THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, March 7, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:07 a.m. [ET] to discuss the government response to the seventh report (interim) of the Standing Senate Committee on Indigenous Peoples entitled: “Make it stop! Ending the remaining discrimination in Indian registration,” deposited with the Clerk of the Senate on June 27, 2022.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Algonquin Anishinaabe Nation and is home now to many other First Nations, Métis and Inuit people from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Standing Senate Committee on Indigenous Peoples.
Before we begin our meeting, I would like to ask committee members in attendance to introduce themselves by stating their name and province or territory, starting with the deputy chair.
Senator Arnot: David Arnot, Saskatchewan.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory in Alberta.
Senator Tannas: Scott Tannas from Alberta.
Senator Sorensen: Karen Sorensen, Treaty 7 territory, Alberta.
Senator Greenwood: Margo Greenwood, British Columbia.
Senator Coyle: Mary Coyle, Nova Scotia, Mi’kma’ki.
Senator Duncan: Pat Duncan from the Yukon.
The Chair: Today, we’re discussing the government response to the seventh report of the Standing Senate Committee on Indigenous Peoples, entitled Make it stop! Ending the remaining discrimination in Indian registration.
With that, I’d like to introduce our witnesses. We’ve jumped panels due to technical difficulties, so starting with our second panel, we will hear from the Honourable Lillian Dyck, former senator, and Jeremy Matson, as individuals.
Wela’lin. Thank you both for joining us today.
Former Senator Dyck will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators. I now invite former Senator Dyck to give her opening remarks.
Hon. Lillian Eva Dyck, former senator, as an individual: Thank you for the invitation to appear before the committee. Today, I will focus my remarks on the government response to the committee’s report on two issues, which I think are the most important and pressing issues.
The first issue is with regard to the second-generation cut-off. It’s disconcerting that the government is not open to eliminating the second-generation cut-off of Indian status, but I’m not surprised. It seems that the government is willing to act only when ordered to do so by domestic courts or international bodies.
The government response suggests, first, that it is necessary to consult on this issue, but consultations have taken place numerous times. In the current situation, where legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, has been passed by Parliament and where efforts are being made across Canada to implement the Calls to Action of the Truth and Reconciliation Commission, the government should be more willing and active in drafting legislation to remove the second-generation cut-off.
The second issue is the registration process. The government response to the Indigenous Peoples Committee, or APPA, report indicates that they are improving the public information about the eligibility criteria for registration under Bill S-3 and improving the efficiency of the registration process. However, I am not convinced there have been meaningful changes in public information about Bill S-3, nor am I convinced that the registration process has been expedited or improved significantly or sufficiently.
Last week, I spoke to an Indian Registration Administrator, an IRA, and found out that the regional Indigenous Services Canada, or ISC, office in Regina is not yet open to the public due to the pandemic. This has likely slowed down the registration process. While an ISC employee may have been available via telephone, a face-to-face meeting is much better when discussing complicated issues like this.
I was also told that the band offices received posters about Bill S-3, but the IRAs have not received any explanation or training on the bill. ISC has stated that the IRAs are speeding up the registration process. That may be so, but they could be much more effective with better information, training and availability of ISC employees.
I also spoke to an applicant who said the information on the ISC website was confusing and not helpful. That information has not changed; I checked it yesterday. She had difficulty contacting anyone at ISC to help her, and when she finally got through, they were dismissive and told her she wasn’t eligible. Nonetheless, she applied and was successful. The key to her success was the help of her IRA, who has access to the band membership list, so it was easier for her to document which of her relatives had Indian status.
I would recommend that the drafters of Bill S-3, the communications staff and whoever else is involved in the public outreach of Bill S-3 sit down with the IRAs, the actual applicants and their lawyers, if they have one, and have a discussion to determine whether applicants can easily understand and comprehend what the intentions of the bill are and whether they are eligible for status. It would be like having a kitchen-table discussion, and it would help ISC redesign their communications packages.
I would recommend they also organize regional meetings with the IRAs to ask them how ISC can use their expertise to improve the registration process.
I recommend that ISC set as a priority the development of new, improved communications packages about Bill S-3, as outlined above. This is the most important step and key to an effective, efficient and timely registration process.
In the current climate of Indigenization of workplaces and post-secondary institutions, there are more and more spaces opening up to First Nation people. Unfortunately, there are people falsely self-identifying as Indigenous and fraudulently taking up those spaces. Consequently, institutions are now asking for Indigenous status cards as proof of First Nations identity. The thousands of eligible descendants still waiting to get their status cards will be shut out of those employment and training opportunities.
That constitutes another reason why there is a pressing need for more timely processing of status cards by ISC, particularly for young and middle-aged persons.
This brings me back to the second-generation cut-off issue, which was Recommendation 4 in your report. The second-generation cut-off affects all status Indians born after April 16, 1985, when Bill S-3 came into effect. Some witnesses mistakenly think that grandchildren born after April 16, 1985, to women whose status was revoked by marriage to a non-status man before April 17, 1985, will not be able to gain status. Of course, they’re deeply disturbed by that.
It is very confusing and unfortunate that in the government response to your report, ISC did not indicate that the previous witnesses were mistaken.
It is difficult to understand the intention of Bill S-3 due to the complexity of the first version. The information on the public website is derived from that first version, and that’s probably why the website is so hard to understand.
The second phase of Bill S-3 is much simpler and makes no mention of grandchildren and great-grandchildren; it only mentions direct descendants. This came into effect on August 15, 2019.
Why isn’t the public information updated? It could be explained much easier. The committee should ask ISC about this. Why are we tying ourselves into knots trying to explain the complex version of the bill that is no longer in effect? The simple version is in effect.
However, the confusion with the first version of the bill highlights the fact that descendants born after Bill C-31 was enacted in 1985 can only carry their status forward for two generations with continual intermarriage with non-status partners. It is critically important to eliminate the second-generation cut-off of status to sustain enough people with status in First Nation communities so that they can continue to survive and thrive.
The second-generation cut-off is quite complicated. I would certainly be willing to take questions on it during our question period.
To conclude, this committee has continued to play a key role in monitoring the implementation of Bill S-3 and making recommendations to which the government must respond. I urge the committee to continue to do so. Thank you.
The Chair: Thank you, former Senator Dyck. I will now invite Jeremy Matson to give his remarks.
Jeremy Matson, as an individual: [Indigenous language spoken] Good day, you great people. I’m a Squamish Nation member and I have direct ancestral ties to the Musqueam, Tsleil-Waututh and other Coast Salish communities. I am also a registered person under the Indian Act.
I would like to thank the Standing Senate Committee on Indigenous Peoples, APPA, for allowing me to speak here today about such an important matter, the committee’s Make it stop! report from June 2022 and the Government of Canada’s response from February 2023.
As some of the honourable senators on this panel are aware, I am the successful litigant in communication 68/2014 that was rendered by the United Nations Committee on the Elimination of Discrimination against Women, CEDAW. Canada was found in violation of Article 1; Article 2(a), 2(b), 2(c), 2(d), 2(e) and 2(f); and Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women. Canada was also found in violation of various articles of the United Nations Declaration on the Rights of Indigenous Peoples, which is a law of the federal government as of June 21, 2021, and in British Columbia as of November 2019. Canada was found in violation of Articles 2(c), 2(d) and 2(e) of the convention about access to justice, as the Canadian Human Rights Act and the Charter were both found to be illusory options for Indigenous peoples in communication 68/2014.
To tie in to Recommendations 4 and 6 of the report and the government’s response, in September of 2022, the , or the Department of Justice, on behalf of Indigenous Services CanadaPermanent Mission of Canada to the United Nations wrote the UN Petitions Unit and the CEDAW Committee and stated it will not comply with the CEDAW views and recommendations in 68/2014, and justified why it had constructed section 6(2) of the Indian Act and it will not provide reparations, restitution or compensation for my family, my descendants and me. Canada made no mention of the 1985 cut-off rule. It made no mention of the marital and birth date issues and access to justice, which Canada was found in violation of.
Article 27 of the Vienna Convention on the Law of Treaties states:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
The Supreme Court of Canada in Hape made its own interpretation of domestic and international law to be incorporated, interpreted by the courts, the Senate and the House. In Hape, the court provided guidance at paragraph 53 — this approach of the Supreme Court of Canada’s guidance to the legislator — the Senate and the House — to comply with construction of domestic laws with international laws.
As we know, the UN CEDAW appeared on May 2, 2022, to provide this committee, APPA, testimony. To my knowledge, this was the first time in Canadian history that a UN body appeared before the Senate or the House to provide testimony. CEDAW noted that my family and other families have suffered intergenerational displacement, and Canada cannot go for another piecemeal approach when amendments are to be made and reparations and restitution are to be applied.
As for reparations, restitution and compensation, and Minister Hajdu’s February 23, 2023, submission to APPA about Recommendation 7, I resort back to international jurisprudence in my May 2022 brief to APPA and the minister pointing to Mackin from the Supreme Court of Canada. Contrary to the minister’s views, the Inter-American Court of Human Rights case of Yakye Axa Indigenous Community v. Paraguay, a judgment from June 17, 2005, at paragraph 181 states:
Reparation of the damage caused by infringement of an international obligation requires, whenever possible, full restitution . . . which consists of reestablishing the situation prior to the violation. . . . payment of compensation for the damage caused. The obligation to provide reparations, which is regulated in all aspects (scope, nature, modes, and establishment of the beneficiaries) by International Law, cannot be modified by the State that is under this obligation, nor can it avoid complying with it, by invoking domestic legal provisions.
This jurisprudence and all the other jurisprudence that I’ve applied in my submissions to this committee apply to Matson from the CEDAW Committee and my communication and to McIvor from the UN, rendered a number of years ago now.
That’s all I have to say in my introduction.
The Chair: Thank you, Mr. Matson. I’ll defer to my deputy chair to ask the first question.
Senator Arnot: Thank you to the witnesses. My question is directed more to former Senator Dyck.
Senator Dyck, you have a long history, experience and knowledge of the inequities yet to be addressed. I really respect your work on this. It seems to be continuous.
You mentioned one of the things that I think is important: the honour of the Crown seems to be in breach; the fiduciary duty seems to be in breach; the United Nations Declaration on the Rights of Indigenous Peoples seems to be in breach; and the duty to implement the treaties according to the spirit and intent of treaties seems to be in breach. This seems to be, in my opinion, a fundamental, continuous symptom of the broken relationship between the Crown and Indigenous peoples in this country.
I’m wondering if you have any comment on whether this committee should be exploring a process outside of the litigation process — which is always the government’s go-to position because they can continually litigate this for years and years — and exploring mechanisms, either existing or outside, needing to be developed, mechanisms to hold the executive branch of government to account for this continuous breach of these four fundamental principles.
I’m addressing that question to former senator Lillian Dyck and to Mr. Matson as well.
Ms. Dyck: Thank you for that question, Senator Arnot. You’ve really hit the nail on the head, and I think Mr. Matson also brought up some of those points in his presentation.
It seems to be a historic challenge for Indigenous peoples to hold the government to account and to actually implement the instruments that you listed. Now, in particular with the United Nations Declaration on the Rights of Indigenous Peoples, there’s another lever that we can use to advance the rights of Indigenous peoples.
I do think it’s a very good idea for the committee to get involved outside of the litigation process. The committee could undertake a study. I was thinking, with regard to even the eligibility of people under the bill and the registration process, that the committee could visit different urban and rural communities, different reserves and pose those questions and find out exactly what’s happening on the ground.
A lot of these litigation processes take decades, and then Canada will not act. Canada will apply for an appeal, as they did in Bill S-3. They appealed, they lost, they were ordered to act. We didn’t fold. They had to apply for another appeal; otherwise, Bill S-3 would have been put into abeyance, and most of the registry would have been shut down. So even when the court orders the government to act, they don’t necessarily act.
Therefore, I think it is a good idea for the committee to make its own study. Because the committee is able to ask the government for a response, that’s another way of pushing them and making it public and getting the public behind to make sure it happens. I think that worked well with Bill S-3. A lot of it was due to the public action. I credit the group FAFIA for really helping bring that to the public’s attention and getting the news media involved.
Mr. Matson: Thank you for the question. You are right. The litigation process is the way of the government. They have unlimited resources to combat Indigenous peoples, individuals or groups when coming forward with these challenges and this known discrimination.
International law is the only way out of this, in my view. I said this at the last meeting. All three domestic instruments that have been provided to Canadians and Indigenous peoples to resolve these issues have been exhausted numerous times. In my case, using the Canadian Human Rights Act, going up to the Supreme Court of Canada and having every judicial body not render any decision on the merits and strip away the Canadian Human Rights Act for Indians in this country when we were previously denied from 1977 to June 2008 is just another issue.
If we have no forms of access to justice, and the Charter was proven to be an illusory option to challenge these issues, and these known issues keep coming up over and over again, where do we go as a people? Where do we go as a society? All Canadians now don’t have the Canadian Human Rights Act when there is legislation, provisions and wording that are discriminatory in this country. It has now come over to the provinces and territories, in British Columbia, and following my decision from the Supreme Court of Canada.
We have to have these foundations established, like access to justice, which was a proven cause to the high levels of violence to the murdered and missing Indigenous women and girls in this country. The UN CEDAW, the Inter-American Commission on Human Rights and also our own National Inquiry into Missing and Murdered Indigenous Women and Girls found that there is no forum for anyone to go to.
There have to be other working groups put together in order to use international law to interpret our domestic setting and our identity provisions, which is a human right. But in Canada, as Canada acknowledged, it is not a human right here to be Indian, to be Indigenous and to receive benefits and rights associated with that.
The Chair: I’ll go to Senator Sorensen in a second, but I’ll jump in with a quick question. The government response states that Indigenous Services Canada will:
. . . co-develop and launch a collaborative consultation process, in 2023, on known remaining inequities, including on the second-generation cut-off, and broader reform issues in registration and First Nations membership.
Could you expand on why or why not additional consultation is needed? In your view, has there been enough or not enough consultation with First Nations women and their descendants? If yes, why do you think the government and even some First Nations remain reluctant?
Ms. Dyck: The government has done consultations on this issue in the past. When they did Bill C-31, they thought they had eliminated all the sex-based discrimination. That’s when they introduced the second-generation cut-off as a way to let people in and cut people off. They did a series of consultations with Bill C-3, which was enacted in 2011, followed by reports. When they were developing Bill S-3, they did consultations after the first phase. They had Claudette Dumont-Smith do the collaborative process, talking about the full implementation of Bill S-3.
At the same time, they were talking about second-generation cut-off. This has been talked about numerous times in the past, and I don’t understand why they need to consult again. They’ve already done it. As Sharon McIvor, in particular, said, “You don’t go out and consult on fundamental human rights.” You acknowledge that you have that right to determine your own citizenship. Why are you consulting? Technically, you have no choice. You have to cut off the second-generation cut-off.
The government continually falls back on this consultation, but what really irks me is the fact that they only consult on something like this when they decide that they’re going to change the laws, let’s say, on matrimonial real property. Did they consult? No. They just went ahead and did it. It’s a tool that they can choose to use or not to use. In this case, they’ve chosen to use it, and I don’t think they have the fundamental right to do that.
Mr. Matson: I’ll continue from what Senator Dyck said. I haven’t been consulted by the Government of Canada about my communication 68/2014 and being a successful litigant in it. I was told that the government is making amendments to Bill C-38, which is approximately four issues.
The second-generation cut-off rule and the 1985 cut-off rule are two different items. They do intersect and marry together for various scenarios, but they are two different things and there are two different outcomes. However, the second-generation cut-off rule applies with that.
When it comes to stats, I don’t know if this committee has any updated stats from Minister Fox when she presented to this committee back in April, May or June of last year, but I was provided minimal information. There are 298,690 people who have been registered under section 6(2) since 1985. That’s from a government official. When you take that times 1.6, which is the average Canadian household right now, or 2.2 for Indigenous peoples — just for the second-generation cut-off rule, with rough numbers, and they may alter because someone may have married someone who is also a 6(2) or 6(1) Indian, and some people may have continued on the path out — there are about 477,904 people, or up to 657,118, just with raw data. That figure could be either decreased or increased, but it’s just for the person who is registered and then the generation below.
Since 1985, multiple generations will be involved. Under Article 8 of the UN Declaration on the Rights of Indigenous Peoples, we have to go back in time. We have to redress everything, and then we have to make sure that no outcomes like this happen in the future.
Regarding the whole notion of this piecemeal approach, the UN told this committee, both in testimony and in my UN decision, not to go for a piecemeal approach. Yes, consultations should apply, but when there are legal findings that the government is to adhere to, such as not to communicate with the successful litigant, it’s troubling. There are more numbers than that which apply to these different issues that have come up in my case. There were fairly big findings from the UN in my case and, again, international law is the process for it. I’ll leave it at that.
The Chair: Thank you for that.
Senator Sorensen: Thank you very much. I am going to use this as a learning opportunity. I wasn’t on this committee at the time this report was studied, and I want to thank the Honourable Ms. Dyck for offering to explain in more detail around second-generation cut-off.
My question involves a non-Indigenous male and an Indigenous female who have a child, and then they have children, and the opposite. First, is there still a difference when the woman is non-Indigenous and the male is Indigenous? I’m still trying to understand what happens currently — I think you said as of 2019. What happens to status for those children and for those children’s children?
Ms. Dyck: Let’s see if I can make this clear.
Senator Sorensen: You need a flow chart.
Ms. Dyck: Exactly, it’s hard without a PowerPoint or a blackboard — I go back to the blackboard days.
Loss of status started way back in 1869. When an Indigenous woman married a non-Indigenous man, she lost her status. However, it’s better to say her status was revoked because she had no choice.
When Bill C-31 came into effect in 1985, they put in the 1985 second-generation cut-off rule whereby, after that date in 1985, status is not lost or gained by marriage between status and non-status partners but when an Indigenous man married a non-Indigenous woman, he also loses his ability to transmit his status. That was their way of getting rid of sex-based discrimination. It was thought to have gotten rid of it, but it didn’t get rid of it all. It made the idea of intermarriage gender-neutral.
What happens after 1985? When there’s intermarriage, whether it’s a male or a female marrying a non-status person, their children then get a reduced form of status called 6(2). When the child of that marriage marries a non-status person, the grandchildren of the original couple no longer have status. After two generations, the status is lost.
The confusing part really comes with Bill S-3 because Bill S-3 still has to refer back to 1985. It was very clear from the clauses in Bill S-3, from material that the government produced in their charts and figures and from reports from the Library of Parliament that when Bill S-3 came into effect, the grandchildren and the great-grandchildren of women who married non-status men would be reinstated back to a 6(1) status. So any children born after 1985 still are subject to Bill C-31 because if they were born in that period of time and they got married, then their status would have been affected. That’s why it has been reinstated.
This is very hard to explain without a chart, but they do interact. It’s very clear that grandchildren of women who are reinstated by Bill S-3 will get 6(1) status, even if they’re born after 1985. That’s where the interpretation is difficult.
Senator Sorensen: No, that was great, actually. That helped me a lot. Bill S-3 was in 2019, is that right?
Ms. Dyck: The first phase came in 2017. That’s where we get this whole series of extremely complicated clauses. That was, I think, December of 2017.
Senator Sorensen: That was really helpful. I won’t belabour it, but what I’m hearing is that there’s a big gap from 1985 to the next change. It’s clear now, from your words, what happens with those children and great-grandchildren and grandchildren, but there’s a misunderstanding in that middle section.
Ms. Dyck: Yes, and that misunderstanding affects just about everybody. To be completely honest with you, when I read the report and I saw the different interpretation, I thought, “Well, maybe they’re right.” So I went back and forth. I thought, “They’re right,” “They’re wrong,” “They’re right,” “They’re wrong.” In the end, I decided that my interpretation was correct after I had checked all the government documents and had gone through my own particular case. I saw that if I had grandchildren, they would be eligible.
Senator Sorensen: Thank you.
The Chair: Mr. Matson, do you have anything to add?
Mr. Matson: I am a descendant of an Indigenous woman who was commuted under the Indian Act; that was my grandmother, in 1927, when she married my grandfather. My grandmother and all of her descendants, up until 1985, had become eligible through my grandmother and my father, who was deceased at the time. He was entitled.
But my grandmother became a 6(1)(c) Indian under the Indian Act. My father and his siblings, dead or alive, were entitled to section 6(2), which was premature, as we know through the 2010 McIvor, the 2017 and the 2019 amendments, through the generational leaving out by the government and committees and the policy-makers who had constructed these issues. The findings of the United Nations, in my decision, were that in my family’s standing, my children should be 6(1) Indians, and their children 6(2) because the 2017 and 2019 amendments fell short a generation.
That’s just to stay in the parameters of what is legal here in Canada and the comparator groups. I started off as a non-status Indian. I became a 6(2) Indian, then I became a 6(1)(c) Indian, then I became a 6(1)(a) Indian. Now I’m entitled to what I should have been prior, but my children and my grandkids are not treated to equality, and that is a finding of the UN in my case.
Senator Sorensen: I appreciate that personal story line, too, because that helped me with my understanding. So did you only receive your status after Bill S-3?
Mr. Matson: My first rejection letter as an individual, to my mother, was in 1985, following Bill C-31. It’s been a long journey just with that, never mind the century of discrimination that has been applied to my family’s bloodline.
Senator Sorensen: Was it Bill S-3 that got you status?
Mr. Matson: It was under Sharon McIvor’s 2010 bill that I became a 6(2) Indian.
Senator Sorensen: We’re going to hear from Ms. McIvor, so I’ll listen closely.
Senator LaBoucane-Benson: My question is around the language that we use. Any time I have travelled to Australia and talked about “Bill C-31 Indians,” “Bill S-1 Indians,” “Bill S-2 Indians,” those words are just so offensive. So I’ll go back to our former colleague Lillian Dyck. Ms. Dyck, can you talk more about this communications plan and the language that we should be using? How can we adopt language that isn’t so horribly offensive when we talk about our identity based on pieces of law, sections of law?
Ms. Dyck: Thank you for that question, Senator LaBoucane-Benson. It is offensive language because it goes back to that whole idea of numbering, right? “You’re not a person; you’re a number.” And as Mr. Matson said, at first he was what was called a 6.0, then he became a 6(2), then he became a 6(1), then he became a 6(1)(c). Then you can become a 6(1)(c.01), and then, all of a sudden, you’re back to 6(1)(a); and now we’re 6(1)(a.3). We’re dealing with people as though they were objects, as opposed to human beings. It’s like when they gave Inuit people numbers instead of names; it’s the same kind of thing. It’s dehumanizing.
I wish I knew a better way, but the best way for it, actually, is to get the government out of this business. The issue of who is a citizen of a First Nation should not be up to the government. It should be up to the First Nations themselves as their right to be sovereign First Nations. Once that is done, I think this whole numbering system will disappear.
But in the meantime, until that happens, we’re kind of stuck with it. I don’t know how else you can change it. However, having said that, at least with Bill S-3, the numbering is much less complicated. Under category 6(1), there are only subsections (a.1), (a.2) and (a.3). It’s compacted all the complexity into three sections, so it’s better in that respect. Thank you.
Senator LaBoucane-Benson: Thank you so much. I think numbering people for identity is no different than calling people “half-breeds” or “half-caste”; it’s the same idea.
Ms. Dyck: Yes.
Senator LaBoucane-Benson: Our Australian brothers and sisters say, “We don’t cast half a shadow.” You are or you are not. There are no grades in that.
My question for Mr. Matson is this: I’ve heard you describe yourself in all of those ways. How would you change the names and the way we communicate this if you could wave a magic wand?
Mr. Matson: Sure. A magic wand . . . You’re the ones who hold the magic wand as the policy-makers of this country.
Going off what Lillian Dyck has said, it has to come back to the Indigenous communities. I remember Senator Arnot had said that we should go in that direction. My response to him was that we’re not there yet. We have a lot of work to do.
The simple thing is to clear up all the discrimination in section 6 of the Indian Act. When it comes to the findings of the UN, in my case, to meet Articles 9 and 33 of UNDRIP and all that stuff, the government does have to get away from section 6 of the Indian Act, but it also has its fiduciary duty to overhaul and remove all discriminatory practice.
Whatever we think of today, there will be another legal scenario for individuals that will come up tomorrow or the next day or 10 years from now. There has to be a clause inserted when we do remedy this because we can’t just say, “Here, Indigenous communities, all 634 of you, you’re now in charge of Indian status and also band membership.” That’s the way it should be. That would be pre-contact, and that’s the way it was traditionally.
However, in order for us to get there, we have to resolve all the colonial and discriminatory practices of the government. Once that is done, then we can actually give that to the Indigenous communities, give them back their power, and that would meet international law. That would meet our pre-contact laws of our nations and Indian bands. Once that process, the fiduciary duty of the government, is resolved, then the community can say to the Government of Canada, “We have an Indigenous-born child or an Indigenous person who should be eligible for Indian status and band membership,” from a community perspective. Until we get there and mould in sections 10 and 11 and 6, we can’t just hand it over to an Indigenous community, because a lot of these Indigenous communities have taken up the same mindset of the ways of the government when it comes to applying discrimination. A lot of it is because of lack of federal funding. We have multiple generations living in one house. Funding has to come back, and then funding has to be secured for Indigenous people who are coming into the community. Thank you.
The Chair: I’m wondering if either or both of you can tell me this: What reforms are needed to ensure First Nation citizenship aligns with the articles of the United Nations Declaration on the Rights of Indigenous Peoples concerning self-determination over identity or membership?
Ms. Dyck: I think that relates to what we’ve been discussing in terms of the different categories and what Mr. Matson was outlining with respect to whether we continue with the legal pathway or if we somehow go back to the traditional laws.
The United Nations Declaration on the Rights of Indigenous Peoples — I don’t know the articles offhand — would say things along the lines of Indigenous peoples having the right to govern themselves. Therefore, they have the right to develop and implement their own laws on citizenship. It also goes back to what Senator LaBoucane-Benson said: It would probably come down to either you are part of the community or you’re not. It’s not like you’re halfway welcome or only “quarter-way” welcome.
So it would be required to go back to what was done before the Indian Act — before 1869 even, before the Indian Act came into effect. It would be reaching back and asking communities, with their knowledge keepers deciding what the ways were that were used before colonial law was imposed.
The Chair: Thank you for that, Ms. Dyck.
Mr. Matson, do you have anything to add?
Mr. Matson: First things first, in order for this process to take place, Article 8 of the UN declaration has to be met according to section 6 of the Indian Act; it’s a thorough interpretation of section 6 of the Indian Act. Once those identity provisions are cleared, then we can get into other articles.
Articles 22 and 44 speak to non-discriminatory practice regarding Indigenous women, girls, people with disabilities and so forth. So those are other interpretative clauses.
Then, when it comes to Article 9 and Article 33.1, when it comes to citizenship, section 6 has to be met first and addressed with Article 8 of the UN declaration. Then Article 9 and Article 33 of the UN declaration would be fulfilled and would pass the reins over to the communities themselves.
The Chair: Thank you both for that.
Senator Tannas: I can only see more complications in what we’re trying to do. Senator Dyck and Mr. Matson, do you see any inevitability or any benefits in modern science and technology around DNA and blood quantum as a way to strip all of this classification away? This is extremely important to people. It will become even more important to people the more money starts flowing by way of benefits and so on, entitlements, rights.
So do you see any role for DNA and blood quantum science and technology as a way to deal with this in the future?
Ms. Dyck: When you were asking if there was any use of application of technology, I thought you were thinking in terms of speeding up the processing of status cards because technology could most definitely be used there.
Senator Tannas: No question.
Ms. Dyck: Even the status card that Ottawa issues — and I don’t have mine in front of me right now — has a bar code on it, but when you go to use it at the gas station, they don’t even use the bar code. I don’t know what the bar code is for. It might be used at the airport.
The band membership lists that the band has have my name, the date the list was produced, my treaty number and the code under which I’m registered. So I should be a 6(1)(c), now a 6(1)(a.3), but they have it listed as 6(2), so it’s out of date. If the band memberships were kept up to date and done automatically by a computer software program, we could register thousands of people much more quickly by those genius computer scientists, who could develop a program to do this for us instead of manually plodding through bit by bit and taking days and months. It could be done in seconds. It’s like doing a library search: I don’t have to go to the library anymore; I type it into my query, and it finds the reference for me. It’s done — bing, bam, boom!
You were talking about technology with regard to DNA, and I don’t think that’s a solution — or blood quantum — because it goes back to the historical laws. Traditionally, people were adopted into First Nations and they would probably be adopted as full members regardless of whether they were actually genetically related. They would live in the community, they might marry into the community, they might become part of the community and contribute to the community and be real members and integrate completely.
So I don’t see a role for DNA and blood quantum, but I do see a big use for technology to help with the registration and processing of status cards. The process is antiquated. Thanks.
Mr. Matson: Thank you for the question.
As for DNA, I’ll just go with what Senator Dyck had said. I don’t think DNA and providing the government with blood on top of — the churches and state have done a really good job of collecting genealogical and family histories, and as Senator Dyck said, yes, Indigenous communities have brought in people who may not be blood, but they are members of the community because they are accepted by traditional law and practice.
So when it comes to DNA, cost savings to the Government of Canada and trying to pinpoint that, I don’t think that should happen. I know when you hand over the reins — and you should — to the communities, you will co-develop some kind of process for when applicants are coming forward or regarding information for people coming from communities to say, “Here, Government of Canada, these people are status, and these people are members. Provide them their identity.”
I know there are a lot of internal workings that would have to be done both with the First Nations government and the federal government in order to make sure that’s correct and not manipulated in any way.
The Chair: Thank you. We have time for one more question.
Senator Duncan: I’d like to thank the witnesses for their appearance here this morning, especially Senator Dyck. That is the best explanation of the second-generation cut-off I’ve heard, despite the lack of a blackboard.
My experience in asking questions of the Yukon First Nations is that those Yukon First Nations with settled land claims, to my understanding, keep track of their own membership. They’re dealing with the benefits of their land claims and their development corporations, and that seemed to me to be what Mr. Matson was saying: This needs to be in the hands of the First Nations themselves.
It seems that part of the problem is that the government is, once again, in this great big country, trying to use one-size-fits-all solution. And it doesn’t.
To follow up on Senator Arnot’s suggestion, I wonder if there is another way to deal with this and if there is a recommendation the committee could make. Would it be an alternative dispute resolution methodology and a recommendation to the government that, rather than trying to deal with, as I understand it, 600 plus First Nations or bands — I’m not sure what term to use — we make a recommendation that an alternative method for status registration be imposed? Do the witnesses have any thoughts or recommendations on that?
Ms. Dyck: You have brought in some very interesting elements. I think the committee could, for example, look internationally at what has been done in Australia, New Zealand or with the Sami people. How do they determine their registration? I know the Sami people have separate seats in their parliament. I’m not sure how they determine their citizenship.
You mentioned Yukon First Nations, but they’re a little different because they have a self-governing agreement. Out of that, then, in the agreement, they probably have clauses that say that they’re allowed to determine their own membership. I’m not sure how it works for them.
Also, under the Indian Act — and I think Mr. Matson brought this up as well — there are sections 10 and 11: that individual bands can take control of their membership lists. However, I don’t think that gives them the right to determine status; that only allows them to determine membership. Status and membership are different things.
So it is a complicated issue, and I think the power needs to go back to the communities.
As you said, there are about 620 First Nations communities across the country, but I suspect they will fall into less than half a dozen different models, depending upon the major affiliations. The Anishinaabeg might have one way, but the Mohawks and the Cree might do things differently. Or it could go by treaty areas.
Anyway, I don’t know if I answered your question, but those are my thoughts.
Mr. Matson: I think I’ve already touched upon all your points in other comments to other senators, so I don’t have too much to add to that.
The Chair: Thank you very much. The time for this panel is now complete. I wish to thank former Senator Dyck and Jeremy Matson for joining us.
Mr. Matson: Would you like me to submit my written brief like I did last time?
The Chair: You can if you wish to.
Mr. Matson: It would be just to update the committee on what has transpired.
The Chair: Thank you.
On this panel, from the Canadian Feminist Alliance for International Action, we have Shelagh Day, Chair, Human Rights Committee; and, as an individual, Sharon McIvor. Wela’lin. Thank you to both of our witnesses for joining us today. Each witness will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators.
I would now invite Ms. Day to begin her opening remarks.
Shelagh Day, Chair, Human Rights Committee, Canadian Feminist Alliance for International Action: Thank you very much, Senator Francis, and thank you for inviting us this morning. I’m sorry that we’ve been having various technical difficulties, but we appreciate your invitation. If you don’t mind, I would like to have Sharon McIvor start this session and I will follow her.
The Chair: That’s fine if Ms. McIvor is okay with that. Ms. McIvor, would you like to provide opening remarks?
Sharon McIvor, as an individual: Yes. I’m from the Nlaka’pamux Nation in south-central British Columbia. I want to thank you for the invitation to speak to you today.
Regarding our comments on the government’s response to the seventh report of the Standing Senate Committee on Indigenous Peoples, Make it stop! Ending the remaining discrimination in Indian registration, my colleagues and I will address three of the many outstanding issues. We want to address section 6(2) of the Indian Act, the bar to compensation in the Indian Act and registration.
We have been protesting discrimination against Indigenous women for many decades. Yet, here we are, in 2023, still demanding that the discrimination be deleted from the registration process. The fact that we, as Indian women, have to continue to beg for equality is unconscionable. We are the only group in Canada that has legislated discrimination aimed directly at us.
Canada, in bad faith, enacted it, approves it and uses every tactic to ensure it continues. Section 6(2) of the Indian Act is in violation of a multitude of laws and conventions that Canada has enacted and endorsed. It is a clause that is designed to ensure that we, as Indians, will be legislated out of existence.
As a woman, my status line has gone in my lifetime. I have three great-grandchildren, and they are not eligible for status. My friend will soon be a grandmother. Her grandson is not entitled to status. The two-parent rule for status introduced in 1985 ensures that our nations legislatively will no longer exist. The move to separate membership from status and tie funding only to status is deceptive and confusing.
On the issue of consultation with many, the recommendation is multiple consultation. Our right to belong to our community, to consult on our right to belong to our community, is totally unconscionable as well. Nobody has the authority to decide our rights don’t exist. Those are birthrights, and nobody should be able to say, “I will accept that one and that one, but we will not recognize the third one at all.”
According to Stewart Clatworthy’s calculations, there is a band in Manitoba that will have its last status member born in 2030. That’s seven years from now. Section 6(2) is legislative extinction of the recognition of Indians. With that, I’ll turn it over to Shelagh.
Ms. Day: I want to talk about the bar to compensation. In the government’s response to the Senate committee report, it’s one of the things they say they don’t agree with. They insist that the bar to compensation is legal because it hasn’t yet been challenged in court.
Essentially, this is an invitation to Indigenous women to sue them, which, at this point in history, seems to us to be entirely wrong-headed. Women have been litigating this particular issue of discrimination for some 50 years now. Repeatedly, courts and the United Nations have found that the Indian Act does discriminate on the basis of sex against women and their descendants.
Consequently, for them to insist that women now, in order to be compensated for that discrimination, must go back to court — and that is essentially what they’re saying in their response to you — seems to be entirely wrong-headed. It ignores the government’s commitment to reconciliation. It ignores their commitment to making laws consistent with the United Nations Declaration on the Rights of Indigenous Peoples. As Mr. Matson pointed out this morning, Article 8 of UNDRIP says Indigenous people have the right not to be forcibly assimilated and to reparations and restoration and repair when forced assimilation has occurred.
All of the United Nations treaties that Canada has signed are clear that when a right is violated, the victims of that discrimination have the right to an effective remedy. An effective remedy includes a number of things. One is stopping the discrimination, ensuring that it doesn’t happen again, restoring the victims to the situation they would have been in had the discrimination not occurred, and various kinds of compensation. Reparations are recognized as part of the obligation under all of the treaties that Canada is a signatory to.
The insistence that the bar to compensation should stay in the legislation and that they will not remove it in Bill C-38 seems to us to simply be going in the wrong direction and contrary to Canada’s undertakings.
I want to say a bit about registration as well. Again, the Senate committee has made excellent recommendations about registration. Many of these, unfortunately, are denied by the government’s response. The government’s response on registration is disappointing — not surprising to us — but very disappointing.
The latest figures provided to the Indian Act Sex Discrimination Working Group by Indigenous Services Canada show that as of January 20, 2023, 39,701 individuals were registered under all sections of Bill S-3. Since the provisions of Bill S-3 came into force in December 2017, this is a period of approximately five years.
Now, we know that the government’s own estimates of the numbers of those newly entitled by the “6(1)(a) All the Way” amendment — the amendment that came into force in 2019 which this committee fought so hard for and for which First Nations women are so thankful — were 270,000 to 450,000 that were newly entitled by the “6(1)(a) All the Way” amendment. That’s in their report on Bill S-3. We are now being asked to accept a revised estimate of 251,000. Even if we accept that revised estimate, there’s no acceptable explanation, in our view, for why it should take Indigenous Services Canada until 2041 to register those who are entitled. That is what we are being asked to accept by the government in its response to you.
We all know that until the women and their descendants who have been denied status because of sex discrimination are actually registered, the right that they won is meaningless. The “6(1)(a) All the Way” amendment entitles women and their descendants to the same status and the same right to transmit status as men and their descendants from 1876 to 1985. This is a historic and crucially important change to the Indian Act and crucially important for the lives of First Nations women, their descendants and their communities.
But the Government of Canada is not taking a proactive, aggressive, committed, caring and rights-respecting approach to implementing the law passed by Parliament and the Senate. The government’s approach is not consistent with promises of reconciliation or, as I’ve said, about the bar to compensation with the United Nations Declaration on the Rights of Indigenous Peoples.
Under UNDRIP, again, Indigenous peoples have the right to belong to Indigenous groups or nations and they have the right not to be forcibly assimilated. The sex discrimination in the Indian Act has been a very effective tool of forced assimilation in Canada, defining thousands of women and their descendants out of the pool of Indians who are entitled to recognition and benefits. The failure to put in place an effective public campaign that overcomes the effects of the dislocation and disconnection caused by the discrimination and the failure to provide hands-on navigation assistance for those making applications in places that are accessible in different parts of the country are markers of the government’s unwillingness to give up this policy of assimilation.
ISC says it’s making some improvements in the process and plans more. That’s good, but the results of these promises are not evident. I suggest that the committee go to the management and departmental action plan to look at what’s there. It’s actually a much more accurate and more damning report on what is actually going on about registration than what’s been provided to the committee in the response that you’ve received.
ISC has rejected the committee’s request for oversight, independent review, plans, timelines and more regular reporting. This is not acceptable, in our view. The failure to implement a right when government controls the sole means of implementing it is itself discriminatory. Thank you.
The Chair: Thank you for your remarks, Ms. Day.
Senator Arnot: Thank you to the two witnesses. I’d like the two witnesses to address this question, if they may. It’s a process question. Ms. Day has mentioned that the litigation model is kind of the go-to position of government and always forces litigation, in effect. Litigation, in my opinion, is an example of failure, where two parties say, “We can’t work this out. We need to go to a third party — the judiciary, the courts, some other person — to work it out.”
Chief Justice Lamer, in the Delgamuukw case in the Supreme Court of Canada in 1997, basically said not to keep coming back to the courts for a solution to these issues. They are fundamentally a political issue. They need a political process to address those issues. No one is going away. That was 32 years ago.
Should the Senate committee be looking at exploring either existing mechanisms that are not litigation-based or other mechanisms — and we heard from Senator Lillian Dyck today, who said to look internationally — to resolve these issues outside the litigation process? I’m wondering what the witnesses might say about that.
I say this because this example, this continuous issue, is one where it’s very clear that there’s a broken relationship between the Crown and Indigenous peoples in this country. It’s a symptom of that broken relationship, and, fundamentally, it’s that relationship that needs to be fixed. It will never be fixed in a litigation model.
I’m wondering if the witnesses would comment about that need and perhaps the role of the Senate committee to look at this from a different perspective.
Ms. McIvor: I will say a couple of things about it as someone who has been in litigation with the Government of Canada on several different issues and for a long time. My case, which ended up with some minor changes in 2010, started in July of 1989. We got an initial decision in 2007 and then got a further decision in 2008 and 2009.
I would love to have a process where we could sit down and talk about the reasonableness and the fairness and the obligations of the government. My experiences over the years have not established that this could happen. Over the years that I’ve been dealing with the issue, I have dealt with 18 ministers of Indian affairs, and the one today is not saying much different than the first one I dealt with. Over the years, we have had promises, understanding, and I’ve been told, “Oh, I understand. We’re going to help and fix this.” Yet, here we are, all these many years later, talking about whether we can do it differently.
Each time we’ve gotten to a point where maybe we could do things differently — with Bill S-3, the Senate was wonderful. However, the other times, the Senate wouldn’t take the strong stand that the Senate took on Bill S-3.
So, yes, it would be very nice because when I talk to the ministers or the various people I’ve talked to over the years, they understand; yes, they see that it’s discriminatory and, yes, it should be changed, but that’s as far as it goes.
So it would be great if we didn’t have to sue the government for compensation and we could actually sit down and have a process that would work without the costs. The cost of my case, which ended up creating some minor changes, was about a quarter of a million dollars. Most of us Indigenous women don’t have that kind of money to do the litigation.
I have no suggestions. I’ve had a lot of discussions and suggestions over the years, and it always comes down to, “Okay, we know we’re wrong, we know that we should do something, but sue us to make us do it.”
But I’ll turn it over to Ms. Day. She probably has better suggestions than I do.
Ms. Day: My colleague, Ms. McIvor, is pointing to exactly what the problem is here, and it’s government intransigence on this particular issue. They started this discrimination in 1876. They seem to be very reluctant to give it up. The question of there being more Indians to whom the government owes fiduciary duties and whom it recognizes as having rights and entitlements seems to be a very troubled one.
Justice Masse said the same thing that you’re quoting, senator, in the Descheneaux case. She said the government shouldn’t be making people come back to court over every particular scenario of discrimination, time after time. That’s not the way to solve this. The government should be doing it by actually changing the law.
I think that we need to say a very big not just thank you, but there should be a recognition that this Senate committee and the Senate have played a very crucial function in changing the situation for First Nations women and their descendants by doing what they did with Bill S-3. Now we have Bill C-38, which will come to your desk, and the questions for this Senate committee and the senators will again be just that: What role can you play in terms of law reform? It’s a very crucial and important question.
So I think this committee is part of the mechanism that we turn to and need in these circumstances.
I would just add, then, that human rights organizations in Canada, working on various issues, have also been asking for years for an adequate, effective mechanism for dealing with the implementation of recommendations that come from United Nations treaty bodies. We don’t have such a mechanism yet. There is a real question about how international human rights law gets implemented domestically in Canada. That’s a very fundamental issue here.
The Chair: Ms. McIvor and Ms. Day, I asked this of previous witnesses, so I’ll ask you both as well.
ISC intends to co-develop and launch a collaborative consultation process in 2023 on known remaining inequities, including on the second-generation cut-off. In your view, has there been enough consultation with First Nations women and their descendants on this matter? If yes, why do you think the government and even some First Nations seem reluctant to remedy this discrimination?
Ms. McIvor, would you like to start?
Ms. McIvor: Yes, I will.
From my perspective, the colonial process that has been implemented and that came in like a bulldozer to disrupt our communities by taking the women, who hold all of the language, customs, et cetera, and throw them into non-Indigenous society so that they have to swim hard or drown — and they haven’t been able to stay with their communities and haven’t been able to contribute to the ongoing wellness of the community — is and was a deliberate mechanism to dismantle our system.
We talk about the minor things that are going on, but if you look historically, not only in Canada but in all of the other areas of the world that have been colonized, that is the most important mechanism to take all of the resources and the land and the rights of Indigenous peoples.
We can couch it any way we want, but our system is totally colonized. If you take our generations of children and teach them that the only thing they’re going to learn how to do is to try to protect themselves, all of the other things are broken.
So you’re suggesting that somehow we can put the things out to the people.
I talk on a regular basis to women who have been subjected to this and to women who have not lost their status but have grown up in the community. They have no understanding of our traditional system because the colonial system has gone in and made them all so vulnerable they can’t even think about looking forward. They’re looking to watch their back and their people all the time.
Those of us who are academics and some of us who were brought up in a solid community where our traditions, customs and world view are kind of intact — I can’t even say it’s fully intact because of the socialization that I was forced to go through — it’s not fair to us as women, who have a whole lot of rights that have been violated since the colonizers came, to throw out to us and say, “Okay, now we’re going to do consultation.”
Shelagh Day and I have been talking to groups that have invited us in, and I wanted to acknowledge Shelagh. We’ve been working together on this particular issue for well over 35 years, and she provides the international experience. We’ve had a lot of decisions out of the international bodies, such as the UN and the Inter-American Commission on Human Rights. When we talk to people — and we’re talking about chiefs’ groups that have invited us in — they have no understanding of what we’re talking about.
First and foremost, it’s not fair to go out and ask them because they don’t know what’s going on. Secondly, a lot of them are not entrenched enough in the tradition, so we’re talking about going back to the way we did it before. Intergenerationally, we haven’t done it, and a lot of them have no idea. And third, I reiterate this over and over again, no one has the right to decide whether or not to recognize my right. Those are rights, and we know that legally I can’t say, “Oh, it’s okay to discriminate against me.” I don’t have the right to allow the discrimination or say it’s okay, and others don’t either. So it’s a conundrum we’re in where we actually — the people who are being consulted actually think that they have a say in it, and when you’re looking at Indigenous rights, human rights and basic birthrights for a lot of us who were born into communities, it’s nonsensical to go and ask us if we agree with it or not. It just doesn’t make any sense to me. It’s a total waste time.
But I’m getting old now and I’ve been working at this for a long, long time, and small steps forward were made, but mostly it’s delay, delay, delay. We met with some of the bureaucrats from the Department of Indigenous Affairs, I think, in May of 2017 in Toronto, and I was told by the main person that we met with that his job was to protect my community from me, to keep me out, because if I got back into the community, I would make problems in the community. So it’s a really hard question for me because, first and foremost — I’ve said this over and over again — no one has the right to consent to discriminate against me, and basically even myself because that’s why those understandings and those laws are there.
So maybe Shelagh can give you an answer that will actually make a suggestion on what we can do.
The Chair: Thank you, Ms. McIvor.
Ms. Day, do you have anything to add?
Ms. Day: I would just add this. I think that, as Ms. McIvor has said, consultation can happen about how; it can’t happen about whether the government will stop discriminating. It can consult communities about how the change will be implemented and how it would be best for their community to implement it, but they can’t consult about whether or not to stop discriminating.
So now we’re faced with consultation on section 6(2) and the two-parent rule. It’s extraordinarily important to realize that, first of all, what the government says — that there is no sex discrimination left anymore and that section 6(2) and the two-parent rule are not sex discrimination — that’s wrong. They do, in fact, perpetuate the sex discrimination, so we’re still talking about sex discrimination here.
Second of all, if there is consultation, the government has to provide real data. It has to consult with communities on the basis of real information, and the real information is in the Clatworthy estimates that show that section 6(2) and the two-parent rule are essentially a program of extinction. The smaller bands will lose members first, but eventually they simply diminish the population of status Indians in Canada. So the communities who are being consulted need to know that and be told that in order for there to be any honest consultation about section 6(2) and the two-parent rule.
When they say they’re going to co-develop a consultation process, I want to recall you to the fact that in 2019, Claudette Dumont-Smith said there should be a consultation on section 6(2). That was four years ago. Nothing has happened. Why is that? So there’s a reluctance here to do anything about it.
The other thing you asked, Senator Francis, is why there is some reluctance in the communities. Well, the government itself, as Ms. McIvor has already said, has, in fact, characterized the women and their descendants — whom they banished, essentially, through sex discrimination from their communities — as a threat to the communities, a threat financially and a threat in terms of cultural integrity. This is an incredible irony, to turn the victims of discrimination into a threat to their own nations. The fact is that this is completely wrong.
The exclusion of the women and their descendants from their communities by sex discrimination is damaging to the nations and damaging to the communities as well as to the women and their descendants, so the framing of this by the government is completely wrong, and yet that is the basis on which they go out and talk to people in the communities when they’re dealing with this question of consultation.
So the consultation that should be happening, that should be honest, straightforward, about resources, how it can happen to really make the discrimination over and make communities whole, that is not what is happening, and, frankly, I don’t see the prospect of it given the record so far. And that’s a real concern.
The Chair: Thank you for that, Ms. Day.
Senator Coyle: Welcome back to our witnesses, and thank you so much, Ms. McIvor and Ms. Day, for your testimony. It’s clear, it’s helpful, it’s disturbing, it’s motivating and it’s instructive.
So now as we look — and you’re helping us look — closely at this government response to our report — and you helped us to formulate that report — it’s important for us to grapple with what we do next. Do we write back as a committee? Do we have the minister and officials in for a discussion?
We’ve heard recommendations about further action at a number of levels. Looking first at the international level, should we be looking internationally at how people in other jurisdictions are addressing more effectively this issue of Indigenous status? Should we be looking at — I think Ms. Day mentioned this — how international human rights laws are translated in Canadian law because this has a bearing on what we’re looking at here? Do we go close in — and I believe it was Ms. Day who mentioned that we should have a clear look at the departmental action plan, including the numbers and the timelines and mechanisms, et cetera that are in place inside — and see how that stands up compared to what this response is saying and what we’re hearing?
Former Senator Dyck, you have also mentioned how important it is for us to look at the outreach and communication plan, as well as what is in place to help people navigate. How do we actually move this forward in a way that we’re not looking at 2041 as if that’s some kind of acceptable date for resolving this?
These are the kinds of things I think I’m hearing, but I’d love to hear from both of you on what I’m “playing back” to you. Am I missing some key things that you’re saying of the various things that we have in front of us? Is there further guidance that you would like to provide to us?
We do have a responsibility and we do have some power. How do we use our power and our responsibility effectively to continue to move our government toward the justice that needs to be achieved here? How can we move us off this track that you have very clearly identified that is continuing to entrench this legislated extinction? I’d just love to hear what you have to say.
Ms. McIvor: The information, the process of registration — and we’ve already talked to the Senate and various members about this. I can get a passport in a week. I renewed my status card, and it took six months. I’m already registered, but in order to get myself a new status card, it took six months. I sent everything in. From the time they received it, I didn’t get my status card for six months. There’s something wrong when I can get a passport in a week, but I can’t get a status card for six months. That’s for someone who has been registered for a while. They don’t have to prove that I’m an Indian; they just have to process my card.
That’s the standard. If your status card is going to expire, you have to give it a good six months or you’re not going to have a status card. Even if I have a status card that has expired, it won’t be accepted. I don’t know how I put my status on hold until I get a card to prove I am a “status Indian.” For us, that has always been the big thing.
Regarding other information, because I’ve been doing a lot of the work, I get lots of phone calls and emails, and people don’t know. On August 15, 2019, the last part of Bill S-3 kicked in. That was the change that said if you were born before April 17, 1985, you get full status, not these various levels of status. Today, I talk to people and they have no idea. It was also promised that those who were already registered under the 6(1)(c) category or the 6(2) category would be automatically upgraded. That hasn’t been happening either.
That’s really crucial. Some women have been waiting for years, and sometimes they’re dying before they get their status. I have lots of personal stories about women who were told, “Wait, wait, wait,” and then she dies, and two months later her status finally comes through.
There has to be something that can be done about speeding up this process. It is bogged down. They’re giving you numbers, but I know on a regular basis I get calls for help. “Can you help me? They’re not recognizing this; they’re not recognizing that.” That’s something the government has to do. We can’t do it. We can complain about it, but we can’t make the changes. The government has to commit to make those changes so that the status kicks in. It’s no good if you were entitled on August 15, 2019, but you don’t get your status until 2027. For us, that has been really crucial.
The other thing is that Bill C-38 is totally inadequate. We came to you when Bill S-3 was going through, and we told you it was totally inadequate. The Senate committee did an amazing job of getting in these crucial changes. The 1985 date was a crucial change. The Senate dug in their heels and did what they really should do — they made things right.
From my perspective, you, as the Senate, have a huge role to play here. Now that you helped us with Bill S-3, we’re going to ask you to help us with absolutely everything else because, for the first time ever, it was successful. Every time before that, when the Senate took it, the Senate would get pressured by the House of Commons, and they would finally back off — but you didn’t back off in 2017.
That’s what we’re expecting again from you. When Bill C-38 gets put on your table, we’ll expect that we need to do a lot of work on that.
The Chair: Thank you, Ms. McIvor.
Ms. Day?
Ms. Day: I agree with Ms. McIvor completely. This Senate committee has made itself into a very important accountability mechanism on this issue by its interest and commitment, and I would encourage the committee to keep asking questions, to go back to the government, to respond to their response, to maintain that pressure and dialogue. There are more questions to be asked; there are more responses needed. I encourage the Senate committee in that role and in the upcoming review of Bill C-38.
Just to make one very small point about the registration, I want to point out to senators that I’ve given you the number that has been registered: 39,701 since 2017. In that period of time, 6,000 applications were rejected because they were incomplete. That is a very clear indication to us that navigation help is desperately needed. There are people who are having real problems completing this very complicated application process. Thank you.
The Chair: Thank you, Ms. Day.
Senator Tannas: I want to thank the witnesses. You put some more pressure on us, and that’s great. I was a member of the committee in 2017. I remember, initially, the pressure we were under, but to the credit of the Prime Minister — at least with the signals that were made at the time — we were encouraged to stand firm, and we did. Thank you for your kind words about that.
Ms. McIvor, I had a question for you. Why do you think your status card should ever expire? I have a birth certificate. It doesn’t expire. I don’t have to reapply for it. Why is there an expiry? Do you know?
Ms. McIvor: That was my question as well. I was actually born an Indian. Then a whole lot of things happened; it came back, and then it went away again, and it came back. I had the recognition. I’m only saying it’s the recognition that I’m an Indian. They didn’t make me an Indian. I was born an Indian and I will die an Indian, but the recognition is important for my daily life because of the things that come along with that recognition.
Absolutely, I have no idea why it expires. I have a friend who has a status card and he looks like a baby there — he’s probably about 20 — but he’s now in his mid-seventies. His did not expire. Some of the original cards did not expire.
I don’t know. I haven’t asked enough people or anyone who knows why some cards expire within five years or whenever. I don’t think it should. You might want to update your picture, although I would like my picture when I was 22 as opposed to now, when I’m 75.
Senator Tannas: Thank you.
The Chair: Thank you for that. Unfortunately, our time is up, but I remind the witnesses to certainly feel free to make any written submissions to us before March 20. I wish to thank our witnesses again, Ms. McIvor and Ms. Day, for joining us this morning.
(The committee adjourned.)