Indigenous and Northern Affairs Committee on April 27th, 2010

[The Chair, Conservative, Bruce Stanton]

Good afternoon, members. Welcome back to our consideration of Bill C-3, pursuant to the order of reference of Monday, March 29: Bill C-3, an act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

Members, we're back under, as we had planned, the clause-by-clause consideration of this bill. We welcome back Martin Reiher of the Department of Justice and Mr. Roy Gray from the Department of Indian Affairs and Northern Development, who are here, really, for consultation purposes. We're not expecting any presentations.

Members, you'll recall at our last meeting I did indicate that we were going to pursue another line of consideration around the issue of the unstated paternity and illegitimate children issue. That issue did not come forward, as we've seen at least thus far, from any of the amendments that had been proposed. My preference would be just to proceed directly to clause-by-clause consideration, so we'll leave that for another time.

We haven't done this too often, but it's great to be back here considering clause-by-clause analysis of the bill. You actually have the agenda in front of you. I'll confirm or affirm that all of the amendments that have been proposed by the various members have been received by the committee. Of course that doesn't preclude the possibility of further amendments while we take up consideration of this bill.

We will proceed with the clause 2 amendments.

(On clause 2)

I'd like to first start by inviting the sponsor of the bill to move his amendment and speak to it if he wishes, and then we'll proceed from there.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

I understand that each committee member has been provided a copy of the proposed amendment.

I move that Bill C-3, in clause 2, be amended by adding after line 16 on page 1 the following:

(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985;

In proposing this particular amendment, we certainly consulted with those who had been before the committee and those who could provide some advice or some clarity on this particular amendment. This particular amendment proposes to respond to the vast majority of the witnesses, if not all of the witnesses, who indicated that there would be residual discrimination based on what was in Bill C-3. So finding an amendment that satisfies the grievances of those who appeared before us and trying to be all-encompassing when it comes to removing a residual discrimination, this is the amendment we came up with.

The effect of our amendment is to make entitlement to paragraph 6(1)(a) status totally non-discriminatory. That would be the effect, the basic impact, of this particular amendment.

Some will say, and probably rightly so, that this is more reflective of what was in the Supreme Court of B.C.'s ruling and not as reflective, maybe, of what was in the B.C. Court of Appeal's ruling, which was much narrower. But we've always made the argument that in fact the government had the ability to respond in the way it so chose to respond to the B.C. Court of Appeal's decision. So we feel that this is a way to respond effectively and efficiently to the pleas of witnesses, particularly Sharon McIvor, who came before this committee and whose long battle and whose court case has helped lay before us Bill C-3.

That's what I will say to this particular amendment, Mr. Chair.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Russell.

I'm sure the admissibility question is going to be considerable, as most members would acknowledge, particularly on the Bill C-3 amendments that have been proposed. However, on the amendment proposed by Mr. Russell that's in front of us, before I get to the ruling, I just want to ask about this, because it would have implications if this amendment were adopted for this bill. It would in fact have more far-reaching implications, including the other amendments that are before us today. In lay terms, it would engulf many of the other amendments that have been proposed and would be considered by the committee.

So I'd like to ask Mr. Reiher if he could, in this particular instance, speak to the implications that this amendment would have, not just in respect to the amendments we have in front of us, but even to the very structure of Bill C-3 and what it proposes.

[Martin Reiher, Senior Counsel, Operations and Programs Section, Department of Justice]

Thank you, Mr. Chair.

Indeed this amendment would take a radically different approach from the one that is taken in Bill C-3. This would amend paragraph 6(1)(a) of the Indian Act, which basically was the provision allowing the registration after 1985 of all the individuals who were previously entitled to registration. The amendment would allow any person born before April 17, 1985, to be registered under paragraph 6(1)(a) of the Indian Act if that person was able to identify an ancestor who was, at the time of his or her death, entitled to be registered, which obviously increases significantly the number of persons entitled to registration under the Indian Act.

I would point out that I'm not clear personally on the purpose of the last three and a half lines of the proposed amendment, which read, “or of a person referred to in paragraph 11(1)(a), (b), (c), (d), (e) or (f)”.

This is a reference to the previous act and not to the current legislation. Individuals who were entitled to be registered under section 11 of the previous act are actually covered by paragraph 6(1)(a). So to my understanding--

[The Chair, Conservative, Bruce Stanton]

As a point of clarification, when you say “the previous act”, it's the act as it existed before 1985.

[Martin Reiher]

Thank you, yes.

I would just point out that these words, the words following from line 3 of the proposed amendment—“or of a person”, etc.—would appear to be unnecessary to achieve the goal of this amendment.

That said, this is simply to point out a difficulty with this specific amendment, but in terms of the impact, I think I've described the impact of the amendment.

[The Chair, Conservative, Bruce Stanton]

Perhaps as a follow-up question—I just want to get this and then I'll go back to Mr. Russell—what effect would this amendment have on those persons who are now registered under subsection 6(1) categories under the Indian Act? In a way, this is extending paragraph 6(1)(a) status to a group, but in what way would that affect people who are registered in different categories, if at all?

[Martin Reiher]

I believe individuals who are currently entitled to registration under one provision of subsection 6(1) would maintain their entitlement and would potentially gain an additional entitlement. There might be dual entitlement for many individuals. This is obviously something that we try to avoid when we develop legislation, but that would presumably not result in the loss of entitlement to individuals.

There's one thing I would like to point out in terms of the logic of the Indian Act. This amendment, because it goes back in the past, would actually have the result not only of allowing the registration of descendants of Indian women who lost status upon marrying a man, but also, for example, individuals who took scrip in the past and their descendants, which was another rule.

You know, scrip was a certificate provided to Métis people. They could choose to receive money instead of being covered by treaties. Thereafter, they could no longer be considered Indians, and their descendants the same. In this case, their descendants would become entitled to registration.

[The Chair, Conservative, Bruce Stanton]

Okay.

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

As to impact, I think the testimony before the committee by Mr. Gray and Mr. Reiher was that it's hard for the department to quantify or qualify impact, because it's on an individual basis. That particular argument was made when we asked what the financial implications would be.

The department could not quantify the impact in terms of exactly how many people we might get, because it's on an individual basis. While this would probably allow more individuals to apply for registration, I think the same argument would hold: that the department does not really know. It just expands the category of eligibility, but if the department couldn't quantify for Bill C-3, I don't hear anybody saying that they could either quantify or qualify it for this particular amendment.

I might be wrong, but I certainly would like to hear what the department says, because when we asked questions on Bill C-3, that was the answer I received.

[The Chair, Conservative, Bruce Stanton]

All right. Thank you both for clearing that up.

Thank you, Mr. Russell, for your proposed amendment under clause 2.

I would like to give the ruling now on this particular amendment.

Bill C-3 amends the Indian Act by specifying a new right of registration in response to the McIvor v. Canada case. The amendment seeks to amend the act by specifying an additional right for children born prior to April 17, 1985 of a parent registered under paragraph 6(1) (a) or subsection 11(1) as it read before April 17, 1985.

House of Commons Procedure and Practice, second edition, reads on page 766 as follows: “An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.” Therefore, in the opinion of the chair the introduction of the additional entitlement to registration under this amendment is a new concept that is beyond the scope of Bill C-3 and is therefore inadmissible.

Members, we'll have to move on to the next—

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Chair, can I just ask a point of clarification?

[The Chair, Conservative, Bruce Stanton]

Mr. Bagnell, yes.

[Larry Bagnell, Liberal, Yukon, YT]

If the bill is titled “gender equity in Indian registration” and the amendment is just making for “gender equity in registration”, how is it incompatible?

[The Chair, Conservative, Bruce Stanton]

Principally it's because under the Standing Orders there is no ability for the committee to expand the scope or the application of the law beyond the scope that is given and provided in the bill.

I could perhaps turn to Mr. Cole. He might want to expand on that idea. Mr. Cole, as members will know, is the legislative clerk who has been assigned to this committee.

Mr. Cole, do you want to...?

[Wayne Cole, Procedural Clerk]

The bill seeks to respond to the decision of the court of appeal in the McIvor case, and the provisions of the bill, as approved by the House at second reading, are limited strictly to making the necessary changes to the act. The advice has been given that attempts to extend that exceed the scope of the bill as it was approved by the House.

[The Chair, Conservative, Bruce Stanton]

Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

There's no doubt around this committee table that we respect your particular position and the vast majority of the rulings that you have made, and we certainly respect the work of our legislative clerk. But on this issue, I think we would like to challenge the chair's ruling on this particular amendment, because it's necessary that we take every step possible to respond to the witnesses and to approach an amendment strategy that responds to the witnesses who came in unanimity before the committee.

From a procedural perspective, is a motion to challenge the chair the way that this has to be done? Is it open for debate? Can you give me some clarification on that?

[The Chair, Conservative, Bruce Stanton]

The ruling is really not debatable. It's a member's prerogative if they wish to challenge the ruling of the chair. They can do that. At that point most chairs would typically seek to have an assertion of the chair's ruling. If that is overturned, then the amendment, insofar as our committee is concerned, can be debatable at that point.

[Todd Russell, Liberal, Labrador, NL]

With all due respect to you, I'd like to challenge your particular ruling on this particular amendment.

[The Chair, Conservative, Bruce Stanton]

Okay, that being the case, I would seek a motion to maintain the chair's ruling.

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

I so move.

[The Chair, Conservative, Bruce Stanton]

We need a decision on that.

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

Could we have a recorded vote while we're at it?

[The Chair, Conservative, Bruce Stanton]

We will have a recorded vote.