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THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES

EVIDENCE

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OTTAWA, Monday, March 28, 2022

The Standing Senate Committee on Aboriginal Peoples met with videoconference this day at 2:01 p.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.

Senator Brian Francis (Chair) in the chair.

[English]

The Chair: Honourable senators, I welcome all of you and our viewers across the country who may be watching on sencanada.ca to the Standing Senate Committee on Aboriginal Peoples. Before we begin, I would like to acknowledge that we are meeting in the Senate of Canada building which is located on the traditional and unceded territory of the Anishinaabe Algonquin people.

My name is Brian Francis. I am a senator from Epekwitk, also known as Prince Edward Island, and I am the chair of the committee.

I would like to introduce the members of the committee who are participating today: Senator Daniel Christmas from Nova Scotia; Senator Dennis Glen Patterson from Nunavut; Senator David M. Arnot from Saskatchewan; Senator Michèle Audette from Quebec will be here shortly; Senator Patrick Brazeau from Quebec; Senator Mary Coyle from Nova Scotia; Senator Nancy J. Hartling from New Brunswick; and Senator Kim Pate from Ontario.

Today we are starting a study on the implementation of An act to amend the Indian Act in response to the Supreme Court of Quebec’s decision in Descheneaux c. Canada (Procureur général) — previously known as Bill S-3.

I would like to introduce our first panel of witnesses. With us today we have Sharon McIvor; Shelagh Day, Chair of the Human Rights Committee and co-founder of the Canadian Feminist Alliance for International Action; and Pamela Palmater, Chair in Indigenous Governance at Ryerson University.

Ms. McIvor, Ms. Day and Ms. Palmater will be providing opening remarks of up to five minutes each. We will then move to a question-and-answer session of approximately four minutes per senator. Please note that I will let witnesses know when they have 30 seconds left on their allocated time. I ask senators who have a question to use the “raise hand” feature on Zoom to signal this to the clerk. They will then be acknowledged in the chat. I remind you that committee members will be given priority to ask questions.

I will now ask Ms. McIvor to begin her opening remarks.

Sharon McIvor, as an individual: Thank you to the committee for the invitation to appear today and for your work. Because of the amendment to Bill S-3 made by the committee under the leadership of former senator Lillian Eva Dyck and the commitment of the Senate as a whole, the central core of the pre-1985 sex discrimination was removed from the Indian Act.

As you know, getting section 6(1)(a) of the Indian Act all the way to amendment was a fight. Getting it actually promulgated on August 15, 2019, long after the other provisions of Bill S-3, was another fight. Now we are trying to get this amendment actually implemented so it can make the difference in the lives of First Nations women and their descendants that we all intended. We’re trying to ensure that the residual discrimination is repaired, the remaining discrimination is removed, and reparations for the harms caused are provided. It is our hope that the committee will take up the matter of Indian Act discrimination once more, to help us make equality for First Nations women and their descendants fact, not just words.

My colleagues and I have five points to make today. One, in order for women and their descendants to enjoy the benefits of the 2019 Bill S-3 amendment, they have to be registered. By the government’s own estimate, there are between 270,000 and 450,000 who are newly eligible, but as of November 2021, only about 22,000 were registered. In short, registrations of those entitled under “6(1)(a) all the way” amendment is not really happening, which means that, so far, the amendment has little meaning.

Two, the profound and long-lasting residual effects of sex discrimination on band membership, treaty rights, political participation, voice, culture, language and access to programs and benefits have not been addressed, nor is there any apparent plan for doing so.

Three, there is no plan for reparations for the profound harms of the discrimination, apology, memorialization, compensation or public education.

Four, contrary to the claim of the report, there are outstanding issues of sex discrimination in the Indian Act, including the lingering effects of automatic enfranchisement on the wives and children of men who enfranchised and the discrimination inherent in the unstated and unknown paternity provision.

The Government of Canada has obligations under the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, to provide effective redress for any form of forced assimilation that violates the rights of Indigenous people. Canada is committed to making a plan for the implementation of UNDRIP in Canada and needs urgently to address the registration of women and repair the harms done.

So, in March 2022, after 50 years of struggle by First Nations women to end the sex discrimination in the Indian Act, where are we? It must be said for the record that the sex discrimination in Canada’s Indian Act is a key component of genocide identified by the National Inquiry into Missing and Murdered Indigenous Women and Girls because it is a tool of forced assimilation. The Indian Act has defined thousands of Indigenous women and their descendants as non-Indians and forced them into the non‑Indigenous population. The sex discrimination has also stripped First Nations of thousands of women and their descendants, shrinking the pool of Indians who are recognized as having inherent Aboriginal treaty and land rights.

The sex discrimination has worked effectively to damage the women and the nations. The fact that there are somewhere between 270,000 and 450,000 women and their descendants who are newly entitled to status by the August 2019 amendment proves just how effective the tool of assimilation and sex discrimination has been since there are only a few more than 1 million status Indians in Canada now.

The government indicates in this report that it wishes to be on the path to getting out of the business of Indian registration. However, we wish to make it clear that if the government gets out of the business of Indian registration before it restores the women and their descendants to their rightful status and membership in their communities, it will cement in place the discrimination and its effect for all time. This is not the path to reconciliation.

The Chair: Thank you, Ms. McIvor.

I will now ask Ms. Day to begin her opening remarks.

Shelagh Day, Chair, Human Rights Committee and Co-founder, Canadian Feminist Alliance for International Action: Thank you very much for the invitation to appear. I’m speaking to you from the unceded territory of the Musqueam, Squamish and Tsleil-Waututh peoples. I want to talk today about registration — the facts, the problems and the way to fix them.

As Ms. McIvor has already said, the Government of Canada estimates that between 270,000 and 450,000 First Nations women and their descendants are newly eligible for status because of the August 2019 amendment. However, as of November 2021, only about 21,000 has been processed. We know that those 21,000 include all those registered under Bill S-3 since December 2017, not specifically those registered under the 2019 “6(1)(a) all the way” amendment.

Indigenous Services Canada reports that it’s now processing 1,600 applications a month under Bill S-3. At this rate, we calculate that it will take between 14 and 23 years for the newly eligible to be registered. I’m sure that senators can agree that is wholly unacceptable. We have urged the government to aspire not just to a rate of processing that is faster but one that will ensure the achievement of a just goal — that is, the full registration of all those eligible under Bill S-3 — by December 2025. To do this, it will be necessary to process at least 100,000 applications per year.

We note that many of the women who are newly eligible for status are elderly, and the benefit and promise of Bill S-3 will be betrayed if they die before being registered. Also, whether it’s because of age or another cause, many newly eligible persons have disabilities and urgently need the health and other benefits that come with status. Delay in getting registered exacerbates harm during these days of the pandemic.

Here’s what needs to be fixed. Indigenous Services Canada needs to hire and train enough people to actually register the women and their descendants who are eligible. The application process needs to be completely revamped to remove the delays and obstacles. Anyone can get a Canadian passport in 10 to 20 business days, but processing applications for Indian status takes six months to two years or more. That is inexcusable. The application process is notoriously difficult. Applicants need navigation assistance, and legal and paralegal supports, to prepare correctly and to see their applications through the process.

There must be an effective communications plan to increase public awareness of Bill S-3 and to actively encourage women and their descendants to apply for the status to which they are entitled. This campaign must be bold, inventive and fresh. Messages need to be simple and stories need to be told to illustrate who is now eligible.

Finally, the government needs to implement the recommendations made by Claudette Dumont-Smith in her 2019 report to Minister Bennett about the funding necessary to support the reconnection of women and their descendants and their communities.

We have provided goals and timetables for the registration of the newly eligible to Minister Hajdu and sent a request to Minister Freeland to ask that she include adequate funds in Budget 2022 to ensure that the newly eligible women and their descendants can be registered by December 2025.

Thanks to the work of this committee and to the incredible dedication of many First Nations women, including Sharon McIvor, Senator Lovelace Nicholas and Senator Lillian Eva Dyck, who are in this meeting today, the core of sex discrimination has been removed from the face of the law.

But there is no implementation, and so de facto the discrimination continues. This is a massive violation of the equality rights of First Nations women, it has been almost 150 years, it is a root cause of lasting damage and high rates of violence and death, it is repeatedly censured by courts and human rights bodies, and still we have no effective remedy.

We have no acknowledgement yet from the Government of Canada of the extent, scope and damage caused by this discrimination. Thank you.

The Chair: Thank you, Ms. Day.

I will now ask Dr. Palmater to begin her opening remarks.

Pamela Palmater, Chair in Indigenous Governance, Ryerson University, as an individual: Thank you.

[Indigenous language spoken.]

I’m from the sovereign Mi’kmaq nation on unceded Mi’kma’ki and my home community of Ugpi’Ganjig, which is Eel River Bar First Nation. Today, I’m coming to you from the sovereign territories of Mississaugas of Scugog Island First Nation.

In terms of how I relate to this issue, I’ve been a lawyer in good standing for 23 years, 10 of which I did at Justice Canada and Indian Affairs. I did my doctorate of Law in sex and race discrimination in the Indian Act.

Thank you for the opportunity to be here, and I endorse the submissions of my colleagues who spoke before me.

You already know the political history of well over 100 years of First Nations women and children being targeted for exclusion from their communities, which is a purposeful genocidal attempt to destroy native communities. You know about the First Nations matriarch who spent decades challenging this: Senator Sandra Lovelace Nicholas and Sharon McIvor, just to name two. You know all of the court cases that found this to be discrimination and all of the inquiries, commissions and reports that have found this to be discrimination that led to the amendments under Bill S-3.

Yet, as my colleagues have said, the remedy that was intended by Bill S-3 is being withheld to thousands of First Nations women and children through Canada’s ongoing failure to register them. There is only a small number — 250,000 to 400,000 — of registrants newly entitled, but it is sometimes taking over two years to get registered. At the same time, there are over 4 million passports processed every year, and the service standard can be as little as 10 days. Canada also processes more than 400,000 immigrants each year.

There is something horribly wrong with this ongoing discrimination against Indigenous women.

Of course, we know that as the discrimination continues, this violates Indigenous laws, treaties, Charter rights, section 35, rights and international human rights laws. This brings us to Bill C-15, which confirms that the United Nations Declaration on the Rights of Indigenous Peoples has applicability in Canadian law. It contains minimum standards for the survival, dignity and well-being of Indigenous peoples. It demands equality between men and women, and particular attention being given to the needs of women. It also prohibits genocide, forced assimilation and protects our right to belong to our communities.

Now let’s lay UNDRIP over Canada’s Indian Act registration provisions, including Bill S-3, and see if it would survive a basic human-right test. I think the answer is clearly “no.”

Despite the Bill S-3 amendments, the significant delays by the federal government means that there are significant impacts to First Nation women and children. The discrimination continues. It sends a horrible message to society and First Nations that First Nation women are less valuable, less worthy, less Indigenous and less deserving of urgent action. It perpetuates divisions in our communities, it prolongs disconnections, it creates barriers to access language and culture, and it denies First Nation women and children a political voice in the governance of their First Nations. They are excluded from negotiations or referendums on rights. They are outright denied their treaty rights. Many have been unable to access First Nations-specific pandemic supports.

This is a crisis.

Most important, it impacts their sense of self-worth and identity, and that directly impacts their physical, mental and emotional health. This is forced assimilation. This is the core of Canada’s genocide.

Some of the recommendations are to comply with the United Nations human-rights decision in McIvor that says to end current discrimination, prevent future discrimination and make reparations for historic discrimination. That means Canada needs to act with haste to register all of the newly entitled, and I think we should have a service standard of no less than that of passports.

There should be a 20-day service standard. There should be no expiry date on Indian status, as there is with our cards. We need to eliminate all sex discrimination in Indian registration that remains. We must address band membership, and we must repeal the non-liability clauses in Bill S-3 and Bill C-3 so we can make reparations, an apology, a memorial, support for Indigenous women’s organizations and compensation for the many generations of discrimination. Anything less continues and compounds discrimination. It is illegal, unjust and unconscionable.

The Chair: Thank you, Dr. Palmater.

We will now begin the question-and-answer session.

Senator Christmas: Thank you very much for putting the spotlight on Bill S-3.

I would like to pose my first question to Dr. Palmater. I want to pick up on the last point. I know you ran out of time with your remarks, but I thought your last point was very instructive. You mentioned that in Bill S-3 we should repeal the non-liability clause. I haven’t heard this very much, but there is an apology deserving to the women who lost their rights and a consideration should be made about a memorial for those who have lost their rights and compensation.

Dr. Palmater, could you elaborate on those four items and why they should be considered by the committee?

Ms. Palmater: Thank you for the question. It is incredibly important for a multitude of reasons. By Canada standing up in Parliament, like it did for residential schools, and saying: Here’s what we did to First Nations women and children, our intention wasn’t just to assimilate them and it was to destroy First Nation communities. These women had no choice. It wasn’t their fault. They’re not to be blamed for any of this. And Canada owes an incredible amount for all of the personal damage that has been caused to women and children and communities and the current problem.

That’s the kind of apology that’s needed. The memorial to all of these women — Senator Sandra Lovelace Nicholas and Sharon McIvor are literally like my grandmothers. I only got registered because of Sandra Lovelace Nicholas and Sharon McIvor’s cases. My grandmother, my father, myself and my children, all of us being here talking about this and their endless efforts, but they’ve spent their lifetime. Perhaps they would have wanted to spend their lifetime doing other things. We need to start remembering, acknowledging and honouring people in their lifetimes, not after they’ve passed away.

Compensation goes without saying. There is compensation for residential schools, colonization, for Sixties Scoops adoptions, for the foster-care crisis, for forced relocations, you name it. There is compensation ongoing or in the process. Why on earth would we send the message to Canada that First Nations women and children are not deserving of compensation for clear and purposeful violations of their basic human rights? I think that’s why it’s so important that we talk about real reparations.

Senator Christmas: I’ll ask this question to any of the panellists if you wish to answer.

I haven’t heard much discussion since Bill S-3 about the two‑generation cut-off that’s inherent within the Indian Act. If I remember correctly when we were debating Bill S-3, there was a lot of discussion about the Crown engaging First Nations people on the double generation cut-off, the two-generation cut-off. Could you explain to the committee and to our listening audience what that is and why it’s so important that the Crown address that issue now?

Ms. Palmater: Thank you. We feel the section 6(2) cut-off is basically something that was enacted in 1985 in retaliation for having to reinstate all of the First Nations women that they had kicked out of communities, to find a way to continue the legislative extinction and forced assimilation of First Nations, because that’s exactly what it results in. Section 6(2), the second‑generation cut-off, relates to out-parenting, parenting with a non‑registered person. So you combine that with the high rates of out-parenting in First Nations because our First Nation communities were divided up and separated and put into smaller areas. So we’re intermarried with our treaty partners, we work with our treaty partners, but we’re punished for it. It means that every First Nation in this country has a legislated extinction date that you can calculate based on their birth, death and out‑parenting and section 6(2) of the Indian Act.

Canada continues in every court case to defend this formula over and over, even at the United Nations. I don’t know how on earth you can claim to stand up for human rights and defend the legislative right to legislate Indians out of existence. That’s exactly what section 6(2) does.

Canada has heard throughout many, many years, decades now, of engagement with First Nations and Indigenous women that we want to get rid of section 6(2) of the Indian Act. On a go-forward basis, why should we be cutting off our children? That would mean my grandchildren could not be a member of the Mi’kmaq community, even though they will grow up in the culture and the language and the community. That’s absolutely unconscionable, it’s forced assimilation and a part of ongoing genocide.

Senator Christmas: Thank you, Dr. Palmater.

The Chair: I have a statement and a question on behalf of Senator Patterson. These are his words:

Thanks for the very clear testimony you have all given us today. It is alarming and timely. Ms. Day, you have given clear recommendations that I think the committee should immediately adopt and forward to the responsible minister.

I have a question for you, Ms. Day. You have suggested that the Department of Indigenous Services Canada should train and hire enough people to accelerate the application rate from 600 to 100,000 per year. Did I understand you correctly?

Ms. Day: Yes, you did. The goals and timetables that we sent to Minister Hajdu and to Minister Freeland recommend that we get up to 450,000 women and their descendants registered by December 2025. That means 100,000 per year, increasing the resources, and it also means a big public education campaign.

Indigenous Services Canada needs to go out and say, as Dr. Palmater has said, this is what has happened, this is what we’ve done, and now we’re going to repair it. The message needs to be very well communicated to everyone in the country that the repair process means that people can think about whether or not they are among those who are eligible.

We need a big public education campaign, we need resources and we need navigation help. There is a big job to do here, but we cannot think that we’re on the path to reconciliation unless Canada is prepared to do this. This is the way to unwind the terrible damage that has been done to first Nations women and their children and to First Nations by stripping them of members.

The Chair: Thank you for that. I have a supplementary question on behalf of Senator Patterson.

Could you please share with the committee through the clerk your letters to Minister Freeland and Minister Hajdu calling for action on this neglected commitment?

Ms. Day: Yes, we have done that. We’ve sent to the committee clerk copies of those letters, and we’re very happy to provide all of the information that we have to committee members. A group of First Nations women leaders, First Nations women’s organizations, and allies have been in communication with Indigenous Services Canada on a consistent basis over the last several years about the implementation of Bill S- 3. We are happy to provide the committee with all of the correspondence and notes from that communication back and forth.

The Chair: Thank you, Ms. Day.

Senator Brazeau: Thank you all for being with us this afternoon. Ms. McIvor, Ms. Day and Dr. Palmater, I would like to thank you for all your tireless work and advocacy on this issue because it remains and is very important for First Nations people going forward.

We often mention the fact that it’s still the Government of Canada and still the ministers of Crown-Indigenous and Northern Affairs that decide who is and who is not a status First Nations person in Canada. Having said that, we all know how long it takes for the registration process. As an aside, I’ve been working with an individual for the last six years to try to get his status, and it’s mind-boggling as to what exactly the department utilizes in terms of criteria to determine who is status, but I digress.

My question could be for any of you. What do you think it would take to be in a position in Canada where those that decide who are First Nation citizens are actually First Nations people or the nations themselves, as opposed to a department that is very secretive about what exactly they do in terms of the registration process? Thank you.

Ms. McIvor: Thank you for the question, Senator Brazeau. The position that many of us women who have been discriminated against have taken over the years is the fact that we were not involved in our communities because of the legislation. We need the Government of Canada to rectify that so that all of us who were discriminated against and lost contact with our communities and lost the ability to participate in our communities, they have to put us back.

What they have said about membership, for instance. As you know, in 1985, they gave the various Indian bands the right to make their own membership codes, and many cannot get back into their birth bands. They were automatically transferred to other bands, so they can’t get back into their birth bands, and then their descendants can’t.

I think what you’re alluding to is the fact that the First Nations should be making the decisions about who their members are. There are those of us who agree with that, but not until they clean it up. Because today, if you want to apply to get back to your birth band, it’s up to the band to do it. Canada just took their hands away from all of those First Nations women who are automatically transferred when they married an Indian from another band, and they have left them there. There are a lot of women who have been in contact with me. They want to go back to their birth bands, but they can’t. Their band will not let them in.

What we’re saying is that Canada’s got to clean up the mess. They transferred them. They should have allowed them to transfer back or provide a mechanism where they had the right to transfer back. It wasn’t somebody else’s decision.

So yes, I believe that self-determination, as covered under the various legislation, including UNDRIP, should be the right of the community, but they’ve got to put us back. We have the right to belong to our communities, and people in the community today shouldn’t decide whether we can exercise that right or not.

Senator Coyle: Thank you so much, Ms. Day, Ms. McIvor, and Dr. Palmater. I’m glad you didn’t mince words here. It’s clear, from what we’re hearing from you and, of course, from what has been brought to our attention. It’s why we’re meeting about this now. We have to, as you have said, make this very important decision into fact not just words, and we have to get a way of improving this registration process because it is a real shame. As you said, Dr. Palmater, it is further perpetuating the discrimination and divisions. There is no reason why we should not be insisting on a service standard that is respectable, that is reasonable — and obviously we are nowhere near that right now — and aligning it with the passport application standard, on the surface, sounds reasonable to me.

I’m fully supportive and agree that our committee should take this up with the minister and move this forward. In addition to that, though, I want to understand some of the finer points. Ms. McIvor, you’ve started to talk about some of them.

I have two questions. One is for Ms. McIvor. You spoke about reparations for the harm that has been caused, and it’s such a variety of harms. I’d like to hear about that and what reparations are being looked for. Then, Ms. Day, you spoke about the need to implement the recommendations regarding funding to reconnect women and their descendants with the communities, and again that’s something that Ms. McIvor was talking about as well. What does that look like? That’s got to be absolutely critical, so I would like to hear about both of those things, the reparations and the reconnections, please.

Ms. Day: Let me just talk about reconnection. You’d be aware, Senator Coyle, that in the report that Claudette Dumont-Smith made to the Minister of Crown-Indigenous Relations and Northern Affairs in 2019, she made a series of recommendations, including about getting on with dealing with 6(2), which is such a big problem. But she said quite clearly that in order for the communities to feel as though they can reconnect with new members, they need to have the funding that’s provided to them and the formulas for funding changed, ameliorated and increased. She made very specific recommendations about what those funding allocations are. So those recommendations need to be implemented. It’s part of this.

As both Sharon and Pam have said so eloquently, the problem that we’re facing is not just that the women aren’t registered. It’s that with registration goes so many other things — connection to the community, band membership, treaty rights, recognition that they are holders of Aboriginal rights, recognition that they have a voice with respect to what should happen with their community or with self-government. If they are not back and reconnected, they don’t get a say about self-government and what that should look like for their communities.

That question of reconnection is a huge one in this picture. It’s the reason why we say registration, reconnection, reparations, get the rest of the discrimination out of the Indian Act and recognize that what we have here is forced assimilation and we have to reverse it. That’s what we’re looking at.

I wanted to add that the women who were married out and forced out in most instances have all the things that go along with discrimination. They are and have lived in poverty. We have had a couple of registrations lately where senior women weren’t getting medical care, all of that which is covered once you’ve got a status number.

They were able to improve their quality of life, but many of the women who were married out and then sort of fell along the wayside are living in extreme poverty, and their children and grandchildren are living in extreme poverty.

My son, for instance, wasn’t registered until very late. He didn’t have the opportunity to do post-secondary. He had the ability to do it. He didn’t have the opportunity to do it, and today he’s working and earning a living, so there are all those sorts of things that they lost out on.

Many of them are living in poverty. I’m one of the fortunate ones, I was able to get along a little better than the rest, but because of the discrimination, they are still living in poverty, and because of a whole lot of other things, the discrimination and that, they haven’t had the ability to actually have a life that is beyond hand to mouth.

There is a lot of medical stuff. They have lots of illnesses that aren’t being taken care of, and a lot dental, for instance. Many of them don’t have any dental. Many of them don’t have any teeth. There’s a whole bunch of things that they lost because of the discrimination, and they should be able to get some reparation for it.

The Chair: Thank you, Ms. McIvor.

Senator Hartling: Thank you, witnesses, for your wonderful presentation. It was so well crafted with such great ideas.

As I’m sitting listening to this, I’m starting to get very disturbed. I feel like my blood pressure just went up.

I remember when Bill S- 3 was passed in the Senate, and we were all very excited about that, and now to come back to this, it feels as if there is discrimination here, oppression that is gender‑based, for sure. I can’t believe that this can move this slowly, because if something needs to move quickly, as you know in government, it can be moved. So this is really certainly discrimination.

For people who are waiting, the pandemic has been difficult, and they must find it even more difficult, and I’m just wondering, what is the real holdup here? What do you think the real holdup is?

If you could envision this happening quicker and we could look at some of these parts that you suggested, the reparations and reconciliation, what does that look like? What do you see this looking like so that we can certainly and truly support this because it needs to go forward?

Whoever would like to answer, I’d really appreciate that. Thank you very much for your continued work.

Ms. McIvor: I will answer really quickly, but I would like Ms. Palmater to get in on this conversation.

It’s will. We’ve been putting pressure on the government officials, in particular those at Indian Affairs, to get the information out. On a regular basis, I will talk to somebody and they say, “I have First Nations ancestry,” and I say, “Okay, like what?” They tell me, and I say, “Okay, under the latest legislation, you’re eligible for registration.” “What? I didn’t know that. How do I find that out? How do I start?” And there’s absolutely no information out there telling them that because of the August 2019 amendment, if you’ve got one female ancestor that married out at any time, you’re eligible. It’s not out there. We’ve been putting pressure on them.

Ms. Palmater: Thanks, Ms. McIvor. This is a really important question. I think this is the question that people actually avoid, because when you ask the why, you have to start looking at sexism, racism and problems that Indian Affairs — or whatever it’s called now — has long held in the bureaucracy.

We know the problems that they are having among their own employees, and there is still this block to changing any of this stuff.

Before Bill S- 3 passed and since Bill S- 3 passed, we have had meeting after meeting after meeting with Ministers Miller and Bennett and Monsef, and we’ve sent numerous letters, and we’ve done everything they’ve asked. We followed up. Here is the information, and it’s always met with “Thank you for your long advocacy, thank you for your efforts, you’re so commendable, you’re wonderful women,” and then there’s no action.

I don’t want to make this sound like this is a Liberal government issue. This is obviously for every federal government that’s ever been, but we’re at a stage where this government promises nation-to-nation. It’s implemented UNDRIP. It claims to be promoting women’s rights, except Indigenous women. You can look at all of the issues they have acted on, important issues on Indigenous things, but then look at the National Inquiry into Murdered and Missing Indigenous Women and Girls. Genocide in this country, and we don’t have a genocide response. That goes to show you just how much Indigenous women and girls are undervalued.

Also, in my experience — and this is anecdotal — but I work with First Nations and First Nation organizations all across the country, and they are constantly coming to me for the correct information. Departmental bureaucrats are going out saying that you don’t want to bring these women back. I mean, millions of people will be added. You’ll be overwhelmed. You won’t be able to govern. You won’t have enough housing.

I have to go there and say that is a complete lie. Literally 22,000 people have been registered. It’s a drop in the bucket, but that being said, Canada is racing to sign 10-year block funding contribution agreements without women included.

They are racing to sign education agreements without women included. What they are doing without First Nations knowing is that they are going to prejudice First Nations in terms of per capita and other infrastructure that they won’t get money for and they will lock themselves in without the ability to change those funds later on.

Canada’s doing that knowingly and purposefully, and that’s got to be addressed.

The Chair: Thank you, Dr. Palmater.

Senator Pate: Thank you to each of you for the incredible work that you did. I don’t want to sound like the others you’ve talked to in the government who say those things. It’s been decades of trying to get to this place just for those of you who are with us today.

I have two questions. I want to pick up on, Dr. Palmater, what you were just talking about in terms of the implications of this. It strikes me, as you were talking, and as Professor McIvor was talking about the implications of these policies, an area that I know well, of course, is within the prisons and correction field and an example of where in 1992 a law was passed that was supposed to provide off-ramps out of the system for Indigenous people. No communities were told about it. Then the fact that nobody applied for it was used as an example of why we didn’t need to see these kinds of provisions and allowed for Corrections to significantly hamper the development of things like sections 81 and 84 agreements.

It strikes me, as you’ve said, Canada has taken on that we will implement the UN Declaration on the Rights of Indigenous Peoples, the Calls to Action of the Truth and Reconciliation Commission, and the Calls for Justice for the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Could you highlight, just to be even more crystal clear, how this is in direct contravention of those commitments that have been taken on by this government?

Second, if I may, Mr. Chair, for Professor McIvor, you have had a case before the UN Human Rights Committee for about 12 years now. How does that case relate to these provisions? And what is the impact of Canada’s ongoing failure to act with respect to Bill S-3 and what’s likely to come out from the UN Human Rights Committee, if you can speculate?

Ms. Palmater: Thank you for the question, Senator Pate, and, obviously, thank you for the work you’ve done on this committee on addressing prison injustice and this issue with Indian registration. These two things go together because women in prison are not getting the supports they need to be able to register under the Indian Act or have their children, from whom they are now separated, to register under the Indian Act.

When we talk about discrimination, we are not talking about “the card.” We are talking about all of the implications of not being registered and the multiple levels of discrimination that you experience, like living in poverty because you don’t have access to those programs and services, like being unhealthy because of those programs and services not being available. All of it is worse.

Here is what Canada’s doing by allowing this to happen. It’s saying, “We have the law, but you don’t get the protection of it.” That’s no different than murdered and missing Indigenous women. Do you remember when there were women trying to advocate making the murder of Indigenous women extra bad? Like, “It’s not just murder; it’s like double murder, and you should be doubly punished for it.” That’s because people were trying to reach out and say, “What law do we have to pass that you will actually allow us to enjoy?” You know? They could pass 100 more laws, make 100 more amendments, but if they don’t register people, then they suffer from the discrimination. This is trauma and it’s intergenerational trauma. And it’s added to all of the violence, all of the other discrimination in health care and education and housing and homelessness.

Who’s reaching out to the Indigenous women who live in the Downtown Eastside of Vancouver, on the streets, trying to register them and get them help? It’s definitely not the federal government. They are breaking Indigenous laws because Indigenous laws respect women. They are breaking treaties because our treaties are supposed to go to our heirs and heirs forever — unless you’re a woman. They are breaching the Charter, breaching section 35 rights, breaching Aboriginal treaty rights, which are guaranteed equally to men and women. UNDRIP guarantees every single international human rights protection equally to men and women.

There isn’t anything that isn’t being denied to these First Nations women and children right now. We don’t get a break. Just because I’m registered, it doesn’t mean we get to sit back and say, “Oh, look, the problem’s solved.” I’m here today because my grandkids won’t be registered, and they won’t be allowed to be part of my community, and Canada’s doing that knowingly, just like it underfunded foster care knowingly, knowing that that was the root cause of the disproportionate apprehensions.

We have to put that on the table and say, “Stop it. Stop this intentional destruction of our communities.”

The Chair: Thank you, Dr. Palmater. Senator Arnot?

Senator Arnot: Thank you, chair. I want to say I’m very impressed with the witnesses here today. They have been clear, concise and very compelling, and their recommendations are really well considered.

It seems very clear that the Government of Canada is, in fact, thwarting the rights and intention and the spirit and intent of the act by failing to properly fund the implementation of that. It seems that it’s a lack of at least small-“p” political will to do it properly.

I’m surprised, really, that the second-generation cut-off issue has not been addressed. It was certainly the issue that was clearly criticized in Bill C-31, and I’m surprised by that.

I would have this question, though, to the panel but in particular to Shelagh Day. I agree with the recommendations, we need to act, his committee needs to act. But I would say this with respect to communication and education — which is critical to the application and the process, setting the foundations, so people know, in fact, that they have a right that is being thwarted — who should be doing that communication? Who should be designing the education and the communication? Who should be implementing that? You can’t rely on Crown‑Indigenous Relations or Indigenous Services Canada.

I would say that Indigenous organizations, certainly women, should be intricately involved in the design and the delivery of that education and that communication to the community to support the required applications for reinstatement.

I’d like to know the thoughts of the panel on that issue.

Ms. Day: I’ll just start, perhaps, Senator Arnot. I completely agree with you, and it’s what we’ve said all along. It should be designed with, in particular, Indigenous women’s organizations in a public campaign. We’ve also said to Minister Hajdu that we believe in our goals and timetables, which we’ll certainly share with the committee. We believe there should be a notice sent out through all the universal communications that the Government of Canada engages in — income tax notices, Old Age Security notices, Canada Pension Plan notices, things that go to most households — because a lot of the people who we think are newly eligible are not necessarily connected to bands or Indigenous organizations. It’s really important to reach them where they are.

Speaking for myself, one of the things I would really like to see is the Prime Minister of Canada going to the public to say, “Look, this is the history. This is what we’ve done. We’re now trying to reverse this, and I want you to know that there are hundreds of thousands of women and their descendants who are now eligible for status — and we want you. We want you to please come forward. We’re making this process available so that you can come forward.” That’s the kind of message that I think women and their descendants need to hear. I also think it’s the message that Canada needs to hear. So there are layers to this and how it can be done.

Ms. Palmater: I would just add that we actually advocated strenuously to have Indian registration declared an essential service for this very reason — so that First Nations women and children would not be left out during a worldwide crisis. We asked over and over and over again, and they refused.

There is nothing stopping them. Think of all the federal government notices, all over Canada, during the pandemic about, “Get your shot.” There were commercials and information everywhere.

Why couldn’t they do that? They have the power, at the same time as funding First Nations women’s organizations, friendship centres, cultural centres and First Nations, to provide education as well. Thank you.

Senator Arnot: I have a follow-up question, chair.

I want to ask the panellists this. It seems to me, one of the fundamental problems is that we are not holding the executive branch of government to account. So I’m asking this question to the panellists: Do you believe there needs to be a more effective accountability mechanism available to Indigenous people in Canada to hold the executive branch of government to account?

A model I might put forward is something along the lines of the Auditor General model, which reports directly to the Parliament of Canada and bypasses the executive branch of government — on reconciliation, on the Truth and Reconciliation Commission of Canada’s Calls to Action, on the Missing and Murdered Indigenous Women inquiry’s Calls for Justice, on UNDRIP and its implementation and, importantly, the treaty relationship and the treaty implementation in the modern context.

It seems to me that without that kind of accountability, we’re just going to slide into litigation, non-action and more problems. But I really want to hear the panel on that.

Ms. Palmater: I think that’s incredibly important. Part of the problem we have is the secrecy of information. When I was doing my doctorate on sex discrimination in the Indian Act, I made access to information requests over and over and over again. Some of them were denied. I had to appeal to the Office of the Information Commissioner.

It’s to get this information — and that’s, for me, particularly looking at it. What information flow or source is there for the public like the Auditor General or the Office of the Correctional Investigator, for example? Do you think any Canadians would know anything about what’s happening in prisons if it weren’t for the social justice activists on the outside and the Office of the Correctional Investigator on behalf of Canada saying, “Here’s what’s going on?” People listen when the Auditor General says, “You’re not dealing with water on First Nations reserves very well.”

Imagine if, every year, we got a report on what isn’t being done to stop discrimination against First Nation women and kids, and what isn’t being done to help them on all of the essential fronts, including genocide and really big things that just seem to take a back seat to everything else.

I agree with you.

Recommendations have been made, in fact, to the National Inquiry, and the National Inquiry did make a recommendation that there be a similar accountability body with regard to the human rights of Indigenous peoples. I endorse that. That’s the only way to have a comprehensive look at everything the government is doing and not doing, regardless of political party, and what needs to be done so that we don’t have to keep going to the UN to do that for us.

That’s what we’re doing right now: We use the United Nations and the Inter-American Commission on Human Rights to tell them what is happening and what Canada is not doing. The UN can then report back and say, “Canada, you’re not doing this. Stop doing that.” We just keep doing it.

But Canadians don’t really have access to that information under the UN. An auditor general or ombudsperson in some sense would make it widely available.

The Chair: Thank you, Dr. Palmater.

The time for this panel is complete. I wish to thank Ms. McIvor, Ms. Day and Dr. Palmater for meeting with us today.

To introduce our next panel of witnesses, we have the Honourable Lillian Eva Dyck, former senator; Cora McGuire‑Cyrette, Executive Director of the Ontario Native Women’s Association; and Adam Bond, Manager of Legal Services of the Native Women’s Association of Canada. Former Senator Dyck, Ms. McGuire-Cyrette and Mr. Bond will provide opening remarks of five minutes each, and then we will move to a question-and-answer session of approximately four minutes per senator.

Please note that I will let witnesses know when they have 30 seconds left in their allocated time. Senators who have a question should use the “raised hand” feature on Zoom to signal the clerk, and they will be acknowledged in the chat. Committee members will be given priority to ask questions.

We extend now a warm welcome to the Honourable Senator Dyck, who was our colleague and the former chair of this committee. It is good to see you. I invite you to make your opening marks.

Hon. Lillian Eva Dyck, former senator, as an individual: Good afternoon. It’s wonderful to be back here. I will apologize to the translators; I sent you a copy of what I was going to say, but it is much too long, so will be cutting it back. I’m used to the speeches in the Senate, where I had 14 or 15 minutes.

It has been almost five years since Bill S-3 was passed, so I had to dig back into my files and reacquaint myself with the information. It has been quite challenging.

Today, I would like to give you some context about the bill, provide a brief summary, comment on the two outstanding issues and make some concluding remarks.

First of all, I would like to say that, often, these days with reconciliation, we do a land acknowledgement. So I’m located in Saskatoon, Saskatchewan, which is situated on land that is part of Treaty 6, where Treaty 6 First Nations lived. It’s also part of the traditional homeland of the Métis. As was said before, Parliament is situated on the unceded territory of the Algonquin peoples.

I think we need to reconsider those types of acknowledgements. After listening this morning to the powerful testimony of Ms. McIvor, Ms. Day and Ms. Palmater, in our reconciliation, we should be acknowledging the following: We should acknowledge the land that constitutes Canada has been taken from the original Indigenous inhabitants, and that the colonial and patriarchal practices of Canada have created numerous injustices that have severely harmed First Nation, Métis and Inuit peoples.

We should also acknowledge that the harms done to Indigenous women are different in nature than those that are done to Indigenous men. In particular, today, we should be acknowledging that there were harms done to Indigenous women by the federal government over many, many decades by taking away their Indian status in a process that Ms. Palmater has today called forced assimilation. I particularly like the suggestion that the apology for this should come from the federal government through the Prime Minister.

I think that’s a way of acknowledging that past discrimination against Indigenous women by taking away their status is severe and things need to be done.

With regard to the context for Bill S-3, I’m going to give you a very brief snapshot of the legislative history to give you an idea of how long this has been going on.

It was in 1869 that the Gradual Enfranchisement Act revoked Indian status from Indian women who married non-Indian men, but Indian men who married non-status women did not lose their status.

In 1876, the Indian Act granted Indian status to these non‑Indian wives, and in 1951, the Indian Act was amended to revoke the status of adults whose paternal mothers and paternal grandmothers were non-status. This is known as the double‑mother rule. As has been mentioned before under Bill C-31 in 1985, a United Nations case spearheaded and initiated by Sandra Lovelace-Nicholas, Indian status was restored to Indian women who lost their status by marrying out and her children were granted status. There were two categories of status created, section 6(1) and section 6(2), and the second-generation cut-off status was created and is still operational today.

In 2010, under Bill C-3, grandchildren of Indigenous women who lost status by marrying out were granted eligibility for status. In both cases, Bills C-31 and C-3, the government knew there were outstanding registration issues that should have been addressed but they did not do that.

When you come to Bill S-3, it was received in the Senate in October 2016, and it became very clear early on that the bill did not remove all sex-based discrimination as the government witnesses had claimed it would do. So the Standing Committee on Aboriginal Peoples very soon decided we would suspend study of the bill, and we would do everything possible to ensure that what is called a “6(1)(a) all the way” amendment was enacted and we were able to fulfill that promise by diligent work by the committee and agreement by the Senate as a whole. I’m just going to leave it at that.

With regard to the two outstanding issues, this has been addressed by the previous speakers, the first one being the registration issues. The major objection by the government to removing the 1951 cut-off date that would restore the status of descendants of Indigenous women back to 1869 was they were afraid that hundreds of thousands of newly registered status Indians would be created and this would overwhelm the individual bands and create a huge financial drain for the federal government to provide resources for the new status Indians to fund non-insured health benefits, to provide post-secondary education support and so on.

As was said before, the department expected 270,000 to up to 450,000 applicants to apply, but only a small fraction of that estimate has been received so far.

According to the final report on the implementation of Bill S-3 released in December 2020, only about 28,000 applications had been received and only about 10,000 had been successful in gaining their status. For context, I might add that after Bill C-31 was enacted, 13,000 descendants of Indigenous women gained status, and under Bill C-3 about 38,500 were registered.

So I have to ask myself, why have there been so few applicants? The previous speakers have addressed this. Part of the answer might be because the modelling data were significantly flawed and vastly overestimated the potential numbers of new registrations. It’s also possible that the goal of assimilating us into mainstream society succeeded and perhaps many with matrilineal roots in the pre-1951 era have no interest in reclaiming their Indian status. But I suspect that a significant part of the low application rate is due to the complexity of the bill and how opaque it is. It is very difficult to understand and very difficult to explain in plain language.

I looked at the information on the Indigenous Services Canada website. It was not helpful. It was either vague or, when I looked at their diagrams and the text that accompanied it — this is it here and you probably can’t see it — there are some little rectangles. I looked at those. Basically, two of them I could not understand. I’ve been through this bill many, many times. I looked at this and thought if I can’t understand this, and I have reviewed this and understand it, I thought, inside-out, then how is someone in the public who has no formal knowledge of it going to figure out what it is they’re trying to get at. So the messaging is nowhere near clear enough, nowhere near simple enough that anybody on the street can understand if they’re eligible to apply.

Why is it done that way? I suspect it’s because they have not bothered to sit down with Indigenous women, they have not bothered to sit down and test drive their messaging with people from the local communities, they haven’t gone to the friendship centres to ask what their opinions might be on this message and ask them if they understand what they’re trying to get across. Are they working with local First Nation communities, communities that are nearby, like Kitigan Zibi? Could they not go out there and test drive their messaging? The public messaging, as has been said by the former panel members, is not good enough. They really need to get the message out there. That might be a key way of getting more descendants to apply.

The second outstanding issue is the removal of any remaining sex-based discrimination. During our study, several witnesses LEAF, Pamela Palmater, David Schulze and the Indigenous Bar Association, listed examples of situations where there was still sex-based discrimination in qualifying for Indian status. Has the government looked at those? Is the government going to address those? I would ask Indigenous Services Canada and Justice how they are identifying any remaining sex-based discrimination. Are they just looking at the court cases, which is a long, involved process to do it? Are they taking a proactive approach by examining amendments that have already been put forth, such as suggested by the witnesses I just listed? Are they examining the unfair clauses in the 1951 Indian Act? They’re laid right out there. All you need to do is look at them. It’s not that difficult. Are they doing that? They already have a lot of information that has been pointed to already.

Bill C-15 has been enacted. So Indigenous Services Canada and Justice should be committed to achieve gender equality in the Indian Act rather than their past practice of trying to delay or limit equality for Indigenous women.

I would conclude by saying APPA has played a very good role, and I’m confident that APPA will continue to do so. I would emphasize what the previous speakers have said: Loss of status is not a trivial issue. It is important to the health, safety and well-being of the descendants of the women who lost their status.

I would like to put in something positive. I think we need a new word to describe what is happening to Indigenous women because of the operation of sexism and racism, and the new word would be misogynkwe, misogyny against kwe, which is the Ojibwa word for “woman” and close to the Cree word for woman, which is iskwew. We need to focus on the unfortunate and unique circumstances that oppress Indigenous women. Thank you.

The Chair: Thank you, Senator Dyck.

I will invite Ms. Cora McGuire-Cyrette to begin her opening remarks.

Cora McGuire-Cyrette, Executive Director, Ontario Native Women’s Association: Thank you.

[Indigenous language spoken.]

As the Executive Director of the Ontario Native Women’s Association, the oldest and largest Indigenous women’s organization in Canada, ONWA has a history of supporting Indigenous women who have suffered from gender-based discrimination with the Indian Act for the past 50 years.

Before I begin, I want to acknowledge the bravery, wisdom and leadership of numerous Indigenous women who have fought the battle of addressing the racial and gender-based discrimination within the Indian Act. Without them, we would not be here today continuing this advocacy. I will be framing my presentation today based on two key points, and while I do not have the time today to explore in depth, it is imperative that they are kept in mind while we continue.

First, Indigenous women have human rights. The fact that Indigenous women continue to be overrepresented within almost all systemic issues here in Canada is evidence that Indigenous women have had a unique and devastating experience with colonization in Canada that continues today, as we are no longer seen a sacred but rather a burden to society. ONWA advocates that an Indigenous gender-based analysis must be applied to all federal, provincial and territorial decision-making.

Second, the United Nations Declaration on the Rights of Indigenous Peoples applies to Indigenous women both at an individual level and at a collective level. For instance, Article 18 of UNDRIP affirms that “Indigenous peoples have the right to participate in decision-making in matters . . . through representatives chosen by themselves . . .” — as well as in our own institutions. From this, ONWA asserts that it is fundamental that Indigenous women have the right to their own agencies.

Over the years, ONWA has engaged with Indigenous women on the Indian Act. It’s clear that the Indian Act continues to negatively impact Indigenous women and girls at a systemic level. We recognize that, unfortunately, the Indian Act is now connected to our identity and the right to belong to our communities, nations and families.

In 1996, the Royal Commission on Aboriginal Peoples identified key actions for change, which included that healing must take place first for nation building and self-government to be successful. Additionally, it spoke to the need to restore Indigenous women’s voices, expertise and participation within decision-making at both political and social levels.

ONWA’s Reconciliation with Indigenous Women: Changing the Story of Missing and Murdered Indigenous Women and Girls (2020) report provides clear recommendations for change. Our report is based on 50 years of listening and engaging with over 5,700 Indigenous women, and this report continues not to be included within the Federal Pathways nor the National Action Plan. Our report says that we cannot restore our communities and nations without addressing the systemic issues that we as Indigenous women continue to face, which includes the restoring of our roles and responsibilities within our communities and the need for substantial investment into Indigenous women’s healing and safety as part of addressing the residual discrimination from the Indian Act. Our recommendation number six is the restoring of Indigenous women’s inherent rights. The Indian Act has disrupted our value system and has been replaced with patriarchal values that continue to exclude Indigenous women.

In 2016, the federal government established a nation-to-nation policy and chose for their nation building partners only three national Indigenous organizations. This policy discriminates against Indigenous women and girls as it does not recognize us as legitimate partners. The majority of Indigenous women and girls live off reserve and continue to face violence 365 days a year all across Canada, both on and off reserve.

As I conclude I will highlight four essential recommendations. First, the Government of Canada must implement a nation-to-nation plus framework that includes meaningful engagement with Indigenous women and invests in our agencies in the development of any federal policy and funding formulas. This is inclusive of all Indigenous women and their agencies in communities, not limited to only national Indigenous organizations, as the majority of agencies are not connected to national Indigenous organizations.

Two, put the appropriate investments into the implementation of the registration of women and their children under Bill S-3. Indigenous women were told by Indigenous Services Canada that completing the application process for status could take up to three years. For some elders, even one year may be too long to wait.

Three, complete the remedy of sex discrimination as was identified in the case of the McIvor v. Canada decision by the United Nations Human Rights Committee. Only one part of this remedy has been implemented, as you have heard today. It is essential that you also address the residual discrimination within communities with immediate investments in healing. Without it, Indigenous women and their families who have their status reinstated will continue to experience challenges and hardships.

Finally, develop a strength-based education campaign for First Nation communities and for women who want to apply. We know that this legislation was not well received by all First Nations. The significant challenges that some First Nations face in caring for their current membership means that the return of new members is seen as undue hardship.

In closing, I encourage the committee to review our Reconciliation with Indigenous Women report in full, as it provides a roadmap of restoring the balance needed in our communities. Meegwetch for your time today.

The Chair: Thank you, Ms. McGuire-Cyrette.

Adam Bond, Manager of Legal Services, Native Women’s Association of Canada: Thank you, honourable senators. My name is Adam Bond, and I am the manager of legal services with the Native Women’s Association of Canada, or NWAC, currently located in the municipality of [Technical difficulties] in Quebec, the traditional territory of the [Technical difficulties]. I would like to thank the committee for inviting me to appear today as part of your review of the implementation of Bill S-3.

NWAC is currently in the process of finalizing our final report on the effectiveness of Bill S-3 and remaining issues under the legislation. As such, I’m not in a position to provide any final official positions or recommendations from the organization yet. That’s coming in a few weeks. But I will be able to speak to some of the issues related to the implementation of the bill, some of the successes, challenges and ongoing issues.

I hope to make four points. The first is that Bill S-3 has largely been effective in addressing the issues that the legislation was designed to address, and the government has achieved important successes in the bill’s implementation. Second, despite these successes, there are ongoing challenges. Third, Bill S-3 did not address all issues of inequality under the registration provisions. And fourth, the Indian Act is very likely fundamentally incompatible with the United Nations Declaration on the Rights of Indigenous Peoples Act.

To my first point, Bill S-3 has largely addressed the issues it was designed to address, and the government has made some progress. For instance, the sex-based distinctions related to the cousins issue, the siblings issue and the omitted minor child issue have been removed, and the 1951 cut-off date has been removed. With respect to the implementation, Indigenous Services Canada has worked with stakeholders to promote awareness of the legislation, including with NWAC. As of mid‑March, they had processed 85% of the 45,000 applications they received under Bill S-3 to date. We welcome the reduced processing times and encourage the government to move further to enhance these service standards as quickly as possible. This is an area of significant frustration for many applicants.

To my second point, despite these successes, there are many challenges that persist. Despite the engagement and communication work that Indigenous Services Canada and national Indigenous organizations such as NWAC have implemented, there is still quite a bit of confusion about the registration provisions. As was touched on earlier, this is something to do with the difficulty to follow these provisions. They’re very complex and complicated. They refer to pre-1985 sections of the act that are not publicly available, so it’s hard to even understand what they’re referring to. It also requires applicants to have a very thorough knowledge and understanding of their own genealogy.

Also, the government continues to maintain a burden of proof in matters of unknown and unstated parentage of balance of probabilities, despite subsection 5(6) setting out that the burden of proof in such matters is every reasonable inference in favour of the applicant.

To my third point, there are pressing issues of equality that persist in the registration provisions. Some of these include the age and marital status-based distinctions of the paragraph under 6(1)(a.3). This is resulting in siblings of the same parent who were born before and after 16 April 1985 being differently entitled to status for no other reason than the age and marital status of their parents. The second-generation cut-off has disproportionate adverse effects on single mothers in particular.

The expansion of entitlement under section 6 raises issues of identity and belonging. There are many newly entitled individuals under Bill S- 3 who have been removed from their Indigenous cultures for generations. Resources and supports for these communities are needed so that women and their descendants can be reconnected with their communities.

The quote unquote voluntary enfranchisement was not addressed by Bill S- 3 and the Indian Act does not allow individuals to deregister.

My final point, the Indian Act is very likely fundamentally incompatible with the UNDRIP Act. Regardless of any adjustments that might be made to these provisions, the coming into force of the UNDRIP Act creates a legislative conundrum. That act requires the Government of Canada to take all necessary measures, working in consultation and cooperation with Indigenous peoples, to ensure that the laws of Canada are consistent with the declaration. Just one example, Article 33 of the declaration codifies the right of Indigenous peoples to determine their own identity and membership, whereas the registration provisions of the Indian Act established the fact of controls over entitlement to First Nations membership.

Yet the Indian Act does also protect important rights and entitlements that are guaranteed to First Nations. No matter the adjustments to the registration provisions, the federal legislation applying pan-Indigenous rules to membership in First Nations is simply not compatible with the declaration.

While amendments to address the issues of ongoing inequalities are important for the short term, Canada needs to turn its mind toward working with First Nations to prepare a roadmap for the repeal of the Indian Act in such a way that the rights and entitlements of First Nations are recognized and protected by the colonial legislative schemes abolished. This concludes my opening remarks. Thank you.

The Chair: Thank you, Mr. Bond. We will now begin the question-and-answer session. If you could, just limit your questions to one for this round. Time is of the essence, and then we’ll get a chance to go to another round.

Senator Christmas: Thank you, panellists, for joining us this afternoon. I want to give Senator Dyck the opportunity to elaborate on her second point.

As you remember, senator, when we were discussing Bill S- 3 in the committee, we made the choice of going with an amendment that was called “6(1)(a) all the way” which we were hoping would eliminate all sex-based inequities in the act. You’ll recall quite clearly how the House of Commons rejected our amendment, but when the bill came back you were most strong, and I want to thank you for standing up to the House of Commons and insisting that the Bill S-3 would respect “6(1)(a) all the way.”

In your second point, you had mentioned that not all sex-based discrimination was removed. Senator Dyck, could you elaborate about — now five years after the fact — what do you see as the inability of Bill S-3 to remove all sex-based discrimination?

Ms. Dyck: It’s good to see you, Senator Christmas. It’s been a long time since I’ve looked at that, but if you look at the witness testimony from LEAF, from Pamela Palmater, David Schulze and the Indigenous Bar Association, they do have a list of what they saw as the outstanding or residual issues that need to be addressed. Some of those I think were included in the bill but not all of them.

In fact, apparently the government is planning legislation this summer to address voluntary enfranchisement. This is a case where I believe it was a father who voluntarily enfranchised so that his children would not be taken away to Indian residential school, because his children would no longer be status Indians. So there was voluntary enfranchisement. In some cases the children were enfranchised, or lost their status, and as adults they maybe don’t want to have that done, so that kind of enfranchisement where, for example, there should be cases where a husband has enfranchised and then consequently his wife would be enfranchised, so that would be taking away her rights to be in control of her own status.

There still are those kinds of issues but if you look at the examples given by previous witnesses, and also if you go back to the 1951 amendments, it does lay out exactly what the restrictions were. You don’t need to wait for the court case. Just go back to the actual amendments in the Indian Act and get rid of them.

Senator Christmas: Thank you, senator. If I could ask the same question to Mr. Adam Bond. Mr. Bond, you also mentioned the second-generation cut-off and the age and marital distinctions that were causing further discrimination. Can you elaborate on those two points?

Mr. Bond: Yes, the second-generation cut-off on its face appears to be non-discriminatory because it’s not in the language of the legislation because a distinction on the basis of sex.

It’s in the discriminatory effects that women are being discriminated against, and there is some discussion about this in the Gehl decision in the Ontario Court of Appeal. It’s about whether the different burdens or the different risks that an Indigenous woman, a single mother, for instance, might face wanting to register her child. It can, unfortunately, in some circumstances, put women at risk, either economically, socially or even for their physical safety. This relates to identifying status fathers of the applicant child.

This issue is also important to the unknown and unstated parentage policy as I alluded to earlier. The government is maintaining its position that the standard, the burden of proof in such cases is a balance of probabilities, whereas a simple reading of 5(6), it’s clear that Parliament indicated something lower than that.

The discrimination under the paragraph 6(1)(a)(3), this is right on its face. This is clear, and we’ve heard from many people who have been directly affected.

So you’ll have an individual, an older sister, for instance, who was born in 1983 to parents who were never married, and at some point along the genealogical line they had become entitled under 6(1)(a)(1) or 6(1)(a)(2). On that, then this individual would be entitled to status. They will have a younger sister born in 1987, for example, that will not be entitled to status under 6(1)(a)(3). They will be entitled to status under 6(2). This is the difference in entitlement status based on their age and the marital status of their parents.

Senator Christmas: Thank you, Mr. Bond.

Senator Pate: Thank you to the witnesses for joining us. It’s wonderful to see all of you, and in particular wonderful to see you back, Senator Dyck.

I want to pick up on something that was raised in the previous panel and that you raised, Ms. McGuire-Cyrette. The impact of the delays and the failure of the government to provide information to communities is that not only is it delaying registration, but the government is saving money as a result of that. In addition, communities are signing on to other agreements based on their current registration status, which then actually encourages discrimination within the community, if you will, in terms of lateral discrimination to try and prevent women and generations from being registered.

It strikes me, as I think Dr. Palmater spoke about, that this is a form of unjust enrichment that we’ve seen in other places — the First Nations Child & Family Caring Society cases and others.

In the end, there needs to be compensation, it strikes me, but I’m curious what you think this committee should recommend in terms of potential remedies to address this and ways forward out of this situation that would assist Indigenous peoples and not further jeopardize their situation and unjustly enrich the federal government.

Ms. McGuire-Cyrette: Thank you. What’s needed is investments in healing today. We’re already investing in Canada, but the investments that are going into Indigenous women, as you know, for instance within the justice system, where it’s costing about $250,000 to $400,000 a year to house an Indigenous woman in the justice system where we are now currently over 50% represented, and that’s not even including the amounts for child welfare and especially if children have a disability and the costs there.

The investments that the federal government is currently putting toward Indigenous women is definitely within discriminatory practices, and there is no reconciliation for the harms done for Indigenous women. What we need to start looking at is investments into specialized healing for Indigenous women. As you know, colonization has affected us differently. It was mentioned through the Truth and Reconciliation Commission of Canada. Justice Murray Sinclair spoke to the violence that girls experience within the residential school system right through to the Indian Act and now missing and murdered Indigenous women and girls and human trafficking, for instance, and it continues.

If we don’t start to invest into healing programs and services, our children will have to continue this advocacy. We need to begin with investments in healing and safety immediately.

Senator Pate: Senator Dyck, I was asking if you had a comment in terms of what this committee could be recommending in light of the unjust enrichment and the situation that the Canadian government is exacerbating at this time by failure to act.

Ms. Dyck: Failure to act is a continuation of the discrimination. There has been a long-standing tactic used by every level of government and every political party. It isn’t just Liberals or Conservatives, it’s every government that there is no political will. By not doing anything, you’re actually complicit in continuing the disadvantage to Indigenous women.

Now that Bill C-15 has been passed encouraging the government to fully implement the UN Declaration on the Rights of Indigenous Peoples, that can be used as a reminder that the federal government has committed itself to removing all inequities with respect to Indigenous people and including women.

So that is a tool that the Standing Senate Committee on Aboriginal Peoples did not have when we were dealing with Bill S-3 because Bill C-15 had not yet been enacted, but we did rely on the United Nations Human Rights Council, UNHRC, with respect to Sharon McIvor’s case where they did rule that Canada had contravened the gender equality rights and gave Canada a 60-day or something deadline to remove that discrimination from Bill S-3. I hope that was helpful.

Senator Pate: Do you think we should be making a recommendation for immediate compensation in addition to the registration requirements that the previous panel suggested?

Ms. Dyck: The tricky part is they built into the bill a clause that says there was no liability. How do we get around that? I do believe there should be compensation, but in that bill and in the previous bills, certainly in Bill C-3, there was no liability clause, and I suspect it was probably also in Bill C-31. But perhaps that clause could be challenged as well, saying that is discrimination or unconstitutional. Maybe that’s a way around it. But certainly there should be compensation.

When I think back in my own case, I didn’t get my status back until I was 40 years old. So there were a lot of health benefits that would have been very useful to me growing up, particularly as a child. So perhaps my health today would be better.

I could have had dental benefits. I would have better teeth now. All those kinds of things. And they are not trivial. If you don’t have good dental care, you can actually end up with abscess teeth, which then leads to heart problems, and you could actually die. Apparently, within emergency suites, a high number appears in emergency hospitals because of dental problems.

So that’s creating a significant harm to people that don’t have dental health care. Now the government is committed to instituting dental care based on income levels for low-income Canadians.

If we can afford to do that, why can’t we afford to compensate descendants of Indigenous women who lost their status? It’s a matter of what your priorities are. Indigenous women typically have not been high on the level of priority.

Senator Arnot: Thank you to the witnesses in this panel.

My question or observation is for the Honourable Lillian Dyck. Many people may not know, but Lillian Dyck has been a champion for Indigenous rights, treaty rights and human rights in Saskatchewan, and well deserved, and certainly she’s been recognized to receive the Order of Canada, and rightly so. So I commend her for that.

Former Senator Dyck, many people attribute the lack of support, the lack of will, the lack of understanding and the lack of proper implementation of this Bill S-3 to the dollar amount. Is connecting the cost or dollar amount in the recognition and implementation of the rights of Indigenous women either correct, fair or just in Canada in the 21st century?

Ms. Dyck: It’s not a fair position. Why is it that when it comes to Indigenous women the cost always comes up? In fact, what really got me is when we were studying Bill S-3, the minister and the department said they didn’t want the full implementation of the “6(1)(a) all the way” amendment because they needed to consult with First Nations. But, of course, that’s not consulting with the people who are affected because they are going to the reserves, to people who are already registered, and in all other bills that we received there was no consultation. When the committee tried to ask them to do it, they refused. So that just shows you the kind of discrimination that goes on. It has always been used as an example.

Indigenous women are as entitled to being resourced as Indigenous men. So it’s certainly not a fair comparison. You could probably find within either the UN declaration or in the Canadian Human Rights Act clauses about proper funding to equalize the funding between Indigenous men and Indigenous women. Certainly, the equality rights are there. Equality rights of Indigenous women and men are also in our Constitution. I can’t remember which particular section it is, but they are also in our Constitution as well as within the Canadian Charter of Human Rights and Freedoms.

Senator Arnot: I have a follow-up question, chair, if there’s time.

The Chair: We will come back to you, Senator Arnot, if there’s time.

This next question is on behalf of Senator Patterson to Senator Dyck.

I would like to welcome Senator Dyck back to the committee we worked on together for many years and particularly on Bill S-3. It’s great to see you again participating in our ongoing work.

Both you and Shelagh Day emphasized the complexity of the application process, and if you couldn’t understand that pamphlet accompanying the application process, then how could a person unfamiliar with the nuances and complexities of this issue feel comfortable?

Ms. Day said it should be revamped.

Ms. Dyck: I’m sorry. I didn’t quite hear the last part.

The Chair: Ms. Day said that the application process should be revamped. It’s very complex.

Ms. Dyck: Is the question, should the application process be revised and simplified? If so, yes. I haven’t looked at the process itself, and certainly, Senator Patterson, you know more than the rest, because you were deputy chair at the time we studied this bill. You know how incredibly complicated it is.

Listening today to Mr. Bond go through it where we’re talking about section 6(1)(a)(c.01), then this date, the pre-1985, post-1985, “pre-this,” “pre-that,” it’s incomprehensible.

You have to sit there with your pencil and translate as you go along. The information that I showed you, I really don’t know what they are getting at. They really need to work with community members and say, “This is what we’re trying to say, is it getting through?” That’s where I like working with my assistants in my office. I would say, “This is what I think it means; what do you think?” Then we kept trying to simplify. You really do need people who are educators to translate it into language that everybody can understand, speech writers, professional communicators. What we have right now is probably produced by the department, who are so used to their language, which, I must say, I think is deliberately confusing so only they can understand what it’s all about.

I don’t know. Perhaps that is their reason to limit the number of applications. I would hate to say that is their reason, but even the department themselves, when they came to us, they would put things up to show their graphs, and even they had mistakes. Something really needs to be done to simplify it and put it into plain language.

The Chair: Thank you, Senator Dyck.

[Translation]

Senator Audette: Thank you very much. I’ll speak in my official language of choice [Innu-Aimun spoken].

Thank you to all those women who have marched for decades to change, with little commitment at the federal level, these amendments that I feel are the epitome of systemic discrimination.

Do you think, dear colleague, Ms. Dyck, that the system has indeed created and continues to create this discrimination, and that within our communities, because of the lack of information, we end up believing that these are not people who are welcome — and, therefore, that we are feeding lateral violence and that the organizations on the ground, such as the Ontario Native Women’s Association, Quebec Native Women, or those that are very close to the communities, have an important role to play in terms of education, promotion and information?

In your experience as a senator — and I put this question to the representatives of all the organizations present on this panel — have there been any studies indicating that, since 1985, some communities have developed open membership codes and have been refused by the federal government, whereas those that have adopted restrictive membership codes have been accepted by the federal government?

According to the James Bay Agreement approach, to be a beneficiary, you need a parent to pass on the nation to the child. Has the Senate, the federal government studied this, or should it be recommended that we look at how we have treated the difference between men and women for so many years — restrictive, open, James Bay Agreement and so on?

[English]

Ms. Dyck: Thank you. You listed quite a few questions there. I don’t know if I got them all down, especially the last one.

I definitely do believe that the federal government, particularly Indigenous Services Canada and Department of Justice, I do believe there is a high level of systemic racism. This was previously alluded to by Dr. Palmater, where there now is a court case by former employees of the oil and gas section of Indigenous Services Canada that are going to court over systemic racism against them.

Certainly, when you look at the resistance of the federal government to actually remove gender discrimination against Indigenous women, that is, to me, a very clear sign that it is systemic racism and sexism. As I said, I termed it, “misogynkweism,” specific discrimination against Indigenous women. Sadly, it’s part of our culture, and it’s difficult to eradicate as long as the leaders continue to exhibit it. Certainly when we saw the witnesses from the Department of Justice and from Indigenous Services Canada when we were dealing with this bill, they were just so — I can’t think of a nice word, but it was like they had the authority, and they were just refusing to listen to what some of the witnesses had said and just kept saying over and over about how great this bill was, despite evidence to the contrary. To me that’s a clear symptom of systemic racism and gender discrimination together.

I do believe that organizations like the Ontario Native Women’s Association, NWAC and the Quebec Native Women Inc. have a role to play. During our study and press releases, we did have press releases with the members of those organizations to go to the media, to push the government, to make public pressure in order for the government to follow through on their promises.

I must say that the Feminist Alliance for International Action, FAFIA, Shelagh Day and her team, were very effective in mounting a public education campaign.

You asked a question about band membership in the different communities, but I don’t have access to that information. I don’t know whether anyone has actually done that. I do know that there are sections under the Indian Act where bands can take over the authority to decide who is or who is not a band member. I suspect, although I’m not positive, that probably in most cases I think it’s still up to the federal government through registry in the Indian Act, which we all know is not working.

Bands could be losing out. There were bands, like the Odanak band that appeared, where Stéphane Descheneaux was from and the Yantha sisters. Some bands are seeing their numbers dwindle because of the second-generation cut-off, and that’s why they were in favour of opening the registry, because at some point in time with second-generation cut-off, the numbers will go down, and you will have insufficient numbers to maintain your community.

The Chair: Thank you, Senator Dyck.

The time for this panel is now complete. I wish to thank our witnesses for joining us today.

(The committee adjourned.)