Indigenous and Northern Affairs Committee on Oct. 1st, 2009

[Caroline Davis]

Those two programs are absolutely necessary to have status. You also need to have status and live on a reserve for entitlement to some of the other programs, such as housing. So it becomes a little more complicated when you start to cost out those implications. As I've indicated, if there are some 25,000 to 40,000 new Indians registered as a result of the amendment, it's not necessarily clear yet how many will take up residency on reserve. It's more difficult to predict that.

[The Chair, Conservative, Bruce Stanton]

Okay. We'll have to leave it at that.

We will now go to Mr. Lemay.

You have seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Chair, this is an extremely important legal issue. Since the McIvor decision, numerous provincial bars have been studying this question. I worked with the Quebec Bar on the McIvor decision and there is an Aboriginal Bar committee working on it as well. These are very specific questions.

Certain crucial dates were included in the Indian Act, and these provisions cannot be amended. I would like to know, because this is the starting point, if anyone who said they were could be an Indian before September 4, 1951. And please answer slowly.

[Martin Reiher]

On September 4, 1951, an act was adopted, under which the Indian Register was created. New criteria were adopted to determine what we now call Indian status.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I apologize for interrupting. They have been enshrined in the act since September 4, 1951, is that right?

[Martin Reiher]

That's right.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

So that's what we must use as a basis to establish who is an Indian and who is not or who will obtain Indian status.

[Martin Reiher]

For the administrative purposes of what we call Indian status, that is indeed correct.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

So, if a group, association or individual tells us today that they should have been registered in 1927, 1932 or 1940, but that they did not comply with the provisions of the act of September 4, 1951, then there is nothing they can do.

[Martin Reiher]

To a certain extent, and once again, this is for administrative purposes, you are right.

Prior to 1951, going back to the 1850s, legislative provisions established who could be considered an Indian in order to be entitled to reserve lands and certain benefits stipulated in the act. In 1951, when the Indian Register was created, since this register was new, everyone whose name was on the lists, including the treaty and band lists, were allowed to be included in the register. All of these lists were recorded and people were allowed to challenge their inclusion or the inclusion of other people. At that time, we sort of crystallized a group of people who, in future, would be considered Indians.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

You have just uttered the most important words of your speech, they being "we... crystallized". I am not sure how this is translated in English, but these are the same words used in the Supreme Court's rulings. When things are crystallized, it is almost as though things remain frozen at a specific moment in time.

I am going to take a giant leap back into history. In 1985, Bill C-31 was introduced, so on and so forth.

Today, things are not so clear to me. You are seeking to amend subsection 6(2) in order to—pardon the expression—put a Band-Aid on a wound that is likely to get worse. This is exactly why you want to include any person in the situation of the child mentioned in (b). Mr. Chair, this is extremely important, so allow me to read the following:

(b) Whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 [...]

If I understand correctly, those who were not "crystallized" in 1951 would be included today, on condition that they were born after 1951.

[Martin Reiher]

The amendment, as provided for under subsection 6(1) would grant status to any person whose mother lost status due to marrying a non-Indian. This is conditional upon the person having their own children after 1951. Obviously, this concerns children born after 1951.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

However, once again, things are going to be "crystallized".

[Martin Reiher]

I don't see how things are "crystallized" in this particular case.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

We are talking about children born after 1951. This would, as I see it, include the grandmother, grandchildren, and then there would be a cutoff.

[Martin Reiher]

Then, at that point, current rules under the Indian Act would apply. Therefore, there is not necessarily a cutoff. It depends on the identity of the other parent. For example, if a child who is registered under subsection 6(2) later on has a child with a status Indian, be it under subsections 6(1) or 6(2), the child would be registered under subsection 6(1). That is where it starts off again.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

However, if an off-reserve aboriginal marries a white woman—and here we are lighting on the whole debate about off-reserve aboriginals who live in the cities—and has children with a white woman, the children cannot obtain status.

[Martin Reiher]

According to the current rules, following two generations of exogamous marriages, meaning a marriage between an Indian and a non-Indian persons, the following generation loses status.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

And it is clear?

[Martin Reiher]

Yes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Hundreds of individuals identify themselves as Métis and feel they are entitled to aboriginal rights. Yet this is not true. Some have practically no rights.

[Martin Reiher]

As I told you, for administrative reasons, the federal government has adopted rules that allow a person to be registered as an Indian. Certain individuals or groups of people claim to have aboriginal ancestry and would like to exercise the rights that stem from this.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

But with that—

[The Chair, Conservative, Bruce Stanton]

Mr. Lemay—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I will come back to that later.