Bill C-3: Senate Considerations More About Blood "Purity" and "Benefits" than Equality

This blog will serve as an update as to the current status of Bill C-3 - Gender Equity in Indian Registration Act. It will also serve to highlight the disturbing considerations that are being made by Senators and the Minister of INAC in passing this bill.

Here is the quick and dirty of the Bill's treatment to date:

(1) Bill C-3 passed first and second reading in the House;

(2) It was studied by the Standing Committee on Aboriginal Affairs and Northern Development (AAON) where numerous Aboriginal witnesses testified that it did not address all gender discrimination or even that found in McIvor's case;

(3) I appeared as a witness and gave oral and written testimony against the Bill;

(4) The AAON voted on amendments to make the Bill more inclusive (at this point the Liberals, NDP and Bloc were all supporting the Aboriginal witnesses);

(5) These amendments were ruled out of scope;

(6) The House passed a new amendment to include back in the bill, section 9 which tries to insulate Canada from liability;

(7) The bill passed through the House (the Liberals, NDP and Bloc all flip-flopped and sided with conservatives);

(8) The bill was sent to Senate for consideration and passed first and second reading quickly;

(9) It was sent to Senate Standing Committee on Human Rights to study;

(10) Only two days were set aside to hear a small list of witnesses (Nov.29, Dec.6);

(11) I was invited by Senate to appear as witness and then disinvited at the last minute;

(12) The bill passed through the clause by clause quickly.

So that is where the Bill stands now. It will pass through both report stage and third reading fairly quickly as the conservatives are the majority in the Senate and we have seen what they will do when they like or dislike a bill. This bill will then have to receive Royal Assent and the Order in Council process takes about 6 weeks or so. Therefore, I fully expect that this Bill will become law before the court imposed deadline in January of 2011.

So that is the technical stuff. I have written previous blogs about my concerns about this bill, but I will summarize the main issues here:

(1) The new section 6(1)(c.1) will create a new form of discrimination between those with children and those without. Under this section, the only people entitled to section 6(1)(c.1) status are those currently registered under section 6(2) who have non-status Indian children. Anyone with status children or no children will not get the gender remedy.

(2) This bill does not address all gender inequality in the Indian Act. Canada argues it only addressed the inequality between double mother clause reinstatees and section 12(1)(b) reinstatees in the McIvor appeal case. Unfortunately, it does not even do that. The descendants of Indian men will still have better status than the descendants of Indian women.

(3) Canada has chosen to try to insulate itself from liability for the gender discrimination it imposed on the descendants of Indian women in section 9 of the bill. Indian women and their descendants will be the only group in Canada who have been discriminated against and for whom Canada refuses to allow them a Charter remedy.

There are many, many other concerns I have about the Bill, but anyone can read my past blogs to find out more. As you may have gathered from other blogs I have written on Aboriginal political issues, I am concerned about our National Aboriginal Organizations (NAO's) like the Congress of Aboriginal Peoples (CAP), the Native Women's Association of Canada (NWAC) and the Assembly of First Nations (AFN) actions on this issue. These NAO's all claim to represent some segment of the Aboriginal population in Canada, but their recent flip-flops should be cause for great concern by us grass roots folks. Even the National Association of Friendship Centres (NAFC) a non-political organization has weighed in.

First of all, the Senate only had two half-days of hearings and only heard from a handful of witnesses, most of whom were political in nature, compared to the AAON who had 6 days of hearings and heard from numerous witnesses with various expertise on the subject matter. Several witnesses, including myself were officially invited to appear before the Senate on Bill C-3 but were later disinvited at the last possible moment.

You will remember that in the House, all of the Aboriginal witnesses were unanimous in their opposition to Bill C-3 as it was written - yes, including CAP. The Liberals, NDP and Bloc all agreed that the Bill did NOT fully address either the gender discrimination found in McIvor or the larger gender discrimination issues. They all supported the amendment of this Bill to finally address gender discrimination once and for all. However, since Parliament recessed for the summer, CAP, NWAC, Native Women of Quebec and others all flip-flopped on their original positions and decided that "something was better than nothing" and supported the bill.

When we all got back to business in the fall, the Liberals, Bloc and NDP all flip-flopped and said they would now support the bill out of concern for those who wanted to be registered as soon as possible. Keep in mind also that INAC has been saying all along that the NAO's would ONLY receive funding for the joint process to discuss the other registration and band membership issues IF Bill C-3 passed. This means no money if the NAO's did not play ball.

The NAO's are not what they used to be - although they were all born out of the Indian political struggles of the early 1900's which culminated in the 1970's in response to the White Paper, their leadership of late has been described as "co-opted". Back then, the NAO's stood for what was just and not what was "just" in the best interests of the organizations they headed. Now, their concerns over funding to staff their organizations far outweighs any remaining concerns for what is best for our people.

It should be no surprise then that on Monday, Dec.6, 2010:

(1) the CAP did not even appear as a witness on Bill C-3 in Senate;

(2) the AFN testified that "the bill, with or without amendments must proceed";

(3) the NAFC's main concern was to ask for money to train their staff and to be compensated for answering questions to their clients;

(4) the NWAC said registering those under Bill C-3 would be acceptable to "our chiefs, our communities and our families";

Despite vigorous questioning from Senator Sandra Lovelace (the woman who took Canada to the UN on this issue and won) about the real issues at stake for Aboriginal peoples: full gender equality, the right to decide who we are, and compensation for discrimination, NONE of the NAO's would back down from their support of the bill. This made Senator Patrick Brazeau's job much easier.

INAC Minister John Duncan's testimony on Nov.29, 2010 seems confirm what is happening here:

"the department has invited and received proposals from national Aboriginal organizations in preparation for the possible launch of a separate exploratory process on these broader issues. This will move forward if Bill C-3 is passed."

"With five different national Aboriginal organizations ... the department will provide the appropriate funding for the process."

"the national Aboriginal organizations will be running the process."

Sharon McIvor's testimony pointed out what is really happening here - we are being offered a joint process without any mandate or commitment for future changes in exchange for NOT addressing the full issue of gender discrimination in the Indian Act. Specifically she said:

"what is being offered in exchange for the non-recognition of our basic human and equality rights... An exploratory process, so others - many of who will not be affected directly - have a say in whether our basic human and equality rights are recognized. To my mind, it is totally bizarre."

She also pointed out the disrespect of Justice Canada (DOJ) and INAC in dealing with her case. They keep referring to Sharon's "hypothetical brother" to do comparisons on charts, but in actual fact her brothers are real, living human beings with families of their own. It was all because of Sharon's quest to seek equality for Indian women and their descendants that her brothers even got registered and when they did, they all got better status than Sharon. How is that for irony?

She also pointed out the very disturbing position our NAO's have put us Indian women in - that we must fight this battle alone. Sharon explained the current situation very well:

"The Assembly of First Nations, the Native Women's Association of Canada, other groups, will get huge chunks of money. We women on the ground have done all of the groundwork. I can tell you I have done all of the work to get here. The Assembly of First Nations did not help me, and for the most part the Native Women's Association of Canada did not help me, and CAPP did not help me. I brought it this far, and now they have all jumped on board and they said, okay, whatever little piece of legislation you want to put through because of the time frame, we agree with that. You can go ahead and do it, but give us the money. I am outraged, as you can tell. I am outraged about what has been going on."

She went on to explain that many, many descendants of Indian women will be missed in Bill C-3 including: anyone born pre-1951, and the illegitimate daughters of Indian men, children of status women who have unstated paternity. There are many more who will be missed.

Gwen Brodsky who presented after Sharon made the point that gender equality in Canada is NOT something that should only be brought about incrementally - i.e. through small amendments gradually over time. It is a basic human right that requires immediate implementation. It has been over 150 years of legislated gender inequality for Indian women - how much longer should they wait? It cost Sharon over $250,000 and no one was there to help her. Discrimination is not a matter for debate or consultation - it simply needs to be remedied even if people want to continue discrimination.

Despite all of this, it was more than apparent that racist and sexist stereotypes and ideologies are what ruled the ultimate decision to pass this Bill. Here are a few examples of the questions and considerations made during these meetings:

(1) Senator Kochar to Sharon McIvor:

"How far do you think your status can go?"

"Senator Brazeau is my mentor when it comes to Indian Affairs, although I am more pure Indian than he is."

"If pure Indian marries a non-Indian... how far do you think you can take the status?"

"Nevermind about gender equality."

(2) Senator Brazeau to Gwen Brodsky:

"I think it is important to distinguish between a wish list... and the specific decision"

(3) Minister Duncan to Senator Brazeau:

"we probably would not be having any of this discussion if it were not for the fact that status confers certain benefits"

"There has not been as much debate and discourse of this area of the Indian Act as there should be."

Seriously?? Has INAC not read all the studies, research, articles, theses, books and reports on the subject? What an irresponsible thing to say - but it serves to justify funding NAO's to do more repetitive research.

Canada denies that financial considerations are a main issue in their control of status when they appeared before the courts in McIvor, yet their own motivations are admittedly financial. Even the evidence at court showed that Canada's interest in having a limited "1/4 blood" rule was primarily for financial reasons.

Why is it that when men are registered under the Act, they are considered the true Indians, but when women want to be registered they are characterized as gold diggers? We are not in this for money - we are in this for our equality and the rights of our children and grandchildren.

If anyone should be questioned about their financial interest, it is not Indian women and their excluded descendants who must fight these legal battles on their own and at their own cost. I think the grass roots people ought to be asking their NAO's what the hell they think they are doing with the future of our children and grandchildren? No study, staff position or research project is worth the exclusion of even a single child from their birthright and community.

I have been told that politics is about compromise and maybe I should give these NAO's a break. If that is the case, then perhaps these NAO's should get out of the business of politics and get back to the business of advocating for our people and standing up for what is just.

Bill C-3 is a discriminatory piece of legislation that appeals to Canada's desire to limit how much they have to share our resources with us; appeals to co-opted NAO's who see dollar signs in the joint process; and appeals to those colonized Aboriginal peoples who care more about their own individual interests than that of their communities, Nations, and most importantly, the futures of their children's children seven generations into the future.

Shame on Canada and shame on AFN, NWAC, CAP, NAFC for buying in. I can only hope that the UN addresses Sharon McIvor's long-standing fight for our rights.

The Illusion of Justice in Canada - The Conservatives Conditional Support of UNDRIP

I was having a hard time deciding between several important issues that I wanted to write about in my blog this week. I was really struggling between the injustices against our Indigenous peoples noted in Howard Saper's Corrections report, the fact that Sharon McIvor is forced to take the plight of Indigenous women to the United Nations or Canada's hollow endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). All of these issues are important and deserve far more critical attention than they are getting.

That is when I realized that these issues are part of a shameful pattern on the part of the Conservatives. The Conservatives have created an illusion that they are addressing justice issues faced by Indigenous peoples here in Canada by promoting their pretend platform on human rights and equality. Some readers might think this is an overly critical assessment of what seems to be a very progressive agenda - but I would ask those readers to look beyond the media hype and dig deeper to what is ACTUALLY being promised and what is not.

I have to start with UNDRIP because Canada's alleged "endorsement" of it is the biggest illusion of all. As we all know, Canada was one of 4 states that refused to sign UNDRIP along with the USA, Australia and New Zealand. These are some of the countries with the largest Indigenous populations who suffered greatly under the colonial laws, rules, and policies implemented by these States. Their collective refusal to endorse UNDRIP sent a strong message to Indigenous peoples that their colonial rule would continue for some time to come.

Australia subsequently changed its mind and decided afterwards to issue a conditional Statement of Support for UNDRIP and New Zealand soon followed suit. That left Canada and the United States on the hot seat, so to speak, and their failure to endorse UNDRIP a major political impediment to Indigenous-Crown relations. Therefore, the Conservative government made a commitment in its speech from the throne in the spring of 2010 to endorse UNDRIP:

"A growing number of states have given QUALIFIED RECOGNITION to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws."(emphasis added)

It is now November 2010 and we are only just getting the alleged "endorsement" now. I say "alleged" because words mean everything in the world of politics. We know from our collective experiences with treaty making and implementation, that the Crown does not always act honourably in its dealings with Indigenous peoples. In a letter from T. Bannister to the Council of Trade and Plantations, one European colonist wrote about the shameful ways in which treaties were being "negotiated" with Indigenous peoples:

"Their quarrels and wars were not for ambition, empire or bloodthirstiness but to defend their property and bounds...

Their injuries have been very great, as divesting them of their land by force or fraud, first making them drunk and then to sign what they knew not what...

Ad to this our inhumanity to them ... We vilify them with all manner of names, and opprious language, cheat abuse and beat them, sometimes to the loss of limbs, pelt them with stones and set dogs upon them ... too often an Article of Peace has run in one sense in English and quite contrary in Indian, by the Governor’s express order...".

I would like to think that Canada has moved past some of its double-dealings of the past, but this limited endorsement of UNDRIP by the Conservatives proves otherwise. From one side of their face they promise to make changes to address our issues and from the other side, they rally public support against us and find creative political spin to keep from acting on their promises. Canada did not truly, in letter and spirit, endorse UNDRIP - they issued a "Statement of Support" that does not change Indigenous rights (or lack thereof) in Canada. This is not my own personal opinion that I am espousing; I am taking this straight from the horse's mouth. What follows is a summary of Canada's "Statement of Support":

(1)"The Declaration is as ASPIRATIONAL document..." (the definition of "aspirational" is a "cherished desire"; something for which one "wishes")

(2)"the Declaration is a NON-LEGALLY BINDING document that does not reflect customary international law NOR CHANGE Canadian laws" (emphasis added)

(3)"Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties. THESE CONCERNS ARE WELL KNOWN AND REMAIN." (emphasis added)

(4) "We are now confident that CANADA CAN INTERPRET THE PRINCIPLES expressed in the Declaration in a manner that is consistent with our Constitution and legal framework." (emphasis added)

Those are the highlights of what Canada ACTUALLY signed. These are the limits under which it "supports" UNDRIP - i.e., so long as it has NO legal affect in Canada. For those who might think that I am somehow misinterpreting what Canada means by their conditional support, INAC's own press release again clarified that:

(1) "the Declaration is not legally binding" and

(2) they are only endorsing it as "an aspirational document" and NOT as a legally binding document.

For those who have any further questions about what this all means, INAC also provides a section entitled "Frequently Asked Questions". In answer to the question of whether a State which originally voted against UNDRIP can change its mind, INAC very clearly says "There is no official way for a State to change its position on a declaration". All it can subsequently do is issue a Statement of Support. Canada knew this when it originally voted against UNDRIP. In answer to the question of what UNDRIP means: "The UNDRIP is a non-legally binding aspirational document". I am not sure how much clearer they could have made their position.

So, at the end of the day, all Canada has done is publicly support the cherished wish list of Indigenous peoples but that wish list will not have any legal application or effect in Canada. Regardless of this striking fact, one might argue that Canada could still make significant and substantive changes to its relationship with Indigenous peoples and take transformational action to address serious social, economic, political, cultural and legal issues impacting on the well-being of Indigenous peoples, the majority of which it caused through its colonial laws and policies.

Sure....Canada "could" do that - the question is will it? Well, let's see what Minister of INAC John Duncan had to say:

http://aptn.ca/pages/news/2010/11/12/canada-finally-backs-un-indigenous-declaration/

You will note in the above interview with APTN, that Minister Duncan re-affirms that UNDRIP is an "aspirational" document only that has NO legal application in Canada. Furthermore, on whether Canada's endorsement of UNDRIP will bring about significant changes for Indigenous peoples in Canada, Minister Duncan responds that Canada has its "own agenda" and as a result does not "anticipate any significant change".

So, once again I am still asking myself what the heck is everyone so excited about? Why on earth would the Assembly of First Nations celebrate this announcement? Why would First Nations leaders appear in the media and praise Canada for making such a significant commitment to the rights of Indigenous peoples? Did anyone take the time to actually read what the Statement said or what INAC said its alleged "endorsement" means?

Here is a brief overview of the state of Indigenous peoples in Canada right now:

(1) Indigenous peoples have the lowest socio-economic conditions of all groups in Canada - meaning the lowest education and employment rates coupled with the highest disease, poverty and violence rates;

(2) Funding for essential social services like post-secondary education, drinking water infrastructure, and child welfare are all so grossly underfunded and unequal when compared to non-Indigenous funding, that even Canada's Auditor General has criticized Canada for its lack of action in addressing it;

(3) Indigenous women in Canada do not enjoy even BASIC equality rights that are enjoyed by non-Indigenous women and now Sharon McIvor is being forced, after 25 years of litigation and struggle, to seek redress at the United Nations for Canada's lack of action;

(4) Hundreds of land claims remain unresolved despite Canada's promise years ago to bring about "revolutionary" change to the ways in which claims were handled; and

(5) Our people are homeless on their own traditional territories, our women are murdered and missing at alarming rates, our children are taken from our families and communities at rates as high or higher than during the 60's scoop, our men and women are incarcerated at a higher rate that non-Indigenous people, and racism is still prevalent within our justice system and leads to deaths while in custody, starlight tours, and utter neglect.

If Minister Duncan is right and Canada will not make any significant changes to how it deals with Indigenous issues and will simply continue to advance its own agenda, then what good does their conditional support of UNDRIP do for us? Why would our political leaders be so quick to praise Canada for agreeing to do literally nothing on our behalf?

At this rate, our reserves will be turned into private property and sold to big business by the Flanagan-Jules plan; those remaining reserves will all be occupied by non-Indians through Bill S-4 MRP laws; and if anyone remains after that, they will all be legislated out of extinction by Bill C-3's discriminatory status provisions.

The Conservative's conditional support of UNDRIP creates an illusion of justice in Canada - it is our choice whether we stand beside them and accept it. If our leaders won't stand up for us then it is time that the people told their leaders to step aside and let our people stand up for themselves.