I know that this blog may be a little off-topic from my usual discussions, but this issue is too important to let slide. A very senior person in Aboriginal politics has made an absolutely insane statement about my Mi'kmaq Nation, our governance practices and our traditions. The record now has to be set straight so that the public does not think Mi'kmaq people are all crooks.
Burnt Church First Nation (also known as Esgenoopetitj) is one of several Mi'kmaq communities in New Brunswick. My home community is Eel River Bar First Nation is only a few hours north of Burnt Church. The Chief of Burnt Church is Wilber Dedham and his term in office has not been without significant controversy.
Earlier this year, a member of Burnt Church filed a complaint with the RCMP alleging that council members participated in vote buying during the election. APTN reported that initially the RCMP refused to investigate the complaint because it did not want to ruin relations with Burnt Church. As some may recall, Burnt Church was the First Nation whose members were run over by DFO boats while they fished for lobster.
Given the large amount of publicity over the matter, the RCMP later changed their minds and decided that they would conduct an investigation afterall. APTN reported that the primary evidence were affidavits signed by several community members detailing how council members offered cash in exchange for votes.
Since that time however, new evidence has appeared on the internet and various media outlets (including APTN) which allegedly shows a council member giving electors cash in exchange for votes. Those being video-taped apparently did not know they were being taped and the name of the person who set up the hidden camera has not yet been released.
Given that the RCMP are investigating this matter, I could have left the issue at that. It is a terrible thing to have allegedly happen in one of our own communities, but I had assumed that the RCMP would ensure that we had all the facts before casting judgment. I think those accused have the right to be considered innoncent of the charges unless and until they are proven guilty. If they are found guilty, those involved should resign or be removed from office.
However, much to the surprise of most Aboriginal people across Canada, AFN Regional Chief Roger Augustine participated in an interview with APTN News last night and actually defended the alleged vote-buying actions in Burnt Church. Not only did he seem to think it happened, but he stated that this is actually part of our tradition as Mi'kmaq people.
Furthermore, he said that we should not look at this like vote-buying, but instead see it as a matter of gift-giving to people who are supporting the candidate - it is a way of saying thank you. He also made the claim that older members would not come out and vote otherwise, and appeared to imply that this is a common occurrence.
First of all, traditionally we as Mi'kmaq people did not have elections. The election system and Chief and Council governance structure was imposed on our people by Canada through the Indian Act. Unless and until Burnt Church negotiates and concludes its own self-government agreement, or it enacts its own custom election code, then the Indian Act and its regulations govern band governance and elections.
Section 78(1) of the Indian Act states that chief and council hold office for two years. The exception to this being those bands who have their own custom election codes, and the last time I checked, Burnt Church was under the Indian Act.
Section 78(1)(b) (iii) permits the Minister to remove a Chief or council member from office if, in connnection with an election, they are guilty of "accepting a bribe, dishonesty or malfeasance". Malfeasance means misconduct or wrongoing, especially by a public official.
I don't think there can be any doubt that paying a person money in exchange for a vote is malfeasance. While I have not had time to do much research on the matter, there is also the possibility that the Criminal Code of Canada and/or the Elections Act may have rules against vote-buying as well.
Therefore, the Indian Act, and not tradition, governs Indian Act elections like those held in Burnt Church. Even if it didn't, Mi'kmaq people did not traditionally vote for their leaders and therefore the claim that vote-buying or "giving gifts of money" for votes is unfounded. I invite anyone who has researched the history of Mi'kmaq people to show me research which confirms that it is our tradition to both hold elections and to buy votes.
For Mr. Augustine to make such claims is irresponsible. It is an embarassment to the organization he represents, the Assembly of First Nations, and to the Mi'kmaq and Maliseet First Nations of the Atlantic Region that he represents. Mr. Augustine should not have said anything about the matter at all as it is being investigated by the RCMP.
I think what Mr. Augustine said on public TV does more harm for First Nations in this country who have enough unfounded allegations to defend, than does an isolated incident of vote-buying.
Mr. Augustine should resign from his position as AFN Regional Vice Chief and if he does not, the National Chief Shawn Atleo should fire him - no different than Canada firing one of its Ministers for misconduct. Mr. Augustine should also apologize for making the unfounded claim that it is part of Mi'kmaq tradition to buy votes.
I do hope that the RCMP investigate the matter in Burnt Church and if individuals are found guilty, that they resign. That way, the community can move forward to ensure these things don't happen again.
Thursday, May 27, 2010
Wednesday, May 26, 2010
Bill C-3 Debates of May 25, 2010
This blog is a summary of my initial reaction to the debates on Bill C-3 that took place in the House on Tuesday, May 25, 2010. It is quite clear to me that there is a huge divide between the unanimous voices of Aboriginal peoples on this issue and that of the government. Even the opposition parties have noted the rare unanimity of opinion on this issue. What follows are some of the main items that Canada is using to try to justify passing this Bill:
(1) The Members of Parliament (MPs) must pass Bill C-3 as there is a strict court-imposed deadline of July 1, 2010.
As has already been pointed out by numerous witnesses and the government itself, the court of appeal had already indicated a willingness to grant a longer deadline to amend the Act as it noted the complexity of the Act.
If Canada did seek an extension, they would still be well within the norm of 12-24 months given by the Supreme Court of Canada for amendments.
(2) The government did extensive "consultations" with the National Aboriginal Organizations and others on Bill C-3.
There was in fact NO consultations. There was only, what Canada referred to as "engagement" sessions. In fact, when INAC officials did their presentation to the Congress of Aboriginal Peoples Annual General Meeting in 2009, they were asked directly if this amounted to consultation. The emphatic answer from INAC officials was "No".
Moreover, there was no money provided to First Nations or Aboriginal groups to "consult" on Bill C-3 with their members; there was no full disclosure of key information and documents; nor was there an assessment of the pros and cons of Bill C-3 provided.
The government's "engagement process" was simply telling a few select Aboriginal groups what would happen and the government did not address the legitimate concerns presented by those groups or the individuals, like myself or Sharon McIvor who also put our concerns in writing.
Had these few meetings been legitimate consultations as outlined in Supre Court of Canada cases like Haida, Taku and Mikisew Cree, the government would have been legally obligated to consult (not engage) with all First Nations and groups impacted by the Bill, and accommodate (not ignore) their legitimate concerns.
If you read CAP's submission during the engagement process (on their website), they highlight the fact that this engagement process was not consultation. The Assembly of First Nations took a similar position.
(3) 45, 000 people will not get to be registered if we dont pass this Bill.
The government itself claims that it cannot do any costing on this Bill because it cannot determine how many people will actually apply for and be granted status. If it can't do that, then it can't use 45,000 as the number of people who won't get status if the bill doesn't pass. The government can't have it both ways - either it's 45,000 and cost that out, or its not.
The issue is not even that these individuals won't be registered; it is that there will be a small delay in their registration until the discrimination issue is properly addressed in a more thought-out amendment. I doubt that any potential registrant would mind a delay of several months if they knew that their brothers, sisters, cousins and children will finally be included in registration.
I, personally, stand to gain from Bill C-3 by being registered as a section 6(2) Indian for the first time. However, I am not about to make a deal with the devil for my own registration at the cost of my children's registration. I only want to be registered when my children can be as well.
Gender discrimination is not resolved if only some people get a benefit - one can't even say that gender discrimination is partially resolved - there is no such thing. Gender discrimination is either eliminated or it is not.
(4) If we dont pass the Bill, 2,000 to 3,000 people will not be registered in British Columbia this year.
First of all, I would challenge this number. I invite any individual to e-mail INAC and ask them for a list of how many people are registered in BC each year over the last 5 years. Then I would ask them to break those registrations down into which section each person was registered under. I think you will see that the vast majority of people are now registered under sections 6(1)(f) and 6(2), both sections of which are NOT affected by the McIvor appeal case.
So, even if Canada could not get a court extension, which they should be trying to do now; a delay of several months to a year would impact only a few hundred registrations and only for a short time and only in BC. Everywhere else in Canada would not be affected by this delay.
I think the minor delay for a few hundred people in BC to ensure Bill C-3 finally eliminates gender discrimination, is a reasonable balance between the immediate needs of those few hundred individuals and the equality rights for thousands of Indian women and their descendants all across the country who suffer from continued exclusion.
(5) It is absolutely necessary to re-include section 9 in Bill C-3 so that Indian women are not fooled into thinking they have a legal right to be compensated for their exclusion from registration based on their gender.
Does that sound right to anyone? I mean even writing it felt ridiculous. Canada has to setp up to the plate and register the descendants of Indian women and finally compensate them for what they have lost. The harms they suffered are equal to those who attended residential schools (aside from the physical aspect) and based on the same assimilatory policies for which Canada has already apologized.
Another argument they raised in debate is that section 9 is necessary to protect First Nations. If the government is legitimately concerned about First Nations liability, they could amend section 9 to only protect First Nations liability and only for status issues.
We all know that this is about protecting Canada from liability for wilful discrimination which continues. By having that provision the government will be able to delay addressing the rest of gender discrimination as long as they deem necessary knowing that they are not liable for the harms suffered by Indian women and their descendants.
(6) We should pass Bill C-3 as-is because the joint process will take care of the other issues.
Where is the commitment for funding for any First Nation or their representative groups to participate in such a joint process? Has anyone received a penny?
Where is a terms of reference for this joint process? Who will direct this process and will it have measurable deliverables?
Where is a committment to deal with specific issues like unstated paternity and illegitimate siblings? Where is the commitment to deal with band membership?
There is no commitment on any of these essential points, just like there was no real commitment with the repeal of section 67 of the CHRA, despite promises to the contrary.
This joint process was meant to be a carrot to get agreement by budget-strapped National Aboriginal organizations who are at the mercy of their funder (the government) to pass an otherwise unacceptable bill.
This bill does not address McIvor even in the narrowest terms because Double Mother Clause descendants still have better status than the descendants of Indian women who married out. It is as plain and simple as that.
Bill C-3 does not address gender discrimination because it cannot be addressed in part. If the elimination of gender discrimination would mean that 100,000 people would be registered, then a bill which would register 20,000, 30,000 or 45,000 people, does not address gender discrimination.
We all see through this "charade", as so aptly put by MP Todd Russell, and we need to support Indian women and their equality rights by voting against the bill.
In the end, I think the majority of Aboriginal peoples and their organizations would gladly accept a delay in addressing registration if it meant we addressed gender discrimination in full.
Canada now must live up to its fiduciary and other legal duties and obligations towards Aboriginal peoples and act in a way that lives up to the honour of the Crown. My children and I are counting on Canada to finally eliminate gender discrimination against Indian women and their descendants. I am willing to hold off on obtaining my own status to ensure this happens for my children.
(1) The Members of Parliament (MPs) must pass Bill C-3 as there is a strict court-imposed deadline of July 1, 2010.
As has already been pointed out by numerous witnesses and the government itself, the court of appeal had already indicated a willingness to grant a longer deadline to amend the Act as it noted the complexity of the Act.
If Canada did seek an extension, they would still be well within the norm of 12-24 months given by the Supreme Court of Canada for amendments.
(2) The government did extensive "consultations" with the National Aboriginal Organizations and others on Bill C-3.
There was in fact NO consultations. There was only, what Canada referred to as "engagement" sessions. In fact, when INAC officials did their presentation to the Congress of Aboriginal Peoples Annual General Meeting in 2009, they were asked directly if this amounted to consultation. The emphatic answer from INAC officials was "No".
Moreover, there was no money provided to First Nations or Aboriginal groups to "consult" on Bill C-3 with their members; there was no full disclosure of key information and documents; nor was there an assessment of the pros and cons of Bill C-3 provided.
The government's "engagement process" was simply telling a few select Aboriginal groups what would happen and the government did not address the legitimate concerns presented by those groups or the individuals, like myself or Sharon McIvor who also put our concerns in writing.
Had these few meetings been legitimate consultations as outlined in Supre Court of Canada cases like Haida, Taku and Mikisew Cree, the government would have been legally obligated to consult (not engage) with all First Nations and groups impacted by the Bill, and accommodate (not ignore) their legitimate concerns.
If you read CAP's submission during the engagement process (on their website), they highlight the fact that this engagement process was not consultation. The Assembly of First Nations took a similar position.
(3) 45, 000 people will not get to be registered if we dont pass this Bill.
The government itself claims that it cannot do any costing on this Bill because it cannot determine how many people will actually apply for and be granted status. If it can't do that, then it can't use 45,000 as the number of people who won't get status if the bill doesn't pass. The government can't have it both ways - either it's 45,000 and cost that out, or its not.
The issue is not even that these individuals won't be registered; it is that there will be a small delay in their registration until the discrimination issue is properly addressed in a more thought-out amendment. I doubt that any potential registrant would mind a delay of several months if they knew that their brothers, sisters, cousins and children will finally be included in registration.
I, personally, stand to gain from Bill C-3 by being registered as a section 6(2) Indian for the first time. However, I am not about to make a deal with the devil for my own registration at the cost of my children's registration. I only want to be registered when my children can be as well.
Gender discrimination is not resolved if only some people get a benefit - one can't even say that gender discrimination is partially resolved - there is no such thing. Gender discrimination is either eliminated or it is not.
(4) If we dont pass the Bill, 2,000 to 3,000 people will not be registered in British Columbia this year.
First of all, I would challenge this number. I invite any individual to e-mail INAC and ask them for a list of how many people are registered in BC each year over the last 5 years. Then I would ask them to break those registrations down into which section each person was registered under. I think you will see that the vast majority of people are now registered under sections 6(1)(f) and 6(2), both sections of which are NOT affected by the McIvor appeal case.
So, even if Canada could not get a court extension, which they should be trying to do now; a delay of several months to a year would impact only a few hundred registrations and only for a short time and only in BC. Everywhere else in Canada would not be affected by this delay.
I think the minor delay for a few hundred people in BC to ensure Bill C-3 finally eliminates gender discrimination, is a reasonable balance between the immediate needs of those few hundred individuals and the equality rights for thousands of Indian women and their descendants all across the country who suffer from continued exclusion.
(5) It is absolutely necessary to re-include section 9 in Bill C-3 so that Indian women are not fooled into thinking they have a legal right to be compensated for their exclusion from registration based on their gender.
Does that sound right to anyone? I mean even writing it felt ridiculous. Canada has to setp up to the plate and register the descendants of Indian women and finally compensate them for what they have lost. The harms they suffered are equal to those who attended residential schools (aside from the physical aspect) and based on the same assimilatory policies for which Canada has already apologized.
Another argument they raised in debate is that section 9 is necessary to protect First Nations. If the government is legitimately concerned about First Nations liability, they could amend section 9 to only protect First Nations liability and only for status issues.
We all know that this is about protecting Canada from liability for wilful discrimination which continues. By having that provision the government will be able to delay addressing the rest of gender discrimination as long as they deem necessary knowing that they are not liable for the harms suffered by Indian women and their descendants.
(6) We should pass Bill C-3 as-is because the joint process will take care of the other issues.
Where is the commitment for funding for any First Nation or their representative groups to participate in such a joint process? Has anyone received a penny?
Where is a terms of reference for this joint process? Who will direct this process and will it have measurable deliverables?
Where is a committment to deal with specific issues like unstated paternity and illegitimate siblings? Where is the commitment to deal with band membership?
There is no commitment on any of these essential points, just like there was no real commitment with the repeal of section 67 of the CHRA, despite promises to the contrary.
This joint process was meant to be a carrot to get agreement by budget-strapped National Aboriginal organizations who are at the mercy of their funder (the government) to pass an otherwise unacceptable bill.
This bill does not address McIvor even in the narrowest terms because Double Mother Clause descendants still have better status than the descendants of Indian women who married out. It is as plain and simple as that.
Bill C-3 does not address gender discrimination because it cannot be addressed in part. If the elimination of gender discrimination would mean that 100,000 people would be registered, then a bill which would register 20,000, 30,000 or 45,000 people, does not address gender discrimination.
We all see through this "charade", as so aptly put by MP Todd Russell, and we need to support Indian women and their equality rights by voting against the bill.
In the end, I think the majority of Aboriginal peoples and their organizations would gladly accept a delay in addressing registration if it meant we addressed gender discrimination in full.
Canada now must live up to its fiduciary and other legal duties and obligations towards Aboriginal peoples and act in a way that lives up to the honour of the Crown. My children and I are counting on Canada to finally eliminate gender discrimination against Indian women and their descendants. I am willing to hold off on obtaining my own status to ensure this happens for my children.
Friday, May 21, 2010
Copy of Letter sent to Minister of INAC asking Canada to Amend Bill C-3
Dear Minister Strahl;
RE: Bill C-3
I understand that next week the House will start debate at the report stage of Bill C-3. Please accept this letter as my official request for you to make meaningful amendments to the bill in order to finally end gender discrimination.
Barring substantive amendments, I would ask that you withdraw Bill C-3 as currently drafted and re-introduce a bill that better reflects the values and principles of our Charter of Rights and Freedoms, our Constitution, and our country as a whole. If you cannot withdraw the Bill for some procedural reason, then I ask that your government vote against it and start over.
Had your government been open to considering reasonable amendments to the Bill in order to address gender discrimination, we, those affected by gender discrimination, would not be put in the position of having to find solutions to the legislative mess created by Canada. The duty always seems to be placed back on the excluded to find ways to make inclusion financially, politically and legally acceptable. This is an unfair burden on Indian women and their descendants who are already disadvantaged from their exclusion.
Indian women and their descendants had no power over which to protect themselves against the assimilationist goals of Canada in 1867, 1951, 1985 or 2010. Furthermore, despite being asked to appear as witnesses and provide more than ample proof that the Indian Act still discriminates against Indian women and their descendants before the Standing Committee, Canada has proceeded as though our unanimous voices do not count in this process. This makes a mockery of the entire process.
The honour of the Crown requires that Canada do more than participate in a superficial "engagement" process which does not consider and take into account our voices, our legitimate concerns and interests and our overall legal rights. By denying our voices, you violate the most basic tenet of the very democracy that Canada holds out as the basis of their nation.
It is time that Canada stopped treating us like wards and started to hear and act on our voices. It is long past the time to stop treating us like museum oddities that are slowly disappearing with time. It is time to stop treating us as though we are only a "race" of people that only deserve a voice if we meet complex, biological calculations of Indian blood. It is time to stop treating us as though we are frozen in time and that anyone who does not wear feathers, obtain a moderate livelihood from hunting or live on a reserve are not entitled to call themselves "Indians".
We did not go away when you took our lands, controlled our resources, outlawed our customs, dishonored our treaties, sent us to residential schools, enfranchised our women and children, or bullied us into poverty. We are here to stay, regardless of the political backlash we may endure from standing up for our rights. Why not put action behind your words and start a new relationship with Aboriginal peoples?
We have a duty to our ancestors who suffered at the hands of settlers and colonial governments to protect our rights, to protect those rights for our future generations seven generations into the future. Supporting yet another amendment to the Indian Act which will not only NOT address the minimal discrimination found in the McIvor appeal case as between double mother clause and section 12(1)(b) reinstatees, but will create new forms of discrimination is irresponsible, unjust and shameful.
Some may pose the question as to whether some amendment is better than no amendment. I would highlight the long, hard struggle of Sharon McIvor over the last 25 years after the last amendment to the Indian Act. Bill C-31 may have granted limited entitlements to limited numbers of people back then, but it created new forms of discrimination at a time when we all knew better and when our Charter asked us to do better. I do not believe that sacrificing the rights of large numbers of individuals for the immediate gratification of a few is a fair trade. Canada has the power to enact an OIC which treats us like Indians while amendments are made to the Act. Canada did it for the Innu and can easily do it for Indian women and their descendants - it's a matter of choice.
Canada has an opportunity to finally show some good faith, to act on both its honour and its legal duties and obligations to take the unanimous voices heard before the Standing Committee on Bill C-3, and make an amendment that finally addresses all gender discrimination in the Indian Act. This is not to say that the Indian Act is the ultimate solution. In fact, most consider other alternatives like First Nation citizenship to be the longer term solution. However, we cannot in good faith allow the Act to continue to discriminate against Indian women and their descendants while we take the next 20-30-20-100 years to work out self-government arrangements.
I ask your government and all the opposition parties to either agree to make substantive amendments to Bill C-3 as it currently reads, or if that is not possible, withdraw the bill, or if that is not possible then vote against it and start over with an amendment that finally grants Indian women and their descendants real substantive equality.
I trust you will consider my comments and concerns and implement my recommendations as noted above. Merci beaucoup de votre consideration.
Sincerely;
(original signed and faxed)
Dr. Pamela D. Palmater, and on behalf of my children and our heirs and heirs forever.
CC: Todd Russell, MP (on behalf of Liberals)
Jean Crowder, MP (on behalf of NDP)
Marc Lemay, MP (on behalf of BQ)
RE: Bill C-3
I understand that next week the House will start debate at the report stage of Bill C-3. Please accept this letter as my official request for you to make meaningful amendments to the bill in order to finally end gender discrimination.
Barring substantive amendments, I would ask that you withdraw Bill C-3 as currently drafted and re-introduce a bill that better reflects the values and principles of our Charter of Rights and Freedoms, our Constitution, and our country as a whole. If you cannot withdraw the Bill for some procedural reason, then I ask that your government vote against it and start over.
Had your government been open to considering reasonable amendments to the Bill in order to address gender discrimination, we, those affected by gender discrimination, would not be put in the position of having to find solutions to the legislative mess created by Canada. The duty always seems to be placed back on the excluded to find ways to make inclusion financially, politically and legally acceptable. This is an unfair burden on Indian women and their descendants who are already disadvantaged from their exclusion.
Indian women and their descendants had no power over which to protect themselves against the assimilationist goals of Canada in 1867, 1951, 1985 or 2010. Furthermore, despite being asked to appear as witnesses and provide more than ample proof that the Indian Act still discriminates against Indian women and their descendants before the Standing Committee, Canada has proceeded as though our unanimous voices do not count in this process. This makes a mockery of the entire process.
The honour of the Crown requires that Canada do more than participate in a superficial "engagement" process which does not consider and take into account our voices, our legitimate concerns and interests and our overall legal rights. By denying our voices, you violate the most basic tenet of the very democracy that Canada holds out as the basis of their nation.
It is time that Canada stopped treating us like wards and started to hear and act on our voices. It is long past the time to stop treating us like museum oddities that are slowly disappearing with time. It is time to stop treating us as though we are only a "race" of people that only deserve a voice if we meet complex, biological calculations of Indian blood. It is time to stop treating us as though we are frozen in time and that anyone who does not wear feathers, obtain a moderate livelihood from hunting or live on a reserve are not entitled to call themselves "Indians".
We did not go away when you took our lands, controlled our resources, outlawed our customs, dishonored our treaties, sent us to residential schools, enfranchised our women and children, or bullied us into poverty. We are here to stay, regardless of the political backlash we may endure from standing up for our rights. Why not put action behind your words and start a new relationship with Aboriginal peoples?
We have a duty to our ancestors who suffered at the hands of settlers and colonial governments to protect our rights, to protect those rights for our future generations seven generations into the future. Supporting yet another amendment to the Indian Act which will not only NOT address the minimal discrimination found in the McIvor appeal case as between double mother clause and section 12(1)(b) reinstatees, but will create new forms of discrimination is irresponsible, unjust and shameful.
Some may pose the question as to whether some amendment is better than no amendment. I would highlight the long, hard struggle of Sharon McIvor over the last 25 years after the last amendment to the Indian Act. Bill C-31 may have granted limited entitlements to limited numbers of people back then, but it created new forms of discrimination at a time when we all knew better and when our Charter asked us to do better. I do not believe that sacrificing the rights of large numbers of individuals for the immediate gratification of a few is a fair trade. Canada has the power to enact an OIC which treats us like Indians while amendments are made to the Act. Canada did it for the Innu and can easily do it for Indian women and their descendants - it's a matter of choice.
Canada has an opportunity to finally show some good faith, to act on both its honour and its legal duties and obligations to take the unanimous voices heard before the Standing Committee on Bill C-3, and make an amendment that finally addresses all gender discrimination in the Indian Act. This is not to say that the Indian Act is the ultimate solution. In fact, most consider other alternatives like First Nation citizenship to be the longer term solution. However, we cannot in good faith allow the Act to continue to discriminate against Indian women and their descendants while we take the next 20-30-20-100 years to work out self-government arrangements.
I ask your government and all the opposition parties to either agree to make substantive amendments to Bill C-3 as it currently reads, or if that is not possible, withdraw the bill, or if that is not possible then vote against it and start over with an amendment that finally grants Indian women and their descendants real substantive equality.
I trust you will consider my comments and concerns and implement my recommendations as noted above. Merci beaucoup de votre consideration.
Sincerely;
(original signed and faxed)
Dr. Pamela D. Palmater, and on behalf of my children and our heirs and heirs forever.
CC: Todd Russell, MP (on behalf of Liberals)
Jean Crowder, MP (on behalf of NDP)
Marc Lemay, MP (on behalf of BQ)
Wednesday, May 12, 2010
Current Status of Bill C-3
Bill C-3 - An An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs)(Gender Equity in Indian Registration Act).
This Bill was introduced in the House on March 11, 2010. Debates at second reading were on March 26 & 29, 2010. The Bill was then studied at the Standing Committee on Aboriginal Affairs and Northern Development (AAON) from April 1st-29th, 2010.
During Committee, Indian and Northern Affairs Canada, Justice Canada and Aboriginal groups and individuals gave evidence about Bill C-3 and how it would or would not address gender inequality under the registration provisions of the Indian Act in response to the McIvor case.
Most of the witnesses recommended amendments to the Bill as drafted. The Committee was struck by the unanimity of the witnesses on the point that Bill C-3 as originally drafted not only does not remedy gender inequality within the Indian Act, it does not even address the McIvor case. Therefore, the Committee made several amendments to Bill C-3 in order to more fully address gender inequality for Indian women and their descendants.
The Committee submitted their report to the House with a revised version of Bill C-3 that contained the amendments. As a result, the Conservatives made a motion asking the Speaker of the House to rule the amendments out of order. Submissions were made by the parties on this point in the House arguing that the Speaker should not rule these amendments out of order.
Howver, on Tuesday, May 11, 2010, the Speaker of the House ruled the amendments relating to status and the title of the Bill out of order and ordered that the Bill be reprinted. The amendments that remain within the Bill is the removal of section 9 (the clause which granted Canada and the Bands immunity from claims) and the new section advanced by the Bloc which requires INAC to provide a report in two years.
The next stage is the official report stage. This cannot happen until at least the week of May 24 because the House has a break next week. At the report stage, the House can consider the Bill as it is reprinted.
They also have a chance to make further amendments to the Bill. However, it is not possible to reintroduce the same amendments that were ruled out of order. Similarly, even if different amendments are suggested, it is still possible for the Conservatives to ask the Speaker of the House to rule them out of order.
It therefore extremely important that the opposition parties work together to select strategic amendments that will address gender inequality within the Indian Act, but ensure that what they advance is not so large as to run the risk of being considered out of scope. I am hopeful that the parties will continue to work with Aboriginal groups and individuals to achieve this goal.
Once the Third Reading has been completed, the Bill, including any additional amendments, will go to the Senate to start the process all over again from the Senate side of the House.
Several of the submissions made by the witnesses can be found on AFN's website. I have also included various submissions on my website - http://www.nonstatusindian.com/ under Current Issues and Bill C-3.
This Bill was introduced in the House on March 11, 2010. Debates at second reading were on March 26 & 29, 2010. The Bill was then studied at the Standing Committee on Aboriginal Affairs and Northern Development (AAON) from April 1st-29th, 2010.
During Committee, Indian and Northern Affairs Canada, Justice Canada and Aboriginal groups and individuals gave evidence about Bill C-3 and how it would or would not address gender inequality under the registration provisions of the Indian Act in response to the McIvor case.
Most of the witnesses recommended amendments to the Bill as drafted. The Committee was struck by the unanimity of the witnesses on the point that Bill C-3 as originally drafted not only does not remedy gender inequality within the Indian Act, it does not even address the McIvor case. Therefore, the Committee made several amendments to Bill C-3 in order to more fully address gender inequality for Indian women and their descendants.
The Committee submitted their report to the House with a revised version of Bill C-3 that contained the amendments. As a result, the Conservatives made a motion asking the Speaker of the House to rule the amendments out of order. Submissions were made by the parties on this point in the House arguing that the Speaker should not rule these amendments out of order.
Howver, on Tuesday, May 11, 2010, the Speaker of the House ruled the amendments relating to status and the title of the Bill out of order and ordered that the Bill be reprinted. The amendments that remain within the Bill is the removal of section 9 (the clause which granted Canada and the Bands immunity from claims) and the new section advanced by the Bloc which requires INAC to provide a report in two years.
The next stage is the official report stage. This cannot happen until at least the week of May 24 because the House has a break next week. At the report stage, the House can consider the Bill as it is reprinted.
They also have a chance to make further amendments to the Bill. However, it is not possible to reintroduce the same amendments that were ruled out of order. Similarly, even if different amendments are suggested, it is still possible for the Conservatives to ask the Speaker of the House to rule them out of order.
It therefore extremely important that the opposition parties work together to select strategic amendments that will address gender inequality within the Indian Act, but ensure that what they advance is not so large as to run the risk of being considered out of scope. I am hopeful that the parties will continue to work with Aboriginal groups and individuals to achieve this goal.
Once the Third Reading has been completed, the Bill, including any additional amendments, will go to the Senate to start the process all over again from the Senate side of the House.
Several of the submissions made by the witnesses can be found on AFN's website. I have also included various submissions on my website - http://www.nonstatusindian.com/ under Current Issues and Bill C-3.
Monday, April 19, 2010
Excerpts of My Presentation to the Standing Committee on Bill C-3
What follows is an excerpt from my presentation that I will be delivering to the Standing Committee on Aboriginal Affairs which is studying a draft of Bill C-3 - Gender Equity in Indian Registration Act. Once I make the presentation, I will post my entire presentation online on my website: www.nonstatusindian.com.
Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for wide-spread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon.
This situation is coupled with the fact that no additional funding has been identified for bands based on their increased membership numbers. This could result in bands feeling that they do not have sufficient resources to accommodate all their members and may amend or create band membership codes which specifically exclude those affected by Bill C-3. Canada often blames Aboriginal peoples for not being of one mind on these issues.
How quickly Canada forgets that this registration system was not only imposed upon us, but we were never consulted about what we wanted and the decision-making power rests solely with Canada. Aboriginal peoples have been living under the dark cloud of the Indian Act for over 130 years. How could Canada expect any result other than exactly what the Indian Act was designed to do - ensure that we were dependent, divided, and without our beliefs guide us. It's time for Canada to right its wrongs. To do other than address all the gender (and other) discrimination could mean additional and significant delays in justice for Aboriginal women and children with regard to:
(i) equal access to status and band membership;
(ii) equal access to citizenship in self-government agreements;
(iii) equal access to beneficiary status under treaties (historic and modern);
(iv) equal access to beneficiary status under land claim agreements (specific and comprehensive);
(v) an equal political voice in their communities (as electors and/or nominees for chief and council); and
(vi) equal access to programs and services from Canada in relation to health, education, economic development, and tax supports;
(vii) equal access to band programs and services like education & training, headstart, on- reserve schooling, housing, and tax supports; and
(viii) equal access to elders, mentors, leaders, community members, land bases, cultural traditions, customs and practices, cultural events, and language training, etc.
Respecting our Constitution, Charter, CHRA, and international human rights instruments and norms means we no longer have the option to exclude Indian women and their descendants from their birth right on the basis of political compromise, administrative inconvenience, opposition to human rights or added costs. Canada has previously exercised its legislative jurisdiction to amend the Act much more broadly than the litigation required and there is no reason it can't do so again. Let's try to get it right this time - my children are counting on you to uphold Canada's commitment to gender equality and human rights both in the letter and in spirit.
Here are my recommendations with regards to Bill C-3:
(1) I believe that Canada should withdraw the Bill and redraft more appropriate legislation that deals with gender discrimination, in conjunction with Sharon McIvor and other Aboriginal technical experts from the AFN, NWAC, and CAP.
If this could not be done, then I would recommend the following:
(2) Make an amendment to section 2 of Bill C-3, by adding the words "or was born prior to April 17, 1985 and was a direct descendant of such a person" to section 6(1)(a) of the Indian Act, 1985;
(3) Delete sections 3 and 4 of Bill C-3 and any references to a new section 6(1)(c.1) of the Indian Act;
(4) A new section should be added before or after sections 7 and 8 of Bill C-3 that provide protections for Bill C-3 individuals with regards to band membership, especially for those born pre-1985;
(5) Section 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in relation to status;
(6) Adequate funding be provided to First Nations for band-delivered programs and services based on their increased membership numbers (if any) and funding to enable all bands to draft membership codes, to review their current band membership codes and make the necessary amendments to incorporate gender equality;
(7) Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate a process by which to compensate those affected by Bill C-3 (or some other form of the Bill) in the fairest, quickest manner possible;
(8) Additional legislation be drafted in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals to proactively address the remaining aspects of gender discrimination in the Indian Act; and
(9) That Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate the mandate, terms of reference, funding structures and deliverable objectives of the joint consultation process that will lead to further amendments dealing with the larger discrimination and jurisdiction issues under the Indian Act in the short term, and negotiate a similar process to engage in longer term solutions like modern treaties, self-government agreements and so forth.
Obviously my presentation contained a great deal more detail about what the actual problems were with Bill C-3, but this lets everyone know what I'm thinking in terms of go-forward solutions. Keep an eye on my website for my entire presentation which will be posted later on this week.
Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for wide-spread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon.
This situation is coupled with the fact that no additional funding has been identified for bands based on their increased membership numbers. This could result in bands feeling that they do not have sufficient resources to accommodate all their members and may amend or create band membership codes which specifically exclude those affected by Bill C-3. Canada often blames Aboriginal peoples for not being of one mind on these issues.
How quickly Canada forgets that this registration system was not only imposed upon us, but we were never consulted about what we wanted and the decision-making power rests solely with Canada. Aboriginal peoples have been living under the dark cloud of the Indian Act for over 130 years. How could Canada expect any result other than exactly what the Indian Act was designed to do - ensure that we were dependent, divided, and without our beliefs guide us. It's time for Canada to right its wrongs. To do other than address all the gender (and other) discrimination could mean additional and significant delays in justice for Aboriginal women and children with regard to:
(i) equal access to status and band membership;
(ii) equal access to citizenship in self-government agreements;
(iii) equal access to beneficiary status under treaties (historic and modern);
(iv) equal access to beneficiary status under land claim agreements (specific and comprehensive);
(v) an equal political voice in their communities (as electors and/or nominees for chief and council); and
(vi) equal access to programs and services from Canada in relation to health, education, economic development, and tax supports;
(vii) equal access to band programs and services like education & training, headstart, on- reserve schooling, housing, and tax supports; and
(viii) equal access to elders, mentors, leaders, community members, land bases, cultural traditions, customs and practices, cultural events, and language training, etc.
Respecting our Constitution, Charter, CHRA, and international human rights instruments and norms means we no longer have the option to exclude Indian women and their descendants from their birth right on the basis of political compromise, administrative inconvenience, opposition to human rights or added costs. Canada has previously exercised its legislative jurisdiction to amend the Act much more broadly than the litigation required and there is no reason it can't do so again. Let's try to get it right this time - my children are counting on you to uphold Canada's commitment to gender equality and human rights both in the letter and in spirit.
Here are my recommendations with regards to Bill C-3:
(1) I believe that Canada should withdraw the Bill and redraft more appropriate legislation that deals with gender discrimination, in conjunction with Sharon McIvor and other Aboriginal technical experts from the AFN, NWAC, and CAP.
If this could not be done, then I would recommend the following:
(2) Make an amendment to section 2 of Bill C-3, by adding the words "or was born prior to April 17, 1985 and was a direct descendant of such a person" to section 6(1)(a) of the Indian Act, 1985;
(3) Delete sections 3 and 4 of Bill C-3 and any references to a new section 6(1)(c.1) of the Indian Act;
(4) A new section should be added before or after sections 7 and 8 of Bill C-3 that provide protections for Bill C-3 individuals with regards to band membership, especially for those born pre-1985;
(5) Section 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in relation to status;
(6) Adequate funding be provided to First Nations for band-delivered programs and services based on their increased membership numbers (if any) and funding to enable all bands to draft membership codes, to review their current band membership codes and make the necessary amendments to incorporate gender equality;
(7) Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate a process by which to compensate those affected by Bill C-3 (or some other form of the Bill) in the fairest, quickest manner possible;
(8) Additional legislation be drafted in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals to proactively address the remaining aspects of gender discrimination in the Indian Act; and
(9) That Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate the mandate, terms of reference, funding structures and deliverable objectives of the joint consultation process that will lead to further amendments dealing with the larger discrimination and jurisdiction issues under the Indian Act in the short term, and negotiate a similar process to engage in longer term solutions like modern treaties, self-government agreements and so forth.
Obviously my presentation contained a great deal more detail about what the actual problems were with Bill C-3, but this lets everyone know what I'm thinking in terms of go-forward solutions. Keep an eye on my website for my entire presentation which will be posted later on this week.
Thursday, March 25, 2010
Bill C-3 Creates More Discrimination than it Remedies
As with all my blogs, the contents are my own personal views and should never be taken as legal advice.
In my last blog, I provided some of my concerns with regards to Bill C-3 Gender Equity in Indian Registration Act which was introduced on March 11, 2010. The purpose of this blog will be to review Bill C-3 in much more detail. However, readers should be aware that this Bill is not yet law and must go through several more stages before it even has a chance at being law.
First it is introduced in the House of Commons and given its first reading, which is really just a presentation of the Bill - like what Minister Strahl did with Bill C-3. It must then go through a second reading (where the principle of the Bill is debated) and then referred to committee for study. It is at this stage that the committee will hear witnesses and comments about each section of the Bill. The next stage is the report stage where amendments can be made and then this is followed by the third and final reading. If the Bill is passed by the House of Commons then it is sent to Senate where the process is repeated. Assuming that it passes through the Senate, then the Governor General can give the Bill "Royal Assent" and will become law on the day of assent unless the Bill says otherwise.
There is still some time before this Bill becomes law, so it is very important that we all submit our comments and views about it to our Members of Parliament (MPs), Senators, Minister Strahl, our Aboriginal representative organizations, Liberal Aboriginal Affairs Critic, Todd Russell, and any other group or organization that you feel will bring the message forward on your behalf. I have already sent my letter to Minister Strahl and this blog will provide a brief overview of some of my comments/concerns.
First of all, my providing comments to the Minister of Indian and Northern Affairs Canada (INAC) does not equate with acceptance or agreement with Bill C-3 or its amendments. It is my opinion that Canada does NOT have the jurisdiction to determine our identities - legally, culturally, politically or otherwise. However, I realize that practically speaking, the Indian Act will be amended whether I agree or not and I would rather have my input into those changes than not. That being said, I do not condone such a limited amendment as that presented in Bill C-3 which clearly does NOT address all of the blatant gender discrimination in the status provisions of the Indian Act. This problem is only transported into the band membership rules as a result.
In numerous discussions with other lawyers and community members, I have identified at least three very specific problems with the proposed amendments:
(1) Section 6(1)(c.1)(iii) contains awkward, confusing wording that creates a great deal
of uncertainty and ambiguity about what this section is meant to accomplish;
(2) Section 6(1)(c.1)(iv) contains new, additional criteria that is discriminatory, illogical, counter to how status is normally transmitted, and completely unnecessary in order to effect a proper gender equity remedy; and
(3) Section 9 contains an overly broad, offensive and unjust insulation from liability for Canada and the bands, for Canada's role in creating and perpetuating gender discrimination against Indian women who married out and their descendants.
I will deal with each of the above concerns separately and summarize my recommendations at the end.
(1) Section 6(1)(c.1)(iii) specifically provides as follows:
(iii) was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and...
This section is awkwardly worded and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from?
I would recommend that section 6(1)(c.1)(iii) be amended for greater clarity with an explanatory note that very clearly specifies what it is meant to accomplish and how.
(2) Section 6(1)(c.1)(iv) provides as follows:
(iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;
This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.
This is both illogical and discriminatory. It is illogical because it does not reflect either the trial court's or the Court of Appeal's decision in McIvor. It is discriminatory because it creates new, inequitable distinctions between the sibling children of Indian women who married out. The problem can be seen in the following way:
(1) If the children of Indian women who married out have Non-Status Indian children (or disentitled children), their children can only be registered under section 6(2) and cannot share in the same identity as their parent; will not be able to transmit status to their children in their own right; and will be excluded from membership in bands that exclude section 6(2) Indians or their equivalent.
Despite the fact that the section 6(2) parent will become a section 6(1)(c.1) Indian and therefore have a higher chance of becoming a band member, they suffer in the sense that they can't pass on equal identity and rights to their children and therefore their children have a higher chance of not being accepted in their community.
(2) On the other hand, if the section 6(2) parent had status Indian children, then these section 6(1) Indian children have a higher chance of becoming band members than their section 6(2) parent who will remain as a section 6(2) Indian.
In this way, the section 6(2) Indian parent will personally suffer for having had status Indian children, because they will not receive the Bill C-3 gender equity remedy solely because their children are status Indians.
The descendants of Indian women who married out seem to be punished time and again for not being able to manage the Indian Act's entitlement formula that is really designed to disentitle people. This is beyond unjust - it violates our inherent right to our Aboriginal identities and to be self-determining in our own individual and collective lives.
Canada is once again interfering with the most private and intimate part of our lives - how and when and with whom we decide to have relations - in order to limit and/or reduce the status Indian population.
Section 6(1)(c.1)(iv) ignores the gender discrimination imposed on the children of Indian women who married out and suggests that this discrimination skipped a generation and fell solely on the grandchildren and, as a result, only the grandchildren are entitled to a remedy.
What could possibly be the purpose of this section, but to limit as much as possible, the number of status Indians who will be entitled to band membership and to limit the overall number of Indians in the future?
I would recommend that section 6(1)(c.1)(iv) be deleted in its entirety. It is not necessary to achieve gender equity as a result of the McIvor case.
(3) Section 9 provides as follows:
9. For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty, or a council of a band for anything done or omitted to be done in good faith in the exercise of theirpowers or the performance of their duties, only because
(a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b) one of the person's parents is entitled to be registered under paragraph 6(1)(c.1) of the Indian Act, as enacted by subsection 2(3).
This section is an insult to Indian women and their descendants all over this country. Not only was Canada forced to make amendments to address gender inequality after fighting against the McIvor case for over 20 years; and not only has Canada proposed a very minimalist amendment; now Canada wants to ensure that it does not have to compensate the victims of gender discrimination?
When Bill C-31 was amended to reinstate Indian women who had married out, Canada denied compensation to Indian women who married out on the basis that the Charter of Rights and Freedoms was not in effect pre-85 and it argued that it could not be held liable for laws that were not in effect at the time.
However, the Charter has been in force for many decades since 1985 and Canada cannot now say they can't be held liable for discriminatory actions that took place well after the Charter was in force. To do otherwise is to perpetuate the very negative stereotypes against Indian women that McIvor (and others) fought against - that they are less worthy, less Aboriginal, and less able to transmit their Aboriginality to their children simply by virtue of being Aboriginal women.
Furthermore, findings of discrimination are based on effect, not on intention, and those victims that have suffered due to this discrimination deserve to be compensated - no less so that the victims of residential schools.
Prime Minister Harper acknowledged that the assimilatory foundation upon which the residential school policy was designed was wrong; he apologized to the victims on behalf of all Canadians; and ensured that the victims were compensated. Aside from the physical aspect of residential schools, Indian status has had the same harmful effects on Indians and especially Indian women, as residential schools. By discriminating against Indian women and their descendants, they have suffered separation from their communities, family divisions, loss of identity, culture, language and dignity. Furthermore, their continued lack of access to federal programs and services have greatly affect their quality of life and their overall chances in life.
By denying compensation to Indian women and their descendants for the same types of harms as were suffered in residential schools, Canada sends the message that Aboriginal women are somehow not deserved of redress or compensation for the harms suffered from gender discrimination created by Canada under the Indian Act.
If there was any doubt as to the continued discrimination against Indian women, even in this amendment meant to address gender inequity, one need only refer to the privileged and protected positions of status of Indian men and their non-Indian wives and descendants. Throughout this process, non-Indians have been and continue to be protected under the Indian Act simply because of their association with Indian men.
Non-Indian women who married Indian men gained status and benefits and non-Indian children were adopted and gained status. Not only did these non-Indians gain status, they were entitled to all the benefits, rights and interests that go with that status, including band membership, reserve residency, voting and running in band elections and a share of treaty and land claim benefits. The preservation of their status is guaranteed at every turn, where Indian women and their descendants must continually fight for it.
Yet, non-status Indian children who are Aboriginal by birth, identity and culture, were excluded on the basis of gender discrimination which was known by Canada to be discriminatory and which has since been found to be discriminatory. Even with this minimalistic and highly problematic Bill C-3, there still won't be gender equality between Indian men and women.
The majority of parents struggling with poor socio-economic conditions in Aboriginal communities are single Indian mothers. The majority of off-reserve Aboriginal people suffering from poor socio-economic conditions are the descendants of Indian women who married out. Canada has publically stated that access to educational opportunities is the key to improving life for Aboriginal peoples. How many Indian women and their descendants could have gone to university to make a better life for themselves, their children, their families and communities had they been registered?
I would recommend that section 9 either be deleted in its entirety or amended to provide limited protections for the bands and only in relation to the determination of status.
Summary of Recommendations:
(1) Section 6(1)(c.1)(iii) should be amended for greater clarity with an explanatory note as to what it is meant to accomplish;
(2) Section 6(1)(c.1)(iv) should be deleted in its entirety; and
(3) Section 9 should either be deleted in its entirety, or amended to provide limited protection for the bands in regards to status only.
I hope that you will all consider my comments and offer your own feedback to our elected leaders so that gender discrimination is not perpetuated, but is finally addressed.
In my last blog, I provided some of my concerns with regards to Bill C-3 Gender Equity in Indian Registration Act which was introduced on March 11, 2010. The purpose of this blog will be to review Bill C-3 in much more detail. However, readers should be aware that this Bill is not yet law and must go through several more stages before it even has a chance at being law.
First it is introduced in the House of Commons and given its first reading, which is really just a presentation of the Bill - like what Minister Strahl did with Bill C-3. It must then go through a second reading (where the principle of the Bill is debated) and then referred to committee for study. It is at this stage that the committee will hear witnesses and comments about each section of the Bill. The next stage is the report stage where amendments can be made and then this is followed by the third and final reading. If the Bill is passed by the House of Commons then it is sent to Senate where the process is repeated. Assuming that it passes through the Senate, then the Governor General can give the Bill "Royal Assent" and will become law on the day of assent unless the Bill says otherwise.
There is still some time before this Bill becomes law, so it is very important that we all submit our comments and views about it to our Members of Parliament (MPs), Senators, Minister Strahl, our Aboriginal representative organizations, Liberal Aboriginal Affairs Critic, Todd Russell, and any other group or organization that you feel will bring the message forward on your behalf. I have already sent my letter to Minister Strahl and this blog will provide a brief overview of some of my comments/concerns.
First of all, my providing comments to the Minister of Indian and Northern Affairs Canada (INAC) does not equate with acceptance or agreement with Bill C-3 or its amendments. It is my opinion that Canada does NOT have the jurisdiction to determine our identities - legally, culturally, politically or otherwise. However, I realize that practically speaking, the Indian Act will be amended whether I agree or not and I would rather have my input into those changes than not. That being said, I do not condone such a limited amendment as that presented in Bill C-3 which clearly does NOT address all of the blatant gender discrimination in the status provisions of the Indian Act. This problem is only transported into the band membership rules as a result.
In numerous discussions with other lawyers and community members, I have identified at least three very specific problems with the proposed amendments:
(1) Section 6(1)(c.1)(iii) contains awkward, confusing wording that creates a great deal
of uncertainty and ambiguity about what this section is meant to accomplish;
(2) Section 6(1)(c.1)(iv) contains new, additional criteria that is discriminatory, illogical, counter to how status is normally transmitted, and completely unnecessary in order to effect a proper gender equity remedy; and
(3) Section 9 contains an overly broad, offensive and unjust insulation from liability for Canada and the bands, for Canada's role in creating and perpetuating gender discrimination against Indian women who married out and their descendants.
I will deal with each of the above concerns separately and summarize my recommendations at the end.
(1) Section 6(1)(c.1)(iii) specifically provides as follows:
(iii) was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and...
This section is awkwardly worded and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from?
I would recommend that section 6(1)(c.1)(iii) be amended for greater clarity with an explanatory note that very clearly specifies what it is meant to accomplish and how.
(2) Section 6(1)(c.1)(iv) provides as follows:
(iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;
This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.
This is both illogical and discriminatory. It is illogical because it does not reflect either the trial court's or the Court of Appeal's decision in McIvor. It is discriminatory because it creates new, inequitable distinctions between the sibling children of Indian women who married out. The problem can be seen in the following way:
(1) If the children of Indian women who married out have Non-Status Indian children (or disentitled children), their children can only be registered under section 6(2) and cannot share in the same identity as their parent; will not be able to transmit status to their children in their own right; and will be excluded from membership in bands that exclude section 6(2) Indians or their equivalent.
Despite the fact that the section 6(2) parent will become a section 6(1)(c.1) Indian and therefore have a higher chance of becoming a band member, they suffer in the sense that they can't pass on equal identity and rights to their children and therefore their children have a higher chance of not being accepted in their community.
(2) On the other hand, if the section 6(2) parent had status Indian children, then these section 6(1) Indian children have a higher chance of becoming band members than their section 6(2) parent who will remain as a section 6(2) Indian.
In this way, the section 6(2) Indian parent will personally suffer for having had status Indian children, because they will not receive the Bill C-3 gender equity remedy solely because their children are status Indians.
The descendants of Indian women who married out seem to be punished time and again for not being able to manage the Indian Act's entitlement formula that is really designed to disentitle people. This is beyond unjust - it violates our inherent right to our Aboriginal identities and to be self-determining in our own individual and collective lives.
Canada is once again interfering with the most private and intimate part of our lives - how and when and with whom we decide to have relations - in order to limit and/or reduce the status Indian population.
Section 6(1)(c.1)(iv) ignores the gender discrimination imposed on the children of Indian women who married out and suggests that this discrimination skipped a generation and fell solely on the grandchildren and, as a result, only the grandchildren are entitled to a remedy.
What could possibly be the purpose of this section, but to limit as much as possible, the number of status Indians who will be entitled to band membership and to limit the overall number of Indians in the future?
I would recommend that section 6(1)(c.1)(iv) be deleted in its entirety. It is not necessary to achieve gender equity as a result of the McIvor case.
(3) Section 9 provides as follows:
9. For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty, or a council of a band for anything done or omitted to be done in good faith in the exercise of theirpowers or the performance of their duties, only because
(a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b) one of the person's parents is entitled to be registered under paragraph 6(1)(c.1) of the Indian Act, as enacted by subsection 2(3).
This section is an insult to Indian women and their descendants all over this country. Not only was Canada forced to make amendments to address gender inequality after fighting against the McIvor case for over 20 years; and not only has Canada proposed a very minimalist amendment; now Canada wants to ensure that it does not have to compensate the victims of gender discrimination?
When Bill C-31 was amended to reinstate Indian women who had married out, Canada denied compensation to Indian women who married out on the basis that the Charter of Rights and Freedoms was not in effect pre-85 and it argued that it could not be held liable for laws that were not in effect at the time.
However, the Charter has been in force for many decades since 1985 and Canada cannot now say they can't be held liable for discriminatory actions that took place well after the Charter was in force. To do otherwise is to perpetuate the very negative stereotypes against Indian women that McIvor (and others) fought against - that they are less worthy, less Aboriginal, and less able to transmit their Aboriginality to their children simply by virtue of being Aboriginal women.
Furthermore, findings of discrimination are based on effect, not on intention, and those victims that have suffered due to this discrimination deserve to be compensated - no less so that the victims of residential schools.
Prime Minister Harper acknowledged that the assimilatory foundation upon which the residential school policy was designed was wrong; he apologized to the victims on behalf of all Canadians; and ensured that the victims were compensated. Aside from the physical aspect of residential schools, Indian status has had the same harmful effects on Indians and especially Indian women, as residential schools. By discriminating against Indian women and their descendants, they have suffered separation from their communities, family divisions, loss of identity, culture, language and dignity. Furthermore, their continued lack of access to federal programs and services have greatly affect their quality of life and their overall chances in life.
By denying compensation to Indian women and their descendants for the same types of harms as were suffered in residential schools, Canada sends the message that Aboriginal women are somehow not deserved of redress or compensation for the harms suffered from gender discrimination created by Canada under the Indian Act.
If there was any doubt as to the continued discrimination against Indian women, even in this amendment meant to address gender inequity, one need only refer to the privileged and protected positions of status of Indian men and their non-Indian wives and descendants. Throughout this process, non-Indians have been and continue to be protected under the Indian Act simply because of their association with Indian men.
Non-Indian women who married Indian men gained status and benefits and non-Indian children were adopted and gained status. Not only did these non-Indians gain status, they were entitled to all the benefits, rights and interests that go with that status, including band membership, reserve residency, voting and running in band elections and a share of treaty and land claim benefits. The preservation of their status is guaranteed at every turn, where Indian women and their descendants must continually fight for it.
Yet, non-status Indian children who are Aboriginal by birth, identity and culture, were excluded on the basis of gender discrimination which was known by Canada to be discriminatory and which has since been found to be discriminatory. Even with this minimalistic and highly problematic Bill C-3, there still won't be gender equality between Indian men and women.
The majority of parents struggling with poor socio-economic conditions in Aboriginal communities are single Indian mothers. The majority of off-reserve Aboriginal people suffering from poor socio-economic conditions are the descendants of Indian women who married out. Canada has publically stated that access to educational opportunities is the key to improving life for Aboriginal peoples. How many Indian women and their descendants could have gone to university to make a better life for themselves, their children, their families and communities had they been registered?
I would recommend that section 9 either be deleted in its entirety or amended to provide limited protections for the bands and only in relation to the determination of status.
Summary of Recommendations:
(1) Section 6(1)(c.1)(iii) should be amended for greater clarity with an explanatory note as to what it is meant to accomplish;
(2) Section 6(1)(c.1)(iv) should be deleted in its entirety; and
(3) Section 9 should either be deleted in its entirety, or amended to provide limited protection for the bands in regards to status only.
I hope that you will all consider my comments and offer your own feedback to our elected leaders so that gender discrimination is not perpetuated, but is finally addressed.
Friday, March 12, 2010
UPDATED - Bill C-3 - Gender Equity in Indian Registration Act
Sharon McIvor went to court to challenge the gender discrimination in section 6 of the Indian Act, 1985. Registration under the Indian Act provides greater entitlements to Indian men who married out (married a non-Indian) and their descendants as compared with Indian women who married out.
McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry).
As a result of these legal proceedings, Canada embarked upon a very short "engagement" process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case.
On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law.
With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration:
(1) Did your grandmother lose her Indian status as a result of marrying a non-Indian?
(2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?
(3) Were you born on or after September 4, 1951?
The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES - if they had disentitled kids (non-status Indian kids) and NO - if they never had any kids or had kids with another registered Indian therefore making their children "entitled".
Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1):
(1) Did your mother lose status for marrying an Indian man?
(2)Is your father a non-Indian?
(3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)?
(4)Did you have a child with a non-Indian on or after September 4, 1951?
Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians - (1) those who had "disentitled" (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids.
For the first time in the Indian Act's history, one's specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one's parents. This new section would now put the focus on the status of one's children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men.
This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed.
At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues.
But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed.
When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made.
PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve.
What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services.
Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities.
Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture.
The Indian Act's registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this.
By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations.
Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada's financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples - it represents more of the assimilatory attitudes upon which this Act was originally based.
We wouldn't accept the reopening of residential schools - therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act.
One can only hope that the joint process announced by Canada will address these urgent issues.
McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry).
As a result of these legal proceedings, Canada embarked upon a very short "engagement" process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case.
On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law.
With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration:
(1) Did your grandmother lose her Indian status as a result of marrying a non-Indian?
(2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?
(3) Were you born on or after September 4, 1951?
The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES - if they had disentitled kids (non-status Indian kids) and NO - if they never had any kids or had kids with another registered Indian therefore making their children "entitled".
Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1):
(1) Did your mother lose status for marrying an Indian man?
(2)Is your father a non-Indian?
(3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)?
(4)Did you have a child with a non-Indian on or after September 4, 1951?
Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians - (1) those who had "disentitled" (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids.
For the first time in the Indian Act's history, one's specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one's parents. This new section would now put the focus on the status of one's children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men.
This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed.
At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues.
But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed.
When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made.
PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve.
What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services.
Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities.
Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture.
The Indian Act's registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this.
By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations.
Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada's financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples - it represents more of the assimilatory attitudes upon which this Act was originally based.
We wouldn't accept the reopening of residential schools - therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act.
One can only hope that the joint process announced by Canada will address these urgent issues.
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