Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 23 - Evidence - September 28, 2012
EDMONTON, Friday, September 28, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 9 a.m. to examine and report on the legal and political recognition of Metis identity in Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples; they could be watching on CPAC or they could quite possibly be with us here today.
I am Gerry St. Germain from British Columbia, originally from the province of Manitoba, and I have the honour of chairing this committee. We are very happy to embark on a series of hearings and fact finding that takes us out of Ottawa to meet with Canadians from Manitoba, Saskatchewan, Alberta, British Columbia and the Northwest Territories. We are travelling as part of a study on Metis identity, and we are very impressed with the amount of engagement in the Metis community and appreciative of your efforts to attend to testify before us today.
The mandate of this committee is to examine legislation matters relating to the Aboriginal peoples of Canada generally, and today we will continue to explore Metis issues, particularly those relating to the evolving legal and political recognition of the collective identity and the rights of Metis in Canada.
Members of the committee who are present today, on my right, are Senator Salma Ataullahjan from Ontario and Senator Dyck from Saskatchewan, and, on my left, Senator Greene Raine from British Columbia and Senator Sibbeston from the Northwest Territories. Senator Dyck is also the deputy chair of our committee.
Members of the committee, before I do anything, I require a motion to permit television coverage. Do I have a motion? Senator Dyck? All those in favour? Opposed if any? Carried unanimously.
Please help me in welcoming our first panel of witnesses: from the Métis Nation of Alberta, Aaron Barner, Senior Executive Officer; and from Rupertsland Institute, Lorne Gladu, Chief Executive Officer. Good morning and welcome.
Witnesses, we look forward to your presentation, which will be followed by questions from senators as we proceed.
We are examining the identity, enumeration and registration of Metis people tied in to their rights, the rights they have as a result of section 35 of the Constitution, and have they got harvesting rights. There are various questions.
I will start with you, Mr. Barner, if you are prepared to proceed. I would urge you to be as concise as possible so that we have time for questions from senators.
Aaron Barner, Senior Executive Officer, Métis Nation of Alberta: Mr. Chair, honourable senators, I would like to thank you for giving me the opportunity to present before you this morning.
My name is Aaron Barner. As you mentioned, I am the senior executive officer of the Métis Nation of Alberta, MNA. I am also a proud Metis citizen of Alberta. I am pleased to have with me Lorne Gladu from MNA affiliate Rupertsland Institute.
I will begin by giving a little bit of history on the MNA. The MNA was established 1928 and at that time was called the Métis Association of Alberta. However, Metis were present in the area now called Alberta by the late 18th century.
The province has a rich history of historical Metis communities, such as Lac La Biche, St. Albert and St. Paul des Metis. These are only a few. Today these communities are still in existence and operate as modern-day municipalities. They are not just specific to Metis any more.
In 1938, the Métis Association of Alberta and the Government of Alberta came together to establish a land base specifically for Metis, a strategy undertaken at the time to alleviate Metis poverty. Alberta is the only province in Canada where Metis have a land base recognized under provincial legislation. There are currently 8,000 Metis settlement members divided fairly proportionately among the 18 Metis settlements in the province.
According to Statistics Canada, the Metis population of Alberta doubled between 1996 and 2006. In 2006, there were 85,000 Metis in the province, yet we believe there are well over 100,000 Metis in the province today.
Generally speaking, Metis tend to reside in urban areas, again back to 2006 Census data as this is the only census data we have available. There are just under 30,000 in the city of Edmonton, making up 55 per cent of Edmonton's total Aboriginal population.
The 2006 Statistics Canada Aboriginal Peoples Survey also told us that 56 per cent of the Metis living in the Edmonton area have been diagnosed by a health care professional as having at least one chronic health care condition.
The MNA is the government of the Metis people in this province. The MNA is governed by a 14-member provincial council that is democratically elected by membership through a province-wide ballot box election.
The 14 members of provincial council are made up of a provincial president and vice-president as well as a president and vice-president from each of the six MNA province-wide regions. The MNA has a head office located in Edmonton, Alberta, as well as six regional offices. The mandate of the Métis Nation of Alberta is to be a representative voice on behalf of the Metis people in Alberta, to provide Metis people an opportunity to participate in government's policy and decision-making process and most importantly to promote and facilitate the advancement of Metis people through the pursuit of self-reliance, self-determination and self-management.
The MNA provincial council is accountable to the Metis citizens through an annual general assembly. The general assembly is the legislative authority of the Metis Nation and is responsible for approving our financial statements, any proposed changes to our bylaws and any other major policy enactments.
The MNA has developed our own objectively verifiable system of registering Metis citizens and currently has 45,000 individuals on our membership list. In 2004, the MNA adopted the Métis National Council's definition of Metis, which is spelled out in our bylaws and is consistent with the Powley decision in 2003.
Since 2004, or post Powley, the MNA registry department has issued over 22,000 registry numbers to Metis citizens and fielded well over 100,000 registry-related inquiries.
We also have two genealogists on staff and have set up our own genealogy research centre at our head office to assist Metis individuals with the registry process.
The MNA delivers services to Metis in the province through a number of wholly owned affiliates. Generally speaking, the MNA incubates community programs until they are strong enough to become standalone institutions.
Of course, all these institutions are wholly owned by the MNA and report back to the MNA through MNA provincial council or portfolios, annual general meetings as well as MNA regional or provincial council representation on their governing boards.
I am not going to get into the mandate on education, training and research, as Lorne Gladu is with us today and he can explain that a little bit.
Under housing, the MNA delivers services through Métis Urban Housing and its sister company, Metis Capital Housing. We currently have a housing portfolio of approximately 850 homes across the province.
Most recently, our housing company has been recognized with an international award for its latest housing project, the Boyle Street Renaissance, which is a state-of-the-art 90-unit building being constructed in downtown Edmonton for Aboriginal seniors and the disabled.
The MNA also provides commercial financing and business supports to our lending institution, Apeetogosan. The MNA also has a large 512-acre cultural site called Métis Crossing that hosts annual cultural events, school tours, zip lining and has a campground.
The MNA continues to uphold that Metis have the right to harvest in the Province of Alberta. In 2004, on the heels of the Powley decision, the Government of Alberta entered into an interim harvesting agreement with the MNA that recognized the Metis right to harvest on crown land throughout the province. However, in 2007, the Government of Alberta rescinded this agreement, and as such, the MNA has no option but to take our position to the courts in our hunt for justice. The MNA feels that the Government of Alberta has not meaningfully implemented the Powley decision in Alberta. The Alberta Court of Appeal has now set February 7 of next year to begin hearing arguments in the Hirsekorn case. This will be our first opportunity for the Alberta Court of Appeal to consider how the Powley decision should be implemented in Alberta.
However, while this case builds off recent court decisions such as Powley, Laviolette, Belhumeur and Goodon, our case is different. It is not just about one or a few Metis harvesters. It is about the harvesting rights of all Metis in the province.
It is also different because we are not focusing on the region in around where a harvester was charged. Our case is addressing the broader issue of the Metis right to harvest on a province-wide basis.
As you can see, the MNA as the government of the Metis people remains committed to pushing for the Metis rights agenda in this province. The MNA provincial council assumes an important role and has a responsibility to its citizens not only to protect but also to advance Metis rights. This notion and the hunt for justice, as I previously mentioned, is based on direction from MNA members at the 2007 annual general assembly to defend Metis harvesters and to ensure that the right to harvest on a province-wide basis is once again recognized in Alberta.
The Metis people of this province also face a similar situation when it comes to the crown's duty to consult and accommodate Aboriginal people. The MNA agrees with the Supreme Court assertion that the crown must act honourably and must consult whenever a decision may impact an asserted Aboriginal right.
However, you happen to be in a province today where the provincial government has largely ignored its duty to consult the Metis. This is evident by the fact that the Government of Alberta has a First Nations consultation policy but no Metis consultation policy.
We believe this is a blatant tiering of Aboriginal rights in the face of the fact that Metis are recognized in the Canadian Constitution as one of Canada's three Aboriginal peoples.
In response to this, the MNA has had no other option than to create our own consultation and accommodation policy. This policy was approved unanimously by the MNA annual general assembly in 2010.
The policy asserts that the government of the Metis in the Province of Alberta is the MNA and that the MNA will provide a one-window approach to consultation to ensure that industry is dealing with the appropriate affected Metis parties.
The MNA believes that the federal government also has a responsibility to the MNA when it comes to consultation. On federally regulated projects, the federal government often tells proponents that they should consult with the Metis.
It is our position that if the federal government is pointing industry toward consulting with the MNA, the federal government also has a responsibility to ensure that the MNA has the capacity to respond in a meaningful way.
Currently, the MNA has no staff position directly focused on the issue of consultation and accommodation because, unlike First Nations, government does not provide us with any funding to support a consultation process.
When we discuss the idea of Metis identity, we need to have an understanding of the contemporary realities that Metis people face. The Province of Alberta's unemployment rate in August was a low 4.4 per cent. However, the unemployment rate for Metis was just a shade under 10 per cent.
Non-Aboriginal individuals are three times more likely than a Metis person to have a university degree and three and a half times more likely to have a master's degree. However, the few Metis individuals who have an educational attainment of a bachelor's degree or higher earn a 1 per cent higher income than non-Aboriginals with the same educational attainment.
While this may not seem like much, it is a huge step up from the overall reality that Metis people face when it comes to earning potential. On average, a Metis person working full-time in this country makes 20 per cent less annually than a non-Aboriginal working full-time.
I believe that the closing of the income gap at the bachelor's degree level and higher is an excellent example of what can happen when the Metis Nation and the federal government work together toward supports for Metis students.
As you may or may not know, through the Aboriginal Skills Employment and Training Strategy, or ASETS, under HRSDC and past strategies such as the Aboriginal Human Resources Development Agreement, Metis organizations are able to provide books, tuition and living allowance to Metis individuals in their final year of full-time study in a four-year bachelor's degree program.
Although the Metis in Alberta, like every other Aboriginal group in the country, have an ASETS agreement, we have also created endowments at various post-secondary institutions that Lorne Gladu will probably be talking about a little later on, but more needs to be done. As you can see, the ASETS program is quite restrictive by allowing support only for the final year of university.
We believe that Metis should have access to more education funding by either including us in the educational programs the federal government affords to First Nations and Inuit or the creation of a type of program that is less restrictive than ASETS and with enough financial resources to support Metis students at any stage of their educational journey.
Further, given the inequities that Metis people face in the general earning of income, the federal government should also look at relieving the burden of those Metis who have completed post-secondary and have student loans. Metis individuals should be able to apply for student loan relief or some type of debt forgiveness program until such time as the earning potential of Metis is on par with the rest of Canada.
As I am sure all the individuals who have presented to this committee before me have stated, Metis are taxpayers. I believe there is a trajectory with a return on investment to the Government of Canada and the MNA that will eventually lead us to an end point where the earning gap can and will be closed for Metis individuals in Canada.
To back this point up, a 2009 study by the Canadian Centre for the Study of Living Standards points out that closing the socio-economic gap for Metis would have a fiscal impact to the government of $115 billion over a 20-year period.
In my opinion, this is the opportunity cost if the provincial and federal governments do not improve their government-to-government relationships with the MNA and the four other governing members of the Métis National Council.
Health and well-being are the cornerstones of prosperous communities. This fall, the MNA will be releasing a report on the health status of the Metis population of Alberta. This is the first chronic disease report produced relying on objectively verifiable Métis Nation of Alberta registry population numbers and Alberta Health records.
As predicted, the evidence in the report indicates that Metis tend to be worse off in many areas compared to non- Aboriginal populations. For instance, the prevalence of diabetes is 68 per cent higher. The rates of heart disease and stroke are 49 per cent and 34 per cent higher respectively. Metis also experience higher rates in the prevalence of hypertension at 32 per cent higher, injury at 16 per cent higher, respiratory illness at 23 per cent higher, and mood and neurotic disorders at 22 per cent and 34 per cent higher respectively.
The implications of these findings are significant as poor conditions equate to an increasingly unhealthy population, literacy problems and decreased school retention rates. The culmination of these factors tends to exacerbate other social indicators — as mentioned before, earning potential. Bridges need to be built and strategies developed to meaningfully address the realities of Metis in Alberta. Metis must be on the radar for the federal government. It is not acceptable that Metis are excluded from federal government initiatives that target Aboriginal health.
Today the MNA was afforded the opportunity to propose evidence needed to begin to develop culturally appropriate solutions that recognize the rights of Metis people as privileged under the Canadian Constitution.
I once read that the population growth of the Metis Nation is like a cultural tsunami. Well, as the senior executive officer for the Métis Nation of Alberta, I can tell you that the MNA feels like a tiny little village that is about to be engulfed by that tsunami.
We need more resources and we need them now. We do not need them tomorrow or in 10 years, and we do not need any promises. What we need is action.
We just received word that our federal government core funding will be reduced by 10 per cent in the coming years. This is a reduction of approximately $46,000, which means I will likely have to reduce my staffing component by one to one and a half people.
My final request to this committee is to do whatever you can to mitigate forthcoming cutbacks to Aboriginal organizations in Canada. Not only are we under immense fiscal pressures due to the rising cost of conducting our operations, but the number of people we are mandated to serve is growing at an unprecedented pace.
Our people pay tax in this country and we need a fair share of that revenue to make sure that we can adequately meet the needs of our community.
Thank you for your time, and I welcome any questions at the completion of Lorne Gladu's presentation.
Lorne Gladu, Chief Executive Officer, Rupertsland Institute: Good morning. I am Lorne Gladu. I am the chief executive officer of Rupertsland Institute, Metis Centre of Excellence.
We are the most recent affiliate created by the Métis Nation of Alberta in 2010. We are structured as a non-profit company under the Alberta Companies Act as a section 9 company, and we are wholly owned 100 per cent with the Métis Nation of Alberta as our sole shareholder.
The committee, from what I understand, has already heard about the constructs of Metis identity from the national and provincial presidents of the Metis Nation, Métis National Council and so on. Specifically, you have already spoken to our president, from what I understand, and of course, today you heard from my colleague at the Métis Nation of Alberta.
To that extent, I do not really have any further information to add or to reiterate any information provided earlier by those witnesses before the committee. I would, however, like to speak to one of the committee's mandates with respect to programs and services.
To that extent, of course, the Rupertsland Institute is an organization that has been created by the Métis Nation of Alberta to provide a range of services under education, training and research to our Metis community.
When we are dealing with clients and the client base, that is, the students who come forward to access our services and the clients who come forward to access training services, the question of identity often comes into play, and I would like to explain essentially what that means. However, before I go into that, I would like to give you a brief introduction to Rupertsland Institute and its mandates.
We have a mandate on education. Essentially we started off with a mandate under post-secondary education when we were created in 2010. However, more recently, on April 1 of this year, we were granted an enlarged mandate to include K to 12 activity under our portfolio.
In addition to that, we have been conducting, of course, training exercises under the national strategies of the Aboriginal Human Resources Development Strategy going back to 1996 where we had the regional bilateral agreements in place followed by Aboriginal strategy number 1, number 2 from 1999 to 2010, and a more recent strategy, which is the Aboriginal Skills and Employment Training Strategy, which has been in place since October 2010.
Under that strategy, the strategy where funding is provided under Human Resources Development Canada, which forms the bulk of our funding, we provide services to the 85,000-plus Metis who currently reside in the province, and to that extent, we have a number of individuals who access our employment services, which are located throughout the province. We provide funding I think to about 800 students, give or take 50 students per year, on an annual basis.
As far as our mandate goes with respect to research, in 2007, we formed a memorandum of understanding with the University of Alberta. We had a keen interest to pursue a research mandate, first of all, not only with our provincial council but also, in order to do that, we had to ensure we had a partnership with a post-secondary institution that has a renowned history of vigorous academic research, and to that extent, the University of Alberta was very interested in pursuing a relationship with us. As part of that MOU, we created the potential for looking at not only creating a Metis centre of excellence, which is what we are today, but also developing an academic centre of sorts under which Metis research specifically garnered for the Metis community would be undertaken at an academic institution like the university.
What we have at the university ultimately, having gone through their governance process, which, by the way, took a four-year period, is the Rupertsland Centre for Metis Research. It is governed by a 10-member executive council. Six of those individuals on that council are appointed by the University of Alberta, and four individuals are appointed by the Rupertsland Institute, two of whom, of course, include our chair and the CEO, which is myself.
We are also appointing two other individuals to that research council. The research council will provide guidance to a director of research for the Rupertsland Centre for Metis Research.
That director has been appointed by the University of Alberta, and we have a professor actually from the Faculty of Native Studies who has been committed on a half-time basis to provide oversight over the Rupertsland Centre for Metis Research.
To that extent, the Alberta government, Alberta Advanced Education, has been very interested in supporting this endeavour and has provided certain funds to ensure that the administrative aspects of the Rupertsland Centre are carried out.
In that regard, we have I believe it is a three-year funding commitment from the Alberta government not only to set up the administrative aspects of the Rupertsland Centre For Metis Research but also to begin carrying out its functions, which would include accessing federal grants under the social sciences human resource funding, which would allow these kinds of things to occur in terms of research.
When it comes to our programs and services, Metis identity comes into play under two different areas that I would like to speak about. Essentially, we have a national funding formula that is called the National Aboriginal Resource Allocation Model, NARAM — you may have heard about it from other presentations — which is based on Aboriginal population numbers, essentially in this case nine socio-economic indicators.
Subsequently, from that, when the Metis identity comes into play, under program access when our clients begin to approach our services and begin to ask for access to training and training to employment services, to that extent, our criteria requires that these individuals self-declare their Metis identity, and of course, in order to get access to services, this is key to accessing our programs and services.
The challenge with that is that this national funding formula, the NARAM, is based on 1996 Census data. The statistics from the 1996 Census data feed into the nine socio-economic indicators, and of course, despite the fact that 2001 Census data has been available and 2006 data has been available for obviously at least the last 10 years, today the national allocation model continues to remain based on 1996 Census data, despite the fact that there has been a 43 per cent increase in Metis population dating back from — I believe it was about 204,000 Metis in the province to 292,000 Metis individuals who declared Metis identity in 2001.
Under this population increase, and like any other province, Alberta, of course, has had its own population increases. As you probably know, Alberta as a province holds the largest Metis population in the country. Therefore, when it comes to national funding formulas of any kind, it stands to gain the most, I suppose, when it comes to resource allocations.
If you are to apply 2001 to 2006 Census data to a national allocation model, for example, the funding increase to Alberta Metis specifically would have been anywhere up to $1 million on an annual basis dating back to 2005, 2004, 2006.
In any event, ultimately, the policy decisions were made, and I do not know if there were any political decisions involved in that, but the thing is that 1996 Census data continues to remain the model used for funding distribution.
We were prepared to move forward with 2001. When we were doing our negotiations with Human Resources and Skills Development Canada, we of course were putting forward positions that 2001-06 Census data should be applied, and let the chips fall where they may in terms of resource allocations to not only provinces but specifically to Alberta Metis in this case.
As you know, the census identifies, classifies, manages, categorizes citizens in this country, and I would like to borrow a quote from one of our colleagues over at the University of Alberta who has done some studies on this. In one of his papers, he states that its power as a preeminent scientific tool not only normalizes the Canadian state's imaginations of what a Metis person is but it brings forward population numbers that are highly contested by political organizations like our national representative organizations and regional political organizations, and therefore, as a result, can be destructive in terms of the final outcomes.
In this case, of course, we failed to realize what could have been the final outcomes of the 2001 Census data when it came to resource allocations to the Alberta Metis from 2006 onwards.
Another area where we have a challenge is where our clients come forward to access our services. We have 10 Metis employment services located throughout the province. Certainly, to that extent, a large portion of those individuals approach our employment services in the City of Edmonton where we have the largest Metis population in Canada.
Clients are asked to self-identify as a Metis, and of course, we have nothing really to go on other than their word, and to provide those services. We ask questions relating to genealogy. Generally speaking, a client-employment counsellor relationship will consist of a client being asked to explain to some degree their genealogical background and so on.
However, quite often, as you know, Metis individuals across the country are essentially 50 shades of grey, and sometimes it can be quite difficult to really nail down when an individual is sitting in front of you and you do not know for sure whether that individual is a Metis by their physical appearance. They could be non-Aboriginal as far as that goes or they could be First Nation, and because we have a current policy where self-identity simply is all you need to gain access to our services, that poses a bit of a challenge.
At the moment, as I said a moment ago, we do provide services for 800 individuals. These are the people who are actually funded to attend college or university or access anywhere up to 52 weeks of skill development kinds of training.
In addition to that, we have a number of endowments that we have established throughout the province. At this point, we have nine endowments in place, and I know I did not really get into the endowments thing like my colleague was suggesting I would. Maybe I will explain that briefly as part of our relationships with post-secondary institutions in the province.
Up to now, we have set up nine endowments within the province, and this is done largely through the ASETS funds, the Aboriginal Skills Employment Training Strategy funds that we receive from HRSDC.
In order for us to do that, it was not something that we came by quite easily. There were a number of things that occurred over the years of the Aboriginal Human Resources Development Strategy. It took some time for the federal government, in this case HRSDC, to agree first of all to even allow us to spend federal funds on provincial jurisdiction education.
What that meant is that about 10 or 12 years ago, the federal government, or in this case the department, decided that they would allow us to fund the final year of college or university and would just simply look the other way if we did that.
We wanted them to actually formalize that kind of thing to the point where we were requesting a clause in our agreement that would allow us to actually do that and be quite open about it, which ultimately we got. At that point, we were able to come forward to our community to announce that we have access to a certain amount of funds we could set aside for post-secondary access, generally speaking the final year of college or university.
Of course, we have students who are attending college or university in their first or second or third year. Those individuals are still coming forward and asking for assistance, and we could not really help them with the federal training funds, so we negotiated with HRSDC to allow us to have a clause in our agreement that would allow us to create endowments.
Having received that clause, it was — and essentially, out of 79 agreements like ours across the country, there are only five agreements out of 79 that actually got this clause. In fact, HRSDC refers to this clause as the Metis clause.
What that means is that our five-member governing institutions across the country were given the opportunity to develop endowments with federal funds, with post-secondary institutions, and to that extent, in our area, in Alberta, we went forward and started approaching institutions. In this case the first institution we approached was MacEwan University here in Edmonton. The general objective there was to seek matching funds, dollar for dollar. MacEwan University, and I will make a long story short, ultimately agreed that they would take our funds forward to the provincial government where the Access to the Future Fund exists, which is a $1-billion fund established by the Alberta government specifically for post-secondary access.
What that means is that only post-secondary institutions have access to this fund, so by creating partnerships with the post-secondary institutions that have the access to that fund and bringing forward our own money to these institutions, they take that money forward and get it matched at the provincial level.
For our first endowment, we brought forward $1 million with MacEwan University. They took that forward and got it matched for $1 million from the Access to the Future Fund, and from there, having had the experience of doing that kind of thing, we went forward from there on and started to create relationships with some of the other, larger post-secondary institutions, which includes the University of Alberta, where we now have a $4-million endowment established specifically for Metis students. We did this with another seven institutions. We started doing this in 2008, and as late as right now, we are currently working with the University of Calgary. We are about to make another endowment announcement there, at which point we will have nine endowments in place for a total of $14 million where we brought forward $7 million and they took the money forward and had it matched for a total of $7 million.
Our objective, of course, is to reach out to the remaining post-secondary institutions in the province. There are 26 post-secondary institutions in Alberta. Certainly we will reach out as much as we can to all the large ones. I think we have already done that. We will certainly reach out to some of the smaller institutions, including the polytechnic institutions like SAIT in the south because we already have NAIT in the north.
Ultimately, by 2015 our objective is to have a total of $20 million in endowments in place for Metis students. Of course, once again going back to the identity question, when we are distributing the bursaries and awards that come from these endowments, students who approach student services at these institutions are required to identify as a Metis individual, and of course, the selection committees that are in place to provide that service and those bursaries have their own challenges in terms of dealing with the student individuals who approach these bursaries and awards for access.
I will leave it at that for now. I understand that the Senate has some questions, and I would like at this point to stop there and answer any questions along with my colleague. Thank you.
The Chair: Thank you, gentlemen, for your presentations. I think the first single step is identity. If you cannot identify, it is problematic.
Senator Dyck: Thank you for your presentations this morning. You were both very informative, and it is hard to know where to start, so I will start first of all with there clearly are different definitions of who a Metis is depending on whether it is the ASETS program or whether it is someone trying to get into post-secondary education. I must commend you on your initiatives with respect to getting endowment funds for post-secondary education. If I were a student and I wanted to access those funds and I came to the appropriate person and self-identified as a Metis, would that be all I would need to do to get those post-secondary funds, or would I also need to show a Métis Nation of Alberta card? What is in place now, and is what is in place now adequate, or should it be more stringent, or what definition should be there?
Mr. Gladu: Thank you for that question. First of all, yes, the individuals who approach our post-secondary institutions for those endowment awards are required to identify as Metis.
With each endowment, we have a term of reference in place. As well, the endowment agreement itself clearly specifies the requirement to show that this individual has some connection to the Metis community, so they are generally required — because they are not all the same. With each institution where we have negotiated an endowment, the institution, of course, has a huge role to play in the final outcome of that endowment agreement.
By and large, they are quite similar, but at the same time, there are some differences. To that extent, individuals are required generally speaking to show some connection outside of just simply identifying as Metis, and what I mean by that is they are required to provide or submit in writing an essay of sorts to outline what their connection is to the Metis community. By and large, I think the selection committees that are in place essentially have to go on that information.
As far as can we go beyond that in terms of MNA card membership, I think that is what you were asking as well. Well, because these are federal funds, HRSDC does not allow us to request membership. What that means is that essentially, under the federal program, just self-identification as a Metis individual in terms of HRSDC agreements is essentially all that you need to access our services.
We go one step further at the program level where our service staff, employment counsellors and those who are dealing with front-line individuals who are coming in through the door, as part of the employment counselling process, will generally ask questions such as please tell me about your family, where you come from, that kind of thing.
Generally from that you can tell, because the Metis community really is quite small when you look at it, and by and large, you usually can tell, when they start telling you where their family is, where they are from, their original roots and so on, whether or not this person is a Metis individual.
Senator Dyck: I am curious. You say that because this is a federal program, you have to use whatever is in the agreement, and that agreement is between the federal government and whom? Let us say the ASETS program would be an agreement with the federal government and whom?
Mr. Gladu: Well, up until October 2010, historically going back to the first agreement in May of 1996, the agreement was always signed with the Métis Nation of Alberta. But now that they have created the Rupertsland Institute, they have also delegated the Rupertsland Institute as a signatory to that agreement, and to that extent, the same parameters and criteria apply.
Senator Dyck: Is there any way that the criteria for identification as Metis can be changed in the future, or are you limited to keep using the idea of self-identification? It sounds like you are actually applying other criteria that are not spelled out directly, and I wonder if you might be open to challenges. We heard in Saskatchewan that people are coming forward and saying they are Metis but they are not really Metis; there is no link to the community. Some of those people are actually saying if you do not accept them, they are going to put in a human rights complaint.
The identity question can be challenged by the applicant unless it is clearly spelled out somewhere.
Mr. Gladu: Up to now, we rarely have challenges with respect to the identity question. By and large, any challenge that we may have with respect to application during the application process usually results from things other than identity.
In fact, of all the clients that we fund on an annual basis, and I did mention we fund 800 individuals, give or take 50, the number of times we actually have challenges with respect to an appeal, as an example, under an application that has been declined is about less than 1 per cent of our total clients. In fact, last year, we had I think two appeals out of 811 clients that were funded.
The Chair: What is the appeal process? Who adjudicates it?
Mr. Gladu: Actually, the appeal process is adjudicated at the senior management level of our program. The individuals who make an appeal are dealing with our employment centre staff, who are regionally based.
We do not deal with clients at the head office of our operation, so the senior management team never actually sees a client. We never actually see individuals who are involved in projects, project development, that kind of stuff.
Any interaction between ourselves and a client application generally is at the appeal level, and as I said, we have very minimal numbers of individuals approach us for an appeal in any event, and even if there is an appeal, by and large, usually that appeal is sometimes resolved at the program service level as opposed to coming to our level for final adjudication.
Appeals have been made in the past where we have ruled in favour of the applicant, and I would say that is about on a 50-50 basis so far. However, the number of appeals that we deal with is so minimal that it does not even warrant a whole lot of discussion usually at the senior management table.
Senator Sibbeston: Mr. Barner, we hear from Metis people in our country that they are basically a landless people. Here in Alberta, there are a number of Metis colonies. I would like to know how significant this is to the lives and the benefit and flourishing of the Metis people.
Mr. Barner: I will probably start, and maybe Lorne might be able to finish with this. He probably has some input as well.
As I mentioned in my presentation, according to recent numbers I have seen, there are about 8,000 Metis settlement members dispersed fairly evenly amongst the eight Metis settlements.
I know back when the settlements were established, they were done so under Premier Aberhart with the idea to alleviate Metis poverty. I know that some of these settlements still today may face some issues that are similar to the larger Metis population with employment and stuff like that, so I am not sure exactly how they are thriving, what their economies are like on settlement. I do not have much experience with that, but maybe Mr. Gladu Lorne might have a couple of points to add to that.
Mr. Gladu: Any recognition of Metis land ownership of any kind, of course, is very significant to the Metis Nation in particular in Alberta, where the Alberta government brought forward 1.25 million acres of land that were set aside for Metis individuals, the population base of which is about 8,000 individuals who reside on settlements.
To that extent, what the Alberta government has done is set, in my view, a perfect example for other provincial governments to follow. If that were the case, and that was something that was negotiated within those jurisdictions, the significance of that, of course, would be the access to the resource base, which is the land itself and the minerals that may reside within that land base with the Metis settlements in the province.
I do not pretend to be an expert at all in this area, and I suppose you are going to be talking to Metis settlements later on today. I hope they can answer that question a lot better than we can, but certainly it leads to opportunities for economic development.
Right now in Alberta we have the major resource development that is occurring throughout the province, and to a large degree, some of the settlements are enjoying the benefits of having access to employment opportunities, contractual opportunities and businesses and so on resulting from major resource development and negotiations that occur.
They have an arrangement with the provincial government where they could share some of the resources, and that is based on — I cannot remember the term now, but the thing is that they can negotiate certain access to those resources, and certainly to that extent, it is a huge benefit to the people who live in those communities.
Senator Sibbeston: I am curious about this. It seems to me that for the survival of any people, land, a home base, is necessary. I know in our history in Canada, there is the history of reserves for the First Nations. Depending on where the reserves are, if they are in an area where there are rich resources or if they are near highways or cities, they have a good chance of benefiting from their locations. Some First Nations have done very well.
However, if you are in a remote area, and there is nothing, then there is a certain amount of apathy. You hear about some of the First Nation reserves in our country that are really suffering from apathy and have a lot of social problems.
In the thinking of the Metis in Alberta, is it part of any of their future plans to extend the land base of the Metis? Is there any thinking like in Israel, the Jews of the world who think their survival and existence depends on their having a homeland at all? Or are Metis people in our country pretty well happy with just living in Edmonton and scattered throughout the province? Is there any thought of a homeland being essential for the survival of the Metis people?
Mr. Barner: It is a tough question, but I think historically, Metis people have considered the historic northwest as their homeland, whether it be in Edmonton or Winnipeg.
There are still some predominantly Metis communities that exist, such as Marlboro and Conklin, that are not considered under provincial legislation as Metis settlements. Like I mentioned, about 30,000 Metis people live in the city of Edmonton, but they may go and practise their rights elsewhere in the province. Their ancestors used to follow the buffalo. Now people may go somewhere else to do their harvesting as well.
Senator Raine: Thank you very much. I have to tell you that the study we are doing is very interesting, and the question of identity is very complex. The more you look into it, the more you realize its complexity. In the end, I think we have to take a look at the question of identity by asking why we are determining an identity for individuals and collective people. What is the purpose of it? When you have entitlement programs and institutions that have, for instance, some seats in a school reserved for Aboriginal Metis people, then the question of who qualifies becomes quite limiting.
Having said that, there is no doubt that if you connect and are accepted into the Metis community, and you feel yourself Metis, even though by a strict criteria, you cannot tick off every box, i.e., perhaps your ancestors did not stop in the Red River Valley on their way out west and so there are no genealogical roots in the Red River area, but you and your family have lived in Metis communities and have been Metis for many generations. You see, if you apply the criteria for what individuals are Metis, you can do some real damage if you are not careful.
Having said that, I think everybody recognizes that the need to have a portable form of identification, i.e., I am a card-carrying Metis member, Metis person, is probably in the end going to be necessary.
I just wonder, at the Rupertsland Institute and also at MNA with your genealogy, are you experiencing problems determining who is a Metis?
Mr. Barner: I think the question of identity is interesting. You brought up a number of excellent points, especially when you talk about the needs of a human being and how identity falls into that.
When I brought up the years 1996 to 2006, that was a really significant time for the Metis Nation. As Mr. Gladu mentioned, 1996 is when we got our first ARDA agreement, our training to employment agreement, and in the first 10 years of that agreement, the self-identification population of Metis in the province doubled. Your needs change. People come back to the community when there is a reason for them to come back.
As for what our genealogical department does and the difficulties we have, I think I can say we have the best genealogy department and the best Metis registry in Canada. I think post Powley, we have done the most number of registrations, issued the most number of registry identifications. It is objectively verifiable, so you can produce the information you need to trace your family roots back.
But you know what? Some people have had difficulty. For example, they may have an issue with even affording a long-form birth certificate, or their baptismal certificate was lost or stuff like that, so we do have those issues. However, by and large, the process that began in 2004 till now has become fairly streamlined, and we do have resources and a research centre in our head office to help people with the registry process.
Senator Raine: Do you think that eventually you will be able to say everybody is now captured on our registry? A lot of work is being done right now. It is a huge amount of effort for everybody, for the families, for the staff, for everybody.
Mr. Barner: Actually, one of the interesting things that kind of came to me, and I am sure maybe other people within the MNA knew this already, but it became very clear to me when we did that health study I was talking about, and Statistics Canada says how young the Metis population is. However, if you look at our registry numbers, it is kind of skewed to the older side because when a child is born, there is no real impetus to have them registered immediately, right? A lot of times what you will find is they will eventually come to the nation when it is time to vote or they might be thinking of going to post-secondary or something like that and they want to go on their own and get their card done.
One of the things that we have is that if somebody in the family has a verifiable tree and they can sign a release, so say if my sister or someone like that wanted to attach to my family tree, I would sign a release she would come in. It would be a little bit of a quicker process than her having to go through all the steps herself.
Senator Raine: Once a family member has done the genealogical work, their descendants then can be connected directly through.
Mr. Barner: They still need to make sure they do their due diligence in verifying all the documents as well, because there are some oddities that can happen. We just want to make sure that everybody in our registry from 2004 onward is truly a Metis citizen.
Senator Raine: Have you in the MNA come across people who claim Metis citizenship, if you like, presenting some kind of a card that is not recognized? Are there cards floating around out there that you would not recognize?
Mr. Barner: Well, the idea is that all the governing members from B.C. to Ontario, the Métis National Council, should be following similar processes in accordance with the historic definition in the Powley test. Yet when they come to our province, we still need to do our due diligence.
There are organizations out there such as the Metis Nation of Canada. I do not know who they are; I do not know who elects them, but I know they do sell cards. To me, that is outside of our thinking.
One issue we do have is with Bill C-31, and part of our registry process is submitting a batch into the AANDC registry department now and just making sure that they are not already on a band list or they are not a registered Indian in Canada.
Mr. Gladu: Could I just supplement his answer a little bit? I believe Mr. Barner mentioned a while back that there are 45,000 registered members at the MNA. If we are looking at 2001 Census data, which states that there are 85,000 Metis individuals in the province, a 45,000 membership at this point represents more than 50 per cent of that total number.
The thing is that the youth in our community, from what the statistics are telling us, roughly 40 per cent of those individuals are under the age of 16 and therefore not eligible to hold MNA membership. That represents 40 per cent of the Metis population; 45,000 represents more than 50 per cent of the population. Therefore, really there is a 10 per cent gap in terms of existing individuals who could be making application to the organization.
I would suggest that that does not necessarily suggest that there is an issue with genealogical findings and so on.
Senator Ataullahjan: We heard briefly about the health of the Metis people, and you gave us some figures. Diabetes is almost of epidemic proportions.
What is the maternal and infant health like? Do you have any figures for that?
Mr. Barner: I do not have it with me and I would not want to just pull something off the top of my head with the fear that I could be giving you some wrong information, but if you would accept some type of written submission later on, I would be happy to give you that data.
Senator Ataullahjan: Is anything being done to educate the Metis people about the incidence of diabetes and heart problems? Are you doing any kind of work to make them aware of that?
Mr. Barner: In the past we had some funding for diabetes. We do not have that funding any further.
As I mentioned, federally, the First Nations and Inuit Health Branch completely excludes Metis. The NAHO program that was doing some research on Metis as well was recently cut completely.
Provincially, we do have some work we are doing with fetal alcohol spectrum disorder, and as well, just building our research here with this report that can hopefully stimulate government to work with us on closing the gap that we face in health outcomes.
Senator Dyck: Mr. Gladu, you mentioned the National Aboriginal Resource Allocation Model funding formula, or something like that, and said there were some problems with it. Is there anything that you would recommend that the committee do with respect to that?
Mr. Gladu: I would like to recommend that the committee insist that the federal government apply 2006 Census data or the most recent census data as it applies to any national funding formula, in this case, to the National Aboriginal Resource Allocation Model.
The Chair: There is one question that has been asked by our researchers. Are the harvester cards triggering an identity crisis within the MNA?
Mr. Barner: The MNA does not — we have a harvesting policy and a harvesting council, but I do not believe we have harvesting cards.
The Chair: You do not have harvester cards? You do not require them?
Mr. Barner: We have our own policy that speaks to who and how we harvest, but we do not have harvesting cards.
The Chair: How do you identify to conservation officers?
Mr. Barner: At MNA, we believe the right to harvest applies to all citizens of the Métis Nation of Alberta.
Mr. Gladu: Individuals who are approached by officers throughout the province when they are harvesting are required to produce MNA membership cards.
Senator Raine: If a Metis who is hunting is approached by a conservation officer and produces his Metis card, would regular hunting regulations also apply to that individual, or can he take more than his share of game, for instance, or hunt out of season and disregard the laws of Alberta?
Mr. Gladu: At this point in time, it is my understanding that the Alberta government does not recognize a harvesting policy that was initially agreed to a few years back by the Alberta government. They have since rescinded that policy where they required Metis individuals who are harvesting to produce MNA membership cards and that would suffice. They have since rescinded that, repealed that decision, and since then, from what I understand, all Metis individuals who are harvesting anywhere in the province have to follow provincial laws with respect to that kind of activity.
The Chair: Thank you, gentlemen, for your presentation.
Colleagues, for our second presentation we will hear from Professor Catherine Bell, an academic. Those are great people.
Catherine Bell, Professor of Law, as an individual: You have made me feel comfortable already.
The Chair: I saw you in the audience nodding your head. You are familiar with the process, and if you will keep your presentation as tight as possible there are a lot of questions that I am sure you will be asked.
Ms. Bell: Thank you, Mr. Chair and members of the committee, for the invitation to speak to you. I apologize it has taken a while for me to get here.
The focus of my comments will be on Canadian law as it applies to Metis legal identity for the purpose of exercising section 35, Aboriginal constitutional rights. However, before I speak to you, I just want to quickly situate myself in relation to the others who have appeared before you.
It is extremely important to say I am not a Metis person or a member of a Metis government or an employee of the federal or the provincial governments, but I have had the opportunity and pleasure of working collaboratively with all of these constituents over the last 25 or 30 years, including the Metis settlements from the time of their origin and negotiation, so I am happy to try to answer questions you may have in that regard.
However, it is important to say I do not speak on behalf of any of these organizations. Also, I have taken the opportunity to read the transcripts of the hearings and I need to say that although my analysis of law as it applies to Metis strongly supports the submissions that were made to you by the Metis Nation of Canada and their various legal and political representatives regarding Metis constitutional rights, we do differ in that my interpretation of section 35(2) of the Constitution Act includes self-identifying Metis communities distinctive from indigenous and European ancestors that may not be able to establish ancestral connection to the historic Metis Nation or its territory.
Some Metis legal scholars, legal counsel and the Metis Nation have respectfully and consistently disagreed with me on this point, but we still shake hands and are friends.
Having said this, the historical foundation of the potential section 35 rights of contemporary self-identifying Metis communities that do not meet the criteria set out in Powley are most likely based in their Inuit and First Nation ancestry rather than their distinctive identity as historical Metis communities. This further complicates issues of identification and rights recognition through federal and provincial programs with some arguing that these groups are not true Metis; rather they are groups of non-status Indians or Inuit despite in some instances of a lengthy socio- political history of self-identifying as Metis people.
Because of the complexity of these issues we are discussing today and the desire to keep the comments short so we can have time for discussion, I am going to identify five key points and then just speak briefly to the second point in light of the interest I heard in this morning's deliberations in relation to the Metis settlements.
I am turning now to page 2 of my brief, where I outline the five points.
The first is that there is a difference between being recognized as Metis in section 35(2), which defines the Aboriginal peoples of Canada, and being a Metis person who has distinctive Metis rights arising from ancestral connection to a distinctive Metis historical and contemporary community. That is, contemporary self-identifying Metis communities may have rights arising from different historical foundations.
Second, in addressing Metis constitutional rights in Alberta, one must consider special legal and equitable obligations that arise in relation to the Metis settlement members and their governments because of the legal effect and ameliorative purpose of the Metis Settlement Accord signed in 1989 and the Metis settlements legislation.
Third, ambiguities in the Powley decision with respect to geographical boundaries for identifying Metis territory, which both Jean Teillet and Jason Madden testified to in regards to this issue, and the existence of an historical community have resulted in vastly different legal interpretations and political responses to the recognition of the existence of section 35 rights-bearing Metis individuals in communities and the geographical scope of Metis Aboriginal rights, and I would add here that perhaps one of the most glaring examples of this is the significant change in the Metis harvesting rights policy in Alberta with the change in government in 2006.
Fourth, narrow construction of Metis Aboriginal rights to harvest in a manner I would argue is inconsistent with the purpose of the inclusion of Metis peoples in section 35 and the spirit of the Powley decision has resulted in their exclusion from or marginal participation in processes aimed at reconciling Aboriginal rights with the interests of other citizens of Canada, including the federal land claims process and consultation, negotiation and accommodation processes directed at potential impact of resource development and other crown activity on existing and credible potential Aboriginal constitutional rights. Participation rights and consultation vary from province to province, with some provinces having Metis consultation policies and others such as Alberta significantly limiting Metis participation.
My fifth and final point is that there is an urgent need for an impartial and independent dispute resolution mechanism to address impasses in negotiations between democratically elected Metis governments such as the Metis Settlements General Council and the Metis Nation of Canada and other representative bodies such as the Congress of Aboriginal Peoples.
With that, I would just like to refer you to page 4 of my brief to make a couple of comments about Alberta's Metis settlements.
In addressing Metis constitutional rights in Alberta, one must consider the special legal and equitable obligations that arise in relation to the Metis settlements. The reasoning for this is laid out in the provincial court decision of R v. Lizotte and receives support from the recent decision of the Supreme Court of Canada in R v. Cunningham and the Manitoba Court of Appeal in the Manitoba Metis Federation case, now on appeal to the Supreme Court of Canada.
I can speak to all these cases and to the details in these cases and how they support these arguments, but I am going to leave it there. I have provided you with a written brief and I understand there may be lots of questions about the five points I have raised.
The Chair: I am going to ask the first question, colleagues. The first of your five points is where you are in conflict with certain individuals.
Ms. Bell: That is correct.
The Chair: Can you tell me, if you are not going to recognize a homeland, if there is a language, a community, a geographical area where a vast majority of these people evolved from, what communities are you thinking of? Are there particular examples that you could give us?
Ms. Bell: Absolutely. There are two examples, but I do want to clarify. I actually do recognize the Metis homeland. I actually do agree with the position that was put forward in Goodon that when we were talking about the Metis Nation, they have distinctive rights as a Metis people in the Constitution.
The point that I am trying to make is that there are now contemporary self-identifying Metis groups who may have identified as such after the imposition of European sovereignty and effective control that do not trace their origins to the Metis Nation.
An example that has been recognized by the courts for the purpose, for example, of the constitutional right to consultation are the Labrador Metis. Now, some would say that they are not truly a Metis people because their origins are to Inuit people who lived in southern Labrador. However, for many years, they have had a contemporary identity as distinctive Metis, and I would argue that they also have constitutional rights, but it is not based in their historical distinctiveness as Metis as one would say for the Metis Nation but in their Inuit ancestry.
The Chair: Are they not the same people who now do not want to be called Metis?
Ms. Bell: They have identified as both, and the Supreme Court of Canada says that as they are working out what the exact nature of their identification is, as long as they can say that they have a credibly "assertable'' Aboriginal rights claim, they are still to be recognized as an Aboriginal people, and that is my point.
My point is that contemporary identifying Metis people may not fit the distinctive Metis criteria.
Another example, let me give you another one, is the Alberta Metis settlements. With the Alberta Metis settlements, what we have is a vast majority of people who can trace their ancestry to the historic Metis Nation. However, among their membership are non-status people who would qualify should they choose to be status again through Bill C-31, but because of the unique history of the ameliorative legislation in the province of Alberta, they are recognized as a statutory Metis people. They do not clearly fall within the definition of Powley. Indeed, some of the lands that were set aside for them were lands that were occupied by Metis who would trace their ancestry to the Metis Nation.
But not all of their lands were selected for that purpose. Some lands were selected because they were good farming lands.
So if we try to strictly apply the Powley criteria to all contemporary identifying Metis groups, it becomes problematic.
Having said that, I strongly support the submissions of the Métis National Council that they have distinctive rights as a Metis people based in their history and their homeland as a distinctive people.
The Chair: I am not going to take issue with you. The only thing is, my understanding was that the Labrador group did not want to be considered Metis, and so that in itself is throwing me off a bit, but we will find out a little more about this.
Ms. Bell: Yes, and sir, I am just referring to what the law is saying about their identity. I am not aware of their testimony before you.
The Chair: Well, that can be very, very fearful.
Ms. Bell: Yes, indeed.
Senator Sibbeston: Ms. Bell, you are steeped in the law relating to Metis people and their rights. Are we moving towards the Metis eventually falling under section 91(24)?
Ms. Bell: The 91(24) issue is a very complicated one, and in fact, the Law Commission of Canada hosted a conference on this question several years ago.
My view is that under section 91(24), there are two heads of jurisdiction. There is jurisdiction over Indians and there is jurisdiction over lands reserved for the Indians.
The federal government has historically restricted their interpretation of their jurisdiction to the land part. The Indian part includes Metis people, if we look at the interpretation of 91(24) including all Aboriginal peoples of Canada.
Now, what has happened historically, however, of course, is the provincial government has practically assumed some of that jurisdiction. So if this matter were to come before the courts today, my view is they would probably find a form of concurrent jurisdiction because of the practical problems that have arisen by way of how the federal government has interpreted their jurisdiction and how the provincial government has had to assume jurisdiction.
However, theoretically, I would agree with the arguments that say that 91(24) includes the Metis.
Senator Dyck: Thank you for your presentation this morning. We have been travelling this week and we were in Saskatchewan I guess it was just yesterday. We heard there of the case of a woman who could trace her ancestry back to Quebec, and because of that link, she was deemed not to be Metis. So you are saying that the Powley decision is maybe too stringent?
Ms. Bell: Yes.
Senator Dyck: Of course, there has to be some stringency. You cannot be too stringent or not stringent enough. In her case, she fell out.
In your view, would her case be included in your definition of Metis, a legal definition?
Ms. Bell: Yes, and what I am trying to say — and perhaps not saying it as clearly as I need to, and I do apologize for that because as we know these are very complicated questions.
What I am trying to say is that if we have a contemporary identifying people who identify as Metis, and who have done so over a significant period of time, distinguishing themselves from their First Nation ancestors, we recognize them as Metis, but the source of their legal rights may very well be different.
Senator Dyck: Yes, okay. In her case, the family had lived in the Duck Lake area for decades, four decades, 40 or 50 or more years.
So you are saying that that is the socio-political definition versus the legal definition, which may cut her out, but the socio-political definition allows her in.
Ms. Bell: Yes, but there is also a legal way to bring her in, but not because of connection to a distinctive Metis community but because of an historical connection to a First Nation ancestral community.
So this new contemporary group of Metis people, the source of their rights is different.
Senator Dyck: You are talking about contemporary communities and contemporary people.
Ms. Bell: That is correct.
Senator Dyck: That is what also confuses me as well.
Ms. Bell: Yes, it is confusing.
Senator Dyck: In your view, then, the descendants of the Orkney intermarriage with Indian women, does that fit the legal definition of Metis through Powley? For instance, we were in Cross Lake, and most of the people there descended from the Orkney, Scottish; there may be a few English descendants in there as well. Do they fit?
Ms. Bell: The Powley definition emphasizes the distinctiveness of Metis communities. I would say they fit in part.
As a contemporary people, they are distinctive. But historically, they cannot prove that historic foundation. That historic foundation has to be found someplace else, and that might be in their First Nation ancestors.
Senator Raine: I do not think that is correct, because these people can trace their genealogy back through — they may not have come from the Red River Valley but they certainly came from Europe and intermarried with native people and have been living the Metis lifestyle.
Ms. Bell: Then thank you for correcting me, senator. I am not as familiar with the facts and the history of their case, but if indeed they can trace their ancestry to a distinctive Metis community that existed prior to the assertion of effective European control, then they would meet the Powley test.
Senator Raine: So the Hudson Bay traders who married First Nation women, their ancestors worked for the Hudson Bay Company long before Canada was founded.
Ms. Bell: The question would be do we have a community? Do we have just some people who existed and identified as Metis prior to the assertion of effective control, or was there an existence of a community. If there was an existence of a community prior to the assertion of effective European control, then yes, it would fit Powley. I thank you for that clarification.
Senator Dyck: They were situated around the fur trade post.
Ms. Bell: That would be a community.
Senator Dyck: That was all along whatever the Churchill River system was, so that would be a community.
Ms. Bell: Yes.
Senator Dyck: But they may not have identified using the word "Metis'' because that historically comes at a later period in time.
Ms. Bell: That is where we get a complication.
The Chair: They self-describe themselves as half breeds, which was used where I grew up as well. We were designated as half breeds but we fought back, whereas with them, they seem to have accepted that phraseology to describe them as a people.
Ms. Bell: Yes.
The Chair: But they were definitely part of the fur trade and the development right at the beginning of contact, pretty well, from York Factory.
Ms. Bell: Then that indeed would fit the Powley criteria. I am just not as familiar with the facts and the history in that area, so I thank you for clarifying that.
Senator Raine: I would like you to comment if you would on the ramifications of Bill C-31 on Metis status, because we have just come from some hearings in the North and there are Metis people who are very clear that I am still Metis but I have taken out status because I need the help for medical reasons and things like that. For economic reasons, they are taking out status.
Where does this leave them in terms of Metis citizenship?
Ms. Bell: There are two responses I can give to that question, senator. Let me first speak to the Cunningham case and to the Alberta Metis settlements.
This issue came up in relation to the Alberta Metis settlements, because they have the ability to exclude from their membership people who have applied under Bill C-31 and now have Indian status. The issue was whether or not their ability to exclude now status Indians violated section 15, the equality provisions of the Charter.
The Supreme Court of Canada said that when we look at the purpose of the Metis settlements, the purpose is for them to be able to continue to identify as distinctive peoples on a land base and as self-governing peoples, and therefore, they had the ability to exclude status Indians, that this was consistent with the ameliorative purpose and the constitutional recognition of Metis as a distinctive people.
Now, we have to step outside of the Alberta Metis settlements for an analysis where we do not have that kind of legislative regime that has a clear ameliorative purpose that is aimed at the objectives of the Constitution. When we step outside of that context, I think that the issue is much more complicated and that we need to recognize that, practically speaking, Metis have been excluded from many programs and they may very well apply to these programs to get the benefit, but that has not affected how they socially or culturally or politically identify.
I think it is very possible to be citizens of more than one government. We have people who have joint citizenships in Canada and Britain, for example. I think what our concern needs to be is that people do not go to two pots for the same thing.
Senator Raine: So dual citizenship should be allowed.
Ms. Bell: Absolutely.
Senator Raine: But you basically cannot double-dip in terms of benefits.
Ms. Bell: Absolutely.
Senator Ataullahjan: I am just looking at the written submission that you have given, and on page 2, number 5, you say there is an urgent need for impartial —
Ms. Bell: Yes.
Senator Ataullahjan: Then on page 10, you have Metis rights recognition continues to be dependent on the political will of the government changing.
Ms. Bell: Yes.
Senator Ataullahjan: So if one is resolved, how do the two sort of link up?
Ms. Bell: For me, what I have observed is that we have been arguing over certain substantive issues for a very, very long time and we have not been able to come to agreement. Some of those we are talking about today.
Again, who are the Metis? I find it really problematic that we are not able to come to agreement on some of these substantive issues, so I am thinking that maybe what we need is a process-based solution, one that is fair, that all parties respect.
I think sometimes, an interesting example is the labour relations board, where management appoints somebody, the union appoints somebody, they agree on an independent and they try to resolve the issue. I think what we really need is some kind of a fair dispute resolution mechanism.
I do not want to sound like I think the federal government or the provincial governments have been acting in bad faith in any way. The law in this area is very complex and can be interpreted in many, many different ways, and there are many interests that are involved.
However, what we have is a situation where the governments, which have vested interest because of the resources that have to be expended, are making the decisions on the substantive issues, and this is what we used to have, for example, with specific claims for First Nations. They would have to make their submission to the federal government and the federal government decided if they had a good claim or not, and if they had a bad claim, they had to go to court, and that is really expensive.
So we have communities investing all of their economic resources in litigation and we are never agreeing and we have to go to the Supreme Court. I think we really need a fair process.
The Chair: Are you suggesting a tribunal like the specific claims?
Ms. Bell: It could be something like that. However, I would not necessarily appoint judges to be the decision makers. I would suggest that the affected community that has the dispute should be able to select who they think is the expert. The government that may be in dispute should select who they think is the expert, and then some kind of an independent that everybody could agree upon, but if everybody cannot agree, then the court can step in and say okay, this is going to be the independent.
It is not necessarily the exact same model, but yes, sir, a tribunal I think would be very helpful.
Senator Dyck: A supplementary question on the same issue. We heard in Ile-a-la-Crosse — and I am not sure whether we heard it in other places — that maybe what we are talking about is like a table, like a Metis table where the interested parties are brought together to negotiate, to come to agreement before they go to the courts.
The people in Ile-a-la-Crosse were saying to us, "We are ready to talk about this if we could get all the interested parties at a table where we would discuss it; we would come to negotiation and see if we could reach agreement.'' Would that be the type of resolution that you would envision?
Ms. Bell: I would envision that with the qualification that if one could not reach agreement through that process, the court is not the only place we can go, that there may be someplace else, some kind of an impartial body, because you are talking I think about a multi-stakeholder negotiation kind of process.
If people cannot come to agreement through that process, where do we go after that?
Senator Dyck: That would be like the tribunal.
Ms. Bell: Exactly. Something like a tribunal as the chair has suggested. Over the years, it seems to me that a process- based approach is what we need, because many of these substantive issues we do not seem to be able to agree upon.
Senator Dyck: We just keep going around in circles.
Ms. Bell: Yes, we just keep going around in circles.
The Chair: This young lady on my right has asked me to ask you for a brief overview of where you see the Hirsekorn case, which apparently is going to the Alberta Court of Appeal.
Ms. Bell: I believe that the argument that is being made by the Metis Nation in that case is the correct interpretation of the law. When it comes forward to the Court of Appeal, I am hoping that the Court of Appeal will find that the current harvesting policy in Alberta is too narrow.
Having said that, although I believe the original harvesting policy was more in line with an understanding of the Metis Nation, their homelands and their experiences in Alberta, there was insufficient consultation and I think consideration of the rights of treaty peoples.
This brings forward the fact that we are now starting to go into an area of overlapping claims, and again, the need for a fair process. Because what we have going on in Hirsekorn is an intervention by the Blackfoot who are concerned about the fact that an interpretation of Metis rights that gives rise to the right to hunt for food in southern Alberta may interfere with their rights arising from treaty, and I think that there are some legitimate concerns there that need to be worked through. However, I am not convinced that they have to be worked through in such a way as to deny rights to the Metis. Regardless of what the Court of Appeal says, I think this is going to the Supreme Court.
The Chair: In Saskatchewan, they seem to have drawn a line — north is okay and south is not.
Ms. Bell: Yes.
The Chair: Have you given any thought to that?
Ms. Bell: I am not a historian, which has obviously come up in these conversations. I have some familiarity with northern Alberta, not as much with the south.
However, I think that when we look at the reality of Metis on the land and their nomadic lifestyle, it becomes very difficult to draw clear boundaries such as north, south, east, west, this region and that region.
The Chair: Thank you, professor, for being with us this morning. We appreciate your academic view and your experiences as well, not only your academia but your experiences.
Ms. Bell: Thank you for your insights on the Labrador Metis.
The Chair: Colleagues, we have before us the Aboriginal Metis Citizens Alliance of Canada representatives: President Garry Boudreau and Brenda Blyan, who is a member. Ms. Blyan will make a brief presentation. We have allocated 15 minutes for this, if that time is required.
Brenda Blyan, Metis citizen, Aboriginal Metis Citizens Alliance of Canada: Thank you very much, Senator St. Germain, and thank you to the senators for allowing us to speak here today.
We found out about this by way of television four days ago and so we do not have a written presentation, but we are honoured that you have allowed us to speak here, and as well that you are on the road across Canada to challenge this very difficult question of Metis identity.
After hearing the speakers earlier, I wondered how we are we going to do this. I guess how we are going to do it is just to present to you a few issues that we have dealt with over the years as Metis people living in Alberta.
I want to start out with applying a personal application rather than an academic or an organizational one from the Métis Nation of Alberta.
I myself am a Metis settlement member. I come from Buffalo Lake Métis Settlement. I was raised here in Edmonton, so I am an urban Metis.
I have been a member of the Métis Nation of Alberta when it was the Métis Association of Alberta, and the majority of my work experience stems back to the Métis Nation of Alberta association. I was actually a vice-president, an elected vice-president, provincially, back in 1999 and so I am very much aware of these organizations.
Prior to that, I worked for the Métis National Council as a youth intervener back in the mid-1990s, so I have been to the Hill and am aware of what we do out there.
One of the things I would like to address is the whole issue of membership versus citizenship, as I have heard you ask those questions.
Membership is something that the Metis Nation and most of the organizations in Canada hold. You have to have a membership. Now, the problem with that is that when a group provides membership, they can also take that membership back.
We as Metis people assert ourselves as belonging to a group of a nation. We identify with a Metis Nation. And so nationhood denotes citizenship, and I think for some groups, we hold that very loosely, the term "citizenship,'' because once you are a citizen, you cannot have that citizenship taken away by virtue of a membership card, and that is the problem that we see happening here.
I guess I have dual citizenship, because I am a member of the Metis settlements and I also held a card with the Metis Nation, and now I hold a card with the Metis Citizens Alliance of Canada. The reason I joined that group is because it is based on citizenship.
The three criteria that citizenship holds are that you must have North American Indian blood within you. You must be able to trace your lineage. Second, you must self-identify, and third, again, your community acknowledges you, so you are a part of a community, and you are also a Canadian citizen.
These three tenets are similar to those of other organizations, and I will concur with what our colleague, Catherine Bell, mentioned. I think we have had a lot of discussion on the topic of Metis identity. I think we need to get to a place where we can challenge the whole issue of membership versus citizenship in some sort of not so much a tribunal but a place that will offer fairness and where all stakeholders are at the table.
That is why I applaud this committee for coming along, because you offer the opportunity of being a body that can hear people speak.
With that, I think I am just going to leave it with one question asked by one of my mentors, who cannot be here, who is out in the bush. You might know him. His name is Edward Swain. He asked this question: He said to us, when they were giving out scrip back in the day, how did the people identify then? Did they say that this was where they were living and that this is where they were hunting? Did they look at some roll call somewhere?
I will just leave you with that and thank you for hearing me, and I will answer any questions.
The Chair: Thank you, Ms. Blyan. That is interesting. You talk about when they were giving out scrip and your mentor. You say that anybody in North America that can prove they have Indian blood, I believe — correct me if I am wrong, but that is what I heard you say. However, you are going back to scrip, and scrip was unique for the mixed blood people to the traditional homeland and areas that spread out from there west and north. How do you square that circle? I am not being nasty. I am just asking.
Ms. Blyan: Oh, I do not take you as nasty, senator.
I think that what we are trying to say here is that there has to be something defining what is the difference between a North American First Nation person and an Indian, per se, versus a Metis person.
We know by virtue of how we came along that we have that Indian blood in us, right, so we identify with that. That is one of the factors that we identify.
Why I ask that question, why I leave that with you, is what defined the Metis people that took scrip back in the day? Did they identify that way or did they simply say "I am Metis'' the way we do today?
The Chair: I am not sure. It is a very good question. They had lists and they did censuses at that time, and people identified as Metis because I know my own family did.
Ms. Blyan: Exactly.
Senator Dyck: Thank you for your presentation. I think you gave probably one of the clearest definitions of the conflicting identities, that being membership and citizenship, so I thank you for that.
You were saying you thought there needed to be some resolution and that it might not necessarily be a tribunal that helps out with the issue.
If it is not a tribunal, what would you suggest? What would you see as a way to resolve the issue of membership and citizenship? What would you like to see be put into place?
Ms. Blyan: I believe there needs to be somewhere where you can go where we have the stakeholders, and let us face it, the Government of Canada and the provincial governments are stakeholders in this matter, and so they should be at the table along with the bodies that have been questioned.
If it was me personally, I would come to the table and if I was being questioned in some way as to what my identity was, then I would want to have that space there, but I would also want to have perhaps the academics who have that information and then legal interpretation as well.
One thing that I noticed is that we talk about Metis rights, and one thing that Catherine Bell has done for us is that she showed us that Metis rights are not just all-inclusive. There are constitutional rights, land rights, hunting rights, political rights. There are many forms of rights.
I would think that whoever would be around that table would have that expertise, that legal expertise, and again, I believe that the governments have a stake in this too, but they are not the only defining members.
I overheard you say there were government rolls, back in the day, roll calls, government census, but I believe as Metis people we have to be sitting at the same table and helping to define who it is that we are.
Senator Dyck: You say the Metis people have to be there. There are Metis political people but there are also Metis citizens, so as a citizen, who would represent the citizens' views?
Ms. Blyan: Well, there is this organization that we are part of, my colleague and I, but there are also other people out there who simply do not participate in any organization. I was one of them. I just stepped away from any organization, and there are many, many of the urban Metis who do not participate.
Senator Sibbeston: Would you please just tell us about your organization?
Ms. Blyan: I will let Mr. Boudreau do that.
Garry Boudreau, President, Aboriginal Metis Citizens Alliance of Canada: Well, back in 2001, I had a dispute with the Metis association here in Alberta. I had been a member for X number of years and worked hard at it. I think I started in 1986.
We had a dispute and they had — what do you call it — a judicial council. We went to this judicial council and I proved to them that this guy had done this, and the judicial council agreed with him. I wasted all that time and money proving that he did wrong.
Anyway, I walked away from it, and then I started thinking about it, and after I thought about it, when the government recognizes us as a nation of people, and they left it up to us, then right now it struck me, and I did some research on it, a nation of people has to have citizens.
Now, you can have members in clubs and everything else, but a nation of people cannot be run by membership. It has to be run by citizenship.
This is when a bunch of us got together and we talked about it and we registered it, and all we are doing right now is registering the Metis people across Canada, and we do have a lot of citizens who have registered.
We are not asking for our rights. We are not organizing our rights. It is up to the individuals in their own communities as citizens of the Metis Nation of Canada, as Metis persons, they have that right to organize themselves as I do not know what they need in their community.
Under membership, you do not have that right.
Senator, you said you are from B.C.?
The Chair: Yes.
Mr. Boudreau: If you look at the membership card in B.C. for the Metis association, it says citizenship and it also says membership. If you look at the back of it in the small print, this card is wholly owned by the BC Métis Federation, or whatever they call themselves.
Now, why does a nation have to have that when we should all be citizens in our own nation and recognized under the constitution? Why are we sitting at this table trying to define who we are? We know who we are. We feel it in our hearts, and as long as we do that, we know where we came from and we should not have to sit anywhere and negotiate it. All we have to do is take our citizenship.
The other thing that I noticed too, you never see the German people or the Polish people sit here arguing about their heritage. Why are we doing it? Nobody questions their heritage. Yet we are always being questioned.
The Chair: Mr. Boudreau, we found the situation in Saskatoon, where Professor Dyck — Senator and Professor Dyck —heard a presentation from a woman who heads up the admissions for the medical school at the university in Saskatoon, and they have had fraudulent applications to occupy seats designated for Metis peoples.
If you are going to ask the government for something, and if it is really something that is beneficial to individuals, I can assure you that there has to be some way, we believe or some of us believe, to identify just who is a Metis.
If anybody off the street can walk in and say, well, I am a Metis, because they see a benefit sitting there, where do you go from there? You have to have some controls, unfortunately, and I am not saying it is the government that should do it. That is why we are doing this study.
Like hunting rights, I know a lot of people in B.C. said, "Oh, if you guys get hunting rights, I am going to become a Metis.'' I said, "Well, you are not one.'' "Well,'' he said, "that does not matter. I will tell them I am one.''
We are unique as Metis people. This is a unique situation. There are other situations around the world where there are people of mixed blood, but we have now been recognized in section 35 as an Aboriginal under the description of Aboriginal people, so that is why we feel or some of us feel that this should be brought to the attention of the government, and that is what we are trying to do.
As I say, we have no preconceived notions. Metis people should control their own destiny as much as possible.
Senator Sibbeston: I notice that you make the distinction between membership and citizenship. Citizenship is a higher order, as it were, because you have to be a citizen generally of a country, and membership generally applies to organizations and so forth.
Even in your organization's name, Metis Citizens Alliance of Canada, what are you citizens of? Your title suggests that you are citizens of Canada, but then I am aware that you are also thinking in terms of citizens of a Metis Nation.
Have you thought about that? Just how do you look at yourselves?
Mr. Boudreau: If I may answer that, we are not that educated really. So we were hashing the names around and that is the best name we can come up with so that we make people understand, take your citizenship.
We tried to include all the words there, the Aboriginal Metis Citizens Alliance of Canada. Now, we added "Alliance'' because we are Canadian citizens too.
What we did, we registered it, and then what I told the guys at that time there, what we will do now is once we get citizens all across Canada and we call a meeting, now, if you have a nice name or you can come up with a name for us Metis Nation people across Canada, then we will sit down and vote on it and we will use that name. We are just giving room here to change.
If I can also add here, all this organization, Metis Citizens Alliance of Canada, is doing is registering Metis people across Canada. That is all we are doing.
I do not want anybody — and in fact, I have had a lot of people say we are a splinter group or a rebel group or whatever. No, we are not. All we are doing is making a registry of all the Metis people of Canada, if they believe they are Metis.
When we started this organization, I wrote to every president of the Metis associations here in Western Canada, and not one of them responded. And then three years later, they changed and they added to their membership card "citizen.''
Ms. Blyan: If I could just briefly address your question, senator, that goes to the duality. We are Canadian citizens, Metis citizens, and you asked a question earlier about normally citizenship denotes a common land, common language, common commerce, and then you call yourself a nation. I believe that the Metis people do have that.
I myself, like I said, may be one of the fortunate ones. I am a member of a Metis settlement but also here in Edmonton I live as a Metis person and I identify with my homelands back home, but I also identify with the corner of the street on which I live, and I say that I am a daughter of this country. I live here and I claim all of this for my own.
Senator Raine: You have raised some very interesting issues. I would suggest that tackling the task of registering all people who feel themselves to be Metis across Canada is a huge job, and it is a job that is currently being done by the other Metis organizations who are being supported in this with funding from the federal government, so I do not think that a duplication is perhaps in anybody's best interests.
However, I see what you are doing as having an organization where individual Metis citizens can join an action group for whatever reason, just as there are citizens' groups in the greater Canada for pressing certain issues.
You mentioned that the Metis card in British Columbia, by the Métis Nation British Columbia, has on the back that the card is the property of the Metis Nation, and I just point out that I think that is pretty normal for citizenship documents.
For instance, right in the Canadian passport, it says this passport is the property of the Government of Canada. I think they do that so that it prevents the fraudulent transfer of these documents, and there is a legal case for the organization who issued the document to prevent trade in those documents. I do not think that somehow denies or disenfranchises the members of the group or the citizens. But in our deliberation, what we are finding is that determining who is Metis is very complex.
Ms. Blyan: Just in response, you are right about the Metis nations across Canada enumerating. They are not taking citizens, they are taking membership. We have to remember that these organizations are there to represent politically their constituents, and so by nature of the organization, if you have the wrong last name, you might get put to the bottom of the file folder, and sad to say, but that is how our organizations are.
My suggestion to that always was that you take the registry away from the political organization and run it independently with the genealogies. You will have a fairer number of the number of Metis people that are in a specific area. I cannot say for other organizations across Canada, but I know that is the way we are here in Alberta.
The Chair: This card is not a membership card. There is nothing that says "membership'' on it. This is strictly a citizenship card. This does not make me a member; it makes me a citizen of the MNBC.
Anyway, it is controversial, colleagues, and it is complicated.
The only thing I leave with you, Mr. Boudreau, and I compliment your courage and your initiative, but what scares me is if cards are floating around all over, it really puts places like universities, who have special chairs designated for Aboriginal peoples, at risk of fraud being able to be perpetrated through a process of cards coming from every direction. I think that this is one of the reasons why we initiated this study, and hopefully we can come up with a solution, and I would hate to see government run the list. I would like to see the Metis people run the list rather than government, and I think a lot of people would. But how it will eventually sort itself out, hopefully we can wake the sleeping giants, and wiser men and women may come up with a solution. Hopefully we can help.
I want to thank both of you for appearing, and I want to thank the senators for their participation in this morning's meetings.
We are flying north to one of the settlements. Ms. Blyan, I do not know if you are going to be up there, but if you are, we will see you there, and if not, God bless you.
Thank you again.
(The committee adjourned.)