Evidence of meeting #12 for Aboriginal Affairs and Northern Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was aboriginal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Udloriak Hanson  Special Advisor to the President, Inuit Tapiriit Kanatami
  • Jim Moore  Executive Director, Inuit Tapiriit Kanatami
  • Elizabeth Ford  Director, Department of Health and Environment, Inuit Tapiriit Kanatami
  • Betty Ann Lavallée  National Chief, Congress of Aboriginal Peoples
  • Dwight Dorey  National Vice-Chief, Congress of Aboriginal Peoples

11:55 a.m.

Conservative

Greg Rickford Kenora, ON

I just need a couple of minutes here to finish up on what we're going to be looking at.

Ms. Hanson, you were talking about the issue of sustainable development and the lack of representation at all levels. Am I making an interpretation that this would be a barrier to effective implementation...? Could you just expound a little more, in the minute or two that you have here, on this broader representation that you think is required at all levels? This will come up as an issue as we move forward with this study, and we hope to have you or one of your colleagues who's invested in this fully and completely to be a witness to us.

Go ahead, please.

11:55 a.m.

Special Advisor to the President, Inuit Tapiriit Kanatami

Udloriak Hanson

Thank you.

I'm not quite sure I understand your question--

11:55 a.m.

Conservative

Greg Rickford Kenora, ON

Well, you said--

11:55 a.m.

Special Advisor to the President, Inuit Tapiriit Kanatami

Udloriak Hanson

--but I have no problem speaking about sustainable development.

11:55 a.m.

Conservative

Greg Rickford Kenora, ON

You were in the middle of saying that there was representation at the board level, but there just wasn't enough time for us to talk about how you see representation at other levels and what that means.

11:55 a.m.

Special Advisor to the President, Inuit Tapiriit Kanatami

Udloriak Hanson

Okay. I think it can all stem back to education. We have Inuit who would greatly benefit from proper education and training dollars in order to be able to take on these managerial positions and day-to-day decision-making roles in our institutions of public government. That's pretty much the--

11:55 a.m.

Conservative

Greg Rickford Kenora, ON

I appreciate that this always comes back to a resource question for you. You and Mr. Moore have been pretty clear about that. But there are other things besides resources that motivate people to engage in skills and training and education.

How is it that land use is doing that? Is the message getting across that there are new opportunities in the communities to inspire young people or adults to be involved in land use planning types of careers? There are legal careers and a host of different career opportunities.

11:55 a.m.

Special Advisor to the President, Inuit Tapiriit Kanatami

Udloriak Hanson

Yes, we have other tools that Inuit can use, one of them being the impact and benefit agreements negotiated with our regional Inuit organizations. They provide for training dollars as well. We also have the recently released circumpolar Inuit declaration on resource development principles. In that, it outlines exactly how Inuit would like to see resource development; training is in there, and if I must put in another plug for education, there's a clause that urges communities to have resource development companies put in a percentage towards an education fund.

Noon

Conservative

Greg Rickford Kenora, ON

Thank you.

Noon

Conservative

The Chair Chris Warkentin

Thank you.

Ms. Hanson, Ms. Ford, Mr. Moore, thank you so much for coming today, for bringing testimony and for answering the questions in the short time that we allow for questions to be answered. Many of the issues are obviously much more comprehensive, and we'll no doubt be asking you back to bring perspectives on specific issues we might be studying over the next couple of years. So thank you so much.

Committee members, we will now suspend for a few minutes, just so you can greet our witnesses before we meet with the next witnesses.

The committee is suspended.

12:05 p.m.

Conservative

The Chair Chris Warkentin

In the second hour of this committee hearing we have representation from the Congress of Aboriginal Peoples. We do have before us today National Chief Lavallée--thank you so much for joining us--and Mr. Dorey as well. Thank you so much for being here. We appreciate the fact that you've taken the time to come and bring testimony.

We will run it the same as we did the first hour. We will give you as much time as necessary. We try to keep it to about 10 minutes, and then we will seek to have questions you will have time to answer. I think we learned from the first round that we as committee members have to keep our questions shorter. Just a note to committee members, keep your questions shorter.

Chief Lavallée, please bring testimony.

12:05 p.m.

Chief Betty Ann Lavallée National Chief, Congress of Aboriginal Peoples

Thank you, Mr. Chair.

Good morning to the members of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.

It's an honour to be here on the unceded territory of the Algonquin people to present you with some priority issues of the Congress of Aboriginal Peoples.

With me today is our new vice-chief, Dwight Dorey, who will be speaking to you concerning the Daniels case and subsection 91(24) of the Constitution Act of 1867. My presentation to you will focus on remaining discrimination in the Indian Act, matrimonial real property, band membership, along with aboriginal citizenship, education, and the long-gun registry. There are many more issues that will need to be discussed at a later date, including health, economic development, housing, homelessness, language, and culture.

Since 1971, the congress has been at the forefront of the aboriginal people's movement in Canada, advocating for our constituency of forgotten peoples. We advocate for the rights and interests of status and non-status Indians living off reserve and Métis. The year 2011 marks the 40th anniversary of the founding of our organization. Despite the successes that have occurred over the last 40 years, the Canadian public continues to associate aboriginal issues with Indians living on reserves. The reality is that 80% of the ancestral aboriginal population now live off reserve, with 60% living in urban areas. This is the most significant demographic factor for policy makers, yet it's the one where the least action takes place because of jurisdictional issues.

On May 18, we were pleased to learn that Prime Minister Harper had changed the name of Indian Affairs and Northern Development to Aboriginal Affairs and Northern Development Canada. This was an important step, better to reflect the scope of the minister's responsibilities for all aboriginal peoples. This type of straightforward thinking and inclusive decision-making is what we need to make progress.

The Indian Act remains the principal expression of the federal government's jurisdictional policy over Indians and lands reserved for Indians under subsection 91(24) of the Constitution Act of 1867. The political and social reality affecting aboriginal peoples is based by and large on this outdated legislation. The Indian Act status and membership rules have a long history of impacting the lives of aboriginal peoples. For example, of the almost $10 billion per year that the federal government invests in aboriginal-specific programming, almost 90% goes to assist on-reserve status Indians. This outdated policy framework needs to be reshaped and recast to reflect the fact that the federal government has the responsibility to act in a fiduciary capacity for all aboriginal peoples.

This was the central finding of the largest, most extensive inquiry undertaken in Canadian history, the Royal Commission on Aboriginal Peoples. In 1996, it reported that the relationship between aboriginal peoples and non-aboriginal peoples needed to be fundamentally restructured. The facts of aboriginal life have changed, and it's time for policies and frameworks to reflect the new reality.

CAP is pleased that the government has reintroduced Bill S-2 concerning matrimonial real property. This legislation will address a longstanding gap and will better protect the rights of aboriginal people, particularly women living on reserve. For many years, we've been calling for an effective MRP regime on reserve. Aboriginal women on reserve face unfair and unconstitutional discrimination in the exercise of their right to a fair share of matrimonial real property after the breakup of a marriage or common-law relationship. We view the bill as a positive step to ensure that aboriginal women and children receive equitable distribution of matrimonial real property assets in the event of divorce, separation, family violence, or death.

The congress has never bought into the Indian Act, and we have a long history of fighting this legislation. Back in 1974, with financial assistance from our organization, Jeannette Corbiere Lavell was the first non-status woman to bring a challenge to the Indian Act. Today, our women continue to be discriminated against through the Indian Act, but through the brave work of people like Sharon McIvor, Sandra Lovelace Nicholas, as well as many others, we are taking this legislation apart piece by piece.

I'm a registered subsection 6(2) Indian. Under the law, my son is not entitled to be registered as an Indian. We are graded like cattle or grades of beef. It is unadulterated discrimination, and fighting this is the central priority for the congress.

In January of this year, Canada proclaimed into force Bill C-3, Gender Equity in Indian Registration Act. This was a direct result of the McIvor decision, which took 20 years to move through the courts. Because this legislation is very narrow in scope, sex discrimination, unfortunately, remains in the status registration provisions. Not all descendants of the Indian women who lost status through marrying out have gained status back. The first generation was covered by Bill C-31 in 1985, the second generation through this year's Bill C-3, but further generations remain cut off from Indian status.

The only way to be sure that such discrimination is eliminated from the Indian Act is to place descendants of status Indian women on the same footing as descendants of Indian men. Today aboriginal women are not treated equally as transmitters of status. As a result of this discrimination, thousands of their descendants have been forgotten.

Another remaining problem relates to the post-1985 Indian Act registration rules and how they operate in cases of unstated paternity. In 1985 Canada went from a one-parent descendancy rule, which favoured Indian men, to a new system called the second generation cut-off rule. Now whether you were an Indian man or woman, mixed parenting is only allowed for one generation. After the second generation of mixed parenting, a person is no longer an Indian. Today, when a status mother does not disclose the father's identity, the child's registration can only be based on the mother's entitlement. From 1985 to 1999, this resulted in the downgrading or outright loss of Indian status to approximately 50,000 Indian children.

The new second-generation cut-off rule will result in a drastic reduction of the status Indian population over the course of a few generations. Status Indians, like many other Canadian citizens, fall in love and have children with people from other cultures. This common social occurrence, when paired with the second-generation cut-off rule, has the perverse result of depriving the children of these unions of either their Indian status or the ability to pass status to their own children.

It has been estimated that within 60 years only one-third of the descendants of the current status Indian population will be entitled to status. The number will continue to decline. Academics and demographers alike have argued that the Indian registration rules introduced in 1985 will lead to the legislative extinction of status Indians.

A clear solution to this problem would be for Canada to return to a one-parent descendancy rule for Indian status and apply it equally to men and women. However, everyone here can acknowledge that the capacity of courts to deal with these issues is very limited. CAP is seeking a political commitment to examine and address aboriginal citizenship, with all the associated broader questions.

Since the passage of Bill C-3 in December 2010, the federal government has launched the exploratory process. It is not a consultative process, which we like, and I'm pleased to say the government has not pre-determined or pre-defined the agenda or questions with regard to Indian registration, band membership, and aboriginal citizenship. CAP is currently engaged with the process and we're hosting dialogue sessions across Canada.

Section 74 of the Indian Act allows bands to elect chiefs and councils according to their own customs. Currently about 30% of bands have adopted their own custom codes. Under these rules a band can admit to membership people who do not have status. They can also deny membership to any status Indian except Indian women restored under paragraph 6(1)(c).

Despite this apparent opportunity to break away from the Indian Act, 30% of the bands have adopted membership rules that are more restrictive than the Indian Act itself. CAP was pleased when the Conservative government delivered on its promise to repeal section 67 of the Canadian Human Rights Act. Since 1977, section 67 has shielded bands from complaints of discrimination stemming from membership codes plus other issues.

In June of this year the transition period ended. We expect that many of the custom election codes will now be challenged under the Canadian Human Rights Act. My understanding is that Aboriginal Affairs and Northern Development has not provided any resources to the bands to review and update their membership codes or to ensure they are in compliance with the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms. That is really unfortunate, because there are some bands that are being very proactive in addressing this issue. I believe in giving credit where credit is due.

In regard to aboriginal citizenship, CAP takes the position that the right of aboriginal peoples to determine our own citizenship is an inherent right derived from the Creator and protected both under section 35 of the Constitution Act, 1982, and under the UN Declaration on the Rights of Indigenous Peoples. Our right to self-government was never distinguished.

We view the exploratory process as the beginning of a long process of questioning and thinking, and as we move towards self-determination and citizenship, we are being given the chance to come up with the solutions to long-lived problems we've had to face.

The possible self-government structures for urban aboriginal peoples are wide-ranging. CAP has been working on these challenging issues for many years and at the same time struggling with the reserve focus of federal government policies and programs. Federal and provincial wrangling has slowed progress for urban aboriginal populations.

With the resolution of the federal government's responsibility regarding Métis and non-status Indians, aboriginal and state relations will be very clear, and some of the on-reserve and off-reserve distinctions will be resolved.

My colleague Dwight will speak further to that.

The education of our children and youth is a priority of the first order for us. Aboriginal youth have the highest dropout rates, the lowest levels of literacy, and the lowest levels of skills development. The odds are better that our youth will end up in jail than that they will graduate from high school. It is education that will improve our economic situation and our lives. It is education that is integral to reducing poverty in our communities and eliminating our dependencies.

At the Summit on Aboriginal Education held in February, we were encouraged by the discussions about strengthening aboriginal success in education. The provincial and territorial ministers of education have recognized that in the next 15 years, aboriginal students will represent over 25% of the elementary student population in some provinces and territories. We encourage the Prime Minister to call a first ministers meeting on education at which an interjurisdictional commitment to improve school experiences for our students could be mobilized.

Last, I want to talk to you about the Canadian firearms registry. Currently, aboriginal firearms owners who are not compliant with the Firearms Act can incur criminal liability for unauthorized possession of non-restricted firearms under sections 91 and 92 of the Criminal Code. In the last couple of weeks, the government gave notice concerning the bill to abolish the long-gun registry.

CAP joins many other aboriginal organizations across Canada in calling for an end to the long-gun registry. We view the licensing and registration requirements imposed by the registry as an infringement on our right to hunt. Aboriginal hunters and harvesters are not part of the crime problem, and the registry is ineffective and wasteful. The infringement on aboriginal treaty rights to hunt, trap, or fish is not acceptable to our organization. CAP remains supportive of regulations requiring hunters and harvesters to secure an acquisition licence and to follow rules for the safe storage of firearms.

In conclusion, I wish to express our appreciation for the attention the Prime Minister has brought to aboriginal issues by meeting with national aboriginal leaders. In the days ahead, my colleague and I look forward to active engagement with various House of Commons standing committees that have an important role to play in moving the aboriginal agenda forward.

At this point I'll turn to my colleague, Vice-Chief Dwight Dorey, to speak on the issue of section 91.24.

12:20 p.m.

Conservative

The Chair Chris Warkentin

Thank you, National Chief.

I just want to make you aware that we are running later than we usually do. We've asked you to come and bring forward important issues. We're at 14 minutes now. Take the time that's necessary. We'll just simply limit the questioning time for committee members.

Mr. Dorey, I just put that out there as a note of information to committee members as well as to you.

12:20 p.m.

Chief Dwight Dorey National Vice-Chief, Congress of Aboriginal Peoples

Thank you for that note, Mr. Chairman.

Members of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, I want to thank you for the opportunity to speak with you concerning the Daniels case and section 91.24 of the Constitution Act, 1867.

This case concerns aboriginal peoples who assert that they are owed a fiduciary duty by the Queen and are entitled to be negotiated with in good faith by the federal government. CAP continues to engage in negotiations with the federal government concerning the rights, interests, and needs of Métis, non-status, and dislocated first nations people. However, these negotiations have been and continue to be frustrated and hampered by the federal government's denial that Métis and non-status Indians are owed a fiduciary duty based on section 91.24 of the British North America Act.

In the 17th century, the term “Métis” was used by Champlain. In 1615 he actively encouraged the intermixing of French and Indians, and many offspring resulted from those marriages. During Champlain's lifetime, the children of these mixed unions began to be called Métis. His dream has often been repeated: “Our sons will marry with your daughters and we will be a single people.” Today the Métis and aboriginals happen to be interwoven with other distinctive cultures and communities all across Canada, non-status Indians and Indians, to whom from time to time the Indian Act does not apply or to whom the federal government or its agencies have decided the Indian Act does not extend.

The categories of aboriginal peoples and definitions are too numerous to list and are not watertight compartments. Growing up and being of mixed blood myself, I was often referred to as a half-breed, a Métis, though technically speaking I was a non-status Indian, but a Mi'kmaq from birth. In 1985, after Bill C-31 was passed, I became entitled to be a registered Indian and lived on reserve, and I even served as a band councillor for several years. I became a treaty Indian. The pre-Confederation treaty of 1752 was recognized in Simon v. The Queen. I became that treaty Indian, and just a note that I exercised my right three years later to hunt moose. Technically, I could go down in history as being the first three-year-old Indian to shoot a moose.

When the Dominion of Canada was created through the Constitution Act, 1867, section 91.24 stated that the Parliament of Canada may make laws relating to Indians and lands reserved for Indians. The federal government's position is that this phrase means that they have jurisdiction over status Indians but not Métis and non-status Indians. Still, the federal government has asserted that it has the authority to define aboriginal individuals by virtue of section 91.24. Our concerted efforts with governments over the years concerning the rights and interests and needs of these forgotten people have constantly been frustrated and hampered by the crown's denial that Métis and non-status Indians are included in section 91.24, and consequently we keep getting caught up in the division of federal-provincial powers and the issue of fiduciary duty.

Harry Daniels, a Métis from the Prairies who rose to national prominence from the ideological shadows of the great Louis Riel, twice served as the national leader of the Congress of Aboriginal Peoples, at one time called the Native Council of Canada.

When I was policy adviser to Harry, we worked closely on the right of the aboriginal peoples to fully participate as partners in the political and economic structures of Canada. Our objective was to draw attention to the suppression of historic aboriginal rights and interests by an inflexible and discriminatory federalist system. In 1982, Harry Daniels was responsible for the inclusion of Métis in subsection 35(2) of the Constitution.

As a result of his efforts, the Canadian Constitution refers to Métis people as aboriginal peoples and recognizes and affirms their aboriginal and treaty rights. This was a crowning achievement of his career and a major achievement for the Congress of Aboriginal Peoples.

In the absence of a defined constitutional process to finish the work we started in 1983, the courts remain the only vehicle to obtain legal recognition of our rights. It was Harry who in 1997 said that enough is enough of this systematic denial of our birthrights. He used his leadership position at that time as the means to say to the Government of Canada “No more. We will no longer be forgotten.”

In 1999 Harry Daniels and the Congress of Aboriginal Peoples launched an action before the Federal Court that was seeking recognition of CAP's constituency as aboriginal people within Canada's jurisdiction, acknowledgment of Canada's fiduciary duty towards CAP's constituency, and the right of CAP and its constituency to be negotiated with by Canada as to their rights, interests, and needs as aboriginal people.

In 2005 there was an agreement between CAP and Indian and Northern Affairs Canada to put the case under the test case funding program, under which the Government of Canada paid the costs from 1999 to 2005, and then ongoing to date.

The law surrounding crown-aboriginal relations is a work in progress that is slow moving. We can now see the potential impact of the judicial outcome in Daniels versus the Queen, and it will be significant.

I believe that several critical issues must be resolved before we are on the right path. First, the federal government must once and for all acknowledge the fiduciary responsibility and declare that section 91.24 of the Constitution Act, 1867, is a federal jurisdiction that applies to all aboriginal people.

Second, the federal government needs to make the bold declaration that all aboriginal people are entitled to be treated fairly on the basis of an equality of rights and equity of access as principals.

Third, the Department of Aboriginal Affairs and Northern Development needs to work with all aboriginal people in order to transform a diverse range of communities into self-governing entities.

CAP recognizes that change isn't easy and it won't happen overnight. We are encouraged by the words of Prime Minister Harper that we do not need new relationships but we need to respect the existing relationships, including the treaties, and to make them work.

CAP is also pleased that the Conservative Party agrees with the necessity of reassessing the federal responsibilities in section 91, and in subsection 35(1) of the Constitution Act, 1982.

After the Prime Minister stood in the House of Commons and delivered a formal apology to aboriginal peoples who suffered in the residential school system, Canadians from all backgrounds understood that a profound injustice had been done to the aboriginal inhabitants of this country. It is time for the outdated Indian Act to be abandoned and for negotiations to take place with all beneficiaries regarding treaties and aboriginal rights.

I believe the future holds hope that all aboriginal people will take their place as distinctive and capable communities empowered with the political tools for protection of our identities, cultures, and societies.

We ask here today that you not allow this or future generations of aboriginal Canadians to be forgotten.

Thank you.

12:30 p.m.

Conservative

The Chair Chris Warkentin

Thank you, Mr. Dorey. We really appreciate your testimony.

Committee members, we are now at 24 minutes. We're going to get through only the first round of questioning, so keep that in mind in determining who is going to speak.

Also, committee members, I want to remind you of your responsibilities as parliamentarians with regard to speaking to issues that are before the courts at this point in time. I put that out there as a reminder and for the reference of committee members.

Mr. Genest-Jourdain, for seven minutes.