Indigenous and Northern Affairs Committee on April 13th, 2010

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

Okay. The 1951 act implemented the entitlement to registration. There were other things that happened at the same time, including the “double mother rule”. If we were to go back to 1869, we would have to trace family lines, because there are people who would have regained status through families over many generations.

[Sharon McIvor]

It's fortunately not the government's problem. If you want to be registered, you have to get all of your own information and comply with whatever the government wants as proof. Many people out there can't do that. If they can do it and they meet the criteria, they should be able to do so, no matter how far back it goes. That's what we're saying.

For the male line, it was unrestricted until 1985. As long as your father was a male Indian, you had status all the way down the line. That's all we are asking for. We are asking that the residual discrimination, which happened because of this whole scheme, be rectified.

To say that we have to go all the way back to 1869 I think is a red herring. The government and the registrar don't have to do the research. The people who want to get status have to do the research.

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

Don't mistake me; I support going back to 1869. But as you well know, there's another problem for people applying for status, which is the hoops they have to jump through.

I have a constituent who has been in the process for ten years. Every time he submits the information, the department comes back and tells him they need one more thing.

[Sharon McIvor]

Or they don't look at it. We have responses where you get a letter saying “We can't look at it for six years, because we're back-logged that far.” So there are a whole lot of issues and a lot of people die waiting to have that done.

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

In the interim, we have our hands bound to a certain extent, as we cannot substantially alter the scope of a bill. It will be ruled out of order. There are some amendments that will be ruled in order and some amendments that would be ruled out of order. We would have to test the legal counsel to see what would be in order and what would be out of order.

So at a minimum, what would you like to see us do? Just presuming that we could make an amendment to give everybody status prior to 1985, given section 6(1) status, at a minimum, what would you like to see us do?

[Sharon McIvor]

I want you to respect the honour of the crown and have legislation that treats us and our descendants in a respectful and equal manner, and not go back to the other people, the other bands, and ask if we should be treated equally. That is offensive, to say the least, to say my rights are subject to somebody else's agreement. I would like it all. I fought for it all; I would like it all. And for me there's no minimum. I think the honour of the crown and the honour of these parliamentarians is that, once and for all, this ongoing residual discrimination in the Indian Act should be eradicated.

Do you want to add something?

[Gwen Brodsky]

I do wish to add to that. I cannot believe that in this day and age we would be talking about anything other than zero tolerance for sex discrimination against any women in this country. I know that you are deeply concerned, all of you, to get this right. That's complete and total eradication of the sex discrimination from the status registration regime. Nothing less could possibly be acceptable. To do otherwise will be to engage in sex and race discrimination.

We would not do this to any other group of women in the country. There is no consultation required or permissible about rectifying the status registration system. It would be discriminatory to go and ask those who disagree with us whether equality is to be the norm in this land. It is the norm. That's been decided. That's off the table. Zero tolerance, that's what this committee must proceed on.

[The Chair, Conservative, Bruce Stanton]

Okay, thank you, Ms. Crowder, Ms. Brodsky, and Ms. McIvor.

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

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

Thank you very much.

It's very nice to actually meet the person we've heard so much about in terms of the McIvor decision and who has spent so much time in trying to get to where we are today.

This part of the Indian Act, the registration part, is very complicated. Nobody is saying otherwise. I'm reflecting on the fact that many of the self-government agreements and treaties that have been negotiated over the last dozen or more years have essentially dropped the Indian Act, with one exception. There always seems to be the exception of the registration portion of the Indian Act being imported into these agreements, because it is such a complex area.

When you were giving an example earlier on, you were talking about a family who had children predating 1951 and postdating 1951. Under Bill C-3, it's very clear that the children born after 1951, as you described, are achieving registration; but it's also very clear that any sibling of those individuals born before 1951 is also eligible for registration. I wanted to clarify that one important matter.

I also want to talk about the process of registration. Like Jean Crowder, I've had experience working with people who are seeking registration. I know it's very onerous on the applicant, but it is also very onerous on the verification process. Sometimes these records are very difficult.

We do expect to hear from the Canadian Human Rights Commission on this whole issue, because there is a possible tsunami of cases coming forward as a consequence of Bill C-3, because it means that the Canadian Human Rights Act, as of June next year, will apply to all first nations people. I just wonder if you have a comment on the amendment to the Canadian Human Rights Act, which I think is positive for you.

The other thing is that we have launched this engagement process to follow Bill C-3, as part of our initiative on Bill C-3 to promote gender equality. We want to have a complete, ongoing process to see where we can get consensus across the country on further changes to improve registration status and citizenship. I wonder if you want to comment on that.

[Sharon McIvor]

I do have a comment on the issue of status and the issue of membership. In this particular case, we separated those out and are only looking at status and our individual relationship with the government. Whatever happens with membership is not part of this case, so there's absolutely no reason to consult with anyone on whether or not the Indian Act should continue to discriminate against women in different ways, or women and their descendants in different ways. If you want to consult on membership of particular bands and what they need and what they want, that's perfectly fine; but on the issue of status, which only concerns the relationship between the government and each individual Indian, there's nothing to consult.

As I said earlier, I find it very offensive to have groups consulted on whether I and my descendants, or my counterparts and their descendants, should be afforded their equality rights. These shouldn't be on the table at all. If you want to consult on membership, that's fine, because membership of a band is a whole different issue.

I see that in Bill C-3 the government has chosen to add newly registered Indians onto band lists without any input from the band. That's not part of the case. That was not part of my case and not part of the decision.

Gwen.

[Gwen Brodsky]

I support Ms. McIvor on that, and I would add that a staged approach is preferable.

I believe there is a July deadline for the government to respond to the litigation, which is only concerned with registration status. It's like citizenship: it is purely individual. It confers a status card and a number, official recognition of a person's aboriginal heritage, and it carries with it some entitlements to social programs, such as enhanced health care and financial assistance in attending a post-secondary institution.

That territory can and must be dealt with immediately. It is a very simple matter of doing it, as Ms. McIvor has explained.

Band membership carries with it a completely different set of entitlements, to such things as rights to vote in band elections and participate in band community affairs, and access to housing on reserves. Those are different issues, and they are worthy of consultation. It may not be possible to deal with them prior to the July deadline.

That can't stand. It won't stand as an acceptable excuse for not remedying the sex discrimination in the registration scheme immediately and completely.

[The Chair, Conservative, Bruce Stanton]

Thank you.

Thank you, Mr. Duncan.

Now we'll go to the second round, and we'll begin with Ms. Neville for five minutes.

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

Thank you very much.

And a particular thank you to both of you for travelling across the country to meet with us.

What I'm hearing you say is that under this legislation some women are more equal than others, and that in no other forum or arena would that be allowed to happen. I don't know if you want to say anything further about that, but I'd be interested if you do.

What I'm also hearing, Ms. Brodsky--and I'm just checking--is what you just indicated, which is go ahead and make the fulsome amendment so that all women are included under this legislation, and maintain the engagement and consultation process, whatever it is, for the other issues this brings to light, such as band membership, citizenship, and whatever.

Could you both expand on that a bit?

[Gwen Brodsky]

Your encapsulation, Ms. Neville, is correct. Regarding the view that we have advanced, it is simply wrong to make some women--any aboriginal women--subject to continued sex discrimination. That is what this bill, if it is allowed to pass as it stands, would do. It would be failed remedial legislation. That's what the 1985 act was--failed remedial legislation. Bill C-3 is a set-up for yet another instance of failed remedial legislation, for disappointment to aboriginal women and their descendants, who have been waiting for a long, long time for Parliament to do the right thing. That must be dealt with immediately.

The other issues concerning band membership, for example, which form no part of our case, can be dealt with separately in what may require a somewhat lengthier process. What's needed to address the discrimination in the status registration provisions is well understood and straightforward and it involves no competing rights whatsoever.

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

This is really a question to the minister and the department. When the minister was here I asked whether they had done an analysis of the unintended consequences of this legislation, and quite frankly I can't remember the full answer. There was an acknowledgement that it's difficult.

What I'm hearing from you is that in all likelihood, should the legislation pass as is, aboriginal women will need another Sharon McIvor of the next generation to take this battle forward so that all women are equal. Is that a fair comment?

[Sharon McIvor]

Yes, it is a fair comment. In 1985 the charter forced the government to take all the discrimination out of the legislation, and they didn't do it for us. They forced us to take it to court. And 25 years later we finally have a court decision that makes the government do it because the court said so.

I find it interesting, to say the least, that as parliamentarians, you understand that the discrimination is there--I think you all said you understand it's there. You also understand that this legislation won't clean it up. I don't understand what is stopping you from cleaning it up.

It's totally beyond my comprehension that all of you, seeing the discrimination, won't go ahead and clean it up properly instead of this stopgap you're using. I know from experience with the myriad of Ministers of Indian Affairs I begged to help out that they have said it's too much of a problem and they wouldn't touch it with a ten-foot pole. They understand the problem, but they're not going to fix it.

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

Why?

[Sharon McIvor]

They just said that it was too much of a problem to fix. Now you have to fix it, because the courts said you have to.

I find it quite disappointing that you want to do a remedial again without totally fixing it.

[The Chair, Conservative, Bruce Stanton]

We are out of time, unfortunately. Thanks, Ms. Neville and Ms. McIvor.

Now let's go to Mr. Duncan. This will be our last question. Go ahead, Mr. Duncan.

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

Thank you very much.

I'll go back to the exploratory process. I believe I heard you say you agreed this would probably require a staged process. We are responding to your litigation, to your court case, and there's an understanding that more was needed and that is why we have got ourselves into a strong commitment to an exploratory process. I think it would be unfair to say categorically that there is not a divergence of opinion on status and registration across the country based on some previous history in some parts of Canada.

I'm trying to get to a buy-in on the exploratory process, because we've got a lot of people excited about the fact that we're going to set terms of reference through consensus. This is not going to be a process driven by the Department of Indian Affairs; this is going to be one that is driven collaboratively, and I think it has much potential to lead us to the long-term solution you are looking for. And I don't see how we could get there with a committee with limited resources and ability to get where we need to get to to address the most pressing concern, which is responding to your litigation.

[Sharon McIvor]

I will repeat that we as Indian women and our descendants deserve to be treated equally. I don't think any amount of consultation will change that, and it shouldn't. You shouldn't have to consult with others to see if I can enjoy my full right to equality. I understand that the issue of membership and resources in communities and all of that is there, and I understand the need to consult on that, but on status I don't see the need to consult.

I know that for our indigenous communities, it seems to be a barrier for us to move ahead. When the country, the various provinces, decided to put the matrimonial property issue into legislation, where the provinces deemed the family assets of a married couple are fifty-fifty, regardless of whose name they were in, I don't recall them asking the men whose name they were in if it was okay with them. It was the right thing to do.

I see this is exactly the same situation. The band should not have a say on whether I should enjoy my full right to equality. They have a say in governance of their own communities, and they should be consulted on that, but not whether I and my sisters should enjoy our full right to equality.

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

But the exploratory process will allow for a lot more than bands to have a say. This is for the Native Women's Association and all kinds of individuals--women from across the board, and so on--to describe what they view as discriminatory registration practices. This is about registration and status, as well as membership and those other things, because it is a complex issue.

[Sharon McIvor]

It's not a complex issue.

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

Well, it's very complex. You described a situation of discrimination that I explained won't exist after Bill C-3. Siblings of people born after 1951 who were born before 1951 will clearly qualify for registration. That's just one example of the complexity. So this bill will actually go further than you describe in addressing discrimination.

[Sharon McIvor]

I will need to have another look at it, but that's not my reading of it. That 1951 date is a barrier; otherwise it wouldn't be there. If it wasn't a meaningful date you wouldn't have to put it in.