Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 20 - Evidence

OTTAWA, Tuesday, February 16, 1999

The Standing Senate Committee on Aboriginal Peoples met this day at 5:15 p.m. to examine and report upon aboriginal self-government.

Senator Charlie Watt (Chairman) in the Chair.


The Chairman: Honourable senators, we begin our meeting today with Mr. Gilbert Anderson, the chief and president from the Michel Band.

Please proceed.

Mr. Gilbert Anderson, Chief and President, Michel Band: Honourable senators, on behalf of the Michel Band and the Friends of the Michel Society, I should like to thank you for this opportunity to make a presentation to you this afternoon.

The Michel Band consists of approximately 703 people who have regained Indian status under Bill C-31. We are currently housed on the general list. There is only one general list in Canada and I think we are the only people who are on it.

We are actually descendants of the original Michel Band. Our ancestors signed an adhesion to Treaty No. 6 two years after the original treaty was signed in 1876. Our reserve was selected in 1888. It was known as the Michel Reserve 132. It was located approximately 40 kilometres northwest of Edmonton.

When we were first dealing with governments on the issue of trying to get re-established, we were considered to be a "non-entity" by those governments. Therefore, we had to develop the Friends of the Michel Society. We represent solely the 703 persons who have status and are descendants of the Michel Band.

First, we are seeking recognition by Canada that we are a First Nation and an Indian band within the meaning of the Indian Act. We have not had any response from the federal government. We would like to have this recognition so that we can exercise our rights of self-government.

Second, we are seeking settlement of outstanding claims against Canada pursuant to the specific claims policy. Like many other reserves in the West, we had many land surrenders over the years. One of the individuals, Frank Oliver, who was Minister of Indian Affairs during two of the earlier large surrenders, ended up with 21 quarter sections plus a small parcel of the land by 1914.

Third, Canada currently holds revenues from the sale of precious metals under our former reserve and title to the beds, shores, mines and minerals under a lake on the former reserve. The Michel Band has surrendered none of these assets. They were not disposed of in the enfranchisement in 1958. We seek acknowledgement by the Department of Indian Affairs that it holds these amounts in trust for our benefit.

After the creation of our band, many of our people adapted to farming and a fairly settled life. Some people maintained other lifestyles such as trapping and hunting, but many became farmers. They were quite progressive. They resented the paternalism of Indian Affairs.

My ancestors had no MP to talk to about their grievances, as we did not have a vote in those days. This created, in many of our people, a significant amount of frustration. Therefore, enfranchisement was the only alternative in order to obtain some independence from Indian Affairs.

My uncle was one of these people. Although he could not read or write, he knew about power levers, but he did not have access so he became part of the 1928 enfranchisement, along with another group of individuals.

I will not explain enfranchisement because I think most of you know what that is. However, I will zero in on the enfranchisement of our particular group in 1958.

Enfranchisement of our group was done under section 112 of the Indian Act, which required a recommendation by a committee of three for enfranchisement of the entire band and land surrender.

In our case, the committee was comprised of a civil servant who was dedicated to enfranchisement of bands, a retired judge, and an individual from the Michel Band.I read about this individual from the Michel Band. I knew him personally. Someone within Indian Affairs described him as "the best Indian we have; he is 99 per cent white." You can tell that we did not have much of a chance.

A vote was never taken on the 1958 enfranchisement or land surrender. As well, when the matter of enfranchisement commenced, there were no consequences under that particular section except that they would gain a vote and get their land. That was changed before the actual order in council. The effect was that there were consequences; they were deemed no longer to be Indian.

We believe that Canada wrongfully terminated our treaty rights. Canada was within the law to enfranchise us. However, we believe that they wrongfully terminated our treaty rights because we had no treaty rights after 1958 until some of us regained status from Bill C-31.

For some time now, we have been attempting to get band recognition. Prior to Bill C-31 coming into effect, on February 11, 1985, we submitted a claim to the native claims office, but it was refused. They said, "You are not a band." Their mandate was to deal with bands only. That is still the position of the specific claims people.

Eventually, we went to the Indian Claims Commission, an independent body. After a period of time, we agreed to deal with one issue, the issue of whether or not we were a band as a result the reinstatement of Indian status of many of our members under Bill C-31. The commission found that Bill C-31 amendments did not specifically address reinstatement of band status to bands that had lost Indian status through enfranchisement provisions although it did so for individuals. This is not surprising, considering that only two bands have ever been enfranchised in the history of Canada.

The Indian Claims Commission did make a recommendation -- and I will read only a part of it. They stated:

In our view, Canada should consider the Specific Claims of the Michel Society on their merits.

That was almost a year ago, and we have just found out that the Justice Department has not concluded all their studies and will not have an answer for us for some time. One department says this spring, which is not very far away, and other information that has come to us says next fall, possibly.

My understanding is that the specific claims recommendation should receive a response within six months. Our claim is about a year old and we are not expecting to hear anything for some time yet.

Since the Indian Claims Commission recommendation, it has also come to our attention that Indian Affairs is holding assets, including revenue from the sale of precious metals from our former reserve which have never been surrendered by our band. They have refused to respond to requests through our counsel to provide the facts about these assets for our review. We believe that these assets belong to our band. If we are correct in this, we would meet the definition of a "band" in the Indian Act, which defines a band as a group of Indians -- which we are -- on whose behalf Canada holds reserve lands or monies in trust.

Our conclusion is that we believe that Canada has not honoured the terms of Treaty 6. The conduct of Canada, both historically and currently, dishonours the terms of the treaty and it is a shameful disgrace to our rights.

While we continue to govern ourselves through an elected chief and council, and by holding an annual assembly and continuous communication between our members, we are unable to access our collective treaty rights and to obtain resources necessary for basic infrastructure, available to other bands, to effect meaningful self-government.

We ask he honourable members of this committee to recommend to the minister that our legitimate claims be accepted for negotiated settlement by Canada as recommended by the Indian Claims Commission and that our standing as a First Nation as an Indian band be recognized.

Ms Caren Buss, Legal Advisor, Michel Band: The Michel Band was the first nation that entered into a treaty with Canada, approximately 121 years ago.

In 1958, almost all of its members were enfranchised. Legally, that means that they were no longer considered Indians under the Indian Act. They are one of two bands in Canada where that happened to an entire band -- in this case, almost an entire band. It is the only case under the "involuntary" provisions whereby the Governor in Council, under recommendation, could declare all these people to no longer be Indians.

That policy, which allowed the enfranchisement of a band involuntarily, was widely recognized to be discriminatory and, in fact, was repealed two years after this enfranchisement.

In 1985, the enfranchisement provisions were repealed in their entirety. The government recognized there these discriminatory assimilation policies must come to an end. As a result, many people regained their Indian status as individuals.

The Indian Claims Commission found that, notwithstanding the 1985 amendments to the Indian Act whereby these people regained their status -- in fact, as individuals, all of the Michel band have regained their Indian status -- the amendments did not address the situation of an Indian band when the entire band had been enfranchised. Therefore, the band did not come back into being as a result of the amendments. We submit that that is understandable because this has only ever happened to two bands. It appears to have been overlooked in the 1985 amendments.

We are here today to go back to the fundamental point made by the Royal Commission on Aboriginal Peoples. When they talk about renewing the relationship between First Nations and Canada, they recommended a new Royal Proclamation. The RCAP report indicated that a crucial first component of this renewed relationship will be nation rebuilding and nation recognition. All our recommendations for governance, treaty process, lands and resources are based on a nation as the basic political unit. For this band to have self-governance, it needs recognition as a First Nation. It is a First Nation. That is who entered into treaty with Canada. Canada has obligations to this First Nation. That is where Canada's legal, fiduciary and moral obligations lie.

The Supreme Court of Canada has indicated that Canada must discharge this responsibility in good faith and with the utmost fairness and integrity. The Michel Band cannot get past the first step of self-government because Canada refuses to recognize them. Under the Specific Claims Policy, there is an entitlement under which the government can deal with past grievances. However, it only applies to bands. The department has interpreted "bands" to mean Indian Act bands. An Indian Act band is an artificial creation of statute. It does not have anything to do with a First Nation standing. The Indian Claims Commission has indicated to Canadian authorities that they should not be able to rely on their past wrongdoings and as such to continue to deny the Michel Band standing. The ICC has told the Canadian authorities that they should deal with the Michael Band.

We ask this committee to include in its report and recommendations that the first step to any self-government process structure is the need for the Government of Canada to be fair and to act in good faith in its dealings with the First Nations of this country.

The Michel Band has been subjected to technical and legal tactics, escape hatches, that allow the government to continue to deny their existence. They are Indians. They are a First Nation with a signed treaty. However, Canada continues to rely on artificial legal arguments, by saying "You are not a band under the Indian Act. Therefore, you do not get past go." If Canada is serious about a renewed relationship and developing new government-to-government relations with First Nations, it must start dealing with the people with whom they signed the treaty in an honest and fair manner.

Senator Johnson: What were you told when you made your request for recognition? We are here studying self-government, and your brief does not address that. You are saying that before you can address the issue of self-government you must have recognition. At what level are your negotiations for recognition with the government?

Ms Buss: The Michel Band has submitted specific claims to Canada. Prior to the enfranchisement, there were a number of fraudulent land transactions that took land from this band. If we are successful in these specific claims, we will have some resources. That is the second thing that this organization needs. The band is a polity with elected representation. It has legitimate outstanding claims, which, if recognized, would give the band a resource base to structure its government.

Presently, the government is saying, "We do not hear claims from you because you are not a band." We went to the Indian Claims Commission. The commission agreed that the specific claims policy only deals with bands. In this case, it said that, morally, Canada had an obligation to deal with the Michel First Nation because we are not a band as a result of Canada's wrongdoing. We keep going around and around in a circle.

Senator Johnson: Have you considered any models for self-government that could help you achieve the status that you are achieving?

Mr. Anderson: Yes. We have considered how to administer under the current situation. Most of our people are still in the area. They are still within the Edmonton telephone directory, which includes up to 50 miles away. We currently see Indian bands that are located on reserve and some that are not on a reserve, for example, the Lubicon, administering programs that we cannot administer. We are not recognized as a collective group. Basically, we must be a collective group before we can do anything.

It is possible to develop a model so that -- to the best of our ability and in the absence of land at the present time -- we could become self-governing. However, we cannot do everything. In some cases, we might link up with the Yellowhead Tribal Council or the Treaty 6 alliance. It is not impossible.

Senator Gill: I should like to know what happened in the past. Did you have reserve land of some kind?

Mr. Anderson: Yes. We had 25,600 acres located approximately 18 miles northwest of Edmonton.

Senator Gill: You said that the people all scattered. You also said that some people are living on the reserve. Do you mean the old reserve or land identified as a reserve?

Mr. Anderson: Not many.

Senator Gill: No, some are living there?

Mr. Anderson: There is no recognition of any reserve there.

Senator Gill: I know that, but they are living on the same land that you were living on previously?

Mr. Anderson: Yes. There is one family living there.

Senator Gill: Do you have some information about when you were enfranchised in 1958? Did you receive some money at that time? It was customary to receive some money. Did you receive money?

Mr. Anderson: When you talk about enfranchisement, there was three types of enfranchisement. First, there was a situation like that of my mother, who was enfranchised years before the band enfranchised under the provisions of the Indian Act because she married a so-called non-Indian.

Senator Gill: She had to sign.

Mr. Anderson: Yes. It was involuntary.

There were some voluntary enfranchisements. In 1928, there was an enfranchisement of about 31 people; and then in 1958 the total band was enfranchised, with the exception of a few people who were placed on the general list because of mental or physical deficiencies.

Senator Gill: Yes, but did you receive any money when you signed the paper?

Mr. Anderson: The people who were enfranchised in 1958 received money. I do not know what happened to those who were not enfranchised, however.

They received shares in a corporation that was put together. They received 10 shares each. Some of the people who were farming received up to a half section of land. A single person could get a quarter section of land. A married couple could get a half section of land.

All the mineral rights under the last portion of the reserve, which was by that time only 10,000 acres, were retained by this corporation that was created.

My nephew, so far as I know, received $3,100 in 1958. That was the total amount. My uncle got a half section of land, which he eventually sold for a lot of money. But the money they received was not government money; it was money that belonged to the band. We must make a distinction there.

Senator Gill: In different places throughout Canada, there is a trust fund put aside for the Indian people in Canada. In my area, for example, when the Indians people were enfranchised, they received a share of this money.

Mr. Anderson: I am talking about something different. That money belonged to the band.

Senator Gill: Do you have a band council now, even though it is not, perhaps, according to the Indian Act but, rather, according to the will of your people?

Mr. Anderson: We have had a council for several years. I am their recognized chief. We have elections. We are not governed by the Indian Act. We have our own method of conducting our elections and doing our business. We have democratic elections.

Senator Pearson: How many band members are there?

Mr. Anderson: There are 703 members.

Senator Pearson: Are you all in touch with one another?

Mr. Anderson: That number would include young children. Our mailing list is about 590, which is a good representation. Our membership includes people who are under age, but we do not send them letters.

Senator Pearson: I see. However, a husband and wife would be separate on your mailing list?

Mr. Anderson: Sometimes one of the spouses may not be a registered Indian so we do not send them an invitation to the assembly. We have an annual assembly in July, and we send out the invitations or the notice of assembly by May. We have elections every two years.

Senator Pearson: What kind of turnout do you get?

Mr. Anderson: We get extra large turnouts in election years and good turnouts each year. I am talking about 175 to 225, plus their family members. We do not exclude their family members, who may not be status Indians. In a lot of cases, they are not.

Senator Pearson: I am trying to grapple with the question of how self-governance would work when you have these mixed populations, where you have husbands and wives who are not status Indians, and so on.

Mr. Anderson: The First Nations who are on reserves are mixed up in that situation now. They have members from other reserves who are not confirmed as members of their reserve. They have spouses who are not. I do not know how they will deal with all this. The only difference is that they have that little piece of land, which perhaps gives them more structure.

We would have a membership code, however. We have one now, but the department does not recognize it. We have not even presented it to them, but we recognize it. That membership code is quite comprehensive. It deals with when we get land, how long people living on reserve would have their rights, and the rights of spouses who are non-treaty -- and it is not necessarily females that we are referring to; it could be either, male or female, nowadays.

Senator Pearson: It is very complex. I am trying to get my head around it. Even with respect to a band on a reserve, the only people who can vote are those people who are members of the band, is that not correct?

Mr. Anderson: Yes.

Senator Berntson: As a matter of curiosity, is the old reserve land, the original reserve, now occupied? Has it gone through other hands since it was enfranchised?

Mr. Anderson: Yes. That part was surrendered. There is only one family living on the last portion of the reserve, as far as I know.

Senator Berntson: But that piece of real estate where that one family resides, is it still reserve land?

Mr. Anderson: No. There is no reserve status on that land any more. However, Michel Investments owns the mineral rights underneath the last portion of the reserve, and under some road allowances.

What I want you to know about Michel Investments is that it is no longer an Indian organization. The biggest shareholders are non-Indian people, which is tragic, as far as I am concerned.

Senator Berntson: You are in a rather unusual situation.

Mr. Anderson: Yes. It is the only situation in Canada like that.

Senator Berntson: It is a Catch-22, because you cannot do this unless you are a band and you cannot be a band until you do this. How do you get beyond that?

Mr. Anderson: The federal government could declare us a band today. Well, it is a little late now.

Senator Berntson: There are 703 of you who have claimed status under Bill C-31, correct?

Mr. Anderson: Yes.

Senator Berntson: Does that capture the vast majority of descendants of the original band, or are there others out there?

Mr. Anderson: I think there are others out there. Indian Affairs statistics come out about every six months. About one year ago, there were only 600. The figure just keeps moving. I think there are more out there.

It is more complex now. At one time, it was all followed through the male side. Now, it also goes through the female side -- which is good.

Senator Berntson: If there is a will, there is a way. In Saskatchewan, where we have done a lot in terms of land claims, there was a situation at White Bear where two neighbouring bands, Pheasant Rump and Ocean Man, lost their land to a crooked Indian agent. It was not until the early to mid-1980s that that fraudulence was recognized. However, because all the surrounding land had been occupied for some time, they negotiated a deal whereby the band at White Bear -- which is where the Ocean Man and Pheasant Rump bands gravitated and were gobbled up -- received an amount of money equal to the cost of replacing that land, if land were available. As land became available, with farmers retiring and so on, they bought it at market price and it became part of the reserve.

That was a unique situation, in that three different Indian peoples resided on one reserve. They are still living on one reserve, but at least they have some of their land back.

I wish I had a magic wand to deal with your unique situation.

Senator Andreychuk: I will pick up where Senator Berntson left off. You are in a unique situation. Your situation is different from that in Saskatchewan in that a number of your people were satisfied with the agreement in 1958 and took the money. The question now is whether you can unravel what they did. You would have to prove wrongdoing on their part, would you not? That is the way it has been presented to me.

The government's position at the time was that if they allowed the re-opening of agreements into which aboriginals entered with full knowledge it would unravel every agreement ever put in place. At that time, the government was attempting to contact the people who were not part of the agreement, to see whether they were prejudiced. How has the situation changed since then?

Ms Buss: First, as a matter of historical record, there was no agreement. There was an Order in Council declaring them to be enfranchised. The government's position has been that the band consented because some members who were living on reserve voted on how the reserve would be divided up among those living there. The government interpreted that to mean that there was an agreement to the enfranchisement, but no one voted on whether they should be enfranchised to begin with. Even if they had, at that time there was nothing in the Indian Act saying that you cease to be an Indian under that group enfranchisement provision. Legally, there was no effect. Therefore, it was legally faulty from that point of view.

Another very important point is that there was nothing in the enfranchisement provisions, nothing in the Indian Act, nothing in the order in council that in any way affected the treaty rights of these people. The fundamental agreement is that Michel has an agreement with Canada, and nothing has changed that treaty, except that Canada refuses to honour it.

Senator Andreychuk: I understand that this is an action to see whether you can get reinstated as a band. However, on the issue of your treaty rights and, consequently, your rights under the Constitution and under the Charter leading to self-government, you do not really need to be reinstated. How do you keep those two streams separate? One seems to be a court action to regain property that you have lost pursuant to certain practices; the others are fundamental rights. Those are the ones that we were dealing with, namely, fundamental rights to be recognized as an aboriginal from which certain rights and responsibilities flow. That is the stream we are in because you have a particular claim against the government under the band side that is going somewhere, perhaps into the courts.

Over and above that, how do we get at the treaty rights and responsibilities that flow from the fact that certain people are aboriginal? It is identified quite nicely when we talk about a recognized band. We also have off-reserve bands. We are struggling to determine who is the leadership of those two groups.

How does self-government work? Do we only recognize the bands that say they legitimately speak for their people and that if off-reserve people want to be heard they must come back on to the reserve? We are hearing from a lot of off-reserve people who are saying that they were born aboriginal and have certain rights that flow from that.

Ms Buss: I wish the Department of Justice and the Department of Indian Affairs understood the problem as well as you do. That is the first time I have heard anyone articulate that distinction.

Senator Andreychuk: We will not be very helpful to you with your court action to get reinstated and to determine whether the enfranchisement was correct. That is a unique situation.

How do you think the government should approach settling this issue and moving on to self-government and the other issues that have been brought before us at the hearing?

Mr. Anderson: I believe that if they recognize us as a band we can then officially behave as a group and then these other matters will fall in place.

It is difficult to have a complete plan.

Senator Mahovlich: Would you be part of the First Nations?

The Chairman: He is part of the First Nations.

Senator Adams: They do not have any claim.

Senator Mahovlich: If he does not have a claim, he is not part of the First Nations.

Senator Andreychuk: I want to be clear that the only way you believe you can deal with your self-government issues is if you get back band status, which will then bring you under the Indian Act. Is that the way you want to go?

Mr. Anderson: I think that is the only direction we have to go.

Ms Buss: We do not believe it is necessary. It is just that Indian Affairs keeps telling us that you do not go anywhere in this country as a First Nation, separate and apart from the Indian Act. We do not think self-government comes from the Indian Act. That comes from Michel as a First Nation and its own internal structures and processes, and we are quite willing to work with the government in continuing to develop those processes.

Senator Andreychuk: The postscript to that is that if you did not go through the process of going back to the Michel band you could set yourself up in whatever organization you chose, because it is your choice if it is your self-government. However, where is your economic base from which to work?

Ms Buss: That is the problem. There are no resources available. You have put your finger on it. They need legitimacy, power and resources. They have internal legitimacy. They have a chief and council, and they have done marvellously over the last 20 years in keeping their identity and connection with each other as well as their political ties, but they do not have the power or the resources.

Senator Adams: Did the Michel band always control the land? How many thousand acres is the reserve comprised of?

Mr. Anderson: Under the treaty, the original reserve was 25,600 acres. There were, of course, surrenders over the years. The last portion of the reserve was around 10,000 acres. That was surrendered in 1958, along with the mass enfranchisement of the band.

Senator Adams: You talked about surrendering land. You mentioned farming, a quarter or half an acre for farming. Was the land bought from the Michel Band?

Mr. Anderson: Public land sales were involved. Some of the individuals who were on the reserve in 1958, when franchised, had their own pieces of land. That was sold on the open market, for those who sold it, and most of them did sell.

Senator Adams: For those who bought land, is it from within the band or is it outsiders?

Mr. Anderson: The general population.

Senator Adams: Is the farmland open for sale or can people negotiate with the band for that land? How did that happen?

Mr. Anderson: Once there was a surrender, the land was no longer Indian land. It was owned by individuals. I am not sure of the correct terminology.

Senator Adams: If those pieces of land were recognized as reserve land before, and you want to get that land back, how do you go about that? Must you buy the land back again?

Mr. Anderson: I wish I knew. There is a possibility of a buy-back situation. Also, we believe we own some shore land and some lake bottom there. We may all be living on houseboats one day.

Senator Adams: Approximately a week and a half ago, the Minister of Indian Affairs gave $23 million to some of the bands so that they could buy out some of the farmers. Perhaps he will do the same for you.

Mr. Anderson: We hope. That is the reserve just north of us, and we have many relatives there.

Senator Adams: How many acres are you considering? Are you looking at the same area you had in the beginning? Is that the land you would like to get back?

Mr. Anderson: At this point, the issue is trying to get federal recognition under the Indian Act. We can then deal with specific claims and self-government.

Senator Adams: I should like to see a settlement in this case.

The Chairman: In the earlier part of your presentation, you mentioned that a deal with a corporation was set up and that corporation was obtained, whether it was from individuals or a collective, 10 shares. Could you elaborate on that? What happened to that?

Mr. Anderson: In 1958, Michel Investments was set up. The mineral rights under the last portion of the reserve in 1958 were not given up.

The Chairman: For that reason, you obtained the 10 shares for the band?

Mr. Anderson: They retained some lands. The corporation was then set up to administer those mineral rights and the pieces of land that were left, which were gravel-bearing lands. The shares of each individual who was enfranchised, including children, infants, were placed with the public trustee. Each member who was enfranchised in 1958 was granted 10 shares in this particular organization. I suppose they considered that they had some safeguards, such as you were required to advise the other shareholders before you sold, but somewhere along the line that did not happen and many of those shares are now owned by non-Indian people.

The Chairman: What ever happened to the regional owners of those shares? Is there any trace of transactions that took place in terms of handing it over or selling them to the non-natives to obtain those shares? It cannot just disappear into the air.

Mr. Anderson: No, they sold them.

The Chairman: They sold them?

Mr. Anderson: Some people did. Some people were not ready for enfranchisement.

The Chairman: They were not only franchised, they also sold their shares in the private interest, if I understand you correctly?

Mr. Anderson: Some of them did.

The Chairman: Are there any records of those individuals who did not sell their shares?

Mr. Anderson: Yes.

The Chairman: You could use those records as a way to address your concern in terms that they were not dealt with fairly, even under a normal corporate structure, never mind the government's responsibility. You might have a case in that area, that is if you could come up with those records.

I thought I would mention that to you. I will leave it up to Senator Andreychuk to help you to find a solution to that one.

Senator Andreychuk: No, we will leave it up to the courts and the lawyers.

The Chairman: You say that the Government of Canada does not wish to acknowledge your existence until you have a band, in the sense of an organizational structure within the aboriginal society that the Government of Canada normally tends to deal with -- that is, a band council. Those band councils are also put in by the individual people who voted for them, correct?

Mr. Anderson: You are talking about the so-called real Indian bands?

The Chairman: If the band council are the ones who make the decision for the individual people, are you saying that individual rights were violated by those band members? When I say "band members," I mean members of the band council.

Mr. Anderson: Are you talking about 1958?

The Chairman: Yes. The time that you sold your interest.

Mr. Anderson: It was not the band council who voted to enfranchise; it was that small committee.

The Chairman: Who were the members of the small committee? That is what I am trying to find out.

Mr. Anderson: The members of the small committee were a Judge Buchanan of Edmonton --

Senator Adams: He was the minister?

Mr. Anderson: No, Judd Buchanan's father. One was a civil servant with Indian affairs, Mr. L. L. Brown.

The Chairman: Do you mean to say that not one aboriginal person voted?

Mr. Anderson: There was one. I believe I read to you what I read about him in some of the Department of Indian Affairs correspondence. They said they liked that committee member, that he was the best Indian they had, that he was 99 per cent white. He was an adopted person.

The Chairman: He was very agreeable to sell whatever interest you might have had at that time?

Mr. Anderson: Yes. He was a return man and he could not get a piece of land under the VLA situation because he was considered a registered Indian.

The Chairman: If there is documentation that exists today from what took place back in 1958, I cannot see why you should not have a perfect case to push forward and try to battle it out in court. That is the only avenue.

Mr. Anderson: Yes, but that costs money.

The Chairman: We realize that.

Senator Mahovlich: The government will pay now, will it not?

Mr. Anderson: No, I do not believe they will.

Senator Gill: You went to the Indian Claims Commission and they said that perhaps you have a case; correct?

Mr. Anderson: No, they said that we should be dealt with as though we are a recognized band under the Indian Act. That is their recommendation.

Senator Gill: You said that you do not have money. Did you ask for money from them to do the research about your case?

Mr. Anderson: We got money to deal with the Indian Claims Commission.

The Chairman: More and more, as I listen to what you have to say, I believe you have an important case that you need to bring forward. Wherever it will go I do not know. However, I think it should be dealt with outside of this particular committee because the issues that you have raised are not related to our mandate.

I suggest that you have us help you find another way to deal with your concerns. Perhaps we can get back to you some time about it.

Mr. Anderson: Our ancestors signed a treaty. We are entitled to self-government like any other group.

The Chairman: Yes. However, someone on your behalf sold your interests. There is nothing we can do about that at this point.

Senator Andreychuk: They did not sell their rights; they sold some economic resources. That is the distinction I was trying to make.

Senator Mahovlich: They are still a First Nation.

Senator Andreychuk: They are still aboriginal.

The Chairman: They can use that to move forward.

Senator Mahovlich: But they do not have any property.

Senator Andreychuk: That is the claim they may have.

Senator Mahovlich: We have to get them some property.

The Chairman: I would like to be more clear on where you go from here. However, as I said, this is well much outside the parameters of our responsibilities, although it is interlinked in some ways. You must move this forward. However, we cannot do it through this committee. We must deal with it separately.

Ms Buss: We ask that this committee recommend in its report that First Nations, as opposed to artificial Indian bands, self-government be dealt with.

The Chairman: We have heard you loudly and clearly. We support your recommendations on that issue. Thank you.

The next group is from the Indian Council of First Nations of Manitoba.

Grand Chief Kirkness, please proceed.

Mr. Andrew Kirkness, Grand Chief, Indian Council of First Nations of Manitoba: Honourable senators, we represent off-reserve and non-status Indians.

First, I use the word "Indian" more frequently than I use the word "aboriginal." I am an Indian. I am a Cree of the First Nations. That is how we usually identify our people. We are off-reserve Indians and so-called non-status Indians. At one time, I was a non-status Indian, until Bill C-31 was passed, after which we got our status back. I lost it in 1947.

The Chairman: Were all your community members reinstated?

Mr. Kirkness: No. There are still some people working on it.

Most of what I have to say was not researched from books or other materials; it represents some of the experiences that I have seen. For some time, we have had some form of self-governance, especially as off-reserve Indians. In the community of Thicket Portage where I lived at one time we had what we called a community club, which was much like a mayor and council, or chief and council. We were the government in that sense. We had no money, but there were times when we received a little money for the roads. We would hire someone with a machine to fix up the roads. So in a sense, we had our own form of government in that area. We built our own hall. We had our own movies. We ran our own picture shows in the community. We were going to turn that over to a private person later, but circumstances changed.

All of a sudden, the provincial government came in and set up their form of municipal government, a mayor and council. People had to be taught how to run this form of government. In a sense, it was the same people in the same community. Everything else was the same.

In the beginning, most of these people were Indian, but the non-Indian people ran the show. They were the bosses, perhaps because we did not totally understand their form of government. That is when the rules changed. In a sense, we were operating differently. It may have been the same as before but that only the people in authority were different. They were governing us from afar. They wanted us to set up what you call an advisory committee on the school board. They wanted us to set up this advisory committee even though we had our own school board, which was functioning as the authority. We hired teachers, et cetera. When they changed it over, we had this so-called advisory committee. I was on the school board at the time. I questioned this. I was not too happy because they were taking the authority away from the school board that was set up.

In other words, they were dismantling it and putting in an advisory committee. I questioned the authority of the advisory committee. I asked if the advisory committee that they were setting up had the same powers as the school board. Of course, they did not want to answer. They were going around and around the issue. I said the answer is either "yes" or "no." It is simple. They said, "No." The man who set this up lived in Dauphin, about 600 miles away from this particular community. In fact, he took over all the communities.

Again, in a sense, we were running our own government in education and within the community itself as a municipal government. In spite of all the hoopla about governance, if something happened in the community -- for example, if someone got lost -- despite the fact that we did not have anything set up like search and rescue, the people would organize something in no time. They would do it. That is self-government. The way things are set up now, you must have all these licences and so on, but we did it.

There are certain areas where we have problems. One such area is natural resources. The provincial government makes regulations that go against our treaty rights. We cannot practice our treaty rights because of certain provincial regulations related to mines and natural resources.

I am a vice-chairman on a trapper's committee in The Pas, Manitoba. We must write some of our own regulations and incorporate them within the provincial government, because it cannot work out the way they are set up. Seasons are set up for different things, and we need not comply with them. That is the difference.

The Chairman: What is your treaty number?

Mr. Kirkness: We are in Treaty 6, in The Pas area. The band number is 306.

I live off reserve. I have been back to my reserve several times. In fact, I ran for chief. I lost by three votes, so it was close. It has been difficult for off-reserve Indians. We do not fit in anywhere. The federal government says, "You are an off-reserve Indian." They tell us to go to the province for certain things, but the province will not have anything to do with the Indians, period.

Some of the communities that I am talking about along the bay line, for example, Churchill, are 95 per cent Indian. At one time, they were considered Métis because they did not have a treaty number, but they are Indians. They have lived there for 150 years. Their parents lived there. Our goal is to try to make them into a reserve. Why should it not be? That is where we have been. They call us landless Indians, but we must live on land somewhere. We cannot be suspended in the air. We live in these communities.

So, honourable senators, those were the areas I wished to address -- community government, the educational part of it, and the government that controls the resources, the fish, birds, et cetera. We are caught in between everyone. I do not know how to explain it best. It is difficult for those of us in Manitoba who live off reserve. No government recognizes us, whether an Indian government or any other government.

One of the things I refer to in my written brief is the reserves where Indians live. In most of these northern communities, the people have lived there for over 100 years. As far as living off the land in these places, it has been a lot longer than that. They have been hunting in these areas. These communities have settled in these areas for over 100 years. This is their land.

I know the regulations were once that, if you squatted like a non-Indian, after 25 years you would get a title and deed to that land. Why can we not get that? We have been there over 100 years. Perhaps we should have four titles by now.

Beyond that, the resource areas have been mapped. I intended to bring a large map, four feet by three feet, that shows all the registered trap lines for all the communities. We want to get a reserve where we live, and that trap line area is to be our resource area. Every community has that.

Someone is collecting taxes from that land. Why can it not go to our communities and our governments?

Senator Johnson: Are you speaking of land around The Pas?

Mr. Kirkness: I am referring to all of Manitoba. It includes the registered trap line area. Every community has one. That is what I am talking about. We are claiming that to be our resource area.

Senator Johnson: That is your resource base. That is what you are claiming.

Mr. Kirkness: The reserves have the same thing, but we are talking something that is not recognized. Ilford, Manitoba is now recognized. That is where I lived years ago. They finally got it through Indian Affairs, and they have a piece of land there.

I will now speak about mechanisms for negotiating and implementing self-government. This will have to be done by band leaders, their chief and council, the federal and provincial governments, and the municipalities. We must involve all of these levels. When I speak about chiefs and councils, I am not speaking about the recognized ones. I am talking about the chiefs and councils that we have set up. We have formed councils, which are headed by chiefs, in these communities. That is what we are doing.

The Chairman: I want to leave time for senators to ask you specific questions on your presentation. Are you almost through?

Mr. Kirkness: Yes, I will not be too long.

I spoke of a government that, in the 1960s, set up the school board, the school committee, and the mayor and council. If it was that easy then, why can they not now turn it back to an Indian government? Why should it be that impossible? They did it overnight.

The problem we have is that off-reserve Indians are not recognized by the federal, provincial, or Indian governments. In a sense, we are a lost generation, and this practice must not be allowed to continue. If certain groups of people are treated differently, it is called discrimination. We would like the Senate to look into this. We want to see that all Indians are treated fairly, with an equal distribution of land and resources.

The only funding we receive to do our work is from Heritage Canada. Recently, there was a 43 per cent increase across the board. Forty-three per cent is a good increase for those people who were getting $200,000. However, for some of us who are just getting $80,000 to do the work in that province for the year, we get a $35,000 increase. Manitoba is a large area. We cannot go to all these communities to work. It costs money.

I will conclude my presentation here and allow these other gentlemen a chance to read their briefs. I will then present the recommendations.

Chief Raymond Chartrand, Indian Council of First Nations of Manitoba: Honourable senators, I come from a community, with a population of 200, which is governed under the Department of Indian and Northern Affairs. We do the administration and run the programs. Approximately 90 per cent of the members of the community have treaty rights, and the others are still working on it.

I received my treaty rights in 1986, a year after Bill C-31 was passed. I was a treaty Indian, but the difficulty I faced as I raised a family of six children was that I had trouble explaining to them who they were and who was a Métis, knowing that I, myself, was not a Métis. I was a treaty Indian. That is one of the sad situations of taking away rights. It is a sad thing to tell your children who they are, knowing that you are not one of them. However, I was considered a Métis in my community.

I come from a band of approximately 3,500 band members in Pine Creek. My treaty number is 282-008-9601.

We formed our council and elected our chief in 1996. The reason behind the formation of the council was to find ways to get our rights back. We have been discriminated against from the time of our birth.

I want to thank honourable senators for allowing me to bring my concerns to your attention and give you a sense about what we face out there.

I was involved in politics in my community at a fairly young age. I was involved in various organizations. I have been a politician, so to speak, at the local level.

In reading some of the material related to life in the 1800s, the British Commonwealth recognized treaty sovereignty. When the Europeans discovered the Indians in North America, they started developing laws and guidelines to protect treaty people and Indian people. It was then that the Europeans began to develop and divide our country into provinces. They established governments within the provinces.

The Government of Canada began to spearhead and form a set of laws. They drafted the Indian Act, and the intention was that this act would protect the Indians.

After treaty rights were signed by the British and the chiefs, they were to be honoured as long as the rivers flowed and the sun shone. The intention of the act was never to cut off treaties.

Honourable senators, we are the only nation that has been cut off from our birthright. Our birthright was taken away and our privileges as Indians were taken away through the law of marriage.

Some of these laws were noticeable and some were not. For instance, when an Indian woman married a non-Indian, nowhere in the law did it state that a treaty woman's rights must be taken away because she married a non-treaty individual. The government implemented that unwritten law, which, for some reason, was accepted by the so-called First Nations. As a result, many generations were lost because of the cut-off.

This law with respect to marriage was discriminatory. It discriminated against us. We lost our birthright and we became the forgotten people. The Métis did not recognize us because we were dark. We were not accepted.

In 1987, I went to a reserve in Manitoba called the Indian Birch First Nation. A group of band members broke away from the Shoal River First Nation in Manitoba. There were disagreements within the band, and that group of people broke away from the reserve. They were granted land to form another reserve.

I visited that reserve. Three parcels of land were given to them outright for a reserve. It is a registered reserve known today as Indian Birch. They gave it an Indian name, which is hard to pronounce. You will find it in the brief that I submitted to the clerk of this committee.

Another situation involved a family named Smokes who left a United States reserve, came to Canada, and settled in the Portage la Prairie, Manitoba area. The Smokes were given treaty rights on Crown land known as the Dakota Plains. They had sovereign treaty rights, but it is not a reserve. As we speak, it is not a reserve, but they operate as a reserve.

These laws and privileges were taken away from us. Our birthright was taken and we became the forgotten people, again.

In the early 1980s, the Government of Canada received approval from the United Kingdom to bring the Constitution back to Canada. The Charter of Rights for all people is in that Constitution.

Within that Constitution, changes took place. Bill C-31 was introduced. The purpose of Bill C-31 was to reinstate two generations. The parents got their treaty rights and, if both parents got their treaty rights, the children got their rights. That is what Bill C-31 did.

It was introduced to restore treaty rights, but no rights and privileges came with it. We were just given a number; that is all.

I always say I am not a Bill C-31 Indian, that I am a treaty Indian. We are the only nation that is referred to as "bill," no other nation. All nations are called by their birthright.

Bill C-31 discriminates against our grandchildren. I know my grandchildren cannot get treaty rights because one parent cannot get treaty rights.

There is another factor about Bill C-31. When we approached the federal government for funding or for any program to which we are entitled, we talked as treaty Indians. The federal government said, to me particularly, to go to my parents' band. They told me, "All your members should go to their parents' band. Money was given to your band to restore you, to bring you back to your band." I told the gentleman to whom I was speaking that my wife and I would have to get a divorce because she comes from a different band. Bill C-31 did many things; it could create a divorce.

The Chairman: I do not wish to cut you off unless I really must. However, we have other witnesses who we need to hear. It would be useful and very helpful if we could delve into the recommendations on governance concepts. That is the responsibility of this committee.

I realize that it has taken a long time for you to arrive here and tell of some of your grievances with the government. I understand and appreciate that. However, could you help us move along?

Mr. Chartrand: I do not know if we can build a good process if we do not know the facts.

The Chairman: We will definitely be looking at all your evidence to see if we can utilize it for the benefit of developing a governance concept, which is the responsibility in the hands of this committee. We will be studying those documents that you have put forward.

Mr. Chartrand: I understand you, Mr. Chairman. My purpose in coming was to present our situation, so that people around the table and those not at the table might hear it. I am just about finished.

I was telling you about being told to go to our parents' bands by Indian Affairs. When I carried out that advice, the chief and council told me, "We have nothing to do with you. You are off the reserve."

Both governing bodies -- Indian Affairs and the bands -- violate our Charter of Rights, as we are being denied the funding and programs.

I will tell you about the programs that are in place. For example, chiefs are working with the federal government on a program called "Gathering Strength--Canada's Aboriginal Action Plan." An agenda is being set forth for First Nation's people. Again, we are not consulted because we are off the reserve.

There are only two avenues left for us, it seems -- to go to the United Nations or to litigate. The off-reserve Indians in Manitoba know what is happening. We have created enough publicity within the people. This is why we are here.

Mr. David Brant, Chief, Indian Council of First Nations of Manitoba: Honourable senators, I will be very brief on behalf of the presentation from Winnipeg. As children were mentioned in Mr. Chartrand's presentation, I will bring that topic before the group very quickly. These children within the City of Winnipeg are brown. They are identifiable visibly as Indians.

They are looked upon by the large mass of the population as tremendous recipients of largess from Indian Affairs, from which they get nothing. They are criticized and socially ostracized. There are school division programs that are supposed to be delivered to them that do not happen.

I must tell my children that they have no rights because I am not on reserve. Yet they cannot really say they are not Indians when they are getting beaten in the schoolyard.

I have one short message from Winnipeg. The older ones are no longer respecting leadership from individuals as you see across from us. In my neighbourhood in the north end of Winnipeg, there is a 15-year old with an AK-47 who is as brown as my children.

If this group cannot act to sort out the inadequacies and discrepancies, the lies and the competition, that butt these kids against their brothers and sisters, aunts and uncles on reserve, those weapons will be on the street.

I visit with the children at the Friendship Centre in the north end of Winnipeg. There, I am told that they run around burning houses in the core area because the city will not do anything to get rid of the addicts living in them. In fact, they are cleaning up the neighbourhood. Also, they have been lied to in the treaties. They have been told by the white residents that they are the beneficiaries of government largesse. Then, they go to school and are lied to about the history of this land. Yet, they celebrate Columbus Day and talk about two founding nations. What about the brown people who kept those founders from starving? They are not represented in these forums adequately. They are not invited to ministerial conferences, and we do not speak a native tongue as a third language. However, they are visible here, still criticized and ostracized. Often, they are with parents who have obtained an education, but who do not have jobs.

I am a licensed refrigeration mechanic, but I spent three years unemployed because I could not get into the white-controlled union with my provincial trade certifications. A lot of good they did me. I am not working in my trade now, but I deliver newspapers because I am determined that my family be self-sufficient. I came here as a volunteer. I took time off work, taking food out of my three children's mouths because this committee does not have the resources to pay us as witnesses. We are not funded like the First Nations people who come here from the reserves. We are volunteers in this organization. We do not receive per diems.

I have spoken my piece. I wrote a long presentation, outlining the history and recommendations. Please, whatever you do, act now. I ask that you let the people drive the system. What has been done with the new program that started with the healing foundation? With small grants of $5,000, individuals can bring forward and develop valid proposals at the individual level. This action would preclude the need for bureaucracies. It would also allow the grassroots people to take control and vote to remove the people who are usurping funds allocated to the First Nations and original peoples of this land in order to build monuments with it. We have a multimillion dollar centre being created in Winnipeg while hungry 12-year-old children are selling their bodies in the same street corners where the centre is being built, in order to eat. That is ludicrous. That centre is supposed to be built for those brown kids. That is garbage.

The Chairman: Thank you for voicing your opinion in the fashion you did. It needs to be said from time to time.

Senator Andreychuk: You did receive expenses to come here. In other words, your travel was paid for. You said that you came on your own time.

Mr. Brant: I had to take time off from work. I do that for any activity I involve myself in.

Senator Andreychuk: Your comment was not on expenses, it was on time away from work.

Mr. Brant: Right. The First Nations pay their people a per diem of several hundred dollars a day for this type of activity. We are not eligible for that. As a consequence, I am paying someone else to do my job.

Senator Andreychuk: I just wanted to ensure that I understood.I understand your first point, the problem of future generations that will not be covered under the term "aboriginal." How many of you think there should be structures that take into account off-reserve situations? How many of you are entitled to be part of an existing band or reserve?

Mr. Brant: All three of us here are and the majority of our band council is, too.

Senator Andreychuk: Can you return to vote in those structures?

Mr. Brant: I cannot vote in my reserve.

Senator Andreychuk: Why?

Mr. Brant: I am a member of the band but I do not reside there.

Senator Andreychuk: It is because of residency restrictions imposed by your band.

Mr. Kirkness: I can run for chief in my band but I cannot vote.I cannot even vote for myself.

Senator Andreychuk: Again, this is because of residency restrictions?

Senator Gill: That is the case.

Senator Andreychuk: If you were able to live off reserve and vote, would you change the existing structures to take into account the on-reserve and off-reserve situation and put that in the hands of some democratic process within the band?

Mr. Brant: The reserves, as they currently exist, are grievously underfunded. While I hold a great deal of animosity towards Indian Affairs for its lack of supplemental assistance, help, program delivery, et cetera in the urban centres; to do something at the expense of the current very meagre resources in the First Nations is a horrific idea. You would be asking me to see that my kids eat while I am taking food away from my brother's children on the reserve. That is, in essence, what Indian Affairs has told us. They have told us that if a new band is formed, they will take the same pie and slice it differently.

From the beginning there was inequity in the division and the size of the pie, things have just progressively worsened. Many people were cast aside in hopes of liability limitation. However, liability limitation has never worked for the Government of Canada. The government tried to ignore liability with the Japanese internees, but they have recently received compensation. The government also tried to ignore liability to merchant seamen from the Second World War, but they also have received compensation. Lately, attempts have been made to discharge liability towards 50 per cent of the status Indians who now reside off reserve and that has not worked either.

Can you tell me, senator, what would happen if you were to try to tell the Toronto Dominion Bank that you are only going to pay the royals' portion of the national debt? That is in essence what is going on.

Senator Andreychuk: If the economics were not the issue, what would be the best way to go about obtaining self-government for the entire group? Is it better to go through the existing bands and allow broader representation, or is it better to create two streams, one for off-reserve and one for on-reserve individuals?

Mr. Brant: Off-reserve is a separate issue. I will speak again very specifically of Winnipeg. Winnipeg has representation from 62 Manitoba bands. More than 10 per cent of Winnipeg's population is now Indian. This number is growing rapidly. It is projected that by the year 2025, 25 per cent of the total population of Winnipeg will be Indian.

Senator Mahovlich: What is the population of Winnipeg?

Mr. Brant: It is 600,000. In any event, we would then have a circumstance where 62 bands, if they were going to represent their urban people, would have to set up offices. In addition to that, Winnipeg, because of its geographic location, has another 60 bands that are located in Northern Ontario with members in the City of Winnipeg. It would be far better to see local Winnipeg organizations deliver services to those who are entitled, and to allow the people, the individuals who have status or who are recognized, to carry, as I described in the document I have presented, chits for service and to take them to service providers wherever they may reside. Again, it can be done at the community level, which is the most cost effective way. Ottawa is a wonderful city, but I do not think it needs more bureaucrats.

Mr. Chartrand: There must be a blanket system. I do not think it will work if we try to push something like that through an individual band. It must be across the nation. The First Nations passed a resolution last summer, one part of which says that the treaty and aboriginal rights of First Nations people, and the benefits which flow from these rights, are not dependent upon the place of residence. It does not matter where you live. These programs should come to the First Nations people. However, when we approach them, as I did a short while ago regarding a couple of cases, they say, "They are off the reserve, so there is nothing we can do." They are going contrary to their own resolution.

We should have a similar system to the Dakota First Nation; they have treaty rights on Crown land. We are not asking for land. We are asking for our rights and programs. We are not asking to form a reserve. However, why should 5 per cent govern the 95 per cent? Why should white supremacy govern the Indians? It is not working. There is a fight within the community. If we can set up something like what the Dakota have, with treaty rights on Crown land, that would be beneficial.

Senator Adams: Were you born on the reserve?

Mr. Kirkness: I was.

Senator Adams: If you go back there, the only way they will recognize you is if you use Bill C-31, right?

Mr. Kirkness: If you want to get voting rights, for example, you would have to be a resident of that community for six months and then you would be able to vote. However, that is impossible to do. For example, in Split Lake, there are well over 1,000 people, maybe 1,500 people, who are off reserve. If you wanted to go back there, where are you going to live? It is just impossible.

Many of these communities that I was talking about have been there for years. There are members from the Split Lake band, among others. These people are right there. As far as I am concerned, there were reserves because Indian people lived there.

I mentioned in my paper that in some places where the population is 95 per cent Indian and 5 per cent non-Indian, the minority governs. Does that not remind you of South Africa? It does not look right.

Mr. Brant: There are members of 16 different bands living within my community. About 80 per cent of them are under Bill C-31.

I applied for a unit two weeks ago. I went to see my band chief and said I wanted to move back to my band, and told him that I need a house because I have two children who are still under my roof. He said, "Okay. We have 268 applications. We will put you down. You are applicant number 269. We can do maybe five or 10 houses per year." I might have to wait another five years before I can enter. I own my own home. I own a business.

Senator Adams: These problems must be settled some time. That is part of the reason we are doing this study. I have been here close to 20 years. Some of the bands in Manitoba received a great deal of compensation for their land when it was taken for hydro. You could be outside and, even though you would be part of the agreement, you would get nothing. I do not think that is right.

Mr. Kirkness: I belong to one of those bands in the northern flooded area. In fact, I sat on the board when it first started. I was appointed by the Minister of Indian Affairs at that time, John Munro, and stayed there for a year. However, I cannot get any compensation from hydro because I am living off reserve. They got quite a bit of money; however, we could not get any, even though we were registered as Indians in that reserve.

Senator Adams: I know some people say that there should be some way of amending Bill C-31.

Mr. Kirkness: Bill C-31 seems to be a dirty word. I do not know why. If you are an Indian, you are an Indian, but if you have come in through Bill C-31, it seems you have a disease that people do not want to catch.

Senator Johnson: I am from Manitoba. You mentioned hydro. A study has just started on erosion levels on Lake Winnipeg, the first one since 1979. That is an issue you could probably bring up, too, when they start holding their hearings. They are just getting underway now.

I wish to thank you all for coming and making this presentation. I know it is a tremendous sacrifice on your part. Your presentation will help my colleagues better understand the situation in Manitoba, which is difficult for many to appreciate. You have expressed it well today.

How many people belong to the Indian Council of First Nations of Manitoba that are in the situation you are talking about?

Mr. Kirkness: Our membership lists contain over 8,000 names. Members include all those who have signed to join our organization as off-reserve Indians.

Senator Johnson: Would that be the approximate number of off-reserve Indians in the province?

Mr. Kirkness: Half the Indians in Manitoba are off reserve.

Mr. Brant: In the latest census, 60,000 people in Winnipeg were identified as aboriginal. It is understood that 45,000 of those are status Indians.

Senator Johnson: I am just trying to understand how many are now off reserve. We always hear different figures, but I understand it is about 60 per cent.

Mr. Kirkness: All the Indians in Winnipeg are off reserve as are all those in the communities along the Hudson Bay railway. There are also some in the south who live right next to reserves. There are more Indians living off reserve than there are on reserve.

Mr. Chartrand: The off-reserve Indians of Portage, Neepawa and Dauphin want to join our organization.

Mr. Brant: However, we do not have the core funding to support their applications.

Senator Johnson: Is it correct that half the population is under the age of 14?

Mr. Brant: No. Half the population is under the age of 19 and the average age of the population is approximately 34.

Senator Johnson: I know exactly what you are speaking of with regard to what is happening in Winnipeg. Your principal recommendation is with regard to the programs to deal with gangs of kids in Winnipeg. I did not hear you speak favourably about the Friendship Centre. I recently visited there and saw what they are doing. I saw the healing centre that is being built across the street. I know what you are saying about what is happening on the street corners. Tell me what we should do.

Mr. Brant: The Friendship Centre is one of the few buildings in that area of town that is not decorated with graffiti because it holds at least a glimmer of hope for some of the kids there.

That is not the case at 181 Higgins, the Aboriginal Centre, or at some of the other facilities which have massive and very expensive facades that have drained resources that could have been better used to benefit the kids.

These people are not moneyed. I am talking about the Warriors in the city. The mass trial of the Warriors is considered by those at the street level to be a Gestapo mass trial. There are many people in that case who are accused of nothing more than knowing someone who sold drugs. They are all being lumped together, charged with conspiracy, and will all get the same prison terms after a mass trial that is unprecedented in this country.

Senator Adams: Is that happening now?

Mr. Brant: It is underway now. They are building a fortress to house this trial. In Winnipeg, the police are so afraid that they had their SWAT teams on the street with automatic weapons and machine guns when three convicts were brought down from Stony Mountain for a hearing the other day. We have men in combat fatigues with automatic weapons walking around in Winnipeg.

Senator Johnson: That is the reality.

Mr. Brant: That is the reality. We have kids who are burning houses down after they cut through the beams in the basement so that when the firemen walk in, the floor collapses. That type of vengeance exists.

If we are going to reach those people, we must do it at the very lowest common denominator. We must utilize vacant school gyms to run programs that can give the youth something to do besides hanging out on the street. We must ensure that there is food on the tables.

We must get to the grassroots and the grassroots must bring forward the leadership to represent them. We now have people with university degrees, some of whom are white, not red, saying, "I speak for the Indians." That is not true. However, they get the money.

The Chairman: They get the money to do what?

Mr. Brant: To build this mansion on Higgins and Main Street.

Senator Johnson: He is referring to the Aboriginal Friendship Centre.

The Chairman: Is that funding from the federal government or the provincial government, or both?

Mr. Brant: It is primarily funds from the federal government dedicated to aboriginal people. Yet our organization's province-wide budget is $8,000.

Senator Johnson: Do the people not participate in programs at the Youth Friendship Centre?

Mr. Brant: The Friendship Centre is quite different from the Aboriginal Centre. The Friendship Centre is on Dufferin Avenue. The Aboriginal Centre is the former CP Rail station and the First Nation people are turned away from there because it is Métis controlled.

Senator Johnson: I did not know that. That is not what I was told.

I respect what you are saying.

The Chairman: It is important that we understand correctly what you are saying. An alarming number of people are living off reserve, especially in Winnipeg.

With regard to the governance concept, are you saying that we should not recommend that the government hand control over to the existing aboriginal organizations? I want to be clear on that.

Mr. Brant: Yes. If a mandate is given to the AFN to deliver funding and form governance structures on a local basis with equal access to all First Nations citizens, I have great confidence that Phil Fontaine can do that job.

However, if you take the funding for this undertaking, throw it up in the air and say that the one with the best presentation will get it, on the basis of lawyers, staff, research and abilities, it will all wind up there. This seems to be the way these programs are currently run.

It may be better, as a consequence, to form an independent delivery mechanism. However, it should go to the lowest level and be allowed to come back up. If the individuals are empowered, then they can organize at the community level and can attach themselves to organizations with upper tiers that represent their interests and needs.

Even within Manitoba, we have differences in needs. Some of the northern communities certainly have infinite concerns with trapping, fishing and hunting regulations. They surely do not need traffic signal studies or other items on that agenda. I am certain that in Winnipeg I do not need any research into moose hunting. Therefore, one size does not fit all. Each community knows its own needs best.

The Chairman: Let me try again to determine whether an alternative to one regime for all could be acceptable to you. Those off-reserve people in urban communities are no one's people in a sense because they do not live on reserve. Therefore, the reserve mechanism is not administering them. At the same time, the Department of Indian Affairs is also saying that off-reserve Indians are out of their hands, that they are not their responsibility.

Senator Johnson: Some still maintain that there is treaty status.

The Chairman: You are asking us to look at this seriously. It is a big problem. It will not go away and it will get bigger. You are telling us to come up with recommendations to address those particular problems.

However, if we do that, we will need a significant amount of help from you people to come up with clear recommendations that will recognize the other Indian groups out there who remain Indians because they are Indians. Whether they live on or off reserve, they still need to be dealt with. You need a new mechanism, something that will form part of a governing structure down the road. That is basically what you are saying.

Mr. Brant: Right, however, I do not advocate a larger bureaucracy, whether it be government or an Indian organization. I believe that the bureaucracy that is in place in Indian Affairs, which already tracks and delivers such things as treaty payments to all those who are registered as status peoples, can, by the same token, in today's computer age, easily track those same individuals to allow them to participate wherever they may reside and to subsequently vote with their feet. If they are residing in Vancouver and move to Winnipeg, they should be able to change from one structure to another, with their membership and their family connections remaining with their home tribal structure. We must not create new bands, new memberships, we must allow the same lineage attachments as currently exist. However, we should require a census for the organizations that are involved in supporting the funding they receive.

The Chairman: I understand that you would want to ensure that they remain Indians, not be called anything other than what they are, and that they maintain membership with their community and things of that nature.

If a structure is to be established, it would need to be able to deal with those specific problems and try to come up some solutions.

Mr. Kirkness: When we get talking about things in Manitoba, we tend to centre pretty well in Winnipeg. I wish to keep that in mind. There are many communities outside of Winnipeg. When you talk about urban centres, it is usually Winnipeg. With all due respect to my colleagues from Winnipeg, I do not wish to miss those people in small communities of 200, 400, 500 people.

If you keep everything in Winnipeg, everyone will move to Winnipeg. These people are in Winnipeg because there are no jobs in their communities. You must do something in those communities if you wish to stop everyone heading to Winnipeg. It seems to me that Winnipeg is Manitoba. Anything outside it is forgotten.

The Chairman: On your five sets of recommendations that you have put forward, item one is really out of our hands. However, we may be able to look at that and see what recommendations we can make to the Department of Heritage. We need to build upon all the other areas.

Mr. Kirkness: Regarding that first recommendation, some of our colleagues from Alberta addressed the people in the Department of Heritage, or the people who are running this program. They were prepared to have a workshop to clarify the funding for these 27 groups that are mentioned.

Senator Johnson: We will not forget rural Manitoba. I grew up in rural Manitoba, in Gimli, and I live in Winnipeg. I have a foot in both camps.

Mr. Chartrand: The biggest question for off-reserve Indians concerned a provincial program in Manitoba regarding off-loading. This is the biggest concern.

Senator Johnson: I was attempting to ask about that, however, the chairman has limited our time.

The Chairman: Your presentation is very much appreciated and I should like to talk to you again at some point.

Our next panel of witnesses is from the New Brunswick Aboriginal Peoples Council. We have with us Ms Lavallée and Mr. Gould. I know Mr. Gould from constitutional work that we did in 1982. He was my seatmate at the first ministers' conference. He has wide experience and knowledge of what is right and what is wrong.

Please proceed with your presentation.

Ms Betty Anne Lavallée, President, New Brunswick Aboriginal Peoples Council: Honourable senators, on behalf of the 7,500 off-reserve, status and non-status aboriginal peoples served by the council, I should like to begin by thanking the Senate committee for this opportunity to speak to you and to participate in the special study on aboriginal governance as it relates to off-reserve aboriginal peoples.

Mr. Chairman, the NBAPC is pleased to participate in this special study that your committee has initiated. We see the Senate's participation in this exercise as a much-needed extension of where the Royal Commission on Aboriginal Peoples left off and as a worthy example of just one of the significant roles and important tasks that the Senate can play as the chamber of sober second thought in the Canadian democratic process.

As well, the New Brunswick Aboriginal Peoples Council sees this opportunity to appear here today as an ideal opportunity to promote and explain our concept of aboriginal governance for the community of interest we represent in the province of New Brunswick, the off-reserve, status, non-status and Métis people.

We believe that our concept of aboriginal governance bridges the expanse between the hard-line point of view of complete aboriginal sovereignty and those who wish to pursue an assimilationist policy as the preferred option for dealing with aboriginal peoples. It is our opinion that our option enables the gap to close between these two notions and that it could create the new relationship envisaged by the Royal Commission.

Hopefully, over the next few minutes, we will be able to adequately explain to you how we see aboriginal governance becoming a reality for the aboriginal people we represent. Hopefully, we will be able to outline to you the fundamentals that make up our concept and how it can be negotiated, implemented and structured in such a way so as to complement the Canadian social democratic process.

Before presenting our concept on governance, it is most important that I explain to you who and what NBAPC is, for knowing who and what we are shall go a long way toward understanding our philosophy on self-governance.

The New Brunswick Aboriginal Peoples Council had its beginnings in 1972 as the New Brunswick Association of Non-Status Indians. When we first began, our primary objective was to respond to the demand and need for an efficient advocacy voice for persons of Maliseet and Mi'kmaq ancestry who lived off reserve in New Brunswick and who were referred to as non-status Indians. This group of people included Indian women who had lost status under provisions of the Indian Act, most notably section 12(1)(b); Indian persons who had never lived on reserve and who were never registered under the Indian Act; Indian persons who had lost status as a result of voluntary or involuntary enfranchisement; and the descendants of the people listed above.

As we began to make contact and organize this constituency of people, we became acutely aware of the deplorable socio-economic conditions that those aboriginal people faced and quickly found ourselves dealing with the many problems that affected the daily lives of our people. Because we were considered non-status Indians, we were not eligible for assistance from the Department of Indian Affairs and had to depend upon federal and, to a lesser degree, provincial programs of general applicability.

We developed a number of mechanisms and service agencies to address the socio-economic conditions faced by the forgotten aboriginal population of New Brunswick. Some of these include the Skigin-Elnoog Housing Corporation, a native owned and managed non-profit housing society that has built or acquired over 1,000 units of social housing for both low-income aboriginal and non-aboriginal families in New Brunswick; as well as the Wabanaki Development Corporation. This corporation is the economic development arm of NBAPC and it has created numerous opportunities for training, employment and some economic development for off-reserve aboriginal people in the province.

In terms of the delivery of numerous programs and services on behalf of Human Resources Development Canada, over the last 27 years NBAPC has assisted aboriginal people in training, education, upgrading, job-skill development and employment.

NBAPC's Education Assistance Program has enabled many low-income, aboriginal families and their children to place greater importance upon obtaining an education by staying in public schools, recognizing excellency, and in assisting off-reserve aboriginal students to proceed to post-secondary institutions.

The Rising Sun Summer Camp is NBAPC's own camp facility at Little Lake, New Brunswick. It affords low-income aboriginal children an opportunity for a few short weeks each summer to escape the deplorable social economic conditions under which many of them are forced to live. There, they can meet other aboriginal people and reacquaint themselves with some aspects of their aboriginal heritage.

These are but a few of many services, programs and institutions that NBAPC has delivered or created over the past two-and-a-half decades. They are aimed at the community of interest served by the council, which has dealt with those matters that directly affect the lives of our people. In reality, this level of governance is the most recognized, accessed and important to any citizen.

No understanding of NBAPC, its role, purpose, or indeed, our concept of aboriginal governance can be fully comprehended unless one is knowledgeable about the demographics of the aboriginal population of New Brunswick. While we could take an enormous amount of valuable time to recite page after page of social, economic, and demographic statistics that tell about the deplorable conditions under which off-reserve aboriginal people live, it is not the purpose of this brief to do so. However, we will provide the committee with some population statistics and direct you to the social economic statistics found in numerous studies commissioned by Statistics Canada, Heritage Canada, and Volume II of the RCAP final report.

The 1996 census showed that, of approximately 17,000 persons of aboriginal ancestry who reside in New Brunswick, 5,500 persons were identified as living on reserve. Of the remaining 11,500 aboriginal persons, 4,500 were identified as off-reserve status Indians and 7,000 were non-status Métis people. From NBAPC's own records and those from the Department of Indian and Northern Affairs, 32 per cent of all registered Indians from provincial reserves live off reserve; approximately 3,200 persons. As well, there are another 1,000 non-territorial status Indian and Inuit who make the province their home. When we add to these figures the 3,300 non-status Indians, that is, those persons of Mi'kmaq and Maliseet ancestry who are not eligible for registration under the current Indian Act, it is clear to see that of the approximately 14,500 aboriginal people who live in New Brunswick, 52 per cent, or about 7,500 aboriginals, live off reserve. These people have more than a passing interest in aboriginal issues. They substantiate our position that access to programs, services, aboriginal treaty rights, and self-governance must not be on the basis of residency or registration under the Indian Act.

As to our vision of governance, the Royal Commission on Aboriginal Peoples concluded that the right to self-determination is vested in all aboriginal peoples of Canada, including First Nations, Inuit and Métis peoples, and by virtue of this right, aboriginal peoples are entitled to negotiate freely the terms of their relationship with Canada and to establish governmental structures that they consider appropriate for their needs.

RCAP went further to say that aboriginal peoples are a diverse group, and this diversity is reflected in the various forms or visions of governance advanced by aboriginal peoples.

While various aboriginal groups may have divergent views or visions about self-governance, they all share a common core. They all want to exercise greater control over the lives of their people, and they want freedom from external interference. For NBAPC, our vision of self-governance rests on the following principles: To institutionalize the concept of aboriginal people-hood; to serve as the duly mandated representative of aboriginal people in their negotiations with the various Canadian governments; to crystallize and formulate aboriginal needs and define them in policy terms; to provide the leadership to carry out the mandate; to seek assured and continuous sources of revenue to fund programs for aboriginal development; to supervise and, where necessary, create such programs that are seen to be necessary for their well-being as individuals and as a people; and to monitor and protect such rights of the aboriginal people as entrenched in the Constitution.

These principles have resulted from over 25 years of discussion, debate and dialogue among the off-reserve, status, non-status and Métis population of New Brunswick. Indeed, the council is proud of the fact that our constituents have participated on numerous occasions through workshops, seminars, studies and assemblies in developing our concept on governance. It is founded upon the conviction that we have an inherent right to self-determination as aboriginal people. This position has been articulated in numerous briefs, statements and presentations made over the past two decades. It is reflected in the final report of the Royal Commission on Aboriginal Peoples, where RCAP proposes recognition that aboriginal people are peoples, that they form collectives of a unique character, and that they have a right to governmental autonomy.

To NBAPC, the question is not whether we have a right to self-government but how this inherent right can find reflection in the current social political framework of Canada. We believe that the following model of self-governance fits the needs of our constituency and could go a long way towards meeting the needs of Canada's smaller First Nations, such as the Mi'kmaq and Maliseet peoples and indeed most First Nations that are found within provincial boundaries. We feel that our model of governance goes a long way towards the development of a true third order of government.

Mr. Gary Gould, Secretary Treasurer, New Brunswick Aboriginal Peoples Council: NBAPC's model of self-governance could best be described as an integrationist form of self-government that is comprised of several levels or tiers.

The first tier of self-governance is at a reconstituted tribal level. Since the majority of our people are descendants of tribal peoples, the Mi'kmaq or Maliseet, our people have called for an institution of self-determination that would rid themselves and their descendants of the divisions and artificial barriers created or imposed upon aboriginal nations by the Indian Act. Under this tier of governance, a tribal reform act or constitution would need to be developed between on- and off-reserve, status and non-status Mi'kmaq or Maliseet peoples. In our opinion, this would restore the tribal unit as the upper level or first tier of governance. The tribal government would make all decisions respecting issues affecting the nation and involve all Mi'kmaq and Maliseet people, whether they lived on reserve or off. The tribal unit would be empowered to handle aspects such as land claims, aboriginal treaty rights, tribal membership, culture, language, spirituality and history.

It is felt, particularly by our women, that a true tribal institution of self-governance would assure equality of the sexes, accountability to the peoples, and provide a degree of recognition of our sovereignty.

The second tier or level of self-governance calls for a recognition and need for the creation of institutions that provide services such as housing, economic development, job training, alcohol and drug counselling, family services and social assistance. We propose that these institutions be available for both on- and off-reserve members of the nation. While we recognize that, due to residency of the individual members, the type of assistance may be different, our people are adamant that services and programs must not be denied upon the basis of residency or registration under any artificially created definition, such as those we have experienced under the Indian Act.

The third tier of our self-governance involves the integration of the Mi'kmaq and Maliseet nations into Parliament and the legislative assembly. This would be accomplished through the creation of guaranteed aboriginal MLAs and MPs that would be selected or elected by all members of the nation, regardless of residency or registration under the Indian Act. This element of our model of self-governance is seen as being critically important to our people in order to protect and respect aboriginal treaty rights. It will ensure a voice for our nation in the discussion of issues that directly affect the daily lives of our people. It will also ensure that the programs that are developed have an aboriginal component to them. It will promote our concept of integration of aboriginal sovereignty as peoples into those political institutions that have come to exist in our territories and which have never appropriately recognized our peoples, our rights or our needs.

As well, we see this integrationist model in which all Mi'kmaq and Maliseet peoples have the inherent right to participate as a means to promote unity amongst our peoples and to throw off the vestiges of colonialism.

Financing our concept of self-governance: The Royal Commission on Aboriginal Peoples has drawn the conclusion that aboriginal self-government and self-sufficiency go hand in hand. NBAPC fully agrees with this premise. Indeed, we feel that true aboriginal self-government will be elusive unless we have a means to effect it.

Over the past 25 years, the council has advanced several notions on self-sufficiency that we feel can assist in finding means to finance aboriginal self-government.

The first notion is the settlement of the aboriginal title of the Mi'kmaq and Maliseet nations. This will require governments to abandon the "superseded by law" argument that they have held, and it requires the establishment of a land claims settlement process. As in other comprehensive claims settlements, the outcome will provide compensation that will provide a funding base for aboriginal self-government.

The second notion is an aboriginal real estate tax. One of the central problems in New Brunswick is the fact that much of the land is held by private individuals and corporations. As a result, the argument over the question of extinguishment of title is a very divisive issue. In an attempt to bridge or resolve this dilemma, NBAPC has advocated the concept of an aboriginal real estate tax as one element that needs to be considered in the claims process. It is our feeling that an aboriginal real estate tax provides a solution to the opposing views that aboriginal title cannot be extinguished, and to the requirement of government and non-aboriginal people that they must be assured of good, clear title. The aboriginal real estate tax could be levied against all property held by individuals and corporations either annually or at the time of sale or transference of title. All revenues generated would go into an aboriginal self-government fund. These funds would be drawn upon by aboriginal governments for programs and services. It is our belief that this concept needs to be an element of any comprehensive land claims settlement in New Brunswick. It provides not only an assured source of ongoing funds for aboriginal governments, but also a bridge between the divergent views of aboriginal sovereignty and the need to provide clear title to non-aboriginal governments and society.

The third notion is that we propose an aboriginal claims royalty, or resource tax, as a means of providing aboriginal peoples with an independent and assured source of revenue, which would be used to finance the obligations, programs and services of aboriginal governments. This royalty would take the form of a percentage of the gross or net annual value of the renewable resources gathered and extracted from the lands and waters of New Brunswick. These sums would be collected by the province and allocated in an equitable manner by negotiation amongst the aboriginal representative governments both on and off reserve. This source of funding, as with the aboriginal real estate tax, would form part of the negotiations involved in a comprehensive land claims settlement.

The fourth notion relates to aboriginal transfer payments. The concept of aboriginal transfer payments follows the existing programs that provide funding to provincial governments. As a third order of government, it is our position that aboriginal governments must be allowed access to those resources to ensure that aboriginal governments have sufficient revenues to provide needed services and programs that are reasonably comparable to those provided to the majority of Canadians. These transfer payments could take the form of block grants and/or conditional grants. No matter which is used, it is essential that the principle of these transfers to aboriginal governments be entrenched in the Constitution. Aboriginal governance must be seen as the third order of government, with access to funding available to other Canadian governments.

Obviously, the block grant system is the preferred model, since this provides a notion of autonomy. If self-government is to be maintained, the block grant system would be best suited for providing social service programming, such as health, welfare, education, communications and culture.

These block grants entail a degree of flexibility that allows for their adaptation to the differences in geography, demographics and the cultural and economic conditions of various aboriginal peoples. Responsibility for accountability must be transferred to aboriginal government from the federal and provincial governments.

While the unconditional nature of block grants is feasible in areas such as health and welfare, conditional grants for specific purposes may be more politically acceptable in community development, economic development and housing fields, and could be used during an experimental transition period pending the gain of confidence in aboriginal management capabilities.

It might well be asked how the funding levels would be determined under either of these two grant approaches. It would be an error to attempt to estimate in the absence of detailed statistical data. We can state here that the aboriginal population constitutes at least 3 per cent of the Canadian population. As such, aboriginal peoples are entitled to at least their fair share of Canada's capital expenditures and ongoing programs. Furthermore, as an historically disadvantaged group, marked by disproportionate rates of deprivation, aboriginal peoples are entitled to benefit from affirmative action in favour of disadvantaged groups and programs foreshadowed in section 15(2) of the Charter of Rights.

The fifth notion relates to taxation. Over the years, our people have stated that as they already pay taxes due to residency off reserve, they would like to see a portion of the tax they pay be dedicated to aboriginal self-governance. As well, it is our position that businesses and corporate taxes must be generated from businesses that are to be based on, or who work on, aboriginal lands.

Over the last 27 years, NBAPC has observed that aboriginal government has been seen from two extreme perspectives. On the one hand, some see aboriginal self-government as nothing more than service and program delivery. On the other hand, some tend to see it as being sovereign. However, all aboriginal groups view self-government as resting within the Canadian political system.

For the New Brunswick Aboriginal Peoples Council, we see self-government as an inherent right that must be expressed in a contemporary form. This form must recognize the legitimate right of aboriginal nations. It must provide for the full participation of our people, and it must meet our needs.

The council believes that our concept of self-government provides such an opportunity to develop a contemporary form of self-government. We stand ready to provide our vision of self-governance for off-reserve aboriginal people, and we will work with those who are committed towards finding a fair, equitable solution that will enable aboriginal peoples to find their rightful place in Canada.

Senator Andreychuk: Thank you for an excellent brief touching on all the points this committee is studying. It has been very helpful.

You indicated that there are certain ways you think you can attract the tax base of Canada. Do you believe the community in New Brunswick would accept this concept of a resource tax, a real estate tax and block funding?

I come from Saskatchewan where the aboriginal base is growing and the non-aboriginal base is not growing. There is a growing fear of a shrinking tax base. While there seems to be some goodwill to start the measures you are talking about, there is concern about where the money will come from. Is the dynamic you are proposing acceptable? New Brunswick has a different mix of population.

Mr. Gould: We are talking about two communities. There is the aboriginal community, and then there is the non-aboriginal community.

We are quite proud of the fact that New Brunswick is the only true Canadian province. French and English are a fact of life in New Brunswick.

Much of this is based on the premise that for at least two decades now, Senator Watt, myself and several other aboriginal people have been involved in dialogue after dialogue about aboriginal governance. I think Canadians will accept the notion of aboriginal governance if it is within the confines of the Canadian nation state.

That causes difficulty for some aboriginal peoples, and we try to bridge that notion between the absolute sovereigntists who are in our camps and those people who I proudly call aboriginal Canadians.

In those areas of Canada where aboriginal people can use the colonist's notion of governance and the concept of "first past the post" -- I am thinking of representative governments such as Nunavut -- all the more power to them.

In New Brunswick, we are going through an exercise of navel gazing about the concept of aboriginal representatives in the legislative assembly. I am hearing from the general population that people are ill-prepared and ignorant about this fact. I am not talking about being ignorant in a negative sense. I am talking about the fact that they do not understand aboriginal peoples. They do not understand the concept of aboriginal nationhood. They say, "Why should you have guaranteed representation in the assembly because then we will have to give it to the Jewish population, to black people and other ethnic communities?"

The simple answer to that is that we are not ethnic. We are the first peoples of this land. The institutions that control the daily lives of our people, Parliament and the provincial legislatures, are here to stay. They are not going to go away.

The royal commission has conducted an extensive study and has come to the conclusion that aboriginal governance is something that is worthwhile. It needs to be implemented.

I believe that the proper approach would be to identify some models that can be used in various areas of Canada. I am always correcting New Brunswickers about Nunavut. They keep saying that that is an aboriginal government. I say no it is not; it is a public government. Simply because 85 per cent of the population is Inuit, does not make it an aboriginal government. That government will serve the Inuit people living in Nunavut well. I dare say it will serve non-aboriginal peoples well. We are less than 2 per cent of the population in my area.

As an aside, I am a card-carrying Liberal, although inactive because I have some fundamental ideological problems.

Senator Andreychuk: We will talk later. I have the same problem.

Mr. Gould: The issue is that if we try to run aboriginal peoples who are concerned about aboriginal issues through the general process, we will never get elected.

If I wanted to run as a regular member and hide my opinion, get myself elected, and then use all my time debating aboriginal issues, that would be fraud. It does not respect our notion of governments which is inherent in our peoples and our nation. We have every right to share in the government structures which exist in this country, because it is our land.

Senator Andreychuk: You talked about adding funding in some sort of visible way. Would the community in New Brunswick accept it? Are you saying that, if they accept structures and then other things, the benefits will flow and they will see the benefit of the money?

Mr. Gould: One of my models is a result of the fact that I am a general manager of a non-profit housing corporation. I have been involved in that for years and I have explored funding options for social housing.

In some areas of the world, most notably the United States, a real estate tax has been used as a way to fund social housing. Let us say that Gary Gould owns a piece of property in New Brunswick. When Gary Gould sells his house, a surtax or what we would like to see called an "aboriginal tax" of a certain percentile, would be attached. At the time of sale of that property, the province, through its regular system, would collect the tax.

This "aboriginal tax" would be designated to an aboriginal governance fund. That would, in most cases, not create a problem for the average citizen because it would be a small amount. If it is 1 per cent, then 1 per cent on a $100,000 home is $1,000.

We need to educate Canadians in this regard. We are not an ethnic group. I get upset when I hear members of the legislative assembly still calling aboriginal people "ethnic." We do not have any other place to go. This is our home, this is our country. There are many ethnic people that we share it with, but we are not an ethnic group.

The Chairman: I would like to take you back to the concept of "peoplehood," nationhood, or statehood. As you know, aboriginal people cannot use resources as collateral.

If there were a tax regime such as you have put forward, and at the same time self-government were to come about in the area you mentioned, and you ended up owning or having control over many square miles of reserve land, would the amount of land diminish as you sold it because you do not have so-called "statehood"? In other words, you could not sell it and resell it because you are not a government; you do not own the land.

According to the reserve concept, you have no right to sell the land. The Minister of Indian Affairs has authority over that land. Knowing that is the case, and if a meaningful self-government comes about at some point, it may require taking over jurisdiction from both federal and provincial governments. You would then become a third level or order of government.

Up to this point, none of our witnesses has made that case. When you speak of a third order of government, are you thinking of a local or regional level of government having that third-level power? Are you suggesting a parallel system to that which exists today, the difference being that it would be a third level of government which would bite into the power of federal and provincial governments?

Mr. Gould: That is exactly what we are alluding to. The main problem we have in New Brunswick relates to the land tenure system which exists there. As you are all well aware, a year ago we were in massive logging disputes. Most of the land in the Province of New Brunswick has been granted out to timber companies, and about one-third of it is held in private ownership. However, they have not dealt with the aboriginal title. They have not dealt with the Maliseet and other peoples' land rights.

Our notion of third order of government is premised on the assumption that we will need to borrow from the federal and provincial powers, those powers that will enable us to deal with our people. When we talk about our people, we are talking about the people who belong to the two nations, namely, the Mi'kmaq and Maliseet nations, whether they live on reserve or off reserve, and whether they are registered or non-registered.

The Chairman: Where does your land title come from?

Mr. Gould: That comes from the fact that there is an underlying title interest in all the lands in the Province of New Brunswick.

The Chairman: All the land?

Mr. Gould: Yes, all the lands in the Province of New Brunswick. This is one of the reasons why, when we talk about the real estate tax and how that can attach itself in a contemporary fashion to existing property and deal with the extinguishment problem and the sovereignty problem at the same time, we consider it to be an ongoing process.

By way of example, if I sold my land today to Joe Blow, a portion of the real estate tax called "aboriginal tax," would be set aside. Approximately 10 years from now, if that property sold again, the aboriginal real estate tax would apply again. Therefore, there would be a continuous source of recognition of the interests of aboriginal peoples.

The Chairman: If I may stop you there, before you lose me, what about the land? Where will the land sit: with the provincial government or with your new third level of government?

Mr. Gould: As in any claims process, there will be different categories of land. There will be lands that are outright extinguished for compensation and lands that will be held by the aboriginal nations.

The Chairman: You are saying that if you acquire your land through land claims negotiations that will be the extent of what you acquire. Whether it will become outright ownership or treaty rights, that is immaterial at this point.

Mr. Gould: That is correct. That is the only avenue that is open to us.

The Chairman: Would you still like to have an interest in that bigger territory?

Mr. Gould: We still have an interest in it.

The Chairman: Do you mean by collecting royalties and things of that nature?

Mr. Gould: That is correct.

Ms Lavallée: Within the next five to 10 years, we will be doing the same thing that is happening in British Columbia.

The Chairman: Are you fully aware that whatever you acquire through land claims negotiations -- that is, whatever size that piece of land may be -- will be yours? That is the only piece of land that will be under your control. You will have only an influence on the larger piece of land.

Mr. Gould: We understand there may be co-management lands and private freehold lands, but this is where the aboriginal real estate tax would come in.

The Chairman: Your governing institutions will have an ability to formulate legislation, and you will be able to advance social and economic policy. What would happen if you passed a bill knowing that you were infringing upon federal jurisdiction? How would you deal with that? Would you try to work it out with the other level or levels of government by negotiating, for example, a delay of 60 days before the coming into force of the legislation, or something along those lines?

Mr. Gould: Over the years we have prepared a number of other papers. We talked about dispute resolution mechanisms such as tribunals which would involve the three levels of government. There is the tribal level, the tier we would deal with. The provincial and federal levels would also be involved in these decisions.

The Chairman: For 25 years you have not changed your ideas about how this should be formulated.

Mr. Gould: No; not me.

The Chairman: I understand.

Senator Pearson: Thank you for your excellent presentation.

The second tier is the creation of institutions to provide services. You talk about housing, economic development, job training, alcohol and drug counselling, family services and social services. What about the criminal law system?

Mr. Gould: New Brunswick was probably the first jurisdiction to have sentencing circles. We see some value in that model. There are some practical examples of how these are working. However, they are still in the infancy stages. The former solicitor general Mr. Scott is from New Brunswick. He and I have had a number of discussions on this topic. Through his involvement with the aboriginal people, he has come to the conclusion that there are values in the concept of how we deal with people who get out of hand. We do not call them "law breakers" because it they do not break a law, it is just that they have not been fitting well into society. We do not use the concept of punishment in our approach. The prison without walls in Hobema has demonstrated some marketed success in changing the attitudes of both the prison officials and the people who are incarcerated there.

Mr. Scott has told me that he thinks that some of the principles and values that we have espoused and used traditionally are worthy of consideration in non-aboriginal society as well. That touches on a sharing concept.

Senator Pearson: I am sympathetic to these issues which centre around the administration of justice. However, when you say that you do not consider someone a law breaker, then you run into a major conflict.

Mr. Gould: We are not talking about there being different sentences for rape, murder, and so on. We have always understood that the Criminal Code would apply. We are talking more about the process of healing an individual. We recognize that these people have problems that must be dealt with under the Criminal Code. I do not think any of the aboriginal groups have been talking about creating different penalties under a separate Criminal Code.

Senator Pearson: I agree. It is a question of the concept of law breaking and the problem is that some crimes are committed either against your members by someone who is not a member of your population, or the other way around.

Mr. Gould: Much of our background is based on the fact that we live off reserve. We live in homogeneous communities. We are not a reserve-based population.

Senator Pearson: Do your populations tend to be grouped somewhat homogeneously?

Mr. Gould: We have some small pockets. However, in most cases you would not find a community where we are predominant. It is not like Western Canada. In my part of the world, we have had to deal with the colonizers for 500 years.

Senator Pearson: Some of us who are of Scottish extraction we feel that we were thrown out of our region as well.

The Chairman: Yes, and you landed here.

Senator Pearson: We do not see ourselves as colonizers.

The second question that I am profoundly interested in is the empowerment of young people. In your governance structure, what do you envisage the role of young people to be?

Ms Lavallée: I envision myself to be a leader and a role model. If you look at my autobiography, you will see that I have broken many trails for aboriginal women and women in general to come behind me in the Armed Forces. My son is now in the Armed Forces. He has been the same sort of role model for his son who is currently in his third year of university.

Our children have always had to be independent. They did not have access to the sources that our brothers and sisters or my brother's children had on reserve had. We have always had to stand on our own two feet and get out there and fight for whatever we wanted because we did not fit anywhere. We were caught in the middle of the fighting over who we were. Therefore, we have had no choice but to get out there and go after whatever we want.

By being here today, I believe that I am setting a standard for my son to achieve and, in turn, that standard will be passed on to his children.

I look back at the standard which was set by my father and my grandfather as role models. My son is a fifth-generation serving soldier who has just returned from Bosnia. Our children on the outside are doing really well in spite of the fact that they have many difficult social and economic situations to deal with.

Our biggest problem in trying to help our children is that we do not have access to funding. For instance, my son played a large part in negotiating with the provincial government to have our summer camp land set aside for them. Unfortunately, it always comes down to funding.

We were successfully running some youth services programs through HRDC. We were congratulated by the national and local HRDC offices who asked us to try to expand these programs to other parts of New Brunswick. We have since found out that our funding will be cut off at the end of March. We will no longer be able to access any funding through HRDC, whether it be for job training, youth programs, disability programs, or Head Start.

Senator Pearson: Why not?

Ms Lavallée: As a result of the fact that the funding for people like myself, as a registered Indian under Bill C-31, will go to my chief and council, who will supposedly represent me and who will do the training. We know it will not happen. HRDC has the data and the evidence that it has not happened previously. They know it will not happen. They do not have the resources to monitor them, to make them accountable, or to enforce it.

Senator Pearson: That is an interesting problem. We would like to know more about that, although perhaps not at this particular meeting.

Mr. Gould: The services will not be where the people are. The previous group here talked about the situation in Winnipeg. The problem is the same all across the country. The federal government, for whatever reason, has designed a program that mandates that all registered Indian people will be serviced by their band, but people live, in many cases, thousands of miles from their band. Under our programs, we serve Inuit people in the Province of New Brunswick. We serve Coast Salish people from all across the country in our programs. We have been doing this for 25 years. As a result of the new design that is scheduled to come down on March 31, our ability to aid and assist aboriginal peoples off reserve will be gone.

Senator Pearson: This is HRD or DIAND?

Mr. Gould: It is HRD.

Senator Pearson: Thank you very much.

Senator Gill: Thank you for your presentation. I should like to congratulate the interpreters. I was reading the English version while I was listening to the French, and they did a good job.

My question is somewhat sensitive, relating to membership and status. You mentioned a few minutes ago that Bill C-31 has created many problems all over the country for Métis people.

Ms Lavallée: I am a registered Indian. My son is not entitled to be called an Indian under the federal legislation.

Senator Gill: Status has been defined so far by Indian Affairs, not by the people themselves. Before 1937, as Senator Watt and Senator Adams would know, people did not want to have the Inuit under federal or provincial laws, so they decided they were Indians at that time.

Mr. Gould: They were, constitutionally, under subsection 91.24 in 1939.

The Chairman: There is also a paragraph appended to the 1912 Extension Act calling us "untameable savages," unlike Indians.

Senator Gill: This created many problems throughout the country. It is still a problem. Suppose we reach the goal of self-government. Have you considered what organizations should decide who is Indian or what kind of citizen a person is? Is there an organization that will define your status as a citizen?

Mr. Gould: Senator Gill, that is the first tier of our model of governance. That is the reconstituting of the nation. In our model, we speak about a tribal level. That is it. In the Province of New Brunswick, there are two First Nations. I get very upset when I hear government and non-aboriginal people talk about 15 First Nations in the province of New Brunswick. There are 15 reserves. However, there are only two First Nations, Mi'kmaq and Maliseet. The Mi'kmaq and Maliseet nations are comprised of peoples, people who live on reserve, people who live off reserve, people who have status, and people who do not have status.

We are both status. I am a member of the Woodstock Indian band.

Senator Mahovlich: Would one of those bands extend into Nova Scotia or another province, or are you just in New Brunswick?

Mr. Gould: The Mi'kmaq tribe goes into Nova Scotia.

Senator Mahovlich: Will they be treated the same as the Mi'kmaq in New Brunswick?

Mr. Gould: I cannot speak for the Mi'kmaq because I am not a Mi'kmaq. I can speak on behalf of my people, the Maliseet peoples who, in the Canadian political process, are confined to the geographic location called the Province of New Brunswick. Some are in the State of Maine but I am dealing with the Canadian political situation.

To us, the tribal unit is the first level of governance. In an ideal world, we would reconstitute the First Nation. Indeed, the Royal Commission talked about reconstituting the First Nation, the Maliseet nation, and getting our people together under a tribal constitution.

We approached government on this matter in 1946. The chiefs of the Maliseet people approached the government and said, "We want to reconstitute the nation. We want to rid ourselves of the Indian Act. We want to deal with these issues on a nation-to-nation basis." Government has avoided us through various pieces of Indian legislation. Bill C-31 is another one of those intrusions.

Until we return to reconstituting the First Nations, the true First Nations which include the reserves and the off-reserve peoples, we will not have real notions of self-governance. We may end up with community service groups and programs, but we will not have true aboriginal self-governance.

Senator Gill: Would it be your recommendation that all groups across the country adopt this definition?

Mr. Gould: I must have a boring life because I have read the Report of the Royal Commission on Aboriginal Peoples, and the reconstitution of the original First Nations was one of their primary recommendations.

Senator Gill: On a national basis.

Mr. Gould: I have been around for 25 years, and in that time I have not changed my position on this subject.

Senator Mahovlich: Did you say you agreed that it should be across the country?

Mr. Gould: Yes. I cannot speak for Crees, but I agree with that approach.

Senator Mahovlich: I have only been here for six months, but having attended the meetings of this committee it has become clear to me that the aboriginal people have to get organized and get a leader.

Mr. Gould: We have been trying to do that, but the government always divides us.

Senator Gill: Do you include the Métis, the status and the non-status in that generalization?

Mr. Gould: The Métis people from the Prairies are looking for a special relationship based on the Métis nation concept. If that is the approach that the Métis people from the Prairies want to take, that is entirely up to them.

I have real difficulty with two First Nations occupying the same geographic territory. We have mixed blood peoples in our part of the country who identify as Métis, but they do not identify with the nationalistic Métis of the Prairies. They identify themselves as mixed blood persons who identify with the Maliseet nation or the Mi'kmaq nation.

Senator Mahovlich: I wish to commend these witnesses. This is one of the better presentations that we have heard. You have some good ideas, particularly the idea of the aboriginal tax. That is a beginning.

Mr. Gould: We are quite serious about that. We would like one-third of our taxes to go to a self-governing institution for which our people would set the programs.

I will be blunt about this. I am a registered Indian living off reserve.

Senator Mahovlich: If you live off reserve, you are not Indian. Is that not what the fellow from Winnipeg said? They will not accept him on his reserve.

Mr. Gould: It also affects social programs and housing.

Senator Mahovlich: You have to go to the bottom of the list and before you get a house.

Mr. Gould: There is a court challenge to Bill C-31 which was led by the late Senator Twinn. My mother lost her status because she married my father in 1931. She left the reserve in 1932 when my father was thrown in jail for being a Frenchman on reserve after sundown. My mother asked her brother, who was the chief, what could be done. He said that there was nothing to be done because that was the law under the Indian Act, and the Indian agent had control.

My mother bundled up my older brother and headed off to Saint John, New Brunswick. She refused until the day she died to live on the reserve again. She wanted nothing to do with the reserve if the people could not control who had the right to live there without government interference. That is not the way she was brought up, but that became the reality. These divisions exist.

I do not wish to dwell on this, but I am counted when determining the size of the government unit on the reserve. We have 700 band members. The Indian Act says that every band shall have a chief and at least two councillors for up to 300 members. For every 100 people over that magic number of 300, an extra councillor shall be elected. There are 700 members on the Woodstock reserve, to which I am attached. Four hundred of us live off reserve. Those 400 are counted to determine the council size, but we cannot vote. There is something fundamentally wrong with that model of self-government. That exists all across Canada. We are used for program dollars and services that go to the reserves, and we cannot access them.

With regard to health services, my sister needs dialysis three times a week. Two years ago, Health Canada provided some funds for her travel expenses to the hospital three times a week. One year ago, Health Canada signed an agreement with the band. Her mileage funding was cut because under that deal the moneys go directly to the band and the band is to hire a carrier to transport people from the reserve to the hospital. My sister lives 160 miles from the reserve. I called the band administrator and asked to have my sister picked up at five o'clock on Monday, Wednesday and Friday mornings. He said that they could not do that because she lives 160 miles away, even though the band was receiving money on her behalf.

That is the type of problem that we live with.

Senator Mahovlich: They would not pick her up?

Mr. Gould: They cannot. First, it is not economically feasible.

Senator Mahovlich: She must have her dialysis.

Mr. Gould: We were able to get a little funding back from Health Canada, although not nearly what she was getting before. In a couple of years, they will not have to worry about her. That is the bottom line. There is no equity of access for status Indians who live off reserve.

Under the Indian Act, education is supposed to be provided. We are now finding that some off-reserve people are being denied access to education simply because of their place of residence.

Senator Mahovlich: Where were you educated?

Mr. Gould: I have only a Grade 12 education. I was part of a family of 12 and I had to go to work. My father read. He told me to read, to pay attention, and to learn from smarter people.

Senator Mahovlich: Good for you. You are doing very well.

The Chairman: I believe you are affiliated with the Congress of Aboriginal Peoples.

Mr. Gould: Yes, formerly the Native Council of Canada.

The Chairman: That organization has two seats on the round table on governance. The round table holds public hearings like this one. We also have another mechanism which goes, in greater depth, into the issues raised by the witnesses. You are very welcome to channel your concerns through that national organization. I hope that you will be able to articulate them in a way that will be useful to us when we make our recommendations to the government.

Thank you for your presentation this evening. I still have questions about jurisdiction, the level of order, overlap, et cetera. Please keep those areas in mind as they will need to be addressed before we report.

The committee adjourned.

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