Indigenous and Northern Affairs Committee on April 20th, 2010

[Todd Russell, Liberal, Labrador, NL]

As we know, given the constraints on how we work here, sometimes, within Parliament, we may introduce amendments that will in no way, shape, or form see the light of day. They'll be ruled out of order by the legislative clerk, or subsequently by the chair. We will do what we can within the confines in which we find ourselves.

[The Chair, Conservative, Bruce Stanton]

I sense that this is what members wish to do, so that's the way we will proceed.

Thank you, by the way, for your patience, while we conducted that little bit of committee business. You're all very patient and tolerant this afternoon.

We had a couple of minutes left on Mr. Lemay's question. Does anybody wish to just make a brief comment in that respect? Mr. Lemay posed the question.

Let's go to Monsieur Nolett.

Could you limit this to 30 seconds, if possible?

[Daniel Nolett]

In my opinion, it would be worthwhile taking our time to examine Mr. Lemay's amendment proposal. It contains good points, but we have to make sure that we haven't missed the essential points of the amendments. We took notes and we will take a look at this. We suggest submitting something by Friday.

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

Mr. Chairman, I suggest that we distribute, in French and English, the brief by the Canadian Bar Association which discusses the clauses in French and English. It's very precise and there's no ambiguity. We perhaps could do this by the end so that you can have them and send us something by noon Friday because we have to table this before Friday afternoon.

[The Chair, Conservative, Bruce Stanton]

We'll get some copies.

Madame Audette.

[Michèle Taina Audette]

Thank you very much.

My concerns are about everything that was raised concerning the obligation of disclosing the name of the father, the right to belong to a band and the right to live on reserve. I fear that all this will be omitted because of what you're proposing. However, I will do my homework, that is I will read it and I will send you my position in this regard.

[The Chair, Conservative, Bruce Stanton]

Anyone else? We have about 20 seconds left. Très bien.

Let's go to Ms. Crowder for seven minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks, Mr. Chair.

First of all, I would like to thank you all for coming. You've raised some serious issues around the ongoing discriminatory aspects of the Indian Act. Of course, what many of us are very concerned about is the piecemeal approach to dealing with both status and citizenship. When he came before the committee the minister himself indicated that there are at least 14 cases in the court system around discrimination of various shapes and forms, and we are well aware of this. There's a grave concern that as each case comes through the system and it's found that there's discrimination in place, we'll be back at this table looking at further amendments to the Indian Act.

I believe it was the Indigenous Bar Association, in a previous bill--I don't remember exactly what piece of legislation it was--that identified the issues around the piecemeal approach to this and urged the government and the committee to seriously look at that kind of approach. Many of you have spoken about the unintended consequences of Bill C-31 from 1985 and the ongoing problems this has raised in many communities. I understand there's a grave concern for that kind of approach.

The challenge we have before us is that we have a B.C. Supreme Court decision that strikes down two sections of the Indian Act that will have an impact on roughly 45,000 people. We've already been warned by the chair that some amendments could potentially be ruled out of order. We don't know until we submit them. So I guess I'm seeking advice. Given the fact that we have a narrow bill before us, that it only deals with very limited aspects of the discriminatory practices in the Indian Act, many of us are feeling that we will support Bill C-31 despite the deeply flawed approach.

Do you have any suggestions or comments, if we chose not to support it, on how we deal with those 45,000 people who could lose their status as of July 5? Do you have any ideas? No?

It's a challenge before us, even though we agree that this is not the way to go. Feel free, if you have any comments, to jump in on this. I also want to point out that a number of you have sent briefing documents. I have a briefing document that goes back to 2008 on a first nations registration status and membership research report prepared by AFN and INAC. So the government was well aware in 2008 that there were problems: the RCAP report of 1996, the Penner report, which has been quoted, and I believe in 1988 there was a committee report that outlined the challenges.

Could you actually speak to the recommendations out of the 1988 report, because we're now dealing with something, what, 22 years later?

[Paul Dionne]

If you wish, I can read from this committee's report back in 1988, concerning the siblings discriminatory rule....

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Which is the case you outlined?

[Paul Dionne]

This is the Susan and Tammy Yantha situation, which was outlined by Mr. Nolett. In 1988, pursuant to the tabling of INAC's report on the implementation of Bill C-31, this committee tabled its own report and recommended...and I'll read from recommendation number 11 of the fifth report of this committee:

We recommend that section 6.(2) of An Act to Amend the Indian Act, 1985 be amended before the end of the current session of Parliament

--that was back in 1988--

in order to eliminate discrimination between brothers and sisters.

That's the case Daniel Nolett spoke about, in which Susan and Tammy Yantha are involved as claimants.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

So we had before us an ongoing public acknowledgement of discriminatory practices, and 22 years later we still don't have any action to deal with a situation that you are now having to take to the courts again. Is that correct? I believe you sent us a brief on the case that's gone before the courts, and that was filed....

[Paul Dionne]

The case was filed in March 2009.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

So given the complexities of the court system, you could be looking at another decade before we have a resolution on a problem that was acknowledged in 1988.

[Paul Dionne]

Exactly. You will probably be convened here 10 or 12 years down the road discussing the same issue because of another court decision on another discriminatory situation.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I think we're all well aware, and I think somebody mentioned it, that the courts, when they provided the extension to the government to July 5, acknowledged that they could have provided a longer extension based on the complexity of the situation and the recognition that there was a need to consult first nations before significant changes were made to the Indian Act.

So I would propose another solution. The government could apply to the courts for an extension, withdraw this bill--because we know many of the amendments we would suggest will be ruled outside the scope of the bill--and present a bill after working on a nation-to-nation basis that would solve some situations we have before us.

Does that seem like a reasonable solution?

That's the end of my questions.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder.

Let's go to Mr. Duncan.

[John Duncan, Conservative, Vancouver Island North, BC]

Thank you very much. There are so many issues and so little time.

I guess what struck me in all of the testimony was that there was a lot of discussion about the inherent right to determine membership.

I was also very struck by your comments, Ellen Gabriel, that if there were no perceived “benefits” involved, we would probably not be here, and that if membership were determined strictly by first nations, instead of the government being sued, we'd probably have complaints under the Canadian Human Rights Act. So that's one thing that flows from the changes made to the Human Rights Act to eliminate section 67 of that act.

But we also heard something else, I think from Dianne Corbiere. Dianne, you were referring to the inherent right to determine membership. At the same time, you were echoing a recommendation made by the national chief, or stating the same recommendation—I don't know who is echoing whom. But you called for a special parliamentary committee to look into citizenship, membership, and other issues.

I'm struck by two things. One is that we have put an exploratory process in place, a parallel process, along with Bill C-3, to deal with all of these things. But is there not a contradiction between the inherent right and asking for a parliamentary committee to look into these very issues? That's really the substance of my question to you, Ms. Corbiere.

[David Nahwegahbow]

I'll address that.

It's a good point. It's something the Penner committee grappled with at the time.

The problem is that you're messing around with peoples' rights, in any event. Rather than messing around in a fashion that's really inappropriate, have a good look at the situation. In other words, don't be limited by a series of minimal amendments, but look at the broad picture. Maybe you need to make the amendments that are before you, but don't drop the ball on the big picture.

You have an opportunity to confront the situation. We now have an international declaration on the rights of indigenous peoples, and Canada, as a citizen of the world, needs to deal with those rights as peoples.

So it may appear to be a contradiction, but if you're going to look at it anyway, look at it through the proper lens.

[John Duncan, Conservative, Vancouver Island North, BC]

I have a very simple follow-up question, but I'd like to get it on the record. There are, I believe, 230 bands across the country that already determine their own citizenship. As I understand it, there's nothing pre-empting the other first nations from doing the same thing. Am I correct in that understanding, as far as you know?

[David Nahwegahbow]

It's not totally correct. The extent to which first nations can currently determine their own membership is prescribed by the Indian Act. There is a very limited form of delegation that was provided or included in Bill C-31. It was an attempt, I guess, at addressing the issue of self-government and determination of membership/citizenship at the time. But it was not adequate; it still isn't adequate.

[John Duncan, Conservative, Vancouver Island North, BC]

Further to that, I understand that there is nothing to limit membership to registered Indians, so how could that be limiting? How is section 10 of the Indian Act limiting?

[David Nahwegahbow]

Well, it does limit. There's a certain latitude in which first nations can determine their membership, but membership has to include some acknowledgement of those people who are potentially excluded from status. Government has to be able to deal with these two concepts in a manner that is balanced.

What I've heard from many first nations across the country is that they want to be able to deal with members, but they don't get adequate funding. You raised the issue of benefits; those are main issues.

The other thing that was dealt with in the Penner committee report is the need to have appropriate fiscal arrangements with first nations, rather than to have funding accorded, as I think somebody mentioned, to individuals or accorded on an individual basis. You need to be able to fund first nations on a nation-to-nation basis.

[John Duncan, Conservative, Vancouver Island North, BC]

Mr. Chair, I want to say that I think we've started the exploratory process.

Thank you.

[The Chair, Conservative, Bruce Stanton]

So it would appear. Thank you very much, Mr. Duncan.

Ms. Gabriel, did you have a final point to make?