Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 2 - Evidence - February 17, 2016
OTTAWA, Wednesday, February 17, 2016
The Standing Senate Committee on Aboriginal Peoples met this day at 6:48 p.m. to study the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples (topic: border crossing issues and the Jay Treaty).
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. 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 here in the room, via CPAC or on the Web. My name is Lillian Dyck. I'm from Saskatchewan, and I have the privilege of chairing this committee.
I would now like to invite my fellow senators to introduce themselves, beginning with the deputy chair.
Senator Patterson: Dennis Patterson, senator for Nunavut.
Senator Tannas: Scott Tannas, senator for Alberta.
Senator Raine: Nancy Greene Raine, senator for B.C.
Senator Enverga: Tobias Enverga from Ontario.
[Translation]
Senator Maltais: Ghislain Maltais from Quebec.
[English]
Senator Watt: Charlie Watt from Nunavik.
Senator Lovelace Nicholas: Senator Lovelace, New Brunswick.
Senator Sibbeston: Nick Sibbeston from the Northwest Territories.
The Chair: Thank you. The mandate of this committee is to study matters related to Aboriginal peoples of Canada generally. This evening, we are hearing testimony on our general order of reference, which is to examine and report on the federal government's constitutional, treaty, political, and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally related to the Aboriginal peoples of Canada.
In that vein, we continue tonight with a special issues meeting to discuss issues relating to the Jay Treaty, specifically with regard to border crossings. We will begin our first panel with department officials. I will introduce them, and I hope you will confine your comments to five minutes to allow senators to ask questions.
From Canada Border Services Agency, we have Lisa Janes, Regional Director General, Northern Ontario Region. From Indigenous and Northern Affairs, we have Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government; David Millette, Director General, Negotiations - Central, Treaties and Aboriginal Government; and Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs.
Perhaps we could begin with Indigenous Affairs, to be followed by Canada Border Services. Thank you, you may begin.
Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indigenous and Northern Affairs: Thank you, Madam Chair and honourable senators. I appreciate the opportunity to speak to on the topic of Jay Treaty and the impacts it may have on indigenous people crossing the Canada-U.S. border, as well as border issues more broadly. I want to begin with the observation that border crossing issues are complex. They involve citizenship, international sovereignty, and security issues. Perhaps now, more than ever, they involve a number of federal departments, including the Canada Border Services Agency, Immigration, Global Affairs and, to a lesser extent, Indigenous and Northern Affairs.
My colleagues have been introduced and will assist in answering some of the questions you may have today. Ms. Janes will also offer brief opening remarks.
I'm here to provide you with a brief history of the Jay Treaty. The treaty that is commonly known as the Jay Treaty was the Treaty of Amity, Commerce, and Navigation concluded between Great Britain and the United States in 1794. The Jay Treaty was negotiated in order to settle outstanding issues dating from the 1783 Treaty of Paris, which brought an end to the American War of Independence and established an international boundary between the newly formed United States of America and the remaining British colonies to its north.
One of the goals of the treaty was to provide Indians the same rights as American and British subjects with respect to free passage as both countries recognized the potential hardship the creation of the border could inflict on the indigenous peoples. Importantly, as made clear in Article 3 of the treaty, this right was not an unregulated right. Several stipulations were made in the treaty to circumscribe the right of free passage.
The Jay Treaty was abrogated by the War of 1812, and the free passage provision was never reinstated. Our understanding of the current legal status of the Jay Treaty is that it is not in force in Canada and does not confer benefits on any Canadian or indigenous person within Canada or otherwise. First Nations were third-party beneficiaries of the treaty, but with the advent of the war, those benefits were lost.
There is some confusion as to the legal status of the Jay Treaty, and it does lead to some taking the position that the treaty provides for an unrestricted transit across the Canada-U.S. border for indigenous people, who are identified as Indians by the treaty, and their goods. The source that gives rise to this position is Article 3 of the Jay Treaty, which deals with the fur trade, or peltries, and the personal effects of Aboriginal people.
Setting aside the complexities around the interpretation of the treaty, Indigenous and Northern Affairs Canada recognizes that the issue of border crossing is an important one for both Canada and First Nations. For Canada's part it must ensure national security and protection of the border, and that is why the issue has evolved over such a long period of time.
For registered Indians who reside on First Nation reserves which straddle or are in close proximity to the United States border, crossing the border every day to get to work, to bring their children to school, or to return to their homes situated in Canada can be a cumbersome problem. I would quote Justice Binnie of the Supreme Court of Canada: "It's beyond mere inconvenience.''
On multiple occasions Canadian courts have rejected that Article 3 of the Jay Treaty provides free passage of goods rights. The courts have said that no indigenous peoples in Canada can benefit from the Jay Treaty.
Jurisprudence supports the position that the Jay Treaty is not in force in Canada and does not confer benefits on any Canadian, indigenous or otherwise. In the 1997 Mitchell v. Canada (Minister of National Revenue) decision, the Federal Court of Canada, at the trial division, came to the conclusion that the Jay Treaty is not a treaty within the meaning of section 35 of the Constitution Act, 1982, and the provisions of Article 3 do not confer treaty rights within the meaning of this paragraph. The expression "treaty rights'' in section 35 means rights attached to, or belonging to, Aboriginal peoples, which issue from treaties concluded with them, as opposed to treaties between actual national governments.
The border issue is not confined to the Jay Treaty. A number of First Nations in Canada have brought forward historical cross-border trade issues. For example, there are those that predate the creation of the border.
There may well be for some First Nations an Aboriginal right to cross-border trade, and we distinguish between Aboriginal rights and treaty rights. To date, the courts have not found that the border crossing or cross-border trade is an Aboriginal right. It doesn't mean one won't be found in the future, but to date one hasn't been found. One can expect that discussion of such an Aboriginal right will include discussion of the specific facts and context that give rise to such a right.
That concludes my opening remarks. I believe Ms. Janes has some, and then we'll be happy to entertain any questions.
Lisa Janes, Regional Director General, Northern Ontario Region, Canada Border Services Agency: Good evening and thank you, Madam Chair. I'm pleased to appear before this committee to contribute to your study and to this important discussion.
With its boundaries stretching from the Arctic Circle in the north to the Manitoba border in the west, the Quebec border in the east and the outskirts of metropolitan Toronto in the south, the northern Ontario region is the second- largest administrative area in the CBSA, covering almost 3 million square kilometres. Every year, over 8 million travelers and close to 500,000 commercial importations are processed in this region. Beyond the challenge of geography, the northern Ontario region includes some distinct CBSA initiatives and services that may be of particular interest to this committee. For example, we have a significant presence in the Far North, where the Iqaluit International Airport has become an increasingly busy jumping-off point for those en route to Europe, and where volumes have increased for pleasure craft and commercial vessels carrying people seeking to explore our majestic territory.
[Translation]
We work closely at the Cornwall port of entry with the residents of the local Mohawk Aboriginal community on Cornwall Island and in nearby Saint-Régis, Quebec, who are the vast majority of travellers at this location. The Cornwall port of entry was also the first CBSA office to hire an Aboriginal liaison officer in 2011, who assists with community liaison and events.
[English]
On a daily basis, the CBSA identifies, assesses and effectively mitigates threats to the security and prosperity of Canadians while efficiently managing the flow of legitimate goods and admissible travelers. This means ensuring that goods and travelers coming to Canada, as well as returning residents, comply with Canadian laws and regulations regarding their admissibility. For people, this is principally done through the administration and enforcement of the Immigration and Refugee Protection Act. However, the agency also enforces more than 90 statutes on behalf of other federal departments and agencies, the provinces and territories.
[Translation]
As this committee is aware, the Jay Treaty is not recognized in Canada, and the Supreme Court of Canada ruled in 2011 that the right to cross the border without paying duty is not an established Aboriginal right. CBSA can only enforce legislation recognized by Canada's Parliament and courts, and thus it is beyond the purview of the agency to speak to the treaty or its implications on Canada's Aboriginal peoples who cross the border.
[English]
Within the existing legislative framework, all persons, including Canadian citizens, who seek entry to Canada must present to the CBSA and must demonstrate they meet the requirements to enter and/or stay in Canada and may be subject to a more in-depth exam.
In addition, all goods entering Canada may be subject to a more in-depth exam, and our officers are trained to look for indicators in determining which goods may warrant a closer look.
We enforce Canada's laws in collaboration with the Royal Canadian Mounted Police and with provincial and municipal law enforcement agencies.
[Translation]
The agency works in close partnership at the federal level with a number of partners, including the Department of Justice and the Canada Revenue Agency, as well as the United States Customs Border Protection, the U.S. Immigration and Customs Enforcement, and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.
[English]
The Department of Canadian Heritage is another important partner and is responsible for the administration of the Cultural Property Export and Import Act, which governs the movement of cultural property across the border. This act is designed to protect Canada's national heritage through the establishment of export controls for objects of historical, scientific and cultural significance, including indigenous sacred objects. The act enabled Canada to meet its obligations under a 1970 UNESCO convention to recover and return illegally imported cultural property.
The CBSA's specific responsibilities under this act are to enforce the document and permit requirements for exporters of cultural property and to ensure that items that may be subject to import controls are reported.
[Translation]
Cultural property, including that of indigenous peoples, may be detained by the agency on behalf of Canadian Heritage under the Customs Act. Detention periods for cultural property vary, as each item must be assessed on a case- by-case basis.
The agency is committed to service excellence and to providing our clients with fair, transparent and respectful service.
[English]
We have introduced Akwesasne cultural awareness training for our Border Services officers to reinforce the importance of sacred artifacts, as well as to help facilitate constructive interactions while processing travellers at ports of entry.
Over a two-year period, we've interviewed Border Services officers at the Cornwall port of entry, community elders and members of the Mohawk Council of Akwesasne and conducted in-depth research on the history of the community. We examined issues arising from the service delivery at the port of entry and developed delivery strategies to enable officers to conduct their duties in a respectful and professional way.
We developed an online e-learning tool to provide facts and historical data about the community of Akwesasne and to enhance cultural knowledge. Dispelling myths and providing opportunities for two-way communication between the CBSA and the community has led to the development of important new tools, including guidance on the handling of sacred items.
[Translation]
Madam Chair and honourable senators, facilitating the flow of admissible people and goods into Canada — while also ensuring that our borders are not used for illegal activity — is the agency's mission.
[English]
The CBSA's responsibility is to enforce the laws that Parliament has deemed necessary for the protection of its borders. Our officers are in many ways the face of Canada — the first faces with whom travellers and businesses interact upon entering our country. It is a job that the agency does with pride. Underpinning our responsibility is a professional workforce whose core values are rooted in integrity, respect, fairness and accountability.
[Translation]
This concludes my presentation. Thank you. I would be pleased to answer any questions you may have.
[English]
The Chair: Thank you for your presentations. We will begin our first round of questions, starting with our deputy chair.
Senator Patterson: I'd like to thank the witnesses for their presentations.
I was amazed to learn that the northern Ontario region of the Canada Border Services Agency is responsible for my region of Nunavut and my home community of Iqaluit. I learn something every day.
I would like to ask Ms. Janes a couple of questions. First, your border crossings in Ontario — and I think you mentioned the Akwesasne region — would allow for the crossing of borders of indigenous people from both the U.S. and Canada. I'm wondering if you could tell us whether there are different provisions as far as Canada and the United States are concerned with regard to indigenous peoples. Are there differences that apply to American and Canadian indigenous residents?
Ms. Janes: At the border crossing, people enter either by right or by privilege when they cross into Canada, and those people who enter by right would include those who have Indian status in Canada. There are individuals who are members of the Akwesasne community but who may not hold Indian status; they may hold U.S. tribal card status. For those individuals, that's where the distinction is made. Those particular individuals do not enter by right into Canada, and admissibility considerations would be given when these people attempt to cross the border into Canada.
Senator Patterson: Are there differences for Americans and Canadians?
Ms. Janes: For American citizens?
Senator Patterson: Indigenous peoples.
Ms. Janes: It depends on the documentation that the individual presents to us. If the individual is not a status Indian and recognized in Canada as a status Indian, then the Immigration and Refugee Protection Act would apply, which means there are admissibility issues. So they wouldn't enter by right as a Canadian citizen would enter by right or as a holder of a Canadian Indian status card would enter by right.
If there are issues under the Immigration and Refugee Protection Act that would prevent them from being admissible to Canada, they may not be able to enter.
Senator Patterson: I guess I'm talking about those who enter by right. Would there be a difference between American and Canadian indigenous citizens entering by right, as you describe it?
Ms. Janes: If they enter by right and hold an Indian status card, there would be no difference.
Senator Tannas: Could I ask a supplementary to Senator Patterson's question? Do the Americans treat us the same way we treat the Americans? What I'm hearing you say is that for Canada, we let our Indian status card holders back in, no problem — that's a right they have.
Ms. Janes: Yes.
Senator Tannas: An American — a member of the same First Nation — would not have that right. That's how we hold things?
Ms. Janes: That's correct.
Senator Tannas: Is that how the Americans handle things in reverse?
Ms. Janes: The Americans will allow individuals to enter into their country. Whether you're an Indian status card holder on the Canadian side or you're an American Indian, they will allow both to come into the country by right.
Senator Patterson: If I may, I understand that at the federal level there have been discussions about allowing American indigenous peoples to freely enter Canada for the purpose of employment, study, retirement, investing or immigration. Is it correct that there have been such discussions? If so, has there been an outcome from those discussions?
Ms. Janes: I'm sorry, I'm unable to answer that question. I don't have that information, but I would be pleased to take that back and provide that information to the committee.
Senator Patterson: Thank you.
The Chair: Any other questions?
Senator Patterson: No, I'm fine.
Senator Enverga: I know there are some rights issues. How is immigration and customs legislation applied and enforced with regard to indigenous peoples? Are there some exceptions for indigenous peoples? If so, under what circumstances are there any exceptions?
Ms. Janes: As I mentioned earlier, there are two groups. If I may simplify it, there are two groups of individuals: those who enter the country by right and those who enter the country by privilege. If you enter the country by right, then there's no application of the Immigration and Refugee Protection Act whatsoever. There could be customs issues under the Customs Act. Perhaps goods you're bringing in — there could be things around that or the vehicle you're driving. There could be things that would apply under that, or other pieces of legislation, because we also are responsible for 90 pieces of legislation. So we may have food, plant and animal concerns, but irrespective of that the individual is still allowed to come into Canada.
Those individuals who would enter by privilege are subject to immigration legislation, and so there are concerns we may have around admissibility into the country if there's a criminal record that the individual might have; there could be national security concerns, organized crime, things that we would look at for that particular individual. They would not enter by right. If there are issues where they're inadmissible, if they've identified that they've come to work in Canada, they may not have the proper work permit or study permit to study in Canada. Those would fall under immigration legislation, and for those individuals it's not automatic that they're allowed to come into the country.
Senator Enverga: If I may, I would like to focus on the customs issue. What can they bring? Do they have the same rights as a regular Canadian, or can they bring anything they want? Those are the things I'm asking about.
Ms. Janes: The Customs Act would apply to everyone, regardless of whether you're entering by right or not. You would apply the customs legislation for goods that come in. We have a responsibility to make sure that the Customs Act, the goods that are allowed in, the proper paperwork, if it's commercial goods coming in, that the proper commercial information is provided. If it's goods that require a permit on behalf of another organization, like Health Canada, or the Canadian Food Inspection Agency, we would be required. It doesn't matter; it would apply to everyone for that particular reason.
Senator Enverga: And there's no exception. They cannot bring, let's say, more liquor, or after 48 hours there is a requirement; do they have exceptions for that?
Ms. Janes: There are no exceptions.
Senator Lovelace Nicholas: My only confusion here was when they came up with the border. At some point, we were all one nation, and because of the borders brought up by Canada, Great Britain and the United States, we had free access to trade, and all of a sudden people were being stopped and they didn't even let them know you have to pay tariffs on your goods to trade in the United States, and you have to pay tariffs to come back with your goods that you traded into Canada. So I think the confusion is the border itself, when it was enacted.
Do you think so? We're not confused about our trading rights. It's you people who are confusing us about what our rights are, in case you're saying in order for us to get the Jay Treaty recognized we have to go to court again; correct?
Mr. Wild: The matter has been addressed by the courts in terms of the legal status of the Jay Treaty, and the courts have consistently found in Canada that the Jay Treaty has no legal status in Canada. It has never been enacted by the domestic laws of Canada. What may be out there is whether there is an Aboriginal right. Putting aside whether or not there's a treaty right, there may be a question of an Aboriginal right. Aboriginal rights are protected by section 35. They are protected by the Constitution. But the determination of the scope and extent of an Aboriginal right is done on a case-by-case basis.
We've had one piece of jurisprudence in this country that looks specifically at whether or not, in the context of the Mohawks of Akwesasne, there actually was a pre-existing Aboriginal right protected by section 35 for trade vis-à-vis crossing the border. The Supreme Court of Canada, in 2001, found that there was not sufficient evidence to establish that there was a distinctive north-south trade going on as part of that particular Mohawk community and concluded there was no right there that would enjoy the protection of section 35.
In his dissent in that opinion, Justice Binnie concurred in the result that there was no right and went on in the dissent to say that even if a right were to be found, it's not clear that that right would have survived the declaration of Crown sovereignty. Some Aboriginal rights, if they were incompatible with the declaration of Crown sovereignty, may have been extinguished by that declaration of Crown sovereignty.
For example, Justice Binnie references the establishment of a military. So the Mohawk, for example, in that region clearly had a proud tradition of their warriors, but he concluded that there would be no Aboriginal right that would have survived the declaration of Crown sovereignty for the Mohawk to raise an army or a military within the construct that is now Canada. He also noted that to the extent to which the sovereignty of a nation is determined by control of its borders, so too no right to have freely crossed the border to engage in trade, if one were to be found, would have survived the declaration of Crown sovereignty, and they concluded there was insufficient evidence to find one.
It doesn't mean that there isn't one anywhere in the country, but to date not one has yet been found. At least as far as the negotiation of treaties go, the issue has been raised with any real frequency, and we're caught a little bit in the sense that any treaties that we negotiate today are treaties that are exercised within Canada, and we don't enter into modern treaties with indigenous governments for the exercise of rights into the United States.
So that's the state of the legal playing field at the moment. I don't know if that's helpful or not, but that's, I think, where things are sitting at the moment.
Senator Lovelace Nicholas: In all these transactions, were Aboriginal people ever consulted when you were coming up with all these rules about Aboriginal people and their treaty rights?
Mr. Wild: Again, if you're speaking to when the Jay Treaty was first established and then subsequently when the Treaty of Paris was signed in the 1700s, my assumption would be that no, Great Britain or the United States likely did not do any consultation at the time. I'm not sure that the state of the law at that time required them to do those consultations, but I don't think they would have done any, no.
Senator Lovelace Nicholas: I think it was always a right that if it affects an indigenous person they should be consulted. I cross the border and the border people say, "Are you American Indian? Are you Canadian Indian?'' I'll say, "I'm North American Indian,'' which is correct, right? In so many words, it's correct, because we were all one nation at some point. I'm just trying to understand why, all of a sudden, I can't cross a border as a North American Indian.
Mr. Wild: I think what we have been focused on is trying to find practical ways to address the issue of border crossing, and Ms. Janes has spoken to some of the things that have been worked on by the Border Services Agency around addressing how to make that work as smoothly as possible. I think we recognize that there are issues around how the crossing works, and we're always open to dialogue around how to make that work better.
Senator Lovelace Nicholas: I received a letter from a person from my community, and she was saying that maybe you could help. I don't know. I'm not a lawyer. She said that she went to work in the States, and you had mentioned that Aboriginal people can go and work in the States from Canada, to go work or whatever, except trade. Now she's trying to collect her old-age pension. So she went to apply, and this is what they told her: "Oh, no, you can't apply your old-age pension because you left the country to go to work for six months, and now you're considered an immigrant.''
I don't think that's fair at all. What does she have to do? Go back to the States? Maybe somebody could answer my question so I could help her.
Mr. Wild: I don't think any of us can actually assist with the specifics of that. It sounds like an issue that would be under the purview of Service Canada, which is responsible for administration of Old Age Security in Canada. That would be my suggestion of the first place to go.
Senator Lovelace Nicholas: Thank you.
Senator Sibbeston: I appreciate that we will be hearing from and having witnesses from Mohawk Council of Akwesasne, and I will ask this question. I would be interested to know from the federal representatives here: Is there an ongoing conflict, on any given day, about the transportation and travel between countries? Is it a situation where our Aboriginal people are just asserting their right and insisting on being able to pass freely from one country to another? Is there an ongoing conflict that you have to face every day? What's the state these days? Is there peace in the land with respect to this matter? Are there huge differences of opinion? Are people trying to circumvent what you consider Canadian law in this regard?
Ms. Janes: Thank you very much for the question. The CBSA works closely with the Mohawk community. We have, as I mentioned in opening remarks, established a liaison officer that works at the Cornwall port of entry. The real purpose of the officer is to have that ability to have direct contact with the community to address any types of issues that may arise through the border crossing that members of the Akwesasne community may be raising. We provide the liaison position in an effort to establish strong communication between ourselves and the community and to be able to address any concerns as they arise.
Senator Sibbeston: Is there a situation where the federal government at the moment, or you as an official, doesn't say very much about the reality? Occasionally you hear about goods being smuggled across the country by Aboriginal people, and perhaps other people. But you get the impression that there's a lot of activity going on. Is the federal government to a certain extent overlooking this, just so that there isn't strife between the government and Aboriginal people? What is the state of things? Are you able to tell us tonight the true state of the situation, or are you kind of not telling the whole truth, in the sense of not telling Canadians the exact situation, lest you expose the real situation of trafficking and the activities that are going on?
Ms. Janes: The CBSA in the Cornwall area works closely with our partners from the RCMP, as well as other police partners in Cornwall and the Ontario Provincial Police, as well as our U.S. counterparts, to combat any smuggling. That is not unique to Cornwall; that is across the country. We are responsible and mandated to protect the safety and security of our country and to prevent the illegal movement of goods and people from coming in that might be a threat to us.
When we do interdict illegal goods, or individuals, we do go out and make proactive media releases where we let the community know what work we have been doing, whether it's with partners or on our own, and if there have been successful interdictions that have been done.
Senator Sibbeston: Final question: Do you actually have absolute control of the border in terms of who comes across and what goods are brought across, particularly as it relates to Aboriginal people?
Ms. Janes: The CBSA is responsible for the work at the ports of entry. The responsibility for monitoring activity between the ports of entry is the responsibility of the RCMP, and they would have to respond to that part of the question.
Senator Tannas: I'd like to get something clear in my own mind. In this room, in this forum, we typically think of a treaty as something between a First Nation or an Aboriginal group and the country. Am I right in understanding, Mr. Wild, that the Jay Treaty was not a treaty that was negotiated between an Aboriginal group and a Crown or the United States? It was essentially a treaty between two countries that happens to mention in it something to do with Aboriginal activity. Is that right? There was no signatory. In the sense of other treaties that we hear about here, there was no Aboriginal participation or ceremony or anything that you would be aware of that would say that they were a party to it. Is that fair?
Mr. Wild: To my knowledge, it's an international treaty that was entered into between Great Britain and the United States of America in the late 1700s.
Senator Tannas: Here's an interesting question, though: Why did they mention this? How did they come to be aware of this and actually, between two nations, thousands of miles apart, why did they bother to mention this if they hadn't, in fact, talked to somebody in the Aboriginal community — Aboriginal leaders, I would presume — and attempt to assert this right for them? I have a feeling that the United States courts maybe took it one way, and maybe we haven't presented it the right way, or we came to a different opinion. How is it that our courts were able to square that? They had to be consulted; they had to be a participant. Otherwise, why would they raise it?
Mr. Wild: I don't know all that went into the making of the Jay Treaty. The conjecture I would offer is that for both countries in that period of time, relationships with the various First Nations on either side of the soon-to-be- established border were critical and important and played an important role in the relationships that were going on between Great Britain and the United States as they were heading towards the War of 1812. So First Nations had a huge role to play with respect to both countries and what was going on in the territories at the time. Whether or not that meant that either country was involving or consulting any of those First Nations in any of what they were doing around the making of the Jay Treaty, I simply don't know. I'm not aware of any history that would suggest that there was any kind of consultation going on. Ultimately, I think, as you move through history, it may be that at the end of the day there is some difference in treatment, but I think in the United States the Jay Treaty gets surpassed in essence by 1928 legislation that they adopted, and that 1928 legislation is more or less what governs the rights of entry for both American Indians born in America and American Indians that are born in Canada. I put quotes around "American.''
Once you get past 1813 and 1824, the Jay Treaty vanishes from domestic legislation and no longer exists in Canadian domestic law. Upper and Lower Canada had it for a while in their domestic laws, but it vanishes by those dates, and then that's it. There is no other way for an international treaty to have a presence in Canadian domestic law unless we legislate and adapt it into our domestic laws, and we have not done so.
Senator Tannas: Don't you find it the least bit puzzling that when we're always looking for this, that we would find evidence 250 years ago of two countries trying to assert and secure this kind of recognized right? I find it unusual that our courts wouldn't have seized on that as evidence that something was going on there that needed to be secured.
If you want to say "yes'' to that, that would be great; if not, we'll move on.
Mr. Wild: Well, it certainly wouldn't be a straight "yes.'' It's up to you whether you want to move on.
Senator Lovelace Nicholas: From my understanding, under the Jay Treaty, the Americans are supposed to protect Aboriginal people — Canadian or American. That was in the Jay Treaty. I can't find it here, but as you've said, it's domesticated now. The treaty said that the United States will protect indigenous people from both sides of the country at times of war or at times of conflict.
Mr. Wild: I don't really have an answer to that question. I'm not sure whether the Jay Treaty was interpreted that way or not by the United States.
Senator Lovelace Nicholas: Thank you.
The Chair: I have a supplementary question with regard to what Senator Tannas was talking about. It's strange to me that the U.S. on the rulings on the Jay Treaty have more or less said that the courts have upheld that the First Nations had an inherent Aboriginal right and then enacted legislation. It seems like it's necessary to create a piece of legislation to validate what could be called an existing Aboriginal right. That may not be accessible to all people. That legislation needs to be passed by the Canadian government to pass what is considered to be an existing Aboriginal right, although it may not be a treaty right. Does that make sense?
Mr. Wild: Certainly from the perspective of Indigenous and Northern Affairs, we don't believe that Aboriginal rights exist in this country only if they have somehow been legislated into Canadian law by the Government of Canada. So we believe there are all kinds of pre-existing Aboriginal rights found in the common law and are now afforded constitutional protection under section 35.
There's another category of rights, and those are housed within treaties that have been entered into between Canada and indigenous governments. They span our history. There are two buckets where you can go to find Aboriginal rights. In this particular case, when it comes to crossing the border, Canada's perspective is that there is no treaty right. There may be Aboriginal rights, but they have yet to be established or defined in the common law to date.
The Chair: You said earlier that a Supreme Court decision has said there was no such a right in the 2001 Mitchell case, unless I misheard you. But the information we had indicated that the evidence at the trial said there wasn't enough evidence to prove such a right, but a decision on whether or not the right existed was not actually made.
Since you were saying that it's up to individual cases, it would still seem to me that the issue is somewhat unresolved, not completely shut. Would you say that?
Mr. Wild: I think that's right in that it's not closed. There may very well be for a particular First Nation a pre- existing Aboriginal right related to border crossing or even trade around the border, but it's not yet been found under the common law in this country, so the courts have yet to find it.
The example of the case in Mitchell is an example of what the court goes through in looking at the specific context and history to come to a conclusion about whether or not that particular First Nation was able to establish sufficient evidence of a right, and it concluded that there was insufficient evidence of that right in that particular case with that particular First Nation.
Senator Raine: I appreciate your being here today. So far we've been talking about the border issues and the Jay Treaty as it applies in Ontario, particularly Akwesasne and the Mohawk people, but I want to know, since this treaty was concluded between Great Britain and the U.S, did it apply to the border from the Atlantic coast to the Pacific coast? Are there other First Nations across Canada that straddle the border and are also encountering differences between the American interpretation of their rights of passage and the Canadian interpretation?
Mr. Wild: Unfortunately I can't answer the specifics as to the exact nature of the border in 1783 or 1793 when the Jay Treaty was entered into. I'm not sure how far the border extended at that point. My assumption is that it would have been coast to coast, but it's an assumption on my part; I don't know for sure.
What was the second part of your question?
Senator Raine: In looking at the briefing notes, it is obvious that there's a difference between how the Americans interpret the rite of passage and how the Canadians do. I'll just read it here: ". . . allowing Canadian indigenous peoples to freely enter the United States for the purpose of employment, study, retirement, investing or immigration.'' But it does not work in the reverse. I'm just wondering if that's also in effect all across Canada, all across the border.
Ms. Janes: With respect to the question around being able to retire, as I mentioned earlier, I would have to get back with more details on that. Any laws around the border would apply across the country. We make no distinction.
Senator Raine: When the Jay Treaty was abrogated by the War of 1812, that was just abrogated everywhere because I suppose the situation between Great Britain and the U.S. changed, and Canada was then getting its own jurisdiction along the border. I'm not very good at history, but it seems like this is a historical situation, and it keeps coming up. There's obviously a lot of misunderstanding about it.
The Chair: You're asking why the War of 1812 nullified the treaty.
Senator Raine: Yes.
The Chair: Good question.
Mr. Wild: It nullified the treaty because the countries went to war. I don't know if there's much more to it than that. What is complicated in the history of it is that after the Jay Treaty was entered into between Great Britain and the United States, Upper and Lower Canada both implemented the treaty through domestic legislation.
It's more important to focus on that domestic legislation, because you actually have the treaty being brought into Canadian domestic law, a precursor to Canada as we know it today, but Upper and Lower Canada.
The important point is that the legislature of Lower Canada allowed that legislation to expire in 1813, and in Upper Canada that happened in 1824. At that point, the Jay Treaty ceased to have any effect in Canadian domestic law. This is what the courts in decisions in 1956, 1993 and 1997 have reiterated time and again — namely, there is no basis for the Jay Treaty in Canadian law as a result of that history.
I can't answer exactly why at the time the decision was taken for that legislation to expire. I don't know.
[Translation]
Senator Maltais: Mr. Wild, I need you to clarify something. When Canada signed the Confederation contract with the provinces back in the day, did it succeed Great Britain in terms of treaties concluded with Aboriginal peoples? Did Canada become responsible for treaties signed with Great Britain?
[English]
Mr. Wild: At the point of Confederation, when Canada was formed, it took responsibility for the treaties that had been signed with Great Britain prior to Confederation — the treaties that were entered into with First Nations, specifically.
[Translation]
Senator Maltais: I would like to raise another issue. If the Jay Treaty has not been recognized, how can Canadian courts rule on that matter?
[English]
Mr. Wild: The courts are determining whether the Jay Treaty is part of Canadian law, and they're pronouncing that it is not part of Canadian law because it has not been brought into Canadian law in a way in which any other international treaty that has been entered into between two countries would be brought into Canadian law, which is through domestic legislation.
[Translation]
Senator Maltais: Is that a conscious oversight, or was it because we were at war back then?
[English]
Mr. Wild: I think it is intentional in that, by the time we had Confederation, I don't think the Jay Treaty was something that would have been present in the minds of the Fathers of Confederation. It's clear that by 1824 it's no longer present in Canadian domestic law, when Upper Canada allows the domestic legislation for the Jay Treaty to expire. Exactly why they made those decisions I don't know, but I have nothing to suggest that they weren't conscious decisions that were being taken.
Again, I would just reiterate that it was a treaty between Great Britain and the United States, and I think that's the lens from which it was likely being viewed at the time.
The Chair: We have a couple of minutes left for second round.
Senator Tannas: I'll be quick. Ms. Janes, notwithstanding everything, if we as a government were somehow to pass a law that harmonized the treatment of Canadians — harmonized our side — with the American position so that both American and Canadian First Nations members had the same rights, the same privileges, et cetera, as you understand them to be — as you know they are for Canada but as you understand them to be for the U.S. — what problems, in your mind, would that solve that you and your people solve every day? And, potentially, what problems might that create?
Ms. Janes: When we look at the border or when we talk about problems — it's difficult for me to really answer the question, because it would be really difficult for me to speculate at this point in time as to what things would look like under harmonization. The whole issue around mobility rights has been considered, and has been considered in the courts, as well. I would be prepared and happy to share some decisions that have been taken around the issue of mobility rights and what the court has considered on those around the movement of Aboriginal people across the border. If that would help the committee, I would be happy to share that.
The Chair: That sounds like a good idea. If you could submit that to the committee, we would appreciate it.
Ms. Janes: I would be happy to.
Senator Patterson: I think Senator Lovelace Nicholas expressed the aspirations of the Jay Treaty, but I think it talks about the countries agreeing, in Article III, that:
. . . it shall at all Times be free to His Majesty's Subjects . . . and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass, by Land or Inland Navigation, into the respective Territories . . . and freely carry on trade and commerce with each other.
We've now heard that that treaty is gone, as far as Canada is concerned. We're going to hear from First Nations tonight who are undoubtedly going to tell us about some frustrations that they are experiencing and have for many years.
There's the Akwesasne Residents Remission Order. I wonder if we could get a little bit of information on how that came about. I understand it allows indigenous peoples to cross the borders without paying duties on certain goods. Was that an initiative of the Canada Border Services Agency? How easy is that kind of thing to put in place?
It seems to me it's complex to recognize a treaty or reinstate a treaty, but this remission order seems to have at least tried to address the problems of duty on some goods.
Is that a vehicle that we might be able to use that is less cumbersome than involving the Supreme Court and the reinstatement of a 19th century treaty? Can you tell us about that, please?
Ms. Janes: Unfortunately, I'm unable to talk about that, as the Department of Finance is responsible for the Akwesasne Residents Remission Order, but I would be pleased to provide the committee with whatever details we have or the contact at the Department of Finance who could expand on that particular topic for you.
The Chair: Mr. Wild, do you have any insights on that?
Mr. Wild: I don't know anything about the particular remission order.
I would simply note that, from our perspective, we think the focus should be on working through the practical issues of living life in that particular community, given its particular context. Really, it's not an issue of trying to sort out the Jay Treaty and all of that; you can kind of put that aside. There's still the practical day to day. Our perspective is that we want to find ways to help make the community as functional as possible for the members of the community.
The Chair: Thank you. We're running short of time. We're at the end of the first panel. I'd like to thank the witnesses for their testimony tonight and the senators for their questions.
Before we start the second panel, we have an item of business that the senators have to conduct, and then we will proceed with the second panel.
Senators, you've all been given the new draft of our order of reference, taking into account the changes and comments that were made yesterday at the committee meeting and reviewed by your steering committee. If people will take a look at that, are there any further comments? If there aren't, if it's acceptable, then we will need a motion for me to present this as a motion in the Senate Chamber tomorrow.
Senator Raine: I so move.
The Chair: Moved by Senator Raine. Is it agreed?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you very much.
We'll now proceed with the second panel of this evening's session. Today we have, from the Mohawk Council of Akwesasne, Grand Chief Abram Benedict; James W. Ransom, Director of Tehotiienawakon; and Rasennes Pembleton, Researcher, Aboriginal Rights and Research Office. And from the Assembly of First Nations, we have Regional Chief Bill Erasmus.
We will start with the Mohawk Council of Akwesasne, and after your opening remarks we will turn to senators for questions.
Grand Chief Abram Benedict, Mohawk Council of Akwesasne: Good evening, Madam Chair, honourable senators. Thank you for the opportunity this evening. I bring greetings on behalf of the Mohawk Council of Akwesasne and the community of Akwesasne.
I want to thank you for the opportunity to address the border issues and the Jay Treaty. I am joined by Rasennes Pembleton, from the Akwesasne Aboriginal Rights and Research Office, and James Ransom, Director of Tehotiienawakon. I have asked Rasennes Pembleton to speak briefly about the Jay Treaty. I will provide a context in which the discussion of the Jay Treaty and border crossing issues should take place, in the context of the findings of the Truth and Reconciliation Commission as a practical way to implement the United Nations Declaration on the Rights of Indigenous Peoples. James Ransom will conclude our presentation by sharing what we have been doing at Akwesasne to minimize border impacts on our daily living.
I also want to point out that we have two photographs. One is a map of our community, which helps illustrate exactly where our community is located in the said province of Ontario, said province of Quebec and northern New York State of the United States. To the left here is a young lady of our community who we will speak briefly about who was recently charged under the Canada Immigration Act for entering the country as they deem illegally.
At this time, I will ask Rasennes Pembleton to speak about the treaty itself.
Rasennes Pembleton, Researcher, Aboriginal Rights and Research Office, Mohawk Council of Akwesasne: Thank you, Grand Chief. Shekon sewakwekon; greetings, everybody. Thank you very much for the opportunity to address this distinguished council.
In framing tonight's conversation, it is important to be clear about the Jay Treaty. It is not a treaty with Aboriginal peoples, nor is it a treaty that gives border crossing rights to First Nations. What the Jay Treaty simply confirms is pre- existing First Nations border crossing rights, and it adds to the protection of those rights. In particular, Article III of the Jay Treaty states:
It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. . . .
No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians.
The Jay Treaty affirmed that the Indians on either side of the international border have the right to freely pass and repass by land or inland navigation. It also states that the same Indians do not have to pay any import or duty whatsoever when bringing their own proper goods and effects of whatever nature.
Mr. Benedict: Honouring the Truth, Reconciling for the future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada calls for reconciliation, coming to terms with events in the past in a manner that has overcome conflict and establishes a respectful, healthy relationship among people going forward. It states:
Reconciliation must inspire Aboriginal and non-Aboriginal peoples to transform Canadian society so that our children and grandchildren can live together in dignity, peace, and prosperity on these lands that we now share.
The TRC, in order to redress the legacy of the residential schools and advance the process of Canadian reconciliation, made 94 calls of action. Call to Action 45 states:
We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would be built on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm nation-to-nation relationship between Aboriginal peoples and the Crown.
Call to Action 43 states:
We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples states:
Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
Calls to Action 45 and 43 of the Truth and Reconciliation Commission provide a strong rationale for the examination of the Jay Treaty and border crossing issues of First Nations. The ratification of the Jay Treaty, as it has affirmed First Nations border crossing rights, should be part of the development of a royal proclamation of reconciliation. Akwesasne, as an international First Nations community, is exactly the type of community Article 36 of UNDRIP is meant to consider. We are an excellent case study for the challenges associated with maintaining and developing contacts, relationships, and cooperation with our own members, as well as other peoples across the border.
I'll ask James Ransom to make a presentation specifically on the Akwesasne border.
James W. Ransom, Director of Tehotiienawakon, Mohawk Council of Akwesasne: I thank you. Thank you, committee, for holding this gathering tonight.
What I want to talk about is that Akwesasne serves as the poster child for a border community and that we're truly unique in that half our community is in Canada, half in the United States. We distributed a map that illustrates this. The half that's in Canada is in two provinces: Ontario and Quebec. We're dealing with two provinces, one state, and two federal governments on a daily basis. We're used to dealing in a multi-jurisdictional environment.
The Mohawk Council of Akwesasne is the federally recognized governing entity on the Canadian side of Akwesasne and has a membership of over 12,000. We're geographically landlocked by the St. Lawrence River. The only way to get from one district to another — and if you look on your map, the districts are Kanatakon and Tsi Snaihne, and Kawehnoke in Ontario — is to go into the United States and then re-enter into Canada, into that district of the Mohawk Council of Akwesasne.
The travel route is necessary, and we have to do it every single day of our lives, whether it's to go to school or to work, to attend church, for shopping, recreational, social and cultural purposes. You can't go from Akwesasne into Canada without going through a CBSA port of entry. You're either going to go through the one in Cornwall, Ontario, or through the one in Dundee, Quebec.
Mohawks continue, as we have done since Confederation, to exercise our right to maintain and develop contacts, relations and cooperation within our two Quebec districts. However, since 2009, CBSA has imposed personal hardship on the Mohawk residents of our Ontario district. When returning to that one district, even though all three are landlocked, people have to bypass the district, go into the city of Cornwall, report, and then turn around and come back — even though we're only going within our community.
We would like to acknowledge that CBSA has taken some positive steps to address our mobility in the community, and in the Ontario district in particular. School buses and emergency vehicles on calls, whether fire, rescue or Akwesasne Mohawk Police, are exempt from the reporting requirement. Funerals that involve burials in the Ontario district are exempt from the reporting requirements.
CBSA has refused to make any further accommodations for Mohawks travelling in our community, trying to go from one district to another, to the Ontario district in particular. Instead, CBSA has chosen to criminalize our community for trying to exercise their rights consistent with Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples.
The picture you see here on the left of the mother and her two children: She made the mistake of going to the Kawehnoke district and dropping her child off at our arena and then going to report in Cornwall. She was charged with aiding and abetting. Does that look like a criminal to you? That's what we have to face in the Akwesasne community. Our young people in particular are subject to increased scrutiny.
What's interesting is that CBSA has found workable solutions to address border crossing issues of non-First Nations people across Canada. CANPASS is a series of CBSA programs that expedite the border clearance process for frequent, low-risk, pre-approved travellers into Canada. Canada and the United States have initiated projects at other border crossings that balance the needs of their respective countries while respecting the mobility rights of local residents. Angle Inlet, Minnesota, is only accessible by boat from the United States. Road access is only available from Manitoba. Remote reporting is allowed by video phone.
The Canadian port at Stanstead, Quebec, and across from Morses Line, Vermont, is part of a five-year pilot project that enables a Border Services officer at a remote processing centre in Hamilton, Ontario, to process certain types of after-hours travellers that are registered in the program. They can do it in those situations, but they won't do it for Akwesasne.
The Mohawk Council of Akwesasne has repeatedly proposed solutions to exercise our rights to freely move within our territories. Since 2013, we've made numerous presentations to audiences that have included Indian and Northern Affairs Canada and CBSA on potential solutions, including an alternative reporting mechanism modelled after the CANPASS system. In addition, we've had meetings with INAC, CBSA and the United States Customs and Border Protection on a secure Mohawk Council of Akwesasne identification card to facilitate easier border crossing.
We invited INAC to join us in Washington, D.C., for a meeting in 2014 on the secure MCA identification card with Customs and Border Protection. They declined to join us.
Canada has not been responsive to our attempts to find solutions; instead, they seem to find reasons for them not to work. Ironically, the U.S. Customs and Border Protection supports the creation of a Mohawk secure ID card.
Thank you.
Mr. Benedict: In closing, I want to thank you for the opportunity tonight to talk about our border issues and the Jay Treaty, and how they relate specifically to our community and a bit more broadly for other indigenous communities. I want to extend an invitation to the members of the Senate to pay a visit to our community to see the realities of what happens on the ground. I know that some of the questions later on may be specifically about some of the on-the- ground issues, but I extend an invitation to all of you to visit our community, see the impacts and see how it is that, in the absence of legislation recognizing the Jay Treaty, the everyday is impacted.
Again, I want to thank you for the opportunity. We are one hour away from this quagmire of what's been labelled by some as a jurisdictional nightmare, but as an Aboriginal Mohawk community we continue to forge forward. Thank you.
The Chair: Chief Erasmus, if you would take three or four minutes. After that, we'll have a round of questions from the senators.
Bill Erasmus, Regional Chief, Assembly of First Nations: Thank you, Madam Chair. My name is Chief Bill Erasmus. I have a number of hats or titles. I am the National Chief of the Dene Nation. By virtue of that, I'm also the Regional Chief of the Assembly of First Nations, so I'm an executive member of the Assembly of First Nations. I come to speak on behalf of our tribes in Canada. I also have the distinction of being with the Arctic Athabaskan Council, which is an international treaty body that sits as a permanent participant with the Arctic Council. I'm the international chair.
The reason I mentioned the Arctic Athabaskan peoples is that I want to speak more away from the people here in the east. As you know, as you go west, we're very thankful for these people because they were in contact with the Europeans long before we were. Many of us were far west and up north, where it was much too cold for people to bother us.
As they came west and they entered into treaties with us, it was not Canada that entered into the treaties; it was either Great Britain or other countries. When they entered into treaty — and I have with me a copy of two of our treaties, which I can speak to: Treaty 8 that happened in 1899 and 1900 and Treaty 11, which happened somewhat later when they found oil in the Mackenzie Valley in 1921 and 1922. Both of these treaties, one with Queen Victoria, the other with King George V, were entered into with Great Britain because Canada didn't have the authority, even in 1921; they didn't get that authority until the 1930s.
What I'd like to reflect on — and time will go quickly, I know — is that if you look at the treaties, which are valid instruments, which are existing treaty and Aboriginal law doctrine in Canada, it makes it really clear that it therefore supports today the activities of our people — the habitants and original descendants of these lands — with inherent rights. It makes it clear that, especially in 1921, when they wanted access to the Arctic Ocean, we allowed them into our territory as peace and friendship instruments, which we later justified in the Paulette case on two occasions. Canadian law supports us. We were never conquered; we allowed people access into our territory for peace and goodwill.
You go all the way to the Arctic Ocean. At the time, Nunavut was the Northwest Territories. So we have Coppermine, which is an Inuit community — this is very interesting — which is part of Treaty 11. You have Coppermine, Paulatuk, Inuvik, Aklavik, Tuktoyaktuk, Holman — all within that territory, because every international instrument goes 200 miles out. So all of that land up there, from the Yukon border, 200 miles or — I don't know the exact dimensions — but it was settled in 1921. Those are section 30 rights; they're not section 91 or 92 rights.
The point I'm making, Madam Chair, is that the intent was for us to work together with Great Britain. We settled that territory at that time. That's all proven in law.
We, as Dene — some call us Athabaskans; if you look in the books, we're called Athabaskans. We're in Alaska. We're actually in Siberia, where we're called the Kets. So we're in Siberia, Alaska and what is now Yukon. Actually, Alaska was not occupied by the U.S. until 1959, I believe, so you've got Yukon, Northwest Territories, northern parts of Manitoba to British Columbia, then all the way down to South America: the Navajo, the Apache. Geronimo was a Dene. It's one language family that's been split up by borders, not to our choosing, of course.
The point we're making is that our understanding of the Jay Treaty is such that it included the Indians of North America, who we are, including the Eskimo, because the Eskimo under law until 1951 or 1952 were considered Indians as original inhabitants of this continent. It's a North American agreement that recognized our trade and our commerce, and it recognized us as independent peoples.
If you look at the books, they will talk about a Dene in the Hudson Bay who travelled all the way to Alaska and traded with the Russians. It's well documented. It took him about a year to do that. He travelled — 100 or 200 people. On the way back, he traded with all the people. If he went that far north, what's stopping him from going south or from going to trade with the Mohawk or whoever in the east or west? Nothing stopped him. They had trade routes all over North America.
The Jay Treaty recognized that — this goodwill and this commerce and this ability for us to function and flourish. The difficulty, Madam Chair, is that when 1812 happened, Canada, for whatever reason, took exception. They were the baby at the table. They were not even at the table.
Who was at the table were the Indians and Eskimo and Great Britain, on behalf of anything called Canada, and the Americans. If anyone was going to take exception, it would have been Great Britain or the Indians. Neither of them did. Canada took exception. They didn't even have authority to sign a treaty until 1931.
To come to resolution, especially today with the dollar where it is and the economy where it is, and a new government, the new government needs to come out with a directive. The Prime Minister has the authority, because the Queen didn't say, "Don't continue with the treaty.'' The Queen wants to see this work.
The Prime Minister needs to say, for the good of this country, for peace, order and good government, which is the POGG clause, for good commerce, our partners — I have a letter here from the Prime Minister inviting us to go to a First Ministers' meeting in two weeks. He calls us his partners, and we are.
For a good partnership, all he has to do is declare that the Jay Treaty is a good treaty and recognize the instruments that we have in place. Very simple; that's all you need. You don't need legislation. You don't need a task force. You really don't have to study this. The Prime Minister has that authority.
Especially today with climate change, with all the problems that we have, I think we could use the good lessons and work together on that. That's what we suggest, especially because the Gwich'in up north go east-west and have difficulty crossing the border into Alaska, which is a new state that has been developed within our lifetime.
The Chair: Thank you, Chief Erasmus, for that elegant solution.
Senator Patterson: Thank you for those presentations.
I was struck by the efforts that Akwesasne has made to develop practical solutions to the problems that you've described, and the examples you've given about how, with goodwill, it seems that in other parts of the country those solutions have been found, where geography poses barriers to free crossing.
You've said repeatedly that you've reached out to CBSA, and you've found out that the U.S. Customs and Border Protection would support development of expedited methods like the CANPASS system you describe.
Has CBSA given a reason why they won't do in your region what they've been willing to do in other parts of Canada with similar problems? Do they give a reason for opposing your suggestions for a practical solution?
Mr. Ransom: It hasn't been articulated to us very well. What I can say is that the United States has what's called the WHTI, Western Hemisphere Travel Initiative. Under that initiative, tribes in the United States have the ability to produce their own secure identification cards, and they have to meet technology and security requirements to be used as a border identification card.
Mexico has done the same. Indigenous people in Mexico can produce their own card and cross the border from Mexico into the United States. Tribes in the U.S. can reciprocate and are allowed to travel into Mexico.
A growing number of northern border tribes have started that process as well. The closest one to here is the Seneca in western New York. They have developed a WHTI-compliant ID card.
Canada initially accepted one tribal card from the West but has since revoked it and will not recognize any U.S. tribal ID cards. We believe it's for political reasons and think it requires a political solution.
Courts are unfriendly to indigenous issues, and it's not a good forum to try to resolve this type of issue. Political will can make the difference, and you can make the difference.
Senator Patterson: I know this may be difficult for you to answer, but you said they haven't really articulated a reason for not cooperating, and in one case reaching out and then pulling back. What are the political reasons? I understand this might have applied for Canadian governments of several political stripes because this has been a long- standing problem.
Would you be able to speculate as to what are the political concerns?
Mr. Benedict: During the trial that our community member went through, there was testimony from senior officials in CBSA that indicated that alternative reporting was extensively examined within the CBSA. So they've looked at what it would take to do this. The one issue that arises is the cost, to be able to set up a reporting station, an alternative reporting station, when there's a customs facility relatively close.
There has always been some back and forth — and this ties into the treaty — the identification issue. As you've heard from the previous testimony before us, enough of our members do not carry Certificate of Indian Status because they don't qualify, but they are American-born Indians.
With the difference in identification, not all of our members would be able to use an alternative reporting mechanism because they do not carry a Certificate of Indian Status. As you heard earlier in some of the questions that were articulated, entering into the United States, whether you are an American-born or Canadian-born Indian is not a problem. In reverse it is. Therefore, alternative reporting becomes who is going to be qualified to use this mechanism and who is not.
We view it differently than the Government of Canada, which is by the Certificate of Indian Status. So one of the political issues that arise is the cost and also who can.
Senator Patterson: You heard from the CBSA representative. Unfortunately, they aren't here to hear from you, but they did express some pride in hiring an Aboriginal liaison officer in 2011. Has that initiative borne any fruit in this area? Has it been of any use in resolving any of the issues you've described?
Mr. Benedict: It may have for some on-the-ground disagreements and interpretation of the law for admissions or carrying goods. As you asked earlier, there was the Akwesasne Residents Remission Order. Sometimes there are some interpretation issues there. The CBSA liaison person would be the first point of contact for the agency, who would then work with a representative of the Mohawk Council of Akwesasne. So it helps mitigate.
The problem is through Canada's Customs Act; it's very prescribed, and there's not a lot of flexibility within that act. So if an enforcement action or an inspection happens, at the time there's not a whole lot that can happen. It's after the fact that an issue has occurred that the liaison can assist. Sometimes there's some mitigating beforehand, but a lot of times it's after the fact.
Senator Tannas: Thank you very much. It became very clear to me in the last round, and I think Mr. Pembleton also added to this, that the Jay Treaty doesn't give the rights; it provides the evidence that the Aboriginal right was there. It's a 250-year-old document, and somebody went to the trouble of recognizing that this was an issue, right? That became clear for me, and thank you for reiterating that.
What we're doing here is relatively new for us. We're calling these special issue hearings. The idea is to try and shine the light on nagging problems. It's not just the Aboriginal Committee. This is starting to expand into other committees as well. We're here to shine the light on an issue and to look for solutions and, if we can find a solution, to shame everybody into coming together and solving it.
I've been here now three years. I've heard a lot of talk about the United Nations declaration and so on. That's not going to solve this problem because the United States isn't a signatory to that and won't be, and we won't be able to cause them to be, even if we do. So the solution comes from all of us looking at the practical answer.
Could you specifically, in two or three sentences, tell us exactly what you need in order to make it work for you and to make this work. What does the Canadian government need to do in order to make this work for you? Is it simply harmonizing, doing what the U.S. government is doing, treating everybody the same way, or is it something different? I'll leave it there. If you can find a way to essentially write for us in very plain, practical terms what our report ought to say that the Canadian government ought to do to fix this problem. Thank you.
Mr. Ransom: I have a couple of comments in response to that. One is to join the United States in recognizing indigenous secure identification cards. That will facilitate border crossing. It will help in self-identifying who is Aboriginal and who is indigenous.
Second, there needs to be recognition of the rights that were identified in the Jay Treaty to cross the border, particularly in our case when the border divides our community in half and you can't help but cross the border to go from one district to another. Doing those two things will make a huge amount of difference. And it should be done as a cooperative effort between Canada and indigenous people.
Senator Tannas: Thank you.
Senator Sibbeston: Can you explain the map? I see on the map here there's a United States-Canada border, and it just goes along the shore. Is the brown island Kawehnoke?
Mr. Ransom: Kawehnoke is the Ontario district for the community of Akwesasne. If you see the red line that goes through it, that's the road, and that's where the Canada Border Services Agency port of entry is in the city of Cornwall on the north shore of the St. Lawrence River. Kanatakon is the small district above the Akwesasne name, in the Quebec portion, and Tsi Snaihne is the other Quebec-based district. All three are under the Mohawk Council of Akwesasne. You can't get from one to the other unless you go through the southern portion of Akwesasne, into the United States.
For Tsi Snaihne and Kanatakon, you don't go through any port of entry. You just go. But if you want to go from those two districts to Kawehnoke, you have to go to Cornwall, report, turn around and come back. It doesn't make sense when you're not going into Canada; you're only going into Akwesasne.
Senator Sibbeston: I was trying to get from the government officials just how much of an issue this was on a day-to- day basis. I'd like to ask you, then: On a day-to-day basis, how much conflict and tension is there with respect to the border issue? How much does it affect your lives? Is it somewhat workable, or is it a constant tension and conflict issue between you and the federal government?
Mr. Benedict: I think Justice Binnie understated when he said it's beyond an inconvenience. Day to day it's not a conflict. Sometimes there are disagreements in interpretation or admissions, which goes to who is able to enter the country and who's not. The biggest issue is the wait times. The wait times have been significantly reduced, but it's the fact that we keep illustrating, when we're coming from one part of our territory to another part, we have to report to Canada customs and then backtrack again. That is, by far, the biggest inconvenience, the biggest annoyance that people feel every day.
Then if you happen to pick up some groceries in the United States, or some mail, it happens more than often that there are some things that are just inadmissible into Canada that we take for granted, such as vegetables. There are some crazy things that exist that you can't bring into the country. People forget this, but you're moving literally from one part of your territory to the next, but these laws and regulations are suddenly placed upon you. That is the day-to- day situation.
There are, like I said, some interpretation issues that occur every now and then. There may be family members who come from another Iroquois community down in the United States who do not carry a certificate of Indian status who are coming to visit a member of their family who may have married out of a Seneca nation into Akwesasne but can't enter the country because they have a DUI, or they did something when they were 16 years old that flags up and they now cannot visit a sister community. Those are some issues that we'll say cause a bit of tension. Now your uncle is coming to visit you and can't be at his niece's thirtieth birthday because of something like that. That's when it creates some problems.
Mr. Ransom: If I could share some statistics with you, the Cornwall port of entry, that corridor, is the tenth-busiest port of entry in Canada; 1.2 million passenger vehicles per year go through that port of entry, and 70 per cent are Mohawk. That's how much we use that port of entry. It's Mohawk. It's part of our community. That's the impact.
I'll give you another statistic. Businesses on Kawehnoke since the CBSA moved to the city of Cornwall have had a 50 per cent loss of profit because their customers are not allowed to stop on the island; they're being forced to go into Cornwall and report. Once they go, they don't come back.
There's a duty-free store on the south shore. They're free to stop there, do their shopping, stay as long as they want and then go through, but they can't stop for a bottle of water on Cornwall Island or Kawehnoke. That's the economic hardship on those businesses.
Senator Sibbeston: I appreciate the invitation you've given us to go and see. It seems like it would help us a lot to understand the situation because at the moment it's just a map, and it's hard to visualize and understand your situation. So I myself am certainly interested in visiting your area, your lands, so that we can see just what you're talking about. I'll certainly encourage that to the rest of my colleagues. Hopefully it's something we can do in the next few weeks.
Senator Lovelace Nicholas: Welcome. Just to clarify this for the people listening outside of this room, the border separates your community, and it was imposed on your people to put a border right across your territory. Did they let you know? Did they consult you? Did they say, "We're going to put a border here; do we have your blessing?''
Mr. Ransom: I'll give you an example. If you look at the map where it says Kawehnoke, on the left-hand side there's a white piece of land. It's another island. It's called Barnhart Island. It was a Mohawk island. When they set the border, they moved the island from the Canadian portion of Akwesasne to the U.S. portion, and it became a U.S. island. It was Mohawk. They never asked us. They just did it and they took the island away from us.
Senator Lovelace Nicholas: Thank you for that clarification. Just one more question here. As you know, when the borders were put up, on both sides of the countries, Canada and the United States, families got separated; correct? And so with that, how could we improve border crossings by indigenous peoples so that we can get together with our families again?
Mr. Ransom: In Akwesasne, if you notice how big the Akwesasne is, we try to say the whole community is Akwesasne, that we're one people; we're one community. So maps now say Akwesasne, Ontario; Akwesasne, Quebec; or Akwesasne, New York. It's by taking positive action like that that we express ourselves in positive ways and say that no matter which part of Akwesasne, it's still Akwesasne. So we try to minimize the border impacts as much as possible.
I was born on the American side of Akwesasne. My wife was born on the Canadian side of Akwesasne. My children were born in the city of Cornwall in Ontario, but they've lived their whole lives on the American side of Akwesasne. That's common for all of our families, that interrelationships exist. That's what's unique about our community.
Mr. Benedict: If I may add, madam senator, you said the border separated families. I will tell you that because of the location of the border and the inconvenience of having to have identification across the border or never knowing what kind of border wait times you're going to experience or what kind of grumpiness a border officer may have, the border still continues to separate our families. When you look at the diagram, residents that live in the Quebec portion adapt going to family functions if you live on the Ontario portion because you're going to have to go through the border to get there. You have to plan around going through the border. If it's a long weekend and your child wants to go to a birthday party on the Ontario portion, you probably won't be taking them or you will be leaving early because of the fact you have to compensate for the border travelling, when literally, without the border wait times and any issue with identification, it's probably a 12-minute drive. So it continues to separate families today.
Mr. Erasmus: Thank you, Madam Chair. It's all really simple. It has always been economics and it always will be. You'll notice that Canada, for whatever reason, did not want to support, recognize and implement the rights that we have as indigenous peoples. If it wasn't for us, Canada wouldn't have had the opportunity to make that treaty in the first place, so that's one point.
You'll notice that NAFTA really wasn't for indigenous peoples; it was for the Canadian public. So Canada has taken care of itself, but it's not doing what the Supreme Court of Canada talks about, which is to recognize the three sovereigns. Canada says the sovereigns include the Aboriginal people, the provinces and the federal government. So there are three sovereigns; there's no question at all. It's a question of, as others have said, the political will.
I think it's important to say that. The other thing in terms of reconciliation that we talk about is that here's a real opportunity to reconcile, because it's something that was done in the past; we don't really understand why. But our eyes are wide open now. We all speak English. We all read and write. We all went to the same schools. Senator Sibbeston and I both went to the University of Alberta. We're graduates. We went to graduate school. So there's no excuse today, in 2016.
So if we talk about what has happened to our people, the Gwich'in have almost lost their language. They almost lost their language because they're no longer tied to their people in Alaska, who still have their language. They still have their talking stick when they speak; they still have their practices. They have virtually lost their songs. If they were able to get together freely as they used to, as the Jay Treaty suggests, that would make their culture so much stronger. That would tie them together with that porcupine caribou herd they fight over. They go to the U.S. to fight over the porcupine caribou. That would strengthen them. So that's east-west.
North-south, the Hupa in California are Dene. There are other Dene tribes in California. Lake Tahoe — "tahoe'' is a word in our language that means "up close to God''; they're in the mountains. They are Dene. The Navaho are Dene. They still speak their language. We understand their language and we communicate with them. There are the Apache in Mexico. That would bring all our people together and make us stronger as cultural peoples.
I think in terms of reconciliation, we can do much here. We have the authority to do that, and I'm sure President Obama would support that.
The Chair: Thank you for those comments.
Senator Enverga: Thank you for your presentations. You must have heard what CBSA said, that there is no problem getting in and out of Canada or the United States. You must have heard that.
You mentioned, chief, that it's the convenience factor that's causing you to be here. That's one of the reasons why we should consider the Jay Treaty.
I'm trying to find a simple solution that perhaps would help you maybe in the short term. Will adding more ports of entry help your people to have more convenience crossing the borders?
Mr. Benedict: Adding another port of entry?
Senator Enverga: Or more ports of entry.
Mr. Benedict: No, I don't believe that would be entirely the solution. Some time ago, Canada and the United States signed the Beyond the Borders agreement, which talked about co-locating Canada customs and U.S. customs in one location. That hasn't come to fruition. That would be one of the solutions to the immediate in Akwesasne. But, again, it goes back to who is able to enter the country and who is not. That is one of the fundamental challenges that as Mohawks and as an Iroquois community we view it differently than the Canadian government does. Clearly, the construction of a co-location would be one.
Entering into dialogue with our community to do a pilot project to establish a secure border card that we can agree upon would be another solution to the issues.
Senator Enverga: I've heard about the Akwesasne Residents Remission Order. Are the provisions enough for you? Are there any outstanding issues regarding duties for goods imported in Canada by your members?
Mr. Benedict: The remission order partially satisfies some of our members. The problem is that it goes back to the interpretation of "member,'' who can enjoy the remission order. It is only specific to registered Indians under the Indian Act that are members of Akwesasne.
Again, it goes back to who Canada deems as members and who we deem as members. There's a difference there. Nor does that recognize any of our other Iroquois communities or, in fact, any other indigenous community's ability to cross the border. It's specific to Akwesasne, and it's even more prescribed as to who an Akwesasne a member is based on Indian registry, not on anything we as a community deem a member may be. That's the challenge with that.
It may help broadly, but this remission order is over 20 years old, and if you read it, the language in it talks about bringing oil in and blankets. It's very specific, but it's for the personal use of members.
Senator Enverga: What would you suggest? If we wanted some changes to this Akwesasne Residents Remission Order, are there any specific suggestions that you think would make everyone happy?
Mr. Benedict: Entering into dialogue to modernize it would be very beneficial. Recently, the Government of Canada made an offer to our community for settlement of a land claim. This actual land claim is a bit to the right of the map here.
The problem with that is that there's another border crossing that our people will have to go through to get to the land claim area so that they can purchase land there. They're not getting the land back when we purchase land there.
The problem with the Akwesasne Residents Remission Order is that it's only specific to the Cornwall port of entry. Once we start expanding our territory, it's not going to work for this other border crossing, which is the Fort Covington-Dundee border crossing in Quebec.
That's a huge issue that's on the horizon that we need to deal with. Modernization of the remission order would be an immediate help.
Mr. Ransom: If I can add to that, recognizing intertribal trade is another area that should be examined, and having the ability to trade between First Nations and tribes in the U.S.
NAFTA allows trade between Canada and the United States. Why not tribes and First Nations? Make us part of that process. Embrace us. Help us grow economically. Thank you.
Senator Raine: I was very interested in finding out how you determine citizenship or membership as an Akwesasne in a community that straddles the border for both countries and the two provinces. Do you have your citizens' information that could be transferred onto a secure card?
You have 12,000 members. It doesn't seem to me like it would cost a lot of money to get that done. It seems to me that that would be the first step in letting everybody relax as to who's coming and who's going and make it easier.
I think you're right when you say you should, with today's technology, be able to do it from your home on Kawehnoke, Cornwall Island. If you want to go over to Quebec, I don't see why you'd have to drive over and plug up the border crossing in Cornwall.
Mr. Ransom: Yes. I forget the question.
Senator Raine: Do you have a common citizenship for Akwesasne?
Mr. Ransom: We have an office of vital statistics, and they maintain the membership for the Mohawk Council of Akwesasne. The American side has a tribal clerk, and they maintain their membership. We also have a traditional council, and they maintain their membership.
We have the ability for all three Mohawk governments to work together. You can produce one secure ID card for all of us, but each one can put its own logo on it so that it allows them to self-identify as a member of the American side or the Canadian side or the traditional government in Akwesasne.
The technology exists. It's just political will, addressing concerns and getting it done.
Senator Raine: To be clear, are the qualifiers — what you have to do to qualify as an Akwesasne in the three categories, if you like — the same?
Mr. Ransom: I'm not the expert on membership, but it does require you to show lineage, that you're Mohawk; both sets of grandparents. I forget how many generations back it goes. You have to demonstrate that connection as part of it.
Senator Raine: Is that the same in Canada?
Mr. Ransom: That is in Canada.
Senator Raine: So when you marry somebody who is non-Mohawk, they are not automatically an Akwesasne member?
Mr. Ransom: No. The non-Mohawk is not.
Senator Moore: Thank you, gentlemen, for being here.
I want to follow up on Senator Raine's question. I was a member of the Standing Senate Committee on Banking, Trade and Commerce when we worked with the U.S. Department of Homeland Security immediately after 9/11, and we developed the Western Hemisphere Travel Initiative, which was, as you probably know, Mr. Ransom, an enhanced driver's licence. We had a project that worked between British Columbia and the State of Washington. We also ran it through New York and Ontario. It was successful, recognized by both countries when you crossed border.
If you have 12,000 people, it seems like a very manageable group to have an enhanced card put in place. The card has certain personal information on it. The technology is there. Why can't we do that? Why hasn't that been done? Have you tried to do it?
Mr. Ransom: There is absolutely no reason why we can't do it except for political reasons.
Senator Moore: Who do you have to go to to get that done?
Mr. Ransom: It's in the Prime Minister's hands, as far as we're concerned. He can make the decision to say, "Do this,'' and direct staff to work with First Nations to ensure that we meet the WHTI requirements.
Our traditional government has already contracted with Siemens, and they've already produced a prototype. They're ready to go, but they can't even get in the door with Canada to do it.
Senator Moore: When we did that, it was done between the Public Safety Canada office and the Homeland Security office. We worked it out. It's been done.
Mr. Ransom: Yes.
Senator Moore: The technology is there. We know what has to go into it to make it secure, recognizable by both Canada and the U.S. inside the border.
Have you tried to go through our public safety minister, the Honourable Ralph Goodale? Have you tried that, or are you sticking with the Prime Minister's Office?
Mr. Ransom: We've tried everything. Even U.S. Customs and Border Protection has tried to get Canada to recognize enhanced tribal ID cards, and they have been unsuccessful.
Senator Moore: Has the approach been of the same kind of information that has been installed on these cards under the WHTI program? Is that what you're advocating?
Mr. Ransom: Can you repeat that question?
Senator Moore: I just want to make sure that what you're asking for in terms of what's to be included in the card is no less than what is used in the power projects and in enhanced driver's licences — same sort of information.
Mr. Ransom: Exactly. It has to be a WHTI-compliant ID card. It has to have all of the security features on it that would be in an enhanced driver's licence. It has to be tied to a database that would be accessible. So we're prepared to work on all of that and just do it. It's time.
Senator Moore: It should be done. The technology is all there. It's ridiculous.
Senator Tannas: To your comment, with these special hearings that we are at the very beginning of undertaking, I, for one, am very keen to make sure we shine a bright light on this. You've provided us with very succinct, practical and specific requests. What you need in order to have your peoples' lives made better is a no-brainer, as far as we're concerned. It's bonkers that this has been going on as long as it has. We asked the CBSA, and Senator Sibbeston pressed the CBSA to ask us if there were any issues that they wanted to discuss or knew of that weren't being raised — was there a hidden issue or something? There was not.
So I hope that you have finally come to the right place and that we can help you. That would certainly be my vote, and I think other senators, too. We will work hard to press on your behalf. We thank you for being here.
Senator Patterson: Hear, hear. Well said.
Senator Watt: I would like to support my colleague, and I think it's time; it's long overdue for somebody to deliver the message to the proper person — a person that you have highlighted — who has the authority to make things happen; that person needs to be approached, and not to wait too long on the matter.
I think the steering committee will get together on that to decide how to handle that issue. Am I hearing you correctly?
The Chair: Yes, we certainly intend to follow up.
Senator Watt: I'm not a full-fledged member of this committee, so I'm restraining myself from asking questions. When I do, I tend to go on and on, and I have to stop somewhere. I don't want to bother anybody.
The Chair: Thank you, Senator Watt. I thank all committee members, and I especially thank our witnesses. Senator Tannas summed it up very clearly: This is a no-brainer. We will not forget, and we will take your recommendations further and shine a bright light on it.
With that, we will end this evening's meeting.
(The committee adjourned.)