Hon. Sandra Lovelace Nicholas:

Honourable senators, I rise today to speak on Bill C-3, An Act to promote gender equality in Indian registration. This bill that has been presented before the Senate is extremely important. The bill attempts to make laws fairer for Aboriginal people living in Canada.

Most honourable senators know, or have been made aware, of my personal fight against the Government of Canada during the 1970s, which led to similar amendments to the discriminatory provision within the Indian Act registry. These amendments became law in 1985, and this bill is the first time any government has revisited the registration provisions since that time.

As an overview, the Indian Act provides the legal framework for the relationships between First Nations people and the Government of Canada. Legislation was first passed in 1869. In my opinion, it continues to reflect a paternalistic European-Canadian assumption that men should be the heads of the household and that women should be defined by the Indian status of the male household head.

What this assumption means in practice is that women and their children lose their Indian status when they marry non-Native men, but Native men do not when they marry non-Native women. If this is not enough, to make the situation even more perverse, Native men that adopt children from other cultures can legally bestow Indian status on the adoptees while children born from legitimate native blood cannot and will not be registered.

Following my marriage breakdown, I returned home to my community at Tobique First Nation. Despite the fact that we spoke our language and continued to practice our cultural beliefs, we were met with hostility by Native men and their non-Native wives and moving off our ancestral land. We were denied housing, education and health care benefits that we were originally entitled to prior to our marriage.

I found this situation to be unacceptable and elicited the support of non-Native women's groups, such as the National Action Committee and the Voice of Women. They assisted us with our fight against the intolerable gender discrimination and participated by demonstrating with us. We conducted sit-ins, marches and appeals through the courts.

I clearly remember our demands for change being ignored by government officials, politicians, and oddly enough, the Assembly of First Nations. This response was unacceptable. Our group was dedicated and determined to remove this legislative barrier to our rightful identity.

In July 1979, we decided to make our voice heard in a more visual and meaningful way. Many women from Tobique First Nation organized a 100-mile walk for women and children from the Oka reserve, near Montreal, to Ottawa to draw attention to this problem. We were supported along the way by people who provided us with food and water.

Upon our arrival in Ottawa, we were greeted by dignitaries and members of the media, but only empty promises for change were made. No bill supporting this amendment passed and, unfortunately, the status quo remained.

The Canadian government claimed that it would like to change the law but did not feel it could without the agreement of First Nations people, who were divided on the issue.

It seemed that only the highest court of Canada would decide the legitimacy and outcome of our fight for equality. With the support of a focused and driven legal team, my name was used to bring a complaint against Canada to the Human Rights Committee of the United Nations.

After years of fighting, demonstrating and convincing people who would listen, in 1981, the United Nations committee found Canada had breached the International Covenant on Civil and Political Rights. Even after the UN ruling, the Canadian government acted slowly. Politicians were concerned that the male leadership within First Nations communities who were opposed to the changes were reluctant to interfere.

In July 1981, the Canadian government began granting exemptions from the UN ruling to Indian bands who requested it, and in 1985, despite the opposition of many band governments that opposed reform, the Indian Act was finally revised. Native women who married non-native men would no longer lose their status, nor would their children. It was a victory to so many native women who had struggled for equality. It was a victory for the native children born through our marriages that were denied basic services from our band. It was a victory that, unfortunately, became short-lived.

When Bill C-31 was enacted, it gave back Indian status to native women, and it also gave back to our children their Indian status, but it did not give back full status. It had limitations. Yes, my children were now entitled to services provided by the band and the Canadian government, but what occurred was a secondary class of Indian status. Our children were now categorized as section 6(2) Indians. As it stands, even prior to the implementation of this bill, people that re-inherited their status and were given the section 6(2) status classification continued to suffer from gender discrimination. For example, our children must remarry or have children with other section 6(1) or 6(2) Indians in order for our children to be eligible for registration under the Indian Act. This is an additional effect of being born to a non-native father. This cannot be denied because prior to the implementation of Bill C-31, in 1982, there were no classifications of Indian status.

As a member of the greater First Nation communities across Canada, and as a sitting member of the Senate of Canada, I carry the burden to ensure all laws proposed to be passed by this Senate are fair, just and equitable. In this instance, I must balance my responsibility as a senator with my culture as a Maliseet. If the bill is fair, just and equitable, I will support it. If it is not, I will refuse to give it proper support.

I will now turn my remarks to the principles of Bill C-3. I have read the debates on Bill C-3 that took place in the house on Tuesday, May 25, 2010. It was 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 unison of opinion on this issue.

What follows are some of the main items the government is using to try to justify passing this bill. First, the government says that it held extensive consultations with the national Aboriginal organizations and others on Bill C-3. It is my understanding that, in fact, there was no full consultation. There was only what government referred to as "engagement" sessions. When INAC officials made their presentation to organizations such as the Congress of Aboriginal Peoples at their annual assembly in 2009, they were asked directly if this amounted to consultation. The definite answer from INAC officials was no.

No money was 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 girls what would happen, and the government did not address legitimate concerns presented by these groups or the individuals.

Consultations as outlined in the Supreme Court of Canada cases like the Haida and Mikisew Cree adopted principles that suggested that the government would have been legally obligated to consult, not engage, with the First Nations and groups impacted by the bill, and accommodate, not ignore, their legitimate concerns.

Second, the government states that 45,000 people will not get to be registered if this bill is not passed. 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 cannot do the costing, then it cannot say that 45,000 people will not get status if the bill does not pass. The government cannot have it both ways. Either it is 45,000 and it costs that out or it is not. Gender discrimination is not resolved if only some people get to benefit. One cannot even say that gender discrimination is partially resolved. There is no such thing. Gender discrimination is either eliminated or it is not.

Third, I believe that it is absolutely necessary to include section 9 in Bill C-3 so Indian women are not fooled into thinking they have a legal right to be compensated for their exclusion from registration based on their gender. The government must step up to the plate and register the descendents of Indian women and finally compensate them for what they have lost. Aside from the physical aspects, the harms they suffered are equal to those who attended residential schools and clearly utilize the same assimilatory approach.

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 the gender discrimination as long as they deem necessary, knowing that they are not liable for the harms suffered by Indian women and their descendents.

Fourth, we should pass Bill C-3 as is because 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 are the terms of reference for this joint process. Who will direct this process and will it have measurable deliverables? Where is the commitment to deal with specific issues like unstated paternity and illegitimate siblings? Where is the commitment to deal with band membership?

The joint process was made to be a carrot to get agreement by budget-strapped national Aboriginal organizations that are at the mercy of their funder, namely the government, to pass another otherwise unacceptable bill.

The bill does not address McIvor, even in the narrowest terms, because the double mother clause descendents still have better status than the dependants of Indian women who married out. It is as plain and simple as it gets.

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. 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 readily accept a delay in addressing registration if it meant we address gender discrimination in full.

Canada must now live up to its fiduciary and other legal duties and obligations toward Aboriginal people and act in a way that lives up to the honesty of the Crown. My grandchildren and many others are counting on Canada to finally eliminate gender discrimination against Indian women and their descendents.

Honourable senators, I am prepared to support Bill C-3 in principal. I do believe though that many issues have been missed by our present government in the drafting of this bill and throughout its so-called negotiation phase.

Honourable senators, I am a believer in First Nations self governance. I believe that our elected First Nations leaders and elders should be vested in determining who its band members should be, rather than this red tape, bureaucratic process. Until this issue is addressed by government, the debate over who is and who is not a First Nation member will never end.

Honourable senators, I strongly urge the government to consider this approach.

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