Thank you very much. I'm Joëlle Montminy.
I am the assistant deputy minister of the Resolution and Individual Affairs Sector at Indigenous and Northern Affairs Canada. You have already introduced my colleagues.
I would like to thank you for the opportunity to be here today to provide this committee with information on the government's response to the Descheneaux decision. As you know, the response involves amendments to Bill , aimed at eliminating residual sex-based inequities in Indian registration, which will be followed by a collaborative process with indigenous groups on broader related issues.
I would like to say a few words on the Descheneaux decision.
In August 2015, the Quebec Superior Court ruled that the provisions of the Indian Act violated the equality provisions of the charter because they perpetuated residual sex-based inequities in Indian status.
The Descheneaux case dealt with the differential treatment between the male and female lines in the acquisition and transmission of Indian status relating to first cousins of the same family and siblings. As a result, the court declared several key provisions of the Indian Act invalid and suspended its decision for 18 months to allow time for the necessary legislative amendments. Canada originally filed an appeal, but the decision came down during the election, and the appeal was withdrawn in February 2016 by the new government.
In order to comply with the decision, legislation must be passed by February 3, 2017. In the absence of a legislative response by this deadline, Canada will be unable to register the majority of individuals seeking status in the province of Quebec and possibly in other jurisdictions as the key provisions in the Indian Act will be inoperative.
Last July the government launched a two-stage approach to respond to the Descheneaux decision. As part of the first stage, the government started holding information sessions with indigenous groups and introduced legislative amendments to the Indian Act through Bill to eliminate residual sex-based inequities in Indian registration.
The second stage will be a jointly designed, collaborative process with indigenous groups to examine the broader and systemic issues relating to Indian registration, band membership, and citizenship. The purpose of this process will be to identify areas for future reform.
Before examining the proposed amendments in more detail, I'd like to provide you with some background on Indian registration to better understand the context of Bill .
Under section 6 of the Indian Act, the federal government exercises exclusive authority in the determination of who is an Indian. Eligibility for Indian status is determined on the basis of an individual's descent from a person registered or eligible to be registered as an Indian.
Prior to contact with European settlers, we know that first nations had diverse ways of identifying their citizens, including clan, kinship, and hereditary systems. These were displaced as a result of the introduction of the concept of “Indian” in colonial and then Canadian legislation.
Starting in 1869, patrilineal descent rules and sex-based criteria for Indian status and band membership were entrenched in federal laws, and continued under successive changes to the Indian Act. Under these rules, Indian women who married non-Indian men lost status, as did their children, and through enfranchisement, individuals and their descendants lost Indian status if they became a doctor, a lawyer, Christian minister, joined the military, or earned a university degree.
In 1985, the Indian Act was amended through Bill C-31 to comply with the charter. This was the first step in addressing sex-based and other inequities in Indian registration. As part of these amendments, Indian women who married non-Indians no longer lost status, and those who had previously lost status could be reinstated, as were their children. Enfranchisement was also abolished, and individuals who had previously lost status could be reinstated, as could their children.
The 1985 amendments also introduced categories for Indian registration through subsection 6(1) of the Indian Act, and also limitations on the transmission of Indian status after two consecutive generations of parenting with a non-Indian through subsection 6(2). That's commonly known as the second-generation cut-off. It's important to note that the second-generation cut-off rule was implemented in direct response to concerns raised by first nations during consultation on Bill C-31.
Finally, Bill C-31 also reinstated first nation authorities to control their membership through section 10 of the Indian Act.
Despite these amendments, some residual sex-based inequities stemming from the past were carried forward. New issues arose as a result of the introduction of categories of Indian registration—I've mentioned subsections 6(1) and 6(2)—that resulted in an increase in legal challenges.
The first case that was significant was the McIvor case, which was decided by the B.C. Court of Appeal in 2009. In response to that case, Parliament passed Bill C-3, the Gender Equity in Indian Registration Act, in 2011. Bill C-3 amended certain registration provisions to ensure that eligible grandchildren of women who had lost status as a result of marrying non-Indian men could then become entitled to registration, which is basically extending the eligibility to one more generation.
Following Bill C-3, the government also launched an exploratory process to gather the views of indigenous groups regarding issues related to registration, membership, and citizenship. Over 3,500 individuals participated in this initiative, and the findings revealed a myriad of perspectives.
This brings us to Bill , which proposes amendments to Indian registration to comply with the Descheneaux decision and to eliminate all known sex-based inequities. Bill would amend subsection 6(1) of the Indian Act to extend eligibility for Indian status to descendants of the female line. These changes would specifically address issues relating to cousins, siblings, and removed or omitted minors.
This is a bit difficult to describe just in words, so later on you can consult the deck that we've provided to you and the comparator charts on pages 22, 24, and 26, where you'll be able to see the effect of the changes that I will describe.
The cousins issue relates to the differential treatment in the acquisition and transmission of Indian status that arises among first cousins of the same family depending on the sex of their Indian grandparents in situations where the grandparent was married to a non-Indian prior to 1985. This results in different abilities to acquire and transmit status between the maternal and paternal lines.
The siblings issue concerns the different treatment in the ability to transmit Indian status between male and female children born out of wedlock between the 1951 and 1985 amendments to the Indian Act. Indian women in this situation cannot transmit status to their descendants, unless their children's father is a status Indian. Indian men in similar circumstances can transmit status to their children, regardless of whether they parent with a non-Indian woman.
Guided by the advice of the court to not take a narrow approach in our legislative approach, a third issue has been included in the bill. It deals with removed or omitted minors.
Prior to 1985, registered minor children who were born of Indian parents or of an Indian mother lost their status, as did their mother if she married a non-Indian man after their birth. This is in contrast to their adult or married siblings, who retained their status.
While Bill C-31 restored Indian status to women and their children in this situation, it did not make eligible the children of the reinstated minor. The proposed amendments in Bill would address this issue and extend eligibility for Indian status under subsection 6(1) to the children of the reinstated minor child.
As would be expected, the proposed legislative changes will result in an increase in the number of individuals who will become entitled to Indian status. There will also be a change in the status category for some already registered individuals.
Based on demographic analysis, between 28,000 and 35,000 individuals will become newly entitled for Indian status as a result of Bill . This increase will impact the costs of two federal programs that are directly linked to registration: INAC's post-secondary education program, and Health Canada's non-insured health benefits program for first nations and Inuit.
The government's fall economic statement released on November 2 identified approximately $149 million for the implementation of Bill S-3. In addition, the department is continuing its evaluation of the potential costs of the post-secondary education program.
Changes to entitlement for Indian status may affect funding over a longer term for other programs. INAC will monitor the impacts over time on the mobility of first nations who may decide to move to reserves.
As previously mentioned, starting in the summer of 2016, information sessions were held with indigenous groups, and we heard a multitude of perspectives. Some concerns that were expressed related to the short time frame for information sessions, the limited scope of the proposed changes, the impacts of accommodating newly entitled members, and the narrow focus on technical amendments that perpetuate colonial Indian structures.
Recognizing these concerns, the government is committed to the second stage of this initiative. The deadline of February 3, 2017, imposed by the court is insufficient to allow us to conduct meaningful consultations with indigenous groups to address all these complex issues in a short time frame, so in considering this, the government will launch the second stage in February 2017, which will be joint work with indigenous groups to address broader issues with a view to future reform.
The first statute that appears in the history is in Upper and Lower Canada, pre-Confederation, in 1850. It was the first definition we saw of the concept of “Indian”. Also, it wasn't about the definition of an Indian. Those statutes were about protecting the land base, or essentially what we now call reserves.
The definition of Indian in pre-Confederation legislation that we saw in both Upper Canada and Lower Canada was very sex neutral. It was more akin to the rules or criteria that the first nations themselves had in defining who belonged to them and who didn't. That continued until about 1866 or 1867.
Post-Confederation, we see the first law, which was the gradual enfranchisement act of 1869, which basically establishes very patrilineal descent rules and sex-based criteria. It begins to exclude Métis, or those folks who identify as Métis, from registration. It continued that way basically until 1985 and over certain amendment periods. The Indian Act back then was being amended every two, three, or four years.
The 1951 Indian Act amendments were very comprehensive and they essentially established the system of registration as we know now, with an Indian registrar and status and non-status. Subsequent to that, the other reform that happened was in 1985, with the charter being in effect and trying to address all the inequities that flowed, essentially, beginning in 1869 through the Indian Act all the way to 1985. There were massive amendments in 1985. I don't think folks could foresee how the charter would operate vis-à-vis the Indian Act, because it was all new to everybody. Also, we had the constitutional amendments in 1982 that introduced Canada's recognition of aboriginal and treaty rights, so the interplay of registration membership, individual rights, and collective rights became a much more complex endeavour.
Just in respect of Métis, we anticipate under stage two that we will be speaking with Métis individuals and communities and the Métis nation around deregistration. As a result of the amendments that happened in 1985 and in 2010-11, a number of Métis individuals became eligible for registration and registered, but because the authority of the Indian registrar to unregister somebody was removed in 1985, they can't deregister and join their Métis collectivity, as is happening now in Alberta, Manitoba, and whatnot. That is one area we'll be looking at specific to the Métis situation, and we hope to be talking with Métis folks under stage two.
First, I want to thank the chief, lawyers, and also the judge who took care of that case. It was kind of a funny....
Excuse my English. Sometimes it might be difficult. I learned it on the ships, and I cut some words off.
It was funny back then. Sometimes we would sit with my cousin. We would talk. I found out that I have some cousins and their kids were registered and mine were not. We started some drawings, started to look it up, and finally we found out that because some of them had dads instead of mothers, they had the cards and mine didn't. Before I started to think about going to the band to put the flag on that, they came to me, because they also found out that there was some kind of funny situation. The lawyers and the people, the band and I, proved that there was inequity with that.
I'm pretty happy with the decisions, but what I find sad today.... I found out last week that we were asked to come here to talk about that, but we've never been called or asked which way we saw that stuff. I found out earlier, having coffee with the chief and David, that there was even other stuff that we found out—well, they found out—that wasn't touched, or they didn't want to see it, because they were only going by the rulings.
That's the part I find funny. After, I understood from the judge's ruling that they wouldn't be in consultation. I was thinking that they would come to the band and meet us, and say that they're going to go that way, or they're looking to go this way. It doesn't seem to be like that. I don't feel great with that, and I guess the chief and the lawyer don't either. We find it funny that we have, “There you go. You go with that.” I find that funny. We were the people involved first of all, and we just learned last Friday that they were right at the babies born, if I can say.
That's my point. I'm happy on one side but disappointed in another way, because I can't understand. We had it in our hands, or you had it, and we couldn't solve lots of problems. Again, we just went for a few cases. Maybe we didn't want to see them, or maybe the people didn't think there were other cases, other stuff, that would have been put away, or forgotten about, or they didn't want to be seen.
That's how I feel this morning. In my case, what I went through for lots of people and even for my kids so that they won't have to go through.... In just trying to figure it out, you spend 46 years of your life asking yourself, “What am I? Am I a white person, a native?” Then someone says, “Yes, you have the rules. You have that. The decision was made.” My mom got it back. My grandmothers got it back. I got it back...the way for my own daughters? Then I find out there are people who are going to ask themselves those questions again, because it doesn't seem to be put on what we are going up to now.
I'm all yours.
First of all, I'd like to thank you for having us here today. I know everyone is busy.
This is a very complex and complicated subject, and it gets deeper and deeper all the time. There are many cases. If we can show part of the power point presentation later, we'll show you the basis of how the status system works. Some of the major problems with the status system were based on families, on gender, but there was much more to it than just that.
In my own family, if I can just briefly tell you, I have four children. My oldest son was a 6(1); my second daughter was a 6(2); my third son was a 6(1), and my fourth child was a 6(1). I only had one child with less status than all the rest because I had two children prior to 1985, and I wasn't married. Yes, we tried to cover this in two cases: the McIvor case and in the Susan Yantha case, which solved this problem.
The reason I'm saying this is that there are several problems with the status system. When we took the cases to court, we understood the ruling was very clear, that we all wanted to solve this problem. We wanted to solve everything now. I had said several times there was no rush, that we needed to make sure we went through every case to see what the problems are. For some reason they seem to want to be in a very big rush. I told them that if they came to us and asked for an extension, we'd be more than willing because it's very costly to do all this, for all of us, for the government and for us. We don't want this to end up back in court again and to start over. It was very clear in the decision that this was not supposed to be based just on gender. We were supposed to look at all the cases and try to close the files. They put a time limit on it. I said to them several times that if they needed an extension, we'd be more than willing. They told me they weren't interested, that they didn't need an extension. I told them just yesterday on the phone that if we close this file in February, I will be back in court on March 1 on four other cases. The answer was, that's my prerogative, that I can do that if I like.
I don't believe that's a proper way for us to solve these problems. I think the door is open now. Why don't we all sit down and discuss and solve the problem we have? It's time to say that we'll put all this behind us and sort it out once and for all. We don't want to spend the next 10 years in court again. We don't want to keep bringing up case after case after case. We have the time to do it. Let's look at all the cases at this particular time, and we can try to solve this. They told us that we were consulted, that they consulted with chiefs last summer. I have not found one chief that they consulted. They've never consulted me, and it was our case. They never even called us. I'm trying to figure out how it all got to this point, and now they're saying they're going to close this file, that they're going to get it all solved by February 1. Again, I said we had other cases that we want to bring to the table and solve under this same thing. The answer was “No. We are only dealing with sexual gender at this time. We can go into another stage and we can carry this on later.” I don't know about anybody else, but the door is open. We're at the table now. Why do we want to spend more court time, more money, more of all our time fighting the same argument when we're already at the table and we could solve these problems and put this thing to bed once and for all.
With the chair's permission, I'll try to do this very quickly.
We have identified at least four scenarios where there will be very odd results even after this.
The first is where a woman lost her status. Either she gave up her status before marriage through what was called enfranchisement or, if she was under 21, her father could have given it up for her. For instance, there's a woman in Odanak who lost her status at 20 because her dad decided to enfranchise the whole family. She's a 6(1); her son is a 6(2), and her grandchildren and great-grandchildren have no status. Her older sisters lost their status through marriage. They benefited from McIvor. Their children are now 6(1)s; their grandchildren are 6(2)s, and post-Descheneaux, their great-grandchildren will be 6(2)s. The only difference between them is whether they were enfranchised at 19 or 21.
The second is men who chose enfranchisement. There's at least one family like this at Wôlinak. A man marries a non-Indian woman, has a few kids, chooses enfranchisement, and gets his status back in 1985, as do his children born before the enfranchisement. They're all 6(1)s. His child born by the same mother after enfranchisement is counted as having only one Indian parent, so that child's a 6(2). He has some grandchildren with 6(2) status, some with no status, with the same degree of intermarriage.
The third is unstated paternity. Before 1985, if a woman didn't declare the father, he was presumed to be an Indian. Post-1985, he was presumed to be non-Indian unless it was proven. Before 1985 some women chose not to get married and not to identify the fathers to keep Indian status for their children. There's another family at Odanak, and that's what this woman did. Her kids born before 1985 are 6(1), and her kids born after 1985 are 6(2). Her grandchildren by the older kids have status; her grandchildren by the younger kids don't.
The fourth and final case is legal adoptions. Before 1985, when an Indian family adopted a child, that child was also an Indian only if their own natural, biological parents were Indian. Another family at Odanak had a natural child, and they adopted a child out of the orphanage, out of the cradle, and that son didn't have status until 1985. He got married before 1985, so his child is a 6(2), and the daughter, who was the natural-born daughter, her child, is a 6(1).
They are four scenarios where first cousins have different status with the same number of Indian ancestors, and two cases where you can have siblings, children of the same parents, with different status. Those are some of the scenarios we had hoped to raise with the registrar. Apparently, the registrar is not interested.