The following is testimony given to the Senate Indigenous and Northern Affairs Committee on Bill S-3, to amend section 3 of the Indian Act.

As we all are painfully aware, the Indian Act was founded on the goal of the complete assimilation of First Nations as distinct nations. Since 1876, the Indian Act has undermined our kinship systems, our systems of governance and many other aspects of our lives, including enabling the imposition of residential school tragedy. A primary tool to achieve those ends has been discrimination targeting First Nations women.

This is the third time Parliament has attempted to rectify the sex discrimination in the Indian Act.

In 1985, the changes made under Bill C-31 left the task incomplete.

In 2009, the British Columbia Court of Appeal found that the combination of the two-parent rule, the hierarchy of different types of status under sections 6(1) and 6(2) of the Indian Act, and the second-generation cut-off perpetuated sex discrimination under the Act.

And now the Descheneaux case has forced Parliament to make a third attempt. (The Quebec Superior Court ruled in 1985 that the Indian Act discriminated against First Nations women’s entitlement to Indian status, and directed Parliament to make changes by February 3, 2017.)

We understand the compelling need for the government to respond to the discrimination identified in Descheneaux. Unfortunately, Bill S-3 will result in continued discrimination. In addition, the proposed amendments in Bill S-3 will compound the existing complexity of the Indian registration provisions by adding three additional subparagraphs to s. 6(1)(c).

The basic approach of this Bill is to continue arbitrary federal control over First Nations identity and simply push the residual gender-based discrimination down one generation.

Our review of Bill S-3 suggests other discrimination that will not be addressed:

  1. Under Bill C-3, which addressed the McIvor decision, a woman who regains her status is deemed 6(1) [part of the Indian register] and her children would also be eligible for 6(1) [Indian] status, passing that on through future generations. However, a woman who lost and regained status for any reason other than that addressed under Bill C-3 [falls under the different provisions of] section 6(2), disadvantaging any future offspring.
  1. Bill C-31 attempted to address the decision of the United Nation Human Rights Committee in the Sandra Lovelace case as well as Charter compliance issues. Under C-31, a woman who regained status is deemed 6(1). A person, male or female, who lost and regained status under any other circumstance other than marriage under C-31 [falls under the different provisions of] section 6(2) and any future offspring may be ineligible for status.

In our view, Canada’s continued imposition of a two-parent rule combined with the hierarchy of status transmission established by Bill C-31 under s. 6(1) and s. 6(2) lies at the heart of ongoing sex-based discrimination.

We note with considerable concern that there is apparently no remedy yet for the unfair and longstanding discrimination in the department’s policies [Indigenous and Northern Affairs Canada] respecting so-called unstated paternity. I emphasize that these usually are not situations where paternity is unknown, but most often where a woman has other reasons for not identifying the father of her child.

Moving forward, the Assembly of First Nations recommends that Canada work with First Nations to undertake a joint review of federal law and policy and to work with us to ensure all of this work includes a gender and citizenship lens.

We must ask whether it is even possible to eliminate discrimination from an outdated piece of colonialist legislation.

Many aspects of the Indian Act constitute a violation of the Treaties, the right to self-determination, as well as individual human rights. So much so, we must ask whether it is even possible to eliminate discrimination from an outdated piece of colonialist legislation intended to dismember our nations and citizens through gender-based discrimination and racialized concepts.

We have an enormous challenge ahead of us to move past this terrible legacy. I am sure you will agree that simply making amendments to the Indian Act will not get us there. And whatever that path is, it must be driven by First Nations and guided by our inherent and Treaty rights and the minimum standards set out in the United Nations Declaration on the Rights of Indigenous Peoples.

I remind the Committee that, under international human rights law, the enjoyment of the right to self-determination and individual human rights are interdependent and inextricably linked.

First Nations are encouraged by the Prime Minister’s leadership on gender equality, his unqualified commitment to implement the UN Declaration on the Rights of Indigenous Peoples and the enthusiasm of Ministers — especially Minister Bennett and Minister Wilson-Raybould — to work with us to move beyond the Indian Act. But that important work has not yet begun.

We recognize the urgency in attempting, yet again, to correct sex discrimination in the Indian Act. To fully address the legacy of discrimination that is still very much with us, the federal government must finally work with First Nations to move beyond the Indian Act and its outdated, colonial concepts of “Indian status” and “Band membership.” It is long overdue for the federal government to cede its assumed sovereignty over us and to recognize First Nations concepts of citizenship and belonging.

Every day, First Nations are asserting our inherent jurisdiction despite the Indian Act, not because of it.

Every day, First Nations are asserting our inherent jurisdiction despite the Indian Act, not because of it. Canada must bring itself to finally respect First Nations’ jurisdiction over citizenship.  Only First Nations should be determining those who belong.

On this issue, it is imperative that Parliament and the Crown work with First Nations to build a new relationship where First Nations’ law and jurisdiction over our citizens is recognized and respected – as affirmed by the Treaties, assertion of Indigenous sovereignty and by the UN Declaration on the Rights of Indigenous Peoples.  We draw your intention to the fact that the UN Declaration sets out minimum standards for respecting the collective and individual rights of Indigenous Peoples, including gender equality.

Gender discrimination and denial of the right to self-determination are violations of international human rights standards, including those expressed in, and re-affirmed by, the UN Declaration.

The Indian Act has been used as an instrument of forced assimilation. As such, it clearly violates individual human rights and undermines our collective rights to define and determine our own identities as citizens of Indigenous Nations.  As one example, the Crown entered into Treaties with many First Nations.  When First Nations entered into Treaty with the Crown, we applied our own laws and protocols to identify our citizens. Our traditional laws respecting citizenship and belonging bear little or no resemblance to what has been imposed upon us through the Indian Act.

Subsequently, the Indian Act and its discriminatory provisions were used to deny the legal status of many of our citizens.  It was used to deny our status as Treaty beneficiaries. To this day, Indian and Northern Affairs Canada policy ties Treaty beneficiary status to Indian status. This is a fundamental violation of the Treaties, our inherent rights, Indigenous law and the right to self-determination. This must end.

Regarding the implementation of Bill S-3, I note that the department has identified $19 million over the next five years to address internal resource requirements for the registration of new status individuals and we heard this week that additional funds have, or are being identified for the demands new registrants will put on the post-secondary student program and non-insured health benefits. We have not had an opportunity yet to determine if that is sufficient.  I also point out that, if we remain under the Indian Act, there will be no status Indians in 50 years due to the double parent rule.

We do know there are concerns from First Nations that funds have yet to be identified for other programs administered on-reserve by First Nations. We’ve seen this time and time again, after Bill C-31 and Bill C-3.  These amendments do have the potential to create an unfunded burden on our governments as thousands of people became new Band members. It also fails to acknowledge the fact that First Nation governments have responsibility for their citizens both on and off-reserve.  This contributes to the inability to welcome the new Band members onto our ancestral homelands, forcing them to live off-reserve.  Where is the land promised under Treaty? These amendments raise additional issues of Treaty land entitlement. This must be addressed.

There must be meaningful dialogue with First Nations and First Nations women beyond this Committee process.

In Descheneaux, Justice Masse provided guidance to Canada, stating:

It does not, however, exempt Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that may arise from the issue identified, whether they are based on sex or another prohibited ground, in accordance with its constitutional obligation to ensure that the laws respect the rights enshrined in the Canadian Charter.

Parliament should not interpret this judgement as strictly as it did the BCCA’s judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

The Assembly of First Nations is ready to work with Canada to advance rights recognition and reconciliation through jointly-designed processes, to ensure the full implementation of the UN Declaration on the Rights of Indigenous Peoples and to carry out a much needed, and fulsome joint law and policy review.

Photo: Members of the Huu-ay-aht First Nation burn a copy of the Indian Act during a ceremony after implementing the Maa-nulth Final Agreement in Anacla, BC, in  2011 — the first modern-day treaty on Vancouver Island. The Canadian Press/Darryl Dyck

 


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