Indigenous and Northern Affairs Committee on Nov. 21st, 2016

[Nathalie Nepton]

As indicated, $19 million has been set aside for over five years to deal with the registration of those who will become entitled as a result of Bill S-3. Definitely, when we look at lessons learned from Bill C-3, we'll take what we've learned and apply that, because that process went very well, but that process can't completely be transferred. For example, as Madam McLeod indicated, $700 I think is the figure she provided to process a file. When we process a file, we go from A to Z. We also look at genealogical research that's required, as well as other administrative issues. That means, for example, everything from requesting additional information of provinces to looking at what's required potentially for vital statistics, and trying as much as possible to assist the person who's seeking to be registered under Bill S-3.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Chair, I'd like to share the rest of my time with Cathy.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

I want to pick up on the preliminary registration and then the appeal process, and I'm going to give you an example. There's someone who was turned down through your preliminary process. There's an appeal, but she's 80 years old, and she's been told she has to wait for a year to have the appeal heard. I'm very concerned and very interested in hearing about this, as you have only so many people dealing with registrations as it is right now. Tell me about the appeal process and why the waiting time would be so long for an 80-year-old woman.

[Nathalie Nepton]

The protest period, of course, like the application files, varies on the complexity of the file, so it's difficult to provide a range within which a person can expect an answer. I can say that in the case of this woman you've cited, I do have the discretion to ask for files to be pulled to be dealt with on a priority basis for medical reasons, age, and so on. If she would consent to your acting, for example, on her behalf to get information, that would be something I would entertain.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

For my clarity of purpose, because we will be having a lot of people, 25,000 plus, with McIvor, how many people applied, were turned down, and then entered into an appeal process? What kind of time frame did that have? How many were approved subsequently on appeal, and what length of time did it take?

[Nathalie Nepton]

I do not have the protest rates. I can undertake to provide them to the committee in response to your question.

[The Chair, Liberal, Andy Fillmore]

Thank you. We are out of time. In fact, we are out of time for this panel.

On behalf of the committee, thank you very much for your time and testimony. It was very enlightening, indeed. We'll see you again, I'm sure, as the days and months wear on.

We'll suspend briefly.

[The Chair, Liberal, Andy Fillmore]

Welcome to the next panel. Thank you for being with us today.

This panel comprises two speakers. The first is Mr. O'Bomsawin, chief of the Abénaki band council of Odanak. Welcome to you, Chief. Also, speaking as an individual is Stéphane Descheneaux.

I'm glad to offer you each 10 minutes to address the committee. I don't know if you've talked among yourselves about who would like to go first. Is there any preference? Mr. Descheneaux, if you are prepared to go, I'm happy to give you 10 minutes.

Thank you very much, and welcome.

[Stéphane Descheneaux, As an Individual]

Thank you.

First, I want to thank the chief, lawyers, and also the judge who took care of that case. It was kind of a funny....

Excuse my English. Sometimes it might be difficult. I learned it on the ships, and I cut some words off.

It was funny back then. Sometimes we would sit with my cousin. We would talk. I found out that I have some cousins and their kids were registered and mine were not. We started some drawings, started to look it up, and finally we found out that because some of them had dads instead of mothers, they had the cards and mine didn't. Before I started to think about going to the band to put the flag on that, they came to me, because they also found out that there was some kind of funny situation. The lawyers and the people, the band and I, proved that there was inequity with that.

I'm pretty happy with the decisions, but what I find sad today.... I found out last week that we were asked to come here to talk about that, but we've never been called or asked which way we saw that stuff. I found out earlier, having coffee with the chief and David, that there was even other stuff that we found out—well, they found out—that wasn't touched, or they didn't want to see it, because they were only going by the rulings.

That's the part I find funny. After, I understood from the judge's ruling that they wouldn't be in consultation. I was thinking that they would come to the band and meet us, and say that they're going to go that way, or they're looking to go this way. It doesn't seem to be like that. I don't feel great with that, and I guess the chief and the lawyer don't either. We find it funny that we have, “There you go. You go with that.” I find that funny. We were the people involved first of all, and we just learned last Friday that they were right at the babies born, if I can say.

That's my point. I'm happy on one side but disappointed in another way, because I can't understand. We had it in our hands, or you had it, and we couldn't solve lots of problems. Again, we just went for a few cases. Maybe we didn't want to see them, or maybe the people didn't think there were other cases, other stuff, that would have been put away, or forgotten about, or they didn't want to be seen.

That's how I feel this morning. In my case, what I went through for lots of people and even for my kids so that they won't have to go through.... In just trying to figure it out, you spend 46 years of your life asking yourself, “What am I? Am I a white person, a native?” Then someone says, “Yes, you have the rules. You have that. The decision was made.” My mom got it back. My grandmothers got it back. I got it back...the way for my own daughters? Then I find out there are people who are going to ask themselves those questions again, because it doesn't seem to be put on what we are going up to now.

I'm all yours.

[The Chair, Liberal, Andy Fillmore]

Thank you.

We'll go right into hearing first from the chief, for 10 minutes, and then we'll go to questions after that.

[Chief Rick O'Bomsawin, Chief, Abénakis Band Council of Odanak]

First of all, I'd like to thank you for having us here today. I know everyone is busy.

This is a very complex and complicated subject, and it gets deeper and deeper all the time. There are many cases. If we can show part of the power point presentation later, we'll show you the basis of how the status system works. Some of the major problems with the status system were based on families, on gender, but there was much more to it than just that.

In my own family, if I can just briefly tell you, I have four children. My oldest son was a 6(1); my second daughter was a 6(2); my third son was a 6(1), and my fourth child was a 6(1). I only had one child with less status than all the rest because I had two children prior to 1985, and I wasn't married. Yes, we tried to cover this in two cases: the McIvor case and in the Susan Yantha case, which solved this problem.

The reason I'm saying this is that there are several problems with the status system. When we took the cases to court, we understood the ruling was very clear, that we all wanted to solve this problem. We wanted to solve everything now. I had said several times there was no rush, that we needed to make sure we went through every case to see what the problems are. For some reason they seem to want to be in a very big rush. I told them that if they came to us and asked for an extension, we'd be more than willing because it's very costly to do all this, for all of us, for the government and for us. We don't want this to end up back in court again and to start over. It was very clear in the decision that this was not supposed to be based just on gender. We were supposed to look at all the cases and try to close the files. They put a time limit on it. I said to them several times that if they needed an extension, we'd be more than willing. They told me they weren't interested, that they didn't need an extension. I told them just yesterday on the phone that if we close this file in February, I will be back in court on March 1 on four other cases. The answer was, that's my prerogative, that I can do that if I like.

I don't believe that's a proper way for us to solve these problems. I think the door is open now. Why don't we all sit down and discuss and solve the problem we have? It's time to say that we'll put all this behind us and sort it out once and for all. We don't want to spend the next 10 years in court again. We don't want to keep bringing up case after case after case. We have the time to do it. Let's look at all the cases at this particular time, and we can try to solve this. They told us that we were consulted, that they consulted with chiefs last summer. I have not found one chief that they consulted. They've never consulted me, and it was our case. They never even called us. I'm trying to figure out how it all got to this point, and now they're saying they're going to close this file, that they're going to get it all solved by February 1. Again, I said we had other cases that we want to bring to the table and solve under this same thing. The answer was “No. We are only dealing with sexual gender at this time. We can go into another stage and we can carry this on later.” I don't know about anybody else, but the door is open. We're at the table now. Why do we want to spend more court time, more money, more of all our time fighting the same argument when we're already at the table and we could solve these problems and put this thing to bed once and for all.

Thank you.

[The Chair, Liberal, Andy Fillmore]

Thank you very much.

We'll move into questions from the members now.

The first question is from Mike Bossio, please.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you so much, all three of you, for being here today. We really appreciate your testimony.

I'd like to throw it open. We understand the government wants to do a two-phase process, the first one coming in February 2017 and the second one being more of a consultative approach. I'm not going to argue the merits of one versus the other.

What do you view as proper consultation and consent in this process?

[Chief Rick O'Bomsawin]

First of all, today is the first day I've heard of stage two. I heard it because I was listening to the last session. What is their plan for stage two? I don't have a clue because we've never been told about it before.

I don't understand why we want to go into stage one and stage two. We have the opportunity now to solve these problems. It's just a matter of discussing it and saying where we are going. Let's close the file once and for all. I don't understand the point of saying, “Well, let's close this part and then we'll go into stage two.” We've seen the impacts of 1985. We've seen the impacts of McIvor on our communities. How many more impacts do our communities have to go through before we close this?

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

What do you feel would represent a proper consultation process to go through? How do you see that unfolding, ideally?

[Chief Rick O'Bomsawin]

It would definitely work if they would come and consult us, but as I said, we've been consulted on nothing since day one. If you're saying that we're going into stage two and we're going to have a consultation, that would be nice.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

That seems to be the intent, from what I've heard, as well as what you've heard, but once again, what does that look like to you?

[David Schulze, Legal Counsel, Abénakis Band Council of Odanak]

May I add something?

It's important for this committee to know that after the 1985 amendments, there was the 1988 review. That 1988 review specifically talked about the siblings case, Susan Yantha's case, that produces children of the same parents with different status. They said change that. That was in 1988. In 2015 I was still arguing about it in court with the lawyers of the people who just testified. In 2010, there were the amendments because of McIvor. Indian Affairs said there would be another stage, that they would consult broadly about membership and status. We asked their witnesses for the registrar of Indians on the stand in the Descheneaux case what happened to that. They said they didn't know. A few months ago they finally published their report. That was six years.

When the Department of Indian Affairs offers extra stages for broad consultation about all sorts of issues, I hope you understand why first nations communities are skeptical.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Oh, yes, I do. Given what we've heard in just the last year from a number of witnesses who have come forward, yes, we understand and appreciate the level of frustration that exists among indigenous peoples around long-term stable funding, around community-driven programs and priorities, and the whole consultation and consent approach.

I'd like to try and get it on the record what you feel that consultation process should look like and how extensive it should be. I don't know if that's a question you can even answer, but I'd like at least to get your opinion on the record as to what you think that should look like.

[David Schulze]

I don't have a mandate to speak for the 600 communities. I can tell you, in our power point we've given you, obviously we can't take you through all of it now—

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Right.

[David Schulze]

—we've identified four other scenarios where siblings can have different status, where first cousins with the same ancestry can have different status.

That was what we thought, given the short timeline, was something that two Abénaki communities and their tribal council, the Grand conseil de la nation Waban-aki, had identified that they wanted to bring up with Indian Affairs and work through. That didn't happen because suddenly there was a bill before the Senate. That was also without notice.

If the committee would like, I can briefly explain it, but there are still situations that to us seem totally absurd. First cousins, siblings, different status—the system doesn't have any credibility if it produces those results.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

We've also heard that indigenous nations should decide who's going to be a member and who's not going to be a member. You have band chiefs, hereditary chiefs, national chiefs, regional chiefs. Where do you feel the determination as to who should be registered as a status indigenous person in Canada should be made? I'd also like to get that on the record as well, to try to support your position.

[Chief Rick O'Bomsawin]

First of all, there's definitely a very big difference between status and citizenship. I think that's the first thing we need to clear up.

With the status system, yes, Indian Affairs determines who receives status and who does not receive status. Depending on the community and how that community operates, whether they have their own citizenship code, as you heard earlier, under section 11 or section 10, it's completely different. Some communities will turn around and say they will control their own citizenship code and they will say whether or not status members are members of their community. It's very complicated. Other communities say that people who are status are definitely members of their community.

I can only speak for my own community. In my own community, if you have status, no, we will not turn you down. You are definitely a member of our community. We also have a citizenship code of our community, so our citizens are also recognized in our community.

[David Schulze]

May I add something?