THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, May 16, 2017
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), met this day at 9 a.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning.
Welcome to the Standing Senate Committee on Aboriginal Peoples.
Today, we are continuing our study on Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).
We will start with introductions. First of all, my name is Lillian Dyck. I’m from Saskatchewan and I have the honour and privilege of chairing this committee, and I will have my colleagues introduce themselves starting on my right.
Senator Doyle: Norman E. Doyle, Newfoundland and Labrador.
Senator Sinclair: Murray Sinclair, Manitoba.
The Chair: Thank you, senators. This morning we have two panels. Our first panel is composed of Lynn Gehl and Nikolaus Gehl as individuals, and we also have Mary Eberts, the co-author of Matrimonial Property on Reserve and a very well-known lawyer, and we also have, from Aboriginal Legal Services of Toronto, Emilie Lahaie, Staff Lawyer.
Witnesses, you have, hopefully, about 10 minutes each to present. We will start with Lynn Gehl to be followed by Emilie Lahaie, and to conclude, we will have Mary Eberts.
Lynn Gehl, as an individual: [The witness spoke in her native language.]
Thank you for inviting me today. I am happy to be here on Algonquin and Anishinabe territory, my home territory.
I guess it has been a 32-year journey for me to be here and the first thing I should do is explain the issue of unknown and unstated paternity in the Indian Act. Prior to 1985, the Indian Act explicitly codified a provision to protect children of unknown and unstated paternity, and through the 1985 amendments the Indian Act became suspiciously silent on the issue of unknown and unstated paternity.
That’s also when INAC developed their proof of paternity policy, which makes an assumption that an unknown and unstated paternity is a non-Indian man, so when I applied for Indian status in 1994 I didn’t know what they would do because of my paternal grandfather; I didn’t know who he was. What I found out is that they made the assumption that he was a non-Indian person and as a result it was determined that I was a non-status Indian.
So that’s the issue in a nutshell. You might have to hear that a few times to get that, which is fine. The first thing I want to talk about is the remedy that was offered in Gehl. I don’t agree that I should be a 6(2); I think I should be a 6(1)(a). The comparative group would be the great-grandmothers and the grandmothers who were never enfranchised. They, and their descendants, are 6(1)(a)s, and I think I should also be because I was born before 1985.
The first thing I want to say is that the judges gave me a remedy introducing a new sex inequality.
Another thing I want to talk about is INAC’s and the Department of Justice’s shift from law to policy. It’s become clear to me that INAC and the Department of Justice are of the position that, for the most part, they will only address known sex discrimination that the court has identified as Charter violations. This means that matters such as unknown and unstated paternity and matrilineal lineage, the 1951 cutoff, which have not been recognized as Charter violations, may not be addressed in law the way they should be.
INAC argues that these should be addressed at the policy level and I’m concerned because through Gehl v.Canada (Attorney General) we learned a lot of things about what INAC does at the level of policy. For example, it took INAC 32 years to develop their proof of paternity policy and in those 32 years they flung their arms in the air and said they weren’t capable of making a decision or of good judgment.
Another thing that we learned through Gehl is that INAC does not disclose to the public their practices, standing operating procedures, aids, directives and policies both oral and written. And we learned that INAC developed a new post-McIvor policy that instructed staff they could no longer assume non-Indian paternity but they didn’t disclose that policy to the public and within that policy, they also said they weren’t going to reopen old files.
Another thing that we learned through Gehl is that INAC refuses to disclose evidence of policies so they could be properly adjudicated through court.
In summary, I’m concerned that when the court fails to determine Charter violations and addresses matters at the policy level, that opens the door for INAC and the Department of Justice to shift and create more sex discrimination.
It’s also not lost on me that INAC and the Department of Justice crafted the silence in law on the issue of unknown and unstated paternity so they could continue with their interpretive framework of the need to get rid of all the Indians at all costs, rather than the interpretive framework of good moral judgment, as the Charter guides. That’s how they continue with their sex discrimination at the policy level.
We must not allow INAC to unilaterally develop policies without solid guiding parameters that will protect vulnerable indigenous women and girls from INAC’s known interpretive skew and poor behaviour. We need to move beyond adding carefully considered clauses and terms to the bill. We cannot allow INAC to construct the clauses needed.
We need to place parameters around the clauses and terms as a measure to make sure indigenous women and girls do not face unreasonable barriers. Otherwise, INAC and Department of Justice will develop unreasonable criteria of evidence, such as the requirement of police reports, rape kits, social workers’ and therapists’ reports, and photographs of bruising and tears in the vagina.
INAC are government bureaucrats who seek the eliminate Indians at all costs. They are not concerned with understanding that many indigenous women and girls will not report rape to the police. For valid reasons, indigenous women and girls don’t trust the police. Many do not want to disclose situations of incest, and many don’t have access to social workers and therapists. Indigenous women and girls must not be put through the eye of INAC’s needle that further harms and violates them. INAC employees are not trained social workers or therapists qualified to address these situations where sexual violence and abusive partners are involved.
I personally think all situations where an unknown and unstated paternity is involved, these files should be directed to an independent decision-making body. Otherwise, INAC with its skewed interpretive framework will continue to discriminate and impose additional harm at the policy level.
Senators, I ask you to collectively and carefully consider how we can best protect indigenous women and girls from economically driven and unqualified INAC bureaucrats who have proven they lack good moral judgment. Needed is a solution that serves the most vulnerable in our society and one that prevents INAC from creating additional indignities to indigenous women and girls who are the victims of sexual violence.
There are some disturbing statistics we should consider. Through reason, it becomes clear that indigenous women and girls, with disabilities or without, are bigger targets of sexual violence. They are more vulnerable and more likely to have a child of unknown or unstated paternity. For example, 83 per cent of women with disabilities or developmental disabilities have been victims of sexual assault, and 84 per cent of homeless indigenous girls have been sexually abused. These are statistics that we need to pay attention to. All our laws and policies and practices must care for them. This is what good governance structures do: care for the most vulnerable rather than force them to continually deal with barriers of exclusion and harm.
In conclusion, I’m asking for a 6(1)(a) remedy. I ask senators to seriously consider placing guiding parameters around INAC’s policy-making process, as a way to protect indigenous women and girls. Also, my overall thinking regarding the current version of Bill S-3 is that it does not address all the sex discrimination in the Indian Act, and it should not move forward. Senators have a role in ensuring all the sex discrimination is addressed. INAC must move beyond what has been determined to be Charter violations. The position that section 1 of the Charter needs to be tested must not be a barrier here.
Not addressing the 1951 cutoff because the court said that the issue was one of materalinial lineage versus sex discrimination was wrong. We know judges are only human and prone to mistakes. We know judges need more training and understanding of indigenous women’s issues. Said another way, I’m of the position that the hierarchy created in 1985 between Indian men and their descendants as they are registered as a 6(1)(a) and Indian women who are only registered as a 6(1)(c) must be abolished if you want to eliminate the sex discrimination and end this process of amending the Indian Act.
The Chair: Thank you, Ms. Gehl. Ms. Lahaie, please go ahead.
Emilie Lahaie, Staff Lawyer, Aboriginal Legal Services of Toronto: Thank you so much for having me today. I’m an Algonquin woman, and I’m grateful to be speaking to you today on Algonquin territory, the territory of my ancestors. I would like to take this time this morning to acknowledge the land we are gathered upon.
Aboriginal Legal Services is a multi-service legal agency that has provided services to the Aboriginal community in Ontario for over 25 years. ALS has worked diligently to protect the rights of Canadian and Aboriginal people by addressing laws, policies and practices that have an impact on our community.
For the last 22 years, ALS has represented Dr. Lynn Gehl in her legal case to obtain Indian status. She won her case when the Ontario Court of Appeal granted her 6(2) status in their April 20, 2017, decision. This case addressed the issue of unknown and unstated paternity in the Indian Act and acknowledged that this is a form of sex discrimination. I have copies of the decision, if any of you would like a copy.
Today, I would like to speak to you about two things. First, I would like to address the concerns that Aboriginal Legal Services has required to the current scope of Bill S-3 and suggest that the current amendments are simply not sufficient. This bill is an Act to amend the Indian Act through the elimination of sex-based inequities in registration. In its current form, it is ALS’s view that this bill does not live up to its name.
Second, I would like to address the current suggested amendments in respect to unknown and unstated paternity as they have arisen out of the Gehl decision. As the witnesses who spoke to you last Wednesday evening told you, the overall problem with Bill S-3 is that it perpetuates rather than solves the gender inequities in the Indian Act. It creates more layers, more categories and hierarchies. It will require a new generation of litigants like Dr. Gehl to spend decades of their lives challenging legislation that instead could be corrected by the Senate in this process.
This view is based on our experience. Throughout Dr. Gehl’s case, Canada’s lawyers argued that the issue of unknown or unstated paternity was not specifically a gender issue. We argued that it was, and the judges at the Court of Appeal agreed with us. Justice Sharpe said that unknown parentage is almost always an issue that will affect the mother, stating at paragraph 44 of the judgment:
Proof of identity of a parent is, as a matter of biology and common experience, more difficult for a mother to establish than a father. There can hardly ever be any doubt about maternity, but there may be considerable doubt about paternity.
Up until the release of this judgment, the issue of unknown and unstated paternity was classified by INAC as a phase 2 issue, despite our arguments that it was a sex-based inequity. It was only after the Gehl decision was released that there was a willingness to discuss adding an amendment to Bill S-3. If this case had not been released by the Court of Appeal last month, you would be in this committee today being told that it was not a gender issue and could only be addressed in phase 2. This should cause you to be skeptical about the issues you are now being told may not be about gender inequity being so complex they must be addressed in phase 2.
Another such issue that ties directly to that of unstated or unknown paternity is the second generation cutoff. It creates a two-tiered system of registration that will always create inequities. It is foolish to think that sex discrimination can be truly eradicated from the Indian Act without addressing this issue.
Many indigenous groups and advocates are proposing a remedy that 6(1)(a) registration be granted to all those who have lost status because of gender discrimination. We support this position, and we urge you to consider this remedy. Even the most carefully worded legislation will not completely eradicate sex discrimination in regard to unknown or unstated paternity as long as the second generation cutoff is in effect.
As long as the Indian registrar requires that a woman provide any evidence in regard to the parentage of her child, there is still an additional burden exclusively held by women.
Dr. Gehl has addressed this issue further, as the decision in her case is an example of how the solution granting her 6(2) status has created a new inequity. We have been told by INAC that many of our concerns that do not fit the current phase 1 will be addressed in phase 2. We agree with Mr. Schulze when he expressed doubt as to the meaningful outcome of phase 2.
This is not the first time a bill of this nature has addressed only the specific problems identified by court rulings and left unaddressed the other glaring problems within the Indian Act. Too often consultation becomes a substitute for never addressing a problem.
ALS hopes that a comprehensive amendment is made to Bill S-3 to address the concerns we have highlighted. However, I would also like to speak to you about the current draft amendments that address the Gehl decision as it is an area where we hope our expertise can be of assistance to the committee.
Any amendment that addresses the Gehl decision must deal with two issues. First is the evidence that the registrar will consider in these circumstances, and second, clarifying that there was no perception of paternity one way or the other. ALS has particular concerns about the current wording of the proposed amendment in clause 1, section 5. In particular, we are concerned with the phrase “after considering all the evidence that he or she considers relevant” — this refers to the registrar— “and giving it the weight that he or she considers appropriate.” Our concern is that this is an entirely subjective test. The registrar decides what evidence is relevant and how much weight to afford it with no requirement that he or she does so in a reasonable way.
We would propose the following wording:
When determining if an individual with the sole parent listed on the birth certificate has Indian status, as defined by section 6 of the Indian Act, the registrar shall accept reasonable evidence of the Indian status of the unlisted parent.
This wording requires the registrar to be reasonable. This not only provides guidance to the registrar but affords those challenging the decision a standard to measure the decision against. Without this opportunity, there’s a real risk that this process will be shrouded in secrecy and decision makers will not be held to standards of accountability.
We also propose that a second clause be added. Under this act, no presumption of non-status Indian paternity arises in the case of an unknown or unidentified father. This language addresses the court’s concern regarding the current burden of proof individuals must meet to gain status, as well as the unwritten yet practised assumption of non-indigenous paternity that currently exists within INAC’s proof of paternity policy.
This issue is particularly highlighted in the Gehl judgment at paragraph 49 where Justice Sharpe states:
. . . the 1985 amendments did not replace the former presumption of paternity with a presumption of non-paternity. Section 6(1)(f) is silent on the issue of standard and burden of proof . . . .
I urge you to drop this language, similar to what we proposed, which can also be found in the letter we sent to you dated March 1, 2017. I also have extra copies if any of you need one.
We have one final point to make about the proposed amendments. We understand that the goal of the reporting clauses set out in the new clauses 8.1 and 8.2 are to ensure that the results of the consultations are provided to both houses. We would also ask for a requirement that these reports be made publicly available. We want those reports to be made available in an easily accessible way to Canadians, such as government web pages. This bill and its outcomes are incredibly important to our community and we want to continue to be involved in this process.
Thank you for affording me the opportunity to speak to you today on behalf of my clients, my community and myself.
Mary Eberts, co-author of Matrimonial Property on Reserve, as an individual: Thank you very much for the opportunity to come and speak here. I identify myself as a settler, part of my family having come from France and Scotland starting in 1700 and the other part having come from Wales after World War II.
I am grateful to be on unceded Algonquin territory, and I am also grateful that cherished members of my family are able to live on that territory close to chutes de la Chaudière, which is a very special place to be. I start my presentation with three basic points that I would ask you to bear in mind.
First of all, the Indian Act was the primary instrument for assimilating First Nation peoples in order to eliminate them. And the primary mechanism of that assimilation was treating women adversely under the act. The government was very stingy with Indian status as part of that policy, and that stinginess continued to the position they take in Charter cases even to the present day. I would ask that this committee and this Senate not be stingy now with provisions meant to repair the ravages of assimilation. And in that regard, I would recall to your minds Article 8 of the UN Declaration on the Rights of Indigenous Peoples, which states:
Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
And Article 2 says:
States shall provide effective mechanisms for prevention of and redress for
(d) Any form of forced assimilation or integration.
When the Liberals presented their 6(1)(a) amendment to Bill C-3 in 2010, they cited Article 8 of the UN Declaration on the Rights of Indigenous Peoples and if anything, the appeal and strength of that section has only grown with time.
My second basic point is that the Aboriginal women’s circle of the Canadian Panel on Violence, which reported so long ago now, said that the best way of fighting violence against indigenous women is to restore women to their communities. Maryanne Pearce, a noted researcher on violence against indigenous women, has identified as the highest risk factor of violence the separation from family. The Indian Act has been a key instrument in the separation of women and their children from their families and from their home territories. I have handed up an article of mine called Victoria’s Secret: How to Make a Population of Prey, which explains how the Indian Act has riven indigenous families and made women extra vulnerable to violence, a process which goes on to this day.
The third basic point — and this is from someone who worked on the language of section 15 of the Charter — is that it was envisioned right from the start of the Charter that Parliament, in passing laws, would comply with the Charter. It would act proactively, and its compliance with the Charter was not going to be limited to circumstances where the court said something was contrary to the Charter, and the legislature merely fixed up the problem.
In that regard, I would recall some of the conclusions of Justice Masse in Descheneaux v. Canada (Attorney General) where she said that the judgment aims to dispose of the plaintiff’s action but:
It does not, however, exempt Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether they are based on sex or another prohibited ground in accordance with its constitutional obligation to ensure that statutes respect the rights enshrined in the Canadian Charter.
That was paragraph 235 of her reasons and at paragraph 239, she seems to be describing what this government and the previous government have preferred to do, and that is:
. . . it appears that those with legislative authority prefer to wait for the courts to rule on a case-by-case basis before acting, and for their judgments to gradually force the amendments so that statutes are finally consistent with the Constitution.
In paragraph 243, she said:
Parliament should not interpret this judgment as narrowly as it did the BCCA’s judgment in McIvor. . . . it must act differently this time. . .
So the judge herself recognized both the narrow specific question in front of her and also the great need for the legislature to use the powers of the legislature to repair gender discrimination in the Indian Act and that’s the title of the act. And like many others, I observe that the act falls short of its ambitious title. I would like to identify for you as well, from the B.C. Court of Appeal judgment, that Justice Groberman, who wrote for the court, in paragraph 96 of his reasons said:
I do not doubt that in one sense, discrimination on the basis of matrilineal or patrilineal descent is a species of sex-discrimination. If one sex is preferred over the other in terms of its ability to transmit legal status to the next generation, it is evident that equality rights are violated.
Unfortunately, Justice Groberman then, in my view, went on to make a mistake.
He said that there would be no finding of a violation of the Charter, because each person has both male and female ancestors. And in making that ruling and observation, he ignored the fact that for some people, their ancestors are privileged under the act and for others their ancestors are disadvantaged. But his basic observation at paragraph 96 shows that he turned his mind to the issue before Justice Ross and basically agreed this is a form of sex discrimination.
So I am, with many others who have appeared before you, in favour of an amendment that would add to 6(1)(a). That amendment is basically what the Liberals put before the House of Commons in 2010, and that adds to 6(1)(a) that someone is eligible for status if that person was born prior to April 17, 1985, and is a direct descendant of a person referred to in paragraph (a) of 6(1)(a) or of a person referred to in paragraph 11(1)(a) through (f) as they read immediately prior to April 17, 1985. We believe that would give Dr. Gehl her status under 6(1)(a) of the legislation.
I also believe, as one of the people who was counsel in the Descheneaux case, that the Yantha siblings’ case would be covered by this kind of amendment, because Susan and Tammy Yantha are direct descendants of a man who had status in the period before 1985.
However, it is indeed the case that even with an amendment to 6(1)(a) along the lines of the 2010 Liberal amendment, it would still be necessary for this legislature to include some of the provisions of Bill S-3 dealing with, for example, enfranchisement, which is not covered by the 6(1)(a) amendment, and situations where a child of a woman born out of marriage was either protested out or who had status denied by the registrar.
It would require some additional combing through to make sure that the 6(1)(a) amendment was fully meshed with what is before Bill S-3, but in my respectful submission, this would be a welcome step on the way to removing gender inequality.
As for stage 2, I believe that the government would still have lots to do in stage 2, and I would refer you to the decision of the Supreme Court of Canada in the Corbiere case, where the court recognized the right of off-reserve status Indians to vote in reserve elections. According to the four concurring judges, in particular, there were a lot of issues under the Indian Act that had to do with what degree of involvement off-reserve people should have in reserve matters, and the consultations in stage 2 could easily investigate that topic with some effectiveness.
I think it is also, unfortunately, an appropriate topic for stage 2 for the government to examine what funding it now provides to First Nations people and to people registered under the Indian Act and see where and to what extent — because it is often to some great extent — those resources need to be increased, not only because of the influx of people that the amendments would promote, but also because the situation on reserve and for urban indigenous communities is, at the present time, woeful.
After Bill C-31 was passed, the government set aside some funding for housing for women and their families who returned to reserve under Bill C-31, and the First Nations had to go to the government and say, “We don’t have housing enough for our existing people,” and then they got leave to apply that housing money as they wished.
There are many issues that would remain in stage 2, even with the passage of the suggested amendment for 6(1)(a). Thank you.
The Chair: We will now open the floor to questions from the senators, starting with our critic, Senator Patterson, and to be followed by Senator Lankin.
Senator Patterson: I apologize for being late this morning, and I would like to thank the witnesses.
I would like to direct my first question to Aboriginal Legal Services of Toronto. We have your letter of May 8 to the committee about this bill, and in that letter you described having been contacted by INAC to be involved in the engagement process. You say, at page 2 of your letter: “We have advised INAC that it is the view of ALS that the gender-based inequities in the Indian Act should be approached comprehensively rather than in a piecemeal way.”
Could you describe how that advice was received by INAC or Justice folks during the engagement process? What did they say to that advice?
Ms. Lahaie: Our engagement process with INAC was cordial, and we did have some talks about that. That was received and they said they would consider it, but we did not receive much in terms of a response with regard to that. It did seem to us that there was very much a piecemeal approach and that as soon as the Gehl decision came out, that was what they wanted to focus on with us in terms of what we could advise them on with this act. However, we did advise them throughout the entire process that, even though it’s very important that we focus on this new decision and add unknown and unstated paternity to this act, there are a lot of other things that need to be addressed and that we were concerned about the entire process.
I would say that they did receive it well. They were a very polite and kind group, but I haven’t seen results from that information that we gave them.
Senator Patterson: Thank you. Now, you’ve recommended some improvements to the clauses of Bill S-3 dealing with unstated paternity, but I wonder: does ALS have a suggested remedy that could be used to improve Bill S-3, as you suggested in your letter, in a comprehensive rather than a piecemeal way?
We’ve just heard from Mary Eberts a proposed amendment to 6(1)(a) that would take us quite a long way in that direction. Do you have a comment on that or a suggestion about how we could remedy the concern expressed in your letter?
Ms. Lahaie: We 100 per cent support the 6(1)(a) movement all the way, as it’s been called, and we definitely support Mary Eberts’ suggestion. I know the suggestion has been made by a lot of the witnesses that you’ve heard.
This would remedy a lot of the issues that currently exist within the bill. It wouldn’t take it all the way but we feel like it would be a much larger step. What we suggest in our letter is still a piecemeal approach. It still involves the burden falling on the woman to provide some evidence. I believe it is certainly much better than the current amendment that has been suggested to you, but really, to solve the overarching problems, what Ms. Eberts has suggested would go a lot further.
Senator Patterson: I would like to thank Ms. Eberts for her thoughtful and well-researched presentation.
One thing I’m curious about is the amendment that was presented by what I think was the third party in 2010, by a Liberal MP, to what was Bill C-3, which has been talked about several times in this committee.
Do you know who the critic was for INAC at that time, Ms. Eberts, or who presented that amendment?
Ms. Eberts: I believe the critic at the time may have been Dr. Bennett, but I’m not entirely sure about that.
Senator Lankin: Thank you for the presentations. I also apologize for coming in late. I got caught in unusual traffic this morning. I appreciate the opportunity and will review the full record. I have had a chance to read Dr. Gehl’s presentation here as well.
Ms. Eberts, good to see you again. I know that you have had conversations with Minister Bennett around the “6(1)(a) all the way” approach and the government’s duty to engage and consult around broader issues. I have to admit I have been struggling with this. There is much about the presentations that have been made that make a lot of sense to me and appeal to me. But perhaps it’s the limiting experience I had of being a minister, I feel that in the government-to-government relations world where there are such intertwining issues, there’s a need to work with communities on that.
It’s been suggested to me by some, like my friend Senator McPhedran, that’s just consulting to continue discrimination. I understand how it can be presented that way. I don’t accept that’s actually the intent or goal.
But I wanted you to help me in this situation: Every amendment that has come forward to Bill S-3 subsequent to the original package to deal with the Descheneaux and Yantha decision has created another issue. We are still, as late as yesterday, looking at a couple of more issues that have been created by another IBA amendment.
There seems to me to be a need to do a broad piece of work, much as you were indicating about one that’s much more comprehensive. I have met with NWAC and others who said there hasn’t been sufficient time. Even the IBA in their last report to us said there hasn’t been sufficient time.
Short of going back to the court again — and I’m not sure we would get another extension — I don’t know how to have that sufficient time outside of the phase 2 process that has been proposed. I suppose you could allow the Descheneaux decision to sit there. You can allow the Quebec court date to expire and have that provision struck down. But it seems to me that there are maybe 25,000 to 35,000 people, depending on who comes forward, whose rights today could be ensured and who could be engaging in young people getting their education funding, et cetera.
That’s not a reason not to fix the pre-51, but the question of how we go about that — and I find it very compelling when Minister Bennett, who we all know is equally committed to these issues as we are, says the government, as a policy position in government to government, has an obligation to work with communities to resolve these issues together about how they get resolved and how they get implemented.
Can you just address that? I know your position, but I want you to tell me why my reasoning is wrong — that such isn’t also a way forward, particularly if we write more into the legislation, compelling the government to do the consultation specifically on the pre-51.
Ms. Eberts: Thank you for a very challenging question. I’ll do my best.
The amendment that I and many others have put forward to 6(1)(a) would actually go forward with a number of the amendments that are already in Bill S-3, because the 6(1)(a) amendment won’t fix everything. As I said, there are existing provisions of Bill S-3 that deal with specific issues that are not dealt with by 6(1)(a), and they would by no means come out of the bill because 6(1)(a) goes in there.
What I’ve learned from history is that we have a historical record in this country of consultations not producing good results. After the Lavell case, there were consultations between government and what was then formally identified as the National Indian Brotherhood on reforms to the Indian Act. There were no reforms to the Indian Act that resulted from those consultations. What resulted was section 67 of the Canadian Human Rights Act, which immunized the Indian Act from human rights review for close to 30 years.
When Bill C-31 came forward, there was again a raft of consultations — informal and sort of mostly political, not in the framework of formal consultations — but unfortunately, what we see that quite a number of sex inequality provisions that have now been exposed as being contrary to the Charter were not dealt with. For me, the most egregious is the one for the Yantha family. The problem for the Yantha family — that a man could give his son but not his daughter status if the child was born out of wedlock — was absolutely and totally known in 1985. Everybody knew about it, and it was not fixed in the legislation.
So consultations by themselves can produce bad results, or they can fail to produce very simple and clear, good results.
One of the things I have tried to make clear to Ms. Joe and others in the engagement process is that there has to be a very lively engagement with the Charter of Rights and Freedoms during a consultation process. As Dr. Stanton told this committee, it might have worked and been acceptable in the early days of section 15 of the Charter to just throw something together and not even think about the section 1 case, but that’s not acceptable anymore.
Unfortunately, the position that this government and previous governments have taken in litigation on the Indian Act is very narrow. Almost anything would pass Charter scrutiny if we adopted the position that the Department of Justice has been arguing in these cases. It’s really very narrow, and I would suggest, not a good way of undergirding a consultation.
I would prefer to see an amendment now putting 6(1)(a) in a more fulsome manner, with Bill S-3 ingredients as they now stand that are not superseded by that new amendment, and then a process of consultation that would be informed by the Charter and that would include a very open discussion with people about what equality is and what justifies a breach of equality. You can’t just have a policy decision that we’re going to breach equality and that’s that, because it’s a policy decision. It has to withstand scrutiny under section 1 of the Charter. We know from the case law that money matters do not justify a violation of the Charter.
I would also suggest that the consultation be limited to a period of a year or 14 months, and that people be funded to take part in the consultation. One of the problems with the engagement process is that no one had any funding to do any research. Everybody who participated in that from the non-government side paid our own way. We had to find the time to do the research that we brought to the table, and no one paid us for it.
The other thing is that the frame for this engagement process was very narrow. They only wanted to talk about the “piece by piece by piece” approach that Justice Masse didn’t like. There was never an invitation to put broader issues on the table, because we were always told, “No, that’s stage 2.” We never got into the stage of topics that they wanted to put on stage 2. That’s one of the reasons why this process of engagement has produced no other amendments except those tiny ones: because they wouldn’t entertain anything else.
Maybe I should stop there and see if I’ve even half answered your question.
Senator Lankin: I appreciate that. Thank you.
Senator Doyle: I want to pursue a little bit with you, Dr. Gehl, the cut-off date you mentioned. Tell me a little bit more about the cut-off date. Someone mentioned to me recently that the current Minister of Justice Wilson-Raybould — she was the regional chief of the B.C. Assembly of First Nations — wrote a letter to INAC saying specifically that the 1951 cut-off date was indeed gender discrimination and needed to be remedied.
Do you agree with that statement, and have you met with Minister Wilson-Raybould to talk about that, see what could be done about it and if an amendment is in order?
Ms. Gehl: I’m the plaintiff and appellant in Gehl v. Canada and my issue was unknown and unstated paternity in the Indian Act. That’s what was heard. Regarding the 1951 cut-off, I don’t agree that matrilineal lineage means it’s not sex discrimination and I don’t believe what the judge said was correct. How can it be anything but sex discrimination?
I have not had a conversation with Minister Wilson-Raybould about this.
Senator Doyle: Maybe the other two witnesses might comment on that as well.
Ms. Eberts: The language that I put forward, here, about the addition to 6(1)(a) is actually language taken directly from the proposal put forward by the Liberals. That proposal was endorsed by the consensus agreement, collective support for amendments to Bill C-3, and that was the document that regional chief Jody Wilson-Raybould signed.
They seem to have changed their stripes a bit from their days before the house in 2010.
Senator Doyle: Would it be beneficial to probably meet with Minister Wilson-Raybould about that?
Ms. Eberts: Well, until very recently, Ms. Lahaie and I were counsel in the Gehl case, and we couldn’t just write to the minister and ask her to meet with us, because we were opposed in interest in a matter before the courts, and as soon as the decision came down, we were engaged in this process.
Rather than meeting with the Justice Minister, we have chosen to engage in this process and have some informal discussions with the Minister of Indigenous and Northern Affairs, to the extent that opportunity may become available.
Senator Enverga: Thank you for being here today. My question is for Dr. Gehl. You mentioned that in your larger position that Bill S-3, as it stands now, does not address all the sex discrimination in the Indian Act and should not be moving forward. You mentioned that during your conclusion.
Bill S-3 as it stands now has some value to a certain portion of the community. Would you be willing to, let’s say, move forward with the bill but make sure that we do this in stage 2? What do you think about that?
Ms. Gehl: I’ve been working on the issue of unknown and unstated paternity for 32 years and I really shouldn’t have to be dealing with this issue, but that’s the position I’ve been put in.
I think about that a lot. How would I feel if I was going to benefit from Bill S-3? At this point, I would be willing to stand back and say no, let’s resolve all the sex discrimination. It’s been 32 years, and all indigenous women and their descendants deserve better.
I don’t have any faith in the consultation process, none at all, and for good reason.
Senator Enverga: You mentioned a lot of things to ask you and one of them that hits me here is the question you want me to ask you with about the freedom of information response regarding the amounts of money INAC and DOJ squandered in defending their position on Joliffe v. AGC. Could you tell us about this?
Ms. Gehl: I was 23 when I started this process and I’m 55 now. At the time I really didn’t have any money, and I didn’t have a roof over my head. I was really grateful that Aboriginal Legal Services was willing to take on the case without me having any money.
The proof of paternity policy is really disturbing to me, and it’s really disturbing that Canada would spend three quarters of a million dollars defending it. That is really disturbing.
Senator Enverga: My last question is about one of the questions you wanted us to ask you, regarding the isolation and delineation of unknown paternity and matrilineal descent from sex discrimination that argues they are not analogous as per section 15 of the Charter. Can you tell me more about that, please?
Ms. Gehl: I’ve listened to a lot of the Charter discussions and I’m not a lawyer but I’m a critical theorist rooted in indigenous theory, I would say. When we were at the Superior Court level, I was quite struck that the issue of unknown and unstated paternity wasn’t understood as sex discrimination, and the judge looked at the proof of paternity policy, which harms women more than men, in an administrative way. She said it was gender-neutral. She didn’t consider substantive inequality at all, and the Charter calls for that.
The point I’m getting at is that if unknown and unstated paternity and matrilineal lineage can’t be tested through the Charter, and in a good way by trained judges, then the Senate is probably reluctant to address it in law, and that really concerns me.
Senator Enverga: Can Ms. Emilie Lahaie answer any of these questions? Can you give us more information on your end?
Ms. Lahaie: I’m sorry, could you rephrase your last question?
Senator Enverga: She mentioned things about some answers to the questions that were given to us. Can you tell us if you have any comments on that? Is it of some concern to you?
Ms. Lahaie: Yes, this is of some concern to me. I’m just trying to think, because there’s been three questions that were asked to my colleague, Dr. Gehl, and I will just gather my thoughts.
This case has been going on for much longer than I’ve been practising, and the amount of money and pushback that we’ve received over the years has been quite outrageous, especially with the proof of paternity policy.
It was only recently, in 2015, that we received the most recent documentation that INAC had of their proof of paternity policy, though that is something that they had had for many years prior. Getting that type of documentation so late, especially considering that this was not publicly available — this is an issue that affects many women.
The policies that are followed are not available, so it’s kind of fishing in the dark. We don’t know what we should be asking for. We don’t know that these policies exist, and that’s why it’s so important things like this be put into legislation because if not, many of these practices are shrouded in secrecy. And unless we know what to ask for, we don’t know how these decisions are being made, when they’re being made and what the criteria are. And that relates right back to some of the submission I made earlier today where I mentioned that you need the reasonableness in there. You need to have some type of standard by which these decisions are made and it needs to be something that individuals can see. They need to be able to understand why certain decisions were made, and that’s part of the reason that this litigation stretched out over 22 years. These decisions were being made and we just weren’t able to fully grasp why this was happening.
Senator Enverga: I’ll ask on the second round.
Senator Sinclair: I was listening very carefully to everything that’s being said here and the one voice I haven’t yet from is Nikolaus. I want to ask Nikolaus Gehl, who is paying close attention to this, could you comment this is affecting you and what are your thoughts about all of this?
Nikolaus Gehl, as an individual: I’ve been Lynn's helper assistant for 25 years now, I guess. I’ve attended all the court proceedings. Being a settler Canadian, I’m not very proud of the way my partner has been treated and that’s about all I can say.
Senator Sinclair: I wanted to ask Mary Eberts her earlier statement around the process of informing the public about the changes that this bill might create, might invoke. Do you think that there should be a formalized process for the public to be informed about the changes that this legislation, or any other provisions, might put in place?
Ms. Eberts: I think that was actually a suggestion from the ALS brief. I do think there should be such a process and that it should be very accessible.
People who live in remote reserves, who may not have access to communications technology or media, who may not have access to lawyers, need to be able to understand what’s going on, and I think that that’s particularly important in a situation like this. I’m going to ask Ms. Lahaie if she has other comments based on the ALS experience because these are their clients.
Ms. Lahaie: I think it’s very important, especially with this issue, and all issues made by the government, that there be a very transparent process as to how decisions were made, what decisions have been made, and the current status of these particular issues. We’ve really dealt with that first-hand. At Aboriginal Legal Services of Toronto, we do a lot of status protests and it is frustrating because it is a process where, even though we have been doing it for a long time, we still are not always 100 per cent sure why certain decisions are made the way that they are. And it’s very difficult to get a hold of people at INAC. It is very difficult to talk to someone at the Office of the Indian Registrar. You have to call a general line, leave your number and they will call you back in five to 10 business days.
I remember once awaiting a call from the Indian Registrar. I was on vacation in New York. I answered the phone on the steps of the Met and had to write down everything on the back of a piece of paper and just recall what my client’s issue was. If I hadn’t picked up, I would have had to call back and start that process all over again. It is completely shrouded in secrecy. It is also incredibly inaccessible to Canadians. If it is inaccessible to me, as someone who has the resources as a lawyer in downtown Toronto, I can’t imagine how inaccessible it is to other Canadians. This is something that must be addressed going forward, especially with this bill, with our community looking on and wanting to have a real voice in the process and wanting to make sure that they watch what’s happening. This needs to be accessible.
The Chair: Thank you very much. That concludes the first panel this morning.
For the second panel, we have representatives from the Native Women’s Association of Canada: Francyne Joe, President; Lynne Groulx, Executive Director; and Kim Wakeford, Policy Adviser. In addition, we have from the Indigenous Bar Association, Drew Lafond, MacPherson Leslie Tyerman, LLP. He appeared before us last time as well.
We will start with Native Women’s Association of Canada. Please proceed, Ms. Joe.
Francyne Joe, President, Native Women’s Association of Canada (NWAC): Thank you. Weytk, bonjour and good morning to Chairperson Dyck, committee members, distinguished witnesses and guests. I am the interim president of the Native Women’s Association of Canada. Alongside me are Executive Director Lynne Groulx and Policy Adviser Kim Wakeford.
I would like to acknowledge the Algonquin nation on whose traditional territory we are meeting today. I would further like to thank this committee for the opportunity to present today on our findings regarding sex-based discrimination in the Indian Act and the failure of Bill S-3 to fully address this issue.
In the spirit of respect, cooperation and partnership, Indigenous and Northern Affairs Canada had invited us to produce a document outlining the findings of national round tables with indigenous women on this topic and providing our informed perspective on Bill S-3. These round tables were hosted by our provincial and territorial member associations across Canada. NWAC was tasked with engaging our PTMAs and reflecting on feedback in a document for INAC within 30 days. We must emphasize that this does not constitute “meaningful engagement.”
The feedback we received from our PTMAs included concerns over the limitations of the time frame, which informed our first recommendation. The women being consulted also noted that they must be given access to educational materials and resources about sex-based discrimination in the Indian Act. Having access to plain-language documents and ample time to devote to digesting them will allow participants to understand the details of Bill S-3 and the full scope of issues of sex-based discrimination in this Indian Act.
These materials must be accessible to the reader and be both culturally respectful and incorporate a gendered perspective. It is for this reason that we feel that indigenous women must be leading the formation of these materials.
Despite the density and complexity of the information provided and a significant time constriction, the PTMAs were able to provide valuable insight that went beyond the study of Bill S-3 and that must inform the government’s second phase of their response to Descheneaux.
The fact that Bill S-3 only partially addresses the sex-based discrimination in the Indian Act is the most divisive element forming of NWAC’s decision to support the passing of Bill S-3. Eight of the nine PTMAs agreed with our leadership that Bill S-3 does not adequately address sex-based discrimination in the Indian Act in relationship to the cousins, siblings or omitted minor child issues. The participants understand that these issues all revolve around situations that deny females status and permit males in the same situation to attain status or discriminate against children based on the status of their mother. These issues will be explored further as we summarize our findings from the PTMAs.
When considering issues of discrimination in regard to status, please consider that in addition to the claims of tidy and band membership, participants cited the immediate advantages of having Indian status as including improved health care, improved employment opportunities and tax exemptions.
The same number of PTMAs — eight out of nine — agreed there were many other instances of sex-based discrimination in the Indian Act beyond the issues Bill S-3 attempts to address. It was also added that in order to respect people of all genders, the Indian Act must be gender-neutral.
A repeated story of lived experience among participants was that of an indigenous woman marrying a non-indigenous man and losing her status, as well that of our future children. That was often in addition to being forced to her reserve and, with it, her community. The impact of this loss continues even after newer legislation restored status to these women. These stories highlight the ability of the Indian Act to interfere in the well-being of women and their families.
The discrimination implemented by the omitted minor child issue reinforced family’s experience of living in two worlds or, more likely, feeling removed from both. Discrimination was and is affecting children in their communities, in their own homes and creating a tangible risk between siblings.
Participants likened the refusal of status to reducing a person to second-class citizenship and pointed out how the various classifications of Indian status created an internal hierarchy at the band level. Arbitrary hierarchy creates a disparity of perceived ownership of what is truly a shared heritage. This hierarchy may be applied to creating power imbalances that favour those with better or superior status.
Relief came for some of these participants and their families, after decades of disenfranchisement, when Bill C-31 passed in 1985. However, due to the politics at the band level, many of these people still do not have band membership. The impact of having Indian status on how a woman is treated by her band was a repeated theme. Self-governance cannot be properly implemented if outside legislation effectively supports that discrimination. Participants also commented on the inherently racist and colonial nature of the Indian Act itself, and stated that any amendments made to it cannot correct this reality. Undeclared parentage remains a concern at these round tables. These women felt it necessary to eliminate the need for a biological father to sign the birth certificate of a child in order for them to be accorded Indian status. This is in order to avoid discrimination against children whose parentage is unknown. These could be children whose fathers refuse or are unable to sign the birth certificate.
The unavailability of a father to sign should not affect a child’s ability to get the Indian status. No mother should face the possibility of having to bargain with a father in order to complete a step towards passing on her status to her child. Same-sex couples and two-spirited couples or individuals must also have the right to pass on their status to the same degree that any other couple or individual does. In the instance of using a donor, having a biological father’s signature on the birth certificate is most likely not an option.
The ability to marry for love without robbing descendants of Indian status was felt to be necessary. It is a human right to love whom we choose and an indigenous woman should be able to pass on her Indian status to her descendants, regardless of who she marries. Both same-sex and two-spirited couples and women marrying non-indigenous men continue to face this discrimination. Participants also questioned the necessity of a mother’s signature in order to register for Indian status, as children of mothers who are missing or have passed away are refused by INAC when trying to substitute a grandmother’s signature.
I now invite Ms. Groulx to address the committee. She will deliver her points in her mother tongue of French.
[Translation]
Lynne Groulx, Executive Director, Native Women’s Association of Canada: We should be able to return to the methods we used to pass on lineage before the imposition of colonial practices. There is no disputing lineage when a woman gives birth to her own child; that baby is hers and carries with it the life of her ancestors. Self-determination, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples, was cited by participants as a necessary step in determining citizenship and band membership.
It is not for the Canadian government or the Department of Indigenous and Northern Affairs to decide. One Quebec participant extended this demand for autonomy to include a gendered lens. She stated that women must determine whether or not there is sex-based discrimination against them in the Indian Act and remarked that it was inappropriate to have men make that determination.
I would like to highlight that some participants seemed discouraged by the potential outcome of amendments to the Indian Act, as they understood that no damages from past inequities would be awarded. NWAC supports the panelists’ recommendation that the government address this issue by compensating people who have suffered the harmful effects of sex-based discrimination in the Indian Act. This would amount to awarding damages for violating their Charter rights.
As we know, losing, or not being able to obtain, status strips a woman and her children of their rights and access to essential services. I implore this committee to consider these women’s stories of disenfranchisement before making its recommendations.
I now invite our president to offer her closing remarks.
[English]
Ms. Joe: In addition to the recommendation that compensation be awarded, we have outlined the need for time and resources towards complete consultation with indigenous women. Again, phase 1 presented us with severe time and financial constraints that prevented us from engaging in a more meaningful dialogue with our member organizations.
Grassroots women have specified the multiple ways in which Bill S-3 does not adequately address sex-based discrimination in the Indian Act, including the cousins issue, the sibling issue, the omitted minor child issue, the necessity of having a father’s signature on the birth certificate, and the necessity of having a mother’s signature on the application, all resulting in problematic outcomes for women wishing to marry non-status men, same-sex partners, two-spirited partners and children who are unable to locate or get a parent to sign their birth certificate or application for Indian status.
Over the past several weeks, this committee has heard testimony from a number of experts, civil society organizations and bar associations that have clearly outlined Bill S-3’s inadequacies in remedying these issues and its failure to live up to its name. However, recognizing that indigenous women across the country generally felt that this bill addresses some discrimination in registration and will allow some women to register, NWAC sees the importance of moving forward with these amendments. We do this in good faith that phase 2 must, without exception, be focused on truly meaningful engagement, which phase 1 did not embody. Bill S-3 is a temporary fix that must not be misconstrued as adequate to addressing sex-based discrimination in registration.
Phase 2 must look towards removing all hierarchies of status within the Indian Act. NWAC sees no justification for this ongoing discrimination against indigenous women and ultimately recommends that all sex-based discrimination in the Indian Act be removed once and for all.
Thank you, and meegwetch for your time and consideration.
Drew Lafond, MacPherson Leslie Tyerman, LLP, Indigenous Bar Association: Good morning, senators. My name is Drew Lafond and I’m a board member of the Indigenous Bar Association in Canada. The IBA is a not-for-profit organization comprised of indigenous lawyers, judges, academics, students and paralegals.
The objectives of our organization include the advancement of indigenous laws and traditions and the protection and preservation of the interests of indigenous peoples in Canada. I would like to thank the people of the Algonquin nation for having us on their territory this morning.
As we did during our oral submissions to the committee back in November, in our written submissions dated April 24 and in the written submissions that followed my oral submissions back in 2016, I would like to preface my technical submissions to the Senate committee today with a few comments and some important caveats that we think need to be brought to the attention of the committee.
First, I would like to underscore the underlying goals of the IBA and I don’t want them to get lost or diluted during the course of the presentation. The IBA is committed to strengthening and securing the ability of indigenous nations to exercise jurisdiction over their own membership and the ability to determine who their members are. The IBA’s objective will have been achieved when indigenous peoples have the right to exclusively determine who does and does not belong to their nations. Being wildly optimistic, we would also hope that in the very near future we will cease to use the term “Indian” to describe peoples of indigenous descent.
The primary objective of the Indian Act is the elimination of status Indians as a socially and legally identifiable group. The objection has been presented in various formulas that have been introduced over the last century and a half for determining Indianness. Today we continue to subscribe to these formulas. So against this backdrop, the IBA is undertaking its technical analysis, based on comments by the minister and people within her department, that phase 2 will be a much more involved process looking at substantive solutions and remedies for getting out of the Indian Act and allowing indigenous nations to assert self-determination in the area of membership.
I can tell you that based on my experience over the past couple of months that the technical resources required to undertake a technical comprehensive analysis of Bill S-3, and analyzing the instances of discrimination under the Indian Act, are simply considerable. Since our submissions in November, we’ve had the opportunity to work with Justice officials, representatives from the Indigenous and Northern Affairs and we have worked with David Schulze, the plaintiff counsel for Descheneaux. We have had the opportunity to have a few calls with Mary Eberts and representatives from the Assembly of First Nations.
Given the resources we have as a not-for-profit organization, we did as much as we possibly could to research the full extent of the impact of Bill S-3 and how various groups in Canada will be affected by it. We’ve undertaken an extensive historical legal analysis of all of the versions of the Indian Act that have led to the position we’re in today. We’ve also looked at some of the case law brought forward by some of the brave plaintiffs who have suffered discrimination at the hands of the Indian Act.
We’re now in a position where our submissions in this respect, our views and the outcome of our research are set out in our very extensive written submissions that I think members of the committee have been provided with. They’re dated April 24, 2017. In many respects, the written submissions submitted to the committee were a collaboration and a labour of effort by some of our brightest minds, including Tamara Napoleon, Merle Alexander, Naomi Metallic and Larry Gilbert, whom you may remember as previously being the registrar for INAC.
Put simply, at the end of the day, we feel that we have been riding a bike; the progress made in the case of discrimination has been very questionable.
The IBA takes issue with the structure of the proposed amendments. Back in November, we cautioned about the flaws inherent in taking a piecemeal approach. I don’t want to beat a dead horse, because many witnesses who have appeared before the committee have said that very thing, but I can only verify that the approach taken in this case is simply not working, based on our experience and research.
It begins at the outset. The title of the bill itself suggests that we’re here today to discuss the elimination of sex-based discrimination in the Indian Act. On the one hand, it’s a very ambitious title set forth, but on the other hand, the approach utilized in this case by INAC has essentially undertaken a review on a case-by-case basis. It’s been reactionary and responsive to the cases that have been put forward — in the case of the Gehl decision, as recently as a month ago.
We haven’t been provided with a template for taking a forward-looking approach to ending discrimination within the Indian Act. I can assure you, it’s all been reactive, and beyond that, we have been asked to look at theoretical or hypothetical situations under the new provisions of Bill S-3 under which discrimination may arise. So we’re left with guessing at the outset how to anticipate other instances of sex discrimination essentially in a vacuum.
To date, we’ve been determining sex discrimination based on a fact-based analysis. The flaws in that approach continue to unravel and are starting to show in the text of the bill, in our view. As identified by David Schulze and Dr. Stanton, attacking sex discrimination by simply conjuring new examples of discrimination in a vacuum is untenable.
The wording of section 6 already gives rise to a number of different factual matrices in which sex discrimination can arise. The more language you add to the bill, the greater the risk for unknown forms of sex discrimination to arise.
I didn’t want to repeat this point to death. The example or metaphor provided by Dr. Stanton was certainly adequate in this case. But I had to Google something to represent this, and the Greek mythological beast, the serpent where you continue to cut its head off and two heads arise, seems to be the case with respect to section 6 of the Indian Act. The more provisions and subparagraphs that we have been adding have created more problems than what we were initially presented with, I think. That only serves to demonstrate that, looking forward, can we or any party, using this approach, definitively say that we’ve eliminated sex discrimination under this framework.
Not a single witness who has presented to the committee has said we could, and I’m here to support that assertion.
After several months of legal research and looking into the background of the bill, what are we left with? Section 6 in its current form is overly abundant; it is illegible to the people to whom it applies; and the more provisions we add to the bill, the more it becomes increasingly unintelligible to the public and the people it’s supposed to serve. It’s a problem in connection with public policy but more importantly, it’s a problem for applicants and those whom this provision is intended to benefit.
Second, I can tell you in this case that we’re no closer to eliminating sex discrimination than we were when I was here in November 2016. Two examples of this are pursuant to a letter dated May 9, circulated by Mr. Schulze, I believe. I don’t want to go into the instance of sex discrimination in that case; I think the letter and his presentation were very eloquent in that regard, in describing the extent of sex discrimination that he discovered with respect to women who have been enfranchised because their husband had decided to marry out.
Very recently — and we’ve not had much opportunity to articulate this, but paragraph (c)(ii), which was a revision introduced to Bill S-3 recently — we only received a copy last Friday — also gives rise to another instance of sex discrimination against the very category of women that provision was supposed to eliminate. The provisions themselves are perpetuating discriminations as they’re being unveiled.
It’s against this background that the IBA has essentially three technical recommendations that I would like to raise with the committee today.
The first deals with pre-1951 status, which I think witnesses such as Sharon McIvor have done an incredible job at presenting before the committee and articulating those points. I don’t think our comments will add anything of substantive nature to that.
With respect to post-1951 status, we do have some recommendations with respect to some language that builds on some of the comments regarding who should be entitled to 6(1)(a) status.
Last, and I anticipate this probably won’t receive any traction at this point in the deliberations, but we have been instructed by our members to bring forward proposed amendments we would like to see in sections 10 and 11 of the Indian Act to support our proposed amendments to section 6, dealing with Indian status.
The 1951 cut-off is essentially an inexcusable legacy of historic wrongs inflicted upon indigenous women. The only reason there is a cut-off in the first instance is that, in our view, it was arbitrarily set, and it’s dictated by amendments to the Indian Act in 1951, a group of amendments that were passed without consultation of Aboriginal or indigenous peoples in Canada. In that regard, it is an arbitrary benchmark.
We recognize the 1951 cut-off and use it as a relevant date because, legally speaking, it’s the point where the ability to obtain or lose status became subject to an entirely different group of rules. So we acknowledge the importance of the 1951 date, but from a practical standpoint or from the standpoint of the claimants, it appears to be very arbitrary.
Bill S-3 currently does not include a provision for the inclusion of the descendants of women who were enfranchised before 1951, and it’s puzzling to us why this hasn’t occurred already. That we continue to discriminate against women is indicative of a lack of willingness on the part of the federal government to eliminate sex discrimination in this bill. An approach that sees the inclusion of the descendants of women who are reinstated under 6(1)(c) would, I think, do well to unwind some of the harmful legacies from the historic versions the Indian Act.
The reason we find it puzzling is that it’s not as though we’re not denying women and their children status prior to 1951 as a matter of policy. Women who lost their status prior to 1951 are already entitled to status under 6(1)(c). Their children are entitled to status under 6(2). Why we didn’t follow through with the ability of those women to pass down status to all their descendants is confusing. We haven’t been able to identify a discernible reason as to why that rule remains in place.
With respect to post-1951 status, the IBA noted in our written submission, dated April 24, that an amendment to section 6 of the Indian Act was proposed by the Liberals during the 2010 Bill C-3 committee hearings. That proposed amendment has been put forward and it’s been alluded to by various witnesses before the committee. We think, in that case, the Liberals wanted to address the concerns of the multitude of witnesses who came before the committee who raised concerns with the framework within which Bill C-3 was being pushed through the house.
We think that the language that was put forward by the Liberals is certainly a good starting point for eliminating sex discrimination in the context of Bill S-3, and we would submit language to the committee which we think might be more suitable. We’ve circulated this internally with some of our members. It’s draft language in the form of a provision, the effect of which essentially is to grant 6(1) status to any direct descendant of a person who had status under section 11 of the 1951 Indian Act and who acquired status under section 6 of the 1985 Indian Act.
The last point is with respect to sections 10 and 11. The IBA urges the Senate committee to introduce amendments to subsections 11(1), 10(4) and 10(5) of the Indian act to preclude any further delays in the reinstatement of indigenous women to their respective band lists.
In essence, the goal is to ensure that the impugned provisions be amended to reflect some of the case law in this area which, at least in the case of the Alberta Court of Appeal, has shown some of these provisions to be ambiguous as to whether the reinstatement of status women would also entail the reinstatement of these women, effective April 17, 1985, to the bands to which they belong.
There are some pretty egregious examples that our members have raised with us and wanted us to raise with the committee today to get it on the record that this is still an ongoing battle. It’s existed for over 30 years since the introduction of the amendments in 1985 under Bill C-31.
With that, those are my submissions for today, and I welcome any questions from the Senate.
Senator Patterson: I would like to thank both witnesses, of course, who have worked very hard on this issue.
Beginning with the Indigenous Bar Association, your submission to the committee in December was very compelling in pointing out the flaws in the act, and I am very impressed with what you’ve been able to do considering your non-profit status and limited resources.
You have stated in your submission to the committee that the bill will sustain the circumstances whereby indigenous women restored under Bill S-3 can never attain 6(1)(a) status, while their brothers with identical parents can. You also made clear that extending further subcategories of inferior status to larger groups of descendants will not likely serve to advance equity.
I know that the amendments being proposed will require even more subcategories to address potential unintended consequences. Your reference to the myth of Hydra is so appropriate; it just seems this is getting more and more complicated. We had a witness before us last week with three degrees, and I think at least two law degrees, who said it was almost incomprehensible and God help a layperson trying to navigate this morass.
You’ve referred to the 6(1)(a) all the way approach, and you referred to the amendment introduced by the Liberal Party members under Bill C-3 in 2010. You have an improved wording of that amendment that you’re consulting on with your members. Would we be able to see that, do you think, in the rather short time frame we have to review this bill?
Mr. Lafond: I wouldn’t go so far as to say improved, but modified, certainly. We do have wording that we can circulate with the committee. You will have to forgive us; we’ve been working on it until the wee hours of the night over the weekend, and I think by the time I got off the plane last night we had finally reached a little bit of comfort in the wording we felt we could present to the committee.
Senator Patterson: That would be appreciated, and can be done through our clerk.
To the Native Women’s Association of Canada, I was struck by the time frame you were given to engage with your membership, and you talked about the severe time constraints that prevented you from engaging in more meaningful dialogue.
You said you were given from March 20 to April 28 to engage and submit a final report? What strikes me about that statement is that Justice Masse’s decision to grant an extension was handed down on January 20, 2017, but you weren’t able to start your work until March 20. If you would comment on that, perhaps.
I’ll ask you the same question that I was asking the Indigenous Bar Association. You recommend that all forms of sex-based discrimination in the act be removed. You’ve identified several themes, such as the issues of same-sex couples that are unable to pass on their status and unstated paternity, as issues that should be immediately rectified, but would you agree that what some people call a “6(1)(a) all the way approach” would achieve what we should be aiming at to eliminate all forms of sex-based discrimination?
Ms. Groulx: Thank you for your question. We received a phone call from the department in early March, on approximately March 6, basically letting us know that there were some funds available for our organization not to do a consultation session, but information or engagement sessions. Further to that conversation, it took another two to two-and-a-half weeks to get a contract in place with the department, which brought us to about March 20, which left us a little more than 30 days to complete the entire process.
We’re talking about information sessions that are held across the country, in 12 locations, mobilizing grassroots women to come to the tables. We’re talking about sufficient time for our national office to prepare all the background materials required for these information sessions, so it was almost an impossible task.
From our perspective, it certainly wasn’t a consultation. It was very high-level information sessions engaging at a very preliminary level and getting responses on lived experience from the grassroots level. That’s what we were trying to capture to answer some basic questions. Phase two, if it’s going to happen for us, would have to be much different. It would have to be a meaningful consultation session, not an information or engagement session, but meaningful consultation over a reasonable period of time. It would likely be anywhere from 18 months to two years and require a full grassroots consultation with indigenous women, youth and elders.
Senator Patterson: What about 6(1)(a) all the way?
Ms. Joe: We believe that this bill should only be passed if assurances for a meaningful engagement in phase two are followed through.
As Lynne mentioned, phase one was not meaningful. We need more time. We need more resources, and we need to be able to engage our grassroots women across this country.
Senator Patterson: I think it was kind of the message we got last December. Are you saying that we should hold our noses and pass Bill S-3 and hope that the next phase, properly done, will provide the more comprehensive approach that we all want to see?
Ms. Groulx: From our perspective, we can’t say that 6(1)(a) all the way is the response they would give us at the grassroots level, at our level. We haven’t asked them the question, “Do you want us take that mandate, that position?” Or is it no more sixes at all and we need the government to get out of the business of registration period?
We need to do an adequate consultation. We’re not yet there for 6(1)(a). We’re thinking about it, but we’re not 100 per cent yet.
Senator Lankin: Thank you both for your presentations. I have questions for both organizations. I’m sorry that Ms. Joe had to step out, but if you would convey to her my appreciation for the work you did in that period of time to reach out. It was a substantive piece of work. I have seen the materials that you developed, and I hope that those will be helpful in the phase two process.
For NWAC, is the assurance that you’re looking for, in terms of the nature of phase two and the extent of it -- some of us have been talking about an amendment to the bill that further gives definition to what phase two is going to be about regarding time frames, the reporting back mechanism, but also specifically looking at naming issues like pre-1951 and that these consultations take place with, in Senator Sinclair’s wording, “a lens of Charter compliance and human rights as an approach.” Would that be a helpful addition at this point in time to give shape to what you hope will be a more meaningful phase two?
Ms. Groulx: Thank you very much. It would definitely be helpful. It’s a struggle to get our points across. Our provincial office has repeated it over and over again. Basically the same themes came out coast to coast. Even in its preliminary engagement sessions, we heard the same thing coast to coast. Anything you can do to tighten up that language and get us to where we need to be in terms of consultation would be very helpful.
Senator Lankin: Thank you. We appreciate the work you’ve put into this.
Similarly, Mr. Lafond, the IBA has put an incredible amount of work into this. I listened carefully and I read the report you filed, and I understand the challenge and the balance that you’re trying to strike. In some ways it’s a similar task for this committee.
Every amendment that has been identified since Bill S-3 was tabled has led to consideration of yet another amendment. It has created yet again another category of comparison. You referred to it as a sort of conjuring, new examples. From my way of thinking, it’s exactly the wrong way for us to continue to proceed. You’ve said that some of these have come from the very groups that you’ve identified. Every time you look at it, you see something else, and that’s completely legitimate, but it’s also a very good rationale for dealing with the Descheneaux issues and stepping back and doing the rest of this in a much more comprehensive way.
In your filed documents, you talked about the procedural duty to consult related to the substantive Aboriginal and treaty rights to control First Nations citizenship. I understand what you raise about band membership, but I don’t think in a bill at the last minute we can put something in that would affect section 10 or bands that have the right to their membership. I think that those issues must be discussed. There are very egregious examples you referred to, and they need to be discussed, but I think we are doing more damage by a continuation of one-off little amendments and not having a comprehensive approach on this.
I understand the tensions you’re dealing with within the organization regarding these issues, but I see you arguing, on one hand, we need to be much more comprehensive and we need to respect the right to consult, and, on the other hand, today you’re willing to circulate an amendment you just got finished writing when you got off the plane? That may create other issues for us to deal with as well.
Mr. Lafond: Thank you for the question. This was appropriately discussed and addressed during the hearings which were attended by Mr. Schulze and Dr. Stanton where a question was posed. It may have been Ms. McIvor who followed up. In what factual circumstance would a First Nation government be able to exercise its jurisdiction over membership in a manner that was discriminatory against the female members of their band? There is a lot of difficulty in answering that question. I would echo it as well. I’m only expressing our frustration with the process, so the incremental introductions of new amendments to the bill. That’s one of the things we’re struggling with. In this case it really drives the point home when subsection (c)(ii) was introduced further to our submissions to address the descendants of women who had had illegitimate children with a non-status member introduces a new ground of discrimination against status women who had illegitimate children with a non-status member. It is certainly a frustration that we’re feeling this far into the inquiry.
We want to go back to the initial purposes of the Indian Act. The objective of the Indian Act, since 1876, has been essentially to deprive status to indigenous peoples and to gradually reduce their numbers.
The formula under the Indian Act has always been more exclusive than inclusive, and ultimately I think indigenous women have been at the mercy of the formula for the past 150 years.
The draft amendment that we will put forward for your consideration doesn’t follow the technical or incremental approach that we’ve been following to date, which has followed the theme of let’s be more exclusive than inclusive. This is rather more inclusive. We start from a basis of being more inclusive to try and capture all instances of sex discrimination definitively. We may experience a windfall from that by eliminating other forms of discrimination such as age-based discrimination or discrimination on the basis of marital status. We think that the amendment serves as a useful framework or starting point for addressing all instances of discrimination.
Senator Lankin: Mr. Lafond, we’ve heard from other witnesses even today that that amendment will not address all the Descheneaux Bill S-3 amendments. I wonder with respect to what you’ve just said and other types of discrimination, where you're at on the procedural duty to consult; it’s tough —
Mr. Lafond: Precisely. How do you balance this? At the end of the day, whose side will we favour? Every single name that the registrar adds to the band list or the Indian register without the consent of a band or its governing authorities will be seen as an intrusion into self-determination essentially. That’s how it will be perceived. There are indigenous nations today that are actively opposed to and are battling in the courts against what they perceive to be unilateral additions to their band list. It’s a tough inquiry: Whose side are you on?
What we tried to reconcile in our written submissions was that if there are any common bases upon which to proceed — and I try to echo the comments of Ms. McIvor in this regard — why are we consulting about discrimination? In what legal system do women have to rely on consultations with governments to determine the outcome of blatant discrimination? Section 35(4) of the Constitution provides that the Aboriginal and treaty rights of Aboriginal peoples in Canada are guaranteed equally to males and females. Article 44 of the United Nations on the Declaration of Indigenous Peoples echoes that sentiment. So from an organizational standpoint, how do we balance this? For the time being, we take the position that a 6(1)(a) approach, which is more inclusive than exclusive, may be more adequate.
Senator Lankin: May be more adequate.
Mr. Lafond: I could have definitively answered the question if I had the answer at the beginning of the submission, but you got the long-winded version.
Senator Sinclair: In another conversation I was having some time ago — I think it may have been about this amendment — I remarked upon the fact that for many years now, indigenous people have been decrying the degree to which government controls the issue of Indian status and membership. And so there has usually been a process in which people agree that we need to do away with government control of Indian membership and Indian status. The question becomes: What do we do to replace it?
So in many ways, this conversation is very reminiscent of that and I equate it to flogging a dead horse or at least the flogging a dying horse, and now we’re being asked to put a new saddle on it. I’m curious about whether we should be thinking about trying to put provisions together that will allow us to keep the horse alive until we can replace it, which is really what we’re trying to do. I’m concerned about what’s going to happen if this bill, or a similar bill, is not enacted by July 3. We don’t have a plan as to what to do after July 3 if this bill does not go through, or a bill like it, even if this bill is amended.
To both of you who are here, I wonder if you would comment. I heard the NWAC comment that you’re prepared to hold your nose, so to speak, and get this through just so we have something in place. I’m not sure that I heard that from the IBA, Mr. Lafond. Maybe you have a similar or another thought about what we do in order to ensure we’re not left in total chaos on July 3.
Mr. Lafond: I think this was a point you and other senators have raised — or it may just have been you — with respect to the previous committee hearings and it caught me a little off guard because it reminded of a law school question. I haven’t had the opportunity to do the legal research to find out the legal implications of failing to enact a bill contrary to a decision of the court.
I preface any comments that the IBA has in connection with that point with the fact that I’m not certain what the legal effect of that is. We haven’t had the opportunity to research it. I’ve heard from several witnesses that it may mean up to 30,000 people — applicants for Indian status who have been discriminated against — won’t receive or won’t be eligible for status and will have to continue to wait. In that regard, I don’t think it would be the position of a responsible government to proceed without amending the bill before July 3 in whatever shape or form.
Senator Sinclair: Thank you.
Senator Enverga: I basically had the same question, but I have another question that may require a very short answer.
I know that we will be able to help at least 35,000 people with this bill. Do you have any idea how many people will remain disenfranchised by this? I know we want to cover almost everyone and we’re only covering 35,000. Do you have an approximate number of people?
Ms. Groulx: NWAC does not have an idea, no. Possibly Indigenous and Northern Affairs does, but we do not at this time.
Senator Enverga: Do you have any approximate numbers, Mr. Lafond?
Mr. Lafond: No, and one of the pitfalls of the research presented in our report is that we haven’t had an opportunity to quantify what the ramifications of the proposed amendments would be.
The Chair: That’s the end of questions. On behalf of the senators, I would like to thank the panel members both from this morning and this afternoon for their clear, concise and insightful presentations. And with that, this session is adjourned.
(The committee adjourned.)