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Proceedings of the Standing Senate Committee on
Human Rights

Issue 8 - Evidence


OTTAWA, Monday, December 6, 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 3:02 p.m. to give consideration to the bill.

Senator Nancy Ruth (Chair) in the chair.

[English]

The Chair: We are here this afternoon in our last period of hearings to look at 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).

Our first panel of witnesses includes the Assembly of First Nations, the Native Women's Association of Canada and the National Association of Friendship Centres. I understand you have been told five to seven minutes, so try to stick to it. I will encourage you to stop or continue either way.

Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First Nations: Good afternoon. My traditional name is Puglaas. I am the regional chief for British Columbia. I am joined by my colleague Karen Campbell. I am pleased to be here on behalf of the Assembly of First Nations, AFN, as the regional chief for British Columbia and the portfolio holder for First Nation governments. I would like to thank the chair and the committee for allowing me to speak on Bill C-3.

First Nations are truly in an exciting period of nation building and moving away from governance under the Indian Act. We are in a process of establishing a new relationship with Canada, one that is based on the implementation of our rights, protected under section 35 of the Constitution, and that must now respect the principles and standards set out in the United Nations declaration as recently endorsed by Canada.

I am confident that our peoples will have a bright future within Confederation. There is, however, considerable work ahead of us, and not everyone shares the same optimism I have. The legacy of the Indian Act is significant and creates many challenges for all of us in making real progress and moving forward. It is not easy to shed well over 100 years of paternalism and wardship and move to meaningful self-determination. It is in this context that I ask you to consider Bill C-3 and the challenge of reconciling the question of who is entitled to be registered as an Indian under the Indian Act and the broader question of who is entitled to be citizens of our nations, a challenge that both lawmakers for Canada and lawmakers for our own nations must now address.

This is no easy task, as evidenced by the political conversation and the controversy that has already surrounded Bill C- 3. The current confusion and debate between citizenship and Indian status has its origins in the fact that since the mid- 1950s, Canada has tried to control our identity by defining who is legally an Indian.

Initially, the definition of Indian was quite broad and more reflective of how we saw ourselves. The first legal definition of who was an Indian included any person either of Indian birth or blood reputed to belong to a particular group of Indians, married to an Indian or adopted into an Indian family. This definition became more and more restrictive in an effort to enfranchise our peoples and to assimilate us into Canadian culture, and since 1869 these narrow definitions have specifically targeted First Nation women. Leadership made objections to these restrictions, specifically the loss of status to women who married non-native men. However, the government did not respond to those objections. Since then, this ongoing discrimination has had numerous adverse effects on our nations, communities and families.

Since 1985, Bill C-31 amendments to the Indian Act took steps to address the discrimination but at the same time created new discrimination and divisions. The McIvor case sought to deal with these issues, and now with Bill C-3 we have the opportunity to correct ongoing discrimination.

Therefore, and notwithstanding the broader question around nation building, let me state unequivocally that the Assembly of First Nations and First Nation leadership support removing all discrimination against our peoples that exists in legislation. Any discrimination is, in this time and place, unacceptable.

This position was affirmed by AFN resolution prior to the introduction of Bill C-3 and again reaffirmed in our annual general meeting in Winnipeg in July. To be clear, Bill C-3 should have gone further in addressing the broader discrimination under the Indian Act. Amendments were proposed and made at committee stage. Unfortunately, these amendments were ruled beyond the scope of the bill by the Speaker and disallowed.

Should the Senate see fit to reconsider proposed amendments to Bill C-3 and recommend again their approval to the house, I would respectfully submit that caution should be exercised so that the bill is not lost and we do not lose the opportunity to address the most egregious discrimination in accordance with the court's direction. While I recognize that Bill C-3 is not a complete solution, in the interests of those who will be directly affected by this bill, including persons who may be denied registration in British Columbia, the bill, with or without amendments, must proceed.

To facilitate a smooth transition for Bill C-3, it is critically important that adequate resources be provided to First Nations to address the increased number of registrants. This is particularly important where First Nations are providing programs and services on behalf of the Government of Canada in their communities and where already stretched resources will be stretched even more.

I now want to return to the broader question of citizenship. At one level, this discussion is about discrimination, but at a more fundamental level, it is about belonging, an association with a group.

For policy-makers and administrators, the issue of increasing members might be viewed simply in terms of budget pressures, service provision and access to resources. At its core, however, this is about community, and this is powerful. Our people are our greatest resource.

In British Columbia, as in other parts of the country, our nations are developing our own models of citizenship. The nation decides who is a part of the nation, who is a citizen, notwithstanding the legacy of the Indian Act and memberships.

In the context of modern claims, the determination of citizenship is a fundamental conversation that results in the collective setting the rules and the individual electing to be a citizen or not. Citizens are beneficiaries of treaties and can participate in the political institutions created through the treaty or agreement, but, more important for the collective, in exchange they are subject to the obligations of citizenship.

In announcing the proposed amendments to the Indian Act, then Minister Strahl also announced an exploratory process centered on registration, membership and citizenship issues.

While this announcement was met favourably, I am very disappointed that Canada has not made any progress on this process and is insisting that it be contingent on the passage of Bill C-3. With the recent endorsement of the declaration, Canada needs to move forward on this process in good faith, with clear commitment and meaningful outcomes. A discussion of citizenship within the broad context of nation building would be evidence of a fundamental shift in the relationship between our nations and the Crown consistent with the spirit and intent of our historic treaties and necessary to include modern land claims agreements with nations that enjoy unextinguished Aboriginal title and rights.

It reflects the beginning of a healthier and more mature relationship between our peoples and the Crown, not only with respect to the determination of citizenship outside the Indian Act but also to govern through our own institutions of government with appropriate jurisdiction and authority.

In closing, long-term solutions do not lie in further tinkering with the Indian Act. Our nations have an inherent right to determine who is and who is not a citizen of our nation in accordance with our own laws, customs and traditions. That is fundamental to self-governance. The real and ultimate solution to ongoing discrimination under the Indian Act lies with full recognition of First Nations' jurisdiction over our own citizenship. The contribution that will be made by our full citizenry when legally recognized through appropriate citizenship processes, in part supported by interim legislation such as Bill C-3, will be profound.

Finally Parliament is in a unique position to work in partnership with First Nations to undertake a comprehensive review of the Indian Act, its related policies and regulations and their intrusion into First Nations' jurisdiction and to put forward mechanisms for recognition and staged and supported implementation of First Nations' jurisdiction.

I hope that you will support this critical work of supporting First Nation governance. Thank you for allowing me time to present my comments.

The Chair: Thank you.

Jeannette Corbiere Lavell, President, Native Women's Association of Canada: Meegwetch, bonjour.

[Ms. Corbiere Lavell spoke in her native language.]

I would also like to acknowledge the people of the traditional territory we are presently meeting on, the Algonquin Nation. Greetings from the Anishinabek Nation as well as from all our native women across Canada.

Thank you for inviting the Native Women's Association of Canada to speak to your committee on these matters. As you know, these matters are crucial to Aboriginal women, our families, our communities and our nations.

The Native Women's Association of Canada is a nationally representative political organization comprised of provincial and territorial member organizations from across this country, and we are dedicated to improving the social and economic health and political well-being of First Nations and Metis women in Canada.

Meegwetch once again to speak to you, especially about this important subject and our perspective on Bill C-3.

The federal government has limited who is and who is not deemed an Indian and who is entitled to benefits according to provisions regarding membership within the Indian Act for many years. These limits and interpretations of our membership and citizenship, which were based on European values, have had devastating impacts on us as First Nations women because we have been excluded from our communities and from the key roles that we once held.

Our women traditionally commanded the highest respect in our communities as the givers of life, as the knowledge keepers of the practices, languages, traditions and customs of our nations, and as the protectors of water. It is well understood by all that the women of our nations have always held a sacred role as we brought new life into the world and as the bearers of our future generations.

As I am sure you are aware, key historical provisions of the Indian Act have altered all that. Now we need to explore what needs to be undone. We have the responsibility to return to our own understanding of citizenship. In our language, it means e-dbendaagzijig.

``Status'' and ``membership'' have become the words and language of the Indian Act. These words have also served to divide us and undermine our ability to discuss this issue in a language that would allow us to be more inclusive and representative of all our citizens.

In 1951, in addition to creating an Indian registrar, the legislation maintained the male privileged provisions. In addition, the legislation introduced what is now referred to as the ``double mother rule.'' This rule provided that if a child's mother and paternal grandmother did not have a right to Indian status, other than by virtue of having married an Indian man after September 1951, the child had Indian status only up to the age of 21. In the 1970s, I myself brought a case challenging the discriminatory legislative provisions of the Indian Act under the Canadian Bill of Rights. The Supreme Court of Canada in 1973 was divided and ruled that the provision did not result in any inequality under the law, with the reasoning that Indian women who married out were treated equally to other Indian women who married out. Discrimination is discrimination.

It was as a result of situations like my own and those of many other women like me that the Native Women's Association of Canada came together. Now, more than 40 years later, we are still dealing with the same issue.

In the early 1980s, Senator Lovelace Nicholas, an Indian woman who married out, was successful before the United Nations Human Rights Committee in securing a finding that Canada was in violation of Article 27 of the International Covenant on Civil and Political Rights, which protects the right to practise one's culture and language in community with other members of a person's group.

Following the Charter in 1982, Bill C-31 was enacted in 1985, which did deal with some of the gender issues to the extent that it reinstated women who had lost status by marrying out and those who had lost status at age 21 due to the double mother rule, and this is where I was able to regain my status as well.

However, this legislation continued to discriminate against Indian women who married out as their children were registered as 6(2)s, which is a second-tier status, and it did not correct the previous discriminatory practices contained in the act over time. In fact, it created a whole new scope of discrimination based on status and membership that continues to be felt today.

Although Bill C-31 was supposed to remove gender discrimination from the status provisions, after it passed, there were some real differences between Bill C-31 Indians and other status Indians.

The children of the women who lost status could not pass on status to their own children if they intermarried with non-Indians or non-status Indians. On the other hand, the children of status men who had married non-Indian women before 1985 were able to pass on this status to their children.

There are a number of issues still before the courts today arising from the status provisions of the Indian Act. The McIvor case was but one of them. The McIvor case was decided by the Court of Appeal on very narrow grounds, and the proposed legislation we are here to talk about today is to rectify that narrow aspect. Bill C-3 does that but only to a certain extent. It does not rectify the broader outstanding gender issues encapsulated within the Indian Act. This is not to say that Bill C-3 is not needed. In fact, any relief from gender discrimination is much needed and welcomed. Our women and children have waited far too long already.

It is, however, also important to say that there is still much work needed to be done to remedy the remaining gender biases, the foundations of which are steeped within the Indian Act and its definitions. For instance, Bill C-3 cannot and does not address the act's discriminatory provisions that continue to prefer a male lineage.

For many people, registration under the Indian Act also results in acceptance within the First Nation community. Since 1985, First Nations have had the opportunity to define their band membership within the parameters set within the Indian Act. Many First Nations are moving from the Indian Act terminology of band membership to use the term ``citizenship'' rather than membership at the individual level. As I said, we have our own word for that too, which is e- dbendaagzijig.

In addition, First Nations are moving out of the Indian Act regime through comprehensive self-government agreements, often assuming jurisdiction over their own citizenship.

Bill C-3 consists of causes that seek to remedy a smaller aspect of the discriminatory circumstances of Ms. McIvor and her children and grandchildren. Despite all the legislative changes in the past and with the new Bill C-3, the federal government has retained control under sections of the Indian Act regarding the determination of Indian status for all First Nation peoples.

The Court of Appeal in McIvor missed a wonderful opportunity to provide a meaningful remedy to change the discriminatory preference that favours the male lineage. The main complaint of the McIvor case is that the Indian Act since 1876, based on European values, said that only men could pass along Indian status. For example, if a father does not sign the birth registration form, or the father is not stated on the form, there is an assumption that the dad was non- Indian, and the mom cannot pass on the appropriate Indian status to her child. That is still there.

The proposed amendments narrowly address the main issue in McIvor. Indian and Northern Affairs Canada, INAC, claims that this will ensure eligible grandchildren of women who lost status will become eligible for registration, but not all grandchildren will qualify.

Over time, the federal government has unilaterally changed the definition of who is and who is not an Indian, all without the consent of First Nation peoples. The Indian Act has created the discriminatory provisions and various classifications of what constitutes being ``Indian'' based on its interpretations.

We, as First Nations people, know who our citizens are. We know the people who belong to our communities. They are our mothers, our aunties, our children and our grandchildren.

Looking at next steps, given the complexities of the status provisions in the past, it is difficult to ascertain what all of the impacts will be on our families, our communities and our nations from these changes that are being proposed. We do know the Indian Act is an archaic piece of legislation and that the current solution provided is narrow.

We are always reacting to legislation that has been defined for us and responding with fragmented solutions that have historically and are currently defining who we are as peoples and as citizens of our nations. At the end of the day, we will have to say that once again it is clear that the Indian Act is ill equipped and a poor instrument to use to resolve these broader issues of citizenship.

Our long-term vision will see us define who we are as First Nation citizens. The Government of Canada has committed to an exploratory process to have these more complex discussions about status and defining our own citizenship within our nations. The Native Women's Association of Canada, our provincial and territorial member associations and First Nation communities must receive adequate funding to discuss and address these issues so as to accommodate the increase in membership that this legislation will bring about.

As the First Peoples of this land, we have the right to determine who we are, and we look forward to ensuring that all of our women and all of our children are included as full citizens within our First Nations and all our communities. Meegwetch.

The Chair: Thank you very much.

Conrad Saulis, Policy Director, National Association of Friendship Centres: I also want to acknowledge the traditional land of the Algonquin Nation that we are on, and I appreciate the opportunity to present in front of this committee on behalf of the National Association of Friendship Centres.

The National Association of Friendship Centres, NAFC, is a national non-profit Aboriginal organization that represents the views and concerns of 120 friendship centres and 7 provincial and territorial associations across Canada. The NAFC's mission statement is to improve the quality of life for Aboriginal peoples in an urban environment by supporting self-determined activities that encourage equal access to and participation in Canadian society and that respect and strengthen the increasing emphasis on Aboriginal cultural distinctiveness.

As part of the work that the NAFC has done with regard to the McIvor case and Bill C-3, in November 2009, we hosted a national dialogue session with our regional representatives. The report of that dialogue session, with its recommendations, has been presented to Indian and Northern Affairs Canada.

At our July annual general meeting, we passed a resolution that recognizes that implementation of Bill C-3 will impact friendship centres as focal points that Aboriginal people will go to for information and help. The NAFC has submitted a proposal to INAC that details a series of national, regional and local dialogue sessions for urban Aboriginal people on membership and identity.

In 1985, Bill C-31 demonstrated the onslaught of new registrants and the challenges to come upon the passage of Bill C-3. While 45,000 new registrants may be eligible for status under Bill C-3, many more times this number of people will inquire and apply. Friendship centres will be heavily engaged by clients at all 120 local levels. The NAFC also recognizes that there will be increased demands and pressures on First Nation governments, with particular notice to education and housing.

INAC staff must work with friendship centres to train our local staff to be properly prepared for the questions to come. A strong national communications strategy needs to be developed, which includes recognition of the NAFC and the friendship centres. Fiscal resources must be provided to friendship centres for the human resource time and support they will be providing throughout the implementation of Bill C-3.

Our proposed engagement strategy would provide a series of urban, community-based dialogue sessions that provide opportunities for Aboriginal people living in urban areas to discuss nationhood, citizenship, membership and identity. It would also provide recognition and inclusion of the urban Aboriginal population and recognition of increased demand for services on- and off-reserve. It will also provide opportunities for urban Aboriginal youth to voice their perspectives and prepare for the future.

However, Bill C-3 does not resolve the issue of gender discrimination in the Indian Act. Persisting issues and exclusions remain. The NAFC believes there are present-day opportunities to fully study and explore remaining outstanding gender discrimination issues. There are roles and responsibilities for governments and Aboriginal people to engage in seeking proper solutions to remaining gender issues in the Indian Act.

Respectfully, the NAFC recommends that INAC establish a specific strategy with the NAFC, which will provide training to front-line staff and provide resource materials on applying for status. As well, friendship centres should be compensated for work that they will be required to provide pertaining to the new amendments, so that these organizations are not adversely affected by these required legislative changes. The NAFC proposed engagement strategy should be approved, with funding to carry out the strategy as detailed in our proposal.

Finally, the NAFC recommends that this committee conduct a study on removing gender discrimination in the Indian Act and seek solutions to redress historic exclusion and alienation of eligible Aboriginal people from obtaining their First Nation status, citizenship, identity and membership.

The Chair: Thank you very much.

Ms. Campbell, I will leave it to you to pitch in at question time, should you want to share something then.

Senator Baker: I would first like to congratulate each of you for your presentations and for the detailed information you have supplied. As you each point out, this is a Senate committee. This is sober second thought on proposed legislation that comes from the House of Commons. This bill will soon be reported, and we will be in discussions later this day concerning the future of the bill.

As you know and as you pointed out, amendments were introduced in committee in the House of Commons that would have drastically altered this bill and that, as was pointed out a moment ago, the Speaker judged to be out of order.

I am looking for a definitive answer to this question: What exactly are you recommending to the Senate committee?

Starting with the congress, you said we should exercise caution. You also said you wanted to make sure that in our exercise of caution we ensure that this bill is not defeated. I get that as a general assessment from each of the witnesses. Could you elaborate on that?

Each of you has said that the government has committed itself to an exploratory process. Have you been given guarantees that that will take place? Have you been given any guarantees as to what the outcome of that will be? First, could you verify that you do not want us to amend this legislation as you have suggested. My question is to the congress first, please.

Ms. Wilson-Raybould: Just a point of clarification: I represent the Assembly of First Nations in this regard.

I appreciate your question. I will further elaborate on my presentation with respect to the future of the bill and your deliberations later today.

To be clear, our chiefs in assembly, by way of numerous resolutions, sought, and seek, an elimination of all discrimination within statutes within the Indian Act. Further, this bill does not do that. This bill simply seeks to remedy the discrimination as pointed out by the B.C. Court of Appeal.

I would further submit that the Assembly of First Nations and our chiefs in assembly look to the more important discussion of citizenship, recognizing the challenges and the enormous effort put forward by Ms. McIvor in this regard. The question of status is different from the question of citizenship, and the latter question is the question that our chiefs in assembly have directed us to work towards.

As I mentioned, we were informed, as was everyone, with respect to the exploratory process. We have had some discussions with the minister, as well as his staff, around the exploratory process. We were excited to engage in this process to advance the separate dialogue around citizenship and support for our First Nations jurisdiction over the determination of our own citizenship.

Much to our displeasure, this has not started in earnest as yet, as it is dependent upon the passage of Bill C-3. We see this as a separate and more important discussion in advancing and supporting our inherent right to determine our own citizenship. As a national body, we want to assist our chiefs and support the autonomy of our First Nations in their communities in advancing this discussion individually. Wherever possible, if we can assist in this regard by bringing together a national forum that will explore the diversity of the issues and the interests, that is what we are hoping will be advanced by the federal government in this regard.

Senator Baker: I appreciate your information, but my main question is this: You said in your presentation — and I wrote it down — that you are suggesting we exercise caution. I gathered from that that you were saying that if this bill is amended, it will of course have to go back to the House of Commons. The Speaker of the House of Commons has already given a judgment on the amendments to the bill that are needed to satisfy the requirements of the witnesses here today. Am I correct that you are telling us to be very cautious and not to amend the bill if the chance would be there that the bill would not pass a final reading in the House of Commons?

Ms. Wilson-Raybould: Thank you again for that clarification. I recognize that the court-imposed deadline has been abridged twice and is coming due on January 31 of next year. I understand the realities of sending amendments back to the house and that they were out of the scope of the bill, as initially expressed by various members.

What I stated in my submission, and what I will restate now, is that this bill is an interim step. It does not remedy all the discrimination, obviously. We would seek to remedy that. Having said that, I recognize that in order to remedy all the discrimination, the reality is that the deadline imposed by the court will be abridged again, leaving a vacuum in British Columbia and a challenge for those persons who choose to be registered as Indians under the Indian Act.

Senator Lovelace Nicholas: Thank you. It is good to see everyone again. Some of you I have seen many times.

My first question is to the AFN. You mentioned that the bill should be passed as is, even though there are no amendments to it. Would it not cause the same problems in 20 years, the same discriminatory section for women?

Ms. Wilson-Raybould: Thank you, Senator Lovelace Nicholas. I hear you on that, and I recognize the reality of the situation we are dealing with in trying to seek a remedy on a piecemeal basis under provisions that have sought to take away from our women and our communities. I recognize, as you rightfully point out, that this will not remedy all the discrimination under the Indian Act. Absolutely, I recognize that.

Senator Lovelace Nicholas: Would any of the witnesses propose that the discrimination section of the Indian Act should just be removed from the Indian Act altogether?

Ms. Corbiere Lavell: I would agree that, as Aboriginal women, we are always seeking equality according to our traditions. This is what we had within our communities, that sense of equality, respect and harmony. If we can influence any kind of legislation that would allow this to continue within legislation, by all means, that is what we should be seeking. The work that is going on and that has been going on is all steps to bring that about. What I can see happening now is that we are dealing with just more steps in the long-term process.

If this current bill could bring some of those members who have been excluded — not all of them, because we all know that cannot happen — back within our nations, that would be acceptable to many of our chiefs, our communities and our families, because they want their people to be back within our communities. This would recognize some of them. However, it still excludes many. There is another policy that excludes unstated paternity. That represents many of our people.

Within the Anishinabek Nation, we have set up our own governance structure. Within our governance structure, we set up a commission on citizenship. We call it the rule for those who belong. We have done our community consultation and it has been recognized. We are prepared to do it and we know who our people are. That would remove all the discriminatory sections that are there. That would be ideal.

Senator Lovelace Nicholas: We know who our people are, but INAC is always asking us to present documentation, for example, a birth certificate or something that says you are an Aboriginal person. Long before all this started, there were women who were taken off the list — and not just women. Some women have come to me and said, ``What about us? We want to be recognized. We want the same rights. Why not us?'' No one has ever mentioned those women who are still being refused in their communities. What about those women?

Ms. Wilson-Raybould: I appreciate your comments, and I recognize the importance of the comments that you make. I also recognize the importance of the opportunity that was provided to the Government of Canada to once and for all remedy all discrimination under the Indian Act. I know that evidence will be given later by Ms. McIvor with respect to the realities of how that could be possible. Those suggested amendments were ruled out of the scope of the bill. Some other key persons have given evidence before this committee that arguably could be within the scope of the bill. There was an opportunity to do it; it has not been done. Will the reality of not passing this bill further impact and penalize other persons in my region in British Columbia as well?

We are looking towards the broader question that we are looking to the Government of Canada to commit to substantive outcomes on supporting our First Nations, supporting our First Nations' inherent jurisdiction over citizenship and supporting our First Nations' governance. We look forward to commitments to moving forward on this exploratory process that will ultimately result in support for First Nation governance.

Senator Lovelace Nicholas: I very much understand the frustration. What about compensation for these women who have suffered? I do not think I have ever heard anyone raise that. I do not know whether it was brought up in the House of Commons. Human rights are not my particular area, but what about compensation and infrastructure for this influx of people coming into the communities? As Mr. Saulis has said, they will need infrastructure money to accommodate the people coming in.

Ms. Wilson-Raybould: I hear you on that question as well. The initial bill, as introduced, contained proposed section 9, which provided a shield to the Government of Canada against action or actions for compensation by various people. That was a suggested deletion, but it was reinstated in Bill C-3. Unfortunately, I cannot provide an answer in that regard.

Again, you reference the issue of resourcing. My friends here have also mentioned the challenges that our organizations will face in resourcing and responding to this bill and, more important, the challenges that our First Nations in our communities will face in welcoming back new registrants as part of our nation. The programs and service delivery that we are undertaking in our communities will be further taxed. Why will the programs that the Government of Canada offers to our communities be further taxed, like non-insured health benefits, and so on?

Senator Lovelace Nicholas: Anyone else?

Mr. Saulis: Thank you, Senator Lovelace Nicholas. With Bill C-31, there is an opportunity here for people to look back to 1985 and what happened in the decade following that, for example, the impact of so many people coming back to the communities and wanting to be able to benefit from having status, whether post-secondary education, housing, or any other thing that status accrues to First Nations.

We want to look back to that time and see what happened, both on-reserve and off-reserve as well in urban areas, because friendship centres did feel a big influx of people coming to the doors, which will happen again in this situation. There will be many people, many more than the projected 45,000. It will put a lot of strain on the friendship centres. We are definitely trying to prepare for it. That is why we are hoping the federal government will include a good and strong communications strategy that will provide training to our front-line staff so that they can adequately provide information and help to the people who come to our doors to seek information.

Yes, there will be a major economic impact on friendship centres in the coming months and years. However, there is also an opportunity here to look back at 1985 and shortly after. I would like also to respond in terms of what other opportunities are in front of us to work together to look at gender discrimination, the Indian Act, and other pieces of legislation, wherever that may be, but definitely with the Indian Act, to seek some kind of unified perspectives on that. There is much to be gained by many people who will still be exempt from Bill C-3.

The Chair: Thank you both very much.

Senator Brazeau: Good afternoon to all of you and thank you for your presentations. I think we can certainly all agree that the Indian Act has been the biggest barrier, specifically with the registration provisions in the Indian Act.

I am sure we will also all agree that this proposed legislation is an answer to the B.C. Court of Appeal decision, which was narrower than the B.C. Supreme Court decision. However, it does answer to one part of the discrimination under the Indian Act. I fully agree with the comments that were made; I believe that First Nations should decide who their own members are. However, we also live in the sad reality called the Indian Act. Until that is eliminated, it will be difficult to get to those serious discussions on status, membership and perhaps citizenship.

Having said that, do you agree that at least passing this bill will give the right to 45,000 individuals, maybe more, maybe fewer, to be identified as who they truly are, and they deserve that, on the one hand? Also, with respect to the exploratory process, what level of confidence do you have that, if this bill is passed, this will give organizations and First Nation people the opportunity to consult their own constituents with respect to moving forward on these registration, status and citizenship issues in the future?

Ms. Corbiere Lavell: I will share a recent resolution from the Native Women's Association of Canada's annual assembly. Our women from across Canada have pointed out that we will support this current government's initiative to address some of those discriminatory practices within the Indian Act as what must be dealt with in the court decision. However, we would like to see the ongoing engagement of our communities, and I am sure that they will be there and be ready to work with the government on the broader issues to hopefully eliminate all those discriminatory sections within the Indian Act. In the meantime, once these people are accepted back when this is passed, there should be enough resources for our communities, our First Nations, to adequately provide for them. That will be crucial. We cannot just sort of say, ``Okay, this will be passed,'' without the understanding that there will be an added impact and the recognition that more work will have to be done with the First Nations, with us as national organizations and with our women and families.

We hope this will be the first step in a good working relationship with the government to ensure that we eliminate discrimination within this legislation. It will also bring back some of our citizens who have been lost. We need to have them back. Our elders are saying that. In two years' time, some of our communities will have no more status Indians. That is really heartbreaking. We must recognize our people. It is our role and responsibility, as mothers and as grandmothers, to recognize our children and grandchildren.

Ms. Wilson-Raybould: Thank you, Senator Brazeau, for your questions. I repeatedly say that our nations are in a period of transition and wanting to move out from under the Indian Act. The reality is that there are some provisions within the Indian Act that our First Nations are currently using. Our First Nations are currently, in a bigger reality, having success in moving beyond the Indian Act and negotiating self-government arrangements or sectoral governance arrangements.

I am also on council in my home community, and we have looked at the realities of Bill C-3 and what impact potential new registrants will have on our community. We have estimated that potentially 300 new persons will be registered as Indians under the Indian Act and will come back to our community.

More important, my community is engaged in dialogue with our community and is working towards developing our own citizenship laws and putting that law in place. This is where the dialogue gets somewhat conflicted or confused. I do not find nor would I ever see my identity as having been attributed through a piece of legislation — in this case the Indian Act — nor would I imagine that the 300 persons coming back to my community would see their identity as being attributed through a status provision of the Indian Act.

We are moving to the exploratory process with the Government of Canada, which you indicated, wanting to do it in partnership to seek solid outcomes and commitment to move down the path of self-determination that empowers our communities and our citizens on the ground to act, as they are doing across the country, on their inherent right to self- determination. This is where our identity lies. This is how we will advance as First Nations. It is through our own laws, based upon our own customs, traditions and culture.

Mr. Saulis: I thank Senator Brazeau for the questions. We need to keep in mind the people beyond the 45,000 or 55,000 and try to work together to see what we can do to resolve the gender discrimination issue within the Indian Act with a focus toward them. They want to have their status. They want to be First Nation people. They want to be able to say proudly that they are a member of a certain community or a certain nation.

I think the exploratory process may provide some opportunities along that way to begin the dialogue. I do not think it will necessarily resolve everything at the same time, but it is a step of the process. Through the dialogue, and with what I see, hopefully anyway, bridges will be built through the exploratory process. The people who are beyond the 45,000 — I will use that number because I do not know how many other thousands of people would be affected — I just want to keep them in mind. I want us to keep those people in mind because they have been left out, and they are still out there, living in this country.

I am also fearful that First Nation communities and friendship centres will be adversely affected because of the stresses on existing budgets. Those budgets are already put to the test, with more people coming back and wanting to be able to access various programs. Many more First Nation communities will be in very serious financial situations, I believe. There must recognition that Bill C-3 must have fiscal attachments to it.

Senator Brazeau: My second question is more technical in nature. Looking back at 1985, the majority of the more than 100,000 individuals who regained status remained off-reserve for different reasons. I would imagine that of the 45,000 people who may regain status if this bill is passed, again the majority would be off-reserve. I understand some of the challenges in First Nation communities with the influx of people. After 1985 some communities did have difficulties, but again, the majority do live off-reserve.

If you do the quick math, 45,000 individuals divided by 615 communities is about 75 members per community who would go back to their own community. Obviously that might fluctuate, depending on the community. Some communities might be more affected than others. On average, 75 members potentially would go back to their communities, if they all went back.

Have any of your organizations done any research on where these potential 45,000 individuals may be, and do you have a sense of the balance between on-reserve and off-reserve?

Ms. Corbiere Lavell: The Anishinabek Nation in Northern Ontario has been working on developing its own governance structure, and determining our citizenship is just one of the facets it is dealing with. We are looking at the demographics, at the impact on our communities. The Anishinabek Nation did community consultations, and in those consultations all agreed that to keep our nations strong, to regain that sense of identity, culture and language, it would be up to our own communities to determine who our citizens are and that we would follow the one-parent rule: As long as have you one parent, then you would be a member of that First Nation community. The Anishinabek Nation is also looking at the resourcing of the new members who would be entitled to come back. It was also recognized that many of them would not necessarily move back to the communities, but they would be living in places where they could get employment or education, et cetera. That was taken into consideration.

I would invite you to approach the Anishinabek Nation to visit and see the kind of work people there have done. The work is there. It has been documented.

Ms. Wilson-Raybould: Our nations are currently undertaking that research. I spoke specifically about my nation, and my nation's population is just shy of 1,000 people. The individual work that we have to do to estimate the numbers, which I said were 300, I imagine, would be reflective in each community across the country. That certainly far surpasses the 45,000, but these are just numbers, and we cannot estimate them to any great degree. We need a practical plan that will address these and the resources that will address the numbers of people who will come back into our communities. We are looking to the Government of Canada to participate in the development of this plan that will respond to the needs of each of our individual communities, and, certainly, the Assembly of First Nations would support that work.

The Chair: Thank you all for coming. You have made great presentations. It has been a great help.

Next, we welcome Sharon McIvor, the woman who has demonstrated so much courage in making this fight, and her lawyer Gwen Brodsky, both from the province of British Columbia. We would ask you to present, and we will give you a full hour.

Sharon McIvor, as an individual: My name is Sharon McIvor. I am a Nlekepmux from South Central British Columbia. My band is the Lower Nicola Indian Band, and we are situated just outside of Merritt, B.C. Seated to my right is my friend and colleague and probably one of the best Charter litigators in the country, Gwen Brodsky.

Ms. Brodsky and I have been on this journey together for a while, and it looks like it may not be ending any time soon. We were hoping that after the B.C. Supreme Court decision we were looking at the culmination of something really important happening.

However, I do want to acknowledge the history that goes along with the strong women that went before me. I want to acknowledge Mary Two-Axe Earley, Sandra Lovelace and Jeannette Corbiere for the work they have done to bring us to where we are. I also want to acknowledge women who were with the Indian Rights for Indian Women group: Nellie Carlson, Jenny Margetts for the Native Women's Association of Canada that came out of Indian Rights for Indian Women; Jane Gottfriedson and Gail Stacey-Moore all have left without seeing what they have been fighting for. They are gone; they have moved on.

They fought for years and years and years to have equality for Indian women. It does not seem like a big thing in Canada, to have your basic human rights met, to have equality.

They and many others have died wishing that it happened, and it has not happened. The bill that you have before you that you are considering — and, I suspect, will just rubber-stamp — is a piece of garbage, to be frank; the chair asked us to speak in plain language. It does not do anything near what it should do.

We are talking about an exploratory process, and yet you have a bill that does not even address the part of the equality that we were demanding. It is not something that we should be asking to have recognized. It is our basic human right to be equal. It is our basic human right to be able to belong to our communities, and we are here begging that you do something about it.

It seems totally outrageous. What are we offered in return? It is not even I and my sisters, the ones who are being affected. We are not being offered anything. Some of us will be elevated to a different status, and some of our grandchildren will be added, and we left a whole lot behind, but what is being offered in exchange for the non- recognition of our basic human and equality rights? An exploratory process.

Where else in the world do you have to explore whether or not you can exercise your basic human and equality rights? It is bizarre. In Canada, one of the leading countries of the Western world, which goes and tells the rest of the world what a wonderful place it is to live and how their citizens are all being treated well, what are they offering? An exploratory process, so others — many of whom will not be affected directly — have a say in whether our basic human and equality rights are recognized. To my mind, it is totally bizarre.

Today I wanted to tell you a little bit about what I have been saying. A funny thing happened to me on my way in seeking equality. I was born at a time when the Indian Act regime was quite strict. When I was born in 1948, I was not entitled to status; I was not entitled because my mother was not entitled. My grandmother was an Indian woman who partnered with a non-Indian man, and my mother and her siblings were a product of that relationship.

I am the daughter of an Indian woman — not a recognized Indian woman — and an Indian man who was also not recognized. Therefore, when I was born, I was not entitled to be recognized as ``status.''

In 1985, when the law changed and I applied for status, they gave me 6(2) status, and they denied my children. They posthumously gave my mom 6(1)(c) status because my grandmother was registered and gave me 6(2) status. That was where I started my journey.

I and my siblings were all 6(2). Fast-forward — actually, it was not fast; it took a long time to get from 1989 to 2006, when we finally got to court. However, in July of 2006, we got a letter from the Department of Justice Canada that said it acknowledged that the registrar had made a mistake. What the registrar had said was that I and my siblings were all 6(2); in fact, we should have been 6(1)(c), so it upgraded my status.

Then my son is a 6(2). If you have been reading and listening, you know that 6(1) is the ability to pass it on at least to another generation. With 6(2), you cannot pass it on in your own right; you have to partner with somebody who also has status. Anyway, they upgraded my status, and all of a sudden in 2006, a whole lot of years later, they said that I should be a 6(1)(c) and my son should be a 6(2).

They did not tell us how that it was rearranged. Then they said, now your case is moot so we do not really have to go to trial. We thought about it for maybe 30 seconds and said, ``No, my grandchildren are not eligible now and so we will not throw the case out the door at this point.''

We had a court date in October 2006. In September 2006, the Department of Justice made an application to court to have our case thrown out as moot because my son now had status.

One thing that we talked about is that we did not know what the court would do with the trial, so we said why not go into court and say that no, we do not agree that it is moot, but as a fallback, we would just ask the court and the Department of Justice by consent to give my son status, which is 6(2).

We went in September of 2006, and the Department of Justice would not consent to giving my son status. The Justice Canada people would not give a consent order, and they asked that the case be thrown out as moot. As you know, that did not happen, because we went to court in October.

However, when we went to court in October, we also asked for a consent order that my son could get status. I could not figure out why he was entitled after all of this time. The Department of Justice actually argued our motion for us, because we could not figure out how they had determined my son's status.

They said I was entitled to status when I was born. Because my mother was an illegitimate daughter of an Indian woman and I was the illegitimate daughter of an Indian woman, I was actually entitled to status when I was born. I lost that status when I married my husband in 1970, and then I was reinstated.

I thought for a minute, and I thought this is really bizarre because my brother, who was also entitled at birth, did absolutely nothing to upgrade his status. He was just merrily doing whatever he was doing and never put his mind to it. He had better status than I did at that moment when they made that ruling.

I will tell you how that works. If you look at this stuff, they call him my hypothetical brother, but my hypothetical brother's name is Ernest Bernard McIvor. He was born May 28, 1953. His mother is Susan Blankinship and his father is Ernest Dominic McIvor. He got married. His first wife, Audrey, was a White woman, and he has a son Jody McIvor who was born in 1974. His second wife was also a White woman, Kim, and they have a daughter, Jenee, who was born in 1980, and a son, Ernest, who was born in 1983.

He was entitled at birth. He is entitled to 6(1)(a) status. His wife is entitled to 6(1)(a) status. His sons and his daughter are entitled to 6(1)(a) status. I got 6(1)(c) and my son has 6(2), and all of my brothers' grandchildren are entitled to status just with that finding.

Jody has Samantha and Gemma. They have status. Jenee has Maria Wyatt and Chelsea. They have status. Darcy has Kaydance and Kale. They have status at that moment.

Finally, in August of 2010, I got my brother's stuff together and we applied, and so he has 6(1)(a) status. We got the letter a month later. He has got 6(1)(a) status. His wife has 6(1)(a) status. His first wife is entitled to 6(1)(a) status even though they divorced. His children all have 6(1)(a) status, and his grandchildren have status.

I was born in 1948 and my mother is Susan Blankinship and my father is Ernest Dominic McIvor. I have 6(1)(c) status, and my son has 6(2) status and my grandchildren do not have status.

It is quite bizarre that my brother, who as I said did absolutely nothing, is all of a sudden in a better place only because he is a male. I have two brothers. They are not really hypothetical brothers. They keep saying they are hypothetical. They are real brothers, and they have real families.

I could say that for me it was quite a funny thing that happened when I was seeking equality: All of a sudden my male siblings got better equality than I did, or they got better status than I did, and I have no equality.

On the issue of 6(1) status, I believe that in order to fully address the issue, I am entitled to 6(1)(a) status, and my son is entitled to 6(1)(a) status. That is the only thing that will bring full equality to my situation.

I know that you have heard a lot of input from others. All I am saying is that when I am listening to the other presenters and what they are talking about — well, let us do this exploratory process and, okay, when are we going to get the money to do that? Let us talk about the impact on the communities. In relation to recognition and the right to belong to the community, I heard, ``You get education, you get this, and you get that.'' It is the right to belong to a community. It is the absolute right to be recognized as part of your community, and it is not something that someone should be able to say, ``You do, and you do not.'' It is a birthright. It is a birthright that I had when I was born. It is a birthright that my children have and my grandchildren have, and this exploratory process, I believe, is a red herring.

I know they offered that for the Meech Lake Accord to pass. They said, ``Okay, if you get your chiefs to agree, and we can pass the Meech Lake Accord, we will give you the Royal Commission on Aboriginal Peoples.'' Those of you who followed the process know that the Royal Commission on Aboriginal Peoples' report is sitting on the shelf. Nothing has happened, and I believe that is what will happen with the exploratory process.

The Assembly of First Nations, the Native Women's Association of Canada, other groups, will get huge chunks of money. We women on the ground have done all of the groundwork. I can tell you I have done all of the work to get here. The Assembly of First Nations did not help me, and for the most part the Native Women's Association of Canada did not help me, and the Congress of Aboriginal Peoples did not help me. I brought it this far, and now they have all jumped on board and have said, ``Okay, whatever little piece of legislation you want to put through because of the time frame, we agree with that. You can go ahead and do it, but give us the money.''

I am outraged, as you can tell. I am outraged about what has been going on.

I also want to say that there are people who are being missed. All of the people who were born pre-September 4, 1951, are totally out of the picture now. Those are the grandchildren born before that.

The illegitimate daughters of Indian men are being missed, and I do not know whether you understand that concept. There was a court case in the late 1950s or early 1960s that said if you are a male descendant of an Indian man and you are illegitimate, you are entitled to status. If you are the female descendant, you are not entitled.

I have a niece and a nephew, the boy born in April of 1979 and the girl born in June of 1980. The mother is non- Indian; the father is status Indian. My nephew got status at birth. My niece did not get status until after April 17, 1985, Bill C-31. She has 6(2) status and he has 6(1)(a) status. They have identical parents; the only difference is male and female. It stays that way. She cannot pass her status on her own right like her brother can, because she is female.

The children of status women who partnered with non-Indian men or non-status men are in the same situation.

The unstated paternity is there. Of course, with Bill C-3, even if you are born before 1985, if you are a grandchild, you only get 6(2) status. There are about 2,000 children in the double-mother situation who lost their status prior to 1985. There are about 2,000 of them. They get 6(1) status, and those are the second-generation grandchildren that my situation was compared to. The grandchildren in my situation, if they were born before April 17, 1985, get 6(2) status.

You can do something about that. I think you should do something about that. They should get 6(1) status if they were born before April 17, 1985. It is bizarre that they did not even follow the B.C. Court of Appeal's decision: If my grandchildren were born April 17, 1985, they will not give them 6(1) status like the double-mother counterparts. They are giving them 6(2) status.

The last thing I want to say before I turn it over to Ms. Brodsky is that you have said several times that you are the sober second thought. I do not want you to let this opportunity pass for you to fulfill your responsibility to us as Indian women, as Aboriginal women.

I cannot believe that with a clear conscience you can pass this piece of proposed legislation, which is flawed and regressive, and leave out so many women who are entitled and their descendants who are entitled. I cannot see how you can do this because you have the responsibility, as part of the Parliament of Canada, to fulfill the obligations under our legislation.

I am asking you to think about it. The incremental changes are not good enough. They did an incremental change in 1985. We are in 2010 now, and they are doing a tiny little incremental change, and goodness knows what will happen. I can tell you that if this passes in its form, that is it. That is all we will get until somebody comes along and takes another 20 years to try to get a little bit of a change.

The last thing I want to say is that this is our birth right, our human equality right. We should be allowed to exercise it fully, and it is your responsibility to help us do that.

Gwen Brodsky, Barrister and Solicitor, as an individual: Bill C-3 and the exercise we are engaged in today make me very ashamed as a Canadian. It seems that we are having a conversation about whether it is acceptable for Parliament to put its seal of approval on discriminatory legislation. Is this Canada in 2010?

It is a fundamental principle of international human rights law that the right to be free from sex discrimination and the attendant obligations on governments is a right of immediacy, and the obligations are obligations of immediacy. Sex equality is not something to be realized incrementally. Incrementalism is not a defence to sex discrimination. It is a right of immediacy.

As I understand it, this committee is about to return to the Senate something that will result in the rubber-stamping of legislation that violates fundamental principles of international human rights law, including the Covenant on Civil and Political Rights, of which Canada has been a signatory since 1976, which guarantees equality to men and women, including the equal enjoyment of their culture.

To shift gears slightly, let us entertain the possibility that there could be something good about an incremental approach to ending sex discrimination. I wish to put the lie to that suggestion on a strictly empirical basis. This has been going on for 150 years. How long are Aboriginal women and their descendants expected to wait? There are people dying without the equal recognition of their status as Aboriginal people, which the federal government chooses to confer as part of its special relationship with Aboriginal individuals. How long are people supposed to wait? It has been 150 years.

It was 1857 when the first piece of discriminatory legislation was introduced conferring second-class status on Aboriginal women. Aboriginal women who were wives of Aboriginal men who became enfranchised lost their status, not by virtue of any act of their own but merely by virtue of their association with men who enfranchised. In 1869, the marrying-out rule was introduced, which applied only to Aboriginal women and not to Aboriginal men.

By 1906 there was explicit provision in successive Indian Acts defining Indian as ``male,'' ``wife of male,'' ``child of male.'' There have been calls for reform since as early as 1872. As Judge Ross of the B.C. Supreme Court noted, Aboriginal organizations protested this discrimination as early as 1872. By 1970 the Royal Commission on the Status of Women decried the discrimination against women in the Indian Act. By 1978 and through the 1980s, the federal government had acknowledged the sex discrimination. By 1981 there was the Lovelace decision — and I pay my humble respects to Senator Lovelace Nicholas, who is with us today — of the International Human Rights Committee, which adjudicates complaints under the International Covenant on Civil and Political Rights, that the rights of Indian women to the equal enjoyment of their culture were being violated by the Indian Act.

Partly in response to the Lovelace decision, the government promised, and Minister Crombie said upon introducing the 1985 act, that the new legislation would be totally non-discriminatory. Well, it was not. It was a failed promise. The 1985 act, which is the act in force today, was failed remedial legislation. It triggered a new round of criticism, including the 1996 Royal Commission on Aboriginal Peoples.

Since then there has been criticism from international human rights bodies of the continuing sex discrimination, including the body that presides over the Covenant on Civil and Political Rights, the committee responsible for the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women, all those instruments to which Canada is a signatory.

How long does Canada need to eliminate the discrimination against Aboriginal women and their descendants once and for all? If passed in its present form, Bill C-3 will be further failed remedial legislation.

That brings us to the petition of which Ms. McIvor has spoken publicly in the media. This is a petition submitted to the United Nations Human Rights Committee, the same committee that heard Sandra Lovelace's complaint, under the International Covenant on Civil and Political Rights. It was submitted to the petitions office in Geneva on November 27, 2010. Receipt was acknowledged on November 30, 2010. It is with heavy hearts that we have filed this petition, which is, in so many ways, like Sandra Lovelace's petition — déjà vu all over again. We do this with heavy hearts because we know it is unnecessary and not the way we want it to be done.

This should be dealt with properly at home in Canada by our Parliament. It differs from the Lovelace case in that it does not involve band membership or band citizenship, as some of the speakers have talked about and as was acknowledged by the representative of the AFN. That is a different issue. Sharon McIvor's case is solely concerned with registration status, that which Minister Crombie explained refers to the special relationship between persons of Aboriginal descent and the federal government.

In other ways, it is the same issue all over again. It is the same struggle of Aboriginal women and their descendants trying to use the processes to which Canada has agreed to enforce their right to be free from sex discrimination. As I said, under the International Covenant on Civil and Political Rights, women have a right to equality. Sex discrimination is prohibited. Under that covenant, Canada, as a state party, also has an obligation to provide an effective remedy for violations of the covenant.

Sharon McIvor and her son, Jacob Grismer, have been trying to obtain an effective remedy in Canada for over two decades. Bill C-3 does not provide it.

Therefore, we are still looking for an effective remedy. Sharon McIvor has told you the only effective remedy that will eliminate sex discrimination is one that puts the Aboriginal women and their descendants on exactly the same footing as the Aboriginal men and their descendants. That means conferring full section 6(1)(a) status on the Aboriginal women and the female line. This committee should endorse nothing less.

Senator Kochhar: Thank you, chair and panel. Ms. McIvor, I admire your courage and passion to continue your fight, but there is absolutely no bill that is a perfect bill. I have not seen one yet. Most bills get compromised to please the many sides for whom the bill is drafted.

In the very beginning, you said Bill C-3 is a piece of garbage. In your opinion, how far do you think you can go? I do not mean the gender equality here. How far do you think your status can go?

Senator Brazeau is my mentor when it comes to Indian affairs, although I am more pure Indian than he is. Having said all that, I want to know how far you think the status should go. If a pure Indian marries a non-Indian, then that non-Indian marries another non-Indian, and that non-Indian marries another non-Indian, how far do you think you can take the status?

Never mind about the gender equality. I agree there should be gender equality in all cases. However, when I left my country, I lost the citizenship of that country. I became Canadian, and I am very happy to be a Canadian.

In your particular case, I want to know how far the Indian status should continue. Also, if you have any thoughts on the amendment that was introduced in the house and was overruled by the Speaker, can you make any comments on that? No one has spoken on those particular amendments.

The Chair: Just before the witnesses start, senators, we have five minutes each both for question and answer. Therefore, I am sure these questions or these issues will come up again. I am not sure how we will handle this. We can either put all questions on the table first, and let you two come back, if you wish.

Do senators have a comment about this? Do members want to go five minutes each, or do you want to pool the questions? Okay, it is five minutes each.

I will acknowledge that you have not left your country. This is your country.

Ms. McIvor: That would have been my first comment. I was born not only in my country and in my territory, but I live and work within a half a mile from the spot I was born. I was born at home, as my mom was, as my grandmother was, as far back as we know. My children and my grandchildren were also born there. I have not gone very far.

The issue we are talking about here today is not how far forward we are going to maintain this recognition. We are talking about the sex inequality that denies the descendants of women equal status to their male counterparts. That is the only thing we are talking about today. This bill does not do that. This bill does not get even close to it.

The amendments that were put in the House of Commons and that were ruled out of order would have brought it a lot closer. However, I am saying today that upgrading the status of those born between 1951 and 1985 to 6(1)(a) or 6(1) status is doable. That would address a little chunk of it, though not a big chunk of it.

I do not like the bill, and I do not think it should pass as it is because it is a piece of garbage, as far as I am concerned. It just does not address the issue.

Senator Jaffer: Before I ask my question, I want to acknowledge Ms. McIvor's work on behalf of all women. You have done tremendous work. Both of us being from British Columbia, I pay tribute to both Ms. McIvor and Ms. Brodsky for the tremendous work you have done on discrimination against women. I do not know where you get the strength to do this, but thank you for doing it on behalf of all of us.

I have so many questions but I will ask just the one. I believe the Supreme Court went quite a way toward what you wanted. The Court of Appeal narrowed it. I would like to know what the Court of Appeal did that hurt your position.

Ms. McIvor: I will turn that to Ms. Brodsky.

Ms. Brodsky: I would commend the Supreme Court of British Columbia decision to you. The remedy of Justice Carol Ross, if adopted by Parliament, would remedy the sex discrimination.

The Court of Appeal provided the government with an out that it is apparently very eager to take, but I put it to you it is not a legitimate out. The Court of Appeal found that the registration provisions of the Indian Act discriminate and, therefore, are not consistent with section 15 of the Charter of Rights and Freedoms. They discriminate based on the ground of sex. However, the court accepted the defence put forward by the government to the effect that the discrimination was justified in the name of protecting the previously acquired rights of men and their descendants.

I submit to you that the reasoning is terribly flawed in that the McIvor case was not and is not any challenge whatsoever to the previously acquired rights of Aboriginal men and their descendants, as Judge Ross recognized. The claim in the McIvor case, for which Judge Ross crafted an appropriate and effective remedy, was simply that women and their descendants should be entitled to the same rights, not that anything be taken away from anyone.

In effect, one is left with an argument that somehow Canada is justified in maintaining a sex-based hierarchy of privilege for Aboriginal men and their descendants. That cannot be right and ought not to be an out that Parliament would want to take.

I try to explain to colleagues and audiences in international settings what is happening in Canada now and how this continuing discrimination against Aboriginal women and their descendants can be considered justified. They really find it quite incomprehensible and very worrisome.

Senator Jaffer: All of us are aware of 6(1) and 6(2). We have had the benefit of being briefed properly. However, there are many people watching us today who are not as familiar with it. Therefore, I would ask you to explain what sections 6(1) and 6(2) are, so that the audience following in debate understands them.

Ms. McIvor: The regime is that you are registered under either section 6(1) or section 6(2) of the Indian Act today. Section 6(1) is what we call the Cadillac. It is the section where everyone who was registered or entitled to be registered prior to April 17, 1985, receives section 6(1)(a) status. That is the grandfathering clause. That is the clause they gave my brother after they changed their mind about the registration. He has got the Cadillac now. I do not have that.

That means that if you are registered under section 6(1), you can actually pass your status on to your descendants, regardless of who the other parent is. If you are registered under section 6(2), it means that you have to partner with another registered Indian to pass on your status; otherwise your status ends with you. It is quite a simple concept, actually.

Senator Baker: I want to congratulate the witnesses for their determination over the years. Ms. McIvor, are you a lawyer?

Ms. McIvor: Yes.

Senator Baker: You teach law, do you not, on occasion?

Ms. McIvor: Yes.

Senator Baker: You are a professor of law. Are you a litigator as well?

Ms. McIvor: Yes.

Senator Baker: Have you ever litigated section 11(b) of the Charter?

Ms. McIvor: Yes.

Senator Baker: Section 11(b) of the Canadian Charter of Rights and Freedoms says that a case shall come to a conclusion within a reasonable period of time. Granted, it is in the criminal law, and guidelines are laid down.

Ms. McIvor: It is called the R. v. Askov decision.

Senator Baker: You have litigated R. v. Morin, and did you win in any recent litigation?

Ms. McIvor: Yes.

Senator Baker: Here you are; this has taken you two decades, on a case of discrimination. Justice delayed is justice denied. It has taken you two decades to get a decision that was rational and well put, struck down in part by the Court of Appeal. The government turns around and agrees with the Court of Appeal and not the original decision. Now we have a ruling by the Speaker that says that if you vary any amount from what is in Bill C-3, it is out of order in the House of Commons. Not only did the Speaker say that if it is contrary to the Court of Appeal ruling, but also if it is at variance with anything in Bill C-3 today, then it is out of order in the House of Commons.

I want to ask you this question. Every time I hear your name mentioned, this is on my mind. I know you are a litigator and a professor of law. What is wrong with the system? You are up against the Department of Justice Canada, not the department of injustice. I imagine that when you lose cases, they go after you for costs.

Ms. McIvor: Yes.

Senator Baker: Is it true that they have intentionally set out to put barriers in your path every time you try to litigate on the question of discrimination?

Ms. McIvor: Our experience is that we did have many motions to adjourn, and we had to then get a strategy together so that we could get past the adjournments and into the preparation for court. When we finally got the case management judge appointed so that each time we went to court, we would go in front of the same judge, she said, ``Enough of the adjournments; we are going to go to trial.''

The Department of Justice lawyer who had been asking for the adjournments disappeared from the file and another woman came to start preparing for trial. It seemed to me that the strategy was to adjourn. The man who was the original lawyer, this was his only job. We always said that he went off to adjourn someone else's trial.

Senator Baker: This is the B.C. Supreme Court. You did not go through the Federal Court.

Ms. McIvor: No.

Senator Baker: Is there a reason? Of course, that process is even more stretched out.

Ms. McIvor: I think I filed my appeal in July of 1989. The legislation said that I had to appeal to county court. Our county court was dissolved in B.C., and then the Supreme Court of B.C. was the default court after that.

Senator Baker: Is anyone who now claims discrimination or who wants to rectify a discrimination based upon sexual grounds, or whatever grounds they are, facing the same prospect of an indeterminate period of time of another 10 or 20 years? Has any change been made in that regard?

When we pass bad laws, we depend upon the court process to bring it to our attention. However, if it is not brought to our attention, how can any of this be corrected? Do you have any suggestions for the long term for anyone else who is in your situation?

Ms. McIvor: I had several barriers; of course, cost is one. We estimated that to get us to the B.C. Court of Appeal, the overall cost was about a quarter of a million dollars. That is a big cost for anyone who wants to litigate. There is no support. I went across the country begging for money to bring us forward.

The strategy has not changed at all with the Department of Justice. I know the other litigators who are there are saying that they are getting the same thing. They say, ``Wait for the McIvor decision.'' We finally got a McIvor decision, but it is the same thing: the gathering of documents and all sorts of things.

No, I do not think it has changed. I am getting old now, and I am thinking that the next change may not be in my lifetime.

Senator Baker: There is such a thing as a Crown policy manual when you deal with Crowns in the provinces. Is any instruction given in the Department of Justice for litigators to encourage them to bring these cases of discrimination to a conclusion based on their merits? Is there any such document, rule, or standard of behaviour that applies to lawyers in the Department of Justice, as applies to Crowns in provincial jurisdictions under the Criminal Code cases?

Ms. McIvor: I have no knowledge of one.

Senator Baker: Would you suggest that we have one?

Ms. McIvor: Absolutely. That has not been our experience. Our experience has been quite bad. You would think that it would be ethical to bring it forward. Of course, anything that will help justice to be served in a timely way would be beneficial.

Ms. Brodsky: May I add a quick point? It is unrealistic to think that the outstanding sex discrimination in the Indian Act, if not addressed by Parliament, will be addressed by the courts. In addition to the problems of delay, identified by Senator Baker and confirmed by Ms. McIvor, the Court of Appeal decision is a rather impenetrable decision because the court has said that preserving a sex discriminatory hierarchy is, when it comes to Aboriginal women and their descendants, justified. That increases the burden on this committee to register its disapproval of this discriminatory bill in the strongest ways that it knows how.

Senator Baker: You know what the Speaker's decision is in the House of Commons, though?

Ms. Brodsky: I know the government sought a decision constraining itself from agreeing to amendments. Without reviewing the Speaker's decision, I cannot say that I agree that the Speaker's decision went as far as you say, though I grant that you may have read it more recently than I have.

I would like to add one more point. I keep reading submissions by governmental representatives to the effect that it is urgent that we move to fill this legislative gap that is looming. This is a red herring. This is a government-imposed deadline. It is not a court imposed deadline. From the beginning, the government has been going to court to say how much time it will need. If the government has not provided enough time to repair the legislation properly, then it is up to the government to indicate to the court that it needs more time. The government has been holding a gun to the heads of parliamentarians of good conscience from the beginning; and it is a complete phoney. There we are.

Senator Andreychuk: I am sure Senator Baker did not mean to say that lawyers at the Department of Justice Canada are consciously delaying the case as some government policy. I am not aware of it. If he is, I would like him to file it.

Equally, lawyers on defence teams and opposition ask for adjournments often. It is for the court to determine when a delay is just or unjust. They can deny adjournments. However, that is to be continued between Senator Baker and me and all our legal cases.

Senator Baker: Let the record show she is a former judge.

Senator Andreychuk: Sometimes less so lawyers; but it is for the court to sort it out in each case, I would hope.

Ms. McIvor, you have made your case. You are indicating that with or without the amendments to the bill in the House of Commons, Bill C-3 falls short of what you expect. Your case is quite clear.

Ms. Brodsky, I also understand your case. You disagree with the Court of Appeal. You preferred and accepted the reasoning in the court initially as opposed to the Court of Appeal. That is fair. Lawyers do that. You also disagree with the parameters of the Speaker; and I agree with that.

Therefore, it leads me to the following: You say that we cannot approach the equality issue incrementally. However, I think that is just what we do, except that my interpretation of ``incrementally'' is different than yours. It is not to say that all of a sudden everything that is unfair, unjust and unequal has to be remedied quickly, because we have different opinions of what is just, what is fair and what is equal. Therefore, there was an application to a court. The court said certain things at one level. At the second level, it said that you have to remedy this category, and they narrowed the scope of what the inequality was for that purpose.

Bill C-3 addresses that, and it does not preclude other issues. I would simply say that it is not incremental. They dealt fully but with a narrowed issue. Am I correct?

Ms. Brodsky: Thank you for your comment. We do not agree that the proposed legislation satisfies the requirements of the Court of Appeal decision. As Ms. McIvor indicated, there remains an asymmetry that is a formal inequality in the way that Bill C-3 treats the grandchildren on the male side born before April 17, 1985 as compared with the grandchildren on the female side born before April 17, 1985.

The grandchildren on the male side will have full 6(1)(a) status, which is conferred on those who are generally recognized as fully Indian — the ``real Indians.'' That is what the denotation implies socially and culturally. However, the grandchildren on the female side born prior to April 17, 1985 will receive 6(2) status. As you know, 6(2) status is an inferior status in that it cannot be transmitted by the person on their own. On the male side, there will be no 6(2)s born prior to April 17, 1985. Even in a narrowed reading of the Court of Appeal's narrow decision, a formal inequality remains.

On the incrementalism point, I understand in a general way that we could agree that society can advance incrementally in its consciousness of what is discrimination, but here we have something else happening: it is acknowledged discrimination. As a society, we are at the point of full consciousness. I put it to you that you all understand at this table. Unless there is some technicality about the way the scheme works that you do not understand, you understand viscerally at least that this is a discriminatory piece of proposed legislation. We cannot say that in the name of incrementalism we can endorse that which we have acknowledged to be discriminatory, in particular where, as here, there are no countervailing interests. There is no one to be hurt by the complete, full, final elimination of the sex discrimination. There are no contending interests. It is just plain old fashioned formal discrimination, practically unprecedented elsewhere in Canadian law today.

Senator Andreychuk: That point we could continue to debate. I take Senator Baker's point of how long it takes you to go through court. Are we not in the position where the court has issued a challenge to the government to change the law? The government has changed the law, although it may be found wanting; that happens. The government has responded to this issue by saying that we need to sit down at the table so that we do not go case by case and issue by issue and that we will do it by a full consultation. Do you see the Aboriginal leadership organizations and others as appropriate parties to negotiate with the Government of Canada?

Ms. Brodsky: There is a matter of discussing apples and oranges that creates confusion in the conversation, I believe. Band membership, also known as citizenship in Aboriginal communities, is getting mixed up with registration status. When the 1985 act was passed, the federal government separated these two things and made them distinct. There are no issues with respect to sex discrimination and Indian registration status that can be legitimately the subject of consultation, negotiation or debate. It is just plain old sex discrimination.

Issues around increasing the size of band membership are separate and apart from the Indian registration status issue, which is the sole issue raised by this case; and it can be dealt with cleanly and completely. It is improper to consult anyone about whether that is the right thing to do. That has been decided in Canada. We do not discriminate. We have committed to that.

Senator Brazeau: I have one quick comment and two questions. I would like to commend you, Ms. McIvor, for the work, patience, heartaches and headaches you have endured through this process. I was asked to thank you by many First Nations people across the country who will be affected by this and your work if this bill passes.

I agree that Bill C-3 does not rectify all the gender inequalities in the Indian Act, but I will get back to that second part of the question. First, I would like to hear from you, Ms. McIvor, specifically what the exploratory process should look like from your vantage point and from the vantage point of the women who would be left out if this bill were passed. You talked about tons of money being thrown to Aboriginal organizations; but what do you think should be done?

Ms. McIvor: I do not believe the exploratory process should be used in exchange for full recognition of equality and human rights. I do not think they have done that with anyone else except for Indian women. They have done it over and over again for Indian women. We cannot have our equality rights recognized for matrimonial property because we have to consult with the bands about it. We cannot have full recognition of equality rights because we have to consult. Where else in Canada do you have to consult to see if it is okay for a specific group to exercise their full equality and human rights? I just do not understand what is happening with the exploratory process. I do not understand it. We are talking about human rights and equality rights. No one should be able to say to me, ``Well, we have consulted, and they do not think you should be able to exercise your equality rights.''

I cannot understand what you mean when you talk about an exploratory process when we are looking at pure equality and human rights. In section 67 of the Canadian Human Rights Act, 2008, it was taken out. What are we talking about with the Canadian Human Rights Commission now? For Indian women on-reserve, maybe we need to ensure that they are able to exercise their rights as other Canadian women.

Why do we, as Indian women, have to be subject to an exploratory process so that other people can say, ``Yes, you can exercise your rights'' or, ``No, you cannot exercise your rights''? We are talking about exercising equality rights. Go ahead, explore all sorts of things; membership — go explore it. That is not part of this case. We were very specific. Membership in communities is not part of this case. It is only my relationship and my Aboriginal sisters' relationship with the federal government. It has nothing to do with the communities.

The federal government chose, despite the ruling of Madam Justice Ross that separated those out, to put membership in here and shove all of the people they will recognize onto bands without any consultation with the bands. It is a red herring, and it is apples and oranges. Full equality rights and full human rights exercised now; that is what I want, and anything short of that is not acceptable to me.

Senator Brazeau: I appreciate that. My short second question is to Ms. Brodsky. You mentioned that Bill C-3 is discriminatory. I think it is important to distinguish between a wish list, which I certainly understand because this bill does not encapsulate all the discriminatory provisions or gender inequality provisions, and the specific decision from the B.C. Court of Appeal that deals specifically with Ms. McIvor's case and her family's situation. The government's response in this bill was specifically with respect to that and not the entire gamut of issues that are found under the Indian Act. Still you mentioned that Bill C-3 is discriminatory.

Would you agree that perhaps it is the Indian Act that is discriminatory as opposed to Bill C-3?

Ms. Brodsky: I do not think we can separate those two, Senator Brazeau. Bill C-3 purports to amend a discriminatory scheme. The Indian Act discriminates based on sex. Bill C-3, as an add-on to that, will allow the discriminatory regime to continue. It is part and parcel of a discriminatory regime. It discriminates against Aboriginal women and their descendants.

Ms. McIvor: Very specifically, it also gives descendants of Aboriginal women, the grandchildren of Aboriginal women born prior to April 17, 1985, lesser status than the grandchildren of Aboriginal men. The descendants of Aboriginal women receive 6(2) status. All they will get is 6(2) status, so that is discriminatory right on the face of it. I still think it is not in compliance with the B.C. Court of Appeal's decision.

Senator Lovelace Nicholas: Thank you again. It is a pleasure to see you here.

Do you agree that Bill C-31 and Bill C-3 are ``take it or leave it'' legislation? Is it a case of you take it or you leave it, or they will just pass what they want without the input of the women?

Ms. Brodsky: I think that is a question that I really have to put back to you and your colleagues on this committee, Senator Lovelace Nicholas. We are not here to negotiate about sex discrimination. We are not a player in this. The government is doing what it is doing, and it is our obligation to tell you in the most persuasive way we know how that it is wrong, that it is a profound violation of Canada's obligations with respect to women's equality rights. That is all we can do for you, and now it is your job as democratic leadership to exercise your consciences.

Senator Lovelace Nicholas: To your knowledge, are First Nations women in this country the only women who have lost status, their birthright?

Ms. McIvor: To my knowledge, Senator Lovelace Nicholas, Aboriginal women have always had a lesser place than other Canadian women. As far as I know, we are the only group that has experienced the loss of our right to our communities, as you know from your experience and we also know from ours. We are the only group that is still at a loss to exercise our full rights because the legislation is lagging behind.

Ms. Brodsky: It also occurs to me that the current Speaker of the Senate may have some memory for what is wrong in Bill C-3. In preparing to come here, I read the official United Nations file of your case, the Lovelace case from the late 1970s through the 1980s, Senator Lovelace Nicholas. I noticed that Noël Kinsella, the current Speaker of the Senate, prepared the documents for you to submit to the UN some 30 years ago now as the Commissioner of the New Brunswick Human Rights Commission. I wonder how he feels about the fact that we are here doing it all over again. Can we not learn and do better than this as Canadians?

Senator Lovelace Nicholas: Thank you for your answers.

The Chair: Thank you both very much for coming. It has been quite some testimony.

We are delighted this evening to welcome representation from the Chiefs of Ontario, Quebec Native Women Inc. and the Federation of Saskatchewan Indian Nations via video conference.

We will start with Angus Toulouse. Welcome back.

Angus Toulouse, Ontario Regional Chief, Chiefs of Ontario: Thank you and thanks for having me. Good evening, senators. I am from the Anishnabek on the north shores of Lake Huron.

[Mr. Toulouse spoke in his native language.]

I am here today on behalf of the Chiefs of Ontario. I want to thank you for the invitation to appear before you on this important matter.

Let me begin by stating that the chiefs within Ontario are not against equality. In fact, pre-contact, our societies enjoyed a balance of responsibilities between the genders and a reverence and respect for women that far exceeds what exists in today's society. I know it is probably the norm for witnesses to focus on specific sections of the bill under study, but I will talk about some broader issues that are of equal importance and that need to be addressed.

I am referring, in particular, to the government's continuing intrusive and paternalistic approach to the identities of indigenous peoples within Canada. Thus far the testimony provided on this bill at the house and to this committee has touched on this issue but has not specifically addressed the context within which this situation is occurring. That context is colonization. Our identities, and by this I am referring to all aspects whether they be political, psychological, individual or collective, have been severely damaged over the last few centuries. Although we never gave up our right to identify ourselves, foreign definitions and concepts such as Indian status and band membership have been forced upon us.

Sadly, these definitions have almost completely usurped our own traditional, indigenous ways of identifying ourselves as individuals and as nations. I understand the federal government deems this terminology necessary to determine who can receive rights and benefits owed to us within treaties, the Constitution and other legislation.

However, the negative impacts this approach has had on our basic collectivity, the human right to identify ourselves, remain ignored by Canada. I am here to inform this committee that First Nations are in the process of rebuilding, revitalizing and healing, and Canada's continuing paternalistic and colonial approach is not helpful at this time.

Canada should, at a minimum, act in accordance with the UN Declaration on the Rights of Indigenous Peoples, particularly given its recent so-called endorsement of this important document. Specifically, I am suggesting that Canada acknowledge the negative impacts of the Indian Act and other legislation on First Nations identity, and commit to fully respecting the basic human right possessed by other indigenous people to determine their own citizenship.

When the Minister of Indian Affairs and Northern Development appeared before this committee a week ago, he stated that an engagement process led by the five national Aboriginal organizations would occur should Bill C-3 pass and that the government would just be there to observe. The problem with the engagement proposal on broader issues is that its underlying premise still reflects a deeply ingrained paternalism. Unfortunately, engagement strategies do not work, and I use the matrimonial real property, MRP, endeavour as an example.

At the end of the day, the federal government proceeds with their preferred approach, despite having different and often dissenting views of a few First Nations or individuals. First Nations then find themselves in a compromised situation for having agreed to participate. With the federal government now labelling their participation as ``consultation,'' it should not be surprising that the First Nations in Ontario again refused to participate to avoid false consultation and also to avoid tacit acceptance of Canada's supposed jurisdiction over determining who is and who is not an indigenous person.

Due to the intrinsic nature of restoring political identity, these issues are best dealt with at the grassroots level from the people themselves. Expecting this work to be done within an engagement process dependent on parliamentary or fiscal time frames of a few months is unreasonable. It took centuries to colonize us. It will take time to heal this damage.

It should also be noted that even after a lengthy process of decolonization, it is unlikely that the many culturally and linguistically diverse First Nations would reach a consensus on the broader issues on anything beyond key principles.

I will now provide you with a further explanation of the context First Nations are currently struggling with in regard to their identities and how this relates to the Indian Act and Canada's continuing lack of respect for our basic human right to determine who belongs to our nations.

Issues of indigenous identity and membership in Canada cannot be looked at without first acknowledging the context of the colonialism that continues to exist within Canada and continues to negatively affect First Nations. We have, individually and collectively, experienced the intrusion of the Indian Act upon our lives daily for the past few generations. Not only has our cultural sense of belonging been undermined by the definitions imposed upon us by Canada, but our psychologies, spiritualities and political structures have always been impacted.

A situation that has served to assist the breakdown of our collective identities has been our economic dependence upon the Government of Canada, a situation arising from the wilful ignorance of our treaty rights, deprivation from our lands and resources, and paternalistic legislation.

This unfortunate reality serves to demonstrate, in part, how we have come to rely upon definitions of ``Indian,'' ``band,'' ``band member'' and ``Aboriginal'' that are always attached to the rights and benefits we need to be able to live. These rights and benefits most often relate to our ability to access our traditional way of life in connection to the land.

Prior to colonization, it was the very connection to the land that assisted us in forming our identities. The interconnection between our pre-colonized identities and the land is such that any interference in this relationship will cause us great harm. This is why we cannot look at isolating one piece of the problem at a time. Canada has endorsed the UN declaration, and now is the time to follow up with the concrete action.

As a reminder of the specific rights related to identity found within the declaration, I would point specifically to Article 9 and Article 8.2(a). Article 9 states 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. No discrimination of any kind may arise from the exercise of such a right.

Article 8 states:

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

In conclusion, I would ask this committee to make the following recommendations to the federal government about Bill C-3 and the proposed engagement process on citizenship. First, Canada needs to provide concrete recognition and respect for the right of First Nations to determine and have jurisdiction over our own identities and membership. Second, Canada should acknowledge its colonial history and commit to a process of decolonization. This should serve as the foundation for all other efforts to help First Nations people. Third, Canada should comply with the human rights standards described in international law relating to indigenous peoples, in particular the indigenous right to determine identity and membership, as well as the right to free, prior and informed consent.

Finally, Canada, working together with First Nations, should focus on addressing fiscal relations to move away from the existing unsatisfactory contribution arrangements and to address the reality that cost implications are a key interest underlying the government's insistence on controlling status.

One last point for further contextual information, I would recommend that people read First Nation Perspectives on Political Identity, written by Dr. Taiaiake Alfred for the Assembly of First Nations. I have left a copy of this paper for distribution.

Thank you.

The Chair: Thank you very much.

Now from Quebec Native Women Inc., we have Madame Audette.

[Translation]

Michèle Audette, President, Quebec Native Women Inc.:

[Ms. Audette spoke in her native language.]

I wish to thank the Anishinabe Nation for welcoming me on its land. If I stumble a bit in my presentation, it is because I am delighted to be here with you.

Ladies and gentlemen, committee members, Quebec Native Women is very pleased to have this opportunity to once again outline to the government the historic discrimination that Aboriginal women, and especially our children, have been victims of, an injustice that, unfortunately, was not corrected in 1985, with Bill C-31.

We recognize that it is necessary to change the archaic nature of the Indian Act. This paternalistic, obsolete and, I would even say, backward-looking act stipulates that control of the lands granted to Aboriginals falls under the government of Canada and places Indians under legal guardianship, thus rendering us rather inept to sign a will or to administer our property. The act defines who is Indian and who is not.

It even controls who enters and who leaves a reserve. I am free to try all of the anti-wrinkle creams I wish, but, legally, I am 17 years old. But in real life, my body is 39 years old. As is the case of all registered Indians falling under the Indian Act, we are recognized as minors.

It is in this specific context that systemic discrimination towards Aboriginal women has taken shape. Today, the Canadian government is bringing forward Bill C-3, a bill that aims at promoting gender equity in the provisions of the act governing registration.

Not very long ago, more specifically on May 4 last, a group of women, one of the spokespersons of which is here with us, Ms. Viviane Michel, from Marche Amun, marched from Wendake, near Quebec City, all the way to Ottawa, covering 500 kilometres to come and tell the government that we are demanding a bill to correct all the forms of discrimination flowing from the Indian Act.

Despite all of the efforts on the part of Aboriginal and non-Aboriginal groups, experts, lawyers and leaders, to date, our recommendations have not been taken into account. But is Canada not recognized as a country that champions justice and fairness?

I would say to you, honourable senators, that yet again, it has succeeded in dividing us as a people on this issue. You will hear complex positions, positions rejecting outright the bill, if not positions espoused by people who believe that this bill, despite its great weaknesses, must be adopted in order to finally recognize our grandmothers, our mothers, our fathers, our brothers, our sisters and our grandchildren, those who have been discriminated against.

Let me be clear: Quebec Native Women supports Bill C-3. However, we deplore the fact that there was no consultation on the part of the federal government with regard to this important issue. We are concerned by the absence of a historic and institutionalized recognition of the discrimination women and their children have been subjected to.

What hurts, is the fact that this discrimination has been allowed under the Indian Act, since its imposition in 1876, and not just since 1951 as it is inferred in the decision of the Court of Appeal for British Columbia.

We also deplore the fact that administrative practices, such as those relating to undeclared paternity, have not been resolved. If I bring a child into the world following a rape, or simply if my spouse decides to take away his own life or is a man who does not want to assume responsibility, do you know that, here in Ottawa, the Father in Trust for all Indians, our famous father, also known as the Department of Indian Affairs, presumes that the father of my child is non-Aboriginal? And so, as a mother falling under section 6(2) of the act, you know the rest of the story.

We are also concerned by the social and political problems related to the integration, both on and off reserve, of newcomers to communities and the problems regarding the financial capability of these communities to integrate all of these new people and, in particular, to provide them with the programs and services they are entitled to.

We want to have guarantees that, once the bill is adopted, the concerns and recommendations expressed by Aboriginal organizations with regard to the bill will be duly taken into account. We want to see a group of experts mandated with resolving the outstanding issues that go beyond the specifics of the McIvor decision.

We wish to remind honourable senators present here that this discrimination does not just affect women, but also our men and our children. In my own words, this is not just a women's issue, but an issue for society.

This discrimination flies in the face of the Canadian Charter of Rights and Liberties, as well as of several international instruments that Canada is a signatory to, such as the Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention on the Rights of the Child and, most recently, the Declaration on the Rights of Indigenous Peoples.

In conclusion, our organization, Quebec Native Women, wishes to restate its support in favour of the passage of Bill C-3, given the fact that, according to Department of Indian Affairs' estimates, approximately 45,000 individuals will acquire Indian status if this bill is adopted.

We are asking for the creation of a group of experts. And I insist on the fact that it be a group of experts mandated to find solutions to the outstanding issues, rather than simply an exploratory process.

I am tired of being explored. We are intelligent. We are capable. We are those who are experiencing the problems. We have the solutions. Place your trust in us. We wish to be part of a group of experts, and not of an exploration process without any time frame, as put forward by the government, and that would be limited to national Aboriginal organizations only. In other words, all Aboriginal organizations, communities and individuals wishing to participate in this important process, such as The Assembly of First Nations of Quebec and Labrador, Quebec Native Women Inc., Marche Amun, or people from the grassroots.

We have had the support of the leaders in Quebec. Yes, Bill C-3 has its weaknesses, but the Chiefs have supported us in this approach. We have also received commitments from the chief of staff of the minister for Indian Affairs, stating that the exploratory group could rather become a group of experts, in accordance with the usual jargon.

In closing, I am telling you that, as the mother of five children, I have difficulty accepting that my sons, that I brought into this world, like all of the sons of First Nations mothers, have more rights than us. For me, that is a definition of what injustice is. My equality rights are not negotiable. We want to work with you and we can prove to you that we will do so in good faith.

[English]

The Chair: We will now go to Saskatchewan to Chief Marie-Anne Day Walker-Pelletier, Chair, Saskatchewan First Nations Women's Commission. Let us test this video-conferencing machinery.

Chief Marie-Anne Day Walker-Pelletier, Chair, Saskatchewan First Nations Women's Commission, Federation of Saskatchewan Indian Nations: Thank you for the opportunity. I am from Okanese First Nation, Treaty 4 territory, and I represent the Saskatchewan First Nations Women's Commission from the Federation of Saskatchewan Indian Nations.

First, can you hear me?

The Chair: Yes, and we can hear the static, too, so some senators were wondering what it is. However, I understand it is a technical problem that we cannot solve; like other technical problems.

Ms. Day Walker-Pelletier: I will do my best. First, it is important to note that the Federation of Saskatchewan Indian Nations is supportive of efforts that promote gender equality. In fact, gender equality is traditionally a significant cornerstone of First Nation communities. While any effort to address discriminatory practices is appreciated, it is important to note that Bill C-3 does not fully address the central issues of jurisdiction and First Nations' inherent right over citizenship.

Clearly, Bill C-3, an act to promote gender equity in Indian registration is narrow and limited as it only addresses the wrong against a select group of people. The federal government will continue to unilaterally define status through provisions of the Indian Act, an act that maintains discriminatory classifications of Indians.

Currently, the Indian Act is facing approximately 300 McIvor v. Canada like challenges. Undoubtedly, the federal government's response will continue to be narrow and limited. Specifically, opposition will persist with respect to the residual discrimination in section 6(1) and the second-generation cut-off rule in section 6(2). Both remaining sections limit the number of Indians and the fiscal responsibility for programs and services delivered under the Indian Act.

Since 1876, the Indian Act and various policies have been used to determine who is an Indian and who is owed fiduciary responsibility. Rather than implementing the provisions of treaty, including the treaty right to education, health and housing, the Indian Act has been exclusively used to determine Canada's fiduciary responsibility. This is an obvious conflict of interest and a serious breach of the nation-to-nation treaty relationship.

With the implementation of Bill C-3, it is estimated that the number of registered Indians will increase anywhere from 20,000 to 40,000. First Nation communities currently have no assurance for commitment of increased resources to meet this growing demand. Considering the potential population increase, post-secondary education will likely face an increased demand, with no additional funding projected.

Currently, health care has a 3 per cent funding cap that already needs serious attention. Housing is also underfunded, and pressure to meet the demands of our even bigger population is imminent.

All of the issues I have noted are a daily struggle for First Nation communities. While we assert our sovereignty, the fiduciary responsibility of the federal government cannot be forgotten.

Recently, Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples. Canada now has a moral obligation to be informed and guided by the declaration. Interestingly, Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples acknowledges First Nations' inherent right to determine our own identity and membership. Such a right, which is an inherent gift bestowed by the Creator, is integral to our sovereignty.

The Federation of Saskatchewan Indian Nations is eager to work with our treaty partner, Canada, to create the longer-term solutions that are fair and just for all people. A long-term sustainable solution that transitions away from the status provisions of the Indian Act must be developed to address all outstanding constitutional issues.

The Federation of Saskatchewan Indian Nations has developed a draft citizenship framework that is a viable longer-term alternative to the Indian Act status provisions. We would like the federal government to take a second look at this framework and identify a strong support system for us to work toward a practical implementation process.

We would also like to call for a special parliamentary committee that can look at the issues relevant to First Nations, including citizenship, matrimonial real property and the injection of the Canadian Human Rights Act in our communities. In all three areas, either legislation has passed, is being passed or may pass shortly, which will require information and education to our First Nations about the necessary changes in our communities.

We would like this committee to focus on developing a process to disburse information to our First Nation leadership and membership, to identify a draft budget to secure resources and to discuss the proposed framework. We will continue to press for broader changes because leaving a lasting legacy for our children to inherit is fundamental to our existence.

The Chair: Thank you very much. We will start our questions with Senator Brazeau.

[Translation]

Senator Brazeau: I will begin by congratulating you, Ms. Audette, for your election to this new position of president. I also wish to thank you for your presentation.

You mentioned that Quebec Native Women supports the bill, but that you were disappointed that there was no consultation process — I understand that —, but, if we look at another bill that was passed in 1999, pursuant to the Corbière decision, a Supreme Court decision dealing with voting rights for off-reserve Aboriginals as the elections process was set out in the Indian Act, the Court set out a timeframe for the government of the day to study a bill to correct the situation, because there was discrimination with regard to voting rights.

Today, many communities enjoy a balloting system that they call ``the custom,'' but are still allowed to discriminate amongst the members of their First Nation. The bill has not completely corrected this discrimination problem.

Bill C-3, which we have before us, will it too not correct all of the discrimination problems, but it will correct everything relating specifically to Ms. McIvor's case.

As a start, would you have comments in that regard? Secondly, I very much like your suggestion regarding a group of experts, but where would its members come from and what would their objective be?

Ms. Audette: Thank you, Senator Brazeau. With regard to the way I see things, I would like to say that, having been a student of Ms. McIvor when I was very young, for having seen her wage battle, I would have liked to have had the privilege to say to you today: it is all or nothing! It is Bill C-3 with all its amendments or nothing at all.

I would like to have that privilege, but I cannot. Why? Because there are women who fought for Bill C-31, in 1985, women who worked alongside Ms. Lovelace, who are breathing their final breaths and who are telling us: this must be passed. It is hard to swallow, but it must be passed.

We have had to renegotiate, to look at our affairs again, because not everyone is in agreement with the bill. However, we do agree in saying that it will resolve, in part, at least a small portion of the problem. We view this exercise in the following way: not everyone can sit down at the same table. What is required is an action plan with various types of expertise, some people charged with talking about status, others about membership, others about funding problems. The idea is not to gather all of us around the table, because the groups are enormous, and as for discrimination, there is a lot of that!

We must be very methodical in our approach and ensure that, given the various failures, we be dealing with experts, not just at the academic level, but also based on their life experience, on the ground. And how must we go about these things? Our national organizations are prepared to work with the assembly of chiefs of Quebec. I trust our political organizations. I however do not purport to speak on behalf of all of the women of Quebec, but I am trying to staunchly defend their interests.

Quebec Native Women cannot do everything, but there is a way of approaching things that consists in sitting down together to find the best solutions. Already, in its early days, Marche Amun, which is now called Course Amun, was there to tell the government that we also needed people from grassroots organizations, even if our organizations are important. Does that answer your question?

Senator Brazeau: Absolutely. That being said, if the bill is adopted, if there is an exploratory process funded by the federal government, that will subsidize the process for the national organizations, would your position be to hold out your hand to the other organizations in order to do exactly what you have just said, in other words work together to specifically study status, citizenship and membership, and to do so by working with the other organizations that would receive the funding? Is that the aim?

Ms. Audette: I cannot speak on behalf of the other organizations or existing entities, but, yes, we will have to work together. Perhaps it is utopian, perhaps it is just wishful thinking, but there are interesting possibilities, and I believe that solutions do exist. I think we all have the same objective, but we must examine our approach and our strategies.

I believe it will be important to respect the diversity of First Nations throughout Canada, the political diversity within the different groups. But we must also respect each other in the work that must be done in order to attain a better justice.

[English]

Senator Lovelace Nicholas: Do you agree that Bill C-3 is only a Band-Aid solution? If you agree, why? If you do not, why? Please explain.

Ms. Audette: For a number of reasons, as I explained in my presentation, Bill C-3 is a Band-Aid solution because many other forms of discrimination will not be solved in Bill C-3. However, it will recognize my son. It will recognize many sons and many daughters across Canada. It will also forget many women and their children. It is a Band-Aid solution, and it is not a Band-Aid solution. I am just frank, sorry.

Senator Lovelace Nicholas: That is fine.

What input do you expect to have on the work of the internal financial impact of Bill C-3? Do you expect to have an input in the discussion?

[Translation]

Ms. Audette: I believe that our concerns, our life experience and our expertise have their place with regard to funding. As you know, the women who returned to their communities, in 1985, did not just suffer from discrimination under the act, but also in comparison with their own brothers and sisters. And often, the pretext was a money issue.

Therefore, are we going to subject to this same injustice all of these men and all of these women who will recover their status and ask for their membership? And, as you know, in the communities, the employment situation is rather difficult. We are under-funded, we are in an economic crisis. Therefore, yes, I believe it is important that we participate in the discussions, as equals, with regard to the economy and funding.

[English]

Senator Lovelace Nicholas: Thank you.

Senator Jaffer: Ms. Audette, I appreciate your candidness. You said that it is good and bad. What happens to the people who are left out? When will they have their turn to be recognized? In the next steps, what happens? It took 20 years for Sharon McIvor. I think you were in the room when she said she will not be around. We do not know that, but for the next 20 years, what happens? Who will speak for the women and children who are left out, and when does their turn come?

[Translation]

Ms. Audette: Senator, I cannot do it alone. I do not have the financial means to challenge the government, and the situation is made even worse by the fact that the Court Challenges Program no longer exists, which is unfortunate. And our thinking, our line of attack was very firm, at the time, in saying that we wanted a bill that would cover all of the problems and eliminate all discrimination.

What brought us to thinking was one of our meetings with members of the Conservative Party, the Bloc Québécois, the NDP and the Liberal Party, the elected representatives in Canada. They all said, to me and to the people who were with me, that we would have to wait for another decision of the Court of Appeal, of the Supreme Court or of the Upper Court. We no longer have the means to wait. However, the daily mandate of our women's groups and our organizations, such as the assembly of chiefs — be it national, regional or territorial — is to defend our interests.

And that is what I am going to do for as long as I have oxygen in my lungs; I will fight in order that my daughters have the same right to equality as their brothers, and to ensure that all of those left out of Bill C-3 are able to finally say that they have been recognized.

[English]

Senator Andreychuk: I have one quick question to the Federation of Saskatchewan Indian Nations. Will you participate at all in the consultation process if it is set up?

Ms. Day Walker-Pelletier: I said in my statement that we recognize and support the efforts of gender equality. Certainly, if there is an opportunity to be involved with consultation, it should be done within the framework of what we established in Saskatchewan through the Federation of Saskatchewan Indian Nations.

Senator Andreychuk: Thank you.

The Chair: Thank you all for coming. You have been very kind to wait so long, and we certainly appreciate it. We are done.

(The committee suspended.)

(The committee resumed.)

The Chair: Honourable senators, on page 1 of the bill, clause 2(2)(a) has the date written as April 17 in English and April 16 in French.

Was it not April 17, 1985 that the Charter came into effect?

Senator Baker: The Charter came into effect in 1983, but section 15 was delayed for two years, was it not?

The Chair: There was a three-year moratorium. April 17 is Law Day.

Senator Jaffer: There is an explanation.

Martin Reiher, Senior Counsel, Department of Justice Canada: The dates are correct. The confusion arises due to the wording. Clause 2(2)(a) in English says the following:

that person was registered or entitled to be registered immediately prior to April 17, 1985;

The French version says the following:

elle était inscrite ou avait le droit de l'être le 16 avril 1985;

In other words, the person was registered on April 16, 1985 or was entitled to be. It is worded differently.

The Chair: Thank you for that clarification.

Is there anything else that anyone wants to check on with the Department of Justice Canada?

Senator Baker: I would like to make an observation on the ruling of the Speaker of the House of Commons as it pertains to amendments to this bill. Should I do that now or wait until we begin clause-by-clause consideration?

The Chair: Can we add observations after we complete clause-by-clause consideration?

Senator Andreychuk: I would say that a comment is in order now. It is not an observation but an explanation.

The Chair: Is it an observation?

Senator Baker: Yes, it is an observation. It concerns potential amendments to this bill. We should be alerted to a fact about which several of us have had discussions. In his ruling, the Speaker of the House of Commons said that amendments are inadmissible:

Individuals, whose status is not affected in any way by Bill C-3 as adopted at second reading, would have a different status as a result of this amendment.

The Speaker went on to say the following:

. . . it is not addressing the specific inequality identified by the Court and initially targeted by Bill C-3. Consequently, the amendment exceeds the scope of the bill as set by the House at second reading and is therefore inadmissible.

We have discussed this outside the meeting. It is very clear that the Speaker restricted amendments to the bill that add anything to what was approved at second reading in the House of Commons.

I wanted to mention this because, as many witnesses have said, if we were to amend the bill, it would go back to the House of Commons, and it is clear from the Speaker's ruling that it would be out of order there.

I wanted to point that out because when we make amendments, we want them to have an effect. If we know they will not have any effect, why would we propose amendments?

The ruling of the Speaker of the House of Commons restricted amendments to the specific inequity targeted by Bill C-3 when it was given second reading.

Senator Kochhar: In other words, we cannot make any amendments here because if we do, it goes back to the house, and it will be sent back again for the Speaker's ruling. Therefore, we should correct it for minor mistakes as it is and carry on without making any amendments.

Senator Baker: It is unfortunate, but that is the ruling of the Speaker of the House of Commons. He did say at the beginning in the previous paragraph that we are receiving this bill in a unique context. That is the ruling of the Speaker. Therefore, if someone were to amend it in the Senate, as you pointed out, Senator Kochhar, the result would be nothing. It would go back to the House of Commons, be ruled out of order, and we would be back to square one.

The Chair: To some extent, this negates the function of the Senate. Therefore, I would not mind having some kind of ruling from the Law Clerk and Parliamentary Counsel in the Senate as to what happens. Why would we even bother wasting our time reading about this bill if it is a fait accompli because of his ruling?

I understand what Senator Baker is saying. However, in principle, if we cannot do anything, what is the point?

Senator Kochhar: We can correct minor grammatical errors.

Senator Jaffer: The way it has been drafted is making Parliament not sovereign, but that is another day's topic.

Senator Andreychuk: It is making the Constitution as a court direction, which the House accepted. I think you could amend this bill, but it has to be within the corners of the bill. The amendments that have been contemplated go beyond the scope of Bill C-3.

I sometimes argue with Senator Baker when he is quoting the law. I never argue with him when he is talking about parliamentary procedure and the rules. He has quite rightly stated that the house has put the parameters on this as Bill C-3, and they did it at second reading, and some amendments — we can take note of that — were beyond the scope of Bill C-3. Theoretically, if there was an amendment inside Bill C-3, it would be valid. However, we did not hear any evidence about that. We heard evidence about increasing the scope of Bill C-3. The ruling, therefore, is as Senator Baker says.

I would suggest we proceed.

Senator Baker: It is unfortunate. I have never seen something with such specificity and particularization as this ruling. However, he says that it is in a unique context. The Speaker ruled in this case that if you add one more person to this bill who is not within specifically what was approved at second reading, then it is out of order.

Senator Andreychuk: Yes.

Senator Baker: The ruling is of a very restricted nature. That is my whole point. It just negates major amendments to the bill. Substantive amendments are the problem.

Senator Andreychuk: Basically, we are saying it is the Court of Appeal, not the initial courts. Therefore, Bill C-3 is crafted that way, and the Speaker has said that you cannot go outside of Bill C-3.

Senator Baker: You can go outside of the Court of Appeal, but you cannot go outside of Bill C-3. That is the problem.

The Chair: This is an act to promote gender equity in Indian registration.

Is it agreed that the committee proceed to clause by clause in consideration of Bill C-3?

Hon. Senators: Agreed.

The Chair: Shall the title stand?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, stand?

Hon. Senators: Agreed.

The Chair: Shall clause 2 carry?

Hon. Senators: Agreed.

Senator Jaffer: On division.

The Chair: On division. Shall clause 3 carry?

Senator Jaffer: On division.

The Chair: Can I assume, honourable senators, that the whole bill will be on division on this side and agreed on this side?

Senator Andreychuk: We are halfway through a process. We do not want to find ourselves in the situation that some other committees were in. We ought to proceed with clause by clause where it appears that some will be on division and others will agree.

The Chair: Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 6 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 7 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 8 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 9 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill carry?

Hon. Senators: Agreed.

Senator Jaffer: On division.

The Chair: Does the committee wish to consider appending observation to the report?

Senator Andreychuk: No.

The Chair: I do. Do I have to step out of the chair to do it?

Senator Baker: No.

The Chair: Okay.

Senator Baker: Go right ahead.

The Chair: One of the observations states that Bill C-3 does not deal with sex discrimination that results in 12(1)(b) of the Indian Act. The other observation is two points about the exploratory process: It has taken forever to get here, so structures and resources need to flow to women and their descendants who were disenfranchised. Therefore, should these issues be on the priority list?

Senator Baker: I do not see anything wrong with that.

Senator Andreychuk: I have some problems because I have not studied the context of section 12(1)(b) of the Indian Act beyond Bill C-3. This says that Bill C-3 does not deal with section 12(1)(b) of the Indian Act.

The Chair: No; it says that it does not deal with the sex discrimination that resulted from it.

Senator Andreychuk: I have not studied that. We did not study that; it was not part of Bill C-3.

The Chair: We could amend this to say that Bill C-3 does not deal with sex discrimination but has resulted from other changes to the Indian Act.

Senator Andreychuk: I do not know that.

The Chair: We heard tons of testimony this afternoon, senator.

Senator Andreychuk: Yes, but they were making an opinion. Did we study that and was that the subject matter of Bill C-3? We allowed the witnesses to go beyond the scope of Bill C-3, and we did so in fairness in hearing the witnesses we did. However, I do not think we are bound by that evidence, and we did not challenge that evidence. In fairness to the community, we were allowing them to state their case broadly.

The Chair: Would the senator accept a shorter sentence, that Bill C-3 ``does not deal with sex discrimination,'' full stop?

Senator Andreychuk: No, I would not. I would agree to saying that there are further issues within the Indian Act, such as sex discrimination, that should be dealt with somewhere. That would be fine. I do not know what the wording is, but the point is that we want to go beyond Bill C-3, but I do not think we can define what ``beyond Bill C-3'' is.

Senator Baker: Madam Chair, I think it is very simple just to add one word. ``Bill C-3 does not deal with all sex discrimination in the Indian Act.''

The Chair: I have to admit that was in my first draft, and I took it out, good senator.

Senator Baker: That would address Senator Andreychuk's concern.

The Chair: Bill C-3 does not deal with sex discrimination, period. The second-generation is different. It is not ``all.'' It does not deal with sex discrimination.

Senator Baker: In the Indian Act.

The Chair: No, Bill C-3 does not deal with sex discrimination.

Senator Baker: In the Indian Act.

Senator Jaffer: In the Indian Act.

The Chair: Yes?

Senator Jaffer: Yes.

The Chair: I do not want to say ``all.'' I want it stated that this bill does not deal with sex discrimination. It is a tinker.

Senator Andreychuk: You are free to make those comments. However, I just do not feel comfortable making a statement upon something we did not study.

The Chair: I have spent considerable time reading the House of Commons testimony that was sent to us in our email, as well as other people's documents, letters from a whole variety of people and written submissions that have been made, such as Ms. Palmater's, et cetera, which were sent to all senators.

Senator Kochhar: That was not on the agenda. Given the limited amount of time we have, I think we should defray it for some other time. I do not think you can really make too many, or any, changes at all.

The Chair: I am not changing the bill. I am adding little postscripts at the bottom.

Senator Jaffer: This is an observation.

The Chair: It is not a change to the bill. It is not an amendment.

Senator Kochhar: I do not know what the ramification of that might be.

The Chair: The implication is to tell the Indian and Northern Affairs Canada that this stuff is not good enough, and there is a group of senators who are saying it.

Senator Brazeau: To suggest that Bill C-3 does not deal with sex discrimination, period, I do not think is a fact. I think it is more factual to say that Bill C-3 does not deal with all gender inequities stemming from the Indian Act.

Senator Andreychuk: Yes.

Senator Brazeau: If this passes, we can find 45,000 happy people who will say —

The Chair: Get their money and run.

Senator Baker: You have a whole process starting to address the rest of it.

Senator Jaffer: I like what you said.

Senator Brazeau: In addition, I think we heard witnesses even say that, yes, it deals with a portion of the gender inequities, but let us just say that it does not deal with all of them.

The Chair: We also heard people say that this is apples and oranges. However, the mood of the group is quite clearly not in my court, so I bend to your wisdom.

Senator Baker: Put in ``all.''

The Chair: Do you have a text to read back to us?

Shauna Troniak, Analyst, Library of Parliament: ``Bill C-3 does not address all gender inequities stemming from the Indian Act.''

The Chair: No. ``Sex discrimination.''

Senator Baker: ``Sex discrimination,'' not ``gender inequities.''

The Chair: ``Sex'' is the word in the Charter.

Senator Baker: Section 15.

Senator Andreychuk: As a good lawyer, do you not study it before you agree with something?

The Chair: Do not stand on your law degree for this kind of stuff.

Senator Andreychuk: You are standing on points, and I take these matters very seriously. Women's rights, human rights and equality are extremely important to me, as much as they are to many other senators. When I do this, I want to be sure it is positive, not negative and not argumentative. I like Senator Brazeau's compromise.

Senator Baker: Could you add something to that, Senator Brazeau, in light of what you have heard? Your suggested wording is what?

Senator Brazeau: Seeing that the intention of Bill C-3 is to promote gender equity, I would suggest that Bill C-3 does not deal with all gender inequity issues stemming from the Indian Act.

The Chair: I would still prefer to use ``sex discrimination'' instead of ``gender inequity'' because of the Charter. It is ``sex'' in the Human Rights Act and in the Criminal Code. That is the category. Am I right, Justice Department? I am.

Mr. Reiher: I have to admit that I do not recall the exact words of the provisions at the moment.

Senator Andreychuk: Yes, what is the point? We have to go back and read it.

The Chair: Gender equity is a neutral phrase, without any historical reference to the courts or to anything else. ``Sex'' is the category used at least once in the Criminal Code; it is used in the Human Rights Act; and it is used in section 15 of the Charter of Rights. This is an equality argument.

Could you read back to us more or less what Senator Brazeau said the last time?

Ms. Troniak: ``Bill C-3 does not address or deal with all gender inequities stemming from the Indian Act.''

The Chair: Do we agree with that?

Senator Jaffer: Yes, we agree with that.

The Chair: Okay. That is sold.

Senator Brazeau: I hope I agree.

Senator Andreychuk: I have to see what we are agreeing to. I have no idea. I am relying on Senator Baker.

Senator Baker: Well, the next two are excellent.

Go ahead, Madam Chair.

The Chair: I wrote down some other suggestions as committee members were talking. This is not a full list, so feel free to add to it: Parliament should review what is happening in this process of engagement.

Senator Jaffer: Exploratory process.

The Chair: Yes, exploratory process.

There must be solid outcomes and a commitment to support those outcomes; the general line that incrementalism is not a defence of equality — I thought that was great.

I would like to see an observation that makes the difference between citizenship band allocation and what Sharon McIvor is talking about in terms of registration in the Indian Act. I think it is quite important to highlight that distinction because the engagement strategies are muddled up dealing with band citizenship, the inherent right to self- government, et cetera. However, her case is around registration in the Indian Act.

I thought that clarification, which was made this afternoon, was quite important. I do not want all the money thrown out to deal with every problem in the world, although that would be very nice, too.

Senator Baker: The steering committee could actually deal with the wording.

Senator Jaffer: I think that is a good idea.

Senator Andreychuk: I take back every nice word I said about you.

The Chair: I have not ``wordsmithed'' this one. Yes, we can do it tomorrow afternoon.

Is the general principle agreed to?

Senator Andreychuk: I do not want to go any further into what I have heard the chair say because I do not think it is the role of Parliament to get into negotiations with Aboriginal leaders. It is very clear that our role is a fiduciary and oversight role; it is not to be at the table negotiating. The House of Commons and the Senate cannot sit at the table and negotiate. If they are going to report to us, I think this is about as far as we can go; just stick to this.

Senator Baker: To the steering committee.

Senator Jaffer: I like this. Let us leave it at that.

Senator Andreychuk: We will leave it as is, and anyone on the floor of the Senate can stand up and add to it.

We have gone a lot further than I wanted in number one and in (A) and (B). We can provide oversight in the negotiations or consultations, as long as we are legally correct and are not involved in the negotiations. We do not want to go any further than that.

The Chair: Am I clear, then, that under ``Sex Discrimination,'' it reads as the library analyst read it to us, that (A) and (B) stand as is, and that there are no further additions?

Senator Andreychuk: Agreed.

Senator Jaffer: What was the other addition you wanted?

The Chair: I wanted a distinction made between the inherent right to self-government, which is the citizenship band issue, and Sharon McIvor's case, which is about registration in the Indian Act. If all the resources and engagement are going to solve every problem of discrimination, this little problem with the Indian Act, which we have passed on division, may get lost in the huge shuffle that will have to happen.

Senator Kochhar: I do not want to sound ignorant, but it is really not about recognition; it is about getting money. People who are registered get extra money. It is about obtaining money. In my opinion, it has nothing to do with —

Senator Jaffer: No, senator. It is about who you are. It is about your identity. It is not about money.

Senator Kochhar: If you take the money out, identity will disappear.

Senator Jaffer: No, senator. It is about having your identity, about who you are.

Senator Andreychuk: I think these are sufficient observations and that we can agree to them. Anyone who wants to add to them can do so. Anyone could introduce a bill in the next Parliament to add to anything in the Indian Act. Go for it, as long as we are not drawing out things that we did not hear fully and fairly. That is why I will not get into membership, et cetera. We heard some points of view, but we can equally hear other points of view that the Indian Act is intrinsically involved with citizenship, recognition, status, et cetera. I do not think we dealt with that. I think we should stick to Bill C-3.

The Chair: All right. We are sold, then, on (A) and (B). There is no (C).

Senator Jaffer: There is the first observation and then (A) and (B).

The Chair: Yes. We are done.

(The committee adjourned.)