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

[Sharon McIvor]

We have a band in B.C. that would admit anybody. They saw themselves as a sunset band and they took anybody. They have advertised, saying that if you want a band, you can transfer to them; they will take you.

There are bands, according to Stewart Clatworthy, that by 2030 will no longer exist because of the sunset clause that's now in the Indian Act.

[David Yurdiga, Conservative, Fort McMurray—Cold Lake, AB]

Thank you.

[The Chair, Liberal, Andy Fillmore]

Thank you.

We'll have to leave that question there. We're out of time on that one.

The next question is from Joël Lightbound, please.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you, Mr. Chair.

I would like to welcome all the witnesses appearing today.

Since I will be speaking French, I suggest that you use the earpiece for simultaneous interpretation.

Let's talk about Bill S-3, which is a government bill.

Based on the various testimony we have heard, it seems that each of you has reservations and considers it to be imperfect. This bill does all the same respond to a Superior Court decision. I understand that this is not our ultimate objective, but it is at least a first step.

I would like to hear your views on what the second phase of the government consultation process should include and what the result should be. The minister has pledged to hold this consultation to guide her, and the committee is meeting today to hear your views.

Mr. Matson, you may begin and give us your opinion.

[Jeremy Matson]

Your question was on consultation for phase two, what should happen?

I looked at the government's website about phase two and the proposed dialogue that you've already set up. I would look at all the case law that's before the courts, the United Nations, the Inter-American Commission on Human Rights. Look at all the issues that are out there. Ask individuals, not just nations, and ask non-aboriginal organizations that specialize in human rights. Talk to the Canadian Human Rights Commission about their perspective on things and, of course, consult with the nations. Every band or nation should be consulted, because they will be affected by that proposed dialogue in phase two.

I have some suggestions because I have other family background, not about this discrimination, about other discrimination that affect my family members, too, that stems from section 6. That's another subject for another time.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Ms. McIvor, what is your opinion?

[Sharon McIvor]

I'm unclear about what they want to consult about. Perhaps it's membership. I don't know.

I know that they don't have the right to consult about discrimination. No one has the right to say it's okay to discriminate. They did it for Bill C-31. They did it for Bill C-3, and it looks like it's their intention to do it for Bill S-3. Whoever they consulted is saying that it's okay to discriminate. We don't want any more. There are some that want more members, as well, but the consultation has never, ever been sufficient. I cannot think of any consultation in the last 50 years that has resulted in anything. You go and talk, and you do what you want to do anyway.

My immediate concern with Bill S-3 is that it seems that instead of taking out all the known discrimination in the Indian Act, the minister has now decided, “Well, we won't take it all out, even though we know it's there, and we'll consult with people about how we're going to do it.” It doesn't make any sense to me.

I'm not a big fan of consultation in this kind of legislation.

Yes, when you're looking at land, resources, all those kinds of things, absolutely. But on whether or not you should take discrimination against an identified group out of the Indian Act, consultation won't get you anywhere. You can't do it. You cannot consult and get somebody's agreement and then continue to discriminate, and then continue to discriminate while you're consulting.

[The Chair, Liberal, Andy Fillmore]

Thank you, Ms. McIvor.

The next question is from Cathy McLeod, please.

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

Thank you, witnesses. It's certainly very compelling testimony.

It's interesting that we're doing what they call a pre-study. I've been here since 2008, and typically we get bills that are well through their process. A pre-study is a really interesting way to have a discussion. I'm also looking at what's happening in the Senate right now.

To be quite frank, I think everyone here had some very compelling points. Mr. Matson, you indicated very clearly that discrimination is still there, as did Ms. McIvor, and then there's the bigger picture in terms of where we go.

We've come back in 1985; we've come back in case after case. I think we need to spend phase two looking at that big picture that you're talking about.

In phase one, which we're doing right now, Bill S-3, let's get the discrimination out so that this is fixed, so that we're not back here, not spending a lot more money in courts, not repeating this process that we've always done.

Having said that, with what has happened in the Senate and with what has happened here, I want to table my motion right now, which really is saying that the minister should ask for a bit of an extension and get this one right. I will just read it again:

That, in light of recent testimony the Committee has heard during its study of the subject matter of Bill S-3, An Act to Amend the Indian Act (elimination of known sex-based inequities in registration), the Committee: 1) suspend its study in recognition of the Bill's technical flaws and inadequate First Nations consultations; 2) resume its study once the Government of Canada has consulted with involved parties and ensured there are no technical flaws; 3) recommend that the Government of Canada request an extension on passing legislation from the Superior Court of Quebec, as recommended by Assembly of First Nations National Chief Perry Bellegarde; and that the Committee report this recommendation to the House.

Obviously we can debate this, but for me, the testimony is clear. We have to spend a bit of time fixing this. Phase two needs to be really focused on solving the big picture issues. Let's get discrimination out, and let's take our time to do it right.

[The Chair, Liberal, Andy Fillmore]

Just for the benefit of the witnesses, what happens when a member puts a motion forward is that we push a pause button on the questions and answers with the witnesses until we deal with the motion that's now live on the floor.

Gary, did you want the floor?

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

Yes. I think, given that we've had a number of interruptions and given the need for our guests to conclude their testimony, I'm going to respectfully ask that the motion be deferred.

I'm moving that the motion be deferred.

[The Chair, Liberal, Andy Fillmore]

Okay. We have a motion of deferral.

I'm going to ask for a show of hands on the motion for deferral.

The motion fails.

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

Thank you. Perhaps you heard what I believe is the right path forward, that being, let's pause. Let's get rid of all the discrimination so that we're not back in court the minute this one passes. That really relieves the government, so that instead of having to deal with section 6—it's a crazy system—they then look at the big picture and really focus on nation-to-nation consultation.

What do you think of that particular path forward?

[Chief Kahsennenhawe Sky-Deer]

I didn't get a chance to answer the last question, which was basically along the lines of what could be the suggestion for phase two moving forward.

I think you're right. I think you do need to address the discrimination because, as you said, it affects all the first nations across the country. Then in phase two, do the nation to nation and maybe find a way for Kahnawake and the Mohawks to opt out of registration in the Indian Act and let it be a bottom-up approach, and say, “These are the people we recognize as Mohawks of Kahnawake; now register them.” If people don't fall under our criteria, then they're not eligible to be recognized as Mohawks.

By all means, if they want to go to other communities and they want to be registered under their community, we could find a way to accommodate all of the communities. But in Kahnawake, because we have such a different take on who could belong and who could come and live in our community and who could be a part of us, and we have since time immemorial, with regard to it being imposed, we felt we had to put in provisions that protect that. These things that are in our culture, in the two row wampum and the teionitiohkwahnháksta, the circle wampum, and everything that makes us Kanienkehaka might be different from what makes someone Squamish, might be different from what makes someone Abenaki, and so on and so forth. That's where the nation to nation needs to happen in phase two.

[The Chair, Liberal, Andy Fillmore]

We'll have to leave it there.

I just want to clarify that I misspoke after our vote. The motion did not fail. In fact, the motion of deferral passed. We still have a motion to deal with at another time, so I just wanted to be clear about that.

The next question is from Michael McLeod, please.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you for the presentations. It's a very interesting discussion, and I see a number of arguments and a number of positions being put forward that I hear in my own riding in the Northwest Territories. There are many of our aboriginal governments—and we have six—that are very clear that nobody speaks for them, and they don't fall under any national organization. They speak for themselves. They represent themselves. Of course, that causes challenges sometimes, because governments want to talk to the AFN or Métis National Council, and none of my organizations, except the Inuvialuit, falls under one of the national bodies.

I'm trying to follow what everybody is saying. I recognize, and we've heard it before, that being recognized as a status Indian does not automatically make you part of the community or a citizen of a nation. I'm trying to follow on some of the other pieces of legislation that came before.

I want to ask Kahsennenhawe Sky-Deer and Chief Norton about how you handled Bill C-31, recognizing there was a number of people who got status then. Were they accepted? Or were they not accepted because they didn't meet your membership code?

[Chief Kahsennenhawe Sky-Deer]

After Bill C-31 gave the women back their rights, there was a ceremony that took place where we welcomed the women back. Then the children who are, if you want to say, products of mixed marriage have to meet a criterion of four out of eight great-grandparents. We tried to move away from blood quantum. We feel that blood quantum is a foreign—being the U.S.—government's way of identifying who are Indians under their laws for border crossing and whatnot. That's the criterion, and there are people who fall outside of that.

There are people who are living in our community right now who don't fit that criterion; hence, now we're trying to develop residency law: who could live in the community and who has rights and entitlement. I know that Canada's obligation is to protect the acquired rights. As she had mentioned before about all of those non-native women who married in, some of them are still living in our community. That poses a problem for us, but we said prior to the 1981 date when we set and tried to rectify and say that anybody from this point who marries non-indigenous will have to leave the community, but the children can come back, granted they meet the criteria and granted they marry back in. It's very strict. I know that. That's why he said if people want to call us racist or discriminatory, say what you will, but we have responsibilities to ensure certain things continue for the next seven generations, so that our identities will be strong in the future.

There are going to be court challenges. It's going to keep happening. There are going to be human rights complaints. But at the end of the day, we'll cross those bridges when we come to them, and ultimately, it's up to the community.

[Michael McLeod, Liberal, Northwest Territories, NT]

Mr. Chairman, we're in a little different situation because we don't have reserves in the Northwest Territories, but we have aboriginal communities, and we use what they call a community acceptance vote. If a person wants to qualify to become part of the band council or the land claim group, then they have a vote.

I just want to be clear, as I couldn't quite follow what you said. Did you say go ahead with phase one and consult with phase two, or that you don't care either way what happens?

[Chief Kahsennenhawe Sky-Deer]

I think we made compelling arguments on being mindful about how opening up registration has an impact on each individual community. At the same time, we're aware, like you said, that this law is going to affect every—

[Michael McLeod, Liberal, Northwest Territories, NT]

But our decision is to go ahead, stop, or slow down. What are you telling us?

[The Chair, Liberal, Andy Fillmore]

I'm afraid you're out of time there, Michael. We're over time, in fact, on that one.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thanks.

[The Chair, Liberal, Andy Fillmore]

No problem.

We are now at our final question. It's a three-minute question, and it comes from Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

I mentioned at the outset that I feel this was unfortunately a missed opportunity for the government. They could have started earlier on this issue. Unfortunately, they haven't, and so we're caught with this deadline from the Superior Court of Quebec.

I want to read a quote that I found this morning:

...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.

That is a quote from the testimony of our current Minister of Justice from 2010. I think that's the point we want to make here with the motion that's being proposed, that we do it right.

I was going to ask Ms. McIvor the question, because she said similar things in 2010, but I will ask the three witnesses remaining. Where should we go from here?

I hear your positions pretty clearly. It's pretty simple and straightforward. I would like to know your position on where we go from here.

[Jeremy Matson]

Well, first things first. Fix all the gender discrimination stemming from the Indian Act and inequalities going forward after April 17, 1985—that's what I recommend—and going back to the beginning. I think that's testimony that you've heard.

I think it's a thorough analysis of section 6 of the Indian Act, (1)(a), (b), (c), (d), (e), (f), and then subsections (2) and (3), for the Government of Canada to undo colonization and fix all the discrimination in that.

Provide a list of all the individuals, and then let the communities take their membership or citizenship, however they decide to structure their communities. Some are in place already, as I've heard from colleagues here. Allow for them to then approach the Government of Canada to say that a person was born in their community, that they meet their criteria, and give them status. I don't know whether status might be a separate thing, or it might go away. But I think it should come back to the communities to say that they have a nation-born infant and they are part of their community, after a thorough analysis of section 6 of the Indian Act.