THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, May 9, 2017
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 9 a.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional lands of the Algonquin people.
My name is Lillian Dyck, I’m from Saskatchewan and I have the privilege of chairing this committee.
I will now invite my colleagues to introduce themselves, starting with the deputy chair.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Pate: Kim Pate, Ontario.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas, New Brunswick.
Senator McPhedran: Marilou McPhedran, Manitoba.
The Chair: Thank you, senators.
Before we begin, I believe Senator Patterson has a motion that has to be tabled.
Senator Patterson: Colleagues, I made a motion on December 6, which was supported by this committee, respecting Bill S-3, that the committee not report the bill. That motion was supported by the committee, which is what has brought us here today.
I would now like to move:
That notwithstanding the motion adopted by the committee on December 6, 2016, that the committee continue its consideration of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
The Chair: Thank you, Senator Patterson.
Is it agreed?
Hon. Senators: Agreed.
The Chair: Today we continue our consideration of Bill S-3, which we first studied in the fall. After hearing witnesses, the committee wrote to the minister asking for a review and to come back to us with a new bill or amendments fixing deficiencies. We now find ourselves here today, and we have been sent six proposed possible amendments, which we will hear about today.
We will start with department officials from Indigenous and Northern Affairs Canada. We have before us Joëlle Montminy, Former Assistant Deputy Minister, Resolution and Individual Affairs; Mr. Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs; Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management; and Candice St-Aubin, Executive Director, New Service Offerings, Resolution and Individual Affairs Sector.
After the end of that first panel, we’ll have a second panel at 10 o’clock. We will begin the session with presentations by the department officials.
[Translation]
Joëlle Montminy, Former Assistant Deputy Minister, Resolution and Individual Affairs, Indigenous and Northern Affairs Canada: Good morning, Madam Chair. I am accompanied today by Martin Reiher and Candice St-Aubin, Executive Director, New Service Offerings, Resolution and Individual Affairs Sector, and by Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management.
I thank you for having invited me here today to provide the committee with an update on the government’s response to the Descheneaux decision, a response that implies, first of all, legislative amendments in the context of Bill S-3, which will be followed by a collaborative process on more general, related questions, with first nations and other indigenous groups.
[English]
I would like to once again reaffirm the government’s commitment to ensuring equal rights for indigenous peoples and to eliminate known sex-based inequities in Indian registration under the Indian Act.
During the study of the bill this past fall, witnesses and members of this committee expressed concerns regarding whether Bill S-3 addressed all possible situations of sex-based inequities. As well, concerns were raised around the level of engagement with First Nations and impacted individuals.
As a result, this committee suspended its study of the bill and recommended that the government seek an extension to continue the consultation process on issues within the scope of this bill. This was done to ensure that Bill S-3 does, in fact, eliminate known sex-based inequities and that appropriate remedies are identified to address the situations found in the Descheneaux decision.
[Translation]
Last January 20, an additional period of five months was granted by the Quebec Superior Court to remedy discrimination noted in the Descheneaux affair. The deadline to remedy that situation is now July 3, 2017. This extension allowed us to continue the process of engagement, while ensuring that justice will be rendered as quickly as possible for the 35,000 individuals who will become eligible for registration in the Indian Register following the adoption of Bill S-3.
[English]
Today, I am here reporting back on what we heard during the additional engagement activities.
First and foremost, you will likely hear from witnesses yet again that the timelines for the engagement were too short, and we know that. We know that in total, the real engagement process will have been two truncated phases of three-month periods. We do want to acknowledge, however, the hard work and long hours that the various organizations and individuals have put into the work to engage with us.
During the extension, and building on the engagement sessions that we held last fall, the government was able to conduct 10 additional engagement sessions from January to April, 2017. We also held bilateral discussions with the Canadian Bar Association, the Aboriginal Legal Services and the Feminist Alliance for International Action, as well as other interested individuals.
The department also provided support to the Native Women’s Association of Canada to design and lead a series of engagement sessions with its provincial and territorial member associations. Their report was shared with members of this committee.
The department also provided support to the Indigenous Bar Association to complete a review of the bill to identify situations of sex-based inequities that may not have been captured in the previous version of the bill. Their report was also shared with members of this committee.
Finally, we held three technical discussions with legal representatives from the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women’s Association of Canada, the Indigenous Bar Association and also representations from the plaintiff’s legal counsel in the Descheneaux case.
During theses sessions, a wide range of issues were discussed, including issues that go beyond the scope of the current bill. What was evident from these discussions is that people are very passionate and committed to addressing issues of inequity in Indian registration. While there remained some disagreement on how to achieve this, we saw some consensus emerging on the concept that jurisdiction over Indian registration, citizenship and band membership should not remain solely in the government’s control.
As mentioned earlier, we provided support to the IBA and NWAC to review the bill and to identify situations of sex-based inequities that may not be captured in Bill S-3. In their reports, issues such as the 1951 cut-off and unstated paternity were raised, as well as amendments related to new inequities that would be created by the passage of Bill S-3 as currently drafted.
Bill S-3 is intended to remedy situations of known sex-based discrimination in registration. Known sex-based discrimination refers to situations where the courts have already found discrimination or other fact situations that are similar but have not been ruled on by the courts. These are situations where, if a court applied the current state of the law, we believe that it would rule sex-based discrimination exists. For instance, there is a clause already included in Bill S-3 that deals with a situation not yet found by a court to be discriminatory but which we believe would be if that was to be litigated. I’m referring here to the issue of the omitted minor, which we have put forward as a result of the Descheneaux decision.
Further, the proposed remedy in Bill S-3 to the Descheneaux decision actually created two new comparator groups which, although not presently causing any discrimination, would be as soon as Bill S-3 passes. We are therefore proposing to remedy those situations proactively with amendments to Bill S-3 that have been suggested by the Indigenous Bar Association.
During our engagement, many groups argued that the so-called 1951 cut-off is also sex-based discrimination and should therefore be dealt with in Bill S-3. We contend, however, that the key difference between known sex-based inequities and the 1951 cut-off is that the courts have already ruled on this issue. The Court of Appeal in British Columbia has found that it is not necessary to reach back prior to 1951 in Indian registration to be Charter compliant. In this particular case, the Supreme Court of Canada refused to hear further appeal on that decision. So unlike the other situations where the courts have yet to rule one way or the other, the B.C. Court of Appeal has actually ruled against the proposed approach Ms. McIvor had put forward.
Bill S-3 is meant to remedy known sex-based discrimination based on the current application of the law. Given the decision of the B.C. Court of Appeal, removing the 1951 cut-off would amount to a policy decision that the government should not be making unilaterally. This is a complex issue that requires proper consultation informed by updated and detailed demographic analysis. This is why the government has committed to a second stage to discuss issues that are not solely sex-based and remain beyond the scope of Bill S-3.
We also heard from the IBA. They insisted on the need to empower indigenous jurisdictions over citizenship. Similarly, NWAC emphasized in their report that indigenous peoples should have the autonomy to determine their own citizenship and that, although Bill S-3 addresses important gaps in the Indian Act, they strongly encourage the government to undertake meaningful engagement in phase 2 to ensure that all discrimination is definitively removed from the act once or for all.
The government has heard the recommendations from the extended engagement. We welcome the suggestion that Bill S-3 be amended to address some of the situations raised, such as unstated paternity and the new inequities identified by the IBA related to siblings and cousins. We also welcome the suggestion that we report back on progress in the implementation of stage two of thegovernment response to the Descheneaux decision.
As I have mentioned before, some of the issues raised around registration, membership and citizenship are complex. They go to the heart of identity questions and, therefore, cannot be unilaterally fixed within the short timelines imposed by the court. Consistent with Canada’s commitment to reconciliation on a nation-to-nation relationship with indigenous peoples, the minister of Indigenous and Northern Affairs has previously given her word personally, in both committees, that stage two will begin once Bill S-3 passes.
We also need to consider the consequences of not meeting the deadlines imposed by the courts. As you know, there are tens of thousands of people who would become eligible to be registered under Bill S-3, and not meeting the deadlines would mean that these people would see the recognition of their rights further delayed. Also, the consequence of not meeting the court deadline is that the provisions that have been struck down represent 90 per cent of the people that seek to register under one of these provisions. That means that 90 per cent of people seeking registration in Quebec could not do so should we not be able to remedy the discrimination that was found in the Descheneaux decision in a timely manner, and this might also be the case across the country, as the situation would be similar.
Stage two will be the opportunity to examine the broader issues relating to registration, membership and citizenship, with the objective of identifying areas of future reform. It is important to note that, under the renewed relationship of nation-to-nation with indigenous people, stage two will be jointly designed with First Nations and other indigenous groups and will allow for flexibility with respect to the types of activities that will take place and subject matter that will be discussed.
[Translation]
I thank you for the opportunity to address the committee this morning. I hope that the information I have provided will be helpful. We would now be pleased to answer your questions.
[English]
The Chair: Thank you, Ms. Montminy.
Mr. Reiher, are you making any remarks, or shall we proceed to questions from the senators?
Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs, Indigenous and Northern Affairs Canada: We’re ready to proceed to questions, senator.
The Chair: Thank you. We are open to round one of questions. Senators, we have to break at ten o’clock, so keep that in mind.
Senator Sinclair: Madam Chair, before we begin, I did ask a question at the end of the informal session before we began recording. I wonder if we could see if we could get an answer to that question.
The Chair: Yes, we’ll put you on the list then.
Senator Sinclair: If you don’t mind.
Senator Patterson: Witnesses, welcome back again. You’ve become familiar faces here. I wonder if it would be useful for the committee to have a summary of what’s new in these amendments. What is in these amendments that wasn’t in the bill that we rejected? Could you give us a user-friendly summary of what these amendments are? I know you touched on them in your opening remarks, but I think it would be good to have just a catalogue, in plain language, of what is new, what you’ve added that wasn’t there before, please.
Mr. Reiher: As was mentioned, the additional engagement allowed for additional work to be done, which identified issues that can now be addressed.
The bill that comes back to you is Bill S-3 in its current form, but the government is prepared for, and would welcome or support, amendments that would first address two inequities that were identified by the work of the Indigenous Bar Association. Relatively speaking, these two inequities are stemming from the remedies that will be provided by Bill S-3. There are two new comparative groups that would be created, so two new inequities that we would propose to address.
Senator Patterson: Could you just elaborate quickly on what those two inequities are?
Mr. Reiher: Sure. The report of the Indigenous Bar Association identified two inequities created by paragraph 6(1)(c.4) of Bill S-3, regarding the transmission of Indian status to their great-grandchildren born prior to 1985 of an Indian woman and an Indian man if their children lost status due to a protest under the previous subsection 12(2) of the Indian Act 1970.In this instance, the comparative group is the group of individuals that will benefit from the siblings remedy.
The second inequity has to do with the transmission of Indian status to the great-grandchildren born prior to 1985 of a parent affected by the double mother rule under the previous 1970 Indian Act. In this instance, the comparative group is the group of individuals that will benefit from the cousins remedy of Bill S-3.
These are the two inequities that have been identified in the Indigenous Bar Association report that we would want to address with amendments that would be new in this bill.
There would be two consequential amendments to bring to the bill if that were done, to adjust the wording of clause 2 and clause 8 to reflect changes to the bill.
In addition, the work that was done by legal experts as part of the additional engagement allowed us to identify a technical issue with the wording of the current clause 6(1)(c.3)(ii) of the bill. The verb tense in this provision would need to be adjusted in order to properly remedy the siblings issue identified in Bill S-3.
On April 20 I think, the Ontario Court of Appeal rendered a decision in the Gehl matter, which changed the law with respect to the unstated paternity situation. In this situation, the Ontario Court of Appeal determined that the way the Indian registrar applies section 6 to situations of unstated or unknown parent or ancestor is not fair procedurally and is potentially in contravention of Charter values. A potential amendment that would be welcomed by the government would address this situation.
Lastly, as previously accepted by the minister, she would be prepared to come back before Parliament to report on the stage two collaborative process, so a reporting clause could be added to this bill, both for reporting on pre-engagement and the collaborative process, and then later to report on the implementation of the provisions of the bill.
There would be about six new elements to the bill if all of these were presented.
Senator Patterson: That’s very helpful. Just quickly on the last amendment, Parliament would include the Senate. This committee, presumably?
Mr. Reiher: Correct. Both Houses of Parliament.
Senator Patterson: I’ll leave it at that. Thank you.
Senator Lovelace Nicholas: It’s nice to see you again. My concern is the registration of cousins. As you know, the border separated families, Maine and Canada, so one child was able to register but her brother wasn’t, yet they had the same father. So how would this be addressed?
Mr. Reiher: The cousins issue is one that was created by the 1985 amendments. The imposition of the two-parent rule created, as was recognized by the Court of Appeal of British Columbia in the McIvor decision, an issue in the transition between the old and the new regime.
The cousins problem was addressed partially in 2010 with amendments to the Indian Act, and this bill will complete the resolution of the cousins problem as recognized by the British Columbia Court of Appeal.
Senator Lovelace Nicholas: So when it becomes legislation, this person who has been denied all these years will be able to be registered in this community?
Mr. Reiher: You will appreciate that it’s difficult to talk about a specific situation, but if it’s a situation of a cousins problem, it would be addressed in accordance with the British Columbia Court of Appeal.
Senator Lovelace Nicholas: Thank you.
Senator Sinclair: When the act is amended in order to do away with gender-based discrimination, there will have been thousands of applicants in the past who had been denied status because they weren’t eligible under the previous rules, and they may or may not — more likely not — know that the act is amended and they may now be eligible.
Is the department developing a plan to notify all of those people who were previously discriminated against that they may now be eligible to apply and to invite them to reapply, or will the department be reconsidering those applications with the information they now have to determine whether people previously denied are now in fact eligible and will be told they’re eligible?
Mr. Reiher: It would be difficult to go one by one to try to find the individuals who may be entitled or to reconsider applications that were made in the past because some individuals not contemplating being entitled would not have made applications.Similarly, it might not be possible to identify all the individuals potentially entitled.
What the department intends to do is rather to put in place a robust communications strategy to make sure communities and organizations receive information on the amendments so that the information may be made available to all those potentially affected, with a view to allowing them to apply for consideration of their situation.
Ms. Montminy: I would just add that, as you know, through the engagement process under phase one -- and we will continue under phase two -- we’ve been communicating broadly to all kinds of organizations. A number of those represent those that are not currently registered, and they could also be family members of individuals who are represented by chiefs and communities.
We will be implementing a robust communications strategy to make sure that people are informed of the legislative changes once the bill is passed and that people are given an opportunity to reapply if they believe their situation is covered by these amendments.
I should also mention that since August 2015, since the Descheneaux decision came down, we have been setting aside applications that we believe would fit the cousins, siblings and the minors issue, which we had intended on addressing from the beginning. Those applications have not been processed but will be as soon as the legislative changes are in place.
Senator Sinclair: I agree with you that a robust communications effort is needed in order to make people aware now that the law has changed and they might benefit from it, but my question really is: Are you developing or have you developed a robust communications strategy yet?
Candice St-Aubin, Executive Director, New Service Offerings, Resolution and Individual Affairs Sector, Indigenous and Northern Affairs Canada: If I may jump in, senator, this is one of the issues that was also raised in the community engagement sessions around communications and how to communicate to both people currently in urban environments as well as incarcerated individuals. This is something that I think would also benefit from increased input from individuals. We’ve had some broad strokes of how we would reach out, but I think it’s really something we’re still working on, how best to reach those who are most challenging to reach.
Senator Sinclair: Thank you.
Senator McPhedran: Thank you to officials for joining us again and for a lot of hard work between our last encounter and for the informal consultations we’ve been able to have with you. Thank you.
I will be more specific with the wording — I won’t go into that detail here — but I want to make the point about the proposal in the amendments before us for a report to Parliament, essentially a statutory review after five years. I refer to the title of the legislation under consideration: Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
What I am proposing — and I will provide specific wording, but I just want to speak to it in general terms — is that five years is too long to wait for a statutory review once this has received Royal Assent, and I would propose three years.
I would also propose a much more specific set of tasks that would need to be accomplished in the statutory review so that the report back to Parliament actually addresses the intent and the promise of Bill S-3 and uses the language “elimination of sex-based inequities in registration,” and that the actual wording be changed to be much more specific so that whoever is responsible for implementing this requirement in the new law will report on the degree of achievement of said elimination of sex-based inequities; the circumstances, if any, where elimination has not been achieved; and if there are such circumstances, table with the statutory review a plan of action for achieving the goal of the legislation, which is elimination of sex-based inequities. So that’s coming.
The Chair: Before we proceed to a second round, I would like to ask a question regarding the pre-1951 cut-off, which I presume is the intention mostly of the tabling of reports and the follow-up report in three to five years.
In your remarks, Ms. Montminy, you talk about Ms. McIvor’s case where it was ruled by the B.C. Court of Appeal that it wasn’t sex-based discrimination under the Charter. My question is this: Has it been challenged under the Constitution? Under section 35(4) of the Constitution, Aboriginal men and women are guaranteed equal rights. As far as I know, it hasn’t been challenged in that way, and I wonder if you’ve considered whether or not it could be considered constitutionally valid that the pre-1951 women who lost their status was a breach of their constitutional rights. Have you considered that?
Ms. Montminy: This has been a very important issue that has been debated throughout the study of this bill and also in our various engagement sessions. As you know, in the case of Ms. McIvor, the lower court from British Columbia had ruled that there was discrimination and had determined that the broad remedy should be implemented, which would have addressed the situation of past generations prior to 1951. On appeal, the B.C. Court of Appeal ruled that it was not necessary to go back that far and the decision was a much narrower decision to address Ms. McIvor’s situation.
Is it possible that in the future a court would rule differently? Absolutely. And we cannot speak to this, obviously, with all the different possible situations. But as it stands now, we have a Court of Appeal that said it was Charter compliant to address the situation that was presented in the case of Ms. McIvor in a narrower way. There were comments made by the court, as you know, in the B.C. Court of Appeal, where the Court of Appeal questions whether the fifth-generation descendants of a woman who lost status in the 1870s could even make a Charter claim. There were questions like this. The court did look at whether it was reasonable to go all the way back to 1870. Again, where we are now is that there has not been a determination that the pre-1951 cut-off is not Charter compliant.
What I have argued in my remarks and what we have been struggling with is that, as you know, we have these competing interests. One is to address known sex-based discrimination, but we are also attempting and the government is committed to building nation-to-nation relations. To the extent that a particular situation has not been found to be not Charter compliant, it then becomes a decision that is more based on policy than law. If it’s a decision that is based on policy, we do believe that it requires meaningful consultation with all interested parties and stakeholders, as well as impacted individuals. This is why we’ve said from the beginning, knowing that this issue is something that needs to be considered with greater attention, we believe this would be done through the stage 2 process, which will be given sufficient time for meaningful engagement, and which we never had from the beginning, knowing that we were operating under court deadlines through phase 1 of this process.
Senator Christmas: Good morning, everyone. I want to follow up on Senator Sinclair’s question on the robust communications strategy. Is it possible to have that strategy shared with the committee at some point, perhaps prior to the bill being passed?
My second question is whether that communications strategy would involve providing resources to First Nations or indigenous organizations to help in that communications strategy?
Ms. Montminy: Yes, we could certainly share with the members of this committee the communications strategy once it’s finalized. Again, it’s still under development because we have been engaging up to just a few weeks ago. So we will continue developing our strategy. We will also look at what was done in the past because after the McIvor amendment, after the last round of amendments in 2011, we had predicted that there would be up to approximately 45,000 new individuals eligible to be registered, and to date we are close to that number, around 40,000 or something like that. I don’t think it’s a significant challenge that we have to reach out to these individuals, because we believe that they will come forward. We will be sharing the communications strategy.
With respect to resources, I’ll defer to my colleague. We’ll have to see what is possible. It might be necessary to do so.
Mr. Reiher: I would add to this response that the strategy will include resorting to the Indian registration administrator in communities, so information will be provided to them. There are already resources in communities provided by the department, and we will use this as part of the strategy to make sure the information reaches individuals.
Senator Christmas: I have a supplementary question. My concern is that we want the communications strategy, obviously, to be as effective as possible. By involving indigenous organizations and First Nations as part of that strategy, it would ensure that as many people who are affected are reached with the knowledge of the amendments. I would encourage as much as possible that the communications strategy, as it’s being developed, be shared with this committee, and my preference would be prior to the passage of the bill. Correct me if I’m not hearing this correctly, but I’m hearing there is a commitment for the department to share that communications strategy with this committee prior to the passage of the bill.
Mr. Reiher: Yes.
Senator Pate: Thank you to the departmental witnesses for appearing. I had requested the terms of reference that were provided by the government to the Native Women’s Association. To my knowledge, we haven’t received those, and I wanted to request if that was possible. You’ve got them? Great, thank you.
I may have misheard, and I apologize if I did and I encourage you to correct. I thought had I heard you say the Native Women’s Association was satisfied with the process. My read of their report is that there was a clear reference to the fact that the Native Women’s Association of Canada saw some positive changes in Bill S-3 but were very clear that sex-based discrimination was not eliminated by Bill S-3 and in fact requested that those sex-based inequities be addressed. If I misheard, I apologize. If you could clarify, that would be great.
Ms. Montminy: I didn’t mean to cause any confusion. I agree with everything you’ve stated. The Native Women’s Association has stated that Bill S-3 is a step in the right direction but there is more work to be done. They are looking forward to stage two. They did submit some suggestions for amendments going forward. So you’re right.
Senator Sinclair: Among the amendments that you provided to us have been amendments concerning an attempt to address the issues raised in the case of Dr. Gehl, and in particular, the decision of the Ontario Court of Appeal, which effectively said that for the registrar simply to follow a policy was unfair to the applicant and that the registrar had to exercise some discretion and analytical process to each application.
I notice from the amendment that you’ve now put in a requirement that where an ancestor is unknown in terms of whether their identity is known or whether they were in fact registered or entitled to be registered, that the registrar has an obligation to determine on a balance of probabilities whether that person, the ancestor, wouldn’t have been entitled to be registered.
If that is going to be subject to review in terms of administrative law, do you have a view that you can now put on the record as to whether the registrar has to be correct in his or her assessment, or is it a standard of reasonableness?
Mr. Reiher: That is a difficult question for me to answer without previous consideration. There is fairly complex law on that question.
Senator Sinclair: You can simplify it by putting in the amendment what the standard is, but I’m just asking whether you have a view as to what this would create.
Mr. Reiher: I apologize, but I cannot at this moment answer that question. I do not have a view on what would be the standard of revision for a decision like this with an amendment that would allow the registrar to consider a wide range of evidence to determine whether a parent or an ancestor is eligible for registration as opposed to the identity, per se, of the individual.
With such an amendment, it would greatly facilitate, of course, the registration of children in situations where the father is unstated on the birth certificate. The proposed amendment would clarify that the burden of proof is just a civil burden of proof, which is the balance of probabilities, and the registrar would have to consider the weight to give to the evidence provided. As you indicate, that determination, that discretion exercised by the registrar, would be reviewable by courts based on reasons provided by the registrar.
So the question is if a court were to look at and review a decision of the registrar, whether the standard would be correctness or reasonableness. Under the case law, as you know, senator, it depends in part on what the previous jurisprudence says. In this situation, there is no such thing as precedent because that would be something new, so I cannot rely on precedents to respond to the question. I would not want to give lightly a position or opinion on this, but I’m definitely prepared to consider it and provide some information at a later point to the committee in that regard.
Senator Sinclair: I wonder, then, if you might marshal the considerable forces at your disposal to have somebody do an analysis or at least develop an opinion or develop a position for the department that you could share with the committee as to whether a review of the registrar’s decision under this proposed amendment requires the registrar to be correct or simply to act reasonably. If you could develop that opinion in the short term, because we are going to be doing clause-by-clause analysis next week, I believe, that would be very helpful for us to know.
Senator Patterson: I had regard to Madam Justice Masse’s observations about engagement and consultation in her decision. Do you feel that you have adequately consulted, in view of your obligations set out by the courts under section 35 of the Constitution, in presenting these amendments to us today?
Ms. Montminy: We have certainly made the best use possible of the time that was allowed to us by the court, both in the first period of the suspension of the declaration of invalidity and again in the extension that we received.
As you know, senator, we had to judiciously use the time we had between the engagement and also giving sufficient time to Parliament to consider the amendments. I would say that we have certainly made best efforts to achieve the highest level of engagement possible within the time frame that we had.
Senator Patterson: The amendment proposed talks about a stage two collaborative process, two reporting periods totalling 18 months.
The previous government, a Conservative government, adopted a similar approach in response to the McIvor decision in 2009, and that, of course, has resulted in previous legislation. That consultation ran over the entire year of 2011, led by a total of 55 national, regional and local organizations. There were 3,500 individuals who participated, and each organization decided how to engage their members, and that identified broad issues related to membership.
Will you be building on that work that was done previously, or are you intending to start anew? If you’re going to start all over, I would have to question the 18-month timeline you’ve presented.
Ms. Montminy: We will definitely be building on the wealth of information that was collected through this process in 2011, and we have also stated that publicly in many instances. It’s part of the paper that we submitted early in the process when we started engaging, that the intention was to continue building on that wealth of information so we can actually now move to the much more concrete step of identifying areas for future reform.
Senator McPhedran: This is a question to the registrar. I’m happy to get more detailed information after this session. What is the number of staff in your office dealing with this issue? Is there a plan or a sense of need for staffing up in the event of the adoption of this bill?
Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Indigenous and Northern Affairs Canada: As it now stands, we have about, I would say, 20 to 30 people who work in the area of registration. That includes everything from intake, when registration applications come in, to adoptions, to the analysis of registration files daily.
As was mentioned earlier in previous appearances, money has been flagged to definitely increase our staffing complement to deal with the increase of applications that will be coming in and to deal with them as quickly as possible.
Senator McPhedran: I have a very quick supplementary on that. Is this planning meshing with some of the onus questions raised by Senator Sinclair earlier? In other words, has there been discussion that if the amendments are in place, to reduce the onus on those who are trying to register, and that in turn would likely reduce the cost for staffing up for this?I don’t know if that’s been discussed.
Ms. Nepton: I am not aware that those discussions have happened at that level of detail. I can tell you, on a personal note, that, with respect to the evidentiary burden, I have discussed it on specific files that are now before me, and I am very sensitive to the fact that the evidentiary burden may have been overly onerous on the individual.
As Martin Reiher indicated earlier, we are going to be in the process of developing directives, and it’s for staff when they are faced with these types of decisions.
The Chair: On behalf of the committee, I would like to thank our witnesses this morning — Ms. Montminy,Mr. Reiher, Ms. Nepton and Ms. St-Aubin — for appearing before the committee formally. I would also like to thank you for your meeting with the committee informally, I think about three times already, to keep us up-to-date as to what’s going on. That has been most helpful to us.
In our second panel this morning, we welcome back witnesses that we heard from in the fall. National Chief Perry Bellegarde from the Assembly of First Nations is accompanied by Stuart Wuttke, their general counsel. We also have two witnesses from the Canadian Bar Assocation, Mr. David Taylor, Executive Member, Aboriginal Law Section; and Ms. Gaylene Schellenberg, Staff Lawyer on Law Reform. We will first hear from the two witnesses from the Canadian Bar Assocation, to be followed by the witnesses from the Assembly of First Nations. Thank you. You may begin.
Gaylene Schellenberg, Staff Lawyer, Law Reform, Canadian Bar Association: Thank you for the invitation to again appear before you today on Bill S-3.
The Canadian Bar Assocation is a national association of over 36,000 lawyers, law students, notaries and academics, with a mandate including seeking improvements in the law and the administration of justice.
Our Aboriginal Law Section consists of lawyers specializing in indigenous law from across the country, and with me today is David Taylor, an executive member of the section who practices law here in Ottawa. David will highlight the main points from our written submission and respond to your questions. Thank you.
David Taylor, Executive Member, Aboriginal Law Section, Canadian Bar Association: Good morning, and thank you, Madam Chair and honourable senators. The CBA Aboriginal Law Section is pleased to once again contribute to the Standing Senate Committee on Aboriginal Peoples’ deliberations with regard to Bill S-3.
When the CBA Aboriginal Law Section last appeared before you, we made five recommendations with regard to Bill S-3: First, that Bill S-3 not be finally reported until all scheduled consultations had been finished; second, that the subject matter of Bill S-3 be reported back to a committee of Parliament within 18 months of its passage; third, that clause 8, which precludes claims for compensation, be removed from Bill S-3; fourth, that First Nations whose memberships will increase as a result of Bill S-3 be adequately resourced; and fifth, that those parts of government dealing with processing registration for individuals who will gain status after Bill S-3 has passed be adequately resourced.
On April 19, 2017, members of the CBA Aboriginal Law Section’s Legislation and Law Reform Committee met with representatives of Indigenous and Northern Affairs Canada and Justice Canada regarding the return of Bill S-3 to Parliament, following the extension granted by Madam Justice Masse in January 2017. It would appear, based on the information provided at that meeting, that all scheduled consultations have in fact now concluded with regard to this bill, which is in keeping with our recommendation number one, that the legislative process not move forward until consultations were complete.
Further, the CBA Aboriginal Law Section was informed that the November 2016 Fall Economic Statement contained $149 million in funding beginning in 2017-18 to implement Bill S-3, and$19 million of this funding is allocated to processing and registering new applicants, which appears to address our recommendation number five, that the registration process be resourced to deal with an influx of new registrants.
Of the $149 million,$130 million was allocated to the Non-insured Health Benefits Program. This allocation is to be followed by careful monitoring of on-reserve residency-based programs. While this appears to respond to our recommendation number four, that there be adequate resources to accommodate the impact of new members on programs and services, simply monitoring the demand on on-reserve programs and services may not be sufficient as financial obligations on the part of First Nations governments will arise upon demand manifesting itself.
The draft amendments proposed have been provided to the CBA Aboriginal Law Section. The proposed addition of clause 8.1 and clause 8.2 would address recommendation number two regarding including a report-back provision in Bill S-3 and the government’s activities in phase two.
The government has not, however, moved forward on the CBA Aboriginal Law Section’s recommendation number three to delete clause 8 of the bill. As we stated in November 2016, when we last appeared here, clause 8 of Bill S-3 precludes those impacted by Bill S-3 from seeking compensation for their past exclusion from Indian status. Canada was aware of the work that remained to be done following McIvor and Bill C-3. Leaving clause 8 in Bill S-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay.
While courts have concluded that governments benefit from some measure of protection from the retroactive effect of their judgments, the Supreme Court of Canada held in a 2007 case, Canada (Attorney General) v. Hislop, that this protection applies where the court is developing new law within the broad confines of the Constitution. There is nothing new about sex-based discrimination in the Indian Act. Shielding Canada from the consequences of having acted incompletely in 2010, when it enacted Bill C-3, provides an economic incentive to continue with half measures when Canada knows better.
Subject to that comment, it appears that the government has indeed made use of the extension provided by Justice Masse in January 2017. If the report-back provision is passed, Parliament will again be seized with this matter at the end of the year and again at the end of 2018. It is now Parliament’s turn to do the same in order to pass a bill before the expiry of the period of suspended invalidity in July 2017.
Allowing the period of suspended invalidity to lapse would pose serious problems to the rule of law and would further deprive individuals who have been discriminated against for many decades from the benefits they deserve. Particularly in highly technical areas, such as the current Indian-status-registration system, Parliament must act to rectify under-inclusive benefit regimes that have been identified as unconstitutional by the courts.
Those are our submissions. Thank you.
Perry Bellegarde, National Chief, Assembly of First Nations: (Witness speaks in his native language.)
I acknowledge the Algonquins and the Creator for this beautiful day. To all of you, my relatives, I’m very happy to be here.
Senators, thank you again for the opportunity to speak again about the issues raised by Descheneaux. We are all here today because we know that gender-based discrimination remains embedded in the Indian Act. This reality again demonstrates that the impacts of colonialism on First Nations are deep, and they are painful. That pain flows from the uprooting of the place of honour and respect of First Nations women, as well as from the broader upheavals to our societies and systems of governance.
Just yesterday, we received from the clerk of this committee some proposed amendments to Bill S-3. I understand that these have not been formally tabled, but we appreciate the continued effort to address gender-based discrimination and to respond to the Gehl decision. You will understand that we require further time to undertake a full review of these amendments.
I will say, however, that intended efforts to fix the Indian Act are basically doomed to fail. The essence of the Indian Act is a colonial mindset that can only be tossed aside. It is time to embrace and implement the minimum standards of the United Nations Declaration on the Rights of Indigenous Peoples because each First Nation is entitled to discuss with the Crown their vision of transition to move beyond the Indian Act.
We have a young and growing population as indigenous peoples, and the funding formulae and land bases reflect a totally different age. They do not reflect our rights, our laws or our current realities. During my previous appearance before this committee, I pointed out that First Nations not only faced the ongoing reality of chronic underfunding in essential services, such as education, water, health and infrastructure, but shortfalls in treaty land entitlement. These also must be addressed in full and proper response to Descheneaux.
We’re hearing comments about access to the Post-Secondary Student Support Program and how the government is funding that now because you’re making new status Indians, and also access to the Non-Insured Health Benefits Program in the Department of Health, and you’re putting money aside from that, but, under treaty, there is a very specific formula —128 acres per individual or 640 per family of five. So where is that going to be addressed in this legislation? Where is that going to be addressed in this Crown’s duty and obligations, getting back to the nation to nation?
The removal of the second generation cut-off in the undeclared paternity rule in accordance with the Gehl decision could be a significant step in the right direction, if taken in a process that is jointly designed and undertaken in partnership with First Nations. It can’t be unilaterally done; it’s going to fail.
It should be obvious that the essence of the Indian Act is grounded in gendered and racialized notions of First Nations' identity that are beyond fixing. That’s why any proposed action by Parliament respecting the Indian Act, whether to keep it, amend it, overhaul it or remove it, must be a process in which First Nations’ inherent right to self-determination, including the requirements of free, prior and informed consent, are respected.
I also urge you to think beyond the outdated notions of engaging and consulting with First Nations. It’s the fundamental right of any nation to determine its own citizenship. Clearly, it is time for Canada to state its recognition of First Nations’ inherent rights to determine our own identities and to work with those First Nations who are ready to leave the Indian Act and discuss the measures they see required to make that happen.
The United Nations Declaration on the Rights of Indigenous Peoples sets out minimum human rights standards that reflect our inherent rights as peoples and nations and our human rights as individuals. These are not new rights or rights created by the declaration itself.
I point out that any changes respecting the Indian Act, including proposed changes to Indian status or band membership, require the free, prior and informed consent of each First Nation in Canada. It’s my view and impression that the engagement processes that have been so far undertaken have not been designed to meet the minimum standards in the declaration.
We understand the dilemma of the federal government in having to meet the latest court deadline of July 3 for amendments to remedy the gender-based discrimination found in Descheneaux. That obligation rests alongside the government’s commitment to a renewed nation-to-nation relationship and its obligations to fully implement the UN declaration. They’ve endorsed the UN declaration without any qualifications. That’s very important.
The AFN has long advocated for a joint law and policy review with the aim of decolonizing the laws and policies of Canada. Prime Minister Justin Trudeau has responded positively by affirming his intention to carry out such a review with indigenous peoples.
If the federal government is serious about a truly collaborative process, then Canada must provide the resources First Nations need to reassert and rebuild governance capacity. Resources are needed for First Nations to consult internally and to develop, enact and implement our own citizenship laws. I’ve always said you’ve got to occupy the field. Create your own citizenship laws and acts, occupy the field and put the Indian Act piece to the side or any other piece of federal or provincial piece of legislation that you no longer wish to apply to you. Create your own laws and occupy the field.
In order for the government to truly embrace the possibilities for a collaborative approach, it must be willing to step back from its paternalistic control. Both First Nations and Canada need to move beyond the Indian Act, but in a manner consistent with the standards in the UN declaration.
It’s my hope that the next stages of this process will result in a truly positive partnership with the federal government to decolonize the laws and policies of Canada and advance the rights, recognition and reconciliation with First Nations. It is time for First Nations to assert the inherent jurisdiction over our own identity, and the way forward is for Canada to affirm First Nations inherent jurisdiction over all matters touching on First Nations identity, including any matter affected by the terms Indian status, band membership or citizenship. It’s time again for us to occupy the field and assert inherent jurisdiction over First Nations identity, and it’s time for Canada to recognize, respect and support the exercise by First Nations of our right to self-determination in such matters.
Those are my formal comments.
Senator Patterson: I’d like to thank Grand Chief Bellegarde for his stirring remarks. You said that you understood the dilemma of the federal government having a court deadline and having also committed to a truly collaborative process, which will have a joint review of the relationship between Aboriginal peoples and Canada. To me, this is the dilemma of our committee as well, and as you know, Chief Bellegarde, our committee has embarked on a bold study when we’re not dealing with legislation like we are today.We have embarked on a bold study to look at the relationship that you spoke of today, ending the colonial era and finding a new way of working collaboratively with Aboriginal peoples.
The federal government’s dilemma on this bill is our dilemma, and that’s what I want to address with you today. We have this July 3 deadline looming. Frankly, we have budgeted two meetings this week and perhaps one meeting next week to deal with this bill as thoroughly as we can. We have to allow time for the other place, as we call it, to deal with this bill, which originated in the Senate.
The important question for us today is, what do we do with those proposed amendments and the promise to engage in phase two on these important questions you address, including the right of First Nations to determine their own citizenship -- which the Inuit have won, I believe, largely in some land claim agreements, which is a much simpler process? What do we do with these proposed amendments, which I think most would agree have moved us forward from where we were last December and have addressed some issues that were problematic with the first version of the bill but clearly do not address the bigger issues?
We’ve had some concerns about the adequacy of time for what the department is calling engagement, which most would say did not amount to consultation and did not amount to fulfilling the Crown’s duty to consult. What do we do with these amendments? Would your recommendation be that we go ahead and improve the bill and endorse the engagement process and the reporting back process that is now included in the bill? What’s the AFN’s position on these amendments?
Mr. Bellegarde: Again, senator, you make good comments. You summarized the whole issue. It’s time constraint; you have July 3 looming. You have a month, maybe two months. Realistically speaking, you may have to support the current amendments, because there is an injustice that has been done. Even though it’s not perfect, and it doesn’t get rid of all the discrimination that’s still there, you’re meeting the time constraints of July 3.
Greater energy and focus should be looked at in phase two so that you move towards full respect of First Nations jurisdiction over citizenship and move towards that full exertion and away from the Indian Act. We constantly tell that to our chiefs in councils. If we stay under the Indian Act for citizenship and membership, there are no status Indians in Canada in the next 60 years. That’s factual. You can look at the trends. We have to get outside of the Indian Act. Create your own citizenship act. That’s phase two, no question.
That would have to be the realistic answer to your question about supporting the amendments that are there now, because July 3 is looming. We all can gripe and complain; there has not been adequate consultation. There’s not enough time to do it properly. There has not been enough human or financial resources. A lot of our chiefs are dealing with day-to-day issues of housing and water and sewer and poverty. Do you think they have time to think what Descheneaux is? Not in a lot of cases.
We are going to send out a summary of what Descheneaux is. With Bill C-31, people didn’t realize the impact of that in 1985. That had huge impacts across Canada. It’s the same with Descheneaux.
We are going to be sending out a note and a draft citizenship act that First Nations can adopt. They can tweak it, add a black bear or a star blanket or whatever to adapt it to whatever they want, according to their people and their laws and customs and traditions. At least they have something. That’s what we want to do.
Senator Doyle: There will obviously be financial concerns for First Nations as a result of new members being accommodated under Bill S-3. Could you talk a little bit more, just for clarity, and comment on what these financial concerns are and how the federal government should now address these concerns for you? You talked about a formula a little earlier. Would you talk a little bit about that as well?
Mr. Bellegarde: Again, I always talk about the gap that exists in Canada between Canadians and non-indigenous Canadians. It’s 6 versus 63. According to the United Nations Human Development Index, Canada is rated sixth in quality of life. If you apply the same indices to indigenous people, it’s 63. Everybody is up here at 6, and we’re down here at 63. It represents everything we talk about.It represents the high suicide rate, the disproportionate number of our people in jails, the 40,000 Aboriginal children in foster care, overcrowded housing, 132 boil water advisories and the 2 per cent funding cap.
When you talk about resources, this is my point; you need long-term, sustainable investments in indigenous issues from the $8.4 billion last fiscal year to the $3.4 billion this fiscal year, but you’re not going to close this gap in one or two fiscal years. Long-term, sustainable investments have to be made. That’s one point.
The Prime Minister committed to a process to work towards -- in his words -- long-term, sustainable, predictable funding for First Nations and to move away from this contribution agreement system that we have in place now. That’s a whole process and the work we’re doing at the fiscal table. That will take a little bit of time.
When you start making new status Indians, there’s huge need. Now, with more status Indians coming, they will have access to certain programs, and there will be a drain on the existing resource base that’s there. So government has to adequately address and financially plan appropriately. If I have a treaty right to hunt, fish, trap and gather or to education or health care, and if it’s contained in section 35, which recognizes existing Aboriginal treaty rights, why is there a cap on that right if it’s a right? These are rights; they should be funded appropriately.
Now, on the larger piece, and this is something to think about as we start working towards a new fiscal relationship with the Crown — and we’ve talked about this point at our fiscal table. These programs or services are things that we get as treaty Indians, as treaty people, and aren’t supposed to be borne from the backs of Canadian tax dollars; they’re supposed to be coming from all the wealth we’re sharing from the land and resource base.
So GDP, the economic gross domestic product of Canada, think of the billions that come from all the land and resources that we’re sharing. Even looking at a percentage of GDP for indigenous peoples as a way to look at this new fiscal relationship with the Crown, all of these things are being talked about at our fiscal table. It will take some time.
The whole issue is to ensure that Minister Morneau and cabinet adequately plan for these new status Indians coming in but also for long-term, sustainable and predictable funding so this gap starts to close. If we maintain the status quo, it’s not good for anybody in Canada because there’s a high social cost to maintaining this huge gap.
Investments in proper schools. I’m thankful for the $90 million towards the Post-Secondary Student Support Program in last year’s funding budget because we have students on the wait-list. There’s no better way out of poverty than a good education. That’s what we have to look at.
Senator Lovelace Nicholas: It’s nice to see you again. In your view, what is the proper nation-to-nation relationship? What would be the proper relationship?
Mr. Bellegarde: That’s a very good question.
Senator Sinclair: This is when we go get lunch.
Mr. Bellegarde: You might be here until supper, senator. I’ll try to be as brief as I can, and I’ll apply it to my home. I grew up on Little Black Bear reserve, so in my model — it’s a really good question: What do we mean by nation to nation?
For us or for me, we put the Creator on top, if you want to look at an organizational structure, and then the people, not only on reserve but off reserve now because of the Corbiere decision. We have all the people from Little Black Bear who select our chief and council. No matter if you live in Ottawa or Toronto, you have a right to vote for chief and council. Out of chief and four headmen, one of the four headmen is assigned for urban because half our people are off reserve. So if you want to be an urban councillor of Little Black Bear, you have to live off the reservation and run for that position. Everybody has the right to vote for you.
So we have a chief and four councillors. That’s Little Black Bear, which belongs to a thing called the File Hills agency. There are five reserves that work together collectively. There’s no election for an agency chief or grand chief, but we work together for health services and we have our standalone police back home, certain programs and services.
Then Little Black Bear belongs to a tribal council, File Hills Qu’Appelle Tribal Council, which are 11 reserves that work together. There’s an election there. The chiefs and councils get together and elect a tribal council chief.
Little Black Bear belongs to the FSIN, which was formerly the Federation of Saskatchewan Indian Nations, whose name has been changed to the Federation of Sovereign Indigenous Nations. Little Black Bear belongs to the Assembly of First Nations, 634. I put AFN on the bottom, not the top. That’s our current structure.
Little Black Bear entered into Treaty 4 in 1874. Nations make treaties; treaties do not make nations. Little Black Bear as a reserve, we’re Cree Nakota, a mixed tribe. We had a heck of a time back home. Are we Cree? Are we Nakota? What are we? Are we Metis or Ukrainian? In 1985, every reserve had this debate. What are we? Are we Ojibway? Anishinabe? Are we Mi’kmaw? Are we Dene? Are we Blackfoot? What are we?
We are part of the Cree nation. In Canada, you have 58 nations. Out of those 634 reserves, Indian Act bands, you’re part of a bigger nation. So we’re all at a different stage. Some are ready to go in terms of the nation to nation. Others aren’t. We’re slowly trying to get organized.
Now, there’s an option for nation to nation. Treaty areas are getting organized. For me at Little Black Bear, there wasn’t one Cree chief who signed Treaty 4. There wasn’t one Saulteaux or Ojibway chief who signed Treaty 4. There wasn’t one Assiniboine chief on behalf of the Assiniboine nation who signed Treaty 4 or entered into treaty. There were many. There are 34 chiefs who put their four direction mark. I shouldn’t say “signed.” They didn’t speak English or French, so they didn’t sign anything, but they entered into a relationship with the Crown as sovereigns.
So now, in addition to the Cree nation, we’ve got the Cree in Quebec. I’ve got nothing really much to do with Grand Chief Matthew Coon Come and the Quebec Cree or the northern Alberta Cree or the B.C. Cree. We’re Cree all over, but treaty areas now are an option.
Treaty 4 is looking at a way to get outside of the Indian Act and work towards treaty implementation. We’re saying back home, “I don’t know if the Cree nation is really going to get it together.” We’re part of the Cree nation; we will always be Cree. That’s why language — [Editor’s Note: The witness spoke in his native language] — speak a little bit of Cree. Language is so important.
How the structures evolve from the Indian Act system here that I just described, from the agencies — i.e., the Indian Act, the Indian agents, tribal councils, PTOs, AFN — treaty areas and being part of this nation. That’s where we are, somewhere in this dialogue. You see this beautiful diagram I just drew? It’s in here. We have to engage. Every reserve is at different levels. You have to have a flexible approach, but it’s all about inherent rights, self-determination and moving beyond the Indian Act. It’s going to be a process.
I can go back to the adoption of the discovery, but we don’t want to be here until tonight. It will be varied, senator, from reserve to reserve, from tribe to tribe.
Senator Lovelace Nicholas: I agree.
Just a short question, and it will be a short answer, I promise: Are you satisfied that there has been proper consultation done to this point on Bill S-3?
Mr. Bellegarde: No.
Senator Sinclair: When I was a young lawyer, I had a witness one time; I asked him one question and 45 minutes later I got to ask him the second question. You remind me of that witness, chief. I’m a little hesitant to ask you a question, so I’m going to ask a question of the Canadian Bar Association.
Mr. Bellegarde: Thank you, senator.
Senator Sinclair: It has to do with the reference to the non-liability derogation clause that’s in the proposed bill. You indicated some concern that it’s still there and that it prevents individuals from seeking compensation for infringement of rights in the past. I wonder if you might be able to delineate what you think are examples of how people might have otherwise been able to seek compensation and whether, secondly, a provision in legislation like this might or might not stand in the way of a Charter remedy. In other words, do you think this would overcome a claim for a Charter breach under section 24 of the Charter? Do you understand my question?
Mr. Taylor: I understand. I think there are two questions. I’ll deal with the first question first.
There are a whole range of benefits or positive externalities that come along with status. Whether or not government should be involved in the business of handing out status or governing status is a completely separate question from that. But given the existing regime we’ve been under for the last decades, a very specific example on one end is something like the non-insured health benefits program or dental benefits, which is something that is not typically available to individuals in Canada without status. You have to get your own private insurance or pay for your own dental work out of your pocket. Those are easy, quantifiable metrics in terms of a benefit that someone has been excluded from, given the problems that Bill S-3 is meant to fix.
At the other end of the spectrum, there’s the more psychological or identity-based exclusion from community, separation from one’s culture and identity. These are things that the United Nations Declaration on the Rights of Indigenous Peoples talks about. Whether those are compensable and how is not something I’m in a position to speak about today, but there’s certainly a whole gamut of options.
In terms of a clause like this blocking a Charter claim or relief under section 24, the courts have been clear that the Constitution is what is superordinate. The Constitution is what takes precedence. If there was a Charter claim brought, as opposed to other civil claims for redress, the argument is definitely open to a claimant, in my view, that clause 8 -- or whatever clause 8 looks like once the bill is passed -- is something that should give way. And I believe there is litigation presently under way -- I think it’s called the Sarrazin case -- with regard to that.
Certainly there are other elements of the law that come into that. Limitations periods apply when seeking an individual remedy, so there could be individuals who are out of time given the time that’s gone by and whether they would have known there’s a claim. I’m not here to get into the full legal mosaic of how those claims might go, but certainly litigants will have an additional burden if clause 8 stays in. In itemizing the things they’re excluded from and trying to quantify the exclusion they should have, there will be a preliminary legal argument whether this clause is valid or not, whether this clause bars them from seeking that compensation or not.
There is potentially a debate with regard to Bill S-3 and going past because there hadn’t been that finding, but Justice Masse was clear in her reasons for judgment that this is something that has been on the Government of Canada’s radar since at least 2010, or even 2007 when the trial decision came out in McIvor, that other areas needed to be worked on. Under that Hislop framework of retroactive protection only coming where it’s new law, clause 8 is something that in our view should be questioned.
Senator Sinclair: National chief, now we know we have a huge amount of time remaining, I’ll ask you a question. Have you given any thought to the implications if we don’t amend the bill in time and meet the deadline or if the deadline passes without this bill becoming law? And what are the implications for band membership and status registration in the eyes of the AFN?
Mr. Bellegarde: Not a lot of thought. Again, we were just getting some of the things yesterday, including the amendment and everything else. July 3 is coming. If this bill doesn’t pass, what happens? You will have continued sexual discrimination if it doesn’t pass. You’re going to have people that have rights not being recognized. Individuals will have impacts if it doesn’t pass. That’s basically where you will see the impacts.
For the chiefs themselves, the First Nations, if the bill doesn’t pass, does the memberships increase? For status Indians, are they going to be 40,000 to 45,000? I heard that number earlier on when I came into the room. If that’s the targeted number, that’s a lot. That will have huge financial implications.
It’s so rushed. When you ask about consultation, no, it hasn’t been adequately consulted. For First Nations, if you do proceed and there are 45,000 new status Indians, what are the obligations of chief and council to those status Indians? What is the obligation of the Crown to those status Indians? That is why I brought up the issue of land. If I’m Little Black Bear chief and you all become status Indians, there are responsibilities and obligations and rights. How do I maintain housing for you all and education for your kids? There will be huge demands.
This is a big issue, which is why I made the earlier point if there’s that July 3 deadline, yes, you have to maybe support it. But with phase two, the adequate consultation, the doing in collaboration, moving beyond the Indian Act, the Crown has obligations to make sure proper resources are in place to meet those rights. That’s my answer. If it doesn’t pass, certain individuals will not enjoy those rights. There will be continued discrimination if it doesn’t pass.
Senator Oh: I have a simple question for the chief. What are your thoughts on the government consultation process? Was it sufficient? Are you aware of any other issues?
Mr. Bellegarde: Senator, again, the consultation process is not adequate; it’s rushed and it’s flawed. With the minimum requirement, or even the UN declaration of free, prior and informed consent on any new laws that will impact our rights, obviously that threshold has not been met. On this one, there are huge issues and concerns for that.
Whether or not it’s in Jody Wilson-Raybould’s committee — she has a law and policy review that she has been mandated — I’m hoping that in the bilateral we’ll be signing or an agreement to meet with the Prime Minister and cabinet and certain key ministers three, four times a year, there’s another process so that we can outline a plan to fix a lot of these inadequacies and inequities. That’s what I’m hoping.
On this one, senator, the consultation wasn’t proper. We’ve even asked for information on those 28 communities that INAC has consulted with, but we’ve yet to receive that. So I need to know. I’d like to know who they talked to. Where did they go and what was the dialogue? It has to be improved.
Senator Oh: How about the bar association?
Mr. Taylor: Certainly our recommendation when we appeared here in November was that the consultations at least had planned be finished, and at that time they had consultations that were still ongoing. The legislative train had left the station.
The national chief made points with regard to free, prior and informed consent, and the Canadian Bar Association as a whole has passed a resolution supporting the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples. In that international instrument, the standard is free, prior and informed consent.
That being said, we’re in a situation with a deadline on July 3 to pass a law in response to a court decision, and there’s a metaphor that has been bandied about a lot over the last 20 years, which they call dialogue between the courts and Parliament. The court will speak in pronouncing whether something is constitutional or unconstitutional with regard to the Charter, and then Parliament responds.
So we have a situation here where the court has said that. If there’s no response from Parliament, the result is that part of the Indian Act is declared unconstitutional, which affects not only the 45,000 people waiting for benefits but also those who are currently entitled to register who will want to do so because there will be no more provision on the books that will allow them to do that. As I mentioned in my opening statement, that’s a serious risk or concern for the rule of law and how this moves forward.
Certainly with the ability of this committee to remain seized of this matter and have it back before it later this year, it may well be six months is too long. Three months would put it back here in September, after the summer break. My understanding is the Senate doesn’t typically sit in July and August. But this committee remaining seized of phase two and following it very closely may be a way to ensure that that consultation process follows the UNDRIP standard of free, prior and informed consent.
Senator Oh: Thank you for the honest answers.
Senator McPhedran: Welcome, national chief and also representatives of the Canadian Bar Association.
I want to pick up quickly on a reference that Mr. Taylor just made to the dialogue between courts and governments. As you may or may not know, I’ve written rather extensively on the need for trialogue in the ongoing constitution-making and -building in this country. If ever there was an example of the need for trialogue and value of trialogue, it would be exactly in the kind of conversation we’re having here today.
National chief, my question is grounded in Article 44 of the UN Declaration on the Rights of Indigenous Peoples. It’s very short, so let me read it:
All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.
Of course, to those of us familiar with the Charter, which I would take to be everybody in this room, this is highly resonant with the wording and close to identical structure as section 28 of the Canadian Charter of Rights and Freedoms, and also of section 35(4) of the Constitution Act, 1982.
The context that we find ourselves in comes partially from Minister Carolyn Bennett taking a trip to New York and making a clear commitment in the United Nations headquarters that Canada was going to fully embrace its commitments under the UN declaration — one of the key recommendations of the Truth and Reconciliation Commission, chaired by our Honourable Senator Sinclair. That’s basically a good start.
My question, though, to you is this: In making your point, your point to be heard and respected by us, that membership, citizenship, is something to be determined by nations — and I think certainly in international law that’s unquestioned, and it’s clearly set out in the declaration as well — would you anticipate a situation, though, sir, where the determination by First Nations of citizenship, membership, could actually discriminate on the basis of sex?
Mr. Bellegarde: I would hope that never happens, senator. But again, I’ll just look at Kahnawake and what’s going on there. That’s fresh; that’s new; that’s happening. We would hope and endeavour that the laws — again, in Canada you have common law and you have civil law. All the lawyers in the room will know what I’m talking about. There’s common law and there’s civil law. When you get accepted to the bar, you will be sworn to uphold those laws.
We’ve always said you also have Creator’s law and First Nations law. Is there going to be enough space in this nation-state now called Canada for those laws to be recognized as well?
Part of that Creator’s law is balance between male and female. You need both to have life. In all the ceremonies I go to, half the lodge is male and half the lodge is female. You must always have that balance. I would hope that any First Nation that develops its own citizenship acts or laws keeps those in mind as they go forward, as they exert their right to self-determination. That would be my hope and my prayer, so that there is no discrimination, even amongst our own tribes and nations, if they put Creator’s law at the forefront. That’s what I would say.
On the UN, I’ll lift up Minister Bennett as well. They withdrew a year ago; in the World Conference Outcome Document, Canada made interventions within the UN about the UN declaration regarding free, prior and informed consent. They supported the declaration, but we’ve got some reservations as it pertains to certain clauses within the UN declaration relating to free, prior and informed consent. A few weeks back, the minister, on behalf of the Crown, on behalf of Canada as a nation-state, withdrew those reservations, so now it’s really a full endorsement.
The implementation of this declaration will be the road map to reconciliation in Canada. That’s the way we see it: the minimum standard. It’s a road map to reconciliation if this declaration were adopted. It will create economic certainty in all the provinces. It will create partnerships between public and private sector and indigenous peoples. It really is a road map, and I would hope that, at the appropriate time, legislation will be brought before honourable senators and their house to look at giving legal effect to it somehow. There’s a work-in-progress that we’ll be getting shortly, I hope.
Senator Lovelace Nicholas: My question is this: As you know, the government has fiduciary responsibility for indigenous peoples. Wouldn’t this address the new band members that will be coming into the communities? Should this dialogue be addressed now, while this bill is on the table?
Mr. Bellegarde: That’s a good question, senator. We’ve always said as First Nations that there’s a federal fiduciary trust obligation to us because of the nation-to-nation relationship from treaties. I would encourage the Crown to adequately plan to make sure there are adequate fiscal resources in place to address the needs and to meet the rights that are contained in section 35. We believe it’s a full box of rights — a treaty right, an inherent right to health and to education. If they are rights — and we believe they are rights — the fiscal resources should be in place to address and meet those. Government, if they’re listening, should be planning accordingly within their fiscal framework.
We’ve just had the federal budget announced, but now we’re getting ready for next April’s budget. The whole planning cycle is beginning all over again. We would hope those fiscal resources are planned to adequately meet not only needs but rights and obligations. That would be my message to the Crown.
The Chair: Thank you, senators.
I would like to follow up on Senator McPhedran’s questions about any residual sex discrimination that might be remaining in the bill and how that will be addressed during your nation-to-nation consultations and dialogues. I’m wondering, national chief, what you envision you will be doing to ensure that the voices of the descendants of women who were discriminated against and who lost their status -- what sort of procedures will you have in place to make sure those descendants are being heard and listened to during the nation-to-nation building? From the comments that have been received by the committee over the last few weeks, to some extent, they are fearful that they may be left out. What kinds of procedures do you envision you will undertake on a national level, as national chief? What can be done to ensure that they are included properly so that they do become part of that nation-to-nation dialogue?
Mr. Bellegarde: Again, senator, as AFN national chief, I’m not a rights-entitled holder. The AFN is an advocate organization. The rights-entitled holders rest with the chiefs and councils and their citizenship and membership. We can advise and guide to ensure that those dialogues take place. Half of our people reside in urban centres now, so we have to have a space and a voice for them.
At our assembly, we’ve created a portfolio, if you will. We know there’s the issue of portability of rights, services and programs, because half of our people live off the reservations. We have to deal with that as well. It’s like a two-pronged strategy now, senator, dealing with on-reserve, but you also have to deal with off-reserve and make sure those needs and voices are heard. Within our AFN structure, we have three councils — a youth council, an elders council and a women’s council — to make sure those voices are heard at our AFN decision-making tables.
I would encourage the Crown, in their phase two round of consultations, to make sure there’s adequate planning in terms of resources, both human and financial, and that there’s a robust round of consultations in phase two, because the one in phase one is not adequate and it’s rushed. This issue is too important to rush things in phase two, because we’re moving towards inherent right to self-determination and citizenship.
We can help guide those dialogues. Ultimately it will be the people themselves determining that at each First Nations level, because we have responsibilities both on and off reserve. We have relatives on reserve and off reserve. There has to be space for voices and any process going forward and needs addressed as they come forward.
The Chair: I believe you said that the AFN will be sending out a draft citizenship law or draft citizenship legislation. Would you share that with the committee?
Mr. Bellegarde: Sure. We’ve asked our staff to begin drafting that because that’s value added from the AFN. If I’m a Little Black Bear, I don’t have time to develop a citizenship act, but here’s a draft model, thank you very much. We can tweak this, we can use this as a model and have something adopted at our membership meetings at the reserve level. Yes, we can share that with you when it’s developed.
The Chair: Before we conclude this panel, I would like to recommend to senators who are planning to propose amendments that they consult the law clerk’s office as the law clerk’s office may be able to help them with wording and format. Anyone who is planning to propose amendments in the future, please consider that option.
I would like to thank our panel presenters today on behalf of the committee. Thank you very much to the representatives from the Canadian Bar Association, Mr. David Taylor and Ms. Gaylene Schellenberg. Thank you for testifying at the committee this morning. And from the Assembly of First Nations, National Chief Bellegarde and Mr. Stuart Wuttke, thank you very much.
With that, this meeting is adjourned.
(The committee adjourned.)