Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 1 - Evidence - Meeting of March 17, 2010
OTTAWA, Wednesday, March 17, 2010
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to examine the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and other matters generally relating to the Aboriginal Peoples of Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I call the meeting to order. Good evening and welcome honourable senators, members of the public and viewers across the country to the Standing Senate Committee on Aboriginal Peoples. I am Senator Gerry St. Germain, from British Columbia, and I have the privilege of chairing this committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. This gives the committee a broad scope to look into issues of all types that touch on matters of concern to First Nations, Metis and Inuit.
The purpose of today's meeting is to obtain a briefing from Indian and Northern Affairs Canada, INAC, on how the McIvor decision emanating from the British Columbia Court of Appeal will affect the current registration provisions in the Indian Act.
[Translation]
Before we begin with our witnesses, allow me to introduce the members of the committee that are here today:
[English]
On my left is Senator Sibbeston, from the Northwest Territories. Next to Senator Sibbeston is Senator Hubley, from Prince Edward Island. Next to Senator Hubley is Senator Ogilvie, from Nova Scotia.
On my right is Senator Patterson, from Nunavut. Next to Senator Patterson is Senator Stewart Olsen, from New Brunswick. Next to her is Senator Poirier, from New Brunswick. Next to Senator Poirier is Senator Raine, from British Columbia.
Members of the committee join me in welcoming our witnesses from INAC, Roy Gray, Director, Resolution and Individual Affairs Sector; and Brenda Kustra, Director General, Regional Operations Sector. From the Department of Justice Canada, we welcome Martin Reiher, Senior Counsel.
I understand that Mr. Gray and Ms. Kustra will make short opening statements and that Mr. Reiher will assist in responding to questions. Mr. Gray, please proceed.
Roy Gray, Director, Resolution and Individual Affairs Sector, Indian and Northern Affairs Canada: Good evening. Thank you for the opportunity to present this evening. My name is Roy Gray, and I am here with my colleagues, Brenda Kustra and Martin Reiher. I will begin by providing a brief presentation on Bill C-3, An Act to promote gender equity in Indian registration act, that Minister Strahl introduced last Thursday. The government proposes legislative amendments to certain registration provisions of the Indian Act in response to that decision of the Court of Appeal of British Columbia.
On April 6, 2009, the Court of Appeal of British Columbia ruled in the case of McIvor v. Canada that certain registration provisions of the Indian Act are unconstitutional because they violate the equality provision of the Charter of Rights and Freedoms. The court suspended its declaration for 12 months, to April 6, 2010, to give Parliament time to amend the act in response to the decision.
During this period, Indian and Northern Affairs Canada conducted an engagement process that involved information sessions for First Nations and Aboriginal organizations, and we received feedback from Aboriginal organizations, First Nations and individuals across the country.
In short, Bill C-3 will ensure that eligible grandchildren of women who lost status as a result of marrying non-Indian men will become entitled to first-time registration, or Indian status.
To provide some background, before the 1985 amendments to the Indian Act, known as Bill C-31, marriage was a primary factor in gaining or losing Indian status. Indian men who married non-Indian women were able to transmit their status rights to their wives. However, Indian women who married non-Indian men lost their status rights. This resulted in a clear inequality between the male and female lines.
One of the primary objectives of the 1985 amendments to the act was to remove discriminatory provisions and to restore status to those who had lost it. Another key change was the introduction of registration categories, namely sections 6(1) and 6(2). The difference is that people registered under 6(1) are able to transmit their status rights regardless of the status rights of the other parent. On the other hand, for someone who is registered under 6(2), to transmit status to their children they must have a child with someone who is already registered or entitled to be registered as an Indian. If they parent with someone who is a non-Indian, their child is not entitled.
Probably the simplest way to explain the effect of the proposed amendment is to walk you through a chart. I believe you have charts in front of you in both languages.
This chart demonstrates the scenario of a brother and sister who both married non-Indians. In the top portion of the chart, labelled ``1985 Amendments come into force,'' you will see that the brother's grandchildren, depicted on the left- hand side, and the sister's grandchildren, shown on the right-hand side, are treated differently. The brother's grandchildren are entitled to registration and the sister's grandchildren are not. In a nutshell, this was the basis of Ms. McIvor's court case.
The effect of Bill C-3 is shown on the lower part of the chart under the heading ``Proposed Amendments Enacted.'' The registration category of the sister's child would change from the current 6(2) to 6(1) to allow them to transmit their status rights to children that they parent with non-Indians. This will result in the equitable treatment of the grandchildren of both the brother and the sister.
In conclusion, the bill provides a direct response to the ruling of the Court of Appeal for British Columbia and eliminates a cause for gender discrimination in the Indian Act.
I hope that my description of the proposed amendments has been of assistance. We will be pleased to provide more information to you in answering questions.
I would like to now introduce my colleague, Brenda Kustra, who will describe for you the exploratory process that is being proposed by Minister Strahl to address broader registration, membership and citizenship issues.
Brenda Kustra, Director General, Regional Operations Sector, Indian and Northern Affairs Canada: Good evening, senators, and thank you very much for inviting me here this evening with you. My name is Brenda Kustra, and I am here this evening to provide you and all members of this committee with information on the exploratory process on Indian registration, band membership and citizenship, which was announced by Minister Strahl on Thursday, March 11, 2010.
As my colleague Mr. Gray has mentioned in his presentation, during the engagement on the government's plan to implement the McIvor v. Canada decision, which took place over the August to November time period, First Nations and other Aboriginal groups that participated in the discussion raised a number of issues on registration, membership and First Nations citizenship that went well beyond the scope of the McIvor v. Canada decision and the proposed legislative amendments that are now identified as Bill C-3.
First Nations and Aboriginal groups also called on the federal government to make a commitment to a process that would substantially examine these broader issues and also indicated that they wanted such a process to be worked out jointly with them to achieve sustainable reform.
The minister and the department recognize the importance of these issues to First Nations and Aboriginal groups. We equally recognize the issues surrounding Indian registration, band membership and citizenship as being complex, and that First Nations and other Aboriginal groups hold many diverse views on these matters. It is clear that broader reform cannot be achieved overnight or in isolation and requires the gathering of information and the identification of critical issues for a discussion as a first step in the process to looking potentially toward further substantial change.
In response to the views and comments received from First Nations and Aboriginal groups during the engagement on McIvor v. Canada, the department will work in collaboration with national First Nations and Aboriginal organizations and with the participation of First Nations groups, organizations and individuals across the country to explore these broader issues.
I would like to emphasize for the committee that the exploratory process is separate and distinct from the legislative initiative to implement the McIvor v. Canada decision. There are two reasons for this: first, in order not to impede the passage of Bill C-3 and to meet the deadline imposed by the Court of Appeal of British Columbia; and, second, to provide ample opportunity for groups and individuals to participate in activities that will be part of the process. We hope to launch this initiative as early as next month. Once we have jointly established a process with our partners, we will be in a better position to say how long the process will take and how exactly it will unfold.
In addition, to provide an environment within which information will be gathered and views identified, shared and discussed, we anticipate that the nature of this process will be non-positional. This should afford flexibility for all parties to come forward and share their views on all the subject matters.
The findings of the exploratory process will inform the potential next steps that the government and organizations may wish to consider in addressing the broader issues around Indian registration, band membership and citizenship.
The main elements of this proposed exploratory process include a partnership with the national organizations to plan, organize and implement an inclusive process and the activities that support the process. Activities will serve as instruments for information gathering and dissemination, facilitation and discussion of issues, the inclusive participation of First Nations and other Aboriginal groups and organizations and individuals at all levels as well as all Canadians.
Accordingly, INAC has extended an invitation to the Assembly of First Nations, the Native Women's Association of Canada, the Congress of Aboriginal Peoples, the National Association of Friendship Centres and the Métis National Council to partner with us in planning, organizing and implementing the process itself and the activities that will focus on the information gathering and the identification of broader issues.
We do not want to predetermine the range of activities that will be undertaken in partnership with the national Aboriginal organizations. It is envisioned that the exploratory process will be guided by principles of collaboration and inclusiveness and will have demonstrated milestones.
The exploratory process itself will encourage and invite participation in activities from First Nations and Aboriginal organizations at all levels — national, regional, local community, individuals and interested parties.
We anticipate the inclusion of treaty groups, tribal councils, provincial-territorial-regional organizations, the national organizations I have already referenced, First Nations governments and communities, individuals — both status and non-status living on- and off-reserve, Metis locals and communities and Metis individuals, as well as other Canadians.
It is envisaged that we will use both traditional and new technologies and media to facilitate and support the extensive participation of folks across the country. The maximum use of modern Internet technology, in particular, is viewed as a means of encouraging the participation of First Nations and Aboriginal youth. In this context, activities within the exploratory process will provide flexibility for participants to submit multiple format presentations and submissions — written, video, recorded, email submissions, et cetera. This is all in support of engendering an inclusive dialogue on the information gathered.
Over the next few months, we will be working collaboratively with the organizations that I have indicated to set up this exploratory process and plan and implement a variety of activities. It is our sincere hope that this process will provide a first step to begin this dialogue on very important matters with the national organizations partnering with us to design and implement activities that will encourage a wide range of participation.
I want to thank you for the opportunity to present to the committee tonight, and I hope that the information that I have provided will be of assistance. Along with my colleagues, Mr. Gray and Mr. Reiher, we are available to answer your questions.
The Chair: Thank you for your presentation. If you have no objection, we will go right to questions from senators. We will start with Senator Hubley, followed by Senator Sibbeston and Senator Stewart Olsen.
Senator Hubley: Welcome and thank you very much for your presentations. They certainly will be helpful.
I have a question on the proposed amendments. I am looking at the status, of course. If the sister who has a 6(1) status adopts a child, does that child also then gain a 6(1) status?
Mr. Gray: That child currently has 6(2) status. Because a child can acquire status through birth or adoption, if he or she falls into this category and meets these criteria, the category of the child would be changed to 6(1), yes.
Senator Hubley: An adopted child would be treated legally as a regular. Could that mean that a non-Aboriginal child could receive a 6(1) status if that child was legally adopted by Native parents?
Martin Reiher, Senior Counsel, Department of Justice Canada: Yes, when a child is adopted, the child is adopted on an equal footing with a birth child.
Senator Hubley: There is no race discrimination on the child's part. I was wondering that during your presentation.
Senator Sibbeston: I am advised that other provinces have other cases dealing with Indian status. Does this decision and this legislation deal with all the issues that are raised in other proceedings that are progressing through the courts?
Mr. Gray: No. This deals with one aspect of gender discrimination. I will pass it over to my colleague.
Mr. Reiher: Bill C-3 responds directly to the McIvor v. Canada decision, which involved the specific situation that was described.
Senator Sibbeston: Are you able to describe some of these other court decisions that are also dealing with Indian status on perhaps some other issues that deal with whether a person can be registered and then receive Indian status?
Mr. Reiher: Other ongoing actions involve complex factual situations. It might be difficult to provide a large number of examples. I can provide to this committee information about, for example, an action brought by Ms. Sanderson in Manitoba. The factual situation is extremely complex, but in that situation, discrimination is alleged to have occurred when a great-great-great grandmother was deprived of status based on marriage. The great-great-great grandchildren are now asserting an entitlement to be registered on the basis that this would be discrimination based on gender. That is one example of a situation that is not dealt with by Bill C-3.
As far as I know, 12 active, ongoing actions have been brought against the Government of Canada that challenge section 6 of the Indian Act, which deals with registration. I do not have all the facts of these 12 actions right now.
Senator Sibbeston: Does this proposal that you have to engage Aboriginal organizations — and I notice that the Metis are included in this process — deal with the Metis question? As you know, there have been court decisions with respect to Metis people asserting their Aboriginal rights, hoping to eventually be recognized and have many of the same benefits and privileges that Indian status provides. Does this process that you are undertaking include or deal with that question of Metis people in Canada?
Ms. Kustra: Many issues will be raised by the various organizations and individuals that choose to share their views. Many of the issues around rights and citizenship in various nations obviously will come forward and be shared throughout this process. We do not have a predefined agenda for the subject matters with which we will be dealing. It is totally open to deal with issues around citizenship, status and membership.
One of the reasons that the Métis National Council has expressed interest in this process is that they have a number of members across the country that may be eligible to be registered, so they want an opportunity to share views with us.
Senator Stewart Olsen: I will leave the bill for now. I would like to move to the exploratory process. What is your budget for the process?
Ms. Kustra: At this point, we do not have a predefined budget for the process because we have not yet engaged with the organizations in the discussion to define the process and the involvement of all the organizations. We will need to do that first; and by working with the organizations, we will develop a budget for the process.
Senator Stewart Olsen: Whether you will meet individually with the bands or collectively, all of that is a decision to be made, correct?
Ms. Kustra: Yes, it is part of the process that will unfold as we get together with the organizations to talk to them about the activities they feel are appropriate to gather the widest range of views on the subject. As I said, we hope to use a variety of instruments to be able to collect information. People across the country will have an opportunity to make proposals, submit emails and meet with people from time to time. We still have to define that process with the organizations.
Senator Stewart Olsen: I assume you will follow up with us on the step-by-step process and how it is happening so that we will be apprised of how this unfolds?
Ms. Kustra: I would defer to the chair of the committee potentially to invite us to return at a future date to provide an update to the committee.
The Chair: I am sure the minister will keep us apprised of events as they unfold, but I will ensure that. I can be reminded by any committee member over the course of time. I am sure the ministry will keep the committee well apprised because we will hopefully meet with the minister soon as a full committee in a quiet, private meeting to discuss some of these issues.
Senator Stewart Olsen: The main focus of this process will be to answer the question of how we want this implemented or how we will do this. What is the main question you are asking groups to respond to?
Ms. Kustra: It is a discussion about issues and perceptions of status, membership and citizenship separate and apart from implementation of Bill C-3. If Bill C-3 receives Royal Assent, it will be implemented and provide registration for people who meet the criteria.
The exploratory process will obviously have the ability to provide information to people on how they register. It is really a broader policy discussion to try to understand the views of people and how they perceive their identity and relationship with their government, nation, et cetera. We are not specifically asking a question; we are opening a dialogue.
Senator Poirier: Thank you for the presentation. Will this change to registration affect Natives only on-reserve or also off-reserve?
Mr. Gray: It will affect, as I mentioned, eligible grandchildren of these women who lost status through marriage, some of whom may live on-reserve, many of whom will not. It will potentially affect both groups.
Senator Poirier: Have we an idea of the number of people that could ask to be registered?
Mr. Gray: Yes. We have been working with Stewart Clatworthy, a noted demographer working with Aboriginal populations. He has worked for the Royal Commission on Aboriginal Peoples, Aboriginal organizations and the government. His analysis projects approximately 45,000 people who are alive today.
Senator Poirier: Have we a dollar figure of the impact of this on First Nation communities at this point?
Mr. Gray: Not at this point in time. We started working on an analysis of financial implications program by program. It would be premature to come up with a dollar value. Factors such as the actual size of the population will come into play. As you mentioned in your first question, on-reserve or off-reserve residency would affect the impact on programs. What is the age group of the population? What are their life circumstances with respect to the impact on health benefits?
This is an application-driven process; people will have to apply. Presumably, that will happen over a period of time. We will track that to give us an idea of the costs.
Senator Poirier: We do not currently know the age of the individuals who may register. Is it possible that we could see a ripple effect where one person has had a child who became an adult and that person has had a child? Could it go down through generations?
Mr. Gray: No, the impact is at the third generation or the grandchildren of women who lost status. Subsequent generations — male and female — are both governed by existing rules in the Indian Act.
The Chair: A section 6(2) person does not pass on status. Is that correct?
Mr. Gray: They may if they have a child with another registered Indian.
The Chair: Yes, but status disappears if they marry a non-First Nations person.
Mr. Gray: That is correct.
Senator Raine: It is obvious this addresses an inequity that was present. I would like your opinion on whether this addresses the issue in a fair way. Are you confident that this is a good thing for us to do?
Mr. Gray: In the development of the amendment, we did much analysis. To the extent that I have been involved, yes. I do not know if my colleague wants to comment on that from the Department of Justice perspective. I feel it appropriately addresses the decision of the court.
Mr. Reiher: I concur. It certainly responds to the court decision in McIvor v. Canada.
Senator Raine: We do not really have any choice but to move forward with this bill.
Mr. Reiher: There is always a choice, but the impact of not correcting the issue identified by the court would be that once the suspension ends and the declaration of invalidity becomes effective, sections 6(1)(a) and 6(1)(c) will not be applicable in British Columbia. That would mean a gap in the registration rules, which would have an impact.
Senator Raine: Is the exploratory process another term for consultation, or is it different from consultation?
Ms. Kustra: It is quite different from consultation because we are not consulting on a legislative amendment. We are not consulting or trying to develop another solution. It is a process about dialogue. It is about bringing together views of people across the country, their thinking and perspective on status membership and registration. It is an opportunity for all organizations and Canada to get a better understanding of issues across the country. At the end of the process, we can take stock of what we have heard and think about possible next steps based on that.
Senator Raine: I understand. It is quite different from consultation because you want decisions to evolve from the process.
Ms. Kustra: Yes, that is correct. The process is not designed as a decision-making process. It is not envisioned that there would be proposals for more legislative amendments or something similar. However, it is an opportunity for everyone to say, ``What do we do with all the information we have gathered? What are the next steps? What did we find? Do we need more legislative amendments? Do we need to consider other options?'' It is a dialogue process. We are not going in with any preconceived ideas as to the outcome.
Senator Raine: In the McIvor v. Canada case, the individual to whom the double-mother rule applied had enhanced status in relationship to Sharon McIvor's son. How is this being addressed in the legislation?
Mr. Reiher: Yes, this is correct. The British Columbia Court of Appeal looked at the situation of the male line and the female line in the case of two generations of mixed marriages and came to the view that there were distinctions between the male and female line after 1985. The Court of Appeal was prepared to accept that distinctions were justified to the extent that they were flowing from the old regime, but the court said that with respect to the persons previously effected by the double-mother rule, the changes in 1985 did not simply preserve existing rights but actually enhanced the ability of the grandfather to transmit status because the persons previously affected by the double-mother rule would lose status at 21 under the old rules.
After the change in 1985, the status would be kept for life, which is an enhancement. That was not preserving existing rights, which means that the comparison then resulted in a new inequality. The change in 1985 created a new inequality that was not just flowing from the old regime. That is what the court found not appropriate, and this is what we are correcting now.
As described by Mr. Gray, on the female line, a woman who married an Indian man before 1985 and then lost status, the child of that woman, after 1985, was registered under section 6(2). When compared to the child of the brother of that woman, there was a distinction, because the child of the brother is registered under section 6(1). That is what is being corrected. The child of the sister, after Bill C-3 is enforced, will be registered under section 6(1). That is how the bill addresses the McIvor v. Canada decision.
Senator Sibbeston: When Ms. Kustra said that there was no budget and there were just sort of exploratory discussions, I could not help but think this is the way INAC works. It is a lifelong process for you people. It is not a situation where you are looking for a decision in one to five years.
I challenge you and say that you are just now taking a path that INAC has always taken with matters such as this. This decision here is a result of changes made in 1985, 25 years ago. Finally, it took a court decision for INAC to act, and that is just the way I think your world functions. Can you comment on that and confirm what I say?
Ms. Kustra: What I would say in response to that is that this really is the first time we have had an opportunity to engage with the national organizations right across the country to discuss these issues of status membership and registration. Until now, we have had the 1985 amendment. You are right; no discussion has taken place since that time of whether or not the provisions of the Indian Act are appropriate or adequate, or what First Nations people across the country think of those provisions.
Certainly, the thinking in First Nations communities has evolved over the period from 1985 as well, and First Nations governments are quite interested in taking on some of the responsibilities that are currently exercised by the Government of Canada. This really is the first opportunity to have a comprehensive discussion about these issues, and I think the First Nations leaders across the country are looking forward to having that discussion.
Senator Sibbeston: Have the Native organizations shown any resistance for amendments such as this? It is always an issue of adding more people to their band lists and then having to provide more services to them. Have you seen Indian people across the country resisting changes such as this, which would really add more members and, therefore, more responsibility to the various bands?
Mr. Gray: They are asking those questions, but I would not go so far as to say that there is resistance. People have diverse views. Many individuals and organizations see this as necessary, again in the context of gender equality. Certainly, people are interested in the implications. As I mentioned earlier, we are engaged in a process to determine what those costs would be.
Senator Sibbeston: My final question has to do with clause 9 of the bill, which provides for no liability on the part of the federal government or bands. Why is this clause necessary? In the amendments that were made in prior years, for instance, amendments made in 1985, was there such a clause providing for exemption of reliability on the Crown, and even the bands, or is this a new clause that is set out for certainty so that the federal government is not in any way deemed to be liable for any money or damages resulting from this state that this amendment is trying to correct?
Mr. Reiher: Thank you, senator, for this important question.
Mr. Chair, here is some information for the committee. Usually when a court comes to the view that legislation is contrary to the Charter — the impact of this is based on section 52 of the Constitution Act, 1982 — the legislation becomes inoperative and usually no damages are awarded with such a declaration. Such a declaration does not allow benefits to be received that might have been allowed if individuals were entitled under the previous legislation.
Bill C-3, for this reason, as usual, grants a new entitlement for the future. Therefore, clause 9 is there for greater certainty, to make it clear for everyone that no damages may be awarded for people who gain a new entitlement and who were not previously entitled. As to whether there was such a clause in the past, indeed, within Bill C-31, in 1985, there was section 23, if I recall correctly, of the amending legislation, which was to the same effect.
Senator Raine: The activities that you talk about in your paper, Ms. Kustra, are basically meetings, surveys, town halls or different ways of gathering information from people. From my experience, I can see a great deal of difference in the governance and makeup of the different bands and First Nations across the country in how they operate themselves. Some of them have control over their band lists and some of them do not.
There is no way that one pattern or one definition of citizenship, membership and registry will fit with all the different bands across Canada. You are not expecting that, are you?
Ms. Kustra: I think there are probably as many different views on those issues as there are people in this room and people across the country.
We are expecting a wide variety of views and perspectives on all of these issues. Certainly, the First Nations leaders are also expecting a wide variety of issues to arise, even from the people in their communities. The process is about the dialogue and the opportunity to share those views to gain a better understanding, not to try to find a common definition or a common approach across the country. Many of these nations are very independent in their views and the ways in which they operate, as you have indicated.
Senator Raine: Apart from services and entitlements associated with status, there is also the issue of inheritance rights in band membership. A great deal of conflict and hardship may arise even within a family if the non-status child that is being reinstated were to have a new-found claim on family property. Will that issue be addressed in this bill?
Mr. Reiher: If I understand your question properly, the bill will not change the existing rules with respect to division of on-reserve property. The bill will simply grant a new registration entitlement to certain individuals, whom we have described. With respect to membership, the bill relies on the existing rules, which provide two possibilities. First, a band may control its band list. In this situation, the membership code of the band will apply. A newly entitled individual will be added to the Indian registry. With respect to membership in the band, the individual will have to make a request to the band. Depending on the rules of the band, the individual will or will not become a member.
The other possibility, which involves two thirds of the bands in Canada, is that the membership will be dealt with by INAC because these bands have not decided to take control of their band list. In these situations, the membership entitlement flows from the registration entitlement.
However, with respect to the specific example you gave of rights over land on a reserve, the rules will not change under Bill C-3.
Senator Raine: A specific case follows: The sister married a non-status person and lost her status and any potential inheritance of her father's property, which reverted to the band. Does Bill C-3 apply only to future cases and not to a case such as the one I described?
Mr. Reiher: That is correct.
Senator Raine: Thank you.
The Chair: If there is no other business, this concludes our meeting today. I thank the witnesses for appearing before the committee.
Honourable senators, we will go in camera for a couple of minutes to discuss a communications issue.
(The committee continued in camera.)