Thank you, Madam Chair and honourable members.
My name is Martin Reiher, and I am the assistant deputy minister of resolution and individual affairs at the Department of Indian Affairs and Northern Development. Joining me today are: Candice St-Aubin, executive director, new service offerings; Nathalie Nepton, executive director, Indian registration; as well as Karl Jacques, from the Department of Justice.
Thank you for the opportunity to give you an update on the government's response to the Superior Court of Quebec's decision in the Descheneaux case and bring you up to date on new developments since your last meeting on this bill, which was held on November 21 of last year.
As you will recall, in August 2015 the Superior Court of Québec ruled, in the Descheneaux decision, that key Indian registration provisions affecting 90% of the registered Indian population under the Indian Act contravened the Canadian Charter of Rights and Freedoms by perpetuating differential treatment in entitlement to Indian registration between a woman and a man and their respective descendants.
In response to that decision, the government announced a two-stage approach. The first stage involves legislative amendments through Bill , which will be followed by a process on broader issues related to registration. That will be a collaborative process with first nations and other indigenous groups.
Bill , introduced in the Senate on October 25, 2016, will remedy situations of known sex-based inequities in registration. For the purposes of Bill we refer to known sex-based inequities as situations that are solely sex-based and have been found to be discriminatory by the courts or are similar to such situations. Bill is therefore not restricted to situations in which a court has already ruled but extends to situations in which the courts have yet to rule and where it is clear that a sex-based charter would be found.
During the deliberations of your committee and of the Standing Senate Committee on Aboriginal Peoples, witnesses and members of both committees expressed concerns about whether Bill addressed all possible situations of sex-based inequities, as well as concerns regarding the level of engagement with first nations and impacted individuals. The Standing Senate Committee on Aboriginal Peoples suspended the study of the bill and requested that the government seek an extension to continue engagement on issues within the scope of the bill.
On January 20, 2017, the Superior Court of Quebec granted a five-month extension to remedy the discrimination identified in the Descheneaux case.
That extension has enabled us to begin a mobilization process and ensure that justice will be done as quickly as possible for some 35,000 individuals who will become eligible for Indian registration once Bill is passed.
As part of a letter sent to you on February 6, 2017, we shared with you a four-tiered action plan that was developed to guide the engagement activities during the short period of time provided by the court, a plan that built on the engagement sessions held in the fall.
I would now like to provide you with an overview of additional engagement activities that were held. The government was able to conduct 10 additional engagement sessions from January through April 2017. Bilateral discussions were held with the Canadian Bar Association, the Aboriginal Legal Services, and the Feminist Alliance for International Action.
The department provided support to the Native Women's Association of Canada to design and lead a series of engagement sessions with its provincial and territorial member associations, and their report was provided to this committee. The department also provided support to the Indigenous Bar Association to complete a review of the bill to identify situations of sex-based inequities not captured originally in the bill. The report was also shared with this committee.
Finally, technical discussions were held with legal representatives from the Assembly of First Nations, the Congress of Aboriginal Peoples, the Native Women's Association of Canada, the Indigenous Bar Association, and the plaintiffs' legal counsel in the Descheneaux case.
We know that even with this extension, there was not enough time to truly consult, and we acknowledge the tremendous effort and long hours that organizations put into this work. We heard about a wide range of issues through these different fora, some within the scope of Bill and others falling outside.
What is evident from these discussions is that people are very passionate and committed to addressing issues of inequity in administration. At the same time, it was highlighted that jurisdiction over Indian registration and band membership should not remain under the government's control.
As mentioned earlier, we provided support to the IBA and NWAC to review the bill. In their reports, issues such as unstated paternity and the 1951 cut-off were flagged, as well as amendments to avoid inequities that would be created by Bill S-3 in its original state.
The government has heard recommendations from this extended engagement regarding outstanding sex-based inequities. During the study of the bill at the Senate committee we welcomed a number of important amendments to the bill, which now addresses some of the situations flagged.
Amendments were made to address further groups identified by the IBA that would be discriminated against based on sex if the original bill had been passed. The committee also adopted an amendment to the bill regarding the issue of unstated paternity, which will enshrine into legislation additional procedural protection as contemplated by the Ontario Court of Appeal in the Gehl decision.
The committee passed a series of amendments to report back to Parliament on a number of occasions and in a number of ways to provide an update on progress towards broader reform.
Lastly, I would like to speak to the amendment—referred to as 6(1)(a) “all the way”—adopted in committee, adding subparagraphs (a.1) and (a.2) to a new paragraph 6(1)(a) of the current Indian Act.
The government is unable to support this amendment, first because as drafted it is unclear and in contradiction with some of the provisions of the Indian Act, and second because its intended effect puts it outside the scope of Bill S-3, which is deemed as addressing known sex-based inequities. The amendment, in fact, contradicts the current state of the law by granting a remedy explicitly rejected by the Court of Appeal of British Columbia in its 2009 McIvor decision as not being in line with charter requirements.
The amendment is also in contradiction to subparagraph 6(1)(c.1)(iv) of the Indian Act, a provision that was not struck down by the courts in the Descheneaux case and is still in the Indian Act.
Moreover, by purporting to provide an entitlement to registration to all direct descendants born prior to 1985 of individuals previously entitled under the old Indian Act, the intended effect of the amendment would affect descendants of individuals who were enfranchised not only due to marriage but also for reasons unrelated to their gender.
Finally, the amendment would not appear to grant membership to the individuals it targets.
Such a broad amendment casts the net much wider than what is required to achieve the goal of Bill S-3 and would have wide-ranging, unforeseen implications. More work is required to understand the implications, and we wish to have more discussions with first nations partners on the best way to address these broader issues.
To that end, stage two will begin, following the coming into force of Bill S-3, and will be the opportunity to examine the broader issues relating to registration, membership, and citizenship, with the objective of identifying options for future reform.
In conclusion, I would like to highlight the consequences of not passing the bill before the revised court deadline of July 3. Let's not lose sight of the individuals directly affected by this bill. About 90% of the registered Indian population is registered under one of the provisions struck down by the court in Descheneaux. As you know, if Bill S-3 is not in force on July 3, these sections will be inoperative in Quebec, and the practical implication for the registrar is that she would not be in a position to register people under those provisions in the rest of the country.
We must ensure that we do not deny justice to the plaintiffs and to the other 35,000 individuals affected by the decision, while also ensuring that meaningful consultation with indigenous groups is conducted adequately to address other complex matters. Consistent with Canada's commitment to reconciliation and a nation-to-nation relationship with indigenous people, the minister gave her personal commitment to co-designing a process with indigenous people, including communities, impacted individuals, organizations, and experts to deliver a substantive report.
Thank you, Madam Chair.
Ladies and gentlemen members of the committee, I will address you today in English.
Thank you for inviting us. I'm David Schulze. I was counsel for Stéphane Descheneaux, Susan and Tammy Yantha, and the Abenaki of Odanak and Wôlinak in the Descheneaux case. I am joined by Chief Rick O'Bomsawin of Odanak and Mr. Stéphane Descheneaux.
Now, I know we did this before Christmas, but I offered to briefly take the committee through the status rules again so that we know what we're talking about, because these issues are not simple.
By way of context, you will recall the challenge that Madam Justice Masse put before Parliament in her judgment. She said she was disposing of Mr. Descheneaux and Susan and Tammy Yantha's case, but as she said, “Parliament is not exempted from taking [other] measures to identify and settle all other discriminatory situations...whether they are based on sex or another prohibited ground.” We will look at whether this bill does that.
Briefly, how does status work? There are two subsections in section 6 of the Indian Act that give you status: 6(1) and 6(2). This chart quickly explains it to you, but it's not always easy to follow. Keep this in mind. A person registered under 6(1) will always have a status child. A person registered under 6(2) will never have a status child if they don't parent with another status Indian. It is always better, if you would like your children to have status and to be able to inherit your house on reserve, to be a 6(1) than a 6(2). That is the bottom line.
This system of 6(1) and 6(2) is the way the federal government, in 1985, tried to solve the discrimination in the Indian Act. Just as an aside: before 1985, status under the Indian Act was purely patrilineal, with one exception. Status was for Indian men, their wives, and their children. That was it. The only exception was for an Indian woman who had a child out of wedlock with an unidentified father. If they couldn't show the father was not an Indian, that child could be registered. Otherwise, there was no one on earth who had their Indian status from their mother; they had it from their father. An Indian woman lost it if she married a non-Indian man, and a non-Indian woman gained it if she married an Indian man. That's how it worked, and that had to be cured in 1985. Why 1985? Because that's when section 15 of the charter came into effect.
The government came up with what they called the second-generation cut-off. After two generations of parenting with a non-Indian, the third generation, the grandchild, has no status. If you look at the cabinet documents from the early 80s, they actually call this a 50% blood quantum. That's what they call it. It is, in effect, really a kind of grandparent threshold. Most of the time, if you have two status grandparents, you will have status, but as you'll see, it's not 100%. You see up here on the chart how a 6(1) will always produce a 6(2). If you have two 6(1)s, they each have a 6(2), and those 6(2)s marry: boom, you've got a 6(1) again. There won't be a quiz on this afterwards.
There's a sort of strength in having 6(1) ancestors, so that—as you'll see here—you can end up with a 6(2) grandchild, but it's not 100%. It won't always be enough. If you spread them out the wrong way, and if you don't have enough 6(1)s in your family tree, you can have the same number of status grandparents and end up with no status. The fact is, as I said, it's always better to be 6(1) than 6(2). The government likes to go to court and say there's no difference between 6(1) and 6(2); they're all Indians. That's very nice for everybody except somebody who is 6(2) and is facing the prospect of having children with no right to stay on the reserve.
Here's the other thing you absolutely have to understand. I'll just go back to one other chart. In this example, that 6(1) status doesn't mean the person was born an Indian. Remember, the non-Indian woman who married in, who married an Indian man before 1985, she got status. She is as 6(1) as anyone else. The 6(1) ancestors are counted whether or not they were born Indians or whether they acquired it by marriage.
When I said the name of the game is to have 6(1) grandparents and great-grandparents, that includes women who married in, and that's what gives us the “cousins” rule that led to the McIvor case.
That's how, in a nutshell, the grandchildren of a woman who married out before 1985, under Bill C-31, under the original amendments, weren't going to get status unless the woman's children parented with Indians. If her brother married a non-Indian, however, his grandchildren would get status. His grandchildren get counted as having two status grandparents and hers don't, because she got her status back in 1985, but of course her husband stays a non-Indian. That's the “cousins rule”. That's what McIvor was about.
The government said they were solving that in Bill . As they often do in the Department of Indian Affairs, however, they didn't see what they didn't want to see. They figured that, because Sharon McIvor's son married after 1985, they would only look at women who married out and whose children had their children after 1985 under the new rules. So Sharon McIvor's son had status but her grandchildren didn't.
They ignored the fact that there were generations of men and their sons and their grandsons marrying before 1985. If a man married out before 1985, and if his son then married out before 1985, he didn't have 6(2) grandchildren; he had 6(1) grandchildren. He could not have anything other than status great-grandchildren.
The comparator is Mr. Descheneaux. Mr. Descheneaux's grandmother married out, and after 1985 he was a 6(2). His children still don't have status. His great uncle would produce 6(1) grandchildren and status great-grandchildren, which Stéphane couldn't, because he traced his lineage to a grandmother who married out, not to a grandfather who married out. That's the Descheneaux part of the Descheneaux case in a nutshell. Parliament messed up. They knew exactly what they were doing. The Abenaki came before them in 2010 and pointed this out.
This is the comparator. The grandfather married out and has six status great-grandchildren. Stéphane has children without status. Under Bill , they will have status. That part of the discrimination is cured by Bill S-3.
There was another case, and I won't get into it in great detail, but I want you to understand what we're dealing with. It was all patrilineal before 1985. The result was, to make a long story short, if an Indian man had a child out of wedlock before 1985, his son could be registered but his daughter could not. Post-1985, they looked at the daughter and determined that since she had only one 6(1) parent she was a 6(2). That's how we got Susan Yantha, who had a different status from her brothers. That's how the same parents could have two children, a son and a daughter, each with a different status.
I want all of you to think about the absolute absurdity of the fact that I had to go before the Superior Court and argue that this was really discrimination under the charter, when Justice Canada stood up and said it wasn't. That is how first nations and their lawyers have to spend their time. That is also cured under this bill.
However, Indian Affairs managed to mess it all up. They messed it up in the bill that was provided and tabled, because now they've made sure that if an Indian man had a child out of wedlock before 1985, the status can go all the way to his great grandchildren through his daughter, but they forgot about the fact that there were women who had children out of wedlock before 1985 who could have their...and if it could be shown that the father was non-Indian, that kid's status could be removed. Again, I won't go through the details, but to make a long story short, they were going to leave that woman's descendants in a worse position than Susan Yantha's children and grandchildren.
They actually told me in a meeting when Chief O'Bomsawin and I met with the staff of the assistant deputy minister and Mr. Reiher, “Yes, we saw that problem but we didn't think it was discriminatory. Then, you know, the Indigenous Bar Association pointed it out before the Senate. Then we decided it was discriminatory, and we fixed it.”
They said they fixed it. Then they had to come back before the Senate last month and fix it again, because they actually hadn't gone enough generations forward. That's where we are with Bill . It's a patch on a patch on a patch on a patch on a patch.
They also cured this problem. I think we really don't have time to take you through it, but it has to do with these particular effects. If an Indian woman had a child by an Indian man but then her second husband was non-Indian, her children under the age of 21 by the first husband would lose status. Those children would end up disadvantaged relatives to their older brothers if those brothers were too old to have lost status. That is cured by this bill and that's all to the good.
This is the scenario that I brought up with Mr. Reiher and that he thinks is not discriminatory. I will try to take you through it extremely quickly as well. Before 1985, an Indian man could decide to enfranchise himself, his wife, and his children. This leads to the following situation, and this is a real situation in Odanak.
A woman was enfranchised before the age of 21, when her dad enfranchised the whole family. Her grandchildren don't have status. Her older sister wasn't enfranchised by their dad, because she was already married to a non-Indian, so she benefited from the McIvor decision; she will benefit from the Descheneaux amendments; and she will have status great grandchildren. This woman will not even have status grandchildren.
The department tells me that this is not discrimination based on sex. I say it is. I say it is for the simple reason that this woman's mother had enfranchisement imposed on her by this woman's father. Indian Affairs says that's okay, because if her brother had enfranchised himself and the sister-in-law, they would be in the same place.
My vision of equality is not that. If we end up with men who have privileges, but are treated no better than women who have no privileges, I don't think that is equality. The Department of Indian Affairs and Justice Canada do.
That's where we are with Bill . That's the overview, and now we have this amendment from the Senate. I'm going to try to make a few relatively simple points about it.
The first one is this, and it's very important that you understand it. Here are the points I want to make. Without the amendments the Senate has brought, the registration rules under the Indian Act, the status rules, will continue to discriminate, and they will continue to violate the charter. There's no dispute about that.
The second point I want to make is that the Abenaki nation was not consulted and not engaged with on Bill .
The third point I want to make is that there is no confidence among aboriginal communities about stage two.
The final point is that there is time right now to do this right.
I want to come back to those points. The first point is that there will be discrimination and the charter will be violated, and you might say they're the same thing. They're not exactly the same thing. The department has told you that the McIvor decision means that they don't have to do this or that, and that the Senate is going too far because it is going further than what McIvor said they had to do.
Let's be very clear on what McIvor said, and I'll try to do this without taking you to the finer points of the double mother rule, which always gives people a headache.
Hello, and thank you again for receiving us today. It's a pleasure to see you again.
I was amazed to see, the first time I came here, how complicated it seemed to be to turn the boat around. Today I'm back again, and I can see that it's still complicated.
As David said, in December we gave them more time to get the homework done and take care of what they had to do, but it seems that it was again not enough. We're still waiting for a phone call from somebody to come to sit with us and talk about this in the nation-to-nation way we do things. It hasn't happened. But I have calls putting pressure on me to accept the last bill: “Go ahead. It's good for you. People will be waiting for registration, and we don't know about the babies and where they're going to go.” It was rushed back then and it's the same thing today. They never called us and they never consulted us. We went to Justice Masse and David did the blah-blah. We won the case and we're still waiting. That's sad. You work hard, and you try to manage stuff, but it doesn't seem enough. Time—it can fly all the way down to the river.
When I got here last year, I thought, “Oh, there are lovely trails in the woods. We're going to walk there, with no walls, and we're going to have fun. It's going to be easy.” Now we're facing a highway, and there seems to be no hands here. We need to go on. There are things that have been done, but there are other things too, and if you don't meet with us, or with the people on the floor who know what's going on, we'll never move on.
If money seems to be the problem, we're not here for the money. We don't manage that part. That's another thing: we're talking about people and about what we have been. If you would have been the other way, if you would have been—how can I say this?—a native country, all Indians, all over...and wouldn't be other races. The newspaper pages would be filled up with terrible things happening: “Indians? We don't care. Bah. It's okay. We'll let times go. The more who die, the less there'll be.” You know, that's the bad part of it.
And what, am I going to have another phone call in seven, eight, nine, or ten months to come back in here and find out that we're still marking the walk? Things have to move. We have the tools to make this move up. Just sit with the people who know where to go and where they want to see a larger plan and not just a rag placed here or there. They work on that all the time. I'm tired for them. I'm tired for them because they work so hard. Even my chief—look at all his white hair now from breaking his head all the time trying to find out a way to solve this.
That's where we are now. That's where we are—the highway, as far as I can go.
I'll give the rest of my time to Rick.
First of all, I'd like to say thank you for having me back again, but every time I come back, it just means that we haven't settled the problem, so, in one way, thank you.
I think that one of the big things that we're being misled on here is the system itself. As David pointed out to you, as you looked at the charts, status and native citizenship code and membership are not the same. They don't even belong in the same sentence. A native is always a native.
This is a government system that they put in place, which they have an obligation to. It is their system; it was not our system. Their system has sexual discrimination in it. I'm completely thrown that in this country, our country of Canada that we all love.... And as I look around this table, I see the true meaning of Canada. Many of us are from different nations from all over, with ancestry from different places, but we're all equal. When it comes to my first nations women, we have sexual discrimination, and this is okay?
It's hard to believe that we have to spend this much time on this subject to say that a woman could be disenfranchised and, because of that, she has no rights. I look around the table here, and there are women at this table. If our government disenfranchised one of you and said you couldn't sit at this table, you would be arguing about it. This is the reason we bring this argument to the government and say this is their system. Indian Affairs put this system together. All we want is equal rights for our women. Our women deserve that. This whole status system, we agree, was not correct. They like to turn around and say they consulted with communities who don't want what the Senate wants. They don't want to clear this up because of cultural erosion. No one knows cultural erosion better than me and my communities. That is our job. Our job is to take care of cultural erosion, not the government's. The government's job is to take care of sexual discrimination, and then let us do our work.
Citizenship codes and membership codes are something that our communities have the right to. We have the right to say who our citizens are. We have the right to say who our members are. In our codes, I guarantee you, we don't have sexual discrimination. Our women are the most important thing in our nations. Our women are the givers of life. They are the ones who we are supposed to be respecting. That a country that will this year will celebrate a 150th anniversary can still stand and say we can discriminate against women, I'm ashamed to say that.
For that reason, most first nations people will not be celebrating the 150th anniversary because this country still has not given our women fair rights. Sexual discrimination needs to stop. Stage one, stage two, how did we even come to the fact of saying we need to do stage two? Is discrimination discrimination?
They say they have consulted with nations that don't want to have anything to do with this and they don't want the change. Under that logic, I could say, if I consult with 15 racist people, does that mean racism is okay? Consulting is fine, but it has nothing to do with the problem that we have at hand. This is their system. They put the discrimination in the system. They need to fix their system. Why does the system not want to be fixed? Let's all be honest, we all know, it's financial commitment. We all know this is about money. This is not about being native. This is not about who's Indian or who's not Indian, who has the right to live in my community and who doesn't have the right to live in my community. This is about dollars and cents. This is about obligation. Please, listen to what the Senate has to say.
Look at this. Stage two, eighteen months. The last stage two with the McIvor case took six years. In the end, my community had to take you back to court again. I will if I have to. I will go back to court 10 years from now. I don't want to. Let's not sit at this table. Let's all do our jobs and solve this problem once and for all.
I know, and that's because Indian Affairs told him, in his consultation. If you came to me and you told me that too, I'd say that I don't have the land mass, I don't have the resources, I don't have the infrastructure. What am I going to do with all these people?
I think first, if they're going to come to us, could they come to us with facts and not fiction—not a fantasy story? I don't even know where they got this number, and when you asked them today, even they said the number was blown out of proportion and they're not sure. Tell a chief that, however, and he's asking what he is going to do with these people.
The other thing they have a tendency to tell us is that if we give status to all these people, we're going to have an influx of all these people moving home.
After the McIvor case, I had nobody move home. The people were already living there. I had no influx. If a person who is living here in Ottawa gains their status, do you think they're going to give up their job? Hopefully, they've got a good government job here. Do you think they're going to give up their job to come out to my place and farm the fields? It's all a myth.
Indian Affairs comes to the communities, they meet with the communities, and they explain all this big scenario that's going to happen. Of course the chiefs run scared. They're asking: “What's going to happen to my culture? These people don't know their culture, they have no connection to the land, they have...”. Well, that's where we have to do our homework, if the people do come home.
Our chiefs have to look at the question, will I put my land, my infrastructure, before my people? No. If these are my people, I will recognize them. If they want to come home, we will make room for them. I think more chiefs need to look at that and not discriminate against their own people. When a chief says to me that he's worried about the influx of these new people.... They are their people; they should not themselves discriminate against their own people.
I think, then, that consultation is the answer. We need time. We don't need stage one, stage two, stage three, stage four. Let's settle this. I keep saying the same thing: let's just get this over with and get it done. We definitely need to sit down to talk, but we want facts on the table and we want the truth.
That was a very interesting presentation.
I'm from the Northwest Territories. We have five large aboriginal governments there that are working hard to be in control of what happens on their traditional lands, to govern their own people, and to make decisions on behalf of their own people. One of the most important things they bring forward is good communication.
I find it surprising that you have already decided that everybody that wants to be consulted is against this. I totally don't agree. I have responsibilities within my riding to those first nations, and I would expect that they would want to be consulted. I don't think that has happened yet.
When some of the first nations moved towards self governance, they started defining who their people are, so there's going to be a challenge there. How are we going to work that? We haven't figured that out. Some have settled. What does that mean? They opted out of the Indian Act.
There are a lot of things that have to be taken into consideration. There is great impact here.
I totally agree with some of your comments. We're not going to see communities overpopulate overnight. In fact, we're seeing the reverse. People are leaving the small aboriginal communities I represent. They are not trying to come back. There's a level of despair. They want jobs. They want to have houses. They want to have good health.
So there are a lot of things that people are saying that I don't believe.
I recognize that a lot of this may be “I want money”, but I really feel strongly about the consultation process.
First of all, I want to know why you would think we don't need to talk about these two other parts of Canada, why you would think they don't need to have a say in this.
Second, what's telling you that stage two may not even happen or is not going to work?
Maybe you could clear that up for me.
Good morning, as I shake myself up. It's raining outside again.
Kwe, bonjour, and good morning to Chairperson Mihychuk, committee members, distinguished witnesses, and guests.
My name is Francyne Joe, and I am the interim president of the Native Women's Association of Canada. Alongside me is our executive director Lynne Groulx; and I am happy to introduce our new director of strategic policy, Courtney Skye.
I would like to acknowledge the Algonquin nation, on whose unceded territory we are meeting today. I would further like to recognize and honour the hard work on the part of individuals, organizations, and members of the Senate, who share our interest in moving this process forward quickly.
Through the elimination of sex-based discrimination in the Indian Act, indigenous people who have experienced generations of marginalization will achieve recognition of their disenfranchisement. It will additionally enable generations of descendants to begin the process of healing and reclaiming pride in their identities as indigenous people.
Following NWAC's presentation on the findings of the engagement sessions with indigenous women and other stakeholders on this topic, several amendments have been made by the Senate to the proposed Bill that satisfy some of our most pressing concerns. These include the affirmation of a clear process for meaningful engagement, in which we commit to participating.
NWAC continues to advocate for the removal of all sex-based discrimination from the Indian Act. Accordingly, the Native Women's Association supports the amendment of Bill , known as 6(1)(a) “all the way”, as passed by the Senate. However, NWAC needs to flag the “no liability” clause as a problematic addition to Bill S-3.
It is our impression that the new amendments serve to further eliminate sex-based discrimination in the Indian Act, beginning with the removal of the two-parent rule. The two-parent rule, or presumption of parentage, is discriminatory towards many individuals. Our grassroots' engagement process revealed that Bill did not address the situations of undeclared parentage, a parent being unable to sign documents due to disappearance or death, or cases in which same-sex or two-spirited individuals are parents.
The elimination of the two-parent rule will grant Indian status to disenfranchised descendants. It restores the rights of indigenous people to love who they choose and takes a positive step towards the acceptance of same-sex relationships in the affirmation of the rights of two-spirited individuals. It does not, however, address the ways in which they have suffered due to this discrimination.
We are satisfied with the addition of a legally mandated engagement and consultation process, and encourage the initiation of stage two of this bill. NWAC is fully committed to designing and implementing an engagement process that provides indigenous women with the capacity required to fully and meaningfully participate.
Consultation must be extended to all indigenous women, youth, elders, transgendered women, and two-spirited individuals. This group is not limited to the first nation communities, first nations bands, and Métis communities, whose memberships will be affected. It needs to be inclusive of all indigenous women who are being discriminated against, in recognition of the need for strong, healthy, and loving families, and shaping pride and self-knowledge in future generations.
Canada has denied indigenous children of their right to know themselves through numerous methods of colonization, including those implemented by the Indian Act. By denying women access to their treaty rights and isolating them from their communities, the Indian Act has disrupted their ability to pass on their heritage and culture to their children. Consultations on the loss of Indian status must extend to those who have experienced the effects of the sex-based discrimination in their lives. We must hear from those who have lost their connection to their culture as a direct result of sex-based discrimination in the Indian Act and the delays to this amendment.
Meaningful consultation supports the development of a mutually respectful relationship, as recommended by the calls to action of the Truth and Reconciliation Commission. This relationship must be with those affected by sex-based discrimination in the Indian Act. Consultation must extend beyond groups whose rights are currently supported by the Indian Act, including groups who currently hold Indian status.
Additionally, the inclusion of indigenous women's perspectives must be used as a metric of the indigenous peoples' ability to claim their right to self-determination as outlined in the United Nations Declaration on the Rights of Indigenous Peoples.
NWAC has decades of experience in exposing and addressing the root cause of the marginalization of indigenous women. We must strongly recommend that comprehensive consultation and reporting occur within a framework designed with our full co-operation and ensuring that all residual forms of discrimination are removed from the Indian Act.
I will now further elaborate on our expectations in developing this important work.
NWAC has serious concerns about elements of the bill, including clause 10, the “no liability” clause. Its presence supports the sexism inherent in the Indian Act and further entrenches historic discrimination against the group most marginalized and most impacted by the discrimination of the act.
The patriarchal nature of the Indian Act has survived prior amendment and continues to amplify that discrimination against women that has been felt through generations. It was drafted in an attempt to assimilate indigenous women and our descendants by erasing our indigeneity. To include a “no liability” clause essentially divorces its creators from responsibility for their knowing attempts to disenfranchise and disempower indigenous women and their descendants.
The crown is not released from bearing responsibility for this work. This is not only a question of compensation but a recognition of the degree to which the racism faced by indigenous women is intensified by discrimination based on sex. As no process has been introduced that seeks to assist those impacted by this discrimination on their own behalf, the legacy of harm continues to threaten the well-being of women and their descendants. These people will continue to bear the burden of alleviating the discrimination for themselves.
NWAC welcomes the explicit reporting of issues outlined in subclause 11(1), with particular attention on the impacts relating to adoption of children by two-spirited people and same-sex partners, the impact of unknown or unstated paternity in cases of sexual violence, and the effects of enfranchisement of women.
Please accept our input challenging the Indian Act and supportive of our combined work in removing this discrimination. We appreciate the support of this committee in ending the systemic attack on the ability of mothers to pass on our heritage and culture to our children.
The process of colonization and assimilation continues on the bodies and in the minds of indigenous women. We had no hand in writing these laws that oppress us. It is time to reclaim our identities in law and action. There is an urgent need to respect and promote the inherent rights of indigenous peoples. Our rights derive from our cultures, spiritual traditions, histories and philosophies, all of which are passed on by our mothers. These also derive from our political, economic, and social structures, all of which have been actively disrupted by the patriarchal and colonial impositions of the crown.
Canada has committed to implementing these rights as affirmed by the United Nations Declaration on the Rights of Indigenous Peoples. It is time to restore the traditional place of pride held by women, trans-gender women and two-spirited women in our communities. The Indian Act has successfully categorized and divided our people through status designations that impact us at the community level. By revoking Indian status or not awarding Indian status to women and their children, the Indian Act makes these marginalized people easy targets for continued discrimination that is felt across generations.
NWAC recently observed the 100th anniversary of the Battle of Vimy Ridge and the indigenous women who chose to fight alongside Canada for our freedom. We have supported a nation that has never supported us. It is unacceptable that today we must continue to advocate for our equal rights to dignity, respect, and freedom from fear on our own soil. Adopting paragraph 6(1)(a) “all the way” is our shared path to reconciliation, healing, and empowerment.
NWAC fully embraces the opportunity to work with Indigenous and Northern Affairs Canada in conducting stage two of the engagement process as outlined in the amendments to Bill , and we commit our full participation in its design. The positive action taken in accepting these amendments will let not only first nations women but all indigenous women, their descendants and communities, know that the Canadian government recognizes and respects our right to equality.
This is a little bit of a different forum for me, so I'm just getting used to it. I'm calling in from Calgary, Alberta.
My name is Drew Lafond. I am a member of the Indigenous Bar Association. The Indigenous Bar Association in Canada is a not-for-profit organization that represents indigenous lawyers, judges, academics, students, and paralegals in Canada. Generally, our objective is to see the advancement of indigenous rights in Canada and to allow indigenous peoples to secure their ability to exercise their rights of self-determination in Canada. We have a very broad mandate, and we represent quite a few individuals. Our membership exceeds 300 members within Canada from coast to coast.
I'm speaking here today further to our presentation to the Standing Senate Committee on Aboriginal Peoples. We spoke on April 16, and we also presented on November 23, 2016 before the standing Senate committee, and we made written submissions to the standing Senate committee in April 2017.
Today, I want to elaborate a little bit more on what we provided during our previous presentations.
In terms of the bill at hand, further to our previous presentation, the issue we had encountered in terms of the text of Bill, and with section 6 of the Indian Act in its entirety, was essentially that the bill had become illegible for first nations individuals. It was very difficult to interpret who within the bill qualified for Indian status.
Now, the objective of the bill—and I refer to the title of the bill as being the elimination of sex discrimination within the Indian Act—had not been achieved by November. Subsequently, when another round of revisions to the bill was presented in May, the bill itself still included several instances of sex discrimination, which we identified only a couple of days before I presented back in May.
Unfortunately, we didn't have an opportunity to review paragraph 6(1)(a) and the “all-the-way” provision. In fact, when I was presenting to the standing Senate committee, I think it was Senator Patterson who raised it as a potential alternative to the draft bill that was before the Senate at that point. Colloquially, it's a term that's been attributed to what I think the new paragraphs 6(1)(a.1) and 6(1)(a.2) will be within the current bill. The ultimate intention of paragraph 6(1)(a) “all the way”, I think—I'd hazard a guess here, and I'm paraphrasing wildly—is to ensure that anyone prior to 1985 who had been deprived of status would be reinstated, and any descendant of a person who was entitled to status under the previous provisions, who was born prior to April 17, 1985 would also be entitled to paragraph 6(1)(a) status. Again, we didn't have the opportunity to contribute to the drafting of the paragraph 6(1)(a) all-the-way approach, but I'm operating on that assumption, and that's something I'll offer comments on later.
When we appeared before the Senate in April, we brought three general issues to the forefront. The first was with respect to pre-1951 status. The question that we raised to the Senate was more a question and more of an issue that we wanted addressed in a broader scope, which was why discussion at that time focused on the arbitrary distinction between pre-1951 and post-1951 status at that point.
It was a distinction drawn by the British Columbia Court of Appeal in the McIvor decision. Ultimately, however, for the claimants, the individuals who were affected by the enfranchisement provisions under the pre-1951 and the post-1951 versions of the Indian Act, it seems to be an arbitrary decision. The only basis for it was simply that we weren't in a position at that time—and we still aren't, from what I understand—to fully quantify the impact of a reinstatement on a pre-1951 enfranchisee and his or her descendants.
Without a factual basis to support an argument as to what a pre-1951 reinstatement would look like, I think we're still disadvantaged in the sense that we don't have all the information on what the full impact of this would be. Ultimately, this is an issue that will affect Canada. It's Canada's statute. We want to avoid the ramifications of a pre-1951 mass reinstatement, which would have a detrimental impact on the ability of first nation governments to administer and conduct their own affairs.
With respect to post-1951 status, we presented draft amendments and circulated those to the Standing Senate Committee on Aboriginal Affairs. As I indicated, I wasn't contacted by any members of the Senate following our circulation of those proposed amendments. It wasn't until the following day—I think it was May 17, when the clause-by-clause reading occurred—that I was made aware of the drafting of the 6(1)(a) “all-the-way” approach. I'll speak to that in a moment.
The only other item I'd like to submit would be with respect to sections 10 and 11 of the Indian Act. There's currently an ambiguity in section 10 of the Indian Act for those bands that have adopted their own band membership codes. This was underscored in a case in the Alberta Court of Appeal in 2003.
What we would have liked the Senate to do in this case, which unfortunately did not happen, was to address, in addition to the proposed amendments to section 11 of the Indian Act, the effect of reinstating essentially anyone reinstated under the additional status provisions of section 6 to a band membership list, or a membership list equivalent, maintained by the department.
There are issues with this because it renders uncertain the status of individuals reinstated today. There remains an uncertainty as to whether those individuals would be reinstated, effective April 17, 1985. The effect of this would be that they would also be entitled to band membership. Their names would be included in the band list, effective April 17, 1985. This is an ambiguity that remains.
This situation was addressed by the Alberta Court of Appeal, and we think the decision, at least in our instance, creates some clear direction for the Senate and the House of Commons in eliminating sex discrimination. It affects the status provisions of section 6 as well as how these provisions impact automatic entitlement to band membership.
Going back to the 6(1)(a) “all-the-way” approach, I haven't been made aware of the full intention of 6(1)(a). I simply assumed that this approach could well achieve the objective of the proposed legislation, which is the elimination of sex discrimination. As we indicated in our previous submissions, the draft bill added to what was already an esoteric section 6, which was becoming illogical for first nations individuals.
Now, the only concern with respect to the—
What's responsible is subjective assessment. In our view, what problems would arise in connection with the 6(1)(a) “all-the-way” approach.... You'll recall that during our previous submissions to the Senate in May—and this was identified in our written submissions as well—we identified that the draft language proposed by the Liberal government in 2010 in connection with the Bill negotiations and discussions at that time.... The clause during that round of negotiations was ruled out of order, so it wasn't considered and, unfortunately, it essentially died at that point.
We have now reintroduced the discussion in our written submissions. We raised it as a possibility during our oral submissions, as a good starting point for eliminating sex discrimination within the Indian Act. What appears to have happened is that Senator McPhedran has simply taken the language from the proposed Liberal amendment back in 2010, inserted that into 6(1)(a), and then added a provision under (a.2), which is simply an interpretation provision or clarification provision, which interprets (a.1). Therefore, there really hasn't been a lot of modification of the Liberal proposal put forward back during the Bill negotiations.
We cautioned against simply inserting that in its current form. We identified it at that time as a good starting point, as I indicated. You run into technical problems with the language by simply inserting that into a bill because you run the risk of inconsistencies or some unintended consequences with that. We haven't been able to identify the full extent of those.
When I looked at it last week, the only one who came to mind was the question of who we are referring to when we refer to a person who was born prior to 1985 and is a direct descendent of the person referred to. Looking at the person referred to in paragraph (a) or a person referred to in paragraph 11(1)(a), (b), (c), (d), (e), or (f), as read immediately prior to April 17, 1985, the first issue that came to mind was, does that refer to only peoples who are alive or peoples who are deceased? Or are we dealing with descendants of people who were living immediately prior to 1985 or people who had passed away? There is a deeming provision in the Indian Act, section 6, and it reads, “(a) a person who was no longer living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a);“ That's under (6)(3), but, unfortunately, that reference is only in connection with paragraph (1)(f) in subsection (2).
There are these small technical problems that you will encounter when you insert a paragraph like that into a bill, and our concern stems from that. I think it echoes the concerns of senators.
Also, we don't know if we can have a proper articulation of what the 6(1)(a) “all-the-way” approach is, and then moving to the next phase, does the legislation accurately implement that intention?
Dealing with subparagraph (a.1), I understand the political strategy. This was something that was introduced by the Liberals, so shouldn't the Liberals be more inclined to adopt it? It's a very admirable approach from a political standpoint. From a legal standpoint, we still have some questions that we haven't had an opportunity to fully canvas.