THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Wednesday, May 30, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to study the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples (Topic: Follow Up to S-3); and, in camera, for the consideration of a draft agenda (future business).
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good evening. I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or watching via the web.
I am Lillian Dyck from Saskatchewan. I have the privilege of chairing this committee. I now invite my fellow senators to introduce themselves.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator McCallum: Mary McCallum, Manitoba.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Pate: Kim Pate, Ontario.
Senator McPhedran: Marilou McPhedran, Manitoba.
The Chair: Thank you, senators. Before we begin, I would like to acknowledge we are meeting on the unceded traditional lands of the Algonquin peoples of Canada. Today we are holding a special meeting to hear about the progress made about Bill S-3 since it was passed. We are welcoming tonight Minister Carolyn Bennett, accompanied by Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs Sector.
Minister, you have the floor to be followed by questions by the senators. Please proceed.
Hon. Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations and Northern Affairs, Crown-Indigenous Relations and Northern Affairs Canada: Thank you very much, senators. Thank you for inviting me to be with you again here on the unceded territory of the Algonquin people.
[Translation]
I am joined by Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs.
[English]
I already apologized for the silly season in the other place. Apparently there is going to be more bells and more votes about who knows what. It is that time of year.
I always want to take the opportunity to thank the many parliamentarians who worked collaboratively with government across parliamentary affiliations throughout the legislative process to make significant improvements to Bill S-3.
In particular, we want to thank the members of this committee for the comprehensive study you did on Bill S-3 and your willingness to work cooperatively with us to pass legislation that finally removes all sex-based discrimination from registration provisions in the Indian Act.
I’m also pleased to be here today to discuss the first of three legislated reports to Parliament on the soon-to-be-launched consultations regarding Indian Act registration, band membership and citizenship, and on the implementation of Bill S-3. Members of Parliament and senators made it clear during the legislative process that Parliament wanted to remain informed of and engaged in the process after Royal Assent.
As you know, Bill S-3 requires the government to report back to Parliament on three separate occasions: on the design of the consultation process within five months of Royal Assent, which, as you know, was tabled on May 10; on the results of the consultation one year after the consultations begin, which will be June 12, 2019; and on the review of Bill S-3 amendments to determine whether all sex-based inequities have been eliminated with respect to those provisions and on operation of those provisions within three years of Royal Assent, which is December 12, 2020.
I welcome this ongoing engagement from parliamentarians about how we get this right. Given this committee’s extensive knowledge of these issues, I will be seeking your ongoing advice as we move forward.
[Translation]
As mentioned, the government tabled its report on the co-design of the consultation process on May 10.
[English]
During the co-design phase, input was sought for two general design questions: What subject matter should be included in the Collaborative process on Indian registration, band membership and First Nation citizenship; and two, what types of consultation activities should occur as part of the collaborative process?
The feedback during the co-design phase largely confirmed the areas of concern currently set out in Bill S-3. However, the impacts of the increase of members on communities both on and off reserve, on everything from language and culture to treaty annuities and their land base, were also raised.
[Translation]
Resources were a key area of concern, and ensuring that any expansion of membership is accompanied by a plan to address these and other issues will be essential.
[English]
We heard during the co-design process that meaningful consultation must ensure the government shares comprehensive information with our partners in advance of consultation sessions, the most inclusive and representative process possible, flexibility in the process and adequate support to facilitate participation.
We have now established an Indigenous advisory panel that is providing advice and guidance to the government. It will continue to do so throughout the consultation process. The Indigenous advisory panel consists of one member selected by each of the three national Indigenous organizations who represent individuals or partners impacted by Indian Act registration and citizenship provisions. These include: the Assembly of First Nations, the Native Women’s Association of Canada and the Congress of Aboriginal Peoples.
In addition to working closely with national Indigenous representative organizations, we also heard the process must also engage directly with First Nations, regional organizations, communities and impacted individuals.
[Translation]
I also understand concerns that the complexity and breadth of the issues to be dealt with through these consultations could undermine the focus on key components, such as the development of a comprehensive implementation plan for the removal of the 1951 cut-off.
[English]
That is why we have decided, and I have elected, that it would be prudent to appoint an Indigenous ministerial special representative. This is an opportunity I have as minister to appoint an MSR to do the things I would love to do myself if I had the time. Someone who is out there as my eyes and ears, and reports directly to me. We have decided, in order to get it done properly, it will be important to have an MSR who will drive this process forward and ensure the consultations are focused, meaningful, inclusive and flexible.
The MSR’s mandate would be to coordinate a consultation process which incorporates the diversity of the potentially impacted individuals and communities, as well as the wide range of viewpoints on these complex issues. The MSR would also prepare a final report including recommendations to be used for the preparation of the June 2019 report to Parliament. This report would specifically address the necessary components for an implementation plan to accompany the bringing into force of the provisions removing the 1951 cut-off.
I also see the consultations conducted through three distinct content streams. These would be: One, the implementation of the removal of the 1951 cut-off from the Indian Act; two, remaining inequities related to registration and membership under the Indian Act; and three, the devolution to the First Nations of the responsibility for determining membership and citizenship.
Given the feedback we heard during the co-design phase, we also believe the initial phase of the consultation must be focused on providing information and, where appropriate, financial support to potential participants to allow for them to participate in a meaningful way.
We heard from many during the co-design phase it is essential government share comprehensive information with our partners well in advance of the consultation sessions.
[Translation]
We are working with the Indigenous advisory panel on materials for use during the collaborative process.
[English]
These materials will include but will not be limited to a consultation guide, public information materials and fact sheets. Again, the advisory panel will be involved in the content of the guide and the public information.
We want to assure you that the methods for consultation will include as wide a range of tools as possible, including in-person sessions, online interaction, the use of social media to communicate session information, to name a few.
In terms of timelines, based on what we heard during the co-design phase, I am confident we can complete a comprehensive and meaningful consultation within the 12-month time frame. I believe this will align well with the next legislated report to Parliament by June 2019.
I would very much like to hear your views on the approach I have outlined. I look forward to answering your questions. Also getting your advice about how these consultations not only ensure Bill S-3 is implemented in a good way but that it lays the foundation to accelerate the ability of First Nations to determine their own citizenship and how we get the federal government out of this role, as you’ve heard from me before.
Thank you. Meegwetch.
We actually don’t want to be in this business anymore. I also welcome the opportunity, whether as a breakfast or coming back, to talk with you about the work we’re doing on the recognition and implementation of a rights framework. I think by the end of next month, we’ll have an idea of what we want to test over the summer. I’m happy to have an informal conversation with you, Madam Chair, and the committee to let you know where we think we’re going over the summer. If you have some advice of how we could do that work as well, that would be great. That work really is going to lay the legal framework and the guideline to the self-determination that allows nations to determine their own membership and citizenship.
The Chair: Thank you, Madam Minister. We will now have questions from senators.
Senator Patterson: Minister, I welcome your report. I thank you for kindly giving credit to our committee. As you said, it’s about working cooperatively to achieve the goal we all share to remove sex-based discrimination under the Indian Act. It’s been quite a road until now. I thank you for your willingness to work cooperatively with us to finally solve this long-standing inequity.
In my experience, it doesn’t always happen that ministers invite them to talk informally over breakfast or a working meal and really work collaboratively in a less formal way than we’re doing tonight. I think we’re off to a great start with your report.
On page 3, you say your first report is on the design of the consultation process within five months of Royal Assent, which was tabled May 10. That means the design was tabled May 10. I’ve got it.
I have some specific questions and, I hope, short questions. The consultation is to begin June 12. You announced the advisory committee, which I hope will be helpful. I guess they must be ready to start work. I wonder, minister, if you could kindly share with the committee the names and qualifications of those selected, if it’s timely. I’m sure they’re eminent people. That would be appreciated.
Also, would you be able to share with the committee the names of every nation, group and organization you have invited to participate in the co-development of the consultative plan? I’m sure those lists are available. It would be helpful if they could be shared with the committee.
Ms. Bennett: I’m pleased to provide everything we have in terms of who we’ve talked to date in that co-design phase. As we begin the actual engagement on June 12, we will provide them as soon as we have the documents around the consultation guide as well as the plan.
The advisory panel, as I’ve learned, has been determined bottom up. That means the AFN, NWAC, and CAP are sending us who they want. I’m not appointing “friendlies,” which I think is the perception sometimes. These are the people who have the expertise and knowledge and have been working on these issues within their organizations.
I think we’ve got two of the three confirmed. As soon as we have all three confirmed, we’ll forward it to Madam Chair and yourself, Senator Patterson. Then they begin their work with us on developing the guide and the plan. With the leadership of the ministerial special representative who, again, we hope to have confirmed by that date. In terms of all the things that have to happen with government and appointments, we hopefully will have that person confirmed and share that with you . I’m sure she would want any advice — I’ve already said “she,” but anyway. I don’t think you’ll be surprised that it’s an Indigenous woman. I don’t think that’s surprising. I mean, all is going well.
We’ll give you whatever we’ve got as soon as any piece of this is confirmed.
As you know, we’ve been asked a number of times: The priority of the implementation of the 1951 cut-off is obviously important. The purpose of Bill S-3 at the beginning was to get rid of all the sex-based discrimination and then for us to move on. The other piece is in phase 2.
In the 1951 cut-off piece, we also wanted to reassure the committee this isn’t about whether we do it or, in some ways, how we do it. This is really about ensuring and doing the proper consultation to make sure the communities have the resources they need to be able to do this properly. That’s what we heard from a lot of chiefs, particularly the female chiefs, coast to coast to coast. They want to make sure they do this properly on language and culture, the supports and what it will take to have these people feel part of a community.
That, again, is a very special part of the engagement. Then we will get on to deal with enfranchisement, adoption and the other pieces.
There was fairly stringent advice that to try and do those separately when it’s actually the same group of people you’re asking wouldn’t be very efficient. From what I’m understanding from the design phase, this consultation would be talking to people about all aspects of this but knowing the pre-1951 cut-off is already the law.
Senator McPhedran: Thank you, minister, for being with us again and for the generous sharing of information that you’re modelling, really, as a representative of the government. I am really fascinated at page 5 of your remarks we have in English. I think maybe there is a hint of the UN in the way in which it would appear the ministerial special representative is maybe being conceived.
I very much appreciate your invitation to us to share our thoughts on what might be helpful in going forward with this proposal for managing the process.
In that vein, in that spirit, I wanted to ask about the terms of reference for this position. You indicated your ministerial special representative will report directly to you, which is good news.
In addition to the terms of reference, I wonder if thought has been given to the kind of budget and staffing that will support the special representative. As you well know, one the great learnings from the UN system in terms of special representatives is they have repeatedly filed reports back into the UN system pointing out that when they don’t have resources, they can’t do their job. When they don’t have staff supporting them, they can’t do their job. I would encourage that to be developed thoroughly and for there to be an office of the MSR and for the way in which access to the MSR is going to be spelled out. If there is any information you could share — for example, will access to the MSR be something the advisory group takes into consideration and they’ll work that out? Knowing you, I’m sure it will be a very inclusive process.
We got started in all of this with Bill S-3 because it’s about discrimination. The original title, as you will well recall, was about the elimination of sex based inequities in the Indian Act.
If I may, can I ask in terms of the reference for the MSR, the advisory committee, and the consultations themselves, will discrimination be the priority issue? Will it be at the top of the list of what is to be addressed?
Ms. Bennett: Absolutely. I think Martin may be able to tell you about the governmental steps for all of this. As soon as we have determined the terms of reference, as well as the individual, we will share that with you.
I think you’re absolutely right. This is a lot of work with, as was our concern right from the beginning, no one knows how many people. There’s group and then there are individuals. This needs to be resourced properly. The whole focus of this is getting rid of discrimination in the Indian Act. Putting into place the pre-1951 cut-off and determining the resources communities both on and off reserve will need to welcome new members and citizens in terms of language and culture.
Also, in terms of supports, we’ll be determining what that looks like so we can put it in a budget and make sure it’s there. It will be very much part of the job of the MSR, namely, issues like enfranchisement, adoption and the other issues so well articulated in the conversations around Bill S-3.
This is about discrimination in the Indian Act. Between the technicians those three organizations are recommending to us, plus the MSR, I think this could be a properly executed engagement that people will feel comfortable with.
As you heard, I think three times during my remarks, I said the same thing. People want the information in advance. They want to be resourced. You have people feeling they’ve been invited to participate with the kind of resources needed and all the people who need to participate in this knows about it. I think those things don’t happen by accident. I think this needs to be properly thought through. The three organizations are offering their assistance. It’s important their representatives are at the table when this is executed.
Senator McPhedran: For clarification, if I heard you correctly, I think I heard you say no one is really sure of the numbers. I just wanted to check back in with you about the Parliamentary Budget Office report that was released early in December of last year that looked very closely at Professor Clatworthy’s used methodology number 4 of the various ones he listed and came up with the number 670,450 in comparison to 100,000 plus plus estimated by Mr. Clatworthy.
Am I hearing you say that Parliamentary Budget Office report is not being relied upon in the planning?
Ms. Bennett: I think what we heard after Bill C-31 is after all of these things, it may well be that people have more rights. However, whether they choose to exercise those rights is a choice. We don’t know how many people will come forward of those who may well qualify under Bill S-3.
In the engagement process, we don’t want anybody who might have those rights to feel they are prohibited from engaging and learning more about it. It’s a matter of us being very open to the kinds of conversations that need to take place. I think that’s why we are saying we’re not just going to talk to groups or elected representatives. It's about individuals interested in finding out. Those people will also be included in the engagement.
Senator McPhedran: Could I go down on round two?
The Chair: Yes. Before we start round two, I have a couple of short questions.
When you appeared last time, there were fears and estimates there would be a big influx in registration and there were numbers and dollars proposed to hire more staff for the registrar. Has there been a big influx in registrations after Bill S-3 was passed?
Ms. Bennett: Go ahead, Martin.
Martin Reiher, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Crown-Indigenous Relations and Northern Affairs Canada: If I may, Madam Chair, I can provide some information.
Since the passage of Bill S-3, as you know, certain individuals had sent their applications in advance. We continue to receive applications. Based on the preliminary intake, 7,000 files will be analyzed under Bill S-3.
Ms. Bennett: To add to that, senator, as you know, there was some concern about whether people could find out on the website how you do this or whether there was a special Bill S-3 form, or those kinds of things. I think we feel that has been sorted out. I Googled it myself yesterday, and it’s the first thing you come to. I think they’ve sorted out in a way that makes it very clear this registration includes the people who qualify now under Bill S-3.
The Chair: Just one short related question: I noticed in your report that was tabled under the kinds of things you heard, one of the things that came up was the need to explain section 6(1) in plain language.
Do you anticipate this would be something the Ministerial Special Representative or someone else would do? The way it’s explained is so complicated it will be difficult to conduct thorough consultations unless it’s in plain language that people in communities can understand. We have trouble understanding it, and we’ve been studying it for years.
Ms. Bennett: Absolutely. I think the whole issue of plain language is what we’ve got to do better in all of government. Again, if people have rights and they don’t understand them or they’re not being pointed out, that doesn’t really mean they have those rights if we haven’t explained it properly to them.
Go for it, Martin. You’ve been spending a lot of time on this.
Mr. Reiher: Thank you. I wanted to mention to the minister that the advisory board will also be helpful to us to make that information as audience adapted as possible.
In terms of sharing information, there will be various sources. Fact sheets are being prepared that are as simple as possible. Discussion papers will be developed by outside consultants. We have reached out to the IBA and the AFN for that purpose. The MSR will have a role in sharing and explaining the information.
The Chair: With all due respect to all the lawyers in the room, including yourself, Mr. Reiher, I hope you have some non-lawyers who are helping out with the plain language.
Senator McCallum: Thank you for your presentation. I’m not prepared for Bill S-3. I haven’t had time to look at it. I’m a new senator and it’s just a steep learning curve. It’s very important to me because my children are involved in this.
When you look at the impacted individuals, do these include the children who were taken into care and who will be soon coming out as adults?
Ms. Bennett: That’s a really important question because as we look at the Sixties Scoop, at adoption and at people’s rights that were taken away, it’s important we get this right. That’s really what the engagement is about: To make sure people understand that even if they were taken from their families, this is how we are obligated. That is, to give them the right to get in touch with their roots and that secure personal cultural identity that was taken from so many people. It’s a very important question.
It will be a test of whether we’ve done this right, as to whether those people who you describe feel included in this process.
I was saying to the team yesterday: One of my first jobs as a doctor was in Armstrong, Ontario, which was a completely non-status town because the American air force base had been there and then moved out. We all had to go up and volunteer for two weeks to be the doctor. Nobody in that town had status because a lot of them had given their status back in order to get veterans’ benefits. Then the next generation didn’t have status and the next after that didn’t have status. There are these hunks of our history that no one knows about that will be part of not only this exercise but also the post-Daniels exercise as we look at non-status and what that means to a family and how they lost their rights but how they actually should have those rights. Maybe I’m over-speaking, but it sure seems important.
Senator McCallum: I gave this information at the Senate committee. It was about the number of children coming out of care in the next four years in Manitoba alone. There are 11,000 coming out, 9,000 of which are Indigenous.
I’ve worked with children who have been in care. It takes them years to even begin to know where to look for their families and to work out the anger and the abandonment they feel. At that point, I cannot see them looking for their status. It’s important because many of them become homeless. It’s the homelessness and inability to access programs that are driving many of the issues.
Ms. Bennett: But to me, it’s what we heard in all the pre-inquiry on missing and murdered Indigenous women and girls. Attachment to the child welfare system and child abuse was part of almost every story. As far as how people get back in touch with their language and culture, for some of them it’s in prison. Senator Pate knows sometimes that’s their first attachment to understanding their Indigenous roots, and their identity and culture. That’s how they get back on a good path.
Senator Pate: Not that you’re advocating prison as an option.
Ms. Bennett: I’m saying how do we keep them out of prison? I’ve got transitional housing in my riding with five corrections beds. These guys are now back at Ryerson, George Brown, U of T. I just don’t know why they had to go to prison because what’s happening is at Sagatay is they’re getting back in touch with their language and culture. Most of them aged out of care and ended up in trouble.
This idea of when you age out of care and whether there could be some shoulder piece when we still have some responsibility, with the new understanding of how important secure personal cultural identity is to somebody doing better health education and economic outcomes, the sooner we figure this out the better. Any overture like Bill S-3 or post-Daniels, all of these new conversations have people understanding they don't really know where they belong and they need to find out. Our job is to help them find out. I think that’s the most exciting thing.
Senator McCallum: Do you have an idea on how to get these names and where these children are so when they come out there’s someone there?
Ms. Bennett: The Sixties Scoop Foundation will be doing some of these things. What’s fun occasionally in some of the communities I’ve been in, there’s the family reunification office in the band office where they’re trying to find their kids and bring them home. As much as everybody thought there was going to be a tsunami of people arriving due to Bill S-3, I think there are many communities also saying we’ve got to get those kids and bring them home, build places for them to stay, finding alternatives to find the aunties and the grandmothers and the other people who are more than happy to look after these kids if we can get them back into the community.
Yes, I think from Sixties Scoop to all of the research taking place now, it’s really important. But mainly we’ve got to stop apprehending these kids in what we now call the millennium scoop. Apprehending these kids at birth for reasons that make no sense because you had a kid who was apprehended five years before or you were in care yourself but now you’re on a good path. That’s the reform Dr. Philpott is working on. We want the money of the Government of Canada to support these kids to go to families, communities and children, not to lawyers to apprehend them, agencies that get more money the more kids they apprehend and non-Indigenous foster families, some of whom are doing very well with this child welfare industry in which they participate. That’s the significant change we’ve got to make in the total reform to this destructive process that’s been going on, where we thought we could do a better job raising children than communities.
Senator McPhedran: I’m looking at page 3 of your remarks, minister. You talk about what Bill S-3 requires the government to report back on and the three separate occasions you’re setting out. I’m really struck by the contrast between the report, the results of the consultation, which the report will be tabled presumably on June 12, 2019, and then action gets reported on December 12, 2020. I’m concerned about the significance of the year 2019 for the future of this country. Maybe I’ll just ask that you dream with me for a moment. Can you visualize the possibility?
When you said to Parliament, “I am confident that we can complete a comprehensive and meaningful consultation by June of 2019,” can you dream with me? Can you see the possibility that you can actually bring section 2.1 into force by June 12, 2019?
Ms. Bennett: Like I said at the meeting, we don’t know what we don’t know. I think we’ll have a pretty good handle on it by June 12 and we will know by then whether we can bring it into force. It will be about us needing to make sure resources are in place to make sure these new citizens are well looked after and have resources in communities or off reserve.
The budget cycle is the other piece, but that is the advice we’re seeking from the MSR and the advisory committee as to what we need to do to make sure this is done well.
Then, as you say, it looks like there will be an election that October. Then it gives a year after that election to report on results and progress on everything in Bill S-3 and the table report for June 12 saying what we are supposed to do about this.
Dreaming, I sleep very soundly.
Senator McPhedran: If I may follow up with an observation that —
The Chair: Senator McPhedran, unfortunately, I think the minister may have to leave.
Ms. Bennett: I have four minutes to get into my chair.
The Chair: We have two questioners, yourself and senator Christmas, so please make it a short one.
Senator McPhedran: If you aren’t able to follow through on the promise in Bill S-3, then we will again have sustained discrimination against Indigenous women in this country in contravention of the UN Declaration on the Rights of Indigenous Peoples and in contravention of numerous statements that have been made. How do you feel about that?
Ms. Bennett: Well, as you know, that was the concern about the coming into force. We had to know what it would take to do this properly and to make sure the resources are in place. It’s one thing to have it in law. It’s another to be able to do it.
We want to be able to do this properly. We’re going to put in every effort to make sure that happens.
Senator Christmas: I just want to thank you, minister, for being here. It strikes me that all the right steps are being taken with the advisory panel and the MSR. It looks like the process is well underway. My thanks and my congratulations for taking all the right steps to this point.
Ms. Bennett: Thank you.
Hon. Senators: Hear, hear.
Ms. Bennett: Thank you. Maybe we could have a breakfast informally to discuss the rights recognition. I know Senator Patterson has been part of the discussions in the North. It would be fun to pick your brains to see what we should or shouldn’t be doing.
The Chair: Thank you, Madam Minister and Mr. Reiher.
We’re done with questions. We’re going to have an in-camera session with communications to talk about the Youth Indigenize the Senate day next week.
(The committee continued in camera.)