Indigenous and Northern Affairs Committee on April 13th, 2010

[The Chair, Conservative, Bruce Stanton]

Good afternoon, ladies and gentlemen, witnesses and guests.

I hereby call to order this 8th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

On today's agenda, pursuant to our order of reference of Monday, March 29, 2010, we are considering Bill 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).

Ladies and gentlemen, this is our second meeting with respect to this bill. I should say, members, we will be having three one-hour instalments this afternoon to take us until 6:30.

For the first hour we welcome Ms. McIvor, who has been quite involved in this issue for a long period of time and is the source of the claim and the issue we have before us. We welcome Ms. McIvor.

In the course of our questioning for each of the three hours we will go for the normal ten-minute presentation followed by questions from members. We'll stay with the usual seven-minutes in the first round and five minutes in the subsequent rounds of questions.

With that, we'll begin.

Ms. McIvor, it's great to have you here. You have the floor for ten minutes.

[Sharon McIvor, As an Individual]

Thank you very much for inviting me. I would like to introduce my friend and colleague, Gwen Brodsky, who will be taking part in probably helping me answer some of the questions that I anticipate you will be asking me.

First, I want to briefly introduce myself. I am Nlaka’pamux, from the Lower Nicola Indian Band, in south-central British Columbia, about two and a half hours northeast of Vancouver. I live and work in my community. I drive by the place where I was born every day when I go to work, so I haven't moved very far. Gwen, aside from being a lifelong friend, has also been one of the lawyers on this particular case.

I've had many questions asked about what role does my band play and what does my band think. I have a letter here from my chief that I would like to read to you:

Re: appearance of Sharon McIvor, an LNIB member:

I wish to advise the Standing Committee that the Lower Nicola Indian Band is in full support of the work of our band member, Sharon Donna McIvor, in her efforts to achieve full equality for first nations women of Canada, their children and their grandchildren. I commend the committee for making time to listen to her views. Bill C-3 is a large part of her achievement, having spent 20 years to get a court hearing on the issue of the grandchildren of first nations women who married outside their nation.

Indian status is a citizenship issue and one fully deserving of its equation to Canadian citizenship. When Canadians need to obtain passports to go to the U.S., the minister responsible for passports ensures all Canadians can obtain passports on an expedited basis in the closest town or city possible. The Minister of Indian Affairs has been severely remiss in his duties to first nations, many of whom have waited and are still waiting for status under Bill C-31. The list is reportedly over 100,000. You must do all in your power to ensure these grandchildren of women who married outside their first nations can receive their citizenship in an expedited manner, along with the 100,000 still waiting under Bill C-31.

I remind you that Ms. McIvor was given, by court order of B.C. Supreme Court, full status for her children and grandchildren based on sex equality and this is substantially reduced by the B.C. Court of Appeal. I encourage you to remove the 1951 date, which reduces full equality for all those who have suffered under this sex discrimination.

I would be pleased to make an appearance before the committee.

Respectfully, Lower Nicola Indian Band Chief Don Moses

So, on record, my chief has supported and continues to support this effort. I also want to acknowledge that although this is my part of the fight, I'm not the leader of this fight. I didn't begin this fight, and I want to acknowledge Mary Two-Axe Earley, Nellie Carlson, Jenny Margetts, Jeannette Lavell, Sandra Lovelace, and other women who have taken this fight throughout the years.

For the members, I have a copy of a presentation that Mary Two-Axe Earley gave to the government in 1978. I'm not going to read the whole speech, but there are a couple things that I think are important for you to understand that it isn't only today that this issue has been a problem. She said:

Let us chronicle our pain, point by point:

1. When the Great Spirit calls us we cannot be buried alongside our ancestors in the tradition burial grounds where their bodies have gone to rest. This is the most cruel condition of our imposed exile. Yet people from the neighbouring City of Montreal can bury their dogs on selected plots of Reserve land.

2. We cannot inherit property given to us by our ancestors or bestow property [on] our children. It is as though we were non-entities, not to be accorded the normal recognition afforded by all free people.

We are prohibited from exercising the right to political participation, including the right to vote and to advocate the candidacy of those worthwhile persons who can be an asset to our people. We cannot be Indian in word or action. We are the victims of cultural genocide.

One more passage:

We Indian women stand before you as the least members of your society. You may ask yourself why. First, we are excluded from the protection

—this is 1978—

of the Canadian Bill of Rights

—that's section 67—

or the intercession of any human rights commission because the Indian Act supercedes the laws governing the majority. Second, we are subject to a law wherein the only equality is the inequality of treatment of both status and non-status women. Third, we are subject to the punitive actions of dictatorial chiefs half-crazed with newly acquired powers bestowed by a government concerned with their self-determination. Fourth, we are stripped naked of any legal protection and raped by those who would take advantage of the inequities afforded by the Indian Act. Raped because we cannot be buried beside the mothers who bore us and the fathers who begot us...we are subject to eviction from domiciles of our families and expulsion from tribal roles. Because we must forfeit any inheritance of ownership or property. Because we are divested of the right to vote. Because we are ruled by chiefs steeped in chauvinistic patriarchy, who are supported by the Indian Act, drafted by the rulers of this country over 100 years ago. Because we are unable to pass our Indianness and the Indian culture that is engendered by a mother to her children, because we live in a country acclaimed to be one of the greatest cradles of democracy on earth offering asylum to Vietnamese refugees and other suppressed peoples while within its borders its native sisters are experiencing the same suppression that has caused these people to seek refuge in the great mother known as Canada.

Those are the words of Mary Two-Axe Earley in 1978, and I'm bringing those words today because they are current 32 years later. We have a piece of legislation being introduced that continues to perpetuate sex discrimination against Indian women and their descendants.

Jeannette Lavell was one of the first to bring the issue to court, followed by Sandra Lovelace, who took it to the UN. Jeannette was unsuccessful. Sandra was successful. And in 1985 Minister Crombie changed the act, Bill C-31. But when the act was changed in 1985, parliamentarians knew there was residual discrimination. Crombie's records show that they understood that some of us would still suffer from the residual discrimination.

My case started in 1985. I got into the court system in 1989. When I started, my oldest son was 14, and my grandchildren...I had not thought of them. I hoped I'd have them some day, but they weren't anywhere on the horizon.

As a result of some of the litigation, my son received his status in 2007, which is 16 years after we started. When we started he was a minor, and, as the case proceeded he was then added on under his own right, because he was old enough.

My grandsons, who were not thought of when I started, will be 17 and 19 this year.

We knew that it was discriminatory. You, as parliamentarians of the day, knew it was discriminatory, and yet they forced someone like me to take it through the courts and have the courts decide that it was discriminatory. As a result of that, my son lost 15 or 16 years of his entitlement, and my grandsons have not been recognized as having that entitlement yet.

I'm not the only one. There are thousands of women and thousands of grandchildren out there who are still looking to have this put right.

The government is now responding to the court decision. The court has told you that you have to change it. Section 6 of the Indian Act is potentially being struck down because it discriminates against Indian women.

I understand from reading Bill C-3 that you have crafted some kind of remedy. I am here today to ask you, to plead with you, to include all of those women and their descendants who are discriminated against, not just the narrow view that the B.C. Court of Appeal addressed. As parliamentarians you know that the court does not draft legislation. They just put it back into your lap so you can do what is right.

It's up to you to do what is right and get rid of that residual discrimination--

[The Chair, Conservative, Bruce Stanton]

Ms. McIvor, we're over time right now. You've introduced that idea, so at this point we will go to questions from members to explore these ideas a little further. We are under some tight timelines, so please don't take any offence. It's a normal thing and we can draw all these ideas out in play as we proceed.

Let's go to our first question from Mr. Russell.

[Todd Russell, Liberal, Labrador, NL]

Thank you Mr. Chair.

Good afternoon, Ms. McIvor and Ms. Brodsky. It's good to have you with us this afternoon. I want to acknowledge your journey and the monumental task you've undertaken. It's hard to fathom 20 years of doing battle, but I guess when the cause is so integral and meaningful, not only to you personally and your families but to so many others, particularly aboriginal women, you just keep on trudging. So with all humility I commend you and those who came before you for your efforts in undertaking some very arduous tasks.

When I spoke in the House of Commons, I gave tacit support to Bill C-3 on behalf of our party. But we also commented that we were concerned about the impact this bill might have. You mentioned Bill C-31 and the residual impacts that had in terms of other forms of discrimination that had arisen.

You made the statement that even with Bill C-3--you're telling this committee and all of us as parliamentarians--there will still be gender discrimination. The government calls the bill an act to enhance gender equity in Indian registration. So can you illustrate for us in a concrete fashion how there would continue to be gender inequality, even if Bill C-3 went through as is?

[Sharon McIvor]

I have several examples. What is crafted by the B.C. Court of Appeal is that those women who married out will have the remedy of having their grandchildren added. We have many first nations women who had children with non-Indians but didn't marry and did not lose their status. Their children, for the most part, were not eligible for registration, so their grandchildren will not be eligible for registration. Their children would have been brought in under subsection 6(2), which gives them what we call half status because they can't pass it on, and their grandchildren are not eligible. Women who did not marry and still lost status for their children will not get a remedy from this.

There is a situation—actually this is a personal situation: I have a niece and a nephew, their father is a status Indian, and their mother is not an Indian. Erin, who was born in 1979, was given status at birth. Evelyn, who was born in 1980, 14 months later, was not allowed to have status because she was a female. It was the illegitimate male descendants of a male who could have status and the females could not. In 1985 Evelyn applied for and was given status, but she was given 6(2) status and her full brother has a 6(1) status, which means Erin can pass status on to his kids, Evelyn cannot. The only difference is one is male and one is female. This legislation will not make any difference for that.

The 1951 date is really problematic. Basically any grandchild who's over 59 years of age right now will not benefit from it. There's a situation where a grandmother married in 1916. She had children in 1917, 1918, 1922, and 1925. She has grandchildren born in 1933, 1943, 1945, 1948, 1950, 1953, 1955, and 1958. That's a factual situation. Under this legislation the children born in 1933, 1943, 1945, 1948, and 1950 are not entitled to registration. Their siblings and cousins born in 1953, 1955, and 1958 are included. So the 1951 date is quite problematic when you've got families that are split like that, some born in the middle to late forties, some born in the middle to late fifties. And that's a factual situation.

Those are the factual situations. Gwen will add to this for me.

[Gwen Brodsky, As an Individual]

The further problem, Mr. Russell, that will result in people, deserving people, excluded on the basis of their descent along matrilineal aboriginal lines, rather than patrilineal aboriginal lines, is with regard to the assignment of second-class status, section 6(2) status, to the grandchildren. That's the best they, the grandchildren, can get, even if they were born prior to April 17, 1982, under the proposed legislation, whereas the grandchildren of their male counterparts born prior to April 17, 1985, will have section 6(1) status, which can be transmitted to another generation.

The bottom line--

[Todd Russell, Liberal, Labrador, NL]

The bottom line is that there's still going to be gender inequality after Bill C-3, according to your testimony.

[Gwen Brodsky]

That's correct.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Russell.

We will move now to Mr. Lemay.

You have seven minutes.

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

Ms. McIvor, on behalf of the Bloc Québécois, I would like to begin by commending you for leading this battle which, unfortunately—and I am quite sincere when I say this—will not end today. It is absolutely clear that the Indian Act discriminates against aboriginal women. The problem is that it will continue to do that once Bill C-3 has passed. Neither the previous nor the current government has taken any action to resolve this issue. As the British Columbia Court of Appeal stated, we are stuck with a decision that goes back to 1951. I do not want to give you false hope. At least Bill C-3 will represent progress. As a media host back home would say, here is the killer: under the rules of Parliament, we cannot go any further than what this bill proposes. Otherwise, it will be ruled out of order.

So, how can we improve this bill, despite the fact that we cannot go any further back than 1951 and that it will continue to discriminate? It is a serious problem. I don't know whether you can answer that question or whether other groups that will appear subsequently have the answer.

[Sharon McIvor]

I don't see why you can't go back further than 1951. Just get rid of that date. We need to have all people born before April 17, 1985, to be in the section 6(1) category, and no one in the section 6(2) category before 1985.

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

I don't want to seem rude by interrupting you, but I would like to know if you're talking about people born before or after 1985.

[Sharon McIvor]

It's before.

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

So, individuals born before 1985 should be covered under subsection 6(1) of the Indian Act. Is that what you are saying?

[Sharon McIvor]

They should be under section 6(1).

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

Yes, that's what I said. You would like everyone born before 1985 to be covered under subsection 6(1). Is that correct?

[Sharon McIvor]

Yes.

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

I understand, but starting from 1985, how far back do you want to go? To 1951? To 1876?

[Sharon McIvor]

I want to go back as far as the Indian Act goes back. I want that 1951 date gone, and I want everyone who has status prior to April 17, 1985, to have it under section 6(1), as do their male counterparts. All of the descendants of the men up until 1985 had status under section 6(1) . None of them were accorded the lesser status under section 6(2).

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

Please feel free to comment.

[Gwen Brodsky]

The descendants from the male line are accorded status without regard to the 1951 cut-off. Direct descendants of status Indians are able to claim their status and go to the registrar with their claims of entitlement to status, going back as far as they need to.

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

Really?

I have no further questions. I will reflect on what the witness has just said.

[The Chair, Conservative, Bruce Stanton]

Merci, Monsieur Lemay.

Let's now go to Ms. Crowder.

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

On behalf of the NDP, Ms. McIvor, I want to thank you for your tireless work in fighting this. I thank your family as well, because you wouldn't be doing it without your family's support and your community's support. I want to thank you.

This number may not be correct, but when the officials came before the committee, I believe they indicated to us that there are 14 cases on status before the courts. I'm not a lawyer, but given the track record of the government on losing these cases, I would argue that it would seem reasonable to consolidate the information and to look at more far-reaching changes to status in consultation with first nations.

I want to touch on a couple of things you talked about.

Regarding the 1951 date, our research people did a very good job on doing a summary. They indicated that the earliest statutory definition of an Indian in 1850 was inconclusive and did not differentiate between male and female. A statute in 1869 introduced the first provision under which the marriage of an Indian woman to a non-Indian man meant loss of status. It goes on to say that the act in 1876 explicitly emphasized male lineage, including a definition of any woman, Indian or not, who married a male. It was entrenched in 1951.

We're actually going back to 1869 in terms of this discriminatory practice. I don't know how we can begin to undo that kind of damage. I know that when you brought your case forward, it was much broader and you suggested that we remove any reference to 1951. Would the section 6(1) status apply to everybody prior to 1985, no matter what?

[Sharon McIvor]

Yes.