Indigenous and Northern Affairs Committee on April 20th, 2010

[The Chair, Conservative, Bruce Stanton]

Chief Montour had his hand up there as well.

[Chief William K. Montour]

I'm no lawyer, but I try to look at things in a common-sense way. The Canadian Human Rights Act, the way I read it, deals with programs and services to a community, and if somebody is not getting that, then they have an argument. We are talking about citizenship here, people's identity. I don't see where the Canadian human rights legislation has any say in that. That's from a grassroots point of view, that it's irrelevant, because all they are looking at is whether this person had due process if they were asked to leave the committee or if someone was fired because they were non-native or whatever. To me that is what the Human Rights Act is all about, not about citizenship or identity.

[The Chair, Conservative, Bruce Stanton]

We will be hearing from the commission as one of our witnesses as well, so perhaps that will be a line of questioning.

Are there any other comments on Ms. Crowder's question?

Okay, go ahead.

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

The exploratory process has come up a number of times, and on the exploratory process what we've heard clearly is that it can't stop at the national aboriginal organization level. Do you agree with that, that it needs to come down so that it is not just national aboriginal organizations that are included in the exploratory process?

[The Chair, Conservative, Bruce Stanton]

Grand Chief Phillip.

[Grand Chief Stewart Phillip]

Yes. As I indicated earlier, the Union of B.C. Indian Chiefs has been involved in discrimination, prejudice, and racism against indigenous women since our inception 40 years ago. I also indicated that we have a Bill C-31 working group, which should tell the committee members that we have been actively involved in this issue for a very long time.

We have an action plan that looks at a litigation strategy, and certainly we'll be looking at the Declaration on the Rights of Indigenous People. We will be looking towards citizenship issues in other indigenous realms throughout the world. We are going to be working with our communities in terms of determining the impact of this type of legislation.

What hasn't been addressed here is the effect that Bill C-31 as well as the proposed Bill C-3 have in eroding our membership, and that is a very insidious dimension of this legislation that is addressed in our position paper and needs further discussion.

[The Chair, Conservative, Bruce Stanton]

We'll have to leave it there.

Thank you, Grand Chief, and thank you, Ms. Crowder.

Let's go to Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Anecdotally, Chief Montour, you should take comfort in the fact that you're not a lawyer and that you do have common sense. Lawyering and common sense rarely go hand in hand. As my colleague just pointed out, that's spoken as a true lawyer. Mr. Lemay is upset that I'm dissing my own.

For a couple of weeks now we have listened to testimony across the bigger issue, which can be bifurcated into the content of Bill C-3 and then the exploratory process with respect to what in my view is a justification for the exploratory process itself; that is, there appear to be some fairly serious and profound issues around status membership and citizenship and the different perspectives on what status membership and citizenship implicate.

For the record, I share the view of the minister and his officials, who rightly said that apart from being inclusive, the department didn't have a preconceived notion of what a separate exploratory process would look like. In my respectful view, that may mitigate some of the sense that this is intended to be any process that resembles a colonial or agent-type process.

As a signatory to the Indian residential school agreement, even within the confines of the law and one of the largest class action settlements in the history of the free world, I think what we saw was consensus on a number of defined legal issues, policy matters, as they may be implicated, from the scope of what the court could have potentially considered had it actually gone before the bench.

That said, my focus in the back half of this seven minutes afforded to me is to try to understand some of the key points of convergence, and perhaps divergence, so far.

I respect and understand some of the concerns around national forums, but I think it should be pointed out that a number of the people at this session have, and currently do, participate in national forums with respect to first nations governance. In an attempt to understand, perhaps more comprehensively, what the divergent and the convergent points are, I would ask—and perhaps I'll just pick a couple of chiefs....

Chief Lonechild, you made some interesting points on a principled approach that is respectful of a nation-to-nation nation-building relationship based on a treaty. I appreciate that. You felt or perceived that there was a broad consensus.

Maybe you could start the discussion around some of the key divergent and convergent points. I think it's worth saying that the exploratory process is wide open to that extent, and it may very well involve a dialogue about some of the substantive points you raised.

Thank you.

[Chief Guy Lonechild]

Thank you very much, Mr. Rickford.

Again, as the FSIN, I'll say that this isn't our first rodeo when it comes to exploratory processes. In the province of Saskatchewan, we've got the Office of the Treaty Commissioner, which of course is an exploratory process; the Treaty Governance Office, which is an extension of that process; and other exploratory processes that have either failed to meet the expectations of first nations governance--

[Greg Rickford, Conservative, Kenora, ON]

What would make this work, Chief? Our time is really limited, and I apologize for that.

[Chief Guy Lonechild]

To get to it then, we cannot have note takers coming to our tables; we have to have decision-makers. If we have decision-makers who are able to sit down respectfully with our chiefs, as they have--and with all due respect to our chiefs who have sat there for a good number of years...I think of Chief Denton George from the Ochapowace First Nation, who is no longer with us today.

If the government is serious about this, don't send note takers; send decision-makers.

[Greg Rickford, Conservative, Kenora, ON]

And that would be to get some consensus around the content of Bill C-3, but to also look at some of the broader policy implications that have been raised by at least a couple of chiefs and grand chiefs here today.

[Chief Guy Lonechild]

I won't speak for them. I'm just trying to address the question of the exploratory. There are fundamental flaws with that, and it shouldn't be something that is just a waste of your time or ours.

[Greg Rickford, Conservative, Kenora, ON]

Chief Montour, I was struck by a comment you made. You have a rich history, actually, of working with the AFN committee on citizenship. As part of this process and in an effort to get some convergence, what is out there and what has been out there for us to understand? I mean with respect to your perspective around citizenship, perhaps around models of citizenship across different jurisdictions. I don't mean in federal-provincial-first nations, but just within the first nations. As I stated, we're really looking at a reconciliation of status, membership, and citizenship, and there are constituents within each of those three places that have a stake in this process.

[Chief William K. Montour]

This is a criticism of our own governments. We've never really sat down and said, “What is a citizenship law going to look like?” I think it's imperative that we do, because citizenship has to take the place of the Indian registry and status and non-status members. People have to become citizens of our nations. That's important.

We did a study at the AFN in 1992. It said that in 100 years there are going to be no status Indians if we continue this, meaning there are going to be no status Indians by 2092. So that begs the question, what happens then? To live on our lands, you have to be a member. To be a member, you have to have status. So if there's no more status, there are no more members. So the Government of Canada says, “Well, the crown says we don't have to preserve these lands for the use and benefit of Indians any more because there are no more Indians.” I look at it as the biggest land grab of the century.

[The Chair, Conservative, Bruce Stanton]

We are out of time there. Thank you, Mr. Rickford.

Grand Chief Phillip, did you have just a 10-second comment?

[Grand Chief Stewart Phillip]

Yes. I just want to make the point that there's a vast difference between a blind date and the actual marriage vows. This notion of a comprehensive exploratory process, in our view, doesn't come anywhere near meeting the legal standard of consultation and everything that entails.

[The Chair, Conservative, Bruce Stanton]

That will conclude our second session.

I want to thank all of the witnesses for their time and attention this afternoon and for keeping their responses concise.

Members, we're going to take another very brief suspension. We'll resume at 10 minutes after the hour for our final session.

We're now suspended.

[The Chair, Conservative, Bruce Stanton]

I would ask members to come back to their seats. We'll resume for our next one-hour session.

I would also ask the witnesses to come and join us at the table.

Chief, some of our staff will help to adjust the room for you.

[Chief R. Donald Maracle, Chief of the Mohawks of the Bay of Quinte, Association of Iroquois and Allied Indians]

We're here on behalf of AIAI, which is part of this group, but we're not in the same presentation.

[The Chair, Conservative, Bruce Stanton]

That's fine. There are three separate presentations.

Chief Maracle, while you carry on getting set up, we'll begin.

I would take this opportunity, first of all, to apologize that we're later into the day than we had first anticipated. These things sometimes happen. We recognize that our witnesses have travelled some distance to meet with us today. It's important that we have the opportunity to get their comments on the record.

Let's begin. By the way, we'll have three 10-minute presentations. I think you've been here for part of this and have seen how it goes. We'll open with presentations of 10 minutes. We'll then go to one round of questions from members.

At this point, I would like to invite Ms. Sharon Venne to make opening comments for 10 minutes, please.

[Sharon Venne, Treaty Researcher, As an Individual]

Good afternoon.

I'd like to thank the members of the committee for giving us time to make a presentation.

I am speaking here on behalf of the chief and council of Onion Lake Cree Nation, which is in the Treaty 6 territory located in the present provinces of Saskatchewan and Alberta. In addition, I am speaking on behalf of a number of treaty peoples who have asked me to make their voices heard.

The title of this bill refers to gender equity. This is gender equity within the Eurocentric legal system. Our views of gender roles and what constitutes gender equity may be quite different from those that Canada considers to be universal. This legislation does not affect the indigenous laws of our nation.

By way of background, we came from a territory that made a treaty in 1876 with the British crown on a nation-to-nation basis. At the time of the treaty-making, the lieutenant governor and imperial commissioner, Alexander Morris, requested a peace and friendship treaty be made with our nations. The treaty-making was between nations, not on an individual basis. The crown was following its own laws encoded in the Royal Proclamation of 1763 that treaties are made with the collective.

At the conclusion of the treaty-making, the chiefs were requested by the treaty commissioner to identify their people. This was self-identification. The individual identified with a certain band, and that band accepted them as being part of their band. The treaty commissioner did not select people and put them behind their leaders. Indigenous peoples lined up behind their leaders and treaty pay lists were created. These treaty pay lists were the source of the status lists that were created by the 1951 amendments to the Indian Act.

If you look at the elements of self-identification in relation to indigenous peoples, one of the most fundamental elements of identification is: one, on an individual basis, an indigenous person is one who belongs to those indigenous peoples through self-identification--group consciousness; and two, is recognized and accepted by the group as one of its members--acceptance by the group.

This preserves for those communities the sovereign right and power to decide who belongs to them, without external interference. This is essentially the definition that the Supreme Court of Canada accepted in the Powley decision in relation to the Métis. This is not the standard being used by Parliament in dealing with treaty peoples.

At the time that Lieutenant Governor Alexander Morris was at Carlton House making a treaty with my ancestors, Parliament in Ottawa was passing an act for the gradual civilization of Indians. At the treaty-making, the legislation of Canada was not mentioned. Over the years Canada has been making piecemeal amendments to the Indian Act to accommodate its own political agenda.

I will show you examples of the Indian Act and its amendments from 1868 until 1975, which I indexed some years ago, as an example of how many acts we are talking about. The Indian Act was in place long before the patriation of the Constitution in 1982. Indigenous peoples fought hard to have our treaty rights protected in the patriation process. It was the result of extensive lobbying by indigenous peoples that there were certain sections inserted into the Constitution, including section 25 of the charter and section 35 in the Canada Constitution Act.

After the Queen came to Canada and signed the Constitution Act on Parliament Hill in April of 1982, the Government of Canada and the Department of Indian Affairs pretended that the Constitution did not happen. There was no overhauling of acts of Parliament to bring them into line with the Constitution, as there was when the North American Free Trade Agreement was entered into. Rather, there has been complete silence from Parliament.

The Indian Act has been amended through a piecemeal process over the years, bringing it into line with the goals and objectives of the state of Canada and not with the provisions of the Constitution. There is a move to use the act as a means to individualize the rights of indigenous peoples. Parliament is again involved in this process by making amendments to the Indian Act, as if section 25 of the charter does not exist.

When we had these treaty pay lists and they converted them to status lists, this was an abuse of the treaty relationship. This was an abuse of the honour of the crown. And where is the honour of the crown in this relationship?

The Government of Canada, through the Department of Indian Affairs and other departments, has taken the definition of Indian and made policies for the purposes of funding various programs and services. These programs and services were delivered without consideration of the legal and constitutional obligations owed to treaty peoples, and this has been pointed out by the Auditor General.

Now, members of the committee are probably wondering what this has to do with Bill C-3. If you could give me a second, I'll explain.

Minister David Crombie, when he introduced Bill C-31, was very clear about the issue of status. Status is the government's identification of a person who is an Indian for the purposes of defining benefits the government wants to give Indians as individuals. It is not based on the constitutional obligations owed to treaty peoples. Membership is a collective right. The first nations decide as a collective who are their members. As a treaty successor state, the Government of Canada must accept the collective decision, just as the treaty commissioner accepted the treaty list at the time of the making of the treaty. It is not the business of Canada to decide membership using legislation designed to assimilate and destroy the first nations.

Let me just go to the part of the decision relating to the B.C. Court of Appeal. In paragraph 66 of that decision--and the Department of Justice did not mention this paragraph in their presentation on the history of the case--there is very significant wording. This is what the judges of the court of appeal said:

I do not doubt that the arguments might be made to the effect that the elements of Indian status should be viewed as aboriginal treaty rights. The interplay between statutory rights of Indians and the constitutionally protected aboriginal rights--

[The Chair, Conservative, Bruce Stanton]

It's important, but slowly, for the translation.

[Sharon Venne]

Excuse me. I wanted to get it all in before 10 minutes. I'll slow down.

[The Chair, Conservative, Bruce Stanton]

You have five or six minutes.