Indigenous and Northern Affairs Committee on April 13th, 2010

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

Do I have more time?

[The Chair, Conservative, Bruce Stanton]

A minute and a half, Ms. Neville.

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

Let me take you in another direction.

Do you get many concerns expressed from women in communities over this issue? And do you have the capacity to build a catalogue of the inequities—I was going to say injustices—that come forward?

[Jeannette Corbiere Lavell]

Well, we are dealing with one right now, one I neglected to mention. Women, especially the single mothers, are leaving our communities because of the physical abuse, just to get away in order to provide for their children. That happens. It's well documented. But at the same time, there's the lack of housing, and hopefully we'll be able to deal with that under the matrimonial real properties. We want to explore that and work with the Department of Indian Affairs on that as well. But there are research papers...

[Karen Green]

We don't actually have the capacity to look at individual cases. We do get calls. A lot of the calls are around land and housing issues. Also some are around people trying to figure out how to get access to the registrar and how to get their status back. But we don't have the capacity to actually deal with those issues or to document them in a way that would be most helpful.

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

Thank you. Thank you very much.

[The Chair, Conservative, Bruce Stanton]

Thank you, Ms. Neville.

We move now to Mr. Dreeshen.

You have five minutes.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much.

It's nice to see you again.

I would just like to ask a question. I was just wondering if perhaps you could comment on the progress that has been made since you first started working on this topic and how you see Bill C-3 fitting in with the activities you have been in.

[Jeannette Corbiere Lavell]

When you mention this topic, do you mean looking at the status question?

[Earl Dreeshen, Conservative, Red Deer, AB]

Absolutely.

[Jeannette Corbiere Lavell]

Well, as I said, it started in 1970, which is 40 years ago now we've been working on this. We are determined to see the final end, where we will get that equal access to our rights as members within our communities. So it has been a long time. There have been changes and it seems like it's going step by step. But maybe now's the time when we could deal with it collectively and just state that in this day and age it's part of our history. This is when we will eliminate all forms of discrimination and inequity within any legislation that affects us, especially us as aboriginal women.

[Karen Green]

This was a key issue for us. It was one of the reasons the Native Women's Association came together in 1974. So I think the fact that it's still a key issue in 2010 indicates to us that we still have a ways to go.

[Earl Dreeshen, Conservative, Red Deer, AB]

I know you were talking earlier about it, and I perhaps would like to give you an opportunity to expand on some of the issues you have just spoken of, about abuse, housing, matrimonial real property, other capacities. Do you have some comments there as to a way in which we could be moving forward?

[Karen Green]

Clearly there are a number of things that would need to be done at the same time. We know there are a lot of capacity issues in our communities in terms of poverty, lack of housing, poor water, overcrowding in housing, lack of land. I think those are issues that play into this and that are important, because we don't have the infrastructure to deal with many of those issues. Those are fundamental issues that have to be dealt with, and that's something we've always said in the matrimonial real property discussion. We need those non-legislative measures to put some of those in place, because otherwise you just create problems on top of problems.

[Jeannette Corbiere Lavell]

The other big area that we must ensure continues is education. Our people need to be able to access higher education, post-secondary, because that is the only way we will be able to understand, know, and maintain our balanced life within our communities so that we can apply not only our teachings but other applications in terms of human rights and justice among our people. I understand that post-secondary might be considered for cutting. To have that done, I think it will be devastating to many of our young people, because for our young people, that's the biggest block of our population. They need those resources still.

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Dreeshen.

That will finish our second hour. Again let me say that we're delighted to have you here again to kick off our second meeting on this important study. We wish you well.

Members, we're going to take another brief recess. I would encourage you all to get a bit of food, which will perk you up for the last hour, and we'll continue from there momentarily. We'll suspend now.

[The Chair, Conservative, Bruce Stanton]

We'll resume, members, if we can get back to our seats. We'll invite our witnesses for the last hour here.

I call the meeting back to order. We'll finish this up as quickly as we can.

For our final hour this afternoon, we have two organizations present, and we're waiting on one, I guess.

Let's begin by inviting Betty Ann Lavallée. Betty Ann is the national chief for the Congress of Aboriginal Peoples. She is joined by Roger Hunka, also from the Congress of Aboriginal Peoples. We also have, representing the National Association of Friendship Centres, Mr. Conrad Saulis.

Let's begin. You will each have ten minutes for your presentation, and then we'll go directly to questions from members.

We'll begin with Ms. Lavallée.

[Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples]

Good evening. It's an honour to appear before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.

I want to thank the Algonquin people on whose traditional ancestral homelands we are assembled.

We brought copies of our presentation for everybody. Unfortunately, it's not in French, but they are available, if you want them. We also brought one copy of the book on McIvor that we did over the past couple of months, talking about the affecting of Indian registration and band membership.

I am the Congress of Aboriginal Peoples' national chief, Betty Ann Lavallée. For almost forty years the Congress of Aboriginal Peoples as a national aboriginal representative organization has represented the interests of off-reserve non-status and status Indians and Métis aboriginal people living in urban, rural, remote, and isolated areas throughout Canada. We are also the national voice for the constituency and their affiliate organizations making up the Congress family of advocates for the off-reserve aboriginal peoples of Canada.

Traditionally, the aboriginal peoples in Canada identified with their own specific aboriginal nations of peoples, whether Mi'kmaq, Maliseet, Mohawk, Ojibway, Seneca, Chipewyan, Carrier, Dakota, Nootka, and onward, as one of the 73 nations of aboriginal peoples of Canada. The aboriginal nations of peoples have been systematically divided by the federal government through Indian policy, the disinheritance of aboriginal peoples' birthright identity and the dispossessing of their access to resources. Today, we have countless classification for “Indian”: we have status Indian, non-status Indian, off-reserve Indian, on-reserve Indian, registered Indian, treaty Indian, band member, non-band member, beneficiary, non-beneficiary, and so on.

In 1985 Bill C-31, an Indian Act amendment, was introduced, and the provisions within stated that discrimination based on sex should be removed from the Indian Act; that status and band membership should be restored to those who lost it through the Indian Act; that no one should gain or lose status as a result of marriage; that persons who have acquired rights should not lose those rights; that bands who want to should be able to determine their own membership.

The 1985 amendments introduced what is referred to as the second generation cut-off rule. This means that anyone registered under section 6(1) has what is considered full status; for example, they can transmit their Indian status to their children regardless of the identity of the second parent. Indians registered under section 6(2) of the Indian Act have only half status; for example, they must parent with another Indian in order to transmit their status as an Indian to their children. Bill C-31 amendments did not address all the gender discrimination but continued to perpetuate it by reinstating only Indian women who had lost their status under paragraph 6(1)(c) of the Indian Act of 1985 and registering their children pursuant to section 6(2).

For Indian men who married non-Indian women, they and their children retained their status as Indians under section 6(1)(a) of the Indian Act. This effectively means that the descendants of Indian women who married out are treated differently—they have lesser or no status—as compared with Indian men who married out, who retain status. This is often referred to as residual discrimination.

The British Columbia Supreme Court found that there was gender discrimination in the registration provisions of the Indian Act and ordered a broad remedy. Canada appealed the decision to the Court of Appeal for British Columbia. The Congress of Aboriginal Peoples was an intervenor, along with six other aboriginal groups. All of the intervenors presented arguments in support of Sharon McIvor's case.

One major issue that required additional attention during the appeal was that of the “double mother rule” of the previous Indian Act. The double mother rule stated that children whose mother and paternal grandmother were non-Indians—that is, were only Indians by virtue of marriage to male Indians—could only be registered until they were 21 years of age. A section 6(1) Indian man can pass section 6(1) status on to his children if he marries a non-Indian woman. Those children can pass section 6(2) on to their children. However, the grandchildren's children would not be registered. In the same scenario, a section 6(1) Indian woman can pass section 6(2) status on to her children if she marries a non-aboriginal man, but those children cannot pass status to their children.

On September 12, 2009, representatives of the Canadian government attended CAP's annual general assembly and confirmed that this is not a consultative process. CAP can be an integral partner in moving this discussion forward. Our constituents have lived the effects of the Indian Act. We have the ability to consult with them, to bring their concerns to the table, and to work out mutually beneficial solutions. CAP's affiliate memberships have different connections with families divided or denied identity or registration by provisions of the Indian Act.

Canada cannot talk to one group about these proposed changes without impacting the other. CAP strongly believes the views of the aboriginal peoples of Canada should be considered and accommodated toward reconciliation. CAP's constituency of the off-reserve aboriginal peoples throughout Canada makes us an invaluable resource and partner in moving forward an interim solution to the necessary changes to the Indian Act. CAP's recommendations to the government are:

That as an interim measure, Canada amend section 6(1)(a) of the Indian Act, 1985, to include the following words: “or was born prior to April 17th, 1985 and was a direct descendant of such a person”;

That Canada ensures that the band membership provisions of the Indian Act, 1985, include those persons added by amended section 6(1)(a);

That Canada provide adequate funding to CAP to establish a national commission to extensively consult, study, and report on what CAP's constituents consider to be the most desirable amendments to the Indian Act regarding registration and band membership; and

That Canada provide adequate funding to CAP to conduct research in the area of registration and band membership to address the gender equality issues raised in McIvor.

Canada is obliged by the BCCA decision to amend the Indian Act to address the residual discrimination prior to April 6, 2010. CAP's constituents are the ones who are directly impacted by the Indian Act.

The complex legal, political, and cultural issues that surround aboriginal identity, including the ongoing fight for recognition of the non-status Indians in Canada, require immediate action. Canada's legal obligation to consult and accommodate aboriginal peoples' rights and interests for reconciliation requires a meeting of the parties. CAP is an inevitable partner, with forty years of experience and knowledge. By working the CAP recommendations, CAP and Canada can begin to build a true partnership for reconciliation and recognition of birthright identity for the largest sector of the aboriginal peoples in Canada--the off-reserve, non-status aboriginal peoples.

Generally, without being exhaustive, Bill C-3 does not address gender inequality between Indian women who married out and their descendants, and Indian men who married out and their descendants. There are at least three very specific problems with the proposed amendments.

Section 6(1)(c.1)(iii) specifically provides as follows: “was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and”.

This section is awkwardly worded, and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from? I do not see this section reflected in Canada's discussion paper, “Changes to the Indian Act affecting Indian Restoration and Band Membership: McIvor v. Canada”.

Section 6(1)(c.1)(iv) provides as follows: “had an adopted child on or after...”. This section has the effect of creating a new way to determine entitlement to registration, and as a result creates a newer form of discrimination between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's child or children. Status has always been determined based on the entitlement of one's parents. For example, parents transmit their status to their children, not vice versa.

Section 9 provides is the non-derivation clause of being able to claim or receive any compensations or damages.

[The Chair, Conservative, Bruce Stanton]

Ms. Lavallée, I realize you've got a couple more pages to go. We are.... Oh, check that. I was thinking seven o'clock. Pardon me, seven minutes, and that's why I'm jumping ahead of myself. So you've still got about two and a half minutes, and we'll see how we end up on the final ten minutes. Carry on.

[Betty Ann Lavallée]

What I'll do at this point is I'm going to just move on. I think everybody understands that this section is an insult to aboriginal women and their descendants.

To move on the road for reconciliation, we are in the midst of real political action to resolve many problems created by Indian policy and Indian acts from colonial times to the present. From June 2008 to the present, the current Government of Canada, in historic terms, has launched a suite of public statements, acts, policies, strategies, actions, and plans focused on the aboriginal peoples of Canada that mark a significant turning point in Canada-aboriginal peoples relationships not witnessed in Canada since 1982.

CAP would safely say the “spark” that gave life to this political action, which CAP calls the “time for honest reconciliation” in Canada, started when this government formally made a televised public apology for the pain and losses clearly etched on the survivors of the residential school experiment and the aboriginal peoples of Canada as a whole. From that day forward, we can follow the government's suite of actions, which form vital elements of the larger picture of the “time for honest reconciliation” in Canada. I believe that CAP's recommendation three is very significant. CAP is an important national aboriginal organization on this topic.

Let us look at the suite of changes moving relationships forward. We have political and financial support with an extensive compensation package issued for a majority of the survivors of residential schools. We have the continuing support and a celebrating event with the Governor General on the occasion of the establishment and launch of the Truth and Reconciliation Commission this past fall, 2010.

This past summer there was announced and rolled out the forward-looking federal framework for aboriginal economic development, with its four key pillars. This framework is accompanied with a new aboriginal skills and employment training strategy, ASETS. ASETS is also laying out a carpet for partnerships with industry and business in Canada.

We have the matrimonial real property act, a bill that CAP strongly supports. This government clearly recognizes the humanity of aboriginal men and women. The MRP has more significance than meets the eye. The bill is addressing the real human issue of an aboriginal person, something taken for granted by all other Canadians and provincial governments. A spouse within an aboriginal relationship should not be denied, or put out on the street alone and without any recourse, because of a family breakdown. The MRP is a very significant piece of legislation.

Last year there was the repeal of the shield of section 67, against Human Rights Act recourse for actions made under or through the Indian Act. This repeal of section 67 from the Canadian Human Rights Act with Bill C-21, and the accompanying work and time for preparing to meet the challenges, is cause for celebration.

[The Chair, Conservative, Bruce Stanton]

We're probably not going to have time to get the whole document in there. I wonder, Ms. Lavallée, if you could just jump to the end and summarize. Of course, if we are able to get this document translated, we'll get it to all members.

[Betty Ann Lavallée]

We believe that through the exploratory process that's being proposed there will be a fresh breath into the lives of aboriginal peoples in the “time for honest reconciliation”.

For some aboriginal peoples there will be a rekindling of continuing forms of governance, reflective of the 73 ancestral homeland aboriginal nations of the aboriginal peoples of Canada, and for others there will be a road of hope with light at the end of the journey. Together we can celebrate all peoples of the great federation of Canada.

We are on a road to end the discriminatory distinction-based concepts floating about that herd the aboriginal peoples of Canada into groups. There will be an end to the brat constitutional mischief about the meaning of the word “includes” after the words “the aboriginal peoples of Canada” in section 35(1).

We will no longer need an Indian Act to create a paper manifestation or an Indian Act Indian.

[The Chair, Conservative, Bruce Stanton]

Sorry, I know we get jammed up against time constraints here. Thank you, Ms. Lavallée.

Now we'll go to Mr. Saulis for ten minutes.

Mr. Lemay, on a point of order.

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

I have a point of order, Mr. Chair.

Will we be receiving the document that Ms. Lavallée read, or was trying to finish reading? Is it available? Will she be sending it to us?

[The Chair, Conservative, Bruce Stanton]

We have only just received it. We will send it out to be translated.

Go ahead, Mr. Saulis.