Indigenous and Northern Affairs Committee on April 1st, 2010

[The Chair, Conservative, Bruce Stanton]

Members, guests and witnesses, especially Minister Strahl, good morning. This is the seventh meeting of the Standing Committee on Aboriginal Affairs and Northern Development. I will review today's agenda.

This morning we welcome Minister Strahl, the Minister of Indian Affairs and Northern Development.

Members, this is our first meeting pursuant to the order of reference given March 29, 2010, project de loi 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 have a short period of time with Minister Strahl. He's made his schedule available. We appreciate your patience in the time change here this morning as well. We're going to start right away with Minister Strahl.

Minister, I understand we have until approximately 9:40 or so. Is that correct?

We'll do our best through your opening presentation and then we'll go directly to questions from members.

You have the floor.

[Chuck Strahl, Conservative, Minister of Indian Affairs and Northern Development]

Thank you very much, Mr. Chairman.

It's a pleasure to appear before you again. This is twice in one month. I don't want to wear out my welcome, but it is good to be back to speak in support of Bill C-3, the Gender Equity in Indian Registration Act.

The officials with me are Roy Gray, director of strategic initiatives and operational policy; Brenda Kustra, director general, governance branch; and Martin Reiher, senior counsel.

I'd be pleased to respond to questions following my formal remarks. I know there are a lot of technical questions on this, which you can put to the officials as well.

Bill C-3 proposes to amend the Indian Act and to eliminate a case of gender discrimination. To appreciate the logic behind the proposed legislation, however, we must first understand the problem Bill C-3 aims to fix.

Last year, the Court of Appeal for British Columbia issued a decision in McIvor v. Canada. The ruling required the Government of Canada to amend certain registration provisions of the Indian Act that the court identified as unconstitutional, as they were inconsistent with the equality provision of the Charter of Rights and Freedoms.

The court suspended the effect of its declaration until April 6 of this year. In other words, if no solution is in place at that time, paragraphs 6(1)(a) and 6(1)(c) of the Indian Act, dealing with an individual's entitlement to registration for Indian status will, for all intents and purposes, cease to exist in the province of British Columbia. This would create uncertainty, and most importantly, this legislative cap would prevent the registration of individuals associated with British Columbia bands.

Even though we've sought an extension on the implementation of the Court of Appeal for British Columbia's decision in McIvor v. Canada, we must continue to work toward resolving this issue as quickly as possible. We've asked for this extension. They could rule on that as early as today, or later on today, but it shouldn't be perceived as an opportunity to delay the process of Bill C-3, as this bill will rectify a long-standing case of gender discrimination. The longer it's left hanging out there, the more embarrassing and more discriminatory it becomes.

I want to emphasize that Bill C-3 offers a solution to the specific issues identified by the court, by amending the Indian Act to eliminate the language that gives rise to the gender discrimination identified in section 6. At the same time, issues that we raised during the engagement process last fall surrounding things like registration, membership, and citizenship are very complex and there's no consensus on them. We know that broader reform of these matters cannot be developed overnight. It certainly can't be developed in isolation, and it certainly can't be developed without the input of aboriginal people themselves.

Mr. Chair, as committee members are aware, I've announced that over the next few months we will be setting up a separate exploratory process to gain further insight into these issues, as was requested by many first nations during the consultative and engagement process. These matters will be explored through a joint process, to be developed in conjunction with various national aboriginal organizations and with the participation of first nations and other aboriginal groups and individuals across the country.

Mr. Chair, the impact of this bill will be important. We expect some 45,000 people to be newly entitled to register as status Indians. In anticipation of this influx of requests, the Indian registration program has developed an implementation strategy to efficiently deal with the new applications for registration under the Indian Act, in accordance with their proposed amendments.

The Government of Canada is also carefully examining the program and financial impacts associated with the implementation of the bill. An internal financial impact working group has been established to examine all the costs associated with the implementation of the proposed legislation.

The legislation now before us proposes to change the provision used to confer Indian status on the children of women such as Ms. McIvor. Instead of subsection 6(2), these children would acquire status through subsection 6(1). This would eliminate the gender-based discrimination identified by the court.

Mr. Chair, as I mentioned earlier, it's also important to recognize that Bill C-3 offers a solution to the specific issues identified by the court, and does so in a tightly focused fashion in order to respect the deadline established by the court. We can all appreciate the need to act quickly, I think, to respond to the court's ruling and to provide new entitlement to registration in a timely way.

The separate exploratory process will allow for an exploration of broader concerns brought forward during the engagement process last fall. As I mentioned earlier, these issues are complex. There's a diversity of views among first nations on them. For this reason, we'll be undertaking a collaborative process with the national aboriginal organizations to plan, organize, and implement forums and activities that will focus on gathering information and identifying broader issues for discussion. The exploratory process itself will be inclusive and will encourage the participation of aboriginal organizations, groups, individuals, and other interested parties at the national, regional, and community levels.

It's important to note that I don't have any intention to predetermine the range of activities that will be carried out in partnership with the national organizations. What we hope to do over the next few weeks is meet with these organizations.

We've already started those meetings to discuss and plan those activities that will take place over the coming years and that we hope will involve the participation of a wide range of aboriginal groups and individuals. I'm confident that the exploratory process will provide the opportunity for a comprehensive discussion and assessment of those broader issues. Again, that work needs to be done separately, I believe, from the legislation itself. This allows us to focus our attention on the legislation now before us and the solution it offers to the specific concerns identified by the Court of Appeal in British Columbia.

I'm convinced that's the best way forward. As parliamentarians, we know the importance being placed on us by the Court of Appeal of British Columbia to provide a legislative solution to a recognized case of gender discrimination. It's a compact piece of legislation, and it's my hope that Bill C-3 can make swift progress through Parliament and deal with that discrimination as quickly as possible.

The proposed legislation has much to recommend it: it proposes a timely and direct response to the ruling of the Court of Appeal of British Columbia. In addition, it eliminates a cause of gender discrimination.

In essence, Bill C-3 represents a progressive step by a country committed to the ideals of justice and equality.

Merci. Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Minister.

Now we'll go directly to questions. Members, where normally we have a minister, we're allowed a bit of room here in terms of manoeuvring, but in that we only have a short period of time, I would ask that we need to stay on the orders of the day because of the timelines here. It's important.

So let's go to Madame Neville, who will be our first questioner for seven minutes.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Thank you very much, and thank you, Minister, for being here today. I appreciate the opportunity to hear from you.

You talk about this over and over again, that it's a very complex issue, and I think those of us who have looked at it and looked at the royal commission charts and your own department's analysis would agree that it's a very complex issue. I have a number of questions, some coming out of the language you used in your presentation this morning. I'll save some of the others for the officials after you leave.

I guess what I'm most concerned about is that Bill C-31, when originally passed, was hailed as the answer, and we know there were significant unintended consequences. Have you and your department done a comprehensive analysis of the consequences of the legislation as you're presenting it today? If so, could you speak to it, and could we see it?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

The officials may want to talk about the comprehensiveness of the analysis, but certainly one of the things we did do is engage a demographic expert to tell us, first of all, how many people may be affected by this. It's a bit of a guessing game because these people haven't been identified. There's no list or roster of these people. You're taking some guesswork in here. But rather than just do guesswork from the point of view of the Registrar of Indians or the department, we did hire an expert to do a demographic analysis. This person has some expertise in the area and came up with some rough numbers as to the number of people who could be affected.

The difficulty in all of the analysis I've seen at least to date and what people are unsure of is that this is going to be an application-driven process. People are going to have to apply to get their status. So although there's potentially, say, 45,000, give or take, we don't know how many of them will apply. If they apply, how many of them will say that having applied, they'd like to become a member of the local first nation, join their membership roster? It's one thing to get status; it's another thing to get membership. Then, of course, there is more than one type of membership. There are those who use the Indian Act membership system and those who have a custom code local membership. So they determine their own roster of people who are there. Even at that, what will be the impact on some of the more general programs like the non-insured health benefits, for example, versus those benefits and things they may get if they're a member of the reserve? Furthermore, they may decide to move back to the reserve.

So all of those things are up in the air, and it has made it very difficult to do an analysis of exactly what the impact will be until we see how some of those things work out.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I'm not trying to be argumentative at all, but what I want to know is this. Have you taken a figure, and have you done an analysis, based on that figure, of the impact on government?

The other comment I'm hearing is that the interpretation, as you're putting it forward, is a very narrow interpretation. I'm struck by the language you have in here--“tightly focused”--and I'm really concerned that there are consequences that will create additional issues both for government and for communities.

Before you answer, let me just get my other question in. I'm struck by your language again in here. You talk about “exploratory process”, “engagement process”. Is that what you would call a consultation process? Or do you see that as something different?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

You're right in that the language is important because it always means different things to different people, so we do try to use consistent language.

When we fanned out across the country over the last year, we held a dozen or so different meetings. We met both with technical people in the first nations communities and more broadly right across the country with different groups on an almost province-by-province way to try to get input on it and so on. This is one of those times when I think we just have to admit that there is no consensus out there on the bigger, broader issues.

The reason it's tightly focused is that we're just trying to deal with the Court of Appeal's case and what they told us to do. They were pretty specific on what we should do. We have to respond to that. The courts have decided on that. I think it's pretty obviously a gender discrimination issue.

But I freely admit that there are many other issues out there. The trouble is, as soon as we start to say, “Well, we'll do this and then fix several other things in the act and we'll toss in some other things that we heard on our travels”, right away there is no consensus. There is a lot of agreement that we have to fix gender discrimination, and you can find a pretty broad consensus on that, and the courts have ordered us to do that anyway, but when it comes to many of the other issues.... For example, when I was in Saskatchewan, the FSIN said, “We have a citizenship act that we think you should incorporate.” So I said to the AFN, “Well, is the citizenship act the position of the AFN nationally? Is that the position?” They said, “No, that's Saskatchewan's position.”

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I understand that.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

We'd talk to a women's group and they'd say, “Well, there's another issue here”, and then you'd go back to another group and they'd say, “Well, that's their position, but it's not ours.”

I think what we should do is try to fix the gender discrimination issue. Internally, we have a group of experts, which I mentioned in my last appearance here--I can give you the names again--to try to figure out the financial impacts on the government, which are still somewhat unknown but certainly knowable. And we're going to have a study on that internal group and then use the exploratory process to try to see if there is a consensus on some of the other issues, including some of the unintended consequences you mention.

But my sense is that if we keep it narrow, the unintended consequences will be minimized and this will just make it, for better or worse, at least the same for men and women, which is at least something we can't say right now.

[The Chair, Conservative, Bruce Stanton]

Okay.

Thank you, Ms. Neville.

Mr. Lemay, you may take the floor. You have seven minutes.

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

Thank you for being here, Mr. Minister. You are accompanied by people who are probably very competent when it comes to the inclusion of aboriginal communities.

There is consensus of sorts here on Bill C-3. I don't think that many people will question the merits of this bill. I say this with all due respect. I feel that this is a good bill that is aimed at resolving an issue brought up by the Court of Appeal of British Columbia and that is making the government get involved.

However, I feel that there is a problem with what you said. Quebec's Aboriginal communities have told me that Bill C-3, which seeks to resolve the problem caused by section 6 of the Act, does not settle the issue of belonging to the community. I will elaborate on this point. If Bill C-3 passes—and I believe that it will pass without many amendments because it meets a need—there will be a problem with reintegrating Aboriginals into reserves with their own membership codes. Authorities are saying that even if Ms. Jane Doe or her children are granted Registered Indian status, people will not accept them in their communities.

Could we add to Bill C-3 a provision that would make it possible to integrate membership codes that already exist? I am mainly referring to the Abenakis of Odanak and several other communities that already have membership codes. This is my first and probably most important question.

You have formed a panel of experts to examine an issue. I would like to know the names of the experts and their qualifications. I would especially like to have in writing the mandate that the Minister has given the panel. If we were familiar with the mandate, we would perhaps be better able to respond to those who will appear before us to answer the first question I asked you.

So, there it is, Mr. Minister. I would like to remind you that my first question is important.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I agree with you, it is very important. It is also very difficult and complex, and opinions on the subject vary.

For example, there are 800,000 aboriginal people in Canada who have Indian status. About 480,000 of them belong to section 11 bands. When you acquire status or have status, you automatically become members of those bands.

There are 297,000 first nations who belong to section 10 bands. Those are people who have their own membership lists. They don't come to us to ask permission. They make their own membership lists. Membership is not based on status; it's based on that community's desire of who can be a member.

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

You say that these lists were not based on Registered Indians status. What were they based on? What is the internal code of a band based on? Is it not based on a section of the Act?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Yes, the section 10 bands have their own internal codes, if you will, for who can be a band member. So it is possible in some bands not to be a status Indian but to have membership in the band. For example, they may say that if somebody marries someone else without status, they are still a member of the band. They have no status and can't take a status card and ask for non-insured health benefits, for example. It may not be possible. However, in the same way, just because you have a status card, it doesn't give you a free ticket into that community. The community, under section 10, has its own membership list, and they maintain that list. They don't talk to us about it.

You can imagine the complexity of this. I think it would be very difficult to legislate this. It's almost evenly split, right? Somebody says that if you get status you can become a member of my band. An almost equal number say that if you get status that has nothing to do with my band membership.

If we were to try to legislate that in this bill or even at a future date, you can see the difficulty and complexity, where somebody says, “My band membership”—my band citizenship, as many first nations call it—“in my nation is not determined by Ottawa; it is determined by us.” They say, “Don't mess with our citizenship.” That's why the Saskatchewan first nations and the Anishinabe first nations, and many others, have developed their own codes that their communities are comfortable with. That's why status does not equal membership, and I don't think a lot of people out in the world know that. It's just one of the many complexities involved. I'm afraid that if we opened this up in this bill, it would be a nightmare. We wouldn't have this bill solved in our lifetime, I think.

However, it needs to be part of the exploratory process, because people say that with membership come other privileges, such as access to housing and other programs. So it's darned important, but so important that to put it into this bill would require you to hear witnesses for a year. Even then, you would probably have two sides on the issue.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

Ms. Crowder, you have seven minutes.

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

Thank you, Mr. Chair, and thank you, Minister, for coming.

I echo others' support for this legislation because it's in response to a court decision. However, I think we are being challenged by the fact that we're seeing piecemeal amendments to the Indian Act in response to court decisions.

Just as we saw with Bill C-31 in 1985, I think all of us are very nervous about unintended consequences. I was reviewing some of the impacts of Bill C-31. I know that you're well aware of them, but what we're hearing from people are some of the same concerns they had with Bill C-31 regarding increased financial pressure on first nations. I know there is a working group addressing that, but as you know, even today first nations are still struggling with the unintended consequences of some of the financial pressures. Bill C-31 created huge divisions within communities, and again, I know you're aware of those. The most serious unintended consequence of Bill C-31 was the second generation cut-off rule, leading to what some people are calling legislated assimilation. So I think a lot of us are really anxious about some possible unintended consequences from this bill.

However, there are a couple of other issues I would like you to address. One is the issue around resources. I was reviewing a paper, the “First Nations Registration (Status) and Membership Research Report” from July 2008. It was by the joint AFN-INAC technical working group. They raised some issues around program funding and community cohesion in their research report. They indicated that because of the differences in citizenship and status, which you've already referred to, bands who have their own citizenship codes and allow people without status to become band members are penalized financially, because they provide housing and other services to people who they agree have citizenship but may not have status.

In the case before us, we know that resources are becoming a huge issue. There are two questions. People may regain status, and you have a working group looking at resources around that, but status people may have relatives who are not status Indians who come and live with them. So what kind of approach are you taking to that?

The second question I have for you is around the exploratory process. I think many of us applauded the work of Wendy Grant-John on the matrimonial real property process. However, when her report came forward, many of the recommendations were not included in the matrimonial real property bill, which I understand has been retabled in the Senate.

What degree of comfort will the people involved in this exploratory process have that the government will actually incorporate their recommendations, if they come to some consensus and their recommendations are brought forward?

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

That's a fair question.

The reason we called it an exploratory process, at least at this stage, is because we're being pretty open-ended as to what it might look like. Even to design the process itself, I'm being open-ended. If I said, here we go, we have three months, we're going to have 10 town hall meetings and that's the end of it--I'm not doing any of that because clearly there's a bunch of issues on the table, these meetings have already started to take place, and they'll continue.... Even the design of the exploratory process itself is now part of the discussions we're having. We're having pre-discussion discussions, in other words, to try to get it as right as we can. Even then, my guess is that all of us, including first nations groups, are going to be careful as to how much we're going to commit to in this process. For example, if they say there seems to be a consensus moving out there that we should all move to section 11 bands, there are going to be others who say, “Over my dead body.” They're not going to say, “Whatever you agree to in the end, we're in.” They're going to be careful on this. This is at the core of being a first nation or aboriginal group and community.

My guess is that at this stage, at least, they're going to say they want to hear from everybody and see if there's a consensus. While maybe not on everything, maybe there are some good key consensus things we can come to. But even in first nations communities they're being careful. I'm sure you'll talk to the NAOs and hear that they've not signing on a dotted line saying, “At the end of this process, if you see a consensus, we're all in.”

Of all the things I've talked to, citizenship for a first nation is one of the most tightly held rights. They say, “The last thing we want is Ottawa mucking in my citizenship.”

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

That's reasonable, because many nations hold a nation-to-nation belief, so for them citizenship is fundamental. But then the funding issue becomes a huge problem.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I only used that because it points to how, on all sides of the discussion, people at the onset of the exploratory talks are going to have difficulty saying that at the end of the exploratory talks they have all signed on, that whatever is said or decided, they're all in.

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

Can you touch on the funding? I'm probably running out of time here.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

First, I didn't answer Monsieur Lemay's question. Officials are happy to talk about the committee. I mentioned who was on there, but we can certainly get that in written form as well and describe the kinds of issues they're dealing with. By all means, we can get into that later or at the next question.

The funding issue is obviously an important one, but it's based on a bunch of other what ifs that we don't know at this stage. If there are 45,000 people—just pick a number—then 45,000 are going to acquire status. How many of those are going to want to move back to the reserve?

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

But it's not even that, because people are eligible for non-insured health benefits and post-secondary assistance even if they live off reserve. There's the on-reserve, off-reserve issue. There's a broader funding issue even if they don't live on reserve, which is a huge problem because of housing wait lists.

[Chuck Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

I think those are some of the easier questions to answer, which is part of what this panel has been set up to do. Of course, it involves much more than our department. Our department handles some of it, but the health department delivers the others. So the health department is involved in this, and there are the experts, such as the financial experts, but also people who can make sure the process is complete, who don't miss any of the unintended consequences, and that will allow us to put some numbers to this.

I feel badly in that it's hard to say that it's cut and dried and here it is, because of all the uncertainties. That's why the bill itself is one thing, but understandably, both the exploratory process and this internal committee has much work to do in order to show exactly what may happen. Even then, it won't be options. It'll be, if this happens, this is the consequence; however, if this happens, this is the consequence. They're going to have to lay out for us what may be the consequences, because there are so many variables that will follow this bill.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Crowder and Mr. Minister.

Now let's go to Mr. Duncan for seven minutes.

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

Thank you very much.

Good morning, Minister.

My question is quite simple. We know there will be a vacuum in the law if this bill is not through by April 6, and that's very unlikely. I just wondered if you could explain the consequences for the period of time after that.