Indigenous and Northern Affairs Committee on June 8th, 2017

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. You presented that very clearly and passionately. I think we understand.

Now we're moving on to Pam Palmater, chair in indigenous governance, department of politics and public administration at Ryerson.

Hello, Pam.

[Dr. Pamela D. Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

Hi.

[Witness speaks in Mi'kmaq]

I am from the sovereign Mi'kmaq Nation on unceded Mi'kmaq territory. I acknowledge that we are here on unceded Algonquin territory, as well, which carries a huge responsibility.

I hope that every one of the committee members recognizes what a historic moment they are in. Today, in this room alone, we have Jeannette Corbiere Lavell, who took Canada to court on this issue. We have Senator Sandra Lovelace Nicholas, who took Canada to court and won on this issue. We have Lynn Gehl, who won on this issue. We have Sharon McIvor, who won on this issue. Unfortunately, Yvonne Bédard isn't here, but we have Stéphane Descheneaux, and Susan and Tammy Yantha. As well, there are many more in the hopper.

How many more times are you going to require that indigenous women spend their entire lives trying to get equality, in a country where equality is actually the law? You don't have a choice here. This committee, in fact, should be moot.

This is a very clear message. The fact that the government or any committee would be wondering or considering delaying equality for one more day shows exactly how ingrained sexism is in this country, and for indigenous women, racism. It is the law. You have no legal choice but to pass this bill—none whatsoever.

It's not a matter of whether someone likes it. It's not a matter of whether the male organizations like it, or other people like it.

We have equality for same-sex partners in this country. There were no demographics done. There were no cost projections done. You didn't bring in people who were anti-gay. It's a matter of equality. You do it because it's the law and you have to do it. As democratic people in a just society who value equality, you come together and say, “We will bear whatever the cost, whatever the implications of ensuring that equality.”

For indigenous women, however, it's a bit different. It's a matter of life and death. That's the difference. This isn't just a matter of administration, what phase we will do, or what kind of funding agreement we will have with the AFN; this is a matter of life and death. It should be a done deal.

Here's the other historic part about Bill S-3. When have I ever come before any committee—ever—or written about any federal legislation and said, “I support this bill”? You can count the number of times on one finger, and there's a reason for that. Nobody wants the Indian Act. Nobody wants paternalistic, racist, sexist government telling us what to do anymore. Oftentimes this happens without our consultation or consent. However, this is a piece of federal legislation that is subject to equality laws. You don't have a choice here.

Bill S-3 is historic for another reason. It represents the consensus of the Senate, a non-partisan consensus. How often do we get that in this political country? I would offer, not too often.

You also have Senator Murray Sinclair, who is the head of the Truth and Reconciliation Commission, who is the expert on how to bring about reconciliation in Canada. I met with him yesterday and he told me to please remind this committee that he was in favour of this bill. In fact, he doesn't believe it goes far enough, but he is in favour of this bill and that is significant.

There is no oppositional outcry. That is also very significant, because INAC has worked very hard in the last six months to manufacture dissent. Money is very powerful. You can go to any indigenous organization and say, “Listen, support us on this, and we'll give you millions of dollars in phase two to talk and talk, something we've done a hundred times.” Well, here's the relevant part: no national or regional organization is a rights holder. They're not a government. They have no say. It's the people who are impacted who have a say.

They may sell us out for consultation money, but that's beside the point. The law still applies; and the court issue is, in fact, equality.

It's not just section 15 of the charter that guarantees equality between men and women, or section 3 of the Canadian Human Rights Act that specifically prohibits the federal government from discriminating between men and women. Subsection 35(4) of the Constitution Act is very important, because you often look to first nations to say, “Well, what's your view? It's your aboriginal right to determine citizenship. Do you want to discriminate against indigenous women?” Well, subsection 35(4) says that if you're going to assert an aboriginal right, by the way, it's guaranteed equally between male and female people. In case that wasn't clear, the international consensus under article 44 says that every single right in the United Nations Declaration on the Rights of Indigenous Peoples, which Canada supports without qualification, is subject to male and female equality. Most importantly, there isn't a single indigenous law or legal system in Turtle Island that justifies or sustains inequality between human beings—needless to say, male and female people.

Our treaties guarantee these rights for heirs, and heirs forever, not just the guys. Just because the male organizations have failed, and just because they're not here advocating, doesn't mean we are not entitled to that equality.

Here's the hard part that you have. If you want to continue to be racist and sexist as the government—if you really want to—that's going to be hard, because you are going to have to take a complex set of Indian registration mechanisms and make it even more complex to make sure you register the minimal number of people possible and maintain the legislative extinction dates for every first nation in this country. If that's your goal, then you don't have the ability to talk about reconciliation, nation to nation, or anything else.

What you are saying, if you don't pass this bill and if you do not stand with indigenous women on equality, is that indigenous women don't deserve equality. However, you must also accept the consequences. That means it's on you when indigenous women go murdered and missing, because the United Nations has already told Canada that it is one of the primary root causes of murdered and missing indigenous women. You're saying that it's okay for Canada to continue to steal indigenous children from indigenous women at rates that far exceed any other country in the world. Overrepresentation in prison.... What you're telling serial killers and rapists is that they can continue to target indigenous women at seven times the national rate because they get to do it with impunity. No one cares, or we would have acted on this already. You will also maintain the legislative extinction dates, and there's no reason for it. Enough is enough.

In 2017, Trudeau promised a new, nation-to-nation relationship based on equality and respect for aboriginal and treaty rights that would end violence against indigenous women. They would abandon the adversarial relationship and abandon forever the top-down paternalistic decision-making powers and even repeal Harper's laws, which I will remind you include the very discriminatory Bill C-3 that came out of the McIvor case.

Words mean nothing. Phases or ministerial commitments mean nothing. Actions mean everything, and there is nothing stopping you. There is nothing in the McIvor case, Lovelace case, Gehl case, or Descheneaux case that says you cannot remedy gender equality. In fact, just as Masse said, please don't do what you usually do. Please just fix this once and for all, and please do not buy into the federal government's fearmongering around millions and millions of people being registered. That is a blatant lie. It is meant to promote fearmongering amongst first nations, and it is not true.

There are fewer than 900,000 registered Indians now. Of those, 50% are women and 50% are children. Fewer than 100,000 people cannot make two million people. We may be baby-makers, but we can't make two million people.

I'm asking that this committee support the Senate's amendment and not have any more delays in granting equality for indigenous women.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We have Catherine Twinn, the daughter of the late Walter Twinn, chief and senator. With her is Deborah Serafinchon.

[Catherine Twinn, Q.C. Lawyer, As an Individual]

Good morning, everyone.

I'm here today with my stepdaughter, Deborah Serafinchon. I prepared a genealogy. I also prepared written speaking notes but this morning I forgot them on the table. I'll provide them to the clerk.

I want to pass around, though, the genealogy of Deborah Serafinchon, to make the point that Deborah is not a registered Indian, nor is she a Sawridge First Nation band member.

On both sides of her lineage she descends from treaty signer Charles Nisoteesis. Her lineage is impeccable in terms of her first nations status, post-treaty. I invite you to compare her situation to the situation of, say, a non-aboriginal woman who married in, pre-Bill C-31 of 1985, acquired status and membership, divorced long ago from the Indian husband who himself enfranchises pre-Bill C-31, and she and her child are registered status Indians and band members under section 6(1)(a).

While Deborah is not registered at all, it is not for want of trying. In 2001, Deborah applied to the Department of Indian Affairs and she was told that there was a backlog; it was delayed.

She then applied to the Lesser Slave Lake Indian Regional Council in 2002. They administer the Indian registration program for INAC and they're governed by a board of chiefs. She submitted her application, together with DNA evidence that I and my children provided so she could prove her paternity, because my husband, her father, died in 1997. Deborah had found him just before his death, as she did her mother, just before her death. She did not know her genealogy because she was placed in the child welfare system.

The response that Deborah received was, “You need to go to some of the Sawridge First Nation members, the surviving siblings of Walter, and get them to swear a statement that you are his daughter.” That is ridiculous. She had DNA evidence. The surviving siblings had no idea who he slept with and when. Their evidence did not exist on that point. They all were students at Indian residential school, and this fractured relationships. Some of them had moved away a long time before.

To ask that is oppressive. It's a form of administrative violence. They were reluctant because they were afraid of high impact.

In March 1985, I appeared before your predecessor committee on behalf of Treaty 8. Their brief, which was provided to the clerk, spoke at length about high impact, and there was a very real concern then.

Sharon McIvor is absolutely right when she says that we have nothing but a trail of broken promises when it comes to, “Trust us, we're going to follow up.” They don't. This has happened three times. Three times, you're out.

I read, on June 2, that the minister is opposing the amendments that came from the Senate on the basis of a concern about impact. I want to say to you that this is disingenuous and dishonourable. The crown, Canada, the lawmakers of Canada—you—have a duty to be honourable in your dealings with our people. That is from the Supreme Court of Canada, a duty to be honourable.

It is disingenuous because after the Treaty No. 8 brief, my community, a notorious community seen as the gatekeeper.... CBC's The Fifth Estate did a documentary targeting my late husband as a gatekeeper. That came out in June 1997, just before we were to argue an appeal resulting from the decision that came from the Federal Court in the first trial. One of the grounds was reasonable apprehension of bias of the trial judge in making statements that Indians were childlike compared to white people, who were adult-like; that Indian men were the beads-and-buckskin boys just after the crown's shilling; and that oral history evidence was ancestor worship, propaganda at its worst.

We succeeded on the appeal, but we were forced into a second trial, and in that second trial the crown participated vigorously, aggressively, and with a great deal of hostility toward us. They brought in four special interest groups and paid them to participate. Central to the litigation was impact, as well as nature's laws, indigenous laws. What is it that we govern ourselves by? What are the legal norms that govern our behaviour toward one another and toward all life? That's documented.

I remember the crown lawyer saying, “Where is your statute book? Your laws don't exist. We have statute books.” That's the mindset.

In any event, we never got to deal with these issues, because there was an attack on the lawyers representing the plaintiffs, and I was one of them. I lived in hell for five years. I bet you, if I were to sit down with Sharon McIvor and some of the other women and we compared our stories, we would see that there has been a state-sponsored quarrel here that's gone on for way too long, and it needs to stop.

It is disingenuous for the minister, in my opinion, to now say, “Oh, we're concerned about impact.” You didn't follow up on impact in 1985 in response to the Treaty No. 8 brief. You had an opportunity to deal with us on impact in the litigation, and you refused to. Instead, you turned your guns elsewhere.

It's also disingenuous because now, under the Daniels decision, Métis are section 91(24) responsibility. We are all under the same tent, so what are we doing here? Are we moving the chairs on the deck of the Titanic? The feds are responsible. Section 91(24) is for all aboriginal people, so let's not play that game of whack-a-mole.

With respect to INAC's position on services and programs—

Am I done?

[The Chair, Liberal, MaryAnn Mihychuk]

You have one minute.

[Catherine Twinn]

Their long-standing position is that these are not legally obligatory; they are at the pleasure of the crown. If they really mean that, then what are they concerned about?

In any event, INAC is notorious. There have been Auditor General reports, and reports from many other informants, about the inefficiency, ineffectiveness, and waste of the programs and services they administer. The late George Manuel said that one cent on the federal dollar actually reached the grassroots Indian. INAC disputed that and said, “No, it's 10 cents.”

In any event, there are innovative solutions taking place. In Quebec, I am informed by the McConnell Foundation that they have partnered with a first nations community to address chronic housing shortages. They have developed an innovative financing formula that has led to the construction of over 400 homes, individually owned, without prejudice to aboriginal collective title. They have also built a hotel and a trade school.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We've moving on to the questioning, so you'll have an opportunity to expound on your points and others that MPs can ask questions on.

The first round goes to MP Mike Bossio.

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

Thank you very much for being here again. Thank you for your patience, the decades of dealing with this issue again and again. I have a personal friend, Dr. Marlene Brant Castellano, whom you might know, who also was treated in this manner, and it was rectified under previous legislation. Regardless, I've always found it appalling that this situation even exists.

I was at a women's restorative justice symposium back in 2014. I didn't know the situation existed until Marlene and.... Memee Dawn Harvard was there, and Waneek Horn-Miller and Jeannette Corbiere Lavell, who also testified here. I got to see her again and had a conversation with her that day.

I was stunned that this situation exists. Most people out there are not aware of this at all. I still am overwhelmed by all of the discussions and Bill S-3, which was here, and then it went to the Senate, and it has come back and it has been amended. Just trying to wrap my head around this whole convoluted mess has been very difficult for a lowly MP like me, who has not dealt with it for decades as you have who understand it with every fibre of your being and are revolted by it in every fibre of your being. You can tell through your passion that this is the way you feel about it.

I also know on the other side and have heard from my own chief the deep concern that they have in their community about being overwhelmed. They're one of the reserves that is growing and growing substantially through outsiders coming in. He's concerned not just about having the funds, though the funds definitely are one issue, but the human resources to be able to deal with an influx—a large influx, potentially—of people coming in. In our suicide study, we've also seen this as one of the key aspects of dealing with the social predeterminates of health: the lack of human resources and infrastructure in place to deal with existing issues in many indigenous communities.

Then you have Senator Sinclair, who also has expressed concerns about the paragraph “6(1)(a) all the way” clause because of some unintended consequences that could result from the clause as it stands today.

We've had testimony from the Indigenous Bar Association and from NWAC as well, who have some concerns. I'm not trying to pit one against the other at all. All I'm trying to point to is that the reality of the situation may necessitate doing this in a staged fashion. There are 35,000 people who have already been identified.

I know you're not going to like this. I can see it already in your faces that, once again, you shudder at it. But if the process is there, the commitment is there, and the commitment is written into the act. It's not a case of saying that we don't recognize that the discrimination and the racism in the system is appalling as it stands right now. It is new legislation, however, and the duty to consult, the duty to prepare, the duty to ensure that the resources exist to deal with this in a...to deal with this at all, just because, in reality, the resources aren't there today....

Do you not see some level of validity in having a consultative process, not to justify that we need to rid ourselves of this once and for all, but to lay out a framework so that we can implement this in a responsible way?

I'll open it up to all, because I know all of you are just dying to jump down my throat on this, so, please, by all means go ahead.

[The Chair, Liberal, MaryAnn Mihychuk]

You have two minutes for responses.

[Dr. Pamela D. Palmater]

Thank you for your question. No is the answer. There is zero comfort in a staged process.

We've been in a staged process since the 1970s. Stage one was Sandra Lovelace, with promises of consultations and amendments to the Indian Act. That didn't happen.

Stage two was McIvor. Again, promised consultations and phases and amendments to the Indian Act didn't happen.

Stage three was Descheneaux, and then very quickly after that, there was stage four, Lynn Gehl, because now you can't keep up with the amount of litigation for the failure to deal with gender discrimination.

How many more promised but never delivered stages will we get? Also, the legislation does not say “we promise to end gender discrimination in phase two”.

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

Can I add one further thing? Is there anything that could be written into the legislation to give you a sense of security that it was to going to be followed through?

Forget about just saying we're going to consult, so if there were timelines, if there were detailed commitments that we are not saying that we're not doing it, but.... Is there anything we can put in there that would give you a certain level of comfort that this was going to finally end once and for all?

[Dr. Pamela D. Palmater]

Yes. End gender discrimination and support a Senate amendment. When you get rid of discrimination, that is the guarantee. Promises of reporting are nothing. We've had those before.

Quite honestly, you can move forward in a staged process to deal with Indian registration and band membership in general by, number one, passing this amendment. That's in the short term. In the immediate term, number two, you engage in your promised process to talk about band membership and other issues. Then number three is self-determination. That's in the longer term.

Those should be the three stages, but there should be no single day left of gender discrimination. There's no excuse.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

We're moving on to MP Viersen.

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

Thank you, Madam Chair.

I'd like to thank our guests for being here. I know that Catherine Twinn does come from the most beautiful part of the country. I might be a bit biased on that, but—

My question is for each of the guests we have here today. If the minister were sitting here right now, what questions or comments would you have for her?

I'll start with Catherine.

[Catherine Twinn]

What I would say to her is that doing the same thing over and over and expecting a different result is a form of insanity, that the consciousness that created the problem is not going to be the consciousness to solve it, and that constitutional compliance comes first, comes now, and is a separate issue from impact.

Impact, as I said before, is being used disingenuously and dishonourably. I think there should be an impact consultation, but I think it should be led by both Houses, and it should be collaborative. It should have inclusion of the people who are impacted. One of the things that has been said over and over—and I'm sure this is not new to you—is that we are dealing with a lot of historic trauma that is being intergenerationally transmitted. That trauma affects how people think and how they interact with one another. We have a complex problem that was created by colonial legislation, which means that we need to work together to solve it.

However, one of the aboriginal scholars, Dr. Peter Menzies—and this is directed to you, Mike Bossio—has said that for the manifestations of this trauma, which affects the four interacting levels of individual, family, community, and nation, one of the manifestations at the community level is an inability to reclaim community members. I know that, because if you look at the Indian register, you see that they have registered 503 people, human beings, to Sawridge. We only have 45 members, and only one of those members is a child.

Where are our children? One of the groups most impacted by Bill C-31 going forward are the children. Many of them are bandless. This is unconscionable, and it's dishonourable.

[Dr. Pamela D. Palmater]

I would tell her three primary things if she came and spoke to the people impacted.

One, that a rigid, non-negotiable position is not only a sign of bad faith, it's a breach of her legal fiduciary obligations to always act in the best interest of first nations, and that is supposed to include women.

Two, that her continued refusal to address gender inequality is an abusive process. It forces indigenous women to continue to keep going to court to litigate exactly the same scenario over and over again, and it's a matter of unjust enrichment. By the denial of programs and services and treaty rights, the federal government gets to keep that because they insulate themselves in the legislation from having to pay later.

Finally, Indian Affairs using the fear tactic of ballooning costs to first nations is a double hit of discrimination. They're using discriminatory, chronic underfunding to first nations as the reason to discriminate against indigenous women, and that is the epitome of what it means to be INAC. There's no excuse for it.

[Sharon McIvor]

I don't have a lot to add to that, other than the impact or the cost of an amendment is not a consideration. The courts have been very clear about that. You want to delay. You don't want to do what you're supposed to be doing, and you're using the excuse that we might not be able to afford it. It's not a justification.

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

Deborah, did you have anything to add?

[Deborah Serafinchon, As an Individual]

I'm not a lawyer. I'm not into any of this. All I know is that I don't understand different statuses—of paragraph 6(1)(a), 6(1), 6(2), or whatever it is. As far as I'm concerned, an Indian simply is an Indian. I don't understand why there are different levels of status.

My mother was Indian enough to be in a residential school. My mother was Indian enough to hide me when I was a baby, because they would come and take unwed mothers'—Indian mothers'—children from them, so she hid with me. She left the hospital and hid with me, because she was Indian enough for that. She wasn't Indian enough, though, to get status. She had to fight for it.

What has changed in 50 years? Her daughter is now fighting for it, and I don't understand it. I'm Indian enough to be discriminated against, but I'm not Indian enough to get status.

[The Chair, Liberal, MaryAnn Mihychuk]

You have a minute left.

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

One of the interesting things about this is that we're dealing with an aspect of the Indian Act. I come from an automotive background, and sometimes the vehicle is just too far gone. You try to fix the wheel bearing, but there are a million other things that need to be fixed too, and so this new wheel bearing is only going to get you another five miles down the road.

From your perspective, am I describing the situation correctly, Catherine?

[Catherine Twinn]

Well, I've prepared a number of amendments that I would hope this committee would consider to make the car run. They're not rocket science, but you have to have courage, you have to have independence. You can't be beholden to your party masters; you have to do the right thing here.

I will be presenting those amendments. I obviously can't speak to them, but I would hope that they would be considered, and they're easily doable well before July 3.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now moves to MP Saganash.

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

Thank you, Madam Chair.

Welcome, and thank you to all of you on this panel. I appreciate very much your words.

I want to start with something that you asked, Sharon. In your letter to the senators, you talked about the concerns raised by communities on the potential impacts of paragraph 6(1)(a) on the way. You said the following in one of the paragraphs:

As I have explained in the past, I take fundamental exception to this argument. Indian bands and communities have no legitimate say in whether the Government of Canada continues to discriminate against me and other Indian women because of our sex. The Government of Canada has an obligation under constitutional and international law and a fiduciary duty not to discriminate on the basis of sex, whether Indigenous bands and communities agree or not. By now most Indigenous bands and communities do not wish to see discrimination on the basis of sex continue.

In your opening remarks you talked about the people you represent, that you're not here only as an individual. You talked about the other women you represent here, which is pretty legitimate, in my view.

Then you asked in your remarks, speaking to us, who we represent, who we speak for, which is, I think, the fundamental question here. Certainly as a member of Parliament I represent my constituents, but as a member of Parliament and as a legislator I also speak for the rule of law. I have a fundamental duty as a member of Parliament to uphold the rule of law. What does that mean? It means respecting the Constitution. In our Constitution is the Charter of Rights and Freedoms and section 35 on inherent rights. That's what we are here for. So thank you for asking that question.

Pam, you're right in saying that we shouldn't even be here discussing this. I absolutely agree with that. That is the reason for my total, absolute, and profound disdain for the Indian Act. It is inconsistent with the fundamental human rights of indigenous peoples of this country, and it shouldn't be there. I have expressed that. Whether it's in our Constitution or in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples, those rights are inherent. They exist because we exist as indigenous peoples. I think that should be our starting point all the time, whether we discuss policy or legislation.

My question is fairly simple. You're recommending that we support Bill S-3 as a committee and recommend that Parliament adopt this legislation. I agree with that as well. I asked a question previously of NWAC, on Tuesday, and also of the Quebec Native Women’s Association, about clause 10. That's the “no liability” clause in Bill S-3, which in my view is problematic. With this clause, we are essentially asking this committee and Parliament to justify past discrimination and past violations of human rights.

I want to hear from each and every one of you on this issue. What would you recommend with respect to clause 10 in particular?