Indigenous and Northern Affairs Committee on June 15th, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody.

We are here today on the unceded territory of the Algonquin people. We are convening to go clause by clause through Bill S-3.

I'd like to start the business of the meeting by indicating that, pursuant to order of reference of Tuesday, June 13, 2017, the committee begins its consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). We are here today to proceed with consideration of the bill.

We have with us department officials who are here to speak to any technical questions we have or potential impacts the amendments may have. They will not have an opening statement.

I'd like to provide members of the committee with a few comments on how committees proceed with clause-by-clause consideration of a bill. As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote.

If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the package each member has received from the clerk. If there are amendments that are consequential to each other, they will be voted on together.

In addition to having to be properly drafted in a legal sense, amendments must also be procedurally admissible. The chair may be called upon to rule amendments inadmissible if they go against the principle of the bill or beyond the scope of the bill, both of which were adopted by the House when it agreed to the bill at second reading, or if they offend the financial prerogative of the crown.

If you wish to eliminate a clause of the bill altogether, the proper course is to vote against the clause when it comes time to look at that clause, not to propose an amendment to delete it.

Since this is the first exercise for many new members, the chair will go slowly to allow all members to follow the proceedings properly.

If, during the process, the committee decides not to vote on a clause, that clause can be put aside by the committee so that we revisit it later in the process.

As indicated earlier, the committee will go through the package of amendments in the order in which they appear and vote on them one at a time unless some are consequential and dealt with together.

Amendments have been given a number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.

During debate on an amendment, members are permitted to move subamendments. I would prefer that you didn't. These subamendments do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment is moved to an amendment, it is voted on first. Then another subamendment may be moved, or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will vote on the title and the bill itself, and an order to reprint the bill will be required, so that the House has a proper copy for use at report stage.

Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments, as well as any indication of any deleted clauses.

Thank you for your attention, everyone.

This is a committee that has worked on other very difficult issues, and I'm fairly certain will get through this in an efficient and co-operative manner.

Shall we begin?

(On clause 1)

[The Chair, Liberal, MaryAnn Mihychuk]

Mr. Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair.

I would like to move an amendment as follows:

That Bill S-3, in Clause 1, be amended by replacing line 17 on page 1 with the following:

“any credible evidence, including the results of DNA analysis, that is presented by the applicant”

Do I get to speak to it?

[The Chair, Liberal, MaryAnn Mihychuk]

You get to speak to it.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

This amendment comes out of the witness testimony of Ms. Catherine Twinn. She was concerned that the bill as it currently stands may still not allow her stepdaughter Deborah, who was also here, to get status. She is concerned that up until this point, the DNA evidence they have acquired hasn't been useful enough to get her status.

We suggest that, where DNA evidence establishes the identity of an Indian parent who is unstated on the birth certificate of an applicant, the registrar shall accept the DNA evidence as conclusive that they are the parent of the applicant. There would be no obligation to apply to the court to amend the applicant's birth certificate to add the unstated parent.

That's my reasoning for this amendment.

[The Chair, Liberal, MaryAnn Mihychuk]

Mr. Saganash.

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

I'm not necessarily opposed to that amendment, but I definitely have questions, first of all, with respect to DNA evidence. Second, who determines what is credible evidence? There's no definition in the Indian Act anywhere with respect to what is credible evidence in terms of determining your status of membership to a band.

I raise the question because of the Daniel's decision of the Supreme Court. For instance, many of my constituents in northern Quebec.... I thought there were only Inuit, Cree, and Algonquin: 14 Inuit communities, nine Cree communities, and two Algonquin communities. In fact, recently there has been the creation of the Métis nation of Chapais—Chibougamau in my riding, which numbers about 400 people. When I asked them on what basis they determined their status as Métis, the answer was DNA evidence.

We're now proposing to legislate DNA evidence in the Indian Act, which is an outstanding move, I believe. It's going to have much impact on the rest of the provisions of the Indian Act in terms of membership, registration, and status of Indians.

I'm wondering if a proper analysis of that proposition was made by the mover.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

My analysis of it has been through Catherine Twinn who has spent a significant amount of time working on this subject. She is adamant that the DNA evidence is probably the most conclusive and scientific way of proving who your parent is. If you have DNA evidence, the registrar should not be able to disallow the DNA evidence in making decisions on who your parent is. That's specific in determining parent, grandparent, or ancestor, including DNA evidence. Could we have the registrar give us an indication on this as well? That would be much appreciated.

[The Chair, Liberal, MaryAnn Mihychuk]

Please go ahead.

[Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Department of Indian Affairs and Northern Development]

DNA evidence is used today by the department as a means of establishing genealogical link. I understand Mr. Saganash's concern about the use of DNA evidence without any type of explanation around it. What is important to note about DNA evidence is that it's the chain of custody. For example, as the department of accredited institutions we offer a list that we know will ensure that a chain of custody is not broken. It would be credible evidence in that the person goes to the institution, gets swabbed by somebody who will confirm the individual's identity, in comparison to perhaps an institution where somebody writes away and pays by cheque for a DNA test, but there's nobody to confirm that the individual who was swabbed is the individual who's submitting the evidence.

It's used today from an accredited source of information or institution, and it's also used with other evidence, such as affidavits from other people who would often provide history behind the information submitted. The applications are pretty much assessed on a case-by-case basis, because I'm sure you can all appreciate that no individual's circumstances are identical, so the DNA is just one of many pieces of evidence that could be used and deemed credible.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

MP Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Arnold and I had an opportunity to discuss this last night, and I've had an opportunity to give it a lot of thought since. My mother is Québécoise and her family has been here since the 1600s. I can assure you that somewhere along that way, I know I've had indigenous uncles in the past. There likely is some strain of DNA within me that could be indigenous, but I can assure you— having the blessing of being on this committee and at least having some level of education on indigenous issues and historical injustices and having a number of close friends among the Mohawks of the Bay of Quinte in my riding, and having that benefit—I am not indigenous in spirit because I was not raised that way and if there were members, it was generations and generations ago.

I would never try to get status, but my concern is that doesn't mean to say that there could be many out there who would say they had indigenous background and want status now, but culturally or historically there is no connection. The Mohawks who were here stated emphatically that those people don't understand our language, our culture, or our community.

I'd be deeply concerned about individuals trying to utilize that as a pathway into status, and I think it would be very unjustified for them to do that. I understand the spirit of what you're trying to accomplish, and I respect that, but unfortunately, it wouldn't be fair to a lot of indigenous communities.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Massé.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I'll be brief. I think it's clear from a legislative perspective that adding DNA testing is redundant because clause 1 allows the flexibility needed to present different proof.

If we start giving examples of what is credible, we will have to create a list of them. Naming, and almost emphasizing, something like DNA testing is like giving it preference—I'm trying to choose my words—in terms of determining whether someone is Indigenous or not.

In my opinion, it's redundant on a strictly legislative basis because the purpose of clause 1 is to provide that kind of flexibility. That is how clause 1, as amended, is worded. I don't think it's required.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

I think my colleague Mr. Viersen and everyone else brings up very good points, and what it speaks to is, certainly in my opinion, the government's rush to move this legislation through. The ability of our committee to do the due diligence around responding to some very compelling testimony from a witness and what some of the pros and cons are was very limited. I want to flag my concern in terms of the limitations with testimony and the rapidness with which the government is advancing this legislation.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Saganash.

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

I just want to react to what's been said on the other side. My preoccupation and my concern with this proposal, above and beyond the fact that we're legislating DNA evidence, is that these kinds of things.... You saw, after the Supreme Court decision with respect to Métis status in this country, the number of people who came forward claiming they were Métis.

The evidence is not just in my riding with the creation of the Métis nation of Chapais-Chibougamau. There are 400 of them, and they're also claiming rights to the territory and rights to the resources of the territory, and that's what's going to happen. If DNA evidence is already used—and I think diligently as you explain it—then this addition would not be necessary in my view because, if we allow this, then we're allowing that lady in that commercial to claim Métis status, although she was shocked to learn that she was 26% indigenous. There are a lot of consequences with proposing this type of amendment into legislation, and I disagree with it.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

This comes back to what is stated on your birth certificate, and that's really what we're dealing with, and not so much if you have.... You would need to be able to tie it directly back to a 6(1). You'd have to say that one of your parents was a 6(1) or a 6(2) in order for you to get status. In that case, that's where DNA evidence could be used. I think that DNA evidence is the most conclusive evidence that you can give. In the case of Deborah, she can say that Walter Twinn was most assuredly her father. There's no doubt about that, and yet she has no status. For a number of reasons, she has not been able to get status despite having the clearest evidence possible. I'm going to still say that we need to put this amendment in there for the sake of Deborah.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Massé.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

In closing, Madam Chair, let's talk about Ms. Twinn's specific case. Again, the purpose of the amendment to clause 1 is broadening, and the elements that have been added will allow for greater flexibility, in that they would allow a person like Ms. Twinn to submit her application again. I think it is clear that the clause, as worded, provides the necessary flexibility. It is already set out that DNA tests can be included.

In this context—I don't know what the process should be—I ask that we vote on this amendment because we have heard all the arguments on the matter.

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

I have a question.

[The Chair, Liberal, MaryAnn Mihychuk]

MP Saganash.

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

Yes, I have a quick question. The expression used in this article is “credible evidence.” Who determines what is “credible” in your department?