Thank you, Madam Chair.
Ladies and gentlemen members of the committee, I will address you today in English.
Thank you for inviting us. I'm David Schulze. I was counsel for Stéphane Descheneaux, Susan and Tammy Yantha, and the Abenaki of Odanak and Wôlinak in the Descheneaux case. I am joined by Chief Rick O'Bomsawin of Odanak and Mr. Stéphane Descheneaux.
Now, I know we did this before Christmas, but I offered to briefly take the committee through the status rules again so that we know what we're talking about, because these issues are not simple.
By way of context, you will recall the challenge that Madam Justice Masse put before Parliament in her judgment. She said she was disposing of Mr. Descheneaux and Susan and Tammy Yantha's case, but as she said, “Parliament is not exempted from taking [other] measures to identify and settle all other discriminatory situations...whether they are based on sex or another prohibited ground.” We will look at whether this bill does that.
Briefly, how does status work? There are two subsections in section 6 of the Indian Act that give you status: 6(1) and 6(2). This chart quickly explains it to you, but it's not always easy to follow. Keep this in mind. A person registered under 6(1) will always have a status child. A person registered under 6(2) will never have a status child if they don't parent with another status Indian. It is always better, if you would like your children to have status and to be able to inherit your house on reserve, to be a 6(1) than a 6(2). That is the bottom line.
This system of 6(1) and 6(2) is the way the federal government, in 1985, tried to solve the discrimination in the Indian Act. Just as an aside: before 1985, status under the Indian Act was purely patrilineal, with one exception. Status was for Indian men, their wives, and their children. That was it. The only exception was for an Indian woman who had a child out of wedlock with an unidentified father. If they couldn't show the father was not an Indian, that child could be registered. Otherwise, there was no one on earth who had their Indian status from their mother; they had it from their father. An Indian woman lost it if she married a non-Indian man, and a non-Indian woman gained it if she married an Indian man. That's how it worked, and that had to be cured in 1985. Why 1985? Because that's when section 15 of the charter came into effect.
The government came up with what they called the second-generation cut-off. After two generations of parenting with a non-Indian, the third generation, the grandchild, has no status. If you look at the cabinet documents from the early 80s, they actually call this a 50% blood quantum. That's what they call it. It is, in effect, really a kind of grandparent threshold. Most of the time, if you have two status grandparents, you will have status, but as you'll see, it's not 100%. You see up here on the chart how a 6(1) will always produce a 6(2). If you have two 6(1)s, they each have a 6(2), and those 6(2)s marry: boom, you've got a 6(1) again. There won't be a quiz on this afterwards.
There's a sort of strength in having 6(1) ancestors, so that—as you'll see here—you can end up with a 6(2) grandchild, but it's not 100%. It won't always be enough. If you spread them out the wrong way, and if you don't have enough 6(1)s in your family tree, you can have the same number of status grandparents and end up with no status. The fact is, as I said, it's always better to be 6(1) than 6(2). The government likes to go to court and say there's no difference between 6(1) and 6(2); they're all Indians. That's very nice for everybody except somebody who is 6(2) and is facing the prospect of having children with no right to stay on the reserve.
Here's the other thing you absolutely have to understand. I'll just go back to one other chart. In this example, that 6(1) status doesn't mean the person was born an Indian. Remember, the non-Indian woman who married in, who married an Indian man before 1985, she got status. She is as 6(1) as anyone else. The 6(1) ancestors are counted whether or not they were born Indians or whether they acquired it by marriage.
When I said the name of the game is to have 6(1) grandparents and great-grandparents, that includes women who married in, and that's what gives us the “cousins” rule that led to the McIvor case.
That's how, in a nutshell, the grandchildren of a woman who married out before 1985, under Bill C-31, under the original amendments, weren't going to get status unless the woman's children parented with Indians. If her brother married a non-Indian, however, his grandchildren would get status. His grandchildren get counted as having two status grandparents and hers don't, because she got her status back in 1985, but of course her husband stays a non-Indian. That's the “cousins rule”. That's what McIvor was about.
The government said they were solving that in Bill C-3. As they often do in the Department of Indian Affairs, however, they didn't see what they didn't want to see. They figured that, because Sharon McIvor's son married after 1985, they would only look at women who married out and whose children had their children after 1985 under the new rules. So Sharon McIvor's son had status but her grandchildren didn't.
They ignored the fact that there were generations of men and their sons and their grandsons marrying before 1985. If a man married out before 1985, and if his son then married out before 1985, he didn't have 6(2) grandchildren; he had 6(1) grandchildren. He could not have anything other than status great-grandchildren.
The comparator is Mr. Descheneaux. Mr. Descheneaux's grandmother married out, and after 1985 he was a 6(2). His children still don't have status. His great uncle would produce 6(1) grandchildren and status great-grandchildren, which Stéphane couldn't, because he traced his lineage to a grandmother who married out, not to a grandfather who married out. That's the Descheneaux part of the Descheneaux case in a nutshell. Parliament messed up. They knew exactly what they were doing. The Abenaki came before them in 2010 and pointed this out.
This is the comparator. The grandfather married out and has six status great-grandchildren. Stéphane has children without status. Under Bill S-3, they will have status. That part of the discrimination is cured by Bill S-3.
There was another case, and I won't get into it in great detail, but I want you to understand what we're dealing with. It was all patrilineal before 1985. The result was, to make a long story short, if an Indian man had a child out of wedlock before 1985, his son could be registered but his daughter could not. Post-1985, they looked at the daughter and determined that since she had only one 6(1) parent she was a 6(2). That's how we got Susan Yantha, who had a different status from her brothers. That's how the same parents could have two children, a son and a daughter, each with a different status.
I want all of you to think about the absolute absurdity of the fact that I had to go before the Superior Court and argue that this was really discrimination under the charter, when Justice Canada stood up and said it wasn't. That is how first nations and their lawyers have to spend their time. That is also cured under this bill.
However, Indian Affairs managed to mess it all up. They messed it up in the bill that was provided and tabled, because now they've made sure that if an Indian man had a child out of wedlock before 1985, the status can go all the way to his great grandchildren through his daughter, but they forgot about the fact that there were women who had children out of wedlock before 1985 who could have their...and if it could be shown that the father was non-Indian, that kid's status could be removed. Again, I won't go through the details, but to make a long story short, they were going to leave that woman's descendants in a worse position than Susan Yantha's children and grandchildren.
They actually told me in a meeting when Chief O'Bomsawin and I met with the staff of the assistant deputy minister and Mr. Reiher, “Yes, we saw that problem but we didn't think it was discriminatory. Then, you know, the Indigenous Bar Association pointed it out before the Senate. Then we decided it was discriminatory, and we fixed it.”
They said they fixed it. Then they had to come back before the Senate last month and fix it again, because they actually hadn't gone enough generations forward. That's where we are with Bill S-3. It's a patch on a patch on a patch on a patch on a patch.
They also cured this problem. I think we really don't have time to take you through it, but it has to do with these particular effects. If an Indian woman had a child by an Indian man but then her second husband was non-Indian, her children under the age of 21 by the first husband would lose status. Those children would end up disadvantaged relatives to their older brothers if those brothers were too old to have lost status. That is cured by this bill and that's all to the good.
This is the scenario that I brought up with Mr. Reiher and that he thinks is not discriminatory. I will try to take you through it extremely quickly as well. Before 1985, an Indian man could decide to enfranchise himself, his wife, and his children. This leads to the following situation, and this is a real situation in Odanak.
A woman was enfranchised before the age of 21, when her dad enfranchised the whole family. Her grandchildren don't have status. Her older sister wasn't enfranchised by their dad, because she was already married to a non-Indian, so she benefited from the McIvor decision; she will benefit from the Descheneaux amendments; and she will have status great grandchildren. This woman will not even have status grandchildren.
The department tells me that this is not discrimination based on sex. I say it is. I say it is for the simple reason that this woman's mother had enfranchisement imposed on her by this woman's father. Indian Affairs says that's okay, because if her brother had enfranchised himself and the sister-in-law, they would be in the same place.
My vision of equality is not that. If we end up with men who have privileges, but are treated no better than women who have no privileges, I don't think that is equality. The Department of Indian Affairs and Justice Canada do.
That's where we are with Bill S-3. That's the overview, and now we have this amendment from the Senate. I'm going to try to make a few relatively simple points about it.
The first one is this, and it's very important that you understand it. Here are the points I want to make. Without the amendments the Senate has brought, the registration rules under the Indian Act, the status rules, will continue to discriminate, and they will continue to violate the charter. There's no dispute about that.
The second point I want to make is that the Abenaki nation was not consulted and not engaged with on Bill S-3.
The third point I want to make is that there is no confidence among aboriginal communities about stage two.
The final point is that there is time right now to do this right.
I want to come back to those points. The first point is that there will be discrimination and the charter will be violated, and you might say they're the same thing. They're not exactly the same thing. The department has told you that the McIvor decision means that they don't have to do this or that, and that the Senate is going too far because it is going further than what McIvor said they had to do.
Let's be very clear on what McIvor said, and I'll try to do this without taking you to the finer points of the double mother rule, which always gives people a headache.