Indigenous and Northern Affairs Committee on April 15th, 2010

[The Chair, Conservative, Bruce Stanton]

Good afternoon, ladies and gentlemen members, witnesses and guests.

We are starting the ninth meeting of the Standing Committee on Aboriginal Affairs and Northern Development. On the agenda, pursuant to the Order of Reference of Monday, March 29, 2010, we are considering Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs).

This afternoon, ladies and gentlemen, we welcome our continuing consideration of Bill C-3.

We welcome the Regional Chief of the Assembly of First Nations for British Columbia, Chief Jody Wilson-Raybould. With her is Karen Campbell, who is the senior policy analyst, strategic policy, planning and law.

You've probably done this before, so you know the drill.

Have you done it before?

[Chief Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First Nations]

Mr. Chair, I haven't done it before, but I am a quick learner.

[The Chair, Conservative, Bruce Stanton]

The first time: well, this is good.

The way it works is that we start off with a ten-minute presentation from you. After that initial presentation we go to questions from members. The first round will be seven minutes, and that's seven minutes for the questions and the answers. We always encourage everybody to keep their questions and answers succinct.

We do simultaneous interpretation of what is said. If you can keep the pace of your remarks to a good, moderate pace, not too quick, that is always helpful.

Let's begin with you, Chief Wilson-Raybould. You have the floor for ten minutes.

[Chief Jody Wilson-Raybould]

Thank you, Mr. Chair.

On behalf of the Assembly of First Nations, I would like to thank you, Chair, and the members of the committee for welcoming me here today to speak on behalf of Bill C-3.

I would like to acknowledge Karen Campbell, who is from our offices, and acknowledge as well the national chief and my fellow colleague, Regional Chief Guy Lonechild.

I'll briefly introduce myself. My name is Puglaas--Jody Wilson-Raybould--and I come from the Musgamagw Tsawataineuk people of northern Vancouver Island. I am registered under subsection 6(1) of the Indian Act, and I am a member of the We Wai Kai Nation, formerly known as the Cape Mudge Indian Band. I am on council for my home first nation and I am the regional chief for the AFN from British Columbia. For the AFN I co-lead the portfolio on supporting first nations governments, and within that portfolio is the subset of citizenship and nation building.

I know this committee has already heard a lot of the background information with respect to McIvor, and I was pleased to see that Sharon herself appeared here two days ago, so I won't go over that background information. What I wish to provide to the committee today are some general observations on what it means to belong to a first nations community and a vision for the future of first nations that goes beyond the determination of status and membership under the Indian Act to one that recognizes the authority of our first nations across Canada to determine our own citizenship and our rights and responsibilities from that citizenship.

Since the original trial decision in McIvor, I have heard from a number of first nations people, both men and women, who are genuinely excited about the prospect of becoming registered under the Indian Act as a result of the proposed amendments. At one level this is about correcting discrimination, but at a more fundamental level it is about belonging and about association with a group. For policy-makers and administrators, the issue of increasing members might be viewed simply in terms of budget pressures, service provision, and access to resources; at its core, however, this is about community, and this is powerful. Our people are our greatest resource.

As it was in the 1980s regarding Bill C-31, it is a shame that the debate over registration sometimes solely becomes focused on scarce and limited financial resources and tax exemptions rather than the benefits of inclusiveness and self-determination.

In British Columbia, as in other parts of the country, our nations are developing our own models of citizenship. The nation decides who is a part of that nation, who is a citizen, notwithstanding the legacy of the Indian Act and membership. In the context of modern claims, the determination of citizenship is a fundamental conversation that results in the collective setting the rules and the individual electing to be a citizen or not. Citizens are beneficiaries of treaties and can participate in the political institutions created through the treaty or agreement, but--and more importantly, for the collective--in exchange they are subject to the obligations of citizenship.

In announcing the proposed amendments to the Indian Act, Minister Strahl also announced an exploratory process centred around registration, membership, and citizenship issues. I congratulate the minister on this initial step and commitment, but we can go further.

A discussion of citizenship within the broad context of nation building would be evidence of a fundamental shift in the relationship between our nations and the crown, consistent with the spirit of intent of our historic treaties, and necessary to conclude modern land claims arrangements with nations that enjoy unextinguished aboriginal title and rights. It reflects the beginning of a healthier and more mature relationship between our peoples and the crown, not only with respect to the determination of citizenship outside of the Indian Act, but also to govern through our own institutions of government, with appropriate jurisdiction and authority outside of the Indian Act. This discussion necessitates going beyond exploration and information-gathering on a wide range of issues.

There are many opportunities for first nations in this country, but there are necessary prerequisites before our nations will fully realize these opportunities.

First and foremost, there is a need for appropriate governance, which includes, of course, the determination of citizenship. There is also a need for fair access to lands and resources so that our first nations economies will be viable, with adequate own-source revenue generation, power to support critical aspects of our governance, and the provision of programs and services.

In addition to appropriate governance and lands and resource settlements, we of course need well-educated and healthy citizens. Our citizens, perhaps more than any other Canadians, are required to participate in decision-making around our own very existence and future.

Given the colonial legacy with Canada and before significant and fundamental change can occur in our communities, there is a requirement for public votes and referendums. To put it another way, to become fully decolonized we need to vote in favour of change, so we need a citizenry that can not only participate in the workforce and become active contributors to our own society and Canadian society generally, but also a citizenry that can engage in a serious conversation about social change and be part of that change. Ultimately, it will be our people's recognition of themselves as citizens of their nations and not as Indian Act registrants or members of bands that will mark the transformation of our nations.

This, of course, poses many challenges, not the least from those leaders and those in our communities who have internalized the Indian Act's identity and are overshadowed by the administrative determinism established through this colonial ordinance. Stated another way, for some first nations people, their identity has become intertwined with the colonial definition of “Indian” under the law-invested statutory rights.

Turning to Bill C-3, the AFN supports any amendments to the Indian Act that would rid it of discrimination. Discrimination in any nature or form is not acceptable, this notwithstanding that many of the chiefs and the communities they represent have not gone through the process to establish citizenship rules beyond the Indian Act or Indian Act membership codes, and are very concerned about the potential financial implications of implementing Bill C-3.

It will be essential that adequate resources be made available to first nations to avoid any further hardship in first nations communities and for our citizens, regardless of where they reside. There must be a realistic picture regarding additional funding requirements on the ground.

The McIvor case was started by our people. Sharon was supported by our people, and we continue to support the efforts of all our people to end discrimination wherever it may be found. I am fully aware that other witnesses before me have called to end all discrimination that exists under the Indian Act and would like the committee to broaden the scope of the bill. We support these aspirations. I am also advised that any expansion of the bill's purpose to go beyond addressing gender discrimination would probably require a new bill to be introduced, thereby delaying the rectification of gender discrimination. At the very least, if the committee is not able to go beyond gender discrimination issues in this bill, this committee, I respectfully submit, should assure itself that the amendments are being made to address all gender discrimination issues in the Indian Act and not just those applied in the case of Sharon McIvor.

In closing, long-term solutions do not lie in further tinkering with the Indian Act. Our nations have an inherent right to determine who is and who is not a citizen of our nation in accordance with our own laws, customs, and traditions. This is fundamental to self-governance. The real and ultimate solution to addressing ongoing discrimination in the Indian Act lies with full recognition of first nations' jurisdiction over our own citizenship. The contribution that will be made by our full citizenry, when legally recognized through appropriate citizenship processes and in part supported by interim legislation such as Bill C-3, will be profound. While some registrants or citizens of our nations may be somewhat apprehensive to return, and in some cases may initially be made to feel unwelcome by those who have an interest to exclude them, we must not forget that we are family. We will have connections and we have potential for making great contributions to our nations.

The excitement in the eyes of those who identify with being part of our nations but who, through no fault of their own, have been excluded legally from their inheritance is empowering, and it is a sign of better times to come as our nations take full control of our lives and our future. It starts with determining who we are.

Finally, Parliament is in a unique position to work in partnership with first nations to undertake a comprehensive review of the Indian Act and its related policies and regulations, to examine their intrusion into first nations jurisdiction, and to put forward mechanisms for recognition of, and staged and supported implementation of, first nations jurisdiction. We hope that you will support this critical work of supporting first nations governments.

I will end as I began: this is part of a broader process that we recommend around indigenous nation building and rebuilding.

Thank you for your time. Gilakasla.

I would happy to answer questions from the committee. Thank you.

[The Chair, Conservative, Bruce Stanton]

Thank you.

We will now go to questions by members.

Mr. Russell, you have seven minutes.

[Todd Russell, Liberal, Labrador, NL]

Thank you, Mr. Chair.

Good afternoon, Chief Wilson-Raybould, and Ms. Campbell. I also want to acknowledge the national chief, who is with us today.

Chief Lonechild, it's good to have you with us as well, and of course all of those who are listening in.

When I listened to your comments, certainly I found little to disagree with, but I'd like to clarify a number of points that you raised.

Do you feel that Bill C-3 adequately responds to the McIvor decision at the B.C. Court of Appeal? I think our first bit of business is to make sure that the government has adequately responded to that particular decision.

In your view, after having had a look at it--and believe me, I'm no lawyer, and all these different categories sometimes can get a bit challenging--and from your analysis of it, does the bill that we have in front of us adequately respond to the B.C. Court of Appeal's decision?

[Chief Jody Wilson-Raybould]

Thank you for the question. I am a lawyer, and looking at the complexities of legislation, I can certainly relate to the way you're feeling.

In terms of adequately responding to the specific circumstances with respect to Sharon McIvor, this bill addresses that aspect specifically. What this bill does not do is address other Indian Act gender inequities that go beyond the specific circumstances of Sharon McIvor and Sharon McIvor's grandchildren.

[Todd Russell, Liberal, Labrador, NL]

What I hear you saying, what I've heard other witnesses say, what I'm reading in some of the literature, and what I believe even the government itself may acknowledge, is that gender discrimination will continue to exist under the Indian Act, even with the passage of Bill C-3. Is that a fair statement to make?

[Chief Jody Wilson-Raybould]

That's an absolutely fair statement to make. Gender discrimination will continue to exist.

[Todd Russell, Liberal, Labrador, NL]

Any reasonable person--I suppose we pretend that we're reasonable most of the time--would say that we have to take steps to address that gender inequity, at least while the Indian Act is still in its present form, because it will be the law of the land for some time.

The proposition has been made, and I've made it myself, that we could address it through the existing Bill C-3. There also seems to be some opinion that we may not be able to address it through Bill C-3 because we would expand the scope of the bill, and therefore it would be ruled out of order if we brought in an amendment strategy. We're not sure, but that has been the contention.

Would you suggest that the government be proactive in identifying and understanding that there is additional gender discrimination, or sex discrimination, and that the government should be proactive in introducing other legislation to address the other inequities or inequalities that exist under the current Indian Act? I'm not suggesting that we dispose of Bill C-3 while waiting for something else, but that we could deal with Bill C-3, and the government could be proactive in introducing additional legislation.

Would you agree that we could go that particular route? And that's on the Indian Act itself; I'll get to the exploratory process a little bit later.

[Chief Jody Wilson-Raybould]

Thank you for that question.

With respect to discrimination in any form, I do not agree with it whatsoever. I believe it would be the position of any reasonable person, as you say, to eradicate discrimination wherever and whenever possible in today's age.

While I see the remedy of gender discrimination with respect to Sharon McIvor, there are several other places where the Indian Act discriminates by virtue of gender. I believe that this is an opportunity for Parliament, for the government, to within the scope of this bill rectify that gender inequity.

This is not to say that there are not other inequities that occur within the Indian Act that may arguably be outside the scope of this bill, but with respect to gender discrimination, I believe this is an opportunity to do just what you suggest.

[Todd Russell, Liberal, Labrador, NL]

Yes. I think most of us would agree that we shouldn't have to wait another 20 or 25 years consuming another generation to get from Bill C-31 in 1985, to Bill C-3 in 2010, to some other bill 25 years from now.

In terms of the exploratory process, I understand that much of your comment was taken up with issues of self-determination, self-government--i.e., we shall determine who we are, we know who we are, we just want the means to be able to determine that in our own fashion. And I certainly agree with that.

These exploratory talks.... Very interestingly, I watched a documentary, Talking Around the Table, just last night, which featured Chief Wilson. I'm sure you're very familiar with him.

At any rate, I think it was a lesson to me. I mean, substantive talks were offered at that particular time: three first ministers' conferences with all the premiers, the Prime Minister, Trudeau at the time, and then Mr. Mulroney. But at the end of the day, many would say that they didn't advance that far.

How confident are you that these exploratory talks are going to shed more light or to imbue the process with something that's deliverable for first nations people? What would it take, in your view, for these to work? What would the process look like? What kind of resources would you require? You know--

[The Chair, Conservative, Bruce Stanton]

You're out of time, Mr. Russell. You have a fairly important question there, so you have maybe 40 seconds or so for answer before we go to the next speaker.

[Chief Jody Wilson-Raybould]

Thank you, Mr. Chair.

The documentary was Dancing Around the Table, and thank you, that was my father, Bill Wilson.

With respect to the exploratory process, while, as I said in my statement, I applaud Minister Strahl for advancing this process, I believe we are at a time in our history as aboriginal and first nations people that we need to go beyond exploration and information-gathering to the point where we are actually empowering our first nations communities on the ground to determine for themselves how best they want to move forward.

Yes, that requires an enormous amount of time, likely--most definitely, actually--beyond the one-year period, and actually investing in the communities, hearing from the communities on the ground.

How can the government can support that? Well, they can--

[The Chair, Conservative, Bruce Stanton]

Sorry, that's time.

Thank you.

Mr. Lemay, you have seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I'm going to speak to Chief Wilson-Raybould.

Grand Chief, thank you for being here with us. I agree with my colleague in recognizing Grand Chief Atleo and Chief Lonechild.

As you will see, I am very precise. I'm speaking to the lawyer. We have begun our proceedings, and I will ask you to examine one point. I don't need an answer today. I'm also speaking to Grand Chief Atleo, who I know will listen closely.

This is a draft amendment that we are going to try to introduce. I would like paragraph 6(1)(a) to be amended to read: “or if that person was born prior to April 17, 1985 and was a direct descendant of such and such a person.”

In my opinion, and I'm not the only one to think this, that is the only way to prevent the perpetuation of the discrimination you suffer and will continue to suffer if Bill C-3 is passed in its present form. I would like you to consider this amendment, to look at it and to send your comments to the committee. I already know that the government will probably not agree because this may go too far, but we can debate that here amongst ourselves. I would like to know whether the First Nations would be satisfied with that amendment. That was my first comment.

Furthermore, I don't believe—and I say this sincerely—in the exploratory process they want to put in place. In 20 years, this still will not be resolved. I would like you to talk to me about possible amendments. I'm not saying they can be introduced immediately.

Discrimination and registration are two completely separate things. I think we can address discrimination, or at least in part. However, with regard to registration, section 11 of the Indian Act should be amended. I would like to hear your comments on that subject. I think we can do part of the job with section 6, but as for section 11, that is to say registration... I don't think we need to explain section 11 to you. That concerns the power of the communities to register their members.

I would like to have your comments on that subject.

[Chief Jody Wilson-Raybould]

Thank you for the questions.

With respect to the proposed amendment to paragraph 6(1)(a) that you suggest, I recognize that this is the amendment put forward by Sharon McIvor herself to remedy the situation before the days of 1985 and to provide paragraph 6(1)(a) status to those people who come before that date.

With respect to your question around the exploratory process and whether or not this will take another 20 years, I believe that we are in a time of real opportunity and that the opportunities presenting themselves now are different from the opportunities that presented themselves 20 years ago. We have enormous opportunity in terms of first nations, and our opportunities have been provided to us from previous leaders who provided victories in court, at the negotiation table, and otherwise. I certainly believe that an exploratory process, or actually going beyond an exploratory process, is a fundamental engagement with communities on the ground. That is what needs to happen, and it needs to be driven by first nations themselves--not dictated to first nations from the outside, but actually created by first nations themselves.

With respect to status and discrimination, I recognize your comment around the ability to eliminate discrimination within the Indian Act. I alluded to this somewhat in my comments. There is a clear distinction between status and the ability--that's a colloquial term--to be registered under the Indian Act and have membership or citizenship within a first nations community. The lines with respect to those two trains of thought have become blurred, and that distinction needs to be made clear. Being registered as an Indian under the Indian Act does not equate to identity or identity with respect to a specific nation. Membership or citizenship within a specific nation will be determined based upon our own inherent authority or inherent right to determine who we are and our own identity, as recognized in the UN Declaration on the Rights of Indigenous Peoples and as recognized or presented in the promise of article 35.

I hope that answers your question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Very well, you've responded on the exploratory process very well. What interests me, I'm going to tell you honestly—and it isn't that I don't like you. I wouldn't want us to come back in a year or two and say that we are still at the exploratory process stage.

If possible, I would like you to give us—we don't need an answer today—a guide or guidelines for implementing the exploratory process. If we have to put it in the act, we will. However, can you tell us what you think are the major principles so that a process such as the one the minister wants to trigger can move forward and be conclusive?

[Chief Jody Wilson-Raybould]

Thank you for the important question.

As I indicated somewhat, and will elaborate on now, an exploratory process that will be impactful or actually create change must be rooted in the communities, and it must recognize that the communities or the first nations across this country are distinct, just as they are similar in certain circumstances. It needs to be at the initiation of first nations communities, and the first nations communities need to see the benefit in initiating, expanding on, and harnessing that discussion. If it's not driven by the first nations communities, it simply will not work.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Already! I'm entitled to three minutes.

[The Chair, Conservative, Bruce Stanton]

Yes, and you even had 40 seconds more.

Now we'll go to Ms. Leslie, for seven minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you, Mr. Chair.

Thank you very much, to both of you, for appearing here today. It's very helpful.

My name is Megan Leslie. I am the member of Parliament for Halifax, which is on Mi'kmaq territory. Pjilsa’si. Welcome.

I will continue along the line of the discussion you were having with Mr. Lemay. You said in your opening statement that you are supportive of any amendments to get rid of discrimination in the act, and I think we could all be supportive of that.

We have had some contact with different first nations. They have said that, yes, the federal government had engagement sessions for the amendments to this act with groups or individuals or native organizations, but the duty to consult is about a consultation with rights holders. These first nation governments said that this duty to consult means the federal government actually needs to consult with first nations governments. There has been a little bit of pressure that maybe we shouldn't even be looking at the changes, as adequate or inadequate as they are.

What are your thoughts on that?

[Chief Jody Wilson-Raybould]

Thank you for the question.

I recognize that there is a divergence of opinion among first nations leadership and first nations generally across the country. As I indicated in my statement, I believe that any discrimination should be eradicated in this day and age.

The question of consultation is somewhat difficult for me to address, because there is some assumption that there is a need for consultation to amend the Indian Act. I'm not saying there isn't, but as a lawyer, I look at consultation and accommodation in the legal context of aboriginal title and rights. In this case, with respect to the government changing the Indian Act, there is also a form of consultation. The Indian Act is an antiquated piece of legislation. It certainly is complicated, and there are varying degrees with respect to engagement with first nations on issues that seek to amend it.

There have been a lot of changes to the Indian Act over the years. Making fundamental changes, which are driven by first nations, to enter into a treaty or to negotiate a self-government arrangement requires a referendum within a community. In this particular case, with respect to Bill C-3 to get rid of discrimination, there is a different form of consultation.

I recognize that there have been engagements across the country with respect to Bill C-3 and citizenship, but the broader and more important discussion that the first nations leadership across the country has raised is around that citizenship issue and how to be respectful of first nations ability to determine for themselves who they are and who their citizens will be.

[Megan Leslie, NDP, Halifax, NS]

That's very useful. Thank you.

In a letter to parliamentarians from the national chief earlier this month, he mentioned that current rules for registration are leading to a rapid decline and ultimate extinguishment of eligibility for Indian status. I wonder if you can shed some light for us on what this means for communities that rely on federal funding for services and programs where the eligibility is status.