Indigenous and Northern Affairs Committee on June 6th, 2017

[David Schulze]

I'm sure they believe they did that. I don't believe they did that. I believe they get that answer by how they frame the question. They get that answer by saying, “We'll only look at sex-based discrimination, and we don't see any, so it's fine.”

That's how I can have a meeting with them, as I did with Mr. Reiher and Mr. Jacques. I said, “Here's some discrimination: it's discrimination when an adopted child's descendants are treated differently than those of a natural-born child.” They said, “Gosh, you know, that's really something interesting. We're going to have to look at that, but it will have to be in phase two.”

That's how they get to that. They tell you, “Yes, we've done that analysis,” by making sure their question excludes answers they don't want to hear.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Chief O'Bomsawin, what do you recommend to this committee? What do you recommend that we do with this proposed legislation before us?

[The Chair, Liberal, MaryAnn Mihychuk]

Please give a very short answer.

[Chief Rick O'Bomsawin]

Listen to the Senate. Listen to the recommendations.

Everybody's saying, “Well, you know, we don't want to stall this. We don't want to go any further.” I keep hearing the same thing, “Poor Mr. Descheneaux, his children will have to wait longer.” Has anyone ever asked Mr. Descheneaux whether he's willing to allow his children to wait longer?

As first nations people, we do not look at the individual. We look at the whole nation, so we always have to say what's best for the nation. If one child needs to wait a little longer to save a nation, that's what's important, and I believe Mr. Descheneaux would agree with me.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much. I'm so sorry.

[Chief Rick O'Bomsawin]

That's okay.

[The Chair, Liberal, MaryAnn Mihychuk]

You will have an opportunity to respond to MP Michael McLeod's questions.

Mr. McLeod, I'll turn it over to you. You will be likely the last questioner for this panel.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you.

That was a very interesting presentation.

I'm from the Northwest Territories. We have five large aboriginal governments there that are working hard to be in control of what happens on their traditional lands, to govern their own people, and to make decisions on behalf of their own people. One of the most important things they bring forward is good communication.

I find it surprising that you have already decided that everybody that wants to be consulted is against this. I totally don't agree. I have responsibilities within my riding to those first nations, and I would expect that they would want to be consulted. I don't think that has happened yet.

When some of the first nations moved towards self governance, they started defining who their people are, so there's going to be a challenge there. How are we going to work that? We haven't figured that out. Some have settled. What does that mean? They opted out of the Indian Act.

There are a lot of things that have to be taken into consideration. There is great impact here.

I totally agree with some of your comments. We're not going to see communities overpopulate overnight. In fact, we're seeing the reverse. People are leaving the small aboriginal communities I represent. They are not trying to come back. There's a level of despair. They want jobs. They want to have houses. They want to have good health.

So there are a lot of things that people are saying that I don't believe.

I recognize that a lot of this may be “I want money”, but I really feel strongly about the consultation process.

First of all, I want to know why you would think we don't need to talk about these two other parts of Canada, why you would think they don't need to have a say in this.

Second, what's telling you that stage two may not even happen or is not going to work?

Maybe you could clear that up for me.

[Chief Rick O'Bomsawin]

First of all, I'll skip to why I don't believe stage two will work: McIvor, 10 years. Okay? That's why I don't really have a lot faith in it.

I think you're getting me a bit wrong when you say that I don't think all communities should be consulted. I really believe they should be. I think the problem with Indian Affairs is that they have a tendency right now to speak only about the communities who are against this. We have not once heard from Indian Affairs about the communities who support this. All I get back from them is that a community is not really for this, or a community doesn't want to be overpopulated, or a community doesn't want the influx of people. I have not heard any of the positive end of it.

I truly believe that all communities need to be consulted, but I also believe that Indian Affairs has to tell the whole picture and the whole story and not just talk about the communities that are against this system.

Thank you.

[Michael McLeod, Liberal, Northwest Territories, NT]

I think that was a different time. There was a different government in place. Hopefully, this is something that will be taken more seriously and done properly.

In the Senate committee, during the clause-by-clause, senators expressed some serious concerns as to whether, for paragraph 6(1)(a) all the way through the clause, it does what it's intended to do. The government has also suggested that there are problems with it and that there may be uncertainty on how this clause is interpreted. Do you think it's responsible to include a clause in this bill when there are doubts as to its legal application?

[David Schulze]

I'm confident that between the House and the Senate you can work out any technical difficulties, if that's what the government wants to do. There are a lot of people.... I could tell you about technical points that could be changed here and there in what the Senate sent you, but I don't think that's the important issue. I mean, it's an important issue before the bill is adopted, but that's not the first question.

The first question is whether the general principle is acceptable. Yes, I think it could be technically better, but Senator Sinclair raised valid technical concerns and then voted in favour of these amendments when the bill went back to the Senate on third reading, because he was in favour of the principle. I think we could fix those problems. We could fix them before July 3.

[The Chair, Liberal, MaryAnn Mihychuk]

You have two minutes.

[Michael McLeod, Liberal, Northwest Territories, NT]

I want to go back to the numbers, because I've heard people say that it's just about the sexual discrimination, so let's not worry about the numbers. Has your team—your people—looked at what kind of impact this would have in terms of the number of people who would qualify? How much of a change would that be? Is it significant? Is it marginal? Is it going to be overwhelming, as some people are suggesting? I'm curious as to what your take is on it.

[Chief Rick O'Bomsawin]

In my own community, no, I don't believe the numbers are going to be large at all. In my community, we welcome most of our family members, with or without status. That's the reason we have a citizenship code. I don't see a large—

[Michael McLeod, Liberal, Northwest Territories, NT]

You don't believe the two million or millions of...?

[Chief Rick O'Bomsawin]

No, I don't believe it at all. That's what I'm saying. I believe that somebody should have done actual numbers. They should not just have come up with a hypothetical number that they've created. I've asked them where they got this number, and nobody seems to want to tell me where this number came from. I don't know if it came out of thin air or somebody just invented it or what. I don't even understand how we got to that amount of people.

[David Schulze]

Let's be very clear on something. The Senate amendments are the ones that Ms. Bennett, when she was in opposition, said were good. She voted in favour of them. The Senate amendments are the amendments that Ms. Wilson-Raybould, when she was a regional chief for the BC Assembly of First Nations, said were good and that Harper should amend the act. That was in 2010. It's been seven years. Indian Affairs has never done the calculation.

My guess is that if it were two million you would have the study on your desk showing you where the two million are. That would be a pretty striking fact. I would also suggest that you should be a little offended that the department comes before you and says their estimates vary by a factor of 25 and they haven't bothered to do the calculation properly.

[Michael McLeod, Liberal, Northwest Territories, NT]

Yes, well, I—

[The Chair, Liberal, MaryAnn Mihychuk]

We've run out of time.

That concludes this panel. We'll suspend for a couple of minutes. Our third panel will be joining us when we reconvene.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, all, to our committee.

I see that some of our members are still away, and I know they are on their way back very quickly, but I don't want you to be short-changed on the time you need to present to us.

We're going to get started with your presentation. Please, the time has moved over to you.

[Francyne Joe, Interim President, Native Women's Association of Canada]

Good morning, as I shake myself up. It's raining outside again.

Kwe, bonjour, and good morning to Chairperson Mihychuk, committee members, distinguished witnesses, and guests.

My name is Francyne Joe, and I am the interim president of the Native Women's Association of Canada. Alongside me is our executive director Lynne Groulx; and I am happy to introduce our new director of strategic policy, Courtney Skye.

I would like to acknowledge the Algonquin nation, on whose unceded territory we are meeting today. I would further like to recognize and honour the hard work on the part of individuals, organizations, and members of the Senate, who share our interest in moving this process forward quickly.

Through the elimination of sex-based discrimination in the Indian Act, indigenous people who have experienced generations of marginalization will achieve recognition of their disenfranchisement. It will additionally enable generations of descendants to begin the process of healing and reclaiming pride in their identities as indigenous people.

Following NWAC's presentation on the findings of the engagement sessions with indigenous women and other stakeholders on this topic, several amendments have been made by the Senate to the proposed Bill S-3 that satisfy some of our most pressing concerns. These include the affirmation of a clear process for meaningful engagement, in which we commit to participating.

NWAC continues to advocate for the removal of all sex-based discrimination from the Indian Act. Accordingly, the Native Women's Association supports the amendment of Bill S-3, known as 6(1)(a) “all the way”, as passed by the Senate. However, NWAC needs to flag the “no liability” clause as a problematic addition to Bill S-3.

It is our impression that the new amendments serve to further eliminate sex-based discrimination in the Indian Act, beginning with the removal of the two-parent rule. The two-parent rule, or presumption of parentage, is discriminatory towards many individuals. Our grassroots' engagement process revealed that Bill S-3 did not address the situations of undeclared parentage, a parent being unable to sign documents due to disappearance or death, or cases in which same-sex or two-spirited individuals are parents.

The elimination of the two-parent rule will grant Indian status to disenfranchised descendants. It restores the rights of indigenous people to love who they choose and takes a positive step towards the acceptance of same-sex relationships in the affirmation of the rights of two-spirited individuals. It does not, however, address the ways in which they have suffered due to this discrimination.

We are satisfied with the addition of a legally mandated engagement and consultation process, and encourage the initiation of stage two of this bill. NWAC is fully committed to designing and implementing an engagement process that provides indigenous women with the capacity required to fully and meaningfully participate.

Consultation must be extended to all indigenous women, youth, elders, transgendered women, and two-spirited individuals. This group is not limited to the first nation communities, first nations bands, and Métis communities, whose memberships will be affected. It needs to be inclusive of all indigenous women who are being discriminated against, in recognition of the need for strong, healthy, and loving families, and shaping pride and self-knowledge in future generations.

Canada has denied indigenous children of their right to know themselves through numerous methods of colonization, including those implemented by the Indian Act. By denying women access to their treaty rights and isolating them from their communities, the Indian Act has disrupted their ability to pass on their heritage and culture to their children. Consultations on the loss of Indian status must extend to those who have experienced the effects of the sex-based discrimination in their lives. We must hear from those who have lost their connection to their culture as a direct result of sex-based discrimination in the Indian Act and the delays to this amendment.

Meaningful consultation supports the development of a mutually respectful relationship, as recommended by the calls to action of the Truth and Reconciliation Commission. This relationship must be with those affected by sex-based discrimination in the Indian Act. Consultation must extend beyond groups whose rights are currently supported by the Indian Act, including groups who currently hold Indian status.

Additionally, the inclusion of indigenous women's perspectives must be used as a metric of the indigenous peoples' ability to claim their right to self-determination as outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

NWAC has decades of experience in exposing and addressing the root cause of the marginalization of indigenous women. We must strongly recommend that comprehensive consultation and reporting occur within a framework designed with our full co-operation and ensuring that all residual forms of discrimination are removed from the Indian Act.

I will now further elaborate on our expectations in developing this important work.

NWAC has serious concerns about elements of the bill, including clause 10, the “no liability” clause. Its presence supports the sexism inherent in the Indian Act and further entrenches historic discrimination against the group most marginalized and most impacted by the discrimination of the act.

The patriarchal nature of the Indian Act has survived prior amendment and continues to amplify that discrimination against women that has been felt through generations. It was drafted in an attempt to assimilate indigenous women and our descendants by erasing our indigeneity. To include a “no liability” clause essentially divorces its creators from responsibility for their knowing attempts to disenfranchise and disempower indigenous women and their descendants.

The crown is not released from bearing responsibility for this work. This is not only a question of compensation but a recognition of the degree to which the racism faced by indigenous women is intensified by discrimination based on sex. As no process has been introduced that seeks to assist those impacted by this discrimination on their own behalf, the legacy of harm continues to threaten the well-being of women and their descendants. These people will continue to bear the burden of alleviating the discrimination for themselves.

NWAC welcomes the explicit reporting of issues outlined in subclause 11(1), with particular attention on the impacts relating to adoption of children by two-spirited people and same-sex partners, the impact of unknown or unstated paternity in cases of sexual violence, and the effects of enfranchisement of women.

Please accept our input challenging the Indian Act and supportive of our combined work in removing this discrimination. We appreciate the support of this committee in ending the systemic attack on the ability of mothers to pass on our heritage and culture to our children.

The process of colonization and assimilation continues on the bodies and in the minds of indigenous women. We had no hand in writing these laws that oppress us. It is time to reclaim our identities in law and action. There is an urgent need to respect and promote the inherent rights of indigenous peoples. Our rights derive from our cultures, spiritual traditions, histories and philosophies, all of which are passed on by our mothers. These also derive from our political, economic, and social structures, all of which have been actively disrupted by the patriarchal and colonial impositions of the crown.

Canada has committed to implementing these rights as affirmed by the United Nations Declaration on the Rights of Indigenous Peoples. It is time to restore the traditional place of pride held by women, trans-gender women and two-spirited women in our communities. The Indian Act has successfully categorized and divided our people through status designations that impact us at the community level. By revoking Indian status or not awarding Indian status to women and their children, the Indian Act makes these marginalized people easy targets for continued discrimination that is felt across generations.

NWAC recently observed the 100th anniversary of the Battle of Vimy Ridge and the indigenous women who chose to fight alongside Canada for our freedom. We have supported a nation that has never supported us. It is unacceptable that today we must continue to advocate for our equal rights to dignity, respect, and freedom from fear on our own soil. Adopting paragraph 6(1)(a) “all the way” is our shared path to reconciliation, healing, and empowerment.

NWAC fully embraces the opportunity to work with Indigenous and Northern Affairs Canada in conducting stage two of the engagement process as outlined in the amendments to Bill S-3, and we commit our full participation in its design. The positive action taken in accepting these amendments will let not only first nations women but all indigenous women, their descendants and communities, know that the Canadian government recognizes and respects our right to equality.

[The Chair, Liberal, MaryAnn Mihychuk]

You have one minute left.

Does that conclude your presentation?

[Francyne Joe]

Kukwstsétsemc. Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. Meegwetch.

We have another presenter, who is joining us by teleconference, Drew Lafond.

[Drew Lafond, Director, Board of Directors, Indigenous Bar Association]

Thank you.

This is a little bit of a different forum for me, so I'm just getting used to it. I'm calling in from Calgary, Alberta.

My name is Drew Lafond. I am a member of the Indigenous Bar Association. The Indigenous Bar Association in Canada is a not-for-profit organization that represents indigenous lawyers, judges, academics, students, and paralegals in Canada. Generally, our objective is to see the advancement of indigenous rights in Canada and to allow indigenous peoples to secure their ability to exercise their rights of self-determination in Canada. We have a very broad mandate, and we represent quite a few individuals. Our membership exceeds 300 members within Canada from coast to coast.

I'm speaking here today further to our presentation to the Standing Senate Committee on Aboriginal Peoples. We spoke on April 16, and we also presented on November 23, 2016 before the standing Senate committee, and we made written submissions to the standing Senate committee in April 2017.

Today, I want to elaborate a little bit more on what we provided during our previous presentations.

In terms of the bill at hand, further to our previous presentation, the issue we had encountered in terms of the text of Bill, S-3 and with section 6 of the Indian Act in its entirety, was essentially that the bill had become illegible for first nations individuals. It was very difficult to interpret who within the bill qualified for Indian status.

Now, the objective of the bill—and I refer to the title of the bill as being the elimination of sex discrimination within the Indian Act—had not been achieved by November. Subsequently, when another round of revisions to the bill was presented in May, the bill itself still included several instances of sex discrimination, which we identified only a couple of days before I presented back in May.

Unfortunately, we didn't have an opportunity to review paragraph 6(1)(a) and the “all-the-way” provision. In fact, when I was presenting to the standing Senate committee, I think it was Senator Patterson who raised it as a potential alternative to the draft bill that was before the Senate at that point. Colloquially, it's a term that's been attributed to what I think the new paragraphs 6(1)(a.1) and 6(1)(a.2) will be within the current bill. The ultimate intention of paragraph 6(1)(a) “all the way”, I think—I'd hazard a guess here, and I'm paraphrasing wildly—is to ensure that anyone prior to 1985 who had been deprived of status would be reinstated, and any descendant of a person who was entitled to status under the previous provisions, who was born prior to April 17, 1985 would also be entitled to paragraph 6(1)(a) status. Again, we didn't have the opportunity to contribute to the drafting of the paragraph 6(1)(a) all-the-way approach, but I'm operating on that assumption, and that's something I'll offer comments on later.

When we appeared before the Senate in April, we brought three general issues to the forefront. The first was with respect to pre-1951 status. The question that we raised to the Senate was more a question and more of an issue that we wanted addressed in a broader scope, which was why discussion at that time focused on the arbitrary distinction between pre-1951 and post-1951 status at that point.

It was a distinction drawn by the British Columbia Court of Appeal in the McIvor decision. Ultimately, however, for the claimants, the individuals who were affected by the enfranchisement provisions under the pre-1951 and the post-1951 versions of the Indian Act, it seems to be an arbitrary decision. The only basis for it was simply that we weren't in a position at that time—and we still aren't, from what I understand—to fully quantify the impact of a reinstatement on a pre-1951 enfranchisee and his or her descendants.

Without a factual basis to support an argument as to what a pre-1951 reinstatement would look like, I think we're still disadvantaged in the sense that we don't have all the information on what the full impact of this would be. Ultimately, this is an issue that will affect Canada. It's Canada's statute. We want to avoid the ramifications of a pre-1951 mass reinstatement, which would have a detrimental impact on the ability of first nation governments to administer and conduct their own affairs.

With respect to post-1951 status, we presented draft amendments and circulated those to the Standing Senate Committee on Aboriginal Affairs. As I indicated, I wasn't contacted by any members of the Senate following our circulation of those proposed amendments. It wasn't until the following day—I think it was May 17, when the clause-by-clause reading occurred—that I was made aware of the drafting of the 6(1)(a) “all-the-way” approach. I'll speak to that in a moment.

The only other item I'd like to submit would be with respect to sections 10 and 11 of the Indian Act. There's currently an ambiguity in section 10 of the Indian Act for those bands that have adopted their own band membership codes. This was underscored in a case in the Alberta Court of Appeal in 2003.

What we would have liked the Senate to do in this case, which unfortunately did not happen, was to address, in addition to the proposed amendments to section 11 of the Indian Act, the effect of reinstating essentially anyone reinstated under the additional status provisions of section 6 to a band membership list, or a membership list equivalent, maintained by the department.

There are issues with this because it renders uncertain the status of individuals reinstated today. There remains an uncertainty as to whether those individuals would be reinstated, effective April 17, 1985. The effect of this would be that they would also be entitled to band membership. Their names would be included in the band list, effective April 17, 1985. This is an ambiguity that remains.

This situation was addressed by the Alberta Court of Appeal, and we think the decision, at least in our instance, creates some clear direction for the Senate and the House of Commons in eliminating sex discrimination. It affects the status provisions of section 6 as well as how these provisions impact automatic entitlement to band membership.

Going back to the 6(1)(a) “all-the-way” approach, I haven't been made aware of the full intention of 6(1)(a). I simply assumed that this approach could well achieve the objective of the proposed legislation, which is the elimination of sex discrimination. As we indicated in our previous submissions, the draft bill added to what was already an esoteric section 6, which was becoming illogical for first nations individuals.

Now, the only concern with respect to the—