Indigenous and Northern Affairs Committee on April 20th, 2010

[Todd Russell, Liberal, Labrador, NL]

Mr. Maracle, regarding the impact of Bill C-3, fundamentally every witness has said there will be residual discrimination. Many have said we have to get rid of it, if we can, procedurally. I don't know what the government's response will be, but that's certainly our position. And it could broaden outside of Bill C-3—not 45,000 people, but it could be 100,000 or 150,000. We don't know the number.

When we asked whether they had done an analysis of the financial impact, they told us they hadn't. I can't believe everything I hear now, but they told me they didn't have it done. I know with the bean-counters over there, there has to be somebody counting.

But you're saying it's going to have a major impact on your communities. Is that right?

[Chief R. Donald Maracle]

We believe it will. Mr. Crombie promised the chiefs in 1985. The chiefs at the time requested that there be a financial analysis done on the impact of the legislation on first nations programs and services. It wasn't done.

We were promised by Mr. Crombie, who was the Minister of Indian Affairs at the time, that first nations would not be worse off. We wound up with tremendous pressures for housing, as well as long waiting lists for post-secondary education. I believe the Assembly of First Nations states that there are 10,000 first nations people on a waiting list for post-secondary education. Without education, first nations people cannot alleviate their poverty.

It's critical to the passage of any bill to correct the gender discrimination that there be a financial analysis done in terms of impact, to make sure it's not going to worsen the socio-economic condition of first nations people.

The other point in terms of social justice is that the double mother clause generally speaks about people whose ancestry is from two non-native women who have gained status through marriage. It would be a racial insult to first nations women if the grandchildren of women who gained status through marriage can pass the status down further than the people who are of Indian descent.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Russell.

Mr. Lévesque, you have the floor.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I would like to share my time with Mr. Lemay. I only have one question.

Ladies and gentlemen, I am not a lawyer, but a labour relations consultant. The impression I am getting is that something has been cobbled together again today to fix a measure which was established previously. The government has had plenty of time, but it only responded with two small paragraphs to satisfy the Supreme Court ruling. It's as if you added a single ingredient to a recipe save the entire dish. The members of the bar would say that it is like obscuring a clear view of the totality of our laws.

Ms. Palmater, you presented several elements. Mr. Maracle illustrated the existing problem very well, namely that first nations have their own rules. We will have to act accordingly, which may mean holding a private retreat with the people in a position of authority to ensure that everybody is treated the same way.

For now, since we must satisfy a Supreme Court ruling, do you see any possibility of make an amendment? My colleague, Mr. Lemay, who has many good ideas, could make a suggestion. I don't know if you were here when he put forward one such idea. Do you think you can send us any suggestions by Friday, which would not affect existing protections, and which would guarantee and improve recognition for mothers, grandmothers and girls, in short, guarantee status regardless of a person's gender?

[The Chair, Conservative, Bruce Stanton]

Does anyone...?

Go ahead.

[Dr. Pamela Palmater]

Were you speaking specifically in regard to band membership as well as to status, or to status only?

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I was referring to recognition of a person's status and registration with a band. This is not just about recognizing a person's status. I am a Quebecker, and I know what my status is, but if I cannot register with a population, it is not worth much.

[Dr. Pamela Palmater]

I agree.

One of the main issues here is that prior to 1985, bands did not have control over their membership. That was a determination made by Canada for all bands. So when we're talking about reinstating the descendants of Indian women who married out to status, that should also include band membership, because it was at a time when bands didn't have control over their membership.

If you want to talk about 1985 forward, that's a whole other issue, and I have tons of recommendations on how band membership should be determined.

But I'm talking about pre-1985. There should be no question whatsoever that the descendants of these Indian women who married out should be added to band membership because that was Canada's responsibility at the time. How can we add them to status only and not membership? And if you're asking for suggestions or if I will submit something further, for sure.

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

Do I have any time left?

[The Chair, Conservative, Bruce Stanton]

You have three minutes.

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

Fine.

There are two aspects to this issue. The first is registration. Registration is carried out under section 6 of the Indian Act. But registration is discriminatory, and everybody agrees on this. Everyone has been in agreement over this for the last two weeks. As for us, we cannot intervene with regard to section 6. Dr. Palmater, I saw that you also address the rules governing band membership. We cannot touch that. Do you see the limitation? We cannot touch membership. It is already fairly complicated, I admit. If we remove discrimination—which we will try to do—a native band will still have the power to refuse membership for some people. This issue would then go before the Human Rights Commission. I don't know if you understand. The only power we have is to amend section 6. I cannot touch section 10, because that lies outside the authority of the House. What do you think of this?

[The Chair, Conservative, Bruce Stanton]

Go ahead.

[Dr. Pamela Palmater]

I don't agree.

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

Oh, bravo! Finally!

Why?

[Dr. Pamela Palmater]

Here's why. In 1985 Lovelace's case dealt with status. But when Canada responded, it didn't just amend the status for Indian women and their descendants; it also changed the ability for bands to determine their own membership. That wasn't in the court case. It also changed the legal presumption of Indian paternity. It also changed other types of individuals who could be reinstated, and that was completely outside of the scope of that litigation. It was outside of the scope of all of those other things. Yet somehow Canada determined, “Well, you know what? I guess we can fight with band membership a bit. Anybody who wants to determine band membership can.” It's the same now.

The point I really want to make clear is that I'm not talking about 1985 forward; I'm talking about anybody affected, anyone reinstated, because pre-1985 the bands did not have the ability to determine their membership. So because it was under Canada's jurisdiction, Canada has an obligation to protect those people born pre-1985, for band membership as well as for status.

[The Chair, Conservative, Bruce Stanton]

Ms. Crowder, you have seven minutes.

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

Mr. Chair, I'd like to thank the witnesses. You've presented some challenging material here.

I want to start with Dr. Palmater. And I look forward to seeing your brief, because you presented a number of complicated issues that I think we need to take a look at. I do have a couple of quick questions, though.

My understanding is that you wanted us, in Bill C-3, to delete the entirety of sections 3 and 4?

[Dr. Pamela Palmater]

It depends. If you add those words to paragraph 6(1)(a), then delete all of subparagraph 6(1)(c)(i). But if you don't, then delete subparagraph 6(1)(c.1)(iv) and clause 9.

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

That will be in your brief, right?

[Dr. Pamela Palmater]

Yes.

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

I just want to backtrack a little bit. You're right, the government could have chosen to introduce a bill that was far broader in scope. There was nothing in the McIvor decision that limited the government's introduction of legislation--nothing. What we're challenged with now is that we have a very narrow bill and a limited ability to amend it. It will be interesting to see what kinds of rulings are made on any amendments we propose and whether they are deemed to be inside or outside the scope of this bill. So there is a challenge for us. I think you probably know that there's been a suggestion that we withdraw the bill and introduce a more appropriate bill.

I wanted to touch on Canadian human rights, because you made a comment, and it was kind of skipped over. A number of us have received correspondence from a person, Jeremy Matson, born in 1977, who has a case before the Canadian Human Rights Tribunal. Am I understanding you to say that the department is arguing before the tribunal that the tribunal doesn't have the jurisdiction to hear that? Despite what we've been hearing from the department and the minister that a remedy would be to file a human rights complaint, in fact the government itself, the department itself, is arguing that the Human Rights Tribunal has no jurisdiction. Do I have that right?

[Dr. Pamela Palmater]

You have that right. I have the same correspondence from Jeremy Matson. He contacted me because of my website, knowing I'd be presenting here today, and said, listen, you need to know what they're arguing, because they're not saying the same thing at committee.

That's why I raised it.

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

So in effect we have shut the door on that remedy. That was your point on clause 9. If they should win their case before the tribunal that it's not a service, and therefore the tribunal has no right to hear it, and clause 9 stays in the act, then in effect people will have no remedy. They won't be able to go to the Human Rights Tribunal about status, because clause 9 limits their ability to do that. So they'll have nothing.

[Dr. Pamela Palmater]

What we're saying, if that is the case, is that Indian women and their descendants don't have the right to receive a remedy for charter violations. And it will be only Indian women and their descendants. I don't think, in this day and age, that we have the right or the authority to do that unless we change our Constitution.

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

To back up a bit, we had--I think it was Bill C-21--the repeal of section 67 of the Canadian Human Rights Act, which in theory gave people the ability to file a human rights complaint. In effect, that is a meaningless action if they are now not allowed to file a human rights complaint on status because of the service argument.