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