Evidence of meeting #39 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was phase.
A video is available from Parliament.
4:10 p.m.
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
I'd like to respond.
Sorry, you wanted to.
4:10 p.m.
As an Individual
Most definitely funding is going to be an issue. I think the Department of Indian and Northern Affairs should not take so much for the administration cost, because we need the funding. We need to rebuild our nations. If there is going to be real reconciliation, there needs to be restitution. Restitution costs money, unfortunately. Rebuilding from genocide costs money.
4:15 p.m.
Liberal
The Chair Liberal Andy Fillmore
I'm afraid we're out of time. I'm sure there will be an opportunity to get some of the other elements of the answers in latter questions.
Cathy McLeod, please.
4:15 p.m.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Thank you to the witnesses.
Back on November 21, we had officials from the department here. I asked them if they were confident that we have taken care of this as an issue in terms of the title and dealing with all gender-based inequities. They indicated that they were absolutely confident that with these amendments, “we are dealing with all known sex-based inequities in Indian registration.” It's become very clear very quickly that this is not the case. I think there are a few things.
I agree that when there are human rights issues, you have to have consultation. We talk about consultation, but I think in regard to consultation in terms of the experts, what we've learned from every witness who's identified different problems.... I see in some ways a different sort of process that the government must do to make sure that what gets presented, what amendments are made, have really had a look from people who are experts, such as yourself.
Having said that, what I have recommended and proposed—although my Liberal colleagues don't want to support it—is phase two should be left for big picture issues, that we need to get this piece of legislation right. I'm not confident. We could scramble a few amendments forward and maybe rush it through, but I think we're going to be back dealing with the same issues. I'm not saying we should take a long time, but I think they should ask for an extension, have the dialogue with people that can really make sure that they're identifying any other issues, and then move forward. Otherwise, we'll sit for another five or six years.
I would invite everyone to comment. Do you believe that is probably the best approach to make sure this legislation is right?
4:15 p.m.
As an Individual
I agree with your suggestion.
I've been a litigator for 40 years now and counting, and often appearing in court against the Government of Canada in cases where the construction of the equality guarantees in the charter is at issue. I can tell you that the Government of Canada historically, since the guarantees were put into the charter in 1982, has taken a very, very conservative approach about what they mean and what they guarantee.
It is very useful to have a process which lets the light in and opens that up, and it doesn't wait for court to happen. They must take a broader approach to the guarantees of the charter. I agree that there should be time to do that. It's not something that should be dealt with in a big picture consultation. It's nitty-gritty. It's technical, and it needs to be dealt with as a set of technical amendments informed by the substantive guarantees of the charter.
4:15 p.m.
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
I agree. This is the third time around now dealing with gender equality.
Justice Canada and the minister testified in the Senate, in the other place, that in fact they know it doesn't deal with all gender discrimination. They testified otherwise, but they have since testified that they know that what they're dealing with is simple gender discrimination instead of complex, the complex meaning we have multiple layers of discrimination on us as indigenous women and that shouldn't be dealt with.
They should definitely get an extension from the court, which they got in McIvor twice, no problem. The court seemed very willing for Canada to go broader and deal with gender discrimination, and had they consulted back on August 15, when this decision was handed down with first nations and indigenous women, we could have all told them these problems. However, they didn't tell us and they didn't consult. That's why we're here using the election as an excuse.
Their processes do not detract from our equality rights. None of the bureaucracy...and the very officials who were testifying here are the same ones who have been working on this for decades. They weren't in an election. It was just the minister.
They have no excuse not to do this right. We now know there is a problem. They have admitted there's a problem, so let's just deal with it. With regard to phase two, yes, we should be having the conversation about whether they should be doing status at all, and getting out of our business and us being self-determining, like they promise under UNDRIP.
For every day that there's an Indian Act, there legally and constitutionally cannot be gender discrimination. They should seek an extension and do this right.
4:20 p.m.
Legal Director, Women's Legal Education and Action Fund
Yes, we agree. It makes sense to have an extension.
As has been said, two extensions were granted in McIvor. The judge in Descheneaux specifically directed that there needed to be a broader fix by the government, that they shouldn't do another piecemeal fix as they did in 2010 after McIvor, and that they need to get it right.
We understand that the litigants in Descheneaux agreed to that. There are a small number of people within Quebec who would be affected by the delay—not across Canada, just in Quebec—and the government itself has testified at the UN Committee on the Elimination of Discrimination against Women to that effect. It's a small group of people who would have to wait a bit longer, but it would be for the broader benefit of women across the country who are being continually discriminated against. It's just ridiculous that we're 50 years on in this stuff.
We certainly agree that a small delay in order to actually fix the problem is warranted.
4:20 p.m.
Executive Member, Aboriginal Law Section, Canadian Bar Association
The CBA aboriginal law section hasn't taken an official position with regard to the question of an extension. What I can say is that there are pros and cons to an extension.
The Supreme Court recently, in the Carter case, commented on the very exceptional nature of extending a suspended declaration of invalidity. We do know that it was done twice in McIvor. There were criticisms made by the Court of Appeal in that case for doing so.
To the extent that court deadlines sharpen the government's attention, the concern then becomes that if it's a further six months and the substantial discussion only starts in month five, how much further ahead has the discussion really been, as opposed to having a bill pass and then a commitment to having a further one by a certain deadline? That's the motivation behind the recommendation that the subject matter come back to Parliament, either a committee of the House or the Senate, within 18 months.
4:20 p.m.
Liberal
The Chair Liberal Andy Fillmore
That's seven minutes. Thank you very much. That was very well timed.
The next question is from Romeo Saganash, please.
4:20 p.m.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thanks to our panellists.
I've felt a certain malaise when dealing with and discussing this issue. I certainly feel it as an indigenous person, and I've expressed that preoccupation and concern in this committee, because this process is so unprincipled and not based on human rights or the UN Declaration on the Rights of Indigenous Peoples. Essentially, we're being asked to try to improve on fundamentally racist and discriminatory legislation. This legislation would just carry on as racist and fundamentally discriminatory, if I hear you right.
The other difficulty I have as a member of Parliament is that in this mandate as a member of Parliament, I also have a duty to uphold the rule of law, and upholding the rule of law means respecting the Constitution, which includes the charter, by the way. In that sense, I would have a very difficult time to stand up and support this bill because of that. It is still discriminatory and still—I'll use one of the words that was used here—“under-inclusive”. It's discriminatory. There's a huge problem here, and I understand the constitutional and legal issues that were raised during these presentations.
One of the other aspects I would like to hear from you on is the fact that this bill stems from the Senate, an unelected body that has no historic relationship with indigenous peoples in this country. That relationship belongs under the royal proclamation and treaties to the crown, represented by the Prime Minister, who promised, by the way, a new relationship, and who promised, by the way, the implementation of the UN Declaration on the Rights of Indigenous Peoples. In my view, any new legislative initiative should be based on those principles, and this is not happening. At the very least, it should have been the Minister of Indigenous and Northern Affairs who introduced this bill, and that's not where we're at.
I'd like to hear.... I basically agree with most of what was said here, and I'm in favour of an extension so that we can do this right, because that is the basis of respect, in my view. Additionally, on the promise or commitment made by the minister that is coming up in phase two, it so happens that after a year of this government, I don't really trust those kinds of commitments anymore. I don't really trust the promises that are being made by this government. I'd like to hear you on this strange process that we're following here with this bill coming from the Senate.
That's for anyone.
4:25 p.m.
As an Individual
Thank you very much, Mr. Saganash.
One of the things that I find really difficult is bringing in the human aspect of this, because I know women who have never been able to go back to their communities. This disrupted the family unit. The Indian Act is not just an act in Canada, it's a racist act. It's a colonial act. It's about Canada's imperial history with Great Britain. There's no reconciliation in this act. I agree that this needs to be done right. There needs to be a portability of our rights. It's not just about those living in the community, it's about the portability of our rights.
People have talked about being inclusive. Having a right to vote in a band council election doesn't mean you're part of a decision-making process. It goes much, much deeper. The issue of status is really about how you're supposed to uphold the honour of the crown. You're supposed to be respecting the rule of law. Canada has signed many international covenants respecting human rights as universal.
Do the right thing and make the kinds of amendments that will finish this issue so we can go on to the other issues of land dispossession and of threats to our language and culture and all the things that make up our indigenous identity, and so we can protect the land for future generations.
Thank you.
4:25 p.m.
As an Individual
I agree with you about the character of the Indian Act. As a settler, an identity that I acknowledge, I feel a sense of shame that we are still working on this, that it is occupying the time of Parliament, and that it is occupying the time of Parliament to drop a thimbleful here and a thimbleful there, instead of doing a principled reconstruction of our relationship with first peoples. It is more than high time that this should happen.
In the midst of that shame and in the midst of that great dismay at what use we are making of our institutions, I remember what the Indian Rights for Indian Women organization said, which is that they want this to be fixed so that the women and children are back in the Indian band communities, the Indian Act, because it is only then that they can sit at the tables for the consultations that will determine their future. If they are not at the table because they are not status, they can't discuss land claims or anything else.
As far as the Senate is concerned, I think you've put your finger on something very dangerous, and that is that someone will challenge this bill on that very ground after you've all laboured to pass it, and then it will be blown out of the water because it was started in the Senate.
4:25 p.m.
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
I agree with with Ellen and Mary. I just throw it back to you and say that Canada's Minister of Justice has certified that this legislation is charter compliant, and you have heard consistently, as has the Senate, that it is very obviously not. It should concern all of us that we are here doing this.
The other thing I'll mention very quickly is that Canada allows into Canada, either by birth or by immigration, 650,000 new Canadians every year, and not a question is asked whether Canadians should be having any more babies or whether we should cut off the babies of just Canadian women.
4:25 p.m.
Liberal
The Chair Liberal Andy Fillmore
Thank you.
That's the end of the time for that question. The final question will come from Joël Lightbound, please.
4:25 p.m.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
I'm sorry, Chair, I see that we're at 4:30 with the minister here. Does that allow us time procedurally to continue?
4:25 p.m.
Liberal
The Chair Liberal Andy Fillmore
With the committee's agreement, I was going to allow for the final question in this round and borrow a little time from the minister in the second hour. We don't have agreement for that?
4:25 p.m.
Liberal
The Chair Liberal Andy Fillmore
I would need unanimous consent for that.
We've heard our last question. I want to thank each of the people who have testified today. Thank you very much for your very thoughtful and powerful testimony. It's very helpful to us indeed. We'll suspend while we switch panels.
Thank you.
4:30 p.m.
Liberal
The Chair Liberal Andy Fillmore
We'll come back to order and commence our second panel, which comprises the Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs, and INAC senior staff. Welcome.
We all know the rules by now, so I'm just going to turn the floor right over to you, Minister Bennett, for 10 minutes.
4:30 p.m.
Toronto—St. Paul's Ontario
Liberal
Carolyn Bennett LiberalMinister of Indigenous and Northern Affairs
Thank you so much. I'm pleased to be back to discuss Bill S-3, acknowledging that we're meeting on the traditional territory of the Algonquin people. I appreciate this opportunity to meet with you to explain the government's proposed approach to dealing with the Descheneaux decision.
I'm joined by Indigenous and Northern Affairs Canada officials Joëlle Montminy, who you know as the assistant deputy minister, resolution and individual affairs, and Nathalie Nepton, the executive director of Indian registration and integrated program management. She is the Indian registrar. We are trying to put her out of work. We are trying to get this business returned to first nations themselves. Also with me is Candice St-Aubin, executive director, resolution and individual affairs, and from the Department of Justice, Martin Reiher, general counsel.
First I want to pay tribute to the many courageous first nations women whose tireless work brought these matters to light. They are women like Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bédard, Senator Lovelace Nicholas, and Sharon Donna McIvor. We would also like to recognize Stéphane Descheneaux, Susan Yantha, and Tammy Yantha, whose courageous fight will eliminate the discriminatory treatment of tens of thousands of people.
I want to thank the committee for your tremendous work on this bill under challenging circumstances.
The Senate committee has also done tremendous work during its studies for which we thank it. Hearings of the Senate committee on aboriginal peoples have identified one further group that should be included in this bill, and I believe it will be included through an amendment introduced in the Senate.
Meeting the court deadline of February 3 required us to make difficult choices about the scope of the bill and to balance the necessary time for engagement with indigenous people and that for parliamentarians to discharge their responsibilities.
The Prime Minister and this government have committed to renewing the relationship between the crown and indigenous people. This means, whenever possible, working in partnership to resolve issues outside of the courts. This is why the government decided to withdraw the appeal of the Descheneaux decision, which we inherited when we came into office, and to then move immediately to remedy the inequities highlighted in that decision as well as other known sex-based discrimination within registration under the Indian Act.
There's no question that the complexity of the issues that had to be remedied combined with the court's deadline for legislation significantly limited the government's ability to engage with first nations. Mistakes were made, including my department's failure to directly engage with the plaintiffs. I have taken action to ensure that does not happen again. I've now personally spoken with each of the plaintiffs and have committed to them that they will be meaningfully engaged as we move forward in designing the process for phase two.
Despite this, I still believe that passing the reforms contained in Bill S-3 and proceeding with a more broad-based collaborative approach to address other more complex issues is the fairest and most responsible way to proceed.
We need to remedy these sex-based inequities before the court-imposed deadline.
This is not just about the plaintiffs but also about up to 35,000 other individuals who are currently being denied their rights. Witnesses have argued that this bill should simply be amended to deal with other potential forms of discrimination. Addressing other issues related to potential inequities in registration would have profound impacts on indigenous communities. We all know that repeated unilateral decisions made by the federal government regarding indigenous peoples have often had disastrous unintended consequences.
Dealing with the issues raised here will require extensive consultation with communities about impacts far more complex than just ensuring adequate resources, including those involving fundamental issues such as the cultural integrity of communities.
The Prime Minister and the government have been very clear that, to achieve their shared goal, Canada and indigenous peoples must work in partnership to build consensus and jointly develop solutions.
This is at the heart of why we have implemented a two-stage approach in our response to Descheneaux. A number of witnesses have also suggested that the solution to the limited time for consultation is simple: request a court extension. While I understand the preference to deal with all of these important issues at once, this is simply not an option within the time provided by the court even with an extension.
The length of any such extension would be extremely limited, effectively three to six months. Taking into account the cabinet legislative processes that would be part of that extension, that would provide minimal additional time to consult. In fact, it's very likely that at the end of the process, we would have the same bill before Parliament with little or no change.
I understand the cynicism of indigenous people and parliamentarians about whether the government will follow through on phase two, and even if we do, whether it will lead to meaningful reform.
Governments of all stripes have failed to follow through on such promises for decades.
I am giving you my word that phase two will be launched in February 2017. This process not only will be jointly designed with first nations, but will include the input of experts and those who have had rights denied by this archaic and colonial system. I can assure you that we will include truly inspiring individuals, such as Sharon McIvor, Jeannette Corbiere Lavell, and Senator Lovelace Nicholas.
Phase two must engage with a broad group of people to ensure future attention is informed by perspectives from everyone who may be impacted. There will not always be consensus, and the government may need to make tough policy decisions in the interests of protecting rights, but those decisions will not be made unilaterally without the input of all those affected.
However, I urge you to support the current bill and provide immediate justice for up to 35,000 impacted people. I would also draw your attention to witnesses such as the Congress of Aboriginal Peoples, the Native Women's Association, and Jeanette Corbiere Lavell, who have said that Bill S-3 should be passed.
I commit that immediately after this important step we will move forward in partnership and in a good way to achieving broader reform together, and that would be the policy reforms that are required. In your own words, in final goals, we will, as I have said, put the registrar out of work.
Thank you. Meegwetch. Merci beaucoup.
4:40 p.m.
Liberal
The Chair Liberal Andy Fillmore
Thank you, Minister Bennett.
We'll move right into questions. The first round is a seven-minute round.
The first question is from Mike Bossio, please.
4:40 p.m.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Minister, as always, we thank you for making yourself available many times in front of this committee. We really do appreciate it.
We've just heard from a number of witnesses. One of their chief recommendations was to make all indigenous peoples “6(1)(a) all the way”. That's how they phrased it. Eliminate all remaining gender discrimination by eliminating any differentiation and status between Indian women and their descendants and Indian men and their descendants born prior to April 17, 1985.
Can you provide your thoughts about why we can't immediately move in that direction?
4:40 p.m.
Liberal
Carolyn Bennett Liberal Toronto—St. Paul's, ON
What we've tried to do in the bill right now.... We have a legal obligation. The court has told us that this is discriminatory and against the charter. We decided that we would fix that. We also decided that we would include in this bill the very simple cases that are clearly sex-based, and that's how we get to the 35,000. The other cases are complicated by date of birth, or there wasn't a registry before 1951, and there are other ones that are not sex based. They may well win in court one day, but at the moment there is no court decision to.... We want to go out to consult and see how you would do it. How do you even do the ones where there wasn't a registry before?
Asserting a right doesn't necessarily mean that you have a right, because rights have to be determined among people. We will do what we know is right, but we have to talk to the people who will be affected by this, and we don't believe that can be done in a parliamentary committee. We believe that, as Canada, we have a responsibility to go out and hear from people as to how they would see their rights being exercised. That's why, right from the beginning, we've taken this two-stage approach. We would do the things that were simple and that the court told us we had to do, and then we would go out and deal with the more complex ones, but in a timely fashion.
I would be more than happy to come back to the committee, if you wish, to give you an update on the work we're doing as we move into phase two and as we come to really getting rid of all the discriminations in the Indian Act.
4:45 p.m.
Liberal
Mike Bossio Liberal Hastings—Lennox and Addington, ON
Phase one takes care of 35,000 indigenous people immediately, or as quickly as the registrar can register them. How do you ensure, under phase two, that this will be executed on a timely basis?
4:45 p.m.
Liberal
Carolyn Bennett Liberal Toronto—St. Paul's, ON
That's our commitment. I think that in going out in preliminary conversations we will need to hear from the people affected what seems like a reasonable time to them. We know that consultation is not consensus. We're not going to get consensus where everybody will agree, but we will need to go out in order to make a good decision. We will have heard what all of the opinions are and will be able to come up with the best possible legislation we can to get rid of these discriminations that still plague first nations from coast to coast to coast.
There are simple ones, such as enfranchisement—whether somebody has a post-secondary degree and ends up losing their status—but there are other ones that we will have to sort out as to how that's implemented.