Mr. Speaker, I am pleased to rise today to speak to the amendments that the government has brought forward. I want to make a couple of points to put this in context.
First, I want to acknowledge the women who took part in the AMUN March to Ottawa who are here today, along with Ellen Gabriel from the Quebec Native Women's Association.
What we have before us is a very troubling response to a very complex situation. The government, and I say this quite cynically, has called Bill C-3 the gender equity in Indian registration act. As we have heard from other members, the bill does not deal with the full range of gender discrimination that still exists under the Indian Act. We have a much broader and more complex problem with citizenship and status. Many Canadians are not aware that there is a difference between citizenship and status, and I want to highlight a couple of points on that.
We have heard about the urgency of this matter. I want to point to the ruling by the Court of Appeal of British Columbia. The court did allow an extension when the government asked for it until July, but it also indicated that under the circumstances it might well have acceded to a request for a longer suspension had it been sought. The government said this was urgent, that we had to get on with this right away instead of following the appropriate process. That simply is not true. The court indicated that it would allow the time required to do the kind of job that is needed.
I want to cite article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, which says:
Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
Under the Indian Act, status is imposed by the state. The state determines who is an Indian. Leading up to 1985 women were discriminated against for marrying white men. We have seen decades of fighting. A bill in 1985 introduced some changes, but the changes created all kinds of problems, which is why we now have Bill C-3 before us. From 1985 to the present we have seen a number of court cases. Ms. McIvor's is the one that prompted Bill C-3. There are 14 other outstanding court cases.
The first nations registration status of membership research report, which is from where I cited the United Nations declaration, also indicated the generations that this has been ongoing. The 1996 Royal Commission on Aboriginal Peoples report acknowledged that the Indian Act and other such legislation and policies have had a detrimental impact on aboriginal people, resulting in the muting of the collective consciousness in respect of aboriginal nationhood and citizenship in an aboriginal nation. According to RCAP, citizenship is not vested in the Indian Act band but rather in the aboriginal nation, and calls for the reconstitution of aboriginal nations and nation governments that would in turn determine criteria for citizenship.
We are not dealing with the much larger issue. As long as we continue to deal with status on a piecemeal basis, many women and men are being forced into the courts to get the government to deal with this and we are going to continue to have this kind of conflictual discussion. The government had an opportunity to do a far better job than it has done on this.
I want to specifically reference the amendments that have been proposed, but specifically the one with respect to clause 9. Others have quoted from a number of witnesses and I want to touch on a couple.
When the Chief Commissioner of the Canadian Human Rights Commission came before us at committee, she said two really important things. She said that the repeal of section 67 of the Canadian Human Rights Act would allow women and men to take these discriminatory status provisions to the Canadian Human Rights Commission. In her testimony, the commissioner indicated:
My key message to you today is that this is by no means definite. The Commission’s ability to redress allegations of discrimination under the Indian Act remains uncertain.
Even the Commissioner of the Canadian Human Rights Commission questions whether the remedy proposed is possible.
In addition, during questions and answers later when she was asked specifically about clause 9 and the impact it may have on the Canadian Human Rights Commission to bring forward a remedy if discrimination was found, she indicated that she was uncertain about the impact of clause 9. Therefore, that remedy may simply not be available.
I also want to reference the national aboriginal law section in the Canadian Bar Association's briefing note of April 2010, which said:
Section 9 is a concern, as it would remove the right of anyone to sue the federal government for not providing them with status as a result of the gender discrimination addressed by the Bill. If the federal government can be presumed to have been aware that Bill C-31 was not consistent with the Charter as far back as 1985, and did not act for over twenty years until the McIvor decision reached the BC Court of Appeal, the CBA Section is concerned with the justice of such a “no liability” provision. Further, we caution that including such a provision could make the Bill vulnerable to further Charter challenges.
There are two points on that. Nobody is clear what the repeal of section 67 means in the context of what clause 9 would do. The government has indicated that Bill C-31, back in 1985, had a similar liability clause. It has argued that in Bill C-31 in 1985 that clause has not prevented first nations from taking their cases to court. However, we are in a completely different context in 2010 because we now have the repeal of section 67 of the Canadian Human Rights Act.
This question around what clause 9 would mean in this new context has not been analyzed and nobody has been able to give a clear answer about whether first nations would still have any remedy, whether they would be able to continue with the practices that have happened since 1985 in terms of bringing court cases forward and seeking remedies. We are in a different context and I do not believe there has been the kind of analysis that would indicate the impact on that.
The other issue is that the government has claimed that part of the reason for clause 9 is to protect first nations chiefs and councils from any liability issues. If that is the case, then why was clause 9 or a similar clause not brought forward that protected chiefs and councils but still left the government open for redress?
The Canadian Bar Association raised the issue of whether the government was aware that there was ongoing gender discrimination. In the 1988 fifth report of the Standing Committee on Aboriginal Affairs and Northern Development it outlined that there were numerous issues of gender discrimination still in the act. They are clearly outlined. Whether it was unstated paternity or children born prior to 1951, there were all kinds of gender discrimination issues.
This report was tabled in the House, so clearly the government and successive governments were well aware that there was residual gender discrimination in the Indian Act. Therefore, it would be hard to claim that the government was not aware. This has been brought up in any number of other venues.
This is outside the scope of the amendments, but a very troubling question around funding continues to be unanswered. We know that with a 2% funding cap imposed in 1995, continuing increases in population and new people coming on as a result of changed status, it is very difficult for bands to manage their funding with increased populations. It seems unreasonable to put forward legislation that does not have the financial resources attached to it.
There are a number of unanswered questions that remain before us when we consider the amendments before the House.