Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 23 - Evidence - May 30, 2017
OTTAWA, Tuesday, May 30, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 9:06 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either here in the room or listening via the Web. I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin peoples. My name is Lillian Dyck and I am the chair of this committee. It is my honour and privilege to do so. I'm from Saskatchewan.
I now invite my fellow senators to introduce themselves, starting with our deputy chair.
Senator Patterson: Dennis Patterson from Nunavut. Good morning.
Senator Tannas: Scott Tannas from Alberta.
Senator Raine: Senator Nancy Greene Raine from British Columbia.
Senator Doyle: Norman Doyle from Newfoundland.
Senator Manning: Fabian Manning from Newfoundland and Labrador.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Montreal, Quebec.
[English]
Senator Pate: Kim Pate from Ontario.
Senator Watt: Charlie Watt from Nunavik.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas from New Brunswick.
The Chair: Thank you, senators.
Today we continue our study on what a new relationship between the government and First Nations, Inuit and Metis peoples in Canada could look like. We will begin our study with a few meetings looking at the history and what has been studied and discussed on this topic, and today we welcome two experts on the history between the Crown and First Nations in the Maritimes. Our second witness will be here shortly. We have here in the room Professor William Wicken, Department of History, York University. On her way is Marie-Pierre Bousquet, Full Professor/Director, Indigenous Studies Program, University of Montreal.
We will begin this morning with Professor Wicken. If you could do a 10-or-so-minute presentation, and then we will have our second witness, to be followed by questions from the senators.
William Wicken, Professor, Department of History, York University, as an individual: Good morning, senators. I'm not exactly sure what you want in terms of this. I understand that you want me to tell you something about the history of the indigenous peoples or the Aboriginal peoples of the Maritimes and the British Crown. What I should tell you is that I am a professor of history, but I also work extensively as an expert witness. That means I have been called several times — 17 times — to testify in various constitutional cases that relate to Aboriginal people.
Now, the basis of this, as you well know, is section 35 of our 1982 Constitution. I have almost consistently testified since 1993 in a series of cases, mostly in the Maritimes but also recently in the Daniels case, which came before the Supreme Court in 2016. Of course, in all of those instances, I testified at trial, introducing various documents, as well as my interpretation of those documents. The basis of that was often, of course, the treaties that the indigenous peoples of the Maritimes signed with the British Crown in the 18th century.
As you may know, there are six major treaties, which were signed between the indigenous communities of the Maritimes, that is, the Mi'kmaq, Maliseet, as well as the Passamaquoddy, in this time period between 1725 and 1779.
These are critical documents in terms of how the indigenous peoples of the Maritimes, the Mi'kmaq, Maliseet as well as the Passamaquoddy, think of themselves, as well as their relationship with the Crown. They see it often as the very basis of how they should interact with the Government of Canada or the provinces of New Brunswick, Nova Scotia, as well as P.E.I., and the other provincial governments.
Maybe what I should do, though, is just to say a few other words about that. We don't know a lot about these treaty discussions. We know there are treaties. We know there are things that are promised by the British Crown, but history and historical analysis is often opaque. It's not translucent. We don't have a window here we can actually look through and say, "There is the past.'' The past is not translucent; it's opaque. The past is something that is refracted to us and that makes it very difficult for us to actually understand what transpired in the 18th century.
What is important, however, about these treaties between 1726 and 1779 is simply this: The very basis of it is the 1726 treaty in which the British Crown promises the Mi'kmaq, Maliseet, as well as the Passamaquoddy, certain things. This is, as we might call it, law at the edge of empire. It is the means by which the British Crown attempted to integrate the indigenous population of the Maritimes into the common law by establishing a set of laws which would govern their relationships from then into the future.
As you well may know, in Nova Scotia, in 1726, there were perhaps only 300 English-speaking peoples. There are 5,000 French-speaking Acadians, but with the surrender of Acadia to the British Crown in 1713, the British were forced to establish this relationship with the indigenous population, and that was not an easy process. That was difficult. How did they reconcile their desire to settle and to colonize this area with the indigenous inhabitants? On what basis would they do that? So they saw the treaties as a means by which to do so.
As I said before, the treaties became law at the edge of the British Empire, to integrate these people into the common law. But it was a mutual process in which each side had to understand mutually what their relationship would be, both then and into the future.
After 1779, the problem became the Loyalist immigration after the American Revolution between 1776 and 1783. After 1783, there is a flood of English-speaking peoples into the Maritimes, as well as, of course, into present-day Quebec and Ontario.
That changes fundamentally the dynamics that existed up until that time between the indigenous population and the British Crown. This place that we now call Canada became a refuge and a settlement area which the British Empire would henceforth use in order to retake and reintegrate the new American republic into the British Empire. That, of course, ended with the War of 1812, because that was unsuccessful.
For the indigenous people of the Maritimes, the problem became that gradually, over a period of time, they became inundated with a new settler population. The treaties, which had become the basis of their relationship with the British Crown, were washed away. They became, in fact, forgotten. That's what we would say. They became forgotten within the Crown itself.
So henceforth, after 1783, you find a series of petitions and arguments made by the Mi'kmaq, the Maliseet, as well as the Passamaquoddy, about what these treaties mean: "These treaties mean something to us. They mean these things.''
Now, I'm being unnecessarily vague, but what I'm saying is that they began to see the treaties as organic documents, much in the same way as we see the BNA Act or our 1982 Constitution as organic documents. The American Bill of Rights, the first 10 amendments to the American Constitution, are being constantly interpreted and reinterpreted in what they mean within the present day.
Between 1794 down into the 1960s, the Mi'kmaq and the Maliseet began to see these treaties in the same way.
What I ask, and I think what we should all ask, is why did they remember these treaties which were signed in the 18th century? Why did they remember them up until the 20th century? Why did they hold on to them? Why didn't they just forget them? My argument is this: The Mi'kmaq, the Maliseet and the Passamaquoddy never became part of the labouring classes. They were never integrated into the commercial agriculture sector of the Maritimes. They never did that. They were marginalized economically, politically, culturally and legally.
The reserves that were created for them weren't done so often until the 1840s and 1850s with the growth of the middle-class reform movement in Great Britain and Ontario, as well as other parts of British North America. Those reserves were located on marginally economic lands, which made it impossible for these indigenous people to actually participate equally within this expanding colonial economy, and that was a problem. They not only found themselves economically marginalized, but they also found themselves confined and it made it difficult for them to live, survive and thrive.
By the late 19th century, in this period of massive depression across North America between 1873 to 1896, what we see in these communities is increasing impoverishment and higher than normal rates of infant and child mortality, as well as what we would know as lower fertility rates. That leads to population decline by the early part of the 20th century.
So if I come back to my last point — why did they remember the treaties? Why did they see them as organic documents? Why did they do this? What I would say is that it was because they began to identify politically, legally and culturally with these treaties, and at the same time at which others within Canada became associated and began to identify with the Canadian state. This was the time of the late 19th and early 20th century, when we began to see the growth of the feminist movement, with women demanding that they have the right to vote, when the enfranchisement is extended to other peoples. More recently, we have heard arguments about Vimy being, in fact, the beginning of the Canadian nation and, again, a Canadian identity.
At the same time as those events are occurring and people are identifying as Canadians, the Mi'kmaq, the Maliseet and the Passamaquoddy are thinking of themselves in very different ways. They are thinking of themselves not so much as Canadians but as people who are tied to a treaty and a relationship with the British Crown which is different and distinct.
Why they have to do that is because, as I've argued, their syntax is different, their clothes are threadbare and their skin is darker. When they move outside of their reserves, they find difficulty in being accepted and integrated into this broader Canadian society. So the treaties become a means by which they can thrive, perhaps, if they push the government and they push the courts in order to establish some sort of economy in which they themselves could participate on an equal basis with other Canadians.
The Chair: Thank you very much, Professor Wicken.
Our second witness has arrived. Thank you very much. I understand you were tied up in traffic. Welcome. You now have the floor, Professor Bousquet, to do a 10-minute presentation, after which there will be questions from the senators.
Marie-Pierre Bousquet, Full Professor and Director, Indigenous Studies Program, University of Montreal, as an individual: Thank you very much. Do you prefer me to speak in French or English?
The Chair: You can speak in French. We have interpretation.
Ms. Bousquet: My first language is French. I'm sorry for being late, first. I was stuck in traffic. The first thing I learned when I arrived in Ottawa this morning is that there was a huge accident. I'm so sorry.
What exactly is the presentation that you want me to make? A presentation of my work, or a specific subject?
The Chair: A presentation with regard to your work and related to the committee's study, which is looking at a way forward, based on the past history.
[Translation]
Ms. Bousquet: I worked on many different subjects. My work is really based on field research. So, I am much less interested in archives, and more interested in interviewing elders and other people. I have a great deal of interest in oral history to obtain the point of view of the Amerindians I work with. I work mainly with the Algonquin peoples, and with the Anishinaabek, in particular.
As you may know, the Anishinaabek live both in Quebec and in Ontario, and are divided by a border that makes no sense to them. They suffered from the imposition of that border, which not only divided them linguistically, since there are three vehicular languages among the Anishinaabek, i.e., French, English and Anishinabemowin, which still exists, but also politically, since for a long time they were dependent on the fact that they lived in two provinces. To give you one example, one of the Anishinaabe groups was for a long time classified as Ojibway by the federal government, and could not join in the territorial claims of the Anishinaabek, who used to be called the Algonquin, since they were not considered to be a part of the same group. "Anishinaabe'' is a broader term that means "the real men'' and "the real human beings'', and they did not recognize this difference that was imposed on them by politics.
I worked on many topics, and the one that took up most of my time these past years was bureaucratic colonialism. Amerindians were not colonized by law or by weapons, but a hegemony was imposed on them in another way. To give you an example, at birth in Canada, you need a first name, a family name and a place of birth to be registered, or you do not exist. You can't be vaccinated, you can't go to the hospital or be registered in school. In short, you need a legal existence. However, the majority of Amerindians were born in places that did not appear on maps, that is to say on government maps, and they had no family names. And so, the missionaries, the Indian Affairs agents and the Hudson's Bay Company created one for them.
Having a name is very important to one's identity, and I know people who have four names: a family name created by the missionaries, a family name created by Indian Affairs agents, a family name they created themselves according to what seemed most normal, and a family name created by the Hudson's Bay Company. Four family names is a lot, and it makes things very complicated when you apply for a passport, because you are only allowed to have one family name.
I worked a great deal on that issue, and that is part of my work on bureaucratic colonialism and on Indian residential schools, particularly in Quebec. This topic is dear to my heart, although I never sought it out, because it was the former residential school boarders, the survivors, who came to me spontaneously and did me the honour of telling me their stories, which I analyze and try to understand. Consequently I am working on that part of history, on that "national crime'' as it has been described by many authors, not only to collect the stories of survivors, but also to transform them into a collective memory that can become a part of the common history of our country.
[English]
The Chair: Thank you to our witnesses. We will start our round of questioning, beginning with the deputy chair.
Senator Patterson: Thank you, witnesses. I'd like to turn first to Professor Wicken.
Thank you very much for the clear and eloquent presentation. It really helped me to understand the situation with Aboriginal people in Atlantic Canada.
I'd like to answer your first question about what we want to do with this study, in a few words. The committee is studying precisely the issue you alluded to in your presentation, which is how we now define the relationship between Aboriginal peoples and Canada, which is a stated priority of the current federal government. How do we redefine that relationship in a way that creates progress for the broader Canadian population, government and also for Aboriginal people?
You've got me thinking that it's very clear that the Mi'kmaq, Maliseet and Passamaquoddy became, and are still to a significant degree, I'm sure, alienated and marginalized from the broader population, which can describe many of our Aboriginal communities. They were given poor lands and they suffered economically. They still look to the resolution of their disengagement from Canada from the treaties. They still remember the treaties. They see the fulfillment of the treaties as a way to link to Canada through the actions of the British Crown.
If I've summarized your presentation correctly, do you think, today, as we look for answers — how do you reconcile, how do you re-engage, how do you build a new relationship — do you think the answer lies significantly in re-examining those treaties and bringing them to life in the modern context? Is that the key to building a new relationship in Atlantic Canada?
Mr. Wicken: That's a really good question, and like any academic, I would say it's complicated. Of course, I don't have to deal with the political process.
In Nova Scotia, as Senator Christmas would be able to tell you much about this, after the Donald Marshall, Jr. case, which came before the Supreme Court in 1999 and at which I testified at trial, there was the beginning of a process. We pushed, and I should say "we,'' because I was the expert witness on Marshall and then subsequent cases in Nova Scotia and New Brunswick; namely, the Josh Bernard case as well as the Stephen Marshall case, both of which came before the Supreme Court in 2005.
As a result of those cases, the Mi'kmaq in Nova Scotia were able to get the provincial and federal government to the table in what we know as the Mi'kmaq Rights Initiative program. The basis of that is using the treaties as a medium by which to re-establish or refurbish the relationship between governments and the indigenous population. In Nova Scotia, again as I think Senator Christmas would be able to tell you, you have a very strong Mi'kmaq education authority that is able to communicate effectively with the provincial ministers about the integration of treaty history and treaty education into the secondary and elementary school systems in Nova Scotia.
Those are all positive elements. As you go forward, one has to remember that it's not just about re-engagement of the indigenous population, but it's also about the non-indigenous population. That is absolutely critical.
I think Alan Cairns, a constitutional expert some years ago, wrote a book called Citizens Plus. In it, he commented and criticized the report of the Royal Commission on Aboriginal Peoples that argued for the establishment of between 40 and 80 separate nations across the country. He asked: How could you, how could the government reconcile that relationship with a body politic, a non-indigenous population, which is identified with the Canadian state? How do you do that? How can you have separate nations who are dependent in some ways economically, politically upon the Canadian state at the same time making them separate? I think that's a really difficult process. I may not be expressing this very well, but that's I think an issue.
In terms of that, when I come back to the Nova Scotia and Mi'kmaq rights initiative, I think the way forward when I look at the 13 Mi'kmaq chiefs there, and I say, "Wow, you guys are really united.'' They understand that in order to do this we actually have to have an education program which tells our young people who are we, what do we do, and why do we think these treaties are important. Because without that educational process it won't work. You have to have the support of the non-indigenous population.
Now New Brunswick is a very different kettle of fish because it's a poor province, probably the second-poorest province in our country in terms of equalization payments. Schoolhouses are closing, courthouses are closing, health education is being cut back. The present government of New Brunswick is attempting to attract capital investment in order to deal with their economic situation. But also within New Brunswick you have six Maliseet bands and you have nine, if I have this right, Mi'kmaq bands or communities. So they are split politically, culturally and linguistically. And it has been very difficult, I think, for those communities to come together to deal with this relationship with the provincial government as well as with the federal government. So you don't have any similar process there, and that's a problem.
I have spent the last few years mostly working in New Brunswick, and I have been disappointed — how should I say it — working with the Government of New Brunswick, the Government of Canada, as well as for the individual communities. I don't know how to say this, because there are only certain things I can say, but it is a difficult process. It is a difficult process in which the government itself, the provincial government, lacks the bureaucratic capacity to deal with the complex issues which it confronts as a result of federal legislation and Supreme Court decisions. So too do the individual indigenous communities.
I am probably going on too long, but I do want to offer an example. In a series of Supreme Court decisions between 2004 and 2010, the Supreme Court of Canada introduced this idea of the duty to consult. If there is development on lands in which treaty and Aboriginal rights may be impacted or may be potentially impacted, the federal and provincial governments have a duty to consult with the indigenous communities concerned. Now what that meant in New Brunswick was that every provincial department, to my understanding, had to consult with every individual community about any development that was going on in the province. Neither the government nor the individual indigenous communities had the capacity to deal with that, and so they were run off their feet. Now there's a process, but that introduces a level of complexity which is difficult.
I don't know if I answered your question. You know academics, we do go on at length. I'm sorry.
Senator Patterson: No, that's very good. A very quick supplementary question now. I'm betraying my ignorance here, but I have heard of the work of the Atlantic Policy Congress, and they have come to the attention of our committee on several occasions when we were studying education, and it seems to me that in that area there's progress being made, as you outlined, at least in Nova Scotia.
Looking for a way of engaging Atlantic Canadian indigenous people in a new relationship, is the congress an important vehicle?
Mr. Wicken: The Atlantic Policy Congress?
Senator Patterson: Yes.
Mr. Wicken: I don't know. Let me be honest, I don't know. I know that I have had some contact with them, and I have been interviewed by them, but in terms of the present political situation, in terms of their relationship with the individual communities, as well as the Grand Council of the Mi'kmaq and the Grand Council of the Maliseet, I don't know.
Senator Patterson: Is there anything the federal government can do to improve the situation, especially as you described in New Brunswick?
Mr. Wicken: The federal government — I'm a little unsure what I can say and what I can't say here.
Senator Greene: Say everything.
Mr. Wicken: The federal government has responsibility for Indians and lands reserved for the Indians according to the British North America Act, section 91(24), as we know. That gives them enormous power both in defining who's "Indian'' and who's not "Indian,'' and the provinces — and I should include here Newfoundland as well, of course, I haven't really talked about Newfoundland — are subject to sometimes unilateral and arbitrary decisions made by the federal government, which make it difficult for the provinces. And we have seen that in Newfoundland with the creation of the landless band, as well as more recently — it's an ongoing process — in New Brunswick, with the recognition of the Passamaquoddy as status Indians within New Brunswick.
That's a new phenomenon. How many people are we talking about? Well, in Newfoundland, as I understand — again this is hearsay, so take it with that qualification — we're talking about 18,000 people. In New Brunswick we may be talking between 350 to 3,000 new people who will be defined as Indian under the Indian Act.
So if you're asking me in terms of how can the federal government do this, well, let me tell you, I sat on the side of the New Brunswick government as there was a discussion between representatives from the federal government and from New Brunswick about the Passamaquoddy and whether or not they would be defined as "Indian.'' It was really discouraging because the New Brunswick government didn't have the capacity to deal with the kind of issues that they were being confronted with. It was difficult.
So in that way I think there needs to be more consultation with the provinces because if you have new people who are defined as "Indian,'' in New Brunswick and Newfoundland and Nova Scotia, those people will have the right to hunt moose, and that creates a burden upon the provinces. In New Brunswick, if you want to hunt moose — I mean, it's a raffle. There are only so many tickets given out every year, so if you have new people who have that right within the province, that means fewer non-indigenous people will have the ability or the chance to be able to hunt moose. And that will create tension between this non-indigenous population and this indigenous population. As we move forward to reconciliation, I think that's a really important issue. You can see that on a common-sense, practical level, what we need to do and the federal government needs to do is to encourage relationships which are mutual, respectful between indigenous and non-indigenous people.
Senator Patterson: Thank you.
Senator Lovelace Nicholas: I welcome you here this morning. I have several questions, but I'll just ask a few. For one thing, I realize that once we were all one nation — correct me if I'm wrong — and the border from Canada to Maine separated us. Why would there be a hard time for the province to recognize the Passamaquoddys?
Another part of this question is why aren't they free to go back and forth on the border? I can cross the border any time I want, but they can't, and they have relatives on my side of the border. Your comment?
Mr. Wicken: It's a really difficult situation. I try and see it from both ways. I found it really interesting, sometimes working with the New Brunswick government and then working for a First Nation community, and seeing both sides of the issue. Because in between all of that, of course, you have the chiefs and council who may have a very different opinion. I don't know; I can't speak to that. But I'm saying as an outsider, I can see that this would create a problem for the Department of Natural Resources. Trying to reconcile how people who have been separated from their families because they live on separate sides of the border is a really difficult issue, but one where the federal government can assist in that process. They can assist in that process and make it easier for the province itself.
Senator Lovelace Nicholas: Yes, but I don't see that being fixed anytime soon.
Why are the provinces involved when it comes to indigenous people when we are a federal responsibility of the government? The federal government has a responsibility to indigenous people, not the provinces, in regard to jurisdiction.
Mr. Wicken: There are several aspects where the provincial government has a duty and a responsibility towards the indigenous population. For instance, to give you an example, I served on an environmental impact assessment panel for what is called the Sisson project.
Senator Lovelace Nicholas: Yes, I know that project very well.
Mr. Wicken: That was a multi-million dollar project, and that mine was to be built on Crown land over which the province has responsibility.
So beginning in 2009, the provincial government began consulting with both the Maliseet as well as the Mi'kmaq about that project. And in the long run that was a good thing in the sense that one may not agree with the project, but as a result of that, the province and the Aboriginal Affairs Secretariat of the New Brunswick government and the individual communities had constant and consistent discussions, not only about that but about other issues. That allowed them to say, "Okay, now we need to provide funding to the individual communities for consultation purposes,'' and that's a good thing. I have seen that transformation from 1993 on into the present where there's a much better relationship between the New Brunswick provincial government and those indigenous communities. It was horrible in the early 1990s, as you probably well know, senator.
Senator Lovelace Nicholas: I have one additional question.
You talked about these treaties. Where could one get a hold of them?
Mr. Wicken: I sent copies of the 1726 and 1760 treaties, which are the real foundation, to Mr. Palmer very late last night. So among your community, I believe that the 1725-26 treaty is considered to be extraordinarily important in laying the foundation. I believe also among the Mi'kmaq in Nova Scotia and P.E.I.; I think that is also true. But the 1760 treaty becomes the basis of the R. v. Marshall case of 1999.
Senator Raine: Thank you for, first of all, the overview of the history, because I'm from British Columbia and I'm not as familiar with the Atlantic Aboriginal history as I should be. I couldn't help but thinking during your remarks back to a luncheon we had in this room with members of the Norwegian Sami community who were travelling to Canada. It was an informal meeting, but an opportunity for us. They wanted to hear from us about Aboriginal issues in Canada, but we had a chance to ask them about Aboriginal issues in Norway.
I asked a question after they gave their presentations, because it's very different in Norway. Of course, it's a much smaller country and you have one Aboriginal people, one grouping of people who live in the Far North. Their system is quite different from ours. You can self-declare as a Sami person and get the right to vote for Sami representation in the national government.
After hearing from them, I asked a question, and I honestly think this is a little bit like the elephant in the room that we're dealing with right now. I said, "Why would you identify as a Sami person? What do you get for it?'' And they said, "I don't understand.'' And I said, "What entitlements would you get, special entitlements, by identifying as a Sami person?'' And they said, "Oh, there are no entitlements. You get all the same social support, educational support, health support as any other Norwegian. We have a very good social system in Norway, and we all get the same things.''
Ever since that day, I keep thinking that we're mixing up in our discussions about First Nations and about our indigenous people. We're mixing up what they get that might be different from what a non-indigenous person gets, and their history and their culture and their pride in their roots.
I asked the Sami people, "Why would you bother to declare yourself as a Sami person?'' And they said, "Because I've looked into my background and I'm so proud to be a Sami person, and I want to work with all Sami people to preserve and protect our culture.'' They have a very interesting culture.
In your dealings in the Atlantic provinces, because that's where the indigenous contact with Europeans came first — and I really appreciate the overview of the history that you gave us today — if we were to roll it all back or learn from the past and make a culture as Canadian that celebrates indigenous cultures, but where entitlements are all the same for everyone, is that a goal that we should perhaps take on?
Mr. Wicken: Do you want me to answer first?
Ms. Bousquet: Yes, maybe.
Mr. Wicken: You probably have things to say as well.
Ms. Bousquet: Yes.
Mr. Wicken: In 1969, Prime Minister Pierre Elliott Trudeau introduced the white paper, and when the honourable Jean Chrétien was Minister of Indian Affairs, the idea was to do away with status Indians so that they would integrate into Canadian society, as well as that they would be equal under the law in the same way as non-indigenous people.
In the lead-up to the patriation of our Constitution in 1982, there was no mention of Aboriginal people or what rights they might have. Only as a result of the mobilization, both in 1969 and in the late 1970s and early 1980s, was that changed, so we got section 35(c) of our 1982 Constitution. Why was that? Why, both in the 1960s and again in the late 1970s, did those indigenous communities mobilize? What were they upset about?
One of the problems, I think, is that once we decided — I mean, I shouldn't say "we,'' but we are the inheritors. We are the inheritors; once our society did not want indigenous people to be an integral part of our economy and once we decided that we needed to build a railroad in order to create Canada, that was the vision of Sir John A. Macdonald, George-Étienne Cartier and George Brown. The very idea of the British North America Act is the building of a nation which would be linked by the railway from east to west. Once that decision was made, it meant that indigenous people would be shunted aside because we needed their land. That's just the reality.
They could no longer be equal. They had to be marginalized. They had to be dispossessed. Those things were essential ingredients in the way in which Sir John A. Macdonald, whether rightly or wrongly, thought. And today we would say, well, you know, and I have seen this, Sir John A. Macdonald was a racist, right? We have seen this in our own media.
I have a lot of respect for Sir John A. Macdonald, frankly. I have a lot of respect for politicians. He was a person of his time. That's what he was. And we should not expect anything else.
But once that decision was made about the creation of this Dominion of Canada, there were certain consequences that come along with that, I think.
So for us to go back, yes, we can eventually, I think. And I think if you talk to the indigenous people in the Maritime provinces, they will say exactly what you're saying, senator: "I want to be equal. I want all those things that you're talking about, but for now what I want, or what I need, is access.'' So at Elsipogtog, where there is Big Cove in New Brunswick, where there is widespread unemployment and people are on welfare, how do we allow them to maintain their cultural identity and who they are, so they do feel proud, they can speak their own language and they can come to Toronto and speak Mi'kmaq and be recognized as these individuals? How do we do that at the same time as integrating them as equal partners within our economy? That's your challenge.
Ms. Bousquet: I will add to that because the first thing that came to my mind when you talked about that was the same thing in the 1969 white paper of Jean Chrétien. You said that the Sami had the same services as the Norwegians and they were proud to be Sami. I would say the young people I talk to when I go to a lot of communities say, "It's new for us to be proud of what we are because the native pride comes back, but we were so crushed that we didn't know that we could be proud of our own identity.''
I'm so glad to be able to see that, because when I began to work in communities almost 20 years ago, I didn't hear that. I mostly work in communities where people went to residential schools, where they learned how to despise their own history and their own ancestors. They learned to despise their identity, the language, and they forgot their language when they came back. They didn't know how to speak with their own parents, so to be proud, it's coming back, but it's a lot of work and we have to take part in this work because we all need to be involved in rebuilding this pride.
It's not only an indigenous problem. It's that of everyone, and the first thing is that knowledge is the key. We have to teach people everywhere in history classes at school — mostly, I do believe in schools; that's why I became a teacher — and museums and everywhere we have to disseminate this knowledge.
As you said, they have the same services. Well, you probably read in newspapers about a lot of terrible scandals where native children didn't have the same services as the other ones. Some died, and it's a scandal in a country like Canada. We are one of the richest countries in the world, and this is not normal that in some communities, even if they are remote, and sometimes it happens in cities like Winnipeg, which is not remote, that children don't have access to the same services as other Canadians, just because they are native.
The day we can say that all the indigenous people have the same services and they are proud of who they are, maybe we will change the conversation a bit, but for the moment it's not the case.
I'm trying to be short, but let's say we're going to abolish the Indian Act. Well, we all hate the Indian Act, but what would happen? The indigenous people are in the minority situation by numbers, first, and let's take the example of Quebec. They never ceded their territories, but if they are not recognized as a distinct people, what will be their rights to talk about their territories? There will be the territories of all Quebec and some parts of Canada in that state, because how can they be at the same table as negotiators if they don't have any rights? It's not possible. They will be treated like little mayors of little municipalities and not as chiefs of First Nations and with the dialogue from nation to nation. It's not possible to do that.
I think all the researchers and everyone would like to see this law disappear, but it's not possible like that. All the racist parts, of course, should disappear, but it would have to be replaced by something that says indigenous people are distinct, otherwise they will lose everything, and they have lost a lot already. So it wouldn't be fair at all, in my viewpoint.
Senator Raine: Thank you very much. I really appreciate your answers, both of you.
When I start to wrestle with these issues, I can't help but also look at the United States, where they did put in affirmative action programs for Black people. And it appears to many people that while there is still a big poverty problem in the Black communities in the U.S., there are also a lot of successes, partly because of that affirmative action. I agree that coming into the mainstream community, in terms of the economy, is probably very important. And for that, of course, you need education.
I also understand the deep roots that all indigenous people have to their land, and those are their lands. They have been there from time immemorial. Everyone else who has come to Canada tore up their roots and came to a different country. It wasn't a new country. It was already here.
It's very important that we always understand and recognize in our laws and our relationships that the people who were here first have a claim to their traditional lands that cannot be denied. Most First Nations did not give up their Aboriginal title to the lands in Canada. Even though they signed treaties, they were letting people come in — peace and friendship, and those things — but they were not saying, "We're going away.''
We need to come to grips with the land, and the resources from their lands should be shared with the people of those lands, absolutely. But having a way to juggle the two different things, to me, it's insufficient to put in social service programs that are two-year-old or three- or four-year-old bureaucracies. They don't become effective. A lot of the resources are then spent for administration rather than delivering services to those people who really need it.
We've travelled on this committee to many places and seen things that are horrific. I couldn't agree with you more, Ms. Bousquet, because I know exactly what you're talking about. I have never been in those shoes, so I can't really understand it, but intellectually, I know that we are not doing the right job. I worry about how our resources are, in the end, limited. They have to be used in a way that delivers it to the individuals most in need.
Thank you both for your comments. I don't know if I had another question for you, but if you wouldn't mind commenting: Can we separate out the delivery of social programs — housing, social services, children's health, all of those things — with resource revenue, which should flow — shared probably, but flowing to the owners of the lands? Can we separate the two?
Mr. Wicken: You're venturing into an area, the delivery of social services, that is well beyond my understanding and knowledge.
In terms of the issues around land and land resources, at least in the Maliseet communities and among most Mi'kmaq communities as well, they do see access to that land as critical. For instance, the St. Mary's First Nation, the Tobique First Nation, Woodstock First Nation — the ones that I probably know, having had more contact with them — having access to Crown land is very important to them, so they can go there to camp, and gather medicines and plants. They're very concerned about the destruction of those plants within their communities.
Senator, I'm aware of your own history here in terms of Tobique. A couple of years ago, I was at a public meeting in Tobique, in New Brunswick, and I was listening to principally women talking about the importance of having access to Crown lands and lands they thought of as their own. I was reminded of the struggle against the discrimination of the Indian Act in the 1970s and a wonderful book that had been written at that time about the women in Tobique and how there was this oral history of these women going back into the late 19th and early 20th centuries about how they gathered medicines within their own community and used them. That's less there within certain communities, and that's a shame. That's a real shame, because I think we're a richer country if we encourage and create the possibility for those communities to continue to have their own culture and their own ability to access those resources.
Ms. Bousquet: I will respect the different competencies of all the services. Yes, you can separate housing and so on from the rest. If you talk about land claims, for example, I do agree with my colleague.
In Quebec, most of the First Nations never signed treaties — most of them. They're trying to sign agreements now, which is not the same. They don't say, "We want all the land for us,'' they say, "Let's share,'' which is the case already, because they are forced to share.
Even when they have some protected areas, like beaver preserves, the forestry companies can go and cut the logs. By the way, the beavers need to eat, so even if you have a beaver preserve, the beavers are not happy because they eat trees.
Let's say that it's not the most important. The thing is that most of the First Nations that never signed treaties say, "Okay, we understand that we all need to make a living, to work and so on. Anyway, there are some extractive companies everywhere. But let's share. We would like to have some revenue from this forced sharing.''
So it's already the case. They don't want exclusivity; they still want the rights to go on the hunting lands and go to the hunting camps without seeing a company on the other side of the river, cutting everything, digging, polluting and so on. They want to be consulted.
Most of the time when they are consulted, they don't say, "We don't want the company there.'' They say, "Okay, we know that probably anyway the company will stay. We would like the company not to dig there, not to cut the trees there — to protect this area.'' They try to find compromises. They should be helped in that respect. Consulting means not asking for opinions; it's more than that. They know the lands, so it's respecting their opinions, too.
The Chair: Thank you. Any other questions?
Senator Patterson: When we're discussing the economy, Professor Wicken, could you kindly give us a synopsis or overview of the Marshall decision and tell us what impact that decision has had on the fishery in Atlantic Canada and on the relationship between indigenous peoples and Canada?
Mr. Wicken: I know some things, but I don't know everything. I will tell you what I know and what I have heard in terms of this.
In Nova Scotia, Eskasoni, the largest Mi'kmaq community in Nova Scotia on Cape Breton Island, has a large number of Mi'kmaq speakers. Three years ago, I was invited to talk to the Nova Scotia chiefs about the treaties and their education authorities. The chief of Eskasoni is a young guy in his mid-30s. I asked him, "How has the Marshall decision impacted your community?'' He said, "We have about 100 people who are employed. Some of our members just finished building 23 new houses on the reserves. That has all come as a result of the implementation of the Marshall decision of 1999.''
For other communities outside of that, I can't speak to. However, I was at a public meeting — and this is a public meeting, or I should say community meeting, as part of the environmental impact assessment, EIA, process I was involved in Tobique — where the community members were upset with how commercial fishing licences had been used within the community.
I'm not going to say more about that because I'm less sure of exactly the events that occurred. But within those communities that have the expertise and the bureaucratic capacity to deal with the complex issues that those commercial licences confront them with, then my understanding is they've done well.
This has increased employment to such a degree that the Eskasoni are able to build houses. "With some of this money,'' the chief said, "we want to introduce immersion programs in Mi'kmaq for our primary school children. We want to bring in a kindergarten.'' Wow, that's really great. That's wonderful, because that's exactly what you want.
But I think it has been an uneven situation within the communities.
Senator Patterson: Professor Bousquet, you've written about the Algonquin concepts of children and the role of education, and you have suggested that the current education system is not well adapted to indigenous people in Quebec. Could you explain further how the Algonquin concepts of children and education are not understood by the Quebec education system, please?
Ms. Bousquet: That is a big question. I will try to sum up something that is quite big, because I could be talking for three hours about that.
There is a big difference between the education in school and the education that was traditional and is still traditional among the Algonquin people. I don't like saying "Algonquin,'' in fact, because their real name is Anishinabe.
I want to take a few examples to show. When I arrive in a class, I expect my students to sit down, stay quiet, listen to me, answer my questions and when I ask a question directly, I want a direct answer. I like when the answer is right, but I don't care if the answer is not right, because I want to know if they listen to me, if they have their own opinion and so on.
It was quite different, and still is, in traditional communities in which I work. For example, you don't talk when you're not sure that you're right. It's very difficult to stand in front of others, because if you don't have the recognition of your authority in the matter by the others, you're not entitled to speak in front of everyone. I've seen that several times with my Native students. I never ask them direct questions, because it's extremely rude for them, and it's very confrontational. If they want to answer, they will do that. Otherwise, they just answer when they're sure they're right.
There is a very important sense of equality, but the system of the school is based on merit. I expect some to be excellent and others to be not as excellent as the others. There is a hierarchy in class. It goes completely against the way they see education, where the children did their own experiments; they learned through their rhythm and not the rhythm of the class.
I spoke several times with people in education sciences. I'm an anthropologist. But most of the time, their alternative system is sometimes better for Native children, because the children can choose what they want to learn. They can go with their own rhythm and take initiative, which is closer to the way the children are educated.
An example they saw in some communities I work in, because I work sometimes with social workers, a lot of children were late at school. They said to the parents, "The children have to be on time.'' They say, "Yes, but he knows that he has to go to school.'' So, for the parents, they feel it's not their duty to tell their children to go to school; it's their own responsibility. We are the parents, but my kid doesn't have the choice. He has to go to school, because it's the way I was educated.
So they changed the system. They offered all the kids an alarm and explained in class how the clocks worked and so on. It was the responsibility of the kids to wake up on time and to be at school on time. It changed everything. All the kids arrive on time now.
It's understanding the way people are used to learning and to respect the way they receive knowledge. We have to pay attention to that, because it can do miracles, really. I've seen children who were very bad pupils become very proud of themselves. They improved a lot, they finished school and now they've arrived at university, which is a bit complicated, because university is still a competitive environment. But there are enough adults now to cope with it, and there are some services in universities to help them find their way in those very big institutions.
I don't know if I answered your question.
Senator Pate: Thank you very much to both of the witnesses for your appearance here today. Professor Bousquet, one of the articles we had of yours related to indigenous women's experiences of violence against women. You talk about it and situate it within the context of the conditions related to the experiences of domination. I'm wondering whether you're comfortable commenting on how government policy has contributed to violence against women, particularly indigenous women, and what effect, if any, you see the Indian Act has had on that, particularly the gendered discrimination that exists currently within the Indian Act.
Ms. Bousquet: For that one, I'm going to answer in French, because it's difficult.
[Translation]
As you no doubt know, the Indian Act was amended several times to change the situation of Aboriginal women. When, in 1985, Aboriginal women who had lost their status because they had married a non-Aboriginal men were able to regain their status, they found themselves subject to subsection 6(1) of the act; but their children, who were not born Amerindian but became so in 1985, were subject to subsection 6(2). This provision stated that if the children married a non-Aboriginal person, they could not transmit their status to their own children.
This changed thanks to amendments made in 2011, through Bill C-3 I believe. So the children that were subject to subsection 6(2) were moved to subsection 6(1). It's awful to refer to people through the sections of a law, but that is often how the women explain things, because they depend on them. This is part of their everyday life. Moreover, I am summarizing the situation, because there are numerous very complicated exceptions.
So the problem was handed down to the next generation, that is to say that the great-grandchildren of the women subject to subsection 6(1) will not be able to transmit their status unless they marry an Aboriginal person or have children with Aboriginals; legal marriage is no longer a requirement as it was in the past. Thus there is a legal violence that is enshrined in law and has been for a long time, and creates separation. I remember women who told me that they had had their first child with an Amerindian and a second with a non-Amerindian, which means that they have one Amerindian child and another who is not. This creates complicated situations.
Moreover, discrimination in the Indian Act does not only involve status, as for a very long time it gave decision- making power to men only. I heard about situations from women who told me that sometimes their own brother or father, who sat on the band council, chased them away from their own band after their marriage. Some women told me that they did not know that they went into the church as Amerindians, but would leave it as non-Amerindians. This seemed incredible to them, and they lost all of their rights to take part in the affairs of their own community after their marriage. This leaves long-term marks that can't be resolved with legislative amendments. It's part of a broader process, and we see the results today.
It is also not to the credit of our country that the most vulnerable population in all of Canada is made up of Aboriginal women. As you know, there is a National Inquiry into Missing and Murdered Indigenous Women and Girls. These are the most vulnerable people in all of the country, and this situation is a part of our colonial history. One may wonder how it is possible that we are still living this history in 2017. The effects don't get erased easily, and it will take more time for things to change. It is not just a matter of attitudes; we must help Aboriginal women who in fact are doing extraordinary work in the process of taking themselves in hand. They themselves are not always convinced that they have the power to do what they want with their lives. There is wonderful work being done by groups of Aboriginal women in Canada and various provincial groups to help women, but there is still work to be done, because history has left its marks.
[English]
The Chair: That is the last of the questions from the senators. On behalf of all the members of the committee, I would like to thank our two witnesses this morning, Professor Wicken and Professor Bousquet. Thank you very much for your excellent testimony and your clear answers to the senators.
Before we adjourn the meeting, senators, we have a bit of housekeeping to do. In fact, it does kind of follow from Senator Pate's question about loss of Indian status by marriage.
In our deliberation last week on Senator McPhedran's first amendment to Bill S-3, we put into the record "replace lines 6 and 7 with. . .'' when in fact it should have been "insert after line 7.'' This in no way changes the desired or debated effect of the amendment; it just fixes the instruction which, in its current form, would be considered an error.
So after consultation with the Law Clerk, the way to fix it would be to have a motion, and we have the motion here. Has it been circulated?
I will read the motion to you:
Is it agreed that the amendment moved by Senator McPhedran and adopted by the committee on Wednesday, May 17 be to clause 1, page 1, after line 7 and that the draft report on the bill be modified accordingly?
Senator Manning: So moved.
The Chair: So moved? Is it agreed?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you, senators.
Thank you again to our witnesses.
(The committee adjourned.)