Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 14 - Evidence - November 29, 2016
OTTAWA, Tuesday, November 29, 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 9:02 a.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the Web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional lands of the Algonquin peoples.
My name is Lillian Dyck, from Saskatchewan, and I have the honour and privilege of chairing the Standing Senate Committee on Aboriginal Peoples.
I now invite my fellow senators to introduce themselves.
Senator Moore: Good morning; Wilfred Moore from Nova Scotia.
Senator Bovey: Patricia Bovey from Manitoba.
Senator Beyak: Senator Lynn Beyak from Ontario. Welcome.
Senator Oh: Senator Oh from Ontario.
Senator Raine: Nancy Greene Raine from B.C.
Senator Tannas: Scott Tannas from Alberta.
Senator Patterson: Dennis Patterson, senator from Nunavut.
The Chair: Thank you, senators.
This morning we are continuing our study of BillS-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
On our first panel we have representatives from Indigenous and Northern Affairs Canada and the Department of Justice. We have Ms. 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.
We have heard from these witnesses previously, but we have asked them to come back to answer questions that were posed by the senators last week. The questions are with respect to the number of registrations, the past history, what we expected and what actually happened. There were some questions about the drafting of the bill and also about Charter compliance. I believe the assistant deputy minister also has some brief speaking notes that she will proceed with.
[Translation]
Joëlle Montminy, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Indigenous and Northern Affairs Canada: Good morning, Madam Chair, honourable senators. Thank you for the opportunity to appear before this committee once again to answer questions that you may have following the first week of deliberations on BillS-3. We fully recognize and understand the challenges that the committee faces in its consideration of the amendments proposed under BillS-3. We can all agree that the Indian Act is an anachronism and that patchwork fixes to Indian status are not a desirable or sustainable solution over the longer term.
[English]
You have heard from a number of witnesses so far, and you can already appreciate that there is no clear consensus on a way forward. Where there seems to be consensus, however, is on the need for meaningful consultations on these issues, which go to the core of indigenous identity.
In considering the response to the Descheneaux decision, the government faced a number of difficult questions on how best to respond. They included three key questions: one, whether to continue or withdraw the appeal; two, whether to seek a court extension; and, three, to determine the scope of the amendments for this particular bill.
On whether to pursue or withdraw the appeal, we have to consider that the government has made strong commitments with respect to reconciliation and a renewed nation-to-nation relationship. The government has made a commitment to be less litigious in respect of indigenous issues and to consult with indigenous peoples on matters that concern them.
When faced with the decision of whether or not to continue the appeal, the government chose to stop all court proceedings to ensure that justice was rendered without further delays to the plaintiffs, their families and the other individuals directly affected.
However, the implications of not pursuing the appeal meant that the government would be constrained by the court deadline and unable to conduct comprehensive engagement with indigenous groups on the proposed amendments.
This was a difficult decision, balancing the rights of the plaintiffs to have justice — versus appealing this, not being constrained by court proceedings and potentially going further by also putting the plaintiffs through further delays and significant costs.
On whether or not to seek a court extension, this is obviously directly linked to the question: Then why not ask for a court extension? We gave serious consideration to this question right at the beginning. We considered the benefit of an extension to allow more time for engagement, but also the drawbacks of delaying justice for the plaintiffs and others.
There are a couple of important points. From experience, we know the courts are unlikely to grant an extension unless the government can demonstrate that it has made its best efforts to meet the court deadline. This meant that we had to be prepared to draft and table the bill before we even had a chance to be granted an extension. This cannot be done well in advance just because we feel that it would be practical to have more time.
We also know from past precedent that if an extension were to be granted, it would likely be for a period of no more than three to six months. A recent example of this is when the government sought an extension on the assisted dying legislation and was granted a four-month extension.
In light of this, we considered the big question: What could be accomplished with such a short extension, an extension that would be granted after the bill is already before Parliament? At best, this would allow potentially one more round of meetings with indigenous groups on the proposed amendments, but it would clearly be insufficient to address all the broader related issues.
It's important to keep in mind that if you take this three- to six-month extension and overlay this onto the parliamentary session, it means no more than four months, because we would have to come back before you to present a bill and provide sufficient time for parliamentarians to conduct a study. This means a maximum of a four-month extension.
This led us to determine what should be the proper scope of this bill, given that we were working within tight timelines. The question before us on the scope of the bill was whether we would only address the issues raised in the Descheneaux decision or whether we could take a broader approach in an attempt to fix all issues related to Indian status within a system that has existed for close to 150 years.
As you know, the biggest challenge we face with the registration system is the fact that the federal government still has exclusive authority in determining who is an Indian. As such, it was immediately recognized that it would be highly inappropriate to further perpetuate this colonial regime by bringing forward what would amount to unilateral, comprehensive amendment to Indian status in the absence of sufficient time to consult with individuals, communities and nations directly impacted.
So this is why the government response to the Descheneaux decision consists of two stages: the first, to implement the changes imposed by the court and to address other similar sex-based issues; and, to launch stage two in February2017 to conduct joint work on broader-related systemic issues in order to determine how to move forward with future reform.
The government has made a firm commitment to reconciliation and a renewed nation-to-nation relationship with indigenous people. Once again, we recognize and appreciate the challenges faced by parliamentarians in consideration of this bill and the difficult decisions that must be taken.
We do believe, however, that the government's two-stage approach is the best way to effectively address the multitude and complex issues and balance the interests of all involved.
[Translation]
My colleagues and I would be pleased to address your questions.
[English]
The Chair: Thank you, Ms. Montminy. Before we open the floor to questions, I would ask that the registrar put forth the numbers she presented to some of the members of the committee last week and in meetings following that. She had numbers with regard to who were expected and actually registered under BillC-31, BillC-3 and BillS-3. If you would do that, please.
Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Indigenous and Northern Affairs Canada: Yes. Thank you, Senator Dyck.
As of November22, 2016, there is a total registered population of 968,621 individuals. For BillC-3 registrants, we received 53,629 applications, which led to 38,467 registered as of November22, 2016.
I believe there was a question about the backlog as well. In total, for the BillC-3 registration backlog, 241 individual applications are currently pending. As well, as part of the total backlog, it's 3,632 applications, again as of November22, 2016.
The Chair: Do you also have the numbers for BillC-31?
Ms. Nepton: Yes. The total number of individuals registered today under 6(1)(c) is 16,707.
The Chair: That can't be right.
Ms. Nepton: I'm sorry. Hold on. It's 130,000.
The Chair: That's the actual number?
Ms. Nepton: Yes, 130,000 under BillC-31, give or take, approximately.
The Chair: How many are you expecting under BillS-3?
Ms. Nepton: We are expecting 28,000 to 35,000.
The Chair: If you don't mind, I will ask the first question on the numbers. If you look at them, you actually had about 130,000who registered under BillC-31, and under BillC-3 you were expecting about 54,000 and you have actually registered about 38,500?
Ms. Nepton: Under BillS-3 we're expecting —
The Chair: Sorry, I meant BillC-3.
Ms. Montminy: Under BillC-3 we were expecting approximately 45,000 and we have now registered approximately 38,000.
The Chair: That's BillC-3, the last bill, 2010.
What this means to me is that when we passed BillC-31, approximately 38,000 individuals were left out. Those were the people we didn't talk about because they were registered under BillC-3. Am I making it clear?
BillC-31 we passed because we had this rush to get people registered, but then we had BillC-3 26 years later and we had a rush again, and then we had 38,500 that could have been registered in 1985 if we hadn't rushed forward with the 1985 bill.
So now with BillS-3, we're under the same pressure because we have 28,000 to 35,000 who we know can be registered, but we don't know how many are waiting in the wings that could have been registered if we don't rush this bill. It could be another 30,000 people that we don't know about.
Ms. Montminy: I would just like to correct that. In 1985, the amendments that were bought forward were not done in the context of a court decision, so there were no timelines associated with this other than the Charter had come into force.
The Chair: Yes, but there was a timeline, I believe, with BillC-3. It was the same thing; there was a court decision, the McIvor decision.
Ms. Montminy: So the 1985 amendments were not in the context of a court decision, but with BillC-3, yes; in response to the McIvor decision, there was a court deadline.
The Chair: Yes. Thank you.
Senator Moore: As a supplementary, I think it might be useful as well in the context here if the registrar told us how many applications for registration she regularly receives per annum.
Ms. Nepton: Yes. If I look at fiscal year 2015-16, there were approximately 25,000 applications received. Approximately 21,500 were registered as a result of those applications or overlap of the previous fiscal year.
If I look at the figures as of November22, 2016, the department has already received 20,000 applications, and that has led to approximately 14,000 registered individuals.
The Chair: Do you know how many of the applications come from Quebec?
Ms. Nepton: No, I do not have that statistic with me.
The Chair: Thank you.
Senator Patterson: I'm glad the witnesses have come back today to allow us to reflect on what we've heard.
I'd like to focus first on the two-stage approach that you described. You've explained the department's reasoning here. The problem I have, having heard the witnesses, is with the first stage. As you've said in your remarks to us this morning, you described the first stage as implementing changes imposed by the court and addressing other similar sex- based issues. Now, I think you could have just responded strictly to the court, but you decided to go further by including the issue of omitted minors.
We've heard from the litigant's solicitor that your response to Descheneaux left out four classes of persons who he said would be affected by Descheneaux and were not included in the bill. He made the case that at least some of those cases of persons are impacted by gender discrimination if the scope of the bill is not enlarged. I think my colleague will address this, but he even said that the litigants would have been willing to wait longer to have that broader response to Descheneaux.
It seems to me that in deciding to go further than Descheneaux—but not stage two, which is the very important question of citizenship and membership that is at the heart of all these problems going back to McIvor and before — in deciding to go to the first stage, you have opened the proverbial can of worms by addressing omitted minors but not, apparently, up to four other issues that the solicitor for Descheneaux, who is steeped in this complex area, said have been left out.
If you were going to do a first stage, should it have strictly been response to Descheneaux and not trying to go further? It seems to have raised great concerns from the witnesses we've heard.
Ms. Montminy: What the plaintiff's counsel brought forward as proposed further changes are not sex-based discrimination situations. He admitted this and it's on the record. He said these were other types of inequities or differential treatment that are found in registration provisions, but they are not sex-based. Two of them deal with enfranchisement, one deals with adoption, and the fourth was unstated paternity and parenthood. These were four different categories of situations that he was bringing forward, but he admitted that these were not strictly sex-based. This is why they are beyond the scope of the bill.
We are having discussions with Mr. Schulze and the chief, and we are continuing to examine this situation. They would be part of something we will be discussing under stage two.
Senator Patterson: Thank you for that.
I'd like to also address your point that you have determined that with the court extension and the parliamentary calendar, there would not have been much time to do better consultation. I'm very concerned about this issue of consultation, because we've heard from witnesses, as you know, who've said that the minimal consultations you committed to doing were not even completed by the time the bill was before our committee. Regional meetings were going on the week we considered the bill at this committee. You also heard, I'm sure, from national organizations. The Native Women's Association of Canada, who described the dialogue at the one consultation they had as consisting of a one and a half hour history session about those First Nations people themselves.
Grand Chief Perry Bellegarde, was very clear to us that we should start again, that we should seek an extension and that even the stage one consultation had been totally inadequate.
I'd like to ask you to address these strong concerns that we've heard — that the Native Women's Association of Canada was presented with a fait accompli of the bill, with no engagement in advance. I wonder if you would comment on this.
It seems to me that, yes, you allowed time for Parliament. We know that's not a quick process, because we in the Senate do take our job to review legislation seriously. However, your officials could have had that full time period to consult and review the bill for technical deficiencies. It seems to me we're being presented with a bill that raises lots of questions about its drafting — and I haven't even mentioned Charter compliance — and there have been loud cries from some pretty authoritative people saying that consultation was rushed and even left a lot of people out. Would you comment on that?
Ms. Montminy: Yes. Again, this has been a challenging process for all involved. From the beginning, from the moment the government decided to withdraw the appeal in February2016, we knew there would not be sufficient time to conduct meaningful consultation. We never claimed the process we were going to be entering into was actually going to be meaningful consultation, because we know what that looks like and this is far from what we were able to accomplish in this short period of time.
We were very up front with the national organizations we consulted with very early on to tell them about the government's proposed response to Descheneaux, which would be stage one and stage two, stage one being conducted as a response to the decision where we have to bring in amendments in order for the registration provisions to remain valid. Then phase two will be the stage where we will be able to take the time to conduct full conferences, engagement sessions and have meaningful discussions with all involved.
Under stage one, we did everything we could within the period of time that we had between having to go to cabinet to seek authority to draft legislative amendments and then doing quick engagement with the national organizations so that they would be somewhat informed and comfortable with the way forward.
Then we undertook to put on the departmental website a very comprehensive discussion paper. We had online comments that we were able to receive at any point.
We also had information sessions that started as early as we could. We recognize that these sessions started taking place in the summer, which is far from ideal to reach the maximum number of participants. We put the draft amendments online for people to be able to consult with in advance. We wrote to all chiefs and national organizations on two occasions.
Within this, I still recognize that this does not constitute meaningful consultations, and we knew that the time constraints we were under would not allow us to do so. This is why we designed from the beginning a two-stage process, the first allowing us to address the immediate issues, with a commitment to come back to address the broader issues through a process that will not only take the time necessary to have fulsome conversations but that will be designed with indigenous groups and First Nations to determine how best to go forward regarding. The form and shape it takes and what subject matters are addressed will be co-designed with indigenous people to make sure it satisfies them that this is going to be proper, meaningful engagement.
I have to say it is unfortunate that BillC-3 is also conducted in the context of a response to a court decision. It is far from ideal. This is why we're looking forward to stage two. We will not have the constraints of having to respond within a particular period of time. Also, the subject matters will be those that people want to address.
Senator Patterson: Thank you for your candour.
It seems to me that one of the problems is that the appeal was abandoned in February and you started engaging — and I think that's the word we should be using, not consultation — in June. You said summer; I'll say June. February to June is five months, roughly, and now we're in the fall and five months has elapsed since you started consultation.
It took the government half the available time to get its act together. I understand cabinet mandates and all that kind of stuff, but one of the reasons people are saying, This was a rush and we were presented with a fait accompli and there was no time to engage,'' is that half of the available time was taken up by government organizing itself and getting its act together rather than engaging with people. Is that a fair analysis of what went on?
Ms. Montminy: As you can appreciate the complexity of the issues we're dealing with, I would say that it needed thorough analysis internally to make sure of which remedies were going to be brought forward to address the cousins and siblings issues, but also to look at what other sex-based discrimination could be put forward in this bill. It took some time for us to do this review.
The drafting of this provision is much more complex than previous amendments, for instance, under BillC-3, which was a lot more straightforward. This is much more complex, as you can see from really fully understanding the comparative group.
But beyond this, and this is something that the plaintiff's counsel recognized themselves, I would say a lot of the challenges we've had over the years have had to do with bringing forward amendments. The way things are drafted, in the transition to bringing in new entitled individuals, new inequities can emerge.
In looking at how we were going to do it, we actually had to do a thorough analysis to make sure we were not going to create further inequities by addressing the issues that the court in the Descheneaux decision asked us to address.
I would say it's very complex and needed thorough analysis, and we went as quickly as we could under the circumstances.
Senator Tannas: Given the testimony that you've no doubt followed here and in the other place, I'm always struck by government's inability to admit they made a mistake. We've got a situation where it has come out that the plaintiffs would have agreed in supporting an extension. We've had no comment about that. I can't believe that that would not have changed the calculation that you regaled us with about how you didn't have the ability or you didn't think there was the ability for an extension.
Given what you heard, would that not have changed your calculation if you had known or if you had, some months ago, asked the plaintiffs if they would support an extension?
Ms. Montminy: Yes, absolutely. We knew there was a possibility that they would be supportive of an extension. It still does not change our assessment of the court being unlikely to grant an extension until government had made its best effort to meet the court deadline that was first imposed. This is from precedent and what we understand to be the law. Even on consent with the plaintiffs, the court still wants the decision that they've put forward to be upheld, so we did not think that this would necessarily be a successful request.
You have to understand as well that even now, at any point in time, it's never guaranteed the court will give us an extension, so we had to work in parallel, making sure that we had a process being brought forward that would attempt to meet the court deadline. Short of doing that, we could put the government in a situation where as of February3 we cannot register any new individuals. Our duty is make sure that we have a plan going forward that would not put the government into that situation, and consider other alternatives along the way.
Based on our understanding of how these types of court extensions are granted, going early would not have been successful, even with the consent of the plaintiff. We considered that.
Senator Tannas: Thank you.
We heard some testimony — forgive me, I can't remember where — that there are some classes of people who will continue to suffer gender-based inequity. There was a group of males, if I remember correctly, that was pointed out to us. Is that right, chair?
Senator Patterson: The Indigenous Bar Association.
Senator Tannas: Exactly, the Indigenous Bar Association. So, at a minimum, if we don't actually amend this or scrap it, we should change the title to say, "reduction of gender-based inequities,'' as opposed to "elimination.''
Again, I'm disappointed. I'm sure that other political people, including the minister, maybe feel let down by this very first piece of meaningful legislation from a new government that has advertised and is absolutely genuine in its determination to reset the bar. Here we are with the story in a movie that we have seen many times. It really is unfortunate.
Senator Enverga: Thank you for being here today. I really appreciate all the work you've been doing.
My question has more to do with when the leaders came here to address the issue. All they were saying about this bill is you have to do it right and do it once. That whole issue and process is the reason why we're having this conversation right now.
My initial question was actually answered, but to make it a little better and give credit to your work, I know that there's a first phase, but let me ask you about the second phase. Is there a hard deadline for this? I hear you saying that another patchwork will be created and that you want some real solutions to this.
I'm just wondering, in the second phase, is there a hard deadline for that? Are you planning to consult everybody this time?
Ms. Montminy: Thank you for your question.
There is no hard deadline for the second stage, other than the minister having made a strong commitment in writing letters that she sent to national organizations and all the chiefs that she would launch the process in February2017. How long will it last? We have planned for an engagement of at least one year. It could go a bit longer depending on what is felt is needed to really air all the issues that people want to bring forward.
I would say that stage two will be a tremendous opportunity for us to do this work and do this right, and not under the pressure of a court deadline. It will be the first time the government will have done this since 1985, because as the chair pointed out, it's true that previous amendments to BillC-3, for instance, were done under pressure of a court deadline and in response to a court decision. It informed the scope of that particular response and also, obviously, the speed with which it was done.
This will be the first time since 1985 that the government will have set aside a reasonable period of time to conduct meaningful consultations in order to review these issues. They go to the core of indigenous identity and are absolutely foundational to a lot of other things that we do in Indigenous Affairs in terms of benefits, programs and so on.
Senator Enverga: I know that you had to have a hard deadline for the first phase, as you mentioned. If you can inject some facts or policy into this hard deadline, why can't you make one for the second phase? If you had done it for the first phase, why didn't you do it for the second?
Ms. Montminy: It's a very good question. I apologize for not having addressed this following your previous question about whether we're going to consult with everyone. We do want to co-design that with indigenous groups, including the kind of activities they want to conduct, we do want to discuss what the proper way would be to go forward. This time around it was obviously not sufficient time, but we did ask national and regional organizations to bring together the chiefs and others and, through different organizations, bring members so that we could have conversations.
Through stage two, they will likely want to have some time to look at these issues amongst themselves and come back with views. There could be all kinds of different activities that they feel are necessary in order to bring forward their views.
We don't just want to hear their views. We want to be able to identify at the end of that process of the future reform that should be brought forward. We want to identify the issues that should be addressed next. A whole lot of things might be staged over time as well, because some of these transformations could take a bit longer. We'll have to decide how to move forward on this.
We could have a deadline, but I wouldn't want to impose that on indigenous groups that will be designing the process with us. We are envisaging one year, but it could be longer. Again, we will hopefully be able to bring forward future reform under this government's mandate.
Senator Pate: As I heard you speak, I wondered if our colleague Senator Lovelace Nicholas might take issue with whether BillC-31 was related to a case, because in fact it was related to both section15 and the Lovelace decision that we saw some of those changes.
I have two questions. When you were considering the responses to Sharon McIvor's case, did you not seek several extensions?
Ms. Montminy: Yes, two extensions were sought. The first was sought because Parliament had prorogued, so the bill died on the Order Paper and had to be brought back. The second extension was because a number of amendments had been brought forward and the chair needed time to deliberate. So it was well advanced in the legislative process.
Senator Pate: We know that in fact the current bill has many deficiencies and creates new categories that will result in further discriminatory treatment, and anticipatory discriminatory treatment. I'm curious as to why you haven't included more categories or provided for more time for consultation and sought the extension.
Ms. Montminy: I'm not sure what further inequities you're referring to.
Senator Pate: I think the Indigenous Bar Association raised concerns about those who are classified as having been illegitimate — that is a whole other category — unstated paternity, some of those. What is your plan in terms of including those categories?
Ms. Montminy: Since the testimony from the Indigenous Bar Association, we've been having discussions with Mr. Lafond. We have been doing the required analysis on the proposed amendment that he brought forward. We will continue discussing with him over the next few days and report back to the committee on this.
Senator Pate: I'm very hopeful to hear that, because I think otherwise, in some ways, what's being proposed could be seen less as a real interest in nation-to-nation dialogue than really a challenge to invoke more court challenges, more UN complaints and more Canadian Human Rights Commission complaints, as evidenced by an ongoing refusal, for instance, to address Lynn Gehl's case and others that are going on at the moment. Do you have plans to resolve some of those favourably as well?
Ms. Montminy: The government has already stated that it wants to take a less litigious approach to indigenous issues and to consult on any issues that concern them. I would think that the withdrawal of the appeal in the Descheneaux case is a good example of doing that. Again, that led us to being constrained by court deadlines, but the government made that choice. They couldn't do both — be less litigious and then create the time for meaningful consultations — because that's the situation we're already in.
For future cases, it's on a case-by-case basis, but the commitment to be less litigious and to see how they can address these issues is certainly a heartfelt one.
You're right; there are a number of active cases now before the courts. Hopefully stage two will allow us to discuss this differential treatment and see if it can be resolved through a set of future legislative amendments.
Senator Pate: What was the reason for not including it in this stage?
Ms. Montminy: There was just no time. That's what I spoke to in my opening remarks. We had to determine the scope of the bill based on what could be addressed within this court timeline, given that we knew there would be no time for meaningful consultation. We could not bring unilateral amendments knowing that there would be no time for consultation, and decide that we could fix 150 years of colonial rules within a three-month period.
Senator Pate: Not to make too fine a point, but you haven't sought a further extension?
Ms. Montminy: Again, I spoke to the extension. Our experience with court extensions is that they can only be sought very late in the process, when we can demonstrate best efforts in meeting the court deadline. That meant we had to decide on the scope of the bill, draft the bill, table the bill, and then, later on during this process, potentially ask for a court extension.
This brings us to the question of what can be accomplished with a court extension at this late stage, which would be maybe one more round of information sessions — because we know that in order to have information sessions across the country, it takes a few months — and then be brought back here to have another round of parliamentary study.
From experience, we think the court extension would be a maximum of three to six months. However, when overlaid with the parliamentary calendar, that means a maximum of four months, because we would have to be done by June. Therefore, we would gain, in real time, maybe a month of information sessions.
If the scope of the bill were to be extended, you would have to factor in having to go back to cabinet, draft new legislative amendments and come back. In effect, it doesn't provide sufficient time for meaningful consultations under that scenario, unfortunately.
Senator Raine: Thank you very much for coming back and giving us further clarification. It seemed very simple when you were here last time, but we now know it isn't.
What I would like to do, if you don't mind, is to change the subject to phase two. I understand the need to press phase one through. However, if we are going to look at phase two, probably the most important thing is to address the issue that Aboriginal people have long asserted: their inherent right to determine their own citizenship.
I'm wondering about three things. First, can we do this? Can we actually take citizenship, status, membership and the register out of the Indian Act in one year? If we can't, how are we going to even discuss those issues if INAC has decided that isn't going to happen?
To be fair, before we start phase two, I think we need a good, clear understanding of how INAC operates. Is there a think tank in INAC to address the issue of self-determination of citizenship, membership and status, or are there different divisions and it keeps going back and forth? To be fair to all the Aboriginal communities across this country, if you said we're only going to talk inside this box, then it might not be a happy consultation.
Could you give us a real description of the vision in INAC for self-determination of citizenship, membership and status?
Ms. Montminy: Thank you. This is a great question.
Currently, as you know, most First Nations still operate under the Indian Act. There is different opt-in legislation available to various groups to start asserting more control over various subject matters. An example of this would be the First Nations Land Management Act, which allows First Nations to manage their own lands. There are different things like this.
There is also section10 of the Indian Act, which allows First Nations to control their own membership. We mentioned this in an earlier briefing. Thirty-seven percent of First Nations currently operate under section10, which means they make their own membership rules. That does not speak to registration, but it means they have determined who the members of their First Nation are.
For instance, the up to 35,000 people who will become newly registered under BillS-3, if they belong to a band that controls its own membership, they don't get automatic membership into that community. It's the band that decides. That is another form of self-determination.
Since 1995, the government has had the inherent right to self-government policy, which allows people to negotiate full self-government agreements as well as sectoral self-government agreements, so there are a number of ways to move towards greater self-determination under these types of policies.
There are 37 First Nations under self-government agreements at the moment. That exercises all kinds of jurisdiction, depending on if they have full self-government or sectoral self-government.
Your question is excellent in the sense that we're going to have to decide, through the pre-engagement phase, how to address these issues. The government will not pre-determine or put limitations on what can be discussed during these discussions.
For instance, a lot of people will come and tell you that it is more than an irritant. It is contrary to self- determination that the federal government is the sole authority in 2016 in determining who is an Indian. The idea of that authority residing in the federal government, in the Indian registrar, is something that should be looked at in order to figure out how First Nations can move forward and play a bigger role in determining who is an Indian, above and beyond determining their own membership and also having the ability to have jurisdiction over citizenship, as they do in self-government.
Senator Raine: Could you clarify your last statement? You said to determine who is an Indian, above and beyond membership, their own citizenship?
Ms. Montminy: Registration is what I'm talking about.
Senator Raine: Above and beyond?
Ms. Montminy: That is what I'm talking about. Right now, the federal government determines Indian status. Then under section10, First Nations can currently determine membership, and under self-government they can determine citizenship. No one right now, other than the federal government through the rules that we're looking at in section6, has the ability to determine status for Indians. This has been in place since 1861, but through this registry and the registrar since 1951.
Senator Raine: Even if there were no Indian Act, there would still be status?
Ms. Montminy: Well, we would have to think about what the post-Indian Act world looks like vis-à-vis registration. Right now the registration system is embedded into the Indian Act. If the Indian Act was not there, there would be no registrar or registry. Potentially it would have to be replaced by something else, a different way of determining status if this concept is to continue on.
Senator Meredith: Thank you so much for being here today. I apologize for missing your presentation, but I'm reading through it.
Getting back to phase two, we've heard time and again about consultation. We had the national chief appear before us last week and talk about slowing down this process. Obviously the government has a court deadline to meet; there is not enough time.
Are you looking at going through this process with respect to looking for an extension or not? I think you sort of alluded to that. That's my first question. Is the government's intention to look to the courts, given the fact that you've looked at what the committee is proposing, and then still ask for that extension? Is that the government's intention?
Ms. Montminy: As I mentioned, we do not believe that much would be accomplished by seeking a court extension, which again would be for a period of three to six months.
Again, depending on the intention behind this extension, if it's to expand the scope of the bill, it would give us no time to consult with anyone, which we don't think is appropriate, because we don't feel comfortable bringing forward further amendments without the benefit of engaging indigenous groups and First Nations.
We are already, obviously, being criticized for bringing forward the amendments in BillS-3, but those have been ruled on. We lost the court decision, so we have to bring forward these amendments in order to comply with the court's decision.
To go beyond this without the benefit of consultation, we do not feel that is appropriate.
Senator Meredith: My next question, then, is again on phase two. We've heard time and again about the duty to consult. We don't want to come back to this table again and have groups saying, "They gave us 48 hours' notice. They did not give us adequate information. It was a two-hour session and that was it. The government felt that was their obligation.''
What is the clear-cut strategy with respect to engaging the indigenous groups across this nation? That's critical for me and I think for members of the committee so we're not sitting here again, having them come as witnesses and say, "Senators, we were not consulted. The government dropped the ball on this again.''
What is the clear-cut strategy with respect to phase two? Obviously you have to start thinking about it, as to exactly how you are going to execute this so that it's fair and balanced for all indigenous groups and for their participation. Explain that to me, please, if you do have that information or if you have ideas you can share with us.
Ms. Montminy: Absolutely. Thank you for that.
The definition of "meaningful consultation'' is not something that is static or applies to all the different situations. I would say that in order to reach the standard of meaningful consultation, we truly believe that the only way we can get there is by co-designing the process with indigenous groups.
If I were here today to tell you the plan I will impose on everybody for the next year, I don't think I would be starting on the right foot. Our plan is to have a short period of pre-engagement to reach out to groups and ask, "How would that work for you?'' Whether you're a national or regional organization where you can reach out to individual chiefs or you want to have dialogue with your community or whether you're an organization such as the Congress of Aboriginal Peoples or NWAC and others, they will all have different needs in terms of reaching out to their membership and to their citizens. We will take that into account in terms of how we design the process, to allow them appropriate time, and we will support them with funding so they can do the work, the analysis and have the conversations internally in order to come to the table not for a two-hour session but for a period of time and for the number of sessions deemed necessary to go through these issues.
We will also identify the issues that should be discussed through stage two. We will not say this is limited to the following six subject matters. It will be determined with people. There are a number of issues, several of which have been brought in front of this committee, and some haven't.
For instance, I will give you the example of Metis people. They haven't been heard here, but they have an issue right now with the inability of the registrar to de-register them if they have been registered as Indians. Now if they want to belong to a Metis community, they cannot be both Metis and Indian. They would like to de-register, but the current Indian Act does not allow the registrar to de-register anyone. So the Metis will also want to come and tell us how important that is to them. We will need to factor that in.
This is potentially one of the subject matters that should be explored in stage two, as is unstated parenthood and a number of other issues that have been brought forward here, issues that touch not only on obviously these issues, but there is still deferential treatment in the Indian Act with respect to family status and date of birth. There are a number of issues that people would like to address, and we would be open to doing that.
The Chair: Senators, we only have a few minutes left, and the last questions should go to Senator Moore.
Senator Moore: I want to clarify something. I've heard the number 37 floated around. In one instance, you said 37percent of First Nations opted out — opted out of what? — but they're still registered band members. You also said 37 First Nations are under self-government, separate from the 37percent, I think. The 37percent opted out of what?
Ms. Montminy: They are under section10 of the Indian Act, where they have assumed control over their own membership.
Senator Moore: They decide the membership and citizenship.
Ms. Montminy: That is right. When someone is a registered Indian and they belong to a band that's under section10, it is not an automatic membership for those people. They have to be accepted by the community. If a band is not exercising control over its own membership, then they fall under section11 of the Indian Act. Indian status then brings automatic membership into that.
Senator Moore: When the band decides its membership, are those members registered somewhere as well, like in your national registry, or is it just something maintained within the band office?
Ms. Nepton: When a band assumes membership, the membership list is controlled by the band. They are not obligated to tell the department who a member is.
I will have the number or the names of those who are registered as status Indians, but they will not be considered members of the band. The band will control and know who they have accepted, because they may have criteria other than being a registered Indian under the Indian Act.
Senator Moore: Regarding the 968,000 registrants you now have, are there more than that who are deemed to be citizens of bands? If so, do you know the numbers?
Ms. Nepton: The number I have given is the number of status Indians, which are those registered under the Indian Act.
Senator Moore: So there would be others who are determined to be members of the band by the bands themselves outside of those.
Ms. Nepton: That is right. Everyone who is registered is in the registry; however, bands may choose to have members who are not registered Indians.
Senator Moore: So in order to receive the benefits, they must be registered with your office.
Ms. Nepton: That is right, yes.
Ms. Montminy: I said there were 37 self-governing First Nations, but my chart here says there are 39.
The Chair: Thank you.
We have run out of time, and I would like to thank our witnesses from Indigenous and Northern Affairs Canada for agreeing to come back before us today.
For the second panel this morning we have from the Women's Legal Education and Action Fund, Kim Stanton, Legal Director; and Krista Nerland, Associate, Olthuis Kleer Townshend LLP.
From the Canadian Bar Association, we have David Taylor, Executive Member, Aboriginal Law Section; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform.
We also have the Quebec Native Women organization here this morning. As individuals, we have Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance at Ryerson University; and Ms. Sharon McIvor, whose name we have heard lots over the last couple of weeks.
Let's begin with LEAF.
Krista Nerland, Associate, Olthuis Kleer Townshend LLP, Women's Legal Education and Action Fund: Good morning, senators, and thank you for give us the opportunity to speak with you today. I would like to start by acknowledging the Algonquin nation on whose traditional territory we're meeting.
I'm a lawyer at Olthuis Kleer Townshend LLP and one of the counsel for Women's Legal Education and Action Fund intervention in Gehl v. Attorney General of Canada, which is a case about the way the Indian Act's treatment of unstated and unknown paternity discriminates against women. With me is Dr. Kim Stanton, Legal Director at LEAF.
LEAF is a national organization dedicated to promoting substantive equality for women through legal action, research and public education. Central to LEAF's commitment to substantive equality is addressing the inequality suffered by women who experience discrimination on multiple and intersecting grounds such as on the basis of Aboriginal identity, poverty, race, sexual orientation and religion.
This brings us to our submissions on the bill. As you're probably aware, for over 145 years, the status provisions of the Indian Act have discriminated against women and people who trace their status through female ancestors. Until 1985, this discrimination was blatant on the face of the legislation.
In 1985, in response to the coming into force of section15 of the Charter and the hard work of a number of indigenous women, there was an attempt to remove this blatant discrimination from the act. In its place, however, is a regime that continues to discriminate against First Nations women and their descendants.
I think you're already aware of the basic two-tiered formula and the second-generation cut-off for Indian status under the 1985 act, so I won't spend too much time on that except to note that this basic regime has the effect of carrying forward the sex discrimination that existed on the face of the legislation prior to 1985 into the bones of section6 today. I think this committee is probably also aware of the significance of this issue for people who are excluded from status as a result of these discriminatory provisions.
Indian status offers material benefits like support for post-secondary education and health, but perhaps more important, the denial of Indian status can mean exclusion from community life, the denial of human dignity and self- worth, the loss of the band membership and the ability to live on reserve, and the increased risk of violence. These harms are profound.
With that in mind, the Women's Legal Education and Action Fund would like to make four points today about the bill. We will focus on phase one. We've heard a lot about phase two already, I think.
First, LEAF notes with concern the process by which this bill was brought forth. Last week, the Native Women's Association of Canada and others explained to the committee the serious shortcomings in the consultation around BillS-3. It's worth making the point that you can't address sex discrimination in the Indian Act without working in true partnership with indigenous women's groups.
Second, this bill does not address all the sex discrimination in the Indian Act status provisions as they stand. At best, it's a partial response. For example, I think as some witnesses have already noted, the bill seems to allow for the granting of lesser forms of status to some people born before 1951 who trace Indian status through the female lines. In addition — and this is an issue about which LEAF cares deeply — the status provisions, or at the very least the way they are being implemented right now by INAC, imposes a disproportionate burden on women who can't identify the father of their children due to rape, incest or relationships that include domestic violence. It leaves those women and their children without equal access to Indian status under the Indian Act. This is sex discrimination in our view, and it's prohibited by both section15 of the Charter and international law.
In our view, BillS-3 is an unfortunate replica of the narrow and piecemeal approach that Parliament took six years ago after the British Columbia Court of Appeal's decision in McIvor. If this bill passes as it is without further reform, we will all be back here in one, two or five years after another person who traces their indigenous heritage through women rather than men has been forced to spend years or even decades litigating for their rights.
It's unacceptable and inconsistent with the Charter's substantive equality guarantee to force indigenous women to endure the financial and emotional hardship of years of protracted litigation to remove the remaining areas of sex discrimination in the status provision. We already know they're there.
LEAF understands the government is planning to take a two-stage approach to reform, and of course a broad nation-to-nation conversation about moving away from the Indian Act and towards First Nation citizenship, which is imagined for the second stage, is essential. But LEAF urges this committee to ensure that Parliament's legislative response to Descheneaux removes all the vestiges of sex discrimination from the status provisions now, either through amending this bill or through withdrawing BillS-3 and replacing it with a new bill that does a better job.
This is an important first step towards meeting Canada's obligations towards indigenous women under international law and under the Charter, and it would set a strong foundation for the broad nation-to-nation conversation about moving beyond the racist and colonial Indian Act that will follow.
Third, the Quebec Superior Court's deadline of February3, 2017, shouldn't be relied on as justification for a bill that leaves sex discrimination in place under the Indian Act. The Attorney General can and should seek an extension to enable Canada to work in partnership with indigenous governments and organizations, particularly with indigenous women's groups, to ensure the bill fully addresses the sex discrimination in the act.
It's our view that an extension in this case is actually quite likely to be granted, given the way that Justice Masse reflected on the problems that followed the narrow approach in McIvor.
Finally, LEAF urges the government to ensure that First Nations communities have the resources and the land they need to support new registrants. What's required shouldn't be determined unilaterally in Ottawa but in partnership with the people affected, the First Nations governments and organizations.
Thank you.
The Chair: Thank you.
We'll go to the next presentation from the Canadian Bar Association.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to appear before you on BillS-3 today. The Canadian Bar Association, CBA, is a national association of over 36,000 lawyers, law students, notaries and academics, and our mandate includes seeking improvement in the law and the administration of justice.
Our Aboriginal Law Section is a group within the CBA consisting of lawyers who specialize in Aboriginal law. With me today is David Taylor, an executive member of that section. He will address the substance of our brief and respond to your questions.
David Taylor, Executive Member, Aboriginal Law Section, Canadian Bar Association: Good morning and thank you, Madam Chair and honourable senators. It's a pleasure to contribute to the Standing Senate Committee on Aboriginal Peoples' deliberations with regard to BillS-3.
I begin by recalling the words of Madam Justice Ross in the Supreme Court of British Columbia in her 2007 reasons at trial in McIvor v. Canada (Registrar, Indian and Northern Affairs):
...it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents we will transmit our cultural identity to our children. It is, therefore, not surprising ...that one of the most frequent criticisms of the registration scheme is that it denies Indian women the ability to pass Indian status to their children.
One of our main points concerning the manner in which this bill was brought forward and will be considered by Parliament is that when BillS-3 was introduced at first reading, consultations with regard to the government's response to the Descheneaux decision were far from over. Moving forward in the legislative process while there are still consultations under way undermines the fulfilment of the federal government's duty to consult indigenous peoples regarding legislative changes that affect them as required by the honour of the Crown and the United Nations Declaration on the Rights of Indigenous Peoples. While the committee stages in the Senate and in the house are designed for the amendment of bills based on public feedback, the honour of the Crown and the United Nations declaration require more than indigenous peoples being left to watch the legislative train leave the station.
We are also concerned by clause8 of the bill, which precludes those impacted by BillS-3 from seeking compensation for their past exclusion from Indian status. Parliament and the federal Crown have been on notice since at least the Court of Appeal for British Columbia's 2009 decision in McIvor that the 1985 amendments to the Indian Act did not entirely resolve the discriminatory aspects of the Indian status system and in fact created new discriminatory elements. Canada was aware that work remained to be done following McIvor and BillC-3. Leaving clause8 in BillS-3 immunizes Canada from the consequences of its conduct and provides little incentive to ensure that the eradication of discrimination in the context of Indian status proceeds without delay. Given this, we recommend that clause8 be deleted.
As a practical matter, sufficient resources should be provided to bands that will see an influx of new members as a result of BillS-3, and sufficient resources should be provided to the relevant operational sectors at Indigenous Affairs in order to ensure that the registration of individuals who have been unconstitutionally excluded for more than three decades proceeds with all due dispatch.
The subject matter of BillS-3 should be referred to a parliamentary committee within 18 months of its coming into force. We understand that the government is committed to proposing further revisions to the Indian status system as part of its two-stage response to the Descheneaux decision. This is to be commended and is in keeping with Justice Masse's calls for a broad review of this question.
However, given the long history of discrimination involved in the Indian status system, this process will benefit from timely parliamentary scrutiny, long enough before the next election to ensure that parliamentarians' expertise and the views of community members do not get lost in the legislative crunch that accompanies the end of a parliamentary session.
In closing, it is important to note that the McIvor and Descheneaux decisions deal with aspects of the Indian status system that are discriminatory, contrary to the section15 of the Charter. As such, they set the constitutional floor, the level of fairness below which the Indian status system may not fall. Certainly the legislative process, both here and in the phase to come, should set its sights higher in attempting to rectify the inequities that have long been identified in the Indian status system.
Those are our submissions. Thank you.
The Chair: Thank you. We will turn to the individual witnesses, starting with Pamela Palmater.
Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University, as an individual:
[Editor's Note: The witness spoke in her native language.]
I'm from the sovereign Mi'kmaw nation on unceded Mi'kmaw territory. Thank you for inviting me today to speak to this issue. I first want to acknowledge that we're on Algonquin territory but also that we are here because of the lifelong battles that were fought by Mary Two-Axe Earley, Jeannette Corbiere Lavell, Yvonne Bédard, Sharon McIvor, and now we have yet another generation who is fighting the identical battle: Stéphane Descheneaux, Lynn Gehl, Jeremy Matson and many others, like Nathan McGillivray, who are still in the hopper. We are by far done with this issue if we don't address these amendments on gender discrimination under this bill.
I think it's also important to say that so far what we've heard is a dancing around the issue. We have been talking about inequities and discrimination, but this is gender inequality. It's not about fairness in someone else's determination. It's whether or not men and women are being treated equally. They are not being treated equally under the Indian Act, and they are not being treated equally under BillS-3, and we have countless examples of that.
My first concern is that Canada failed to meet its constitutional and legal obligations to consult on any legislation that impacts First Nations rights, and there is no piece of legislation that impacts access to rights more than registration. They did this knowingly. They did this without even trying to get an extension or talking to the litigants. That's completely unacceptable. We can't keep coming to these committees saying, "Well, we're time crunched.'' You have a legal obligation. That legal obligation applies whether you have one day to address it or you have five years to address it. The fact that they've not been dealing with this legal obligation for many decades is problematic, and we would hope this committee wouldn't allow them to do that.
Second, this bill does not address all gender discrimination. You've heard from other witnesses. The house is hearing from witnesses, but it simply does not, which is shocking because the minister, before they can issue this bill, has to certify that it is Charter-compliant. Yet people outside of the minister's office have had no problem picking out very particular examples of gender discrimination. I'm not talking about all the other issues that are for the futuristic phase two that we hope will happen someday. We're talking about gender discrimination.
Any woman who lost and regained status for any reason other than out-marriage addressed in BillC-3 became 6(2) and they're kids were denied. That does not happen with men. I do have a written submission so you'll have these references because it's very confusing. Any grandchildren who trace their descent through Indian women who married out will be denied status if born prior to 1951, as well as illegitimate female children who trace their descent from the male line prior to 1951. Those are specific examples. There are others, but the point of this isn't to get into 50 examples. The fact is, if you can find one, this bill does not remedy gender discrimination.
I'll get to the fact that, according to the numbers, it actually will only remedy about 10percent of the known gender discrimination under the Indian Act, and that, by far, is not a bill that's acceptable. If it dealt with 90percent and we only had a few tweaks to make, that's one thing, but the vast majority will be left out by this bill.
The other issue is that the hierarchy between 6(1)(a) and 6(1)(c), whatever kinds of subsets you want to add or not add, these are the real Indians and these are the not real Indians, the lesser Indians, those we can exclude through membership or that we can consider separately, and it's a problem that that hierarchy continues.
Another problem with BillS-3 is that it now has multiple subsets of section6(1)(c.1). I guarantee that no one around this table could pick up BillS-3 and run it through a fact scenario and say who would be registered and who isn't, yet we're asking this committee to approve a bill that even they don't understand. Imagine what that is like for First Nations. Imagine what that does to our identity. I can't even say what section my kids will be registered under, and I'm a lawyer.
There are lots of other issues around unstated paternity and the denial of compensation. Indigenous women and their descendants are the only group of people in Canada who have legislated denial for compensation for known and court-acknowledged Charter violations. We did that with BillC-3 and we're reintroducing it with BillS-3. Why do we continue to punish these women? We make them wait many decades to finally get a remedy with no benefits, and then you're not allowed to have any compensation. Canada is being unjustly enriched, knowingly, by continuing to delay dealing with gender inequality.
My recommendations are as follows: first, to get an extension and do this right; and, second, to throw out this bill and start a new one. If you can't, then you're going to have to do substantive amendments to BillS-3 to eliminate all remaining gender discrimination, and the kind I'm talking about is everyone born pre-1985, to a man or woman, married or not, 6(1)(a). There is no other option. Otherwise you're just tinkering.
Delete section8 in its entirety, and the denial of compensation. Phase two, at a minimum, must include fully funded legal consultations with all First Nations, indigenous women's organizations, and funding has to be increased for First Nations because their populations do increase. Whether they live on- or off-reserve, First Nations are looked to in order to provide services.
I have a quick note about numbers. The legal effect of this case is limited to Quebec. That's not to say that's a good thing, but let's just say time did lapse because we're doing it right this time. Quebec represents less than 10percent of the First Nation population in this country. If you look at their projected numbers, around 30,000 — between 28,000 and 35,000 — that is fewer than 3,000 people who would be temporarily impacted by new applications only. The vast majority of First Nations would not be impacted, and no one would lose status.
So it is not the doomsday that the federal government is presenting to you. We have both the time and the ability, with minimal impact. That's what the government is supposed to do: minimally impact rights while making a correction.
In terms of the total numbers, in McIvor it was estimated — and you can correct me — that had we corrected all gender discrimination, it would have been around 300,000 people. Do you know how we know that we didn't correct gender discrimination? Because the McIvor case only dealt with 38,000people. Do you know how we know we're not doing it again? Because this case is only going to deal with, at a maximum, 35,000 people. There are more than 100,000 people who will be excluded from this bill if we do not address gender discrimination. We are all aware of it. We have the numbers. We have the law before us. We know what we can do with this bill, and there is no reason not to remedy all the gender discrimination.
Thank you.
The Chair: Thank you.
Sharon McIvor.
Sharon McIvor, as an individual: Thank you for inviting me here today. I'm actually not sure what I want to say. When we started on this journey many years ago, we know that when Jeanette Lavell took her case, she was on one side and the federal government and the male-led Aboriginal organizations were on the other.
As we moved along, each time we got to BillC-31 we were told that they did some consultation and it was okay with whoever they consulted with that the second generation cut-off was put in. That was okay with them.
That's what I dealt with in my case. They said, "Well, we consulted, and they said it was okay.''
I started the McIvor case in July of 1989. I finally got to court in October2006 and had a hearing. The first decision was a good decision, and she put forward a remedy that would deal with the bulk of the discrimination. We thought it was because it was the Harper government, but maybe that's not the case. They decided to amend the act and do it very narrowly.
During McIvor we heard, "Well, we want to consult. We're going to consult. We're going to amend the act. We're going to get rid of the Indian act. We're going to do this and that.'' But I have a serious problem. We have gender discrimination. Our Charter and human rights legislation, as well as international human rights legislation, says that is unacceptable. I don't understand why you need to consult with someone again and have them say, "Well, it's okay if we continue to discriminate.'' We're the only group I know that has been put on hold so they can ask someone else if it's okay to continue to discriminate. It doesn't make any sense to me at all, and that's what you're doing.
I have to tell you that I have a petition before the United Nations Human Rights Committee with regard to ongoing discrimination in the Indian Act. It was to be heard in July of 2016. Canada put forward a request to postpone it until after February3, 2017, because of the decision that they had to amend the act. I opposed it. I wanted them to hear it because I didn't think Canada would do a very good job of getting rid of all the gender discrimination.
During that period of time, we also had interaction with Canada's government, and we and the UN Human Rights Committee were told that they were going to address Descheneaux but also get rid of all the known sex discrimination in the Indian Act by February3, 2017. The Human Rights Committee agreed to postpone the hearing of my petition until March of 2017.
We have a whole lot of things going on. When we were going through the exercise with Minister Bennett, she was very clear that all known discrimination in the Indian Act was going to come out by February3, 2017, and she put out a press release to that effect. She put it in her petition to the Human Rights Committee to have them postpone the hearing of my petition.
Several things are going on that, sitting here this morning, I found really distressing. Now we're back to the pre-1985 position.
We've got to engage with the Aboriginal people. We've got to ask them what they want. It's been my position all along that no one has the right to agree to discriminate against me; no one has that right. You as parliamentarians have the absolute fiduciary duty to make sure that I'm not discriminated against, my sisters are not discriminated against, and our children and grandchildren are not discriminated against. I don't think you can go to anyone and ask them if it's okay.
And that's what has happened. It happened in 1985. We had 20,000 documents the government said was proof that they consulted, and they said a second generation cut-off for the women was okay.
Also, as Pam said, the September4, 1951 date affects a lot of people. I got a letter from a person born on September2, 1951, and I had to tell her that, according this legislation, she's not entitled to status.
David Crombie, when he changed the act in 1985, said, "All the discrimination gone.'' His bureaucrats told him it would cost too much; it was too costly. So he backed off, and he did the second generation cut-off, saying that they will have to litigate it to get to the next step.
From my perspective, unless you change this bill and take out all the known discrimination in the Indian Act — well, I don't know if I will be back, because I have been doing this for a very long time. But it's your duty to do that.
I heard this consultation. The other thing that is really distressing is that we're talking about consultation around self-government and self-determination. We have many women and their descendants who are not part of the group. Until they get back into the group and all the people are able to have a say in what their nation is going to look like, it's totally discriminatory.
I'm urging you now. I think I begged you last time. I don't know if any of you were here when I was begging last time. Please take the discrimination out. Take it out. There's nothing in it for you to keep it there.
I don't know who is giving you legal advice. I'm really distressed that these guys here are saying, "Well, consult. Do this; do that.'' There is no consultation around discrimination. You can consult about all sorts of other things, but let us get back to our communities and let us be part of that consultation process, not on the outside but from the inside. You can do that. You have the absolute power to do that.
Thank you.
The Chair: Thank you.
We'll now move on to Quebec Native Women Inc. We have with us today Viviane Michel, President, and Cynthia Smith, Legal and Policy Analyst Coordinator.
[Translation]
[Editor's Note: Witness speaks in her native language]
Viviane Michel, President, Quebec Native Women Inc.: Good morning, everyone. I always take a moment to thank the Creator for guiding us here.
Honourable senators, Quebec Native Women wishes to recognize the Anishinaabe First Nation, which welcomes us to its vast unceded territory.
I would also like to point out another form of discrimination that is rampant in Quebec. Today, our coming together has special meaning, given the recent events in Quebec. It was on the Anishinaabe territory that indigenous women bravely denounced the abuses and the violence they suffered at the hands of the Sûreté du Québec police officers. Quebec Native Women reiterates the fact that it believes those women and that it is demanding an independent provincial judicial commission of inquiry in Quebec; it is important for us to mention it. We are actively fighting for those women.
Quebec Native Women is an organization of indigenous women who came together in 1974 to put an end to injustice so that their children can grow up among their own people, learning their language, culture and traditions with pride. Since 1974, Quebec Native Women has been fighting against the assimilation policies targeting our peoples and against the gender discrimination contained in the Indian Act and on which the legislation is based.
Even today, in 2016, our societies are being torn apart. According to the indigenous oral tradition of the day, in pre- colonial times, life between men and women was well defined. Although their roles were different, they were valued equally. There was mutual respect between genders and generations. Indigenous women enjoyed a level of respect, equality and political power that the European women during that same period could never have expected. A number of indigenous societies were matriarchal and matrilineal. As you know, this gender balance was violently destabilized by the subsequent colonial policies that Canada knowingly put in place.
Colonization had a devastating effect on our peoples, especially because of increasingly aggressive assimilation policies. Those were particularly aimed at our women and children. The Canadian government was well aware of the importance of women in our societies, particularly in terms of their role in the transfer of knowledge. The government was aware that, in order to achieve its goal and eliminate the "Indian'' question and the Department of Indian Affairs in Canada, it had to uproot our peoples and tear them from our lands and our traditions. It is written in black and white that the legislation was developed to speed up territorial dispossession and to reduce the number of indigenous people in Canada.
The Department of Indian Affairs' 1985 annual report clearly indicates its position on attacking our languages to assimilate us as a people. The way to achieve this goal was to target the pillars of our societies: our women who pass on the knowledge, and our children, the future of our societies.
The Indian Act was a tool to achieve this by defining who is Indian in Canada in a patriarchal and paternalistic way. In the 1800s, someone was Indian if their father was Indian, and any women who outmarried lost their Aboriginal identity.
The same piece of legislation made the residential school system mandatory, in order, and I quote "to kill the Indian in the child''. The legislation was built on principles that specifically targeted the annihilation of our societies, by going after our women and children and, as a result, going after the transmission of our languages, cultures and way of life, including our identity.
If Canada truly intends to reconcile with indigenous peoples, it must take responsibility by accepting the history of its impact on our current societies. Quebec Native Women is of the opinion that it is impossible to achieve reconciliation if our relations are governed by a piece of legislation that does not recognize our right to self- determination, and held us subject, based on racial and discriminatory practices.
In the early 1970s, the Indian Act was subject to legal challenges, after the long and brave fight of Mary Two-Ax, Jeannette Corbiere Lavell, Sandra Lovelace Nicholas and Sharon McIvor. Although Canada refused to recognize the gender-based discriminatory nature of the Indian Act, its position was invalidated internationally by the United Nations, which asked it to amend the act.
In 1985, BillC-31 was passed to address those discriminatory measures. However, that was not the end, but rather the beginning of new ones. That led to the creation of two categories of status. From then on, status Indians were divided into subsections 6(1) and 6(2), which is painfully similar to eugenics. The creation of those sections introduced into the Indian Act a concept of blood purity that once again divided the people and imposed a foreign system on our ways of governing.
In 2011, Sharon McIvor continued the fight against sex-based discrimination, which again stemmed from the legislation. The outcome was BillC-3, which failed to put an end to those years of discrimination.
So here we are again today, in 2016, addressing the same issues. Ladies and gentlemen, Quebec Native Women is asking you to recognize the absurdity of the current situation and the insidious nature of exercises such as the one we are engaged in right now. Quebec Native Women stresses the courage and perseverance of the women and men who have fought those legal battles. However, we recognize that each amendment is a very small band-aid on a serious, gaping wound caused by Canada's cultural genocide against indigenous peoples.
Quebec Native Women reminds Parliament of article33.1 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. The Indian status, which falls into categories and is assigned according to criteria that will remain sexist, even after the amendments proposed right now, is a flagrant violation of the right to determine who we are for ourselves.
In 2011, our association held a gathering of nations where we discussed the theme of identity with our members. Together, they identified language, culture, belonging to the land, values and traditions as the markers of our identity and Aboriginal citizenship, not the amount of blood or the card with a number registered by the Government of Canada.
In today's context, Quebec Native Women calls upon the Government of Canada to eliminate, once and for all, the discrimination faced by women, particularly those who, for a number of reasons, do not declare the paternity imposed on their children. We are also asking that the women who have faced discrimination since before 1951 can regain their status before it is too late.
Finally, we are calling upon the government to eliminate the categories of status that segregate indigenous people and give rise to a despicable and discriminatory hierarchy based on the criterion of purity of blood, which is nothing short of racist and shameful. Quebec Native Women asks the Government of Canada to leave it to the First Nations to determine who they are.
Quebec Native Women is aware of the government's intent to begin a second phase in February2017, and intends to cooperate with the government during the process. We have been gaining expertise on this issue since 1974, and we believe that we can contribute to significant progress toward reconciliation and the future of our peoples, our women, our children and the next generation. What Quebec Native Women wants is to eliminate all sex-based discrimination.
Thank you.
[English]
The Chair: We will now entertain questions from senators.
Senator Patterson: I'd like to thank the witnesses for their passionate presentations.
I have three quick questions. The first would be to LEAF and Ms. Nerland. We have to figure out what to do here in a short time frame and we need your advice. You said we should either withdraw BillS-3 to do a better job or amend it. Now that the bill is before the committee, we can either pass it, pass it with amendments or not pass it. If you're recommending we not pass the bill when you refer to withdrawing it, how do you see it being amended?
Ms. Nerland: I support Pam's point that the way to go forward with this is to put everyone under the equivalent of paragraph6(1)(a). There was an amendment to this effect in response to the bill that ultimately passed in Ms. McIvor's case. I think that's the appropriate response.
Senator Patterson: Okay. Thank you.
The second question would be to the CBA, and thank you for your presentation. Your clear recommendation is that the bill not be reported to the house until all currently scheduled consultations have ended and the minister confirms that no further amendments are required to the bill.
We've heard from the officials from the minister's office this morning that we must move forward to ensure — and I'm quoting from the assistant deputy minister's remarks — "to ensure that justice was rendered without further delays to the plaintiffs, their families and the other individuals directly affected.''
We are concerned that if we block this bill in some way, it will be seen to be depriving up to 35,000 people of their rights. I understand it's not that simple, but that could well be the way it is perceived.
You heard Dr. Palmater say that we shouldn't be bound by the court deadline, that the bill will apply to a small number of people in one province and that we should instead throw out this bill and start a new one.
Accepting your recommendation that the bill basically not be reported, which is a defeat of the bill, would you agree that this will have minimal impacts on the rights of persons compared to the merits of doing it properly?
Mr. Taylor: I should specify that the recommendation is not to withhold committee approval in the house until all consultations regarding phase two are complete; it was with regard to phase one. There is a reference in second reading debate, I think, that the conclusion date was actually this Friday coming up. We specified that's the last opportunity for the government to respond with proposed amendments. The hope is always that the government will take seriously its goal of addressing all known gender discrimination and those that have been mentioned and arisen through the consultation process, such as it is and without commenting on the validity of that process.
In response to something that Ms. McIvor said, from our perspective it goes without saying that those who have been excluded from First Nations governments over the course of decades, given past discrimination, the bill must also form part of the consultation. The goal of the consultation process is not to found a justification under section1 but to ensure that section15 is fully implemented — as I mentioned, that's a constitutional floor — and to go further if required.
With regard to the February3 date, the reality is that there is a group of plaintiffs who have secured a victory in Quebec. It is at the Quebec Superior Court, so the legal effect of that decision is limited to Quebec. If it had been a case in Federal Court, it would apply to all provinces. I agree with Dr. Palmater on that point.
The CBA doesn't have an official position on this aspect, but it is my view that the phase one and two processes — we have at least three or four categories of people identified in BillS-3 who are suffering inequality and that must be redressed. There is no reason not to address that. The problem emerges when the passage of the bill allows government to believe the situation is addressed and to leave the subject matter at that, forcing more plaintiffs to come forward with other cases, with the attendant costs and time delays to security equality. If there is a genuine commitment on the part of government and Parliament, which is part of the basis for the recommendation that the subject matter come back to a committee within a short time frame, that result of having only those three categories addressed while the others wait becomes less dire because there's actually some promise of change for those other people who are being discriminated against but who haven't won a court case.
Senator Patterson: This question is to LEAF. You intrigued me with your comment that your view is that an extension in this case is quite likely to be granted. We have heard, and I'm sure you've heard, that this was not an option that the department considered because it wouldn't have given enough time and would have been at best three months when you consider the delays in Parliament. The court requires the federal government to show best efforts. We were told that precedents are quite clear on this. Could you elaborate on why you think this route should not be overlooked?
Kim Stanton, Legal Director, Women's Legal Education and Action Fund: Sure. Thank you for the question.
First, extensions were granted when the McIvor case was the one under consideration or the one creating cause for change in the law. So there is precedent for actually getting the extensions. Also, the plaintiffs in the Descheneaux case had indicated that they were willing to accept a delay in order for the greater good to be achieved.
The point of this is really to fix the problem. We know that this bill does not fix the problem, and it's worth trying to take the time to do that, whether or not you think you might be delayed. The judge in the case in Quebec directly indicated in her decision that it would be preferable for the government not to do another piecemeal fix of this egregious, long-standing, decades-old problem. So it is really incumbent upon this government — and it's unfortunate. It turns out that a change in government doesn't seem to make a difference.
With this particular case, indigenous women are the least able to go through the courts to fix these things in this country. They are continually forced to do so, and there is absolutely no reason why this government shouldn't have taken a bit of extra time to get this right and sort it out once and for all.
Senator Tannas: I want to make sure I understand. Maybe this is obvious or maybe I've misunderstood.
If there was a bill that I can't imagine would need to be longer than a few sentences and that essentially eliminated the 1951 cut-off, making 1985 retroactively apply to everyone time immemorial, would we still have sex discrimination? Would we be okay if that was achieved? I understand there was reference to the second generation cut-off. As I understand it, that is equal opportunity discrimination on both sides, but would that accomplish what we are driving for here?
Ms. Palmater: In terms of actual registration, whether or not you are an Indian and what type of Indian you are under the Indian Act, if we did 6(1)(a) all the way pre-1985, married or not, male and female, that would take care of the vast majority of gender discrimination in registration. It wouldn't deal with the other issues around unstated paternity or the lack of compensation for Charter violations and those kinds of gender discrimination, but in terms of actual registration of Indians, I can't see any examples outside, unless you can. That would deal with it, and that's why we suggested that with the McIvor case, with BillC-31 and all the other cases.
Senator Tannas: I get the number that you referenced, Dr. Palmater, about 300,000. That would effectively bring roughly 300,000 people in, and we all understand the finance minister would have kittens if that were the case. But if we're going to be brave, new and transparent, nation to nation and get all of this sorted out in a way that is fair and true, that's really the answer, isn't it?
Ms. Palmater: Just to respond to that, I would have to ask why only in the consideration of indigenous women and our descendants that money is a factor? How many Canadians are born every year, and does the finance minister have kittens? How many immigrants do we bring into this country, and does the finance minister have kittens? It's only when we're talking about indigenous women and their descendants that money is all of the sudden a cause. But if you actually look at the chronic under funding of First Nations programs, it's an overall savings to add us to the registration list, but that issue hasn't even been addressed yet.
Senator Tannas: To me, that is the elephant that's being hidden under the blanket, when we have a bill that is absurdly entitled "elimination of sex-based inequities in registration.''
So if we pass this bill, we need to change that title. I have three that I would like you to consider and give me your recommendation on. One is "reduction of sex-based inequities in registration.'' Another one could be "continuing to play cat and mouse regarding sex-based inequities'' or "someday maybe we'll eliminate sex-based inequities.'' Which ones do you like?
Thank you.
Senator Meredith: Thank you all for your presentations today and your passion concerning this very important matter.
Ms. Palmater, I hear you loud and clear, all of you for that matter. We heard from the ADM on our first panel with respect to a more comprehensive strategy regarding phase two. I'm of the opinion that you don't share that view with respect to what's going to happen in phase two regarding the lack of consultation and so on.
Why the apprehension with respect to this particular — as we heard from the minister's office, this is what we're going to do; we're going to create a more comprehensive approach. Again, there is the point about what the minister indicated in terms of her communication of removal of all sex-based discrimination regarding the Indian Act. Obviously there is a reversal here and that has not gone forth. Can you elaborate for me on that?
Ms. Palmater: I no longer go by people's nice words. I tried, but with BillC-31, the promises of future changes ended up with no changes. That's how they held women back. "Just take this now. We'll get some of you in now and then it will be okay later.'' Well, it wasn't okay later.
Then with BillC-3, "Do this now. Don't worry about it, and we will actually engage in a process and deal with the rest of it.'' Where is this process that stems from McIvor? I still have not seen it.
So a promise of a future process is no promise at all. Just like when a government promises monies beyond their term of office is no monies at all. Why should we wait to deal with gender discrimination that Justice Canada has known about since long before BillC-31 existed? It's a legal risk, a problem that needs to be addressed, and we just keep delaying it and delaying it.
They're waiting for us to die out. I don't know if you heard the testimony, but Justice Canada's demographer has a legislated extinction date for every First Nation in this country, and if they wait long enough, then they won't have First Nations to worry about to talk about status or treaty rights or anything else.
Honest to goodness, this isn't just about benefits. It's life and death for indigenous women. It is the root cause of murdered and missing indigenous women. Why on earth wouldn't we act as soon as we possibly can to eliminate all of that and go forward as a humane society instead of sitting back and saying, "We don't want to impose our will''? Hello! It's the law! Under the Charter, males and females are equal. Under constitutional Aboriginal treaty rights, males and females are equal, as well as under UNDRIP. There is simply no option for anyone to argue anything less than full and complete equality.
Senator Meredith: Mr. Taylor, you talked about litigation with respect to section8. I'm of the opinion — and I think all the committee members here are of the same opinion — we're at a loss as to the resources being allocated to First Nations, and those resources are now being used to fight the Crown with respect to ATRs and other resources, and this with respect to retroactivity and compensation.
Do you have a number in terms of this bill going forward and the litigation that will come as a result of our not ensuring that section8 is removed?
Mr. Taylor: As the bill is currently drafted, there is an exemption clause under clause8 which essentially justifies or absolves the government of liability prior to the coming into force of the bill. I don't have a concrete number. The point is more that in not acting, in keeping women and their descendants off the rolls of individuals who are eligible for Indian status, the government has essentially given themselves a cost savings. It's an economic measure, in a sense, to control costs by having fewer members.
The result of having discriminated shouldn't be an economic gain or advantage to the government. Having clause8 removed changes the financial incentive going forward. If the government knows that Parliament won't give it a licence to discriminate by absolving it for the past consequences of its actions and only applies the consequences going forward, then there is no incentive to not wait until someone wins in court somewhere else in the other categories that my colleagues have talked about this morning.
Senator Meredith: Ms. Nerland, would you care to comment on that as well?
Ms. Nerland: I tend to agree that section8 should be removed. The cost of these benefits to people who have been excluded from them and who fought for them for 30 years is massive. For the government to say they can't seek compensation for that I think is inexcusable.
Senator Enverga: Thank you for being here. I heard all the passionate views and the fact that it all comes down to three words: consultation, consultation, consultation. I think that's where you're coming from.
What I'm concerned about is the fact that you mentioned that the government is concerned about cost. I think the question in your mind might be: Why can we not invest in social infrastructure? Let's help our indigenous women gain the necessary benefits they deserve.
If we were to talk to the Minister of Finance or the Minister of Indigenous and Northern Affairs, what would you like us to tell them?
Ms. Palmater: Well, it's pretty simple. INAC, the 5,000-person bureaucracy that sucks up over half of our funding, would try to say that it's complex and that they need all these people to solve it. At the end of the day, it's about getting out of our business and stop discriminating. If Canada made a commitment today to follow its own laws and not discriminate against indigenous women, in particular, or First Nations in general, there would be no discriminatory funding or gender discrimination. There would be none of this. We wouldn't have a housing crisis, a water crisis, a child welfare crisis, or a murdered and missing indigenous women crisis. But because the federal government gets to discriminate for free, without any punishment, without any punitive action, there is no incentive for them to address this issue.
I'm always about consulting because I consider us to be sovereign nations. With regard to gender — and that's a differentiation in my presentation — it's nuanced. When it comes to gender, there is simply no option, under traditional law or Canadian law, to discriminate. On gender you do not need to consult, but on everything else you definitely need to consult.
Senator Enverga: Ms. McIvor, you mentioned that you have spoken with our minister. What is it in the bill that you want to revise? Personally, what do you want to tell her at this time?
Ms. McIvor: Well, everything. When we did the first consultation on the McIvor case, the committee was not dominated by the Conservatives. They actually drafted a bill that excluded the non-compensation part. They presented it to Parliament, and the Conservatives asked the Speaker to rule it out of order.
It's sitting there. There is a bill sitting there, what we're talking about. It was introduced in the House of Commons by Todd Russell, I think, of the Liberals. The only thing the Speaker did not rule out of order was the elimination of the no compensation section. They actually scrapped that bill and did another one, because everything morphed back to what they had put in it, except that one change was ruled in order. So they got rid of the bill and they redid it. There was a bill there that I believe, and Madam Justice Ross suggested, would eliminate the bulk of the discrimination. So it's there. It's very short — clause6(1), (c.1), all of that. It's very short.
Senator Oh: Ms. McIvor, and the rest of the panel, I'm still shocked and disappointed by our shameful treatment of indigenous people. I want to say that I commend you for your courage and spirit to continue fighting this issue. Canada, as a G7 country, has been telling the whole world about discrimination and human rights. I'm totally shocked by what's happening to you. This is not acceptable.
Many questions have been raised by my colleagues about how to amend the bill. I don't think we can continue to make isolated amendments and not address this matter once and for all. Keep on fighting. We'll be behind you.
The Chair: I will follow up with a question related to what Senator Oh said.
Do you think the bill can be amended to make it acceptable, according to the points you have raised? I know the Canadian Bar Association suggested some amendments. Would you like to make further comments?
Ms. Palmater: Delete all of those sections, add the draft section that we had put on making everyone 6(1)(a), and we're good. Wow, then you don't need 50 different categories; men and women are just equal.
The Chair: Both Ms. McIvor and Dr. Palmater were talking about an amendment that was brought forward when BillC-3 was being considered. If I understood correctly, that amendment is probably a fairly short paragraph that would basically scrap all the elegant and complicated clauses, subclauses and sub-subclauses and replace it with a simple paragraph, and previously that was ruled out of order. Could you elaborate on why that was ruled out of order?
Ms. Palmater: From what we remember, it was about the procedure, when and how it was introduced, not on the content itself. That's why it was ruled out of order — not because of the content.
Ms. McIvor: There is a procedure that once you put the bill forward, you are restricted in the kinds of changes you can make to the bill. That's what happened.
I think clause9 was the clause that exempted the government from compensation. They just deleted that clause. But it's a fairly short amendment, and it wasn't rejected because it failed to do the job; it was rejected because the amendments went beyond what the committee was allowed to do.
Mr. Taylor: Consider the title of BillC-3, which was an act to respond to the Court of Appeal for British Columbia's decision in McIvor, as opposed to the title of this bill, which is to end known discrimination. To the extent the committee has heard evidence of further known discrimination outside the corners of what's proposed here, it seems to me that BillS-3 has a purpose broader than BillC-3.
Cynthia Smith, Legal and Policy Analyst Coordinator, Quebec Native Women Inc.:
[Editor's Note: The witness then spoke in her native language.]
Quebec Native Women Inc. believes we should go further than 6(1). The problem is that with the second generation cut-off, we're still going to be here with other additional cases where the grandmothers are going to ask for their children to be recognized.
When we went into our communities, we saw that it's not a question of blood. The blood quantum came in with 6(1) and 6(2). Before that, as long as your father was status, you were status. We didn't think about the blood quantum. But because of 6(1) and 6(2), we have this issue that we have to address.
So we don't agree that just by saying you become a 6(1), there is no more discrimination. There is still going to be discrimination if we keep the 6(1) and 6(2). That's the first thing.
Second, we have to keep in mind that gender-based discrimination started as the basis of the Indian Act. We have to go as far as when it started and even before the Indian Act when it was called l'Acte des Sauvages, 1876. The whole idea was always to tackle the women. This is where the discrimination really started. So if we really want to address gender- based discrimination, this is as far as we have to go.
Third, when we talk about non-declared paternity, this is gender-based discrimination. All the panellists here have talked about it as well. When we talked to the minister about it, they say that there is no consensus among all nations about it. Are you seriously going talk to our people who are like an extension of the government of the Indian Act and ask them if they're discriminating? We have our own people still discriminating against our own people. This is what it is. Ms. McIvor talked about it — that on one side we have the indigenous women and on other side the federal government and indigenous men, because they've had the colonization; they embody it. So this is something we have to address as well.
[Translation]
Ms. Michel: We are talking about impact. In 2010, I walked from Quebec City to Ottawa to protest against BillC-3 and the re-registration of 40,000 indigenous people in limbo. I was able to understand the leaders, the chiefs of the 54 communities in Quebec, who were very reluctant to adopt BillC-3 and to re-register the 40,000 people waiting to be recognized. The real impact was financial.
We know that the 54 communities in Quebec are in economic survival mode. However, 40,000 indigenous people had re-registered but the budget remained the same. You see why the chiefs were reluctant to recognize our own people. This has major economic impacts. You are asking us what we want? We want adequate funding for education and for everything that affects our communities, including health and housing.
For the purposes of our report, in light of the Descheneaux decision, the category in subsection6(2) should be removed. Other families may follow the same process as in Descheneaux, and go all the way to the Supreme Court in order to get their point across. Can this be avoided? I think so.
Can we be given the power to recognize our own people somewhere? Today's reality is that a public servant in an office receives an application, without even knowing the person of a given community, and accepts or rejects it. We are the only ones able to recognize ourselves. Can we have that right? I think so. We are part of this system.
The consultation for the Descheneaux decision was held in Quebec with the Assembly of First Nations of Quebec and Labrador. I heard my fellow chiefs ask for more consultations. One day of consultation is not enough. The identity issue — who will recognize whom — is very important. This process may need to take place in the second phase. It is important to take the time to do so in the communities. I am talking about Quebec and its 54communities, but Canada is also affected by these laws.
[English]
The Chair: We have time for one quick question.
Senator Beyak: I didn't really have a question until Ms. Palmater spoke about the extinction date. I've never heard that extinction date before, ever. I have followed indigenous affairs since 1965 because of someone very dear to my own heart. I read the white paper that Pierre Elliott Trudeau and his minister at the time, Jean Chrétien, wrote regarding assimilation. It was basically a one-time payout to every native man, woman and child in Canada. I think it was half a million dollars back then — probably about $10 million today — but it was rejected; after he was elected, it was rejected by all the native groups in Canada.
He just let it go, I thought. But he was a brilliant man, and I wonder if he put in policies in place to deliberately, as you put it, "extinct'' First Nations. He felt very strongly we should all be one Canada, with our own endeavours and resources, whether it's my Ukrainian heritage or whatever. Do you have any thoughts on that? I had a light bulb moment when you were speaking.
Ms. Palmater: I think you raise an important point, because regardless of what policy is in or out, or whether it's a Liberal or Conservative government, Indian Act registration provisions were intended to legislatively eliminate all Indians. That has never changed. It has never changed when there was a Liberal recognition of the inherent right to self-determination. It did not change when they gave up the white paper. It has never changed.
If you listen to some of Justice Canada's submissions in court, they vehemently defend the right to limit status, which will effectively result in our extinction. Each First Nation has a different date.
The Chair: We have gone well over time, but it was worth hearing from the Women's Legal Education and Action Fund, the Canadian Bar Association, Quebec Native Women Inc., Dr. Palmater and Ms. McIvor. Thank you to all our witnesses.
(The committee adjourned.)