Proceedings of the Standing Senate Committee on
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
Senator Nancy Ruth (Chair) in the chair.
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.
(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
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
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
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
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-
In addition, First Nations are moving out of the Indian Act regime through
comprehensive self-government agreements, often assuming jurisdiction over their
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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)
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
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
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
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
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
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
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
Ms. McIvor: Yes.
Senator Baker: Have you ever litigated section 11(b) of the
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
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
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
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
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
decision, but it is the same thing: the gathering of documents and all sorts
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
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
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
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
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
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
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
Senator Lovelace Nicholas: Thank you for your answers.
The Chair: Thank you both very much for coming. It has been quite some
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
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
(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
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.
The Chair: Thank you very much.
Now from Quebec Native Women Inc., we have Madame Audette.
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
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
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
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.
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: I will begin by congratulating you, Ms. Audette, for
your election to this new position of president. I also wish to thank you for
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
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
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
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?
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Jaffer: There is the first observation and then (A) and (B).
The Chair: Yes. We are done.
(The committee adjourned.)