Proceedings of the Standing Senate Committee on
Human Rights
Issue 7 - Evidence
OTTAWA, Monday, November 29, 2010
The Standing Senate Committee on Human Rights, to which was referred Bill C-3, 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), met this day at 4:07 p.m. to give consideration to the bill; and to examine and report on the role that the Government of Canada may play in supporting the promotion and protection of women's rights in Afghanistan after Canada has ended its combat operations in 2011.
Senator Nancy Ruth (Chair) in the chair.
[English]
The Chair: Today we begin a study on Bill C-3, An Act to promote gender equality in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs). We are delighted to welcome as our first witness today the Minister of Indian Affairs, the Honourable John Duncan.
Hon. John Duncan, P.C., M.P., Minister of Indian Affairs and Northern Development, Federal Interlocutor for Métis and Non-Status Indians and Minister of the Canadian Northern Economic Development Agency: As Senator Andreychuk pointed out, this is my maiden voyage as minister before the Senate. It is certainly not my first time before a Senate committee, however. I have done that a few times in my career. It is good to be with friends, including someone I spent many years with on the Fisheries Committee in the past, Senator Baker. We did not have any fun at all, did we?
Senator Baker: No. I was the chair.
Mr. Duncan: Senator Baker was good at delegating, I can tell you that much, especially when it came to the West Coast.
I think it is rather appropriate, as a minister from British Columbia, that we are dealing with legislation that is created as a consequence of legal actions in that province.
[Translation]
Madam Chair, thank you for inviting me to appear before the Committee to discuss Bill C-3, the gender equity in Indian Registration Act. I appreciate the Committee's willingness to review the proposed legislation swiftly and thoroughly.
[English]
Before I begin my remarks, I would like to introduce the officials who are with me today: Roy Gray, Director of Special Legislative Initiative in the Resolution and Individual Affairs Sector; and Brenda Kustra, Director General of the Governance Branch, both from Indian and Northern Affairs Canada, INAC. Also with me is Martin Reiher, Senior Counsel with the Department of Justice Canada.
Bill C-3 focuses on two objectives. First, the legislation would eliminate a cause of gender discrimination in the Indian Act as identified by the Court of Appeal for British Columbia. Second, it would a meet the deadline imposed upon Parliament in the court's ruling. Last year the Court of Appeal for British Columbia ruled that two paragraphs in section 6 of the Indian Act discriminate between men and women with respect to registration as an Indian, and, therefore, violate the equality provision of the Canadian Charter of Rights and Freedoms.
Rather than have its decision take effect right away, the court suspended the effects of its declaration for 12 months, giving Parliament until April 6, 2010, to amend certain registration provisions of the Indian Act. Bill C-3 was introduced on March 11, 2010, but it was soon apparent that the passage of the bill would not be possible before the deadline, and our government sought two extensions — the first until July 5, 2010 and the second until January 31, 2011.
This means that we have little time for Bill C-3 to be passed by Parliament if we are to meet this deadline. When the court granted the second extension in July, it hinted that it may not view a further application for an extension in the same way. The court stated at that time:
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.
Madam Chair, if we fail to meet this deadline, a key section of the Indian Act could become invalid and create a legislative gap that would affect residents of British Columbia and those affiliated with British Columbia First Nations.
Bill C-3 proposes to avert these consequences by amending certain registration provisions of the Indian Act. Bill C-3 addresses the root of the problem by providing a first-time entitlement to registration to eligible grandchildren of women who lost status as a result of marrying non-Indian men.
During report stage in the other place, two motions were adopted to amend Bill C-3. The first amendment restored clause 9, which had been defeated during committee study. This clause would prohibit the courts from ordering compensation, damages or indemnity for decisions made in good faith by government officials or by First Nation governments based on the legislation in place before the amendments to the Indian Act contained in Bill C-3 take effect.
Clause 9 protects not only the Crown but also First Nation governments who made decisions with respect to programs and services that they offer to their members. We believe this clause is an important provision because it clarifies the law and avoids raising expectations that past decisions will be reopened or past settlements renegotiated.
The second amendment improved the wording of clause 3.1 to reflect recommendations of the legislative drafters. This clause, which was added at committee, requires me, as minister, to report to Parliament on the implementation of the bill within two years of the bill coming into force. The changes clarify that it is the Minister of Indian Affairs and Northern Development who would be responsible for reporting to Parliament.
[Translation]
The bill before you is narrowly focused to respond to the court's decision. At the same time, I am aware that there are a number of broader issues related to the question of registration and membership.
[English]
Last year, following a thorough review and analysis of the court's decision, officials from Indian and Northern Affairs Canada held technical briefings with representatives of five national Aboriginal organizations to seek their input on the government's preferred approach to moving forward with legislative amendments. Following those briefings, 15 engagement sessions were held throughout the country to present the government's proposed response to the McIvor v. Canada decision and to solicit feedback.
Hundreds of participants came to the engagement sessions, and many written submissions were received. Several common themes quickly emerged, with many comments pertaining to the broader issues of registration, membership and citizenship.
I appreciate the fact that these broader issues are complex and that there is a diversity of views among First Nations. However, given the short time frame and in the interest of avoiding a legislative void in British Columbia, Bill C-3 proposes changes that directly respond to the Court of Appeal for British Columbia decision.
[Translation]
Issues surrounding registration, membership and citizenship are complex and as such, broader reform on these matters cannot be achieved overnight or in isolation.
[English]
For these reasons, the department has invited and received proposals from national Aboriginal organizations in preparation for the possible launch of a separate exploratory process on these broader issues. This will move forward if Bill C-3 is passed. These broader issues will be explored through a joint process to be developed in conjunction with the national Aboriginal organizations and the participation of First Nation groups and individuals across the country.
However, as important as this work is, it cannot take precedence over Bill C-3. We must not lose sight of the fact that the proposed legislation before us responds to a specific court ruling and prescribed deadline. As the court reminded us in July, there should be no undue delay in passing Bill C-3 because the bill ``deals with the specific issues that this court has identified as violating the Charter.''
I believe that access to and protection of human rights should apply equally to all Canadians — Aboriginal and non-Aboriginal.
That is why this government introduced Bill C-21, An Act to amend the Human Rights Act, which extends fundamental human rights protections to all First Nation communities.
That is also why we introduced Bill S-4, the family homes on reserves and matrimonial interests or rights act. I would like to take this opportunity to thank you, Madam Chair, and members of this committee for your dedication in reviewing Bill S-4 and the amendments adopted by this committee, which further strengthened the bill. Bill S-4 provides a process for First Nations to enact their own matrimonial real property laws that reflect the cultural and social traditions of their communities. I look forward to its passage so the important objectives can be realized.
[Translation]
And that is why we are working on Bill C-3 to comply with the Court's decision regarding gender inequality under the Indian Act.
[English]
Madam Chair, Bill C-3 represents a progressive step to a country committed to the ideals of justice and equality. I strongly encourage all members of this committee to support Bill C-3.
Senator Baker: First, I would like to welcome the minister here to the Senate committee and note that I spent many years with him in the House of Commons and that he has made a great contribution to this country over the years. He has dedicated himself to whatever task, as I recall, although he belongs to a different political party than I do, but I have to make note of that, first.
My first question will be to the minister, and then I would like to question the Department of Justice briefly.
Mr. Minister, you are saying that we are under the gun here, and we should try to pass this as quickly as possible. You are suggesting no amendments be made to the bill, and you are further suggesting that the bill addresses only what the Court of Appeal of British Columbia said in its decision on McIvor v. Canada. Is that correct?
Mr. Duncan: First, I will correct you. We belong to the same party; it is called the coastal party.
Senator Baker: We are on the Fisheries Committee together.
Mr. Duncan: The decision was a narrowly defined decision. It dealt with the grandchildren of mothers who had married out, and the legislation addresses that issue. It became clear in all of our engagements before the bill was tabled and after the bill was tabled that there is a huge area of discourse dealing with who controls membership, citizenship and so on. The points of view are divergent quite often.
To deal with the court's concerns, we are left with no choice but to address the court decision quite narrowly, and then make a commitment. We have made a commitment to engage in an exploratory process post-Royal Assent on the bill, if we can get there. With five different national Aboriginal organizations, we have committed to being a party to that. The department will provide the appropriate funding for the process. All of the people who were engaged through the process of Bill C-3 are aware of that process, and many people are gearing up for it.
Senator Baker: Mr. Minister, I do not think you could find, probably, a group who represents the interests of Aboriginal women who would agree with the confined nature of this legislation. I imagine all of the groups who made representation to you opted for a broader bill that would encompass greater rights for women. Is that correct?
Mr. Duncan: That might be a stretch. The divergence of opinion was maybe the greatest on why membership is defined by the government as opposed to First Nations.
Senator Baker: The judgment of the Supreme Court of British Columbia in the first instance ruled in a far broader manner. If that ruling had been taken on its substance and on its face, I do not think you would have the criticism of the bill that you have today. The Attorney General appealed that decision to the Court of Appeal of British Columbia and argued for a much different interpretation than the judge had made at the Supreme Court of British Columbia level.
Now, here is the problem, minister: Do you believe that the bill can be amended to encompass the broader aspect that the first judge in the first instance had suggested and that many of the groups today will be suggesting that to this committee? Would that be out of order in that it would be beyond the scope of the bill? That is a very important question. What is your opinion on that?
Mr. Duncan: I concur that I believe it would be beyond the scope of this bill, well and truly beyond the scope of this bill. That bill would be very difficult to craft.
Senator Baker: My question is to the Department of Justice. How long did it take for Ms. McIvor to go through the procedure that she went through to obtain a judgment from the Court of Appeal of British Columbia? Is it correct that an appeal was sought to the Supreme Court of Canada but was turned down? I want you to reference that in the answer. How many years did it take her to go through the process, being opposed all the time by the Attorney General?
Martin Reiher, Senior Counsel, Justice Canada: Ms. McIvor indeed applied to be registered under the Indian register soon after the coming into force of the amendments of 1985. It took, I believe, two years for the registrar to provide an initial answer. She then protested the decision of the registrar in 1989. At the same time, Ms. McIvor challenged the validity of the Indian Act, and procedural matters were complex. In particular, it was the Attorney General of Canada's position that Charter issues could not be dealt with within a protest under the Indian Act. Therefore, two separate proceedings had to be worked on at the same time. It took time to work on it with Ms. McIvor's counsel.
Then the judicial proceedings were kept in abeyance for a while. I believe there were some funding issues on the part of the plaintiffs, so it took time before the matter could proceed before the court. Also the large amount of document collection to defend the validity of the Indian Act took time.
As to how long it took, the first time she turned to the court for a remedy was in 1989.
Senator Baker: It took twenty years.
Mr. Reiher: It took twenty years.
Senator Baker: I know the chair wants to interject and stop me from asking questions, but I am questioning you on a subject that is dear to the chair's heart.
The sober second thought here in the Senate is that some of us feel that all such questions should be adjudicated as quickly as possible on their merits. The actions of the Attorney General in consistently objecting to and representing the other side, so to speak, in such a partisan manner should perhaps be looked at in the future to give some semblance of deciding these questions on their merits.
I have looked up the procedure that Ms. McIvor went through in this case, and she was faced with motions to strike and motions to change pleadings, and those motions mostly originated from the Attorney General. The year 2006 was filled with these motions from the defendant, the Attorney General.
We have a justice here on this committee, and she can attest to the fact that in criminal law, there is a code with the Department of Justice that each Crown attorney would be a Minister of Justice. However, but that does not appear to be the case in matters such as we have before us.
We pass a piece of legislation, and it takes 20 years to get a court judgment on something all because the Attorney General is not interested in the beginning in deciding the matter on its merits but instead takes a partisan view, as they are the ones under attack. Do you have any comment on that? Is there a code of conduct for Crowns in your department as there is for Crowns who prosecute criminally?
Mr. Reiher: I share your views about dealing with judicial matters in a non-partisan way; that is for sure. The matters that had to be dealt with were complex matters. The Attorney General of Canada must defend the interest of the Crown, and that is what was attempted, I am sure.
This being said, you asked whether there is a code of conduct. All lawyers are officers of justice and have to act in the interest of justice. I believe this principle is considered important by each lawyer in the Department of Justice. The approach in litigation has evolved in the last few years, and I believe that the approach nowadays is more open, perhaps, than it used to be.
Senator Hubley: Thank you for your presence here today, minister. I apologize for being late.
I have a question on the engagement sessions. These sessions took place following the technical briefings that were carried out, as you noted, with five national Aboriginal organizations. How might you respond to the view expressed by First Nations people that engagement is not a substitute for meaningful consultation? Is there a reason why the department did not undertake a more comprehensive consultation process in relation to its proposed amendments on a matter of great significance to First Nations peoples? Could you provide an explanation of what is meant by an engagement session as opposed to other types of communication?
Mr. Duncan: The technical and legal difference is considerable. Because we were responding to a court decision and wanted to respond in a timely way, I think the engagement was seen as an appropriate response, a less complicated, quicker and more collaborative way to do things. By talking about engagement and an exploratory process, I think we have covered the bases quite well.
The government will not be the one running the exploratory process, which is post-adoption of the legislation; the national Aboriginal organizations will be running the process. We will be an interested observer and the one receiving their input. Hopefully, this will work in a proactive way.
This question of registration is probably the part of the Indian Act that is the most difficult to deal with. If you look at the 20-some self-government comprehensive agreements across the country, they tend to still rely on the registration provisions under the Indian Act. Everything else in the act can be gone except for the registration provisions. This is a complex area, and we felt we had to deal with the legal context that was presented to us by the court.
I do not know if there is anything Ms. Kustra or Mr. Gray would like to add.
Roy Gray, Director, Resolution and Individual Affairs Sector, Indian and Northern Affairs Canada: Perhaps I could add something on the engagement process.
Part of the question related to what the engagement process looked like. I can provide some information on that. A discussion paper was developed, and this was all in the context of the understanding that this process was appropriate to what was being done, which was, as the minister said, to develop legislation in response to the court decision. A paper was developed that set out in broad terms what the government's thinking was at that time as to how to respond to the decision, and that paper was the basis for these sessions.
Getting back to the question, the purpose of the sessions was to provide information on the government's thinking and also to elicit feedback. This was done within a relatively short time frame, the driver again being the time-limited suspension of the court decision.
We did get quite a bit of feedback, both at the sessions across the country and in correspondence. However, by and large, as has been referenced, the feedback really did not relate to what was being proposed in terms of a response to the court action but, rather, to the broader issues that would form the subject of the exploratory process.
Senator Hubley: Where did the 15 engagement sessions that you held take place?
Mr. Gray: They took place right across the country. A couple of sessions happened in Ottawa with the Congress of Aboriginal Peoples and the Native Women's Association of Canada. Other than that, we worked with regional First Nation organizations.
Senator Hubley: Was that in every province?
Mr. Gray: That was not in every province but in every region. I say that because we had a meeting with the Atlantic Policy Congress of First Nations Chiefs Secretariat in Nova Scotia. Yes, in every region certainly.
Mr. Duncan: I do have a list here of the 15 sessions, if you are interested.
Senator Hubley: I am interested. Thank you.
Mr. Duncan: The following sessions took place in 2009: September 2, Assembly of Treaty Chiefs Edmonton, Alberta; September 10, Gwich'in Tribal Council, Inuvik, Northwest Territories; September 12, Congress of Aboriginal Peoples Annual General Assembly, Ottawa, Ontario; September 24, First Nations Summit, North Vancouver, British Columbia; September 25, Native Women's Association of Canada, Ottawa — at their 35th annual AGM; October 14, Atlantic Policy Congress of First Nations Chiefs Secretariat, Dartmouth, Nova Scotia; October 18, Quebec Native Women Inc., Montreal, Quebec — at their AGM; October 22, Dene Leadership Meeting, Dettah, Northwest Territories; October 24, Ontario Native Women's Association, Thunder Bay; October 26, Union of British Columbia Indian Chiefs, Vancouver.
The Chair: Minister, if I may interrupt, it is at tab 3 of the briefing book.
Mr. Duncan: It is tab 7 in my book.
Senator Hubley: That is fine; thank you.
Mr. Duncan: I have only four more to do.
Senator Hubley: Yes, I was counting.
The Chair: We believe that it is tab 3 in our books; it is all there.
Mr. Duncan: It is all there. I know what I have, but I did not know what you have.
The Chair: Is there anything else, Senator Hubley?
Senator Hubley: Thank you, no, Madam Chair.
Senator Kochhar: Thank you, minister, for appearing before the committee. As I understand, we are trying to argue that Bill C-3 does not go far enough and that it is too narrow in scope. Is it because of the time constraint that we want to pass this bill quickly to ensure that we meet the deadline? If we do not pass this bill, what will happen? What kind of hardship will it bring? How many will be affected by that? Can another bill be introduced to expand the scope? Can we let this bill pass so we can deal with the court case? Can you expand on that a little, please?
Mr. Duncan: Yes. We have been given three extensions, and the court has basically lost its patience. If we do not get it through by January 31, 2011, there will be a vacuum in the law in British Columbia. Section 6 of the Indian Act is declared null and void. We cannot register new entrants in the province of British Columbia. In the course of one year, we normally register 2,500 to 3,000 people in B.C. New entrants would be not be able to register.
Theoretically, those who are registered in B.C. could be determined not to be registered, or pre-existing. As a matter of policy, I do not think the department would do that. However, that concern has been expressed to me by some First Nations lawyers. Everyone would be null and void if the government were to follow the letter of the law in that case. I do not see that as realistic. It will not happen. It will not be the end of the world if there is no registration by January 31, but it will create a significant vacuum that would definitely result in some hardship for some people.
Senator Andreychuk: I have two areas to explore. The first is the register that was created that did not take into account equality as we know it under the Charter. In 1985, an attempt was made to rectify this, but it fell short in the eyes of the courts. Is that correct?
Mr. Duncan: Yes, in 1985, Bill C-31 was a very broad-reaching attempt to correct many male-female inequities in the registration provisions in the Indian Act. I forget how many new registrants that brought into the fold. I believe there were about 110,000 new entrants in 1985; at that time, that would have represented a 20 per cent increase. That corrected the status of the children of the women who married out and their children. This takes it one step further and corrects the situation for grandchildren, making it the same whether the man married out or the woman married out. That is an important distinction. My children are called 6(2)s, which refers to section 6(2) of the Indian Act. I believe that Senator Brazeau is a 6(2). Am I correct?
Senator Brazeau: Yes.
Mr. Duncan: If you marry out and have children, it carries on for one generation. Is that correct?
Senator Brazeau: I am sorry; I did not hear the question.
Mr. Duncan: Your child would have status.
Senator Brazeau: If I married out, they would be non-status; but that is not the case.
Mr. Duncan: Right.
Senator Andreychuk: He is assuring his wife.
Mr. Duncan: If your offspring marries out, they have no status.
Senator Baker: They have status to the age of 21 years.
Mr. Duncan: If they marry in, their status is retained. It is quite complicated.
Senator Andreychuk: Basically, with respect to this bill and its purpose, the court said that in the area, where the 1985 act tried to make the changes to make it more equitable, they fell short.
Mr. Duncan: Yes.
Senator Andreychuk: The court indicated that the government must respond, which may or may not be tested in court. The bill before the committee is the government's best effort in meeting the equity changes as directed by the court.
Mr. Duncan: That is correct. I would suspect that if you were to ask our Department of Justice counsel sitting to my left how many cases there are at any one time dealing with registration provisions of the Indian Act, you would hear that it is considerable. Am I correct, Mr. Reiher?
Mr. Reiher: At this time, there are 16 to 18 cases.
Senator Andreychuk: It was not a question of how many but rather what is the intent of Bill C-3. Ms. McIvor went to court and made a case. One judge addressed the issues. The appellate court narrowed it and said, in addressing her specific concern, that the Indian Act amendments in 1985 fell short; so that must be addressed. There are broader issues and different issues. Similar to the matrimonial property act that we dealt with previously, there are concerns about bringing equality to women within the Aboriginal entitlements, opportunities or laws. It varies from place to place and issue to issue, but it also bumps up against the community of interests of Aboriginal people enshrined in the Charter.
Do we have some assurance that the government's current direction is to keep hammering away and going to court piecemeal style to deal with these issues, whether equality or community rights, that are enshrined in section 13, I believe?
Senator Baker: Discrimination is in section 15.
Senator Andreychuk: It is section 15 for Aboriginal people where they have community rights as opposed to individual rights, so we are talking about individual rights versus community rights. We have a whole host of issues, which you pointed out.
Are you saying that if we get past this specific court case, and we address it in Bill C-3, then you are prepared to start a process of engagement to look at all of these other issues of equality that can be quite extensive, but that a negotiated settlement on these is better than individual court cases incrementally year in and year out? Is that why you are doing the larger assessment?
Mr. Duncan: Yes. Negotiating is better than court, any time, and that is why we are doing it. It is also by popular demand to look at the bigger picture because there is recognition that this only solves something very narrow.
Much has happened with our relationship with our Aboriginal people and our First Nations, in particular since 1967 when they were given the franchise. Before that, they could not vote, and we have been trying to reconcile on all kinds of fronts.
If you are not able to complain under the Canadian Human Rights Act, what does that do? If you cannot go there, where do you go? You have to go to the courts.
The fact that the Canadian Human Rights Act will come into play as of July 2011 will make a very positive difference. We hope that that will keep things in that venue more often, as opposed to the courts.
With this exploratory process, we are engaging with the five national Aboriginal organizations that all have a stake in this and the registration provisions in one way or another. We hope they can be a part of the solution. I speculate they will not all agree. There will be some disagreement between their various recommendations as well. Are we a referee, or are we a judge? We are doing our very best to work in partnership, but these will not always be easy decisions.
Senator Andreychuk: The process is somehow to identify these issues in consultation with Aboriginal leaders who also have some responsibility for equality rights of their members. It will not preclude further cases, obviously.
Mr. Duncan: No, I would not think so.
The Chair: In this exploratory process, there may be a variety of opinions, as you say. In the briefing notes that I read, there is no mechanism to indicate when the department will get back to these groups about their proposals. Is there any possibility you could set it up so that you would respond within a four-month period to these groups and their ideas?
Mr. Duncan: Are you talking about the exploratory process?
The Chair: Yes, I am.
Mr. Duncan: The exploratory process will launch immediately, and we cannot predict exactly how long it will take.
The Chair: After they have reported to you, there is no mechanism to indicate when you will respond to them.
Mr. Duncan: That is true.
The Chair: Would you be prepared to make a commitment here to get back to them within, say, four months or six months?
Mr. Duncan: Do you have any advice on that?
Brenda Kustra, Director General, Regional Operations Sector, Indian and Northern Affairs Canada: The exploratory process will be ready to launch, as the minister indicated, once Bill C-3 passes. The national Aboriginal organizations, as well as regional organizations, will undertake a process of dialogue to hear the views of community members, leaders, urban people, youth, women and elders, to collect a very broad range of activities around these issues on membership, registration and citizenship.
The intention is that at the conclusion of this process, a report will articulate the views of the various people who came forward to share their views. There may be recommendations on how to go forward, but that is not necessarily the case. The exploratory process is about gathering the views of people from across the country and then, perhaps, moving to the next step of what we do about it. For example, is it appropriate to think about another piece of legislation or recognition of jurisdiction or talk about what some of the options are?
We do not know whether the reports that the organizations will come back with will have specific recommendations on next steps to the minister and to the government about how to fix the problems. It could be a report merely articulating the views that have been gathered across the country.
As usual, we do try to respond to reports that come in from organizations.
The Chair: Within what time frame do you do that?
Ms. Kustra: It is on a timely basis. We do not have a specific time frame for the various types of work we do with the First Nations and Aboriginal organizations, but we try to do it on a timely basis so that we can move on to the next steps. We do not usually set an arbitrary time frame.
Senator Brazeau: With this piece of legislation, obviously, I understand the urgency and the importance of it. If it does not pass, there will be a vacuum in British Columbia where people will not be able to register. If it does pass, people will still be able to continue to register, and, according to the numbers provided by the department, up to 45,000 people will be eligible to not only regain status but also have the right to be recognized as First Nation people across the country.
I believe we both agree that the Indian Act is a paternalistic piece of legislation, especially when it deals with the status provisions. Without going into a lot of detail, Aboriginal women married non-Aboriginal men and lost their status, yet non-Aboriginal women gained status as Indians. The amendments in 1985 fixed some of the inequalities; this piece of legislation goes another step, and, obviously, amendments were brought in by the former Conservative government and the current one.
Even if this bill passes, there will still be some gender inequalities based on the status provisions. Since this bill was introduced in the Senate last week, I have had quite a number of First Nations people who want this legislation passed because they want to be recognized as First Nations people. However, some people will not be affected by this piece of legislation because it does not go far enough.
We talked about the exploratory process that will take place and that has begun to take place with the national Aboriginal organizations. Are you confident that at the end of this exploratory process, you will have enough information on hand to perhaps look at extending or building upon this piece of legislation?
To go one step further, if you are in a position to receive some progressive proposals that make sense, would you be willing to entertain, if it is suggested by those who need to suggest it, having a transition of who should decide who is a status Indian in this country and who is not? As minister, you have the power, which is a great big power, to decide who is a status Indian and who is not. If you hear such proposals, would you be open-minded and willing in the future to talk about the possibility of transferring that power to First Nations people themselves?
Mr. Duncan: Probably the easiest way for me to respond is to say that multiple pieces of legislation that we have enacted remove power from the minister, for example, the First Nations Land Management Act and some electoral provisions.
I detest nothing more than having to overturn an election result. Nothing bothers me more than having to sign normal, everyday land transactions that have to flow through Ottawa. It is quite non-progressive.
Philosophically, for me to commit that I would like nothing better than to remove myself from some of the provisions under registration follows from the direction we have pursued on other matters. The caveat I would have on that, however, is that we probably would not be having any of this discussion if it were not for the fact that status confers certain benefits, such as non-insured health benefits, some post-secondary education benefits, et cetera. There is a cost to government that attaches itself. It is not as easy as the department or me making a decision. These become government decisions, more process-laden decisions that require much more time.
At some point we have to come up with a way to deal with registration that is practical and pragmatic but that also takes into consideration cost factors. Certainly with the registered population, all the pressures are upward. The demographics are growing quickly. In addition to the provisions from this bill, which will change things considerably, we have the creation of the Qalipu Mi'kmaq First Nation Band in Atlantic Canada, which will probably bring 30,000 new members as well.
That is probably the best answer I can give you right now.
Senator Brazeau: With respect to the exploratory process, are you confident that that will lead to some sort of other engagement or relationship building between First Nations and the Government of Canada? We could talk about all the other issues, but I am dealing specifically with the status provisions of the Indian Act.
Mr. Duncan: We need some fresh thinking on this whole subject, and we will probably hear many points of view. I am sure some very good thoughts and ideas will come out of the process.
Not as much debate and discourse has taken place on this area of the Indian Act as should have. We now have experience with some of the self-government agreements in the country, where Aboriginal peoples control their membership and citizenship. The Indian Act still controls registration, but registration does not affect them from the standpoint that they are not band members unless they decide that they are.
The Chair: Mr. Minister, thank you very much. That is the end of this section.
Welcome, everyone. For our wonderful television viewers, we are in our last meeting of examining and reporting on the role that the Government of Canada may and can play in supporting the promotion and protection of women's rights in Afghanistan after Canada has ended its combat operations in 2011. We have witnesses from three areas afternoon: Canadian International Development Agency, CIDA; the Royal Canadian Mounted Police, RCMP; and Foreign Affairs and International Trade Canada, DFAIT.
Gordon Venner, Assistant Deputy Minister, Afghanistan, Middle East and Maghreb, Foreign Affairs and International Trade Canada: I should say at the outset that I have been responsible for Afghanistan for about seven weeks. I know that some members of the committee have been working on Afghanistan issues for a decade, so I do not feel much like an expert witness. However, I can provide you with some information on the programming. I have with me my colleague, Adrian Norfolk, who has experience directly in the field in Afghanistan and may be able to fill in the areas where I am a little fuzzy. I will make a short statement, after which Ms. Ducros may comment. As well, we have Assistant Commissioner Graham Muir from the RCMP and Constable Marie-Josée Fournier from the Toronto Police Service, who have provided service in Afghanistan.
I thank you very much for the opportunity to speak to this. As this committee knows well, Afghan women and girls face tremendous challenges under the Taliban regime. They face strict laws that violate their basic human rights. Today, women and girls continue to suffer from discrimination, violence and poverty in their homes and in their communities. Ironically, they continue to suffer from an inability to access the very institutions that were set up to help protect their rights.
Nevertheless, with support from Canada and some of our international partners, we have seen some progress toward measures to protect women's rights in Afghanistan. It is a core element of our engagement in Afghanistan to do more in this area. Between what I can tell you about DFAIT's programming and what Ms. Ducros can tell you about CIDA's programming, you will gain a sense of the total picture.
With respect to DFAIT programming, Canada reinforces human rights principles in the training and mentoring of the Afghan National Security Forces and corrections officials. In Kabul, civilian police officers are provided mentorship to the gender and human rights unit in the Ministry of the Interior and trained Afghan National Police officers in the role of the police officer and human rights. In Kandahar, Canadian civilian police officers have developed and implemented a course in security awareness for female officers of Afghan National Police. The course provides the female officers with the necessary skills to protect themselves while carrying out their duties.
Another area of note is our support to the justice sector and justice sector reform to strengthen the Afghan justice system to promote and protect human rights. We have employed a legislative drafting expert who specializes in women's rights under Islamic law to help build capacity in the Afghan Ministry of Justice. We are the largest contributor to the Afghan Ministry of Justice's recently opened human rights support unit, which is responsible for enhancing the Afghan government's capacity to integrate human rights across its work. We have also funded training for justice officials in Kandahar on women's rights under Islamic law and violence against women.
DFAIT also does considerable advocacy work in this area. Thanks in part to Canada and the international community's advocacy and diplomacy engagement, progress has been made by and for Afghan women since the fall of the Taliban. Afghanistan has established a legislative framework to protect women's rights. Its constitution, adopted in 2004, promises equal rights for men and women before the law. It has ratified international human rights treaties, such as the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW. As well, it has made specific amendments to deliver results for women.
The Chair: We do not have your text in front of us, so please speak a little more slowly.
Mr. Venner: Of course, I will slow down.
In July 2009, President Karzai signed the Elimination of Violence Against Women Act, which was another step forward for women's rights in Afghanistan. Since the law came into force, we have urged the Afghan government to take concrete steps toward its implementation. We welcomed the Afghan government's commitment to do so at the Kabul conference in July. The true test of the Afghan government's new laws to protect human rights will be the manner in which they are interpreted by Afghan courts, particularly in their translation into practical steps forward for women's rights. We regularly advocate with our Afghan counterparts on the importance of ensuring that Afghan laws are drafted and implemented in a manner that is consistent with the Afghan constitution and Afghanistan's international legal obligations.
I know that the members of this committee are very familiar with some of the challenges that we have faced. In March 2009, for example, the Shia Personal Status Law was passed by presidential decree. That law contains several provisions violating Afghanistan's international human rights obligations. However, Canada worked with Afghan civil society groups and our international partners to raise concerns with the law on numerous occasions up to the highest levels of the Afghan government. The work that Afghan civil society did to amend that law marked an important step for developing public debate in Afghanistan. The efforts ultimately led the Afghan government to revise the law, and it was amended in July 2009. Canada and the international community noted that the revised law addressed our most serious concerns. Afghan civil society and human rights organizations also responded positively to the amended language.
Earlier this year, Canada and its international partners learned that an amnesty law was put into force by the Afghan government in November 2008 but made public only in late 2009. Human rights groups have raised concerns about that law, and Canada has raised its concerns about the amnesty law at multiple levels of the government in Afghanistan.
As these cases illustrate, Afghanistan has a sensitive and unpredictable political environment, but we have learned much from our experiences to date. We have learned that no one can be more credible and effective in lobbying for the rights of Afghans than Afghans themselves. Afghan women leaders have demonstrated tirelessly their resilience in the face of great challenges and risks to themselves and their families. Canada's goal is to support and strengthen Afghans' ability to advocate for their rights and to hold their government accountable.
In that regard, we work closely with institutions and civil rights groups committed to promoting human rights in Afghanistan. Canadian officials meet regularly with Afghan leaders and women's groups, such as the Afghanistan Independent Human Rights Commission, AIHRC; and the Afghan Women's Network. This past year, this included discussions on the Shia Personal Status Law, the Elimination of Violence Against Women Act, the subject of reconciliation and the need for greater female representation in national conferences and international fora.
We have seen women's rights groups become increasingly mobilized; and we have seen advancements made on human rights, in particular the rights of women and minorities that must be maintained and respected through any reconciliation process. At the Kabul conference in July, the Minister of Foreign Affairs and International Trade stressed that reconciliation and reintegration must be consistent with Canada's international legal obligations.
Looking forward, Canada's engagement in Afghanistan will transition in 2011 to a non-combat role. Our future programming will build on our value-added, while reflecting Afghanistan's needs. Women and girls have a vital role to play in bringing peace and stability to their country. Attention to the importance of this role will remain at the forefront of our planning for our post-2011 engagement. Advancing security, the rule of law and human rights will be a key area of focus building on our reputation as a respected partner in these areas. This means continuing to look for opportunities to partner with Afghan institutions and civil society groups.
In closing, the change in Afghanistan is incremental. Afghan women and continue to be important partners as catalysts and leaders in our efforts to promote human rights. With support from the international community, we are convinced that Afghan women leaders and groups can accomplish great strides. I thank you for your attention. I will ask my colleagues from CIDA to follow up. I will be prepared to take any questions later.
The Chair: I will ask senators to jot down questions. We will hear from everyone, and then come back to questions.
This committee has just finished a study on the United Nations Security Council Resolution 1325. I am concerned that you did not mention it in your statement. We will want to know what the police, CIDA and others are doing to implement it in both Canada and other places.
Francoise Ducros, Vice-President, Afghanistan Task Force, Canadian International Development Agency: I am pleased to be here to provide information on CIDA's experience with programming that supports the rights of women and girls in Afghanistan and some of the lessons we have drawn from this experience. I am also pleased to have with me James Melanson who has returned recently to take up his position here after having been the director of development in Kandahar.
Women in Afghanistan continue to face the hardships that my colleague outlined, but we cannot overlook the progress that women have made and their commitment to participating fully in their society. CIDA has made a contribution to this process by working at several levels.
First, CIDA works directly with women, their families and their communities, to improve their lives in very concrete and sustainable ways. Our contribution to enhancing access to quality education, particularly targeted at girls, is one example. Not only is education a human right, it is an important enabler of other human rights, since it supports girls in developing the skills they need to participate fully in their societies. We are a lead donor of the Education Quality Improvement Program, EQUIP, a national program that supports the ministry of education to promote education for girls by prioritizing female teachers and improving the overall delivery of quality education services.
Where there are barriers to participation in formal education, we support community-based education, which has proved an effective bridge to the formal system. In this way, we have reached over 135,000 students, 80 per cent of them girls.
[Translation]
Secondly, the agency recognizes the importance of support for the leadership of Afghan women to advance their own interests. Enhancing women's participation in elections has therefore been an area of focus within our support to national democratic processes in Afghanistan. CIDA-funded projects have reached at least 70 per cent of all female candidates for the provincial Council elections in 2009 and 64 per cent of all female candidates for the Parliamentary elections that took place this September.
Through these projects, women leaders have been provided with complete assistance in the form of intensive campaign training for provincial council elections and Parliamentary elections, establishing objectives, targeting electors, drafting of messages, the art of public speaking, establishing linkages with communities, preparing budgets, fundraising and planning an electoral campaign. Those leaders have also been provided with resources such as posters and business cards, networking opportunities and media outreach.
[English]
Finally, we recognize the importance of making institutional investments that help to strengthen the framework within which human rights, including the rights of women, can be advanced by Afghanistan itself.
Notable amongst these initiatives is CIDA's support to the Afghanistan Independent Human Rights Commission. Between 2007 and 2010, we provided $7 million to enable the AIHRC to implement its three-year action plan, making Canada the lead donor to this important Afghan institution.
There is much to learn from our experience in working in challenging contexts such as Afghanistan. By forging relationships with our partners based on common interests and trust, we have often been able to work collaboratively on sensitive issues such as those related to family and to the position of women and girls in society.
In Kandahar, in particular, we have adopted a number of strategies in response to the harsh realities facing women. We have adopted flexible work arrangements for our local female professional staff to reduce the threat that might result from their association with the Provincial Reconstruction Team. We have made creative use of the Kandahar Local Initiatives Program to provide low-profile support to local organizations carrying out work in sensitive areas, such as the training of Kandahari women on human rights.
[Translation]
Women leaders in Kandahar are often victims of threats or violence and always risk being killed. The Agency has implemented a number of strategies to face that reality. For example, we have implemented flexible work schedules for locally hired women employees in order to reduce the threats they might face because of their work with the reconstruction team.
Furthermore, the agency has made creative use of the Local Initiatives Program in Kandahar to provide discreet support to organizations dealing with projects of a sensitive nature such as training women on human rights. In the province of Kandahar, we have also found targeted methods to help women at home, namely in the fields of gardening, poultry raising and professional training.
[English]
I am happy to answer any questions on any of the programming we have and to move to a more informal setting to address the particular issues.
The Chair: Would your colleague wish to say something at this time?
James Melanson, Director General, Afghanistan Task Force, Canadian International Development Agency: I can answer questions when we get to that part.
Assistant Commissioner Graham Muir, Canadian Police Commander, Afghanistan, June 2009-June 2010, Royal Canadian Mounted Police: It is a pleasure for me to be here with you this evening and to talk about my recent experience as the first Canadian police commander in Afghanistan. I was there from June 2009 until June 2010. I am here to explain to you the role of the Canadian police in supporting and promoting women's rights in Afghanistan.
As already noted, I have here with me today, to bring her personal perspective, Constable Marie-Josée Fournier, from the Toronto Police Service, who served as part of my rotation in Afghanistan. Constable Fournier worked as one of the gender advisers on the European Union Police Mission in Afghanistan, EUPOL Afghanistan, in Kabul.
Let me begin by saying that Canada's decision to commit Canadian Forces military personnel in a training role beyond 2011 is welcome news to those of us representing the civilian police component. The presence of upward of 1,000 Canadian Forces trainers on the ground will certainly enable our civilian police cadre to have a greater, more enduring influence and impact on Afghan security forces and, of course, the police in particular.
The Canadian police mandate in Afghanistan is to assist specifically in the building of institutional capacity of the Afghan National Police, ANP. We have currently upward of 50 Canadian police officers from the RCMP, and other services representing Canada, involved in Canadian- and U.S.-led operations and internationally led operations, primarily, for us, in Kabul and Kandahar.
We are there and mandated to act as trainers, coaches and mentors, specifically focusing on leadership learning and advanced vocational skills for the ANP.
We currently have four female police officers serving in Afghanistan. The first two, including Constable Fournier, deployed in November of 2009 and have only recently returned home. Despite our modest contribution in numbers, our policewomen have been influence brokers, role models and exemplars, showing the Afghan National Police and the citizens of Afghanistan that women can and do play a critical role in policing as a public service. It is also important to underscore and understand the stark realities faced by Afghan national policewomen in the field.
Taking Kandahar City as an example, a city at or about the same size as the greater Ottawa area, comprised of a police corps of upward of 2,500, there are only 18 Afghan national policewomen in that urban area. All, by our standards, comparatively marginalized and poorly trained.
Many of them work at more than one job to support their families, and policing is just one occupation for them. Those who wish to become police officers often face great resistance from their communities and their families. They put their lives at risk to come to work in the morning, and, as we know, they often have to resort effectively to covering their uniforms with their outer robes or their burkas in order to travel safely to and from their places of work.
In addition to being segregated from male counterparts on the job, they really do have very little support from what is a male-dominated command structure. That said, there are several regional training facilities that have begun or will soon begin to host training for female Afghan National Police. It is my understanding that these facilities will also be used to host coed training to encourage better integration of male and female police officers.
While our civilian policewomen only began their participation in Afghanistan this past year, they are, in my view, casting a long shadow. They do bring influence under admittedly very difficult and adverse circumstances.
As an example, as referenced by my colleague, Mr. Venner, our first policewomen on the ground worked diligently with their Afghan government counterparts, as well as with Canadian and international partners, such as the Norwegian police, to provide a security self-awareness course to female Afghan police officers. Constable Fournier was part of that.
It took three months for their efforts to bear fruit in what was seemingly a straightforward project, and required the intervention and support of one of the very few Afghan National Police general officers to make that project successful.
The continued and increased participation of Canadian civilian policewomen at the front line and at senior levels is certainly important to the long-term success of our Canadian police mission. Likewise, the continued presence of Canadian policemen as well as policewomen is important as they demonstrate how men and women can work together and respectfully and positively support each other. There are more enlightened Afghan men and senior officers in the police than one might imagine who do embrace women as part of the team. We need to celebrate their presence and do more to have more of them in the future as well.
Back in Canada, we have our own challenges in selecting and deploying female candidates in sufficient numbers to Afghanistan as only one of several international peace support missions. That is not our challenge alone. Within the United Nations' ongoing missions, females make up about 8 per cent of police personnel. This is an area that the UN has challenged contributing nations, including Canada, to address.
In my capacity as the Canadian police commander, I was fortunate to hold a position of influence, as my successor does today in Kabul, putting me in contact with other executive-level actors from our government, the government of Afghanistan, and the international community, NATO in particular.
I would assert that I was in good company as a senior Canadian. I would bear reference in particular to the presence of Ms. Tonita Murray, the former director of our Canadian police college, who has worked there diligently for upward of six years now. She has been instrumental in her post as a senior policy and gender advisor directly to Afghanistan's minister of the interior and his office with a remit to steward after all policing in Afghanistan.
My colleague Canadian Major-General Michael Ward just turned over to Major-General Stuart Beare, a Canadian major-general who holds the most senior NATO military staff position in Kabul and is directly responsible for national level ANP training curriculum design and program delivery. Of course, there are others.
Together, I believe that we are making a steady effort to move the file forward on protecting and promoting women's rights in Afghanistan, albeit slowly.
For my part, I worked directly with the office of the minister of the interior, the general officers commanding the ANP, NATO military counterparts and our Canadian task force commanders to invoke broad institutional reform under the guise of what was then the Kandahar Model Police Plan. That project is now known as the civilian police justice program that seeks to improve public safety and security through improved institutional capacity of the Afghan National Police focused in Kandahar. It expressly promotes the increased participation of women.
In closing, I would simply like to underscore the important contribution that Canadian police officers, men and women alike, are making to global peace and security. We are proud of our contributions and committed to continuing the deployment of Canadian police to Afghanistan and to other countries in furtherance of better protection and promotion of women's rights.
Thank you for your time, and I will take your questions.
The Chair: As we have only half an hour, I suggest we put all of our questions in, and as they address them, we can ask supplementary questions to develop our concerns. Is there anyone who wishes to start? Senator Ataullahjan?
Senator Ataullahjan: As an ethnic Pashtun woman, I am well aware that often the Pashtun women fall through the cracks. We are aware of how the Pashtun women are treated in Afghanistan.
We want them to have the same basic human rights that all the women in Afghanistan have. However, we have to be realistic that even access to education for Pashtun women is out of their reach. As we all know, most of the Taliban are Pashtun, and that has created many problems for their women. They are mistreated and rarely allowed out of their homes.
What do you think Canada should do to promote the rights of the Pashtun women, as this is a group that tends to be forgotten or rejected? We also have to keep in mind that 65 per cent of the population of Afghanistan is ethnic Pashtun.
The Chair: To DFAIT, broadly speaking, I am so passionate about the United Nations Security Council Resolution 1325, which I know may be a bit esoteric, that I would like to see this enforced through, as you say in your own plan, the whole of government. I want to know specifically the timelines, namely, when and how. I know you will report every year and do all that good stuff. However, what will you be doing that is different from what you are doing now in Afghanistan?
To CIDA, you mentioned the Afghanistan Independent Human Rights Commission. Dr. Sima Semar would like to have at least half a million dollars to develop her women's university. What would I do with that proposal? How do I get it to you, and would you have any interest in it if I were to do so?
Continuing with CIDA, is Canada's aid, generally speaking, to Afghanistan similar to that of other NATO countries? Is there a way you all get together to decide who will do what in which province? How does it work in the global ally picture?
Next is my question to the wonderful police. I am from the Toronto, as is my good friend Senator Kochhar. Gender training is always a little short in all departments, as it is indeed amongst senators. I always reckon we can all polish our shoes a little more on this issue. What is happening in Canada with training constables within Canada before we send them overseas to do that training for other people? How will that change as a result of DFAIT's commitment to hold government to implement United Nations Security Council Resolution 1325, which is on women, peace and security?
Senator Kochhar: I have one short question. How do we engage directly with the civil society? No foreign government can come to Canada and directly engage with civil society. Do we have to go through the Karzai government to become engaged with different spheres for training and so forth? Can we take private projects, like the universities and other civil societies, to build up a hospital or training?
Senator Andreychuk: I have two informational questions. It appeared that our development aid escalated when NATO and our troops were confronted with the fact that to secure an area militarily, some support systems afterward are needed. There has been some talk about the reduced amount of development aid or finances going to Afghanistan. Is that directly tied to the fact that we are leaving Kandahar and leaving a combat role, and, therefore, it was not necessarily development aid in the traditional sense but was the new concept attaching it? I would like to know if that is the case. Is most of our aid and development in the urban areas, namely, Kandahar and Kabul? How far are we into the regions that might be considered non-secure and rural? I would like a breakdown on that.
Mr. Venner, you said that we made gains, and it is undoubtedly true that people who work in the area think we have made gains. The fear is that if there is an exit strategy or a perceived exit strategy of NATO and other international players, it will disintegrate. We know, for example, that in the Balkans, we are there for the long haul; Europe, especially, is there for the long haul. There is a continual consultation, dialogue and discussion around should the security arrangements leave, there is not sufficient take-up institutionally or enough inter-citizen cooperation to sustain peace and security. The development falls away if you do not have the security.
While we have made gains, how assured are you that they are long-lasting gains? Are they long-lasting gains in the minds of the people or in the structures, in other words?
That is a slightly convoluted question, but it troubles me that we build schools and do all these things, and as long as we are there, they are sustained. There are significant examples elsewhere in the world that unless there is a take-up and security by the people themselves, none of it is long lasting.
The Chair: If I could just add that some of the NGOs have expressed concern that if they are outside the wire, how will they be protected?
Senator Hubley: Looking over the development assistance provided by Canada and other governments since 2001, what types of interventions have been the most effective at reaching local women and improving their quality of life? I think this touches on Senator Andreychuk's question as well.
Also, it was pointed out by one witness that in the media, Afghan women have made particular progress and are particularly visible. I am wondering if there are other main career areas we can point to to demonstrate the progress that Afghan women are making.
Senator Ataullahjan: First, I would like to congratulate you on the great work that CIDA does. I saw it first-hand in Pakistan. We met at the Pakistan Development Forum. We spent an evening together. You also do great work in Afghanistan.
For some women, education is not an issue because of their age or whatever. Are we helping those women? Is there anything we can do for them?
Mr. Venner: Some of the questions cut across jurisdictions, so maybe we could pick a couple of questions and build from there.
The Chair: How the police and DFAIT answer will not be the same.
Mr. Venner: I am sure we will be on exactly the same page.
I might start with the question about Resolution 1325. I suspect you have had access to DFAIT's action plan.
The Chair: Yes. We have a report that we will give you before you go and tell you what we think of it.
Mr. Venner: Thank you. I would refer you to the 24 progress indicators at the end. I appreciate this is a strange way to get the answer to your question, but if you look at the areas to which the indicators refer, then you can get a sense of where the effort is likely to be deployed.
That being said, the action plan is clearly an aspirational document. It is intended to help guide the delivery of other Government of Canada programs. It is supposed to help guide the delivery of aid programming. It is supposed to affect how we allocate our training resources and the other work that we do. That would be my first point.
I would also like to address Senator Andreychuk's question, and I am sure Ms. Ducros would like to add something.
The fact that aid programming goes up after you have a military engagement in an area, I know that is true. However, the other way to say that is that you cannot dispense the aid programming until you have had the military engagement. It is only after you have secured the territory that it is safe to disperse the aid. That is why it follows.
I take your point about the exit strategy and the fact that if we have a deadline saying that we will be gone, there is a tendency to worry about whether or not those gains will be lasting. All I can say to that is that if you consider the announcement the government made recently about training, it is clear that part of the government's concern is to ensure that we help train Afghans so that they can ensure the gains we have made are protected in the future. This includes the training for security forces, the training that will continue to be done by the police, and the opportunity for Afghans to pick up more of the responsibility for protecting their own communities. These are all parts of ongoing Canadian and international efforts, which, over the next several years, should improve the odds that the gains that we have achieved to date can be protected.
The Chair: I will intervene here to say that you will not be able to answer all the questions in the few minutes that we have. We will be glad to have you send an email to the clerk with your responses to these questions, so do not feel you have to squeeze it all in.
Ms. Ducros: I will come back and address the issue of ethnicity and Pashtun women afterward.
Everything we have done with respect to women, all the programming CIDA has done from the beginning, has had a gender focus. When we have looked at education, particularly for Pashto, but for all the ethnicities, we have always focused on targeting women and girls. We have tried to get at this through different ways. First, making school access available but also dealing with the systemic issues, such as training female teachers so that girls can access schools. In the rural areas, we have looked at community development schools. We have reported broadly about building schools, but we have also created local schools in rural areas. We have tried to address the barriers that have had an impact on women going to school, such as transport, separate latrines and building boundary walls.
On the specific question of the AIHRC and Dr. Sima Semar, we stay in close contact with her. I have not had wind of this proposal, however.
On the issues of aid effectiveness, with our programming in Kandahar and nationally, CIDA's programming has had two components to it. They have not always been as distinct as I am about to describe them, but there has basically been programming focused on Afghanistan as a whole and the government national system. We have built capacity in different ministries and at different levels. We have also had programming that was geographically focused on Kandahar.
The direct answer to your question is that when the Government of Canada focused on Kandahar, other allies were focused on different areas. We were focused on Kandahar, which in some instances was a traditional development capacity and in some instances was what they called COIN — counter-insurgency doctrine — which is drawing a distinction and following up on the forces and DFAIT and trying to draw a separation from the insurgents by bringing government to the local people and separating the insurgents from the communities.
We also have traditional development in terms of building capacity around the government, working on education humanitarian assistance and addressing health care needs. Traditional issues include demining and providing micro- credit loans, which, to address Senator Ataullahjan's question, involved addressing women's needs in a way that was not entirely education-based but also working on the vocational aspects.
On the question of particular vocations or professions that we picked, we have worked in a broader scope. I probably do not have all the details that the smart people behind me have, but we can provide you with the impacts that has had.
I would be remiss not to mention that one of the most successful programs we had was going through election training, both for the provincial council elections and the recent parliamentary elections. The female candidates who ran for Parliament reached 70 per cent. We have also provided them in the past with the tools that they need to represent constituents in Parliament. That was noted by the special representative in Canada, who was a particular leader on that.
Senator Kochhar, we have worked directly with NGOs. We tend to work with them in two capacities. I will let Mr. Melanson speak to that in a minute. We undertake a fairly open conversation through round tables and meetings, directly at times as we bring in representatives of various NGOs and civil societies — I am speaking about Afghan-led NGOs. As well, we are able to undertake projects normally through trusted partners, specifically NDIs at the Asia Foundation. We work with NGOs in civil society.
The Chair: Your time is almost up, so additional information will have to be in written form to the committee. If you have something to add quickly, do it within 30 seconds, please.
Ms. Ducros: On the issue of programming outside the wire, CIDA has been present in Afghanistan since prior to the high commission. We have programmed outside the wire. We will continue to do that. There are ways in which we can do that through trusted partners and ensure security. There are a couple of other things that I can forward in writing.
Mr. Melanson: Briefly, we have small project financing mechanisms that reach out to the civil society parts of Kandahar. These have been quite successful. Ms. Ducros has described many of the adaptations we have made to how we offer education services that allow girls to have better access. Often, these are physical adaptations.
I would not overlook working with progressive forces in Kandahar. The governor is very progressive on education and girls in education and convening religious leaders and the district governors under his chairmanship to pursue the advocacy agenda for girls' education. Canada has promoted and cooperated quite extensively with political leaders on this in Kandahar.
The Chair: For those who bring us peace, order and good government, I invite Constable Fournier to proceed. Many of us are interested in hearing what it is like to work with Afghan women in the police force.
Constable Marie-Josée Fournier, Toronto Police Service, EUPOL, Afghanistan, Gender/Human Rights Section, November 2009-August 2010, Royal Canadian Mounted Police: English is not my first language, but I will do my best.
The Chair: You can speak in French.
Ms. Fournier: That is okay. I will do it in English.
You asked previously if we received training on human rights. We do not have specific training on human rights before deployment, but we listened to Afghan women who explained the difficulties and challenges they face living in Afghanistan. We received this information. With the military in Toronto, I received some training by a woman from Denmark. She was an expert who came to explain the challenges. We spent two days with her setting up scenarios and determining the dynamics between men, women and children and the problems and issues they have in Afghanistan.
As police officers, we have to know human rights. We apply them in our life and to our work. I have some knowledge because I am a police officer. However, we studied on our own when we arrived in Afghanistan. They told me what they needed and what work I would do in Afghanistan for the gender human rights department. I read some books to refresh my memory and went to see the minister to ask what they wanted me to do and how we can help develop some structure.
My experience in Afghanistan was fantastic. I was a bit surprised because everyone told us that it could be complicated for women trying to work in Afghanistan given the dynamics between men and women. However, I did not have any issues. Perhaps because we were in uniform, they showed respect for us. I asked them about the difference between Afghan women and me, and they said simply, ``You are not from Afghanistan; you are from another country.'' Canada is well respected over there. The challenge was not as difficult for me coming from Canada and being a female police officer.
I was working in the ministry in Kabul to develop a system to create positions for female police officers. We want to create an investigation system with female investigators for women who have complaints or want to report an incident because they have great difficulty at a police station. We want them to be able to talk to a woman. Therefore, they have a desk for women and a family response unit for them where they can talk about their issues so that eventually the investigation will be referred to the right person.
Our challenge will be to have Afghan women replace us. We want to train them to become investigators and to be able to respond to the non-criminal and criminal matters. They will be able to help women and children. It will be a more effective system for women who have complaints to expect some results. We have many projects, but this one was big.
We also have the help-line system, which will help eventually in the recruitment of women. We know that women are afraid to become police officers, afraid to apply, so we created a system whereby when they experience difficulty, they can directly contact the gender human rights department for help. If a violation has been committed, it will be dealt with.
The biggest challenge is the implementation. We are trying to implement better positions, but eventually we have to reinforce it. On paper, it is beautiful. Eventually it will work, but it will take time.
The Chair: It is the same in Canada. It looks beautiful on paper.
Ms. Fournier: The biggest challenge will be gaining the support of the Afghan government to put its foot down and support the gender human rights, and when a violation has been committed, consequences must follow.
The Chair: In the manual that you helped to write or the policy position, how many hours of gender training did you recommend for Afghan recruits to the police? Did you do that?
Ms. Fournier: Working in the ministry in Kabul was different than working in Kandahar; we have CIVPOL Canadians there — civilian police. A Norwegian police officer has been developing a security awareness course for women but was not able to implement this in Kandahar for security reasons. We have Canadians in place as contacts, and I was the liaison with the training department in the ministry, including my partner, because we needed support and the Canadian Embassy. We have been able to bring female Afghan instructor to train the women over there.
We are trying to make them independent eventually so that those Afghan women will be table to be the teachers who are training their own people.
The Chair: I spent some time in South Africa when it was a new nation. There was a huge problem of getting the police to be responsive to women, their complaints and the criminal offences that women suffered. Does Canada talk to other nations that have done this kind of start-up to change policing activities, or do we look at each country individually as we go?
Ms. Fournier: I was working with the European Union, where all police officers worked together. Everyone had different ideas, but we shared our experiences. I was working with officers from 10 different nations. We shared our experiences and tried to promote police officers. I cannot answer further than that.
Mr. Muir: In a broader sense, Madam Chair, the office at our national headquarters supports us in the field. They have counterparts in so many other countries around the world — people with whom we do business on a regular basis in the international peace support operations and other disciplines as well.
Suffice to say, it is not that big a world. We have a pretty good sense of what our colleagues abroad are bringing to the field in terms of the preparatory work of their own police. From a lessons learned perspective, we find what works best on the field, gender issues being but one.
Senator Ataullahjan: Constable Fournier, in dealing with the women, was it easier for them to approach you? Also, while you were talking to the women and engaged in training, were the translators men or women?
Ms. Fournier: They were both. The way it works in Kandahar is we used a female trainer, but we also have the support of the CIVPOL, and they were both female and male. They did not have any issue working together; it was not a problem.
In Kabul, we also have male trainers who participated, and also male translators. In Kabul it is easier to mix female and male. In Kandahar they are starting, but the females on the field did not have any issue working with male CIVPOL members involved in training because they were helping, especially with the shooting training. This training was for a week, and they needed the support of specialists.
Senator Ataullahjan: You felt they were comfortable with each other?
Ms. Fournier: I was not there, personally, but I was in communication. Yes, they were.
The Chair: Of the eight female constables, were you all in policy development, or were any of you actually in the field training the officers?
Ms. Fournier: I was in Kabul in the strategic department. Annie Lacroix from the Montreal police was working in Kandahar. We also have a few female officers working in Kandahar in the training department.
The Chair: Thank you all for coming. You should stay for dinner, and we should go on and on all night hearing about your wonderful experiences. This is great.
Welcome, everyone. For the viewing public, we are the Standing Senate Committee on Human Rights, and we are looking at Bill C-3, which 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.
Appearing before us by video conference, we have Christopher Devlin, from the Canadian Bar Association, CBA. We have before us here Larry Chartrand who is an associate professor in the Faculty of Law at the University of Ottawa accompanied by Charlene Desrochers.
We will have the CBA go first.
Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association: I am here today on behalf of Canadian Bar Association, National Aboriginal Law Section, and we are pleased to be invited to present our views on Bill C-3.
The CBA is a national association of over 37,000 lawyers, law students, notaries and academics. An important aspect of CBA's mandate is to seek improvements in the law and the administration of justice, and it is from that perspective that I appear before you today.
The Aboriginal law section is made up of practitioners in Aboriginal law, and it includes both indigenous and non- indigenous lawyers. I myself practice in Victoria, British Columbia.
We have our brief that we submitted to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, and I believe it is before you today. I regret that I do not have the entire brief with me, both the English and French version. I have only the English version, so I will be referring to those page references.
The context for Bill C-3 is whether it does, in fact, promote gender equality in the Indian registration under the Indian Act. To understand this, we need some background on Bill C-31, which was the act that Parliament passed in 1985, amending the Indian Act. It was directed at removing sex discrimination under the Indian Act and replaced many of the registration rules with a second-generation cut-off rule, which means that if an Indian person parents with two generations of a non-Indian, then the grandchild loses Indian status. If an Indian person parents with a non- Indian, the child has status, but it is under section 6(2), not section 6(1), so it is status of a different nature. If that section 6(2) person parents with a non-Indian person, then that grandchild loses their status. That is the second- generation cut-off rule.
Ms. McIvor, who is at the heart of the litigation that generated Bill C-3, lost her status. She was born in 1948, she married a non-Indian, and under the old pre-1985 version of the Indian Act, upon marriage, she lost her status. As well, her child also lost his status. She and her son Jacob Grismer went to court. At trial, the trial judge said that the benefit of law at issue for them was the right to transmit Indian status and cultural identity to future generations. Ms. McIvor's grandchild was not able to have that transmission of cultural identity and Indian status, so she was discriminated against when compared to her hypothetical brother, where the status would have followed through the male line, and his grandchild would have kept his or her status.
The trial judge had a very broad ruling that would have restored status to the children and grandchildren of any women that had lost their status as a result of the old marrying out rule.
However, on appeal, the Court of Appeal of British Columbia narrowed that. For very technical reasons, they looked to another arcane rule under the Indian Act, called the ``double-mother rule,'' and under that rule, if your mother and grandmother were not Indian, then you lost your status when you turned the age of 21. They said that under the 1985 amendments, a person who is subject to the double-mother rule received enhanced status because instead of losing their status at age 21, they became full section 6(1) Indians under Bill C-31. We have this narrowing of the judgment from 1951 to 1985, rather than going back in time.
Parliament has responded with Bill C-3, the Court of Appeal of British Columbia has given Parliament until January 2011 to pass Bill C-3, and that is why the bill has been before the house and is now before the Senate.
I have some comments to make about Bill C-3 that I would like to touch on, and they begin at page 5 of the English part of our brief, which I understand you have before you.
One of the first things I would like to touch on is that it is a very short bill, and the substantive part of it is under clause 2, which proposes the addition of new section 6(1)(c.1), and this would provide status. It is narrowly framed to address the specific family situation of Sharon McIvor and Jacob Grismer. One of the peculiar things about it is that in gain this new status, one would have to have a child oneself. In Jacob Grismer's situation, he would not gain section 6(1) status automatically unless he actually had a child, and this would be the first time in the legislative history of the Indian Act that a person's status is not dependent on the parents but is dependent on whether that person is a parent of a child.
We raise this, in footnote 5, as a concern because there can be discrimination in some of the band membership codes between section 6(1) status Indians and section 6(2) status Indians. Although they all have status with respect to their relationship with the federal government, the challenge is that some First Nations have membership codes that will exclude section 6(2) Indians. It would be important from our perspective, as a matter of law reform, that anyone who would be eligible to have his or her status moved up should be able to do that and not have it dependent on whether he or she has a child.
The second concern that we raise is with clause 9 of the act. That would remove the right of anyone to sue Canada for not having provided him or her with status as a result of the gender discrimination. There is a long history of sex discrimination that has been before Parliament. It was studied at length by several parliamentary committees, leading up to the Bill C-31 amendments in 1985. These issues have been well known for a long time. We are very concerned about the justice of this no liability provision.
The next issue we raise is the fact that the bill does not come with any additional resources to First Nations who may still be subject to Indian Act band lists, so they do not control their own membership lists under section 10 of the Indian Act. Their lists are still held by the department under section 11.
The government estimates that several thousand people may be newly entitled to register under the act, and there do not seem to be additional resources to support the First Nations with these additional new members.
The last point I want to focus on is the continuing discrimination in Bill C-3 because although it is titled ``gender equality in Indian registration,'' there will still be gender inequality. The bill will not completely eliminate gender discrimination in the Indian Act. We have a table set out on page 9 of our brief that we think illustrates this very well. It also illustrates the whole story of what has happened with these different amendments.
There are two columns. The left-hand column is what happened to Sharon McIvor and her son, Jacob Grismer; and the other side is her hypothetical brother. You can see that before 1985, she loses status upon marrying a non-Indian, whereas her hypothetical brother, who married a hypothetical non-Indian woman, would keep his status. I would note that in fact the woman would actually gain status as well under the pre-1985 Indian Act. Then Sharon McIvor's son would have no status and her grandchild would have no status. To compare that with the son of the brother, he would have status and the grandchild would have status until age 21, and that would be as a result of the double-mother rule.
After 1985 and Bill C-31, Sharon McIvor was reinstated as a section 6(1)(c) status Indian, and her son received section 6(2) status. However, all of her grandchildren born before and after 1985 received no status. That is to be contrasted with her hypothetical brother. He had 6(1) status, his son had 6(1) status, and a grandchild born before 1985 received 6(1)(c) status but was subject to the double-mother rule. It was only the grandchild born after 1985 who would have 6(2) status.
Under Bill C-3, which is the last section of the table, one can see that there is still continuing discrimination with the grandchild generation born before 1985. After 1985, the second-generation cut-off rule continues to apply equally. However, for Sharon McIvor's grandchildren born prior to 1985, they will only receive 6(2) status. The hypothetical brother's grandchildren born prior to 1985 would actually receive 6(1)(c) status. They would have, in essence, the best status available under the act.
In our last recommendation, we propose a modest amendment to the act, a new section 6(1)(c.2), which would enable those grandchildren born after September 1951 and before April 1985 to have also 6(1)(c) status in the way that the hypothetical brother's grandchildren would have.
Even though we make this modest proposal, the fact is that there would still be gender discrimination under the act for women, their children and their grandchildren pre-1951. We make note of that. The house committee tried to address that, but the amendments that the house committee suggested were not adopted by the house; they were ruled out of order by the Speaker. That remains an issue of concern as a matter of law reform, given that this is an opportunity to amend section 6.
The Chair: Now we will hear from Larry Chartrand, Associate Professor at University of Ottawa's Faculty of Law.
Larry Chartrand, Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, as an individual: Thank you very much. I would first like to acknowledge the fact that we are on the unsurrendered sovereign territory of the Algonquin Nation. I would also like to take a minute or two to comment on the CBA's recommendations, also identified in my presentation, which would require some amendment.
My paper is called ``No Foot, Wrong Foot, Small Foot.'' I say that for a couple of reasons. ``No Foot'' stands for the fact that we have to continue to acknowledge that this country has no legitimate legal right to control the identity of the indigenous peoples of this territory and that it is a violation of fundamental human rights. We know that because the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Under Article 33, they ``have a right to determine their own identity or membership in accordance with their customs and traditions.''
Moreover, Article 9 requires states to recognize the following: ``Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned.'' I emphasize the fact that that provision also says, ``No discrimination of any kind may arise from the exercise of such a right.''
We know that domestic court cases, Canadian Human Rights Tribunal cases and United Nations cases are going forward as we speak to challenge the validity of the Indian Act and these colonial provisions.
Canada needs to respond with integrity. Perhaps the round table process announced by the minister will achieve this, since it is intended to address the larger issues. In fact, I would argue that it has to. After all, Canada has endorsed the United Nations declaration and, in particular, the principles of good faith, partnership and mutual respect.
The round table process is consistent with those principles. However, it is not consistent with the principles of good faith to adopt Bill C-3 as it is currently drafted, knowing that it does not go far enough to eliminate gender inequality and does not completely meet the needs of Indian women. The list of organizations that object to Bill C-3's passage as it is currently drafted is staggering. I just have a short list in the written presentation here. However, of course, that was before the government mentioned that the round table process was dependent on the passage of Bill C-3, almost like a ransom: If you do not pass Bill C-3, we will not provide the round table process. I wonder how much good faith that entails.
The ``Wrong Foot'' argument is based on the fact that the legislation, as it is presently drafted, is completing the job of the Court of Appeal. It is the government finishing the court's work. It is the judicial remedy of the Court of Appeal in statutory form. There was an obligation to consult Aboriginal peoples concerned when addressing the response needed by the Court of Appeal decision and to draft legislation that seriously reflected the views of Aboriginal peoples, especially when those views included opportunities to eliminate gender inequality. Instead, it drafts legislation in advance of an engagement process and asks for input after the fact. Canada could have taken a leadership role here and it failed to do so. It could have demonstrated what it meant to be a partner with Aboriginal peoples instead of a dictator.
It is interesting to note that in Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples, issued by the government on November 12, it specifically highlights Bill C-3, the gender equity in Indian registration act, as an example of Canada showing ``strong leadership by protecting the rights of Aboriginal people in Canada.''
If this narrow response to the Sharon McIvor litigation of 20-some years is an example of ``strong leadership by protecting the rights of Aboriginal people,'' then I fear for the future.
How is the honour of the Crown maintained when Canada holds this initiative out as an example to behold? The short title of the legislation sounds as though Canada is telling the world that it is actually doing something significant about gender inequality in the act, which is untrue and misleading. What the statement does not say is that it took an individual Indian woman 20-some years of fighting the Canadian government tooth and nail to get the little redress for which she has asked, which is simply to be treated equally with men. The chosen response is legislation so narrowly focused that it fails to alleviate the gender inequality that affects new registrants, including the son, or hypothetical sons, of Sharon McIvor. The statement neglected to include this information.
When an amendment was made to address the continuing gender inequality before the house committee, the Speaker of the house declared it to be beyond the scope of the legislation. Canada, of course, did not mention that fact in its statement, nor did it mention the fact that Sharon McIvor is going before the United Nations to take her case to that level.
I wonder whether the government is acting in good faith when it holds out an act such as this and says that it is a model to show that Canada is responding to equity concerns of Aboriginal women.
It might not be feasible to drop this legislation and redraft legislation that would completely eliminate the gender discrimination, or ask the Court of Appeal for an extension and then come back and really take the initiative and be a leader in terms of correcting the injustice of gender inequality.
The Court of Appeal may not be prepared to grant another extension. From what the minister says, it sounds as though the court is starting to get a little frustrated.
If that is the case, it may be appropriate not to delay passage of the act any further, because some people's interests will be delayed if we do that. However, if the act does go further, we need to address some of the discrimination that currently still exists. This can be done in a couple of simple amendments.
The one amendment by the Canadian Bar Association proposed a new section 6(1)(c.2) would correct the residual upon residual gender discrimination that is in the act.
I suggest that we just deem the section 6(2) Indians — the children who are born — as section 6(1) Indians, but basically the Canadian Bar Association is saying the same thing.
I also agree that there is no reason for the requirement that a child must be born of a person entitled under proposed new section 6(1)(c.1). The discriminatory harm attaches to the person who cannot pass on the status to their children whether they have children or not. That person is still being treated differently than, say, a brother who has their status through their paternal line and can pass on their status whether they have children or not.
The difference does not depend on having the child. The difference depends on the right to pass on the status, not the actual fact of passing on the status to a child. It is the right that is the issue here.
That is all I wanted to say. Thank you very much for listening.
The Chair: My pleasure. Madam, would you care to say something?
Charlene Desrochers, as an individual: I just wanted to say good evening, and thank you for giving me this opportunity to appear before your committee on this very important issue affecting all Aboriginal women. I would like to acknowledge the Algonquin Nation, whose unsurrendered territory we are on today.
I am Charlene Desrochers, a former student of Professor Larry Chartrand. I had the pleasure of taking many of his courses in law school. I will not take up much of your time, and I will not repeat the legal considerations that have been put forward by Professor Chartrand and the Canadian Bar Association, except to say that Sharon McIvor's recommendations for amending section 6 of the Indian Act is the correct approach to take on the issue of gender inequality in the Indian Act.
For instance, all section 6(1)(b) to (f) and section 6(2) Indians should be made section 6(1)(a) Indians. That is the only way to correct the gender inequality in section 6 of the Indian Act. Anything short of this is discriminatory and violates section 15 of the Charter of Rights and Freedoms, as well as all the principles in the United Nations Declaration on the Rights of Indigenous Peoples.
I would like to put on the record that the Conservative government has not consulted Aboriginal women at the grassroots level on the proposed amendments in Bill C-3 and has not met the legal duty to consult on this issue as set out in the case law and at international law, especially the declaration.
In fact, in the spring, the House of Commons Standing Committee on Aboriginal Affairs and Northern Development heard from numerous organizations on Bill C-3 but only heard from two individual Aboriginal women on the issue, one of them being Sharon McIvor. Her presentation reflected a true collective view on this issue. She is a true leader who advocates for the interests of all women, not just 45,000 women. Forty five thousand women being reinstated is not better than nothing, especially when your children are being excluded, such as mine are.
Can you imagine, Bill C-3 is about correcting gender inequality in the Indian Act, and the House of Commons committee only heard from two women; we have one million Aboriginal people in Canada, and two women were heard from.
It should also be noted that the federal government must stop off-loading its duty to consult Aboriginal people on to Aboriginal organizations who, in turn, do not consult the people at the grassroots level due to inadequate funding provided by the federal government.
As you are well aware, representation of issues affecting Aboriginal people is an area of controversy among Aboriginal people at the grassroots level. It is time for this Senate, respectfully, and everyone else out there, to acknowledge this fact. There are hundreds of thousands of Aboriginal people who say that these Aboriginal organizations do not represent our views, and it is time for change. First Nations people have a right to speak under section 2 of the Charter, and they have not had that right to speak about Bill C-3.
Aboriginal organizations are not governments, and in no way reflect customary laws or traditional governments of the people. They are corporate entities with a board of directors, and they have no right to speak on our behalf without asking us. We, the people on the ground, also have a right to participate in the decision-making process.
Sooner or later one of these organizations will be called to task on the legal duty to consult. When this happens, that is when you will see that the federal government will have no choice but to change its relationship with the way it relates to Aboriginal people on all issues.
On October 26, 2010, three motions were passed in the house, which restored Bill C-3 to its original format, as introduced in March 2010. According to these minutes of proceedings, various Aboriginal organizations changed their minds and accepted the government's final offer. In that debate, it following is noted:
They decided that it would be better to accept the federal government's offer, so they asked us to apply a ``bird in the hand is worth two in the bush'' philosophy.
The debate does not refer to what this offer was and does not state who those Aboriginal organizations were.
What is this offer, and who were the organizations that supported Bill C-3 in the summer? I still do not know the answer to that question. I searched the Internet and could not find anything notifying people about an engagement process that took place over the summer with Indian and Northern Affairs Canada, INAC. What is this engagement process? Who and exactly how many people participated in the engagement process? Was it the organizations? If they did, how did they make the decision to support Bill C-3? I searched high and low for information and was not successful in finding anything. Clearly there was no consultation process on Bill C-3 by anyone, so this pre-engagement process does not satisfy the duty to consult in any shape or form.
The people have a right to know what took place this summer, as this bill directly affects all Aboriginal women, including myself and my children. My children are excluded in Bill C-3. My grandparents are both 100 per cent Cree. I am not in any way endorsing blood quantum, but I want to make the point that my grandparents are full Cree. My grandmother lost her status when she married my grandfather. My grandfather was omitted from the register because he was in World War I — for which he has not received his rightful compensation, but that is another issue altogether. However, he was omitted from the register.
My grandmother lost her status when she married my grandfather, so my mother was never a status Indian until Bill C-31 came into effect. Right now, as of this date — both of my grandparents are dead — my grandmother is a section 6(1)(c) Indian. My grandfather is a section 6(1)(d) Indian, both of them being full-blooded Cree. My mom is a section 6(1)(f) Indian. Again, she is full-blooded Cree, as well; I am a section 6(2) Indian, and my children are non-status Indians.
My grandparents, my mother and I should be section 6(1)(a) Indians, like all the other section 6(1)(a) Indians. My grandmother and my mother were reinstated under Bill C-31 in 1985, and I did not get status until the year 2000, even though I applied in 1985. I had a long 15-year struggle trying to prove that my grandfather was Indian. After 15 years, my cousin ended up finding a church record in Northern Ontario, where the priest happened to say that he was Indian, and INAC accepted that. All you had to do was take a look at my grandfather, and you would know that he was Indian.
If you look at Bill C-3, the same thing will happen again. INAC will apply a strict interpretation to Bill C-3, and they will delay giving people status under Bill C-3, just as they did to me and my 50 other cousins who were all entitled under Bill C-31.
It has also come to my attention that there was a potential proposed amendment other than what is in Bill C-3, and this is by leaving a legislative void in section 6 of the Indian Act, basically meaning that no one would receive Indian status ever again. Why was the public not informed about this potential amendment? I just heard about it on October 26, not that it matters now because we have been shown Bill C-3. However, why was that proposed amendment — or threat, shall I say — not studied under the public eye of accountability and transparency?
I will deviate a little. Another issue of concern is the round-table process. The federal government has advised that funding for the round-table process would not be forthcoming until Bill C-3 is passed. Why is that? If the Aboriginal organizations do not agree to Bill C-3, will they not get funding? This is akin to Pavlov's classical conditioning, where you ring the bell or show the steak and the dog salivates. Is that what Aboriginal people have been brought to? Where is the good faith in this, in withholding the funding on a round-table process?
Indians status and citizenship have nothing to do with each other and should be kept as separate issues. Status is all about the provision of services by INAC, and citizenship deals with belonging to a community. The round-table process on citizenship can still go ahead even if Bill C-3 is not passed.
The federal government is using the money for the round-table process as a means to entice the Aboriginal organizations into compliance. We all know those Aboriginal organizations are dependent on the federal government for funding, and that any time they disagree with the federal government on any policy or legislation, they are threatened with funding cuts.
A prime example of this is when the First Nations governance act was introduced in 2003, I believe. We all know that the federal government slashed the Assembly of First Nations' funding in half, and they have never recovered that funding.
A round-table process is not the way to go. Furthermore, what is the mandate of the round table? There is no set mandate; there are no terms of reference. Basically, the federal government is saying that it is up to the First Nations to decide.
We all know that the people will not agree on a single citizenship code because we are all different peoples; we all have different cultures, values and customs. A round-table process is a one-size-fits-all approach that violates the principles of the Harvard project, especially the cultural match.
The federal government is using the round-table process as a means to get the organizations to buy into Bill C-3. It is a ploy. They want to show the UN that they are letting the people decide the issue of citizenship, when, in fact, they are doing the opposite. They are putting off the issue of dealing with gender inequality in the Indian Act by throwing round-table money at us. This is unethical and morally wrong.
First Nations have the right to self-determination and the right to determine citizenship. Aboriginal people also have the right to participate in their communities with their people. Assist them, instead. Let the First Nations discuss citizenship on their own, in consultation with their communities, as they see fit.
The Sandra Lovelace decision from the UN told Canada this in 1980. Let us not make another Aboriginal woman spend the next 20 years of her life taking the federal government to court, such as Sandra Lovelace and Sharon McIvor.
My recommendations are to amend section 6(1)(a) to include all section 6(1)(b) to (f) and section 6(2) Indians, and assist the First Nations in developing a citizenship process that meets the needs of their communities.
The Chair: Can you send your paper to the clerk so that we have the right sections exactly the way that you want them?
Ms. Desrochers: Sure.
Senator Baker: I will put all of my questions because I can see that we are on a timeline.
First, I would like to congratulate the witnesses for their excellent presentations, each one of them. I make note of the fact that I noticed just last week, in a judgment of the Superior Court of Ontario, a reference to Professor Chartrand and some work that he had done in a publication. I also believe that Mr. Devlin was one of the litigators in the McIvor v. Canada case, is that correct?
Mr. Devlin: I represented one of the intervening parties.
Senator Baker: Our major problem with this legislation is with the decision of the Court of Appeal and with the decision of the Speaker of the House of Commons. The bill addresses only the Court of Appeal's decision in a very narrow way.
I do not know if the clerk of the committee has advised the chair of this committee yet whether we can deviate in this Senate committee from a decision of the Speaker of the House of Commons on procedure. It is an interesting procedural question. I was once the law clerk of a provincial legislature — that was 40 years ago, but I know we could not deviate at that time.
My question relates to the Court of Appeal decision. The trial judge is reported in 70 pages of judgment in this case, which appears to be a thorough analysis. In effect, what the trial judge of the Superior Court of British Columbia did is do exactly what Professor Chartrand and the other witnesses have said here today — and you as well, Mr. Devlin — in that judgment.
However, the Court of Appeal struck it down. After reading the decision, I still cannot figure out why. Half of it, I suppose, was because of standing in a Charter argument, in that you cannot put forward someone else's Charter violation and look for a judgment before the court. That appeared to be half the judgment.
The other half was that the matter was not addressed in the evidence at trial. I do not completely understand that after looking at the decision of the trial judge. I would like for each of you, if you wish, to comment on why the Court of Appeal was so restrictive in their judgment.
The second question has to do with liability under this act. Under this act, you are not allowed — well, you can try to do it, but the government will not be held liable for any compensation or any form of monetary compensation from a judgment that pertains to the subject matter of this bill. My question to you on that particular matter relates to why that is there. I know it is not new to legislation, but in this particular case, the next clause that comes after it is the last clause of the bill, which dates the decision on the bill back to April of last year.
A final comment, Mr. Devlin, for you to comment on, is that in Ontario, we have the Martin report on how Crown attorneys are supposed to conduct themselves as ministers of justice. Crown attorneys in criminal courts go out of their way not to be told, ``Your desire cannot be to win a case. That is not why you are there. You are there primarily as an officer of the court to ensure that all the evidence is presented.'' It appears to me as if there is an overly adversarial approach taken by the attorney general in addressing matters such as we are talking about here today.
Those are my two main questions to Mr. Devlin and my request for a comment on my observation at the end.
The Chair: Senator Andreychuk, I suggest you ask your questions so that the panel can respond to all of them.
Senator Andreychuk: I understand the decision. Senator Baker and I could continue this on some legal points, as we usually do. Mr. Chartrand and Ms. Desrochers, the court narrowed it down to one specific issue. The government is saying that there are many more issues. However, I understand both of you to be saying that the Aboriginal leadership is not the correct group to be negotiating with the government. I understand that you want direct consultation. Does that mean each and every Aboriginal person has to be consulted by the government? I would love that too, but the government does not consult with me on all the legislation that applies to me. They have to find a representative group to speak for people.
The other fact is that it is open and people can write to the government or email them. You can do all kinds of things. You can protest on the street. You can show your like or dislike for proposed legislation in many ways in a democracy.
I understood the consultation process was to give Aboriginal people a voice. We have been persuaded again and again that the leadership has changed. We have an Aboriginal urban group. We have the Assembly of First Nations, AFN. We have Native women's associations. Am I hearing you say that they are not representative?
If equality is accepted in the Aboriginal community, why is it dependent on a trigger of the federal government? Why are the Aboriginal leaders not triggered into saying that this is unfair and unjust in their communities and that they will take on some of these issues within their communities? I go back to the matrimonial property act. If there are injustices, they have been put in to positions of leadership. It cannot be money only, which is important. There must be some sense of community and justice within the Aboriginal community that needs to be addressed.
The Chair: I will throw in one more question. Professor, you used the word ``dignity.'' I am aware of its historical use in United Nations documents and so on. It is not a word that I like. I am sort of like the Andrews test in the Supreme Court and not the Law test. Why did you choose to use the word ``dignity?'' I always thought that dignity does not really deal with issues surrounding clean water, housing, food and education. It just does not deal with it. I am curious about that. Other senators' questions are probably more substantive.
Mr. Devlin: I will respond as quickly as I can to Senator Baker's questions. As I understood, the first one was why it is so restrictive in the Court of Appeal's judgment and how that relates to Bill C-3. To understand the actions of the Court of Appeal, unfortunately it involved a technical reading of section 15 jurisprudence of the Charter — the equality provision, the Law v. Canada case. Both the Court of Appeal and the trial judge identified the right at issue to be the right to transmit cultural identity. They parted company on the issue of the appropriate comparator group. When one assesses quality issues, one needs to find the appropriate comparator group in the legal exercise. That is how one determines the extent of the discrimination that has been suffered.
The trial judge focused on this hypothetical brother of Sharon McIvor as the comparator group. The Court of Appeal focused on the double-mother rule people. Again, the Court of Appeal said that the appropriate comparator group was a group of people whose mothers and grandmothers were non-Indians, and when Bill C-31 came into effect in 1985, they went from having their Indian status subject to removal as double-mother rule people to, presto bingo, receiving full section 6(1) status under Bill C-31, whereas Sharon McIvor's grandchildren received nothing. The double-mother rule people were deemed to be the comparator group. That is the reason that the act refers to September 1951, the time that the amendments to the Indian Act were made that brought in the double-mother rule.
Furthermore, that ties in with our last recommendation of the modest amendment that we say should be made, which is the addition of a new section 6(1)(c.2). In our view, that is within the ambit of the Court of Appeal's decision because we are not trying to extend the scope of the bill to people who would have lost their status as a result of the sex discrimination prior to September 1951. We are trying to keep it therein as much as possible. Again, refer to that table on page 9 where you can see where we have identified the continuing discrimination and why this small proposal still falls within the ambit of the legislation as proposed and the Court of Appeal judgment.
I am afraid that I do not have an answer for you as to why the government is choosing to limit its liability. We note it in our paper, but I cannot say much more on that point.
In terms of the impartial view of the Crown, you mentioned an overly adversarial approach taken by the Attorney General. Again, I cannot comment on the litigation strategy of the government. I know that the government has taken this narrow perspective. They are not trying to reopen the debate to the level seen in 1985. In our brief, we said that given the opportunity that has been presented by the court, the government should try to eliminate the sex discrimination at least. It has been percolating in the system long enough. Let us get it done and not have more Sandra Lovelace or Sharon McIvor appeals to the United Nations and other bodies. Let us finish it here if we can.
Mr. Chartrand: I would agree with Mr. Devlin on his perspective of the Court of Appeal decision. The proposals that the CBA addresses to eliminate some of the existing residual gender discrimination in the current act would not go beyond the scope of the act, even as the Speaker defined it. These amendments simply fall within the scope of the existing act. They would allow the new registrants to be able to pass on their status in a way that is equal to those who would have received their status through the paternal line. It eliminates in a very small way that existing, ongoing gender discrimination.
On the question about consultation, that is fairly involved because it goes to the heart of the question of which Aboriginal entity is entitled to benefit from a constitutional legal obligation to be consulted on issues that affect their interests. The Supreme Court of Canada has spoken quite clearly about the test that needs to be satisfied by an Aboriginal organization to benefit from the obligation of the Crown to consult and indeed accommodate. It must involve a claimed Aboriginal right or treaty right that has some compelling strength to it. It has to be more than just an assertion. There has to be some kind of evidence to give weight to it. Once that exists, then the government is indeed obligated, under the Constitution, to consult with the Aboriginal nations that are entitled to that benefit of consultation.
Are those Aboriginal organizations the political ones we know about — the ANF, the Congress of Aboriginal Peoples, and the others — or are those rights attaching to the Aboriginal communities and nations as they are defined organically as a result of their history and ethnicity, from time immemorial to the present day? It is that group that is entitled to the consultation requirement and to determine their citizenship, according to international human rights law. My colleague here has a point about the legitimacy of these organizations to represent the interests of Aboriginal peoples in this territory.
In terms of the issues on the ground on the reserves, there is a lot of internalized paternalism by the leadership in Aboriginal reserves, which is generally male. There are many internalized gender views about the value of women that are the result of the imposition of the Indian Act, which has discriminated against women for 200 years. To some extent, that is now part of the milieu of those communities. It is not necessarily appropriate to say that the communities need to address that now because it is the Government of Canada that has caused the circumstances that create inequality on the reserves, on the ground, between 6(1) Indians and 6(2) Indians. There needs to be a facilitated, concerted social justice project to help address that inequality, and it will not come from Bill C-3.
On the question of dignity, when we talk about value as a human being and say that someone is less valuable than someone else, I think that goes to a question of dignity.
Ms. Desrochers: I will respond to the first question. I agree with the CBA about why the Court of Appeal took such a restrictive approach, but I will add a bit of controversy to that statement. Judges are human, just like us. When you look at the issue of Indian status under the Indian Act, it is a controversial issue, as is Aboriginal title. Aboriginal title cases have spent 20 years in the courts. They make it to the Supreme Court. The Supreme Court does not make a decision and sends it right back to the trial judge.
No one wants to deal with the big issues of Aboriginal title and Indian status, registration under the Indian Act. I look at the Court of Appeal decision as killing two birds with one stone. It satisfied the federal government, and it satisfied some women. I am adding a little food for thought. With respect to the court's decision, it was the judge's decision to make, but judges are human as well.
With respect to the liability for compensation and why they put it in there, they want to save money. When the federal government is developing policy, programs and services, money is always the issue. The first thing that you see in a briefing note on any policy that is created is the phrase ``might create precedent.'' They are putting that liability clause in there to protect their pockets.
For example, I applied in 1985 to become a status Indian. I was 15 years old at that time and just about to finish high school. In the 1990s, I went to nursing school and also studied computers. I paid for all that on my own. I received my status card in 2000, just as I was entereing law school. My law school education and my Master of Laws were paid for by INAC under the Indian status. They are basically saying, ``If we provide compensation, how much money will we spend reimbursing everyone?'' I should have had status back in 1985, so they are looking at it from that point of view.
With respect to Aboriginal leadership and representation, I want to clarify the point that the national Aboriginal organizations are not leadership at all; they are corporate bodies with a board of directors. They were established by the federal government. I am not disrespecting the people who work inside those organizations. Those organizations are funded by the federal government. Therefore as soon as they say, ``No, we do not want to pursue any of your policies,'' INAC turns around and says, ``We will pull your funding or withhold your funding.'' The round-table process is a prime example. Those organizations will not receive any money until Bill C-3 is passed. The two issues of citizenship and status have nothing to do with each other. There is no reason for the round-table process not to have occurred last spring, when it was floated out there as an idea.
I agree with everything Professor Chartrand said about the issue of representation. Many people are living under the Indian Act; all they know is the Indian Act. Representation is a controversial issue in terms of trying to get people to think outside of the Indian Act and to look at what else might be out there. Do we even necessarily need another act to replace the Indian Act? I do not think so. Section 35 speaks about the inherent right of self-government. These indigenous nations are states; they are statehood. We were here first, before the Europeans came over, living as nations and living on our own. We did not have an Indian Act telling us what to do; we just did it. It is a matter of trying to get the people to assert.
One of the principles of the Harvard project is asserting sovereignty. They found that the most successful First Nation tribes in the U.S. were in fact the tribes who took it upon themselves and asserted sovereignty, and they are successful.
Mr. Chartrand: I was here at four o'clock when the minister presented. One of the comments that struck me was that if the government does not act, there will be a legal vacuum. That may be true in that the registration provisions of the Indian Act might not apply, but it is not a legal vacuum in terms of the laws of the nations that are indigenous in terms of their citizenship and who they are. That tends to be a prevailing view in government and sometimes in the courts, that unless there is legislation, there will be a legal vacuum. However, that is not true. Indigenous nations have legal traditions that govern everything from resource management to marriage to adoption to citizenship. They have been overwhelmed, of course, by legislation imposed by foreign governments dictating who they are. When the communities try to regain their sense of identity as opposed to relying on the government, problems will occur in trying to address the impact of that history.
In the United States, Aboriginal tribes have sovereignty over their citizenship. It is not a scary thing. The tribes in the United States have had sovereignty and have controlled their citizenships since 1832. The government negotiates on a tribe-by-tribe basis because they treat them as nations independent of one another. They do not try to come up with a national program that covers every Aboriginal tribe in the United States because that would ignore their difference as nations within the United States.
That is my other point.
Ms. Desrochers: I wanted to mention a couple of other things. One of the senators asked why the Aboriginal leaders are not saying that they want to deal with Bill C-3. In fact, they are saying that they want to deal with Bill C-3. These are the leaders on the ground of the communities, and they are saying that. However, they just do not have the resources to deal with it.
This issue is not about the people. It is about the federal government. We need to place the focus back on the federal government. The people want to deal with the issue of citizenship. It is a problem of not having the resources, and the federal government does not want to provide the resources. The federal government wants to get rid of the post- secondary funding and health benefits, and we already see what the federal government is doing with the post- secondary funding program, and health benefits as well.
One of the senators said that there are ways to express our views about legislation that we do not like. I believe she said that we can write letters or send emails or we can protest on the streets, and that there are other ways that Aboriginal people can have a voice. Yes, we can send and write emails. We have been doing that since April. Have we been listened to? I have been sending letters. I sent a letter to the Prime Minister in May. I have not received a response. I sent a letter to a couple of political leaders a couple weeks ago, after October 26. I still have not received a response.
You can write a letter, but will you receive a response? In the meantime, has that bill been passed? As we all know, people do not like to protest. It is frowned upon. I do not know; if you have someone proposing that we go out and hold a protest, then the federal government will turn around and tell us we are a bunch of terrorists. There are incidents where that is happening.
Even though we are out there protecting our rights as Aboriginal peoples, the federal government views us as terrorists. We are the only race in the world that is called terrorists when we are trying to protect our Aboriginal and treaty rights.
There are many arguments one can make in court to those arguments, but those are just some of the barriers we face. All Aboriginal peoples across Canada are not the same. Every community is different and approaches their rights differently, and they have differing views. I wanted to bring that point home.
The Chair: Thank you very much, all three of you. That was an interesting way to end. You sure push our minds.
(The committee adjourned.)