Proceedings of the Standing Senate Committee on
Issue 7 - Evidence
OTTAWA, Monday, November 29, 2010
The Standing Senate Committee on Human Rights, to which was referred Bill
C-3, An Act to promote gender equity in Indian registration by responding to the
Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of
Indian and Northern Affairs), met this day at 4:07 p.m. to give consideration to
the bill; and to examine and report on the role that the Government of Canada
may play in supporting the promotion and protection of women's rights in
Afghanistan after Canada has ended its combat operations in 2011.
Senator Nancy Ruth (Chair) in the chair.
The Chair: Today we begin a study on Bill C-3, An Act to promote
gender equality in Indian registration by responding to the Court of Appeal for
British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern
Affairs). We are delighted to welcome as our first witness today the Minister of
Indian Affairs, the Honourable John Duncan.
Hon. John Duncan, P.C., M.P., Minister of Indian Affairs and Northern
Development, Federal Interlocutor for Métis and Non-Status Indians and Minister
of the Canadian Northern Economic Development Agency: As Senator Andreychuk
pointed out, this is my maiden voyage as minister before the Senate. It is
certainly not my first time before a Senate committee, however. I have done that
a few times in my career. It is good to be with friends, including someone I
spent many years with on the Fisheries Committee in the past, Senator Baker. We
did not have any fun at all, did we?
Senator Baker: No. I was the chair.
Mr. Duncan: Senator Baker was good at delegating, I can tell you that
much, especially when it came to the West Coast.
I think it is rather appropriate, as a minister from British Columbia, that
we are dealing with legislation that is created as a consequence of legal
actions in that province.
Madam Chair, thank you for inviting me to appear before the Committee to
discuss Bill C-3, the gender equity in Indian Registration Act. I appreciate the
Committee's willingness to review the proposed legislation swiftly and
Before I begin my remarks, I would like to introduce the officials who are
with me today: Roy Gray, Director of Special Legislative Initiative in the
Resolution and Individual Affairs Sector; and Brenda Kustra, Director General of
the Governance Branch, both from Indian and Northern Affairs Canada, INAC. Also
with me is Martin Reiher, Senior Counsel with the Department of Justice Canada.
Bill C-3 focuses on two objectives. First, the legislation would eliminate a
cause of gender discrimination in the Indian Act as identified by the Court of
Appeal for British Columbia. Second, it would a meet the deadline imposed upon
Parliament in the court's ruling. Last year the Court of Appeal for British
Columbia ruled that two paragraphs in section 6 of the Indian Act discriminate
between men and women with respect to registration as an Indian, and, therefore,
violate the equality provision of the Canadian Charter of Rights and Freedoms.
Rather than have its decision take effect right away, the court suspended the
effects of its declaration for 12 months, giving Parliament until April 6, 2010,
to amend certain registration provisions of the Indian Act. Bill C-3 was
introduced on March 11, 2010, but it was soon apparent that the passage of the
bill would not be possible before the deadline, and our government sought two
extensions — the first until July 5, 2010 and the second until January 31, 2011.
This means that we have little time for Bill C-3 to be passed by Parliament
if we are to meet this deadline. When the court granted the second extension in
July, it hinted that it may not view a further application for an extension in
the same way. The court stated at that time:
We would remind the Attorney General, however, that a final determination
by the courts that provisions of the Indian Act violate constitutional
rights is a serious matter that must be dealt with expeditiously.
Madam Chair, if we fail to meet this deadline, a key section of the Indian
Act could become invalid and create a legislative gap that would affect
residents of British Columbia and those affiliated with British Columbia First
Bill C-3 proposes to avert these consequences by amending certain
registration provisions of the Indian Act. Bill C-3 addresses the root of the
problem by providing a first-time entitlement to registration to eligible
grandchildren of women who lost status as a result of marrying non-Indian men.
During report stage in the other place, two motions were adopted to amend
Bill C-3. The first amendment restored clause 9, which had been defeated during
committee study. This clause would prohibit the courts from ordering
compensation, damages or indemnity for decisions made in good faith by
government officials or by First Nation governments based on the legislation in
place before the amendments to the Indian Act contained in Bill C-3 take effect.
Clause 9 protects not only the Crown but also First Nation governments who
made decisions with respect to programs and services that they offer to their
members. We believe this clause is an important provision because it clarifies
the law and avoids raising expectations that past decisions will be reopened or
past settlements renegotiated.
The second amendment improved the wording of clause 3.1 to reflect
recommendations of the legislative drafters. This clause, which was added at
committee, requires me, as minister, to report to Parliament on the
implementation of the bill within two years of the bill coming into force. The
changes clarify that it is the Minister of Indian Affairs and Northern
Development who would be responsible for reporting to Parliament.
The bill before you is narrowly focused to respond to the court's decision.
At the same time, I am aware that there are a number of broader issues related
to the question of registration and membership.
Last year, following a thorough review and analysis of the court's decision,
officials from Indian and Northern Affairs Canada held technical briefings with
representatives of five national Aboriginal organizations to seek their input on
the government's preferred approach to moving forward with legislative
amendments. Following those briefings, 15 engagement sessions were held
throughout the country to present the government's proposed response to the
McIvor v. Canada decision and to solicit feedback.
Hundreds of participants came to the engagement sessions, and many written
submissions were received. Several common themes quickly emerged, with many
comments pertaining to the broader issues of registration, membership and
I appreciate the fact that these broader issues are complex and that there is
a diversity of views among First Nations. However, given the short time frame
and in the interest of avoiding a legislative void in British Columbia, Bill C-3
proposes changes that directly respond to the Court of Appeal for British
Issues surrounding registration, membership and citizenship are complex and
as such, broader reform on these matters cannot be achieved overnight or in
For these reasons, the department has invited and received proposals from
national Aboriginal organizations in preparation for the possible launch of a
separate exploratory process on these broader issues. This will move forward if
Bill C-3 is passed. These broader issues will be explored through a joint
process to be developed in conjunction with the national Aboriginal
organizations and the participation of First Nation groups and individuals
across the country.
However, as important as this work is, it cannot take precedence over Bill
C-3. We must not lose sight of the fact that the proposed legislation before us
responds to a specific court ruling and prescribed deadline. As the court
reminded us in July, there should be no undue delay in passing Bill C-3 because
the bill ``deals with the specific issues that this court has identified as
violating the Charter.''
I believe that access to and protection of human rights should apply equally
to all Canadians — Aboriginal and non-Aboriginal.
That is why this government introduced Bill C-21, An Act to amend the Human
Rights Act, which extends fundamental human rights protections to all First
That is also why we introduced Bill S-4, the family homes on reserves and
matrimonial interests or rights act. I would like to take this opportunity to
thank you, Madam Chair, and members of this committee for your dedication in
reviewing Bill S-4 and the amendments adopted by this committee, which further
strengthened the bill. Bill S-4 provides a process for First Nations to enact
their own matrimonial real property laws that reflect the cultural and social
traditions of their communities. I look forward to its passage so the important
objectives can be realized.
And that is why we are working on Bill C-3 to comply with the Court's
decision regarding gender inequality under the Indian Act.
Madam Chair, Bill C-3 represents a progressive step to a country committed to
the ideals of justice and equality. I strongly encourage all members of this
committee to support Bill C-3.
Senator Baker: First, I would like to welcome the minister here to the
Senate committee and note that I spent many years with him in the House of
Commons and that he has made a great contribution to this country over the
years. He has dedicated himself to whatever task, as I recall, although he
belongs to a different political party than I do, but I have to make note of
My first question will be to the minister, and then I would like to question
the Department of Justice briefly.
Mr. Minister, you are saying that we are under the gun here, and we should
try to pass this as quickly as possible. You are suggesting no amendments be
made to the bill, and you are further suggesting that the bill addresses only
what the Court of Appeal of British Columbia said in its decision on McIvor
v. Canada. Is that correct?
Mr. Duncan: First, I will correct you. We belong to the same party; it
is called the coastal party.
Senator Baker: We are on the Fisheries Committee together.
Mr. Duncan: The decision was a narrowly defined decision. It dealt
with the grandchildren of mothers who had married out, and the legislation
addresses that issue. It became clear in all of our engagements before the bill
was tabled and after the bill was tabled that there is a huge area of discourse
dealing with who controls membership, citizenship and so on. The points of view
are divergent quite often.
To deal with the court's concerns, we are left with no choice but to address
the court decision quite narrowly, and then make a commitment. We have made a
commitment to engage in an exploratory process post-Royal Assent on the bill, if
we can get there. With five different national Aboriginal organizations, we have
committed to being a party to that. The department will provide the appropriate
funding for the process. All of the people who were engaged through the process
of Bill C-3 are aware of that process, and many people are gearing up for it.
Senator Baker: Mr. Minister, I do not think you could find, probably,
a group who represents the interests of Aboriginal women who would agree with
the confined nature of this legislation. I imagine all of the groups who made
representation to you opted for a broader bill that would encompass greater
rights for women. Is that correct?
Mr. Duncan: That might be a stretch. The divergence of opinion was
maybe the greatest on why membership is defined by the government as opposed to
Senator Baker: The judgment of the Supreme Court of British Columbia
in the first instance ruled in a far broader manner. If that ruling had been
taken on its substance and on its face, I do not think you would have the
criticism of the bill that you have today. The Attorney General appealed that
decision to the Court of Appeal of British Columbia and argued for a much
different interpretation than the judge had made at the Supreme Court of British
Now, here is the problem, minister: Do you believe that the bill can be
amended to encompass the broader aspect that the first judge in the first
instance had suggested and that many of the groups today will be suggesting that
to this committee? Would that be out of order in that it would be beyond the
scope of the bill? That is a very important question. What is your opinion on
Mr. Duncan: I concur that I believe it would be beyond the scope of
this bill, well and truly beyond the scope of this bill. That bill would be very
difficult to craft.
Senator Baker: My question is to the Department of Justice. How long
did it take for Ms. McIvor to go through the procedure that she went through to
obtain a judgment from the Court of Appeal of British Columbia? Is it correct
that an appeal was sought to the Supreme Court of Canada but was turned down? I
want you to reference that in the answer. How many years did it take her to go
through the process, being opposed all the time by the Attorney General?
Martin Reiher, Senior Counsel, Justice Canada: Ms. McIvor indeed
applied to be registered under the Indian register soon after the coming into
force of the amendments of 1985. It took, I believe, two years for the registrar
to provide an initial answer. She then protested the decision of the registrar
in 1989. At the same time, Ms. McIvor challenged the validity of the Indian Act,
and procedural matters were complex. In particular, it was the Attorney General
of Canada's position that Charter issues could not be dealt with within a
protest under the Indian Act. Therefore, two separate proceedings had to be
worked on at the same time. It took time to work on it with Ms. McIvor's
Then the judicial proceedings were kept in abeyance for a while. I believe
there were some funding issues on the part of the plaintiffs, so it took time
before the matter could proceed before the court. Also the large amount of
document collection to defend the validity of the Indian Act took time.
As to how long it took, the first time she turned to the court for a remedy
was in 1989.
Senator Baker: It took twenty years.
Mr. Reiher: It took twenty years.
Senator Baker: I know the chair wants to interject and stop me from
asking questions, but I am questioning you on a subject that is dear to the
The sober second thought here in the Senate is that some of us feel that all
such questions should be adjudicated as quickly as possible on their merits. The
actions of the Attorney General in consistently objecting to and representing
the other side, so to speak, in such a partisan manner should perhaps be looked
at in the future to give some semblance of deciding these questions on their
I have looked up the procedure that Ms. McIvor went through in this case, and
she was faced with motions to strike and motions to change pleadings, and those
motions mostly originated from the Attorney General. The year 2006 was filled
with these motions from the defendant, the Attorney General.
We have a justice here on this committee, and she can attest to the fact that
in criminal law, there is a code with the Department of Justice that each Crown
attorney would be a Minister of Justice. However, but that does not appear to be
the case in matters such as we have before us.
We pass a piece of legislation, and it takes 20 years to get a court judgment
on something all because the Attorney General is not interested in the beginning
in deciding the matter on its merits but instead takes a partisan view, as they
are the ones under attack. Do you have any comment on that? Is there a code of
conduct for Crowns in your department as there is for Crowns who prosecute
Mr. Reiher: I share your views about dealing with judicial matters in
a non-partisan way; that is for sure. The matters that had to be dealt with were
complex matters. The Attorney General of Canada must defend the interest of the
Crown, and that is what was attempted, I am sure.
This being said, you asked whether there is a code of conduct. All lawyers
are officers of justice and have to act in the interest of justice. I believe
this principle is considered important by each lawyer in the Department of
Justice. The approach in litigation has evolved in the last few years, and I
believe that the approach nowadays is more open, perhaps, than it used to be.
Senator Hubley: Thank you for your presence here today, minister. I
apologize for being late.
I have a question on the engagement sessions. These sessions took place
following the technical briefings that were carried out, as you noted, with five
national Aboriginal organizations. How might you respond to the view expressed
by First Nations people that engagement is not a substitute for meaningful
consultation? Is there a reason why the department did not undertake a more
comprehensive consultation process in relation to its proposed amendments on a
matter of great significance to First Nations peoples? Could you provide an
explanation of what is meant by an engagement session as opposed to other types
Mr. Duncan: The technical and legal difference is considerable.
Because we were responding to a court decision and wanted to respond in a timely
way, I think the engagement was seen as an appropriate response, a less
complicated, quicker and more collaborative way to do things. By talking about
engagement and an exploratory process, I think we have covered the bases quite
The government will not be the one running the exploratory process, which is
post-adoption of the legislation; the national Aboriginal organizations will be
running the process. We will be an interested observer and the one receiving
their input. Hopefully, this will work in a proactive way.
This question of registration is probably the part of the Indian Act that is
the most difficult to deal with. If you look at the 20-some self-government
comprehensive agreements across the country, they tend to still rely on the
registration provisions under the Indian Act. Everything else in the act can be
gone except for the registration provisions. This is a complex area, and we felt
we had to deal with the legal context that was presented to us by the court.
I do not know if there is anything Ms. Kustra or Mr. Gray would like to add.
Roy Gray, Director, Resolution and Individual Affairs Sector, Indian and
Northern Affairs Canada: Perhaps I could add something on the engagement
Part of the question related to what the engagement process looked like. I
can provide some information on that. A discussion paper was developed, and this
was all in the context of the understanding that this process was appropriate to
what was being done, which was, as the minister said, to develop legislation in
response to the court decision. A paper was developed that set out in broad
terms what the government's thinking was at that time as to how to respond to
the decision, and that paper was the basis for these sessions.
Getting back to the question, the purpose of the sessions was to provide
information on the government's thinking and also to elicit feedback. This was
done within a relatively short time frame, the driver again being the
time-limited suspension of the court decision.
We did get quite a bit of feedback, both at the sessions across the country
and in correspondence. However, by and large, as has been referenced, the
feedback really did not relate to what was being proposed in terms of a response
to the court action but, rather, to the broader issues that would form the
subject of the exploratory process.
Senator Hubley: Where did the 15 engagement sessions that you held
Mr. Gray: They took place right across the country. A couple of
sessions happened in Ottawa with the Congress of Aboriginal Peoples and the
Native Women's Association of Canada. Other than that, we worked with regional
First Nation organizations.
Senator Hubley: Was that in every province?
Mr. Gray: That was not in every province but in every region. I say
that because we had a meeting with the Atlantic Policy Congress of First Nations
Chiefs Secretariat in Nova Scotia. Yes, in every region certainly.
Mr. Duncan: I do have a list here of the 15 sessions, if you are
Senator Hubley: I am interested. Thank you.
Mr. Duncan: The following sessions took place in 2009: September 2,
Assembly of Treaty Chiefs Edmonton, Alberta; September 10, Gwich'in Tribal
Council, Inuvik, Northwest Territories; September 12, Congress of Aboriginal
Peoples Annual General Assembly, Ottawa, Ontario; September 24, First Nations
Summit, North Vancouver, British Columbia; September 25, Native Women's
Association of Canada, Ottawa — at their 35th annual AGM; October 14, Atlantic
Policy Congress of First Nations Chiefs Secretariat, Dartmouth, Nova Scotia;
October 18, Quebec Native Women Inc., Montreal, Quebec — at their AGM; October
22, Dene Leadership Meeting, Dettah, Northwest Territories; October 24, Ontario
Native Women's Association, Thunder Bay; October 26, Union of British Columbia
Indian Chiefs, Vancouver.
The Chair: Minister, if I may interrupt, it is at tab 3 of the
Mr. Duncan: It is tab 7 in my book.
Senator Hubley: That is fine; thank you.
Mr. Duncan: I have only four more to do.
Senator Hubley: Yes, I was counting.
The Chair: We believe that it is tab 3 in our books; it is all there.
Mr. Duncan: It is all there. I know what I have, but I did not know
what you have.
The Chair: Is there anything else, Senator Hubley?
Senator Hubley: Thank you, no, Madam Chair.
Senator Kochhar: Thank you, minister, for appearing before the
committee. As I understand, we are trying to argue that Bill C-3 does not go far
enough and that it is too narrow in scope. Is it because of the time constraint
that we want to pass this bill quickly to ensure that we meet the deadline? If
we do not pass this bill, what will happen? What kind of hardship will it bring?
How many will be affected by that? Can another bill be introduced to expand the
scope? Can we let this bill pass so we can deal with the court case? Can you
expand on that a little, please?
Mr. Duncan: Yes. We have been given three extensions, and the court
has basically lost its patience. If we do not get it through by January 31,
2011, there will be a vacuum in the law in British Columbia. Section 6 of the
Indian Act is declared null and void. We cannot register new entrants in the
province of British Columbia. In the course of one year, we normally register
2,500 to 3,000 people in B.C. New entrants would be not be able to register.
Theoretically, those who are registered in B.C. could be determined not to be
registered, or pre-existing. As a matter of policy, I do not think the
department would do that. However, that concern has been expressed to me by some
First Nations lawyers. Everyone would be null and void if the government were to
follow the letter of the law in that case. I do not see that as realistic. It
will not happen. It will not be the end of the world if there is no registration
by January 31, but it will create a significant vacuum that would definitely
result in some hardship for some people.
Senator Andreychuk: I have two areas to explore. The first is the
register that was created that did not take into account equality as we know it
under the Charter. In 1985, an attempt was made to rectify this, but it fell
short in the eyes of the courts. Is that correct?
Mr. Duncan: Yes, in 1985, Bill C-31 was a very broad-reaching attempt
to correct many male-female inequities in the registration provisions in the
Indian Act. I forget how many new registrants that brought into the fold. I
believe there were about 110,000 new entrants in 1985; at that time, that would
have represented a 20 per cent increase. That corrected the status of the
children of the women who married out and their children. This takes it one step
further and corrects the situation for grandchildren, making it the same whether
the man married out or the woman married out. That is an important distinction.
My children are called 6(2)s, which refers to section 6(2) of the Indian Act. I
believe that Senator Brazeau is a 6(2). Am I correct?
Senator Brazeau: Yes.
Mr. Duncan: If you marry out and have children, it carries on for one
generation. Is that correct?
Senator Brazeau: I am sorry; I did not hear the question.
Mr. Duncan: Your child would have status.
Senator Brazeau: If I married out, they would be non-status; but that
is not the case.
Mr. Duncan: Right.
Senator Andreychuk: He is assuring his wife.
Mr. Duncan: If your offspring marries out, they have no status.
Senator Baker: They have status to the age of 21 years.
Mr. Duncan: If they marry in, their status is retained. It is quite
Senator Andreychuk: Basically, with respect to this bill and its
purpose, the court said that in the area, where the 1985 act tried to make the
changes to make it more equitable, they fell short.
Mr. Duncan: Yes.
Senator Andreychuk: The court indicated that the government must
respond, which may or may not be tested in court. The bill before the committee
is the government's best effort in meeting the equity changes as directed by the
Mr. Duncan: That is correct. I would suspect that if you were to ask
our Department of Justice counsel sitting to my left how many cases there are at
any one time dealing with registration provisions of the Indian Act, you would
hear that it is considerable. Am I correct, Mr. Reiher?
Mr. Reiher: At this time, there are 16 to 18 cases.
Senator Andreychuk: It was not a question of how many but rather what
is the intent of Bill C-3. Ms. McIvor went to court and made a case. One judge
addressed the issues. The appellate court narrowed it and said, in addressing
her specific concern, that the Indian Act amendments in 1985 fell short; so that
must be addressed. There are broader issues and different issues. Similar to the
matrimonial property act that we dealt with previously, there are concerns about
bringing equality to women within the Aboriginal entitlements, opportunities or
laws. It varies from place to place and issue to issue, but it also bumps up
against the community of interests of Aboriginal people enshrined in the
Do we have some assurance that the government's current direction is to keep
hammering away and going to court piecemeal style to deal with these issues,
whether equality or community rights, that are enshrined in section 13, I
Senator Baker: Discrimination is in section 15.
Senator Andreychuk: It is section 15 for Aboriginal people where they
have community rights as opposed to individual rights, so we are talking about
individual rights versus community rights. We have a whole host of issues, which
you pointed out.
Are you saying that if we get past this specific court case, and we address
it in Bill C-3, then you are prepared to start a process of engagement to look
at all of these other issues of equality that can be quite extensive, but that a
negotiated settlement on these is better than individual court cases
incrementally year in and year out? Is that why you are doing the larger
Mr. Duncan: Yes. Negotiating is better than court, any time, and that
is why we are doing it. It is also by popular demand to look at the bigger
picture because there is recognition that this only solves something very
Much has happened with our relationship with our Aboriginal people and our
First Nations, in particular since 1967 when they were given the franchise.
Before that, they could not vote, and we have been trying to reconcile on all
kinds of fronts.
If you are not able to complain under the Canadian Human Rights Act, what
does that do? If you cannot go there, where do you go? You have to go to the
The fact that the Canadian Human Rights Act will come into play as of July
2011 will make a very positive difference. We hope that that will keep things in
that venue more often, as opposed to the courts.
With this exploratory process, we are engaging with the five national
Aboriginal organizations that all have a stake in this and the registration
provisions in one way or another. We hope they can be a part of the solution. I
speculate they will not all agree. There will be some disagreement between their
various recommendations as well. Are we a referee, or are we a judge? We are
doing our very best to work in partnership, but these will not always be easy
Senator Andreychuk: The process is somehow to identify these issues in
consultation with Aboriginal leaders who also have some responsibility for
equality rights of their members. It will not preclude further cases, obviously.
Mr. Duncan: No, I would not think so.
The Chair: In this exploratory process, there may be a variety of
opinions, as you say. In the briefing notes that I read, there is no mechanism
to indicate when the department will get back to these groups about their
proposals. Is there any possibility you could set it up so that you would
respond within a four-month period to these groups and their ideas?
Mr. Duncan: Are you talking about the exploratory process?
The Chair: Yes, I am.
Mr. Duncan: The exploratory process will launch immediately, and we
cannot predict exactly how long it will take.
The Chair: After they have reported to you, there is no mechanism to
indicate when you will respond to them.
Mr. Duncan: That is true.
The Chair: Would you be prepared to make a commitment here to get back
to them within, say, four months or six months?
Mr. Duncan: Do you have any advice on that?
Brenda Kustra, Director General, Regional Operations Sector, Indian and
Northern Affairs Canada: The exploratory process will be ready to launch, as
the minister indicated, once Bill C-3 passes. The national Aboriginal
organizations, as well as regional organizations, will undertake a process of
dialogue to hear the views of community members, leaders, urban people, youth,
women and elders, to collect a very broad range of activities around these
issues on membership, registration and citizenship.
The intention is that at the conclusion of this process, a report will
articulate the views of the various people who came forward to share their
views. There may be recommendations on how to go forward, but that is not
necessarily the case. The exploratory process is about gathering the views of
people from across the country and then, perhaps, moving to the next step of
what we do about it. For example, is it appropriate to think about another piece
of legislation or recognition of jurisdiction or talk about what some of the
We do not know whether the reports that the organizations will come back with
will have specific recommendations on next steps to the minister and to the
government about how to fix the problems. It could be a report merely
articulating the views that have been gathered across the country.
As usual, we do try to respond to reports that come in from organizations.
The Chair: Within what time frame do you do that?
Ms. Kustra: It is on a timely basis. We do not have a specific time
frame for the various types of work we do with the First Nations and Aboriginal
organizations, but we try to do it on a timely basis so that we can move on to
the next steps. We do not usually set an arbitrary time frame.
Senator Brazeau: With this piece of legislation, obviously, I
understand the urgency and the importance of it. If it does not pass, there will
be a vacuum in British Columbia where people will not be able to register. If it
does pass, people will still be able to continue to register, and, according to
the numbers provided by the department, up to 45,000 people will be eligible to
not only regain status but also have the right to be recognized as First Nation
people across the country.
I believe we both agree that the Indian Act is a paternalistic piece of
legislation, especially when it deals with the status provisions. Without going
into a lot of detail, Aboriginal women married non-Aboriginal men and lost their
status, yet non-Aboriginal women gained status as Indians. The amendments in
1985 fixed some of the inequalities; this piece of legislation goes another
step, and, obviously, amendments were brought in by the former Conservative
government and the current one.
Even if this bill passes, there will still be some gender inequalities based
on the status provisions. Since this bill was introduced in the Senate last
week, I have had quite a number of First Nations people who want this
legislation passed because they want to be recognized as First Nations people.
However, some people will not be affected by this piece of legislation because
it does not go far enough.
We talked about the exploratory process that will take place and that has
begun to take place with the national Aboriginal organizations. Are you
confident that at the end of this exploratory process, you will have enough
information on hand to perhaps look at extending or building upon this piece of
To go one step further, if you are in a position to receive some progressive
proposals that make sense, would you be willing to entertain, if it is suggested
by those who need to suggest it, having a transition of who should decide who is
a status Indian in this country and who is not? As minister, you have the power,
which is a great big power, to decide who is a status Indian and who is not. If
you hear such proposals, would you be open-minded and willing in the future to
talk about the possibility of transferring that power to First Nations people
Mr. Duncan: Probably the easiest way for me to respond is to say that
multiple pieces of legislation that we have enacted remove power from the
minister, for example, the First Nations Land Management Act and some electoral
I detest nothing more than having to overturn an election result. Nothing
bothers me more than having to sign normal, everyday land transactions that have
to flow through Ottawa. It is quite non-progressive.
Philosophically, for me to commit that I would like nothing better than to
remove myself from some of the provisions under registration follows from the
direction we have pursued on other matters. The caveat I would have on that,
however, is that we probably would not be having any of this discussion if it
were not for the fact that status confers certain benefits, such as non-insured
health benefits, some post-secondary education benefits, et cetera. There is a
cost to government that attaches itself. It is not as easy as the department or
me making a decision. These become government decisions, more process-laden
decisions that require much more time.
At some point we have to come up with a way to deal with registration that is
practical and pragmatic but that also takes into consideration cost factors.
Certainly with the registered population, all the pressures are upward. The
demographics are growing quickly. In addition to the provisions from this bill,
which will change things considerably, we have the creation of the Qalipu
Mi'kmaq First Nation Band in Atlantic Canada, which will probably bring 30,000
new members as well.
That is probably the best answer I can give you right now.
Senator Brazeau: With respect to the exploratory process, are you
confident that that will lead to some sort of other engagement or relationship
building between First Nations and the Government of Canada? We could talk about
all the other issues, but I am dealing specifically with the status provisions
of the Indian Act.
Mr. Duncan: We need some fresh thinking on this whole subject, and we
will probably hear many points of view. I am sure some very good thoughts and
ideas will come out of the process.
Not as much debate and discourse has taken place on this area of the Indian
Act as should have. We now have experience with some of the self-government
agreements in the country, where Aboriginal peoples control their membership and
citizenship. The Indian Act still controls registration, but registration does
not affect them from the standpoint that they are not band members unless they
decide that they are.
The Chair: Mr. Minister, thank you very much. That is the end of this
Welcome, everyone. For our wonderful television viewers, we are in our last
meeting of examining and reporting on the role that the Government of Canada may
and can play in supporting the promotion and protection of women's rights in
Afghanistan after Canada has ended its combat operations in 2011. We have
witnesses from three areas afternoon: Canadian International Development Agency,
CIDA; the Royal Canadian Mounted Police, RCMP; and Foreign Affairs and
International Trade Canada, DFAIT.
Gordon Venner, Assistant Deputy Minister, Afghanistan, Middle East and
Maghreb, Foreign Affairs and International Trade Canada: I should say at the
outset that I have been responsible for Afghanistan for about seven weeks. I
know that some members of the committee have been working on Afghanistan issues
for a decade, so I do not feel much like an expert witness. However, I can
provide you with some information on the programming. I have with me my
colleague, Adrian Norfolk, who has experience directly in the field in
Afghanistan and may be able to fill in the areas where I am a little fuzzy. I
will make a short statement, after which Ms. Ducros may comment. As well, we
have Assistant Commissioner Graham Muir from the RCMP and Constable Marie-Josée
Fournier from the Toronto Police Service, who have provided service in
I thank you very much for the opportunity to speak to this. As this committee
knows well, Afghan women and girls face tremendous challenges under the Taliban
regime. They face strict laws that violate their basic human rights. Today,
women and girls continue to suffer from discrimination, violence and poverty in
their homes and in their communities. Ironically, they continue to suffer from
an inability to access the very institutions that were set up to help protect
Nevertheless, with support from Canada and some of our international
partners, we have seen some progress toward measures to protect women's rights
in Afghanistan. It is a core element of our engagement in Afghanistan to do more
in this area. Between what I can tell you about DFAIT's programming and what Ms.
Ducros can tell you about CIDA's programming, you will gain a sense of the total
With respect to DFAIT programming, Canada reinforces human rights principles
in the training and mentoring of the Afghan National Security Forces and
corrections officials. In Kabul, civilian police officers are provided
mentorship to the gender and human rights unit in the Ministry of the Interior
and trained Afghan National Police officers in the role of the police officer
and human rights. In Kandahar, Canadian civilian police officers have developed
and implemented a course in security awareness for female officers of Afghan
National Police. The course provides the female officers with the necessary
skills to protect themselves while carrying out their duties.
Another area of note is our support to the justice sector and justice sector
reform to strengthen the Afghan justice system to promote and protect human
rights. We have employed a legislative drafting expert who specializes in
women's rights under Islamic law to help build capacity in the Afghan Ministry
of Justice. We are the largest contributor to the Afghan Ministry of Justice's
recently opened human rights support unit, which is responsible for enhancing
the Afghan government's capacity to integrate human rights across its work. We
have also funded training for justice officials in Kandahar on women's rights
under Islamic law and violence against women.
DFAIT also does considerable advocacy work in this area. Thanks in part to
Canada and the international community's advocacy and diplomacy engagement,
progress has been made by and for Afghan women since the fall of the Taliban.
Afghanistan has established a legislative framework to protect women's rights.
Its constitution, adopted in 2004, promises equal rights for men and women
before the law. It has ratified international human rights treaties, such as the
Convention on the Elimination of All Forms of Discrimination against Women,
CEDAW. As well, it has made specific amendments to deliver results for women.
The Chair: We do not have your text in front of us, so please speak a
little more slowly.
Mr. Venner: Of course, I will slow down.
In July 2009, President Karzai signed the Elimination of Violence Against
Women Act, which was another step forward for women's rights in Afghanistan.
Since the law came into force, we have urged the Afghan government to take
concrete steps toward its implementation. We welcomed the Afghan government's
commitment to do so at the Kabul conference in July. The true test of the Afghan
government's new laws to protect human rights will be the manner in which they
are interpreted by Afghan courts, particularly in their translation into
practical steps forward for women's rights. We regularly advocate with our
Afghan counterparts on the importance of ensuring that Afghan laws are drafted
and implemented in a manner that is consistent with the Afghan constitution and
Afghanistan's international legal obligations.
I know that the members of this committee are very familiar with some of the
challenges that we have faced. In March 2009, for example, the Shia Personal
Status Law was passed by presidential decree. That law contains several
provisions violating Afghanistan's international human rights obligations.
However, Canada worked with Afghan civil society groups and our international
partners to raise concerns with the law on numerous occasions up to the highest
levels of the Afghan government. The work that Afghan civil society did to amend
that law marked an important step for developing public debate in Afghanistan.
The efforts ultimately led the Afghan government to revise the law, and it was
amended in July 2009. Canada and the international community noted that the
revised law addressed our most serious concerns. Afghan civil society and human
rights organizations also responded positively to the amended language.
Earlier this year, Canada and its international partners learned that an
amnesty law was put into force by the Afghan government in November 2008 but
made public only in late 2009. Human rights groups have raised concerns about
that law, and Canada has raised its concerns about the amnesty law at multiple
levels of the government in Afghanistan.
As these cases illustrate, Afghanistan has a sensitive and unpredictable
political environment, but we have learned much from our experiences to date. We
have learned that no one can be more credible and effective in lobbying for the
rights of Afghans than Afghans themselves. Afghan women leaders have
demonstrated tirelessly their resilience in the face of great challenges and
risks to themselves and their families. Canada's goal is to support and
strengthen Afghans' ability to advocate for their rights and to hold their
In that regard, we work closely with institutions and civil rights groups
committed to promoting human rights in Afghanistan. Canadian officials meet
regularly with Afghan leaders and women's groups, such as the Afghanistan
Independent Human Rights Commission, AIHRC; and the Afghan Women's Network. This
past year, this included discussions on the Shia Personal Status Law, the
Elimination of Violence Against Women Act, the subject of reconciliation and the
need for greater female representation in national conferences and international
We have seen women's rights groups become increasingly mobilized; and we have
seen advancements made on human rights, in particular the rights of women and
minorities that must be maintained and respected through any reconciliation
process. At the Kabul conference in July, the Minister of Foreign Affairs and
International Trade stressed that reconciliation and reintegration must be
consistent with Canada's international legal obligations.
Looking forward, Canada's engagement in Afghanistan will transition in 2011
to a non-combat role. Our future programming will build on our value-added,
while reflecting Afghanistan's needs. Women and girls have a vital role to play
in bringing peace and stability to their country. Attention to the importance of
this role will remain at the forefront of our planning for our post-2011
engagement. Advancing security, the rule of law and human rights will be a key
area of focus building on our reputation as a respected partner in these areas.
This means continuing to look for opportunities to partner with Afghan
institutions and civil society groups.
In closing, the change in Afghanistan is incremental. Afghan women and
continue to be important partners as catalysts and leaders in our efforts to
promote human rights. With support from the international community, we are
convinced that Afghan women leaders and groups can accomplish great strides. I
thank you for your attention. I will ask my colleagues from CIDA to follow up. I
will be prepared to take any questions later.
The Chair: I will ask senators to jot down questions. We will hear
from everyone, and then come back to questions.
This committee has just finished a study on the United Nations Security
Council Resolution 1325. I am concerned that you did not mention it in your
statement. We will want to know what the police, CIDA and others are doing to
implement it in both Canada and other places.
Francoise Ducros, Vice-President, Afghanistan Task Force, Canadian
International Development Agency: I am pleased to be here to provide
information on CIDA's experience with programming that supports the rights of
women and girls in Afghanistan and some of the lessons we have drawn from this
experience. I am also pleased to have with me James Melanson who has returned
recently to take up his position here after having been the director of
development in Kandahar.
Women in Afghanistan continue to face the hardships that my colleague
outlined, but we cannot overlook the progress that women have made and their
commitment to participating fully in their society. CIDA has made a contribution
to this process by working at several levels.
First, CIDA works directly with women, their families and their communities,
to improve their lives in very concrete and sustainable ways. Our contribution
to enhancing access to quality education, particularly targeted at girls, is one
example. Not only is education a human right, it is an important enabler of
other human rights, since it supports girls in developing the skills they need
to participate fully in their societies. We are a lead donor of the Education
Quality Improvement Program, EQUIP, a national program that supports the
ministry of education to promote education for girls by prioritizing female
teachers and improving the overall delivery of quality education services.
Where there are barriers to participation in formal education, we support
community-based education, which has proved an effective bridge to the formal
system. In this way, we have reached over 135,000 students, 80 per cent of them
Secondly, the agency recognizes the importance of support for the leadership
of Afghan women to advance their own interests. Enhancing women's participation
in elections has therefore been an area of focus within our support to national
democratic processes in Afghanistan. CIDA-funded projects have reached at least
70 per cent of all female candidates for the provincial Council elections in
2009 and 64 per cent of all female candidates for the Parliamentary elections
that took place this September.
Through these projects, women leaders have been provided with complete
assistance in the form of intensive campaign training for provincial council
elections and Parliamentary elections, establishing objectives, targeting
electors, drafting of messages, the art of public speaking, establishing
linkages with communities, preparing budgets, fundraising and planning an
electoral campaign. Those leaders have also been provided with resources such as
posters and business cards, networking opportunities and media outreach.
Finally, we recognize the importance of making institutional investments that
help to strengthen the framework within which human rights, including the rights
of women, can be advanced by Afghanistan itself.
Notable amongst these initiatives is CIDA's support to the Afghanistan
Independent Human Rights Commission. Between 2007 and 2010, we provided $7
million to enable the AIHRC to implement its three-year action plan, making
Canada the lead donor to this important Afghan institution.
There is much to learn from our experience in working in challenging contexts
such as Afghanistan. By forging relationships with our partners based on common
interests and trust, we have often been able to work collaboratively on
sensitive issues such as those related to family and to the position of women
and girls in society.
In Kandahar, in particular, we have adopted a number of strategies in
response to the harsh realities facing women. We have adopted flexible work
arrangements for our local female professional staff to reduce the threat that
might result from their association with the Provincial Reconstruction Team. We
have made creative use of the Kandahar Local Initiatives Program to provide
low-profile support to local organizations carrying out work in sensitive areas,
such as the training of Kandahari women on human rights.
Women leaders in Kandahar are often victims of threats or violence and always
risk being killed. The Agency has implemented a number of strategies to face
that reality. For example, we have implemented flexible work schedules for
locally hired women employees in order to reduce the threats they might face
because of their work with the reconstruction team.
Furthermore, the agency has made creative use of the Local Initiatives
Program in Kandahar to provide discreet support to organizations dealing with
projects of a sensitive nature such as training women on human rights. In the
province of Kandahar, we have also found targeted methods to help women at home,
namely in the fields of gardening, poultry raising and professional training.
I am happy to answer any questions on any of the programming we have and to
move to a more informal setting to address the particular issues.
The Chair: Would your colleague wish to say something at this time?
James Melanson, Director General, Afghanistan Task Force, Canadian
International Development Agency: I can answer questions when we get to that
Assistant Commissioner Graham Muir, Canadian Police Commander,
Afghanistan, June 2009-June 2010, Royal Canadian Mounted Police: It is a
pleasure for me to be here with you this evening and to talk about my recent
experience as the first Canadian police commander in Afghanistan. I was there
from June 2009 until June 2010. I am here to explain to you the role of the
Canadian police in supporting and promoting women's rights in Afghanistan.
As already noted, I have here with me today, to bring her personal
perspective, Constable Marie-Josée Fournier, from the Toronto Police Service,
who served as part of my rotation in Afghanistan. Constable Fournier worked as
one of the gender advisers on the European Union Police Mission in Afghanistan,
EUPOL Afghanistan, in Kabul.
Let me begin by saying that Canada's decision to commit Canadian Forces
military personnel in a training role beyond 2011 is welcome news to those of us
representing the civilian police component. The presence of upward of 1,000
Canadian Forces trainers on the ground will certainly enable our civilian police
cadre to have a greater, more enduring influence and impact on Afghan security
forces and, of course, the police in particular.
The Canadian police mandate in Afghanistan is to assist specifically in the
building of institutional capacity of the Afghan National Police, ANP. We have
currently upward of 50 Canadian police officers from the RCMP, and other
services representing Canada, involved in Canadian- and U.S.-led operations and
internationally led operations, primarily, for us, in Kabul and Kandahar.
We are there and mandated to act as trainers, coaches and mentors,
specifically focusing on leadership learning and advanced vocational skills for
We currently have four female police officers serving in Afghanistan. The
first two, including Constable Fournier, deployed in November of 2009 and have
only recently returned home. Despite our modest contribution in numbers, our
policewomen have been influence brokers, role models and exemplars, showing the
Afghan National Police and the citizens of Afghanistan that women can and do
play a critical role in policing as a public service. It is also important to
underscore and understand the stark realities faced by Afghan national
policewomen in the field.
Taking Kandahar City as an example, a city at or about the same size as the
greater Ottawa area, comprised of a police corps of upward of 2,500, there are
only 18 Afghan national policewomen in that urban area. All, by our standards,
comparatively marginalized and poorly trained.
Many of them work at more than one job to support their families, and
policing is just one occupation for them. Those who wish to become police
officers often face great resistance from their communities and their families.
They put their lives at risk to come to work in the morning, and, as we know,
they often have to resort effectively to covering their uniforms with their
outer robes or their burkas in order to travel safely to and from their places
In addition to being segregated from male counterparts on the job, they
really do have very little support from what is a male-dominated command
structure. That said, there are several regional training facilities that have
begun or will soon begin to host training for female Afghan National Police. It
is my understanding that these facilities will also be used to host coed
training to encourage better integration of male and female police officers.
While our civilian policewomen only began their participation in Afghanistan
this past year, they are, in my view, casting a long shadow. They do bring
influence under admittedly very difficult and adverse circumstances.
As an example, as referenced by my colleague, Mr. Venner, our first
policewomen on the ground worked diligently with their Afghan government
counterparts, as well as with Canadian and international partners, such as the
Norwegian police, to provide a security self-awareness course to female Afghan
police officers. Constable Fournier was part of that.
It took three months for their efforts to bear fruit in what was seemingly a
straightforward project, and required the intervention and support of one of the
very few Afghan National Police general officers to make that project
The continued and increased participation of Canadian civilian policewomen at
the front line and at senior levels is certainly important to the long-term
success of our Canadian police mission. Likewise, the continued presence of
Canadian policemen as well as policewomen is important as they demonstrate how
men and women can work together and respectfully and positively support each
other. There are more enlightened Afghan men and senior officers in the police
than one might imagine who do embrace women as part of the team. We need to
celebrate their presence and do more to have more of them in the future as well.
Back in Canada, we have our own challenges in selecting and deploying female
candidates in sufficient numbers to Afghanistan as only one of several
international peace support missions. That is not our challenge alone. Within
the United Nations' ongoing missions, females make up about 8 per cent of police
personnel. This is an area that the UN has challenged contributing nations,
including Canada, to address.
In my capacity as the Canadian police commander, I was fortunate to hold a
position of influence, as my successor does today in Kabul, putting me in
contact with other executive-level actors from our government, the government of
Afghanistan, and the international community, NATO in particular.
I would assert that I was in good company as a senior Canadian. I would bear
reference in particular to the presence of Ms. Tonita Murray, the former
director of our Canadian police college, who has worked there diligently for
upward of six years now. She has been instrumental in her post as a senior
policy and gender advisor directly to Afghanistan's minister of the interior and
his office with a remit to steward after all policing in Afghanistan.
My colleague Canadian Major-General Michael Ward just turned over to
Major-General Stuart Beare, a Canadian major-general who holds the most senior
NATO military staff position in Kabul and is directly responsible for national
level ANP training curriculum design and program delivery. Of course, there are
Together, I believe that we are making a steady effort to move the file
forward on protecting and promoting women's rights in Afghanistan, albeit
For my part, I worked directly with the office of the minister of the
interior, the general officers commanding the ANP, NATO military counterparts
and our Canadian task force commanders to invoke broad institutional reform
under the guise of what was then the Kandahar Model Police Plan. That project is
now known as the civilian police justice program that seeks to improve public
safety and security through improved institutional capacity of the Afghan
National Police focused in Kandahar. It expressly promotes the increased
participation of women.
In closing, I would simply like to underscore the important contribution that
Canadian police officers, men and women alike, are making to global peace and
security. We are proud of our contributions and committed to continuing the
deployment of Canadian police to Afghanistan and to other countries in
furtherance of better protection and promotion of women's rights.
Thank you for your time, and I will take your questions.
The Chair: As we have only half an hour, I suggest we put all of our
questions in, and as they address them, we can ask supplementary questions to
develop our concerns. Is there anyone who wishes to start? Senator Ataullahjan?
Senator Ataullahjan: As an ethnic Pashtun woman, I am well aware that
often the Pashtun women fall through the cracks. We are aware of how the Pashtun
women are treated in Afghanistan.
We want them to have the same basic human rights that all the women in
Afghanistan have. However, we have to be realistic that even access to education
for Pashtun women is out of their reach. As we all know, most of the Taliban are
Pashtun, and that has created many problems for their women. They are mistreated
and rarely allowed out of their homes.
What do you think Canada should do to promote the rights of the Pashtun
women, as this is a group that tends to be forgotten or rejected? We also have
to keep in mind that 65 per cent of the population of Afghanistan is ethnic
The Chair: To DFAIT, broadly speaking, I am so passionate about the
United Nations Security Council Resolution 1325, which I know may be a bit
esoteric, that I would like to see this enforced through, as you say in your own
plan, the whole of government. I want to know specifically the timelines,
namely, when and how. I know you will report every year and do all that good
stuff. However, what will you be doing that is different from what you are doing
now in Afghanistan?
To CIDA, you mentioned the Afghanistan Independent Human Rights Commission.
Dr. Sima Semar would like to have at least half a million dollars to develop her
women's university. What would I do with that proposal? How do I get it to you,
and would you have any interest in it if I were to do so?
Continuing with CIDA, is Canada's aid, generally speaking, to Afghanistan
similar to that of other NATO countries? Is there a way you all get together to
decide who will do what in which province? How does it work in the global ally
Next is my question to the wonderful police. I am from the Toronto, as is my
good friend Senator Kochhar. Gender training is always a little short in all
departments, as it is indeed amongst senators. I always reckon we can all polish
our shoes a little more on this issue. What is happening in Canada with training
constables within Canada before we send them overseas to do that training for
other people? How will that change as a result of DFAIT's commitment to hold
government to implement United Nations Security Council Resolution 1325, which
is on women, peace and security?
Senator Kochhar: I have one short question. How do we engage directly
with the civil society? No foreign government can come to Canada and directly
engage with civil society. Do we have to go through the Karzai government to
become engaged with different spheres for training and so forth? Can we take
private projects, like the universities and other civil societies, to build up a
hospital or training?
Senator Andreychuk: I have two informational questions. It appeared
that our development aid escalated when NATO and our troops were confronted with
the fact that to secure an area militarily, some support systems afterward are
needed. There has been some talk about the reduced amount of development aid or
finances going to Afghanistan. Is that directly tied to the fact that we are
leaving Kandahar and leaving a combat role, and, therefore, it was not
necessarily development aid in the traditional sense but was the new concept
attaching it? I would like to know if that is the case. Is most of our aid and
development in the urban areas, namely, Kandahar and Kabul? How far are we into
the regions that might be considered non-secure and rural? I would like a
breakdown on that.
Mr. Venner, you said that we made gains, and it is undoubtedly true that
people who work in the area think we have made gains. The fear is that if there
is an exit strategy or a perceived exit strategy of NATO and other international
players, it will disintegrate. We know, for example, that in the Balkans, we are
there for the long haul; Europe, especially, is there for the long haul. There
is a continual consultation, dialogue and discussion around should the security
arrangements leave, there is not sufficient take-up institutionally or enough
inter-citizen cooperation to sustain peace and security. The development falls
away if you do not have the security.
While we have made gains, how assured are you that they are long-lasting
gains? Are they long-lasting gains in the minds of the people or in the
structures, in other words?
That is a slightly convoluted question, but it troubles me that we build
schools and do all these things, and as long as we are there, they are
sustained. There are significant examples elsewhere in the world that unless
there is a take-up and security by the people themselves, none of it is long
The Chair: If I could just add that some of the NGOs have expressed
concern that if they are outside the wire, how will they be protected?
Senator Hubley: Looking over the development assistance provided by
Canada and other governments since 2001, what types of interventions have been
the most effective at reaching local women and improving their quality of life?
I think this touches on Senator Andreychuk's question as well.
Also, it was pointed out by one witness that in the media, Afghan women have
made particular progress and are particularly visible. I am wondering if there
are other main career areas we can point to to demonstrate the progress that
Afghan women are making.
Senator Ataullahjan: First, I would like to congratulate you on the
great work that CIDA does. I saw it first-hand in Pakistan. We met at the
Pakistan Development Forum. We spent an evening together. You also do great work
For some women, education is not an issue because of their age or whatever.
Are we helping those women? Is there anything we can do for them?
Mr. Venner: Some of the questions cut across jurisdictions, so maybe
we could pick a couple of questions and build from there.
The Chair: How the police and DFAIT answer will not be the same.
Mr. Venner: I am sure we will be on exactly the same page.
I might start with the question about Resolution 1325. I suspect you have had
access to DFAIT's action plan.
The Chair: Yes. We have a report that we will give you before you go
and tell you what we think of it.
Mr. Venner: Thank you. I would refer you to the 24 progress indicators
at the end. I appreciate this is a strange way to get the answer to your
question, but if you look at the areas to which the indicators refer, then you
can get a sense of where the effort is likely to be deployed.
That being said, the action plan is clearly an aspirational document. It is
intended to help guide the delivery of other Government of Canada programs. It
is supposed to help guide the delivery of aid programming. It is supposed to
affect how we allocate our training resources and the other work that we do.
That would be my first point.
I would also like to address Senator Andreychuk's question, and I am sure Ms.
Ducros would like to add something.
The fact that aid programming goes up after you have a military engagement in
an area, I know that is true. However, the other way to say that is that you
cannot dispense the aid programming until you have had the military engagement.
It is only after you have secured the territory that it is safe to disperse the
aid. That is why it follows.
I take your point about the exit strategy and the fact that if we have a
deadline saying that we will be gone, there is a tendency to worry about whether
or not those gains will be lasting. All I can say to that is that if you
consider the announcement the government made recently about training, it is
clear that part of the government's concern is to ensure that we help train
Afghans so that they can ensure the gains we have made are protected in the
future. This includes the training for security forces, the training that will
continue to be done by the police, and the opportunity for Afghans to pick up
more of the responsibility for protecting their own communities. These are all
parts of ongoing Canadian and international efforts, which, over the next
several years, should improve the odds that the gains that we have achieved to
date can be protected.
The Chair: I will intervene here to say that you will not be able to
answer all the questions in the few minutes that we have. We will be glad to
have you send an email to the clerk with your responses to these questions, so
do not feel you have to squeeze it all in.
Ms. Ducros: I will come back and address the issue of ethnicity and
Pashtun women afterward.
Everything we have done with respect to women, all the programming CIDA has
done from the beginning, has had a gender focus. When we have looked at
education, particularly for Pashto, but for all the ethnicities, we have always
focused on targeting women and girls. We have tried to get at this through
different ways. First, making school access available but also dealing with the
systemic issues, such as training female teachers so that girls can access
schools. In the rural areas, we have looked at community development schools. We
have reported broadly about building schools, but we have also created local
schools in rural areas. We have tried to address the barriers that have had an
impact on women going to school, such as transport, separate latrines and
building boundary walls.
On the specific question of the AIHRC and Dr. Sima Semar, we stay in close
contact with her. I have not had wind of this proposal, however.
On the issues of aid effectiveness, with our programming in Kandahar and
nationally, CIDA's programming has had two components to it. They have not
always been as distinct as I am about to describe them, but there has basically
been programming focused on Afghanistan as a whole and the government national
system. We have built capacity in different ministries and at different levels.
We have also had programming that was geographically focused on Kandahar.
The direct answer to your question is that when the Government of Canada
focused on Kandahar, other allies were focused on different areas. We were
focused on Kandahar, which in some instances was a traditional development
capacity and in some instances was what they called COIN — counter-insurgency
doctrine — which is drawing a distinction and following up on the forces and
DFAIT and trying to draw a separation from the insurgents by bringing government
to the local people and separating the insurgents from the communities.
We also have traditional development in terms of building capacity around the
government, working on education humanitarian assistance and addressing health
care needs. Traditional issues include demining and providing micro- credit
loans, which, to address Senator Ataullahjan's question, involved addressing
women's needs in a way that was not entirely education-based but also working on
the vocational aspects.
On the question of particular vocations or professions that we picked, we
have worked in a broader scope. I probably do not have all the details that the
smart people behind me have, but we can provide you with the impacts that has
I would be remiss not to mention that one of the most successful programs we
had was going through election training, both for the provincial council
elections and the recent parliamentary elections. The female candidates who ran
for Parliament reached 70 per cent. We have also provided them in the past with
the tools that they need to represent constituents in Parliament. That was noted
by the special representative in Canada, who was a particular leader on that.
Senator Kochhar, we have worked directly with NGOs. We tend to work with them
in two capacities. I will let Mr. Melanson speak to that in a minute. We
undertake a fairly open conversation through round tables and meetings, directly
at times as we bring in representatives of various NGOs and civil societies — I
am speaking about Afghan-led NGOs. As well, we are able to undertake projects
normally through trusted partners, specifically NDIs at the Asia Foundation. We
work with NGOs in civil society.
The Chair: Your time is almost up, so additional information will have
to be in written form to the committee. If you have something to add quickly, do
it within 30 seconds, please.
Ms. Ducros: On the issue of programming outside the wire, CIDA has
been present in Afghanistan since prior to the high commission. We have
programmed outside the wire. We will continue to do that. There are ways in
which we can do that through trusted partners and ensure security. There are a
couple of other things that I can forward in writing.
Mr. Melanson: Briefly, we have small project financing mechanisms that
reach out to the civil society parts of Kandahar. These have been quite
successful. Ms. Ducros has described many of the adaptations we have made to how
we offer education services that allow girls to have better access. Often, these
are physical adaptations.
I would not overlook working with progressive forces in Kandahar. The
governor is very progressive on education and girls in education and convening
religious leaders and the district governors under his chairmanship to pursue
the advocacy agenda for girls' education. Canada has promoted and cooperated
quite extensively with political leaders on this in Kandahar.
The Chair: For those who bring us peace, order and good government, I
invite Constable Fournier to proceed. Many of us are interested in hearing what
it is like to work with Afghan women in the police force.
Constable Marie-Josée Fournier, Toronto Police Service, EUPOL,
Afghanistan, Gender/Human Rights Section, November 2009-August 2010, Royal
Canadian Mounted Police: English is not my first language, but I will do my
The Chair: You can speak in French.
Ms. Fournier: That is okay. I will do it in English.
You asked previously if we received training on human rights. We do not have
specific training on human rights before deployment, but we listened to Afghan
women who explained the difficulties and challenges they face living in
Afghanistan. We received this information. With the military in Toronto, I
received some training by a woman from Denmark. She was an expert who came to
explain the challenges. We spent two days with her setting up scenarios and
determining the dynamics between men, women and children and the problems and
issues they have in Afghanistan.
As police officers, we have to know human rights. We apply them in our life
and to our work. I have some knowledge because I am a police officer. However,
we studied on our own when we arrived in Afghanistan. They told me what they
needed and what work I would do in Afghanistan for the gender human rights
department. I read some books to refresh my memory and went to see the minister
to ask what they wanted me to do and how we can help develop some structure.
My experience in Afghanistan was fantastic. I was a bit surprised because
everyone told us that it could be complicated for women trying to work in
Afghanistan given the dynamics between men and women. However, I did not have
any issues. Perhaps because we were in uniform, they showed respect for us. I
asked them about the difference between Afghan women and me, and they said
simply, ``You are not from Afghanistan; you are from another country.'' Canada
is well respected over there. The challenge was not as difficult for me coming
from Canada and being a female police officer.
I was working in the ministry in Kabul to develop a system to create
positions for female police officers. We want to create an investigation system
with female investigators for women who have complaints or want to report an
incident because they have great difficulty at a police station. We want them to
be able to talk to a woman. Therefore, they have a desk for women and a family
response unit for them where they can talk about their issues so that eventually
the investigation will be referred to the right person.
Our challenge will be to have Afghan women replace us. We want to train them
to become investigators and to be able to respond to the non-criminal and
criminal matters. They will be able to help women and children. It will be a
more effective system for women who have complaints to expect some results. We
have many projects, but this one was big.
We also have the help-line system, which will help eventually in the
recruitment of women. We know that women are afraid to become police officers,
afraid to apply, so we created a system whereby when they experience difficulty,
they can directly contact the gender human rights department for help. If a
violation has been committed, it will be dealt with.
The biggest challenge is the implementation. We are trying to implement
better positions, but eventually we have to reinforce it. On paper, it is
beautiful. Eventually it will work, but it will take time.
The Chair: It is the same in Canada. It looks beautiful on paper.
Ms. Fournier: The biggest challenge will be gaining the support of the
Afghan government to put its foot down and support the gender human rights, and
when a violation has been committed, consequences must follow.
The Chair: In the manual that you helped to write or the policy
position, how many hours of gender training did you recommend for Afghan
recruits to the police? Did you do that?
Ms. Fournier: Working in the ministry in Kabul was different than
working in Kandahar; we have CIVPOL Canadians there — civilian police. A
Norwegian police officer has been developing a security awareness course for
women but was not able to implement this in Kandahar for security reasons. We
have Canadians in place as contacts, and I was the liaison with the training
department in the ministry, including my partner, because we needed support and
the Canadian Embassy. We have been able to bring female Afghan instructor to
train the women over there.
We are trying to make them independent eventually so that those Afghan women
will be table to be the teachers who are training their own people.
The Chair: I spent some time in South Africa when it was a new nation.
There was a huge problem of getting the police to be responsive to women, their
complaints and the criminal offences that women suffered. Does Canada talk to
other nations that have done this kind of start-up to change policing
activities, or do we look at each country individually as we go?
Ms. Fournier: I was working with the European Union, where all police
officers worked together. Everyone had different ideas, but we shared our
experiences. I was working with officers from 10 different nations. We shared
our experiences and tried to promote police officers. I cannot answer further
Mr. Muir: In a broader sense, Madam Chair, the office at our national
headquarters supports us in the field. They have counterparts in so many other
countries around the world — people with whom we do business on a regular basis
in the international peace support operations and other disciplines as well.
Suffice to say, it is not that big a world. We have a pretty good sense of
what our colleagues abroad are bringing to the field in terms of the preparatory
work of their own police. From a lessons learned perspective, we find what works
best on the field, gender issues being but one.
Senator Ataullahjan: Constable Fournier, in dealing with the women,
was it easier for them to approach you? Also, while you were talking to the
women and engaged in training, were the translators men or women?
Ms. Fournier: They were both. The way it works in Kandahar is we used
a female trainer, but we also have the support of the CIVPOL, and they were both
female and male. They did not have any issue working together; it was not a
In Kabul, we also have male trainers who participated, and also male
translators. In Kabul it is easier to mix female and male. In Kandahar they are
starting, but the females on the field did not have any issue working with male
CIVPOL members involved in training because they were helping, especially with
the shooting training. This training was for a week, and they needed the support
Senator Ataullahjan: You felt they were comfortable with each other?
Ms. Fournier: I was not there, personally, but I was in communication.
Yes, they were.
The Chair: Of the eight female constables, were you all in policy
development, or were any of you actually in the field training the officers?
Ms. Fournier: I was in Kabul in the strategic department. Annie
Lacroix from the Montreal police was working in Kandahar. We also have a few
female officers working in Kandahar in the training department.
The Chair: Thank you all for coming. You should stay for dinner, and
we should go on and on all night hearing about your wonderful experiences. This
Welcome, everyone. For the viewing public, we are the Standing Senate
Committee on Human Rights, and we are looking at Bill C-3, which is an act to
promote gender equity in Indian registration by responding to the Court of
Appeal for British Columbia decision in McIvor v. Canada.
Appearing before us by video conference, we have Christopher Devlin, from the
Canadian Bar Association, CBA. We have before us here Larry Chartrand who is an
associate professor in the Faculty of Law at the University of Ottawa
accompanied by Charlene Desrochers.
We will have the CBA go first.
Christopher Devlin, Executive Member, National Aboriginal Law Section,
Canadian Bar Association: I am here today on behalf of Canadian Bar
Association, National Aboriginal Law Section, and we are pleased to be invited
to present our views on Bill C-3.
The CBA is a national association of over 37,000 lawyers, law students,
notaries and academics. An important aspect of CBA's mandate is to seek
improvements in the law and the administration of justice, and it is from that
perspective that I appear before you today.
The Aboriginal law section is made up of practitioners in Aboriginal law, and
it includes both indigenous and non- indigenous lawyers. I myself practice in
Victoria, British Columbia.
We have our brief that we submitted to the House of Commons Standing
Committee on Aboriginal Affairs and Northern Development, and I believe it is
before you today. I regret that I do not have the entire brief with me, both the
English and French version. I have only the English version, so I will be
referring to those page references.
The context for Bill C-3 is whether it does, in fact, promote gender equality
in the Indian registration under the Indian Act. To understand this, we need
some background on Bill C-31, which was the act that Parliament passed in 1985,
amending the Indian Act. It was directed at removing sex discrimination under
the Indian Act and replaced many of the registration rules with a
second-generation cut-off rule, which means that if an Indian person parents
with two generations of a non-Indian, then the grandchild loses Indian status.
If an Indian person parents with a non- Indian, the child has status, but it is
under section 6(2), not section 6(1), so it is status of a different nature. If
that section 6(2) person parents with a non-Indian person, then that grandchild
loses their status. That is the second- generation cut-off rule.
Ms. McIvor, who is at the heart of the litigation that generated Bill C-3,
lost her status. She was born in 1948, she married a non-Indian, and under the
old pre-1985 version of the Indian Act, upon marriage, she lost her status. As
well, her child also lost his status. She and her son Jacob Grismer went to
court. At trial, the trial judge said that the benefit of law at issue for them
was the right to transmit Indian status and cultural identity to future
generations. Ms. McIvor's grandchild was not able to have that transmission of
cultural identity and Indian status, so she was discriminated against when
compared to her hypothetical brother, where the status would have followed
through the male line, and his grandchild would have kept his or her status.
The trial judge had a very broad ruling that would have restored status to
the children and grandchildren of any women that had lost their status as a
result of the old marrying out rule.
However, on appeal, the Court of Appeal of British Columbia narrowed that.
For very technical reasons, they looked to another arcane rule under the Indian
Act, called the ``double-mother rule,'' and under that rule, if your mother and
grandmother were not Indian, then you lost your status when you turned the age
of 21. They said that under the 1985 amendments, a person who is subject to the
double-mother rule received enhanced status because instead of losing their
status at age 21, they became full section 6(1) Indians under Bill C-31. We have
this narrowing of the judgment from 1951 to 1985, rather than going back in
Parliament has responded with Bill C-3, the Court of Appeal of British
Columbia has given Parliament until January 2011 to pass Bill C-3, and that is
why the bill has been before the house and is now before the Senate.
I have some comments to make about Bill C-3 that I would like to touch on,
and they begin at page 5 of the English part of our brief, which I understand
you have before you.
One of the first things I would like to touch on is that it is a very short
bill, and the substantive part of it is under clause 2, which proposes the
addition of new section 6(1)(c.1), and this would provide status. It is
narrowly framed to address the specific family situation of Sharon McIvor and
Jacob Grismer. One of the peculiar things about it is that in gain this new
status, one would have to have a child oneself. In Jacob Grismer's situation, he
would not gain section 6(1) status automatically unless he actually had a child,
and this would be the first time in the legislative history of the Indian Act
that a person's status is not dependent on the parents but is dependent on
whether that person is a parent of a child.
We raise this, in footnote 5, as a concern because there can be
discrimination in some of the band membership codes between section 6(1) status
Indians and section 6(2) status Indians. Although they all have status with
respect to their relationship with the federal government, the challenge is that
some First Nations have membership codes that will exclude section 6(2) Indians.
It would be important from our perspective, as a matter of law reform, that
anyone who would be eligible to have his or her status moved up should be able
to do that and not have it dependent on whether he or she has a child.
The second concern that we raise is with clause 9 of the act. That would
remove the right of anyone to sue Canada for not having provided him or her with
status as a result of the gender discrimination. There is a long history of sex
discrimination that has been before Parliament. It was studied at length by
several parliamentary committees, leading up to the Bill C-31 amendments in
1985. These issues have been well known for a long time. We are very concerned
about the justice of this no liability provision.
The next issue we raise is the fact that the bill does not come with any
additional resources to First Nations who may still be subject to Indian Act
band lists, so they do not control their own membership lists under section 10
of the Indian Act. Their lists are still held by the department under section
The government estimates that several thousand people may be newly entitled
to register under the act, and there do not seem to be additional resources to
support the First Nations with these additional new members.
The last point I want to focus on is the continuing discrimination in Bill
C-3 because although it is titled ``gender equality in Indian registration,''
there will still be gender inequality. The bill will not completely eliminate
gender discrimination in the Indian Act. We have a table set out on page 9 of
our brief that we think illustrates this very well. It also illustrates the
whole story of what has happened with these different amendments.
There are two columns. The left-hand column is what happened to Sharon McIvor
and her son, Jacob Grismer; and the other side is her hypothetical brother. You
can see that before 1985, she loses status upon marrying a non-Indian, whereas
her hypothetical brother, who married a hypothetical non-Indian woman, would
keep his status. I would note that in fact the woman would actually gain status
as well under the pre-1985 Indian Act. Then Sharon McIvor's son would have no
status and her grandchild would have no status. To compare that with the son of
the brother, he would have status and the grandchild would have status until age
21, and that would be as a result of the double-mother rule.
After 1985 and Bill C-31, Sharon McIvor was reinstated as a section 6(1)(c)
status Indian, and her son received section 6(2) status. However, all of her
grandchildren born before and after 1985 received no status. That is to be
contrasted with her hypothetical brother. He had 6(1) status, his son had 6(1)
status, and a grandchild born before 1985 received 6(1)(c) status but was
subject to the double-mother rule. It was only the grandchild born after 1985
who would have 6(2) status.
Under Bill C-3, which is the last section of the table, one can see that
there is still continuing discrimination with the grandchild generation born
before 1985. After 1985, the second-generation cut-off rule continues to apply
equally. However, for Sharon McIvor's grandchildren born prior to 1985, they
will only receive 6(2) status. The hypothetical brother's grandchildren born
prior to 1985 would actually receive 6(1)(c) status. They would have, in
essence, the best status available under the act.
In our last recommendation, we propose a modest amendment to the act, a new
section 6(1)(c.2), which would enable those grandchildren born after
September 1951 and before April 1985 to have also 6(1)(c) status in the
way that the hypothetical brother's grandchildren would have.
Even though we make this modest proposal, the fact is that there would still
be gender discrimination under the act for women, their children and their
grandchildren pre-1951. We make note of that. The house committee tried to
address that, but the amendments that the house committee suggested were not
adopted by the house; they were ruled out of order by the Speaker. That remains
an issue of concern as a matter of law reform, given that this is an opportunity
to amend section 6.
The Chair: Now we will hear from Larry Chartrand, Associate Professor
at University of Ottawa's Faculty of Law.
Larry Chartrand, Associate Professor, Faculty of Law, Common Law Section,
University of Ottawa, as an individual:
Thank you very much. I would first like to acknowledge the fact that we are on
the unsurrendered sovereign territory of the Algonquin Nation. I would also like
to take a minute or two to comment on the CBA's recommendations, also identified
in my presentation, which would require some amendment.
My paper is called ``No Foot, Wrong Foot, Small Foot.'' I say that for a
couple of reasons. ``No Foot'' stands for the fact that we have to continue to
acknowledge that this country has no legitimate legal right to control the
identity of the indigenous peoples of this territory and that it is a violation
of fundamental human rights. We know that because the United Nations General
Assembly adopted the Declaration on the Rights of Indigenous Peoples. Under
Article 33, they ``have a right to determine their own identity or membership in
accordance with their customs and traditions.''
Moreover, Article 9 requires states to recognize the following: ``Indigenous
peoples and individuals have the right to belong to an indigenous community or
nation, in accordance with the traditions and customs of the community or nation
concerned.'' I emphasize the fact that that provision also says, ``No
discrimination of any kind may arise from the exercise of such a right.''
We know that domestic court cases, Canadian Human Rights Tribunal cases and
United Nations cases are going forward as we speak to challenge the validity of
the Indian Act and these colonial provisions.
Canada needs to respond with integrity. Perhaps the round table process
announced by the minister will achieve this, since it is intended to address the
larger issues. In fact, I would argue that it has to. After all, Canada has
endorsed the United Nations declaration and, in particular, the principles of
good faith, partnership and mutual respect.
The round table process is consistent with those principles. However, it is
not consistent with the principles of good faith to adopt Bill C-3 as it is
currently drafted, knowing that it does not go far enough to eliminate gender
inequality and does not completely meet the needs of Indian women. The list of
organizations that object to Bill C-3's passage as it is currently drafted is
staggering. I just have a short list in the written presentation here. However,
of course, that was before the government mentioned that the round table process
was dependent on the passage of Bill C-3, almost like a ransom: If you do not
pass Bill C-3, we will not provide the round table process. I wonder how much
good faith that entails.
The ``Wrong Foot'' argument is based on the fact that the legislation, as it
is presently drafted, is completing the job of the Court of Appeal. It is the
government finishing the court's work. It is the judicial remedy of the Court of
Appeal in statutory form. There was an obligation to consult Aboriginal peoples
concerned when addressing the response needed by the Court of Appeal decision
and to draft legislation that seriously reflected the views of Aboriginal
peoples, especially when those views included opportunities to eliminate gender
inequality. Instead, it drafts legislation in advance of an engagement process
and asks for input after the fact. Canada could have taken a leadership role
here and it failed to do so. It could have demonstrated what it meant to be a
partner with Aboriginal peoples instead of a dictator.
It is interesting to note that in Canada's Statement of Support on the United
Nations Declaration on the Rights of Indigenous Peoples, issued by the
government on November 12, it specifically highlights Bill C-3, the gender
equity in Indian registration act, as an example of Canada showing ``strong
leadership by protecting the rights of Aboriginal people in Canada.''
If this narrow response to the Sharon McIvor litigation of 20-some years is
an example of ``strong leadership by protecting the rights of Aboriginal
people,'' then I fear for the future.
How is the honour of the Crown maintained when Canada holds this initiative
out as an example to behold? The short title of the legislation sounds as though
Canada is telling the world that it is actually doing something significant
about gender inequality in the act, which is untrue and misleading. What the
statement does not say is that it took an individual Indian woman 20-some years
of fighting the Canadian government tooth and nail to get the little redress for
which she has asked, which is simply to be treated equally with men. The chosen
response is legislation so narrowly focused that it fails to alleviate the
gender inequality that affects new registrants, including the son, or
hypothetical sons, of Sharon McIvor. The statement neglected to include this
When an amendment was made to address the continuing gender inequality before
the house committee, the Speaker of the house declared it to be beyond the scope
of the legislation. Canada, of course, did not mention that fact in its
statement, nor did it mention the fact that Sharon McIvor is going before the
United Nations to take her case to that level.
I wonder whether the government is acting in good faith when it holds out an
act such as this and says that it is a model to show that Canada is responding
to equity concerns of Aboriginal women.
It might not be feasible to drop this legislation and redraft legislation
that would completely eliminate the gender discrimination, or ask the Court of
Appeal for an extension and then come back and really take the initiative and be
a leader in terms of correcting the injustice of gender inequality.
The Court of Appeal may not be prepared to grant another extension. From what
the minister says, it sounds as though the court is starting to get a little
If that is the case, it may be appropriate not to delay passage of the act
any further, because some people's interests will be delayed if we do that.
However, if the act does go further, we need to address some of the
discrimination that currently still exists. This can be done in a couple of
The one amendment by the Canadian Bar Association proposed a new section
6(1)(c.2) would correct the residual upon residual gender discrimination
that is in the act.
I suggest that we just deem the section 6(2) Indians — the children who are
born — as section 6(1) Indians, but basically the Canadian Bar Association is
saying the same thing.
I also agree that there is no reason for the requirement that a child must be
born of a person entitled under proposed new section 6(1)(c.1). The
discriminatory harm attaches to the person who cannot pass on the status to
their children whether they have children or not. That person is still being
treated differently than, say, a brother who has their status through their
paternal line and can pass on their status whether they have children or not.
The difference does not depend on having the child. The difference depends on
the right to pass on the status, not the actual fact of passing on the status to
a child. It is the right that is the issue here.
That is all I wanted to say. Thank you very much for listening.
The Chair: My pleasure. Madam, would you care to say something?
Charlene Desrochers, as an individual: I just wanted to say good
evening, and thank you for giving me this opportunity to appear before your
committee on this very important issue affecting all Aboriginal women. I would
like to acknowledge the Algonquin Nation, whose unsurrendered territory we are
I am Charlene Desrochers, a former student of Professor Larry Chartrand. I
had the pleasure of taking many of his courses in law school. I will not take up
much of your time, and I will not repeat the legal considerations that have been
put forward by Professor Chartrand and the Canadian Bar Association, except to
say that Sharon McIvor's recommendations for amending section 6 of the Indian
Act is the correct approach to take on the issue of gender inequality in the
For instance, all section 6(1)(b) to (f) and section 6(2)
Indians should be made section 6(1)(a) Indians. That is the only way to
correct the gender inequality in section 6 of the Indian Act. Anything short of
this is discriminatory and violates section 15 of the Charter of Rights and
Freedoms, as well as all the principles in the United Nations Declaration on the
Rights of Indigenous Peoples.
I would like to put on the record that the Conservative government has not
consulted Aboriginal women at the grassroots level on the proposed amendments in
Bill C-3 and has not met the legal duty to consult on this issue as set out in
the case law and at international law, especially the declaration.
In fact, in the spring, the House of Commons Standing Committee on Aboriginal
Affairs and Northern Development heard from numerous organizations on Bill C-3
but only heard from two individual Aboriginal women on the issue, one of them
being Sharon McIvor. Her presentation reflected a true collective view on this
issue. She is a true leader who advocates for the interests of all women, not
just 45,000 women. Forty five thousand women being reinstated is not better than
nothing, especially when your children are being excluded, such as mine are.
Can you imagine, Bill C-3 is about correcting gender inequality in the Indian
Act, and the House of Commons committee only heard from two women; we have one
million Aboriginal people in Canada, and two women were heard from.
It should also be noted that the federal government must stop off-loading its
duty to consult Aboriginal people on to Aboriginal organizations who, in turn,
do not consult the people at the grassroots level due to inadequate funding
provided by the federal government.
As you are well aware, representation of issues affecting Aboriginal people
is an area of controversy among Aboriginal people at the grassroots level. It is
time for this Senate, respectfully, and everyone else out there, to acknowledge
this fact. There are hundreds of thousands of Aboriginal people who say that
these Aboriginal organizations do not represent our views, and it is time for
change. First Nations people have a right to speak under section 2 of the
Charter, and they have not had that right to speak about Bill C-3.
Aboriginal organizations are not governments, and in no way reflect customary
laws or traditional governments of the people. They are corporate entities with
a board of directors, and they have no right to speak on our behalf without
asking us. We, the people on the ground, also have a right to participate in the
Sooner or later one of these organizations will be called to task on the
legal duty to consult. When this happens, that is when you will see that the
federal government will have no choice but to change its relationship with the
way it relates to Aboriginal people on all issues.
On October 26, 2010, three motions were passed in the house, which restored
Bill C-3 to its original format, as introduced in March 2010. According to these
minutes of proceedings, various Aboriginal organizations changed their minds and
accepted the government's final offer. In that debate, it following is noted:
They decided that it would be better to accept the federal government's
offer, so they asked us to apply a ``bird in the hand is worth two in the
The debate does not refer to what this offer was and does not state who those
Aboriginal organizations were.
What is this offer, and who were the organizations that supported Bill C-3 in
the summer? I still do not know the answer to that question. I searched the
Internet and could not find anything notifying people about an engagement
process that took place over the summer with Indian and Northern Affairs Canada,
INAC. What is this engagement process? Who and exactly how many people
participated in the engagement process? Was it the organizations? If they did,
how did they make the decision to support Bill C-3? I searched high and low for
information and was not successful in finding anything. Clearly there was no
consultation process on Bill C-3 by anyone, so this pre-engagement process does
not satisfy the duty to consult in any shape or form.
The people have a right to know what took place this summer, as this bill
directly affects all Aboriginal women, including myself and my children. My
children are excluded in Bill C-3. My grandparents are both 100 per cent Cree. I
am not in any way endorsing blood quantum, but I want to make the point that my
grandparents are full Cree. My grandmother lost her status when she married my
grandfather. My grandfather was omitted from the register because he was in
World War I — for which he has not received his rightful compensation, but that
is another issue altogether. However, he was omitted from the register.
My grandmother lost her status when she married my grandfather, so my mother
was never a status Indian until Bill C-31 came into effect. Right now, as of
this date — both of my grandparents are dead — my grandmother is a section 6(1)(c)
Indian. My grandfather is a section 6(1)(d) Indian, both of them being
full-blooded Cree. My mom is a section 6(1)(f) Indian. Again, she is
full-blooded Cree, as well; I am a section 6(2) Indian, and my children are
My grandparents, my mother and I should be section 6(1)(a) Indians,
like all the other section 6(1)(a) Indians. My grandmother and my mother
were reinstated under Bill C-31 in 1985, and I did not get status until the year
2000, even though I applied in 1985. I had a long 15-year struggle trying to
prove that my grandfather was Indian. After 15 years, my cousin ended up finding
a church record in Northern Ontario, where the priest happened to say that he
was Indian, and INAC accepted that. All you had to do was take a look at my
grandfather, and you would know that he was Indian.
If you look at Bill C-3, the same thing will happen again. INAC will apply a
strict interpretation to Bill C-3, and they will delay giving people status
under Bill C-3, just as they did to me and my 50 other cousins who were all
entitled under Bill C-31.
It has also come to my attention that there was a potential proposed
amendment other than what is in Bill C-3, and this is by leaving a legislative
void in section 6 of the Indian Act, basically meaning that no one would receive
Indian status ever again. Why was the public not informed about this potential
amendment? I just heard about it on October 26, not that it matters now because
we have been shown Bill C-3. However, why was that proposed amendment — or
threat, shall I say — not studied under the public eye of accountability and
I will deviate a little. Another issue of concern is the round-table process.
The federal government has advised that funding for the round-table process
would not be forthcoming until Bill C-3 is passed. Why is that? If the
Aboriginal organizations do not agree to Bill C-3, will they not get funding?
This is akin to Pavlov's classical conditioning, where you ring the bell or show
the steak and the dog salivates. Is that what Aboriginal people have been
brought to? Where is the good faith in this, in withholding the funding on a
Indians status and citizenship have nothing to do with each other and should
be kept as separate issues. Status is all about the provision of services by
INAC, and citizenship deals with belonging to a community. The round-table
process on citizenship can still go ahead even if Bill C-3 is not passed.
The federal government is using the money for the round-table process as a
means to entice the Aboriginal organizations into compliance. We all know those
Aboriginal organizations are dependent on the federal government for funding,
and that any time they disagree with the federal government on any policy or
legislation, they are threatened with funding cuts.
A prime example of this is when the First Nations governance act was
introduced in 2003, I believe. We all know that the federal government slashed
the Assembly of First Nations' funding in half, and they have never recovered
A round-table process is not the way to go. Furthermore, what is the mandate
of the round table? There is no set mandate; there are no terms of reference.
Basically, the federal government is saying that it is up to the First Nations
We all know that the people will not agree on a single citizenship code
because we are all different peoples; we all have different cultures, values and
customs. A round-table process is a one-size-fits-all approach that violates the
principles of the Harvard project, especially the cultural match.
The federal government is using the round-table process as a means to get the
organizations to buy into Bill C-3. It is a ploy. They want to show the UN that
they are letting the people decide the issue of citizenship, when, in fact, they
are doing the opposite. They are putting off the issue of dealing with gender
inequality in the Indian Act by throwing round-table money at us. This is
unethical and morally wrong.
First Nations have the right to self-determination and the right to determine
citizenship. Aboriginal people also have the right to participate in their
communities with their people. Assist them, instead. Let the First Nations
discuss citizenship on their own, in consultation with their communities, as
they see fit.
The Sandra Lovelace decision from the UN told Canada this in 1980. Let us not
make another Aboriginal woman spend the next 20 years of her life taking the
federal government to court, such as Sandra Lovelace and Sharon McIvor.
My recommendations are to amend section 6(1)(a) to include all section
6(1)(b) to (f) and section 6(2) Indians, and assist the First
Nations in developing a citizenship process that meets the needs of their
The Chair: Can you send your paper to the clerk so that we have the
right sections exactly the way that you want them?
Ms. Desrochers: Sure.
Senator Baker: I will put all of my questions because I can see that
we are on a timeline.
First, I would like to congratulate the witnesses for their excellent
presentations, each one of them. I make note of the fact that I noticed just
last week, in a judgment of the Superior Court of Ontario, a reference to
Professor Chartrand and some work that he had done in a publication. I also
believe that Mr. Devlin was one of the litigators in the McIvor v. Canada
case, is that correct?
Mr. Devlin: I represented one of the intervening parties.
Senator Baker: Our major problem with this legislation is with the
decision of the Court of Appeal and with the decision of the Speaker of the
House of Commons. The bill addresses only the Court of Appeal's decision in a
very narrow way.
I do not know if the clerk of the committee has advised the chair of this
committee yet whether we can deviate in this Senate committee from a decision of
the Speaker of the House of Commons on procedure. It is an interesting
procedural question. I was once the law clerk of a provincial legislature — that
was 40 years ago, but I know we could not deviate at that time.
My question relates to the Court of Appeal decision. The trial judge is
reported in 70 pages of judgment in this case, which appears to be a thorough
analysis. In effect, what the trial judge of the Superior Court of British
Columbia did is do exactly what Professor Chartrand and the other witnesses have
said here today — and you as well, Mr. Devlin — in that judgment.
However, the Court of Appeal struck it down. After reading the decision, I
still cannot figure out why. Half of it, I suppose, was because of standing in a
Charter argument, in that you cannot put forward someone else's Charter
violation and look for a judgment before the court. That appeared to be half the
The other half was that the matter was not addressed in the evidence at
trial. I do not completely understand that after looking at the decision of the
trial judge. I would like for each of you, if you wish, to comment on why the
Court of Appeal was so restrictive in their judgment.
The second question has to do with liability under this act. Under this act,
you are not allowed — well, you can try to do it, but the government will not be
held liable for any compensation or any form of monetary compensation from a
judgment that pertains to the subject matter of this bill. My question to you on
that particular matter relates to why that is there. I know it is not new to
legislation, but in this particular case, the next clause that comes after it is
the last clause of the bill, which dates the decision on the bill back to April
of last year.
A final comment, Mr. Devlin, for you to comment on, is that in Ontario, we
have the Martin report on how Crown attorneys are supposed to conduct themselves
as ministers of justice. Crown attorneys in criminal courts go out of their way
not to be told, ``Your desire cannot be to win a case. That is not why you are
there. You are there primarily as an officer of the court to ensure that all the
evidence is presented.'' It appears to me as if there is an overly adversarial
approach taken by the attorney general in addressing matters such as we are
talking about here today.
Those are my two main questions to Mr. Devlin and my request for a comment on
my observation at the end.
The Chair: Senator Andreychuk, I suggest you ask your questions so
that the panel can respond to all of them.
Senator Andreychuk: I understand the decision. Senator Baker and I
could continue this on some legal points, as we usually do. Mr. Chartrand and
Ms. Desrochers, the court narrowed it down to one specific issue. The government
is saying that there are many more issues. However, I understand both of you to
be saying that the Aboriginal leadership is not the correct group to be
negotiating with the government. I understand that you want direct consultation.
Does that mean each and every Aboriginal person has to be consulted by the
government? I would love that too, but the government does not consult with me
on all the legislation that applies to me. They have to find a representative
group to speak for people.
The other fact is that it is open and people can write to the government or
email them. You can do all kinds of things. You can protest on the street. You
can show your like or dislike for proposed legislation in many ways in a
I understood the consultation process was to give Aboriginal people a voice.
We have been persuaded again and again that the leadership has changed. We have
an Aboriginal urban group. We have the Assembly of First Nations, AFN. We have
Native women's associations. Am I hearing you say that they are not
If equality is accepted in the Aboriginal community, why is it dependent on a
trigger of the federal government? Why are the Aboriginal leaders not triggered
into saying that this is unfair and unjust in their communities and that they
will take on some of these issues within their communities? I go back to the
matrimonial property act. If there are injustices, they have been put in to
positions of leadership. It cannot be money only, which is important. There must
be some sense of community and justice within the Aboriginal community that
needs to be addressed.
The Chair: I will throw in one more question. Professor, you used the
word ``dignity.'' I am aware of its historical use in United Nations documents
and so on. It is not a word that I like. I am sort of like the Andrews test in
the Supreme Court and not the Law test. Why did you choose to use the word
``dignity?'' I always thought that dignity does not really deal with issues
surrounding clean water, housing, food and education. It just does not deal with
it. I am curious about that. Other senators' questions are probably more
Mr. Devlin: I will respond as quickly as I can to Senator Baker's
questions. As I understood, the first one was why it is so restrictive in the
Court of Appeal's judgment and how that relates to Bill C-3. To understand the
actions of the Court of Appeal, unfortunately it involved a technical reading of
section 15 jurisprudence of the Charter — the equality provision, the Law v.
Canada case. Both the Court of Appeal and the trial judge identified the
right at issue to be the right to transmit cultural identity. They parted
company on the issue of the appropriate comparator group. When one assesses
quality issues, one needs to find the appropriate comparator group in the legal
exercise. That is how one determines the extent of the discrimination that has
The trial judge focused on this hypothetical brother of Sharon McIvor as the
comparator group. The Court of Appeal focused on the double-mother rule people.
Again, the Court of Appeal said that the appropriate comparator group was a
group of people whose mothers and grandmothers were non-Indians, and when Bill
C-31 came into effect in 1985, they went from having their Indian status subject
to removal as double-mother rule people to, presto bingo, receiving full section
6(1) status under Bill C-31, whereas Sharon McIvor's grandchildren received
nothing. The double-mother rule people were deemed to be the comparator group.
That is the reason that the act refers to September 1951, the time that the
amendments to the Indian Act were made that brought in the double-mother rule.
Furthermore, that ties in with our last recommendation of the modest
amendment that we say should be made, which is the addition of a new section
6(1)(c.2). In our view, that is within the ambit of the Court of Appeal's
decision because we are not trying to extend the scope of the bill to people who
would have lost their status as a result of the sex discrimination prior to
September 1951. We are trying to keep it therein as much as possible. Again,
refer to that table on page 9 where you can see where we have identified the
continuing discrimination and why this small proposal still falls within the
ambit of the legislation as proposed and the Court of Appeal judgment.
I am afraid that I do not have an answer for you as to why the government is
choosing to limit its liability. We note it in our paper, but I cannot say much
more on that point.
In terms of the impartial view of the Crown, you mentioned an overly
adversarial approach taken by the Attorney General. Again, I cannot comment on
the litigation strategy of the government. I know that the government has taken
this narrow perspective. They are not trying to reopen the debate to the level
seen in 1985. In our brief, we said that given the opportunity that has been
presented by the court, the government should try to eliminate the sex
discrimination at least. It has been percolating in the system long enough. Let
us get it done and not have more Sandra Lovelace or Sharon McIvor appeals to the
United Nations and other bodies. Let us finish it here if we can.
Mr. Chartrand: I would agree with Mr. Devlin on his perspective of the
Court of Appeal decision. The proposals that the CBA addresses to eliminate some
of the existing residual gender discrimination in the current act would not go
beyond the scope of the act, even as the Speaker defined it. These amendments
simply fall within the scope of the existing act. They would allow the new
registrants to be able to pass on their status in a way that is equal to those
who would have received their status through the paternal line. It eliminates in
a very small way that existing, ongoing gender discrimination.
On the question about consultation, that is fairly involved because it goes
to the heart of the question of which Aboriginal entity is entitled to benefit
from a constitutional legal obligation to be consulted on issues that affect
their interests. The Supreme Court of Canada has spoken quite clearly about the
test that needs to be satisfied by an Aboriginal organization to benefit from
the obligation of the Crown to consult and indeed accommodate. It must involve a
claimed Aboriginal right or treaty right that has some compelling strength to
it. It has to be more than just an assertion. There has to be some kind of
evidence to give weight to it. Once that exists, then the government is indeed
obligated, under the Constitution, to consult with the Aboriginal nations that
are entitled to that benefit of consultation.
Are those Aboriginal organizations the political ones we know about — the
ANF, the Congress of Aboriginal Peoples, and the others — or are those rights
attaching to the Aboriginal communities and nations as they are defined
organically as a result of their history and ethnicity, from time immemorial to
the present day? It is that group that is entitled to the consultation
requirement and to determine their citizenship, according to international human
rights law. My colleague here has a point about the legitimacy of these
organizations to represent the interests of Aboriginal peoples in this
In terms of the issues on the ground on the reserves, there is a lot of
internalized paternalism by the leadership in Aboriginal reserves, which is
generally male. There are many internalized gender views about the value of
women that are the result of the imposition of the Indian Act, which has
discriminated against women for 200 years. To some extent, that is now part of
the milieu of those communities. It is not necessarily appropriate to say that
the communities need to address that now because it is the Government of Canada
that has caused the circumstances that create inequality on the reserves, on the
ground, between 6(1) Indians and 6(2) Indians. There needs to be a facilitated,
concerted social justice project to help address that inequality, and it will
not come from Bill C-3.
On the question of dignity, when we talk about value as a human being and say
that someone is less valuable than someone else, I think that goes to a question
Ms. Desrochers: I will respond to the first question. I agree with the
CBA about why the Court of Appeal took such a restrictive approach, but I will
add a bit of controversy to that statement. Judges are human, just like us. When
you look at the issue of Indian status under the Indian Act, it is a
controversial issue, as is Aboriginal title. Aboriginal title cases have spent
20 years in the courts. They make it to the Supreme Court. The Supreme Court
does not make a decision and sends it right back to the trial judge.
No one wants to deal with the big issues of Aboriginal title and Indian
status, registration under the Indian Act. I look at the Court of Appeal
decision as killing two birds with one stone. It satisfied the federal
government, and it satisfied some women. I am adding a little food for thought.
With respect to the court's decision, it was the judge's decision to make, but
judges are human as well.
With respect to the liability for compensation and why they put it in there,
they want to save money. When the federal government is developing policy,
programs and services, money is always the issue. The first thing that you see
in a briefing note on any policy that is created is the phrase ``might create
precedent.'' They are putting that liability clause in there to protect their
For example, I applied in 1985 to become a status Indian. I was 15 years old
at that time and just about to finish high school. In the 1990s, I went to
nursing school and also studied computers. I paid for all that on my own. I
received my status card in 2000, just as I was entereing law school. My law
school education and my Master of Laws were paid for by INAC under the Indian
status. They are basically saying, ``If we provide compensation, how much money
will we spend reimbursing everyone?'' I should have had status back in 1985, so
they are looking at it from that point of view.
With respect to Aboriginal leadership and representation, I want to clarify
the point that the national Aboriginal organizations are not leadership at all;
they are corporate bodies with a board of directors. They were established by
the federal government. I am not disrespecting the people who work inside those
organizations. Those organizations are funded by the federal government.
Therefore as soon as they say, ``No, we do not want to pursue any of your
policies,'' INAC turns around and says, ``We will pull your funding or withhold
your funding.'' The round-table process is a prime example. Those organizations
will not receive any money until Bill C-3 is passed. The two issues of
citizenship and status have nothing to do with each other. There is no reason
for the round-table process not to have occurred last spring, when it was
floated out there as an idea.
I agree with everything Professor Chartrand said about the issue of
representation. Many people are living under the Indian Act; all they know is
the Indian Act. Representation is a controversial issue in terms of trying to
get people to think outside of the Indian Act and to look at what else might be
out there. Do we even necessarily need another act to replace the Indian Act? I
do not think so. Section 35 speaks about the inherent right of self-government.
These indigenous nations are states; they are statehood. We were here first,
before the Europeans came over, living as nations and living on our own. We did
not have an Indian Act telling us what to do; we just did it. It is a matter of
trying to get the people to assert.
One of the principles of the Harvard project is asserting sovereignty. They
found that the most successful First Nation tribes in the U.S. were in fact the
tribes who took it upon themselves and asserted sovereignty, and they are
Mr. Chartrand: I was here at four o'clock when the minister presented.
One of the comments that struck me was that if the government does not act,
there will be a legal vacuum. That may be true in that the registration
provisions of the Indian Act might not apply, but it is not a legal vacuum in
terms of the laws of the nations that are indigenous in terms of their
citizenship and who they are. That tends to be a prevailing view in government
and sometimes in the courts, that unless there is legislation, there will be a
legal vacuum. However, that is not true. Indigenous nations have legal
traditions that govern everything from resource management to marriage to
adoption to citizenship. They have been overwhelmed, of course, by legislation
imposed by foreign governments dictating who they are. When the communities try
to regain their sense of identity as opposed to relying on the government,
problems will occur in trying to address the impact of that history.
In the United States, Aboriginal tribes have sovereignty over their
citizenship. It is not a scary thing. The tribes in the United States have had
sovereignty and have controlled their citizenships since 1832. The government
negotiates on a tribe-by-tribe basis because they treat them as nations
independent of one another. They do not try to come up with a national program
that covers every Aboriginal tribe in the United States because that would
ignore their difference as nations within the United States.
That is my other point.
Ms. Desrochers: I wanted to mention a couple of other things. One of
the senators asked why the Aboriginal leaders are not saying that they want to
deal with Bill C-3. In fact, they are saying that they want to deal with Bill
C-3. These are the leaders on the ground of the communities, and they are saying
that. However, they just do not have the resources to deal with it.
This issue is not about the people. It is about the federal government. We
need to place the focus back on the federal government. The people want to deal
with the issue of citizenship. It is a problem of not having the resources, and
the federal government does not want to provide the resources. The federal
government wants to get rid of the post- secondary funding and health benefits,
and we already see what the federal government is doing with the post- secondary
funding program, and health benefits as well.
One of the senators said that there are ways to express our views about
legislation that we do not like. I believe she said that we can write letters or
send emails or we can protest on the streets, and that there are other ways that
Aboriginal people can have a voice. Yes, we can send and write emails. We have
been doing that since April. Have we been listened to? I have been sending
letters. I sent a letter to the Prime Minister in May. I have not received a
response. I sent a letter to a couple of political leaders a couple weeks ago,
after October 26. I still have not received a response.
You can write a letter, but will you receive a response? In the meantime, has
that bill been passed? As we all know, people do not like to protest. It is
frowned upon. I do not know; if you have someone proposing that we go out and
hold a protest, then the federal government will turn around and tell us we are
a bunch of terrorists. There are incidents where that is happening.
Even though we are out there protecting our rights as Aboriginal peoples, the
federal government views us as terrorists. We are the only race in the world
that is called terrorists when we are trying to protect our Aboriginal and
There are many arguments one can make in court to those arguments, but those
are just some of the barriers we face. All Aboriginal peoples across Canada are
not the same. Every community is different and approaches their rights
differently, and they have differing views. I wanted to bring that point home.
The Chair: Thank you very much, all three of you. That was an
interesting way to end. You sure push our minds.
(The committee adjourned.)