Thank you very much for inviting me. I also offer thanks to the Algonquin Nation, which hosts all of us on its territory.

I have been counsel in many cases where women or women and their children have sought to challenge the denial of status under the Indian Act. I have also made representations to this House and to the Senate on behalf of the Native Women's Association of Canada and on behalf of Indian Rights for Indian Women on the issues relating to registration and women.

On this occasion, I appear as an individual. I do not speak for any client.

I would like to add some recognitions to those offered by Dr. Palmeter. In the Descheneaux case, two other plaintiffs were also women: Susan Yantha and her daughter Tammy. They challenged the inability of a woman to pass on her status to a child born out of wedlock in certain circumstances. I would also like to recognize or complete the recognition of Mary Two-Axe Earley by recognizing Jenny Margetts and Nellie Carlson, who helped found the western branch of Indian Rights for Indian Women.

I have two points to make today. Bill S-3 is under-inclusive, and the process being used for amending the registration provisions by way of Bill S-3 is not in accordance with the recommendations of Madam Justice Masse.

I begin with some comments on the origins of discrimination against women, which I ask you to bear in mind as you consider whether to endorse a narrow approach to remediation of this law, as has been installed in Bill S-3, or a broader approach to remediation of the law, as has been recommended by Dr. Palmeter, Sharon McIvor, and others.

It's crucial to remember that one of the main purposes of the Indian Act was to hasten the “civilization”—meaning assimilation—of aboriginal people. One of the primary mechanisms for achieving assimilation was the definition of “Indian” included in the act. Anyone not within that definition was, because of that exclusion, assimilated, that is, no longer the responsibility of the Government of Canada.

Why was this done? We should never forget. Even when there was a treaty about land, the first nation was assigned its land and the land was administered under the Indian Act. The connection between Indian land and the Indian Act has a key consequence. If the number of status Indians could be reduced to zero, then the connection between aboriginal people and their lands would be severed. There has always been a link between the disentitlement of women from conferring status in their own right and the coveting of Indian land.

Historically, women were the primary targets for exclusion from the act. One reason for this was the male privilege that reigned supreme in the Victorian era, when the act was first conceived. Another was the willingness to override indigenous laws about membership. These two reasons acted together. The Indian Act enforced the Victorian family with its paterfamilias, overriding the rules of many indigenous cultures that had the woman as the source of membership in the nation. For example, the Tsimshian “stick law” provided that a woman and her children were always members of the nation, welcome back even after they had separated from it through marriage or for other reasons.

The one exception to this male hegemony over status was the right of the Indian woman to confer status on a child whom she bore out of wedlock. This was not an unqualified right. It was possible under many versions of this legislation for the child's entitlement to status to be challenged. When the case of Martin v. Chapman held that a male Indian could also confer status on his child—namely, his son born out of wedlock—that right did not carry with it any possibility that someone could protest that the father was not an Indian.

This, too, is a sign of disproportionate power for the male under the Indian Act system. Simple acknowledgement of the child as his own, whether or not it's true, would confer status on the child. In the “unstated” or “unacknowledged” paternity rules under the present act, we see a powerful restatement of this male privilege, where withholding that acknowledgement, or the impossibility of getting it, prejudices the child's acquisition of full status.

Each time reform of the Indian Act holds back on giving full rights to women, either in the present day or vis-à-vis past rules, we are perpetuating the system that used disinheritance of women and their children as a tool of assimilation. If we continue this assimilationist approach in the construction and administration of the Indian Act, we are continuing the approach of the colonizer, so well summed up in this statement by Duncan Campbell Scott, then deputy superintendent of Indian Affairs. He said this in 1920:

Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill.

Let me mention some areas of under-inclusiveness. Let me begin by saying I agree with Dr. Palmater and Sharon McIvor about the practicability and the wisdom of amending 6(1)(a) for all purposes. I also agree with the CBA in its recommendation about clause 8. I would refer you to the brief of the Grand Conseil de la Nation Waban-Aki for some further instances where Bill S-3 does not fulfill its mandate.

If I may, I have one last point about consultation. I agree with the witnesses who have said that consultation is not appropriate in a case where you are remediating violations of equality rights. Bill C-31 was the product of consultation and we see now, 30 years later, people are still litigating the unconstitutionality of what that consultation produced.

Thank you.

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