations. Why do we always have to take up residency on reserves, these small postage-stamp sized communities that the Government of Canada has allowed us to live on out of the good graces of its heart, and yet it can appropriate the land anytime it feels like it?

I find it really difficult to be here and to talk about gender equality, because I do believe in it. I wholeheartedly believe in gender equality, but there must be some reconciliation and restitution. There must be a human rights-based approach. The United Nations Declaration on the Rights of Indigenous Peoples is a good way to go about it. Universal, interdependent, indivisible—that's what human rights are about. It's not about the economics of it. Canada needs to stop making us its industry to make employees and to create jobs, because a lot of our budget goes to the bureaucracy that's in the Department of Indian and Northern Affairs Canada.

The consultations are totally inadequate. You have to have real consultations if we are going to profoundly address this issue of gender equality, and we have to put aside the question of what it's going to cost Canada, because it's now costing us. It's costing us threats to our language, threats to our culture, threats to our land, the environment....

I find it really difficult to hear about the Prime Minister of Canada saying that indigenous people are the most important relationship he has when I see what is going on with the environment, with the pipelines, and when I see the fact that my community, which suffered military occupation and paramilitary forces 26 years ago, is still struggling with the same land issues as back then. Ours is the oldest issue. For 300 years it's being going on.

We need to stop looking at the cost and start looking at the traditional customs. We need access to our trust fund that was developed for us. That's where our money for services comes from.

You know, when Canada decides to accept someone as a citizen, that citizen has to study about the country, speak the language, and understand the culture. That doesn't happen when it comes to Indian status. Indian status is given out like bingo cards. What we want, if those people come back, is that they also learn their language and learn their culture. It's not about going to the SAQ and buying bottles of wine without paying taxes. It's about something more profound than that. It is about being onkwehonwe, the real human beings that my ancestors talked about. It's about loving the land, loving the environment, and thinking seven generations ahead. That's what this should be about.

I thank you for your time.

I mean no disrespect to anybody. I hope my words did not offend anyone.

Niawen ko:wa.

4:05 p.m.


The Chair Liberal Andy Fillmore

Thank you very much, Ms. Gabriel.

We'll go right into the round of questions from the members. Each question is similarly seven minutes, and I'll use the cards the same way.

The first question will come from Gary Anandasangaree, please.

4:05 p.m.


Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you to the panel for your very candid assessments of Bill S-3.

We certainly take no offence, Ms. Gabriel. You remind us of the reasons we're all here, especially as MPs, in order to work on such an important issue.

I'm a little conflicted here, I must admit. As we have very limited time, I'll be really specific with my question. I also want to be able to yield some time to my colleague from Thunder Bay. In the time I have, though, I want to ask this specific question of each one of you, the three organizations as well as the two individuals who are appearing.

As we see Bill S-3, do we pass it, with the commitment from the minister and the department to go into phase two consultation?

Do we amend it? If we do amend it, what are the specifics that...? I know you've all mentioned it, but perhaps you can give us very specific points.

Do we not amend it and just go into phase two, knowing full well that it will be in violation of the ruling?

I know it's probably a difficult position to put you in, but I think this will be helpful for us as we deliberate.

4:05 p.m.

Executive Member, Aboriginal Law Section, Canadian Bar Association

David Taylor

To start, to the extent that other discrete categories have been identified and are known—the bill's title is to end known gender discrimination—the approach would be to amend the bill now with what else is on the table. There have been a variety of proposals as to how best to do that, and the CBA won't take a position on which that is.

There's further adding in the different criteria or, as Dr. Palmater has proposed, an amendment to provide paragraph 6(1)(a) status going back before 1985. Certainly to the extent that Parliament knows now that there's an issue, the thing to do is to act now, as Justice Masse encouraged at the end of her reasons, not to limit it only to the facts of additional plaintiffs.

4:10 p.m.

Legal Director, Women's Legal Education and Action Fund

Dr. Kim Stanton

We agree that it should be amended now. It should not be passed. It should not be left to phase two. It needs to be fixed now. To the extent that an amendment can encompass what Dr. Palmater has suggested in terms of paragraph 6(1)(a) for everybody, we certainly agree with that.

We want to see hierarchies removed from the Indian Act. This bill perpetuates hierarchies. Those need to be removed.

We certainly don't think the bill should be passed as is, at all. It needs to be amended.

December 5th, 2016 / 4:10 p.m.

Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual

Dr. Pamela Palmater

I agree that it needs to be amended. My caution is that it should be amended to make sure that men and women, married or not, and their descendants are equal pre-1985 under paragraph 6(1)(a) so that there's no hierarchy. However, this was attempted before, with McIvor in Bill C-3, and that amendment was ruled out of order for procedural reasons.

If it comes up that there's some technicality or procedure that doesn't allow you to do that, and you can't amend it properly, then an extension should be sought from the court, with the consent of the Descheneaux litigants, which they've already given, to allow further time to go back and get it right and not leave it for phase two, because phase two has that standard of consensus, and as you know, no human society ever agrees on gender equality, and we don't have the option to do that.

4:10 p.m.

As an Individual

Mary Eberts

I agree with Dr. Palmater virtually entirely, and would add this:

If the amendment amounting to making everyone a 6(1)(a) is challenged, my own view is that it's highly arguable that such an amendment is valid because the title of the act, and therefore the purpose of the act, is the elimination of sex-based inequities in registration. That is a broad purpose. I would encourage you to be bold given that broad purpose.

Thank you.

4:10 p.m.

As an Individual

Ellen Gabriel

I agree with the previous speakers.

I think if you're going to do any amendments, it has to be with the pre, prior, and informed consent of indigenous people. The Canadian Human Rights Commission, and I believe the Supreme Court, have said that Canadian courts are free to use international human rights instruments when interpreting domestic legislation, and you should be bringing in those international human rights instruments into this discussion.

4:10 p.m.


Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you very much.

Mr. Chair, I'd like to yield the rest of my time to my colleague from Thunder Bay.

4:10 p.m.


The Chair Liberal Andy Fillmore

Very good.

Don, there are two minutes remaining.

4:10 p.m.


Don Rusnak Liberal Thunder Bay—Rainy River, ON

Ms. Gabriel, what you said in your seven-minute presentation really spoke to me because I think it's what we need to be doing at this committee, what we need to be doing as a government. The Indian Act is something that was designed to destroy our people. Tinkering with it or doing certain things to it does nothing to move our people forward. We're just perpetuating all the problems that have existed in our communities for far too long.

Having said that, I worked in many isolated first nations communities with people who have absolutely been destroyed by the Indian Act, who are absolutely dependent. I've asked this question of department officials—and I'm sure the committee will get the answer on it: Who are these 40,000 people who the minister said today are going to be affected by Bill S-3, and who are the people who may potentially be affected by certain amendments?

Then I ask myself, there's a finite set of resources within the Department of Indian and Northern Affairs, so are these people who are currently under the Indian Act who absolutely depend on the Indian Act going to be affected by a resourcing problem if more people are admitted for status under the Indian Act?

4:10 p.m.


The Chair Liberal Andy Fillmore

I'm afraid there are just about 20 seconds remaining. I'm not sure, Don, who you wanted to respond to that.