B I L L C - 3
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)
Legislative Summary of the Bill:
INAC's Information related to the Bill:
House of Commons Information about the Bill:
The Bill is a legislative response to the court case brought by Sharon McIvor. Both the trial and appeal courts found that the gender discrimination in sections 6(1)(a) and 6(1)(c) violated the section 15 equality right of the Charter of Rights and Freedoms.
A further appeal was requested to the Supreme Court of Canada, but was denied. Subsequent to the decision, Canada requested an extension from the Court of Appeal and was given to July 2010 to amend the Indian Act.
This Bill was introduced on March 11, 2010, had its second reading March 29, 2010 and is currently being studied at the Committee stage with the Aboriginal Affairs and Northern Development Committee. I will be making a presentation to the Committee on April 20, 2010. Once I have made my presentation, I will post it here as well.
McIvor v. Canada (Registrar, Indian and Northern Affairs Canada)
Supreme Court of British Columbia - Trial decision:
Court of Appeal for British Columbia - Appeal Decision:
Supreme Court of Canada - Application for Leave to Appeal Denied:
Current Problems with Bill C-3:
The Indian Act's registration (status) provisions are a complex mix of rules that are based on all the previous Indian Acts. Reference is often made to previous versions of the Indian Act in determining Indian status, which makes the assumption that INAC only applies the 1985 Indian Act, somewhat of an illusion.
A brief selection of some of the issues I have with Bill C-3 are as follows:
(1) There was no consultation process about the type of amendment to make (only a brief "engagement" process);
(2) The Bill attempts to address only the most limited interpretation of the McIvor case and not the underlying issue of gender discrimination in its entirety;
(3) The proposed section 6(1)(c.1)(iii) contains awkward, confusing wording that can be interpreted in several different ways, which creates a great deal of uncertainty about what this section means and how it applies to individuals;
(4) The proposed section 6(1)(c.1)(iv) contains additional criteria that is not only illogical, but is completely unnecessary to address even the limited aspect of gender discrimination contained in the McIvor Court of Appeal decision; furthermore, it runs counter to how status is usually determined in the Act and even creates new forms of discrimination;
(5) The proposed section 9 attempts to insulate Canada from any liability for having knowingly created and enforced legislative provisions which discriminated against Indian women and their descendants - yet the Charter of Rights and Freedoms has been in force this entire time and lack of intent to discriminate is no defense - in fact, that may itself be the basis of a Charter challenge;
(6) The refusal by INAC to assure bands that it will provide additional funds to bands who may have increased membership numbers as a result of Bill C-3 creates the potential for further division between community members and their bands.
For more detailed analysis of these issues, please follow this link to my blog:
April 20, 2010 - Witnesses before the Standing Committee on Aboriginal Affairs re: Bill C-3
Audio Webcast of Meeting 10:
Bill C-3 passed through the Standing Committee on Aboriginal Affairs and Northern Development (AAON) where several key amendments were made. Most notably, the committee deleted section 9 which would have protected Canada from liability for applying the status provisions in a discriminatory manner and it changed section 6(1)(a) of the Indian Act, 1985 to include all those born pre-1985.
The Chair of the Committee attempted to rule the amendments out of order, but his decision was overturned by a majority of the committee. The committee then send their report to the House where the conservatives entered a motion asking the Speaker of the House to rule the amendments out of order.
Liberal MP Todd Russell made compelling arguments for why Canada should not rule the amendments out of order and asked the House to once and for all end gender discrimination against Indian women and their children. We could see a decision from the Speaker as early as next week (the week of May 10th).