Indigenous and Northern Affairs Committee on Nov. 23rd, 2016

[Cynthia Smith, Legal and Policy Analyst Coordinator, Quebec Native Women Inc.]

Thank you.

I think what's very important to also keep in mind when you look at the Descheneaux case is to request that all gender-based discrimination be tackled. The thing is, with what you're bringing to the table with Bill S-3, you only go as far as 1951, but gender-based discrimination started way before that. I think this is something that is very important to keep in mind.

[The Chair, Liberal, Andy Fillmore]

Thanks for that.

Those will be, unfortunately, our last words from this joint panel. We have another panel coming up right behind you for the next hour.

I want to give my sincere thanks to each of you for sharing your wisdom and well-considered testimony today.

We'll suspend briefly while we switch quickly switch to the next panel.

[The Chair, Liberal, Andy Fillmore]

We'll come back into session now.

I'm very happy to welcome two groups to the panel in the second hour. The first is the Congress of Aboriginal Peoples. Welcome to Robert Bertrand, national chief, and Frankie Coté, senior manager, engagement.

Welcome, and thank you for giving your time to us today. I'm happy to turn the floor over to you, for ten minutes, to share between the two of you as you would like.

Thank you very much. We'll get under way.

[Chief Robert Bertrand, National Chief, Congress of Aboriginal Peoples]

For opening statements, Mr. Chairman, I'll be using the 10 minutes.

Mr. Chairmen, vice-chairs, committee members, representatives, and guests, my name is Robert Bertand. I am the national chief of the Congress of Aboriginal Peoples.

I would like to acknowledge the traditional Algonquin territory we all have the privilege of meeting on today.

I would like to thank the Standing Committee on Indigenous and Northern Affairs for inviting the congress to address this important and necessary discussion on Bill S-3.

I would like to commend Prime Minister Justin Trudeau and the federal government for withdrawing its appeal concerning the August 3, 2015 Superior Court of Quebec decision on the Descheneaux case to the Supreme Court of Canada. The decision to address the Descheneaux case through a two-stage approach to eliminate known sex-based inequities in Indian registration, and not to be limited to the specific facts of the Descheneaux case, is promising to hear.

Since 1971, CAP, formerly known as the Native Council of Canada, has committed itself to advocating for the needs of off-reserve status and non-status Indians, Métis, and southern Inuit peoples. We also serve as the national voice for its provincial and territorial affiliate organizations, or PTOs. Our PTOs are located across the country, from the western coast of B.C. to the eastern reaches of southern Labrador. CAP also has a national youth council.

The congress represents a large number of aboriginals in Canada. It currently represents over 70% of the aboriginal people who live off-reserve.

For over 45 years, CAP has committed itself to addressing issues affecting our constituency, and has been actively involved in cases that involve sex-based inequities in registration. That led to the passage of Bill C-31, and Bill C-3, known as the McIvor case.

Having reviewed Bill S-3, CAP feels two current instances are models for effective change towards reconciliation with off-reserve indigenous peoples. Number one is the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, and number two is the Supreme Court of Canada's historic decision on Daniels v. Canada. Seventeen years ago, our former national leader, the late Harry Daniels, along with CAP, went to the court to force the Canadian federal government to acknowledge that Métis and non-status Indians are Indians under subsection 91(24) of the Constitution Act, and that the federal government has a fiduciary responsibility to them.

The congress launched that lawsuit, funded it at each stage of the proceedings and provided support at every stage of the legal process. I am very proud to have announced on April 14, 2016, that we finally won.

It took the Daniels decision, accorded by the Supreme Court of Canada, to end the judicial limbo of Métis and non-status Indians stuck in the passing of the buck between the provinces and the federal government, as to who we should deal with and who has fiduciary responsibility. The road to reconciliation with indigenous peoples, on whose behalf CAP advocates, could not have happened until the Daniels case was addressed.

Regarding Daniels, Supreme Court of Canada Justice Rosalie Abella stated that “as the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought.”

An opportunity for such remedies lies in the distinct possibilities for the federal government and the congress to come together on their progressive reconciliation, in the form of engagement and consultation on all issues affecting our people. This most certainly includes stage one action on Descheneaux v. Canada.

As part of the proposed legislative amendments to address residual sex-based inequities in Indian registration, some individuals who identify as Métis and non-status will become eligible for Indian status. I would like to clearly state that the Métis nation, as expressed by the Métis National Council, does not speak for all Métis. However, the congress respects the fact that they are a Métis nation as defined by themselves. I respectfully submit that we, as an indigenous people who are part of the Congress of Aboriginal Peoples, have for 45 years embraced the rights articulated in article 33 of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which states that:

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.... Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Under article 4 of UNDRIP:

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs....

Under article 18 of UNDRIP:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

I quote these articles because they carry a direct impact on CAP's constituency. We have a multitude of different indigenous peoples from different nations who live off reserve in communities.

In terms of Bill S-3, as I previously stated, I am pleased that the government decided to withdraw its appeal in the Descheneaux case and that it has undertaken this process to address the gender inequalities that continue to exist in the Indian Act, even after the enactment of Bill C-31 and Bill C-3. Bill S-3 will give Indian status to those who should have had status all along, and will see those born after 1951 become status Indians. However, the Superior Court of Quebec was clear that amendments should not be focused solely on the facts in Descheneaux.

With that said, I do not see why the government stopped at 1951 and did not go back further. For example, Bill C-31 went all the way back to the 1860s. Why is Bill S-3 different? There could, and almost likely will be, individuals falling through the cracks due to the gap between the 1860s and 1951 not being addressed.

I acknowledge that these issues may be addressed in stage two, but that does not immediately help the person who may be entitled to Indian status and the benefits that come with being a status Indian, such as the non-insured health benefits, NIHB, and post-secondary education.

These are issues that remain very important to CAP and to its mandate as the national organization that speaks for status Indians, non-status Indians who live off-reserve, Métis and southern Inuit.

I would like to thank you again for giving me the chance to speak with you today. Meegwetch. Merci. Thank you.

[The Chair, Liberal, Andy Fillmore]

Thank you very much, Monsieur Bertrand.

We'll move next to the Union of Ontario Indians. With us we have Jeannette Corbiere Lavell, citizenship commissioner with the Anishinabek Nation.

Welcome. I give you the floor for 10 minutes.

[Jeannette Corbiere Lavell, Citizenship Commissioner, Anishinabek Nation, Union of Ontario Indians]

Meegwetch.

[Witness speaks in Ojibwe]

I'm giving you greetings from my people, the Anishinabek Nation in Ontario. I am a member of the Wikwemikong unceded territory based on Manitoulin. I also shared my Anishinaabe name, which is Giiwedanang, which is North Star.

Having listened to the previous presentations, I am here to share with you the work that we have been doing within the Anishinabek Nation. It is what we are all talking about . It's called the Anishinabek Nation Citizenship Law or E-dbendaagzijig—“Those Who Belong.” This is the appointment I was given by the Grand Chief of Anishinabek Nation many years ago—well, not that long ago: in 2007, actually.

Just listening to everyone and looking around the table, I was thinking it might be good to take a few steps back and take some time to share with you my own personal experience with the Indian Act. It might have some relevance and bearing on what we're going through right now.

This is my status card. It says: “Jeannette Corbiere Lavell”. For 15 years, I didn't have it.

By the way, this one expired too. The irony is how can a citizen or a status member expire? But that's what happens.

In 1970, I married David Lavell, who is non-Indian—and as I pointed out, I was a member of the Wikwemikong unceded reserve—and then my rights as a member of my community were automatically taken away. I received a cheque in the mail for $35, which said that's it; you're no longer a member.

It was really hard-hitting for me, because I grew up there; my family is there; and that was my whole life—even though I did travel to Toronto, where I met my husband, but that was for work.

What I want to share with you is that changes and revisions of the Indian Act have been ongoing. Prior to that, it was revised so that our people could imbibe liquor. In 1970, when I looked at the Indian Act and the impact it was having on me, when I had no choice in the decision, it gave me that challenge. I took it all the way to the Supreme Court of Canada. That's the Lavell case, from which Bill C-31 was the result, many years later.

In 1970, we approached the chiefs—at the time it was the National Indian Brotherhood, and now it's the Assembly of First Nations—but no one really wanted to tackle this discrimination within the Indian Act, because of course it only affected indigenous women or Indian women with status.

We're still dealing with this. Here we are, 46 years later, with the same problem, so it has been ongoing. Nonetheless, this is the task you have been given as members of this committee. I understand the timeline; however, realizing the hardships that have taken place among many of our people in our communities, I say that decisions have to be made and change must be made. It is not relevant in this day and age to continue to have this kind of discrimination, especially against our women, within the laws of Canada. It must be changed.

I would like to see whatever we can do as members within our Anishinabek Nation to assist in bringing about this change.

Just to also relate, in 1973, we lost by one vote, so there wasn't any change for me and, as I've said, I didn't have my Indian status for 15 years. However, I guess the biggest impact was that legally I would not have been able to even visit my family or reside with my parents, my aunts, and my community, and this is also who I am. I have my language; I grew up there. We have our own spirituality.

When we say that Indian status is only getting access to health benefits, that's not true. To us, this is who we are as a people, that recognition. No matter where you go, you can say, “I am a member of my community, I am Anishinabek”. For me, I'm an anishinaabekwe, which is an Indian woman.

When we dealt with it in 1972-73, we didn't have any aboriginal women's organizations, but because of the determination of our women and the fact that no one was listening to us, we had to get that word out. So we formed our own provincial aboriginal women's organizations in 1973, and here they are. They just left. I am a member of the Native Women's Association of Canada as well through our provincial group.

I guess what I'm really trying to say is that there have been changes, and they have been good. They haven't been perfect, and here we are. Then Sharon McIvor worked on behalf of her grandchildren. That went through the B.C. Supreme Court and, as you well know, then we had Bill C-3. So we have Bill C-31, Bill C-3, and now we have the next step. So it's ongoing, and it won't be resolved because there will be other aspects coming out.

I hear what you're saying, that the Indian Act is not the best. However, it is the only protection that many of our people recognize, the only protection that we have. Unless we can be assured that we will have something that is strong, and that we will be a part of it, and we will have a say in the development of a governance structure, our own constitutions, and our own citizenship act, it just can't be done away with. It may take a little while longer, but as members of the Anishinabek nation in Ontario—there are 40 first nations who are members—we have started on that process.

I don't know how much time I have.

[The Chair, Liberal, Andy Fillmore]

You have two minutes.

[Jeannette Corbiere Lavell]

I was asked, because I had this challenge and the passion to rectify this legislation and to remove the discrimination towards our women. As you probably heard, within our traditional culture, we were not one step behind or looked down upon. We had the same recognition. We had our roles, and we had our rights. The women in our communities were very strong. That was the balance and harmony.

When the Anishinabek Nation asked me to be the commissioner on citizenship, I did community consultations within the 43 first nations, and I drafted our own. I heard many heartbreaking stories from our people. We heard about divisions and families torn apart.

I have a draft, and it's called “'E-dbendaagzijig': Those Who Belong, Anishinabek Nation Citizenship Act”.

It's here, and I've asked for copies. I want to stress one thing, and I will take my last minute to read this to you. This is from our people.

We have decided that we will recognize the following members as members or citizens, e-dbendaagzijig, within in the Anishinabek Nation.

Every citizen of an Anishinabek First Nation is an Anishinabek Nation citizen. A person is entitled to be an Anishinabek Nation citizen provided that the person can trace their ancestry, their descendancy through at least one parent to the original people of the Anishinabek First Nation, or they have at least one parent who is a member currently registered with an Anishinabek First Nation, or the person can trace descendancy through at least one parent to a status Indian who is registered or entitled to be registered with the Anishinabek First Nation.

There was a fourth one that was added recently by a first nation resolution: These people will be members and recognized according to our Anishinabek citizenship act.

There is one last thing. As you know, the Indian Act wasn't decided on by us. There is another aspect, and I'm sure there will be another court challenge. It has to do with the treaty rights. Treaty rights haven't even been looked at, but there is something coming up. My mother had her treaty rights, but when she married my dad, who was non-treaty, it was decided by someone, somewhere that she also lost her treaty rights. It's much like marriage, but someone decided somewhere. No one knows. I asked a lawyer in the justice department. He said it's not written anywhere. It's arbitrarily decided. That's another aspect that will need to be rectified.

Meegwetch. Thank you for listening.

[The Chair, Liberal, Andy Fillmore]

Thank you very much to all of you for your testimony. We'll move now into questions.

This is a round of seven-minute questions.

The first question is from Mike Bossio.

Go ahead, please.

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

Thank you so much for being here.

Jeannette, I doubt you'll remember, but we met in 2014. You were at the Mohawks of the Bay of Quinte for the restorative justice, for the Native Women's Association.

[Jeannette Corbiere Lavell]

That's right.

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

It was at a symposium I happened to be in. I heard your full story. Your daughter was with you at the time, I believe. The book I'm writing in right now we received that day, funnily enough.

[Jeannette Corbiere Lavell]

Oh, that's good.

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

Your story was beautifully told that day. It was touching, and it was my first real introduction to that history of indigenous women, and the injustice that occurred and that is still occurring.

This is such a complex issue, as has been raised by many different people. I know some people are saying we should go back to the courts and we should ask for an extension because we need more time to study this. I don't think anybody disagrees that we need more time. We absolutely need more time. But right now we have an opportunity to add that status for up to 35,000 people. Through an extension for more time, we all recognize, as Chief Bellegarde said, that we're putting a band-aid on a large cut, and I don't think anybody would deny that. But that has been, and continues to be, a generational evolutionary change.

I say we have an opportunity to add 35,000, or we can fix it and we can add hundreds of thousands, but how long is that going to take? It's not just getting it through the courts to get that recognized, or getting it through consent and negotiation to get it recognized, but also even just to prepare for that outcome as well. Right now in my community, it takes two years for a Mohawk to get a status. How long is it going to take if today we add hundreds of thousands to that number, let alone health, housing, and land, as Chief Bellegarde pointed out? Land is a huge issue. I know in my community, the Mohawks of the Bay of Quinte—you were there—it's a small piece of land to add a lot more people to.

I would ask you for your opinion. Do we need to make this a multi-staged process so that we can get it right, we can finally get it dealt with, and hopefully we can finally deal with the Indian Act once and for all? That is going to, in my view, take time. I'd like to hear from both of you on your opinions.

[Jeannette Corbiere Lavell]

Having listened to the previous presenters, I think it would be best for the people within our communities if we could make the change now or in February, and bring that recognition to those people. To me that would be good. In 1985, when we were reinstated, it was major. You just felt it. And my children were getting their status. It made a big difference. It will have a tremendous impact on those 35,000 members who may be affected as part of that. It will boost them, their sense of identity, their recognition of their family, and their history. All of that is really important. If we're striving for nationhood, then nationhood definitely has to have land, has to have people. If we continue the way we are with the Indian Act—and that was pointed out.... There's a reserve right now in Ontario, called Scugog. In 2013 it had its last status Indian. What's going to happen to that community?

Changes do have to be made. That's what we were talking about within our Anishinabek Nation citizenship law: we want to recognize all those members who can trace their descendancy. The Grand Chief, and all the chiefs within our nation, have agreed. The only way we can continue to be a strong nation is by being able to go forward, by maintaining our language, and by having our history and our spirituality. All that is key. If we're going to be recognized on a nation-to-nation basis when dealing with the government, we have to have that strong basis, and that's what we're striving for.

Grand Chief Pat has recognized that your deadline is February. However, we will continue to work with the government because we've already started it. We have that knowledge, that expertise. We can contact our communities and bring the elders in. They still have that history, and they'll be able to tell us that this is what happened in those times when those treaties were signed. That's all really important. I don't think I can speak on behalf of our Grand Chief Pat Madahbee, but I think you should do it in February, and it will make a positive change.

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

Go ahead, Robert, if you'd like to add to that.

[Chief Robert Bertrand]

I have the same thought as my friend here. I think we should go ahead. There will be people who fall through the cracks, but let's hope that in phase two this will be looked at and remedied. This has lasted so long. Let's get as many people as possible on board now, with corrections coming forward after February 2017.

[The Chair, Liberal, Andy Fillmore]

Thanks. We are out of time on that one.

The next question is from Arnold Viersen.

Go ahead, please.

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

Thank you, Mr. Chair.

My question is for Ms. Corbiere Lavell. Just a minute ago, you said that the Indian Act is your only protection. What did you mean by that?

[Jeannette Corbiere Lavell]

This is the only piece of legislation that has been determining who we are. For a while, we weren't persons, but I guess that particular section was changed. It's the only protection we have in terms of protecting our land, the little bit of land that we have left. If we didn't have the Indian Act, if we went to some of those other proposals such as fee simple, then even that might not be protecting our lands anymore, and we would see our territories and our reserves diminish.

Our people, the elders especially, don't like what the Indian Act did to them, how they couldn't leave the reserve or sell their produce. All those inequities were there, but we are looking forward to working together to make it better. It won't be perfect, but little by little....

We have, under Bill C-31, brought many more of our people back to our communities and to feeling that sense of pride and identity. The Indian Act will probably have to be done away with eventually, but when that time comes, hopefully we will have our own constitution, our own governance, and we'll be able to provide that kind of leadership to our people.

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

I see here that you are the citizenship commissioner for the Anishinabek Nation. I learned yesterday that there are section 10 and section 11 first nations, depending on how you fall in. Which one is Anishinabek Nation?

[Jeannette Corbiere Lavell]

I don't think I understand what you are asking me.

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

It looks like you are building your code right now.

[Jeannette Corbiere Lavell]

Yes. We are working on it.

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

Do you have members who are part of your nation but who are not status?