Proceedings of the Standing Senate Committee on
Issue 13 - Evidence - November 22, 2016
OTTAWA, Tuesday, November 22, 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 9:06 a.m. to give consideration
to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning, everybody. There are still a few senators
who are at another meeting but who are coming. I know we will have lots of
questions this morning, so we will start.
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 here in the room or who are watching or listening via the web. For
the sake of reconciliation, I would like to acknowledge that we are meeting
on the traditional lands of the Algonquin peoples.
My name is Lillian Dyck from Saskatchewan, and I have the honour and
privilege of chairing this committee. I now invite my fellow senators to
introduce themselves, starting on my right.
Senator Tannas: Scott Tannas from Alberta.
Senator Raine: Nancy Greene Raine from B.C.
Senator Beyak: Lynn Beyak from Ontario. Welcome.
Senator Moore: Good morning. Wilfred Moore from Nova Scotia.
Senator Lovelace Nicholas: Senator Lovelace from New Brunswick.
Senator Lankin: Senator Lankin from Ontario. I'm sitting in for
Senator Meredith, and I'm also the sponsor of the bill.
The Chair: We will be joined in a few minutes by other senators.
Today, we begin our study of Bill S-3, An Act to amend the Indian Act
(elimination of sex-based inequities in registration). On our first panel
this morning, we are happy to welcome government officials. From Indigenous
and Northern Affairs Canada, we have Joëlle Montminy, Assistant Deputy
Minister, Resolution and Individual Affairs Sector; Candice St-Aubin,
Executive Director, Resolution and Individual Affairs Sector; Nathalie
Nepton, Executive Director, Indian Registration and Integrated Program
Management; and Effie Panousos, Senior Policy Analyst, Treaties and
Aboriginal Government Sector. From the Department of Justice Canada, we have
Martin Reiher, General Counsel.
Senator Watt has just joined us.
Witnesses, please begin your presentations. If you could, please try to
keep it short enough, because I know there will be lots of questions from
the senators. Thank you. Please proceed.
Joëlle Montminy, Assistant Deputy Minister, Resolution and Individual
Affairs, Indigenous and Northern Affairs Canada: Good morning,
honourable senators. I would like to thank you for the opportunity to be
here today to provide the committee with information on the government's
response on the Descheneaux decision. The response involves
legislative amendments through Bill S-3, An Act to amend the Indian Act,
aimed at eliminating residual sex- based inequities in Indian registration,
which will be followed by a collaborative process with First Nations and
other Indigenous groups on broader related issues.
I will say a few words about the Descheneaux decision. In August
2015, the Superior Court of Quebec ruled that key provisions of the Indian
Act violate the equality provision of the Charter because they perpetuate
residual sex-based inequities in Indian status. The Descheneaux case
deals with the differential treatment between the male and female lines in
acquiring and transmitting Indian status, affecting siblings and first
cousins of the same family.
The court declared these provisions invalid but suspended its decision
for 18 months to allow time to make the necessary legislative amendments.
Canada initially filed an appeal, which was withdrawn in February 2016 by
the new government.
In order to comply with the decision, legislation must be passed by
February 3, 2017. In the absence of a response by this deadline, Canada will
be unable to register the majority of individuals seeking status in Quebec
and possibly in other jurisdictions, as key provisions of the Indian Act
will be inoperative.
In response to the Descheneaux decision, the government launched a
two-stage approach last July. As part of phase one, the government has
introduced Bill S-3 to eliminate sex-based inequities in Indian registration
and has been holding information sessions with indigenous groups on the
proposed amendments. The second stage will be a jointly designed,
collaborative process with indigenous groups to examine the broader and
systemic issues relating to Indian registration, band membership and
citizenship. The purpose of this process will be to identify areas for
Before examining the proposed amendments in more detail, I would like to
provide some background on Indian registration to better situate the context
for Bill S-3. Under section 6 of Indian Act, the federal government
exercises exclusive authority in the determination of who is an Indian.
Eligibility is determined on the basis of an individual's descent from a
person registered or eligible to be registered as an Indian.
Historically, we know that First Nations have diverse ways of identifying
their citizens, including clan, kinship and hereditary systems. But starting
in 1869, patrilineal descent rules and sex-based criteria for Indian status
were entrenched in federal laws and continued under successive changes to
the Indian Act. Under these rules, Indian women who married non-Indian men
lost status, as did their children, and through enfranchisement, individuals
and their descendants lost Indian status if they became a doctor, lawyer,
Christian minister, joined the military or earned a university degree.
In 1985, the Indian Act was amended through Bill C-31 to comply with the
Charter. This was the first step in addressing sex-based and other
inequities in Indian registration. It led to the reinstatement of
approximately 130,000 people.
Despite these amendments, some residual sex-based inequities stemming
from the past were carried forward, and new issues arose as a result of the
introduction of categories for Indian registration, those being sections
6(1) and 6(2), and that resulted in increased legal challenges. The first
case was the McIvor case by the B.C. Court of Appeal in 2009. In
response, Parliament passed Bill C-3, the Gender Equity in Indian
Registration Act in 2011. This extended the eligibility to approximately
Around that time, the government also launched an exploratory process to
gather the views of indigenous groups regarding issues dealing with
registration, membership and citizenship. This initiative provided an
opportunity for dialogue with communities on important issues. More than
3,500 individuals participated in this initiative and the findings revealed
a myriad of perspectives.
Let me be clear on this: there is no consensus on these sensitive issues
dealing with citizenship and identity. Some First Nations wish to extend
Indian status to large numbers of people, while others are worried about
On Bill S-3, we are proposing amendments to the Indian Act to comply with
the decision in Descheneaux and with the goal of eliminating all
sex-based inequities in Indian registration. Bill S-3 will amend subsection
6(1) of the Indian Act to extend eligibility for Indian status to
descendants of the female line. These changes will specifically address the
issues relating to cousins, siblings, and as well removed or omitted minors.
The cousins issue relates to the differential treatment in the
acquisition and transmission of Indian status that arises amongst first
cousins of the same family, depending on the sex of their Indian
grandparents in situations where the grandparent was married to a non-Indian
prior to 1985. The siblings issue concerns the differential treatment in the
ability to transmit Indian status between male and female children born out
of wedlock between 1951 and 1985 amendments to the Indian Act. Indian women
in this situation cannot transmit status to the descendants unless the
child's father is a status Indian. An Indian man in similar circumstances
can transmit status to the children regardless of whether they parent with a
Guided by the advice of the court to not take a narrow approach in our
legislative amendments, a third issue has been included in this bill. It
deals with removed or omitted minors. Prior to 1985, registered minor
children who were born of Indian parents, or of an Indian mother, lost their
status, as did their mother, if she married a non-Indian man after their
birth. This is in contrast to their adult or married siblings, who retained
status. While Bill C-31 restored Indian status to women and their children
in this situation, it did not make eligible the children of the reinstated
minor child. The proposed amendments in Bill S-3 will address this issue and
extend eligibility for Indian status under subsection 6(1) to the children
of the reinstated minor child.
As anticipated, the proposed legislation will result in an increase in
the number of individuals who will become entitled to Indian status. There
will also be a change in the status category for some individuals already
registered. Based on demographic analysis, between 28,000 and 35,000
individuals will become newly entitled for Indian status as a result of Bill
This increase will impact the costs of two federal programs that are
directly linked to registration: the post- secondary education program and
the Non-Insured Health Benefits Program. The government's fall economic
statement, released on November 2, identified approximately $149 million for
the implementation of Bill S-3. Of this amount, $130 million will become
available for the Non-Insured Health Benefits Program and $19 million, over
five years, will be allocated to process and register the increased volume
of new applicants.
The department continues to assess the potential cost increase to the
post-secondary education program and its funding approach. Changes to
entitlement for Indian status may have repercussions on other programs for
on-reserve First Nations members. The real impact will depend on the number
of newly entitled individuals who move to a reserve.
First Nation mobility trends and other demographic data indicate that an
equal number of Indians tend to leave reserves as tend to move onto
reserves. Given this, we do not expect to see a considerable increase in the
on-reserve registered population as a result of the proposed amendments. The
department will monitor the impacts over time and develop funding options
for on-reserve programming, if needed.
As previously mentioned, information sessions with indigenous groups on
the proposed legislative amendments began in summer 2016 and will continue
into December. Starting in July, the minister wrote to all the chiefs and
the leaders of national and regional organization to announce the initiative
and to invite them to participate in the information sessions. The minister
wrote again to all chiefs and regional and national organizations in
mid-October to share the legislative draft, which was posted on-line.
During the information sessions, participants expressed a multitude of
perspectives. While some view the initiative as a positive step, others
expressed concerns regarding the short time frame for information sharing
under stage 1, the limited scope of the proposed changes, the impact of
accommodating newly entitled members within First Nation communities, the
continued focus on technical amendments that perpetuate colonial Indian Act
structures and the continued federal authority to determine Indian and band
membership. Many also expressed the need for a more immediate process on
broader systemic reform.
Recognizing these concerns, the government has committed to a second
stage for this initiative. As you know, the deadline imposed by the court of
February 3, 2017 to respond to the Descheneaux decision does not
allow for sufficient time to conduct meaningful consultations with
indigenous groups to adequately address all of these complex matters.
At the same time, we must ensure that we do not deny justice to the
plaintiffs and many others affected by the decision. In consideration of
this, a collaborative process with indigenous groups will be launched in
February 2017 to undertake joint work on the broader related and systemic
issues with a view to identifying areas for future reform. It will be
jointly designed with indigenous groups, and discussions will be held to
determine the nature and scope of work, subject matters that will be
examined and the types of activities that will be undertaken. Building on
the wealth of findings of the exploratory process, which was conducted in
2011, subjects to be discussed could include issues such as undisclosed or
unknown paternity, the second generation cut-off, the federal authority to
determine Indian registration and First Nations jurisdictions over
In closing, we recognize that issues relating to Indian registration,
membership, citizenship, identity and belonging are complex and cannot be
resolved overnight. The government's two-staged approach aims to eliminate
residual sex- based inequities in Indian registration through Bill S-3, and
continue the dialogue and collaborative work with Indigenous groups on the
broader related and systemic issues with a path forward for future reform.
Thank you for the opportunity to present to the committee. I hope that
the information I have provided has been of assistance. We would be pleased
to answer questions that you may have.
The Chair: Thank you, Assistant Deputy Minister. That was a very
concise and helpful introduction to the bill. I have a number of questions
that I will start with. We're still waiting for some of our senators, and I
think our critic, especially, should get a first shot at it.
One issue that I spoke to you about before we started the meeting is that
in the information that was handed out to senators during the briefing of
S-3, there was a mistake in the chart. That chart is to do with the issue
addressing the cousins issue. That same mistake is replicated in the bill
kit that was sent out. The online version is correct. We are preparing
copies of the corrected version to be distributed to committee members. If
any other committee members had trouble going through the cousins issue,
that is one of the reasons you may have had some problems. I went through
the information on the weekend, and I must say, it is very complicated. It
is very elegant, and having the mistake made it much more difficult to
I'm going to start with a very simple question. In the previous McIvor
bill, an extension was asked for. Could you explain very briefly why you
didn't ask for an extension in this case?
Ms. Montminy: As you know, the court has suspended its decision
for a period of 18 months, which is beyond what is typically allowed when a
decision like this is rendered. Typically, it is one year. The court already
took into account the fact that the decision came down during the federal
election and therefore granted an additional six months. Because it was
during the election, the government also originally filed an appeal, pending
the decision by the new government to withdraw the appeal, which was done in
Subsequent to this, we undertook the work to plan for legislative reform.
As soon as we were authorized, we started pre-engagement and engagement with
indigenous groups with a view to bringing forward these legislative
amendments on time in order to meet the court deadline of February 2017.
Should a court extension be sought, it would likely be a very short one,
perhaps two or three months — maybe six months maximum, which is not
something that is guaranteed. So our work was focused on trying to balance
the necessary steps to bring legislative amendments to address the issues
raised by the court and to give justice to the plaintiffs who brought the
case forward — and not only to the plaintiffs but also to the 28,000 to
35,000 people who have waited long enough to be able to be entitled to
At the same time, stage two is there in our recognition of a need for
broader discussions on these very important and complex issues. That's why
the government is committed to launch in February 2017 a comprehensive
engagement process to air all these issues and bring back further reform
following that engagement.
The Chair: As a follow up to that, I know you have a deadline set
by the court, and if there is no legislation, there will be four different
sections that are currently enforced that will be struck down. If those
sections are struck down, who is it going to affect? Will new births be
affected? People who were eligible under Bill C-31 and Bill C-3 who were
born who won't be affected by Bill S-3, will they be affected? Is there a
backlog to people who are entitled to registration under current laws, and
will they be affected?
Nathalie Nepton, Executive Director, Indian Registration and
Integrated Program Management, Indigenous and Northern Affairs Canada:
If people were already registered, technically speaking, they are not
affected by the decision except to the extent that they may be subject to a
category change. For example, somebody who was registered under 6(2) will
now become one of the categories under 6(1), should the bill get Royal
After that date, however, if the bill isn't brought into effect, I will
not be able to register anyone who may be entitled to be registered in
Quebec. Most likely I would not proceed to continue to register people from
other provinces either, because while the provisions have been struck down
in Quebec, technically speaking, in my view, continuing to register people
would be moot because it would create two systems of registration.
The Chair: Okay. Thank you. Senator Patterson, welcome. We're just
doing a couple of short questions here. I have another one or two to allow
you some time to catch your breath.
Senator Patterson: Thank you. I apologize for being late.
The Chair: Following up regarding who will be affected if we don't
get the bill approved by February 3, how many people currently are being
registered approximately per year? How many people are we actually looking
at of people applying for registration, either as being reinstated or — I
don't know if you can call it a new category — or those who would be
eligible under either 6(1) or 6(2)?
Ms. Nepton: If we're talking about who would be entitled to be
registered after the new provisions would be brought into effect, we're
looking at 28,000 to 35,000 additional people. In terms of current
registration, in a given year — and the statistics that I have are drawn
from fiscal year 2014-15 — the department received about 30,500 applications
for registration and processed 32,900, roughly. Those numbers tend to be the
same every year, because even though somebody applies, it doesn't
necessarily mean they get registered.
You can imagine, and you have referred to the backlog that has been
created of those who are currently potentially entitled to registration.
The Chair: But if they are in a backlog and they are being looked
at now, will that be stopped or will they be allowed to proceed?
Ms. Nepton: No, that work continues under the current regime. The
case for anyone who registers after or if the bill provisions are brought
into effect, they will be subject to a category amendment as well.
Registration will stop if the bill is not brought into force.
The question you had was about new births. They would not be eligible for
registration. However, the important thing to note, senator, is that when a
child is born to registered parents, they fall under their parents' number
for at least one year.
I can also say that in that period, for example, if somebody were
declared eligible for registration and they needed to renew their document,
they would have a temporary confirmation of registration issued that
confirmed they were registered as of whatever date the letter is issued.
The Chair: Thank you. We will turn to the critic of the bill,
Senator Patterson: I want to ask about the information sessions
held as part of stage one, which the committee learned about in the
technical briefing that I attended. In the materials provided to the
committee, I see that eight sessions were held prior to the bill being
tabled. However, last night, during the pre-study hearings in the other
place at our counterpart committee, two of the litigants involved in the
Descheneaux case, including Mr. Descheneaux, informed the committee that
they had not seen or heard of the bill or proposed amendments until after it
was tabled in the Senate. In fact, they said they felt that if Bill S-3 is
passed as is, they would need to launch further lengthy and costly court
I must say, I'm astonished. The judgment came down on August 3, 2015. It
seems the department did not see fit to discuss these proposed amendments
with the litigants prior to their introduction. Would you have a comment
about that? Did the department audit the hearings in the House of Commons
committee yesterday? If so, you would have heard the angry — I do not think
I'm using that word in an exaggerated way — testimony of the litigants.
Candice St-Aubin, Executive Director, Resolution and Individual
Affairs Sector, Indigenous and Northern Affairs Canada: Yes, we were
present and you're correct. We just discussed one component of our work to
date with regard to the bill that we've put forward. I will give more
context on how we have shared information publicly in a way that has been
unknown at this point.
As Ms. Montminy has explained, we had time between the judgment on August
3 leading up to the federal election. Canada filed an appeal and then pulled
its appeal, at which time we had to address the concerns raised in the
court. It was at that time we had pre-engagement with the national
indigenous organizations and shared a draft version of a discussion paper
that articulated the proposed approach to the legislative amendments that
were raised in the Descheneaux case.
From those discussions, we looked to them to figure out what was the best
approach. Canada has proposed this two-staged approach knowing that the
issues that were identified beyond the Descheneaux case were
extremely complex and required broader consultation. But because we such
limited time, we still had to provide redress for the litigants that were
raised in the court case.
With the two-staged approach and having conversations on a pre-engagement
level throughout June, in the summer, the minister formally announced it on
July 29 and it was at that time the minister sent letters of correspondence
to each chief and council across Canada, as well as the national, regional
and treaty organizations, pronouncing or explaining our two-staged approach.
We also posted the discussion paper online and invited individual
communities to speak with their members and to work with the organizations
to find information sessions.
Working with the community organizations to try to find the best fit for
them on how and when to have information sessions then took a period of time
— about six to seven weeks — before they commenced. They are continuing
today. At the time of the technical briefing, we had had eight sessions and
we're now up to twelve sessions, with another four planned and happening
today out in the Atlantic Provinces.
Once the draft paper was posted, we started receiving information. We had
a generic inbox for those who felt more comfortable providing them online,
through email correspondence, or writing in, and we have been providing
correspondence on an ongoing basis with community members.
Once we had come to a place where we would be able to share more
information, we then proposed, which was unknown at the time, to put forward
the draft legislative amendments online with an annotated version in general
common language — not just the legislative language. It was at that time as
well, and this was on October 14 of this year, that the minister took it
upon herself to send a letter to all chiefs and councils, as well as First
Nations national, regional and treaty organizations, with those proposed,
annotated amendments attached to it.
When we meet with information sessions, we have a comprehensive deck
where we present a history of registration. That takes anywhere from a day
to a day-and-a-half because it is very complex with the series of amendments
that have gone on to date, and as Senator Dyck has explained, it's complex
even now with these amendments. We have also had the comparative group
slides available online as well as disseminating them in sessions so that
people were able to get a sense of what we were looking at with regard to
the issues we were trying to address.
This has been our approach to date, recognizing that we are enjoying it
and can't wait to get out and have a broader consultation on those more
complex issues, but we would like to give it the time that it really
deserves, across Canada.
Senator Tannas: That was very thorough, but I don't think you
answered the question. Are you saying you did not think to consult or to
actually engage the litigants directly? Maybe I missed it: Did you or did
you not engage the litigants directly?
Ms. St-Aubin: We work through Justice Canada to engage with
litigants. I would turn to Justice Canada on the protocol for that.
Martin Reiher, General Counsel, Department of Justice Canada:
Unfortunately, I do not know whether my colleagues who were on the file
contacted the litigants. In my practice in the past, it's something that I
would have done. I will check with my colleagues whether that was done. I'm
sorry I cannot answer the question.
Senator Tannas: We won't see you again, so if it didn't happen,
would it be something that you would say was an oversight?
Mr. Reiher: If that did not happen, I would assume that people
assumed that the litigants were aware, given the public announcements.
The Chair: Could we have that answer as soon as possible — today,
if possible? As you know, we're proceeding with this bill quickly, so we
would like to know that.
Senator Patterson: I would like to thank Senator Tannas for asking
the question I was going to ask. I hope we do get a prompt answer on what,
to me, is an important question. Notwithstanding all the official
correspondence with chiefs, one would have thought that the litigants should
have had the respect of being consulted directly.
I would like to ask another unrelated question about capacity. Does the
department have the capacity in place to deal with the projected influx of
up to 28,000 to 35,000 applications for status? In that connection, I wonder
if you could tell us now or later: What is the current backlog of
applications resulting from McIvor? I understand that in some cases
it can take up to two years, so I think these two issues are related and
important. Thank you.
Ms. Nepton: With regard to the question about the Bill C-3
backlog, I will have to pull those figures. As you know, the question came
up last night, and my team is currently working on getting them for me.
In terms of the question about capacity, over the next five years, the
department will receive $19 million in order to assist with the processing
of the Descheneaux entitlements that will be coming through the
Right now, we are proceeding at hiring additional staff to process
applications. Therefore, I am fairly confident that we will have a team in
place by the time we get Royal Assent to start processing the applications
once they start arriving.
Senator Patterson: If you could give us some details on the
recruitment process and the numbers, I think that would be helpful to the
committee. Not necessarily right now.
Ms. Nepton: In the future?
Senator Patterson: Now, or later.
Ms. Nepton: It will definitely be in the future; we have started.
Senator Patterson: I'm wondering how many positions you're
recruiting and what the status is.
Ms. Montminy: We're targeting hiring 60 people. The competitive
processes have been launched and we can provide you with the details in
Senator Patterson: Thank you.
Senator Lovelace Nicholas: As you know, Bill S-3 is not a money
bill, so with the influx of people who are going to be registered, where is
the guarantee that the government is willing to put monies toward education,
health care and housing, and so on?
Ms. Montminy: As I mentioned in my remarks, the government has
already announced in the economic update of November 2 that the money
associated with the Non-Insured Health Benefit has been aside. There is a
source of funds identified for that based on the demographic projection. As
we just mentioned, there is also money for the processing, which is
separate. For post-secondary education, we will be continuing to assess the
impact and securing a source of funds in the next few months.
With respect to other programming linked to on-reserve residency, we will
have to assess over time to see if the population that will become eligible
for registration under Bill S-3 actually moves on reserve, because the
funding for these programs is based on who moves onto the reserve. From past
mobility trends that we've been tracking, there are equal numbers of people
moving on and off reserve. We have seen with Bill C-3 that a very small
portion of that population actually moved on reserve.
Senator Lovelace Nicholas: You mentioned here that you do not
expect considerable increases on reserve. As you know, in remote
communities, people don't have the resources to move out. If they are living
off the community, they're going to want to come back because of the
education, housing and so on. Do you agree?
Ms. Montminy: Again, overall, the mobility trends that we have
been tracking for several decades show that when people move back to the
reserve, an equal number moves away from the reserve for education and other
reasons. So, overall, the trend has been it's fairly equal in terms of the
population staying on reserve, but if it does change, we will be tracking
this closely and securing the necessary funding to accommodate this newly
entitled population living on reserve.
Senator Lovelace Nicholas: I'm worried about the secured monies
because that happened be Bill C-31. They secured money, but there was never
enough money for the housing and the number of people who came into the
communities. Is it written somewhere saying that the government is going to
provide all this money?
Ms. Montminy: This is something that will be assessed on an
ongoing basis. The department, when it renews its programming, it always
looks at the populations it serves and makes the necessary adjustments. This
will be done on an ongoing basis.
These people will be registered over a period of time; not everyone will
file an application on February 4, 2017. This will take time. We hope it
might be the case people register early because they have been waiting a
long time, but as people get registered, we will definitely be tracking and
monitoring the impact on reserve.
Senator Patterson: I have a supplementary to Senator Lovelace
Nicholas. You said that money for the Non-Insured Health Benefits Program
has been set aside in anticipation of the impact of this case. Could you
provide details of that money? I assume it's separate from the $19 million
you mentioned in order to assist processing.
For post-secondary education, you said, "We will be securing a source of
funds.'' Could you provide details on what amount you will be securing and
whether that is certain at this moment as the committee considers the bill?
Ms. Montminy: The amount of money that has already been secured
for non-insured health benefits is $130 million over five years starting in
2017-18. This amount was referred to in the economic update of November 2.
We will be happy to provide you with a detailed breakdown per year.
With respect to post-secondary, we are still considering our funding
approach as part of a broader request with respect to post-secondary
Senator Patterson: For the $130 million you mentioned set aside in
2017-18 for non-insured health benefits, is there a portion of that which
will be dedicated to new persons acquiring status?
Ms. Montminy: It is all to accommodate the new population that
will become eligible to be registered under Bill S-3. This is for the
projection of 28,000 to 35,000 newly entitled individuals.
Senator Patterson: But you have not yet nailed down a sum for
post-secondary education; is that correct?
Ms. Montminy: We're still working on that.
Senator Patterson: When do you expect to get confirmation of those
Ms. Montminy: I cannot give you any guarantee on that, but I hope
it will be in the next few months.
Senator Lankin: To both senators' questions: When we did the
original briefing, this was a question I asked. I understood that for the
funds for post-secondary education, the department is considering a broader
set of proposals that would require increased funds. Within that, some
portion of that would be for a potential increased population as a result of
Bill S-3. I also understood you to say that you're obligated for
post-secondary dollars. I took from that a guarantee that there will be
sufficient dollars there for people who go on to post-secondary. Did I
misunderstand that? If I misunderstood it, what is the nature of the
commitment that people can be assured of at this point in time with respect
to new registrants and their right to post-secondary education funding?
Ms. Montminy: The envelope for post-secondary funding is based on
the entitled population, the status population. It's an envelope that is
then distributed to communities. The department is not in charge of
distributing the amounts directly to the individuals; it is the chief and
council that makes those determinations. The envelope is determined based on
the overall registered population.
Senator Lankin: Is it formulaic?
Ms. Montminy: Yes.
Senator Lankin: Regarding the other on-reserve community supports,
you made a commitment to ongoing monitoring and addressing those. I'm
wondering if there is a way, Madam Chair, we could get a commitment that
this committee could receive updates or perhaps have the department come
back in a year's time and indicate what the results look like and what the
department is seeing in terms of trends of new registrants and moving to
reserve communities. That way, we are monitoring the commitment of the
department to meet the needs of those communities.
Senator Lovelace Nicholas: Would these registrants include Metis?
Ms. Montminy: If a Metis person can be eligible for registration
as an Indian as well, which is possible depending on the eligibility of
their parents, they can then apply and become registered. But it's not an
envelope or something that is directed at Metis but for people who want to
seek Indian status through the registration process.
Senator Raine: I understand the issue, and I certainly support
gender equity in this field, but I need clarification: In order to become a
status Indian, does a person need to have membership in a First Nation band?
Ms. Nepton: In order to be registered, we look at the genealogy.
The key part is where their ancestors came from.
With regard to being linked to a band, yes, we always ask as part of the
application process if you know, for example, where your father or your
mother is registered and to please indicate it. It's requested, but it's
separate. One doesn't need to be linked directly to a band, but if they have
it, it definitely assists in the registration process.
Senator Raine: Perhaps my question was not clear enough. Is it
required that a First Nation band, a group or community as recognized by
AANDC, accept a person as a member of that band before they become a
Ms. Nepton: No, it's not required.
Senator Moore: Thank you, witnesses, for being here. I want to
refer to this letter of July 29, 2016, that the minister sent out. Did it go
to every chief in Canada? Did 630 chiefs receive this?
Ms. Montminy: Yes.
Senator Moore: What about the Inuit communities and the Metis? How
were they advised? Did they get a copy of the letter and to whom was it
Ms. St-Aubin: For the Metis and non-status, we went through their
regional and national organizations. It went to their executive offices as
well as either their president-elect or their representative chiefs for some
of their organizations.
Senator Moore: So that's the Metis and the Inuit communities?
Ms. St-Aubin: In the non-status organizations.
Senator Moore: I looked at this letter and read it carefully a
couple of times. On the second page, it says, "To implement stage one, the
department is proposing an engagement process with First Nations and other
indigenous groups across the country to take place during the summer and
early fall . . . consisting of information sharing and discussion of
proposed amendments.'' Then there is the closing paragraph where it says,
"The government's proposed approach is on the website.''
I don't see anything where you're invited to attend or participate. Was
there a subsequent letter? How did these people know where the meeting was
taking place and when they could be heard? I heard there were only eight
meetings. I want to know how they were set up. Were they done regionally?
How was this put together?
Ms. St-Aubin: I have it in French in front of me, so I'm
translating as I speak.
For the purpose of stage one, we proposed to work with the regional
organizations and First Nations organizations directly. Subsequent to
sending this letter, we reached out to the regional organizations to
identify the best groups to help organize the sessions in their various
jurisdictions and with their membership. This has been the process to date.
As well, the minister invited them to go to the website to explore further.
But we've relied heavily on the regional indigenous organizations to help
coordinate as best as possible, given that there are 640 communities. So we
worked with them in partnership.
Senator Moore: It would have been nice if you invited them and not
refer them to a website to read the government's approach. If I were a
chief, I would say, "That's nice, but am I included in this? Am I allowed to
go speak? Do I get the views of my band members first before I go?'' That's
just a continuation of the whole patriarchal culture within your department.
I think it's terrible.
You say there are four more hearings. The eight hearings that were held,
where were they held and how was that decided?
Ms. St-Aubin: Current information sessions that have been held
were held across Canada. We had two in British Columbia; we've had two in
the Maritimes. They've been held in all the provinces, with two more
happening up in the territories. There are three additional ones happening
in the Maritimes.
We have an information chart with all the session locations, as well as
the number of participants and the demographic of those participating. We'd
be happy to share with the committee.
Senator Moore: Have there been eight hearings held, or twelve?
Ms. St-Aubin: At the time of the original technical briefing,
there had been eight. We are currently up to eleven — the twelfth is
happening today — and two more are happening over the course of this week.
Senator Moore: So every province in the country and the
Ms. St-Aubin: The territories are still to come.
Senator Moore: The territories are to come, okay.
I'll pass for now. Thank you.
Senator Watt: Thank you for being here. I was quite impressed with
your presentation that you made on October 26. It was clear in terms of what
you intend to do, and for the certain parts that you're not dealing with,
you decided to deal with them at the second stage. I think that was quite
An area that was not too clear to me was the implication of the Inuit
into this piece of legislation. Since the Inuit of Nunavik were used and
highlighted in your presentation, one of the reasons why the Inuit have to
be dealt with is on account of the fact of the James Bay and Northern Quebec
Agreement. I'm familiar with that. I dealt with that and I negotiated that.
On that end of it, are you here today to give us more information in regard
to the implications of the Inuit side in relation to subsection 91.24 of the
Constitution Act, 1867?
For that reason, we already have a treaty implied on accessing under
section 91.24 related to education, health issues, housing issues and also
apprenticeship, which has still not been implemented as part of the
Knowing that fact, I would like you to explain to me and the committee
what the actual implications are going to be due to the fact that one
segment of the original groups already have a treaty, but in a sense, what
you are dealing with here on the court order is the fact that there are
three — you are focusing on three subject areas?
I'm not entirely sure whether the Inuit have the same problems in that
area, but one of the things that we're afraid of with this piece of
legislation is whether there is going to be a negative impact on this due to
the fact that we do enjoy, as part of the settlement, accessing programs
from the Government of Canada through section 91.24 and the Indian Act.
Normally, we don't really fall under the Indian Act, but in the sense of
accessing a program from the government, we do. So we do have a concern.
I'm not sure whether you have enough time. I understood when you were
making the presentation that you did not consult with the people. That was
very clear to me. You had some discussions with people. You tried to find
some way of trying to inform them what this is all about, but the fact is
you didn't even call it a consultation, which I really appreciate heavily
due to the fact that the court was involved in that.
The conclusion I came up with during your presentation is that the best
way to deal with this matter is to try to delay. At least we could focus
entirely on the bill — not only focusing at the first part but also the
focus on the second part. I think it's only fair for us to ask the court to
give us a reasonable enough delay so we would have enough time to go into
the depth of it.
But there are certain things on the Aboriginal side that we would like to
clarify and have some clarity on this matter. It looks like we're never
going to have that chance because you intend to close this first part, and
with the second part, you're going to deal with it. What happens in the case
of the government no longer being in power? You have gone to a certain
extent in putting us in the line of, "I'm sorry; you will just have to hang
yourself up.'' So this is not acceptable.
I would go back to the point of asking: You being the legal scholar, you
understand how the law works and so on, so could you give us a picture of
what impact this will have on the Inuit? I'm talking about only the Nunavik
side. I'm not dealing with Nunavut, Nunatsiavut or NWT, and they also have
the same kinds of clauses in their treaties, on which they have not been
The Chair: Could we have a response to Senator Watt's question?
Mr. Reiher: Thank you. As you pointed out, the Indian Act does not
apply to Inuit. It's explicitly stated in the act. The order that was
rendered by the court, of course, deals with the Indian Act itself, and the
government has to prepare a response to the declaration of invalidity.
Therefore, strictly speaking, there is no impact on Inuit. The amendments
will have no implications for the Inuit because the amendments will create
new entitlement to registration, and there is no entitlement to registration
that applies to Inuit given that they are excluded.
That being said, of course, the issues you are raising are important, and
there will be an opportunity to discuss these questions at stage two of the
government's response. It's recognized that the questions of Indian
registration and band membership have to be dealt with, taking into account
issues of citizenship as well, and broader issues of identities.
Your question also raises the urgency of the response and why there was
not an exemption sought to give more time to these discuss all these issues
and the implications. Again, I would point to the complexity of the current
regime and the need to provide a response to the court order declaring part
of the Indian Act invalid. These are touching on individual rights that are
important and have to be dealt with as soon as possible. Therefore, it has
been considered more appropriate to keep the broader complex questions for
stage two to deal with.
Senator Watt: Which have no certainty, again. Thank you.
Mr. Reiher: It's going to be launched in February 2017.
The Chair: I would like to remind committee members that the
departmental officials will be back again at the end of the study of Bill
S-3, so try and keep your questions short. We will have a chance to ask
Senator Lankin: The issue of stage one and stage two is very
problematic for a lot of different people, for different reasons, and
sometimes polar opposite reasons, so I think we're left struggling through
some of this. The Quebec court itself, in the ruling on Descheneaux,
proclaimed that here are the issues you must address; otherwise, we strike
down these provisions, but also, here are a number of other issues that are
outstanding. The government should not leave it to litigants to have to come
forward and take all of these issues forward.
This is a rhetorical question, but I want an answer to it. Why did you
determine not to address these other potential Charter issues that were
raised by the Quebec court in Bill S-3 as it comes forward? Why have they
been left to stage two?
Ms. Montminy: That's a very good question. As you mentioned, it is
a difficult choice that we have had to make. We were dealing with very short
time frames to address the issues that were raised by the Descheneaux
case. We went beyond this and we did hear what the court had to say in
encouraging us to look beyond this. What we decided to do was to address all
known sex-based inequities in registration provisions. We went and added the
omitted and removed minors so we would deal with this entire category of
discrimination in this particular bill.
It was felt that going beyond this would not be fair to the views and
complexities of these issues, nor would we be able to take the time to hear
the views of all those indigenous groups that have been dealing with these
complex issues for a long time. We want to do this. The government is
committed to a new nation-to-nation relationship, and we want to have a
fulsome comprehensive engagement process, which will take more than a few
months. We recognize that, and we want to give it the proper time. Our
minister is committed to launching this in February 2017. We, in our various
documentation, will refer to this stage two as the engagement process,
lasting approximately a year, and then returning with proposals for
legislative reform. That would take into account what we have heard from
various indigenous groups.
The perspectives on this are varied. You will hear this yourself through
the hearings that we're going to be holding. Some, as I mentioned in my
remarks, want to be very inclusive and welcoming and want more liberal rules
with respect to registration so that more people can gain Indian status,
whereas others feel quite the opposite. They feel that this could lead to
ethno-cultural erosion, which is a big concern for a number of groups.
For the government to decide very quickly, within the very limited time
that we have, which way to go and make these decisions without proper
fulsome, comprehensive consultation with indigenous groups, we don't think
that is the way forward. We had to separate the two. We want to then be able
to deal with what was raised in the Descheneaux case and beyond,
dealing with this full set of discrimination dealing with sex-based
inequities, and then we will return and look at all these other issues,
which, again, have been complex and discussed amongst indigenous groups
through the exploratory process. The government has never really had an
opportunity to engage fully with indigenous groups to start looking at
Senator Lankin: Senator Watt raised a concern about the stage two
issues and the fact that the consultation could take a substantial length of
time. There could be a change in government, and we may never get to it. If
we were to ask for an extension on Bill S-3 and combine those issues into
the longer consultation, is there a chance that we wouldn't get that piece
of work done as well?
Ms. Montminy: The court has already given us 18 months and
basically has suspended the invalidity provision but has also put on hold
the rights of these individuals who brought their case to court. Again,
we're not talking just about the plaintiffs. We are talking about 28,000 to
35,000 people that have waited. So we're trying; it's a balancing act.
In asking the court for a further extension, we could be successful in
asking for, maybe, three months to complete the legislative process. It's
unlikely the court would give us sufficient time, which would be at least a
year and a bit more — maybe another 18 months — in order to fully engage
with indigenous groups, draft legislative amendments, bring this back to the
parliamentary process and have provisions that would be in place within,
again, a court-imposed deadline. I think that would be very difficult. So
it's unlikely the court would give us that much time. I think the court is
more likely to give us — if they were to give us any extension — a couple of
months, which I don't think would be sufficient for us to fully address
these issues. That's why we made the difficult decision to separate this
into two stages.
Senator Patterson: This is a supplementary to Senator Lankin's
question about why other Charter issues were being left to stage two. I know
that the government reviews all legislation with respect to Charter
compliance, and you have said that this bill aims to address all known
sex-based inequities. My question then is: Can I infer from what you said
that, if this bill is adopted, the Indian Act would not be Charter compliant
with respect to other issues, such as age?
Mr. Reiher: Thank you. The Minister of Justice certifies that a
bill tabled before Parliament conforms to the Charter. This is not, strictly
speaking, of course, a determination that Indian Act itself does not
currently contain other issues that might be problematic.
That being said, we are not aware, at the moment, of any other issue that
we know is contrary to the Charter.
Senator Patterson: But the bill sets limits on age, 1985, and
paternity. Are these not, on the face, Charter issues?
Mr. Reiher: There may be differential treatment that is different
for different individuals that are not contrary to the Charter for various
reasons. We are, of course, aware of the difficult question of unknown
parent; it is usually unknown father. This is an extremely complex issue
that will be looked at in stage two and cannot easily be addressed with
amendments of the nature that we are discussing in this bill.
The Chair: Thank you. We have come to the end of our time for our
first panel. I would like to thank the officials from Indigenous and
Northern Affairs Canada and the Department of Justice for appearing this
morning, and I thank senators for all their questions.
In our second panel today, we welcome the litigants of the Descheneaux
case, as well as their lawyer. Welcome. We have with us today Stéphane
Descheneaux, plaintiff in Descheneaux v. Canada (Attorney General).
We have Tammy Yantha, another plaintiff in Descheneaux v. Canada
(Attorney General); and David Schulze, Counsel for the plaintiffs and
for the intervenors, the Council of Abenaki of Odanak.
Ladies and gentlemen, you have the floor. If you would, please proceed
with your presentation, and then the senators will follow with their
David Schulze, Counsel for the plaintiffs and for the intervenors the
Council of Abenaki of Odanak and the Council of Abenaki of Wôlinak:
Descheneaux v. Canada (Attorney General), Dionne Schulze: Good
morning, madam chair and senators. My name is David Schulze. I'm going to
let others speak, but I thought I would explain that at the end of the table
we have Julia Yantha, who is the granddaughter of Susan and the daughter of
Stéphane Descheneaux, Plaintiff: Descheneaux v. Canada (Attorney
General), The Abenaki of Odanak, as an individual: It's an honour
for me to be here today with you. I'm sorry for my English; it might be
rough. It's English from the streets.
Senator Watt: Feel comfortable.
Mr. Descheneaux: I do, I will.
The Chair: We have translation, if you would prefer to speak in
Mr. Descheneaux: In English, you can feel the emotion. That part
First of all, when we got the ruling, we were pretty happy about the job
the judge and lawyer had done. It took my friends and me five weeks to
explain that situation. After that, we got the ruling, we understood there
was an appeal, and that was right to do because there was an election and
stuff we couldn't control that comes along with that.
After that, from what I understood, there would be consultations. We
figured that they would come to us or at least give us a phone call to talk
to us about the project and all that stuff. So we waited and waited and
waited. Finally, I got a phone call and an email last week asking us to come
in here, so I thought, "Hey, finally they will talk to us about something.
We will put it on the table together, and then we are going to be able to go
see other bands, other nations and other people who are involved in the
ruling of my case.''
So I ended up here yesterday, with David, my chief, and we had a nice
wrapped box, but we didn't know what was in it. We found out it was the
bill, and most of it is done, but we were never talked to or asked to be
involved, so it was sad. It was sad because it was not the way we thought it
would be done. I think Tammy may say the same thing. Because it was our
case, and we thought we would be a part of it to make sure. The judges said,
"I'm ruling these three cases, but I gave the legislators a more free hand
to make sure that there is no one else left.''
I'm the right person to be here, from the 1950s to today. My grandmother
— you know what love does: She fell in love with a non-Indian and she lost
her rights and was kicked off the reserve because that was the way it was
In the 1980s, she wanted that back. She came back to the reserve, but she
has Alzheimer's, so she didn't even know she was there. But we found out
that we have family there that we discovered, because the knots were cut. We
didn't know that. After that, my mother, in the 1980s, she got her stuff
back. She won that back too, so she moved back to the reserve. Then, in 2000
we did, but we didn't move back, because we couldn't translate or give what
we will gain on the reserve to our kids. Then I won my case, too, to make
sure that my daughters wouldn't have to search for their whole lives to find
out what they are and where they are from.
On day two, we started to look at that with David, the council and the
chiefs. We found that there were other cases that we might be able to be
talk about with the government to try to solve them and to make sure that we
don't make the same mistakes that were made before. We have a case. If we
simply draw a black line, that's where you are going to go. You're going to
judge that and you're going to rule on that. Don't worry about the grey
stuff around it; follow the black line. We had hoped the last time, with my
case, that we might be able to touch the grey stuff around that black line,
but it wasn't done. And even worse than that, we never informed or asked to
be part of it or at least have a chance to wave a flag and say there are
other cases that should be taken into consideration and talked about.
That's how I felt when we came here yesterday, and that's why I feel it's
important to me to let you know about that. That's how we felt: that there
was stuff left out.
After this, Tammy will tell you a few things and a presentation is going
to be given by David.
Tammy Yantha, Plaintiff: Descheneaux v. Canada (Attorney General), The
Abenaki of Odanak, as an individual: I'm sorry; I'm not too prepared to
speak today. I was told, last minute, that I had to talk. My mother couldn't
be here today, and she was the one who did everything.
I was young. I have a younger brother who was much younger at the time.
He was, I believe, four or five and I was already a teenager. My mother had
a discrimination case where her brother's children were allowed to have
status. Because my mother was female, her children were not allowed to have
Just to make it clear, I don't want status because of the benefits that
we would get. I have all my benefits. I have done my schooling. I have a
full-time job. For me, it's just to be included and to be able to be
involved. I am now 44, and for all those years I have missed not being able
to be involved. It's not the tribe not accepting me; it's more the
government not accepting me as who I am and what my background is. My
daughter is 11 now and we have that opportunity to let her learn and grow,
and she could also have access to special programs in the Ontario school
system by them knowing that she is native.
The Chair: Thank you.
Mr. Schulze: Thank you for inviting us. We sent out a presentation
and I would like, if the senators would allow, to try and take you through
it as quickly as I can. As I told the members of what I gather you call the
other place yesterday, I spent five weeks in trial on this with, I think, a
very smart judge, and it was still a lot of work for her. Now, we're going
to try to do this in a few minutes. I think it's important to have a bit of
background. I hear my colleagues from the Department of Indian Affairs keep
saying how complex it is. It is complex, but I think we're better off if we
start knowing something.
Just so you understand, the framework for what we have given you is these
two sentences from Madam Justice Masse's judgment, which are on the first
 This judgment aims to dispose of the plaintiffs' action.
 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 they are
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.
If you look at the next slide — you will have heard perhaps a lot about
6(1) and 6(2). When you're not in the milieu, it seems very strange, but
this is the bottom line. There are two important points to understand. I
apologize, because I realize some of the senators have lived through this
personally and don't need this explained, but for others it's difficult.
Everyone who was on the Indian register in 1985, when the Charter came
into effect, is a 6(1). That's the first thing you need to understand. The
second thing you need to understand is that anyone with 6(1) status will
always have a status child. Even if they parent with a non-Indian, their
child will at least be 6(2). So you can understand that the more 6(1)
ancestors you have, the more likely you are or your children are to have
If you turn to the next slide, the Government of Canada labelled it a
"second-generation cut-off;'' after two generations of intermarriage, you
don't have status anymore. The problem with that analysis, as the court
recognized clearly in McIvor, is that everyone who had status before
1985 is counted. That means, especially, that the non-Indian women who got
their status through their husbands are counted. We'll come back to that.
They call that a second- generation cut-off. There are cabinet documents
from the 1980s that call it a "blood quantum'' because that's what it is if
you pretend that the women who married in are also Indians.
You'll see in the next three slides that you will not have status under
the new rules — if you forget about the pre- 1985 complications — unless you
have at least two status grandparents. That's how it works. You'll see the
first slide is the two status grandparent requirement. If you have two 6(1)
grandparents, you'll end up being 6(1) yourself. If you have two status
grandparents, even 6(2), who were married to each other, you'll end being
6(2), but you'll see on the third slide that it's not 100 per cent. If
they're not distributed the right way, you could still have two status
grandparents and end up without status yourself. This is why I said that if
you would like to have status, you always want to have as many 6(1)
grandparents as you can. It increases your chances enormously.
On the next slide, we explain how it is that Tammy ended up with no
status even though her first cousins have status. This has to do with very
peculiar rules about how status was given before 1985 to the children of
Indian men and non-Indian women out of wedlock. To cut a long story short,
the boys got status pre-1985 and the girls didn't. That means that,
post-1985, the boys were counted as 6(1) because they were already on the
list, but with the girls, they looked and asked, "How many status parents do
you have? Oh, you only have a 6(1) dad and a mother with no status, so
you're a 6(2).'' That's what created this absurd situation.
I will come back to this, but I want to emphasize something: In 1988,
three years after Bill C-31, the joint parliamentary committee reported on
Bill C-31 and they said: "Treating brothers and sisters differently is
aberrant. It cannot and should not be allowed. You must correct it.'' That
was 1988. It is 2016 now that we're dealing with it, and that's after my
five weeks in court. Tammy was there for a day and Stéphane was there for a
The next line, on the McIvor judgment, is to give some background
on how we got to Stéphane Descheneaux's case. Because the women who married
in came in in 1985 as 6(1)s, what happened post-1985 was what we call the
cousins rule. The simplest way to illustrate this is with the former chief
of Odanak and his sister who were both on council when I began working on
these issues. Claire and Gilles O'Bomsawin, brother and sister, both marry
non-Indians in the 1960s. Gilles gives status to his wife; Claire loses her
status — the married-out rule of pre-1985.
Then comes the Charter and Bill C-31 and they give Claire her status
back, but they look at her children and say, "One Indian parent, so your
kids are 6(2).'' They look at Gilles' children, see two Indian parents — two
6(1)s — so his children are 6(1). Claire's children are 6(2) and Gilles' are
6(1). The next generation also marries out. Gilles' grandchildren have
status and Claire's grandchildren have none. That's the cousins rule. That's
what Sharon McIvor challenged, and that's what the B.C. Court of Appeal
ruled was contrary to the Charter.
Then Indian Affairs came before your predecessor, before Parliament, and
said they were going to fix that. The way they fixed that was by saying — if
I take my example of Claire O'Bomsawin — "We're going to make her children
6(1) and that will make her grandchildren 6(2).'' They assured us that took
care of everything.
The trouble was they missed something. If you look at this case of the
comparator, comparator Stéphane Descheneaux's second cousin, for the man who
married out — if it had happened that not just his children but his
grandchildren had themselves married and created further families before
1985, he didn't have 6(2) grandchildren. He had 6(1) grandchildren.
The reason that wasn't addressed in Bill C-3 was because Indian Affairs
very deliberately tailored the bill to the exact situation of Sharon
McIvor's family, and it happens that her son, Jacob Grismer, married after
1985. So they didn't deal with what happened if someone married before 1985.
The effect was that someone like Stéphane Descheneaux was 6(2) and his
great uncle's grandchildren were 6(1). That's what we did the whole case
about. I just boiled down the five weeks to three minutes, and we argued for
five weeks whether it was discriminatory.
Now, finally, and I give them full credit for it, Indian and Northern
Affairs Canada will cure that. That's fine. That seems to deal with
gender-based and sex discrimination in the status rules.
Remember that all the litigation has been about how we made the
transition from a pre-1985 situation of discrimination to a post-1985
non-discriminatory system. The argument is not "is the current system
discriminatory?'' but about how we treated people in the transition.
If you back up to the comparator slide, this became crucial in the
McIvor case: There was a very odd rule in effect as of 1951, and it was
called the "double mother rule.'' The double mother rule always confused me.
It's easier if you know the French term for that rule, mère-grand-mère,
which translates to the mother-grandmother rule.
It worked like this: For any child born after September 4, 1951, if his
mother had acquired her status by marriage and if his grandmother was also
not born an Indian, that child would lose status at age 21. Presto, magic —
not an Indian anymore. If you do the math, you realize that rule didn't kick
in until 1972. Indian Affairs started exempting bands from that rule through
the 1970s, and in 1985, Bill C-31 abolished that rule.
Here's the thing, and this is what the B.C. Court of Appeal focused on in
McIvor: Abolishing that rule meant the male line was actually better
off after 1985 than it was before, because from 1951 to 1985, marrying out
two generations in a row meant the grandchildren lost their status, but
post-1985, they kept it.
By the way, if you look through all the bills, it's always September 4,
1951. You may wonder what's magic about 1951, and the magic about it is
that's when the double mother rule started. That's why we didn't go back to
families who had no children before September 1951.
That is my crash course on status. Maybe I should stop now and ask if
there are any questions.
The Chair: We have started a list, and we will start with our
critic, Senator Patterson.
Senator Patterson: I made a speech in the Senate about the bill on
second reading. I said the Inuit have got it figured out better. It's
basically if one parent has status, then the child is a beneficiary.
You're obviously steeped in this, and I'm grateful for the user-friendly
explanation you gave, which I will want to study again.
Have you had a chance to look at the Inuit situation and compare it with
this terribly complex and inequitable situation you described? I'm just
curious as to whether you had an opportunity to compare the two First
Nations of Canada as to how they approach membership.
Mr. Schulze: I have some familiarity with the complementary
agreement to the James Bay Northern Quebec Agreement on status for Inuit
beneficiaries of the JBNQA, and I know that in that area the governments
were willing to let Inuit decide.
I can't explain why the treatment is so different, but maybe that would
allow me to make one point that I think the senators need to understand. You
will hear a great deal from Indian Affairs about the fact that bands can
take control of membership, and in fact, bands can make their memberships
more restrictive or less restrictive than the status rules.
But it's very important, I think, for this committee to understand that
Indian Affairs does not pay for people who do not have status. I guess the
only answer I can give you, Senator Patterson, from my point of view as an
advocate for First Nations, is that status becomes about who the government
is willing to pay for.
Senator Patterson: Thank you for that. I think what happened in
the testimony last night from the litigants was there were four specific
scenarios not addressed by the bill that were described, and maybe you've
just done that for us, but could you summarize, please, what were the four
scenarios that you outlined to the committee in the other place?
I'm also interested because we are concerned about consultation on this
bill. Did you communicate those concerns to the department in the
consultation phase through the Quebec chiefs, and if so, what was their
Mr. Schulze: I'll start with your second question first.
There has not been any consultation. I don't believe even the department
calls it "consultation.'' They sometimes call it an'' "engagement process''
and sometimes call it "information.''
I can say, as I told your colleagues yesterday, there's still a case
before the court. As the lawyer in that case, I contacted my opposing
counsel last spring asking that I hoped once the appeal is withdrawn she
would keep me informed. She's a fine lawyer and she said yes.
I heard nothing further until the proposal went up on the website in
August, and then there was a meeting with the Quebec chiefs on September 8
that I attended as an observer, and I will come back to that, but I heard
nothing further after that until someone in an email to me mentioned Bill
S-3 and I wondered what that was. After that, this committee was kind enough
to invite me to come and speak, and as the litigation lawyer, that has been
the extent of the contacts I've had.
I can tell you with respect to the Abenaki, because the two communities
were intervenors in the case, all there has been was a regional meeting with
the Quebec chiefs on September 8. At that meeting, Chief Rick O'Bomsawin,
who is here in the audience, was clear on a number of points with some of
the same people who were in the previous panel before you. One of the things
he said is: Why do you keep talking about this deadline? What is stopping
you from asking for an extension? At that meeting, as I understood the
representatives, they said they would be willing to look at that, but they
oddly said they would be willing to look at it if Chief O'Bomsawin wanted to
ask for it, at which point he had to explain to them that they lost the case
so they should ask for it.
He also specifically underlined to them that in her judgment, Justice
Masse did not say only cure sex discrimination but all discrimination on
prohibited grounds. They all studied the judgment and agreed that that was
I'm informed by my clients that the next time they heard from the
department was this past Friday when they had a conference call to be told
that there would be these hearings. Chief O'Bomsawin tells me he
specifically asked about an extension and was told no extension would be
sought. He said there were other issues that he would have to end up in
court on if they weren't addressed, and he was told that was his
prerogative, which I think we took to mean "go ahead.''
The first part of your question was the four scenarios. That's the rest
of the material you have before you, and I would be happy to go through it
in more detail, but we have two scenarios where siblings, brothers and
sisters of the same parents, can end up with different status; and two
scenarios where first cousins with the same ancestry can end up with
different status. They have to do, again, with the way the transitions
between the rules work.
You heard the lawyer from Justice Canada say, in answer, I believe, to
your question, that there is no other Charter violation they know of. Well,
I take that to mean they haven't lost any other cases yet.
May I take the committee briefly through the other four scenarios?
The Chair: If you could do it briefly, that would be appreciated.
Mr. Schulze: The first scenario is pre-1985, an Indian woman lost
her status by marriage, and the act actually said she was enfranchised by
effect of marriage. You could also voluntarily give up — some people in the
communities call it "selling your rights.'' You could seek to be
enfranchised. You could also be enfranchised by your father's decision. The
way it really worked is that a man would say, "I'm enfranchising myself, my
wife and my minor children.''
If we look at this first chart, we have a situation like this in Odanak
where a woman was enfranchised by her father's decision at 19 or 20. She
subsequently married a non-Indian man. After Bill C-3 and the McIvor
amendments, she wanted to see her grandchildren registered. That's when she
was told, "No, because you didn't actually lose your status by marrying that
non-Indian man at whatever it was, 21 or 22. You lost status when your
father enfranchised you at 19 or 20.'' Her grandchildren were untouched by
Bill C-3 and will be untouched by this bill. I have a client in this
situation who is 6(2), but all his cousins by his mother's sisters — and
there are many of them — are all 6(1) by virtue of McIvor or they
were 6(1) already. That's the first scenario, and to my mind, the only
distinction now between these grandmothers is whether they were married or
unmarried when they lost their status.
The next scenario, if you turn the page, is a little more complex. Think
about that Indian man who enfranchised his wife and his children pre-1985,
and I've been told of a family like this in Wôlinak. It happens his wife
married in. She acquired her status by marriage. Everyone loses their
status; they have some more children. In 1985, Bill C-31 comes along and
gives back status to him and his children. It counts his children before
1985 and before enfranchisement as Indians for whom enfranchisement is
repealed, which is what Bill C-31 did. It looks at his children born later
and says one Indian parent, because the mother wasn't Indian, so they're
6(2), so you have this absurd situation where children of the same parents,
the older ones are 6(1) and the younger ones are 6(2).
The third scenario has to do with undeclared paternity. Before 1985,
Indian status went through the male line with one exception. That one
exception was an Indian woman who did not declare the father. In the absence
of proof before 1985, the father was presumed to be Indian. After 1985, that
presumption was reversed. He's presumed to be non- Indian. There are women
in Odanak who made a big choice in the 1960s; they chose not to get married
in order to not lose status for their children. They would go to the church
with their unmarried, common-law husbands and say to the priest, "I don't
know who the father is,'' have the child baptized, and go home with the
father so the child could be Indian. There is at least one family like this
in Odanak whose mother did that. Her pre-1985 children are 6(1)s. She has a
daughter born just after Bill C-31 and that daughter is 6(2). Children of
the same parents, some are 6(1) and some are 6(2).
The final scenario is this: Pre-1985, legal adoption by Indian parents
didn't count if they didn't adopt an Indian baby. In fact, there are
communities where adoption of non-Indian babies was relatively common. I was
told it was at certain point common knowledge in Quebec City that if you had
an unwanted child, if you left it at the Huron Village, they would take it
in, and I was told the same thing about some Mi'kmaq reserves. If they were
not biologically Indian, because they didn't have Indian natural parents,
they did not get status.
So as an example, we have a family in Odanak, both parents Abenaki born
with Indian status. They have a natural child, and then they adopt a child
who they can't demonstrate that the parents were Indian. Pre-1985, the
adopted child doesn't have status. Post 1985, the child does have 6(1)
status, but he got married before 1985, so his children are looked at. They
look at how many Indian parents? One Indian parent, so his children are
6(2). His sister, born to his parents, also married pre-1985, so she has
Those are the four scenarios we want to draw to your attention to where
first cousins and siblings are treated differently because of the way the
To answer finally Senator Patterson's question, we were hoping that by
now we would be able to discuss this with Indian Affairs, but what we got
instead was the bill.
Senator Patterson: Thank you.
The Chair: I'm going to ask a supplementary to that very long
explanation. I get a headache trying to sort it all out. It was a simple
clause back in 1956 or so that legally put in the Indian Act that an Indian
woman who married a non- Indian lost her status. That's it. Now we have four
pages of clauses trying to put the Indian woman back into having equal
status. You have outlined several instances where there is still sex
discrimination within the proposed Bill S-3.
If we go to the cousin's issue, if on the maternal line we made that an
Indian great-grandmother, or a great-great- grandmother — I don't know which
it is — if we put the comparator back one more generation, would we not
still have sex discrimination because the Indian man never loses his status,
but if we go back enough times the Indian woman will still lose her status
if we go back another generation. Is that correct?
Mr. Schulze: You're absolutely correct, Senator Dyck. The reason
that's not being addressed is because in the McIvor judgment, they
decided that what were discriminatory were the benefits of abolishing the
double mother rule, and so we've only looked at the effects as of 1951.
The Chair: In my view, then, the bill still has not created equity
for Indian women who lost their status. I gained status back in 1985, and
I'm not even sure but when I look at this legislation, I think now I always
thought I was a 6(2). Maybe I'm a 6(1), or am I 6(1)(c) 1 or a 6(1)(c)-01?
How is anyone ever going to figure out what they are? It's much too
complicated. Is there a simpler solution? Has anyone come up with a simpler
Mr. Schulze: We're kind of all in the same bramble bush together
The Chair: I believe that when Bill C-3 was looked at, Dr. Pamela
Palmater proposed a simpler solution, but I don't know if anyone took that
up or studied it in any depth. Are you aware of that?
Mr. Schulze: The McIvor case was filed in 1987, so we all
remember how long we've been working on this. In the McIvor case, she
sought to address the sex discrimination back to the beginning in the 1860s
as you alluded to. It was the B.C. Court of Appeal that said we're only
going to look at it as of 1951. I could explain why, but I think that would
be a distraction.
Dr. Pamela Palmater suggested that. My recollection is there was an
amendment proposed to Bill C-3 when it was in the other place. It was to be
much broader. The Speaker ultimately ruled it out of order because he said
this bill is to address the McIvor judgment and amendments that go
further are out of order, and that's where that ended.
The Chair: Thank you. I would like to comment on that because if
I'm correct, that amendment would have drastically changed the bill, and
therefore the proper method probably would have been to defeat the bill and
come up with a new bill. That's why it was ruled out of order.
Senator Lovelace Nicholas: Welcome here today. What you're saying
is Bill S-3 does not still go far enough to end inequity. In my time, we
addressed the same thing to the government. The government at the time said,
"Well, take it or leave it.'' You either get your status and your children
will get status and we'll deal with the other inequities, I guess today. How
could somebody go about getting all this fixed once and for all?
Mr. Schulze: That's the heart of the issue before you. It's an
honour and a pleasure to have a question addressed to me on this issue by
Senator Lovelace Nicholas.
Senator Lovelace Nicholas: Thank you.
Mr. Schulze: We heard from Indian Affairs about what a hurry we're
in. I went through my notes and I notice Senator Lovelace Nicholas'
complaint to the UN Human Rights Committee was filed in 1977, so we've been
at this for 40 years.
This is the nub of it. The case before the court was about three
plaintiffs, Stéphane Descheneaux, and Susan and Tammy Yantha. My analysis of
these amendments is that they addressed those situations.
The court challenged Parliament to go further. We have suggested at least
four cases where there could be discrimination that to me looks more like
discrimination based on family status. I don't know why Parliament can't go
further except that we're told what a hurry we're all in.
My instructions from the Abenaki community are to be relatively realistic
and conservative in what we're asking for and to at least try to look at
some of the other scenarios. The message we're getting from Indian Affairs
is that they are not open to that.
I wanted to add that I was really kind of distressed to hear it's because
babies won't get their status cards otherwise and to hear Indian Affairs
say, "Well, people have waited for this long enough.'' Yes, they have waited
long enough, but why is it only in a hurry now? No one was in a hurry when
we filed the case for Stéphane Descheneaux, no one was in a hurry when
Sharon McIvor filed her case in 1987 and no one was in a hurry when your
case was filed, Senator Lovelace. Now we're in a hurry; now we can't ask for
a three- or six-month extension to discuss relatively precise points of it
further. I haven't heard a good explanation why.
The Chair: I have a quick supplementary. You mentioned in your
remarks that there were reports done in 1988 as a response to Bill C-31. So
the government, since at least 1988, has been studying this issue. That's 38
years. When we passed Bill C-3, the report also recommended that the
government continue to study it because they recognized that they had not
removed all the sex discrimination.
So the government has been aware that this is going on and there have
been explorations. What does that say to you in terms of the government
being in a rush?
Mr. Schulze: It's hard for us to believe the government is in a
On that exact point that you raised, at the time of the Bill C-3 in 2010,
the McIvor amendments, Indian Affairs kept saying they would have an
exploratory process. We actually asked their witnesses during the trial in
Descheneaux what happened to that exploratory process. That witness
had no idea, saying something like, "I went off the file. I don't know.''
The meeting in September with the Quebec chiefs was the first time I
learned there had been a report issued on this exploratory process. It was
published this summer, which means that took from 2010 to 2016.
One of the problems is that we hear Indian Affairs say there will be a
second stage. The last time they did a second stage, it took six years and
it just resulted in a report. Our confidence that other issues will be
addressed quickly is low, unfortunately.
Senator Lankin: The length of time that it has taken for
governments — plural — to deal with these issues is untenable and it cannot
be defended. We are, unfortunately, all in the brambles, as you said. We are
where we are. There is every right to be angry and to criticize past lack of
action. The question that will be before us as we deal with this bill is:
How do we go forward?
When I agreed to sponsor this bill, I began to get emails, letters and
phone calls from people, primarily from indigenous communities — not
exclusively but primarily — from across Canada. There were very different
opinions about proceeding with this bill, not so much on the content but on
We have before us this difficult balance the department talked about in
terms of the court decision. I would appreciate your comments on this. I'm
not convinced that we would get a three- or six-month extension, and if we
got it, that it would adequately allow for the consultation on these other
I'm not a lawyer. I have a gut belief that these other issues that have
been raised are Charter issues and that they must be addressed. I also have
a profound belief that in nation-to-nation relations and as a result of
Supreme Court directions, the consultation process between Canada and
indigenous communities is very important. In trying to balance that, I have
come to a point of view — and I genuinely want your feedback on this — that
we're better to get these things done and seriously engage in consultation —
not an exploratory process, which was for indigenous peoples to, among
themselves, come up with recommendations, which were then sat on for however
many years by government — but a consultation that is committed by a
government that has restated its government-to-government, nation-to- nation
I feel angry about the situation that people are in. I feel angry about
the thousands of people who are waiting for this bill to be implemented. I
thank the litigants here for the work they have done in leadership to bring
about this change. Unfortunately, it's like a drip, drip, drip approach, and
almost every time we fix it, we create other problems.
But here we are in the bramble bush. What is the alternative to go
forward? Six months is not going to let us do the consultation that many
people in indigenous communities are demanding. Thousands of people beyond
the litigants are waiting for these particular results to be implemented now
that these litigants have fought hard and won.
Mr. Schulze: The concerns you've raised are very important. I have
a certain skepticism in the face of some of what I hear from the registrar's
office. I have been informed that the practice of the registrar currently is
that if applicants who are in Mr. Descheneaux's situation apply, those
applications are to be rejected. So I have a great deal of trouble believing
the registrar is motivated by great concern about doing justice to those
people. Otherwise, it seemed to me they would be putting them aside and
planning to deal with them quickly. And I have seen cases that take
literally years before the registrar.
You have to understand that when I have had cases where people wait six
years for a decision from the registrar, I have trouble accepting that the
registrar is really worried about the three months that he or she won't be
able to give status to people. That hasn't struck me as being the major
concern of that office in the work I have done.
I think we need to distinguish between two different kinds of issues
here. The second stage that Indian Affairs has proposed is a very impressive
list, but it's a very long and complicated list. No one is pretending that
can be done in three to six months. Yes, some of those issues are issues
that require nation-to-nation consultation.
We have tried to narrow in on something simpler. Are there other places
where the status rules are not compliant with the Charter? Some of my
clients like this and some of them don't, but the fact is that if it is not
compliant with the Charter, there is not a lot of consultation left to be
had because Parliament's duty is to comply with the Charter.
What we are talking about and what my clients are trying to raise here
is: Can we at least carve out the time required to look at the actual
Charter issues? If that were the department's motivation, I have trouble
believing the court would turn the Attorney General down on such a request.
Have I answered your question?
Senator Lankin: I think you have. I agree with you completely.
Parliament's responsibility, and this chamber of Parliament's
responsibility, is to ensure the Charter compliance of the legislation that
comes before us. This bill as it is before us is arguably Charter compliant,
and you have agreed. This does the right thing. There are other issues that
remain on the books in the legislation that we question the Charter
compliance of, and there should be an examination of that.
If you're right and the Department of Justice was successful in getting
an extension, my concern with attempting this in a three- or six-month
period is that it is a potential affront to the type of discussion that
should take place about this. Irrespective of whether it's deemed to be a
Charter issue at the end of the day, it will be fixed one way or the other.
To move quickly is not respectful of the kind of commitments that Canada has
made to indigenous peoples about how we will effect changes in laws that are
about their very basic rights.
I'm almost wondering, in stage two, whether there needs to be a shorter
focus on these Charter issues rather than some of the longer-term issues
like the role of Canada in continuing to register and have control over that
process. It's going to be a long discussion with a lot of different views
across communities. I am almost wondering if there is an approach in stage
two that gets us focused on these Charter compliance issues, but I'm very
loathe to miss the opportunity to legislate in the Descheneaux and
Yantha cases and the thousands of people that that will affect.
Mr. Schulze: I can't disagree with that. I would just mention that
we're down to the wire because of choices that were made by the department.
The proposals went up a year after the judgment. There has been no serious
discussion. The meeting that I observed in September was a presentation of
what the department will do. The message I understand them to have given to
my clients on Friday is that this is what they will do. Now we're coming up
to the February 3 deadline, and they are saying, "Oh my gosh, our hands are
tied; the deadline is looming.'' Who created this situation, and who does it
serve to be in that situation?
The Chair: Supplementary to Senator Lankin's question with regard
to nation-to-nation consultation, I think it's important to undertake
nation-to-nation consultation, especially when we are infringing upon
existing Aboriginal or treaty rights. But in this case, we are actually
granting rights to indigenous women who lost their rights, so I'm not clear
that consultation would necessarily apply 100 per cent to this case. In your
opinion, how would you interpret the need for consultation?
Mr. Schulze: I want to be fair to both sides. My clients, the
Abenaki, have taken a broad view of what membership and status should be.
That's partly because the realities they confront were that, in the
demographic analysis, in 100 years they could be faced with a situation of
having no status members.
Other communities take a very narrow and restrictive view. Those
communities would say, "Well, yes, it is a matter of consultation because
when Indian Affairs effectively decides who is on our membership list, you
are deciding who has the benefits of our treaty, and the benefits of our
treaty include our reserves and our other rights.''
I think there is something to be said for that argument. I think that the
problem is one kind of right doesn't take precedence over another kind of
right. The right to equality and the right to exercise your Aboriginal
rights have to be reconciled. You don't get to put one on hold while you
debate the other.
Senator Raine: This is a very complex situation. I can't help
gravitating to the comments that Senator Patterson made about the Nunavut
and James Bay treaties, and other treaties, having accepted the single
parent rule. Has the single parent rule been considered to replace this
complicated situation that we have now? Would the single parent rule help in
the situation of the Abenaki with the possibility of their having no status
members in 100 years?
Mr. Schulze: It would, but it's the opposite of what the model is
now. The model is, essentially, as I hope I helped you understand, a minimum
two-grandparent requirement. We haven't changed that downstream. All these
amendments, these ones before you now and Bill C-3, they are upstream. We
will make some other people's status upstream, further up the family tree,
but downstream, you're still going to need a minimum of two status
The argument we have always heard from the Attorney General of Canada is
it's the second generation cut-off. You get two generations of intermarriage
and then you are cut off and you stop having status.
My answer to you is yes, but that's the opposite of the approach that has
been taken since 1985.
Senator Raine: Do you get the feeling, then, that INAC and the
government are looking to decrease those people with Aboriginal status and
that's why they want two-grandparent instead of single parent?
Mr. Schulze: With one odd exception on the island of Newfoundland,
I have never seen Indian Affairs show any great enthusiasm for more status
Senator Raine: But they would like to hire more people to maintain
their registry. Anyway, I'm just hoping that consideration would be given to
it. If it's not working and it's causing so much complication, why wouldn't
we try to go to a simpler situation that people can actually understand? If
one of your parents is status Indian, then why wouldn't you be a status
Mr. Schulze: I suspect the rule is that it would increase the
number of people for whom the department is financially responsible.
The Chair: Thank you. We have reached the end of our time. I want
to thank our panel today, Mr. Descheneaux, Tammy Yantha and lawyer David
Schulze, for your presentations and for answering questions from the
(The committee adjourned.)