Mr. Speaker, I am rising today to speak to Bill C-3, the short title of which is gender equity in Indian registration act.
As others in the House have pointed out, it would have been wonderful if this had been a gender equity in Indian registration act, but instead it is a narrowly focused piece of legislation coming as a result of a court decision in my own province of British Columbia.
I will give the House a bit of history on this.
Sharon McIvor filed a complaint about gender discrimination. The initial court decision was appealed and in the appeal court the scope of the original decision was significantly narrowed. As a result of missing some deadlines, the government had to apply to the Court of Appeal for an extension. The court imposed a new timeline and said:
Parliament, of course, is the master of its own procedure, and we do not in any way wish to interfere with its processes. The Court recognizes that there are many issues that must be dealt with in Parliament. We would remind the Attorney General, however, that a final determination by the courts that provisions of the Indian Act violate constitutional rights is a serious matter that must be dealt with expeditiously. We would also observe that while efforts of Members of Parliament to improve provisions of the Indian Act not touched by our decision are laudable, those efforts should not be allowed to unduly delay the passage of legislation that deals with the specific issues that this Court has identified as violating the Charter.
That succinctly summarizes our dilemma here. What we have before us is legislation that does not deal with all of the gender inequities in the current Indian Act.
We heard from many witnesses at committee who talked about the ongoing discrimination that exists today. A number of suggestions were made to the government about how it might handle this and how it might broaden the scope of the legislation but it refused. It just focused narrowly on the court decision.
What we are left with are mostly women, on a case by case basis, having to take their gender discrimination issues to court for a ruling, which is a lengthy and expensive process, only to have the government subsequently amend another piece of the Indian Act.
All of us in the House are aware of the ongoing gender discrimination. However, in this particular situation, we are being forced to decide whether we disadvantage 45,000 people who could regain status under this narrow piece of legislation, or we tell them they need to wait for possibly a few more decades. Faced with this tough decision, a number of us will hold our noses and support the legislation knowing that it does not deal with all of the discrimination that still exists.
I want to read on a couple of letters that I received that indicate some of the dilemmas we are faced with.
The Quebec Native Women's Association wrote a letter on July 14, 2010, saying that it “would like to reiterate its support for the adoption of Bill C-3 considering that according to estimates by INAC there will be approximately 45,000 individuals that will gain Indian status with the passing of this bill. QNW believes that Bill C-3 should be adopted as soon as possible in order to limit the consequences of discrimination experienced for too long by those who are affected by this bill. However, it is important to note that QNW remains dissatisfied with the bill in its current form and asks the federal government for guarantees that once the bill is adopted, the concerns and recommendations expressed by aboriginal organizations and their communities on Bill C-3 will be properly addressed. QNW recommends the creation of a special committee with a mandate to find solutions and tackle the outstanding issues relating to registration, membership, citizenship and other discriminatory practices in the Indian Act that go beyond the specific measures of the McIvor decision”.
That aptly outlines what the next step should be.
It is great to have an exploratory process, or whatever the government of the day is calling it, but we need to have a full and open partnership and consultation that deals with these issues of citizenship.
In another letter I received on June 14 from the NDP Aboriginal Commission, it says that it also shares a profound objection to the federal government's refusal to end the fundamental discrimination of the Indian Act by continuing to assert a presumed authority over first nations' citizenship, membership and identify.
It goes on to say that NDPAC believes that it would be an additional injustice to deny those who have been the victims of gender discrimination under the Indian Act their right to status. An estimated 45,000 people would suffer direct harm if Bill C-3 does not pass.
It goes on to say that, in addition, children being born today are denied registration by Indian and Northern Affairs Canada and denied their rights as first nations citizens as a result of the existing legislative gap. It says that this result plays into the hands of those who continue to pursue the policy of assimilation by allowing the government to refuse to recognize the constitutional rights of first nations people.
It also says that this situation continues the enormous injustice of earlier amendments to the Indian Act known as Bill C-31, 1985, which is expected to lead to the complete eradication of status Indians within only a few generations.The last words in the letter refer to the second generation cut-off. We know that is a piece of the Indian Act that has never been dealt with.
I want to briefly talk about how we got to this point.
Other members have spoken about the very long history of discrimination that has been in this country. It actually goes back to 1868 with the first post-Confederation statute establishing entitlement to the Indian status was enacted. This was in the Court of Appeal decision. The one piece that it was specifically referring to that was discriminatory against women reads:
All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants.
The early legislation then treated Indian men and women differently in that an Indian man could confer status on his non-Indian wife through marriage, while an Indian woman could not confer status on her non-Indian husband.
In 1869, the first legislation that deprived Indian women of their status upon marriage to non-Indians was passed. Sadly, this has been going on for so long and for so many generations.
It goes on to talk about the fact that this new legislation did not reflect the aboriginal traditions of all first nations. To some extent, it may be the product of the Victorian wars of Europe transplanted into Canada.
It continues on to say:
The legislation largely parallels contemporary views of the legal status of women in both English common law and French civil law. On the status of a woman dependant on the status of her husband upon marriage, she ceased in many respects, for legal purposes, to be a separate person in her own right.
As I said, we saw that perpetuated for generations.
In 1951 there were some slight changes. However, from 1951 onward, where an Indian man married a non-Indian woman, any child they had was an Indian. If, however, the Indian man's mother was also non-Indian prior to marriage, the child would cease to have Indian status upon attaining the age of 21 under the double-mother rule. The government introduced another aspect to discriminate against women.
Finally, in 1985, after complaints to the Untied Nations, there was a change in the legislation that did change some of the discriminatory aspects of the Indian Act but left many others in place, which ultimately resulted in the Sharon McIvor decision. Of course, Sharon and her family have suffered for decades because they were denied what they were constitutionally entitled to.
This has been a long-standing issue and we cannot claim in this House that we were not aware of the impact it was having on first nations' women and their male and female children. Back on December 22, 1982, there was an order of reference for a special committee on the Indian self-government task force. In that task force there were some areas outlined for further study. This is a reminder that this is not new information for this House.
In the areas for further study, the subcommittee was asked to: give attention to the elimination of the entire concept of enfranchisement; that the Indian Act be reviewed so as to reinforce group rights and to bring the act in line with international covenants; that the traditional practices, such as marriage, adoption, et cetera, should not be restricted or discriminated against by the Indian Act; and that the means for band control of membership criteria, process decisions and appeals in accordance with international covenants be instituted.
It is quite disillusioning that it takes so long for this House, under various governments of various political stripes, to deal with the ongoing discrimination that is inherent in the Indian Act.
One of the things that has been touched on here is the resources. I will turn to a couple of documents about why this is such a concern. In a briefing note from April 25, 2006, dealing with registration as an Indian under the Indian Act, Bill C-31, it talks about the increase in the first nations status population as a result of Bill C-31. It says that an increase of 402,940 status Indians occurred between 1984 and 2006, which is over 100% increase of status population as a result of Bill C-31.
The reason I mention that number is that we already have some past experience in this House about when legislation has been passed and inadequately resourced, and the kinds of projected increases as a result of Bill C-31 and the impact it has had on housing, health care, education, the water systems and the infrastructure. They simply have not been accommodated based on the increases in population as a result of that act.
October 1, 2009, when the assistant deputy minister appeared before the House, in her presentation she acknowledged the demographic and program implications. She said:
I'd like to talk for a moment about the implications of the McIvor decision. Demographic research is still ongoing to determine how many people may be newly entitled to registration...and while preliminary indications were between 20,000 and 40,000, we now believe it will be more in the neighbourhood of 40,000....
Of course there will be budgetary implications...with these potential new registrants, primarily involving health benefits and post-secondary education assistance.
What she did not touch on was housing, water, infrastructure and all the other aspects of maintaining programs and services on reserve, and whether people would even be able to return to the reserve if they wished to.
On July 2008, the First Nations Registration (Status) and Membership Research Report was prepared by the joint AFN-INAC working group. Once again, the government was fully aware of the implications on resources. This report outlined some of the serious problems that arose from the 1985 decision and why we continue to talk about the importance of resources.
The fact that there is a study going on is not good enough. We already know there will be an increase. According to this joint AFN-INAC working group, the increase in the registered Indian population as a result of the 1985 Indian Act amendments had major impacts on federal programming and expenditures, as well as for band governments now required to provide additional programming, facilities and services to newly reinstated individuals.
It goes on to say that band governments, first nations and aboriginal organizations stress that the increase in funding was not adequate to meet the needs created by the 1985 amendments as additional demands had been placed on already underfunded programs. As a result of the inadequate financial resources to accommodate reinstated individuals, many bands had difficulties in accepting new members and in providing them access to on-reserve services and programs.
These pressures, coupled with the socio-cultural implications of classes of Indians created by the 1985 reforms contributed to community conflict which continues to challenge community cohesion even in the present day.
We already know from past experience that we need to take a very serious look at implementation, and that what we heard around implementation so far has left us with very grave concerns.
In the time remaining, I want to touch briefly on citizenship because this goes to the heart of what we are talking about today. What we have done is narrowly dealt with a court decision while leaving all the other questions around citizenship outstanding.
The National Centre for First Nations Governance had a quote on what developing citizenship laws look like. It says:
Developing citizenship laws are an act of self determination. When a First Nation creates its own rules for identifying who is a citizen, it is taking a large step away from the control of the Indian Act and towards something of its own design. The development of citizenship laws is a significant step for First Nations in the implementation of self-governance and the creation of culturally relevant institutions that support Nation rebuilding.
It goes on to talk about criteria and objectives and those kinds of things. I think it is an important statement around citizenship, and it has been at the heart of why so many people have disagreed with the government approach on Bill C-3.
In the “First Nations Registration (Status) and Membership Research Report” of July 2008, there was a whole section on citizenship. I want to touch on the principles for change that were outlined in this joint report. It says that focus group participants were in agreement with the following principles: blood quantum cannot be the basis for defining membership; first nations need to define their terminology, identity, citizenship, membership, Indian status; the principles of international law, the UN Declaration on the Rights of Indigenous Peoples, can provide a guide for discussion of first nations citizenship; reforms must be consistent and supportive of first nations' right to self-determination; processes should be inclusive, gender sensitive and linked to culture and traditions; the federal government's role should be limited to providing support to first nations and rectifying the damage caused by its legislation not redefining Indians.
Those were the principles that were in this joint task force working group. We have not seen those principles rolled out when we are talking about defining status. Those are key principles that should underlie any respectful consultation and discussion about who is a citizen.
It goes on to say that the elders consider it important that barriers for change be addressed by revitalizing traditional laws to guide change. The report outlines as well a couple of other key points. One was independent conflict resolution mechanisms. The participants recommended that AFN take steps to initiate research and policy work with senior levels of government leading to the establishment of mechanisms for mediation or arbitration on issues related to Indian status, citizenship and membership.
The report goes on to say that members of Parliament, political parties, standing committees and so on need to be educated on these issues from a first nations perspective.
There is much more in this report, which I simply do not have time to touch on.
At the heart of this matter, although we will be supporting Bill C-3, is that it simply does not address the much larger issues that are facing first nations communities. In order to truly deal with the colonialist aspect of the Indian Act, first nations need to be front and centre in the consultation process, in the decision-making process and in the implementation around who is a citizen.
We need a very clear recognition about the resource implications. In my question to my colleague at the Standing Committee on Aboriginal Affairs, I talked about the backlogs that currently exist in the entitlement unit. We can see from those numbers, from the 2006 cost drivers project, that we are looking at a minimum of five years to clear the backlog that was in place at that time. How are those units going to deal with up to 45,000 new applicants? We cannot ask people to wait another 10, 15 or 20 years to determine if they are eligible for status.
It would be extremely important that we have a very clear statement from the government about the actual resources that are going to be in place once this legislation is in effect.