First of all, thank you very much for your confidence in the chair for yet another session. My congratulations go to the two vice-chairs for our committee, Jean and Todd.
D'accord. Members, this is a little bit awkward for our committee, because your subcommittee met in the previously constituted form approximately two weeks ago on September 15 to consider committee business going forward into the fall session. With this in mind, what we would like to do, if the committee is agreeable, is receive the subcommittee report on the work plan for this fall.
I would remind members that we are still in public. If it's the wish of the committee, we can go in camera for this committee discussion. My own view is that there's nothing on this agenda that would necessitate that. We would have to vacate the room and so on. So if the committee is okay, we will proceed in public for the consideration of committee business. Agreed? Okay.
The report has been circulated and the principal issue for our subcommittee discussion was the consideration of business for the fall session.
You will see in the report that we have proposed that we undertake four meetings/briefings on four different topics, which are in front of you there, to hear from the newly elected chiefs of both the AFN and NWAC. I shouldn't say both; it's three organizations, each of which has newly elected leaders: AFN, the Native Women's Association of Canada, and the Congress of Aboriginal Peoples. That would be one meeting.
The second would be a briefing on the issue of child and welfare services and, in particular, the action plan that had been commented on, and the government response given to the committee on public accounts.
Third, this was brought forward by Monsieur Bélanger with regard to the issue of the honour of the crown, and that would be a one-meeting briefing. I'll have some updates to talk about that when the time comes.
Then a briefing on the issue arising from the court challenge brought by McIvor in respect to Bill C-31 and the issues around Indian status.
Those were the four topics. After those four, briefings would be held, and we would then proceed to a more comprehensive study on the topic of northern economic development, specifically to hear from witnesses on the issues they believe are confronting the country with respect to obstacles or barriers to the advancement of economic development in the north, with a view to establishing a set of recommendations for policies and programs for the government to consider with respect to improving and advancing those issues in the north. That study would proceed from the time after we finished the four briefings.
The one exception would be that on the issue of the honour of the crown, we had asked noted author Timothy McCabe to appear on that issue. He was unavailable to meet in the timeframe we had set out, so we would like to call him back, I hope in middle to late November, but at a time that suits him.
When we come back on the first Tuesday after Thanksgiving, October 20, it will be the issue of the action plan on child and family services, and we will again have representatives from the Department of Indian and Northern Affairs. I believe the briefing materials on that particular topic may even have been circulated already. That meeting will be on Tuesday, October 20.
Commencing on Thursday, October 22, we will proceed with the study on northern economic development. I'd also like to point out that on that topic you will have circulated to you a document that proposes some fairly broad or sweeping categories for potential witnesses; we'll be seeking your advice and suggestions about specific witnesses.
We will also schedule time for committee business to consider the travel component of this study. It will involve one trip, of four days probably, to do the Whitehorse and Yellowknife component of the trip, and a second trip to Iqaluit. That trip will likely be in November. You all realize this will have to go to the Liaison Committee. Before that happens, we're going to consider it ourselves with an expense proposal as well.
Mr. Bagnell and Monsieur Lemay.
Mary has just advised me that you'll be receiving the various categories of witnesses and some examples of individual organizations that would fit within those categories. Keep in mind that 80% of this study will be conducted through hearing from witnesses in Ottawa. This is probably a 20-plus meeting study, so most of it will be done here in Ottawa. When we're in the north, we will need to give preference to those organizations for which it's less practical to come here or that don't have the capacity to come here.
I will suggest to members that in order to use our time to the best advantage in the north we will have a very full schedule, and we'll be looking at some fairly lengthy days of meetings.
Is there anything else on the northern economic development study?
We have witnesses here today on the briefing of McIvor and the issues around Indian status. If it's okay with the committee, we'll now proceed to hear our briefing from departmental officials.
We have with us Caroline Davis, assistant deputy minister, resolution and individual affairs sector. We also have Mr. Martin Reiher, senior counsel, Indian and Northern Affairs Canada, for the Department of Justice on this same question.
Welcome to both of you, and thank you for accommodating our somewhat uncertain schedule today. I appreciate your taking the time to join us. As you're no doubt familiar, we'll begin with a brief presentation of up to 10 minutes and then take questions from members.
Two written presentations are being handed out right now. In advance of this meeting you were also circulated documents on the Supreme Court decision itself, as well as the discussion paper on McIvor and issues pertaining to Bill .
Thank you very much for inviting us today.
Several months ago, it now seems, on June 16, I had the opportunity, along with my colleague Pamela McCurry, who is the senior assistant deputy minister of policy and strategic direction at INAC, to provide parliamentarians with a presentation on what the McIvor court decision is about and what significance it will have for Indian registration. I'm here today to provide you with an update on what the Government of Canada has been doing since that point to respond to the McIvor decision.
I'm accompanied by Martin Reiher, a senior counsel with the Department of Justice. He works in the aboriginal affairs portfolio and is familiar with the McIvor case. He has some remarks that will give you an update on matters related to the McIvor litigation.
Before I get into details about what the government has been doing, I would like to provide the committee members with a short description of what the McIvor case was about, when the decision was rendered, and so on, as useful background information.
On April 6, 2009, the Court of Appeal for B.C. ruled in the McIvor case that two subsections of the Indian Act's registration provisions are invalid under the Charter of Rights and Freedoms. The plaintiffs, Sharon McIvor and her son, had been seeking full equality to the registration treatment given under the Indian Act to her brother and her brother's children.
The court's decision dealt with some, but not all, registration entitlements. It did not touch on membership entitlements, or any other aspect of the Indian Act, such as reserve lands or governance. The court did not order a particular remedy, but to give time for Parliament to develop one, the court suspended the effect of its ruling for 12 months.
The remedy that is needed to meet the court's decision, and to bring the Indian Act into compliance with the charter, will require a legislative amendment. We need to ensure that the inequality identified by the Court of Appeal is addressed and that people who lost Indian status because of marriage before 1985, as well as their descendants, are treated fairly.
We have only until April 6, 2010, to have a legislative amendment to the Indian Act in place, before the suspension expires. If that deadline passes with no amendment in place, the process of registration would be cast into doubt in BC. And our view is that although the decision applies only in BC, we need to amend the Indian Act because it is federal legislation and we want to have the same rules apply across the country.
As announced by on June 2, the Government of Canada has accepted the ruling of the Court of Appeal for British Columbia. It has been determined that the best way for the government to respect the ruling of the court and also to avoid the legislative void in B.C. that would occur if nothing were done by next April 6 would be to introduce a rather narrow amendment to the Indian Act that would respond specifically to the charter breaches that the court identified.
We are aware that there are a number of broader issues related to the question of membership and registration and that many aboriginal people and others find that the Indian Act is quite outdated and in need of an overhaul. However, we know that reaching a consensus on what should be done would take a long time and would need extensive discussion among those who would be most affected by such an undertaking. So the decision has been made to concentrate at this time just on complying with the court's decision on McIvor and developing a legislative amendment to the Indian Act to respond to the decision.
On August 24, made a formal announcement that the government would develop the legislative amendment, and on the same day INAC launched an engagement process with the release of a public discussion paper on the department's Internet site. People are invited to read the discussion paper to learn about the government's plans to move forward, and then to provide feedback to the department. A special e-mail address has been set up to receive the comments, and of course people can continue to send correspondence to the department through the regular mail.
The government is organizing a series of regional engagement sessions with various first nation organizations and other aboriginal groups to provide information directly to them about the McIvor decision and to solicit their comments about the government's proposed legislative approach. To date there have been a few sessions, and we are working to ensure that there will be at least one in each geographical region of Canada, for a total of perhaps 15 sessions altogether. Technical briefings with the national aboriginal organizations have also taken place.
The engagement process will close on November 13, 2009, to give us time to analyze the input that we've received and to try to reflect it in our work before a bill to amend the act is introduced in Parliament.
And as you well know--and I hope I'm not being disrespectful here--the process of legislative change can sometimes be quite long and perhaps unpredictable. So if we are to meet the April 6, 2010, deadline for a legislative amendment, we recognize that time needs to be provided for parliamentary review and passage of the legislation and also for our own internal processes to take place before the legislation can be introduced. On this point, the timeframe really is quite tight, and I hope that will go some way to explaining why the engagement process is not going to be as long as some people may have hoped.
I'd like to talk for a moment about the implications of the McIvor decision. Demographic research is still ongoing to determine how many people may be newly entitled to registration as a result, and while preliminary indications were between 20,000 and 40,000, we now believe it will be more in the neighbourhood of 40,000 people.
Of course there will be budgetary implications associated with these potential new registrants, primarily involving health benefits and post-secondary education assistance.
As I end my presentation, I would like to conclude by saying that, if all goes as we planned, the government will be tabling legislation well in advance of next April in the interest of avoiding a legislative vacuum in British Columbia.
I will now invite my colleague Martin Reiher from the Department of Justice to say a few words on the decision of the Court of Appeal.
Thank you very much.
I understand that the committee expressed the wish to receive a summary of the McIvor decision handed down by the British Columbia Court of Appeal and of its impact.
My brief remarks will provide a summary of the British Columbia Court of Appeal decision, and I will say a few words on the impact of this decision, and of course will welcome questions afterwards.
What is the claim? Mrs. McIvor claims--and continues to claim in the Supreme Court, as she has sought leave to appeal--that she does not have the same ability to transmit Indian status to her grandchild as her brother does. Mr. Grismer, her son, claims he does not have the same ability to transmit Indian status to his children as does his male cousin.
To assist in my presentation, I have prepared a little chart that was just distributed. I would suggest committee members take a look at the chart.
On the left-hand side, you will see the situation of the plaintiffs before and after the enactment of Bill C-31, which is the common name of the amendments that were adopted in 1985 regarding registration and membership. On the right-hand side of the chart, you see the situation of the comparative group for the purpose of the section 15 analysis.
For the purpose of its analysis under section 15, the Court of Appeal of British Columbia accepts the comparative group proposed by the plaintiffs and compares Mr. Grismer's ability to transmit status to his children with that of people born prior to April 17, 1985; of Indian men who were married to non-Indian women. If you refer to the chart—that would be the box on the bottom on the left-hand side—you will note that after Bill C-31, because Mr. Grismer has one parent who is a registered Indian, he is registered under subsection 6(2), and the children he has with a non-Indian wife are not entitled to registration. In comparison, his cousin, the son of the brother of Mrs. McIvor, was entitled to registration before 1985 and is entitled after Bill C-31 under paragraph 6(1)(a), and the child he has with a non-Indian partner is entitled to registration. So the court concludes that there is a distinction in the ability of Mr. Grismer to transmit status to his children compared with that of his cousin.
That differential treatment is based on the gender of Mrs. McIvor, which is a ground enumerated in section 15 of the charter, and this is considered to be discriminatory under the charter because Bill-31, as the court says, perpetuated at least in a small way the discriminatory attitudes of the past.
As you know, when legislation is found to infringe a provision of the charter, it can still be phased in, if it can be justified in a free and democratic society, under section 1 of the charter. The Supreme Court has developed a four-part test under section 1 that requires the analysis of four questions. The first question is whether there are objectives for the legislation that are pressing and substantial. The second question is whether there is a rational connection between the legislation and the objectives. Third, does the legislation minimally impair the charter right at stake? Last, is the deleterious effect of the charter breach outweighed by the salutary effect of legislation?
Under the first part of this test, the government had put forward five objectives for Bill C-31: to remove sexual discrimination; to restore status to those who had lost it under discriminatory provisions in the past; the third principle, that no one should lose or gain entitlement as a result of marriage; the fourth, that acquired rights should be preserved; and fifth, that first nations should be able to determine their own membership.
Of those principles or objectives, the court found that the objective of preserving existing rights was especially important for the case at bar. As part of its analysis, the court determined that the goal of Bill C-31 was to create a new non-discriminatory regime based on the need to have more than one Indian grandparent to qualify as status Indian. The court accepted that goal as a valid one and examined the provision of Bill C-31 against that backdrop.
The court concluded that it would have been anomalous to give Mr. Grismer's children status under the new regime, because they have only one Indian grandparent. On the other hand, the court acknowledged that some members of the comparative group qualify as status Indians in the new regime even if they have only one Indian grandparent, namely those affected by the double mother rule prior to 1985. I will come to the double mother rule in a few seconds, briefly.
The court stated that this anomaly would have been justified by the pressing and substantial objective of preserving existing rights if Bill C-31 had only preserved the rights as they existed. Where Bill C-31 failed, in the court's view, is at the minimal impairment stage of section 1 analysis: instead of preserving the rights of those affected by the double mother rule, it improved their situation.
Before Bill C-31 in 1985, the grandchild would have lost status at age 21 because of the double mother rule. The double mother rule was enacted in 1951. It specified that if a child had an Inuit father but had a mother and a grandmother who were non-Indians at birth and who gained status upon marriage, that child would lose status at 21 years of age. That was the situation before 1985.
After Bill C-31, children who had lost status under the previous system were entitled to be reinstated under paragraph 6(1)(c), paragraph 6(1)(f), or subsection 6(2) of the Indian Act, depending on whether his mother was or was not an Indian. In any event, the grandchild is entitled to registration.
In comparison, the children of Jacob Grismer are not entitled to registration. With respect to the transmission of status, Bill C-31 further eroded the rights of Mr. Grismer and his group.
To quote the court at paragraph 140:
Had the 1985 legislation merely preserved the right of children of persons in the comparator group to Indian status until the age of 21, the government could rely on preservation of vested rights as being neatly tailored to the pressing and substantial objective under s. 1. Such legislation would have minimally impaired Mr. Grismer's right to equality. Instead, the 1985 legislation appears to have given a further advantage to an already advantaged group...
To conclude the summary, the court found that the Indian Act provisions are gender neutral and non-discriminatory on a going forward basis, but that the transition rules between the old and the new regime created an inequality. Bill C-31 granted entitlement to Indian status to persons affected by the double mother rule—persons who had only one parent who was an Indian at birth prior to 1985 and who had only one grandparent who was Indian at birth, but only where that grandparent was a man. The proposed amendment responds to this inequality. It is to grant entitlement to persons in the same situation, but where the grandparent is a woman.
I have a few words on the impact of the decision. The Court of Appeal has declared paragraphs 6(1)(a) and 6(1)(c) invalid but has suspended its declaration for one year. This means that until April 6, 2010, it is the status quo. Section 6 remains in force with no modification. At the end of the suspension period, if there is no amendment in place, paragraphs 6(1)(a) and 6(1)(c) will be virtually erased from the statute book, as if they had never existed in British Columbia. This would prevent the registrar from using these provisions to register individuals from British Columbia or affiliated with traditional Indian bands. However, it is important to note that anyone registered as of April 6, 2010, will remain registered and entitled to benefits associated with registration, unless that person is removed from the register for other reasons.
That concludes my remarks on the Court of Appeal for British Columbia decision and its impact, and I would welcome questions.
I thank both of you for your presentations.
I have to say I'm not totally clear on how all this filters down. I guess the nuts and bolts of it is that a couple of sections of the Indian Act have been struck down by the B.C. Court of Appeal. That's going to allow more people to register pending new legislation, and it could impact anywhere from 20,000 to 40,000 people, according to the government's estimates.
I'm not sure even this legislation is going to cure everything. It seems that we have Bill C-31, and it is challenged; then we will have whatever bill this is, and it may be challenged—that sort of thing.
I want to ask a question about the process. I understand it is sensitive to the timeframes you have because the court has ordered that certain things happen by a certain date, which is April 6 of next year.
What has the response been to the engagement process? You used the word “engagement” as opposed to “consultation”. I guess they have different connotations within the government. Why has the government chosen to go with “engagement” rather than “consultation”? Do you believe they have an obligation to consult?
Is this raising some angst within the aboriginal community, particularly among those most affected? What has the response been to the engagement process so far? If you want to have it concluded by November, and 15 regional meetings have to take place, we're talking about a month for all this to happen, for you to compile it and to bring it back. In view of the draft legislation, because I'm sure somebody's working on legislation while this is happening—it doesn't seem to be that one is going to happen after the other—how much confidence can people have in this particular process?
Perhaps I could take that in a couple of pieces.
On the engagement, you're absolutely right, we're using the word “engagement” and not “consultation”. “Consultation” has connotations of a proposal that might affect aboriginal rights or title. The Indian Act registration provisions are not related to that kind of topic. We have explained to everybody that this is an engagement session. Similarly, the people we've met with have said that they wish it to be noted that they have not been consulted. We're very careful to keep ourselves very clear on that.
On the preliminary results so far, with the e-mail system first, we've had somewhere around 25 e-mails so far that have been quite supportive of the discussion paper and the approach the government wishes to take to eliminate this discrimination.
On the sessions we have had so far with people in regions of the country, we've either held them or we've scheduled them in the Atlantic, Quebec, Alberta, British Columbia, and the Northwest Territories. We have set ourselves a goal of continuing that and essentially meeting with groups that wish to meet us. I think I mentioned in the opening remarks that we've also made a point of making sure the national aboriginal organizations get a chance to go through the discussion paper with us.
On the kind of discussion that has happened, certainly the aboriginal groups have been at pains to point out to us that in this legislation we should not be affecting treaty rights, aboriginal rights, or title of any kind and that the amendments to the act certainly do not address broader problems that have been expressed with the Indian Act.
I'll give one example of that. There is the rule now that if there are two generations that marry out, the next generation does not have Indian status. Certainly that affects communities where there is a high rate of marriage out, primarily ones that are close to cities, where people leave the reserve, go and work in the city, and form partnerships that are not based within the community.
There has also been comment that these amendments will not address the provisions in the Indian Act that enable first nations to determine their own membership. The Indian Act entitles people to benefits. I mentioned the two prime ones being post-secondary education and the first nations/Inuit health benefits. It sees membership and really belonging to a community as very separate from those financial relationships that are determined by the Indian Act. A lot of first nations have pointed out that they would prefer to have the ability to determine their own membership.
The government has obviously been aware that this would be likely to happen. While we've not yet taken any concrete steps to try to address these broader issues, it certainly hasn't been ruled out in the future. What we would like to do is bring forward this amendment and have Parliament discuss it carefully with a view to making sure there is not a void in the legislation, so that we really can continue to make certain our decisions on registration in British Columbia after the April deadline.
I hope that helps to answer those two points you've made.
That was the step before where we are right now.
The thing was that the court didn't give us time to address the implications, unlike this, where we've had a year between the time the court decision was rendered and the time it becomes effective. The trial judge at the Supreme Court level didn't do that, so we would have immediately been in a difficult situation.
Frankly, to me, reading it--and like you, I'm not a lawyer--it was a less clear decision, and we would have needed to be sure that we were developing a remedy that was accurate towards the decision rendered.
It also seemed to reach further back in time and didn't limit itself to, as Martin explained, the transitional arrangements between 1951, the old act, and the 1985 act. It really went much further back and seemed to imply that we would need to register descendants of any woman who married out.
So the government really believed that the court's decisions relating to applying the charter in a retrospective manner shouldn't be allowed to stand, the point there being that the transition that happened in 1985 was after the charter came into effect. So we felt that the decision that came this time was a clearer and more appropriate administrative decision for us to be able to follow.
My questions are mainly for Mr. Duncan, rather than the other witnesses.
I want to make sure I'm being listened to.
First and foremost, may we know what the government's intentions are regarding the tabling of any bill that seeks to comply with the ruling of the British Columbia Court of Appeal? I do not expect Mr. Duncan to have an immediate answer, but I feel that it would be important for us to know, by our next meeting perhaps, exactly what kind of timeline the government has set out for the tabling of a piece of proposed legislation.
Next, what other jurisdictions, appeals or cases are similar to this one? Have they led to a similar ruling as the one handed down by the British Columbia Court of Appeal? What stages are these various cases at?
Ms. Davis, you made reference to a study carried out by an expert, and that revealed that possibly up to 40,000 citizens could be given status. Is that figure for all of Canada? If so, how many would be in British Columbia?
My last question is for you and Mr. Duncan. If the Supreme Court were to refuse an appeal, and if no bill were to be adopted, what does the government have planned to protect the persons who would find themselves in a legislative void, and Ms. Davis will provide us with their number?
Maybe I can give some clarification on what we're talking about here in terms of membership.
Since 1985, the Indian Act has allowed bands, first nations, to take over control of their membership. In order to do that, they have to ask their members for a vote, and there has to be a majority vote. Then they have to submit membership rules, adopt membership rules for that purpose. And these membership codes then apply for the determination of membership. That is all allowed by the Indian Act.
There are provisions in the Indian Act for membership for those bands that choose not to take over control of their membership. So there are two sets of rules, if you will.
What is proposed for these amendments is that membership entitlement, for those bands that have not taken over control of membership, would follow under the same rules that currently exist for these bands. With respect to the bands that have decided to take over control of membership, their own code would determine whether the new status Indian would be entitled to membership or not.
Well clearly, members, this is an area we're going to have to follow very closely over the next few months to see what transpires. Members may want to revisit this, depending on how events unfold. As we've heard, we may also have some legislation in front of us, in fact, as this session proceeds.
There being no other questions or comments, I'd like to thank our two department officials for coming and helping us with this rather complex issue, and I thank members for their questions.
We will see you back on Tuesday, actually, hopefully in one of the larger rooms, either the Railway Room or Reading Room as the case may be, for presentations from 11 a.m. to 2 p.m. from our newly elected aboriginal leaders.
Thank you very much. Bonne fin de semaine.