Indigenous and Northern Affairs Committee on April 15th, 2010

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much.

It's great to be able to speak with you here today.

I think it's important, first of all, that our committee hear that Bill C-3 indeed will be addressing the McIvor case. This is, I think, one aspect of it, but again the major discussion seems to be, right now, about where we're going in the future as far as the exploratory process is concerned.

You had mentioned earlier how it was so important that this be rooted in the community. That perhaps comes from Megan's questions earlier, when she talked about consensus. I'd like to go back to what John was talking about, regarding some of the resistance that is sometimes felt.

I wonder if you could start by explaining the mechanisms the AFN has to get consensus among its various aboriginal communities.

[Chief Jody Wilson-Raybould]

As members of this committee know, the AFN represents 630-plus first nations communities through our national chief and our regional chiefs. In terms of developing consensus, I don't think anybody would dispute eradicating, with respect to Bill C-3, the discrimination.

Also, I don't think there is a first nations community across this country that would dispute an acknowledgement of their inherent right to determine what's best for their communities and to be provided with the mechanisms, legislative or otherwise, to actually move down that process of nation building, to determine for oneself, as an autonomous nation, what is most appropriate based on their cultural traditions and values for their own individual community. The Assembly of First Nations, in terms of that dialogue, I believe would be all for it.

[Earl Dreeshen, Conservative, Red Deer, AB]

Are there any aspects of the Indian Act that create problems as far as gaining consensus is concerned?

[Chief Jody Wilson-Raybould]

I'm not sure what you mean. Could you rephrase that?

[Earl Dreeshen, Conservative, Red Deer, AB]

I'm wondering whether there are any aspects of what is already there that make it difficult for communities to perhaps work together with another community, because they feel that in order to manage what is happening in their own community, there could be problems with another community. That's what I'm asking.

[Chief Jody Wilson-Raybould]

In terms of the Indian Act and the administration of programs and services, at a fundamental level it has to do with resources. Of course there are inadequate resources in order for our nations to engage our community and provide those programs and services. As with any nation, community, or society, when money is involved, it becomes problematic.

With respect to nations and moving beyond the Indian Act, the Indian Act determines for our nations what they do, what they will move forward. From the time we're born until the time we die, somebody determines for us. The movement beyond that is for us to be provided the opportunity to determine for ourselves the most appropriate way to manage our governments and resources and to be provided the opportunity to be able to settle the land question, to have proper implementation of our historic treaties, and to be self-governing and self-determining over those lands, which includes developing an economy that is sustainable, that gets us out from under being reliant upon somebody other than our own communities to move that forward.

[Earl Dreeshen, Conservative, Red Deer, AB]

Would such an economy be able to manage the influx of the people, then, who were to come into your communities?

[Chief Jody Wilson-Raybould]

I believe it would at some point. It's not going to happen overnight. I think our people are our greatest resource and we should not shy away from the reality of having people come back into our communities to propel our governments and our nations forward. The more resources—in this case, human resources—that we have will enable our economies to develop in a sustainable way that is reflective of the reality and needs of those people.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Dreeshen.

I would note also to Chief Wilson-Raybould that the national chief was able to spend some time with us here this afternoon. I wonder if you could convey our thanks to him.

I see Chief Lonechild here as well. It's good to see you back.

It's always a pleasure to have the guidance of your organization on the matters that we as members are discussing around how to advance the quality of life and aspirations of aboriginal people across the country. You're extremely helpful in terms of the work of this group that you see assembled here this afternoon.

We'll leave it at that.

Members, we'll suspend for about three minutes while we change to the next block of witnesses and you have the opportunity to bid our guests goodbye.

[The Chair, Conservative, Bruce Stanton]

Order.

We'll start the second round.

Welcome to all the witnesses.

On the study of Bill C-3 we have three presentations. In order to get through questions--I don't know if we have given you this in advance--if you could shorten your presentations to seven and a half minutes as opposed to ten, that would be helpful. It would at least give us time to get through one round of questions. I hope that's not too great an imposition.

We'll begin with

Ms. Nicole Dufour and Ms. Renée Dupuis, from the Barreau du Québec. Go ahead, please.

[Nicole Dufour, Lawyer, Research and Legislation Service, Barreau du Québec]

Good afternoon. Thank you.

My name is Nicole Dufour. I am the secretary of the aboriginal law committee of the Barreau du Québec. First,I would like to apologize for the absence of the president, who unfortunately could not get away to be with us.

I'm going to make the general comments and my colleague, Ms. Dupuis, who is chair of the aboriginal law committee and who has done a lot of work in aboriginal law, will make the specific comments. In view of the time frame we were given yesterday, we were late in sending our comments. I will give you a few passages.

The bill is intended as a response to the Court of Appeal for British Columbia decision, rendered in April 2009, in the McIvor case. The Court of Appeal held that paragraphs 6(1)(a) and (c) violate the Canadian Charter of Rights and Freedoms and cannot be justified under section 1 of the Charter because the amendments made to the Indian Act in 1985 do not minimally impair the applicants' rights in that they served to widen the existing inequality between the applicants' group and members of the comparator group. Those amendments not only maintained the existing rights of a class of persons, they in fact improved their status as of April 17, 1985—

[The Chair, Conservative, Bruce Stanton]

Ms. Dufour, could you slow down, please?

[Nicole Dufour]

Those amendments not only maintained the existing rights of a class of persons, they in fact improved their status as of April 17, 1985 relative to their status under the previous version of the act. In so doing, the 1985 amendments increased the disadvantage for the applicants, with respect to the status that should be granted to a child of a mixed marriage, depending whether Indian status was that of the mother or the father. The Court of Appeal suspended the effect of its judgment for a period of one year—I was recently told that three months was added to that year, and therefore until July 5, 2010—to allow the government to take the necessary statutory measures to resolve the discriminatory nature of the act.

The Barreau du Québec notes once again that the bill proposes a piecemeal amendment of the Indian Act, which has previously occurred following court decisions and specific applications. Discrimination problems were identified very soon after those amendments were passed 25 years ago. Upon their adoption, numerous criticisms focused on the displacement to following generations that these amendments had introduced, whereas they were supposed to serve to resolve secular discrimination against women as a result of their marriage.

The Barreau du Québec fears the effects of this type of amendment on the logical structure of the act. It does become increasingly difficult to get a clear overview of the act as a whole. Piecemeal legislating undermines the consistency of the act. In this case, this bill, introduced in response to the McIvor judgment, creates new disadvantageous distinctions for persons in the same group as the applicants and disregards other disadvantages set out in the Indian Act.

We have specific comments on each of the clauses. I'll allow my colleague Ms. Dupuis to make them.

[Renée Dupuis, Lawyer, Barreau du Québec]

Thank you for allowing me to speak, Mr. Chairman.

The Barreau du Québec's specific comments on Bill C-3 in response to the McIvor judgment concern a certain number of clauses, but the two main clauses concern the proposed paragraph 6(1)(c.1) and clause 9 of the bill. We have noted that there may be problems of concordance in clause 2(1) of the bill, that is to say that, in the French version, “une personne” is replaced by “toute personne”. And, from a reading of the present act using this new wording, we believe there are problems of concordance that must be reviewed. We therefore suggest that concordance is assured for this expression in all other sections of the Indian Act.

With respect to clause 2(2), we note that the proposed amendment restates the present test, in both the English and French versions, and we wondered about the purpose of this clause. In a very substantial manner, in paragraph 6(1)(c.1) which would be added to the Indian Act and which, according to the objective pursued by the government, is to serve to eliminate the discrimination identified by the Court of Appeal for British Columbia, we note that this new paragraph concerns the children of a marriage born before April 17, 1985, which introduces a distinction between children born before and after that date. In addition, the amendment concerns only the children of a union formalized by marriage. The bill does not correct the discrimination against children born outside marriage prior to 1985, more particularly children born outside marriage to an Indian father and a non-Indian mother, depending whether they are boys with status under subsection 6(1) or girls with lesser status under subsection 6(2).

The Barreau also wonders about the proposed subparagraph 6(1)(c.1)(iv), which, to obtain enhanced status, appears to require that a child must be, himself or herself, a parent. We believe that this element should not be added as a condition for change of status, since introducing this condition creates discrimination between the members of a single group depending on whether or not they have had children. Whether or not a person has had children should not be a condition for enhanced status. In fact, the proposed subparagraph 6(1)(c.1)(iv) merely enhances the status of children who already have children. The Barreau du Québec suggests that the question of grandchildren be handled separately. We submit that the bill should offer the option of granting status in accordance with the provisions of subsection 6(1) to all children, whether or not they are parents.

Furthermore, the Barreau—

[The Chair, Conservative, Bruce Stanton]

Madam Dupuis, could I ask how much more you've got there? We are now over time, but I think it's important to get your suggestions and proposals.

[Renée Dupuis]

I would say two and a half minutes.

[The Chair, Conservative, Bruce Stanton]

Okay.

Is that agreeable that we go ahead?

[Some hon. members]

Agreed.

[The Chair, Conservative, Bruce Stanton]

I think it's important to get this on the record even if we have to shorten the questions.

Go ahead, madam.

[Renée Dupuis]

The Barreau wonders about all the situations contemplated by the bill. Does the government want to resolve situations existing at the time the bill is adopted or is it providing for future situations as well? The present wording of subparagraph 6(1)(c.1)(iv) seems to indicate that only those persons who already have children at the time the bill comes into force could have their status enhanced, which would create a disadvantageous distinction for persons who have children after the act comes into force.

The Barreau also notes that the case of children who are born to Indian women and whose paternity has not been declared is not resolved by this bill. These children are currently registered under subsection 6(2), and have been since 1985. It is assumed that the undeclared father is not Indian.

The Barreau is aware that the introduction of different status in 1985, depending whether it is granted under subsection 6(1) or subsection 6(2), has had a direct impact on the communities in that it determines access or lack thereof to services, as well as the benefits and programs of the federal government and band councils. We would like to draw the committee's attention to that point. This differential treatment has given rise to very difficult social situations in a number of communities where the qualifier “6(2)” is considered derogatory and synonymous with lower status.

In closing, the Barreau recalls that, when the so-called “double mother” rule was rescinded in 1985, a number of bands obtained an exemption to the act as a result of which they kept their numbers intact. The Barreau believes that the bill does not resolve the discrimination that continues to exist between those bands exempted from the act and those not exempted.

Our final comment concerns clause 9 of the bill. We want to recall that the amendment to the Canadian Human Rights Act repealing section 67 was assented to on June 18, 2008. As a result, since 2008, anyone feeling they have been discriminated against under the Indian Act may seek remedy from the federal government, but a three-year grace period was granted to band councils, which postpones any recourse against them until after June 2011.

A reading of the provisions of clause 9 of the bill leads the Barreau to question the possibility of instituting the proceedings recently provided for under the Canadian Human Rights Act. Although recourse against discrimination is of a public nature, the Barreau du Québec believes that the wording of clause 9 limits its application.

In conclusion, we believe that the bill as introduced is incomplete and avoids the entire issue of discrimination in registration in the Indian Registry.

Thank you, Mr. Chairman.

[The Chair, Conservative, Bruce Stanton]

Thank you, madam.

We will now go to the Canadian Bar Association. We have with us Gaylene Schellenberg, from the legislation and law reform section, and Christopher Devlin, representing the national criminal justice section.

Welcome. We'll try to do the same thing. It's important for us, as you can imagine, to get these remarks on the record. But if you are able to condense them some, please do so at your discretion.

Go ahead, Ms. Schellenberg.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you for the invitation to present to you today the CBA's views on Bill C-3.

The Canadian Bar Association is a national association of over 37,000 lawyers, notaries, law students, and academics. An important aspect of our mandate is seeking improvements in the law and in the administration of justice. It's from this perspective that we appear before you today.

With me is Christopher Devlin, an executive member of the CBA's national aboriginal law section. The section represents lawyers from all parts of the country who specialize in aboriginal legal issues. Mr. Devlin practises law in Victoria, B.C.

I'll turn it to him to present the substance of our submission.

[Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association]

Yes, and I'm with the aboriginal bar section, not the criminal bar section.

I should add that I was counsel for one of the intervenors in the McIvor case as well, so I've been involved in this issue for a bit of time.

The committee has the legislative summary before it that gives a history of not only the McIvor case, but also the preceding amendments to the Indian Act for section 6, namely, Bill C-31, and before that, although it never was enacted, Bill C-47. I'm not going to rehash that. We've given you a written presentation giving some background from our perspective.

I'd like to focus, in my limited time, on the four recommendations we make. They're all substantive, but one of them is more substantive than the others. Let me briefly go over the three lesser substantive ones and then we'll get to the main point we want to make.

We asked the question, does Bill C-3 eliminate sex discrimination? The answer is, sort of but not quite, so we want to focus on trying to figure out what can be done.

We appreciate that the B.C. Court of Appeal provided a very narrow interpretation of section 6, and to some degree the government has responded with an equally focused piece of legislation. However, the opportunity to look at section 6—this is the first time in 25 years—shouldn't be passed by and this opportunity taken merely to respond to the court of appeal, but maybe look a little deeper to see what can be done given the constraints of the existing court order.

I'm beginning at the middle of our paper, page 4 in the English, and I believe it's page 5 in the French portion.

Our first point—and this is one the previous speaker just mentioned—was that under the proposed paragraph 6(1)(c.1), there are four conditions in order to gain section 6 status under the bill. The fourth condition is that you also have to parent a child. The CBA's first recommendation is that this last condition be removed.

The legislation, so far as we understand it, was designed to reflect the fact pattern in the McIvor case. So with Sharon McIvor's adult son, Jacob Grismer, how do we ensure his children have status? The point was made before, so I'm not going to go into it in depth.

The fact is that by requiring people in Jacob Grismer's situation to have a child before their own status is improved from a 6(2) to a 6(1) seems frankly to be a bit silly. It also adds some administrative inefficiencies, because you then have to have two different applications for re-registration under different status, as well as the child.

The Jacob Grismer generation has to apply to improve their status in order for their child to then get section 2 status. It seems that's unnecessary because that's covered in a different part of the bill. So our first recommendation is that subparagraph 6(1)(c.1)(iv) be removed from the proposed amendment to the Indian Act.

Our second recommendation—and this was addressed at length by Chief Wilson-Raybould earlier, so we just want to note that the CBA supports this—is that there should be adequate funding provided for first nations to address the influx of new members given the passage of this bill. That's our second recommendation. Sorry, I got that backwards. That was our third recommendation.

Our second recommendation also goes towards clause 9, which was raised by my colleague, and that is that it precludes people bringing actions against the government. Again, this seems like a bit of a parting shot at potential litigants. With the repeal of section 67 of the Human Rights Act, I think it does call into question how those proceedings will go given this prohibition and whether opportunities will be there for future litigation.

There are also several cases already in the courts that will have to be judged as to whether they'll be shut down by this or will be able to proceed.

The discrimination has been there, and the government has known about it, since 1985. It was well canvassed in the committee reports of the day. The government shouldn't be able to avoid liability now, in our view, just because of the passage of time, for something it has known about--this residual discrimination within the Indian Act.

I'd like to get to our last recommendation, which is our main one. I would encourage committee members to look at the table in our report. This is where we say that within the confines of the focus of this legislation, there is still residual sex discrimination. I think you heard from Ms. McIvor yesterday, and we say in our brief, that this bill does not eliminate all sex discrimination. We have provided a comprehensive list of the sex discrimination it doesn't address. Even within the four corners of the bill, there is still some residual discrimination.

What we've done here in the table is set out three scenarios. The first is prior to 1985. That would be before Bill C-31. If a woman married out, she lost her status, as did her children and her grandchildren, but the hypothetical brother did not. In fact, everyone kept their status, except in this peculiar situation, from 1951 to 1985, when the double mother rule was in place.

I should say that the double mother rule was in fact really only operative for 13 years. It came into effect in 1951, but you had to have people who were becoming age 21. So it wasn't until 1972 that the first people could actually be struck as Indians from the register. There was evidence before the court of appeal--I don't have the reference handy--that in fact of the 2,000 or so people the double mother rule could have affected, only about 100 were in fact taken off. There were two reasons for this. One was that over half of the first nations in the country were exempted from the double mother rule. The other was that the minister was able to pass ministerial orders exempting provisions of the Indian Act, including the double mother rule, from applying to first nations. Several first nations were able to be exempted from that rule. So it actually affected a very narrow group of people for a very short period of time.

The middle part of the table shows what happened after Bill C-31, and this is the problem Bill C-3 is trying to remedy and what the court of appeal grappled with. This is exactly Sharon McIvor's situation. She was reinstated. Her child got subsection 6(2) status, but the grandchildren born before and after 1985 did not get status, whereas the hypothetical brother had full status under subsection 6(1), and so did the second generation. There was a distinction, then, between the children born before 1985 and those born after 1985. If they were born before 1985, they actually kept full subsection 6(1) status, but if they were born after 1985, they got subsection 6(2) status.

With this proposed bill, there is residual discrimination. Everyone is equal, more or less, in terms of whether they have subsection 6(1) or 6(2) status, except the grandchildren born before 1985. If they were born before 1985, this bill would confer on them subsection 6(2) status. But the hypothetical brother's children would have paragraph 6(1)(c) status.

Again, we want to emphasize that Parliament should take this opportunity to end all sex discrimination. At the very least, within the four corners of this bill, it should try to be consistent and try to eliminate the sex discrimination. We have a recommendation for an additional clause, which would be subparagraph 6(1)(c)(ii).

[The Chair, Conservative, Bruce Stanton]

Thank you very much, Mr. Devlin and Ms. Schellenberg.

We now move to our third witness this afternoon. Welcome, Kathy Hodgson-Smith. Ms. Hodgson-Smith is from the Métis National Council. We are delighted to have you here this afternoon to provide some insight on the bill we have in front of us.

We have taken about 10 minutes for the others, so if you go 10 minutes, that would be fine. If you can shorten it up a bit, that would be appreciated also.

[Kathy Hodgson-Smith, Barrister and Solicitor, Hodgson-Smith Law, Métis National Council]

Thank you.

I'd like to begin by thanking the chair and the honourable members for inviting the Métis National Council to appear before you today. The Métis National Council represents between 350,000 and 400,000 Métis people from Ontario westward.

The Métis have a major interest in issues of citizenship within aboriginal nations. While the court of appeal case of the Queen and McIvor held that determination of status under the Indian Act was indeed the domain of Parliament, the court also held, and the Métis Nation does agree, that section 35 of the Constitution Act offers relevant principles and perspectives not argued in that case.

The Métis Nation submits that citizenship is also an issue of aboriginal rights. The Métis Nation views the determination of citizenship as an inherent right of the aboriginal peoples protected under section 35. Canadian constitutional law accepts this premise. Canadian common law establishes that customary aboriginal laws, which would include laws of citizenship that survived Confederation, are indeed enforceable. Binding international law also supports the principle that identity is an inherent right.

Canada's 1995 inherent right policy on aboriginal self-government recognizes that membership in an aboriginal community is the proper subject matter of self-government negotiations under section 35.

The Supreme Court in the Queen and Powley set out a legal framework for recognizing distinct Métis communities and the inherent right of those communities, by virtue of their prior occupation and distinct cultures, to define their own citizenship. In determining the lawful implementation of Métis aboriginal rights, the right to hunt for food, the court held that the process of identifying Métis people, based on community self-definition and objectively verifiable criteria, was not an insurmountable task. The Métis Nation is in agreement with this premise.

Since 2004, the Métis have received federal support under the post-Powley initiatives to register its citizens through its governing member structure. The Métis Nation believes it is fair and just that Canada, through Bill C-3, amend its legislation to end discrimination against Indian women and their descendants.

Issues of citizenship under the Indian Act, however, extend far beyond that legislative domain. In addition to being the proper subject matter of self-government negotiations between aboriginal nations and Canada, the Métis Nation believes it is also the proper subject matter of negotiation within and between aboriginal nations.

Pursuant to the announcement of Minister Strahl on March 11, 2010, Canada has proposed to initiate, in partnership with Métis and first nations, an exploratory process to discuss these broader issues of citizenship. INAC has proposed that the process be based upon principles of collaboration and inclusiveness. The Métis National Council agrees to engage in these principles in partnership with Canada, but seeks also to ensure that the exploratory process also be based upon informed and respectful dialogue.

As for citizenship, it is recommended by the Métis Nation, when an aboriginal nation touches upon and affects self-determination, Canada's approach to dialogue on citizenship must be undertaken on a nation-to-nation basis. The Métis National Council protocol agreement signed between Canada and the Métis Nation in September 2008 provides a workable mechanism for implementation of this dialogue with the Métis. Canada should also provide reasonable capacity for the Métis Nation to engage in dialogue with first nations.

As well, the Métis National Council seeks that Canada ensure a broad-based educational process is established that will provide the necessary background information for aboriginal and non-aboriginal Canadians to have an informed discussion on citizenship within aboriginal nations. This information must acknowledge that aboriginal citizenship falls within the inherent right of self-determination. It is our submission that Canadian law and policy require such an approach.

In 2002, after several years of consultation with the Métis community, the general assembly of the Métis National Council, as part of its governance development, passed a resolution regarding the registry within the Métis Nation. It provided that Métis means a person who self-identifies as Métis, who is of historic Métis Nation ancestry, who is distinct from other aboriginal peoples, and is accepted by the Métis Nation. The Queen and Powley is not inconsistent with that definition.

Self-identification for the purposes of registration, under the amendments proposed by Bill C-3, must be premised upon free and informed consent. For example, some siblings may apply for membership under the Métis Nation registry and others may not. Some siblings may apply for registry under Bill C-3 or under the Indian Act and others may not. The choice is, unfortunately, not always just based on cultural identity.

It is a reality in Canada that aboriginal people, including the Métis Nation, suffer severe social and economic hardship. Hunger, disease, poor housing, unemployment, and low education attainment are realities in our communities. It must be understood that the lack of recognition for the Métis has created situations of inequality within the aboriginal community. Decades of marginalization and exclusion of the Métis have placed Métis Nation citizens with a difficult choice when facing these hardships. Bill C-3 will create a means to address social and economic hardships with a cultural cost.

Because of this situation of unequal access and benefit, Métis citizens may have to choose to register under the Indian Act in order to access necessary benefits such as health medication, support for travel to receive medical attention, educational opportunities, and the right to hunt, fish, and trap for food, etc. They are entitled to the basic information needed to make such a difficult decision.

It is our recommendation that Métis citizens are entitled to reasonable information in order to make free and informed consent as to whether or not to register under the Indian Act through the Bill C-3 opportunities. The Métis Nation requires the capacity to advise Métis citizens who qualify under Bill C-3 for registry under the Indian Act of their options and the ramifications of such actions as they pertain to this piece of legislation and to their registration as a Métis citizen.

A person registered under the Indian Act or on a band registry would not be eligible to be enrolled as a citizen of the Métis Nation or included on a Métis Nation registry. Métis Nation citizenship requires that the person self-identify as distinct from other aboriginal peoples for cultural and nationhood purposes. Ancestry is only one part of the criteria. This is in keeping with the historic and contemporary fact that Métis have always maintained and displayed a collective consciousness and identity as distinct aboriginal peoples. The inter-marriage of Indian and Métis peoples is a historic and contemporary reality.

During the implementation of Bill C-31 in 1985, many Métis people, some of whom were minors at that time, registered under the Indian Act without full information as to the ramifications of that registration. Many of these people, now understanding the reality of that decision from experience, want to withdraw from the Indian registry, and currently no mechanism exists for this withdrawal. It's our submission that free and informed consent was not in place at the time of registration under Bill C-31. This history should not be repeated with Bill C-3.

It's our recommendation that Canada establish a means by which individual persons identifying as Métis Nation citizens, who wish to be removed from the Indian Act registry and regain their status in the Métis community, can seek to do so. As well, we seek Canada to remove the age discrimination component of Bill C-3 on McIvor to eliminate the status of those individuals who would otherwise be entitled to register but for the 1951 cut-off date. The response from the community to date suggests that this is an issue of age discrimination.