Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 21 - Evidence - May 10, 2017
OTTAWA, Wednesday, May 10, 2017
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 6:48 p.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. 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 unceded lands of the Algonquin peoples.
My name is Lillian Dyck from Saskatchewan, and I have the honour and privilege of chairing this committee.
I will now invite my fellow senators to introduce themselves, starting with the deputy chair.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Doyle: Norman Doyle, Newfoundland.
Senator Gold: Marc Gold from Quebec.
Senator Boniface: Gwen Boniface, Ontario.
Senator Pate: Kim Pate, Ontario.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas from New Brunswick.
Senator McPhedran: Marilou McPhedran, Manitoba.
The Chair: Thank you, senators.
Today we continue our consideration of Bill S-3, which we first studied last fall. After hearing witnesses, this committee wrote to the minister asking for a review and to come back to us with a new bill or amendments fixing deficiencies. We now find ourselves with six proposed possible amendments from the government, which we received on Monday.
We are expecting to receive some documents. Unfortunately, at this point in time, they are only in one language, but will be translated. Is it agreed to distribute them while waiting for the translations?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
We have two panels this evening. For our first panel we welcome David Schulze, Counsel for the plaintiffs and for the intervenors the Council of Abenaki of Odanak and the Council of Abenaki of Wôlinak: Descheneaux v. Canada (Attorney General). Secondly, we have Dr. Kim Stanton, Legal Director of the Women's Legal Education and Action Fund.
Witnesses, we will have your presentations, and then we'll have questions from the senators.
David Schulze, Counsel for the plaintiffs and for the intervenors the Council of Abenaki of Odanak and the Council of Abenaki of Wôlinak: Descheneaux v. Canada (Attorney General): Senators, especially Madam Chair, thank you very much for inviting us back. I wanted to also mention the presence with us this evening of Chief Rick O'Bomsawin of the Abenaki of Odanak.
I sent some material partly to illustrate an issue we still have with these amendments but also because I wondered to what extent the senators might want a brief refresher on how status rules work. If they feel comfortable with it, I'm happy to skip it. I end up being asked to do this all the time, so I'm also happy to review it quickly. Would honourable senators like to be reminded why 6(2) and 6(1) matter?
The Chair: A brief review would probably be a good thing. We do have a number of new senators, so that would be helpful to them.
Mr. Schulze: Some senators will be familiar with this, but for others it will be new. The materials begin with a quote from the judgment in Descheneaux where Madam Justice Masse pointed out that her judgment was only about the plaintiffs before her — Stéphane Descheneaux and Susan and Tammy Yantha — but she underlined that there was nothing stopping Parliament from going beyond the issues in her judgment and looking at other forms of discrimination forbidden by the Charter that might need to be addressed when this went back to Parliament. Of course, she didn't correct the Indian Act; she simply said what was unconstitutional in it.
Before I go into some of our specific concerns, I'll do a brief refresher on status rules, as the chair allowed me to do.
Before 1985, as I think most people understand, Indian status in Canada was purely patrilineal with only one exception, and that exception was a child born out of wedlock to an Indian woman. If you couldn't figure out who the father was and there was no protest, that child would be put on the list. Other than that one exception, everything about the Indian Act determined status based on who your father or husband was. It was, as I said, purely patrilineal, to the point that we ended up in the absurd situation that is at the origin of the Yantha case, where the son born out of wedlock to an Indian man and non-Indian woman could be registered before 1985 but the daughter could not. That was how Susan Yantha ended up with a different status than her brothers.
After 1985, the idea was to correct that and to go to a new system. You will hear a lot about 6(1) and 6(2). They are two paragraphs of section 6 of the Indian Act, but which one you are registered under has this fundamental importance. A person registered under 6(1) will always have a child entitled to status. Their child will at least be a 6(2). A person registered under 6(2) will never have a child entitled to status unless the other parent is also a registered Indian.
You see it here in this chart. A 6(1) and a 6(1) produce a 6(1). A 6(1) and a 6(2) produce a 6(1). A 6(2) and a 6(2) produce a 6(1). That's all good. A 6(1) and a non-status parent produce a 6(2), but a 6(2) and a non-status parent produce what my clients sometimes call a 6 nothing, a non-status child.
Why is that? If you go to the next page, you'll see Indian Affairs calls this the second-generation cut-off. You get two generations of marrying out, and after that, at the third generation, it just won't produce a status Indian.
In effect, as you'll see on the following chart, the "two status grandparent requirement'' roughly amounts to you need at least two grandparents with status.
I noticed the Justice Canada lawyers in court never liked when I said this, but there are cabinet documents from the 1980s that explicitly call this a 50 per cent blood quantum. But I'll come back to that because they don't really mean blood. It really means a 50 per cent quantum of people with status who may or may not have been born Indian.
You'll see here that if you have two 6(1) grandparents, that will be great; you'll end up 6(1). If you go to the next page, scenario B, if you have them lined up slightly differently, you could end up a 6(2). But if you look at scenario C, it won't always be enough because being a 6(2) always produces a little bit less as you go down the family tree than being a 6(1). So in my scenario C, this person has two out of four status grandparents, but unfortunately one of them is 6(2) and the two status grandparents weren't parenting with each other, so the person ends up with no status.
What's the practical effect of this? If I have a person come to me, which sometimes happens, who, for instance, is connected to a community but doesn't have status and wants me come up with an argument why they should have status, I want to look for people in their lineage I can argue are entitled to 6(1). It will always be better than somebody who is entitled to 6(2).
The Justice Canada lawyers, for instance, in the McIvor appeal, kept saying there aren't two kinds of status; there's just one kind of status. That's all very nice on a theoretical level, but if you would like to know that your child or grandchild will still have a right to live on your reserve, you're going to prefer being a 6(1) to a 6(2).
We can go to the next page. The other thing I alluded to that's important to understand is 6(1) is not really about genealogy or DNA. On day one, which was April 17, 1985, the day that section 15 of the Charter came into effect, 6(1) was about who was already on the list to the point that the courts have said if someone was mistakenly on the list, they get to stay on, barring fraud.
Most of all, 6(1) was a deliberate policy choice. I'm not criticizing, but senators need to be aware of it; 6(1) was a deliberate policy choice that the non-Indian women who got status by marriage were counted as 6(1)s.
Pre-1985, an Indian woman who married a non-Indian lost her status, but a non-Indian woman who married an Indian man gained status. When they decided on the 6(1) group, all those women who married in were counted at 6(1)s. As of April 17, 1985, the women who had lost their status came back as 6(1), but their husbands, of course, did not acquire any status.
What was the concrete result of that? It was something we used to call the cousins rule. It meant that if you take a brother and a sister and each of them had married non-Indians —
Senator Sinclair: Before 1985.
Mr. Schulze: Before. Thank you, Senator Sinclair.
After 1985, the sister got her status back, but looking at her kids, the registrar of Indians said to the sister: Well, they are 6(2) children because they only have one 6(1) parent. They looked at her brother and they said: Under our new rules — it used to be a different section — you have 6(1) children because you've got two Indian parents, the brother and his married-in wife.
What was the result? You had cousins with the same ancestry, the same number of parents born Indian, but different status. By the time you got to the third generation of the grandchildren, you had the women who married out and got their status back with grandchildren with no status, whereas the grandchildren of the brother who had married out, his grandchildren always had status. It was literally impossible for him to have grandchildren without status, but it was impossible for the woman to have grandchildren with status if her own children did not parent with other status Indians.
In a nutshell, that's what McIvor was about.
The B.C. Court of Appeal actually was surprisingly undisturbed by this result. They said it's discrimination, but it's justified because, after all. we couldn't have taken status away from the women who married in, and acquired rights are something we tend to respect.
They almost literally said this from the bench the last day we were arguing the case. They said, "There is one thing that bothers us.'' This is why 1951 becomes so crucial: This double mother rule bothered them. The double mother rule was an older form of second generation cut-off. I don't think I have a nice little chart for it. The double mother rule said if your mother got her status by marriage, and your grandmother was not an Indian by birth, generally if she got her status by marriage, you would lose your status at age 21.
This rule came into effect in 1951 for people born as of 1951. It, of course, only really kicked in 21 years later in 1972. But that was the rule: With two generations of mixed marriage, at the third generation for children born as of 1951, aged 21 they had to leave the reserve.
In fact, this caused a panic when it started to take effect in the 1970s, and Indian Affairs started exempting more and more bands from the rule. A fairly small number of people were thrown out of their communities, but there were some.
For our purposes, what's important to understand is that the B.C. Court of Appeal noticed that that rule was repealed in 1985. They said, look, you argued this whole case saying it was all equal going forward as of 1985. But they said it wasn't really equal because actually the men ended up better off than before. If you look at our chart of the cousins rule, really, this grandchild who is 6(2), before 1985, that grandchild would have been kicked out of the reserve at age 21. So the B.C. Court of Appeal said, "We will buy everything else you're telling us, but we don't think you've actually achieved an equal regime post 1985 if the male line actually ended up strengthened post 1985, because before 1985, after two generations of men marrying out, the children got thrown out.''
That's why all of the amendments post McIvor are based on this magic date of, I believe, September 4, 1951, the date the double mother rule came into effect. That takes us up to McIvor.
What Descheneaux was about was this: Ms. McIvor is here with us and she'll correct me if I have this wrong, but I believe her son had his children and was married after 1985.
The Chair: Mr. Schulze, could you make it a little quicker? We're 10 minutes into your talk. Although it's very good, we have to address the bill itself too.
Mr. Schulze: I'm pleased to. Basically, Indian Affairs did Bill C-3 as if no one at the second generation of marrying out ever got married before 1985. So they ignored the fact that actually it wasn't just that abolishing the double mother rule could get you status grandchildren, where before the double mother rule would have thrown them out of the reserve; it could get you status for great-grandchildren in the male line without anyone in the male line marrying a status Indian woman. That's in a nutshell what Descheneaux is about. It basically takes the McIvor analysis and moves it forward yet another generation when the children are born before 1985 or the marriage is before 1985. That's basically it. I hope that takes us up to about Bill S-3.
When I appeared here before Christmas, we pointed out a lot of other issues that are still there in the status rules. I'm not going to go back to them today because they were issues about forms of discrimination that are not necessarily based on sex. Justice Masse said nothing was stopping Parliament from going further than sex-based discrimination. The minister was extremely clear on this: She has decided to go no further.
I assume you will be informed that there were some meetings since you adjourned between Justice Canada lawyers, myself, my colleague who was on the case and lawyers from the national Aboriginal organizations. They were cordial meetings and we had good discussions, but we ended up at an impasse because we brought them issues that went beyond sex discrimination. We were told those are interesting issues, we're really going to have to think about that, but that will be phase two. So that is where we are.
Specifically, my mandate for today was relatively narrow, and I will leave it to others like Ms. Stanton to talk about broader issues. My mandate for today was to say there are even still issues of sex discrimination in the bill, and it's in the letter that was distributed to you. There are things I didn't see until we'd finished having our meetings with Justice Canada lawyers, and I am mentioning that because I think that speaks to the disadvantages inherent in this process.
Indian Affairs has a lot of staff and a lot of time to think about these things; Aboriginal communities and national Aboriginal organizations don't. Honestly, as I read today the Indigenous Bar Association's position paper, it occurred to me that I've probably missed another form of sex discrimination that is probably not addressed in this bill, but maybe I will just briefly take you through one that we have identified and that's a concern in the community.
Please go to the chart that says, "descendants of an Indian woman enfranchised by her Indian husband.''
It's always good if you think about a real individual. One of the reasons this became a concern for my firm is because the Abenaki of Odanak brought it to our attention.
There's a woman in Odanak, and it so happens that at around the age of 19 or so, she was enfranchised. She lost her status by reason of her father's decision: she, her mother and her father. She had an older sister who had already married a non-Indian and already lost status.
Come Bill C-31 in 1985, she gets her status back, her children are 6(2), and it's the same for her sister. Come the McIvor judgment and the C-3 amendments, she thinks, "My sister's kids are 6(1) now, and her grandchildren are status. I'll be able to get the same for my kids.'' She couldn't. Why? Because she's not part of Bill C-3, not part of the McIvor scenario. She didn't lose her status by marriage. She ended up marrying a non-Indian, but she did not lose her status that way. She lost her status by her father's decision.
We had discussed this in our technical meetings. It's set out in more detail in the letter, but in a nutshell, it was a phone call I received later from someone in another community in another province, and it made me realize I had been looking at the whole issue in the wrong way.
I was speaking to a woman who was in that same situation. Her grandfather had enfranchised her, her grandmother and her mother, and now here she was a 6(2) with children who had no right to status. She said something to me that should have been obvious, but sometimes it takes someone who lives the experience to see it. She said, "You know, my grandfather just decided that my grandmother would be enfranchised. My grandmother had a brother, and my great- uncle married an Indian woman like my grandmother married an Indian man, but no wife of my great-uncle could decide he would be enfranchised. Then his son and his grandson could marry non-Indian women and pass on status, and I can't.''
That's basically what this chart is that I'm showing you. It suddenly became obvious to me that just like in the analysis of the B.C. Court of Appeal, those Indian women whose Indian husbands forced enfranchisement on them and their children, they are also disadvantaged relative to a brother, and that brother is an Indian man who had all the choices in the world. He could marry an Indian woman and keep her status, marry a non-Indian woman and give her status, enfranchise himself as a single man, and he could enfranchise himself as a married man and his wife. He had all the choices, and his sister had none. She could marry a non-Indian man and lose her status on marriage. She could marry an Indian man, and he could decide one day they would all be enfranchised. Yet that brother who had all the choices before 1985 also got the added benefit of the repeal of the double-mother rule so that he would have status great-grandchildren, and this woman whose husband took away her status does not.
Our submission, in a nutshell, is that is a form of sex discrimination that remains unaddressed by Bill S-3. That's a particular case, and maybe this would be a good introduction to Ms. Stanton.
I am concerned there are other scenarios that have been missed. As I said, while I appreciate having had the meetings with the Indian Affairs' lawyers, I'm not sure we've looked at everything yet. We don't have the same time and resources that they do.
The Chair: Thank yoo, Mr. Schulze. Dr. Stanton, if you would like to give your presentation.
Kim Stanton, Legal Director, Women's Legal Education and Action Fund: Good evening. As you have heard, I'm the legal director of the Women's Legal Education and Action Fund, better known as LEAF. Thank you for inviting LEAF to speak to you today. I'm grateful to be speaking with you on the territory of the Algonquin people.
LEAF is a national organization dedicated to promoting and protecting substantive equality rights for women in Canada. We have used litigation law reform and public education to do that since 1985, and we have had a particular interest in the rights of indigenous women over the years because they seem to be particularly, perniciously and perennially discriminated against in our country.
I imagine that, given our expertise in constitutional law, you've invited us to speak to the constitutionality of these latest amendments.
We had very little time to analyze them, as you know, and it's a very complex area, as Mr. Schulze has demonstrated. But it's my view, and I'm advised by our counsel in the Gehl case, Krista Nerland, and others far more versed in the intricacies of section 6 than I, that these amendments not only fail to fulfill the title of the bill, "elimination of sex-based inequities in registration,'' but also this bill will simply require a whole new generation of Charter claimants amongst this country's most disadvantaged population to fight for their rights again in the courts.
LEAF urges the committee to propose further amendments to Bill S-3 that will actually finally eliminate sex discrimination to the status provisions of the Indian Act. I expect that Sharon McIvor will have proposed wording regarding section 6(1)(a), in particular, that we would very likely endorse.
I wish to acknowledge at the outset that the entire act is the very embodiment of a racist colonial legacy, and I regularly recommend to people that they read the report and recommendations of the Royal Commission on Aboriginal Peoples still relevant today, and now in concert with the calls to action of the Truth and Reconciliation Commission, of course, in order to see a way forward from this disgraceful legacy.
However, I recognize that the process of dismantling the Indian Act and its structures will take considerable time. Therefore, in the meantime, it's incumbent upon us to stop the clear and persistent sex discrimination that the Indian Act perpetuates.
In its current state, Bill S-3 falls short of eliminating sex discrimination. In particular, it's lacking in several ways, virtually all of which have previously been presented about before the parliamentary committees by LEAF and others.
Unlike the prior version of Bill S-3 though, the new amendments do address unknown and unstated paternity in the text of the legislation.
LEAF did intervene in Dr. Gehl's case, in which the Ontario Court of Appeal finally granted her registration after 32 years of work on her part to see her ancestry properly acknowledged.
The provision about section 5 here expressly grants the registrar a wide discretion to weigh evidence as he or she considers appropriate, to determine whether, on a balance of probabilities, the ancestor whose identity is unknown or unstated was entitled to be registered.
I understand that Aboriginal Legal Services have suggested wording to this committee, to which I refer you, in the May 8 letter that would improve the flaws of this amendment, namely that the test proposed in this section is subjective and gives the registrar far too much discretion and deference, in my view, and the combination of the wording "evidence that he or she considers relevant'' and giving it the weight that he or she considers appropriate does not leave many options for redress if an individual disagrees with a decision that has been made.
Speaking of remedies, let me turn to the amendments regarding section 8. Since the reforms leave various forms of discrimination embedded in act, it is imperative that a full range of remedies, including Charter damages, be available to those affected by ongoing discrimination.
Although section 8 now includes a reporting requirement, first the language should clearly state that the reports will be publicly available and published online on the INAC website or another site easily accessible to the public; and second, the language on consultation falls well short of the robust nation-to-nation conversation about inherent indigenous sovereignty and right to control citizenship that is required.
As you are aware, the Quebec Superior Court, in its Descheneaux judgment, highlighted the federal government's undesirable and ultimately lacking piecemeal approach to eliminating sex discrimination within the registration provisions of the Indian Act. The court noted that the government had failed to take the appropriate measures to identify and settle all other discriminatory situations that may arise from the issues identified, whether they are based on sex or another prohibited ground, in accordance with its constitutional obligation to ensure that the laws respect the rights enshrined in the Canadian Charter.
Unfortunately, this is what the government has repeated despite further guidance from the court. It's this hierarchy that continues between section 6(1)(a) and section 6(1)(c) and section 6(1) and section 2. It persists in the amended bill. The differentiation in the status of Indian women and their descendants and Indian men and their descendants, slotting them into one of these categories or another, gives rise to differential treatment of siblings, as you have already heard, born to the same parents, depending on whether they were born prior to or after 1985, which, of course, is one of the issues that Mr. Matson is bringing in his case that's now going to the Supreme Court of Canada, another person who has been required to fight through the courts and tribunals for years.
This hierarchy continues to enforce sex-based discrimination by ensuring that indigenous women and their descendants acquire a lesser form of status.
As you know, the United Nations CEDAW committee has stated that the discriminatory Indian Act provisions are among the root causes of violence against indigenous women that is endemic in our country.
To speak plainly, the nub of the problem seems to be that successive governments are unwilling to spend the money it would take to reinstate or instate the women who are suffering discrimination.
LEAF says that this bill will produce further violations of indigenous women's sex equality rights under section 15 of the Charter. Once a claimant has established a section 15 violation, the burden shifts to the government to prove that the distinction created is properly justified under section 1 of the Charter. In doing so, the objectives of the act must be kept in mind. Here, it's the elimination of sex inequities in the Indian Act, and presumably the government wouldn't rely on the unspoken objective of the act's entire two-generation cut-off scheme that was designed to reduce Canada's obligations by steadily decreasing the number of people entitled to Indian status.
The question of the cost of discrimination is undoubtedly a question for section 1. Frankly, that argument can't outweigh the urgency of curing this long-time discrimination. Successive governments have prevented the attainment of equality with Canadians for on-reserve communities in a multitude of ways for many years. There are deficits with respect to housing, child welfare, clean water availability, health services and a myriad of other social determinants of health. These are all well documented and, again, of course, part of the terrible legacy of colonialism in this country.
It's not reasonable, though, to insist that curing the ongoing sex discrimination in the registration system is the one thing that's preventing the whole system from financial collapse, nor can the problems inherent on reserve due to our colonial system be hidden by keeping the numbers of registered women down. This is surely not the answer.
Resource allocation is a question for the Treasury Board to figure out, granted — but the government really cannot, with any seriousness, justify discriminating against indigenous women to balance the books. It's fundamentally unjust.
It appears to me that the government has relied, in its defence of claims like that of Dr. Gehl, , on outdated notions of Charter equality interpretation. These defences have smacked of a formal equality approach and unnecessarily narrow interpretation of Charter equality rights that are at odds with the landmark jurisprudence directing a contextual and generous interpretation of equality rights. I submit that any reliance upon the narrow approach taken by Justice Groberman in the 2009 decision in McIvor should be done with caution, since those reasons predated the Withler and Kapp decisions that corrected the Supreme Court's diversion from the principles enunciated in the foundational section 15 case of Andrews, and we should let Justice Masse's more recent decision that benefited from all of that jurisprudence be our guide with respect to this piece of legislation.
The question for you, senators, with respect — and to paraphrase Justice Abella in the 2013 decision of Éric v. Lola, where she wrote for the majority on section 15 — is this: Does this law increase or decrease the historical gap between indigenous women and the rest of their and our communities?
For that matter, it's my view that a government that approaches its budget with a gender-based analysis must ask itself, with every decision and enactment that it contemplates: Does this decision or law increase or decrease inequality in our society?
The government has had 32 years of Charter equality rights. Perhaps it had an excuse in 1985 with Bill C-31 because section 15 was very new then. But we have had 32 years of jurisprudence on both section 15 and section 1, and there is simply no excuse for this narrow, piecemeal, formal equality approach today. Indigenous women deserve and are entitled to equality rights that are meaningful.
Thank you.
The Chair: Thank you very much. We will start questioning from the senators.
Senator Patterson: Thanks to the witnesses.
Mr. Schulze, I'd like to begin with you. I understand that you were engaged by the department; you were contacted by the department following your December appearance before our committee and have been engaged with them on some basis since that time.
I was surprised to see in your letter to Mr. Reiher, the Acting ADM of INAC, the May 9 letter, page 2, that you noted that you felt that "the INAC representatives showed no inclination to address additional concerns you identified regarding sex-based discrimination that would continue to be perpetuated under the Indian Act even with the passing of Bill S-3.''
We, as a committee, had recommended that the bill not be reported back to the Senate because of these deficiencies. We were, I think, quite explicit in our letter to the minister that we hoped the department would have asked for more time to engage in meaningful consultation with, among others, you and your clients, to ensure the bill achieves its stated goal of ending sex-based discrimination in registration.
Could you comment a little further on whether the department was open to your concerns during the consultations and your recommendations?
Mr. Schulze: Thank you, Senator Patterson. I should be clear, and I want to be fair to my colleagues from Justice Canada. What they said was, "If what you're bringing to us looks like discrimination, but on grounds other than sex, it's very interesting and we are taking note of it, but we won't be dealing with it as part of Bill S-3.'' That's what I was trying to say in my letter.
I don't want the committee to think that sex discrimination was excluded from the discussions. Our problem, honestly, was that if we couldn't dress it up as sex discrimination, we were told it would not be looked at again for the purposes of Bill S-3. That's the nub of the problem.
Honestly, as you'll see from our letter, I did finally identify things where I think I can make a very good case that it is precisely sex discrimination, but it required us to discard other issues that we thought were about discrimination. They were about discrimination based on marital status or civil status or what have you. We were told clearly that if it's not sex discrimination, it won't be part of this exercise.
I should say, by the way, that it was not consultation in the sense that in the Aboriginal law field we use that term, which is why I assume Indian Affairs calls it engagement. But this whole problem of restraining things to sex discrimination led in the end to Odanak, for instance, telling Indian Affairs that they, as a community, were not interested in having people from the department come by because the only sex discrimination at that point that we'd identified were women who had lost status and where their children were born before 1951. That was the only sex discrimination issue we'd identified left to discuss. And Indian Affairs also said that wasn't up for discussion.
So on the one hand, I want to say to you that I don't see any reason for the committee to conclude that the department ignored the letter, but the department didn't go any further, and the department wasn't going back in time further than 1951 either.
Senator Patterson: I'd like to turn to Ms. Stanton, and thank you both for your presentations.
You have strongly stated that the bill before us falls short of eliminating sex discrimination and that new amendments are required to address the issues around section 6. I'm wanting to share with you what I believe is a challenge for this committee, which is that there is this court-imposed deadline in Descheneaux, stemming from Descheneaux, of July 3, and the bill originating in the Senate still has to go to the other place to become law.
Now that we're into May, and we only have so many meetings in which we can work on this bill, our view is that if we want to get as ambitious as you suggest to fix these problems and do what the bill says it's going to do, we're not going to have the time.
I don't want to be defeatist, and maybe we should work day and night, but there is other legislative business that the Senate has to deal with, which is also urgent.
You know there's a second phase proposed in the amendments brought forward by the department to Bill S-3, an 18-month period with two reporting times to Parliament. What would your advice be? Should we accept putting some of these issues into the second phase, given the obvious time constraints that this chamber and the other house are dealing with?
I guess I'll be flippant and say, yes, the bill doesn't do what it says it's going to do, which is eliminate sex discrimination. Maybe what we need to do is change the title of the bill, recognizing that it will be a pretty big challenge to fix up what you've called the historic tradition of inequality that has gone on for decades.
Help me through this. Put yourself in our shoes here. Should we punt some of these things to the second phase so that we can at least address the rights of the women in the Descheneaux and now the Gehl case?
Ms. Stanton: I appreciate the question and I appreciate the challenges facing the committee, but the women that have been subject to this discrimination have waited a very long time. I know that it's difficult to deal with the pressing timeline that you have, but it seems to me that adding additional layers of complexity to the sections of the Indian Act that govern this area is not the way forward. Rather, take the title of the bill very seriously and propose an amendment that would actually cure this area rather than adding layers and layers where we're just going to see more litigation having to happen down the road. It seems to me that it is worth working with all urgency now to introduce amendments that would actually address this rather than perpetuating it and punting it forward.
Frankly, that second phase shouldn't be premised on acceptance of prolonged discrimination against half of the population that's being addressed. If those women can't be at the table in the second phase because they're not considered to be registered, then you're missing out on many of the people who can put their brains into making that phase work.
It seems to me that, challenging as it will be, now is the time.
Senator Lankin: Thanks to both of you for your presentations. It's really appreciated.
Mr. Schulze, I will start with you. As I parse the different parts of your presentation, you've confirmed that the ongoing discrimination that is not sex-based is not dealt with here.
Mr. Schulze: That's correct.
Senator Lankin: The ongoing sex discrimination that you had identified previously that remains is the pre-1951, and the minister has been clear with her reasons of why she sees that as a phase two. But you have now identified another issue, and this is the descendants of Indian women enfranchised by their Indian husbands. Is that correct?
Mr. Schulze: Yes. Maybe I'll just flag this. I believe you're going to be getting something from the Indigenous Bar Association.There's probably also an issue about children born out of wedlock to Indian women who were protested out, who were removed from the register. There's a real question in my mind whether that doesn't also raise a sex discrimination issue.
Senator Lankin: Two things: With respect to the issue of enfranchisement by an Indian husband, this letter just came yesterday, and my understanding is that the government is looking very seriously at what you've raised and is looking to see, first of all, if their understanding is the same as yours and then what kind of language or amendment might be able to address it.
I'm wondering if you could tell me about it again. I've worked really hard to get all the other situations, but with this one, I'm looking at the chart and I'm trying to understand it. If you can, in plain language, tell me the different situations.
Mr. Schulze: Maybe if we backed up one page. If you look at the one titled "emancipated minors,'' it might also help you. Emancipated minors is a scenario in Bill S-3 that was not part of the Descheneaux case. This kind of confirms my concerns. It was a scenario I didn't know about until Bill S-3, even though I've worked in this area for a while.
In a nutshell, under the old rules, if an Indian woman married out and already had children who were already registered, let's say by a first husband who died, divorced or he was unidentified, her minor children, her children under the age of 21, were enfranchised, lost status with her. That couldn't happen to her adult children.
So what we were being told in Bill S-3 is that there is inequality there because even though post 1985, the woman gets her status back, the child gets his status back, in the meantime, he may have married. The grandchildren by the child who lost status when his mother married the second time, they only start getting looked at post 1985. They only have one Indian parent. So they are 6(2). So the line ends there, to make things simple.
But if that child had an older brother, he could have married a non-Indian woman and given her status. He might even have had time to have a grandson who married a non-Indian woman who gave her status.
So this isn't me; this is the Government of Canada saying that's discriminatory.
If you flip the page, what I'm saying is that something similar is going on. There's not a real difference between the woman who has had status Indian children by a status Indian man before her second marriage and a status Indian woman who had children by a status Indian man and then her husband said, "One day we're all going to be enfranchised.'' That's where we're at.
Senator Lankin: That was really helpful. Thank you.
Again, my understanding is that officials are working on this right now, so we might see an amendment coming forward, because it would be their intent that this problem is fixed, just like in the cousins situation.
In terms of the IBA report and a couple of other things, you also said there may be some others that come to light. This is a very pragmatic question. If we get all the amendments in front of us and we deal with them in clause-by- clause, at a certain point, we're ready to report out, it may well be that you find another one the week after. I would expect, given the course of things, that may be the situation.
I'm not saying we're not going to get to them all, but I am keenly aware that as we layer on these things, there are unintended consequences, and this is a not a great way — with a gun to your head and a court deadline — to expand the probe beyond what was raised in the case that you took forward on behalf of Descheneaux and on behalf of the First Nation.
I'm assuming that you would expect those issues would be taken up in phase two if they come to light after Bill S-3 is through both the Senate and the House of Commons.
Mr. Schulze: I can't really answer that. I'm on my second phase two. I was promised a phase two after McIvor.
Senator Lankin: Would you want them to?
Mr. Schulze: I'd be happy to. It's just that my confidence in phase two is not everything it could be.
Senator Lankin: There's no doubt there's a ton of skepticism about that, and as a committee we've tried to look at reporting mechanisms and other sorts of things to keep it alive and before the committee. But there is skepticism, because of history. It's because people have experienced this before. But thank you.
Ms. Stanton, welcome. It's nice to see you and thank you for your presentation.
In the points that you were making about the nature of ongoing sex discrimination that exist in the Indian Act, you didn't actually specify the types of provisions. I'm wondering if you're in agreement that, to the best of our knowledge, if these other points just being brought forward are dealt with, is the outstanding issue that you're talking about the pre-1951 issue, or are there other issues? It wasn't clear from what you said.
Ms. Stanton: It probably wasn't clear because it's not clear yet to any of us. If you keep reading through how all of this stuff plays out, you're going to find more and more problems. As I was saying, the problems get layered with each extra discernment that you make.
Yes, the act still disadvantages children born prior to 1951, for example, to unmarried parents who trace their status through the female line. This issue has been raised before. It's still not addressed.
There is this distinction in the amendments between clause 1(b), replacement of (c.32)with — and there's text — it narrows the scope of the old proposed 6(1)(c.3). This pushes forward, likely, discrimination on women who are separated from their peers entitled to status under the provision only by discrimination that their father and grandmother suffered.
So the fundamental problem here is that we keep creating categories and hierarchies. We really need to look to 6(1) (a) for all of the people who are seeking registration. Why do we have different categories for people who are either identifying as indigenous or not?
It does get us to this blood quantum idea, and in the world, are there any other governments that define for a group of people whether they are the race they say they are or not? It's a horrifically racist place to be even looking at. Why would we then decide, "Okay, you can be that race but only this much, and you can be that race the whole amount''? It's offensive, and it's discriminatory. We need to address it in a much more fulsome manner. It's like whack-a-mole. "Here is a bit of discrimination popping up over here because this is how this provision plays out. Oh, there's another one over there. We'd better get that one too.'' We need to take a step back and see that this whole scheme is perpetuating discrimination, and it needs to be addressed in a much more fulsome manner.
I would anticipate that Sharon McIvor will be providing you with some language, if she hasn't already through correspondence with you, on how 6(1)(a) is the route to go.
Senator Lankin: That issue is front and centre for sex discrimination — and other kinds of discrimination, clearly. What you just said to me sounds like an exercise. There are some things that are cut and clear, but there are some things that — it's almost like your words could be put side by side with the minister's words in terms of phase two and the job to be done. It is the whole Indian Act and elements of the Indian Act far beyond the Descheneaux decision.
Ms. Stanton: But why should the women have to wait again?
Senator Lankin: I understand that argument.
Ms. Stanton: Why do the women always have to wait?
Senator Lankin: I understand the point you're making.
Ms. Stanton: I went through LEAF's submissions for Bill C-31, Bill C-3, Bill S-3 in the fall and again in preparing for this one. I could have turned in the same paragraphs over again.
If I, as a white privileged woman with three law degrees, have difficulty wading through some of this stuff, am frustrated and find this painful, I cannot imagine how it must feel for Ms. McIvor to be sitting over here doing this again. I'm sorry to be expressing this frustration.
Senator Lankin: I'm incredibly empathetic with what you're saying, but I also look to the process that has to undertake the whole issue around —I see Senator Sinclair waiting. I want to finish with one other question, and I won't protract this.
Let me just say that in the consultations, the minister has committed to work with people, to identify the women, if pre-1951 is not dealt with here — those women whose voices aren't there by virtue of the fact that they are not status — to bring those voices into the phase two consultation. I can only tell you that's what she has assured me and some others on this committee.
The Chair: The minister is actually appearing, so you don't have to appear on her behalf.
We only have 10 minutes left. We have three other questioners.
Senator Sinclair: My apologies, Senator Lankin. I was not suggesting you speed up due to time; I was looking to you to ask how many speakers we had in the remaining time, Madam Chair.
It's an amazingly significant issue, not just for the people who are involved in litigation but for all of the population of indigenous people. It's on us to make sure we proceed carefully here.
I want to welcome both of you to the committee, and thank you for your presentation. I found it very helpful.
I have a couple of questions I'll leave with you and ask you to respond to. I think it's important for all members of this committee to think about the impact of not doing anything. If we fail to pass this bill or a bill and the implication of the Descheneaux decision is allowed to remain, the ruling of the court is allowed to remain, what is your assessment, Mr. Schulze, of what's going to happen with the registration of indigenous people after the deadline?
Mr. Schulze: I feel like you're asking me to give advice for a client that's not paying me. That would be the Government of Canada's problem.
Senator Sinclair: I'm not paying you; I'm asking you to give advice.
Mr. Schulze: If I'm telling you what can be done, I'm helping the registrar who is usually opposed to me —
Senator Sinclair: What do you think the implications of the ruling will be after July 3?
Mr. Schulze: If there's simply no bill?
Senator Sinclair: Yes.
Mr. Schulze: I imagined this is where you're going. The judgment speaks for itself. Certain provisions are invalid in Quebec, in any case, because it is only an unappealed judgment at this point of the Quebec Superior Court. But I can tell you as a matter of fact, Justice Masse asked me and counsel for Canada to participate in a conference call last week, because she's making her vacation plans and wanted to tell us when she'd be away, and she was also starting to think about what if she had to hear another motion for an extension.I don't think that's anyone's preference, but I don't think it's impossible either.
Senator Sinclair: I don't know that that answers my question. I'll turn to our other witness and ask if you've given this some thought.What are the implications of the judgment standing without the bill being amended?
Ms. Stanton: To be honest, I haven't considered that today. I know that we talked about it before the break, and the concern would be that people wouldn't be getting registered who were seeking to be registered, but that is the concern with passing the bill without properly amending it as well. You have a whole group of women who will continue to suffer discrimination because they won't be entitled to register or they'll be given registration in a lesser category. Either way, you're going to be creating a pool of people who are not able to access registration.
I take your point that you want to do it properly. Of course, you do.
Senator Sinclair: Don't assume that. I might want to do nothing and see what happens. What do you think will happen?
Ms. Stanton: I see. First, I would say doing nothing would send a terrible message to the women who are waiting for the government to actually finally address this. I don't think that that is appropriate. This is an issue that has come up time and again. To not address it and to say, "Oh, it's okay, there will be phase two, we'll just leave it for that,'' I don't think that's an appropriate response.
Senator Sinclair: There's been reference in your presentation, and others, as well as in the materials that we've got, to the question of the two-generation cut-off that's referenced in 6(2). Can you share with the committee as to whether you think there needs to be a cut-off at all in the legislation?
Mr. Schulze: I don't usually have the luxury of thinking about those big questions because I'm in the thick of litigation. I'll just say that, in the end, no matter what stories we tell ourselves, limiting Indian status is about limiting federal liability. We're all better off if we tell ourselves the truth and act like grownups. People mate each other, have children, make babies, and the reason for a second generation cut-off is to see some limit on the number of people who can be Indians, and the reason for that is to limit the number of people the department pays for.
Ms. Stanton: No, I don't think there should be a second generation cut-off. The unspoken objective that I referenced in my talk, which was ultimately to have a country in which we don't have a special category of people that we pay for in a particular way, is not the kind of objective that I want to see in a charter-compliant country.
Senator Sinclair: With regard to your new example of gender discrimination, Mr. Schulze, you talk about the enfranchisement by the parent and the inclusion of the children. It would appear to me that that inclusion of the children would impact both the boys and the girls in the family, so the male and female children, and the problem that you've identified when they become parents of not being able to pass on status or not being able to do it in accordance with the same practice that their adult siblings can, is not a gender issue; it's just an issue that they're included in the father's enfranchisement. Do you see that?
Mr. Schulze: That's how I saw it at first. It was really, as I said, someone from a community who called me that made me see it differently. If we think about it as the children's enfranchisement, I'd agree with you. That's how I was looking at it. But if we think about it as their mother's enfranchisement that was imposed on her by their father, then it is a sex discrimination issue. Because, as I said, if we can think about that woman who is born Indian, married an Indian man, and then her husband decided for all of them she would cease to be an Indian, her sister-in-law could never have done that to her brother.
Senator Sinclair: You're looking at it from the perspective of the mother as well being involuntarily enfranchised because of the husband?
Mr. Schulze: Yes. I think the McIvor and Descheneaux judgments are very clear that the sex discrimination suffered by the woman who loses status, the fact that it impacts her children and grandchildren is still sex discrimination.
Senator Lovelace Nicholas: Welcome here tonight. As you know, the Indian Act was made because the intent was to make First Nations indigenous people extinct. In your mind, do you think we should even be looking at this bill? I know we have to look at it, but what is your answer?
Ms. Stanton: That's why I prefaced my remarks by saying that the whole Indian Act is, of course, a racist colonial document and ultimately we need to be implementing the recommendations of the Royal Commission on Aboriginal Peoples. But for now, since I too have scepticism about phase two, it seems we're going to have the act for quite a while, so we need to fix the bits that we can fix now.
Mr. Schulze: It's a very practical point, but really the committee should never forget it: A band council is not funded — it can accept all sorts of people as members, but it is not funded for anyone — I see you nodding, so I see you understand this as well.
Senator Lovelace Nicholas: Yes, I know.
Mr. Schulze: It is only funded for status members. It still matters in real life because you can let the non-status child into your school, but you're not funded for that child.
Senator Lovelace Nicholas: That's true, yes. Thank you.
Senator McPhedran: I'm trying to choose which of many questions to ask. I would like to focus on the Constitution for a moment and to ask, before we lose our time with you, for your reflections on 35(4).
The whole notion of phase two — I'll speak frankly — troubles me very deeply because I'm having a really hard time understanding what it's about, other than consulting on continuing to discriminate against women.
I raised article 44 of the United Nations Declaration on the Rights of Indigenous Peoples and also 35(4) of the Constitution Act with the National Chief, Perry Bellegarde, who was here on Tuesday, and asked him whether he could conceive of a situation where discrimination against women would be perpetuated by the decision of the governors of a particular constituency. I don't think he actually answered my question, and, if he did answer my question, I think it leaned definitely toward, "It's possible.''
I realize we are almost out of time, but what is the most logical application of 35(4) — and let's throw in 44 also of the UN declaration — to the phase two scenario? You've been briefed on it through the engagement. I recognize that engagement is not consultation.
Mr. Schulze: For the benefit of the other members of the committee, section 35 of the Constitution Act says that Aboriginal and treaty rights are recognized and affirmed, and 35(4) says that those rights are guaranteed equally to men and women. Your question was about phase two.
If you are asking, which I think is underlying your question, Senator McPhedran, is there a contradiction between Aboriginal and treaty rights and gender equality, no, I don't think so.
That being said, there are two things I'd say. I'll try to say them quickly. Chief O'Bomsawin said very clearly in meetings with the former assistant deputy minister that, from his point of view, this is not about who his members are. He says, "We can determine that ourselves.'' What he said is, "This is about your rules about who has status and making your rules about who has status compliant with your Charter.''
Looked at that way, it's not really an Aboriginal and treaty rights question. It's a matter of Euro-Canadian legislation meeting Euro-Canadian constitutional norms.
If we step back a bit, the situation becomes more complicated if we apply it to all communities. If we look at, say, the numbered treaties, it's inextricably linked to treaty rights, who is on the band list. But I guess the final thing I would say is that the vision has always been of the communities that want fewer members — and those communities exist — fewer members and, therefore, fewer people with status.
There are lots of communities who see it the opposite way, like the Abenaki, who would really not like to see their numbers of status members endlessly dwindling. They have a real, concrete benefit when people living in their community get to be not just members but status members, with, for instance, the right to own land on a reserve.
Ms. Stanton: I'm not sure I can put it any better. I don't see Aboriginal treaty rights and constitutional equality rights as being in conflict. There are many indigenous women who will be arguing for fulsome application of section 35 and certainly integration of the UN Declaration on the Rights of Indigenous Peoples into our constitutional norms and reality. I don't see them in opposition, and nor should we conceive them that way, but it's a very fine point that, when we're talking about the Indian Act, we are talking about a piece of colonial legislation that is not indigenous law and that we should not be compromising equality rights in the process.
Senator McPhedran: This is a yes or no question: Would you encourage us not to accept the phase two proposal?
Mr. Schulze: My client says yes, so my answer is yes.
Ms. Stanton: Yes.
Senator McPhedran: Thank you.
The Chair: Thank you, senators. That's the conclusion of the first panel. I would like to thank our witnesses this evening: Kim Stanton, from LEAF, and David Schulze, representing the original Descheneaux case. Thank you very much for your presentations, and thank you to all the senators.
In the second panel this evening, we have with us tonight Dr. Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University; and Sharon McIvor, who is very well-known and has been referenced many times this evening. We were to have a third witness but it appears that our video conference isn't working so we will proceed with the two ladies here before us now. After your presentations, we will have questions from the senators. Please proceed.
Sharon McIvor, as an individual: Most of you have heard about the McIvor case. That was one of the cases I was involved with.
I looked at our agenda tonight. They call me "an individual, Sharon McIvor.'' I wanted to make it clear that I have been doing this work for probably close to 40 years now. When I speak and when I speak on these issues, I don't only speak for myself as an individual. I have a lot of women who depended on me at one time and their families depend on me. Their families are still suffering from the discrimination that was meted out to the women. Mary Two-Axe Earley is one. I can name you 50, but I only have 10 minutes. I speak for these women, I speak for their families and I speak for their descendants. I made promises to myself and to each other when we started this fight that we would take it to the end. For the start group, I can tell you that I'm one of the few that are left. The others have died, and their families are still being discriminated against. Jeannette Corbiere Lavell, her children and her grandchildren are still suffering from the discrimination meted upon their mother.
I just wanted to make it clear that I speak as an individual, but I don't speak for myself.
When we were going through the McIvor case, there was a point about three months before the trial was finally going to happen that Justice Canada came forward and told my son and me, "Well, your son can have 6(2) status now,'' because he was not eligible at the time. They said, "We've decided he can have 6(2) status and now the case is over. The case is moot because he has his status.'' We decided not to accept their offer. They went to court and tried to moot the case out. They asked the judge to declare it moot because my son had his status. However, because we were able to continue with the case and get a partial victory, we now have 35,000 people that are eligible. That's a fraction of the ones that are eligible and that have the right to have them to be recognized, but for our government — whichever party is in power — dragging their feet. There will be more Mary Two-Axe Earleys, and others, that will die without ever having their rights recognized. That's one thing I wanted to say.
The other important thing I wanted to say is of course we have been following the Bill S-3 amendments. As Senator Dyck said, the Senate asked for two things. One was to look at the ongoing sex discrimination and bring a bill back that was either amended or a new bill. That didn't happen. What we see come back was exactly what you sent off to be tweaked, or fixed, or whatever you wanted done. It didn't happen. Now we are stuck with a time frame. If you remember, Senator Lovelace Nicholas, you held your nose and voted to pass Bill C-3 because you were under a time crunch. I believe we have been manipulated to be in exactly the same position right now. You are getting pressure put on you to tweak the Deschaneux and the Charter compliance. The Charter compliance means that we only have to fix those little things that the court saw at this point as contrary to the Charter.
Jeannette Lavell lost her case at the Supreme Court of Canada, but in 1985 the government decided to fix the discrimination against Jeannette and those of us like Jeannette. No court told them to do that. They recognized it as ongoing discrimination and they fixed it.
Every conversation we have had around Bill C-31, Bill C-3, Bill S-3, is about us wanting to make these amendments; Descheneaux says we have to make these amendments, but we know there is more sex discrimination in there. We know, and we are going to fix it next week, next year, next decade, next 50 years — whatever the time frame is.
I am here again to ask you, again: Can you not look at the ongoing discrimination and fix it? It's not rocket science. What the drafters of these amendments have done and what the drafters of Bill C-31 have done is made it so complicated that you can't understand what each of the sections say.
We were talking with Senator Dyck earlier today. Because Pam and I have worked on this, she thought we were talking in code. I said, "Well, she's under section 6(1)(c)(1).'' We were going back and forth and she was looking at us with a blank look. She said it sounded like we were talking in code because we have worked on these and we know what they are.
What is frustrating is that we have been put into a situation where it's this or nothing. Actually, it is just nothing because it affects so few people and it causes a lot more problems than it solves. When we wanted to talk with Department of Indian Affairs about what was going on, they made it really clear to us that the agenda was we're going to do Charter compliance. We said, "Great, all the sex discrimination will come out. You are going to do charter compliance; good for you.'' They said, "No, Charter compliance is we have to do what the court told us to do. That's it.''
Then we had something from the Indigenous Bar Association. The Indigenous Bar Association saw a couple of small issues that the Descheneaux amendments are creating. Although we are not required to do so, we will put those in there as well.
They are calling us "the McIvor four.'' They said, "You McIvor four want the bill perfect, and you're not going to get that.''
So I don't know if you would call it perfect, but I think that as I'm speaking for the women and the people who are subject to the act, I guess you as parliamentarians are speaking for the government and the government agencies, and what I'm trying to do is push forward and have the rights of our women and descendants recognized. It seems that what you are doing is pushing forward and pushing the agenda that started with John A. Macdonald and Duncan Campbell Scott and doing the bare minimum that you have to and completely putting women in a position that's totally untenable.
As Kim Stanton said, the international and local bodies have said that what was done through the colonial process by discriminating against us in the Indian Act and by legislatively yanking us out of our communities away from our families, away from our support and leaving us out in many instances on our own because of marriage breakdown where you have no place to go, has caused the situation where Aboriginal women and girls are vulnerable. We are prey out there.
They say when we get murdered or go missing, we live an at-risk lifestyle. I can tell you I was born into an at-risk lifestyle because I'm an Aboriginal female, and when people look at you as an Aboriginal female, they see prey. When you walk home from the store as Aboriginal women, what we did is if a car came along, we hit the bush. There was no way we were going to be on the road when a car was coming by because we are going to get picked up and harmed.
A huge piece of that, of course, was the colonial regime coming in and dispossessing us of our communities, our culture and our language, and then when we get to a point where we are totally powerless and not functioning in our communities, come back and start putting us back into the communities. The other thing we were told by Martin Reiher was we can't go back to the communities because we are now urbanized, and they don't want us as urbanized women going into the community because the community is going to be harmed by us urban women going in. It was very clear. It's a balance between individual rights and collective rights.
I don't think I'm saying anything that you haven't heard. What you need to do and what your duty to do as senators and representatives of the Canadian government is to remove the discrimination from the Indian Act. It shouldn't have been left in in 1985. It should have been cleaned up in 2010. You guys promised in 1985 that we had some things to tweak. We knew that second-generation cut-off was discriminatory, so we'll do some consultation and fix it. Apparently they have 20,000 documents to prove that. That's what they told me in the court case, that they couldn't go to court because they had 20,000 documents to review.
In 2010, when we did Bill C-3, same thing. We'll do what the court absolutely tells us we have to do and then we will tweak it a bit. We are going to do some consultation and then we'll clean it up, and exactly the same thing happened here.
What is really clear in my mind and my understanding is that you cannot consult on whether or not you should continue to discriminate. Internationally, if they knew that Canada was saying, "We know you Indian women are discriminated against, but we're going to go and ask your communities if it's okay that we continue to do that,'' it's just nonsensical, and that's exactly what you are telling us again. We'll do phase one and tweak the Descheneaux amendments and maybe the Canadian bar or the indigenous bar told us a couple of things, and then we'll consult to see what we can do about it.
So I'm asking you nicely and I'm reminding you that you owe a fiduciary duty to everybody, including us Indian women, to make sure that we live in a discrimination-free society and that Indian Act is the thing that has really shaped our lives. So fix it. It's so easy to do. I'm not going to talk about the pre/post 1951 legislation and how that manifested itself. I'm not going to talk about the little things that are tweaking. It's discriminatory. We know the hierarchy involved with 6(1)(a), which my little brother, his wife, his kid and grandkid all fall under. We had to fight hard to get my grandkids 6(2) and raise my son from a 6(2) to a 6(1)(c)(1). That hierarchy between male and female with 6(1)(a) and 6(1)(c) is sitting there loud and clear and it's discriminatory.
That's all I have to say at the moment.
Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University, as an individual:
[Editor's Note: The witness spoke in her native language.] Pam Palmater. I'm from the sovereign Mi'kmaq nation on unceded Mi'kmaq territory in the Maritimes, and it's an honour to be on unceded Algonquin territory.
Thank you, Sharon. I always agree with everything that Sharon has to say. She has been fighting this for a long time, as did Senator Lovelace Nicholas, as did Mary Two-Axe Earley, Jeannette Corbiere Lavell, Lynn Gehl, Jeremy Matson, Stéphane Descheneaux, and there are many more in the hopper.
I've already made a submission and, unfortunately, it's the exact same submission for this second round. This is the exact same bill we are considering. They have proposed amendments for you to consider during clause by clause, but it does not change the bill at all. So you are essentially faced with the very same bill you told them to go out and fix. Get rid of gender discrimination; they have not done that. That's clear.
And here's the thing: Discrimination is really hard and it's really complex and you have to work very hard to make this happen. Equality, on the other hand, is pretty easy. If you're talking about weighing whether or not to have unintended consequences, the more complex and hard an effort you put into discriminating, the more unintended or, I would argue, intended, consequences you mean to have.
But I would much rather have unintended consequences for doing the right thing — and that's gender equality — than for trying really hard to have gender inequality. And that is not only your moral obligation as Canadians, as representing the government; it's your legal obligation. This Senate simply has no choice. The Charter says absolute equality. The Constitution says absolute equality. How we could argue in 2017 that only for indigenous women it doesn't have to be equality?
Equality is not perfection. It's not fringe. It's not radical. It's not partial nor is it incremental. You either have it or you don't. We are either equal to indigenous men, which is a pretty deadly thing to be in this country, but we are either at least equal to indigenous men or we are not, and we are not. If this bill passes, even with these little tiny amendments around the edges, we still will not be equal.
So if you say to us, "We accept Bill S-3,'' what you are saying to us is, "We accept that you are not equal and here are the consequences. Many of you will die as a result,'' because inequality in the Indian Act is a root cause of murdered and missing indigenous women and little girls.
You are also saying it is okay for us to continue to steal your children into foster care at world-record rates. It is okay that women are incarcerated at higher rates than any other country in the world. It's okay that we are the targets of serial killers.
Because that's what this means. The United Nations, in many reports, has said this is a root cause. And it essentially sums up everything that Canada is about; this entire Indian Act has targeted specifically indigenous women for the elimination of indigenous peoples.
We all know why. It's no secret. It's for our lands and resources, and if we're not here, well, who is here to talk about treaty rights?
But when you're talking about targeting, you're talking about how this country was founded on the sexual exploitation of indigenous women and little girls by Indian agents and police forces. You're talking about the theft of their children so they could die in residential schools or be raped. You're talking about the forced sterilization of indigenous women so we couldn't even have kids, never mind Indian status. You're talking about decades of inaction on murdered and missing indigenous women because we don't matter. We are less than equal to even indigenous men, who are on the very lowest rung.
You are talking about stealing our own kids and grand kids from us in our own communities by denying them status. And don't think that's not what it means. In many communities, the majority, if you don't have status, you don't have membership. If you don't have membership, good luck. Good luck accessing elders, support, family or anything else.
That's the decision you're making. You're not making a decision to, well, some day, in some phase that we promise every single time, it might get done. It won't get done because INAC is out there right now manufacturing division. They are meeting with individual First Nations, leaders and organizations to say, "Listen, we will pay you for consultations; support us on this.''
We all know that because we all talk. That's what's happening here, and we have to be very honest. None of these amendments are going to do a thing. None of them. We will still have gender inequality and it's known gender inequality.
I would like to say something specific, because the Liberal government especially knows that this is gender equality, and I'm talking about pre-1951 and every other case of sex discrimination that's been identified by me and anybody else to date.
It's known. It may not have been proven in court yet, but as of two months ago Lynn Gehl's wasn't proven in court yet, but we had long known unstated paternity was sex discrimination. Justice Canada knows it and INAC knows it; they have known it for years. It's whether or not they are going to act on it.
So we have a current minister of justice who is saying that this is Charter compliant. However, when that current Minister of Justice, Jody Wilson-Raybould, was the Regional Chief of the B.C. Assembly of First Nations, she wrote a letter to Justice and INAC saying specifically that the 1951 cut-off date was gender discrimination, and in fact it needed to be remedied.
So as a lawyer then, it was either Charter compliant or it wasn't, and it clearly wasn't. So we have a flip-flop here. When the Liberals were in the minority power and Harper was in power, Harper made all of these same arguments you're hearing from the Justice officials and INAC officials now: "Oh, we can't, we must consult.'' Consultation means don't do anything. Even our own murdered and missing indigenous women inquiry is not doing anything.
But we have a scenario here where the former Liberal government actually tried to pass an amendment to make everyone equal, men and women, 6(1)(a) all the way. That was the Liberal government, the very same people who are now saying, "Oh, no, this is Charter compliant.''
So we need to get real and talk the truth here. This isn't gender equality. Phase two doesn't cut it. Every other phase in history, every other one, has not panned out. A ministerial commitment is nothing. And if I were legal counsel acting for anyone else, I'd say that ministerial commitment is worth about as much as political promises.
It's your job, unfortunately, and you may think, as senators, it's going to be hard to amend this bill, it's going to be hard to meet this court deadline or it's going to be hard to pay for all these people. Those are first-world problems. The fourth-world problems are it's hard to die. It's hard to go murdered and missing, it's hard to be imprisoned, it's hard to have our kids taken away from us and it's hard to be excluded from our communities. It's hard to come here, year after year after year, and beg for equality, when that equality just means that we might die a little less than our indigenous brothers because they don't even have real equality.
At the end of the day, please don't let them tell you that the world is going to come to an end when the court date rolls around — July 3 — because it was Justice Canada, in fact, that went to the UN when we did and testified before the UN and said this court case has no legal force and effect outside of Quebec and that the number of people that would be impacted is extremely minor. The numbers I worked out in my submission are fewer than 1,500, and that would only be for the months required to do what is right: to have a new bill on equality or make an amendment that makes it so.
So it's not hard. You can do it. And don't let the minister talk to you about funding or programs and services or how much it's going to cost. Adding 200,000 people to the register on a one-time basis, compared to adding 750,000 new Canadians every year, what's the cost? Millions of Canadians are born every year and immigrants are welcomed to this country but you can't afford to pay for 200,000 indigenous women and kids?
Honestly, we're talking peanuts in a territory that's ours to begin with. You want to talk about reconciliation, then basic gender equality has got to be the starting point. I'm sorry that it has to be on you, but you're making this decision. It's life or death for us.
The Chair: Thank you very much. We'll now open the floor for questions.
Senator Patterson: I'm very challenged by both of your presentations, and I thank you for them.
I want to say that I represent Nunavut in the territory. It's 85 or 90 per cent Inuit, and I'm sure there are some First Nations in Nunavut, but they are few and far between, with no reserves and no Indian Act to speak of.
The Inuit don't have this problem of status and membership. All it takes — and I think it's like 6(1) — for an Inuk person to achieve status and the benefits of what are now comprehensive land claim agreements in all of the Inuit regions is one parent. And nobody looks at that one parent's history.
In fact, I have four children who are beneficiaries because their mother was an Inuk. I'm grateful that we don't have this amazing complexity.
Ms. McIvor, when you said how difficult this is for many of us to understand — and we had a witness with three law degrees who said the same thing — I thank you for that, because that's the way I feel too. It's immensely complicated.
I am sure that you might envy the Inuit because they don't have this problem, and I'm sure you've made that observation. I wish it was that simple for First Nations. I think you're clearly telling us, "Well, you can do it; it could be that simple.''
I'm sorry, I do have a question. There was mention of the UN and the UN Human Rights Committee, and we heard from you, Ms. McIvor, the last time, that you have a petition before the UN Human Rights Committee and that Canada had stated that equality rights of indigenous women are an urgent priority, and that Canada talked about the process of drafting Bill S-3, saying it would address the issues you raised in your petition.
When you testified last, you told us that the UN Human Rights Committee would postpone your hearing until March 2017. I'm wondering if you could give us the status of that situation with the UN since you last appeared before us.
Ms. McIvor: Yes, I can. Canada petitioned the court to extend it to July. They sent a request to the Human Rights Committee to postpone the consideration of my petition until November. So it hasn't been heard yet.
Senator Patterson: Ms. Palmater, you said clearly that fixing it is not rocket science and we should just do it, and that this bill doesn't change anything.
Is there an amendment that would fix it, as you've said? Has there been an amendment developed that would make everyone 6(1)(a), as I think you described it? Is there such a draft that has been prepared and agreed upon as making things way less complicated?
Ms. Palmater: Yes, there is. It was the amendment that the Liberals had introduced during Bill C-3. I believe it was Sharon or someone else that introduced it in the first round of the consideration of Bill S-3. It was that consideration be given to the 6(1)(a) all the way amendment. So it's on the record. We can resend it if you need us to, but it's the same amendment that the Liberals had introduced.
Senator Patterson: I think you're telling us that's what we should do. We should save ourselves a lot of complex wordsmithing and do that.
Ms. Palmater: Yes.
Senator Lankin: Senator Patterson asked both of my questions, but first of all, let me thank both of you. I really appreciate knowing how many times you have been at so many tables in this situation and putting forward these arguments. I appreciate so much you coming here again and helping us with this.
I think this is a variation or an extension of Senator Patterson's second question with respect to the making everyone 6(1)(a) amendment. Ms. McIvor, you said you weren't going to talk about the pre- or post-1951, and I guess that would also include all of these Descheneaux amendments and the subsequent amendments we have coming forward. The fix that you're proposing would take care of all of those situations. There wouldn't be any lingering need for those other kinds of amendments or the specific Descheneaux amendments, and it all goes away if we do this?
Ms. McIvor: When we considered it for Bill C-3, yes. I'm not promising because you know as well as I do that when laws start getting tested, you find little pieces here and there that may not be what you thought they were going to be. But, yes.
One of the things is that those that were born before April 17, 1985, those that have been reinstated and are under the 6(1)(c) and later categories, they can be born before April 17, 1985 and only have 6(2) status.
Do you know somebody like that?
Ms. Palmater: Me.
Ms. McIvor: I thought so. So had she had her ancestor, her grandmother, be a grandfather, she would be a 6(1)(a). And I'm 6(1)(c), and my brother is 6(1)(a). So anybody that was born before April 17, 1985, if they get into the 6(1)(a) category, it passes itself down. So it takes care of the bulk of the sex discrimination.
There will be a couple of things that I don't want to introduce today that need to be taken care of. They are sex discrimination but of a whole different category.
Senator Doyle: I was looking at the Descheneaux case and a quote by Justice Masse. She said:
. . . this is not the first time that Parliament has been asked to analyze the issue and that consultations on this subject are planned.
She wrote that in 2015. You're obviously not satisfied by the efforts that the government has made to make sure that the obligation to consult actually respects what the judge was looking for. What was the judge looking for, in your opinion? If the obligation to consult is there, and you're not pleased with the outcome of it, what did the judge expect the government to do?
Ms. Palmater: First of all, I think they expected actual legal consultations to take place with the actual rights holders, who are First Nations and indigenous women. It's certainly not the national Aboriginal organizations, which are just corporations. Those aren't right holders. So they didn't consult with them, and they admitted that they didn't consult. So they didn't meet that part of the test.
What they're consulting on, increasing funding, increasing housing, those are the kinds of things to consult on, not whether or not there should be gender discrimination in the Indian Act.
The other thing was I think the court was pretty clear: fix this mess. There is nothing in her judgment or anything else saying you only have to go by the facts of this case. And they simply haven't done that.
They have no problem skirting around the edges, looking for the most minute exceptions that impact small numbers of people, but when we're talking about 200,000 people, the pre-1951, they're not even interested in having that conversation.
I think Justice Masse would find that shocking.
Senator Doyle: Why wouldn't Justice Masse come out and actually say all of this, make it clear as to what the government's obligations were in that regard?
Ms. Palmater: It's not the court's place to say, "Hey, government, this is exactly how you have to do the legislation.'' They hope in good faith that the government will actually look at the case, find there's gender discrimination and say they need to deal with that.
It shouldn't be the courts legislating, but we have this situation where that's going to be exactly the case, where Justice Masse appears to be contemplating another motion for another delay because we are nowhere near what even that judgment is talking about.
Senator Doyle: We have the minister coming in to see us in the next few days, and we will have a chance to question her with respect to a lot of the issues pertaining to the bill.If you were here doing the questioning, what would you say to the minister with regard to the bill?
Ms. Palmater: Can I do that?
Senator Doyle: No.
Ms. Palmater: Darn it. It would be less of a question because I know the answers. I worked at INAC and I worked at Justice, so I know what they're doing. This is about limiting the number of Indians to save money.So it wouldn't be why are you doing this. It would be more a directive to make the legislation respect gender equality at its very basic level.
I might ask her: Let's assume this Senate says you don't get phase two, and you only get one more motion for delay. Send me the amendments on how you're going to remedy all of the gender discrimination that's been identified — all of it. Why don't we have suggested amendments before us saying here is how 6(1)(a) and the Descheneaux amendments that we're proposing would work together? How come we don't have that? We should. It should be an option, but it's not. They're giving you the exact same thing.
I would ask her, why on earth are you giving us the exact same thing we told you to go away and fix?
Senator Sinclair: Dr. Palmater, you have to learn to talk with more passion. It's getting a little boring. Thank you for your submission, both of you, incidentally. I always appreciate to listening to what you have to say.
I want to ask you a couple of questions that I put to the last witnesses, and you were here when I asked them. One is, do you think we need a cut-off at all?
Ms. McIvor: I'm not going to speak to it, but I'll shake my head.
Senator Sinclair: You're shaking your head. So that means you don't think we t need one.
Ms. Palmater: Absolutely not. It's racist to measure us by blood quantum or notional ideas of blood quantum.
Senator Sinclair: Ms. McIvor, you said you didn't want to get into it, so if you want, Pamela can respond to this question. It has to do with the 1951 cut-off.I wonder if you might explain to the members of the committee what you see the impact of the 1951 cut-off as being today in terms of the impact it has upon current people who want to register and whose female ancestor was enfranchised prior to 1951.
Ms. Palmater: In terms of the impact, I have eight sisters and three brothers. One of my sisters can't register, even though we're all registered, because she's born prior to 1951. We're the identical same ancestry, and she can't register because of that cut-off date.
There's approximately 200,000 or less. Justice has the real numbers — you should actually in fact ask them to share all of these numbers with you — that can't be registered simply because of that cut-off date, not because they don't have the ancestry and not because they don't have the exact same ancestry as other people in their comparative family tree.
Senator Sinclair: In the B.C. Court of Appeal decision in the McIvor case, there was a reference by the Court of Appeal judges that going back that far in time is not necessary. Do you have a comment to make with regard to that?
Ms. Palmater: It's not the first time our Canadian courts have been wrong or we wouldn't have had the Bill C-31 amendments, because the Supreme Court of Canada was saying the bill of rights doesn't necessarily give you gender equality and legislation, and the UN said, come on now. So we had the Bill C-31.
We're in the same scenario here where the Supreme Court of Canada wouldn't hear that case, but it's now at the United Nations that Canada keeps trying to push off.
The fact of the matter is the court did agree it was discrimination. It just said that Canada didn't have to do anything. It was up to Canada what they did. But they didn't have to act on it.
You don't have to save a dying person that's drowning either, but if your moral values say we're generally equal as men and women, and we're talking about reconciliation and getting rid of root causes of murdered and missing indigenous women and all of the horrific things that we've done to Indian women, to try to get rid of our nations, it seems to me that reconciliation would say, "You know we don't have to according to that one court, but Descheneaux is saying otherwise. We have United Nations reports saying otherwise, and we've stood before Canada and said reconciliation matters to us and there's no relationship more important to us than the one with indigenous peoples.'' Or did they mean only indigenous men?
Senator Sinclair: Maybe you can explain this, because I have a difficult time understanding why you place so much emphasis upon people registering or being entitled to register only under 6(1)(a) and forget all of the other categories. What difference do you think that will make?
Ms. Palmater: It makes a huge difference practically within the communities. It's like wearing a scarlet letter. So depending on what category you're registered under, people can identify you as not having been married when you had your kids, as an illegitimate child, as a traitor who married out and is now coming back in. All of these things, because of colonization and because of the discrimination that Canada has perpetuated, are literally scarlet letters. People are referred to as Bill C-31-ers like they're dirt. C-3 is even worse. Bill S-3 people, first of all, we don't even know what category anybody would be registered under, but we all know, well, you're worse than the two other categories of dirt.
Here's the thing. There's no need for the distinguishment. The federal programs and services and per capita payments to bands are made on the status Indian register, not whether you're 6(1)(a) or 6(2). The money flows for registered Indians. So there's no legal justification for INAC to have all of these categories of status. Status should in fact be status for programs and services, unless they have something else at play.
I would argue that anything less than the ability to administer programs and service, that's a valid legislative objective, but to divide people into categories and cause these problems, it serves no other purpose. It serves no valid legislative objective that can be justified.
Senator Lovelace Nicholas: Welcome. My concern is if this bill passes, the First Nations bands that have their own citizenship, will they have to accept these women back into their bands?
Ms. McIvor: In 1985. when the legislation separated membership from status, it gave the bands two years to get their membership codes in place. They did require that the women who married out got band membership, but everyone else that came in under the bill had to wait for two years. So if the band had their membership code in place, that's what would determine if they had band membership.
I see this to be no different. If they've got a membership code in place, then if whoever comes is registered, qualifies, they're in. If they don't qualify, they don't.
Ms. Palmater: I agree with Sharon. We're talking about pre-1985, so prior to the bands being able to enact their own membership codes, there was gender discrimination, whether pre-1985, including pre-1951 .
You should register pre-1951 people for gender inequality, but to say they don't get membership, then you're taking away their rights again. Post 1985, bands have the option to have their own codes. The majority don't. But of those that do, it should be interesting to note that there are different kinds of band membership codes, and the majority choose a one parent rule, so a plain descent rule.
If you're looking for evidence about where the bands are, I think the proof is in their codes.
Senator Lovelace Nicholas: Here is a scenario: We're talking about Bill S-3. What if a band decides today to create their own membership citizenship? Could that happen?
Ms. Palmater: Yes, as long as they follow the rules under section 10 to have a referendum and they submit it to the Parliament.
Senator Lovelace Nicholas: If this bill passes, then they don't have to accept anybody into their band; correct?
Ms. Palmater: It depends on how the legislation is written.
Senator McPhedran: I wanted to thank both of you and ask a question about the technology. Am I correct that just at the beginning of Ms. McIvor and Dr. Palmater that we lost video?
The Chair: We weren't able to establish a link. It came in and out. We weren't able to successfully link.
Senator McPhedran: We have no video record of their testimony?
The Chair: No, it's only the video conferencing.
Senator Patterson: We were going to have a witness on the video who we couldn't get. The audio evidence is being recorded in the transcript.
Senator McPhedran: That's all video recorded as usual?
The Chair: Yes.
Senator McPhedran: Great. I just didn't want to have this lost in terms of a record of your presentations.
After tonight, will we be getting more from you? Will we be getting what you would like to see as amendments?
Ms. Palmater: For my part, I can resubmit the written submission that I made during the first round of this that has all of my recommendations and all of the implications, and we also submitted the draft amendment on 6(1)(a). We can resubmit those two things, if you would like, or do you still have access to all of that?
Senator McPhedran: We have it all. I want to clarify tonight that nothing has changed from the last presentation to this presentation in terms of the changes to Bill S-3 that you are recommending?
Ms. Palmater: Yes.
Ms. McIvor: It's actually since Bill C-3. They did it with Bill C-3 as well. Some of the drafting came out of Madam Justice Ross's decision in McIvor at the Supreme Court of B.C.
Ms. Palmater: We can also enter this document too about current Minister Jody Wilson-Raybould saying the 1951 cut-off was gender discrimination and should be remedied. I think that's important.
The Chair: That will be tabled before the committee and will be copied and distributed to the members. Thank you for that.
That is the conclusion of questions from senators. On behalf of all the senators, I would thank our witnesses this evening, Pamela Palmater and Sharon McIvor. You have given very concise, clear and passionate input to the committee, and with that we will adjourn the session.
(The committee adjourned.)