Indigenous and Northern Affairs Committee on June 6th, 2017

[Chief Rick O'Bomsawin, Chief, Council of the Abenaki of Odanak]

First of all, I'd like to say thank you for having me back again, but every time I come back, it just means that we haven't settled the problem, so, in one way, thank you.

I think that one of the big things that we're being misled on here is the system itself. As David pointed out to you, as you looked at the charts, status and native citizenship code and membership are not the same. They don't even belong in the same sentence. A native is always a native.

This is a government system that they put in place, which they have an obligation to. It is their system; it was not our system. Their system has sexual discrimination in it. I'm completely thrown that in this country, our country of Canada that we all love.... And as I look around this table, I see the true meaning of Canada. Many of us are from different nations from all over, with ancestry from different places, but we're all equal. When it comes to my first nations women, we have sexual discrimination, and this is okay?

It's hard to believe that we have to spend this much time on this subject to say that a woman could be disenfranchised and, because of that, she has no rights. I look around the table here, and there are women at this table. If our government disenfranchised one of you and said you couldn't sit at this table, you would be arguing about it. This is the reason we bring this argument to the government and say this is their system. Indian Affairs put this system together. All we want is equal rights for our women. Our women deserve that. This whole status system, we agree, was not correct. They like to turn around and say they consulted with communities who don't want what the Senate wants. They don't want to clear this up because of cultural erosion. No one knows cultural erosion better than me and my communities. That is our job. Our job is to take care of cultural erosion, not the government's. The government's job is to take care of sexual discrimination, and then let us do our work.

Citizenship codes and membership codes are something that our communities have the right to. We have the right to say who our citizens are. We have the right to say who our members are. In our codes, I guarantee you, we don't have sexual discrimination. Our women are the most important thing in our nations. Our women are the givers of life. They are the ones who we are supposed to be respecting. That a country that will this year will celebrate a 150th anniversary can still stand and say we can discriminate against women, I'm ashamed to say that.

For that reason, most first nations people will not be celebrating the 150th anniversary because this country still has not given our women fair rights. Sexual discrimination needs to stop. Stage one, stage two, how did we even come to the fact of saying we need to do stage two? Is discrimination discrimination?

They say they have consulted with nations that don't want to have anything to do with this and they don't want the change. Under that logic, I could say, if I consult with 15 racist people, does that mean racism is okay? Consulting is fine, but it has nothing to do with the problem that we have at hand. This is their system. They put the discrimination in the system. They need to fix their system. Why does the system not want to be fixed? Let's all be honest, we all know, it's financial commitment. We all know this is about money. This is not about being native. This is not about who's Indian or who's not Indian, who has the right to live in my community and who doesn't have the right to live in my community. This is about dollars and cents. This is about obligation. Please, listen to what the Senate has to say.

Look at this. Stage two, eighteen months. The last stage two with the McIvor case took six years. In the end, my community had to take you back to court again. I will if I have to. I will go back to court 10 years from now. I don't want to. Let's not sit at this table. Let's all do our jobs and solve this problem once and for all.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much for those very technical and passionate presentations.

Now we're going to move into the Q and A section. This round is seven minutes per questioner, and we will start with MP Mike Bossio.

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

Thank you, Chair.

Thank you all very much for being here today and for your passion. I think all of us around this table appreciate that passion and the desire to find a solution to this issue.

I have a first nation community in my riding, the Mohawks of the Bay of Quinte. I've had a number of discussions with the chief. I've known him forever; he's an outstanding chief. A number of them have expressed the concern that you just outlined; yes, funding is absolutely an issue that terrifies them. How do we provide the services given the lack of funding? But it goes beyond funding. It goes to human resources; it goes to land. That's one of the biggest concerns. They're not creating any new reserves. I guess maybe they are. I know in Alberta they're looking at it. Sorry, I take that back.

But it's the infrastructure, the land, the human resources, the finances, the building to provide resources. We're just finishing a suicide study right now, and one of the biggest issues we looked at was the social determinates of health: the lack of housing, the lack of funding, the lack of mental health services, etc. I think all of us around this table want to see this discrimination ended once and for all and to be able to bring individuals into our communities and expand that population.

But do you not see the potential here and the desire to have that consultative process? We recognize that it's of absolute importance in working with and partnering with our first nation communities in a nation-to-nation relationship. You can't do that without consultation. But if you were to delay the implementation, Stéphane Descheneaux and his children will not receive that membership until that's concluded. Who knows how long that could take?

The government has put forward a stage two that consist of 18 months of consultation. In stage one, we would begin the immediate registration of 35,000 individuals. That's a guesstimate. Do you not see the benefit of moving to that immediate implementation, with stage two timelines being written into the bill and committed to in the new, amended bill?

Mr. Schulze.

[David Schulze]

I want to explain. I'm on my second stage two, and if Ms. McIvor were here, she'd be on her third. Let's be very clear. This committee issued a report in 1988. They reviewed the 85 amendments. They said we need to eliminate all discrimination between brothers and sisters. We need to do it by the end of this parliamentary session. It's 30 years later.

I'm sorry. Nobody believes in stage two except the Department of Indian Affairs. It's taken 23 months for the Descheneaux decision. Do you know when the department called Chief O'Bomsawin to have a meeting about it? I'll tell you when, never. They had the meeting when I requested it. Nobody believes in stage two. Nobody believes that a department that's still fixing problems in the bill 20 months later is going to do everything they say they're going to do in 18 months. Nobody is interested.

This is the other thing. I'm sorry, but the charter is the supreme law of the land. I know what you're talking about. Sure there are concerns about land, about resources. But you either obey the charter or you don't. This department has shown no inclination to obey it until now. It's seen as very urgent to get Mr. Descheneaux's kids registered now, but it wasn't urgent for all those years that we were in court with them. We can fix this problem now or we can talk some more for another 30 years. I'm sorry, I have no reason to think that if this department is not facing a deadline, they will do anything but talk.

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

But you assume there will be an extension to the legal case, and if there is no extension to that case, then nobody gets registered. Even under the present situation of 35,000 individuals, they're looking at three years to just be able to register those individuals. And that's hiring 54 people. Yes, we can hire more people. Hopefully, we can find them with the skills necessary to do it.

But this is an ongoing challenge; the human resource aspect is one for which, as we've shown time and time again, we're just not there. They're just not available to deal with the present indigenous communities they're trying to deal with.

Once again, I'm concerned that the reality of the situation is that we don't have the capability today, even if we open the floodgates and accept all the amendments put forward by the Senate, to take in potentially two million. I realize that the data of the 80,000 to two million figure is flawed. The data is so flawed that we have no understanding as to what numbers will actually come forward. To me, one of the first tasks that needs to happen, through the consultation and collaboration process, is to get a better handle on those numbers.

Surely, you do have to recognize that there has to be a plan, and today there is no plan.

[David Schulze]

The first thing I should say is that the July 3 deadline is not carved in stone. You were told that you couldn't get around the February 3 deadline.

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

We asked for six months and were given five months.

[David Schulze]

I have a conference call at noon with Madam Justice Masse and the lawyers for Justice Canada. Why? Because Madam Justice Masse, unlike some people you've heard from, is proactive. She saw the deadline coming, called the lawyers, asked if they would need her, and told them she could book and start blocking time if a motion were brought. She didn't tell them she would grant the motion, but that she could block the time. At noon, I have to get on the phone and discuss that with her.

It's perfectly open to the government to ask for that additional time. They haven't asked me, as counsel for Mr. Descheneaux, what my position is on that. They love these deadlines. What they do is run around with rope they've tied around their own hands and say, I can't do anything, I can't move my hands.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning now goes to MP Yurdiga.

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

Thank you, Madam Chair. I'd like to thank the witnesses for coming back again. I'm sure we'll be seeing each other again and again, and probably my great-grandchildren will too.

It's interesting that we would like to have stage two and to do another study, and then it will be stage three, as everything is really being pushed down the road. Why? It's probably a money issue. I have a lot of people come to my office and say that we have to fix this now, that we don't need to punt it down the road to the next election or the one after. It's very troubling.

What I'd like to see is how you would fix Bill S-3 as it stands with the amendments. Is there anything more that needs to be done?

I open up the question to all the witnesses, if they want to answer.

[David Schulze]

I'll try to make my portion brief.

The department told you this morning about the technical meetings we had. I need you to understand that we had these technical meetings and brought forward issues. They said that those issues were very interesting, that it looked like we could have a good argument about an equality rights violation and discrimination, but that that discrimination was based on family status. They say that they couldn't deal with that now, that they're just dealing with sex discrimination.

That is absurd. In other words, the government is looking at charter violations in the face and is saying that they will only be dealing with sex-based discrimination this time. The minimum we can expect here is to address all charter violations and stop this language of known charter violations, which means that we wait to lose in court. We fight all the way in court and we wait to lose.

Do a serious analysis, whether it's sex-based, family status, or marital status, and let's do it now. The reason Chief O'Bomsawin signed a letter in support of the Senate amendments is that they make it simple: everyone born before 1985 would be treated the same. Honestly, that would keep me out of court and from arguing about all these complicated cases like you see in the chart here.

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

Are there any other comments?

[Chief Rick O'Bomsawin]

I definitely believe in consultation. I believe we need to sit and find out what the best way to solve this problem is, but we need to do it with facts.

You're right. When you speak to a chief and you tell him that under this new system we'll have 80,000 to two million new members—

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

I didn't tell him that at all. He told me.

[Chief Rick O'Bomsawin]

I know, and that's because Indian Affairs told him, in his consultation. If you came to me and you told me that too, I'd say that I don't have the land mass, I don't have the resources, I don't have the infrastructure. What am I going to do with all these people?

I think first, if they're going to come to us, could they come to us with facts and not fiction—not a fantasy story? I don't even know where they got this number, and when you asked them today, even they said the number was blown out of proportion and they're not sure. Tell a chief that, however, and he's asking what he is going to do with these people.

The other thing they have a tendency to tell us is that if we give status to all these people, we're going to have an influx of all these people moving home.

After the McIvor case, I had nobody move home. The people were already living there. I had no influx. If a person who is living here in Ottawa gains their status, do you think they're going to give up their job? Hopefully, they've got a good government job here. Do you think they're going to give up their job to come out to my place and farm the fields? It's all a myth.

Indian Affairs comes to the communities, they meet with the communities, and they explain all this big scenario that's going to happen. Of course the chiefs run scared. They're asking: “What's going to happen to my culture? These people don't know their culture, they have no connection to the land, they have...”. Well, that's where we have to do our homework, if the people do come home.

Our chiefs have to look at the question, will I put my land, my infrastructure, before my people? No. If these are my people, I will recognize them. If they want to come home, we will make room for them. I think more chiefs need to look at that and not discriminate against their own people. When a chief says to me that he's worried about the influx of these new people.... They are their people; they should not themselves discriminate against their own people.

I think, then, that consultation is the answer. We need time. We don't need stage one, stage two, stage three, stage four. Let's settle this. I keep saying the same thing: let's just get this over with and get it done. We definitely need to sit down to talk, but we want facts on the table and we want the truth.

Thank you.

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

Would you like to comment, Stéphane?

[Stéphane Descheneaux]

We're like those ghost busters, those old monster stories. All the time, they always “boo” something at us and try to make us scared.

If they came down to meet the band councils, they would have people there who would know who's a relative. They can figure out how many people there might be. They have questions for the people. When they get there, they ask for a citizen code or whatever they want to use. They have an idea of how many people there will be.

Take our example; we're 2,500 people. Are we going to pop up and be 25,000 the next morning? I don't think so. It's as the chief says: they work outside, they have jobs, they have careers, they have families. Are they all going to quit that and go somewhere else, in no man's land? Every day you look at the newspapers and see reservations in welfare conditions. Are they going to leave downtown Toronto to go back to them? I don't think so. We have to think about that too.

Money is the thing. Somebody else is going to fix the money; now what we're talking about is the identity of people. When those people have the chance to be registered, we'll know; then, after that, we'll fix it up. How many times have you gone to a garage or a car dealer to get your car fixed? You haven't even looked at your car, but you know how much it's going to cost you.

You have to go down to the bottom and look at it this way, and as David says, the more time flies and the more time goes by, the more people die and the fewer there are. That's what is happening.

Every morning I wake up, and the question for me is, what's the problem? It's tiny. Sit down with people and take care of it; take the time. But time flies, and we have to put a hand to this, too. We give time and we might give more time, but we have to move along somewhere.

This is what I think.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

Questioning now moves to MP Saganash.

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

Thank you, Madame Chair.

Thank you to the presenters today. Welcome back.

I want to start by saying that there's talk about these new people coming in, the influx into our communities, and so on and so forth. When we questioned the department just a while ago, there's something pretty telling in the responses. For instance, the officials talked about what was provided for in budget 2016: $149 million; and in budget 2017, $90 million over two years. When asked if there was an adjustment to provide for this new bill, they said no. I think that was pretty telling.

We get something like 250,000 new Canadians every year in this country. I don't think 35,000 new Indians would be a problem, in my mind.

My first question would be to Mr. Schulze. You talked about a couple of things at the end of your presentation. At one point you said that this is an Abenaki case and they were not consulted. I want to ask you something about that. You also talked about time, time to do this right. I'd like you to elaborate on those two points.

[David Schulze]

Okay. The first point is that, you know, it is very odd to listen to the minister and her officials talk about a nation-to-nation relationship. There was no mystery about the fact that the Descheneaux case was the case of the Abenaki nation. Odanak and Wôlinak were intervenors. The case was the project of the Abenaki nation. There was no contact between this department and the Abenaki nation until Chief O'Bomsawin was at a Quebec chiefs meeting and Indian Affairs delivered the whole package, and that was that. They announced what they were going to do, they noted comments, and then they ignored them.

As we say in French, le passé est garant de l'avenir: what's past is prologue. Why on earth would I believe it will all be better and more nation-to-nation in stage two than it has been so far when I represent the nation that won this case, and nobody talked to that nation until they decided everything they were going to do, and all the subsequent discussions were along the lines of, “That's very interesting, but we can't do it because we decided to do something else”?

Just as an aside, I think it's important for the honourable members to understand how deeply insulting that is, because you should know that the Abenaki have been in favour of equality for their women for decades. The communities got exempted from the married-out rule before the married-out rule was taken out of the Indian Act, okay? The Abenaki intervened on Ms. McIvor's side in the B.C. Court of Appeal. They get told, “We can't look at other charter issues because we need to consult”—consult with whom, the anti-equality, anti-charter first nations? Are they more important to be talked to than the Abenaki, who say “We would like our members to have status on an equal basis in a charter-compliant manner”. Somehow that's not part of this minister's and this department's notion of nation-to-nation. I find that very striking.

You know, just to absolutely emphasize to you what Chief O'Bomsawin said, we know why that is. They like talking to first nations that don't want more status members because Indian Affairs only pays for members with status. It's very important that you understand that. Stéphane Descheneaux's children are members, but they do not have status. There is no Indian Affairs funding for his children so long as they don't have status.

Sorry, you had a second question. Go ahead.

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

Just to finish on that part, do you think that the failure to consult with the Abenaki nation in this process is a fatal flaw? I'm asking it from a constitutional perspective, the duty to consult and accommodate. Failing to do that with the Abenaki nation, is that a fatal flaw?

[Chief Rick O'Bomsawin]

Yes.

[David Schulze]

Chief O'Bomsawin said yes, and I try not to disagree with my clients, but I would say that, yes, it's a fatal flaw because what we're asking for is for the government to respect the charter.

Perhaps if we had been saying, “Oh, please, violate the charter, Ms. Bennett”, maybe she could have said “Well, I've listened to that, but I'm not going to follow that advice.” We have to think about the absurdity of a minister who says, “It's true. You know, the Abenaki have asked me to respect the charter, but gosh darn it, there might be some first nations out there who would like me to violate it. I'd better talk to them.”

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

I asked the representative from Justice Canada just a few minutes ago whether Bill S-3 was vetted against the charter to make sure of its compliance. Under the Department of Justice Act, subsection 4.1(2), they have the obligation to make sure that any legislation is consistent with the Charter of Rights and Freedoms.

The answer to that question was that, yes, they did that.

Do you agree?