Todd Russell

[Gender Equity in Indian Registration Act, May 25th, 2010]

Mr. Speaker, the member certainly sums up very succinctly.

The government has chosen to draft a bill with the narrowest possible grounds. It has not at all responded to the larger appeal of first nations women across this country to once and for all end gender discrimination. The government had that ability, it had that flexibility, and it made a choice.

Some will say, what about an amendment? Well, an amendment to the Indian Act may be fine, but is it justifiable to help some people and then leave thousands and thousands of others to be subject to the discriminatory aspects of the Indian Act? I believe it is not.

We could have settled this once and for all, and the government chose not to.

[Gender Equity in Indian Registration Act, May 25th, 2010]

Mr. Speaker, my colleague from Abitibi—Témiscamingue raised a very good point. It seems that once Bill C-3 goes through—and there are problems with it, as the government and all witness have acknowledged—the onus will be on individual first nations women or first nations organizations to lodge a complaint. The onus will be on them to fight it and to find the resources, and the Conservative government has cut off a valued avenue of support for those who seek such redress.

Therefore, the government offers a remedy on the one hand, but says that it will deny people access to that remedy at every opportunity. It will deny them access to funds and deny them any type of remedy at the Canadian Human Rights Commission. The government is being two-faced: it offers a remedy on the one hand, but denies people any access to it on the other hand. The court challenges program is just another example of this.

[Gender Equity in Indian Registration Act, May 25th, 2010]

Mr. Speaker, I would say there was a similar clause about the same time the charter came into being in 1985. It did not stop certain challenges at that particular time; it did not provide the clarity the member speaks of.

I would say that the greatest clarity we can have in this House and the greatest clarity we can provide to first nations women across this country is to end gender discrimination once and for all. We have the ability as parliamentarians to do it. The government can withdraw Bill C-3 and come back with something that makes sense and puts this debate to bed once and for all.

Why do we want another generation to have to fight sections of Bill C-31 and the residual discrimination that will continue to exist under the Indian Act?

[Gender Equity in Indian Registration Act, May 25th, 2010]

Mr. Speaker, first, I acknowledge four women with the AMUN March . They are marching 500 kilometres from Wendake to Ottawa. These brave women are opposed to Bill C-3. They are demonstrating by their actions just how opposed they are and how they continue to fight for equality for aboriginal women in our country, a fight that has been taken up by people like Mary Two-Axe Early, Ms. Lavell, Ms. Lovelace and Ms. McIvor. The struggle of Ms. McIvor is why we are in the House this morning debating Bill C-3 and, specifically, amendments to it.

However, let us take a very brief moment to find out how we got here. This is a 25 year struggle by aboriginal women for equality. They have gone through the court system. The courts have ruled in their favour, not once but twice, at the B.C. Supreme Court and at the B.C. Court of Appeal.

The government says that it only wants to respond to the B.C. Court of Appeal in the narrowest possible terms. The government had it in its craw, it had the will, to introduce a bill that would speak to the broader issues of discrimination. If it were sincere about discrimination under the Indian Act, it could have taken the measures to broaden the scope of the bill and to once and for all end all gender inequality and sex discrimination under the Indian Act. The Conservative government chose to make it very narrow.

The member opposite said as much. He said that we were one step closer. By his own admission, we are not there yet to end gender discrimination under the Indian Act. Therefore, the government could have taken the steps to do it but it did not.

The member went on to say, and I want to respond to some of what he said, that this was a situation of such urgency. The parliamentary secretary said in committee on April 27, when we put in a provision about reporting to Parliament, that the concern was after two years we just would really be getting going in terms of some of the registration numbers.

The parliamentary secretary by his own admission seems to feel, speaking on behalf of the government, that even if the bill passed, there would only be a negligible impact upon the new numbers that would come forward.

Therefore, the government, by its own admission, has said to each and every one of us that on the one hand it is so urgent, yet on the other hand it does not really know if it will have much of an impact at all. Where is the government when it comes to this bill.

To be quite honest, I think the government likes to play a charade on people. It loves to stand up for individual rights or gender equality, but it is not willing to put the heart or soul in to this to ensure it is done once and for all.

When it comes to Bill C-3, contrary to what the member opposite has said, every witness said that Bill C-3 was not adequate. It did not respond to all the issues of gender discrimination under the Indian Act. When asked, all the witnesses said that if they had the opportunity, they would definitely want the bill amended to ensure that once and for all there was no gender discrimination under the Indian Act.

We tried everything in the House. We put a motion before the House to try to expand the scope of the bill. The government shot it down. We tried to bring amendments forward and they were ruled out of order. Now we are debating amendments at report stage.

I will give an example of what some of the witnesses said, in particular the Quebec Native Women. They said:

—while Quebec Native Women recognizes the need to amend the archaic nature of the Indian Act, Quebec Native Women, as stated earlier, deplores the restrictive vision of the federal government based solely on a patchwork remedy to the specific problem of discrimination brought to light in the McIvor case...

Another quote is:

LEAF supports this demand to remove all vestiges of sex discrimination from the status provisions, and submits that the elimination of residual sex discrimination under the Indian Act best meets the federal government’s constitutional obligations to achieve substantive equality for Aboriginal women and Canada’s obligations under international law.

Sharon McIvor, Pam Palmater, an individual who came before us, CAP and the Assembly of First Nations all said the same thing. They were in unanimity when it came to this point.

I will speak to clause 9, which is one of the proposed amendments by the government. Interestingly, the government never spoke to the specific amendments it proposed. The member went on in some rhetorical terms about how the government stood up for the individual rights of women, and all that sort of thing.

However, when it comes to clause 9, we again hear two stories. The government officials came before us and said that clause 9 was a bit innocuous, that it really did not do much, that it was for greater certainty. Yet when the parliamentary secretary spoke at committee, he said that Bill C-3 could not pass if we clause 9 was not in it. When the vote comes, if clause 9 fails, we will see what the government will do.

Chief David Walkem of the Union of British Columbia Indian Chiefs says that we should strike clause 9. On April 20, at committee, he said:

—we're recommending is to strike clause 9 to allow Indian women and their descendants who lost status due to the discriminatory operation of the Indian Act to pursue, through the courts or other negotiation, restitution or compensation for the losses their families suffered as a result of the historical discrimination imposed on them by this legislation, similar to the process followed for people who went to residential schools.

On Tuesday, April 13, CAP, the Congress of Aboriginal Peoples, said this about clause 9:

This section is an insult to Indian women and their descendants all over this country. Not only was Canada forced to make amendments to address gender inequality after fighting against the McIvor case for over 20 years; and not only has Canada proposed a very minimalist amendment; now Canada wants to ensure that it does not have to compensate the victims of gender discrimination?

It goes on to say that it cannot now be said that Canada did not knowingly discriminate against Indian women and their descendants.

This is what Dr. Pam Palmater had to say on April 20:

Clause 9 is an offence to Indian women and their descendants who have already waited more than 25 years for justice. It is also counter to both the spirit and the intent of the Charter of Rights.

The Canadian Bar Association 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.

Again, almost every witness who came before us was opposed to clause 9.

Then the government brings up the wonderful example of the repeal of section 67 of Bill C-21 passed in 2008. It said that this was a wonderful thing, that now complaints could be brought against the government and against Indian Act bands.

Guess what? It has said that there is a remedy for first nations women use the Canadian Human Rights Act as a vehicle. Over 30 complaints have been launched against the federal government by aboriginal people, first nations people, and the Government of Canada has gone before the Canadian Human Rights Commission and said that it has no jurisdiction and that it cannot provide a remedy because it does not provide a service.

Therefore, it tells us that we have a remedy on one hand and tries to deny us that remedy on the other hand. It is hypocritical.

Clause 9 is a no go. We will not support it and we hope all our colleagues in the House will join us. Certainly I know that in committee all of the opposition parties voted to not include clause 9 in the bill.

[Questions Passed as Orders for Returns, May 11th, 2010]

With respect to Senators travelling with the Prime Minister or any other Minister of the Crown outside of Canada during the period of January 1, 2007 to March 25, 2010: (a) what are the names of all Senators who have travelled outside of Canada with the Prime Minister or any other Minister of the Crown; (b) what is the political party affiliation of each individual Senator; (c) to and from where did each Senator travel; (d) what were the dates of each trip; (e) what are the names of all Senators and spouses or partners who have travelled on airplanes operated by the government; (f) what was the total cost of each trip broken down by (i) air travel, (ii) accommodations, (iii) per diem, (iv) meals, (v) hospitality, (vi) other expenses; and (g) who paid all travel-related expenses in (f)?

[Ethics, May 10th, 2010]

Mr. Speaker, it has been over a month since the Prime Minister fired his status of women minister, kicked her out of caucus and called in the RCMP.

A lot has happened since then. The former minister has even been fired as a Conservative candidate. We still do not know the nature of the allegations deemed so serious that the Prime Minister called in the RCMP, the first time since the days of Brian Mulroney.

This is about the integrity of the government. When will the government end the speculation and tell Canadians whether a criminal investigation is under way and what it is about?

[Questions on the Order Paper, May 7th, 2010]

With regard to the Labrador Coast Airstrips Restoration Program: (a) was there a hiatus between the commencement of the current program and the previous program announced on or about April 1, 2003, and, if so, (i) what was the duration of the hiatus between the expiry of the previous program and the current program, (ii) what was the reason for the hiatus; (b) what is the total monetary value and duration of the current program; and (c) do the monetary value and duration of the current program differ from the previous program and, if so, (i) in what particulars, (ii) what is the reason for any such differences?

[May 6th, 2010]

Madam Speaker, nobody has even asked that the Aboriginal Healing Foundation last forever.

The government can honour its legal obligations and still fund the Aboriginal Healing Foundation. There are other obligations, moral and ethical, to the people who suffered during residential schools.

Let us look at the experience of Health Canada when it just started out. Health Canada now has its regional co-ordination headquarters for the people of Nunavut who might need help in Whitehorse. It is three time zones away.

When Health Canada handed out its first pamphlets about its new program for health support, it was not in Inuktitut, the first language of many of the people in Nunavut or in Nunatsiavut, Labrador, or other places across the Arctic, it was only in English and French. When Health Canada mentioned the programs, it did not even mention Inuit or Métis. They were not even referenced in the pamphlets.

This is not the way to start a new healing program that is supposed to be culturally sensitive and responsive to the needs of people.

I would end with this, and this is very poignant. At committee today an elder said, “We were brave children”. I ask the government to show some bravery, to stand up and to support these people.

[May 6th, 2010]

Madam Speaker, I am pleased to rise in the House regarding a question that was raised concerning the Aboriginal Healing Foundation. There is one very simple fact: The Conservative government is about to scrap the Aboriginal Healing Foundation.

The Aboriginal Healing Foundation was a program that was designed by aboriginal people. It was delivered by aboriginal people for aboriginal people to deal with the healing needs that have arisen as a result of the Indian residential schools experience.

The Conservatives want to replace that program with a program of their own design. It raises the question: Does the Conservative government think that it knows better than aboriginal people themselves what they need in their communities, for themselves and for their families? When we look at the Aboriginal Healing Foundation, it has exceeded expectations. The results have been good. There have been lower suicide rates. There has been more intergenerational communication, less child apprehensions and lower alcoholism rates. All of these things have been positive about the Aboriginal Healing Foundation. It has been accountable and transparent.

These are facts that have been borne out by the government's own independent audit that was done in the fall of 2009. We have to ask the question: Why scrap success? Why scrap something that was working, vitally needed and urgently needed in communities?

The government is scrapping it when the need is rising. This is evidenced by the figures themselves. Claims from the common experience payment program were originally projected to be around 66,000. The actual applications are now 95,000 and counting. The independent assessment process claims were supposed to number somewhere around 12,500. They are now at 14,900 in the first two years.

The need is rising. Just when there is a need in our communities and people are reaching out for help, the government changes the program. To whom is it giving the supposed program? It is giving it to Health Canada. Nobody disputes that Health Canada has done some good work, but it does not have the expertise the Aboriginal Healing Foundation has developed over the last 12 or 13 years.

Health Canada's approach is not community based. Health Canada's approach is one of individualism. Health Canada's approach is one that is narrowly constructed. It does not reach out in the way the Aboriginal Healing Foundation has to families, groups and communities.

What has the initial impact of this change been? I will use some of the examples in Nunavut and Clyde River. When the government said that it was scrapping the program, it said that there would be no land-based healing, no counselling and no therapeutic programs. Seven counsellors have been laid off. Women's healing, youth drop-in and counselling, men's healing and family counselling have all stopped.

That is not helping the individual. That is not helping the community. The government is doing a disservice to those aboriginal Canadians who vitally need the help at this pivotal time in their lives.

[Points of Order, May 6th, 2010]

Mr. Speaker, today I rise to respond to the point of order raised on Thursday, April 29, 2010 by the Parliamentary Secretary to the Leader of the Government in the House of Commons concerning two amendments to Bill C-3 adopted by the Standing Committee on Aboriginal Affairs and Northern Development.

The parliamentary secretary shared in his opinion that these two amendments should be ruled out of order because he felt they went beyond the scope of the bill.

Given the significance and profound issues; that is, sex discrimination and gender equality, that have prompted the introduction of Bill C-3, I feel it is vitally important to present counter arguments before you give your ruling, Mr. Speaker.

First, I would like to quote from the sixth edition of Beauchesne's Parliamentary Rules & Forms. At page 205 it states in subarticle 689(2):

The committee may so change the provisions of the bill that when it is reported to the House it is in substance a bill other than that which was referred. A committee may negative every clause and substitute new clauses, if relevant to the bill as read a second time.

Article 694 on page 206 states:

Amendments may be made in every part of a bill, whether in the title, preamble, clauses or schedules; clauses may be omitted; new clauses and schedules may be added.

Beauchesne's sixth edition also states on page 205 in subarticle 689(3):

The objects (also referred to as the principle or scope) of a bill are stated in its long title, which should cover everything contained in the bill as it was introduced.

The long title of Bill C-3 as listed on the bill's cover page under the number assigned to the bill is “An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). Therefore, the principle and/or scope defined in this title is to respond to the decision of the B.C. Court of Appeal. To understand what “to respond” means in the context of this legislation, it is necessary to return to the decision of the B.C. Court of Appeal that is referenced in this legislation.

The court ruled that two 1985 amendments to the Indian Act failed to eliminate gender discrimination in the second and subsequent generations. Paragraph 161 of the ruling states:

Sections 6(1)(a) and 6(1)(c) of the Indian Act violate the Charter to the extent that they grant individuals to whom the Double Mother Rule applied greater rights than they would have had under s. 12(1)(a)(iv) of the former legislation. Accordingly, I would declare ss. 6(1)(a) and 6(1)(c) to be of no force and effect, pursuant to s. 52 of the Constitution Act, 1982. I would suspend the declaration for a period of 1 year, to allow Parliament time to amend the legislation to make it constitutional.

Nowhere in its ruling did the court prescribe a remedy to the Government of Canada. In fact, in paragraph 160 it states:

In the end, the decision as to how the inequality should be remedied is one for Parliament.

Although the court arrived at a narrow constitutional finding based on the specific facts of the McIvor case, it accepted the broad harms suffered by aboriginal women and their descendants because of non-entitlement to Indian status. In fact, the Court of Appeal left open the possibility of future equality challenges to the status provisions.

More important, previous precedent exists to support the notion that the court's ruling in McIvor v. Canada does not create a rigid constitutional template. The Supreme Court of Canada has affirmed the role of Parliament to build on a court's ruling, particularly where the judicial scheme can be improved by the legislature.

In its decision in R. v. O'Connor in 1995, the Supreme Court of Canada laid down a procedure for the disclosure of confidential records of sexual assault complainants which purported to balance the equality rights of complainants and the rights of accused to full answer and defence.

In 1997 Parliament enacted amendments to the Criminal Code which differed from the procedure delineated by the court and which ostensibly went further to protect women's equality rights and protect their confidential records from disclosure to those accused of sexually assaulting them.

In upholding the new legislation in R. v. Mills in 1999, the Supreme Court of Canada emphasized the importance of Parliament building on the court's earlier decision in O'Connor. In this case the government chose a more expansive legislative remedy than that suggested in the O'Connor ruling after hearing from women's organizations and others.

Another example is the case of M. v. H. in 1999, which involved a section 15 charter challenge to the definition of spouse under the Ontario Family Law Act. The remedy ordered by the Supreme Court impacted only the definition of spouse in the Ontario Family Law Act, but the government of Ontario introduced omnibus legislation to change the definition of spouse in all provincial statues. Further, the federal government, which was not even a party in M. v. H., brought in the Modernization of Benefits and Obligations Act in 2000 to respond to the court's ruling.

There are other examples. These precedents confirm that the governmental response to a court ruling can clearly include the implications of the decision but is not restricted by it. Therefore, we argue that the amendments to Bill C-3 are admissible.

I would like to reiterate that the B.C. Court of Appeal did not order a specific remedy in its ruling, and instead ordered a declaration of invalidity. The purpose of a declaration of invalidity is to give the legislature the scope and flexibility to respond to a declaration of constitutional invalidity in the most appropriate way, after the democratic process of hearing the submissions of those most impacted.

Constitutional scholar Peter Hogg explains in chapter 36 of his text, Constitutional Law of Canada, that in many cases where the court has found a law to be unconstitutional, the court would prefer the legislature to design the appropriate remedy.

This is exactly what has happened in McIvor v. Canada. The B.C. Court of Appeal left it to Parliament to determine an appropriate remedy. The government introduced Bill C-3. The committee then heard unanimous testimony that residual gender discrimination would remain under the status provisions of the Indian Act if Bill C-3 were not amended. All witnesses encouraged the committee to amend the bill in order to eliminate all residual discrimination.

The amendment I introduced in committee to clause 2, which was fully supported by all opposition parties, is a response to this testimony. It will once and for all eliminate this residual discrimination and ensure that the Government of Canada lives up to its responsibilities concerning gender equality.

Based on this precedent and the broad implications of the B.C. Court of Appeal ruling in McIvor v. Canada, which is referenced in the long title of Bill C-3, I would argue that the amendment I introduced to clause 2 should be considered one of many possible responses to the court's ruling, and as such should be considered admissible. If this amendment is admissible, the parliamentary secretary's challenge to the admissibility of the amendment to the title should also be dismissed.

In Bill C-3, the Conservative government has introduced a piece of legislation that purposefully leaves gender discrimination in the Indian Act's provisions on status entitlement. If we know, which we do, that gender inequality or sex discrimination exists, as parliamentarians we have an obligation to remedy it. Common sense as well as unanimous testimony of witnesses at committee dictate that this is wholly unacceptable. My amendment responds to this fact and, as I have argued, is fully within the scope of Bill C-3.

I respectfully ask, given that generation after generation has fought for this equality, these arguments be given great consideration, as I am confident they will. Let us once and for all end sex discrimination that exists under the Indian Act.