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.