Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 13 - Evidence - November 23, 2016
OTTAWA, Wednesday, November 23, 2016
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 6:48 p.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening, everyone. Welcome to the Standing Senate Committee on Aboriginal Peoples. Welcome to the audience in the room and those who may be watching the web version on CPAC. Tonight we are continuing our study of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
I would like to welcome our witnesses this evening. We have, from the Assembly of First Nations, Perry Bellegarde, National Chief. Welcome. We also have Denise Stonefish, Deputy Grand Chief, who is appearing via video conference. We also have Stuart Wuttke, General Counsel. Welcome.
At the other end of the table, we have from the Native Women's Association of Canada, Francyne Joe, President; Lynne Groulx, Executive Director; and Marilee Nowgesic, Special Advisor and Liaison.
That will be our panel for the first hour.
In the spirit of reconciliation, I would like to note that we are meeting on the traditional lands of the Algonquin peoples.
I will call upon the senators to introduce themselves.
Senator Moore: Good evening. Welcome. Wilfred Moore from Nova Scotia.
Senator Watt: Charlie Watt from Nunavik.
Senator Lankin: Frances Lankin from Ontario.
Senator Martin: Yonah Martin, British Columbia. Welcome.
Senator Beyak: Lynn Beyak from Ontario. Welcome.
Senator Oh: Senator Oh from Ontario.
Senator Bovey: Senator Bovey from Manitoba.
Senator Patterson: Dennis Patterson from Nunavut.
Senator Enverga: Tobias Enverga from Ontario.
Senator Raine: Nancy Green Raine from B.C.
The Chair: We have with us tonight two non-affiliated senators, Senator Lankin, who is the sponsor of the bill, and Senator Bovey, who is not affiliated and is here to learn as much as she can about the bill. Thank you for attending.
We will begin with testimony from the witnesses. Please try to keep your remarks to five or 10 minutes so that the senators have a chance to ask questions.
We will begin, I presume, with Mr. Bellegarde.
Perry Bellegarde, National Chief, Assembly of First Nations: Honourable senators, I will bow to our guest and grand chief. She is also Chair of the Assembly of First Nations Women's Council.
The Chair: Ms. Stonefish, please go ahead.
Denise Stonefish, Deputy Grand Chief and Chair, Assembly of First Nations Women's Council, Assembly of First Nations: Good evening, senators. Thank you for the opportunity to speak with you today about Canada's effort to eliminate sex-based discrimination through this latest amendment to section 6 of the Indian Act.
The Assembly of First Nations Women's Council is an essential consultative body of the AFN under its charter, and it represents the interests and perspectives of First Nations women who are members of our 634 First Nations across Canada.
As chair, I participate in the meetings of the executive committee, our chiefs in assembly and other meetings, including presentations to parliamentary committees on occasion.
As we are all painfully aware, the Indian Act was founded on the goal of the complete assimilation of First Nations as distinct nations. Since 1867, it has undermined our kinship systems, our systems of governance and many other aspects of our lives, including enabling the imposition of the residential school tragedy. A primary tool to achieve those ends has been discrimination targeting First Nations women.
This is the third time Parliament has attempted to rectify the sex discrimination in the act. In 1985, the changes made under Bill C-31 left the task incomplete, and in 2009, the British Columbia Court of Appeal found that the combination of the two-parent rule, the hierarchy of different types of status under section 6(1) and 6(2) of the Indian Act and the second-generation cut-off perpetuated sex discrimination under the act. Now the Descheneaux case has forced Parliament to make a third attempt.
We understand the need for the government to respond to the discrimination identified in Descheneaux. Unfortunately, Bill S-3 will result in continued discrimination. In addition, the proposed amendments in Bill S-3 will compound the existing complexity of the Indian registration provisions by adding three additional subparagraphs to paragraph 6(1)(c). The basic approach of this bill is to continue arbitrary federal control over First Nations identity and push the residual gender-based discrimination down one generation.
Our review of Bill S-3 suggests other discrimination that will not be addressed. First, under Bill C-3, which addressed the McIvor decision, a woman who redeems her status is 6(1) and her children would also be eligible for 6(1) status, passing that on through future generations. However, a woman who lost and regained status for any other reason than that addressed under Bill C-3 was deemed 6(2), disadvantaging any future offspring.
Second, Bill C-31 attempted to address the decision of the United Nations Human Rights Committee in the Sandra Lovelace case, as well as Charter compliance issues. Under Bill C-31, a woman who regains status is deemed 6(1). A person, male or female, who lost or regained status under any circumstance other than marriage under Bill C-31 is deemed 6(2), and any future offspring might be ineligible for status.
In our view, Canada's continued imposition of a two-parent rule, combined with the hierarchy of status transmission established by Bill C-31 under subsections 6(1) and 6(2), lies at the heart of the ongoing sex-based discrimination.
We note with considerable concern that there is apparently no remedy yet to the unfair and long-standing discrimination in the department's policy respecting the so-called unstated paternity. I emphasize that these usually are not the situations where paternity is unknown but most often where a woman has other reasons for not identifying the father of the child.
Mr. Bellegarde: Thank you, Chief Denise. Again, thank you, honourable senators, for the opportunity to continue the presentation from our Assembly of First Nations. I again thank Chief Denise as the Chair of our AFN Women's Council. We value their input, direction and guidance.
I have about two pages, so I will try to move quickly, and I will summarize four points at the end — four simple bullets I would like the senators to consider. We recommend that Canada work with First Nations to undertake a joint review of the federal law and policy and to work with us to ensure all this work includes a gender and a citizenship lens. Many aspects of the Indian Act constitute a violation of the treaties, the right to self-determination and individual human rights — so much so we must ask whether it is even possible to eliminate discrimination from an outdated piece of colonialist legislation intended to dismember our nations and citizens through gender-based discrimination and racialized concepts.
We have an enormous challenge ahead of us to move past this terrible legacy of the Indian Act. I'm sure you'll agree that simply making amendments to the Indian Act will not get us there. Whatever path it is, we always say it has to be driven by us, the indigenous peoples. It is guided by our inherent and treaty rights, and the minimum standards set out in the UN Declaration on the Rights of Indigenous Peoples.
I remind the committee that under international human rights law, the enjoyment of the right to self-determination and individual human rights are interdependent and inextricably linked together; they can't be separated.
We're encouraged by the Prime Minister's leadership on gender equality and his commitment to implement the UN declaration without qualification. We're also really heartened by the enthusiasm of the ministers, Minister Bennett and Minister Wilson-Raybould. I know with that enthusiasm, we can work to establish processes to move beyond the Indian Act, but that has to be done together, in cooperation and in concert. That work has really yet to begin.
We recognize the urgency in attempting yet again to correct sex discrimination in the Indian Act. To fully address the legacy of discrimination that is still very much with us the federal government must finally work with indigenous peoples to move beyond the Indian Act, because we know it's outdated.
Colonial concepts of Indian status and band membership: I always think, do my rights really flow from the Indian Act? I always say, if the Indian Act were done away with tomorrow, would I cease to exist as an indigenous person? I always make the point to our indigenous peoples that we have become so colonialized we call our status cards "treaty cards.'' What a misnomer.
We've got to educate ourselves again about where our rights come from as indigenous peoples. We have an inherent right to self-determination, and because of that, we entered into a relationship with the Crown — a treaty relationship — nation-to-nation.
So I make those points.
Gender discrimination and the denial of the right to self-determination are violations of international human rights standards, including those expressed and reaffirmed by the declaration.
The Indian Act has been a tool of forced assimilation, and we know it violates individual human rights.
I'm going to move on. You have the text.
Under the Indian Act, its discriminatory provisions were used to deny the legal status of many of our citizens. It was used to deny our status as treaty beneficiaries. To this day INAC policy ties treaty beneficiary status to Indian status, and it's a fundamental violation of treaties, our inherent rights and indigenous law and the right to self-determination. We always said it must end.
Regarding the implementation of Bill S-3, I note that INAC has identified $19 million over the next five years to address internal resource requirements because you're making more status Indians now. I think the potential number is 35,000. That is going to be a drain on different programs. In particular, the Post-Secondary Student Support Program is mentioned.
As well, on the health side, the Non-Insured Health Benefits Program will be accessed once a person gains status. You get your teeth cleaned and all those things. There are not enough resources to meet the existing needs, so are those resources going to be enough to meet the identified needs?
The point I want to make is that if you're giving status to Indians under this new provision, Bill S-3, what about the land issue? Under treaty, there is a very clear formula — 128 acres per individual, 640 for a family of five. It would be the size of a reservation. It's not only applicable to education or health care through the Non-Insured Health Benefits Program. There is the issue of land, and no one is even talking about or considering that.
So our bottom line on this one is take the time to do it right. Don't rush it, even though there is a legal requirement to come up with this bill by February 3. There is an opportunity to work with Descheneaux and the Crown to make the application to the court to request more time, to involve a more meaningful, fulsome consultation process with indigenous peoples right across Canada, indigenous women's groups and organizations, the chiefs councils, because this will have a huge impact.
I don't believe that adequate time has been considered with the development of this legislation. No disrespect to the great work done by Minister Carolyn Bennett, but I just believe it is too rushed. To her department, I would say slow it down. Make the court application and do it right, and I think you will get better results in the future than this piece of legislation.
Now in Descheneaux, Justice Masse provided guidance to Canada, stating:
It does not, however, exempt Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether based on sex or another prohibited ground, in accordance with its constitutional obligation to ensure that the laws respect the rights enshrined in the Canadian Charter. . . .
Parliament should not interpret this judgment as strictly as it did the BCCA's judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other
Those are important points to keep in mind.
The AFN is ready to work with Canada to advance rights, recognition and reconciliation through a jointly designed process to ensure the full implementation of the UN Declaration on the Rights of Indigenous Peoples and to carry out a much-needed and fulsome joint law and policy review.
My four points, senators, are these: You need more time. You have to get it right. Make the request. That can be put in place. Even the litigants in Descheneaux are saying they need more time.
Second, the law and policy review. The Supreme Court is saying this. The judicial branch of government is saying something very clearly regarding the recognition of rights and title and jurisdiction and treaty. The legislative and the executive branches of government are not keeping up with what the judicial branch is saying, so policy reviews, comprehensive claims policy, specific claims policy, additions to reserve policy and the inherent right to self- government policy are all outdated. They have to be brought up to speed. The judicial branch is saying something very clearly here.
Support the call for a comprehensive federal law and policy review to get in line with what the judicial branch is saying. That's recommendation number 2.
Third, for us as indigenous peoples, we have to exert jurisdiction over citizenship and move beyond the Indian Act and create our own, not membership codes, but citizenship acts, and occupy the field so that the federal laws and our provincial laws do not apply. That can be in all areas, not only citizenship. I tell chiefs, "If you don't want the provincial legislation to apply when it comes to child and family services, create your own First Nations child and family services act. If you don't want the matrimonial real property act to apply on your reserve, create your own and make sure there is fairness and equity for First Nations men and women. So occupy the field, create the laws and exert jurisdiction.
If we stay under the Indian Act for status, within 50 years there will be no more status Indians in Canada — a totally racist, discriminatory act.
There is no question that we need the process to move beyond the Indian Act, but with our process, at our speed, and with our full involvement and inclusion.
The fourth point: I've already talked about the land issue. When you're creating more status Indians, have enough resources been budgeted? There is going to be more draw on certain programs and services, so you have to make sure that's looked after properly and accordingly. There will be a fiscal ask and demand, no question, but I'm saying very clearly that in Bill C-31 in 1985, we say you only made half a treaty Indian because land is very much part of the treaty relationship with the Crown. And where is the land? So you have to consider all aspects when you're trying to end discrimination.
There is lots to do, but take the time to get it right. That's all we're saying.
The Chair: Thank you, National Chief.
We'll move on to the Native Women's Association of Canada.
Francyne Joe, President, Native Women's Association of Canada (NWAC): Good evening, Madam Chair, Senate committee members, distinguished witnesses and guests. I am Francyne Joe, President of NWAC and a proud member of the Nlaka'pamux First Nation in British Columbia. I worked with the Canada Border Services for five years and am experienced in human resources management, economic development, entrepreneurship and insurance, all in an effort to educate and encourage Aboriginal people to pursue aspirations.
I'm here today with Lynne Groulx, NWAC's Executive Director, and Marilee Nowgesic, NWAC's Special Advisor and Liaison.
First, I would like to acknowledge the Algonquin Nation on whose traditional territory we are meeting on today. I bring with me the voices of my ancestors, the concerns of Aboriginal women from across Canada and the hopes of our future leaders, our youth.
Since 1974, NWAC has been the only national Aboriginal organization in Canada that represents the voice, the interests and the many concerns of Aboriginal women. NWAC is made up of 12 provincial and territorial member associations from across Canada.
Our network of First Nations and Metis women spans the North, the South, the East and West, into urban, rural and on-reserve and off-reserve communities.
Our personal sense of identity is that we are part of nations, and NWAC needs to be part of and included in any nation-to-nation discussion. It is crucial that our gender-specific perspectives are heard and acted upon.
The Native Women's Association of Canada recognizes the Government of Canada's stated commitment to end all the known sex-based discrimination embedded in the Indian Act. This is a priority issue that has been long-standing and could result in missed opportunities to build a collaborative relationship and to ensure that we deal with the complex layers and multiple forms of sex discrimination in the Indian Act.
I will deliver three key messages today. The first concerns the current backlog on registration in membership at INAC. Bill S-3 leaves out indigenous women, and their basic rights will be denied. This is a fundamental breach of their right to entitlements in the Indian Act, such as housing education, health and economic development.
From a traditional understanding, indigenous women cannot be separated from the impacts of colonization, systemic issues and the policies and laws that have reduced the stability of our environment, the practice of our spirituality and the expression of our inherent right to self-determination.
We want to caution the government about the timeline. Indigenous women have multiple priorities at this time of year. Our children are in school. Our children have activities. We are preparing for harvests, hunting, trap lines, and of course Christmas. It is a time of celebration with our family and friends.
The second key message is that engagement does not mean consultation, and consultation does not mean consent. Indigenous women need to be a leader in these discussions. The two-part process as described by the Government of Canada is to have reconciliation with indigenous peoples through a renewed nation-to-nation relationship based on recognition of rights, respect, cooperation and partnership.
At this point, as of September 28, NWAC has had only one information session from departmental representatives. This does not constitute engagement, partnership, or respect.
The government has already announced that they will have a two-stage approach in response to the Superior Court of Quebec's decision in the case of Descheneaux, and this must be done by February 3, 2017. NWAC is particularly looking forward to addressing not only the systemic issues but also those that have an impact on indigenous women, including our personal sense of identity: we are part of a nation, but there is a lack of belonging and recognition by some communities when women want to return to their home community; the undermining of indigenous women's governance roles and the ability to coordinate collection of issues; and of course financial resources.
NWAC is the organization that has the expertise on indigenous and gender-specific perspectives.
The third message is that indigenous women themselves have the right to determine their own identity. Articles 33.1 and 33.2 of the UNDRIP respect indigenous rights to determine their own identity and structures in accordance with their own procedures. Of course this is paraphrased.
As a national Aboriginal women's organization, NWAC has spent 10 years being undermined, ignored and having our funding cut by over 60 per cent by the federal government. We are in the process of actively rebuilding our capacity to substantially respond and coordinate a national response within short timelines. Our current rebuilding status needs to be factored into the engagement processes at this time and should not be used as a way to undermine our participation in these key discussions and decisions.
While we are currently working on addressing the procedures and processes that will drive the missing and murdered indigenous women and girls inquiry commission, we are the lead organization for indigenous women to bring their issues, their concerns and sometimes their missing voices to effectively address the inequities.
NWAC will work with all levels within the Government of Canada to end inequities and discrimination which have been part of the Indian Act since 1876.
There have been a lot of discussions at the NWAC table. What we are looking for is to be part of a consultative process that is robust, meaningful and comprehensive. This will entail financial resources which will be needed within the communities when we increase the membership roles. At this time, I would like to wish everyone kukshem, merci and to pass the mic over to Marilee to discuss some of the technical issues.
Marilee Nowgesic, Special Advisor and Liaison, Native Women's Association of Canada (NWAC): Thank you very much. We spoke about the September 28 session where we had opportunity to discuss the Descheneaux case with members of our provincial treaty member associations. That was a very frustrating and very time-consuming event, time-consuming in the sense that we only had a half a day to be able to do this.
The years and the number of aggravations and the number of cases that women brought forward, we were grateful that members of the department were available and on-hand to hear some of the very frustrating concerns of our PTMA members — hearing that their membership has been sitting in an application file for seven or eight years, hearing that their membership cards have expired but yet they still exist in the room, hearing that they are frustrated that the department wants to dictate who will be an Indian and who will not be an Indian, hearing the frustrations of the community, people knowing that there's dissension within the communities and having been segregated. You're not an Indian; you can't get on the bus.
Those frustrations that we have heard were just minimal in a four-hour span, but it was over years and years and years of having listened and been part of the frustration. It was through the PTMAs that they had a discussion looking at how we were going to try to assist the Government of Canada in addressing Bill S-3.
They didn't need a history lesson that morning. What they needed was a soft ear in the Government of Canada to hear their frustrations and somehow bring resolve to their issues. Thank you.
Senator Patterson: Forgive me for being a little bit off-topic tonight. I think I'm paying tribute to Senator Watt. Respecting what was just said by the Native Women's Association of Canada about indigenous women having the right to determine their own identity, and what Chief Bellegarde said about First Nations determining their own progress on this issue, I must observe that the Inuit who dealt with the same federal government that has brought us this case were given the right to determine their own identity in the James Bay and Northern Quebec Agreement, in the Inuvialuit Final Agreement, in the Nunavut Land Claims Agreement, and in the Nunatsiavut agreement, and it's working just fine.
So I can't help, as a representative of Nunavut, being grateful that the Inuit, although they have challenges, don't have to worry about this issue of having their identity defined for them by officials and complex processes. I just wanted to make that observation.
Chief Bellegarde, you've recommended that more time should be taken to do this properly, very clearly, and that you believe this doesn't have to take an inordinate amount of time, that the litigants should join in making this request. We actually heard this testimony clearly from litigants at this committee yesterday, that they were not satisfied with the legislation and would like to see it amended and improved.
There would be an argument that there are people who will benefit from the provisions of this bill, which may well not go far enough and may be expanded in the stage 2 processes. There are people that have been waiting for redress. What about those folks that a delay would leave behind or leave out again for a longer period of time? Would you comment on that?
Mr. Bellegarde: Sure. It's not meant to delay a long, long period of time, because you don't want to perpetuate the wrong that is there. If the numbers I heard are correct, about 35,000 people are eligible for status with Bill S-3 being reinstated. You don't want to penalize them by taking an extraordinary amount of time for proper consultation when this new bill should be developed and looked at. So how do you define a reasonable amount of time? You don't want to hurt more and create more wrong, like there's obviously racism and discrimination. You want to end that. We get that.
So to the 35,000 potential status Indians, just don't take me the wrong way that we're trying to hurt you and perpetuate the hurt that is there and the discrimination. We're not.
We're saying it will get there in time, but because of the impacts that it will have on a lot of other things, from fiscal resources to inherent rights to jurisdiction to citizenship, it needs more time to properly have that consultation and consent and dialogue because we would ask that people and senators and members of Parliament and Canadians that any time there's a new piece of legislation the government comes up with, there is this thing called duty to consult and accommodate indigenous peoples when section 35 rights are going to be affected.
This new bill and law will affect section 35 rights, which states that ". . . existing Aboriginal and treaty rights . . . are . . . recognized and affirmed.'' This new bill will affect that. So you might even have further compounding, further legal fights, further legal arguments by people saying that it is impacting their citizenship, their inherent right to self- determination. There could be legal challenges. Engage in a proper consultation process and slow it down. To the people that are potential — it's not going to be forever. We're not trying to slow it down for 5, 10, 15 years. There's got to be adequate consultation.
Senator, it's a good question. I don't have the right amount of time. Is it six months? Is it nine months? Is it one year? I don't know. All I'm saying is there has not been adequate consultation right now, and some time should be taken. The Senate is the chamber of sober second thought. I'm asking you all as senators to have sober second thought as it relates to Bill S-3 and to find the proper time, because it does impact section 35 rights, and more importantly, you would be respecting Canada's will as a country when the Prime Minister and the ministers adopted the UN declaration without qualification. Article 19 — and I took the time to write it out — states:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
So you have the UN declaration, Article 19, but more importantly you have Canada's own Constitution, section 35. That's my answer.
Senator Patterson: If I may, Madam Chair, address the same question to the Native Women's Association of Canada. I was surprised when you described the one consultation session that occurred in September for a half day and the frustrations of having such a limited time to deal with such a complex and important subject.
We've heard that the department has engaged with national organizations, such as yours, as well as the AFN. The committee was told that those organizations were comfortable with the two-stage approach that you've heard about. Would that be a fair description of your position?
Ms. Joe: When we were consulted back in September, we were having our annual general meeting anyhow. Our delegates were given probably two days and no advance warning, no advance information. No, there was not enough time for discussion. There was not enough time for the delegates of the Native Women's Association of Canada to really express their feelings to the members that came from INAC to discuss this.
We are looking for a far more comprehensive discussion. The number of delegates that we had was about 70 at the annual general meeting, and because so many had to leave to go back to their homes and their families, we probably had 40. I will pass the rest over to Marilee who was also there.
Ms. Nowgesic: Senator Patterson, in response to your question, it's unfortunate that you heard what you heard. So let me clarify that.
"Engaged with the organizations'' — if you call that an engagement, well. That's all I'll say to that. We were given the document five minutes prior to the department providing their presentation, of which one and a half hours was a history lesson about us to us. The remainder of the time was spent on people from the community level being absolutely frustrated and outraged that the department would come forward with a presentation like this asking for feedback on the spot. We have not been fully engaged. You said that you heard we were comfortable with this two- staged approach. No, we are not.
We have wanted to work with the department to look at how this can be respectfully done for both the department and for our member organizations, so that we can hear from the people who are dealing with these frustrations at the community level.
I'm picturing the remnants of the AGA, the participants who were asked to participate on the Monday morning after a long weekend of an organizational process, and then coming to a room with no prior examination of a document, no prior discussion and no caucus and being thrown this document and asked "What do you think? How do you feel?'' And the women told us how they felt.
We have a transcript of the frustrations and the level of discussion that those women had with us. Because of their privacy and because of some of the comments that have been made, and because it's unedited, we have decided not to distribute the document. But for some of the evidence, we have told the women and got written consent from them, if we were to use excerpts not identifying the people, to say that here is what they thought about this session and how it was going to move forward.
We're already at the end of September. October, November, December, February 3? How could this even be done? They were more interested in the portions of how come we're coming now, four and a half months prior to the deadline. "How come you're asking us in this way? How do you expect that we're going to be able to give you valid answers from all of our women, from all of our communities in a coordinated fashion?'' That's how the technical day went. Thank you, Senator Patterson.
Ms. Stonefish: I agree with Marilee. She's talking about meaningful consultation, and we can say the same too on behalf of the AFN Women's Council, that there must be meaningful dialogue with our First Nations also.
I believe and I have been told that First Nations are ready and willing to work with Canada on a nation-to-nation basis to provide meaningful solutions and approaches to the sex discrimination in the Indian Act. Thank you.
Senator Lankin: Thank you, Chief Stonefish. We'll watch more carefully for your waving.
I want to ask questions of both NWAC and the National Chief. I'm going to preface this with saying, first of all, National Chief, that my friend Paulette Tremblay speaks the world of you and thinks you walk on water. So I'm honoured to meet you.
I want to speak to you all about where we find ourselves in the process right now. All of the issues that you spoke so powerfully to, in terms of the other specific discrimination, like Chief Stonefish, the second-generation cut-off and the unknown parents, you mentioned a couple, and when we heard from the litigants and their lawyer, they mentioned some of the areas that had been referred to in the Descheneaux ruling but weren't the specific orders which are contained in Bill S-3. They suggested, by the way, proceeding in placing those specific issues in the bill, and not necessarily all of the other points that had been raised that are so necessary for us to address.
I am so much in support of what you have identified as the need to deal with the big issues with respect to the Indian Act and why Canada still holds this power of determining who is Indian or status. Let's deal with these big issues in a comprehensive way. My understanding is that is what has been laid out as the work of stage 2 — all of these issues that you have identified — and that they will be meeting with organizations to design the actual consultation process, and that they will take 12 to 18 months to do whatever is necessary to get that piece of work done.
Regarding the financial implications that you raise, I am told that there is an appropriation that has been given in terms of health, that there is one coming forward that hasn't been included in the budget. But it will be in the next budget for education, and they will set up a process to work with chiefs to monitor the local community service implications of more people potentially moving back into reserve communities, and what that would do.
I have heard no one speak to the land issue, and I agree completely that that also has to be dealt with.
My query to you, however, is this: To go to the court and ask for an extension — and I'd love it if you could tell me if you have different information — what I understand from my own experience and from asking Department of Justice and INAC officials about this is that at most, if we were to get an extension, it might be three months, and six months at the outside. But it's doubtful whether we would get the extension, and if we did, it would be three to six months.
When you put into that the legislative process you have to go through where this bill had to go through cabinet, be introduced and discussed in the House of Commons and the Senate and passed, three months would barely do that with an amended bill, let alone the consultation. If we had an additional six months, I don't believe we could do the kind of real consultation on all the broad range of issues that you have identified that we need to do and that is committed to by the minister in stage 2.
With the 35,000 people who will benefit from Bill S-3, why could we not proceed with the Bill S-3 revisions and immediately upon passage of this — and before — begin the process of the stage 2 consultations? I think that it is a shame that we're all placed in this box, but there is a court decision that has to be acted on at some time or with an extension. Would the extension of three or six months be enough to do the consultation? I'm guessing not, and in that case, why can we not proceed with doing the Bill S-3 provisions and get on with doing the big job? I think all of us on this committee are in support of the provisions you're putting forward in seriously engaging, nation to nation, Canada to indigenous nations, to find a different way forward than we have repeatedly done in the past. That brings us, again, to tinkering with a piece of legislation that is fundamentally flawed and built from a colonial attitude in the first place.
Mr. Bellegarde: First of all, Paulette, in our way of First Nations law, again, is my older sister. We have a word in Cree that means a making of relatives ceremony, so she is my sister. Her late mother came to Sundance lodge and she was adopted into our family, and that happened almost 18 years ago. We're very close to her. That's an example of citizenship, and I state it like that as an example of First Nations law being recognized and how it goes beyond common and civil law and ultimately, our one hope, one dream one day is that First Nations law will be recognized in Canada in addition to common and civil law and that our governments will be recognized, as well, in addition to the federal and provincial governments. It's all about jurisdiction. That's the long term.
You make a valid point about the consultation, asking if we can move ahead with Bill S-3 now and get those 35,000 looked at. You're still not fixing it in a big enough way if you go ahead with it. That's the simplest way I can put it. It wouldn't address it. Even if it was six or nine months, push as much as you can because there is that opportunity for the Crown and Descheneaux to go together to ask for adequate time. We don't know yet how much, but we just need more time to deal with this and put it in place here. The point I'm making is that if you go ahead with it, there will still be people left out. There's still going to be discrimination and racism within that act.
Senator Lankin: Yes.
Mr. Bellegarde: Why bother? You're going to open yourself up to other potential charges as well. It's really a mess, so don't perpetuate the mess.
I'm saying even if it's six or three months, take it. It might give you some time to get it done properly. That's what I would say.
The other piece to this is that it really comes down to the point that in any legislation that is developed that will impact on rights in section 35 and in UNDRIP there has to be consultation and consent, and in this case there wasn't. That's all I can really add to it.
Senator Lankin: I heard a wise woman say, as we were going through this legislative discussion, that indigenous women's rights have taken a back seat to consultation and engagement between Canada and First Nations that have been led by men for a long time. Part of me, as a feminist and supporter of indigenous women's rights now and in the future on all the basic issues that you talk about, feels compelled to support the concept of getting these amendments changed now. The 35,000 people — women and their children — who will be positively impacted by that, at the same time will be part of a forceful voice that compels the government to live up to its commitments in terms of stage 2, where these bigger issues would be. I wanted to say that before we turn to the Native Women's Association of Canada for an answer.
Ms. Joe: I would almost wonder if you were sitting in our meeting room earlier. You voiced a number of the discussions we've had in the past. NWAC represents so many mothers, and when we don't have the same rights — especially our children — for housing, health and schooling all because of that status card, it breaks our heart.
Let's move forward with this, and in the second stage, let's really make that a process that is inclusive of the national indigenous communities. Let's make it a process in which we actually consult with indigenous women.
I know Sharon McIvor. She's a cousin of mine and a definite feminist. She has been fighting long and hard; she's passing on the torch now, and we'd like to see something happen. We know that this is not going to be an easy answer, but we think if we can start with this now and continue working harder to achieve the results we're looking for, be it in three or six months, let's not do it on the backs of our women and our children.
The Chair: As I understood it, both National Chief Bellegarde and President Joe said that it's the affected indigenous women who do not now have status who should be included in the consultation. They have not been so far.
With respect to indigenous women's rights, the traditional indigenous women's rights were infringed upon in the 1800s with the marrying-out rule. You could say that their existing Aboriginal rights as Aboriginal women have been infringed upon. Do you think that in itself could constitute a violation of their constitutional rights? That would therefore mean they must be consulted. They have not been consulted with this bill, so they should be consulted. What is your opinion on that?
Mr. Bellegarde: I totally agree.
Senator Moore: I have a supplementary to that. I heard Ms. Joe talking about one meeting on September 28. We were told by department officials that they've had 12, including one yesterday, and a meeting with chiefs and with regional reps. I never heard them say they met with females. Let's assume one of them was meant to be your meeting; it is still only 11.
I always thought that the final word in the First Nation was the word of the female elders. I think back to the Oka situation. The female elders stepped up and resolved that and told people what to do and how to behave. It wasn't the chiefs.
Where are we with that? I'm surprised NWAC and Deputy Chief Stonefish weren't among the very first to be consulted. I want to hear your comments about that. Am I wrong about that tradition with regard to the authority and the power of the female elders? That's not to take anything away from you, Grand Chief.
Mr. Bellegarde: My mom's watching.
Senator Moore: Can I hear your comments on that?
Ms. Nowgesic: You're not wrong, and for most of our nations tradition, you are very right — it is through the process by the women who converge among each other in our traditional communities and by traditional way.
When the monies are being brought home, the groceries are there, the things are being brought to the kids and to the family, and as we're preparing the meals for whomever — when you go to the reserve and to our houses, you're making meals and tea for everyone. It doesn't matter who stops in. The conversations that go on about school, welfare, so-and- so's drinking or drugs, they spent all their welfare cheque and now we have to pay their hydro bill. You men put some money together; I don't care if you have to play poker, this is how you're going to do it.
When the thoughts of the men are going out, if you look at the woman who stands behind that man, you will see the vision of what that household is bringing forward in those traditional thoughts and bringing forward to ceremony, to the lodges, through our clan systems, through our longhouse systems and through all of those traditional types of ceremony. It has been the woman, because we are the ones who engage with the young people, with our babies, teaching them how to respect, honour, give thanks, how to be thoughtful of the person next to you.
It is through those ceremonies that we look. That has always been a long part of consultation, agreement, consent and looking for that cooperation among each other. That is why, with the cooperation and the collaboration of our partner organizations like AFN, CAP, MNC and all the national five who sit at the table, we need to talk among each other about how we look at those approaches. We know from the NWAC side that this is not only a representation of First Nations; this is also representation of Metis women, on and off reserve, urban and rural.
Senator Moore: Deputy Chief Stonefish, do you have a comment on that?
Ms. Stonefish: To the reason why First Nations women themselves have not been consulted on this, it is due to the continued colonization and paternalistic behaviours that changed our matrilineal society. We were once like you indicated in some communities where the elder women played a major role in the communities. Some of our communities are indoctrinated in Christianity, too, where women's roles have been diminished.
As we're moving along now we're seeing that slowly start to change, where women are now coming forward and beginning to have that respect within our communities.
Senator Moore: Was there any effort by the department to reach out to the female leaders in the communities? Did you get any indication from them? Was that your only shot? Was that it?
Ms. Joe: We're hoping that stage 2 will be more inclusive. At stage 2, we can do a better job of working together and including our youth and especially our elders.
The Chair: We do have quite a few other senators who have not had a chance to ask a question. There are about five senators still on the list. Please ask a short question.
Senator Enverga: We heard you, and we believe that something has to be done. Chief Bellegarde, I know that you want do it once and do it right. That's what you want.
How many people right now — those that are eligible — there are about 37,000 who will be eligible if this gets done? How many people are right now living on the reserve?
Mr. Bellegarde: Good question. We're about 4.5 per cent of Canada's population as First Nations peoples. We have 634 First Nations across Canada. We have 58 different nations in terms of languages. They're all different from Mi'kmaq and Maliseet on the East Coast to the Mohawk, Dene, Blackfoot, Ojibwa and Algonquin. There are 58, so when we say "First Nations,'' who are you talking about? Are you talking about the Cree? The Ojibwa? We're all different.
Senator Enverga: I'm talking about the ones who would be affected by Bill S-3.
Mr. Bellegarde: We have 634 First Nations who are about 1.5 million people; 50 per cent of our people reside on- reserve and 50 per cent reside off-reserve. With this bill, the number that was said to me is that approximately 35,000 people could be eligible for status. Then there is the issue of do they get status? Are they also accepted into the band?
You have a list kept in INAC in Ottawa — the status list — and you also have a membership list. You have two.
Those are the numbers.
With the 35,000 new "Indians,'' there are going to be fiscal requirements. INAC has identified $19 million over five years for two programs, one in Indian Affairs for post-secondary students, and we already know there are 10,000 students on that waiting list. Now you have new status Indians, and you think that will be enough to accommodate that need? I don't think so.
Then with Health Canada, you have the Non-Insured Health Benefits Program. There is a draw on those two departments: Indigenous and Northern Affairs Canada and Health Canada. So you will have draws on those two programs, because we see them as treaty rights and obligations of the Crown. So are they in section 35?
There is all of this. Its potential is going to have a drain, no question. The point I made earlier on, yes, they have access to two programs. There are others if they get band membership too, like housing and everything else.
When you get status, it allows you to have access to certain programs and services. If you get band membership, it's another whole slew of things and the whole land question. So there's your numbers, 50 per cent on- and off-reserve.
So the bigger issue I try to get people to understand, when we start talking self-determination and governments and nation to nation and looking after and being responsible for our citizens not only on-reserve, but also off-reserve because of the recent Supreme Court Corbiere decision, every First Nations person has the right to vote for their chief and council no matter where they reside. They have that now.
The next thing will be reasonable expectation for services and programs, and the portability of rights. You're not just a treaty Indian if you live on-reserve; you have portability of services and programs. That will be the next big challenge. There is a long answer to your question. Some numbers, 1.5 million people, potentially an additional 35,000 with this. I don't think the planning has gone ahead properly.
Senator Enverga: Out of the 35,000, you mentioned maybe 50 per cent of them are on reserves right now?
Mr. Bellegarde: No, out of these potential 35,000, I don't know where they would reside. It's potential. I would guesstimate they are probably off First Nations reserves. That's what I would think.
Senator Martin: It certainly does sound complex, but I think all of you have been very clear and articulate in how you have explained this situation. You are the leadership of the peoples who will be directly impacted by the legislation, so you are right at the heart of this issue. These are the people whom you represent.
President Joe, did you say in response to Senator Lankin's second question that you do think that we should move on and then make sure that the second stage is very comprehensive? So it is important for us to consider this bill and pass it? Okay.
Mr. Bellegarde, you do not share that view?
Mr. Bellegarde: I share that view.
Senator Martin: What I heard you say, which is the sound bite of the evening, is don't perpetuate the mess.
Mr. Bellegarde: Tâpwêw. That means you're right on true.
Senator Martin: I'm trying to wrestle with the two positions. I can see why we should be compelled to look at it now, to address the 35,000 plus or minus individuals who will be directly impacted, although it will perpetuate the complexity of this whole situation because the bill does not quite address the issue. I don't know whether the courts should be listening and saying if we need more time to give us more time.
Mr. Bellegarde: That's what I am saying.
Senator Martin: I'm curious about that. There are two separate positions here, so I want to clarify that.
I have a question for you, Grand Chief. You were consulting with Mr. Wuttke.
Mr. Bellegarde: Legal counsel extraordinaire.
Senator Martin: If you had the opportunity to draft legislation that you would be able to propose, do you have the counsel and the capacity to draft such legislation on behalf of the Assembly of First Nations?
Mr. Bellegarde: We don't have a legislative drafter on staff, so the answer is no. You can always find that.
Senator Martin: But you can advise and provide that kind of input?
Mr. Bellegarde: Again, you have to identify the financial resources first and then you identify the human resources to get the job done. That's what you need to get done.
Senator Martin: I asked the question because as senator, I'm not a legal expert, but I can ask someone who has that expertise and I can work with that counsel to make sure it's addressing the real idiosyncrasies and nuances of what I'm trying to capture. So on this particular bill, was that process skipped or was it not thorough enough?
Mr. Bellegarde: Not even engaged. It hasn't even been started.
Senator Martin: Okay. Thank you. So there is an issue, but I understand the time constraint.
Senator Meredith: Chief, thank you so much, both of you, for being here and also NWAC as well. I heard your points of view. I've sat at this committee for a while now, and I've heard the same sort of complaint, let's be frank about this, with respect to duty to consult and proper consultation and consent.
I'm just at a loss when the department says that we've consulted and that hasn't taken place. What has the minister's department said to your group and to NWAC with respect to the fact that there was no consultation and that there wasn't due process with respect to bringing forth this piece of legislation? What has been the response directly to you in your opposition to this legislation?
Mr. Bellegarde: The only thing that happened for the Assembly of First Nations was one meeting in July for two hours, and that was the only time that the Assembly of First Nations was involved, and that was it.
Explaining phase 1 and phase 2 of this process, that was it.
The Chair: Let the Native Women's Association of Canada president respond, please.
Ms. Joe: It's the same thing. We just had a short time frame with the representatives from INAC. They were supposed to come back to us, and we haven't heard back.
Senator Meredith: There has been absolutely nothing.
The Chair: We're out of time.
Senator Raine: Thank you very much. We're all disappointed in this whole process. It's obvious that when a court makes a ruling and puts a time to it, things move quickly and it doesn't get done properly.
My thoughts are with the 35,000 people who have a chance by February 3 to get their status and start to enjoy some of the rights they have been entitled to. I would hate to sort of perpetuate those people having to wait, but I would agree that if we're going to pass this legislation, somehow we have to have in it something that puts real teeth in phase 2 of the consultations. It has to be done properly. I want to ask if you have comments on that.
Ms. Joe: You're absolutely right. That's what we want to see, those women who have been waiting for years, for decades to get onto these roles, to get the benefits that their brothers and sisters and cousins are currently benefiting from, but they never have received any of these benefits. We want to see part 2 of this process become more meaningful and more consultative. We need to capture the remaining women out there at this time who want to get onto membership roles.
Mr. Bellegarde: You have to break down your 35,000 people that are eligible. How many will be eligible to go to university out of that 35,000? They're not all going to be eligible. Who are you talking about? Are they kids, five-year- olds or 10-year-olds or women? Who are they? You have to break down that demographic because to be eligible for the Post-Secondary Student Support Program you have to be eligible to get into university or technical vocational training. If that's all it is, break it down further. It's not all 35,000.
On the Non-Insured Health Benefits, it's a really lousy program. You get your teeth cleaned once a year, your eyes checked twice a year, like glasses. It's nothing that great, guys. It just isn't. You get better benefits from your employer. Non-Insured Health Benefits and PSSP, you have to break it down, so it's not a huge loss. My point would be it's not going to be a long time.
The argument that we're going to correct the wrong for 35,000 people, I think it's the wrong argument to look at, that we will end discrimination for those 35,000. It's not all 35,000, and I'm not trying to hurt those people who are eligible. I'm just saying in this case, in this instance, the court just ordered something to be done by February 3. That's what happened, so government's reacting and scurrying, and you're making mistakes. That's all it is.
Senator Beyak: It goes to what Chief Bellegarde was saying. As women senators and women MPs, we got very excited just reading the title, elimination of sex-based inequities in registration, and we thought it was wonderful.
But all I've heard now is that there's still 6(1) and 6(2) and there will be so many people that won't have equal status, even their sisters and brothers. One will be a 6(1), the other will be a 6(2), so I think we have to at least fix that part of it with an amendment or something and, as you say, start doing something, but not in a hurry. I can't understand why we couldn't get a two-year court extension on something this important, but get something done too in the meantime so that we're not just sitting in abeyance.
Do you understand what I'm saying about the 6(1) and 6(2), and is that correct what I'm being told?
Ms. Joe: Oh, yes.
Senator Beyak: Thank you.
Ms. Nowgesic: Senator Beyak, thank you for that, and we were very excited also as an organization who is speaking to a very large population of not only women but their children in looking at this frustrating issue. We were very excited, but then when you start looking at the varying levels and the multiples and the complexity of all of the issues that we have to consider — Once upon a time when we did this in 1985 under Bill C-31, we had some money that followed for it two years following. So we got the numbers increased; we got some money to assist with that population for two years, two and a half years, and then it dropped. The carpet was pulled out from underneath us, and everybody was fighting. At the end of the day, we were back to square one. Thank you, Senator Beyak.
Mr. Bellegarde: A short quick response, senators, and this will be my last comment. Things have to be addressed in a more comprehensive piece, and when the Prime Minister came to our Chiefs-in-Assembly last year, he made five commitments to our Chiefs-in-Assembly: one, that there would be an inquiry into murdered and missing indigenous women and girls; two, that all 94 calls to action will be implemented, all 94 calls to action, and that includes the UN Declaration on the Rights of Indigenous Peoples; three, that the 2 per cent funding cap that we've had in place for 20 years as indigenous peoples would be gone and that there would be a process in place to work towards, his words, long- term, sustainable, predictable funding; four, education, that there would investments in education in terms of schools, the tuition on-reserve, off-reserve, changing curriculums, education, key things.
The fifth one was a law and policy review. That's the one to support, a law and policy review in the process, and push now the Crown to engage with the Assembly of First Nations to get that started.
There are two things that aren't moving. The TRC calls to action must move, and the law and policy review. Those are the two things.
Among the other three points, language revitalization is a priority, especially in the year of reconciliation, the one hundred and fiftieth anniversary of Canada, the importance of investing in languages, indigenous languages, because when a young First Nation is fluent in their language, they are more successful in school and therefore more successful in life. Even that's an investment, so language.
Changing the institution's machinery of government. Canada was founded utilizing a treaty commissioner, implementation of section 35. That's how this country was founded. Where is our federal treaty commissioner reporting to the Crown? Where is our indigenous language commissioner to protect and promote and enhance indigenous languages? Institutions, machinery of government.
The third other point is basically processes to move beyond the Indian Act. Those are the things that have to be put in place, and once we start moving beyond the Indian Act, what we're talking about here is moot. It will be gone because then you'll have First Nations jurisdiction recognition over citizenship, and we will find processes to move beyond the Indian Act in exerting First Nations law, especially over citizens, but that has to be linked to a new fiscal agreement so that our people can look after their membership both on- and off-reserve as well, because right now the existing fiscal agreement does not work. Those are just five points to keep in mind, big picture.
The Chair: Thank you. We have come to the end of the session. I would like to thank our witnesses from the Assembly of First Nations and the Native Women's Association of Canada. Thank you, senators, for the questions.
We have this evening on our second panel, from the Congress of Aboriginal Peoples, Mr. Robert Bertrand, National Chief, and Frankie Cote, Senior Manager, Engagement. From the Indigenous Bar Association we have Drew Lafond from MacPherson Leslie Tyerman, LLP.
We will start with your presentations, and then we will have questions from the senators.
Robert Bertrand, National Chief, Congress of Aboriginal Peoples: Dear chair, deputy chair, committee members, representatives and guests, my name is Robert Bertrand, and I am the National Chief of the Congress of Aboriginal Peoples.
[Translation]
I would like to acknowledge that we are on Algonquin traditional territory, on which we are all privileged to meet, including my ancestors.
[English]
I would like to thank the Standing Senate Committee on Aboriginal Peoples for inviting the Congress of Aboriginal Peoples to address this necessary and important discussion on Bill S-3. I would like to commend Prime Minister Justin Trudeau and the federal government for withdrawing its appeal concerning the August 3, 2015, Superior Court of Quebec decision on the Descheneaux case to the Supreme Court of Canada. The decision to address the Descheneaux case in a two-staged approach to eliminate known sex-based inequities in Indian registration, and not be limited to the specific facts of the Descheneaux case, is promising to hear.
Since 1971, CAP, formerly known as the Native Council of Canada, has committed itself to advocate for the needs of off-reserve status and non-status Indians, Metis and southern Inuit people. We also serve as the national voice for its provincial and territorial affiliation organizations, our PTOs. Our PTOs are located across the country from the western coast of B.C. to the eastern reaches of southern Labrador. CAP also has a national youth council.
[Translation]
The congress represents a considerable number of Canadian aboriginal people. It currently represents more than 70 per cent of aboriginals who live off-reserve.
[English]
For over 45 years, CAP has committed itself to address issues affecting our constituency and has been actively involved in cases which concerned sex-based inequities in registration, which led to the passage of Bill C-31 and Bill C- 3, known as the McIvor case.
In working together towards reviewing Bill S-3, there are two current instances which CAP feels are models for effective change for reconciliation with off-reserve indigenous peoples. First, the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, and second, the Supreme Court of Canada's historic decision on Daniels v. Canada.
Seventeen years ago, our former national leader, the late Harry Daniels, along with CAP, went to court to force the Canadian federal government to acknowledge that Metis and non-status Indians are Indians under section 91.24 of the Constitution Act and that the federal government has a fiduciary responsibility to them.
[Translation]
The congress launched this suit, funded it through all of the proceedings, and supported it at each stage of the legal process. I was very proud to announce last April 14, 2016, that we had finally won.
[English]
It took the Daniels decision accorded by the Supreme Court of Canada to end the judicial limbo of Metis and non- status Indians stuck in the passing of the buck between the provinces and the federal government as to who we should deal with and who has fiduciary responsibility. The road to reconciliation with the indigenous peoples for whom CAP advocates could not have happened until the Daniels case was addressed.
Regarding Daniels, Supreme Court of Canada Justice Rosalie Abella stated:
As the curtain opens wider and wider on the history of Canada's relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.
An opportunity for such remedy lies in the distinct possibility for the federal government and the Congress of Aboriginal Peoples to come together under progressive reconciliation in the form of engagement and consultation on all issues affecting our people. This most certainly includes stage one action on Descheneaux.
As part of the proposed legislative amendments to address residual sex-based inequities in Indian registration, some individuals that identify as Metis and non-status Indians will become eligible for Indian status.
I would like to clearly state that the Métis Nation as expressed by the Métis National Council does not speak for all Metis. However, CAP respects the fact that they are a Metis nation as defined by themselves.
I respectfully submit that we, as indigenous peoples who are part of the Congress of Aboriginal Peoples, have for 45 years embraced the rights articulated in Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples. It states:
1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. . . .
2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
Article 4 of UNDRIP:
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self- government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
Under Article 18 of UNDRIP:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
I quote these articles because they carry a direct impact on CAP's constituency. We have a multitude of different indigenous peoples from different nations who live in off-reserve communities.
In terms of Bill S-3, as I have previously stated, I am pleased that the government decided to withdraw its appeal in the Descheneaux case and has undertaken this process to address the gender inequalities that continue to exist in the Indian Act even after the enactment of Bills C-31 and C-3.
Bill S-3 will give Indian status to those who should have had status all along and will see those born after 1951 become status Indians. However, the Superior Court of Quebec was clear that amendments should not be closely focused on the facts in Descheneaux. With that said, I do not see why the government stopped at 1951 and did not go back further. For example, Bill C-31 went all the way back to the 1860s. Why is Bill S-3 any different? There could be and most likely will be individuals falling through a crack due to the gap between the 1860s and 1951 not being addressed.
I acknowledge that this issue may be addressed in stage 2, but that does not immediately help the person who may be entitled to Indian status and the benefits that come with being a status Indian, such as non-insured health benefits and post-secondary education.
[Translation]
These issues remain important for the CAP and its mandate as the national organization that speaks for registered Indians, off-reserve non-registered Indians, and the Métis and southern Inuit.
[English]
I would like to thank you again for giving me the chance to speak with you today. Meegwetch. Merci. Thank you.
The Chair: Mr. Lafond, please go ahead.
Drew Lafond, MacPherson Leslie Tyerman, LLP, Indigenous Bar Association: Good evening, senators. I'm a 6(1) Indian status member of the Muskeg Lake Cree Nation in Saskatchewan. I'm also a solicitor practising with the firm MacPherson Leslie and Tyerman in Calgary, Alberta. I'm here today to represent the Indigenous Bar Association in Canada, or the IBA.
I currently serve as a director of the IBA and as the treasurer. I've been on the board now for about nine years. By way of a brief introduction, the IBA is a not-for-profit corporation that represents the interests of indigenous judges, lawyers, academics, students at law and paralegals from across Canada. Our membership is currently comprised of approximately 300 members.
In addition to my oral submissions today, you haven't received a copy yet, but we will be submitting written submissions to you later on this week. I apologize for that. Given the nature of the notice we were given in this case, we had to work with what we had been given.
To give you a brief outline of how my presentation is going to go today, I will give you a little bit of a preface about what we understand the purpose of this forum to be and what this presentation is intended to cover. To start, we will go over a little bit of what the IBA would view as a disappointment in terms of the forum that Parliament has chosen to proceed to consider this issue. Next, we want to convey a little bit more of a positive message about where we think we can take this collectively as indigenous peoples and as Parliament. The final message is that although we don't want to spend too much time on this particular aspect, we do have a little bit of a technical comment on the bill that was introduced very recently that we would like to cover off.
So at the outset, I would like to preface the body of my presentation with a couple comments here. First, with respect to the changes that are being introduced under Bill S-3, we are uncertain at this stage how it's going to affect our membership because our membership doesn't subscribe to a rigid formula of status, non-status or Metis individuals. Essentially, any individual who is an indigenous member or self-identifies as an indigenous member who is involved in the legal profession is free to subscribe for membership in our organization. So to the extent that the changes proposed by Bill S-3 purport to affect or alleviate sex inequality in the Indian Act, we can't comment at this stage on how that will affect the composition of our membership.
Next, just to preface the presentation, we acknowledge that the standing committee here was struck for the sole purpose of revisiting the current technical provisions of the Indian Act and that we're here because the court gave you a mandate to essentially eliminate sex discrimination or sex inequality in the Indian Act. We acknowledge the IBA has been invited here to offer comments on the substance of the bill. We also acknowledge the statement given by Minister Bennett earlier this year and that the inquiry here is going to proceed in accordance with a two-stage process. This is the first of the two stages. We understand the second will be a little bit more comprehensive than analyzing the simple terms of the bill.
Notwithstanding, the bulk of our presentation today is going to focus on the overall approach. We will revisit at the back end of the presentation some of the issues that we would like to see addressed within the text of the bill.
But what I want to convey today is that the IBA has a lot of difficulty participating in a dialogue that is ultimately premised on tinkering with a formula that is used to determine who is and who is not an Indian under the Indian Act.
The IBA finds it discouraging that, 34 years following the introduction of section 35 of the Constitution Act, 31 years following the adoption of Bill C-31, 21 years following the report of the Royal Commission on Aboriginal Peoples, six years following the case of McIvor and the amendments under Bill C-3, we're still here debating the issue of indigenous citizenship within the four corners of the Indian Act. We find that extremely disturbing from our standpoint. We disagree with the forum that Parliament has chosen to proceed in this matter. The reasons for that are pretty straightforward. I can't speak for all the members; we have a diverse membership, some of whom are Metis individuals, so certainly whether this affects them or not remains to be seen.
I will go back a couple steps here to give members of the Senate — I don't want to belabour the point — but to give you a little bit of a background on where the definition "Indian'' comes from. The simple approach is that the definition of "Indian'' has at its roots one single purpose: to define who and who is not entitled to the benefits or advantages that arise under the Indian Act. As a draftsman, as a lawyer and as a legislator, that's the intention of the definition of the term "Indian.''
Now, just looking at the history, that's a gross oversimplification of what it means to be a status Indian under the act. I don't want to delve into the complexities of what it means to be indigenous, but colonial relationships and differences between collective and individual interests were covered very well under the report of the Truth and Reconciliation Commission. But there are three things that the IBA finds particularly disturbing about this approach and about the definition of the term "Indian.''
The first is that "Indian'' was, in our view, principally used to identify peoples within Canada's colonial state either who needed to be isolated — and that refers to people who were relocated to reserves — from the mainstream society or who needed to be assimilated.
With respect to the reference to people who were assimilated, there's a quote from some of the previous versions of the Indian Act that we might find helpful, but essentially people who were Indian of the male sex, not under 21 years of age, able to speak, read and write, sufficiently advanced in the elementary branches of education, and of good moral character and free from debt.
Essentially, if you were able to satisfy those criteria, you ceased to be an Indian. In this regard, the definition of the term "Indian'' has a shameful origin.
The second point is that the Crown, through the use of the term "Indian,'' has essentially taken the authority or power away from indigenous nations to determine who their citizens are. This exercise is extraordinarily disempowering for indigenous communities, and it has essentially rendered indigenous attempts at defining who their own citizens are meaningless and altogether ineffective.
In fact, as I think has been conveyed by the earlier witnesses before the panel here, the band membership system that's been articulated under section 10 of the Indian Act today is essentially a secondary means of proving who you are as an indigenous citizen.
The last point that the IBA would like to raise as to why we're disappointed and why we're continuing to revamp or revisit the term "Indian'' within the context of the Indian Act is that we can't point to any particular individuals, but the Crown has not exactly shown itself to be adept at drafting a formula that adheres to principles of sex equality. This is the second time in six years that we're debating the issue, and the third time since 1985 that we're debating sex equality under the Indian Act. Today we're debating sex equality, but we haven't even touched on the issue of the second-generation cut-off rule. These are problems that continue to exist and that won't be eliminated through minor tinkering with the bill.
As I indicated, I don't want to spend the entire submission bashing the process. There is a more positive future ahead that the IBA sees. One of the options is that we can pursue a nation-to-nation approach. This isn't new. This isn't without precedent. I'll repeat the comments of my colleague here, but the indigenous nations have a right under Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, and it's articulated as follows: "Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.'' It doesn't get any clearer than that.
The report of the Royal Commission on Aboriginal Peoples concluded that under section 35 of the Constitution Act, 1982, an Aboriginal nation has the right to determine which individuals belong to the nation as members and citizens. You can see that the notion that indigenous peoples can determine who is and who is not an indigenous person isn't a new concept by any stretch of the imagination.
As I indicated earlier, there are band membership codes that are authorized under section 10 of the Indian Act. A sizable number of First Nations within Canada have enacted membership codes and are currently operating under those membership codes, as I said, because the concept of Indian status that continues to linger essentially renders these codes ineffective or secondary.
Self-governing Yukon First Nations have explored issues of citizenship or defining who their own citizens are outside of the Indian Act status system. Certain agreements, such as the James Bay and Northern Quebec Agreement, have given First Nations or Inuit communities the opportunity to define who benefits from those agreements, and in those cases citizenship is determined by way of kinship ties or community involvement.
All of this is to say that the international and academic communities have recognized the need to push forward with a different approach, with an alternative approach. Indigenous nations themselves are taking steps to assert jurisdiction over citizenship outside of the Indian Act, and I think the question that will be posed to the Senate and the House of Commons is whether they are prepared to work with First Nations or indigenous communities in helping them to assert this jurisdiction.
That completes my presentation with respect to our approach on the forum. As indicated, we would like to see the discussion of indigenous citizenship take place in a much more comprehensive format, one which takes into consideration and gives indigenous nations the option of pursuing jurisdiction over citizenship.
With respect to the technical aspects of the bill, forgive me if I have a little bit of difficulty in explaining these. You'll see that before me I have copies of all the historic versions of the Indian Act and amendments thereto. There are 25 of them in total since 1840.
There is one category of individual that we think is not captured by Bill S-3, and that's in the context of illegitimate children. What Bill S-3 in effect does is introduce a formula by which the illegitimate children of a male born prior to 1985 have secured, essentially, their ability to pass on their status. The illegitimate children of a female born prior to 1985 don't enjoy that same privilege.
Somewhat facetiously, but seriously, another inequality which is not addressed — which we don't entirely endorse because we haven't fully explored the ramifications of it — is that non-status males suffer a disadvantage under the current formula, because prior to 1985, if you were a non-status female, you acquired status if you married a status male. If a non-status male married a female — she was disenfranchised. She lost her status. But when she was reinstated, the non-status male didn't enjoy the same privilege. Depending on how you define the benefit derived from being a status Indian, the non-status male didn't derive the same benefit as the female.
That concludes my presentation with respect to what we think are the deficiencies in connection with the approach adopted by Parliament in this case and also with respect to the bill itself.
Senator Patterson: Thank you for the presentations. I would like to ask each presenter what you think we should do with this bill.
I will address Mr. Lafond and his comments about being very disturbed to see that we're tinkering with the Indian Act, as I think you described it, and disturbed to debate the issue of citizenship within the four corners of the Indian Act, and I understand that.
If that is disturbing, then what would you recommend we do? There has been some suggestion we should go ahead and maybe hold our noses and pass this tinkering, addressing further issues to another process that's been described to us.
We have also heard tonight that we should support the call for more time to do this right. I suppose another option might be to reject the bill outright.
Would you have a comment on what advice you would give to us?
Mr. Lafond: Thanks for the question, senator.
With respect to the approach, as an organization, the Indigenous Bar Association hasn't been given an adequate opportunity to respond to Bill S-3 in its current legislative form.
That being said, subject to the changes and the concerns raised earlier, the bill is out of the bag, and to allow this debate to proceed on an isolated basis, focused only on sex inequality within the Indian Act, any further might distract the parties from moving on to the greater issues.
Now that it is out of the bag, there is some work that will go into applying for a court order to have this period extended, but all that does is prolong the inevitable, which is that we will, in the very short term, need to remedy the inequalities within the Indian Act. But I don't want that to distract from the overall question any further than it needs to.
Senator Patterson: I think you're suggesting we go ahead with the bill.
Mr. Lafond: Subject to our concerns with the bill, yes.
Senator Patterson: Which would require amendments?
Mr. Lafond: Yes.
Senator Patterson: Thank you. Could I address Mr. Bertrand.
Mr. Bertrand: CAP's position on this is we agree to go ahead with stage 1. We do know and are aware of certain inequalities in Bill S-3, but if we don't go ahead, the numbers that were brought ahead by INAC is that it would add roughly 35,000 people to the Indian registry. If we decide to delay it, it would mean that these 35,000 people would have to wait much longer in order to be able to register. We figure it's the lesser of two evils, so that's why we are recommending that we go ahead with Bill S-3 and hope that the problems will be looked at and will be rectified in the second stage of this bill.
Senator Patterson: It will take some time to process the 35,000 people, I think. They're still working on processing people. I understand a small number are still working on applications stemming from the McIvor case. So you would agree that it wouldn't be a question of 35,000 people suddenly being enfranchised? It takes time.
Mr. Bertrand: I agree. It takes time, but if we delay it will take longer. What we are saying is we might as well go ahead and start registering those people.
Senator Patterson: Thank you.
Senator Lankin: In response to Mr. Lafond's suggestion that we need to look at a technical amendment, I wanted to put on the record that there has been a discussion, briefly, a notification from the Indigenous Bar Association to the department, and I believe that the Department of Justice is going to set up a meeting to explore this. If it is determined that the issue that has been identified is one of gender discrimination, it would potentially fall within the scope of this legislation, which is to end gender discrimination. So I think those discussions are going to take place, and we will be informed as a committee as to the nature of the discussion and the conclusion of that discussion. I wanted to make sure we were aware of that and that the folks were on top of it.
Mr. Lafond, I believe there will be the opportunity for that meeting to take place very soon.
I appreciate the presentation and that, reluctantly, we should proceed but that the real focus has got to be on the bigger and broader discussions. There has got to be appropriate engagement, consultation, partnership — all of those words — nation to nation, Canada to indigenous communities and indigenous governments to look at these other issues of second generation cut-off to the bigger question, which is why is Canada still engaged in this business of determining who is a citizen of another nation. So I think that that is true.
In discussions with the officials, I have been told that the intent is to work with national organizations to design the actual nature of the consultation, which I think is important. Otherwise we could well get it wrong again.
I wonder if you have had any chance, since you heard about this second stage, to give some thought to what that engagement needs to look like and how it is a partnership approach on resolving some of these bigger issues. I think we would benefit from hearing this because this committee will want to continue to be involved in understanding how this goes forward in stage 2.
Frankie Cote, Senior Manager, Engagement, Congress of Aboriginal People: So you're asking in terms of stage 2, and you're going to work with the IOs, the indigenous organizations, to design the consultation and engagement process as part of stage 2?
Senator Lankin: We've been told that's what the minister intends to do and that that process is going to launch as soon as we get this done. The actual engagement is probably a year to 18 months. But I'm wondering if you have positions on or opinions about what that consultation engagement process should look like.
Mr. Cote: That's a good question. As senior manager, engagement with the Congress of Aboriginal Peoples, we've been bombarded. It is a good thing because for the last eight years we haven't had anybody talk to us — and that is generally across the board — so we get this question all the time. It's a tough question to answer because you can engage until the cows come home, but there's only so much engagement you can do until the rubber meets the road and things need to change.
In terms of how it will look, it will be consulting with indigenous people's leadership. They will have to consult their constituencies to see what they say because it will impact locally at the grassroots level.
One thing I will put on record — and this is because when Bill C-31 was enacted some money was injected into it but not very much — in terms of Bill C-3, there was nothing.
Funding needs to come with the changes. You're talking about the consultation engagement session, that's a must for organizations because most organizations run on limited capacity. Those that worked at NGOs around the table all know we struggle with capacity. We cannot be experts in everything. Like my friend Mr. Lafond said earlier, we just got the notice of the meeting yesterday, I believe. We presented to the House of Commons committee earlier, so we were prepared, but in terms of the study of the bill, much like the IBA here, we had to look at it; it's complicated, and membership is a complicated piece of legislation.
McIvor — those of you who have tried to figure out how Bill S-3 works know. I'm sorry if I can't answer the question, if you're looking for a specific answer in terms of engagement.
Senator Lankin: What I did hear and what I took away from that is that the capacity to engage has to be understood and supported by government, and we heard that from NWAC as well. They are central to the process around the commission on missing and murdered indigenous women and girls. Their capacity had been diminished over the last number of years, and they're only starting to rebuild. I think that capacity piece is there.
There is also understanding the fact that indigenous organizations have their membership and the people on the ground in the communities that have to be engaged in part of this and have an opportunity to shape the final positions that are taken and that it is different than perhaps a hierarchical kind of process that governments in Canada have the opportunity to do. Indigenous governments have a different process and relationship with their people, so it has to be understood in the design of the consultation as well. Those are the two things I would take away from what you said.
Mr. Cote: Your last point is perfectly correct. Throughout history it has always been hierarchical, and we wouldn't be sitting at this table if it was done collaboratively and together. It has been a one-step process from the federal government determining membership.
Mr. Lafond: Thanks for the question, senator.
At this time, no, I would just reiterate my earlier comments that we're still scrambling to respond to the text of the bill itself. I provided some general thoughts on the approach.
With respect to consultation, we have a very coloured history of working with different organizations and fleshing out what consultation means for First Nations, and I can assure you that we will be very involved when it comes to that process, the second stage, as Minister Bennett calls it; we will be very involved and very interested in what the consultation looks like.
I have unfortunately nothing to offer right now in terms of offering you a visualization of what that could look like.
Senator Patterson: I appreciate that you haven't had much time to look at the bill in depth, Mr. Lafond, but you told us that we should go ahead with it. I'm curious how you could be comfortable supporting the bill not having had the time to study it, and we understand that.
Mr. Lafond: Subject to our earlier comments, we did receive short notice regarding the overall approach, and it was a little bit of a shock to our organization. That being said, we have prepared for this legislative change for quite some time, and it has been on our radar ever since McIvor and since we were asked to study it back in the late 1900s, when I wasn't a member of the organization. We had members who offered their insight into this bill. I can't say we're ultimately comfortable with the text of the bill, but at this time, subject to our concerns, whatever we can do to eliminate sex inequality within the bill now, let's ensure that it's taken care of. We think we've offered our input. The larger battle is with respect to the comprehensive approach, and that's where the focus should reside.
Mr. Bertrand: Could I just add something to what Senator Lankin was asking? Not only was NWAC's financial capacity diminished, I can tell you that CAP's financial support has also been cut by quite a bit.
It seems to me what the government forgets is that Canada is not only Quebec and Ontario; we have constituencies across the country, and if you want to find out what every part of the country needs to tell us, we need the capability to go out there and talk to our constituencies and ask the questions. We can do a very good job consulting, but we need the tools in order to do it. Thank you.
The Chair: I have a supplementary as well. Mr. Bertrand, you said you hope that the problems within the bill would be worked on and resolved in phase 2.
How do we ensure it is not just a hope? What can be done? That promise was made in Bill C-31 in 1985. That promise was made with Bill C-3 in 2010, so we have that same promise in 2016. How will we ensure that the process actually works?
Mr. Bertrand: Madam Chair, we have to hope. I know it's not the best, but we have to hope that the government will consult with everyone concerned and will listen to the answers that — I can only speak for CAP — our CAP constituency will bring to this discussion.
I always say that you talk to the people in the Lac-Saint-Jean area and they have different views, but I think all these views are what make Canada so diverse. We have to listen and the government also has to listen to what these people have to say. If they don't listen, we'll just have to come back, and I wouldn't say break down the door, but we have to knock on the door and say, "You didn't get it right. This is what our people want.''
The Chair: Mr. Lafond, is there a solution that could be inserted into the bill as an amendment? Do you have any suggestions as to how you can put some meat or meaning to that promise?
Mr. Lafond: No, unfortunately that's something we haven't considered. As I indicated during my presentation, we understand or acknowledge that we were invited here to talk to the discrete provisions within the existing bill, not consider the broader approach.
The Chair: Thank you.
Senator Raine: Thank you very much. This is almost like a dilemma that we're in. I think most of us feel the need to proceed because of the court order and also the fact that we know there are 35,000 people who should be entitled to some services that they aren't getting, so we sympathize with that.
While it's good to say there is a second phase coming, from what I've heard over the last few days of testimony, it's a very complicated issue. It says in the bill that there will be one year for phase 2, and my question for you is very simple: Is that long enough?
Mr. Lafond: Thank you for the question, senator. In our preliminary view, we haven't had an opportunity to engage First Nations or, for that matter, the vast majority of our members, so I can't offer any comments as to timelines that would be adequate in order to tackle this issue.
Mr. Bertrand: As my colleague was saying, we got this at sort of the last minute, and we did do some preliminary work on it, but I was under the impression that it was not one year for the second phase but that the government would have to do it in their first mandate, so that would leave another three or four years. Maybe I misread?
Senator Raine: I have so many pieces of paper here, but we've heard consistently that the consultation was very rushed and it was really not consultation. It was basically, "We're giving you this information and we're proceeding,'' so it was information provided but not true consultation.
Senator Lankin: Just on that point, if it is helpful, it's not contained within the bill but in the briefing notes you received and the announcement about stage 2. When it was explained to us, the hope is that within a 12- to 18-month period — that's what I have consistently been told — that's what the planning is for, but no one wants to proclaim the number of months at this point in time because there is a commitment to work with indigenous organizations to design phase 2 and the consultation process. If that comes back and someone says we want to do it in 12 months or it will take 24 months, there is an openness on the part of the government to respond in those discussions. That's what we know to date.
Senator Enverga: Thank you for being here today. You mentioned earlier, Mr. Bertrand, that 70 per cent of Aboriginal people live off-reserve.
According to our study, there will be about 35,000 people who will get some benefits if Bill S-3 is approved. How many of those 35,000 belong to your organization?
Mr. Bertrand: I would have to check those numbers, senator. I do not have them with me. This is purely my point of view, but if we extrapolate and know that 70 per cent of Aboriginals live off-reserve, we could probably safely say that 50 per cent of those people would be living off-reserve.
Senator Enverga: When we asked you whether we should bring in Bill S-3 or not, you said we might as well go ahead, so you're sort of dissatisfied with the whole thing.
If there is any one thing you would like us to do to amend this, what is it? Do you have any idea of the best thing we could do to make it a little bit right for you?
Mr. Cote: Thanks for the question. I think National Chief Bertrand alluded to it earlier in his opening remarks in terms of going back further. We all know that after Sharon McIvor won her case she tried to appeal because it didn't back go far enough in her eyes.
This bill only goes back to 1951. Discrimination under the Indian Act started right from its inception — even before that, actually. It was enacted in 1876, but the provisions to do with membership discrimination and the Indian definition go back a decade or so earlier.
This bill is going backwards to correct wrongs that were done, but the reality is the Indian Act going forward will still have implications in terms of the second-generation cut-off points. That needs to be addressed.
We're hoping that will be addressed in stage 2. That will be one, I'm assuming, because we heard in the previous presentations some of the things that were brought out.
But to specifically answer your question, that's just one thing that could be done, going back to the 1860s. That's all I can answer off the top of my head.
As Drew said earlier, the study of the bill and its actual implications was a difficult task to do in such a short amount of time.
Senator Enverga: Is there any one thing you want us to do to make this better for everyone?
Mr. Lafond: With respect to sex inequality or all together?
Senator Enverga: Bill S-3 in particular.
Mr. Lafond: The scope of the bill being sex inequality, the comments that I offered earlier and that I've been invited to work with the department on are satisfactory.
Senator Meredith: Both of you said, "Let's move forward with the bill.'' There are problems with it. What about court challenges? I'm concerned about the billions of dollars spent since 1876 fighting the Crown. Those are monies that would be better invested in education, youth, housing and infrastructure on First Nations reserves.
Mr. Lafond, can you start with your perspective on the bill going forward, passing and then being challenged, further complicating matters with respect to those individuals, including every member on this committee, who want to see those rights being attested to these individuals who are without those rights currently?
I'm concerned about those challenges. Could you comment on that for me?
Mr. Lafond: Going back to how you phrased the question, we're moving forward with the bill not in its current form, but subject to the comments we offered earlier for revisions.
Senator Meredith: Could you, in a nutshell, elaborate on the technical aspect of it, to enlighten us a little bit?
Mr. Lafond: This is only in the context of sex inequality within the bill and an amendment or revision that could be used to advance sex equality.
Further to my earlier comments, it's the illegitimate children whose mother was a status Indian who are being treated differently than the illegitimate children whose father was a status Indian, who were born prior to 1985. The second, obviously, is the non-status male individual being treated differently than the non-status female individual.
In the context of sex equality alone in this bill, subject to our comments and proposed revisions, you can say we accept the position that we should be moving forward with that bill currently to meet the obligations that have been placed upon Parliament by the courts with a strong caveat that, in our view, the more responsible approach is to attack the entire problem regarding citizenship under the Indian Act.
To rephrase or set out my earlier position, I'm paraphrasing wildly and I apologize for that. In terms of the litigation, in this case, it's an issue because the courts have ordered that an amendment be made to the bill to bring it into compliance with the Charter.
Beyond that, you raised court cases and how much these instances of sex inequality are costing litigants and how that deprives First Nations of the ability to allocate those funds for other purposes. I don't want to get caught up in that discussion because, in our view, Parliament has an obligation to be proactive about this and identify the issue without regard to the costs.
That's essentially the tail wagging the dog. There have been court cases since 1985 where First Nations have asserted the right to self-government in the context of membership. They're spending money to prove their Aboriginal right to determine who their own citizens are, and I would speculate that's costing hundreds of thousands of dollars, as well.
In that regard, the more responsible approach is to proactively, as a Parliament, work with First Nations to try to find a solution.
The Chair: We are well past our time and I'm going to take the prerogative of asking the last short question.
I'm glad to hear that the Indigenous Bar Association is considering asserting amendments that will correct some of the deficiencies in the bill.
It has been pointed out that the bill will still be deficient with regard to removing sex inequalities if it doesn't backdate it before 1951. You didn't mention backdating it before 1951 and back to 1868 or 1869. Why is that? Without that amendment it would not satisfy all the sex inequities in the bill.
Why have you not considered putting in an amendment that would backdate it to the original time when the discrimination was inserted?
Mr. Lafond: In the context of that discrimination under the current bill, the sections which gave rise to the discrimination on the basis of sex originated under the 1951 act.
The Chair: It is in the 1951 act, yes, but it's also in the 1869.
Mr. Lafond: I can go backwards. Under the 1951 act, I apologize, but it's a little bit of a convoluted process here.
The Chair: Under 12(1)(b).
Mr. Lafond: Yes, you are correct.
The Chair: But that is also mentioned in an older version of the Indian Act that goes back to 1869.
Mr. Lafond: Yes, and the way that we have interpreted the 1985 rules along with all the subsequent amendments following 1985 is that under 6(1)(c), it provides that the name of that person was omitted or deleted from the Indian Register or from a band list prior to September 4, 1951. So it does actually refer to deletions or omissions prior to 1951 under 12(1)(b). Then the paragraph goes on to provide "or under any former provision of this act relating to the same subject matter as any of those provisions.''
So we interpret that as including not only the provision that was introduced in 1951 as amended in 1970, but all the provisions that dealt with the same subject matter in the Indian Acts that predated the 1951 Indian Act.
The Chair: Okay. Our previous witness for the Descheneaux case had a different interpretation, so that is very confusing. We will take note of that confusion.
Senator Lankin: You will undertake to get some information from DOJ as they are meeting with Mr. Lafond about his proposed technical amendment. That issue can also be responded to for the committee.
The Chair: Okay, thank you.
Did you wish to respond, Mr. Bertrand?
Mr. Bertrand: Bill S-3, if I understood it right, comes from the Senate. Am I right?
The Chair: It was introduced in the Senate, but it is a government bill.
Mr. Bertrand: You were asking why we didn't go back past 1951.
The Chair: In terms of the bill itself?
Mr. Bertrand: If it emanated from the Senate, my question is perhaps to you, why wasn't it included when the Senate was preparing it?
The Chair: We didn't draft the bill. The Department of Justice drafted the bill. We didn't draft the bill. It's not our bill.
Mr. Bertrand: I'm sorry.
Senator Patterson: It was introduced in the Senate, but it's not our bill.
Mr. Bertrand: I see.
Mr. Cote: Basically to elaborate on what Chief Bertrand was getting at, the question is basically being thrown back at the government. It's the government who created this bill. By not going back prior to 1951, the Superior Court of Quebec was pretty clear in Descheneaux where they said in obiter don't just focus on the facts in Descheneaux. The question is basically being thrown back at Parliament: Why didn't Parliament take into account what the Superior Court of Quebec said?
The Chair: The answer is clear as mud at this point in time.
Thank you, gentlemen, for your presentations. We have had witnesses from the Indigenous Bar Association and the Congress of Aboriginal Peoples. Thank you, senators. The meeting is adjourned.
(The committee adjourned.)