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.

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.