Indigenous and Northern Affairs Committee on April 15th, 2010

[The Chair, Conservative, Bruce Stanton]

Ms. Hodgson-Smith....

I appreciate, and I'll let members know, that Ms. Hodgson-Smith has provided a comprehensive brief, of which we're partway through now. We will undertake to have this translated and distributed to all of the members. In order to leave some time for questions from members, we're going to finish up there.

Members, in light of the time, we'll go to five-minute questions, if we could.

Oui, monsieur Lemay.

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

Will we also get the Barreau du Québec's brief?

[The Chair, Conservative, Bruce Stanton]

Yes, absolutely.

We'll have that. In the same vein, if it hasn't been translated we will undertake to get that done and circulate it to all members. That's a good point.

Now, let's go to questions from members for five minutes. To our witnesses, it's five minutes for the question and response, so try to keep the answers succinct, along with members' questions.

Let's go to Mr. Russell for five minutes.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair, and good afternoon to each of you.

I certainly want to thank the Canadian Bar Association and the bar association from Quebec for their submissions. I think we will have to study them very, very closely. They suggested some very practical ways we could maybe resolve some of the difficulties in this particular bill.

I'd just like each of you to comment very briefly on clause 9. I know the Canadian Bar Association has recommended that we get rid of clause 9 altogether. It wasn't quite clear to me, but is that opinion shared by Ms. Dufour and Ms. Dupuis?

There was also some mention of how it interacted with the repeal of section 67, and I was just wondering if you could take a minute to clarify that for me.

To Ms. Hodgson-Smith, it's good to see you again, and thank you for your words. I note that when Bill C-31 came in, it was a hell of a situation in the Northwest Territories, where people basically had to choose between registering or maintaining their identity. Is there any indication or do you have any sense of what kind of impact this is going to have on the Métis population itself, given the familial ties, and even the cultural ties, with certain first nations communities?

I'll stop there.

[The Chair, Conservative, Bruce Stanton]

Ms. Dupuis, go ahead, please.

[Renée Dupuis]

Thank you for this opportunity to respond and to go back over this extremely important issue. Very briefly, it must be recalled that, in 1978, when the Canadian Human Rights Act was passed, section 67 was adopted in order to rule out any recourse against the federal government under the Indian Act. It is very interesting to note that, at that time, if you go back to the parliamentary debates of the time, the federal government argued that it was pursuing exploratory discussions with the First Nations in order to determine how it was going to change the Indian Act.

In 2000, a committee recommended, among other things, that the repeal be adopted; in other words, this exclusion was removed. The only individuals deprived of recourse under the federal act were Indians. In 2008, the act was amended. Section 67 was repealed and a right was granted to file a complaint with the Canadian Human Rights Commission—which could wind up before the Canadian Human Rights Tribunal—against the federal government upon passage of the act in 2008, against a band council, eventually, in 2011. A grace period was granted to the band councils so they could adjust to this major change.

We have one question, and this is why clause 9 concerns us. This clause seems to be designed to undo what was done in 2008 and to make it so that there can be no recourse under clause 9, contrary to what was decided in 2008 when section 67 was repealed, in the context of the general legislation on discrimination.

[The Chair, Conservative, Bruce Stanton]

We'll go to Ms. Hodgson-Smith.

[Kathy Hodgson-Smith]

Thank you for your question.

The inter-marriage of first nations and Métis people is a contemporary reality. It's also a historical reality. So it's very possible that a person registered under the Indian Act could have Métis Nation ancestry. Removal from the Indian Act registry would allow them to come forward and register under their Métis Nation ancestry. There will be an ebb and flow in terms of the registries: there will be people who are currently registered under that Métis Nation ancestry, who can then register under the Indian Act; and there will be people who are removed by the processes of the Indian Act who may then have access to the Métis Nation registry, if they indeed have ancestry themselves.

[Todd Russell, Liberal, Labrador, NL]

Can we get a quick word from Mr. Devlin?

[The Chair, Conservative, Bruce Stanton]

Okay, but very quickly only.

You have 30 seconds, Mr. Devlin.

[Christopher Devlin]

You have our written submission. In English, our view is on the bottom of page 6.

It seems to me that if the government knows—and it did for the last 25 years—that there was this residual discrimination, it means they've denied programming, education, whatever. Then why shouldn't someone have the opportunity to sue?

Then there's also the charter issue. Would this just result in further charter litigation to strike this provision down?

[The Chair, Conservative, Bruce Stanton]

Okay, good.

We're going to go back to Ms. Hodgson-Smith, because I didn't realize there were about 30 seconds left in her presentation. The rest of this was actually attachments, so we were in fact very close to the end. So for the purposes of getting the presentation on the record, we'll introduce the last segment of Ms. Hodgson-Smith's initial presentation and then we'll have it all in the blues.

So please go ahead with the last three paragraphs of your presentation. I'm sorry about that.

[Kathy Hodgson-Smith]

Thank you very much, Mr. Chair.

I'll just wrap up by saying that legislation that regulates cultural identity interrupts self-governance processes at the community level. It interrupts those processes in the community in which the individual originally held status and the new community to which they are then given status, and/or where status has been terminated, it does so in the community to which the individual will then seek to belong.

I wish to thank the committee for inviting and accepting our submissions.

[The Chair, Conservative, Bruce Stanton]

Thank you very much for that.

So you have in its entirety the presentation by the Métis National Council. We appreciate your patience with that.

Mr. Lemay may now go ahead for five minutes.

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

I'm going to try to be precise. First, I want to thank Ms. Dupuis, the Barreau du Québec, the Canadian Bar Association and Ms. Hodgson-Smith.

I thank the people from the Barreau du Québec, who have made us aware of a problem. We are going to re-examine clause 9. I also very much appreciate the position of the Canadian Bar Association.

I'm going to read you the text of an amendment. I don't need a response from the Barreau du Québec or the Canadian Bar Association today. However, if possible, I would like you to send us a written opinion on a possible amendment.

Do you believe, as I do, that, if we pass Bill C-3 as it stands, the discrimination against aboriginal women will continue? We won't have resolved the discrimination problem and it will continue. Do you agree with me? That's perfect.

Now I'm speaking to the representatives of the Canadian Bar Association. If we amended paragraph 6(1)(a) to read: “or if that person was born before April 17, 1985 or was a direct descendant of such and such a person”, do you believe that might solve the discrimination problem? That's what I understand from your recommendation, which appears on page 9 in French and in English, with regard to the amendment to Bill C-3.

Do we agree? If possible, I would like you to analyze that. I'm not asking you for an immediate answer, quite obviously. However, would your recommendation be consistent with my recommendation or our possible recommended amendment?

I will close by putting another question to the representatives of the Canadian Bar Association. I wonder why you are proposing an amendment. You propose to delete the proposed addition of subparagraph 6(1)(c.1)(iv) to the Indian Act, and you then propose a number of interesting criteria. Wouldn't it be better to simply stick to your last recommendation?

There, I hope I didn't lose you, but I would like to hear what you have to say on the subject.

[Christopher Devlin]

Thank you for your questions. We will take back your proposed amendment and think about it. On first blush, I suspect it's broader than what our proposed amendment would be for paragraph 6(1)(c.2). I think your amendment would start to address what everyone has been.... It is my understanding of all the witnesses that we should take the opportunity now to look at larger sex discrimination, not just the sex discrimination identified by the B.C. Court of Appeal. Our amendment is to try to stay within the four corners of the existing statute as much as possible.

Your second question, as I understood it, was why is it necessary to remove proposed subparagraph 6(1)(c.1)(iv). We say that this recommendation goes to the Jacob Grismer generation, and our final recommendation goes to the generation that is the grandchild generation, so the child of the Jacob Grismer generation. We see these as different recommendations addressing two different generations.

[The Vice-Chair, Liberal, Todd Russell]

You have 30 seconds left now.

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

Do you have anything to add, Ms. Dupuis?

[Renée Dupuis]

I wanted to tell you that we have taken note of the amendment you suggest. As regards the type of amendment we consider necessary, it seems important to us, if we want to take action on the judgment, that the amendment ensure consistency in the act and that it isn't a literal response to Ms. McIvor's personal situation. Otherwise, rather than talking about Bill C-3, An Act to promote gender equity in Indian registration, we'd be talking about Bill C-McIvor. However, we believe that a Bill C-McIvor would create a new discrimination and would not resolve other existing discriminations.

We could come back once we've analyzed your amendment.

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

Thank you.

[The Vice-Chair, Liberal, Todd Russell]

Merci. Thank you very much.

Now to Ms. Leslie for five minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

Thank you all for your presentations. Merci beaucoup. In particular, thank you to the Canadian Bar Association for this chart, because I tried to do this myself and it didn't work. So thank you. This is very helpful. In fact, I do not have any questions about your submissions. I thought they were very clear and succinct, and I'm also very much in agreement with the recommendations you've made.

I do have one question that I'd like to tap into, and it is your legal expertise. Feel free to say this is beyond your expertise if it is, but some of our previous witnesses have talked about how we might go back to the original Indian Act and discuss ending gender discrimination all the way back. Can you think of any legal remedies there might be to try to address that? Again, if it's beyond your expertise, feel free to say so.

[Renée Dupuis]

May I take advantage of that question to draw your attention to one element that struck us, but that I did not focus on?

There is a long history of discrimination against women, and it is set down in the Indian Act. The judgment of the Court of Appeal for British Columbia retraces the reference points back through time.

In 1969, there was talk about abolishing the Indian Act. In 1985, there was talk about amending it, and something very decisive happened with the adoption of the Charter of Rights and Freedoms and the revision of the statutes. Parliament undertook a revision of its statutes. In a way, a revision was carried out and gave rise to Bill C-31, the act of 1985. Thus, in 1985, despite the adoption of the Charter, we witnessed a shift in discrimination, but also a maintenance of discrimination.

Earlier I talked about section 67 of the Canadian Human Rights Act. In 1987, all recourse against the Indian Act was ruled out. In addition, we did not emphasize the fact that, in 1985, the opportunity was created for the First Nations, the bands within the meaning of the act, to adopt membership codes. Everyone recalls the circumstances of that exchange. The First Nations were opposed to Bill C-31, but they were told they would have the opportunity to apply membership codes and that that would enable them to exclude people who were going to be granted or regranted Indian status.

You can see that there is a history there that was constructed in a piecemeal manner. We want to tell you today that you, as legislators, must pay attention. You must respond to a judgment, but not by introducing a Bill C-McIvor. You must bear in mind that there are constraints, charters of rights, a federal act, and so on, and that, in 2010, you cannot legislate by disregarding those fundamental instruments.

[The Vice-Chair, Liberal, Todd Russell]

We have about one minute.

[Christopher Devlin]

First of all, this would take us beyond the Canadian Bar Association's formal position on this bill, so it's somewhat speculative. I think to undo the historic sex discrimination under the Indian Act would be a far larger task than this committee has been set.

I think that was what the trial judge attempted to do in McIvor. That's probably as good a starting place as any for guidance as to how to try to do it. Essentially, the court of appeal just narrowed the order, so it only spoke from 1951 onward. These amendments reflect that.