Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 3 - Evidence - Meeting of March 31, 2009
OTTAWA, Tuesday, March 31, 2009
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: Indian Act overview, developments and attempts at reform).
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I welcome all honourable senators, any members of the public with us in the room and all viewers across the country watching these proceedings of the Standing Senate Committee on Aboriginal Peoples on the facilities of CPAC and the Internet.
I am Senator Gerry St. Germain from British Columbia, Chair of the committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada generally.
[Translation]
Today, we have scheduled a briefing on the Indian Act. An expert on this legislation has been invited here by the committee to shed some light on the subject.
I would like to begin by introducing the members of the committee who are here today.
[English]
We have Senator Brazeau from Quebec; Senator Lang from the Yukon; Senator Raine from British Columbia; Senator Watt from Quebec; Senator Dyck from Saskatchewan; Senator Peterson from Saskatchewan; and Senator Carstairs from Manitoba.
Today, with the help of a specialist, we want to examine the Indian Act, get an overview, review new developments and attempts at reform. To discuss this topic, we have William B. Henderson, Barrister and Solicitor. He is a lawyer based in Toronto. Mr. Henderson has significant experience representing First Nations and has appeared at all levels of the Canadian court system, including the Supreme Court of Canada. His areas of expertise include treaty hunting and fishing rights, reserve land and land claims issues. For the past decade, many students and practitioners have resorted to his online Henderson's Annotated Indian Act. At the present time, Mr. Henderson is an adviser to the Lands Advisory Board under the Framework Agreement on First Nations Land Management and counsel for First Nations engaged in land claims negotiations.
Mr. Henderson, welcome. Your remarks will be followed by questions from senators. I ask you to keep your initial remarks as concise as possible. I know you will be as precise. Honourable senators will want an adequate opportunity to put questions to you.
William B. Henderson, Barrister and Solicitor, as an individual: Honourable senators, I will try to be as brief as possible in the circumstances. The history of the Indian Act starts well before Confederation. It is important to mention that. The policies, ideas, concepts and practices that we find in various iterations of the Indian acts over the years derive from what was done in the provinces prior to Confederation and to a series of reports on the state of Indian affairs. These reports began with General Darling's report in 1828, a special British parliamentary commission in 1837, the Bagot commission in the early 1840s and the Pennefather report in the 1850s.
It is an interesting study to read those reports and I commend them to the senators and their staff. One of the things you will find is that ideas you may think are new with respect to Indian affairs and governance are, in fact, quite old. They have been tried and expressed through the legislation in various ways and not always in the best ways.
In 1867, all pre-Confederation legislation in Canada East, Canada West, Nova Scotia and New Brunswick was consolidated under section 91.24 of the Constitution Act, 1867. It gives Parliament jurisdiction over Indians and lands reserved for the Indians. The first Indian legislation after Confederation was the Secretary of State Act, which gave the Secretary of State responsibility as Superintendent General of Indian Affairs at the time.
I want to underline "Indians and lands reserved for the Indians" briefly. Parliament had jurisdiction over those matters and legislated in respect of them. However, what we find over the years as a matter of policy and legislation is a largely one-way street. With respect to reserves, there are provisions through the various Indian acts for the surrender of reserves, expropriation of reserves and leasing out of reserves, if they were unused.
I call that a one-way street because there is no provision in any of the Indian acts, including the present one, for lands to return to reserve status or to be added to reserve status. The act is completely silent on that. Lands that ceased over the years to be reserve lands, both before and after Confederation, are gone. There is no legislative way to bring them back.
The same is true of Indians themselves to a lesser extent. Increasingly, over the years, the definition of Indian status has been restricted. While enfranchisement means the right to vote, various initiatives to enfranchise Indians over the years have also entailed the complete loss of Indian status. This has also been a one-way street. The act historically had enfranchisement provisions that deprived people of Indian status without any provision for them to get it back. Since 1985, there are no longer any enfranchisement provisions in the act.
The first Indian Act so named was enacted in 1876. It strikes themes picked up from the previous sources that I have referenced, and they still find resonance in the Indian Act today. Those themes are reserves, definition of reserves, provisions to protect reserves, provisions to sell reserves and provisions for reserves to be expropriated.
It has provisions for membership, which start from general descriptions in the first legislation, which was in Canada East in 1850, to very restrictive provisions today, which have been refined since 1985 in Bill C-31. They continue to be contentious because of their ultimate impact on the number of people who will qualify for Indian status in generations to come. There have always been provisions for governance, and you might describe it as "governance light." While there have been limited bylaw powers for First Nations bands and councils, they have never been extensive. Under the Indian Act they have always been subject to the approval or the veto of the minister of Indian Affairs. There has always been and continues to be inadequate provision for their enforcement. For example, a band council may enact a bylaw dealing with a particular matter. When they find someone in violation of it and if they have a bylaw enforcement officer or band or special constable, they might find someone to lay a charge. However, that does not mean necessarily that the local Crown attorney will pick up that charge and prosecute it. That is a problem. At times, finding someone to lay a charge is a problem. Enforcement is a continuing difficulty in that aspect of governance.
Traditionally, one of the strong themes in the 1876 Indian Act and carried through the years is temperance. The idea that status Indians should not drink has been strong, especially in the prairie provinces in the latter part of the 19th century. There are still temperance provisions today, although far more limited, largely to the extent that a First Nations can vote for its reserve lands be dry, where previously all reserve lands were dry unless otherwise declared.
Education has always been seen as a tool of assimilation and has always been there. It evolved into the residential school system, which I am sure all of you have read something about. The effects of that over the years, right up to the 1951-52 legislation, were such that the screws were tightened to ensure that Indian children, in particular between the ages of 6 years and 16 years, were compelled to attend school. Various people were charged with the power to arrest them and compel them with such reasonable force as necessary to attend school. In many cases, that meant entirely removing them from their communities and being taken off to the boarding schools or the residential schools.
There has been some protection of Indian rights, surprisingly not treaty rights because treaties are only mentioned in the Indian Act to the extent that payment of treaty annuities is a charge against the Consolidated Revenue Fund. The rights that people generally associate with the Indian Act are exemptions from seizure of personal property on reserve, exemption from taxation and provisions of that ilk, which are not numerous but of course highly valued and much respected in First Nations communities and frequently commented upon outside First Nations communities.
Through the years, there have always been special provisions depending upon the bug-bear of the day. For that reason, we find the historic ban on the potlatch ceremonies and sun dance and a particular fascination for a while with poolrooms; for fear that Indians might enjoy the same recreations as their neighbours. When progress was being made in the 1920s on land claims, in particular on behalf of the Nisga'a, a provision was inserted in 1927 that made it an offence to collect money to prosecute a land claim, or hire a lawyer, without permission from the Superintendent General.
Briefly, I will touch on some of the major reforms that have been attempted over the years. Until the period after World War II, all of these initiatives were added to the legislation at the behest of non-Indians, missionaries, special interest groups, the Department of Indian Affairs and the various ministries in which it was concealed. It was not until 1948 that a special parliamentary committee was struck that spoke to First Nations people and their leaders about the Indian Act and what ought to be in it. Those hearings led ultimately to the 1951 Indian Act, which is pretty much the modern version. If you read that act, or as it is reflected in the Revised Statutes of Canada, 1970, you will see that it is the current Indian legislation.
I mentioned earlier that section 91.24 of the Constitution Act, 1867, talks about Indians and lands reserved for Indians but legislatively and in terms of policy, it is a one-way street. You can lose Indian status and you can lose reserve land. The logical culmination of that history was brought forward in the 1969 white paper wherein where the government proposed that there be no Indians or reserve land; that treaties be abolished; and, essentially, that to the extent the Indian problem needed a solution, the solution would be that there be no Indians.
Fortunately, that proposal was not long-lived. Officially, it was still government policy for several years but, as a practical matter, it was hotly, articulately and effectively resisted by First Nations people. Thus, the policy was withdrawn. It is difficult to believe that only 13 years later, with patriation of the Constitution, Aboriginal and treaty rights found protection in section 35 of the Constitution Act, 1982. We are working still to determine what that means, in particular in terms of governance, because First Nations assume that the inherent right of self-determination and self-governance is built into section 35, but there is no Canadian consensus on that yet.
The second largest change to the Indian Act was brought about not by section 35 but by section 15 of the Canadian Charter of Rights and Freedoms, which is the equality provision. As a result, the Indian Act was amended in 1985 by Bill C-31 to remove the historical distinctions, in particular with respect to the enfranchisement of women who married non-Indians, from the act and to remove all reference to enfranchisement. There were other minor provisions dealing with increased government powers and other essential tinkering, but that was the major impact.
There have been attempts since 1985, largely in the 2002 First Nations Governance bill, that proposed sweeping changes to the Indian Act in that respect. It also met with great resistance from First Nations and was withdrawn. That is the history behind where we are today.
I know that this committee is looking at the issue, examining the history and perhaps considering some options. If that is the case, I strongly urge the committee to look back to the 1985 experience to ensure that you consider the absolute necessity of adequate financial and other resources for First Nations to implement those things in respect of governance, governance institutions and other changes to the Indian Act. The woods are full of agreements and initiatives on behalf of the government, which subsequently were underfunded. I strongly urge that this committee not venture into that territory.
If there are questions, I will attempt to answer them for you.
The Chair: Thank you, Mr. Henderson. I am sure that questions will open up other areas of discussion.
Senator Sibbeston: Mr. Henderson, you have a lot of experience dealing with Aboriginal people and leaders. Do you have the impression that First Nations leaders would always resist any change? I think that is the case in the Northwest Territories, where I am from. People there are just emerging from the bush, as it were, and just coming into a modern life. Things are not very sophisticated; they are at the basic level. People are being introduced to democracy, band councils are just getting organized and so forth. There has been much progress, but they are at the initial stage, compared to native people in the south who have been in contact with civilization much longer. They are more sophisticated.
Do you have the impression that in many situations there is a state of autocracy where chiefs and certain families that are in control would generally resist any change? Do you think that, even though changes could be very positive in terms of governance and more accountability, there would be a general resistance to what we would consider positive changes?
Do you think it is hopeless for the government to try to do anything positive because native people would be suspicious of it? Even though the Indian Act is a terrible thing, it gives them a sense of protection, and they generally resist change.
Mr. Henderson: I am grateful for my legal training, because it enables me to recognize a loaded question when I hear one.
I do not necessarily accept many of the things you have said. In general, in First Nation communities across the country there is and has been an extreme reluctance to go along with any tampering or significant change to the Indian Act, not because it is a wonderful piece of legislation or even in some respects a good piece of legislation, but because it is the only piece of legislation they see as protecting their reserves and their rights.
Harold Cardinal wrote about this in 1969 and 1970. He said that until there is perfected recognition of the rights of Aboriginal people, the Indian Act is all there is. He wrote that if it is an embarrassment, maybe that is a goad toward recognition. He said that once that recognition exists, people will be quite happy to talk about changes to the Indian Act.
When the Royal Commission on Aboriginal Peoples wrote about this, they described it as the paradox of the Indian Act: It is horrible, but it is all we have. That is essentially what you have to deal with. That was clearly discovered in 1969 in the face of those sweeping provisions, but it was still there in 2002 when the First Nations governance act was proposed. What many consider to be reasonable provisions of governance, First Nations see as an attack on their cultural institutions. That may not always be obvious, but it is for your First Nations witnesses to elaborate on that point.
Senator Sibbeston: In my experience in the Aboriginal situation in Canada, it seems as though it is a matter of time and a matter of Aboriginal people becoming educated, becoming aware of the world, gaining confidence and being able to do things. I sometimes think governments think they can solve the problem by spending money. However, in many communities people are content, in a sense, and things will not change very much because their level of education does not allow them to surge ahead. It will take time.
From your experience with Aboriginal people, do you sense that it is an evolutionary type of situation that will just take time? There are some very enlightened and very good leaders who have done well. They recognize that economic development is the answer, just as it is for any society in the world. Some people here are not yet at that stage.
If every band in the country could do it, I think they would, because everyone wants freedom and to be secure and independent. It is basic human nature to want to have things. Through business and so forth, this can be acquired.
Do you have a sense that this is the case, that the solution is not money, that it will take time and eventually Aboriginal people will come into their own and become like all Canadians in terms of economy and so forth?
Mr. Henderson: In terms of education and economic opportunities, I very much hope that First Nations will be at the same level as other Canadians as soon as possible. Whether education alone or economic development alone is the answer, these were proposals that were first made in the Bagot Commission in 1844. Some of these things do take time.
Is money the only answer? Certainly not, but some answers require money and without them they wither on the vine. It is difficult to say that these generalizations are true. To some extent they are, but one needs to be particular in terms of what initiatives and resources they require and what support they have among the First Nations.
The Chair: I believe that the federal government has historically wanted to conquer and divide First Nations. They set them up in more than 600 bands across the country rather than recognizing them as nations, whether it be the Algonquin nation or the Ojibwa nation. Am I correct in the assumption that was the thinking at that time, Mr. Henderson?
A grouping was suggested in the province of British Columbia recently with the proposed recognition act, but the government has backed down on that due to an impending election. Have you have given any thought to the historical small bands being regrouped to recognize First Nations people as nations, such as the Algonquin, the Mohawk, et cetera?
Mr. Henderson: Starting from the historical dimension, the divide and conquer tactic is not particularly federal. It did not originate in 1867. It originated in the 17th century among the Dutch, the English and the French forming their alliances and trade groupings and effecting control here and there.
It is accurate to say that, for military purposes, that was carried through right up to the War of 1812 and, for political purposes, afterwards. It was true especially in the Prairies at the time of the Riel rebellion where larger tribes were broken up into smaller bands so they could be more effectively controlled. You find it as recently as the 1980s where the Lubicon Cree were effectively demonstrating and bringing forward their claims, and a separate band was created for the purpose of signing an agreement with them. Divide and conquer has always been there.
Does that mean that integration is the answer? For some people, probably it is. I have only seen a general description of Premier Campbell's ambitions in terms of 25 regions and 25 treaties and that sort of thing. As you say, it has been downplayed or withdrawn temporarily in light of the election. I do not know if that is because of First Nation pressure or non-Aboriginal pressure or both. You are from that province, senator, so you would know the answer to that better than I will.
Senator Brazeau: Thank you for your presentation. Just so you know; your online annotated Indian Act has been a good resource for students all across this country, myself included.
The Indian Act was adopted in 1876, and at that time an individual representative of the Crown stated that the purpose of the Indian Act was to "assimilate and get rid of the Indian problem." Here we are in 2009, still living under the auspices of the Indian Act. I believe that part of the problem has been that some leaders across the country have used some fear mongering tactics, or at least relayed the information with respect to the Indian Act being the bearer and the protector of certain Aboriginal rights, which is, for the most part, completely false. I think that there is misinformation around that and that the Indian Act is probably the single biggest contributing factor to Aboriginal poverty in this the country because of the lack of accountability provisions towards the citizens living in those communities.
I had the opportunity to be part of the First Nations governance initiative and also to take part in the Joint Ministerial Advisory Committee that provided recommendations to the minister of the day for the governance changes to the Indian Act. It was appalling to see the position of some of the leaders in that committee who, at one point, were part of the committee and then decided to pull out, decided to boycott the process, decided to observe and be part of the committee but not support the changes to the legislation when they were given the opportunity to do so.
The legislation was developed jointly with different stakeholder groups, and it is true that it was met with a lot of opposition. However, the Department of Indian Affairs conducted a poll following the failure of the legislation. The failure of the legislation was not because chiefs boycotted the processes but because of the change of leadership with the former Liberal governments. That is why the piece of legislation died on the Order Paper. The poll from the Department of Indian Affairs itself suggested that over 50 per cent of on-reserve residents supported the changes to the Indian Act in terms of bringing more accountability and increased governance into the legislation, but on the other hand, some chiefs across the country boycotted the process.
Would it be a useful exercise, given your experience and the work you have done surrounding the Indian Act, to perhaps go to the people themselves to see what kind of changes if any they would like to see in terms of governance and accountability as opposed to going to solely the First Nations leadership? As Senator St. Germain indicated, the system has created over 600 chiefs across the country, and I have not been afraid to say that that system has created too many chiefs and there are not enough Indians. I think that boils down to be the biggest problem, because many of these leaders ask for more consultation, more consultation and more consultation, but in my view, as a First Nation citizen, consultation does not equate to consensus. How do you feel about going directly to the grassroots people living in those communities with respect to any future amendments to the Indian Act?
Mr. Henderson: I would say generally that when I talk about a consensus in a community, it is the community. I can give an example from my own experience with the framework agreement on First Nation land management. A First Nation that wishes to take up that opportunity to govern the reserve lands and resources has to develop and enact its own law. All of its members and electors, regardless of residence, get to vote on that opportunity. There are extensive consultations in putting the laws together and drafting them and about what their import is and what the consequence of taking on that responsibility will be. There is considered discussion about what resources will be available to them and whether they will improve or not improve. Also, the people themselves are the people who are in the halls and asking these questions and getting their answers. They are not being hand fed or steered by anyone that I can see when I do it.
Therefore, I would have to say yes, getting into the communities and hearing from the people and giving them the opportunity to express their concern and ask their questions is integral to a reasonable form of government.
Senator Brazeau: As a former national Aboriginal leader and a First Nation citizen, I can tell you that I took matters into my own hands. As an example, six months ago I started a Facebook group to eliminate the Indian Act, and I have over 2,000 members on the group, and there has been a fruitful exchange of information and recommendations and advice as to what individuals want to see across this country. It is bearing fruit for the time being.
Senator Dyck: Mr. Henderson, you have taken on quite a great task here, trying to bring forth the key nuggets within the Indian Act. I will start out with two short questions with regard to the history of the Indian Act.
You said it was originally set up essentially to assimilate Indians. In the historical documents, such as the 1844 report, did they estimate how long they thought it would take to assimilate Indians? Did they have a time frame in mind?
Mr. Henderson: Fishing through my memory, which is a perilous exercise in itself, I have seen many times "generations" without necessarily saying how many generations or how quickly things could evolve along that way. Clearly one gets the sense, reading the historical documents, that when we find the residential schools and the children being hauled out of the communities away from their families and put into the residential schools, it pretty much confirms a sentiment amongst the department and, including churches and other institutions, that it was not happening fast enough. However, I do not actually recall someone saying this is how long it will take and this is when it will happen, except in 1969, when we saw that happening very abruptly and very quickly.
Senator Dyck: You also mentioned that, since 1985 with Bill C-31, there was no reference in the Indian Act to enfranchisement, but yet we have seen that with the consequences of Bill C-31, there is in fact an enfranchisement because it depends on which category of Indian you now are whether or not you can pass on Indian status, so there still is loss of status through marriage.
Mr. Henderson: Yes, that is right, senator. The word "enfranchisement" does occur in the current Indian Act from the historical perspective, but there is no way of enfranchising now. What you say in terms of the future generations is very true. I do not claim to be an expert on this, but I have spoken in the past about the McIvor case, and effectively, the Supreme Court of British Columbia found that the membership provisions were unconstitutional because they still distinguished between Aboriginal women and Aboriginal men. Passing on membership or the ability to do so was not equal and there was still discrimination.
I think the effect you are adverting to is that whether one looks at men or women, marrying out has dramatic consequences for the children and their capacity to inherit, as it were, Indian status or to qualify for Indian status. Some commentators say the status Indian population will be reduced to decimal points over the next 30 years to 50 years if those policies continue.
Senator Dyck: That is one of the fears. I am using the word "enfranchisement" in reference to a First Nation person's loss of status more than the right to vote in elections.
There is definitely a fear that there will no longer be status Indians over time. I think the time frame is within several decades as you mentioned. Therefore, the side effects of Bill C-31 may accomplish the original intention in 1876.
I believe you said that if the committee was to consider amending the Indian Act, we should look at what was done in 1985.
Mr. Henderson: I think I said that in the context of the 1985 experience, the expectation of how many people would regain Indian status was greatly understated. There were many more people who regained Indian status than were expected. The budget was not increased to accommodate that. First Nations were told that there would not be any impact on their communities because of these measures and subsidies, grants and other financial resources would be available. When the forecast numbers doubled and then kept increasing, the resources did not accompany the increases.
That was what I was suggesting in reference to looking at that experience.
Senator Dyck: You mean the resources provided by Indian and Northern Affairs to the various First Nations?
Mr. Henderson: Yes and that is not to suggest that looking at the experience would not also profit the committee because it was a long process.
Senator Dyck: Have you considered whether Bill C-31 should be amended to reverse changes with regard to the loss of band membership? Have you any suggestions in that regard?
Mr. Henderson: In 1985, most of the changes regarding loss of membership were reversed. I do not know the statistics between 1985 and today to determine who is still losing status because of the second generation rule. There may be others you could ask about that issue. The matter is before the courts at the moment and they will have suggestions on what is wrong with the legislation and what might be done to cure it.
Senator Dyck: You mentioned the case in B.C. with Sharon McIvor. She won her case and was offered a settlement, but preferred the settlement to be national as opposed to an individual settlement.
Mr. Henderson: My understanding is that the offer was made before going to trial; she won at trial and the case is currently before the British Columbia Court of Appeal.
Senator Watt: Mr. Henderson, thank you for your presentation. I began to start reading your book this morning. I have not had a chance to go through all of it because there are many pages.
I have several questions. You mentioned that section 35 of the Charter of Rights and Freedoms is supposed to protect Aboriginal people in this country. In other words, it is a mechanism contemplated within the Constitution that describes the rights recognized, including the inherent rights you mentioned.
There is also a non-derogation clause in section 25 in case a piece of legislation from Parliament encroaches upon their rights that allow the Aboriginals to voice their opinions. From time to time, we have experienced legislation coming down where we have indicated either to the committee or those involved that there is a possibility of encroachment on the rights of Aboriginal people. When that happens, it happens. The Standing Senate Committee on Legal and Constitutional Affairs stated an interpretation of the non-derogation clause some time ago. You have probably examined it.
Nevertheless, I would like a clearer understanding of what you see as the relationship between a treaty from section 35 and its implementation by the government. What might be lacking?
You stated that it remains to be seen how the question of rights entrenched in the Constitution will be implemented. It is not being implemented in the way that the Royal Commission on Aboriginal Peoples suggested. I believe there is a section of the royal commission report that has been looked at seriously by the Government of Canada. Some parts have been implemented to an extent, although they may not have the same flavour at the end of the day.
The government has an administrative policy stating that — let us put it this way — extinguishment was used before 1982. After 1982, they developed a device called the "non-assertion technique" that has the same effect as extinguishment. Have you looked into that to determine whether this is something that should concern Aboriginal people?
According to the witness that we had in the Standing Senate Committee on Legal and Constitutional Affairs this non-assertion technique has never been tested. It has never been to court to determine whether it is achieving what it was meant to achieve.
Mr. Henderson: I believe there are several questions in there. You held up a book when you began. Were you under the impression I wrote that book?
Senator Watt: I was.
Mr. Henderson: I did not. I believe the author is Sakej Henderson. I did not want to claim credit for something I had not written.
"Extinguishment" addresses a fundamental point between Aboriginal peoples and government over the years. The treaty experiences as it has been explained to me in many halls and many places over the years that, from the point of view of Aboriginal peoples, the treaty experience created an ongoing special relationship. It is sometimes now described as a fiduciary relationship. It is also described as a covenant chain between the Crown and the First Nations.
Extinguishment implies reaching the point of severing the cord. That was the white paper: It has been nice, but we do not need reserves or status Indians any more and everyone is equal. Negotiating land claims and examining treaties and agreements, lesser agreements in law or as considered by the government are seen as a one-time deal. Consider a treaty in the Prairies: When you send a medicine chest — essentially a first aid kit — to the house of the Indian agent, put a school house somewhere, send out the seven sacks of potatoes, three or five boxes of ammunition and $5 per capita every year, then you have done all that we said we would do. You have a pretty diminished view of the expectations of First Nations if you approach section 35 in the same way and say that you recognize Aboriginal rights if they can be proven and if you can read a treaty and find the words that reflect what you are claiming. They see governance over the years as the full box theory. When they talk about self-governance, the emphasis is on self- determination. They want an effective range of powers and the scope of authority that is consistent with nationhood or First Nationhood, including the right to determine who their members are. That is the way in which many First Nations would answer Senator Dyck's question. We can figure out who our members are; we can deal with that.
First Nations see the continuing relationship and the broad and full interpretation of documents, including constitutional documents. Government, historically and currently, has a much more restrictive vision. Speaking for my clients on this limited point, I would say that is certainly their view.
Senator Peterson: Under the current Indian Act, band chiefs and councillors are elected for two years. There has been much discussion over the last year about extending that because they have to spend all their time campaigning rather than governing. What are the chances that the act would be amended to remove that aspect?
Mr. Henderson: I must confess, senator I do not have any profound thoughts on whether a two-year or three-year term is better. You might solicit thoughts on that from the councils or at the grassroots level that might lead to different conclusions. If it were desired to change the two-year term under the current act, they can switch to the customary option under the Indian Act and put in a three-year term.
Senator Peterson: Could this be done unilaterally? Would it have to be for a geographic area?
Mr. Henderson: It would be First Nation by First Nation. One half of the First Nations in the country are under the custom election system now so they can decide to switch to a three-year term if they so choose. First Nations governed by the Indian Act are stuck with the two-year term. The easiest and most satisfying way to change that would be to switch to a customary system and set the terms they choose.
Senator Brazeau: There is no denying that the Indian Act and its associated barriers and problems are big business for consultants in Ottawa-Gatineau. For example, section 91.24, to which you alluded earlier, states that the federal government has jurisdiction for Indians and lands reserved for Indians. The Indian Act gives different labels to First Nations peoples or Indians with status and non-status, treaty and non-treaty and Inuit and Metis. Certainly, jurisdictional wrangling occurs between the federal and provincial governments. If you are a status Indian, you fall under either provincial or federal jurisdiction, which has led to many discussions and arguments. The fact remains in my view that this is big business for many people dealing with these issues and consulting to provide advice to many First Nations communities, organizations and peoples.
Do you have any comments with respect to so many consultants providing advice to communities to remain with the status quo? Let us face it: It provides many opportunities for such individuals, dare I say it, to take advantage on the backs of Aboriginal peoples across the country.
Mr. Henderson: Broadly stated, I might fall within the group of people to whom you refer who advise First Nations. My experience, which goes back an increasingly long time, is to get away from the Indian Act. For example, when we talk about the Framework Agreement on First Nations Land Management, it brings in a new agreement ratified by Parliament that displaces the land governance provisions of the Indian Act and gives jurisdiction, powers, managerial authority and administration of reserve lands and resources to the First Nations if they choose to take them up. It is an opportunity agreement and is not mandatory. First Nations are standing in line to sign it.
Even within the department, I do not think one finds the stomach that used to be there to enforce the Indian Act. First Nations are looking at education agreements now modelled after the framework agreement on land management. In the Maritimes and in B.C. there are framework agreements on education that adopt broadly the same approach. Advisory bodies and resources are put in place and the powers are pulled out of the Indian Act and transferred.
The recent experience is more of a collateral attack. People who are negotiating treaties in B.C. are not arguing to retain some part of the Indian Act because it will no longer exist. With the Sechelt Indian Band Self-Government Act, 1986 and the Westbank First Nation Self-Government Agreement, 1998, those bands are not looking at the Indian Act for advice and opportunities. The Canadian Charter of Rights and Freedoms has created the litigation from disputes with the Indian Act because the Indian Act did not comply. That is why there was Bill C-31.
Senator Brazeau: Following the 1999 Supreme Court decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), which granted off-reserve members the right to vote, many communities across the country were advised by consultants to revert to customary method, specifically to deny the right to vote because the Corbiere decision dealt with section 74 elections only and not with customary elections. This practice continues 10 years after the decision, and we are talking about elections that are not Charter compliant. This practice continues today, specifically because of advice that the two dozen band councils of which I am aware were provided by consultants.
Mr. Henderson: I acknowledge that advice may have been given. It is not obvious to me that the fact that custom elections are recognized by the federal legislation voids the rights or the entitlement of off-reserve members to some participation in government. I am fairly sure that is being litigated. It is an open question. It would not be the first time someone has advised a tactic that may not have worked.
Senator Raine: Could you explain in more detail what is meant by being governed by the Indian Act and under customary practice? It is my understanding that the Indian Act does not necessarily apply everywhere.
Mr. Henderson: That is quite true. Under the provisions of the Indian Act, whether or not the election provisions apply to leadership selection, that is, the election of a chief and council, is determined by order of the minister. Historically, that has been very contentious, but I will not get into that given the time available.
In order to have what is described as a custom election, the minister either makes an order that elections will be pursuant to the Indian Act or withdraws that order at the request of the First Nation.
When I first became involved over 30 years ago, all that was required to have a custom election was a band council resolution saying that they did not want to follow the Indian Act but rather wanted to have customary elections.
In recent years, it is more complicated. The minister will look for a draft election code before he will consent to the change. The two options exist. Some First Nations were never brought under the Indian Act and some of them do not even have a written election code; they just have elections.
Senator Raine: This is just with regard to elections?
Mr. Henderson: Yes, just with regard to elections.
Senator Raine: Every other aspect of the Indian Act still applies?
Mr. Henderson: Yes. The only other express reference to "custom" in the Indian Act is "customary adoption," which is adoption pursuant to Aboriginal custom and not as directed or approved by a court or a children's aid society or that sort of thing.
Senator Raine: Are there customary marriages as well?
Mr. Henderson: They are not referred to in the act, but there are customary marriages, and they are recognized.
Senator Raine: Is there any form of customary private property rights on reserves?
Mr. Henderson: There are about 10 principal sections that deal with the allotment of lands on a reserve by the band council to members. About one half of the First Nations in Canada do not apply those sections. They do not use them; they completely ignore them.
In general you could say that whoever is occupying a lot or is building a house there is doing so under whatever the custom of that First Nation is, and everyone else recognizes those rights.
Senator Raine: Is it fair to say that the Indian Act exists but there has evolved over the years a system where it is applied differently in different places? There obviously are different circumstances. Some First Nations are very urban in nature and some are still emerging from the bush, as Senator Sibbeston said. Is this a good thing, or is this just the way it is?
Mr. Henderson: It is just the way it is. For one purpose and another, there are a lot of First Nations people who are not following sections of the Indian Act and never have. Is that a good thing? Well, it works for them.
Senator Raine: As you said, within the Department of Indian Affairs there is no stomach to enforce the Indian Act and therefore, even though we think we are stuck in the past, things are evolving.
Mr. Henderson: Yes, that is very much the case. People have taken up other options. The old powers of the Indian agent, the superintendent or the superintendent general are not exercised the way they used to be. In the case of a section 36 expropriation, for example, which by definition is taking reserve lands without the consent of the First Nation, the minister will not consent to an expropriation or take it forward to the Governor General in Council unless the First Nation does consent.
The old days are no longer much with us. That feeds into the paradox as well. Many First Nations do not feel particularly oppressed by the Indian Act because they do not pay much attention to it, unless someone comes to tax their lands.
Senator Raine: I am sorry to continue on this point. The one thing that may be missing in this is that we do not have a system of recognizing and promoting best practices through the different First Nations across the country so that they can learn from each other's experience faster so that things can improve more quickly.
Mr. Henderson: There are many mechanisms that do that. Everyone is interested in one way or another in best practices, albeit perhaps different best practices on different subjects. I would not draw the line between First Nations that use customary land allocations or customary elections and those that follow the Indian Act or had the Indian Act imposed on them. The line is not that clear.
There is great interest in developing effective structures, because First Nations know that they are key to economic development and to moving forward in that way. People will not do business with a bad government. There are many studies on that out of the Harvard institute and Arizona, as well as Canadian studies. Best practices are good business as well as good government.
Senator Carstairs: I would like to ask you about education. I am an educator by profession, so that is my bias. I have been dismayed, not just by the residential school system, which is an embarrassment to every Canadian, but also by the levels of education on reserve. My concern is that in order to have good governance you must have an educated people. Why does there seem to be a reluctance on the part of Indian Affairs and the government in general to spend the same amount of money to educate an Aboriginal child on reserve as they spend to educate a non-Aboriginal child off reserve?
Mr. Henderson: I am not the one to provide the answer to that question. If I knew the answer, I probably would not like it any better than you would, Senator Carstairs.
Senator Carstairs: Let us put it on a more philosophical basis, then. You said there is extreme reluctance to move away from the Indian Act because it is the only piece of legislation that protects the Aboriginal people. The Indian Act is, therefore, a paradox.
Do you think there might be more willingness by Aboriginal peoples to move away from the Indian Act if they were well educated?
Mr. Henderson: Certainly many of the people who are opposed to tinkering with the Indian Act, as paradoxical as that may be, are well educated. Again, I do not want to draw bright lines where there are none.
In terms of people being willing to move away from the Indian Act for governance and control over education, I just mentioned a few minutes ago that there are framework agreements in the Maritimes and in British Columbia where people are doing precisely that. They are entering into the agreements, and they are taking control over the education. The education sections of the Indian Act, such as they are, no longer apply. Over the long term, it is a question of whether or not the resources are there to provide quality education right through to post-secondary, and if we are seriously talking about people competing in the modern word, we have to talk about post-secondary education as well.
Senator Carstairs: Absolutely. My research indicates that there was a period of time under the Indian Act where, if a person received a professional degree, he or she lost his or her Indian status.
Mr. Henderson: Yes, that is true. I am not sure if that ended in 1927. It may not have ended until 1951. However, anyone who was admitted to a profession was enfranchised, stripped of his or her Indian status. People who became a minister or a clergyman or were licensed to preach and/or marry were also enfranchised. It was a fairly broad category which, again, is one of the ironies. You would think that these would be the people you would most want to keep in First Nations, but that was not the intention at the time. They wanted to get people out. The educated people were the easiest to get out because presumably they could compete outside of the First Nations communities.
Senator Carstairs: My final question has to do with Bill C-31 of 1985. While it is true that it re-enfranchised, if you will, a great many people, it did not do so for their grandchildren. Can you explain the difficulty in terms of those women who regained their treaty status under Bill C-31? Some of them were not in fact welcomed back into the community, but they were given back their status, and that status did not apply to their grandchildren.
Mr. Henderson: Yes. Many people who regained their status under Bill C-31 were moved into a category that is described as 6(2). These are references to the 1985 Indian Act and the current sections of the Indian Act. A designation of 6(1) is someone who is a full member of the First Nation, generally born that way, and 6(2) is a person who has regained status, by and large, one way or another, or is the child of a 6(1) person and a non-Aboriginal. The people who are designated 6(2), by and large, cannot pass on their status if they marry out. If they marry another 6(2), their child will be a 6(1). If they marry a 6(1), their child will be a 6(1). People have worked through the permutations and combinations going back to who their parents were and when they were enfranchised and under what circumstances are able to demonstrate that. A very handy chart in the Royal Commission report and another one used in the McIvor litigation, and I do not have it on hand with me today, shows how that can happen and how the distinctions between men and women still persist. Regardless of whether or not those distinctions are still there, it is still the case that if a 6(2) marries a non-Aboriginal that person cannot pass along his or her status. That is the dilemma. If you look at the dynamics and some of the population statistics, which is the province of others in terms of their expertise, you can see the status population diminishing over the next several decades, even though in real terms it is increasing.
Senator Lang: I want to make one comment before I ask a few of questions. I share Senator Brazeau's concern when I look at the Department of Indian Affair's overall financial budget and see, at the end of the day, the poor results in many parts of the country. That means we are not doing some things right, obviously. More money will not necessarily solve the results that we have seen in many cases. I feel so badly for those young kids we read about or see on television in 30-second clips. We see young kids who are not getting the care and attention that they should be getting. I guess that points out where a lot of this money is going to. We have created an industry throughout Canada where consultants and organizations have been created, and in many cases it is to their advantage to maintain the status quo and not to see change. It makes it difficult politically to make change at that stage at this forum and other forums because of the resistance and the fact that we have so many vested interests, and the real, true interest gets lost in the shuffle.
One concern I do have is the question of elections. You talked about customary elections. Is that secret ballot?
Mr. Henderson: That would be provided for, presumably, by whatever the custom is. In my experience, they usually are secret ballot, but I cannot guarantee that all of them are.
Senator Lang: I would assume the Department of Indian Affairs would know, if these elections are throughout the country, whether there are bands without secret ballot. Would they know that? Would they have that on file?
Mr. Henderson: I doubt they would have a single file that would know that. There have probably been some studies done. I do not know what they say. As I say, many of the customary codes are not reduced to writing, so it would require a degree of inquiry to determine whether or not that is the case.
Senator Lang: I want to follow up further on Senator Brazeau's idea. He mentioned perhaps looking at a framework that would be made available to bands throughout the territory. I believe it would be enabling legislation. Those who wish to take part could do so, and they could do it by some sort of plebiscite or referendum. Did I take it from your answer that you felt that that might be another way of going as opposed to the route in 1985 and other times where there were endless discussions and consultations and nothing happened at the end of the day?
Mr. Henderson: I have in a way suggested that is the case. Again, I will talk about those framework agreements on education and on land management. These initiatives were brought forward by First Nations. The framework agreements were negotiated with the government. They are enabling in the sense that they provide an opportunity for those First Nations that want to take up governance in those areas. I think they work. I also think they are collateral attacks on the Indian Act, because when you get under a framework agreement and a First Nation takes up that opportunity, chunks of the Indian Act to longer apply to them. It is an erosion rather than a change but, on many fronts, that is where First Nations are going.
If you look at the Nisga'a treaty, all of their self-government is covered in the treaty. The Indian Act is irrelevant to them, and it is the same in the Yukon under the umbrella agreement.
Senator Dyck: You just mentioned treaties. I am from Saskatchewan, where we have the numbered treaties. In Saskatchewan, most if not all First Nations are very much in favour of the treaty process. In fact, through the treaty land entitlement process, we have been able to secure lands in various regions of the province that have contributed to the economic well-being of our people.
Since the treaties were negotiated during roughly the same time frame as the Indian Act, how do you view the treaties in relationship to the Indian Act? Do you see the treaties as an essential tool through which First Nations people can gain equality within Canada to be equal but different than other Canadians?
Mr. Henderson: Historically, treaty First Nations in the Prairies were seen as being outside the Indian Act. Many of the provisions of the Indian Act were not extended across the Prairies until much later and some provisions were still applied in the Prairies when they were not applied elsewhere. There has been a historical separation.
The difficulty with the numbered treaties is that no one is negotiating or renegotiating treaties in the Prairies. This is distinct from negotiating treaties in British Columbia where these matters of governance are being addressed. The numbered treaties are similar in most respects, but not identical. I think some kind of renovation, re-visitation or new arrangement is possibly necessary to achieve First Nation goals with respect to the treaties. The exception to that is the extent to which these can be brought under section 35 where you have a new vision of treaties and, perhaps, can achieve those goals essentially through consensus on what section 35 includes. The litigation will be a slow and painful process.
Senator Dyck: If I understand you correctly, you are suggesting that the treaties be renegotiated. The treaties would be amended rather than amending the Indian Act.
Mr. Henderson: The Indian Act does not draw a clear line between the recognition of treaty rights. If the Indian Act disappeared tomorrow, the treaties would not. However, the treaties are not detailed in their description of First Nations governance.
Senator Dyck: It is an odd relationship. Although the Indian Act does not cover the treaties, in order to negotiate or obtain the benefits of the treaties, we deal with the Department of Indian Affairs. Is there any process that can supersede that relationship rather than dealing with Indian Affairs?
Mr. Henderson: Certainly, it is within the jurisdiction of Parliament to assign responsibilities for these matters to someone other than the Department of Indian Affairs. A more efficacious way or body to deal with these matters would not necessarily involve the Department of Indian affairs.
I commented earlier that the relationship between the treaties and the Indian Act is not a perfect one. If we are looking at governance or membership, one does not answer the other. Work needs to be done somewhere, recognition given under section 35 or consensus reached regarding the treaty relationship to ensure that the original spirit and content is captured and brought into play. The First Nations see treaties as a continuing relationship and one that does require review and renovation from time to time.
From what you are saying, I suspect that you do not see that happening. I do not.
Senator Dyck: I am not sure what will happen. It is a bit of a quandary. I am simply trying to elicit advice on how to proceed.
Mr. Henderson: I am sorry. I do not see it happening now. Whether it can happen is a separate question.
Senator Watt: To continue on Senator Dyck's point, we have tried a number of different possibilities. When opportunities have come around over the years, we have tried to have the rights of the original people enshrined in the Constitution. We have that now. We have some modern treaties across the country and we also have the old numbered treaties.
What do you think is missing within the system to address the seriousness of the issue before us? Aboriginal people need to be dealt with and we need solutions to the problems we have now. What mechanics are missing from the system?
We can take a case to court and fight it out in the court. However, a lot of Aboriginal people do not have the money to challenge the government, even on the implementation issue. It seems that there is already a lack of interest expressed on the government side to implement those modern treaties, especially in the areas of federal jurisdiction.
I am from Quebec. We have an agreement with the Government of Canada and with the Government of Quebec. Specific issues contemplated within the agreement under the jurisdiction of the Province of Quebec can move forward. I cannot say the same thing when you shift over to federal jurisdiction where issues are not moving smoothly. The Government of Canada is reluctant to implement or even acknowledge that they have to be part of the implementation of those agreements.
For example, Nunavut has taken the Government of Canada to court. There will be more groups across the country challenging the Government of Canada on the lack of implementation.
That is also connected to the question of consultations. When do the consultations end? Many people are asking these questions. They assume when they have an agreement — a treaty — that real consultations will begin. According to government policy, it seems that there is a certain amount of give-and-take that must occur at the implementation stage.
For example, if you are in the North, the economy is based on renewable resources and what can be harvested. Those are the only things they have to rely on. Then, laws are imposed on various regions stating that they cannot do this anymore or they cannot hunt a particular species. It is their economy.
There must be some kind of give-and-take at the implementation stage. This is not fully appreciated by the Government of Canada because it already has what it wants. The government achieved a willingness on the part of Aboriginal peoples not to assert their rights.
Two things are missing. First, another piece of legislation must be passed to recognize that constitutional rights do exist, such as those expressed in section 35, as a "full-box theory," not an "empty-box theory." This is how Aboriginal people across the country describe it, "a full-box theory." There must be a table around which the parties can sit down and deal with it. Second, implementation mechanisms must also be put in place.
What is your opinion on this?
Mr. Henderson: I could not agree more in terms of implementation. I wish I had a mechanism parked in the lobby that I could wheel into the room. I do not. What has been lacking historically, and is still today, is respect. You respect the people with whom you make an agreement and you respect the agreement, but that does not happen. Many agreements are being starved for want of respect for the agreement itself. It is gratifying for a lawyer to read through court cases that talk about the "honour of the Crown," but the honour of the Crown is not a sword or a shield; it is a nice phrase.
It might take implementation legislation, an ombudsman or a panel to monitor and ensure implementation. Then, the situation will be much better and many other options will open up because First Nations will deal with people they trust.
Senator Watt: We need the enforceability as well.
Mr. Henderson: Yes.
Senator Raine: I might be opening a can of worms with my question but, on the question of band membership, does anything in the Indian Act require a band to include any specifics in their membership code?
The 6(2) category limits the number of people who would like to have status and cannot for some reason. If a band decides to limit its membership, is it allowed under the Charter of Rights?
Mr. Henderson: Senator, the concept of a membership code originated in 1958 with Bill C-31, which made it possible for First Nations, in particular within the first two years, to restrict membership especially of 6(2) people who were just being reinstated. Many First Nations put in membership codes during that two-year period. The option is still there but the opportunities for restriction are not there to the same extent. Most of the communities that I have dealt with did not exclude category 6(2) people. I am sure that some communities did so but not the ones with which I am familiar. Yes, some provisions in the Indian Act restrict who can be excluded. They are not sweeping and deal in large measure with the people who were being reinstated during the transitional period. By and large, First Nations with a membership code can be restrictive if they choose to do so and still be legal and constitutional. However, in light of the discussions that we have had on other aspects today, they might be short-sighted because they can restrict themselves right out of being a band for want of members.
The Chair: I have a brief comment. Mr. Henderson, you cited Bill C-49, the First Nations Land Management Act, and the education bills pending in British Columbia and New Brunswick. This is basically the initial step in the devolution of the Indian Act, to a degree. This process is time-consuming and does not meet with the youthfulness of our First Nations if we wait for these processes to take place. We have other pieces of legislation, such as the First Nations Fiscal and Statistical Management Act and various taxation acts.
Have you any insight or could you project your thinking to us on how we could accelerate the education process so that we could devolve from this archaic Indian Act?
Mr. Henderson: Under the First Nations Land Management Agreement, you can provide the resources to open it up to the First Nations lining up to sign that agreement and provide the relevant resources. That will make things happen much faster. Money is not the answer to everything but it certainly is the answer to some things. The lack of money is the response to many of the complaints.
The strength of those approaches by way of framework agreement is slow because First Nations get used to the idea. They negotiate the agreement in the first instance and get used to the possibilities of what it might offer them. They take their time making the decision whether it suits them. When that decision is made, the agreements are highly effective and provide alternatives. They are not the only alternative but rather sectoral alternatives. Treaties and government negotiations tend to go the other way but they are painfully slow as well. The temptation is always there to swoop down with a piece of legislation that is deemed appropriate for all First Nations for all purposes. If I look back on the history, the reports, the experiences and the disappointments on both sides, I have to say that approach does not necessarily work. It is an area where angels might well fear to tread.
The Chair: Mr. Henderson, you have opened up the questions on educational aspects and other challenges. We appreciate your candid and straightforward approach. Your testimony has been informative and helpful to the committee. I appreciate your taking the time to be with us. I thank senators for their excellent questions.
We will adjourn and go in camera for a brief moment.
(The committee continued in camera.)