THIRD SUPPLEMENTAL SUBMISSION OF THE GOVERNMENT …



THIRD SUPPLEMENTAL SUBMISSION OF THE GOVERNMENT OF CANADAON THE ADMISSIBILITY AND MERITS OF THE COMMUNICATION TO THE HUMAN RIGHTS COMMITTEE OF SHARON McIVOR AND JACOB GRISMERCOMMUNICATION NO. 2020/2010IntroductionBy letter dated 23 December 2010, the Secretariat of the United Nations (Office of the High Commissioner for Human Rights) forwarded to Canada the communication of Ms. Sharon McIvor and Mr. Jacob Grismer (“the authors”) to the Human Rights Committee (“the Committee”), for consideration under the Optional Protocol to the International Covenant on Civil and Political Rights (“the Optional Protocol”). The author alleged ongoing sex-based discrimination in the registration provisions of the Indian Act. Canada filed its initial submission on the admissibility and merits of the communication on 23 August 2011, as well as a brief further submission on 28 February 2012.On 3 August 2015, the Superior Court of Quebec rendered its decision in the Descheneaux case, in which it found that paragraphs 6(1)(a), (c), and (f) and subsection 6(2) of the Indian Act are an unjustifiable infringement of the Canadian Charter of Rights and Freedoms (the Charter) protection against discrimination on the basis of sex. However, the Court suspended its order for a period of 18 months – until 3 February 2017 – to allow Parliament to make the necessary legislative amendments. On 9 May 2016, Canada requested that the Committee suspend consideration of the communication to allow for an ongoing policy development process in response to the Descheneaux decision to run its course.On 15 July 2016, the Committee informed Canada that it has decided to postpone consideration of the communication until its July 2017 session. The Committee requested that Canada provide additional information by 1 March 2017.In this submission, Canada will update the Committee on the ongoing policy development process and proposed legislative reforms, which are expected to materially affect the issues that have been raised by the authors, and ask that the Committee continue to postpone consideration of the communication for an additional 4 months, until its November 2017 session.Extensive policy development and legislative initiatives over the past yearWhile the Government filed an appeal of the Superior Court’s decision in Descheneaux, the Government abandoned the appeal on 22 February 2016 and earnestly began a process of policy development with a view to having new legislation adopted prior to 3 February 2017.From February through June 2016, Government officials conducted work on an approach to respond to the Descheneaux decision, including: the development of options for legislative amendments to address sex-based inequities in s. 6 of the Indian Act; the development of a process to engage with First Nations and other Indigenous groups on the proposed legislative changes; as well as an approach to begin addressing the broader issues relating to Indian registration, band membership and citizenship in keeping with Canada’s commitment to reconciliation and renewal of the nation-to-nation relationship with Indigenous Peoples. Government approval of the approach was obtained in June 2016.On 28 July 2016, the Minister of Indigenous and Northern Affairs announced a two-staged approach to eliminate sex-based inequalities in Indian registration and to begin a collaborative process with First Nations and other Indigenous groups on broader issues related to Indian registration and band membership. The two-staged approach is designed to ensure that justice is served in a timely manner for the plaintiffs in the Descheneaux case and the projected 35,000 individuals in similar situations, while ensuring that other important policy issues relating to Indian registration and band membership under the Indian Act can be addressed in a comprehensive manner and through meaningful consultations.Under Stage I, the Government committed to engage with First Nations and other Indigenous groups on proposed legislative amendments to the Indian Act to address the specific sex-based inequities found by the Court in the Descheneaux decision (i.e. cousins and siblings) and another known sex-based inequity (omitted minors), which would be followed by the introduction of legislation to amend s. 6 of the Indian Act in response to the Descheneaux decision.. Under Stage II, the Government committed to launching a collaborative process with First Nations and other Indigenous groups, following the passage of legislation under Stage I, to address the broader issues relating to Indian registration, band membership and citizenship with a view to future reform. Some of the issues that could be explored under the collaborative process involve the treatment of adoption in the context of registration, the second-generation cut-off, unstated/unknown paternity and a mechanism for voluntary deregistration. Other matters, also to be discussed under Stage II, relate to broader policy questions, such as Canada’s continued role in determining Indian status and Band membership. These subject matters are complex, and some are subjective in nature as they focus on where to draw the line in respect to culture, ethnicity and race, and how to find the appropriate balance between individual and collective rights. Impacted individuals, communities and organizations bring a wide range of often competing views, on how to address these matters. Registration and membership issues can also have significant demographic and financial impacts for Indigenous communities and governments, which must be carefully assessed. A two-stage process is necessary because it would not be possible for the Government to fully consult with First Nations and other Indigenous groups on the broader issues related to Indian registration, band membership and citizenship within the time-frame of the coming into effect of the Descheneaux decision, originally on 3 February 2017, now extended to 3 July, 2017. It would be inappropriate for the Government to act unilaterally, or with inadequate consultation with Indigenous Peoples, to enact legislative changes with respect to these complex issues which have implications for culture, land and resource management, and access to programs and services. It is expected that it will take a minimum of 24 months to conduct and complete activities under Stage II in a manner consistent with Canada’s commitment to reconciliation and to a renewed nation-to-nation relationship with Indigenous Peoples.In June and July 2016, the Government held preliminary discussions with representatives of national and regional First Nation and other Indigenous organizations to discuss the Government’s approach in responding to the Descheneaux decision.Engagement under Stage I was launched on July 28, 2016, with a web-based announcement and the dissemination of pertinent information on the two-staged approach and in particular Stage I activities.On 29 July 2016, the Minister of Indigenous and Northern Affairs corresponded with all First Nation Chiefs and Councils, as well as with national and regional Indigenous organizations, to inform them of the two-staged approach and Stage I activities. Between 11 and 16 August 2016, government officials communicated with First Nation and other Indigenous organizations to invite them to work with the Department to coordinate and participate in information sessions on the proposed legislative amendments as part of Stage I. Interested First Nation and other Indigenous organizations worked with the department to plan and coordinate information sessions, including logistical planning. The Government provided financial support for participation in the information sessions, as well as for logistical and administrative costs.As part of Stage I, between 8 September 2016 and 14 January 2017, the Government held 17 information sessions across Canada, in cooperation with First Nations and Indigenous organizations, on the proposed legislative amendments to Indian registration in response to the Descheneaux decision, and on the broader two-staged approach. There were between 25 and 145 participants in each session, and participants included First Nations (registered Indians and band members), Métis and non-Status Indians. During the information sessions, numerous First Nations representatives stated that the Government should accord more time to the First Nations and other Indigenous groups to examine the proposed amendments and to consider the impacts that these amendments could have on their communities. On 14 October 2016, INAC published on its website a document explaining the legislative amendments that would be introduced in Stage I of the process. These included amendments to respond to the inequalities identified in the Descheneaux decision, as well as to address one additional sex-based inequity that had been identified by the Government. The same day, the Government sent letters to all First Nation Chiefs and Councils, as well as to First Nation and other Indigenous organizations to inform them of this legislative proposal. Introduction of legislation to amend the Indian Act in ParliamentOn 25 October 2016, Bill S-3, An act to amend the Indian Act (elimination of sex-based inequities in registration) was introduced in the Senate of Canada. Bill S-3 would amend the Indian Act to address the following distinctions:The “cousins” issue: New paragraphs 6(1) c.2 and c.4 eliminate the differential treatment of cousins, where eligibility for Indian registration depended on the sex of the Indian grandparent in situations where the grandparent was married to a non-Indian before 17 April 1985. Grand-children of an Indian woman who had lost status upon marrying a non-Indian man would hence be eligible to register under s. 6(1) of the Indian Act, meaning that their children (the great-grandchildren of the woman who had lost status), if born before 17 April 1985 or of a marriage prior to that date, would be eligible for registration regardless of whether or not their other parent is eligible for Indian registration. The great-grandchildren of the woman who had lost status would themselves be eligible for registration under s. 6(1) of the Indian Act if they were born prior to 17 April 1985, or if their parents married prior to 17 April 1985. In such a case, the great-great-grandchildren of the woman lost status would be eligible for registration regardless of whether or not their other parent is eligible for registration, and on an equal basis with the descendants of Indian men in the same circumstances. The “siblings” issue: New paragraphs 6(1) c.3 and c.4 eliminate differential treatment between women and men who were born out of wedlock to an Indian father between 4 September 1951 and 17 April 1985. Regardless of their sex, persons in this situation would be eligible for registration under s. 6(1) of the Indian Act, meaning that their children would also be eligible for registration. The child of a woman who was born out of wedlock to an Indian man and a non-Indian woman would him or herself be eligible for registration under s. 6(1) of the Indian Act if that child was born prior to 17 April 1985, or if their parents married prior to 17 April 1985. In such a case, the grandchild of the woman who was born out of wedlock to an Indian man and a non-Indian woman would also be eligible for registration, regardless of whether or not their other parent is eligible for Indian registration, and on an equal basis with the descendants of men similarly born out wedlock to an Indian man and a non-Indian woman. The “omitted minor children” issue: A new paragraph 6(1) (c.01) eliminates differential treatment of descendants of minor children who lost Indian status upon the marriage of their Indian mother to a non-Indian man, where the marriage took place after the child’s birth and between 4 September 1951 and 17 April 1985. While the minor children themselves were reinstated under s. 6(1)(c), their own children are entitled under s. 6(2) assuming their other parent is not entitled to registration. These grandchildren of women who married a non-Indian would now be eligible for registration under s. 6(1), meaning that their children would now be eligible for registration regardless of whether their other parent is eligible for Indian registration. This differential treatment was not at issue in Descheneaux, but was identified by the Government as a remaining sex-based inequity in the Indian Act. The study of Bill S-3 by the Standing Senate Committee on Aboriginal Peoples (Senate Committee) began on November 22, 2016. The House of Commons’ Standing Committee on Indigenous and Northern Affairs (House Committee) began simultaneous study of the Bill on November 21, 2016. Both Committees heard from witnesses and received written testimony during their meetings. During the deliberations of the Senate and House Committees witnesses and Committee members expressed concerns regarding the level of engagement with First Nations, other Indigenous groups and affected individuals prior to the introduction of the Bill. Concerns were also raised on whether the Bill appropriately addresses sex-based inequities in Indian registration. Witnesses raised concerns about additional inequities that they did not believe to be addressed by Bill S-3.Sharon McIvor, one of the authors of this communication, testified before the House of Commons Committee on behalf of the Union of B.C. Indian Chiefs, and before the Senate Committee as an individual. On 6 December 2016, a motion was introduced in the Senate Committee that the Committee not proceed further with the study of Bill S-3. Until this Committee submits its report to the Senate, Bill S-3 cannot proceed further through Parliament. On 13 December 2016, the Senate Committee sent a letter to the Minister of Indigenous and Northern Affairs in which it strongly recommended that the Government request that the Superior Court of Quebec extend its suspension of the Descheneaux decision to allow the Government to further pursue its consultation process. In response to a motion by the Senate Committee, on December 22, 2016, the Attorney general of Canada sought an extension from the Superior Court of Quebec to allow the Government to continue the engagement as part of Stage I on the proposed amendments to address sex-based inequities in registration under Bill S-3.Extension granted by the Quebec Superior Court and next stepsOn 20 January 2107, the Quebec Superior Court granted the Attorney General of Canada’s request to extend the suspension of the declaration of invalidity in Descheneaux. The declaration has been suspended for an additional 5 months, until 3 July 2017. As set out in an Action Plan presented to the Quebec Superior Court on 17 January 2017, the Government will, over the five-month period of extension: Initiate further engagement sessions with First Nations and with Indigenous groups in order to continue discussions on Bill S-3’s proposed amendments to the Indian registrations provisions of the Indian Act. Engage directly with the plaintiffs in Descheneaux to confirm that the proposed amendments in Bill S-3 bring an appropriate remedy to their situations and to consider any other scenarios of known sex-based inequities in registration. In cooperation with the Native Women’s Association of Canada, support the organization of a forum to foster discussions with individuals who have been impacted by sex-based inequities in Indian registration to identify how best to address related issues.Hold technical discussions with representatives of the Indigenous Bar Association and other legal experts to allow for review and analysis of the proposed amendments. The Government has stated its willingness to address, with an appropriate amendment to Bill S-3, a concern raised by the Indigenous Bar Association before the Standing Senate Committee on Aboriginal Peoples. This concern relates to a further sex-based inequity affecting the grandchildren of Indian women who parented out of wedlock with non-Indian men. The Government is willing to consider additional amendments that fall within the scope of Bill S-3 to address sex-based inequities in Indian registration which may be identified through further engagement with First Nations, other Indigenous groups, individuals and legal experts. In addition, the Government is prepared to support an amendment to Bill S-3 to create a statutory obligation on the Government to report to Parliament on the implementation and findings of the collaborative process under Stage II. It is anticipated that the Senate Committee will resume consideration of the Bill once the Government has completed the further engagement process under Stage I, described above. Once the Senate Committee completes its study, the Bill will be considered and voted upon by the Senate before being considered by the House of Commons. The anticipated legislative process is set forth in the Action Plan. ConclusionCanada acted with diligence and in good faith in the development of Bill S-3 and its introduction in Parliament. Ensuring equality rights of Indigenous women remains a priority concern of the Government. Despite dedicated action to respond to the Descheneaux decision by addressing sex-based inequities in the Indian Act, a number of factors have contributed to the process taking longer than initially anticipated. These factors include the fact that the legislative scheme itself is extremely complex, meaning that the various legislative options required in-depth study, as well as the complexities of engaging with multiple Indigenous stakeholders in a fulsome manner.In the information sessions held across Canada, Indigenous representatives stressed that they needed more time to consider the impacts of the proposed legislative amendments. Both Parliamentary Committees considering the Bill heard similar concerns from witnesses that more time was needed for engaging with Indigenous communities and affected individuals around the proposed amendments. The Senate Committee ultimately adjourned its study of the Bill, asking the Minister to request an extension from the Court to enable further engagement. According to the revised timelines provided by the Court in Descheneaux, any necessary legislative amendments must be enacted by 3 July 2017. It is clear that the process of engagement, policy development, and legislative reform that will continue over the next 4 months will have a material effect on many of the issues that have been raised by the authors: specifically, issues relating to alleged sex discrimination with regard to the eligibility provisions that are the focus of the current communication under the International Covenant on Civil and Political Rights. Therefore, Canada respectfully requests that the Committee suspend its consideration of the communication until Stage I of the policy process has been completed. It is Canada’s view that the Committee will be best placed to consider the communication, and craft its views, once Canada is able to provide concrete updates on the process undertaken and the policy approach chosen. Canada therefore requests that the Committee suspend consideration of the communication until its November 2017 session to allow Canada the time to update the Committee on the outcome of Stage I of the process. Canada should be in a position to provide an update to the Committee by September 2017. However, if the Committee chooses to proceed in considering the admissibility and merits of the communication, Canada continues to rely on its previous submissions, that the communication is inadmissible. The authors have successfully brought their allegations of sex discrimination before Canadian courts: following a 2009 court decision in their favour, the eligibility provisions in the Indian Act were amended in 2011 to directly address the specific situation of the authors. In other words, the authors have received an effective remedy. Furthermore, aspects of the authors’ communication are inadmissible either for failure to exhaust domestic remedies, or because the authors themselves are not victims of the alleged violations.Ottawa28 February 2017LIST OF ANNEXESTAB 1: Letter from the Standing Senate Committee on Aboriginal Peoples to the Minister of Indigenous and Northern AffairsTAB 2: Action Plan (submitted to the Superior Court of Quebec in support of the Government’s request for an extension of the suspension in Descheneaux) ................
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