Evidence of meeting #34 for Indigenous and Northern Affairs in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was children.
A video is available from Parliament.
Liberal
The Chair Liberal Terry Sheehan
Chief, could you finish with the very end of what you were just saying? You probably have about 10 to 20 seconds.
Thunderchild First Nation
What I said was that all the courts, the United Nations declaration, all the consultation and everybody who has weighed in on the subject have all come to the conclusion that there's discrimination and that Bill S-2 needs to pass immediately. If we all know that, and everything supports it, why are we waiting? The rest can be negotiated through a statutory timeline with regard to the other discriminatory items that exist and affect our people.
Liberal
The Chair Liberal Terry Sheehan
Thank you.
MP Gill, did you get that? Good. Thank you.
We'll go back to Drew. You can start from the top.
Lawyer, As an Individual
Thanks.
I want to draw the committee's attention to two existing instruments. The first is Bill S-3. That's from 2017. There was an instrument that was used in that case to allow for immediate legislative amendments to respond to the discrimination that was outlined in that circumstance. There was also a parallel mechanism introduced under the bill that contemplated...and directed the minister to engage directly with first nations across Canada to discuss issues. Back then, they were with regard to status, band membership and complications with the registry. In these circumstances, parliamentarians would benefit from that example and potentially utilize and apply it in these circumstances.
The second instrument is Bill C-92, which serves as a helpful framework for the implementation of first nations citizenship. Specifically, the recognition of an off-ramp and an opt-in system for first nations to avail themselves of if they decide they're ready to take on exclusive jurisdiction over citizenship is extraordinarily helpful in these cases. Implementing national minimum standards that mandate compliance with the charter, human rights legislation and the United Nations Declaration on the Rights of Indigenous Peoples would be immensely helpful in these circumstances. That is an option for committee members to consider going forward.
I acknowledge the complications of these circumstances but encourage all of those here to legislate responsibly. That includes a mechanism for engaging with first nations.
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes, ON
Thank you very much to our witnesses for this very important discussion.
I will start with Mr. Lafond.
With the recent denial of the government's request for an extension on Nicholas, the Indian Act registry, from what I can tell, will now potentially be different in B.C. from the rest of Canada.
What effect do you think that will have?
Lawyer, As an Individual
It will be extraordinarily complicated administratively to have status Indians in B.C. recognized or reinstated in that jurisdiction but not anywhere else in the country.
I have to applaud the efforts of the Senate in getting the bill as far as it went. We have to remember where Bill S-2 started. The work of the senators was quite courageous in pushing the envelope forward and getting the second generation cut-off rule on the table. It's important that the bill, in its current form, continues to make its way to pass through the House, but with more legislative mechanisms in place, recognizing the need for a process and binding timelines for creating an option for first nations to exercise their jurisdiction exclusively over indigenous citizenship.
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes, ON
In the last panel, there was a deputy chief here from Scugog Island, who said if no changes are made, they could see the extinguishment of their people within this century. There are many more who have said the exact same thing.
There is some urgency. You said just a few seconds ago that we need to get the government to move on this. If we delay this any longer, we're going to see this problem get worse. Would you agree?
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes, ON
Take as long as you want. I think I have a few minutes.
Liberal
The Chair Liberal Terry Sheehan
You have a lot of time left, MP Schmale. You have two minutes and 30 seconds.
Lawyer, As an Individual
The Supreme Court of B.C.'s refusal to extend a legislated timeline in this case.... I don't read it as a reason to delay addressing other unconstitutional or discriminatory provisions in the Indian Act. If anything, it's just the opposite.
I think what the courts emphasized was that they expect timely, good-faith compliance. They won't indefinitely accommodate legislative inaction in these circumstances. Further delays are not only an inconvenience but something that might throw into jeopardy the momentum that's already been put in motion by the Senate's proposed amendments.
At a minimum, introducing that the second generation cut-off rule be eliminated is required and legally mandated, but it needs to be coupled with a parallel process for recognizing first nation jurisdiction over citizenship immediately.
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes, ON
When I read the news that the courts just denied the extension.... Obviously, everyone's reading of this is up for interpretation, but mine was that the courts see that Bill S-2 is making its way through the process and it is ahead of the curve on a lot of these issues that have been ongoing for decades. When I read it, it was like the court was basically saying, “Bill S-2 is in progress. There will be no more extensions. Just get the job done.”
I don't know if that was your view as well. What did you take from that lack of extension?
Lawyer, As an Individual
The court was underscoring the need for timely, good-faith compliance with the Charter of Rights and Freedoms. Indefinitely delaying that relief is going to do further harm, and it only heightens legal risks for the government in these circumstances. That's on multiple fronts, as I mentioned in my submissions.
Liberal
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes, ON
I was going to ask the chief to respond, but that's okay.
Liberal
Jaime Battiste Liberal Cape Breton—Canso—Antigonish, NS
Thank you very much for your testimony.
We've heard from a plethora of good, learned witnesses that the status quo is no longer acceptable and that we really need to move past the second generation cut-off. What I've heard from both of you, though, is that Bill S-2, as it is currently written, is a partial fix, but it's not respectful and true to article 33 of UNDRIP that says nations should decide who their membership is. My belief has always been, as a Mi'kmaq person, that Ottawa has no business in determining who members of communities are.
Do you guys share the view that Bill S-2, as currently written, is a partial fix and that it's good to get rid of the status quo, but it does not really return membership and status in communities to the communities themselves and to the nations that are self-determining? Give short answers, please.
Drew, you can start.
Lawyer, As an Individual
Thanks, Mr. Battiste.
I don't see any mechanism in Bill S-2 currently, which would allow or empower first nations to take back exclusive authority, jurisdiction or citizenship. That's one of the bill's weaknesses. It's certainly something that needs to be addressed immediately. Again, we can look to previous examples, such as Bill S-3 in 2017, as a legal precedent for guidance on that point.
Thunderchild First Nation
I concur. I believe that anything that prohibits or takes away any right that we have as a self-determining nation doesn't do justice to support who we are from a sovereignty or self-determining perspective.
Back in the day, we determined who our membership was. Back in the day, there was no legislation that came in and said, “You are this; you are that.” You were born who you were, and that's who you were. Other nationalities don't have anybody or any legislation to tell them who they are. If they're German, Japanese or whatever, that's who they are.
When it comes to first nations people, you're 6(1) or 6(2), and you're going to lose your status and so on and so forth. I don't think that's proper or right. Any legislation that is short of that definitely has to be addressed in very good, respectful and honest ways.
When we come from the perspective of wahkohtowin, which talks about relationships and kinship, etc., and how they are defined, that's exclusive authority within the family and clan systems, and within all the systems that are governed, right from our lodges to our existence as peoples.
Liberal
Jaime Battiste Liberal Cape Breton—Canso—Antigonish, NS
Thank you for that, Chief.
I really appreciate your bringing it back to the language. When talking about citizenship and belonging, I always bring it back to the Mi'kmaq term, Tan Wetipeksin, which says it's not just about who your ancestors are but also about where you were raised, how you were raised, what your values are, which community you belong to and which communities and families have accepted you. That's the conversation that needs to happen.
Drew, I'd love to have a great conversation with you on what exclusive jurisdiction looks like. I think one of the things that we have to put safeguards against is potential abuse by people wanting to purge voters lists. For example, if I didn't like a family's point of view and they didn't vote for me in the last election, I could say that maybe we don't need them as part of this community. We have to make sure that we have first nation-led solutions to that. That's what we need to move forward on.
These are my last questions. Is ancestry the only thing we should be looking at to determine status? Is ancestry the be-all and end-all?
I ask this because even the Powley test for Métis said that it's not enough. Ancestry has to be there, but there also has to be this connection to a community, and there has to be acceptance by that community. That's worked out in terms of cases in New Brunswick, such as the acres and the Lavigne cases, which said that someone who doesn't have a status card can still practice their rights if they pass this test. I'm wondering if ancestry is the full scope of what we need to consider when talking about who should be considered a status Indian.
Liberal
The Chair Liberal Terry Sheehan
Unfortunately, that brings us to our time.
Drew, can you provide that in writing to us, please? It will be considered by the committee as testimony as well.
Thank you.
Liberal
Liberal