Evidence of meeting #61 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 status.
A recording is available from Parliament.
Director, Board of Directors, Indigenous Bar Association
Okay, excellent.
Put simply, the proposed paragraph 6(1)(a) “all-the-way” approach is certainly attractive. We think that it could beneficial. Unfortunately, we didn't have the opportunity to contribute to the drafting of that section, and when we did ultimately see Bill S-3 approved by the Senate at third reading in its current form, without....
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you very much.
We're going to go on to the questioning period, and I would ask members to ensure that they direct their questions, whether it is to the Bar Association or the guests we have here in person.
The first round goes to MP Mike McLeod.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Thank you, Madam Chair.
Thank you to the presenters today.
My question is for Mr. Lafond. I want to give you a chance to talk more about proposed paragraph 6(1)(a) “all the way”.
I flagged in the last presentation the concerns that were raised by Senator Sinclair. He expressed concern that this may not do what it's intended to do. The government has also raised concern about how this clause may be interpreted.
I was hoping to hear that you have a clear opinion on it. It seems you haven't had a chance to really review it to give us an opinion, but you have more to say on it.
Do you think it's responsible to include a clause in a bill for which there are doubts as to its legal application?
Director, Board of Directors, Indigenous Bar Association
What's responsible is subjective assessment. In our view, what problems would arise in connection with the 6(1)(a) “all-the-way” approach.... You'll recall that during our previous submissions to the Senate in May—and this was identified in our written submissions as well—we identified that the draft language proposed by the Liberal government in 2010 in connection with the Bill C-3 negotiations and discussions at that time.... The clause during that round of negotiations was ruled out of order, so it wasn't considered and, unfortunately, it essentially died at that point.
We have now reintroduced the discussion in our written submissions. We raised it as a possibility during our oral submissions, as a good starting point for eliminating sex discrimination within the Indian Act. What appears to have happened is that Senator McPhedran has simply taken the language from the proposed Liberal amendment back in 2010, inserted that into 6(1)(a), and then added a provision under (a.2), which is simply an interpretation provision or clarification provision, which interprets (a.1). Therefore, there really hasn't been a lot of modification of the Liberal proposal put forward back during the Bill C-3 negotiations.
We cautioned against simply inserting that in its current form. We identified it at that time as a good starting point, as I indicated. You run into technical problems with the language by simply inserting that into a bill because you run the risk of inconsistencies or some unintended consequences with that. We haven't been able to identify the full extent of those.
When I looked at it last week, the only one who came to mind was the question of who we are referring to when we refer to a person who was born prior to 1985 and is a direct descendent of the person referred to. Looking at the person referred to in paragraph (a) or a person referred to in paragraph 11(1)(a), (b), (c), (d), (e), or (f), as read immediately prior to April 17, 1985, the first issue that came to mind was, does that refer to only peoples who are alive or peoples who are deceased? Or are we dealing with descendants of people who were living immediately prior to 1985 or people who had passed away? There is a deeming provision in the Indian Act, section 6, and it reads, “(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a);“ That's under (6)(3), but, unfortunately, that reference is only in connection with paragraph (1)(f) in subsection (2).
There are these small technical problems that you will encounter when you insert a paragraph like that into a bill, and our concern stems from that. I think it echoes the concerns of senators.
Also, we don't know if we can have a proper articulation of what the 6(1)(a) “all-the-way” approach is, and then moving to the next phase, does the legislation accurately implement that intention?
Dealing with subparagraph (a.1), I understand the political strategy. This was something that was introduced by the Liberals, so shouldn't the Liberals be more inclined to adopt it? It's a very admirable approach from a political standpoint. From a legal standpoint, we still have some questions that we haven't had an opportunity to fully canvas.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Thank you. I certainly agree that this is an opportunity to get it right and it's important that we get it right.
My next question is for the Native Women's Association of Canada. In your presentation, you talked about designing an engagement strategy to talk about this whole issue. The government is suggesting the same thing in the stage two process. We've heard from presenters that they don't believe that it will take place, that the government won't honour their commitment, or if they do, it's going to take longer than 18 months.
I'd like to ask, how long will it take? What do you expect? How much time are you going to need to go out?
Lynne Groulx Executive Director, Native Women's Association of Canada
We think it would take about 18 to 24 months for a full consultation at the grassroots level, throughout the communities and throughout Canada.
Liberal
Michael McLeod Liberal Northwest Territories, NT
In the last little while, in the time that we've had to get to this point, has there been enough time to do any type of consultation? It's been rushed, I think. Everybody's in a hurry.
I have not heard back from the Native Women's Association of the Northwest Territories. Have you been able to reach out to the different parts of Canada, to talk to your membership to see what they think? Have you talked to the Native Women's Association of the Northwest Territories to get their opinion on this?
Executive Director, Native Women's Association of Canada
We have engaged in a very high level consultation across Canada, with NWAC's PTMAs. It was a very short consultation, approximately over a 30-day period, so it was very limited, but very high level.
I'll let Francyne respond about up north.
Liberal
The Chair Liberal MaryAnn Mihychuk
I'm sorry, but we won't have an opportunity to do that. We've run out of time for this period of questioning.
We now go to MP Cathy McLeod.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Madam Chair.
I want to go back to some of the cracks in the fundamentals. The legislation, Bill S-3 as presented, does respond to a significant number of concerns. I won't talk about paragraph 6(1)(a), but I'll say that the rest of the legislation responds to a significant number of concerns.
The Indigenous Bar Association still had one or two areas that it thought the bill was not adequately responding to. Could you just quickly go over those again, minus paragraph 6(1)(a)?
Director, Board of Directors, Indigenous Bar Association
Are you referring to the provisions in paragraph 6(1)(c.01) all the way to paragraph 6(1)(c.4)?
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
I think I need to go back to school to be a lawyer.
No, sorry. It's basically the Senate amendments by McPhedran—what we call the paragraph 6(1)(a) “all the way”. If that amendment was not been in the bill, and indeed you had gone to the Senate committee unaware that it would be inserted into the bill, what had you recommended they amend?
Director, Board of Directors, Indigenous Bar Association
The draft amendments that we proposed and circulated to the members of the Senate committee simply provided that if you had been born post-1951 but prior to 1985, you would be entitled to paragraph 6(1)(a) status. That essentially left the door open for anyone who was born prior to 1951 or was a descendant of somebody who had status prior to 1951. We would still need to determine a formula for reinstating those individuals at this time. We proposed somewhat of a middle ground.
As for the draft language itself, I think I have a copy of it here. If MPs are interested in having a look at it, I can certainly send it to the clerk to be circulated.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
You're indicating it's a middle ground; could you differentiate between...? It sounded as if you needed a lot more time to analyze the Senate changes. How was yours that middle ground? You spoke briefly, but I'm trying to understand it in more detail.
Director, Board of Directors, Indigenous Bar Association
During the prior round of amendments before Senator McPhedran's amendment, we had been dealing with a response to the decision in Descheneaux, and the idea had been to identify instances of sex discrimination that had arisen post-1951 as a result of the 1951 legislation. We were essentially, in effect, trying to identify as many factual situations as we could that could arise under the 1951 legislation as amended by the 1985 legislation. This was the approach that had been espoused by INAC and several parties they consulted with when we were discussing what Bill S-3 should look like.
When you look at the 1951 legislation as amended in 1985, there were several factual areas that gave rise to sex discrimination, and we were caught within that. We were ultimately caught within those parameters, and that's the discussion and the dialogue that we were having at that time. How do we eliminate sex discrimination under the 1951 act as amended by the 1985 act?
When we raised the possibility of going back prior to 1951 with INAC at that time, they invoked the decision of the British Columbia Court of Appeal in McIvor, stating that the court in that case had concluded that all instances of sex discrimination prior to 1951 were essentially justified under section 1 of the charter. Now, we disagreed with that because we think the British Columbia Court of Appeal hadn't had the opportunity or the benefit of subsequent case law that has interpreted the charter, which we think may have led them to lead a different conclusion.
How do we deal with this, then, for people prior to 1951? That still, in our view, remains an open question, something that needs to be looked at very critically and very closely.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
You don't necessarily see proposed paragraph 6(1)(a) all in as the answer.
Director, Board of Directors, Indigenous Bar Association
Following the dialogue on the clause-by-clause reading, what we hadn't realized is that the vast majority of the senators were actually in favour of going back to that previous era, prior to 1951, which in our view, we have to admit—I mean, we'll submit that—we thought was unattainable at this stage, and we weren't that optimistic.
Now that they've thought about revisiting the era prior to 1951, and that's open for dialogue, and we're considering reinstating those individuals and their descendants, we would certainly like an opportunity to try to figure out how we reinstate those individuals properly without running into any of the complications that we did with the prior legislation.
Conservative
Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC
I want to take this to the Native Women's Association now. You talked about the consultation taking 18 to 24 months. We're talking about something that goes to the heart and soul of many communities, many bands, and many nations. I think there are going to be varied opinions across this country on how they believe we should move forward. When you're talking about 18 to 24 months, you're not talking about that sort of appropriate in-depth consultation where every community feels like they've had a good conversation around this. As I say, I can't see that as feasible at all. You sound optimistic, so share with me what you think. When you were saying 18 to 24 months, you weren't talking about full consultation with every community across this country.
Liberal
The Chair Liberal MaryAnn Mihychuk
I am sorry. You're out of time—15 seconds over—but I'll give you time for a very short response, please.
Executive Director, Native Women's Association of Canada
Yes, in fact, we do mean 18 to 24 months. NWAC has networks across the country. We have PTMAs. We've done extensive consultation before, and we believe that it could be done in that amount of time.
Basically, this is not a new question. The Indian Act has been there for a very long time, so this is not new. The discrimination is clear. We think it definitely can be done in that time frame.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you.
We're moving on. Questions are now going to MP Saganash.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Madam Chair, and thank you to our witnesses today. It was very enlightening to hear.
I want to start by giving Francyne a chance to respond to Michael's previous question. You were going to add to the question about the membership in Northwest Territories. Have you reached out to them? Have you consulted with them?