Status of Women Committee on May 1st, 2013

[Joan Jack, Councillor, Berens River First Nation]

I was hoping you'd start with the former chief here, out of deference to her position.

To start, I would like to say miigwetch to the committee for inviting me here and thank you to the Southeast Tribal Council for getting me here.

My name is Joan Jack and I have the privilege of serving my people as a part of the Berens River First Nation chief and council. My portfolio on council is health, social and CFS—child and family services. I left Berens River yesterday in a light snowstorm and boarded a 206 airplane to the end of the road.

On a personal note, I am a mother of six, or maybe seven, or maybe more if you count all the children my husband and I have raised over the last 20 years. I am a survivor of domestic violence in my twenties—different husband. Sometimes leaving is the answer. I'm also a lawyer and a member of the Manitoba bar.

I'm ultimately here as an indigenous women to assert our rights as indigenous women in an indigenous context. Before I continue, I want to apologize from my heart, as I will surely offend someone, and while that is not my intent, I invite you to make peace with me later.

I don't know how many of you realize that it's welfare day today, and for sure in Berens River there will be women abused tonight. But the women probably won't leave, because the solutions to why we are violent and why we tolerate violence are not simple, and leaving and dividing our poverty when you live on an isolated reserve is not always the solution.

When I was invited a short time ago, I began downloading documents to review. I realized I was causing a clear-cut, so I stopped. Instead, as is our culture, I went to look to see what other first nations women in leadership were saying. On March 9, 2007, Wendy Grant-John, who I admire greatly, submitted a report through the Native Women's Association of Canada, and I found that Wendy had said:

The Ministerial Representative’s key recommendation respecting a legislative option is a concurrent jurisdiction model in which First Nation jurisdiction over matrimonial real property including dispute resolution would be immediately recognized and take paramountcy over any conflicts with federal or provincial law.

Wendy went on to say:

The viability and effectiveness of any legislative framework will also depend on necessary financial resources being made available for implementation of non-legislative measures such as...prevention of family violence programs.

And I thought, “I agree.” Why isn't this legislation coming out of section 35 as concurrent jurisdiction? Maybe it can't be done? I doubt that.

But l'm not going to get into legal intellectual gymnastics, even though it's tempting, because it is welfare day back home and our people are suffering. My people are suffering and our families are suffering. We are suffering because we continue to resist colonization and assimilation by staying and living in terrible living conditions, because we love our land and we love Berens River. The majority of our people live on reserve, and more would come home if there were opportunities.

So we live without proper housing, water, sewer, roads—the list goes on. We must stop coping with alcohol and drugs, for sure. But what makes me the saddest is that apparently the majority of Canadians can't figure out why we just don't all move to the city and get a job. We have moved to the cities, and in the face of racism and a lack of skills and education, we turn to crime as a source of income and have started gangs as a means of economic activity.

Instead of working with us through legislation that implements concurrent jurisdiction through section 35, the federal government has cut funding to family violence programs, cut funding to language programs, cut funding to health programs, cut funding to healing programs. Basically, no matter how many of us die.... And we are dying. I have not been to so many funerals in my whole life since I moved back home to my reserve. All the ways in which we might continue healing and recovering from colonization—healing and education—have been replaced with a “suite of legislation”. Goodness knows who will understand or implement these solutions on reserve. What federal department will administer the legislation? Which court will administer this legislation? The court that flies into Berens River? Where will the Berens River First Nation get money to develop and implement its own laws. If the legislation is out of subsection 91(24), which it is, then it's subject to the Minister of Indian Affairs—sorry, no one back home knows the new name.

We, as Indian Act chiefs and councils, will administer the law we develop in accordance with the rules set out in this legislation, and we will administer that law under the Minister of Indian Affairs and become first nations municipalities. Just as there is municipal law subject to the provincial law, our laws will be subject to federal jurisdiction. I don't think this is what Wendy meant by concurrent jurisdiction.

This legislation is another clear and deliberate step towards the creation of municipal governments subject to federal power. This is not what Wendy said was the solution.

I'd guess today that only about 10%—and if you don't hear anything, I want you to hear this, please, because I know you all care. I know you're not sitting there because you don't care. You're sitting there as women because you care. But 10% of the first nations governments—that's my guess, and that's generous—have been able to muster their own strength again sufficient to recover from the cultural genocide of residential and day schools, the assimilation policy to kill the Indian in the child.

What I think is going on is that first nations governments without treaties—again, this is just my view—see the municipal solutions as a transitional solution to ensure that more Indian money doesn't get transferred to the provincial governments and away from their people. I would say, honestly, with deep respect, that these first nations governments are all located near urban centres where they have property that is actually worth money. For the rest of us, the 90% who don't live near urban centres, we mostly live in mouldy, old, overcrowded houses that are the cause of much of the domestic violence and low education scores.

Don't get me wrong: there is no excuse or justification for domestic violence. But if the federal and provincial governments really wanted to help first nations women and children on reserve, they would work cooperatively with us to provide more housing—period.

Let's just start with houses that don't mould and see how that affects domestic violence. Yes, many, many first nations women stay in abusive relationships because they simply don't want to leave the house—true. There is no other house to go to, and the husband doesn't want to leave the house either, because where's the house he's going to go to?

However, I know there are many, many more first nations women who love their husbands or common-law spouses and just want the violence to stop. They don't want to leave. They want to heal. They want to heal with their spouses and children, as a family.

This push for legislation out of subsection 91(24) and not section 35, in my opinion, is about the money and the continued assimilation policy that equals economic development through legislated racism.

The federal and provincial governments continue to tell us, “You must do things like me. You must create law like mine. You must be like me.” Like a spruce tree is not a pine tree, I am not you.

In the meantime, the federal government says, “We will have our provinces take care of your women and children in their mouldy, overcrowded houses without running water and sewers, and we will help them if they want to leave.”

When I was first elected to the Berens River chief and council, I sat in the court in Berens River and watched our people, my people, paraded through the legal system with an average of five minutes' face time with their legal aid lawyer, month after month, remand after remand. Then they breached. Then they were sent to jail. Then they were flown out, only to be remanded again. One month I watched a young mother who brought her newborn to court to show the baby to the father who was handcuffed, as the baby was obviously born between his charges and his breach. So sad. People sober up and they're sorry. They don't want to break up.

If this legislation goes through and there are some women on reserve who want to access justice, how are they supposed to do that? At present, women are being forced under family maintenance rules through welfare and are told to file for support, but you have to go to Winnipeg to get a lawyer.

I'm conscious of the time, Madam Chair.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Yes. It will be a bit less than a minute. If you can, please conclude.

[Joan Jack]

Well, I'll just read the last two pages, then I'm done.

There is no way in my mind that we can call what is happening in the rural, remote, and isolated fly-in community circuit courts anywhere in Canada justice or even access to justice. Our young men, and even some older men, plead guilty to get it over with, do their time, learn how to be better criminals, and then come back home with a new skill set.

I make a point about people being punished for having a disease, which I also think is one that I'd like you to take to heart and consider. You know, we don't punish diabetics for eating doughnuts. I know I've trivialized it, but it's the same thing. My people are suffering from alcoholism, and yet we're criminalized and our families are fractured and we're punished. And it's not the solution.

I understand my comments are going to be distributed, so if anyone has any questions with the remaining part, they can ask them.

Thank you, Madam Chair.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much, Ms. Jack.

I'll now turn it over to you, Ms. Baird. We were waiting to get your written speaking notes to assist the interpreters. That's why you've been called after Ms. Jack.

You have a maximum of 10 minutes.

[Kim Baird, Former Chief, Tsawwassen First Nation, As an Individual]

Thanks, everyone. Thanks to the committee for having me, and thank you for your work on such a serious and important matter.

Please bear with me. I'm going to give you a little bit of background about Tsawwassen, because I believe it's good context for my perspective.

I was chief for 13 years and on council for 6 years at Tsawwassen. I negotiated and implemented our treaty, which came into effect four years ago. It's a modern land claim and self-government agreement. We successfully removed the Indian Act from our community. We've replaced it with our own legislation and institutions that were created in our constitution. Our community built our constitution at the grassroots, and while it took 16 years to negotiate and have it come into effect, we made good use of that time by engaging as a community to sort out what our vision was for our future and how we might achieve that.

I took community consultation and engagement very seriously, and I think the participation level in the ratification of our treaty demonstrates this. About 95% of our members voted, and of those, 70% approved the treaty and the new government structures, which include a legislature, an executive council, a judicial council, and an advisory council. We have also established an economic development corporation and a provincial prosecutor to deal with enforcing Tsawwassen laws in the provincial court system.

My perspective is one of having directly experienced the Indian Act, of trying to improve the Indian Act through the First Nations Land Management Act or other sectoral initiatives, and of moving to self-government, which is based on the inherent right policy. This provides for some unique insight.

In the Tsawwassen treaty, our model of governance is that we've agreed to integrate with provincial and federal laws. What this means is that Tsawwassen, British Columbia, and Canada can enact laws, and the treaty sets out whose laws are paramount if they conflict. In this concurrent model, it is impossible to have a gap now, and if we don't have the law, the relevant federal or provincial law will apply.

On matrimonial property, our treaty says that we have standing in any judicial proceedings that deal with Tsawwassen lands upon the breakdown of a marriage. The court will consider any evidence and representations in respect of our law, which may restrict the alienation of our lands to Tsawwassen members in addition to any other matters that are required by law to consider.

In the absence of a specific matrimonial law, the provincial law now applies in Tsawwassen. I think the real important element of the concurrent law model is that, unlike some may believe, it does not infringe on our inherent right of self-government. Instead, it provides a nation with the ability to choose whether to rely on the existing provincial law or exercise a law-making authority. This choice is not made through a delegated instrument; it's made pursuant to an agreement that was made on a government-to-government basis.

This background is important, but the main points I want to raise are from a pragmatic, on-the-ground perspective. Of course we want equality for our women, but we want it more than just in law and theory. We want substantive equality that we can actually implement. The law by itself won't do it. In my experience, you really need to focus on implementation.

On the issue of consultation, it's clear that this government has a different approach to consultation than first nations expect. It's entirely up to the Government of Canada to manage its own legal risk. A top-down approach in addressing a complex issue such as this is ill-advised, in my opinion. It's unfortunate that the focus on the process takes away from the focus or even the legitimacy of the product that's being advanced. The lack of collaboration, let alone adequate consultation, as defined by the courts, removes a lot of opportunity to really get at solving some fundamental and legitimate underlying concerns on the implementation of this bill.

First, we're dealing with particular jurisdictional issues in the absence of dealing with the broader context. First nations councils are inundated with the impacts of colonization and the impacts of the Indian Act. Picking at this one strand in isolation of the broader systemic challenges that first nations face is frustrating to many, I believe.

I think you need to reconcile many jurisdictional issues to support the development of a matrimonial law. We continue to run up against the problem of the square peg in the round hole when comparing first nations traditional values, including the concept of communal lands and interests, the current reality of the Indian Act, and the values of the provincial legal regime if they are forced on first nations.

Not only is there a jurisdictional gap, but there's a fundamental incongruency between the traditional first nations Indian Act and federal and provincial regimes. In Tsawwassen's case, we're testing integration with provincial regimes, but this is only by our choice. As well, it was facilitated through complex tripartite negotiated arrangements to try to ensure that our unique rights and interests as a first nation were respected and accommodated in those provincial systems.

Our approach is very controversial among other first nations. I cannot stress enough that we needed to choose this model ourselves. It would never have worked if it had been imposed on us. In our case, self-government has provided us with the legal and political regime to support matrimonial law development.

We have 23 laws to replace the Indian Act. We control who can own Tsawwassen lands. We control who Tsawwassen members are and what rights they have versus non-members. This requires considerable capacity from our legal regime to our consultative and engagement practices within our communities. We have standing in judicial proceedings because of our community-based jurisdiction. We need to be involved in those processes, and our treaty recognizes that.

I don't want to discourage the committee about the intent of this bill, but I want to stress the importance, in my view, of the whole gamut of first nations governance, which needs to be resolved for any particular bill to work. If we want these things to be more than aspirational, I think we need to think about Indian Act reform or replacement strategically in partnership with first nations who have little time to respond to federal priorities that are imposed on them.

There are likely some first nations that refuse to evolve outside of the Indian Act system, and maybe something more prescriptive will be necessary for those unwilling to meet their citizens' demands for equality and accountability—the Indian Act is a good shield for those and for that inertia—but I don't think a collaborative approach has truly been attempted, and I think that represents a huge missed opportunity.

I haven't said anything about what it takes internally for communities to rise to the challenge to do internal reform. The work is considerable but transformative. This is really what we should be focusing on, giving first nations the tools to solve their own problems and recognizing first nations' inherent jurisdiction, rather than defining and delegating the extent of it. Many first nations are willing to do this and have many ideas on how to achieve this.

The top-down approach on this bill and others like it detracts from an opportunity for transformational and real reform, which almost everyone recognizes and is prepared to admit is required for first nations, especially when you have progressive first nations that want to move down this track. At a minimum, Canada should be supporting and working with this willingness.

Should there be equality for women? Yes. l'm sure this committee has heard innumerable horror stories about how vulnerable some first nations women and children are due to this issue. l appreciate the intent to help some of our most vulnerable members of society. l'm encouraged that the Government of Canada wants to act on some of these issues. l just think there's a better way to approach these incredibly complex issues that have plagued first nations for many generations.

Thank you for listening to my perspective, and thank you for your work.

Hay ch qa.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Baird.

We will now start our round with Madame Ambler. You have seven minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Madam Chair.

Thank you very much to both of our guests today for being here this afternoon.

I want to ask you, Chief Baird, about the process you went through in negotiating the treaty. I might just start with a very simple question. Are matrimonial property rights included in it, or are you abiding by a provincial law at this time?

[Kim Baird]

We have jurisdiction within the treaty, but we haven't enacted it yet, so provincial law applies.

[Stella Ambler, Conservative, Mississauga South, ON]

The provincial law applies, and there is a provincial matrimonial property rights law in B.C. that would cover—

[Kim Baird]

The common law would apply in the absence of us writing a law.

[Stella Ambler, Conservative, Mississauga South, ON]

And this is unique to your first nation?

[Kim Baird]

Yes, because we are one of the only modern treaties settled in B.C. through the B.C. treaty process. There are about five or six now out of 200 first nations.

[Stella Ambler, Conservative, Mississauga South, ON]

I must say I was very impressed by your CV and by your determination. I mean, 16 years, that's a long time.

[Kim Baird]

It is.

[Stella Ambler, Conservative, Mississauga South, ON]

So on this whole issue of improving the Indian Act and moving towards self-government, do you feel that...? As a member of the aboriginal affairs committee, I agree. I think that's great, and I know there are a number of first nations that are following the same path.

That's why I'm a little bit confused about the pushback we're getting in some corners on this legislation. Do you see Bill S-2 as paternalistic in any way? Do you see it as the federal government saying you have to give women equal rights to property on reserve? Or would you say this is the right thing to do?

[Kim Baird]

Well, it's so complicated, because you have a federal system that feels responsible to some of these citizens, rubbed up against a system of government that doesn't work. I have no straightforward answer for you. How there has been consultation on this bill has been an issue as well. The whole nature of relations between first nations in Canada and the federal government undermines the viability of bills like this, in my opinion.

[Stella Ambler, Conservative, Mississauga South, ON]

Right. You mentioned credibility in terms of the consultation process. I'm not sure if you were here for the first hour, when Ms. Tilly O'Neill Gordon talked about the consultation process. I suppose some people don't think it's enough, but it's been going on for—depending on how you look at it—somewhere between 10 and 25 years. There are some people who believe we should have consulted all 631 first nations in Canada. I don't believe that is realistic.

How do you feel we should have gone about that? Do you feel that all 631 first nations should have been consulted?

[Kim Baird]

I think in some ways if you are going to impact first nations legal rights and capacity—if you are infringing upon their rights in some capacity—you need to inform them, right?

[Stella Ambler, Conservative, Mississauga South, ON]

Do you think very many of those 631 would have disagreed with the concept and principle of extending equal rights to matrimonial property on reserves to women?

[Kim Baird]

I think they disagree with what priority the federal government is imposing on fixing the gamut of problems.

[Stella Ambler, Conservative, Mississauga South, ON]

Really? We're putting a high priority on this. They would disagree with that?

[Kim Baird]

Well, I can't speak on behalf of other first nations. I can tell you that—

[Stella Ambler, Conservative, Mississauga South, ON]

Would you disagree with the high priority we're putting on this?

[Kim Baird]

Everything is a high priority, obviously. But will it work in light of the other systemic issues that need to happen to provide better capacity in first nations governments to make this a reality? It's kind of chicken and egg stuff. As I said earlier, I don't necessarily think that equality for women is a bad principle, but if you are implementing it in a way that's not going to achieve the results you're looking for, it's wasted effort.

[Stella Ambler, Conservative, Mississauga South, ON]

How much time do I have left?