Indigenous and Northern Affairs Committee on Nov. 30th, 2016

[The Chair, Liberal, Andy Fillmore]

Good afternoon, everyone. Welcome to the House of Commons Standing Committee on Indigenous and Northern Affairs.

We are meeting today to continue our work on Bill S-3, an act to amend the Indian Act, specifically the elimination of sex-based inequities in registration.

I want to explain to our witnesses today that, as you can hear from the bells that are ringing, there will be a vote in the House of Commons in 20 minutes. This gives us enough time to hear from one of the groups, the Mohawk Council of Kahnawake, and then we'll have to recess for a moment. Committee members will go and vote—it will take about 15 minutes—and then we'll come back and hear the other two witness groups and proceed through our questions at that point.

Cathy.

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

For proper protocol, perhaps we should ask for unanimous consent to continue while the bells are ringing.

[The Chair, Liberal, Andy Fillmore]

Is there unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Liberal, Andy Fillmore]

Yes, there is unanimous consent.

Thank you very much for that.

I will also add that we're meeting today on ceded Algonquin territory, for which we're very grateful.

I'd like to welcome the Mohawk Council of Kahnawake, Joseph Tokwiro Norton, grand chief, and I'm going to have to ask for help with your name, I'm afraid.

Could I ask you to say your name?

[Chief Kahsennenhawe Sky-Deer, Chief, Mohawk Council of Kahnawake]

Chief Kahsennenhawe Sky-Deer.

[The Chair, Liberal, Andy Fillmore]

Thank you very much.

Welcome to you both.

I'm happy to turn the floor over to you for 10 minutes. When we get to the ninth minute, I'm going to hold up a yellow card. That means one minute to go. Then the red card means please try to conclude. I am happy to have you share that 10 minutes between you, anyway that you would like to.

Thank you very much.

[Grand Chief Joseph Tokwiro Norton, Grand Chief, Mohawk Council of Kahnawake]

I don't know how we're going to squeeze 500 years into 10 minutes, but we'll give it a try.

This has been a long-standing issue ever since the Europeans first arrived here in our part of the world, the world that we call Turtle Island. This is not something new. It didn't start with the imposition of the Indian Act. It goes way beyond that. Way beyond means the imposition of the cultural beliefs, the language, and all the other things that have been brought here and have been imposed on us.

We're amazed we're still here. We still speak our language. We're still able to talk about the things that our ancestors passed on to us and made sure that we did not forget so that the coming generations would also not forget. That's what makes it a very challenging time for us in a period in which we need to again remind some fresh faces, some new faces who have come into government, about what's happened, and in particular, more specifically about Kahnawake.

We consider you younger brothers and sisters because we've been here for countless ages. Even recent research into archeology and findings on the Island of Montreal show that we go back 12,000 years. We didn't come from New York State and places like that, as they claim. There was no New York State back then. In any event, we just want to make it clear about our presence here today. This is not the first time for me. I was first elected in 1970, then 1978, and I retired in 2004. I came back again last year. It's been a long time. From that time until now, it's been the same struggle.

Previous to my being on council, previous to my being born back in 1949, there was a problem back then also, and our community has fought very selfishly for the jurisdiction, for the need to establish what we believe is our way of identifying our people, and our way of allowing people to reside among us in our community. It's always been a very controversial issue. It's been a fight.

One of the things I'd like to raise is the fact that this government is talking about nation to nation. Nations don't impose their will or their ways or their thinking on other nations. If we are to allow that to happen, then we do it of our own free will, and we have not. We will not be persuaded to do otherwise, although it causes us some very uncomfortable situations. We've been accused of racism. We've been accused of all kinds of things. Because of the fact we've had to take this stand, that's what we have to do. We have no choice. That's our goal, to be able to maintain the stand, if you will.

I have to be very blunt and up front about it: no committee, no provincial or federal government, no court is going to impose its will on us. That comes not just from me and my fellow chief here, Kahsennenhawe. It comes from the community. That's the stand we have. That's why we're here to provide you with this information. It's not necessarily to ask you for anything to help the circumstances, but perhaps your understanding and your co-operation is what's needed. Even if you can't co-operate, then at least understand.

I would like to have Kahsennenhawe take it from here and give you some insight into more specific issues.

[Chief Kahsennenhawe Sky-Deer]

First I want to speak specifically about Bill S-3.

As the grand chief mentioned, the matter of membership and registration we feel is one that's integral to governance matters for first nations. The fact is there has been no meaningful consultation. We're aware there are going to be two phases, but the amendments are going to happen, and then there is going to be consultation after the fact, which, in our opinion, is a serious breach of Canada's duty to consult first nations and to accommodate.

The proposed amendments to the Indian Act registration criteria in response to the Descheneaux decision raise extreme concerns for Kahnawake. We have our own membership criteria and registration of who could be a status Indian.

It goes so far that now it's exacerbating the problems that we see in our community. We're going to have more people coming to our community with band cards who want to belong. They want ownership of land. They want to be part of the community, but they might never meet our criteria of who we recognize as Kahnawake, who are Haudenosaunee, who are Mohawks of Kahnawake.

There is a clear distinction, in our opinion, of who could be Mohawk, or identified as such, and what Canada's registration for status is. There is a big discrepancy there.

With regard to the specific legislation, we're aware that the amendments are targeting three main groups: siblings, cousins, and omitted minors. While the Descheneaux decision drove the proposed Bill S-3 amendments that are going to happen in February for siblings and cousins, the amendments pertaining to omission of minor children extended beyond the decision that was rendered in the court. This unilateral revision to registration criteria, again without consultation of first nations on this integral matter, goes even deeper and is another breach of Canada's duty to consult and accommodate.

The legislation lacks any provision for opting out. As the chief mentioned, we don't feel that any government or any court can decide who can be our people. That should be the sole jurisdiction of first nations. Again, the effects on membership are definitely going to impact on our right to self-determination.

The absence of some kind of provision or mechanism is going to increase what we call the discrepancy population. Kahnawake has its own membership list. The federal government maintains a list for the Mohawks of Kahnawake. That population is going to continue to grow after the Bill S-3 amendments, and, as I mentioned earlier, cause further problems. There is no additional money that is going to be promised to our communities to accommodate these people.

Again, as the chief mentioned earlier, in terms of ethnocultural erosion, we want to ensure that we protect for our future generations what it means to be a Kahnawake, what it means to speak our language, and what it means to know how to preserve our identity as a distinct people. When you have generations so removed, who have no ties to our community, no connection to those lands or to our ancestors, but who might have had an ancestor a long time ago, and still feel that they should go and be a part of that community....

We're seeing, as a result of the CAP-Daniels decision, that there are now groups that are popping up all over the country that want the benefits that go along with being a status Indian. However, they don't really understand what it means to be born into nationhood, with those rights, and to have that citizenship. To a lot of people it's “Well, I have a tax exemption card now—free this, free education.” As I said, they don't have that understanding and that sense of identity that we're trying to protect and ensure.

We're fearful of the ramifications that Bill S-3 is going to have not only on Kahnawake as a community, but on other first nations that are in a revitalization process after the Indian Act, after the residential schools. We're trying to rebuild our nations, and for Canada to unilaterally keep expanding the registration criteria of who can be a status Indian is going to further erode our identity as first nations people, the real authentic Haudenosaunee of this land.

That's all I have to say.

[The Chair, Liberal, Andy Fillmore]

That takes us to just about a minute remaining, if Chief Joseph—

[Grand Chief Joseph Tokwiro Norton]

May I add one more thing? It's essential to understand that in an area such as land claims, as the government likes to call it, in a decision to accept an agreement between Canada and, if it's the Mohawks of Kahnawake, there's going to be, and there has been already, a demand that all these people, over 4,000 of them who are on the list here in Ottawa, be a part of a vote. Those people don't know anything about what's going on. All they're going to vote for is money. Forget about the land. We've seen that happen continuously right across the country.

I would say keep your money. Give us back the land that we hold dear to ourselves. It's the complete opposite for many of those people because they don't know anything about it, and they don't care about the culture and history. As Kahsennenhawe has pointed out, all they care about is the tax card, and so on and so forth, and all the benefits that they can get from that.

[The Chair, Liberal, Andy Fillmore]

Thank you very much, Grand Chief, and thank you, Chief, for your testimony.

We will have to take a short recess of about 15 minutes now, and we'll come back to hear the other witness, Ms. McIvor.

I'll let the committee members know at this point that the vote is in seven minutes. Thank you.

We'll suspend.

[The Chair, Liberal, Andy Fillmore]

Okay, we'll come back to order.

Thank you for your patience during the vote.

We did have four organizations represented today. One has agreed to reschedule.

We have already heard from one of the three remaining, which is the Mohawk Council of Kahnawake. We're now going to hear from Sharon McIvor with the Union of B.C. Indian Chiefs, for 10 minutes, followed by Jeremy Matson, who is appearing as an individual. He also has 10 minutes.

Ms. McIvor, I think you saw how the cards worked in the previous round. You have 10 minutes, and when you get to nine, I'll show a yellow card so you know it's time to wrap up, and I'll show you a red card at 10 minutes.

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

Mr. Chair, we know that the bells are going to ring at 5:15 p.m. I'm just wondering—we're lucky to be in Centre Block today—if we can have an agreement now to go straight through until 5:30 p.m., so that we can plan accordingly.

[The Chair, Liberal, Andy Fillmore]

Is there unanimous agreement to that?

[Some hon. members]

Agreed.

[The Chair, Liberal, Andy Fillmore]

Very good. We'll carry on right through until 5:30 p.m.

Thank you for that, Cathy.

Ms. McIvor, the floor is yours. Thank you.

[Sharon McIvor, Union of B.C. Indian Chiefs]

Thank you.

My name is Sharon McIvor. I'm appearing at this committee for the Union of B.C. Indian Chiefs, which is a B.C. group of chiefs that has been in existence since the mid-1970s, and whose major focus is aboriginal title right and treaty rights.

Today I'm just speaking specifically to Bill S-3, the amendment to the Indian Act. You have to understand that status under the Indian Act is exclusively the jurisdiction of the federal government. It's in 91(24), so it's a relationship or recognition of who the federal government recognizes as Indians. It has nothing to do with self-determination or self-government. Those issues are out there to be discussed at another time and place.

Up until 1985, the Indian Act was blatantly discriminatory against women. Lots of pressure was brought, but mainly the Charter of Rights and Freedoms kicked in on April 17, 1985, and forced the government to deal with that ongoing discrimination.

With Bill C-31, there was an agreement at that time between Minister Crombie and his department that although he wanted all the discrimination gone, I understand that it was too expensive, so he allowed the second-generation cut-off and said that those guys could come and fight for themselves.

I took up the challenge. In July 1989 I started a case that was called the McIvor case about the ongoing discrimination in the Indian Act.

In 2010, after court decisions, the government got together to do Bill C-3. Bill C-3 continued with the discrimination. We've been here before and done this before because of the ongoing discrimination, and the government decided it was okay to continue to discriminate against aboriginal women and their descendants.

Looking at Bill S-3, it's exactly the same thing.

I can tell you what happened in 1985. The government threw out this thing to say that they had to consult with the people about whether or not they should end this discrimination.

From my perspective, and for most people who believe in human rights, discrimination isn't negotiable. As the Government of Canada, it's your responsibility to make sure your legislation complies with the charter, so you can't go out and ask all of those aboriginal organizations, which are mainly led by males, if it is okay to continue to discriminate against the Indian women. I can tell you that most of them will say, yes. We know, because in Jeannette Corbière-Lavell's case, the Assembly of First Nations and their allies were sitting against her with the government. In other cases we've taken, those male-dominated organizations sit on the other side.

It's your fiduciary responsibility to make sure that your legislation, no matter what you pass, complies with the charter. Bill S-3 does not. What Bill S-3 does is it continues the discrimination.

I have a petition with the UN Human Rights Committee to say that Bill C-3, the McIvor amendment, did not take all of the discrimination out of the Indian Act. That's sitting there. It was to be heard in July 2016. The Department of Justice put in a request to the UN committee to suspend the hearing of my petition, because of the bill—now S-3—that will bring gender equality to the Indian Act in February 3, 2017.

I handed a package to the clerk. There is a media release in which Carolyn Bennett promises that. I also have in the package the request to the UN committee by the Government of Canada, and in several places they said that by February 3, 2017, all known discrimination will be out of the Indian Act.

They knew it and they could do it, and then they were going to do a second phase, consulting nation to nation with the aboriginal people. The only thing that I'm saying today is yes to the consultation. You cannot consult about ending discrimination. You cannot consult about asking somebody else's permission if it's okay to continue to discriminate against me.

It's totally unacceptable and the position that you're taking as parliamentarians is really untenable. I absolutely can't understand why you're doing it. Discrimination is contrary to the charter and you know and I know, and you've heard probably from a lot of people, that there's still discrimination in the Indian Act. You have the ability to scrap the bill and do something that's going to take all of the discrimination out.

In 1985 the Government of Canada did something that helped take care of some of the bands' problems. The bands are not nations. The bands are an artificial construct by the Government of Canada, but what they did is they separated the membership and status. Section 10 allows absolutely every band in Canada to decide who can be a member. They cannot take membership away and the women who married out were to be put back into their birth bands, but second generation can be left out. You don't have to give membership to them. They separated that out.

The Government of Canada is determining who is an Indian and who do I have responsibility for and who do I have a relationship with. Absolutely every band in Canada has the right to make a law that determines who their membership is.

I just don't want the waters to be muddy there. What we're looking at is the Government of Canada deciding whether they're going to recognize me as an Indian. The other piece that's really important is that when I was born, I had birthrights. Outside of the human rights that every human is born with, I have aboriginal rights that come from my heritage. Those cannot be defined away. I cannot be discriminated against so I cannot exercise those rights, and recognition of me as an aboriginal person is one of those rights.

When we're looking at what you're doing with Bill S-3, what you did with Bill C-3, what you did with Bill C-31, you violated my rights as an aboriginal person. My plea to you is you can clean it up. If you look at in May 2010 the House of Commons committee reviewing Bill C-3 brought to the House an amendment to Bill C-3 which for the most part alleviated all of the concerns about the ongoing discrimination based on gender. That was rejected.

Actually, it wasn't rejected. The Speaker ruled most of it out of order and it was left in one piece, but you know how to do it. It's there. I put that in the package as well. It's a two-pager and it will alleviate most of the discrimination, all of the known discrimination. There are some things still there that need to be fixed, but for the most part it's doable and that's your fiduciary responsibility. You cannot continue to make legislation that has known discrimination in it. It's your fiduciary responsibility to take it all out. That's what the charter is all about.

Thank you.

[The Chair, Liberal, Andy Fillmore]

Thank you very much, Ms. McIvor.

We'll move right into the testimony from Jeremy Matson, who is appearing as an individual.

Jeremy, you have the floor for 10 minutes.

[Jeremy Matson, As an Individual]

Hello. My name is Jeremy Matson. I would like to thank the Algonquin people for allowing me to speak on their traditional territory. I would also like to thank Mr. Descheneaux, Ms. Yantha, Ms. Sharon McIvor, her son Jacob, Ms. Sandra Lovelace Nicholas, Ms. Bédard, Ms. Lavell, Mary Two-Axe Earley, and many others who continue to advance or who have advanced indigenous peoples' rights here in Canada.

Currently, I'm registered under subsection 6(2) of the Indian Act under Bill C-3, the McIvor bill, which is the Gender Equity in Indian Registration Act. I'm a Squamish Nation member and I have direct ancestral connections to the Tsleil-Waututh, Musqueam, and other Coast Salish nations.

I am married to my wife Taryn Matson, née Moore. We have two children: Iris Matson, who is eight years old, and August Matson, who is five years old.

I am one of many grandsons of Nora Johnston and Vino Matson. My grandparents were married in 1927, and because of her marriage to my non-aboriginal grandfather, my grandmother was commuted under the 1927 Indian Act and remained disentitled to her identity.

My father, Eugene Matson, was one of seven children born to my grandparents Nora and Vino between the years 1928 and 1942. My grandparents had approximately 30 grandchildren. We'll go into the effects of the upcoming Bill S-3 on those 30 grandchildren.

My grandmother remained disentitled as a band member or as a status Indian—a recognized Indian under the Indian Act—until April 17, 1985. Under Bill C-31, the amendments back then, my grandmother was registered under paragraph 6(1)(c) of the Indian Act and registered as a band member under section 11 of the Indian Act under the Squamish Nation.

My grandmother's seven children were registered for the first time under subsection 6(2) of the Indian Act, Bill C-31.

Canada has imposed discriminatory legislation against my family for 90 years. The intergenerational impact is significant. Canada has denied our cultural identities and/or placed my family members in an inferior position compared with those in other indigenous families in Canada, and the sole reason is gender discrimination and its adverse impacts.

I'll go a little bit into the nuts and bolts of Bill S-3 as drafted and its shortcomings and the way it affects my family.

I will be potentially entitled to paragraph 6(1)(c.2) registration under the proposed amendments. I'm going to go through my children's case. That means they'll be entitled to subsection 6(2) Indian status under this bill.

But there are a few inequalities in your tinkering with the Indian Act. You've created more problems—not you the INAN committee, but the drafters. I'll go through proposed paragraph 6(1)(c.4)—this is part of the Bill S-3 draft amendments—and show how my children meet some of these categories but will be left out from proposed paragraph 6(1)(c.4) Indian status.

The first category is for those for whom:

one of their parents is entitled to be registered under paragraph (c.2)

That would be me, as my children meet that criterion—and then they qualify under item (ii) of that proposed paragraph 6(1)(c.4) if:

their other parent is not entitled to be registered

That would be my wife.

Then item 6(1)(c.4)(iii) states, as its qualifying criterion:

they were born before April 17, 1985, whether or not their parents were married to each other at the time of the birth, or they were born after April 16, 1985

My children meet that, and then it says:

and their parents were married to each other at any time before April 17, 1985

My children do not meet that category, so they're not entitled under that item of proposed paragraph 6(1)(c.4).

The newly entitled under Bill S-3—that means the generation below mine and descending generations from there, the newly entitled great-grandchildren or the second-generation cousins of my grandmother—the descendants of my grandmother, will be treated in a differential manner.

Some will be entitled to proposed subsection 6(2) Indian status, some to proposed subsection 6(1) Indian status under the Indian Act amendments in Bill S-3.

In my submission, I broke down all 30 grandchildren and how their standings would fall under Bill S-3. The first three grandchildren of my grandmother will not be entitled under this bill. They were not entitled under Bill C-3, because they were born prior to September 4, 1951, and they will remain disentitled under proposed subsection 6(1) Indian status, and their descendants will, too.

I also broke down.... I don't know what version of my submission you have. The first-generation cousins, the grandchildren, are highlighted in red. Those would be the individuals who were married prior to April 17, 1985. They will be entitled to pass proposed subsection 6(1) Indian status to their children, and the remaining non-highlighted grandchildren, which I fall under, will only be able to pass proposed subsection 6(2) Indian status to their children.

There is going to be differential treatment of siblings and families. In my family, first-generation cousins are going to be left out or left with an inferior status.

On page 6, in a detailed chart for the INAN committee, I broke down how I, my family, and my children will be treated differently, in comparison to my first-generation cousins' families and their breakdown.

I would encourage this committee to look at that, as it could be a possible recommendation. If you are staying in all the four corners of Bill S-3, and what Justice Masse has done with her decision in the Descheneaux case, my submissions and recommendations would stay within those four corners, but it would be nice to have everybody who was born prior to April 17, 1985 under proposed paragraph 6(1)(a) Indian status, as Ms. McIvor mentioned.

Not too long ago, on October 25, Canada went under review by the Committee on the Elimination of Discrimination against Women. Canada is a treaty member of that particular United Nations committee, and Canada's review was in the 65th session. On November 18, only a couple of weeks ago, CEDAW, from the United Nations, with the report CEDAW/C/CAN/CO/8-9, called Canada out about this very bill, Bill S-3. I provided that in there, but I didn't provide the reference and the web link. I forgot to put that in my submission.

Paragraph 12 of the report states that the committee:

further notes that a new Bill [S-3] amending the Indian Act is currently being developed. However, the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, preventing them and their descendants from enjoying all the benefits related to such status.

In paragraph 13 the committee recommends that parliamentarians fix that.

This is the third CEDAW report that has announced to Canada to abolish or fix this discrimination. I currently have a petition before CEDAW about section 6 of the Indian Act and the relationship between the state and me as an individual, my children, my grandchildren, and my future descendants.

I also listed numerous other United Nations reports calling on Canada to abolish this, and I have provided links.

I'll now get to the the recommendations for Bill S-3.

It would be nice for this committee to provide a recommendation for proposed paragraph 6(1)(a) Indian status for everybody born prior to April 17, 1985, and also to provide future amendments, because there are implications, too, about April 17, 1985 to the present day. It's not just between April 17, 1985 and back to 1876, and before, that that there was discrimination. We also have to go forward after that date.

Staying within the four corners of this bill, under proposed paragraph 6(1)(c.4) I recommend providing Indian status to all the newly entitled, meaning my children's generational level, and not create differences between first-generation cousins or siblings.

Recommendation two is to provide Indian status or entitlement for all those individuals born prior to September 4, 1951. As my family history clearly displays, I have three first-generation cousins who remain disentitled under Bill S-3, even though CEDAW has recommended to Canada to fix all discrimination.

[The Chair, Liberal, Andy Fillmore]

Thank you very much, Mr. Matson.

In fact, thank you to all of the witnesses here this afternoon.

We're going to move right into questions from committee members. We're going to go through a seven-minute round of questions and answers.

The first question comes from Gary Anandasangaree, please.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you very much to all of you for being here today on the traditional lands of the Algonquin people.

On behalf of the committee—I know we've already mentioned it—we do apologize for the interruption and the delay in starting the proceedings.

From what Ms. McIvor is saying and from what the chiefs are saying, there appear to be two major issues here. One is admission into the particular communities and the other is entitlement to be registered under the Indian Act.

Recognizing that “nation to nation” does have a specific meaning, could all three of you you give us some guidance as to how we can reconcile that? All of you had very compelling arguments in your favour, but we would like to get a sense of whether it is possible to reconcile these two trajectories.

[Grand Chief Joseph Tokwiro Norton]

I'm not sure I understand your question.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

From my understanding, what you're suggesting is that you're unable to register, or you don't believe that you're able to register, those people who will be extended registration under Bill S-3 because, as a nation, you and your people have decided that the issue of citizenship is one that you alone are privy to. What Ms. McIvor is suggesting, and quite rightly, is that discrimination is discrimination, and cannot continue. I'm not suggesting this is contradictory, but how do we reconcile what appears to be a contradiction in some respects?

[Grand Chief Joseph Tokwiro Norton]

I'll start, and then I'll ask Kahsennenhawe to finish off.

There is, I guess, no reconciliation, if you will. We approached this matter, meaning Kahnawake, in 1981. It was the first time we passed a resolution at our table. We sent that to Ottawa, not for their approval but for their information.

We said to them, “This is what Kahnawake has decided to do. The provisions of the Indian Act will no longer apply to our community. These regulations that we have developed will now be the standard. Whatever you do in Ottawa has to meet that standard, not the other way around.” That fired a signal that began the process. Ottawa responded by saying, “If you do that, you're disenfranchising all of your people. Your getting out of the Indian Act, more or less.” That was their response. We said, “No, we're just taking over what we feel we need to take over.”