Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 9 - Evidence - Meeting of June 7, 2005
OTTAWA, Tuesday, June 7, 2005
The Standing Senate Committee on Aboriginal Peoples, to which was referred the subject matter of Bill S-16, to provide for the Crown's recognition of self-governing First Nations of Canada, met this day at 9:09 a.m.
Senator Nick G. Sibbeston (Chairman) in the chair.
[English]
The Chairman: The Standing Senate Committee on Aboriginal Peoples is continuing its hearings on Bill S-16, the First Nations Government Recognition Bill. Our first witness today is Professor Michael Posluns.
I will ask Senator St. Germain to introduce professor Posluns.
Senator St. Germain: Thank you, Mr. Chairman. Dr. Michael Posluns, who has a Ph.D. from York University, is probably best known for his co-authorship of George Manuel's biographical memoir, The Fourth World: An Indian Reality. He is presently revising his doctoral dissertation, a study of the testimony of First Nations leaders before the parliamentary committee about self-government, which is entitled ``The Public Emergence of the Vocabulary of First Nations Self-government,'' for publication this year by Routledge. He also wrote a thesis, ``The Bureaucratic Response to the Penner Report,'' in 1993.
Dr. Posluns, an associate professor in the Native Studies program at St. Thomas University in Fredericton, New Brunswick, has written many papers on indigenous issues. He has completed studies for the Legislative Assembly of the Northwest Territories and the Special Committee of the House of Commons on Indian Self-government, helped to design a program for training Aboriginal people for positions in native court work. He has conducted professional development programs for the Assembly of First Nations, the Union of Ontario Indians, the Dene Nation, and the Federation of Saskatchewan Indian Nations. In the 1970s, he was an associate editor of Akwesasne Notes, and found suitable legal counsel for families and young people affiliated with the longhouse at Akwesasne.
Senators, Professor Posluns is well-informed on the issues we are studying today.
Mr. Michael Posluns, Associate Professor, Native Studies Programme, St. Thomas University: Thank you very much. It is an honour to be here.
I want to touch on four points regarding Bill S-16. First, I will speak about the plain sense meaning of ``self- government.'' Second, I want to emphasize the difference between ``recognition'' and ``delegation.'' Third, I want to relate self-government to Aboriginal rights. Fourth, I want to discuss what First Nations self-government would look like from where I sit at a small university in New Brunswick or where you sit in the Senate of Canada.
This field, perhaps even more than most fields of legislative history, has been beset by a tendency for each government and each group of policy scholars to borrow terms and invest them with meanings other than the meanings that those same words customarily have in other policy discourses. Changing the meaning of words has been done for some time.
In 1832, John Marshall, the Chief Justice of the United States, in Worcester v. Georgia, observed that:
The words ``treaty'' and ``nation'' are words of our own language, selected in our own diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to other nations of the earth. They are applied to all in the same sense.
If the word ``nation,'' in a First Nations context, is no longer well understood, I suggest that the confusion arises in part from the tendency to invest words with very different meanings as a means of achieving goals that ministers or senior officials may not want to acknowledge.
Our own late Chief Justice Brian Dickson touched on this same difficulty in Nowigijick, a decision that remains renowned as a guide for interpretation of treaties and statutes dealing with Indians. He said:
We must, I think, in these cases have regard to substance and to the plain and ordinary meaning of the language used rather than to forensic dialectics.
Self-government, in particular, needs to mean, in the context of First Nations, what it means in other contexts. I suspect that the term ``First Nation'' as it is used in this bill is consistent with the use I see when I travel around Georgian Bay in Ontario and in eastern Quebec and in New Brunswick. The Royal Commission on Aboriginal Peoples would have used the term ``First Nation community'' for each location and reserved ``First Nation'' for the collection of communities sharing a common language and a common history.
Bill S-16 allows each First Nation to choose which powers it wishes to adopt from time to time, but, under Bill S-16, it is the right of each First Nation, rather than officials in Ottawa or even the Parliament of Canada, to make those decisions.
Each study of self-government from the Special Commons Committee on Indian Self-government, known as the Penner committee, in 1983, to the Royal Commission, RCAP, and to your own committee report, Forging New Relationships, in 2000, noted that bands with an average size of 500 persons may not be an optimal size for self- government, particularly in a contemporary context.
On the question of how the smaller units, approximating bands under the Indian Act and which at present are the only units whose legal existence is grounded in a federal statute, might best come together, the Penner commission and the Royal commission both emphasized the need for the communities to negotiate the most acceptable kind of union in each instance.
It is a hallmark of Bill S-16 that it follows in this tradition. Communities that are largely the creation of the Indian Affairs branch would have the capacity to join with whatever other communities they were able to reach an agreement on as to the nature of their union.
If all the Anishinabek communities on the eastern shore of Georgian Bay, for instance, chose to come together as a federation of communities, other clusters of communities, such as the Mi'kmaq in northern New Brunswick, might choose some other type of union.
The emphasis in both Penner and RCAP on the need for communities to make these decisions is consistent with the need for each unit that might seek recognition to write its own constitution. From one coast to the other, the fragmentation of nations into miniscule bands was a matter of Indians Affairs policy over several decades. Almost everyone agrees that there is a need for these fragmented units to come together today. The question is whether this courtship is, in each case, to be a manifestation of the autonomy that Bill S-16 recognizes, or is the courtship to continue the practice of having outside forces direct the dynamics of First Nations communities?
Another fundamental point on which Penner and RCAP agreed was that the Indian Affairs branch could not serve as an effective representative of the federal government in forging new relationships with First Nations. Both those reports took the view that Indian Affairs has so long been a part of the problem, and at the very least, has been the seat of so much of the misadministration, that it would be somewhat disingenuous to expect that the same agency might now become the instrument of a genuinely new relationship.
Penner recommended that the government appoint a senior minister, a member of the inner cabinet, to head the federal government's side in a dialogue leading toward a renewed relationship. That is an idea that, whether or not it should be embodied in legislation, might nevertheless be an indication of a government's actual commitment to a new and different relationship.
I felt relieved to see that Professor Macklem dealt with the issue of legal certainty and with the issue of the constitutional validity of First Nations legislation that is inconsistent with the laws of a neighbouring province. I was particularly pleased to see that you have Professor Macklem's opinion that the constitutionality for First Nations to make laws in relation to the subject matter in Schedule 2 flows directly and non-controversially from section 91(24) of the Constitution Act, 1867.
I think it is fair to say that every independent legal scholar whom I have heard comment on section 91(24) has taken the view that ``Indians'' and ``lands reserved for the Indians'' are two distinct, though clearly related, federal powers. While federal officials take the view that the federal government cannot make provisions regarding First Nations members who are not living on reserve, I think there have always been some provisions in the Indian Act and related legislation that do that very thing.
Funding for post-secondary education and health programs, including financial assistance for eye glasses and hearing aids, are two well-known examples.
I will now speak about recognition and delegation. I think you will find that the major and overarching difference between the present bill, Bill S-16, and Bill C-7 of two years ago, is the difference between recognition and delegation.
The insistence on the importance of recognition in the literature on Aboriginal and treaty rights goes back at least as far as the submissions made by Indian political organizations on the Constitution to the first joint committee on the Constitution which was chaired by Mark MacGuigan and Senator Gildas Molgat from Manitoba from 1970 to 1972.
During that same period, I was collaborating with George Manuel on his memoir, The Fourth World: An Indian Reality. In our discussions and interviews, Chief Manuel spoke frequently of the importance of recognition as the crux of any kind of renewed relationship between Canada and ``Indian nations,'' to use the term of that time.
``Delegated authority'' is, I believe, strongly identified in the context of First Nations relations, with municipalization, and is, therefore, seen as the very opposite of self-government.
``Recognition,'' in contrast to ``delegation,'' is identified with Chief Justice Dickson's description of Aboriginal rights as sui generis, unique, and as,
A pre-existing legal right not created by Royal Proclamation, by section 18(1) of the Indian Act or by any other executive or legislative action.
Since 1982, ``recognition'' has also been identified with what Chief Justice Dickson described as ``the promise'' of section 35 of the Constitution Act, 1982. Throughout the nearly two years that the patriation resolution was before Parliament, nobody worked harder to see their rights entrenched in the Constitution than the First Nations and other Aboriginal peoples of that day.
If there is any single idea that is central to the rights which they were seeking it is the idea of recognition. Once it is understood that the various specific rights, such as the fishing right at issue in Sparrow or the Aboriginal title at issue in Delgamuukw, and the overall concept of Aboriginal rights, as Chief Justice Dickson said, are ``pre-existing legal rights,'' then recognition is the best way that the Crown, both federal and provincial, might show good faith in their relations with First Nations.
The idea of ``pre-existing legal rights'' also raises a further kind of recognition. Professor John Borrows has been writing for many years about the need for the common law to recognize Aboriginal law and, indeed, for an integration of common law and First Nations law. I think Bill S-16 represents a legislative opportunity to move in that direction.
Fundamental to such integration is the recognition that there was a body of law that contained these ``pre-existing legal rights.'' I think it is commonly overlooked, that the First Nations have a body of law. Indeed, Chief Justice Dickson appears to be pointing to this body of law in Sparrow, the first case in which the Supreme Court explored the scope of section 35 and its strength as a promise to the Aboriginal peoples of Canada. Chief Justice Dickson said that the fishing right of the individual members of the Musqueam community such as Mr. Sparrow had always been regulated, albeit self-regulated.
It continues to be difficult to convey the idea that Aboriginal rights are essentially rights held by First Nations and Aboriginal communities, and that individuals participate in those rights as members of their community and citizens of their nations. However, if we take the descriptions of various Aboriginal rights offered by the Supreme Court at face value, we start to develop a picture in our minds of a pre-existing body of law.
In each different First Nation, whatever institution made that law was acting in what we would regard as a legislative capacity on behalf of their community or their nation. It is not hard to imagine that such a body also dealt with matters that are not so likely to be subjects of litigation in the contemporary judicial system, fields such as education and child welfare.
Education has been a legislative field on the cutting edge of the self-government debate since the 1971 Report of the House of Commons Subcommittee on Indian Education. The report, called the Watson report argued that the dropout rate by Indian students remained more or less at the same appalling rate, 94 per cent at that time, whether the churches, federal government or the provincial government ran the schools, and proposed that the government allow Indian communities to run their own schools.
The following year, George Manuel, on behalf of the National Indian Brotherhood, presented to the Commons Indian Affairs Committee, its paper, entitled ``Indian Control of Indian Education.'' Following Mr. Manuel's presentation, the Minister of Indian Affairs, Jean Chrétien, told the committee that the NIB paper would become departmental policy. Without pursuing that digression further, I think it is clear that the federal government has always had the authority to set policy and to pass legislation regarding Indian education, whether that entails contracting out to churches on the one hand or protecting the legislative field for the exercise of First Nations.
Bill S-16 provides an opportunity for this committee to become the focus of a Canada-wide debate, or preferably a conversation, on the question, what would First Nations self-government look like?
Such a possibility offers a danger as much as an opportunity. One danger is that this might become a conversation that goes on endlessly so that the possibility of actually passing the bill after appropriate fine tuning and second reading and so forth and sending it on to the other place would be sacrificed for the sake endless debate.
Likewise, if you began to attract witnesses who were fundamentally hostile to Aboriginal rights and saw the work of this committee as an opportunity to lambaste the very idea of First Nations' autonomy, protracted hearings could very well work against the good intentions and sound purpose with which you began these hearings.
If you accept Chief Justice Dickson's description of the recognition and affirmation of Aboriginal and treaty rights in section 35 as a promise to all the First Nations and Aboriginal peoples by all the legislatures in Canada, then the question that needs to be addressed is how best to go about fulfilling that promise, particularly in respect to matters of self-government.
I want to suggest the idea that I call a ``no-policy.'' This is my term for a most important aspect of the account of self-government given by the Penner committee, which is that the role of the federal government, within a framework of First Nations self-government, is to protect the legislative fields occupied by First Nations from intrusion whether by the federal government itself, or by provinces or some other body.
Many reports and studies since Penner, and particularly since RCAP reported in 1996, have reverted to the old approach of trying to solve the Indian problem. What made the reports on which I have drawn here so important is that they refrained from that error and looked to enable First Nations to address their own issues.
What I mean by a ``no-policy'' is a decision by the various parts of the federal Parliament and government to refrain from making policy for First Nations, and to refrain from delegating decisions about First Nations to non-Aboriginal provincial governments while doing everything possible to put the necessary resources at the disposal of First Nations.
To be sure, there will be those who will object to whatever decision is taken by any First Nation and who will bring their objections to Ottawa for the department or cabinet or Parliament to solve. I think it will take some real willpower to refrain from temptation to think that your solution is better than the one chosen by a First Nation.
Lastly, I want to say a word about three areas that are intimately intertwined: self-government; membership or citizenship; and land base.
In 1976, during the second Joint Committee on the Constitution, Noel Starblanket, President of the National Indian Brotherhood, was asked if he would support reinstatement of women who had been involuntarily enfranchised. If I recall, this question was raised both by Senator Joan Neiman and by Flora McDonald. He surprised that committee by saying yes, subject to certain conditions. He told the committee he would support reinstatement if the senators and members on the committee would support a proportional increase in the land base, largely by expediting outstanding land claims and by increasing funds for the infrastructure and social spending necessary to make the return of reinstated persons a reality.
This was also the substance of a 1982 report, entitled Indian Women and the Indian Act, which is the first of the two major reports of the Penner committee. People who discovered some years after, when Bill C-31 was passed in 1985, that it left a great deal to be desired would have done well to note the recommendations in Indian Women and the Indian Act that were omitted or contradicted three years later by Bill C-31. They might then have seen that the shortcomings of C-31 were apparent from the moment that the bill was first introduced.
It was the decision of the government of that day to reinstate people without providing the means for them to return to the community if they wished to do so or to participate in the life of the community. To that government's great credit, however, they moved beyond the rhetoric of voluntary and involuntary enfranchisement and allowed men as well as women to seek reinstatement.
One of the great strengths of Bill S-16 is that it goes a very long way toward catching the intentions of the Penner report, and the thinking that report adopted from witnesses in First Nations communities across the country.
I appreciate that the Penner committee did its work 22 years ago. You could choose to reproduce its work if you could obtain the authority to spend five days a week for an extended period holding hearings across the country.
A better choice might to be to take a very careful look at that report, at volume one of the Royal Commission report, Looking Forward, Looking Back, and at your own report from 2000, Forging a New Relationship.
If, as I have suggested, there is a consistency in these three reports, then you might ask yourselves, where do we go from here in terms of enabling First Nations to take charge of their own affairs? How best can we go about fulfilling the promise made to the Aboriginal peoples of Canada in section 35?
Senator St. Germain: Thank you, professor, for your thoughtful presentation to the committee this morning.
I am troubled by the lack of clarity in the language DIAND uses with First Nations, because I think it contributes to a lack of movement. There is huge confusion with the great majority of the public as to just what is taking place with our Aboriginal peoples vis-à-vis DIAND and the government. Have you been able to analyze what they are saying that is causing this confusion?
Mr. Posluns: Unfortunately, confusion is traditional and runs throughout the history of the relationship. The present policy employs the term ``inherent right to self-government.'' If you look at what that term means in other places, it would not be an inherent right in the sense that there was a body of law that existed, as Chief Justice Dickson said, before there was any British or French authority in Canada.
The government must define what it means. They have taken a word as though it were a box and invested it with contents that it did not have and disposed of the contents it formerly had. They are very good at doing that. There is a history of bringing in public relations teams to sell their packages, which certainly went on during the suite of bills that Bob Nault brought in.
Senator St. Germain: Do you feel the courts have recognized the pre-existing right? Chief Justice Dickson clearly said that there was a pre-existing right. Do you think that that has been carried forward with most of the decisions? I believe it is consistent in the Sparrow case and Delgamuukw, but have all decisions been consistent from the legal side of things?
Mr. Posluns: I want to be careful with a word like ``all.'' It is sort of like the word ``never.'' I was told not to use those words in public.
Delgamuukw is a good example of the court allowing for intrusions. They have been consistent in saying, ``These are the rights that you had historically.'' However, in Delgamuukw, they went on to say that, certain kinds of intrusions are justified. Kent McNeil, a distinguished law professor often quoted by the Supreme Court, looked at the list of justified intrusions in Delgamuukw and asked, ``What else is left?'' There are so many reasons that you can justify intruding.
At times, they seem to have taken steps back, not so much in changing their mind by backing up Sparrow, but in sidestepping it in different places. They have generally tried to be consistent.
Senator St. Germain: In the drafting of Bill S-16, we have referred to Sechelt and some of the first self-government bills in the country and tried to include all the positive aspects of self-government that have transpired to this point. However, we do not seem to be making progress with our native peoples.
As you pointed out in your presentation here this morning, we have various areas with small groups that will never be able to seek self-government unless they come together as a community.
This legislation has been brought forward to simplify and accelerate the process. It mitigates costs and litigation. DIAND says they are prepared to negotiate with anyone, but that is pretty well like saying ``all'' or ``never.'' The statements are so all-encompassing that they really mean nothing.
How do you think that we can effectively deliver the message? Nothing is being forced on our Aboriginal peoples. This is strictly enabling legislation that will be there for their use.
Have you any suggestions as to how we can approach DIAND? When DIAND appeared before us in regards to this bill, they brought forward the question of provincial jurisdiction, which really has no basis in this argument.
Could you give us some guidance and direction as to how we can expedite this?
Mr. Posluns: It is somewhat heretical to suggest it, but the Penner report suggestion was to leave DIAND out of it. Let DIAND continue to provide day-to-day services until those services are taken over by somebody else. However, if the government wanted to have a seriously renewed relationship, the report recommended a senior minister, a member of the inner cabinet, take charge of this renewal of relationship. I believe your own committee's report of 2000 may have said something along the same lines.
As you say, DIAND will negotiate with anybody, but what exactly is being negotiated? This bill will allow each First Nation to write its own constitution, and any group of First Nations could amalgamate and write their own constitution. DIAND is simply a group of civil servants who have been there since the beginning, and they are asking First Nations to come and justify themselves.
Professor McNeil has an interesting chapter in his recent book, Emerging Justice? Essays on Indigenous Rights in Canada and Australia, which is the only law book I know of that has ever won a literary award. He looks at the issue of burden of proof in terms of Aboriginal title.
In terms of self-government, there should be no need to prove. Bill S-16 allows each First Nation to write its own constitution providing it is ratified and it is consistent with the Canadian Constitution and with the Charter of Rights.
Why would a First Nation need to go to DIAND's regional office in Halifax or Toronto and negotiate with civil servants for their autonomy? Does that question make sense?
Your bill says, write your constitution, ratify it by a proper referendum, and make sure it is consistent. Get us a letter from the Auditor General saying you have taken care of your bookkeeping. You may want to take on the power of Indian control in education. You can do that this year, and you can come back five years later to say you want to do forestry.
Senator St. Germain: The big question that I have is the question of membership and the question of women being reinstated. We tried in Bill S-16 to cover these aspects as well as they can be covered. I would like your comment on that aspect of it. You make reference to it in your presentation in C-31.
This bill has been presented before in various forms. We have more experience now and, as a result of that, we think that we have a better piece of legislation, one that covers all the various concerns and aspects, such as matrimonial rights, and questions of women and members off-reserve being reinstated.
Do you feel, after studying Bill S-16 the way you have, that we have covered it as well as possible? You make reference to fine-tuning. Is there any fine-tuning that we should do in that area? If there is, as the sponsor of the bill, I am always prepared to make whatever fine-tuning, or major tuning, that may be required. It is a question of delivering a document to our Aboriginal peoples that would reduce the timelines. We have negotiated agreements, whether land settlement agreements or self-government agreements that have gone on, for example, with the Nisga'a, for over 20 years. For the Tlicho, which was just ratified, it was 15 years. This is the objective of those of us working on S-16. I do not take credit for this. Other people have worked on this. At this time, I just happen to be the sponsor of that bill. Do you have any comment on that, professor?
Mr. Posluns: On the timeline issue, it takes so long because all these bodies have to negotiate with DIAND. If that negotiation process became redundant because each body was free to write its own constitution, then the limitations on Indian Affairs, because they only have a certain amount of staff or they insist that every negotiation begin all over again because they have new counsel on a team, go out the window.
Stop having negotiations. If it is self-government, write your own constitution, subject to some very broad limitations like consistency with the Charter of Rights, and when you have it ratified, let us know.
If there are 80 nations in Canada, you can have all 80 doing their own thing at the same time, having 80 different community meetings across the country.
The other thing you asked about was membership. Bill C-31 solved many of the problems but left many unsolved. I would love to bring one of my classes here in the fall. I have two or three mature students, in that semi-official sense, but women in their 30s with several children who summarized what Bill C-31 meant in their various families. I would not take it on myself to try to do the satires they performed in my class.
One woman, who is in her early 30s with three children, said that if her children married non-status Aboriginal men, her grandchildren through them would not be members of her community, but her sister's children would carry on because she had been reinstated. None of this makes any sense in terms of family life.
I think there is an important reason why First Nations should be able to rewrite their own membership code. I would hesitate to say you should intervene. Yes, it is unfair, but the question is, who is best to intervene. First of all, those women are quite capable of making their influence felt within their own community.
Historically, restrictive membership rules, where the membership numbers become smaller and smaller, have always been designed by federal governments. Since 1876, the membership rules have aimed to diminish the numbers.
I do not think any indigenous people ever designed a membership code that would be restrictive and tend to diminish their numbers and weaken their stature, whereas federal governments that have colonial systems have usually written membership codes that tend to diminish numbers and weaken status of nations that they want to control. For that reason alone, I urge you to give the power to define membership to each First Nation. If they are so wrong-headed that they are inconsistent with the Charter, they can go to court, but given the history of the government and Parliament of Canada, I think the nicest thing you can do is not try to solve the problem beyond what you have done in Bill S-16.
Senator Peterson: One of the issues speaks to the conflict of laws, federal, provincial, First Nation, maybe even municipal, moving forward. What are your thoughts on how this would be rationalized?
Mr. Posluns: I hesitate to call it a conflict of laws. They would be different laws. If you are to honour the different cultures in different parts of the country, then there is absolutely no reason why you would expect that they would have the same education program, for instance, as any province would set out. In the two provinces where I seem to be living lately, the provincial governments have tended to take curriculum, for instance, away from the school boards and centralize it. That is not something I want to comment on today. However, why should the several different nations in Ontario suddenly have to conform to this curriculum laid down in Queen's Park. I could apply the same question to New Brunswick.
First Nations have a right to write their own education curriculum as was recommended back in 1971 by the Watson committee. I do not see it as a conflict with the province because it is a separate jurisdiction from the province. I do not see any reason why they need to conform to the province.
One of the big causes of dropout rates is the cultural irrelevance of cultural courses in provincial schools. That is the factor most often cited by those who know more about it than I do. Why would you saddle people with that requirement? You must have a culturally relevant program.
Senator Peterson: I understand all that. I am talking about the provincial group. Are they prepared to relinquish that jurisdiction?
Mr. Posluns: The provinces have made a periodic effort. In Ontario, they occasionally say, ``We will allow you to have one or two members on the school board,'' but that has not resulted in a strong representation of aboriginal culture and history in social studies programs, for instance. There is a large body of writing by Aboriginal people that has not been put on the curriculum of high schools. Why would you try to persuade Ontario to suddenly include these, or any other province?
The Chairman: Professor Posluns, it is obvious from your CV and your paper that you have been around a long time. You have been in all parts of the country. As such, you would have seen a certain amount of progress that has occurred over the course of the past 20 or 30 years.
In the North, many of us became involved in politics in the 1970s. Since that time, Aboriginal people have become very involved in all aspects of government in northern society. Recently, the Tlicho reached their own land claim agreement with the government. This is important progress.
In your opinion, why has it been possible for Aboriginal people to make the progress they have made? Has it been as a result of education; or is it because of the enlightenment of the people of our country?
When I went to law school in the 1970s, the Nisga'a case was a landmark case. It recognized that Aboriginal rights did exist in this country and that they had not been extinguished. There have been a large number of such cases since 1982 when Aboriginal rights were recognized in the Constitution. I feel there has been a great deal of development and progress.
I believe there is an emergence of Aboriginal identity in all aspects of society. In a sense, they are emerging and getting on their feet.
Could you comment on what has led us to this point in our country where First Nations are asserting themselves and wanting self-government? In part, the federal government has been trying to respond in working out the mechanisms for them to do just that.
A few weeks ago, the federal government signed a political accord with the Assembly of First Nations. That accord committed the parties to establish a joint steering committee that would consider new policy approaches for the recognition and implementation of First Nation governments, including mechanisms for managing and coordinating renewed and ongoing intergovernmental relations and assessment for a potential First Nations government recognition act.
It seems even in our national politics there is this recognition and movement that between representatives of our First Nations and our government to deal with the whole issue of self-government.
Would you comment on that, please?
Mr. Posluns: Is part of your question, Mr. Chairman, how I account for the progress that has been made?
The Chairman: Yes.
Mr. Posluns: That is a wonderful question that deserves a book to answer, something that I will not try to write at this time.
It is interesting, Mr. Chairman, that you were going to law school in the 1970s. Between 1927 and 1952, it was a criminal offence in this country to raise funds for the purpose of pressing land claims.
If we are to account for the progress, then we must step back to 1927, which is clearly the low point in the history of Parliament's conduct vis-à-vis First Nations. That was when there was the last of a long series of legal disabilities imposed by Parliament, beginning with a prohibition against the potlatch, which was actually passed twice. That is because a judge in B.C. who was known as a hanging judge struck it down.
Therefore, getting rid of the prohibitions which made it an offence to deal with these wide variety of things that are normal to various First Nations was a first step. After that, people were allowed to grow up in an atmosphere in which there was not an aggressive and hostile attitude by Parliament and the Government of Canada to members of our First Nations.
When we consider what other groups of people have undergone to recover from similar traumatic attacks, we see that the period of silence that follows is quite normal. In the history of other cultures, it is normal to find that after a horrendous attack, an onslaught, there is a period of silence. Later generations will say, ``Why were you silent for that decade?'' While it may be a normal question for children to ask their grandparents, there is a very real answer to it.
I hope this accord goes well. At the same time, I noticed in the paper that someone was quoted as saying that it is the first joint committee of cabinet and the AFN. The AFN is the successor of the National Indian Brotherhood. In 1975, a joint committee of the National Indian Brotherhood and cabinet was struck. Their task was to rewrite the Indian Act. However, that relationship was dissolved by Starblanket in 1976 or 1977 because it made so little progress. In Starblanket's opinion, there was not much show of good faith on the part of the ministers who needed to contribute their hearts to the issue.
Without second-guessing anyone's judgment, as a historian I would say, first, that this occasion is not the first people would like to think it is. Second, I hope it goes much better. Third, given the interpretation of the president of the NIB of that day, it will require that ministers and their officials do their work.
The Chairman: I asked the question because I noticed that you were also involved with training Aboriginal people to deal with the court system. I notice in your CV that you assisted in the design and management of a year-long program to train Aboriginal people for positions in native court work and native liaison. I have also been involved in that area in the North. I helped communities to set up their own justice systems.
Is it just a matter of education? You were involved with people like George Manuel in the early days when he would have been but a voice in the wilderness in the 1960s and 1970s. We have progressed to the point where all sorts of things are occurring throughout our country in the area of economic development and business. Native people are very much involved in resource development, business and other fronts as well. Generally, through education, there does seem to be an emergence of Aboriginal people.
Is it just a question of education, or is it that Canadian society is changing and becoming more open and receptive to Aboriginal people? What factors have made possible the positive changes that are occurring today?
Mr. Posluns: Education is a big part of the changes. The founder of the Aboriginal justice training program to which you referred, Mr. Chairman, is my friend Cliff Summers, who is in attendance today.
The Employment and Immigration Commission was the initial funder of this program. Later, an intermediary funded a year-long program. We took 15 unemployed urban Aboriginal people into the program at a time.
The first term of the three-term program was a remedial reading program that focused on the kind of reading and writing you need to write reports to prison commissioners, parole boards and trial courts. You should tell the students that they will be learning a whole new language, because ``official English'' is not anyone's mother tongue.
Most of the other programs we saw in the Toronto Aboriginal community did not allow for an entire term of upgrading. They want to produce large numbers but do not take the appropriate time, which is another failing. We used to devote a lot of time not only to upgrading English reading but also to asking those who had their own language how they would say it in their language. That is a cultivation of two things, which I do not think can be done in a quick course.
After three years of getting 100 per cent employment for all our students, except those who went on to university, the fourth year we were unable to persuade new people on the other side of the table that devoting a term to improving basic skills was a good investment. You ask whether it is only education. My response is, ``What do you mean by `only education'?''
Senator St. Germain: One of our big challenges is that people do not fully comprehend that section 91(24) of the Constitution Act, 1867, gives Parliament exclusive jurisdiction to pass legislation affecting Indians and land reserved for Indians.
Natives take harmonization into consideration when dealing with provinces and other jurisdictions. However, Chief Justice Dickson spoke of these ``pre-existing legal rights'' in his decision. We have failed to inform the population that Aboriginal peoples have pre-existing rights.
The Assembly of First Nations is fully in favour of this bill. However, we have not been able to convince the AFN to appear before this committee to speak to this bill. I worry about partisanship entering into a human rights issue, which should not be partisan in any way.
Do you believe that my observation is correct and that people do not understand these pre-existing rights, which were entrenched in section 91(24) of the Constitution Act, 1867, and reaffirmed in 1982 in section 35?
Mr. Posluns: Among educated people there is generally not a sound understanding of these rights. I believe that this is one of the strongest arguments for self-government. I am not sure how we can inform people. In the native studies program that I teach, one-half of the students are non-Aboriginal. Educating people about these matters is important, but convincing them is beyond what we can do.
As you said, these are human rights issues, and no one needs to have permission to have human rights. We keep backsliding on this issue. When we speak of women's rights, we mean that women have a right to do these things without permission. The terms ``legal disability'' and ``civil disability'' were references to Catholics and Jews who did not have the right to vote in 18th century England. When we get rid of a disability, because a disability is the opposite of a human right, it means we stop having to justify a right.
Those who want to learn ought to have every opportunity to do so, but you ought not say that we will make rights conditional on the approval of the majority in both Houses of Parliament or the approval of the majority of those who listen to a radio show. That is exactly what human rights are not.
Yes, there needs to be education but it is not dependent on that alone.
Senator St. Germain: Thank you very much, Professor Posluns. I do not believe there are any further questions. As sponsor of this bill, I appreciate the time you have taken to appear before us as well as your level of understanding of the bill, which is very important to the debate on the issue.
Our Aboriginal peoples are 20 years behind in education. We hear so many people saying what they will do about it, but no one does anything but procrastinate. This is reinforced by DIAND. Until we either eliminate DIAND or follow the recommendation you made this morning, I do not think we will make progress. There are some excellent people in DIAND, but the paternalistic attitude of the institution as a whole undermines the ability of Aboriginal peoples to find their rightful place in our society.
The Chairman: Thank you very much, Professor Posluns. We are honoured to have Mr. Dwight Dorey and Mr. Patrick Brazeau from the Congress of Aboriginal Peoples. Welcome.
Bill S-16 is not a government bill; it is sponsored by Senator St. Germain.
Committee members have heard interesting testimony from witnesses. I do not know what the future of the bill is and how it will fare in the Senate and in the other place. However, I do not doubt that at some time in the future a bill will be tabled that deals with self-government for Aboriginals in Canada. We could deem Bill S-16 a prelude to that and good education for all. Mr. Dorey, please proceed.
Mr. Dwight A. Dorey, National Chief, Congress of Aboriginal Peoples: It is a pleasure for us to present on Bill S-16 today. As you indicated, the bill is important in many ways and causes concern for some people.
The Congress of Aboriginal Peoples has been in business for 34 years advocating on behalf of and addressing the issues for non-status, Metis off-reserve and status Indians, in particular since Bill C-31 came into effect in 1985.
On the substantive issues of this bill, my National Vice-Chief, Patrick Brazeau, who has been carrying that file, will speak to the specific issues and interventions of the CAP in respect of the bill.
Mr. Patrick Brazeau, National Vice-Chief, Congress of Aboriginal Peoples: Good morning. Mr. Chairman, members of the standing committee, thank you for the opportunity to appear before you today to offer some comments on Bill S-16, to provide for the Crown's recognition of self-governing First Nations of Canada.
The Congress of Aboriginal Peoples, formerly the Native Council of Canada, is one of five federally recognized national Aboriginal organizations. We advocate and represent non-status Indians, Metis and status Indians who live off-reserve in urban, rural and remote areas throughout Canada, and we have been doing so since 1971.
CAP fully participated in the First Nations Governance Initiative from 2001 until 2003. At that time, we held approximately 160 consultations attended by more than 3,000 Aboriginal people. This initiative was launched by the federal government following the 1999 Supreme Court of Canada's decision in Corbiere, which confirmed the off- reserve right to vote in band elections. These consultations gave us a first-hand look at the then aspirations of off- reserve Aboriginals and gave them the opportunity to provide their views and recommendations to the federal government.
The quest for self-government is not new. Aboriginals must achieve this quest so that they can succeed, reconcile Aboriginal/government relationships and fully contribute to Canadian society. However, it is a quest that has often failed despite numerous attempts at changing federal policies and amending the Indian Act.
I would like to take this opportunity to clarify a potential point of contention between the notions of Indian Act bands versus First Nations. The recent position of the federal government has been to substitute the words ``Indian Act bands'' with ``First Nations.'' Although the terminology may sound more culturally appropriate, it does open the door for debate when talking about self-government. Neither the Constitution of Canada nor the Indian Act defines the term ``First Nation.'' The Constitution defines the Aboriginal peoples of Canada as including Indian, Inuit and Metis. Furthermore, section 91(24) of the Constitution states that the federal government has primary jurisdiction over Indians and lands reserved for Indians. The Royal Commission on Aboriginal Peoples noted that there were over 600 Indian Act bands across the country and 60-80 First Nations.
A recent report by the UN Special Rapporteur of the Commission on Human Rights states:
Because the right of self-government cannot reasonably be exercised by small, separate communities, RCAP recommends that it should be exercised by groups of a certain size — groups with a claim to the term ``Nation'' that will have to reconstruct themselves as nations.
In other words, both RCAP and the Special Rapporteur discouraged the idea that Indian Act bands should be the modern manifestation of governance. CAP supports these views. We support the notion that self-government must be vested with the true historical First Nations as opposed to individual Indian Act bands, otherwise, ongoing exclusion and discrimination will prevail.
Bill S-16 is a draft piece of legislation that could support greater division among non-status and off-reserve members because this legislation would affect members living on reserve. For example, Bill S-16 would provide Indian Act bands with the authority to create their own Constitution, including the determination of its membership.
Although this seems adequate at first glance and is a core issue of jurisdiction, the bill does not provide insurance that decisions on membership would be inclusive, fair and non-discriminatory. The bill states that membership would include those who are currently on a membership list, either from a band or from the list maintained by the Department of Indian Affairs and Northern Development. The Indian Act and INAC policies have created different labels for Aboriginal people. Decisions based on current band and INAC status has proven to be a discretionary and discriminatory process. This is why we have over 400,000 non-status Indians in this country.
The Supreme Court of Canada recognized that non-status Indians have been affected ``by Canada's legacy of stereotyping and prejudice.'' The court recognized that non-status Indians face a unique set of circumstances resulting from their exclusion from the Indian Act: vulnerability to cultural assimilation; compromised ability to protect their relationship with traditional homelands; lack of access to culturally specific health, education and social service programs; and a chronic pattern of being ignored by both federal and provincial governments.
These unique circumstances faced by non-status and off-reserve Aboriginals were also recognized in RCAP. In terms of participation in the band's governance structure, nothing in the proposed act would ensure that off-reserve members could run for office or effectively participate, as was required in the Corbiere decision. At the very least, there is no provision that makes a clear distinction that interests of off-reserve members will be balanced. One cannot talk about amendments to the Indian Act without discussing Bill C-31.
There is a great myth in Canada that there are different classes of status Indians: true status Indians and Bill C-31 Indians. The fact is that every status Indian in Canada is a Bill C-31 Indian, as is every person has been or will be affected by it. Since Bill C-31 was enacted, over 100,000 people regained status. However, the negative effects have been and will be much greater.
As mentioned earlier, off-reserve Aboriginal people, by and large, are treated differently because of their status and/ or place of residence. Our people do not have the same access to programs, services and opportunities as their brothers and sisters living on reserve. This bill envisages limited consideration for the largest portion of the Aboriginal population in Canada. If this proposed bill were passed in its current form, most off-reserve Aboriginal people would not benefit from a process that could lead to self-government. Rather, it would be a process of self-government for a small portion of the Aboriginal population, giving little chance at reconciliation between Aboriginal people, families and communities. It would go against the recommendations of the UN Special Rapporteur of the Commission on Human Rights. It would be contrary to RCAP recommendations but, more importantly, it would be contrary to the aspirations of the off-reserve Aboriginal population to be involved in the grander scheme of self-government for the true historical First Nations of Canada, where there would be full, effective and equal participation.
The idea and intent is commendable because there are significant positive aspects to the bill because it would be enabling legislation rather than mandatory legislation. It would include real law-making powers and jurisdiction. It outlines clear measures of accountability, many of which were originally part of the First Nations Governance Act. Hence, it would be provide flexibility for Indian Act bands with real self-government powers.
CAP believes more in-depth discussions with Aboriginal peoples are required and necessary because this exercise requires that proper consultations take place. Recent court decisions have shown us that Aboriginal people can no longer just respond to policies and laws that affect them; they must take part in the development of those laws.
During the First Nations Governance Initiative, most off-reserve and non-status people recommended replacing the Indian Act with a more inclusive piece of legislation.
We developed a nation recognition model or an ``Aboriginal peoples act.'' This model considered the UN principles of recognition and self-government, RCAP recommendations and the results of the consultations that we held with the off-reserve Aboriginal population.
The model also encompasses a recognition process not only for status Indians living on-reserve, but a model whereby all Aboriginal nations, whether Indian, Inuit or Metis, could be recognized as a nation. This model also takes into account the potential for urban communities to be recognized as nations.
In the Misquadis case, the Federal Court of Appeal upheld a finding that non-status Indians live ``in communities that are functioning Aboriginal communities as worthy of recognition as reserve-based communities.''
I would like to acknowledge the hard work that was put into this draft because it deserves serious attention, but we are not in a position to support it if it remains an exclusive and discriminatory exercise. The truth is if we are going to exercise our inherent right to self-government, we must have a significant population to govern. We believe granting this right to individual communities, rather than the larger collectivity, would fail the test, the overall dream we all have and it would be contrary to the teachings of our elders. I invite your questions.
Senator St. Germain: Thank you, gentlemen, for being here this morning. There is no doubt that the question of membership is likely the most contentious aspect of any piece of legislation that will be established.
I think, as Mr. Dorey put it, there is cause for concern. This is strictly ``enabling legislation,'' as Mr. Brazeau stated in his delivery. There is nothing compelling anyone to take this.
I, as a Metis, sat in on various discussions in British Columbia, the province I live in now. I was born in Manitoba. Clearly, the question of membership, or what qualifies a Metis, is one of the biggest discussions going on in this country right now.
Have you resolved that aspect of it in your own minds as an organization under CAP?
You say that it is self-defeating. How will you deal with the Aboriginal issues that face us on reserves and off- reserve?
I understand the problem that relates to the situation on a farm, where the one son stays at home, works 14 hours a day and lives on a minimum wage, while his brothers go off into town and become professionals. Do the boys who left the farm have the same rights to the farm as the boy who stays at home?
Do off-reserve urban natives have the same challenges as on-reserve natives?
As far as I can see, we are not restricting this legislation in any way. Whatever way a band decides to establish membership is the way that they would proceed.
The professor that was just on before you said, ``What organization would want to build an organization on diminishing values?'' You would think they would want to increase their membership to continue the ongoing aspects of the band or the nation — I think ``nation'' is the correct word.
Would you like to comment on that aspect of it?
You may have some suggestions and we would like to hear them from both of you.
Mr. Brazeau: First off, with respect to the identification of Metis, the membership provisions within our organization, not CAP per se, but the provincial and territorial associations that actually hold the memberships, has followed the same model as the UN principles, which are self-identification, proof of Aboriginal ancestry and community acceptance.
With respect to the bill, you mentioned ``enabling legislation.'' I grant that point. However, history has shown us that many of our constituents oftentimes have been not necessarily thrown out, but have been rejected to belong to a reserve community. There are many bands out there that maintain membership lists and determine their membership lists and have rejected many members; yet many of those members then turn to DIAND for status and receive status. Therefore, an individual member can be a status Indian but not necessarily a member of a band to which he or she may belong.
Those are decisions that are discretionary and discriminatory. My fear is that this would only purport to be the case if there would be a clear understanding that the process of membership would have to be inclusive and equitable.
Senator St. Germain: Are you saying that the government should determine who is a status Indian?
We are saying that a band should determine who qualifies for membership. What I understand you to say is that government should determine that status.
Mr. Brazeau: No, I am definitely not saying that government should determine status because we know where that has led us to this day, and I mentioned the 400,000 non-status Indians. However, the Indian Act has empowered chiefs and councils across the country to continue the ongoing discrimination.
There is a need for clear consultations, with not only the federal government but also with Aboriginal communities and organizations themselves. I am not saying the government should decide membership.
Senator St. Germain: The Metis, from my understanding, developed from the Lakehead westward.
What I hear you saying is that anyone who stood up anywhere in the world and said that they have Aboriginal ancestry would be considered Metis.
Mr. Dorey: If I might respond to that, there are two schools of thought on Metis identity. From my own personal situation, I come from the eastern part of the country. Many people of mixed blood have self-identified as Metis. The initial derivational aspect of the term is people of mixed blood, Aboriginal and European.
We have within our group various communities outside of the so-called historic Red River Metis that have self- identified as Metis. We take strong exception that the only Metis are those who are descendants of the Red River Metis.
The term was well known in other parts of the country.
It is a well known fact that the Indian Act is a piece of discriminatory legislation, despite the amendment in 1985, which granted status to second-generation people and reinstated a number of those who had lost their status, predominantly women. To use the Indian Act as the basis for any other legislation, such as self-governance legislation, is wrong.
Unfortunately, the Indian Act is at the heart of this particular piece of legislation. Until fundamental issues of citizenship, beneficiary entitlements, people's mobility rights and those sorts of things are properly and adequately addressed, we cannot support this kind of legislation.
The Supreme Court in Canada in the case of Corbiere recently upheld that members of bands living away from their reserve community have rights and entitlements to full participation in certain aspects of the band, such as election of chief and councils and disposition of band property.
Yet, a significant number of bands have opted for custom rule to deny those people living away from their communities those fundamental rights. That is wrong.
You cannot correct a wrong by implementing another wrong. That is what is at the heart of issue.
Senator St. Germain: What is your suggestion? Do you have a formula to determine membership? It is easy to criticize and difficult to find a solution to the problem. What is the formula that CAP has to resolve this situation?
Mr. Brazeau: The nation recognition model that we developed a few years ago follows the UN principles of identity. I have already enumerated the criteria for model.
The federal policies in the Indian Act have divided our peoples and our communities. I think that is a given. Our Aboriginal peoples, communities and organizations need to reconcile their differences and discuss these issues. There will be not be a one-size-fits-all model, but these discussions must take place in order for the process to be fair and equitable in determining the citizenship of a nation.
Senator St. Germain: Say you have people living on Indian lands. They could be a couple hundred or a couple thousand. Do you think that their destiny should be determined by people who do not live there, if the majority do not live on reserve or on Indian lands? How do you resolve that difference?
We have travelled to various First Nations regions. Senator Sibbeston and I were just in the North. How do they control their own destiny if they are outnumbered by people that do not live on their lands but are impacted by what is happening on their lands and in their community?
Mr. Dorey: I dare say we are a long way away from having all land claim issues properly addressed and resolved. Until that time comes, our fundamental issue is that we are on our lands. Aboriginal lands are not what were set aside by the governments of the past in the creation of reserves. Our lands are our traditional lands. There is a lot to do to resolve that particular issue.
It is incumbent upon us to come to terms on these matters. Unfortunately, there are clear differences and sometimes situations where there is not a cohesive working relationship between the various groups, such as the Assembly of First Nations, CAP and the MNC. The basic fundamental problem is the arbitrary division that resulted from this piece of legislation. The Indian Act has divided our people. It has arbitrarily determined who is or who is not, who is on and who is off.
We have to be conscious of people's rights. It is not proper to ignore or override a minority. We would argue in this case it is not a minority number. We are talking about the majority of the people who live away from the reserves.
You asked whether everything should be held up on a reserve or a First Nations community because of people that are living away. For many of those people, it is not by choice that they are living away; it is because of circumstances. They would like to be back in their communities.
Using that as an argument is to suggest that any Canadian who lives abroad should not have the right to vote in this country, should have no say in the affairs of their community. That is not the case. That is not the way Canada operates and runs. We are a democratic country. Democracy is based on the principle that every individual has a right and a say in these kinds of affairs. Every First Nations individual, whether the Indian Act identifies them or recognizes them as a First Nations person, deserves to have a say. We are talking about the United Nations ways of determining people's rights.
I come from the east coast. I am a Mi'kmaq person. We have pre-Confederation rights to hunt and fish. The people of mixed blood, whether they identify themselves as Metis or Mi'kmaq or mixed blood or half-breeds, they have rights that are upheld by the Supreme Court because they pre-date the Indian Act.
You cannot say that that principle will apply in one case but not in another. We are saying that you need to be cautious about these fundamental issues. Denial of people's rights is not the Canadian way. We cannot continue like that.
The Chairman: Senator St. Germain, other senators would like to ask questions. Would you be interested in providing us with what you would consider an appropriate definition for ``inclusion'' in terms of membership? Your definition of membership would be wider. Would you be willing to provide our committee with some wording that would satisfy you? Would that help us, do you think, Senator St. Germain?
Senator St. Germain: Would you repeat that, please.
The Chairman: They are raising a point about membership. They say that they would like a wider definition. They say the definition now is Indian-Act based. They have some ideas with respect to a wider definition of membership, so I have asked them to provide us with that information.
Senator St. Germain: I would love to see that, Mr. Chairman.
I agree that DIAND is one of the major problems. If a First Nation decided to take this legislation, it would eliminate the involvement of DIAND in that First Nation. Do you not trust First Nations to be fair? I trust people. No, you do not. I do.
I happen to be a Metis, but there is no way in the world that I should have the same rights or have any say in Metis communities where I originally came from in Manitoba on the Assiniboine River settlement. I no longer live there; I now live in British Columbia.
From an idealistic point of view, I cannot argue with you. People should be recognized. However, every giant journey begins with a single step, and you have to start somewhere. We start with Indian lands on native reserves.
We would appreciate any extra information that you might send to us. A helter-skelter, broad interpretation does not get us anywhere, because the argument will go on for 100 years.
Mr. Dorey: We have some alternatives or options that can be considered, yes.
Senator Pearson: This has been an extraordinarily interesting conversation. I remember talking about this kind of model when we were looking at the governance study we did with Senator Watt some years ago. It made sense to me, because I agree with you and I would prefer, to be honest, to say that it was a ``First Nations Indian Act band,'' because that is a creation of the Indian Act. It is not the same thing as ``First Nation governance.''
Looking at how you disentangle or promote aspects of your identity in a world in which you live with other people, it has often struck me that the way we have done it with the public and Catholic school boards is not a bad model. They create a given community.
If you could establish Aboriginal school boards of a larger extent than the way they are operating now, it would answer Senator St. Germain's concern. He retains an interest in Metis culture even if he does not want to influence whether there will be a sidewalk built here or not. If you do it in this other kind of overlapping organization in which I identify as a Metis, then I can have some word in the kind of curriculum that my children would receive.
It is not that we cannot have overlapping identities, because all of us do. If you make a choice to identify as an Indian with the kinds of things that you have already said, choices have both advantages and disadvantages. In the Catholic school board, you choose to pay your taxes to that board as opposed to the other board. Do those kinds of overlapping models make sense to you?
Mr. Brazeau: It is something we worked on specifically for urban models of governance. If there is a significant portion of an Aboriginal community, regardless of Indian, Inuit or Metis, they would come together and form these sorts of communities where there would be a sense of belonging to a community and promoting culture and whatnot. We can also provide the committee with the work we have undertaken on that aspect.
Senator Pearson: I would like to see that. Thank you.
Senator Peterson: Thank you, gentlemen, for being here. It has been said that all politics are local. You appear to be disputing that and saying that it should not be that way. Could you expand further about what you mean or how you envision it?
Mr. Dorey: Yes. One of the basic principles that I hold to is that when we are talking about rights of people, we should err on the side of caution and give people the choice.
Senator St. Germain mentioned that there are many people away from their community, whether by their own choice or not. We maintain that it is often not their choice to move away from their community. We prefer to use the term ``First Nations community'' as opposed to ``reserves.''
However, when it comes down to the fundamental rights of people, we argue that this particular piece of legislation will affect people's rights. The fundamental choice is what is important and they should have the right to make that choice. They should not be excluded from exercising their rights as a basic citizen of their nation, regardless of where they live. That is one of our fundamental arguments. People should have ``mobility rights'' and the choice should be theirs to make.
Senator Peterson: Just as further clarification, can you do this on a dual track? The definition of ``rights'' is one thing, and ``governance of your community'' is another issue. If we have to wait for all your definitions, will the other ever come? You seem to be concerned about wanting to get that done first and then moving on to the governance issue.
Mr. Dorey: In Corbiere, the Supreme Court decided on that point and that very argument. The court said that people living off reserve have a right to have input into decisions in the community, regardless of the fact that they live away from the community. As we say, in most cases it is not by choice; it is by circumstance. People live off reserve because of the lack of housing and the lack of infrastructure in their home communities. The Indian Act division created the problem in the first place.
We do not suggest that we create a perfect world before we move forward, but we suggest that we have to be cautious about ensuring that we do not perpetuate some of the inherent problems we have with respect to discrimination. There are alternatives, and we have some notions of our own. We are not saying they are the perfect solution, but there are other alternatives.
Mr. Brazeau: To add a point to that, for example, I am an Algonquin from the Kitigan Zibi reserve, but more importantly, I should be part of the Algonquin nation. That is what we are trying to get at; it should be the concept of the true historical First Nations. For example, the Algonquin people have nine Algonquin reserves throughout the provinces of Quebec and Ontario. What we foresee is the Algonquin nation, one chief, one voice, one people.
The Royal Commission on Aboriginal Peoples report makes the suggestion to follow this route. Instead of trying to negotiate different arrangements with 633 Indian Act reserves, for example, you would deal with between 60 and 80 real First Nations. Indian Act reserves are parcels of land determined by the Indian Act and the federal government that do not encompass our true traditional territories.
If I were to move away from the reserve, I would still have an interest in its activities. I should have a say in what goes on there, even if I am no longer a resident. I have family members there and my cultural roots belong to that geographic location.
All organizations have been struggling and fighting for mobility rights. If we take the argument that officers and/or members should not have a say in the affairs of local governments, then we are throwing the mobility rights battle out the window.
Senator Léger: You have answered my question in part.
Could you give me a small history of the Aboriginal peoples act? When would it come into effect?
You have just talked about the Algonquin and the nine divisions. How is that evolving within the Aboriginal communities?
Would Bill S-16 hurt the advancement of the UN model, or would it help open up what you are already doing? What is the response of the 600 bands?
Mr. Brazeau: The concept of an Aboriginal peoples act began in 2001 when we were involved in the proposed First Nations Governance Act initiative. After consultations with non-status and off-reserve status Indians living across Canada, the biggest recommendation was to scrap the Indian Act and come up with a model that would be more inclusive, less discriminatory and follow the RCAP recommendations of 1976.
Senator St. Germain asked, ``What options do you have?'' This is an option on which we worked to develop and to push forward. Unfortunately, in 2003, as you are well aware, the bill died on the Order Paper. It was difficult for us to try to promote the work we had developed up to that point.
With the historical event that took place last week in the retreat between the federal cabinet and Aboriginal leaders where we all signed separate and distinct agreements with the federal government, we foresee a process by which we will be able to begin discussions on these specific issues. I refer specifically to the nation recognition legislation, which needs work. However, for us, it is a beginning.
You asked, senator, if Bill S-16 would impede the overall goal of what we are trying to achieve. Basically, it would. Instead of looking at the concept of nationhood, we would be looking at federal-reserve communities that do not include all the traditional lands that our ancestors occupied. In a way, it would impede that exercise.
Senator Léger: In 2005, there was the retreat, which is extraordinary. It points to the fact that we do not have to take a thousand years to find a solution.
Would the measures set out in Bill S-16 stop your work, if it were to pass? In other words, should we wait until you come up with something new?
The retreat of 2005 is important, although I do not understand all its implications.
Mr. Brazeau: If enacted the proposed bill would increase our workload because it would not affect most Aboriginal people. Our workload would increase because we would try to ensure the interests of off-reserve Aboriginal populations.
Instead of the Aboriginal population responding to this bill in particular, it is an opportune time to hold consultations to find out what Aboriginal people want. We know there are many divisions. It is easier to be involved in the development of policies rather than responding to them. It is more likely that Aboriginal people involved in the process would accept it regardless of where they live.
Senator Léger: Do I conclude correctly from what you have said that because it is happening right now, we should put all our attention to it and not here? I think that is what you are suggesting.
Mr. Brazeau: That is right.
Senator St. Germain: Gentlemen, has your organization objected to all of the self-government legislation that has gone forward to date? I cite as examples legislation concerning the Nisga'a and Sechelt First Nations. If not, why not? Membership has been contentious with those two pieces of legislation.
The amalgamation process that brings smaller nations together is part of Bill S-16, although it is not on the grand scale that you are thinking of, Mr. Brazeau.
All the self-government bills that have gone through have had membership provisions, yet, you indicate that you have not objected to them. Why have you not objected to them, if membership has not been addressed the way you want it to be addressed?
Mr. Dorey: We have not objected to all of them. There have been varying circumstances or situations in dealing with some of them. As I am sure you are aware, those self-government agreements have been ongoing for many years. They are not things that are put together overnight or in a short period of time.
In many of the cases people who are part of the overall community are involved. They are in an inclusive process that involves people from various communities. Indian Act status is not always the determining factor. There are other circumstances and situations where these agreements are made in isolation. They are exclusionary, because they do not include our people. There are closed-door negotiations that do not allow our people to participate in the decision- making process.
Senator St. Germain: I find that surprising. I am a member of many of these committees and I am confident in saying that you have been able to express your opinion. A specific group living off-reserve was opposed to it. I find it surprising that you had not voiced your opposition to them. Bill S-16 is basically no different because it is a hybrid of many existing pieces of legislation. I look forward to your suggestions on how membership could be truly dealt with in the future.
Mr. Brazeau: I will add to your point on the concept of amalgamation in Bill S-16. We are Algonquians of Quebec and have a land claims process to submit to the federal government. They have tried to bring other communities on board to form the Algonquin nation and submit the land claim.
The opportunity in Bill S-16 sounds good in theory but, in practice, it is much more difficult because the Indian Act has given communities assurances that the paycheques will arrive each year. Therefore, amalgamations are a little leery of the bill and think that the money will end. That is contrary to the concept of nationhood to which we refer.
The Chairman: If there are no further questions, I thank you both, Mr. Dorey and Mr. Brazeau, for your presentations.
It has been enlightening and has helped us in our deliberations on Bill S-16. We look forward to the presentation in respect of membership that could add to this bill.
Mr. Brazeau: We will most definitely submit that to the clerk of the committee.
Mr. Dorey: Thank you for the opportunity.
The Chairman: Senators, I have one technical matter to discuss. On May 13, as a result of the work of the committee, I wrote a letter to Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, to request legal advice on a number of points in respect of jurisdiction, the role of the Auditor General and membership. Mr. Audcent has responded in a letter from Mr. Michael Clegg. Could I have a motion to accept this as an exhibit?
Moved by Senator St. Germain, seconded by Senator Peterson.
All in favour?
Hon. Senators: Agreed.
The Chairman: The motion is carried.
Senator St. Germain: Mr. Chairman, I requested certain information from government officials at DIAND and the Department of Justice Canada when they appeared before us. Have you received any of the material?
The Chairman: We will have the clerk obtain the information as soon as possible. Senator St. Germain, because you are the sponsor of the bill I would like to know your views with respect to additional witnesses.
Senator St. Germain: I would like to have one more round of witnesses before the break. I suggest that we hear from some of the Grand Chiefs from Alberta and the Southern Chiefs of Manitoba.
Senator Peterson: Will we hear from Saskatchewan?
Senator St. Germain: I hope to have witnesses from Saskatchewan in the process, senator, but I planned to begin with Alberta and Manitoba because they made the request to appear to give evidence in respect of Bill S-16. Certainly, we would want representation from Saskatchewan because it is a key province with a large Aboriginal population. We can work on that with the steering committee, Mr. Chairman, if you are so inclined.
The Chairman: Agreed.
The committee adjourned.