This is the indigenous and northern affairs committee of Parliament. We're meeting today on the hereditary land of the Algonquin People, for which we're very grateful.
Today we're continuing our study of Bill .
We have three 10-minute panels in this first hour, so we're going to try to move along really quickly, and I'm going to be quite strict with time so we can fit everybody in and get in all the questions we need to.
The first panel is the Assembly of First Nations, with three people joining us: Perry Bellegarde, who is the national chief of AFN; Denise Stonefish, by videoconference, who is the deputy grand chief, Association of Iroquois and Allied Indians; and also Stuart Wuttke, legal counsel, Assembly of First Nations.
Welcome to you all.
And without further ado, I'm happy to yield the floor for 10 minutes to you.
Thank you for the opportunity to speak to you today about Canada's effort to eliminate sex-based discrimination through this latest amendment to section 6 of the Indian Act.
As indicated, I represent seven first nations, mainly in southern Ontario. I am also the chair of the Assembly of First Nations' Women's Council. This council is an essential consultative body of the AFN under its charter, representing the interests and perspectives of first nations women who are members of our 634 first nations across Canada. As chair, I participate in meetings of the executive committee, our chiefs in assembly, and other meetings, including presentations to parliamentary committees on occasion.
As we are all painfully aware, the Indian Act was founded on the goal of complete assimilation of first nations as distinct nations. Since 1876, the Indian Act has undermined our kinship systems, our systems of governance, and many other aspects of our lives, including by enabling the imposition of the residential school tragedy. A primary tool to achieve those ends has been discrimination targeting first nations women.
This is the third time Parliament has attempted to rectify the sex discrimination in the act. In 1985, changes made under Bill C-31 left the task incomplete. In 2009, the British Columbia Court of Appeal found that the combination of the two-parent rule, the hierarchy of different types of status under subsections 6(1) and 6(2) of the Indian Act, and the second generation cut-off perpetuated sex discrimination under the act. Now the Descheneaux case has forced Parliament to make a third attempt.
We understand the compelling need for the government to respond to the discrimination identified in Descheneaux. Unfortunately, Bill will result in continued discrimination. In addition, the proposed amendments in Bill S-3 will compound the existing complexity of the Indian Act registration provisions by adding three additional subparagraphs to paragraph 6(1)(c).
The basic approach of this bill is to continue arbitrary federal control over first nation identity and simply push the residual gender-based discrimination down one generation.
Our review of Bill suggests other discrimination that will not be addressed. Number one, under Bill , which addressed the McIvor decision, a woman who regains her status is deemed to be under subsection 6(1), and her children would also be eligible for subsection 6(1) status, passing on through future generations. However, a woman who lost and regained status for any reason other than that addressed under Bill C-3 was deemed to be under subsection 6(2), disadvantaging any future offspring.
Number two, Bill C-31 attempted to address the decision of the United Nations Human Rights Committee in the Sandra Lovelace case, as well as charter compliance issues. Now, under Bill C-31, a woman who regains status is deemed to be under subsection 6(1). A person, male or female, who lost and regained status under any circumstance other than marriage, under Bill C-31, is deemed to be under subsection 6(2), and any future offspring may be ineligible for status.
In our view, Canada's continued imposition of a two-parent rule, combined with the hierarchy of status transmission established by Bill C-31 under subsections 6(1) and 6(2), lies at the heart of the ongoing sex-based discrimination. We note with considerable concern that there is apparently no remedy yet for the unfair and long-standing discrimination in the department's policies respecting so-called “unstated paternity”.
I emphasize that these are not usually situations of paternity being unknown but most often of a woman having other reasons for not identifying the father of her child.
Oh, boy. I'm going to have to go fast.
[Witness speaks in Cree]
I give thanks to the Creator for this day and acknowledge you all, my relatives and friends.
Moving forward, the AFN recommends that Canada work with first nations to undertake a joint review of federal law and policy and to work with us to ensure that all of this work includes a gender and citizenship lens.
Many aspects of the Indian Act constitute a violation of the treaties, the right to self-determination, and individual human rights, so much so that we must ask whether it is even possible to eliminate discrimination from an outdated piece of colonialist legislation intended to dismember our nations and citizens through gender-based discrimination and racialized concepts.
We have an enormous challenge ahead of us to move past this terrible legacy. I am sure you will agree that simply making amendments to the Indian Act will not get us there, and that whatever that path is, it must be driven by first nations and guided by our inherent and treaty rights and the minimum standards set out in the United Nations Declaration on the Rights of Indigenous Peoples.
I remind the committee that under international human rights law, the enjoyment of the right to self-determination and individual human rights are interdependent and inextricably linked. We are encouraged by the Prime Minister's leadership on gender equality, his unqualified commitment to implement the UN Declaration on the Rights of Indigenous Peoples, and the enthusiasm of ministers, especially and , to work with us to move beyond the Indian Act. That important work has not yet begun.
When we talk about status and citizenship, we have to move beyond the Indian Act, because if we remain under the Indian Act, there will be no more status Indians in 50 years. It's that simple. If we want to enjoy the right to self-determination—and we have that right—we have to exert that jurisdiction, occupy the field, and determine who is or is not a citizen of our first nations. That's up to us.
Despite the Indian Act, we say that it's imperative that Parliament and the crown work with first nations to build a new relationship in which first nations law and jurisdiction over our citizens are recognized and respected, as affirmed by the treaties, by assertion of indigenous sovereignty, and by the UN Declaration on the Rights of Indigenous Peoples. The UN declaration sets out minimum standards for respecting the collective and individual rights of indigenous peoples, including gender equality.
Gender discrimination and denial of the right to self-determination are violations of international human rights standards, including those expressed in and reaffirmed by the UN declaration. The act has been used as a piece of forced assimilation and, as such, clearly violates individual human rights and undermines our collective rights to define and determine our identities as citizens of indigenous nations.
I'm going to cut through this because I have only...how long?
Okay. I'm better when I speak freely.
In here, we talk about programs, and the government thinks it is going to make more status Indians because of this legislation. It's going to have a draw on two particular programs: the post-secondary student support program and the non-insured health benefits program under health and welfare. They've identified some dollars and resources here to take care of those new Indians, but as we point out here very clearly, where's the land?
You're only making half a treaty Indian. Okay, you have status now. You have access to these programs, post-secondary student support and non-insured health benefits. Under our treaty, we have 128 acres per individual, 625 per family of five. You're creating other land obligations, and that issue has to be dealt with. That can't be put to the side. You can't just say you are going to deal with female and male inequality. You have to deal with it comprehensively and fully. That's what I want to say there.
Now, under Bill C-31 and Bill C-3, we say that these amendments that create additional issues of treaty land entitlement, as I said, have to be addressed, and there has to be a meaningful dialogue beyond this committee. There's not enough time. Take the time to do it right. So we're going to keep pushing for that.
In Descheneaux, Justice Masse provided guidance to Canada stating that
it does not [however,] exempt Parliament from taking the appropriate measures to identify and settle all other discriminatory situations that could arise from the issues identified, whether based on sex or other prohibited grounds, in [accordance] with its constitutional obligation to ensure that [the] laws respect the rights enshrined in the Canadian Charter.
Parliament should not interpret this judgment as strictly as it did the British Columbia Court of Appeal’s judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other. The AFN is ready to work with Canada to advance rights recognition and reconciliation through jointly designed processes to ensure the full implementation of the Declaration on the Rights of Indigenous Peoples and to carry out a much-needed and fulsome joint law and policy review.
That's it. We have to work together on it.
I am Francyne Joe, president of the Native Women's Association of Canada, and I'm a proud member of the Shackan first nation located in Merritt, British Columbia. While I worked for Canada Border Services for over five years, I'm also experienced in human resource management, economic development, entrepreneurship, and insurance, all in an effort to educate and encourage aboriginal people to pursue their aspirations.
I'm here today with Lynne Groulx, NWAC executive director, and Marilee Nowgesic, NWAC's special advisor and liaison.
First, I would like to acknowledge the Algonquin nation, whose traditional territory we are meeting on today. I bring with me the voices of my ancestors, the concerns of aboriginal women from across Canada, and the hopes of our future leaders, our youth.
Since 1974, the Native Women's Association of Canada has been the only national aboriginal organization in Canada that represents the voice, the interests, and the many concerns of aboriginal women. NWAC is made up of 12 provincial and territorial member associations from across the country. Our network of first nations and Métis women spans the north, south, east, and west into urban and rural on- and off-reserve communities. Our personal sense of identity is that we are part of nations, and NWAC needs to be part of any nation-to-nation discussion. It's crucial that our gender-specific perspectives be heard and acted upon. The Native Women's Association of Canada recognizes the Government of Canada's stated commitment to end all of the known sex-based discrimination that is embedded in the Indian Act. This is a long-standing priority issue. It could result in missed opportunities to build our collaborative relationship and to ensure that we deal with the complex layers and multiple forms of sex discrimination in the Indian Act.
There are three key messages I want to deliver today.
First is the current backlog on registration and membership at INAC. Bill leaves out indigenous women, and their basic rights are being denied. This is a fundamental breach of their rights to entitlements under the Indian Act, such as housing, education, health, and economic development. From a traditional understanding, indigenous women cannot be separated from the impacts of colonization, systemic issues, and the policies and laws that have reduced the stability of our environment, the practice of our spirituality, and the expression of our inherent right to self-determination. We want to caution the government about the timeline. Indigenous women have multiple priorities at this time of the year. Children are in school and have extracurricular activities. Women are preparing for the harvest, hunting, and traplines. They're preparing for Christmas holiday celebrations with family and friends.
Second is that engagement does not mean consultation, and consultation does not mean consent. Indigenous women need to lead these discussions. The two-part process, as described by the Government of Canada, is to be in reconciliation with indigenous peoples through a renewed nation-to-nation relationship, based on the recognition of rights, respect, co-operation, and partnership. As of September 28, we have had only one information session by department representatives. This does not constitute engagement, partnership, or respect.
The government has already announced that it will have a two-stage approach in response to the Superior Court of Quebec's decision in the case of Descheneaux, and this must be done by February 3, 2017.
NWAC is particularly looking forward to addressing not only the systemic issues but also the impact those issues have had on indigenous women. As I've said before, these include our personal sense of identity, since we are also part of the nation; the lack of belonging and recognition experienced in some communities when women want to return to their home community; the undermining of indigenous women's governance roles and the ability to coordinate collections of issues; and the financial under-resourcing of our organization. NWAC is the organization that has the expertise on indigenous and gender-specific perspectives.
Third is that indigenous women themselves have the right to determine their own identity. Articles 33.1 and 33.2 of UNDRIP regard indigenous peoples' rights to determine their own identity and the structures of their institutions in accordance with their own procedures; of course, this is paraphrased.
As a national aboriginal women's organization that has spent over 10 years being undermined and ignored, and having our funding cut by 60% by the federal government, NWAC is in the process of actively rebuilding our capacity to substantively respond and coordinate a national response within a short timeline. Our current rebuilding status needs to be factored into the engagement processes at this time and should not be used as a way to undermine our participation in these key discussions and decisions.
While we are currently working on addressing the procedures and processes that will drive the missing and murdered indigenous women and girls inquiry commission, we are the lead organization for indigenous women to bring their issues, their concerns, and sometimes their missing voices to effectively address the inequities.
NWAC will work with all levels within the Government of Canada to end the inequities and discrimination that have been part of the Indian Act since 1876.
Kukwstsétsemc. Meegwetch.. Thank you for your time.
[Witness speaks in Innu
Good afternoon, everyone. I thank the Creator for having brought us here, and I also wish to acknowledge the vast non-surrendered Algonquin territory we are on.
Ladies and gentlemen members of Parliament, Kwe. The Quebec Native Women's association wishes to acknowledge the Anishinaabe Nation that welcomes us today on its vast non-ceded territory. Today, this welcome has particular significance, given the recent events in Quebec. It was on Anishinaabe territory that aboriginal women courageously denounced the abuse and violence there were subjected to by Sûreté du Québec police officers. The Quebec Native Women's association reiterates its message: we believe these women, and we demand an independent provincial judicial commission of inquiry in Quebec. IKWÉ solidarity.
Quebec Native Women Inc. is an organization of aboriginal women that has worked to put an end to injustice since 1974, so that our children may grow up amongst their own people and know their language, culture and traditions, and be proud of them. Since 1974, Quebec Native Women Inc. has been fighting against policies intended to assimilate our peoples, and against sex-based discrimination, that constitutes the basis of the Indian Act. Still today, in 2016, our societies are being torn apart by this.
According to the aboriginal oral tradition of the pre-colonial era, life between men and women was well defined. Although our roles were different, there were valued equally. There was mutual respect between the sexes and the generations. Aboriginal women benefited from a level of respect, equality and political power that European women of the the same era could only dream of. Several aboriginal societies were in fact matriarchal and matrilinear.
As you know, that balance between the sexes was violently destabilized by the colonial policies that were subsequently put in place deliberately by Canada. Colonization had devastating effects on our peoples, due notably to increasingly aggressive assimilation policies. These targeted our women and children in particular. The Canadian government was well aware of the importance of women in our society, particularly their role in passing on knowledge. It knew that to achieve its objectives and to eliminate the “Indian issue” and the Department of Indian Affairs in Canada , it had to uproot our peoples and tear us away from our lands and traditions.
It was expressed quite clearly in black and white that this law was created to accelerate territorial dispossession and decrease the number of aboriginals in Canada. In its annual report in 1895, the Department of Indian Affairs clearly expressed its intent to target our languages in order to assimilate us as peoples. To reach that objective the government intended to target the pillars of our societies, our women, who passed on knowledge to our children, the future of our societies.
The Indian Act served as a tool to achieve that by defining in a patriarchal and paternalistic way who was recognized as an “Indian” in Canada. During the 1800s, only those whose fathers were aboriginal were considered “Indian”, and any woman who married a non-aboriginal lost her aboriginal identity under the law.
It was this same law that imposed the residential school system on us. Its purpose was, and I quote, to “kill the Indian in the heart of the child”.
This law was built on a foundation that sought the abolition of our societies by attacking our women and children, as well as the transmission of our cultures, languages and way of life.
If Canada sincerely intends to bring about reconciliation with aboriginal peoples, it must be accountable and accept history and its repercussions on our current societies. Quebec Native Women Inc. believes that it is impossible to achieve reconciliation if our relationships are governed by a law that does not give us the right to determine our own identity, keeps us in wardship, and is based on racist and discriminatory principles.
Since the beginning of the 1970s, there have been court challenges to the Indian Act. After the very long and worthy battles led by Ms. Mary Two-Axe Early, Ms. Jeannette Corbiere Lavell and Ms. Sandra Lovelace Nicholas, Canada, that refused to recognize the sex-based discrimination of the Indian Act, saw its decision invalidated at the international level by the United Nations, which asked it to amend this act.
In 1985, Bill C-31 was passed to alleviate this discrimination. However, it did not put an end to it. On the contrary, it created new ones. It led to the creation of two categories of status. Status aboriginals were now divided into two groups: the one described in subsection 6(1) and the one described in subsection 6(2). This is painfully close to eugenics. These provisions inserted into the Indian Act the concept of the purity of bloodlines that once again divided our peoples and imposed a foreign system on our ways of governing.
In 2011, Sharon McIvor continued the struggle by standing up to sex-based discrimination due once again to the Indian Act. This led to Bill , which failed to put an end to these years of discrimination.
Here we are together again today in 2016 to deal with these same issues. Quebec Native Women Inc. is asking you, ladies and gentlemen, to acknowledge the absurdity of the current context and the insidious nature of exercises like this one.
Quebec Native Women Inc. wishes to highlight the courage and perseverance of the women and men who waged these legal battles, but is forced to recognized nevertheless that each of these amendments was only a small bandaid on the serious and gaping wound of the cultural genocide attempted by Canada on aboriginal peoples.
Quebec Native Women Inc. wishes to remind Parliament of article 33(1) of the United Nations Declaration on the Rights of Indigenous Peoples, which establishes that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”
Indian status, that has been divided into categories and is awarded according to criteria that will remain sexist even after the current proposed changes, represents a blatant violation of this right we have to decide who we are.
In 2011, our association held a gathering of the nations where the theme of identity was discussed with its members. Together, they expressed the nature of language, culture, belonging to a territory, values and traditions that are the markers of our identity and indigenous citizenship, and not blood quantum or the number on a card issued by the Government of Canada.
In today's context, Quebec Native Women Inc. is asking the Government of Canada to eliminate once and for all the discrimination practised against aboriginal women, including those who, for several reasons, do not declare the paternity of their child.
We also ask that the women who have suffered from discrimination since the period before 1951 may recover their status before it is too late for them.
Finally, we ask the government to eliminate the categories of status that set registered aboriginals apart and give rise to a contemptible and discriminatory hierarchy based on racist and shameful criteria such as the purity of blood.
Quebec Native Women Inc. is asking the Government of Canada to allow first nations themselves to determine who they are.
Given the government's intent to begin the second phase of the work in February 2017, the Quebec Native Women's association is proposing its collaboration with you in this process. We have expertise on this issue developed since 1974, and we believe that we can make an important contribution to reconciliation for the future of our peoples, of our women and children, for the next seven generations.
I would also like to say that we are going to run out of time to consult the 54 aboriginal communities of Quebec. This process is really inadequate. Our organization, Quebec Native Women Inc., met with representatives of the department. I invited them myself to come to our general assembly to discuss the Descheneaux decision, but only 66 women will be present. There are 54 communities to consult. The process is not adequate.
Thank you. Tshinaskumitin.
Thank you to all of you for coming here to make a presentation.
We've had a couple of presentations already, and the whole issue has been described as complicated and complex. I don't think there is any aboriginal person who is not affected by this bill. I'm from the Northwest Territories. We have five tribal councils there, and a large Métis population, and we're all impacted somehow by this issue. As Perry described it, it was a tool to create assimilation. We heard from Justice Murray Sinclair that residential schools were doing the same thing. So this is an issue that's been around and that has challenged us for years.
It has impacted me and my family. I have cousins who have status and cousins who don't have status. I really can't explain why. It's been very difficult to go up the ladder and say they are brother and brother, but why did it fall to different parts?
We know there were other influences. We know that the government played a role in it. We know the church played a role in it. A lot of times they were the ones deciding who was going to fit into what category. Even people from the Hudson's Bay, and those types of people, had a role to play and decided where we were going to end up.
When I heard and saw that we were moving forward on this bill, I thought the same way I think most of you did, that it doesn't go far enough. There are so many things we have to address. But having looked at it further and having seen that there's a two-stage approach, I think we need to just move forward with this. There is some merit to this bill. I am very worried that if we are going to try to engage in a full-blown consultation process to discuss all the issues, we may be going for many years. I think this process from the time it was initiated to now has taken six years. We may be in another government by then if we take the same amount of time.
We are part of the suicide study and we know already that many components need to be addressed to start solving the despair in our communities; and if one piece were brought forward, I would probably welcome it. If housing were brought forward as part of the solution, I would welcome it.
My question is along the lines of what the Native Women's Association said, that this is only the beginning; it has to lead into something bigger. I'll ask the question to all three.
Do you agree that this should be dealt with now, or should we just completely hold off and try to do a comprehensive investigation of what needs to be done? We could go way back. I think you can tell how I feel, how I'm positioning myself on this. It may go back so far that it will take years and years.
I would like to hear what you think.
I remember way back in the 1980s, I was a nurse working in a community, and I went to visit one of the elders. She told me she wasn't an Indian anymore. They had taken her card away because she married a white man. He had died and she was living in the community. I can remember at the time thinking that it didn't make any sense. She was clearly a member of that community. Since she was an elder at the time, I don't know if she lived long enough to regain her status.
We had our first hearings on this issue on Monday. To be frank, the Liberal government has said very nice words in terms of the process that they're going to engage in as they bring forward legislation. I was stunned to hear from Chief O'Bomsawin and from Stéphane that they hadn't even been consulted. These were the litigants in this case. It was stunning, in terms of the process, to see the failure to reach out even to the people who were the litigants and the chief who was a litigant in this case in any way to develop this legislation.
We can talk about process. I think that's an important conversation for us to have about what happened around this bill.
The legislation before us clearly responds to those specific circumstances. We understand that there are other limited circumstances that have not been addressed. If there is a big issue to deal with as well as those other little circumstances before the government heads into its phase two, I'd like to hear whether we should be dealing with those ones that we're aware of, that are in addition to what's here in the Indian Act. Should we be moving forward with what's here?
I open that up with regard to both the process and the next step.
Again I go back to saying you need more time to get it done right, even though there is that court order. Bill is there; you're making amendments now to the Indian Act.
The issue is the Indian Act. You're tinkering with the Indian Act right now; that's what you're doing. A court told you that you have to tinker with it because there is unfairness and there is injustice there between male and female, and you're trying to correct that. I get that; you're trying to fix it. You're putting a band-aid on a great big cut, and it's very temporary.
You have to move beyond the Indian Act and start recognizing the right to self-determination and look at things like whether someone will no longer be a Cree indigenous person if the Indian Act is done away with tomorrow and they lose their status card. Our rights don't come from the Indian Act. We have inherent rights and we have a treaty relationship with the crown, and we have to exert jurisdiction over our own citizenship. But that also has to be linked to a new fiscal agreement on total population on and off the reserve. There is an issue of portability of rights to services and programs. You're not a treaty Indian only if you live on Little Black Bear. In the Corbiere decision, chiefs and councils represent all their people, on and off the reserve. Now there is going to be the issue and expectation of portability of services and programs and rights.
You can't just tinker with this; it has to be more comprehensive, and it's going to take some time.
I offer four points: longer consultation time to get it right; support a law and policy review. All of the outdated laws and policies that this government has, from compensation claims to specific claims to additions to reserve to the inherent right, are based on termination of rights and title, not on recognition. We have to exert jurisdiction over our own citizenship; that's what we have to do, but it has to be linked to a fiscal relationship with the crown, which we're working on. And then, don't forget the land issue.
I remember that in 1985, when Bill C-31 came in, all of our chiefs said that the crown was just making half a treaty Indian: you get this status card and you have access to the post-secondary funding programs, and then you get the non-insured health benefits through Health Canada, but where is the access to land? If you're going to do this, do it properly and comprehensively. That's my advice—four points.
Thank you very much, my friend.
[Witness speaks in Cree]
Romeo, it's a good question, and it's a question about continuing down this path. It really is. I stressed earlier on, to all the honourable members, the process of moving beyond the Indian Act. It's been here since 1876, and that's not where our rights flow from. We have inherent rights. This particular issue about citizenship is fundamental to who we are as nations. I'm going to encourage the members of Parliament here to encourage the and cabinet to make sure those processes to move beyond the Indian Act are in place. Whether you do it band by band, or treaty area by treaty area, or nation by nation, work toward another jurisdiction, and work toward recognition of the ultimate dream of us indigenous peoples.
When you go back to the RCAP report, it speaks about another jurisdiction and another law recognized in Canada, in addition to common law and civil law, and that's first nations law and the recognition of first nations governments. That's the ultimate goal and where we're going to have to work. That means moving beyond the Indian Act, but it also means recognizing our rights and title.
The most fundamental right we have is the inherent right to self-determination, to determine our own citizens and to determine our own forms of government. That's what we have to do. We have to make space in this beautiful country called Canada for our laws to be recognized. You have only common law and civil law. There's first nations law, and there's the Creator's law. Where's the space for that? That's what reconciliation will mean. Once that's recognized, we can move beyond the Indian Act. If we stay under this Indian Act, within 50 years there will be no more status Indians in this country called Canada, and we don't want that. Our children and grandchildren don't want that. It's respect for rights and title and jurisdiction, and it has to be comprehensive. It has to be linked, as well, fiscally. It all has to be linked. To me, that's the process we have to embark on.
It can't be done right away. There's fear even among our chiefs. “Oh, if you do away with the Indian Act, what will replace it?” I've always said that if you do not want the federal law or provincial law to apply, then create your own laws, occupy the field, and exert that jurisdiction. That's what we need to have in place. I'm going to leave it there.
[Witness speaks in Cree]
It is understood that the Indian Act is obsolete. It still practises forms of assimilation. If we wanted to replace it, I would still have some concerns, in the sense that this may be the only document that recognizes our existence somewhere. As long as we do not manage our own operations, our own laws and such things, we can lean on the act, but only in the short term. We cannot do so in the long term, because it is too ancient. It is simply a means of protection.
Canada, after all, adopted the United Nations Declaration on the Rights of Indigenous Peoples. It is a good declaration that was prepared jointly with the first nations. It sets out human rights, universal rights, and so on. It was very well conceived and it really defines our aspirations. I think there would be an exercise to be done using that declaration. We need to sit down, study it again and suggest changes, since Canada still has not implemented it. So, we have something in hand.
In the context of the Indian Act, parliamentarians are the ones who tell us how our communities will function. You are the ones who decide who is aboriginal and who is not. A public servant at the Department of Indigenous and Northern Affairs Canada receives an application at his office, and he determines if the person is aboriginal or not.
Why do we not have the right to decide ourselves who is aboriginal? We know ourselves; you do not know us.
That is what I wanted to add. Thank you.
Thank you, panellists, for your candidness this afternoon. I want to welcome my friend to the committee and thank Mr. Angus for his great advocacy.
I'm a little confounded this afternoon because I think there's a strong realization—I know there was when we embarked on this—regarding the serious failures of the Indian Act. I fully share Romeo's sentiments in terms of its premises.
The challenge is that we have a deadline set. The issue is how to balance that, if we balance it.
I'm going to ask you some very pointed questions, and I would really like all three organizations to give a very direct answer.
With respect to the current Bill legislation that's before us, do we move forward with it, along with the consultation process for phase 2? Do we not move forward? Do we go to court to get the extension?
It seems as though I'm hearing “all three of these”, so I would like to get a direct answer from all of you. If we are going to court, what is the timeline that would be appropriate?
You have all raised very complex issues and, in fact, issues of nationhood and self-determination can't happen in three months.
How do we balance that? I would really like to get a sense from all three of you.
For opening statements, Mr. Chairman, I'll be using the 10 minutes.
Mr. Chairmen, vice-chairs, committee members, representatives, and guests, my name is Robert Bertand. I am the national chief of the Congress of Aboriginal Peoples.
I would like to acknowledge the traditional Algonquin territory we all have the privilege of meeting on today.
I would like to thank the Standing Committee on Indigenous and Northern Affairs for inviting the congress to address this important and necessary discussion on Bill .
I would like to commend Prime Minister Justin Trudeau and the federal government for withdrawing its appeal concerning the August 3, 2015 Superior Court of Quebec decision on the Descheneaux case to the Supreme Court of Canada. The decision to address the Descheneaux case through a two-stage approach to eliminate known sex-based inequities in Indian registration, and not to be limited to the specific facts of the Descheneaux case, is promising to hear.
Since 1971, CAP, formerly known as the Native Council of Canada, has committed itself to advocating for the needs of off-reserve status and non-status Indians, Métis, and southern Inuit peoples. We also serve as the national voice for its provincial and territorial affiliate organizations, or PTOs. Our PTOs are located across the country, from the western coast of B.C. to the eastern reaches of southern Labrador. CAP also has a national youth council.
The congress represents a large number of aboriginals in Canada. It currently represents over 70% of the aboriginal people who live off-reserve.
For over 45 years, CAP has committed itself to addressing issues affecting our constituency, and has been actively involved in cases that involve sex-based inequities in registration. That led to the passage of Bill C-31, and Bill C-3, known as the McIvor case.
Having reviewed Bill , CAP feels two current instances are models for effective change towards reconciliation with off-reserve indigenous peoples. Number one is the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, and number two is the Supreme Court of Canada's historic decision on Daniels v. Canada. Seventeen years ago, our former national leader, the late Harry Daniels, along with CAP, went to the court to force the Canadian federal government to acknowledge that Métis and non-status Indians are Indians under subsection 91(24) of the Constitution Act, and that the federal government has a fiduciary responsibility to them.
The congress launched that lawsuit, funded it at each stage of the proceedings and provided support at every stage of the legal process. I am very proud to have announced on April 14, 2016, that we finally won.
It took the Daniels decision, accorded by the Supreme Court of Canada, to end the judicial limbo of Métis and non-status Indians stuck in the passing of the buck between the provinces and the federal government, as to who we should deal with and who has fiduciary responsibility. The road to reconciliation with indigenous peoples, on whose behalf CAP advocates, could not have happened until the Daniels case was addressed.
Regarding Daniels, Supreme Court of Canada Justice Rosalie Abella stated that “as the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.”
An opportunity for such remedies lies in the distinct possibilities for the federal government and the congress to come together on their progressive reconciliation, in the form of engagement and consultation on all issues affecting our people. This most certainly includes stage one action on Descheneaux v. Canada.
As part of the proposed legislative amendments to address residual sex-based inequities in Indian registration, some individuals who identify as Métis and non-status will become eligible for Indian status. I would like to clearly state that the Métis nation, as expressed by the Métis National Council, does not speak for all Métis. However, the congress respects the fact that they are a Métis nation as defined by themselves. I respectfully submit that we, as an indigenous people who are part of the Congress of Aboriginal Peoples, have for 45 years embraced the rights articulated in article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which states that:
Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions....
Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
Under article 4 of UNDRIP:
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs....
Under article 18 of UNDRIP:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
I quote these articles because they carry a direct impact on CAP's constituency. We have a multitude of different indigenous peoples from different nations who live off reserve in communities.
In terms of Bill , as I previously stated, I am pleased that the government decided to withdraw its appeal in the Descheneaux case and that it has undertaken this process to address the gender inequalities that continue to exist in the Indian Act, even after the enactment of Bill C-31 and Bill C-3. Bill S-3 will give Indian status to those who should have had status all along, and will see those born after 1951 become status Indians. However, the Superior Court of Quebec was clear that amendments should not be focused solely on the facts in Descheneaux.
With that said, I do not see why the government stopped at 1951 and did not go back further. For example, Bill C-31 went all the way back to the 1860s. Why is Bill different? There could, and almost likely will be, individuals falling through the cracks due to the gap between the 1860s and 1951 not being addressed.
I acknowledge that these issues may be addressed in stage two, but that does not immediately help the person who may be entitled to Indian status and the benefits that come with being a status Indian, such as the non-insured health benefits, NIHB, and post-secondary education.
These are issues that remain very important to CAP and to its mandate as the national organization that speaks for status Indians, non-status Indians who live off-reserve, Métis and southern Inuit.
I would like to thank you again for giving me the chance to speak with you today. Meegwetch. Merci. Thank you.
[Witness speaks in Ojibwe]
I'm giving you greetings from my people, the Anishinabek Nation in Ontario. I am a member of the Wikwemikong unceded territory based on Manitoulin. I also shared my Anishinaabe name, which is Giiwedanang, which is North Star.
Having listened to the previous presentations, I am here to share with you the work that we have been doing within the Anishinabek Nation. It is what we are all talking about . It's called the Anishinabek Nation Citizenship Law or E-dbendaagzijig—“Those Who Belong.” This is the appointment I was given by the Grand Chief of Anishinabek Nation many years ago—well, not that long ago: in 2007, actually.
Just listening to everyone and looking around the table, I was thinking it might be good to take a few steps back and take some time to share with you my own personal experience with the Indian Act. It might have some relevance and bearing on what we're going through right now.
This is my status card. It says: “Jeannette Corbiere Lavell”. For 15 years, I didn't have it.
By the way, this one expired too. The irony is how can a citizen or a status member expire? But that's what happens.
In 1970, I married David Lavell, who is non-Indian—and as I pointed out, I was a member of the Wikwemikong unceded reserve—and then my rights as a member of my community were automatically taken away. I received a cheque in the mail for $35, which said that's it; you're no longer a member.
It was really hard-hitting for me, because I grew up there; my family is there; and that was my whole life—even though I did travel to Toronto, where I met my husband, but that was for work.
What I want to share with you is that changes and revisions of the Indian Act have been ongoing. Prior to that, it was revised so that our people could imbibe liquor. In 1970, when I looked at the Indian Act and the impact it was having on me, when I had no choice in the decision, it gave me that challenge. I took it all the way to the Supreme Court of Canada. That's the Lavell case, from which Bill C-31 was the result, many years later.
In 1970, we approached the chiefs—at the time it was the National Indian Brotherhood, and now it's the Assembly of First Nations—but no one really wanted to tackle this discrimination within the Indian Act, because of course it only affected indigenous women or Indian women with status.
We're still dealing with this. Here we are, 46 years later, with the same problem, so it has been ongoing. Nonetheless, this is the task you have been given as members of this committee. I understand the timeline; however, realizing the hardships that have taken place among many of our people in our communities, I say that decisions have to be made and change must be made. It is not relevant in this day and age to continue to have this kind of discrimination, especially against our women, within the laws of Canada. It must be changed.
I would like to see whatever we can do as members within our Anishinabek Nation to assist in bringing about this change.
Just to also relate, in 1973, we lost by one vote, so there wasn't any change for me and, as I've said, I didn't have my Indian status for 15 years. However, I guess the biggest impact was that legally I would not have been able to even visit my family or reside with my parents, my aunts, and my community, and this is also who I am. I have my language; I grew up there. We have our own spirituality.
When we say that Indian status is only getting access to health benefits, that's not true. To us, this is who we are as a people, that recognition. No matter where you go, you can say, “I am a member of my community, I am Anishinabek”. For me, I'm an anishinaabekwe, which is an Indian woman.
When we dealt with it in 1972-73, we didn't have any aboriginal women's organizations, but because of the determination of our women and the fact that no one was listening to us, we had to get that word out. So we formed our own provincial aboriginal women's organizations in 1973, and here they are. They just left. I am a member of the Native Women's Association of Canada as well through our provincial group.
I guess what I'm really trying to say is that there have been changes, and they have been good. They haven't been perfect, and here we are. Then Sharon McIvor worked on behalf of her grandchildren. That went through the B.C. Supreme Court and, as you well know, then we had Bill . So we have Bill C-31, Bill C-3, and now we have the next step. So it's ongoing, and it won't be resolved because there will be other aspects coming out.
I hear what you're saying, that the Indian Act is not the best. However, it is the only protection that many of our people recognize, the only protection that we have. Unless we can be assured that we will have something that is strong, and that we will be a part of it, and we will have a say in the development of a governance structure, our own constitutions, and our own citizenship act, it just can't be done away with. It may take a little while longer, but as members of the Anishinabek nation in Ontario—there are 40 first nations who are members—we have started on that process.
I don't know how much time I have.
I was asked, because I had this challenge and the passion to rectify this legislation and to remove the discrimination towards our women. As you probably heard, within our traditional culture, we were not one step behind or looked down upon. We had the same recognition. We had our roles, and we had our rights. The women in our communities were very strong. That was the balance and harmony.
When the Anishinabek Nation asked me to be the commissioner on citizenship, I did community consultations within the 43 first nations, and I drafted our own. I heard many heartbreaking stories from our people. We heard about divisions and families torn apart.
I have a draft, and it's called “'E-dbendaagzijig': Those Who Belong, Anishinabek Nation Citizenship Act”.
It's here, and I've asked for copies. I want to stress one thing, and I will take my last minute to read this to you. This is from our people.
We have decided that we will recognize the following members as members or citizens, e-dbendaagzijig, within in the Anishinabek Nation.
Every citizen of an Anishinabek First Nation is an Anishinabek Nation citizen. A person is entitled to be an Anishinabek Nation citizen provided that the person can trace their ancestry, their descendancy through at least one parent to the original people of the Anishinabek First Nation, or they have at least one parent who is a member currently registered with an Anishinabek First Nation, or the person can trace descendancy through at least one parent to a status Indian who is registered or entitled to be registered with the Anishinabek First Nation.
There was a fourth one that was added recently by a first nation resolution: These people will be members and recognized according to our Anishinabek citizenship act.
There is one last thing. As you know, the Indian Act wasn't decided on by us. There is another aspect, and I'm sure there will be another court challenge. It has to do with the treaty rights. Treaty rights haven't even been looked at, but there is something coming up. My mother had her treaty rights, but when she married my dad, who was non-treaty, it was decided by someone, somewhere that she also lost her treaty rights. It's much like marriage, but someone decided somewhere. No one knows. I asked a lawyer in the justice department. He said it's not written anywhere. It's arbitrarily decided. That's another aspect that will need to be rectified.
Meegwetch. Thank you for listening.
Your story was beautifully told that day. It was touching, and it was my first real introduction to that history of indigenous women, and the injustice that occurred and that is still occurring.
This is such a complex issue, as has been raised by many different people. I know some people are saying we should go back to the courts and we should ask for an extension because we need more time to study this. I don't think anybody disagrees that we need more time. We absolutely need more time. But right now we have an opportunity to add that status for up to 35,000 people. Through an extension for more time, we all recognize, as Chief Bellegarde said, that we're putting a band-aid on a large cut, and I don't think anybody would deny that. But that has been, and continues to be, a generational evolutionary change.
I say we have an opportunity to add 35,000, or we can fix it and we can add hundreds of thousands, but how long is that going to take? It's not just getting it through the courts to get that recognized, or getting it through consent and negotiation to get it recognized, but also even just to prepare for that outcome as well. Right now in my community, it takes two years for a Mohawk to get a status. How long is it going to take if today we add hundreds of thousands to that number, let alone health, housing, and land, as Chief Bellegarde pointed out? Land is a huge issue. I know in my community, the Mohawks of the Bay of Quinte—you were there—it's a small piece of land to add a lot more people to.
I would ask you for your opinion. Do we need to make this a multi-staged process so that we can get it right, we can finally get it dealt with, and hopefully we can finally deal with the Indian Act once and for all? That is going to, in my view, take time. I'd like to hear from both of you on your opinions.
I want to thank the panellists for their presentations.
I find it ironic that we wouldn't be able to get an extension to look further into this issue. The government certainly has no problem right now in not respecting the orders of the Canadian Human Rights Tribunal over first nations children.
This government has proposed a new relationship with indigenous peoples, based on the implementation of the UN Declaration on the Rights of Indigenous Peoples. I also heard the , not too long ago, almost a year ago, in Gatineau, promising to—and this is his word—“rescind” any legislation unilaterally imposed on indigenous peoples by previous governments. He did not say the “previous government”; he said “previous governments”.
When I heard that last year, my first thought was about the Indian Act. Naturally, of course, I think everybody thought about that.
I would like to put my question to Mr. Bertrand and Ms. Coté.
Do you think that the legislative proposal made by the Senate and the United Nations Declaration on the Rights of Indigenous Peoples are compatible? You quoted a few articles of the declaration, such as article 33, but we are also concerned with article 9 here.
I expire in 2020, and I don't need this piece of plastic to tell me who I am.
One of the questions I have is this. Who are these 35,000 people who are going to be able to get one of these? What are the benefits to them?
I'm one who looks at the long term, and where we should be going as nations. One of the things we're doing as the indigenous caucus of the Liberal government is looking at nation to nation, and what that will look like in the future. I was the executive director of Grand Council Treaty No. 3—it seems like forever ago—and we were developing our own laws. We had the natural resource law and a citizenship law, and it wasn't some other government or some act that told us who we were. We decided as a people, as a group, based on our cultures and traditions. In all honesty, I was learning because I grew up in the city of Thunder Bay. I grew up away from the culture and away from my people.
The other thing that strikes me while we're sitting here talking about citizenship or status is how ridiculous this conversation is. I was just talking to my colleague. Imagine someone from Norway right now watching us talk about other Canadian citizens governed by an act and fighting to be part of that and not being your own people. We have to move beyond the Indian Act, and I understand what you're saying. Mr. Viersen asked why we need those protections. The answer is because there's a certain class of people, and unfortunately there is a class of people who live in a lot of my first nation communities across my riding, who would suffer if the Indian Act were to disappear. I don't think a lot of Canadians understand that the dependency is so deep. The Indian Act did its job. It destroyed our people.
My first question is this. Who are the 35,000 people who would be helped by getting them under the Indian Act and getting them some of the benefits under the Indian Act? Can you answer that question, or should I be asking someone else that question?