Proceedings of the Standing Senate Committee on
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
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
My name is Lillian Dyck, from Saskatchewan, and I have
the honour and privilege of chairing the Standing Senate Committee on
I now invite my fellow senators to introduce
Senator Moore: Good morning; Wilfred Moore from
Senator Bovey: Patricia Bovey from Manitoba.
Senator Beyak: Senator Lynn Beyak from Ontario.
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
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
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.
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
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
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
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
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
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
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
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
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.
My colleagues and I would be pleased to address your
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
The Chair: Thank you.
We'll go to the next presentation from the Canadian
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
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
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
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
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
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
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
The Chair: Thank you.
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
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
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
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
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
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.
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
[Editor's Note: Witness speaks in her native
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
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
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
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
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
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.
The Chair: We will now entertain questions from
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
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
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
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
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
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?
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
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
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
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
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
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
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
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
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
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.
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
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
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.)