Evidence of meeting #62 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 indian.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Chief Joseph Tokwiro Norton  Grand Chief, Mohawk Council of Kahnawake
Ghislain Picard  Regional Chief, Assembly of First Nations of Quebec and Labrador
Lynn Gehl  As an Individual
Viviane Michel  President, Quebec Native Women Inc.
Cynthia Smith  Legal and Policy Analyst, Quebec Native Women Inc.
Sharon McIvor  As an Individual
Pamela D. Palmater  Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
Catherine Twinn  Q.C. Lawyer, As an Individual
Deborah Serafinchon  As an Individual
Nathalie Nepton  Executive Director, Indian Registration and Integrated Program Management, Department of Indian Affairs and Northern Development

10:40 a.m.

As an Individual

Sharon McIvor

In 2010 this came forward as well. The amended bill came out of this committee. They amended the bill to include a clause very similar to the one we're talking about now. When it went back to the House of Commons, the Speaker ruled the changes out of order. But we had eliminated the “no liability” clause, and that was the only one that was not ruled out of order. The government's response was to scrap the bill and start all over again, because they had what they wanted. Everything else morphed back, except for that one.

Of course no one should be immune for paying for offences—of any kind. It would be great if I could say, “I'm going to do that, but I'm going to immune myself from any consequences of that.” It doesn't make any sense, legal sense or just common sense. It shouldn't be there. If we could remove that kind of protection for themselves, we would probably have laws that actually follow the law.

10:40 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

You only have a minute left for this round.

10:40 a.m.

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

Dr. Pamela D. Palmater

Definitely, that clause should be deleted. We also recommended that the same section in Bill S-3 be deleted. It acts as an incentive to allow the government to continue to discriminate with impunity until they choose to address it or are forced to address it on their good old time. In my submission, I highlight that. I can resubmit it here to say specifically that it needs to be deleted, because they all know that it's discrimination.

10:40 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

A very short answer, please.

10:40 a.m.

Q.C. Lawyer, As an Individual

Catherine Twinn

It underscores the sense of colonial entitlement. It undermines rule of law. The crown and a first nation exercising section 10 authority are fiduciaries. They owe fiduciary duties to the people. They cannot be given immunity for their conduct, because essentially then what you're enabling is breaches—breaches of the law and breaches of procedural fairness—and you're giving them a licence to do whatever they want without consequence. It's wrong.

10:40 a.m.

NDP

Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC

Thank you.

10:40 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

MP Anandasangaree.

10:40 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Madam Chair, I yield my time to Mr. McLeod.

10:40 a.m.

Liberal

Michael McLeod Liberal Northwest Territories, NT

Thank you.

Thank you to the presenters. I certainly appreciate your passion and dedication to this issue.

Catherine Twinn, some time ago, I took one of your sessions on lateral violence, and I did learn a lot from that session.

I don't have a lot of time, and this is a big issue for me. In the Northwest Territories, I have five large aboriginal governments that would want to have input on this.

There is a real concern on my part about why we are here talking about it. Why do we have Indian Affairs acting like a department of immigration for Indians? I think Romeo put it well yesterday when he said that there are more people being accepted into the country than people who would be impacted by this.

At the same time, aboriginal people and aboriginal governments in my riding expect to be consulted. They are very adamant about it, on every issue, and that includes this one.

Pam, I think you indicated that none of the national aboriginal organizations should be consulted. They're not rights holders.

I have two questions.

First of all, on that line, is there anybody who should be consulted as part of phase two that you see would fit.... The question is for all of you: are there any rights holders out there who should be consulted?

Catherine Twinn, you mentioned that impact consultation should be led by both Houses. Maybe you could expand on that also. How do you see that working?

10:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We've actually run out of time, so could your comments be very short? Thank you.

10:45 a.m.

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

Dr. Pamela D. Palmater

I think you might have misunderstood what I was saying. I was saying that with regard to gender discrimination, INAC has been consulting for decades and decades, and you don't get to consult on whether or not to discriminate.

On issues like band membership, funding, and all of those other issues, of course you should be consulting with first nations, first and foremost, and all of those impacted, but what I was trying to say is that the national aboriginal organizations or the regional ones don't have a right to sell us out on gender equality for money for a phase two consultation on unrelated issues.

10:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

I'm going to be quite liberal and give you a chance to speak, if you wish.

10:45 a.m.

Q.C. Lawyer, As an Individual

Catherine Twinn

I think there are certainly parliamentary precedents in relation to, for example, the Penner committee report on Indian self-government. That was a special all-party committee, but I think only of this House, not both Houses.

I think the lawmakers have to become fully engaged, and I don't think INAC can or should lead it.

10:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We're going to have to cut off the debate here.

Thank you so much for coming out. I appreciate the effort to come out on short notice to talk about issues that you have talked about over and over again.

Meegwetch.

10:45 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

I call the committee to order. We're resuming.

First of all, I'd like to thank the department, Indigenous and Northern Affairs Canada, for coming in, and especially the minister, the Hon. Carolyn Bennett.

I believe all members have received copies of your speech, and as soon as you're ready, we'd like to get started.

10:50 a.m.

Toronto—St. Paul's Ontario

Liberal

Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs

Thank you, Madam Chair. It's great to be back at committee, and thank you for inviting me here to talk about Bill S-3, as we acknowledge that we come together on the traditional unceded territory of the Algonquin people.

Thank you also for understanding the urgency of this bill, and also for your work during this prestudy.

As you know, in response to the recommendations of the standing Senate committee, the government sought and was granted a five-month extension to consider Bill S-3. Through the additional time provided, there have been numerous improvements made to the original version of Bill S-3, which the government has welcomed and supported. The bill now proactively addresses further groups impacted by sex-based inequities, which were identified by the Indigenous Bar Association. The recent Ontario Court of Appeal decision in the Gehl case has also allowed the government to address the issue of unstated paternity by enshrining additional procedural protections in law through this bill.

In addition, I acknowledge the understandable skepticism of first nations, impacted individuals, and parliamentarians about whether the second stage of registration membership reform will actually lead to meaningful change. That is why in this bill we are proposing a series of amendments to report back to Parliament on a number of occasions, in a number of ways, to update you and all Canadians on our progress towards broader reform. Three separate reports to Parliament are now in this legislation.

On the stage two process, I need you to know that I am committing personally, on behalf of the government, to co-designing a process with first nations, including communities, including also the impacted individuals, organizations, and experts, to deliver substantive registration reforms, including potential future legislative changes. This will be a process in which the voices of the full range of impacted people will be represented at the table, and which will incorporate a human rights lens.

I want to be clear that in stage two, charter compliance will be the floor, not the ceiling, and there may well be areas of needed reform on which there is no consensus to be achieved. The government has made it clear that consensus will not be a prerequisite for action. However, if the government is to act absent consensus, it only increases the necessity for decisions to be based on a foundation of meaningful consultation engagement, and credible evidence about the potential impacts of reform.

Balancing the needed time to engage impacted people with that for parliamentary process has allowed only two truncated three-month engagement periods, even with the extension granted by the court.

Given the context of the limited engagement possible within the timelines imposed by the court, I think it’s important to address the intended scope of Bill S-3.

The goal of Bill S-3 is to remedy the known sex-based inequities relating to the registration in the Indian Act, which falls short of charter compliance.

This is not restricted to situations in which a court has already ruled but also extends to situations in which the courts have yet to rule but in which we believe a sex-based charter breach would be found. However, the government has been clear that in circumstances in which the courts have ruled that policies are charter compliant, in which situations are more complex than purely alleged sex-based inequities, government action must be based upon meaningful consultations, as is stated in the UN Declaration on the Rights of Indigenous Peoples.

Despite supporting numerous amendments proposed and adopted by the Senate committee, the government has made it clear that it cannot support one amendment put forward by Senator McPhedran and accepted by the Senate. The intention of Senator McPhedran's amendment to clause 1 of Bill S-3 would seem to provide entitlement for Indian registration to all direct descendants born prior to April 17, 1985 of individuals previously entitled as Indians under previous Indian Acts, possibly back to 1876. In simpler terms, this clause seeks to implement the approach commonly referred to as “6(1)(a) all the way”.

While I believe this amendment was put forward with the best of intentions, the way the amendment is drafted creates ambiguity as to whether it would have the intended effect.

This ambiguity was highlighted by Senator Sinclair during clause-by-clause at the committee and by the Indigenous Bar Association when it testified before this committee. If this clause is interpreted in a way to implement the “6(1)(a) all the way” approach, then it could potentially extend status to a broad range of individuals impacted by a wide range of alleged inequities well beyond those that are sex-based.

The government is open to considering this approach through stage two, but we have not adequately consulted with those who could be impacted, and we do not currently have the demographic information to understand the actual practical implications of implementing such an approach. While the government is initiating that work now, preliminary estimates are not based on reliable data and contain huge ranges of numbers of potentially newly entitled individuals, from 80,000 to two million. Highlighting these numbers is not to suggest that either end of the spectrum is what the impact would be but to note the huge range of current estimates and the need for better data.

In addition to the current lack of understanding of the practical implications of the approach, it’s clear that the necessary consultation hasn’t occurred.

This clause may have profound impacts on communities, which could find themselves with huge numbers of new members with little or no connection to their community and without any meaningful prior consultation. I want to understand the perspectives and concerns of the vast number of potentially impacted people who have not yet even been asked their opinion on “6(1)(a) all the way”. This particular clause was not part of any prior consultation.

I want to be clear: I stand in solidarity with the indigenous women who have been fighting on these issues for decades. I hear their pain and hurt from having received a letter in which they were told their marriage made them a white woman. Whether these remaining issues are charter issues or not, I want to be part of fixing these ongoing problems. But we must be careful not to repeat the mistakes of the past, whereby, even sometimes with admirable intentions, policies are implemented absent proper consultation or evidence and result in dire and unintended consequences. I want to work with communities, impacted individuals, and experts to ensure that we finally get this right.

The concerns expressed by many about the drafting of this specific clause show how easy it is to get this wrong if it is rushed. As many of you may be aware, the court deadline for this legislation is July 2.

If, by July 3, we don’t have legislation passed that addresses the charter compliance issues outlined in the Descheneaux decision, the clauses struck down by the court will be inoperative in Quebec.

The practical implication would be that these provisions would then become inoperative within Canada: 90% of status Indians are registered by the federal government under the provisions that would be inoperable. In addition to the up to 35,000 individuals waiting for their rights to be granted through Bill S-3, we cannot lose sight of the thousands of individuals who will not be able to register if the court deadline passes and the provisions noted above become inoperable.

In conclusion, I ask you to vote against proposed paragraph 6(1)(a)—the “all the way” clause—and send this bill back to the Senate in a form that respects our duty to consult and allows us the time, through stage two, to finally get this right.

11 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

Our first questioning comes from MP Michael McLeod.

June 8th, 2017 / 11 a.m.

Liberal

Michael McLeod Liberal Northwest Territories, NT

Thank you, Madam Chair.

Thank you to both the minister and the delegation presenting to us today on this issue.

It really puts me in an awkward situation here to be deciding on who should be an aboriginal indigenous person and to be wrestling with this issue, which should not be in place. The process should have had prior consultation way back. We shouldn't be dealing with a government resisting change. This shouldn't have been court-induced. However, we're here in this situation.

I'm from the Northwest Territories. We have a lot going on in terms of dealing with some of the issues that have been impacting us on the aboriginal indigenous agenda. We have 10 sets of discussions going on, with negotiations on land claims and self-government. We don't have reserves. We have public communities. So the impact of in-migration certainly won't be something that concerns us as much. However, we are concerned about the impact on land claims and self-government. Land quantum compensation is all based on numbers. For us, more people means more numbers and more ability to negotiate bigger agreements. That said, we are still locked into dealing with numbers from 1970.

How does this impact people? How do we talk to the people who are in these discussions? They will determine their own membership, but they'll be starting from a base from the time they're signing. I'm a little nervous; do we wait to settle the land claims after this issue is dealt with or should we move forward? Do you have any opinion on that?

11 a.m.

Liberal

Carolyn Bennett Liberal Toronto—St. Paul's, ON

It's a great question. As I've said before at this committee, the citizenship of a nation should not be Canada's business. This is very clear in the UN declaration. Only nations can determine their citizenship. We feel that this process of getting out from under the Indian Act and being able to just fix these inequities that were enshrined in it is part of a larger process to self-determination—and to putting my friend Nathalie out of work. This is what we want to do, ultimately.

As you say, the population of a community needs to be up to them. It shouldn't be being decided by courts or Canada in this way. We feel that this is an interim step, and then phase two will be another interim step, but in the meantime, we're trying to get on with those conversations toward self-government so that communities can make their own decisions.

11 a.m.

Liberal

Michael McLeod Liberal Northwest Territories, NT

Yes. Thank you for that. I'm very happy that we're no longer fighting this piece of legislation. We're moving forward. There's an amendment that is causing concern. We've heard concern from Senator Sinclair. We've heard it from the Indigenous Bar Association that the wording may cause complications. It's not worded properly. It may clash with other parts of the bill.

We also heard that nobody trusts Indigenous Affairs. We heard that loud and clear. The 18-month plan to consult will take us into probably the next government. I might not be sitting here. We might have different people occupying these seats.

I heard today from Catherine Twinn, who brought up an interesting concept that I hadn't realized was an option. Let me ask you, what is the possibility of having the impact consultations led by both Houses, the Senate and this place?

11:05 a.m.

Liberal

Carolyn Bennett Liberal Toronto—St. Paul's, ON

I think we're open to that. I think one of the best committees I ever sat on was a joint committee of the House of Commons and the Senate.

In our commitment to co-design the process with indigenous people, those impacted, by first nations or whatever...if they think that would be a more efficient way of doing this, and not doing it twice, we're open to anything. What we're codifying in the bill is that we will report back within 12 months as to the progress we're making. We need to be efficient about the co-design within six months. We need to have a really good approach to meaningful engagement to make sure we get the people who aren't generally sitting around these tables but who would be or have been impacted by this. How do we get all those voices into the engagement sessions?

Remember: there are the three things. We report back to you within five months on the design, we launch within six months, and we have to report back to Parliament within 12 months on our progress to date.

We hear you in terms of “nobody trusts the Indian agent”. I guess I'm just saying that as a feminist, and as somebody who has spent my whole career in the doctor-patient relationship, but also with elected representatives, the community, and engaged citizens, I am serious about this being a meaningful engagement and about being able to get real results that will allow us the practical way of implementing whatever the new changes would be. How do we make sure that achieving equality and equity is actually fair, that everybody will buy into that process, and that it is a legitimate and fair process as we go forward?

11:05 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

The questioning now moves to Cathy McLeod.

11:05 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, Madam Chair.

Thank you, Minister, for joining us today to talk about a very important piece of legislation.

I want to point out first that it has been a very bizarre process. Typically in House of Commons committees we will study the bill after it's been referred from the House. In this case, way back in November, we supported it to do our due diligence, recognizing your Supreme Court of Canada deadline, and looked into a prestudy while the committee was looking at it. We're now doing another prestudy, and I understand there's a rush to clause-by-clause. Also, there hasn't been one minute's worth of debate in House. I do want to flag that as certainly a very unusual circumstance in terms of my experience as a parliamentarian since 2008.

Having said that, I have some significant concerns that relate to what was said back in November and what we're hearing now. I want to go back to November 21. I asked the departmental officials if they were confident that Bill S-3, as it stood on that day, “would eliminate all known sex-based inequities”. I was told on the record that they were “confident”.

The official said:

In terms of your specific question for sex-based discrimination, yes, this bill is addressing everything that is wrong.

That is what was told to us then.

Today, we see a sort of amended version come back. We have, of course, the Gehl case and some other changes that have been made, and you're talking about making changes based on what the Indigenous Bar Association told you about sex-based inequities.

On Tuesday, I said:

The definition of “known” is when the courts have directed, as opposed to “known” by looking at the issue broadly?

At that time, Mr. Reiher said:

Actually, as we indicated, it's what the court has decided, plus what is clear.

To me, way back in November, you knew about the court case that was proceeding. You knew about these issues. When I asked again on Tuesday if this is dealing with “all sex-based inequities”, how can I have confidence in the answer that it is, when clearly I was given the same answer in November and we're dealing with changes? Indeed, to me, it's inconceivable that you knew about one case going through the courts and it wasn't dealt with.

Perhaps you could explain to me how we can have confidence now when in November we were given the same information and it was clearly wrong.

11:10 a.m.

Liberal

Carolyn Bennett Liberal Toronto—St. Paul's, ON

I want to start, Cathy, by saying that the first thing we had to do was to remove the judicial review that the Conservative government had placed on the Descheneaux decision. Then we said we'd accept what was in the exact case of Descheneaux. Then we said we could add some other things that we know, and then the Gehl case was actually about unstated paternity, so we have added a number of things to what was the letter of the Descheneaux case in order to go more broadly on these issues that we believe are charter issues.

The B.C. Court of Appeal said that the McIvor “6(1)(a) all the way” was not.... We didn't have to reach back that far to be charter compliant, so now we are saying that we are doing everything that we know is a charter issue and more, but now we have to get out and consult on the things that actually are policy decisions as opposed to charter compliant.

11:10 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Are you saying that the Gehl case didn't meet your criteria because it wasn't sex-based discrimination, or the years were too early in your opinion?