Evidence of meeting #7 for Indigenous and Northern Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was status.
A recording is available from Parliament.
Conservative
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Okay.
Also, in the case of the non-identified paternity of the father, I am assuming that this particular technical....
Senior Counsel, Operations and Programs Section, Department of Justice
Thank you for the question.
Those who worked on the drafting of this bill acknowledge that this is not easy to read, so I'm happy to have the opportunity to walk you through the conditions.
It is difficult to read because, as was said before, we were working with very technical legislation already. It was put in place before 1951, but then it was significantly reworked in 1951, with the creation of the Indian registry.
At that time, very complex rules for inclusions and exclusions were created. These rules were amended from time to time, adding layers of complexity. With this amendment we are still amending this complex system. We want to make sure we do not affect other parts of the system by adding this new entitlement, which is why we want to be very focused with the amendment. We are describing the persons covered by the new entitlement very precisely.
There are four conditions. The first condition is that the individual who will see the registration category change from subsection 6(2) to paragraph 6(1)(c.1) has to have a mother who married a non-Indian and lost Indian status because of that prior to 1985.
The second condition--
Conservative
The Chair Conservative Bruce Stanton
I'm going to hold you there for a moment, Mr. Reiher.
We're over time. However, because of the nature of this question, I'm going to let Mr. Reiher finish. It is a very important part of the topic we're discussing.
Please, go ahead. I just wanted to let them know that I'm aware we're over time.
Senior Counsel, Operations and Programs Section, Department of Justice
Thank you, Mr. Chair.
The second question is that the father of that person has to be a non-Indian.
The third condition, which is the one you identified, includes two conditions. The person has to have been born after the mother married the non-Indian. Why? Because if the individual was born before, that person is already entitled. We don't want to cover that situation. The person has to be born after the mother lost status upon marrying out.
Can that person be born anytime after that? It depends. It depends on whether the parents married or did not marry each other prior to 1985. If there was a marriage between the parents before 1985, then the person may be born at any time. If there was no marriage between the two parents before 1985, then the individual has to have been born before 1985. Why is this? Because in 1985, marriage ceased to play any role in registration.
When you compare the situation in the female line with the male line, we have to be careful not to grant an entitlement under subsection 6(1) in the female line. In the similar situation in the male line there would be an entitlement under subsection 6(2), which is why we have this. If you look at the male line, an individual who is born after 1985 and whose parents never married before 1985 is entitled under subsection 6(2). If we don't want reverse discrimination, we have to include this very specific condition.
Senior Counsel, Operations and Programs Section, Department of Justice
There is a fourth condition that I can come back to later on.
Conservative
Senior Counsel, Operations and Programs Section, Department of Justice
Sure. The fourth and last condition is that the individual who is covered by the new entitlement has to have had a child with a non-Indian after September 4, 1951. This was the time of the creation of the Indian registry and the inclusion of a number of complex rules, including the double mother rule, which was at issue in the McIvor decision.
This bill is responding to the McIvor decision, which is why there is the same limit applied here.
I think this answers the question.
Conservative
The Chair Conservative Bruce Stanton
Okay, thank you very much.
Members, there will be a quiz immediately following the committee meeting.
Conservative
The Chair Conservative Bruce Stanton
Now, let's go to Mr. Clarke and then we'll come back to Ms. Neville.
Please go ahead, Mr. Clarke.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Thank you, Mr. Chair, and thank you to the witnesses for coming in today.
When travelling throughout the northern riding of Desnethé—Missinippi—Churchill River and talking to the constituents, especially first nations reserves in Saskatchewan, probably as a whole, they have a real concern about the McIvor decision and how it's going to affect their band memberships.
First, in regard to the memberships that are handled by the department, what are the benefits to the membership going to be if it is handled by the department? Secondly, what are the benefits for an individual band holding the privilege of administering their membership lists? What's the difference there, and what are the benefits?
Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Mr. Chair, in terms of the band members, the benefits would be the same whether it's a situation where the department controls the membership or where the first nation controls the membership. Benefits of band membership include such things as housing, the right to live on the reserve, and, significantly, the right to participate in voting for chiefs and councils.
I'm sorry, what was your second question?
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
In regard to the bands, or specifically the first nations reserves, what would be the benefits of them administering the...?
Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
I suppose the real benefit for bands is that they're able to determine who has those rights within their communities. Who has the right to reserve in the community. Who has the right to participate in votes and other community business? It allows for that sort of self-determination.
Conservative
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Super.
If the bands control their membership lists, how will the entitlement of membership be determined by those first nations reserves?
Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
If a band controls its own membership lists, it would have in place its own code or rules, and the determination is based on those rules. As the minister mentioned, the department has no involvement in the administration of those rules. It's up to the first nation.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
So with the McIvor decision, if someone wants to come forward and say to a band, “I do qualify,” and then the band makes the determination that the person doesn't, what types of repercussions will the person have who wants to be included in the membership?
Director, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
I guess they would have to engage with the first nation, with the band. The department wouldn't be involved in that. What will happen is that people who are newly entitled as a result of this amendment will be newly entitled to Indian status, and in situations where the department controls the membership of the first nation under section 11 of the Indian Act, those people will automatically be entitled to band membership in the first nation with which they would be affiliated through their ancestry.
In the case where the first nation controls its own membership, it is dependent on the membership code of the first nation.
Conservative
Director General, Governance Branch, Department of Indian Affairs and Northern Development
Yes. I'd like to add a few comments.
Where a first nation controls its membership and an individual has regained status but is not accepted to a first nation because of the membership code, that individual will have a right to appeal that decision to the Canadian Human Rights Commission as of June 2011, pursuant to Bill C-21, which contained the changes to the Canadian Human Rights Act. So the Canadian Human Rights Act will be applicable to first nations governments as of June 2011.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Thank you. That's why I wondered what was going on.