Indigenous and Northern Affairs Committee on April 1st, 2010

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Clarke.

Now let's go to Ms. Neville.

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

Thank you.

Before I ask my questions, Mr. Gray, is it possible to get copies of the demographic projections the department has made, as well as some overview of the communications strategy the department will be undertaking?

[Roy Gray]

The demographic study is available on the departmental website. We could certainly get copies to you.

[The Chair, Conservative, Bruce Stanton]

Just as a point of clarification, we do have it in the briefing binder. I just wanted to point that out.

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

I haven't looked through it. All right. I'm sorry.

[The Chair, Conservative, Bruce Stanton]

Not at all.

[Roy Gray]

In terms of the strategy, again, I would suggest looking at the website. There's a lot of information on the website.

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

That leads me into my next question, to Ms. Kustra. You talk about the exploratory process. I guess my question to you is, why is that the term that's being used, as opposed to a consultation process, and what are the differences as you see them?

[Brenda Kustra]

Thank you for that question. The words “exploratory process” are really very important because we are exploring the views of individuals, organizations, leaders, about the subject matters of status, membership, and citizenship. The Government of Canada at this point does not have any preconceived ideas about where these discussions will end up; neither do the national aboriginal organizations, because of the wide variety of views on the subject matters the minister referred to. So we really are entering into a dialogue to learn more about the views of people across the country on these subjects, and then we will be able to take stock of all the information we've gathered and look at where that might lead us in the future.

That's different from consultation, because we are not consulting on any specific solution to any of these other issues. Madame Crowder spoke about unstated paternity and other issues with respect to other illegitimate heirs. Those are subject matters that will likely be discussed in the exploratory process, but we don't have a preconceived idea of a solution as to how we will fix that. That's something we want to hear the views on from folks across the country, on how they see it unfolding in the future.

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

Would you see the exploratory process as preliminary to a consultative process or in lieu of a consultative process? I go back to two processes you may or may not have been involved in. One is the Wendy Grant-John process, when Ms. Grant-John went out across the country on MRP. One of the overriding concerns she heard from the communities was there had not been enough of a consultative process, particularly on the ground, in the communities, with the people most directly affected.

Then I go back some years ago to the original governance act. What reminded me of it was when you talked about the technology and young people using technology, and at that time I think people thought they were quite innovative in the use of technology and online consultation, for lack of a better word.

My concern is that while all of this might be fine and good, we're really missing the essence of what a real consultative process is on this. I understand times change, technologies change, etc., but I'm trying to get some clarity as to what this is all about.

[Brenda Kustra]

Thank you very much for that question.

First of all, we do not see the engagement process as a substitute for consultation. It's not in lieu of consultation. It very much is the first step of what will likely be a fairly long process because of the complexities around status, membership, and citizenship, and the variety of views across the country. I think that's a very important distinction to make upfront.

With respect to the use of technologies in the gathering of information, we're looking to a wide variety of processes to gather this information, and we're hoping to get some very good advice from the national aboriginal organizations in terms of how best to engage people. It will not solely be an electronic exchange. There will probably be a wide variety of activities, of events, etc., to gather this information. Again, it is not a consultation, it's a process of gathering information in order for all parties to determine what next steps they may wish to recommend or what consensus they may reach, just in keeping with some of the minister's comments earlier.

[The Chair, Conservative, Bruce Stanton]

Okay, we're finished, unfortunately.

Thanks, Ms. Neville.

Now let's go to Mr. Payne. If you have a short question, and there is some time left, I may fill in the other part of that five minutes.

Go ahead, Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chair. I will keep it short.

[The Chair, Conservative, Bruce Stanton]

You are under no limits here. If you want to keep the floor, that's fine too.

[LaVar Payne, Conservative, Medicine Hat, AB]

I just want to thank the officials, first of all, for coming out today.

This is definitely a very complex issue. Briefly, could you review for me what will happen to those individuals in B.C. if Bill C-3 does not go through by April 6?

Second, I understand that the 45,000 is for across Canada. I'm wondering what the demographics are for B.C. alone.

[Roy Gray]

If the court decision comes into force on April 6, there will be an inability to register people affiliated with first nations in British Columbia.

Over the last couple of years, there have been about 2,500 to 3,000 people from B.C. registered per annum. That gives you some idea of the scope. Again, no one will lose status, as the minister mentioned.

In terms of the 45,000, we don't have an analysis, at this point, of a regional breakdown. The 45,000 is national.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you.

Go ahead, Mr. Chair, please.

[The Chair, Conservative, Bruce Stanton]

Thanks, Mr. Payne.

On the issue of there being this lapse to April 6, can you confirm that when Bill C-3 is enacted, it will be retroactive to whatever date?

[Martin Reiher]

Bill C-3 would come into force upon the declaration of the Governor in Council, and that can be retroactive to April 5, which is the day before the declaration of equity would become effective.

[The Chair, Conservative, Bruce Stanton]

While we await the court's decision on an extension, if you will, regardless, the bill will cover this from April 7 forward.

Just to follow up with Mr. Gray, there were a couple of questions raised, Mr. Gray, with respect to the cost and the contingencies. As a follow-up--the department has been very good in the past about getting back to us on members' questions--could you just outline what sorts of contingencies are in place in anticipation of what this might be from a cost and administrative perspective? That would be important to our discussion.

I have one final question for Mr. Reiher. We're aware, of course, that there are other challenges under way with respect to this topic. I wonder if you could comment on the degree.

We know, as a point of background, that this bill is very focused with respect to the McIvor decision or the McIvor claim. There are some other issues. Could you point us to what areas it won't solve, just so we're aware that it is not going to be a complete fix, nor is it anticipated to be? Could you comment on that?

[Martin Reiher]

Thank you, yes, Mr. Chairman.

I am aware of about 14 active cases currently challenging section 6 of the Indian Act, which states the registration provision. To date, two issues have been mentioned. One was raised by the Wabanaki Nation, which had to do with a difference in treatment between brothers and sisters born to unmarried parents before 1985. This is one example of an issue that is not dealt with by this bill.

Also, there is what is referred to as the unstated paternity issue, which actually flows from the fact that in order to register an individual, the registrar needs to know information about the parents. When information is not known about the father, the registrar cannot determine that the father is an Indian, which automatically means that if the mother is an Indian, there is one Indian parent. If the registrar doesn't know the information about the father, the registrar cannot conclude that there are two Indian parents. Therefore, there is one Indian parent, which results in either registration of the child under subsection 6(2), if the mother is registered under subsection 6(1), or the loss of registration.

This bill is a focused response to the McIvor decision, which raised essentially what is known sometimes as the cousins issue. It does not change the existing legislation with respect to the unstated paternity issue.

[The Chair, Conservative, Bruce Stanton]

Would you also say, though...? Clearly, this is addressing, in a substantial way, the unexpected outcomes of Bill C-31 in terms of the discrimination between the female and male line or lineage.

[Martin Reiher]

Thank you, Mr. Chair. This is an important question.

The British Columbia Court of Appeal acknowledged that, despite the active litigation launched over the past 25 years, Bill C-31 in 1985 was a bona fide attempt to remove discrimination from the Indian Act. The Court of Appeal acknowledged that a certain number of distinctions between the male and the female line continue to exist, but the Court of Appeal of British Columbia was prepared to consider these distinctions as justified under section 1 of the charter in a free and democratic society, given that these are distinctions flowing from an old regime only and are transitional in nature.

There was only one element the Court of Appeal found to be contrary to section 15 of the charter and discriminatory, because it did not only flow from the old regime, and that is the enhancement of the ability to transmit status of fathers of persons affected by the old double mother rule.

[The Chair, Conservative, Bruce Stanton]

Very good.

I have Mr. Holder.... Well, we're kind of out of order. Are there any more questions from the Bloc? Okay.

We'll go to Mr. Holder, Ms. Crowder, and then Mr. Bagnell.

Go ahead, Mr. Holder, a follow-up question.

[Ed Holder, Conservative, London West, ON]

Thank you very much, Mr. Chair.

Yes, this is just a follow-up question.

Obviously, Bill C-3 is in response to various allegations that the Indian Act discriminates on the basis of gender, notwithstanding the fact that in 1985, from my reading, various amendments were made to the Indian Act. From what I understand, this court case is the first that has now been decided.

So does Bill C-3 remove all aspects of gender inequality to the Indian Act?