Indigenous and Northern Affairs Committee on April 1st, 2010

[Martin Reiher]

Thank you for this question.

Again, this is a very focused answer to the McIvor decision, given the limited time we had to develop legislation in response to the British Columbia Court of Appeal decision of April 9, 2009. There are other issues that have been raised in litigation that are not dealt with by this bill at this time. Depending on subsequent court decisions, obviously, the government might have to consider how to respond to these other decisions. In addition, as was mentioned before, the exploratory process is also an opportunity to raise and discuss these issues.

[Ed Holder, Conservative, London West, ON]

As a supplementary, then, if I may, just to clarify, Mr. Reiher, if this deals specifically with the McIvor circumstance, and therefore circumstances in British Columbia, are you saying it does not extend beyond that, notwithstanding the fact that we're referring to a very specific case?

[Martin Reiher]

Thank you.

It's an important clarification, Mr. Chair.

The decision of the British Columbia Court of Appeal applies in British Columbia only, but the registration system is a national system, and the legislation that corrects that response to the McIvor decision will apply nationally. So the new entitlement will be available to all eligible persons in Canada.

[Ed Holder, Conservative, London West, ON]

I appreciate that clarification.

It really comes back, then, to Ms. Kustra's comments.

On the basis that this extends across the country, does Bill C-3 have jurisdictional priority over bands in terms of any potential discrimination internally?

[Martin Reiher]

What Bill C-3 does in terms of membership is protect existing entitlement. If someone was entitled to be a member of a band before the coming into force of Bill C-3, that person will continue to be entitled after the coming into force of Bill C-3. However, it respects the authority of first nations to adopt and amend their membership codes. So the protection for membership entitlement is subject to membership codes of first nations.

This bill establishes certain entitlements. As was mentioned before, persons who feel they have been deprived of their entitlement in a discriminatory fashion have the opportunity to announce challenges--

[Ed Holder, Conservative, London West, ON]

To the Human Rights Commission.

[Martin Reiher]

Yes, section 67 of the Canadian Human Rights Act was repealed in June 2008. There is, therefore, an ability to deal with provisions of the Indian Act and decisions made under the Indian Act. This ability obviously is suspended until June 2011 with respect to first nations governments because there is a transition period allowing them to prepare for this.

[Ed Holder, Conservative, London West, ON]

I appreciate the clarification.

Thank you, Chair.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Holder.

Now we'll go to Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I have just two questions.

I want to clarify a number. Did I understand you to say that there are approximately 40 cases around status and membership before the courts?

[Martin Reiher]

There are 14 cases.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Okay. I thought you said 40.

Essentially, with 14 cases, we could then be dealing with a number of one-off pieces of legislation if the courts rule in favour of the litigant. This issue was raised in previous pieces of legislation that have been before us, that we are piecemeal amending the Indian Act.

If there are 14 cases before the courts right now, which may or may not be ruled in favour, we could be looking at a series of pieces of legislation. Is there any attempt to take a more comprehensive look?

[Brenda Kustra]

There are a couple of ways to answer that question.

First of all, through the exploratory process, it is likely that the other issues that are driving these 14 cases will be brought forward and discussed, and people will potentially be looking for solutions and opportunities to find a broader solution as opposed to a one-off solution.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I understand you can't presume the outcome, but is there at least a willingness on the government's part to take a look at not piecemealing this if it works through the exploratory process?

[Brenda Kustra]

Yes, absolutely. The broader the changes contemplated to the Indian Act, the more difficult it is to reach consensus to bring those changes forward. So that certainly is a challenge we face.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I just want to come back to a question again around resources and status versus membership. I know it's complicated.

I was again looking at this paper of July 2008, the “First Nations Registration (Status) and Membership Research Report”, which is raising some issues around funding. This paper indicated that prior to 2001, funding was done based on status. But in a footnote here, it says:

In 2001, INAC authorities for on-reserve programming began to shift toward residency-based funding.

It's important in terms of the McIvor decision. When we're talking about funding on reserve, is it currently solely based on status, or does some of the membership code allow for funding that is not just status, based on residency?

[Brenda Kustra]

There are many programs that are delivered by first nations governments to their members, to their citizens, and by the Government of Canada through various government departments. It's hard to make a generalization; however, there are certain programs that are only applicable to individuals who actually live in the community—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Whether they're status or not.

[Brenda Kustra]

—whether they're status or not.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Okay.

[Brenda Kustra]

There are other programs whose benefits are applicable if you are a status Indian, no matter where you live, such as non-insured health benefits. So there's a very broad range of eligibility.

Many programs are also driven by needs assessment, such as the social assistance programs. So it's very complicated in terms of trying to give a fairly simple answer to the question, because of all the programs.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Is there any way that information can be provided? It does have an impact on bands' abilities to manage, and it may have an impact on bands' willingness to admit a status person to their existing membership. Is it possible to have some sort of summary of that?

[Brenda Kustra]

We could look at providing a list of the programs that the Department of Indian Affairs delivers or provides resources for and the criteria that are used to support those programs.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

That would be really helpful, because many times questions come before us around the issue of status versus membership and how bands are disadvantaged depending on what they've accepted on that question, and whether or not they've taken control of their own membership code. I know it's complicated, but it would be helpful.

Thank you.

Thank you, Mr. Chair.

[Brenda Kustra]

The other qualification to that, which I think is important, is that depending on the kind of funding arrangement a first nation has with the Government of Canada, there are certain flexibilities afforded to the first nation's government to make decisions. So while the Government of Canada and the Department of Indian Affairs may provide resources based on a certain formula or certain criteria, in some cases the nation does have the flexibility to use those resources in different ways. So as we think about how this information might be interpreted, this would be how we resource the community, but how the community chooses to resources its members, its citizens, etc., may be somewhat different.