THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Monday, May 2, 2022
The Standing Senate Committee on Aboriginal Peoples met with videoconference this day at 2 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: I would like to start by acknowledging that the land on which we gather is the traditional and unceded territory of the Algonquin Anishinaabe people, who have lived on this land since time immemorial.
My name is Brian Francis. I am a senator from Epekwitk, which is the Mi’kmaq word for Prince Edward Island. I have the pleasure of being the chair of the Standing Senate Committee on Aboriginal Peoples.
I would like to take a few minutes to introduce the members of the committee participating in person in today’s meeting: Senator Arnot from Saskatchewan, Senator Clement from Ontario, Senator Coyle from Nova Scotia, Senator Duncan from Yukon, Senator Pate from Ontario and Senator Lankin from Ontario.
Today we are continuing our study on An Act to amend the Indian Act in response to the Superior Court of Quebec’s decision in Descheneaux c. Canada (Procureur général), also known as Bill S-3, which dealt with concerns with inequities under the Indian Act.
I would like to introduce our panel of witnesses with us today. We have Jeremy Matson; Corinne Dettmeijer-Vermeulen, member of the UN Committee on the Elimination of Discrimination Against Women; and Ryan Beaton, lawyer, from Power Law.
Please note that Mr. Matson, Ms. Dettmeijer-Vermeulen and Mr. Beaton will provide opening remarks of up to five minutes each. We will subsequently move to a question-and-answer session. Normally, I would ask that you try to keep questions and answers short whenever possible; however, today we have a little more flexibility.
Having said all that, I now want to invite Mr. Matson to begin his opening remarks.
Jeremy Matson, as an individual: Hello. My name is Jeremy Matson. I am a Squamish Nation member, and I have direct ancestral connections and ties to the Musqueam, Tsleil-Waututh and other coastal Indigenous communities. My Indigenous bloodline is unbroken. My children’s Indigenous bloodline is unbroken and the same for future generations. Canada has dehumanized my bloodline for the better part of 100 years.
I would like to say thank you for the invitation to present and provide a written brief to your honourable committee.
To the United Nations CEDAW, Convention on the Elimination of All Forms of Discrimination against Women, committee, you have provided the utmost meaningful decision and views in communication 68/2014 that will forever change the direction of my family and me.
In Canada, we are still in the day and age of the “doctrine of discovery,” an archaic mindset and racist approach of the Government of Canada and its judicial bodies and their desire to reign supreme in state sovereignty rather than Indigenous sovereignty about our basic human rights and our Indigenous identity.
Every time the Government of Canada provided the Indigenous population a legal avenue for redress on the issues of the doctrine of discovery, here in Canada, Canada and its judicial bodies have undermined, deprived and created barriers to access to justice, in particular against our Indigenous women and their descendants.
Through the Canadian Bill of Rights in the 1970s, the Supreme Court of Canada produced an unwanted and unwarranted decision in the Lavell and Bédard case about Indigenous women and their families concerning the Indian Act and the discrimination that is written into it. Through the Charter of Rights and Freedoms, the McIvor case went up to the Supreme Court of Canada, and the Supreme Court of Canada refused to address the issues once again against our Indigenous women and their families through the Charter context. Through the Canadian Human Rights Act and the Matson and Andrews case, following the repeal of section 67 allowing for Indigenous peoples to challenge discrimination written into the provisions and wording of the Indian Act, again the Supreme Court of Canada and lower courts, along with the Government of Canada, refused to deal with discrimination against Indigenous women and their descendants, and the Supreme Court of Canada removed the Canadian Human Rights Act right for Indians to challenge sections 6, 10 and 11 of the Indian Act and all the cultural rights and benefits associated with those provisions.
These failed forms of redress through the Bill of Rights, Charter and the Canadians Human Rights Act have produced decisions from the United Nations in Lovelace, McIvor and now Matson.
The United Nations Permanent Forum on Indigenous Issues in February 2014 wrote an informative paper E/C.19/2014/3 on the impact of the doctrine of discovery on Indigenous peoples, including mechanisms, processes and instruments of redress. The Permanent Forum on Indigenous Issues mentioned the following at paragraph 3:
In all its manifestations, “discovery” has been used as a justification framework to dehumanize, exploit, enslave and subjugate indigenous peoples and dispossess them of their most basic rights, laws, spirituality, worldviews and governance and their lands and resources. Ultimately it was the very foundation of genocide.
At paragraph 26:
As affirmed in article 40 of the UN Declaration: “Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.”
At paragraph 8 of the same report:
Every Member State must respect and apply the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations.
In the last paragraph of this report, the first sentence, paragraph 38:
History cannot be erased. However its course can be changed to ensure the present and future well-being, dignity and survival of indigenous peoples.
In closing, Canada’s approach with its Indian Act registration and band membership provisions runs contrary to its international obligations and calls from international monitoring bodies. Indigenous people have no reasonable legal forum to go to in Canada to address the ongoing discrimination written into and practised by Canada when administering the Indian Act. This defies Canada’s international commitments as a member state of the United Nations and the Organization of American States.
Thank you.
The Chair: Thank you, Mr. Matson.
Ms. Dettmeijer-Vermeulen, I invite you now to give your opening remarks.
Corinne Dettmeijer-Vermeulen, Member, Committee on the Elimination of Discrimination Against Women: Thank you, senator.
I am honoured to appear before you as a representative from CEDAW, and I hope I can be of assistance to address our recommendations as made and our views.
CEDAW, the Committee on the Elimination of All Forms of Discrimination Against Women, has called on Canada to fully address the long-standing, gender-based discrimination in the country’s Indian Act that continues to affect descendants of Indigenous women today. In our findings, published early March, we found that by being prevented from passing the Indigenous status onto new generations, Mr. Matson and his children were victims of violations rooted in the discriminatory nature of Canada’s Indian Act.
Mr. Matson’s grandmother in British Columbia was forcibly taken away from her community and placed in a residential school. She married a non-Indigenous man and ceased to be considered Indigenous, according to the Indian Act.
Prior to 1985, the Indian Act contained explicitly discriminatory provisions against Indigenous women, which took away their status if they married non-Indigenous men. Since then, despite numerous legal challenges, Canada has amended the discriminatory provisions with piecemeal changes rather than ending the discrimination entirely.
It was not until 2019 that Mr. Matson’s children were recognized as Indigenous. Nevertheless, under the Indian Act, they do not have the right to freely pass on their Indigenous status to the next generation.
After multiple failed attempts to challenge the Indian Act in Canada, Mr. Matson brought his petition to the committee. The committee found that the provisions of the Indian Act are discriminatory to the descendants of Indigenous women who had been disenfranchised. The entire issue stems from the disrespect of Indigenous peoples and their fundamental right to self-identification. It is further exacerbated by the unequal criteria by which men and women are permitted to transmit Indigenous status and identity to their descendants.
By comparison, descendants of Indigenous Indian grandfathers would never have lost their status and would always be able to pass on their status to their children.
The committee therefore considers that the 1985 cut-off rule under the amendments of 2019, even if not currently based on the gender of the descendants themselves, perpetuates in practice the differential treatment of descendants of previously disenfranchised Indigenous women.
As a result of the disenfranchisement of his maternal ancestor, Mr. Matson cannot freely transmit his Indigenous status and his Indigenous identity to his children. As a consequence, his children, in turn, will not be able to freely transmit their status to their own children.
The committee notes that the state party has acknowledged that, according to Indigenous Services Canada, the new cut-off date will likely require legislative changes, precisely because of the current inequities based on the previous explicit gender-based discrimination.
The committee is therefore of the view that the consequences of the denial of Indian status to the author’s maternal ancestor have not yet been fully remedied, being precisely the source of the current discrimination faced by Mr. Matson and his children.
As a consequence, the committee concludes that the state party has breached its obligations under articles 2 and 3 of the Convention. The committee recommends that Canada provide appropriate reparation to Mr. Matson and his children, including recognizing them as Indigenous people with full legal capacity and allowing them to freely transmit their Indigenous status and identity to their descendants.
It also calls on Canada to amend its legislation to enshrine the fundamental criterion of self-identification and to provide registration to all matrilineal descendants on an equal basis to patrilineal descendants. Thank you very much for your patience.
The Chair: Thank you, Ms. Dettmeijer-Vermeulen.
Mr. Beaton, I now invite you to provide your opening remarks.
Ryan Beaton, Lawyer, Juristes Power: Thank you for the invitation to speak with you today. I represent 16 plaintiffs from three families who filed a Charter challenge last June to the registration provisions of the Indian Act, so to the provisions as they exist today after full adoption of Bill S-3. These plaintiffs are children, grandchildren and great-grandchildren of individuals who submitted applications to enfranchise under earlier versions of the Indian Act.
This case grew first and foremost from the truly tireless efforts of Sharon Nicholas, one of the plaintiffs. Sharon is a citizen of the Haida Nation under the Haida Nation’s own citizenship laws and is a member of the Old Massett Village Council. Sharon was registered under section 6(2) in 1988, following the amendments in Bill C-31, and she has worked for many years now to try to help her own children, Terra, Nicky and James, gain status as well. Tara, Nicky and James have citizenship under the Haida Nation’s own laws, but their applications for Indian status have been repeatedly denied.
Sharon’s grandfather, Wilfred Laurier Bennett, applied for and was enfranchised in 1944. Wilfred had been forced to attend a residential school, and he wanted to protect his children from that experience. That was his primary motivation for applying to be enfranchised. Sharon’s mother was four years old at the time. She automatically lost status through the enfranchisement, as did Wilfred’s wife and their other children.
For most of Sharon’s life, she thought that her mother had lost status when she married Sharon’s father, a non-Indian. Sharon was excited and relieved in 2010 when Bill C-3 was adopted. She thought, at that point, her children would finally be entitled to register. It was only after another round of denied applications that Sharon examined in detail the meaning of so-called voluntary enfranchisement under the Indian Act. She came to understand that Bill C-3 did nothing to address her family’s situation.
I met Sharon at a legal aid clinic in Victoria in 2017 when she came looking for advice. Truthfully, it was Sharon who taught me a lot not only about her family experience but also about the legal mess — the way in which the registration provisions actually work legally to grant or deny status. When we could not get anywhere with the Indian Registrar at Indigenous Services Canada, we eventually filed the Charter challenge, as I say, in June.
Now, there are many angles to the case. Of course, I’m happy to provide detailed answers to any questions you might have. For now, I just want to stress one core aspect of the case. That’s a particular form of ongoing sex-based discrimination in the registration provisions. We strongly disagree with Canada’s claim that sex-based discrimination has been eliminated through Bill S-3.
The simplest way to understand this core aspect of our case is this: on the one hand, an Indian woman who married a non-Indian man was stripped of status upon marriage, while, on the other hand, an Indian woman who married an Indian man was stripped of the right to decide whether to keep her status. Only the husband could apply for enfranchisement, and that would automatically entail the enfranchisement of the wife and any of their minor, unmarried children.
From our perspective, both situations clearly involve sex-based discrimination that was perpetuated in the 1985 amendments in Bill C-31. Bill C-3 and Bill S-3 remedy forms of sex-based discrimination tied to the first situation, of an Indian woman who married out, but did nothing to address the sex-based discrimination tied to the second situation of an Indian woman who was enfranchised involuntarily pursuant to her husband’s application.
If I understand Canada’s current position correctly on this, they now characterize this as a residual effect of sex-based inequity while maintaining that sex-based discrimination has been eliminated.
Obviously, from our perspective, no blame should be placed on Indian fathers or husbands who enfranchised. In our pleadings, we also argue, more generally, that the family history of enfranchisement itself should be recognized as an analogous ground under section 15 of the Charter. Again, I’m happy to speak to that in more detail if you have any questions.
I will end by noting there have been positive developments in our case. We have an abeyance agreement in place right now with Canada in the litigation. In a joint press release issued in March, Minister Hajdu stated her commitment to make best efforts to get remedial legislation introduced in Parliament by this summer recess. So we certainly hope that the work of this committee will help keep the government as tightly as possible to their own stated timeline. Thank you.
The Chair: Thank you, Mr. Beaton. We will now begin the question-and-answer session. Before I open the floor to my colleagues, I want to ask a question of Ms. Dettmeijer-Vermeulen.
The recent report by the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, known as CEDAW, notes that the second generation cut-off rules are not in line with the criterion for self-identification as the expression of the right to self-determination of Indigenous peoples. Would you please elaborate on this point for us?
Ms. Dettmeijer-Vermeulen: Self-determination of one’s self-identity is a human right, which is what is stated in our findings. While CEDAW mostly looks at gender discrimination, and that’s the basis of our findings and our views, this is also part of our findings.
The Chair: Thank you for that. The floor is now open for senators to ask questions.
Senator Duncan: Thank you very much to the witnesses who have appeared before us today. I’m substituting today for Senator Hartling from New Brunswick.
I reviewed the material prior to attending the meeting, and I listened to Mr. Beaton’s comments with interest. I would just like to address the issues and, pardon me, to also thank the committee staff for their support in preparing for this meeting.
There were some questions suggested regarding the applications for status. What I didn’t see addressed is any kind of an appeal provision should an application be denied. I’ve learned that applications are governed in policy, not set out in the act, and that appeals are made to the registrar who made the decision. This seems inconsistent to me with the principles of administrative justice. I wonder if Mr. Beaton could address the question of the appeals when status is denied and the process for such appeals.
Mr. Beaton: Thank you, Senator Duncan. The Indian Act sets out what they call a protest of the registrar’s decision. You’re right that if a person applies for status and receives a denial, they can protest that within three years to the registrar. That is a bit of a strange one, but it does provide an opportunity to furnish extra information if that has come up.
I have worked in situations where a person has been denied and then I was asked to help with the protest. We were able to gather more information for the registrar and it was successful. There are at least some situations where it can be a helpful tool.
If the protest is denied, the Indian Act allows for an appeal to the Superior Court of the province in question. There is the possibility of an appeal to court if the protest is not met with a satisfactory response in the eyes of the applicant.
Senator Duncan: First of all, an appeal to the court is a different process than what’s laid out, for example, if someone applies for employment insurance or the Canada Revenue Agency. There are clear timelines and processes set out.
Another one of our witnesses today mentioned piecemeal changes to the Indian Act. Have changes been contemplated to this appeal process when status is denied to make it more user-friendly, for example? Because an appeal to the court is going to involve legal fees, whereas an appeal to an administrative tribunal will not necessarily involve legal fees.
I’m wondering if changes have been contemplated and/or recommended before.
Mr. Beaton: I’m not aware of any planned changes. Protests to the registrar can be incredibly frustrating because of the huge delays. There are unbelievable delays in applications and then in hearing back once someone files a protest, even before going to court. Hiring a lawyer and dealing with the legal system is a tremendous challenge for people who don’t have legal representation. Even just dealing with the application process and the protest to the registrar is incredibly complicated and difficult for someone who doesn’t have legal representation.
I don’t know of any planned reforms by Canada. I would note that in this time of commitments to implementing the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, Article 27 of UNDRIP says that where the rights of Indigenous people are concerned, states shall establish processes of adjudication in consultation with Indigenous people. I’m not aware of anything that’s planned in this respect. But if we’re looking at that article of UNDRIP, it would make a lot of sense to say there should be a body that is not solely the court or solely involving Crown representation but that has joint Indigenous-Crown representation or that is in some way set up with Indigenous peoples so that these reviews of applications for Indian status, of protests and possibly of appeals go to bodies that have been properly informed by Indigenous representatives.
Senator Pate: Thank you to the witnesses for all of your work on this and so many other issues.
My first question is for Ms. Dettmeijer-Vermeulen. As was just alluded to, the UN Declaration on the Rights of Indigenous Peoples requires that our Minister of Justice here in Canada prepare and implement an action plan that is to be tabled next year. Your committee looked at the issue of registration and the fact that the criterion in the Indian Act actively violates the Declaration on the Rights of Indigenous Peoples when it comes to self-identification.
What recommendations would you make to ensure these issues are dealt with by the government, both in the action plan but also, most importantly, in action?
Secondly, one of the challenges we have heard from a number of witnesses is the fact that although the government estimated the changes in Bill S-3 would result in between 270,000 and 450,000 new registrants, in fact, fewer than 28,000 applications have been processed. Certainly, Dr. Palmater, when she was before us, spoke about this seeming to be an act of interference by the government in terms of the ability of people to access their now legislative rights, in addition to the issue of some people still not being eligible.
I’m curious what you would recommend this committee do in terms of addressing that. If the other witnesses want to comment as well, I’d be happy to hear their comments.
Ms. Dettmeijer-Vermeulen: Thank you, senator. Primarily, our recommendations are targeted at taking away the discrimination that has been perpetuated. One of the things we have alluded to in our findings is that with every new legislation, law or rule that concerns Indigenous people, Indigenous people should be part of the process and should be heard.
Those would be the main recommendations of the committee. Your colleague repeated what I called the “piecemeal reparations.” Every time Canada changes just a little bit. We’ve seen that not just Mr. Matson, but other persons, have journeyed a long way within the judicial system to get a little bit changed. The committee recommends that Canada not go for more piecemeal changes but, generally speaking, end the discrimination that is being perpetuated.
This is a special case for Mr. Matson and for everybody involved and, of course, for Canada. It was also a special case for the committee. We have long talked about the admissibility, Mr. Matson being a man, but then the optional protocol talks about “persons” and not “women.” We have explained why we think Mr. Matson and his children are victims of discrimination in their own right.
I hope that part was clear. It was one of the most difficult parts of the findings that we issued.
Coming back to the merits, as we’ve explained, we do see this discrimination. The recommendation is that Canada ends this, and for that, Bill S-3 has to be revised. As I said, not piecemeal change but a generous change in the law so as to prevent other people from — Maybe now that Mr. Matson’s problems or claims have been met, other people will have similar claims, and this whole journey will have to go on. The committee feels that it’s been quite a long journey for many people in this field.
Senator Pate: Did anyone else want to comment on the administrative process and the challenges of registration?
Mr. Matson: As an Indian in Canada, I have gone through the registration application process and so have my family members. I went through the protest unit. My file sat with them for around a decade. I had protested information and provided a bit more information. I had conversations with the Indian registrar and all its staff. Mr. Allan Tallman and Macdonald were the two registrars I dealt with over their careers.
That appeals process ended and there was a final decision. Unless there’s solid information, there will not be more information than what you’re typically given in the first round of applications. Some other family information may come up, as Mr. Beaton mentioned, that may favour the individual when applying. When it comes to the administrative process, it’s cut and dry when it comes to the law. There is not a lot of liberal leeway for individuals who are applying the law to say, “Oh yeah, we’ll let you go through on this one.” For myself, I applied to the Canadian Human Right Commission because section 67 of the Canadian Human Rights Act was an administrative function through the Human Rights Tribunal and the Human Rights Commission. Indians couldn’t use it from 1977 to 2008. Then in June 2008, Canada repealed it, which would have been the equivalent of going to the court system. Through the Charter context, we had another legal avenue as Indians here in Canada, but the Supreme Court of Canada and its justice department and the government removed that option for us as Indians.
It trickles over. It’s now all Canadians now who can’t access the Canadian Human Rights Act if there is something with pension plans or maternity or paternity leave. All Canadians cannot access the Canadian Human Rights Act thanks to the Matson and Andrews decision, which superseded the Murphy decision that was on appeal up to the Supreme Court of Canada. Through the administrative process and the steps after that, we are severely limited as Indians here in Canada in asserting our rights. We are in a judicial mess with the government and also with the courts’ interpretation of our identity and our access to justice. If we go through this process again — and we will; we have seen it every single time since 1985: four amendments to the Indian Act — and have no judicial options that are accessible — The Charter is accessible, but it is prohibitive in time and cost and requires legal knowledge and technicalities that a layperson, and a lay Indian like myself, would have severe troubles accessing. I have limited means, so I can’t access the Charter or pay counsel.
That goes a little further beyond your question, but it’s my only opportunity, probably, to address the committee.
The Chair: Thank you, Mr. Matson. I want to jump in and ask a question of you. Your children are only entitled to registration under section 6(2) of the Indian Act — it is actually the same for my three grandchildren — which means they cannot pass status to their children unless the other parent has status. Could you please comment on how this situation impacts your sense of identity and belonging as a First Nations person as well as that of your children?
Mr. Matson: Thank you for the question. The section 6(2) generation cut-off rule is genocidal in nature. It is assimilative. It violates all of Canada’s international obligations. It violates Articles 8 and 9 of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. It violates Article 30 of the Convention on the Rights of the Child. The list goes on. I addressed this to the Supreme Court of Canada in person, and it fell on deaf ears and blind eyes.
The second-generation cut-off rule violates our human rights, and it has to go away. It must go away. This is something not just voiced by me but by the Assembly of First Nations, the Native Women’s Association of Canada, and the list goes on and on. The Canadian Bar Association — their letter to the United Nations Committee on the Elimination of All Forms of Discrimination against Women was made public. You can find it. I provided it to this committee. These are not just my views but the views of a vast majority — and not a Matson coalition but a group of individuals — who all came together to make a positive decision in communication 68/2014.
The majority of section 11 Indian bands mirror section 6(2) of the Indian Act. For your status within community — for band membership — the section 6(2) generation cut-off rule eliminates the option to be a band member. It disallows you to be in community with your people. The majority of section 10 Indian bands — and AFN studies and Dumont-Smith’s report highlight this — use section 6 of the Indian Act as the base criteria for their membership codes. I think it is anywhere from 70% to 80% of those bands. So it affects everybody. When you are in an urban community, like mine in the Vancouver area, we have procreated with a lot of people who are not of an Indigenous background because they find the Indians attractive. We have procreated with a lot of people. The second-generation cut-off rule in the Descheneaux and Yantha case, paragraph 2(30) mentioned that the Descheneaux and Yantha communities would become extinct in 100 years. We are approaching the 90-year mark for them to be eliminated. It affects every single Indian band and person in this country.
Senator Coyle: Thank you very much to all of our witnesses: Mr. Matson, Ms. Dettmeijer-Vermeulen and Mr. Beaton. This has been a very helpful session this afternoon.
It’s almost hard to ask a pointed question because there are so many pieces to this puzzle that you are raising for us today — this issue of the perpetuation of discrimination from so many aspects. Ms. Dettmeijer-Vermeulen, you talked about the need to amend Bill S-3. I would like you to talk a little more about that. I would also like — if you felt like it or anyone else felt like it — for you to speak to what else needs to be done beyond Bill S-3 to deal with this perpetuation of sex-based discrimination. That’s one question I have.
I’ll get my second question out now and see who would like to answer it — possibly Mr. Beaton. Mr. Beaton, my question is about this point that you made, if I understood it correctly, where you had the situation where women married outside of their Indigenous community and lost status and are now being reinstated under Bill S-3. You also mentioned the issue of an Indigenous man choosing enfranchisement and therefore his wife and offspring and future generations losing status because of a decision they were not necessarily any part of. As well, you mentioned the overall issue, historically, of people losing status because of choosing enfranchisement.
Could you talk about that and what the repercussions of that are, and what we should be looking at? I know it’s related to the scope of the study we are doing, but it also touches on a much bigger area — that case that you described, which I’m sure was a common situation, where somebody did not want their children to be subjected to the residential school experience and therefore chose enfranchisement to spare their children, as I understand it.
I know I’m asking a lot of questions, but I feel like these are pieces to a very important puzzle. As Ms. Dettmeijer-Vermeulen says, we keep taking a piecemeal approach. I would like to hear from Ms. Dettmeijer-Vermeulen first about what we need to do with Bill S-3 and anything else to deal with this sex-based discrimination, and then I would like to hear about this other issue of enfranchisement and where we need to go on that one. Thank you.
Ms. Dettmeijer-Vermeulen: Thank you for the question, senator. I hope you understand that I cannot give any recommendations outside of the findings and the recommendations that the committee has written down.
Senator Coyle: Of course.
Ms. Dettmeijer-Vermeulen: So looking at our findings and all the documents that were presented to us, it is still discrimination whether you come from a matrilineal or a patrilineal lineage. And that is gender discrimination.
I can’t give any other explanation about that, but that is a perpetuation of gender discrimination, and it still affects people like Mr. Matson and his children, and it all stems from the original discrimination that was in the Indian Act.
I’ll try to help you, but if, in the change of the Bill S-3, this difference is eliminated, that would mean the end to the discrimination.
I know that the state party has at one point said that there was no more discrimination of lineage, that it was a question of dates, but the committee found it wasn’t. The committee found very clearly that it means a difference whether or not you are seen as part of Indigenous status and you can transmit that status. It’s different from when you stem from a grandmother or a grandfather. That is very clearly is the discrimination that we are talking about.
If you want to change, that’s the change that you should be looking at. That’s the recommendation that the committee has made.
Mr. Beaton: Thank you, Senator Coyle, for your question. Canada has acknowledged, in its own report to Parliament on Bill S-3, it was a common motivation among those who did apply to enfranchise. The common reason was the desire to keep their children out of residential school.
I can say in our case there are three families — three fathers, grandfathers, great-grandfathers — who franchised, who submitted applications. And two did so primarily to keep their children out of residential school. One did so because he wanted to vote and to own property. These are the decisions that were faced in the process Canada has described as “voluntary enfranchisement.”
The simplest way to get at the big picture of what our case is trying to do is to explain — as we have told Minister Hajdu — that what we are asking for in the remedy is that everyone today should be entitled to status to the extent they would be if there had never been a family history of enfranchisement. In other words, family history on enfranchisement should play no role in denying someone’s status today. In the press release we had with Indigenous Services Canada, Minister Hajdu said she is committed to accepting that and making that change. Her exact words are the following:
The government of Canada is committed to working with First Nations, and other impacted partners, to address inequities in the registration provisions in the Indian Act relating to enfranchisement to ensure family histories of enfranchisement no longer affect entitlement to registration under the Act.
That will not address the second generation cut-off. As Mr. Matson has spoken so eloquently about, it is a major issue that will have to be addressed.
What our case says in part, and you have heard this from previous witnesses — Shelagh Day, Pam Palmater, Sharon McIvor — that when that cut-off is addressed so there is no longer this provision in place restricting the numbers going forward of First Nation members, that remedy has to make sure not to leave out the descendants of women who were discriminated against. They have to be brought in so the remedy is available to everyone.
The heart of our case is a request that family history of enfranchisement no longer has any impact on people’s status today. We understand that Canada has committed in principle to that change and that Minister Hajdu has said she will make best efforts to get legislation introduced by this summer. I know it can be a challenge to keep government to its stated timeline. We hope the work of this committee and other voices will push the government to stick to its commitment.
Senator Coyle: Thank you.
Senator Arnot: Thank you, witnesses. I want to say that I’m very sympathetic to these arguments. I know that this issue has been around for a number of decades. It was supposedly cured by Bill C-31 years ago but obviously wasn’t, and the second-generation cut-off rule is anathema. I have a general question. I would like to hear the witnesses address this issue. Do you agree that the Indian Act should be abolished and should be replaced by a robust self-government model directed by the three groups themselves: the First Nations, Inuit and Métis?
Ms. Dettmeijer-Vermeulen: This is really not something I can comment on. I would like to give you back the question, and I hope that the others can. This is not something that the committee has addressed, which means that I can’t elaborate on that.
Mr. Matson: I went before the House of Commons Standing Committee on Indigenous and Northern Affairs, or INAN, your twin committee. To move away from the Indian Act, there is a lot of work to be done before you take that approach.
First of all, you are stripping our Indigenous children from our Indigenous identity on a daily basis with our applications to be Indian. It should be more free-flowing, like a one-parent rule, like the James Bay or the Inuit, when we bring the Inuit into this, like you had brought in, they have a one-parent rule for our identities.
The identity provisions need to be cleared up, which is section 6(1) (a) through (f) and section 6(2), which deals with the second generation cut-off rule. All those subjects need to be addressed, including for the descendants of Indigenous women, and soon-to-be enfranchised men and women.
When we are given our section 6 Indian status, we have to apply to our community if you are a section 10 Indian band associate, and that’s me. I have been a 6(1) Indian since 2017, and my children, to correct the CEDAW committee, were registered as section 2 Indians under the Indian Act in 2017. I changed my status from a 6(1)(c) Indian in 2017 into 2019 to a 6(1)(a).
Moving away from the Indian Act and then having the jurisdiction to go to each Indigenous body of First Nations, Inuit and then Métis — there is a lot of work to be done with the Indian Act. It is still a viable instrument to have a relationship between individual and community and the Crown or the Government of Canada. Is it a usable instrument? Maybe a title change. Maybe things like assimilation and genocide removed from the Indian Act, and allowing us to freely pass on our Indigenous identity to the next generation is a basic foundation and human right that is not something that we have here in Canada yet.
Moving away is probably away from my lifetime. My kids or grandkids might see the Indian Act being removed and abolished, but to get it up to human rights standards from the international standpoint, which is the foundation for Canada, we have a lot of work to do with the Indigenous, non-Indigenous, the House of Commons and the Senate.
Mr. Beaton: I would largely echo what Mr. Matson said. There is obviously a ton of work to do if we are going to move away from the Indian Act and finally abolish it. I don’t think I’m well positioned to speak to all the work that would have to happen to properly fund a First Nations government to take over aspects of what the Indian Act does today, what we would need to move forward.
I would say there is a growing awareness and understanding in Canada of the darkness of the Indian Act and what it represents. But I think there is a lot of work to do in education. Just from my own part, I did not understand a lot about enfranchisement until I started working on this case. I know from talking to many non-Indigenous Canadians, there is very little understanding. There is a lot of shock when people find out just what it meant and the kinds of choices people faced when they were trying to decide whether to enfranchise on behalf of themselves and their families. I do feel there is a sense in Canada that we would like to move away from the Indian Act and everything it represents, but there is a lot of work to do to make that happen and also to gain a greater awareness across Canada on the whole of the concrete details of the Indian Act and what it did and what it represents.
Senator Arnot: I agree there is a lot of work to do, but it’s probably work that needs to be done, because if you have a nation-to-nation relationship, it should be better reflected than what it is. That’s my only comment. I recognize that it is difficult, but I also think it is a big part of reconciliation. The fact that there is a lot of work to be done by parties, including the Government of Canada, should not be an impediment to remedy the fundamental inequity, which is this colonial relationship, which is perpetuated in what you’re dealing with today. That’s my own opinion. Thank you.
Senator Clement: Bonjour and Shé:kon to the witnesses. Thank you and Nia:wen. My name is Bernadette Clement. My home community is Cornwall, Ontario, on the traditional territory of the Mohawk people of Akwesasne. It is weird to hear the word “enfranchisement.” It’s backwards when you read this. I kept having to reread to understand; it just defies all sense.
I have three questions. I’ll just ask them and then leave it to you. The first ones are for Mr. Matson. I wonder if you are satisfied with the recommendations made in the committee. Do they go far enough? I know that you were trying to find a process where you would be able to get somewhere. Is this enough? If not, what more do you need to see, and where else are you going to go? Also, you speak about being a layperson. You are the most terrifically competent layperson I have ever seen in my life. Do you have any comments on how to make information and resources more accessible to laypeople?
For Ms. Dettmeijer-Vermeulen, you mentioned the word “reparations” as part of your recommendations. Could you provide more detail around that? Maybe not reparations in this specific situation, but maybe you could speak about what type of reparations your committee recommends in other cases.
For Mr. Beaton, you say you have 16 plaintiffs. How did you find these plaintiffs? How many more are out there? I know Senator Pate was getting at that. How many people are we talking about here? In your work as a lawyer, how do you do that? How many other lawyers are doing this type of work? How many people are waiting to get into this type of case law?
Mr. Matson: Thank you for the questions. Canada is supposed to read the CEDAW views and the recommendations as a whole document. A lot of people, lawyers and senators, usually just scroll down to the actual recommendations themselves. When you go up and read the whole document — and every senator who is in this Red Chamber and whom I’m addressing right now should do so — you will see Canada was found to be in violation of access to remedies and access to justice. They found the Charter to be an illusory option. They found the Canadian Human Rights Act not to be a viable legal option.
When I submitted my information, I highlighted Articles 1, 2, and 3 of the convention, along with UNDRIP and other laws through other treaty bodies through the UN, that I had highlighted.
When it comes to access to justice under the CEDAW convention, I addressed (a) through (f) in my submissions and address to the committee, but Articles 2(c) and 2(e) entail obligations in relation to effective protection through remedies that are particularly available and accessible to women who wish to assert their rights before relevant courts and other institutions. This means that the Charter and the Canadian Human Rights Act, which were two viable legal options, are no longer accessible. We saw that with the McIvor UN decision, which showed that using the Charter and going through the judicial system was not a process that was up to the United Nations standards. The Human Rights Act was not accessible and not a viable legal option here in Canada. So where else do we go?
It is not just about Indian status. It is also about community. That was provided to the UN CEDAW. They did make mention of that in their views. When it comes to the second-generation cut-off rule, that was addressed in their views. It wasn’t in their recommendations but in their views.
I will reiterate that the one-parent rule is an option for the Senate. That would be compatible with the United Nations Declaration on the Rights of Indigenous Peoples and also the American Declaration on the Rights of Indigenous Peoples through the Organization of American States, which the Senate and the House also have to obey. It’s an international regional commitment of Canada to make sure it is in line with that.
I heard Pam Palmater and Shelagh Day and Sharon McIvor. They are all heroes of mine for the work they have done and continue to do. When you lay the UNDRIP over top of the Indian Act, the American declaration or any of the other international laws, it does not align with international human rights standards.
There are solutions out there, and they are basic, but it is just a matter of trying to convince the policy-makers who are before the Senate and House. I think the Senate has a better grip on the issues than the House because the House’s positions are more transient in nature. The Red Chamber, the ones who fill that up, are there for a lifetime, and they are great thinkers. That’s all I have to say.
Ms. Dettmeijer-Vermeulen: I will second what Mr. Matson said. In our views, it is not just the recommendations in the end; it is the whole view that should be read. I’m sure that you are the ones who will repair the legislation. You will do so because all parts of these findings are equally important. We did find that the Charter was not a viable way for Mr. Matson to get at the results he wanted.
On the question of reparations, the committee never really names a sum on reparations in its recommendations. The reparations are primarily recognizing Mr. Matson and his children as Indigenous people with full legal capacity who can freely transmit their Indigenous status and identity to their descendants. That is a very important recommendation. But at the same time, this has not been the case for many years, and it has taken Mr. Matson many years to come to this point. What the committee usually says is that reparation is something that the state party and Mr. Matson should talk about and come to an agreement. It is not the committee that sets a sum to anything.
Mr. Beaton: I know Senator Clement asked a question of me as well. Is there time to respond?
The Chair: Yes.
Mr. Beaton: First, I would just note quickly that “enfranchisement” is a strange word to get your mind around. If anything, the French term, “émancipation,” seems even worse.
That aside, the substantive question was about the 16 plaintiffs and how many more there might be? As I said, I met Sharon Nicholas through legal aid. I was volunteering at a legal aid clinic and met her. Her family members joined the case, of course, through her.
In terms of other families involved in the case, it was initially word of mouth. David Schulze, a lawyer who has worked on these issues and has testified before the Senate and House of Commons as well, knew that I was working on this case and referred some families to me.
The plaintiffs involved have paid nothing for the case. At one point we did secure some external funding, but most of the work has been pro bono.
I submitted a brief that contains some demographic information. I submitted it only this morning, so I’m sure you haven’t had a chance to look at it in any detail yet. In the 2019 report by Canada to Parliament, there was a study of the demographics by Stewart Clatworthy. Based on the information he had available, he provided an estimate that would identify the number that would become newly entitled if the remedies we were asking for are implemented. The number he came up with was approximately 2,400 individuals. He acknowledges that it’s an underestimation because he didn’t have much data before 1951. For purposes of comparison and using the same data, he estimated that 85,000 or 86,000 would become newly entitled under Bill S-3. It’s an underestimation because of the data he’s using, but it gives you a sense of the order of magnitude. Thousands of individuals and families would be affected by the case we’ve brought forward, but it remains a number that is a couple of orders of magnitude smaller than are estimated to have gained entitlement through the changes in Bill S-3.
Senator Lankin: I want to associate my thinking and comments with Senator Clement, Mr. Matson, with respect to your description as a layperson. I’ve always believed that people with lived experience have much to teach. You’re very knowledgeable, and I thank you for what you’ve brought before us and the other panellists as well.
I was also going to ask a question about the abolition of the Indian Act at the time Bill S-3 came to the Senate. One of the things the minister of the day talked about was a developmental approach to abolishing the Indian Act.
In general, the response, in consultation with First Nations, First Peoples, made it clear that many want us to get there, but there’s a lot of work to do beforehand: work of reconciliation, bringing equality, equity, supports, services, financing and capacity building for self-governance in those communities that have not yet embraced self-government. There’s a lot of work to do there.
I also want to acknowledge and perhaps atone a bit. I feel like I carry a burden of guilt. I was the sponsor of Bill S-3 in the Senate at the time, and we thought we were doing some work. I was also one of the legislative leads within our group on UNDRIP. Through those two experiences, I had an opportunity to understand the complexity and the web as we try to fix it piece by piece and how difficult it is.
I’m encouraged by the possibility of UNDRIP becoming the key overriding guidepost for us in addressing this issue and the assertion of the right of self-declaration, self-determination of Indigenous status.
I wonder if anyone could speak to that. Do we require immediate interventions in changing parts of the Indian Act now or should we put our efforts toward bolstering consultation on the implementation of UNDRIP and ensuring that the review of laws is consistent with UNDRIP and, in fact, clearly put a focus on the uncompleted work with respect to gender discrimination and other forms of discrimination stemming from, for example, enfranchisement or the second-generation cut-off?
Could you advise us on what you think is the best approach at this moment — particularly, may I say, Mr. Beaton, with the undertaking you’ve received from Minister Hajdu with respect to at least part of the issues that we are talking about today?
Mr. Beaton: I’ll start on that point specifically. In our case, many of the plaintiffs whom I represent have spent decades hearing about consultations. Their situation will be addressed somewhere down the road, or it will be bundled into a large transition away from the Indian Act. I mentioned 16 plaintiffs. Unfortunately, one of the more elderly plaintiffs passed away at the end of last year. A number of the plaintiffs and families who contacted me after media coverage are in similar situations, and they’ve spent a long time trying to get this remedy.
I appreciate the importance of ultimately having a larger transition away from the Indian Act. However, from our point of view, we’ve identified concrete Charter violations that are happening now and that are denying status to individuals who are entitled to it under the Constitution. Canada, while obviously not explicitly acknowledging the Charter violations, has accepted that there is an inequity here that needs to be addressed.
From the point of view of the plaintiffs I represent, it’s time to get that done. I understand the legislative process is never simple, but I don’t see why there would be opposition to this particular remedy. I think the minister, in committing to making best efforts to get the legislation in by the summer, has indicated her view that this ought to be a relatively straightforward fix to address the concrete Charter violations that have been raised by the plaintiffs in this case. I don’t see that as an obstacle to the other component you mentioned, which is a focus on UNDRIP and on addressing what it would mean to move away from the Indian Act. I don’t see how this change would be an obstacle to that. That’s what I would add on behalf of the plaintiffs whom I represent.
Senator Lankin: Mr. Chair, if I may, I wanted to acknowledge that I am substituting on the committee today for Senator Michèle Audette of Quebec.
The Chair: Thank you for that.
The time for this panel is now complete. I wish to thank Mr. Matson, Ms. Dettmeijer-Vermeulen and Mr. Beaton for joining us today.
Before we suspend, we need to pass a motion related to staff attendance at meetings, as well as access to the transcript when the committee is in camera.
Are there any objections that, notwithstanding the motion adopted by the committee on March 21, 2022, the committee allow one staff of committee members not present to be allowed to remain during the in-camera portion of the meeting today?
Hon. Senators: Agreed.
The Chair: Is it agreed that the committee allow the transcription of the in-camera portion of today’s meeting, that one copy be kept with the clerk of the committee for consultation by committee members or the committee analysts, and that the transcript be destroyed by the clerk when authorized to do so by the Subcommittee on Agenda and Procedure but no later than at the end of this parliamentary session?
Hon. Senators: Agreed.
(The committee continued in camera.)