Bill C-3 - An An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs)(Gender Equity in Indian Registration Act).
This Bill was introduced in the House on March 11, 2010. Debates at second reading were on March 26 & 29, 2010. The Bill was then studied at the Standing Committee on Aboriginal Affairs and Northern Development (AAON) from April 1st-29th, 2010.
During Committee, Indian and Northern Affairs Canada, Justice Canada and Aboriginal groups and individuals gave evidence about Bill C-3 and how it would or would not address gender inequality under the registration provisions of the Indian Act in response to the McIvor case.
Most of the witnesses recommended amendments to the Bill as drafted. The Committee was struck by the unanimity of the witnesses on the point that Bill C-3 as originally drafted not only does not remedy gender inequality within the Indian Act, it does not even address the McIvor case. Therefore, the Committee made several amendments to Bill C-3 in order to more fully address gender inequality for Indian women and their descendants.
The Committee submitted their report to the House with a revised version of Bill C-3 that contained the amendments. As a result, the Conservatives made a motion asking the Speaker of the House to rule the amendments out of order. Submissions were made by the parties on this point in the House arguing that the Speaker should not rule these amendments out of order.
Howver, on Tuesday, May 11, 2010, the Speaker of the House ruled the amendments relating to status and the title of the Bill out of order and ordered that the Bill be reprinted. The amendments that remain within the Bill is the removal of section 9 (the clause which granted Canada and the Bands immunity from claims) and the new section advanced by the Bloc which requires INAC to provide a report in two years.
The next stage is the official report stage. This cannot happen until at least the week of May 24 because the House has a break next week. At the report stage, the House can consider the Bill as it is reprinted.
They also have a chance to make further amendments to the Bill. However, it is not possible to reintroduce the same amendments that were ruled out of order. Similarly, even if different amendments are suggested, it is still possible for the Conservatives to ask the Speaker of the House to rule them out of order.
It therefore extremely important that the opposition parties work together to select strategic amendments that will address gender inequality within the Indian Act, but ensure that what they advance is not so large as to run the risk of being considered out of scope. I am hopeful that the parties will continue to work with Aboriginal groups and individuals to achieve this goal.
Once the Third Reading has been completed, the Bill, including any additional amendments, will go to the Senate to start the process all over again from the Senate side of the House.
Several of the submissions made by the witnesses can be found on AFN's website. I have also included various submissions on my website - http://www.nonstatusindian.com/ under Current Issues and Bill C-3.
Wednesday, May 12, 2010
Monday, April 19, 2010
Excerpts of My Presentation to the Standing Committee on Bill C-3
What follows is an excerpt from my presentation that I will be delivering to the Standing Committee on Aboriginal Affairs which is studying a draft of Bill C-3 - Gender Equity in Indian Registration Act. Once I make the presentation, I will post my entire presentation online on my website: www.nonstatusindian.com.
Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for wide-spread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon.
This situation is coupled with the fact that no additional funding has been identified for bands based on their increased membership numbers. This could result in bands feeling that they do not have sufficient resources to accommodate all their members and may amend or create band membership codes which specifically exclude those affected by Bill C-3. Canada often blames Aboriginal peoples for not being of one mind on these issues.
How quickly Canada forgets that this registration system was not only imposed upon us, but we were never consulted about what we wanted and the decision-making power rests solely with Canada. Aboriginal peoples have been living under the dark cloud of the Indian Act for over 130 years. How could Canada expect any result other than exactly what the Indian Act was designed to do - ensure that we were dependent, divided, and without our beliefs guide us. It's time for Canada to right its wrongs. To do other than address all the gender (and other) discrimination could mean additional and significant delays in justice for Aboriginal women and children with regard to:
(i) equal access to status and band membership;
(ii) equal access to citizenship in self-government agreements;
(iii) equal access to beneficiary status under treaties (historic and modern);
(iv) equal access to beneficiary status under land claim agreements (specific and comprehensive);
(v) an equal political voice in their communities (as electors and/or nominees for chief and council); and
(vi) equal access to programs and services from Canada in relation to health, education, economic development, and tax supports;
(vii) equal access to band programs and services like education & training, headstart, on- reserve schooling, housing, and tax supports; and
(viii) equal access to elders, mentors, leaders, community members, land bases, cultural traditions, customs and practices, cultural events, and language training, etc.
Respecting our Constitution, Charter, CHRA, and international human rights instruments and norms means we no longer have the option to exclude Indian women and their descendants from their birth right on the basis of political compromise, administrative inconvenience, opposition to human rights or added costs. Canada has previously exercised its legislative jurisdiction to amend the Act much more broadly than the litigation required and there is no reason it can't do so again. Let's try to get it right this time - my children are counting on you to uphold Canada's commitment to gender equality and human rights both in the letter and in spirit.
Here are my recommendations with regards to Bill C-3:
(1) I believe that Canada should withdraw the Bill and redraft more appropriate legislation that deals with gender discrimination, in conjunction with Sharon McIvor and other Aboriginal technical experts from the AFN, NWAC, and CAP.
If this could not be done, then I would recommend the following:
(2) Make an amendment to section 2 of Bill C-3, by adding the words "or was born prior to April 17, 1985 and was a direct descendant of such a person" to section 6(1)(a) of the Indian Act, 1985;
(3) Delete sections 3 and 4 of Bill C-3 and any references to a new section 6(1)(c.1) of the Indian Act;
(4) A new section should be added before or after sections 7 and 8 of Bill C-3 that provide protections for Bill C-3 individuals with regards to band membership, especially for those born pre-1985;
(5) Section 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in relation to status;
(6) Adequate funding be provided to First Nations for band-delivered programs and services based on their increased membership numbers (if any) and funding to enable all bands to draft membership codes, to review their current band membership codes and make the necessary amendments to incorporate gender equality;
(7) Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate a process by which to compensate those affected by Bill C-3 (or some other form of the Bill) in the fairest, quickest manner possible;
(8) Additional legislation be drafted in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals to proactively address the remaining aspects of gender discrimination in the Indian Act; and
(9) That Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate the mandate, terms of reference, funding structures and deliverable objectives of the joint consultation process that will lead to further amendments dealing with the larger discrimination and jurisdiction issues under the Indian Act in the short term, and negotiate a similar process to engage in longer term solutions like modern treaties, self-government agreements and so forth.
Obviously my presentation contained a great deal more detail about what the actual problems were with Bill C-3, but this lets everyone know what I'm thinking in terms of go-forward solutions. Keep an eye on my website for my entire presentation which will be posted later on this week.
Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for wide-spread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon.
This situation is coupled with the fact that no additional funding has been identified for bands based on their increased membership numbers. This could result in bands feeling that they do not have sufficient resources to accommodate all their members and may amend or create band membership codes which specifically exclude those affected by Bill C-3. Canada often blames Aboriginal peoples for not being of one mind on these issues.
How quickly Canada forgets that this registration system was not only imposed upon us, but we were never consulted about what we wanted and the decision-making power rests solely with Canada. Aboriginal peoples have been living under the dark cloud of the Indian Act for over 130 years. How could Canada expect any result other than exactly what the Indian Act was designed to do - ensure that we were dependent, divided, and without our beliefs guide us. It's time for Canada to right its wrongs. To do other than address all the gender (and other) discrimination could mean additional and significant delays in justice for Aboriginal women and children with regard to:
(i) equal access to status and band membership;
(ii) equal access to citizenship in self-government agreements;
(iii) equal access to beneficiary status under treaties (historic and modern);
(iv) equal access to beneficiary status under land claim agreements (specific and comprehensive);
(v) an equal political voice in their communities (as electors and/or nominees for chief and council); and
(vi) equal access to programs and services from Canada in relation to health, education, economic development, and tax supports;
(vii) equal access to band programs and services like education & training, headstart, on- reserve schooling, housing, and tax supports; and
(viii) equal access to elders, mentors, leaders, community members, land bases, cultural traditions, customs and practices, cultural events, and language training, etc.
Respecting our Constitution, Charter, CHRA, and international human rights instruments and norms means we no longer have the option to exclude Indian women and their descendants from their birth right on the basis of political compromise, administrative inconvenience, opposition to human rights or added costs. Canada has previously exercised its legislative jurisdiction to amend the Act much more broadly than the litigation required and there is no reason it can't do so again. Let's try to get it right this time - my children are counting on you to uphold Canada's commitment to gender equality and human rights both in the letter and in spirit.
Here are my recommendations with regards to Bill C-3:
(1) I believe that Canada should withdraw the Bill and redraft more appropriate legislation that deals with gender discrimination, in conjunction with Sharon McIvor and other Aboriginal technical experts from the AFN, NWAC, and CAP.
If this could not be done, then I would recommend the following:
(2) Make an amendment to section 2 of Bill C-3, by adding the words "or was born prior to April 17, 1985 and was a direct descendant of such a person" to section 6(1)(a) of the Indian Act, 1985;
(3) Delete sections 3 and 4 of Bill C-3 and any references to a new section 6(1)(c.1) of the Indian Act;
(4) A new section should be added before or after sections 7 and 8 of Bill C-3 that provide protections for Bill C-3 individuals with regards to band membership, especially for those born pre-1985;
(5) Section 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in relation to status;
(6) Adequate funding be provided to First Nations for band-delivered programs and services based on their increased membership numbers (if any) and funding to enable all bands to draft membership codes, to review their current band membership codes and make the necessary amendments to incorporate gender equality;
(7) Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate a process by which to compensate those affected by Bill C-3 (or some other form of the Bill) in the fairest, quickest manner possible;
(8) Additional legislation be drafted in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals to proactively address the remaining aspects of gender discrimination in the Indian Act; and
(9) That Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate the mandate, terms of reference, funding structures and deliverable objectives of the joint consultation process that will lead to further amendments dealing with the larger discrimination and jurisdiction issues under the Indian Act in the short term, and negotiate a similar process to engage in longer term solutions like modern treaties, self-government agreements and so forth.
Obviously my presentation contained a great deal more detail about what the actual problems were with Bill C-3, but this lets everyone know what I'm thinking in terms of go-forward solutions. Keep an eye on my website for my entire presentation which will be posted later on this week.
Thursday, March 25, 2010
Bill C-3 Creates More Discrimination than it Remedies
As with all my blogs, the contents are my own personal views and should never be taken as legal advice.
In my last blog, I provided some of my concerns with regards to Bill C-3 Gender Equity in Indian Registration Act which was introduced on March 11, 2010. The purpose of this blog will be to review Bill C-3 in much more detail. However, readers should be aware that this Bill is not yet law and must go through several more stages before it even has a chance at being law.
First it is introduced in the House of Commons and given its first reading, which is really just a presentation of the Bill - like what Minister Strahl did with Bill C-3. It must then go through a second reading (where the principle of the Bill is debated) and then referred to committee for study. It is at this stage that the committee will hear witnesses and comments about each section of the Bill. The next stage is the report stage where amendments can be made and then this is followed by the third and final reading. If the Bill is passed by the House of Commons then it is sent to Senate where the process is repeated. Assuming that it passes through the Senate, then the Governor General can give the Bill "Royal Assent" and will become law on the day of assent unless the Bill says otherwise.
There is still some time before this Bill becomes law, so it is very important that we all submit our comments and views about it to our Members of Parliament (MPs), Senators, Minister Strahl, our Aboriginal representative organizations, Liberal Aboriginal Affairs Critic, Todd Russell, and any other group or organization that you feel will bring the message forward on your behalf. I have already sent my letter to Minister Strahl and this blog will provide a brief overview of some of my comments/concerns.
First of all, my providing comments to the Minister of Indian and Northern Affairs Canada (INAC) does not equate with acceptance or agreement with Bill C-3 or its amendments. It is my opinion that Canada does NOT have the jurisdiction to determine our identities - legally, culturally, politically or otherwise. However, I realize that practically speaking, the Indian Act will be amended whether I agree or not and I would rather have my input into those changes than not. That being said, I do not condone such a limited amendment as that presented in Bill C-3 which clearly does NOT address all of the blatant gender discrimination in the status provisions of the Indian Act. This problem is only transported into the band membership rules as a result.
In numerous discussions with other lawyers and community members, I have identified at least three very specific problems with the proposed amendments:
(1) Section 6(1)(c.1)(iii) contains awkward, confusing wording that creates a great deal
of uncertainty and ambiguity about what this section is meant to accomplish;
(2) Section 6(1)(c.1)(iv) contains new, additional criteria that is discriminatory, illogical, counter to how status is normally transmitted, and completely unnecessary in order to effect a proper gender equity remedy; and
(3) Section 9 contains an overly broad, offensive and unjust insulation from liability for Canada and the bands, for Canada's role in creating and perpetuating gender discrimination against Indian women who married out and their descendants.
I will deal with each of the above concerns separately and summarize my recommendations at the end.
(1) Section 6(1)(c.1)(iii) specifically provides as follows:
(iii) was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and...
This section is awkwardly worded and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from?
I would recommend that section 6(1)(c.1)(iii) be amended for greater clarity with an explanatory note that very clearly specifies what it is meant to accomplish and how.
(2) Section 6(1)(c.1)(iv) provides as follows:
(iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;
This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.
This is both illogical and discriminatory. It is illogical because it does not reflect either the trial court's or the Court of Appeal's decision in McIvor. It is discriminatory because it creates new, inequitable distinctions between the sibling children of Indian women who married out. The problem can be seen in the following way:
(1) If the children of Indian women who married out have Non-Status Indian children (or disentitled children), their children can only be registered under section 6(2) and cannot share in the same identity as their parent; will not be able to transmit status to their children in their own right; and will be excluded from membership in bands that exclude section 6(2) Indians or their equivalent.
Despite the fact that the section 6(2) parent will become a section 6(1)(c.1) Indian and therefore have a higher chance of becoming a band member, they suffer in the sense that they can't pass on equal identity and rights to their children and therefore their children have a higher chance of not being accepted in their community.
(2) On the other hand, if the section 6(2) parent had status Indian children, then these section 6(1) Indian children have a higher chance of becoming band members than their section 6(2) parent who will remain as a section 6(2) Indian.
In this way, the section 6(2) Indian parent will personally suffer for having had status Indian children, because they will not receive the Bill C-3 gender equity remedy solely because their children are status Indians.
The descendants of Indian women who married out seem to be punished time and again for not being able to manage the Indian Act's entitlement formula that is really designed to disentitle people. This is beyond unjust - it violates our inherent right to our Aboriginal identities and to be self-determining in our own individual and collective lives.
Canada is once again interfering with the most private and intimate part of our lives - how and when and with whom we decide to have relations - in order to limit and/or reduce the status Indian population.
Section 6(1)(c.1)(iv) ignores the gender discrimination imposed on the children of Indian women who married out and suggests that this discrimination skipped a generation and fell solely on the grandchildren and, as a result, only the grandchildren are entitled to a remedy.
What could possibly be the purpose of this section, but to limit as much as possible, the number of status Indians who will be entitled to band membership and to limit the overall number of Indians in the future?
I would recommend that section 6(1)(c.1)(iv) be deleted in its entirety. It is not necessary to achieve gender equity as a result of the McIvor case.
(3) Section 9 provides as follows:
9. For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty, or a council of a band for anything done or omitted to be done in good faith in the exercise of theirpowers or the performance of their duties, only because
(a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b) one of the person's parents is entitled to be registered under paragraph 6(1)(c.1) of the Indian Act, as enacted by subsection 2(3).
This section is an insult to Indian women and their descendants all over this country. Not only was Canada forced to make amendments to address gender inequality after fighting against the McIvor case for over 20 years; and not only has Canada proposed a very minimalist amendment; now Canada wants to ensure that it does not have to compensate the victims of gender discrimination?
When Bill C-31 was amended to reinstate Indian women who had married out, Canada denied compensation to Indian women who married out on the basis that the Charter of Rights and Freedoms was not in effect pre-85 and it argued that it could not be held liable for laws that were not in effect at the time.
However, the Charter has been in force for many decades since 1985 and Canada cannot now say they can't be held liable for discriminatory actions that took place well after the Charter was in force. To do otherwise is to perpetuate the very negative stereotypes against Indian women that McIvor (and others) fought against - that they are less worthy, less Aboriginal, and less able to transmit their Aboriginality to their children simply by virtue of being Aboriginal women.
Furthermore, findings of discrimination are based on effect, not on intention, and those victims that have suffered due to this discrimination deserve to be compensated - no less so that the victims of residential schools.
Prime Minister Harper acknowledged that the assimilatory foundation upon which the residential school policy was designed was wrong; he apologized to the victims on behalf of all Canadians; and ensured that the victims were compensated. Aside from the physical aspect of residential schools, Indian status has had the same harmful effects on Indians and especially Indian women, as residential schools. By discriminating against Indian women and their descendants, they have suffered separation from their communities, family divisions, loss of identity, culture, language and dignity. Furthermore, their continued lack of access to federal programs and services have greatly affect their quality of life and their overall chances in life.
By denying compensation to Indian women and their descendants for the same types of harms as were suffered in residential schools, Canada sends the message that Aboriginal women are somehow not deserved of redress or compensation for the harms suffered from gender discrimination created by Canada under the Indian Act.
If there was any doubt as to the continued discrimination against Indian women, even in this amendment meant to address gender inequity, one need only refer to the privileged and protected positions of status of Indian men and their non-Indian wives and descendants. Throughout this process, non-Indians have been and continue to be protected under the Indian Act simply because of their association with Indian men.
Non-Indian women who married Indian men gained status and benefits and non-Indian children were adopted and gained status. Not only did these non-Indians gain status, they were entitled to all the benefits, rights and interests that go with that status, including band membership, reserve residency, voting and running in band elections and a share of treaty and land claim benefits. The preservation of their status is guaranteed at every turn, where Indian women and their descendants must continually fight for it.
Yet, non-status Indian children who are Aboriginal by birth, identity and culture, were excluded on the basis of gender discrimination which was known by Canada to be discriminatory and which has since been found to be discriminatory. Even with this minimalistic and highly problematic Bill C-3, there still won't be gender equality between Indian men and women.
The majority of parents struggling with poor socio-economic conditions in Aboriginal communities are single Indian mothers. The majority of off-reserve Aboriginal people suffering from poor socio-economic conditions are the descendants of Indian women who married out. Canada has publically stated that access to educational opportunities is the key to improving life for Aboriginal peoples. How many Indian women and their descendants could have gone to university to make a better life for themselves, their children, their families and communities had they been registered?
I would recommend that section 9 either be deleted in its entirety or amended to provide limited protections for the bands and only in relation to the determination of status.
Summary of Recommendations:
(1) Section 6(1)(c.1)(iii) should be amended for greater clarity with an explanatory note as to what it is meant to accomplish;
(2) Section 6(1)(c.1)(iv) should be deleted in its entirety; and
(3) Section 9 should either be deleted in its entirety, or amended to provide limited protection for the bands in regards to status only.
I hope that you will all consider my comments and offer your own feedback to our elected leaders so that gender discrimination is not perpetuated, but is finally addressed.
In my last blog, I provided some of my concerns with regards to Bill C-3 Gender Equity in Indian Registration Act which was introduced on March 11, 2010. The purpose of this blog will be to review Bill C-3 in much more detail. However, readers should be aware that this Bill is not yet law and must go through several more stages before it even has a chance at being law.
First it is introduced in the House of Commons and given its first reading, which is really just a presentation of the Bill - like what Minister Strahl did with Bill C-3. It must then go through a second reading (where the principle of the Bill is debated) and then referred to committee for study. It is at this stage that the committee will hear witnesses and comments about each section of the Bill. The next stage is the report stage where amendments can be made and then this is followed by the third and final reading. If the Bill is passed by the House of Commons then it is sent to Senate where the process is repeated. Assuming that it passes through the Senate, then the Governor General can give the Bill "Royal Assent" and will become law on the day of assent unless the Bill says otherwise.
There is still some time before this Bill becomes law, so it is very important that we all submit our comments and views about it to our Members of Parliament (MPs), Senators, Minister Strahl, our Aboriginal representative organizations, Liberal Aboriginal Affairs Critic, Todd Russell, and any other group or organization that you feel will bring the message forward on your behalf. I have already sent my letter to Minister Strahl and this blog will provide a brief overview of some of my comments/concerns.
First of all, my providing comments to the Minister of Indian and Northern Affairs Canada (INAC) does not equate with acceptance or agreement with Bill C-3 or its amendments. It is my opinion that Canada does NOT have the jurisdiction to determine our identities - legally, culturally, politically or otherwise. However, I realize that practically speaking, the Indian Act will be amended whether I agree or not and I would rather have my input into those changes than not. That being said, I do not condone such a limited amendment as that presented in Bill C-3 which clearly does NOT address all of the blatant gender discrimination in the status provisions of the Indian Act. This problem is only transported into the band membership rules as a result.
In numerous discussions with other lawyers and community members, I have identified at least three very specific problems with the proposed amendments:
(1) Section 6(1)(c.1)(iii) contains awkward, confusing wording that creates a great deal
of uncertainty and ambiguity about what this section is meant to accomplish;
(2) Section 6(1)(c.1)(iv) contains new, additional criteria that is discriminatory, illogical, counter to how status is normally transmitted, and completely unnecessary in order to effect a proper gender equity remedy; and
(3) Section 9 contains an overly broad, offensive and unjust insulation from liability for Canada and the bands, for Canada's role in creating and perpetuating gender discrimination against Indian women who married out and their descendants.
I will deal with each of the above concerns separately and summarize my recommendations at the end.
(1) Section 6(1)(c.1)(iii) specifically provides as follows:
(iii) was born on or after the day on which the marriage referred to in subparagraph (i) occurred and, unless the person's parents married each other prior to April 17, 1985, was born prior to that date, and...
This section is awkwardly worded and as such creates a great deal of uncertainty about its potential application. What was Canada's intention with this section? Where did this wording come from?
I would recommend that section 6(1)(c.1)(iii) be amended for greater clarity with an explanatory note that very clearly specifies what it is meant to accomplish and how.
(2) Section 6(1)(c.1)(iv) provides as follows:
(iv) had or adopted a child, on or after September 4, 1951, with a person who was not entitled to be registered on the day on which the child was born or adopted;
This section has the effect of creating a new way to determine entitlement to registration and, as a result, creates a new form of discrimination as between the siblings of the Indian women who married out. What this additional criterion does is determine entitlement to registration based on the status or lack thereof of the applicant's children. Status has always been determined based on the entitlement of one's parents, i.e. parents transmit their status to their children - not vice versa.
This is both illogical and discriminatory. It is illogical because it does not reflect either the trial court's or the Court of Appeal's decision in McIvor. It is discriminatory because it creates new, inequitable distinctions between the sibling children of Indian women who married out. The problem can be seen in the following way:
(1) If the children of Indian women who married out have Non-Status Indian children (or disentitled children), their children can only be registered under section 6(2) and cannot share in the same identity as their parent; will not be able to transmit status to their children in their own right; and will be excluded from membership in bands that exclude section 6(2) Indians or their equivalent.
Despite the fact that the section 6(2) parent will become a section 6(1)(c.1) Indian and therefore have a higher chance of becoming a band member, they suffer in the sense that they can't pass on equal identity and rights to their children and therefore their children have a higher chance of not being accepted in their community.
(2) On the other hand, if the section 6(2) parent had status Indian children, then these section 6(1) Indian children have a higher chance of becoming band members than their section 6(2) parent who will remain as a section 6(2) Indian.
In this way, the section 6(2) Indian parent will personally suffer for having had status Indian children, because they will not receive the Bill C-3 gender equity remedy solely because their children are status Indians.
The descendants of Indian women who married out seem to be punished time and again for not being able to manage the Indian Act's entitlement formula that is really designed to disentitle people. This is beyond unjust - it violates our inherent right to our Aboriginal identities and to be self-determining in our own individual and collective lives.
Canada is once again interfering with the most private and intimate part of our lives - how and when and with whom we decide to have relations - in order to limit and/or reduce the status Indian population.
Section 6(1)(c.1)(iv) ignores the gender discrimination imposed on the children of Indian women who married out and suggests that this discrimination skipped a generation and fell solely on the grandchildren and, as a result, only the grandchildren are entitled to a remedy.
What could possibly be the purpose of this section, but to limit as much as possible, the number of status Indians who will be entitled to band membership and to limit the overall number of Indians in the future?
I would recommend that section 6(1)(c.1)(iv) be deleted in its entirety. It is not necessary to achieve gender equity as a result of the McIvor case.
(3) Section 9 provides as follows:
9. For greater certainty, no person or body has a right to claim or receive any compensation, damages or indemnity from Her Majesty in right of Canada, any employee or agent of Her Majesty, or a council of a band for anything done or omitted to be done in good faith in the exercise of theirpowers or the performance of their duties, only because
(a) a person was not registered, or did not have their name entered in a Band List, immediately before the day on which this Act comes into force; and
(b) one of the person's parents is entitled to be registered under paragraph 6(1)(c.1) of the Indian Act, as enacted by subsection 2(3).
This section is an insult to Indian women and their descendants all over this country. Not only was Canada forced to make amendments to address gender inequality after fighting against the McIvor case for over 20 years; and not only has Canada proposed a very minimalist amendment; now Canada wants to ensure that it does not have to compensate the victims of gender discrimination?
When Bill C-31 was amended to reinstate Indian women who had married out, Canada denied compensation to Indian women who married out on the basis that the Charter of Rights and Freedoms was not in effect pre-85 and it argued that it could not be held liable for laws that were not in effect at the time.
However, the Charter has been in force for many decades since 1985 and Canada cannot now say they can't be held liable for discriminatory actions that took place well after the Charter was in force. To do otherwise is to perpetuate the very negative stereotypes against Indian women that McIvor (and others) fought against - that they are less worthy, less Aboriginal, and less able to transmit their Aboriginality to their children simply by virtue of being Aboriginal women.
Furthermore, findings of discrimination are based on effect, not on intention, and those victims that have suffered due to this discrimination deserve to be compensated - no less so that the victims of residential schools.
Prime Minister Harper acknowledged that the assimilatory foundation upon which the residential school policy was designed was wrong; he apologized to the victims on behalf of all Canadians; and ensured that the victims were compensated. Aside from the physical aspect of residential schools, Indian status has had the same harmful effects on Indians and especially Indian women, as residential schools. By discriminating against Indian women and their descendants, they have suffered separation from their communities, family divisions, loss of identity, culture, language and dignity. Furthermore, their continued lack of access to federal programs and services have greatly affect their quality of life and their overall chances in life.
By denying compensation to Indian women and their descendants for the same types of harms as were suffered in residential schools, Canada sends the message that Aboriginal women are somehow not deserved of redress or compensation for the harms suffered from gender discrimination created by Canada under the Indian Act.
If there was any doubt as to the continued discrimination against Indian women, even in this amendment meant to address gender inequity, one need only refer to the privileged and protected positions of status of Indian men and their non-Indian wives and descendants. Throughout this process, non-Indians have been and continue to be protected under the Indian Act simply because of their association with Indian men.
Non-Indian women who married Indian men gained status and benefits and non-Indian children were adopted and gained status. Not only did these non-Indians gain status, they were entitled to all the benefits, rights and interests that go with that status, including band membership, reserve residency, voting and running in band elections and a share of treaty and land claim benefits. The preservation of their status is guaranteed at every turn, where Indian women and their descendants must continually fight for it.
Yet, non-status Indian children who are Aboriginal by birth, identity and culture, were excluded on the basis of gender discrimination which was known by Canada to be discriminatory and which has since been found to be discriminatory. Even with this minimalistic and highly problematic Bill C-3, there still won't be gender equality between Indian men and women.
The majority of parents struggling with poor socio-economic conditions in Aboriginal communities are single Indian mothers. The majority of off-reserve Aboriginal people suffering from poor socio-economic conditions are the descendants of Indian women who married out. Canada has publically stated that access to educational opportunities is the key to improving life for Aboriginal peoples. How many Indian women and their descendants could have gone to university to make a better life for themselves, their children, their families and communities had they been registered?
I would recommend that section 9 either be deleted in its entirety or amended to provide limited protections for the bands and only in relation to the determination of status.
Summary of Recommendations:
(1) Section 6(1)(c.1)(iii) should be amended for greater clarity with an explanatory note as to what it is meant to accomplish;
(2) Section 6(1)(c.1)(iv) should be deleted in its entirety; and
(3) Section 9 should either be deleted in its entirety, or amended to provide limited protection for the bands in regards to status only.
I hope that you will all consider my comments and offer your own feedback to our elected leaders so that gender discrimination is not perpetuated, but is finally addressed.
Friday, March 12, 2010
UPDATED - Bill C-3 - Gender Equity in Indian Registration Act
Sharon McIvor went to court to challenge the gender discrimination in section 6 of the Indian Act, 1985. Registration under the Indian Act provides greater entitlements to Indian men who married out (married a non-Indian) and their descendants as compared with Indian women who married out.
McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry).
As a result of these legal proceedings, Canada embarked upon a very short "engagement" process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case.
On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law.
With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration:
(1) Did your grandmother lose her Indian status as a result of marrying a non-Indian?
(2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?
(3) Were you born on or after September 4, 1951?
The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES - if they had disentitled kids (non-status Indian kids) and NO - if they never had any kids or had kids with another registered Indian therefore making their children "entitled".
Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1):
(1) Did your mother lose status for marrying an Indian man?
(2)Is your father a non-Indian?
(3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)?
(4)Did you have a child with a non-Indian on or after September 4, 1951?
Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians - (1) those who had "disentitled" (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids.
For the first time in the Indian Act's history, one's specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one's parents. This new section would now put the focus on the status of one's children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men.
This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed.
At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues.
But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed.
When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made.
PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve.
What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services.
Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities.
Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture.
The Indian Act's registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this.
By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations.
Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada's financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples - it represents more of the assimilatory attitudes upon which this Act was originally based.
We wouldn't accept the reopening of residential schools - therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act.
One can only hope that the joint process announced by Canada will address these urgent issues.
McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry).
As a result of these legal proceedings, Canada embarked upon a very short "engagement" process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case.
On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law.
With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration:
(1) Did your grandmother lose her Indian status as a result of marrying a non-Indian?
(2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act?
(3) Were you born on or after September 4, 1951?
The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES - if they had disentitled kids (non-status Indian kids) and NO - if they never had any kids or had kids with another registered Indian therefore making their children "entitled".
Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1):
(1) Did your mother lose status for marrying an Indian man?
(2)Is your father a non-Indian?
(3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)?
(4)Did you have a child with a non-Indian on or after September 4, 1951?
Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians - (1) those who had "disentitled" (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids.
For the first time in the Indian Act's history, one's specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one's parents. This new section would now put the focus on the status of one's children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men.
This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed.
At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues.
But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed.
When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made.
PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve.
What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services.
Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities.
Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture.
The Indian Act's registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this.
By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations.
Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada's financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples - it represents more of the assimilatory attitudes upon which this Act was originally based.
We wouldn't accept the reopening of residential schools - therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act.
One can only hope that the joint process announced by Canada will address these urgent issues.
Monday, February 22, 2010
McIvor is Just the Start - The Indian Act is Full of Discrimination
So by now, everyone has heard of the McIvor case and knows that the registration provisions of the Indian Act, otherwise referred to as "status", will be amended as a result. The question remains: what are we going to do about the discrimination that won't be addressed by those amendments?
For anyone who hasn't heard of Sharon McIvor v. Canada - a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn't always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question.
In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all.
It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.
At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed.
The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected.
Canada then embarked upon an "engagement" process - accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed - from August to November 2009. Canada's reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada's excuse that it needed to rush is somewhat questionable.
Canada offered two amendment options to Aboriginal peoples for consideration:
Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman:
(a) who lost status due to marrying a non-Indian; and
(b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the "double mother" rule was first included in the Indian Act).
To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the "child" mentioned in (b) above.
A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman's child (the subsequent parent of the grandchild with a non- Indian) was born before 1985.
In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1).
What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don't think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor's case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way.
How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada's discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens' will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities?
McIvor's case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples:
(1) Gender discrimination - An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather);
* Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination.
(2) Arbitrary cut-off date - The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not;
(3) Illegitimate siblings - Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock;
(4) Unstated paternity - If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status - this results in the child having lesser or no status;
(5) Métis scrip takers - Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis;
(6) Second generation cut-off - Indians may be refused status because one of their parents do not have status - this equates to a blood quantum requirement that discriminates against those children of mixed marriages;
(7) Non-Aboriginal preference - (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions - Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s).
As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act.
It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based - it seemed to forget that the Indian Act's status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so.
Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada's authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with "Indians and lands reserved for the Indians" but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations - it's time we were able to heal and re-assert our own identities.
No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our "heirs and heirs forever". It is time for Canada to undo the harm it has caused.
I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?
For anyone who hasn't heard of Sharon McIvor v. Canada - a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn't always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question.
In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all.
It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.
At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed.
The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected.
Canada then embarked upon an "engagement" process - accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed - from August to November 2009. Canada's reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada's excuse that it needed to rush is somewhat questionable.
Canada offered two amendment options to Aboriginal peoples for consideration:
Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman:
(a) who lost status due to marrying a non-Indian; and
(b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the "double mother" rule was first included in the Indian Act).
To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the "child" mentioned in (b) above.
A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman's child (the subsequent parent of the grandchild with a non- Indian) was born before 1985.
In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1).
What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don't think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor's case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way.
How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada's discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens' will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities?
McIvor's case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples:
(1) Gender discrimination - An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather);
* Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination.
(2) Arbitrary cut-off date - The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not;
(3) Illegitimate siblings - Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock;
(4) Unstated paternity - If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status - this results in the child having lesser or no status;
(5) Métis scrip takers - Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis;
(6) Second generation cut-off - Indians may be refused status because one of their parents do not have status - this equates to a blood quantum requirement that discriminates against those children of mixed marriages;
(7) Non-Aboriginal preference - (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions - Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s).
As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act.
It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based - it seemed to forget that the Indian Act's status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so.
Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada's authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with "Indians and lands reserved for the Indians" but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations - it's time we were able to heal and re-assert our own identities.
No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our "heirs and heirs forever". It is time for Canada to undo the harm it has caused.
I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?
Thursday, February 11, 2010
Mohawks or Canada's Disappearing Indians?
The subject of racial purity is such a large one that it would be impossible to do it any justice in a simple blog. Similarly, the idea of using blood quantum to determine an individual's identity and right to belong to their community is so complex that all I can expect to accomplish with this blog is provide food for thought. However, for those who are interested, I am currently editing my book on this subject in the hopes of publishing it sometime in 2010.
Over the last few weeks, Aboriginal and non-Aboriginal media have picked up a story that strikes at the heart of what it means to be an Aboriginal person in Canada. Are Mohawks, Mi'kmaq, Cayuga, Cree and Maliseet the biological result of nothing more than a simple formula to determine one's blood purity - or does being Mohawk have more to do with common histories, ancestors, and territories or the sharing of common languages, customs, traditions and cultures? The Mohawk Indian Band Council in Kahnawake, through its Indian Act chief, Mike Delisle, have once again communicated the message that they are a blood club.
However, before I deal with the core issues, a little context is necessary. Kahnawake, unlike the majority of bands in Canada, post their membership rules on their website for all to see. Most bands who have their own membership codes do not post their codes publically and sometimes refuse to provide copies to their own band members and/or potential band members. By way of anecdote, I have been sending letters to my own band for several years attempting to obtain both a copy of their membership code and an application form so that my children and I can apply. My phone calls and letters continue to go unanswered. I share this experience with a great number of band members and potential band members who attempt to seek information from their communities to no avail. I have to give credit to Kahnawake for making their membership code public and easily accessible to their members and potential members alike.
According to the Indian Act, 1985, band membership is generally given to status Indians who are associated with a specific band upon their application to have their name entered on the band list. This list is maintained by Indian and Northern Affairs Canada (INAC). However, pursuant to section 10 of the Act, bands are permitted to enact their own membership codes and maintain their own band lists, so long as they have a community vote and the majority votes in favour of the code. Their initial code must be submitted to INAC for approval, but once that is done there is no further requirement for bands to submit updated or amended codes. It took me many years of dealing with INAC's Access to Information and Privacy (ATIP) process, but I was finally provided with all the band membership codes in Canada. Having read every single one, I can tell you that blood quantum is not a common criteria.
Getting back to the issue at hand, there have been numerous headlines about Kahnawake's decision to evict non-Mohawks. The key issue appears to be that Kahnawake has a rule that no non-Mohawks can live on their reserve. Yet, Mohawks are still marrying out, having common law relationships with non-Mohawks and having children with non-Mohawks. As a result, Kahnawake has delivered notices to a group of non-Mohawks advising them that they are to be evicted. Some of the headlines I have seen recently include:
"If you marry out, you move out"
"Why Mohawks evict non-Natives"
"Racism on the reserve"
"Kahnawake non-Mohawk eviction deadline looms"
"Mohawk Chief denies ethnic cleansing"
"Natives only please"
"Not Native, then leave reserve Mohawks say"
So, is it non-Mohawks who must leave the reserve, or non-Natives? If the answer is non-Mohawks, then what is a non-Mohawk? If it's non-Native, how does the inclusion of other non-Mohawk Aboriginal peoples (like Mi'kmaq) further Kahnawake's goal of Mohawk identity preservation?
One would assume that a non-Mohawk is a non-Aboriginal person. Many of the reports noted above appear to indicate this is the case. However, if this residency rule is applied "evenly", then it might also apply to Mohawks who don't meet the blood quantum requirement for band membership. But what about Aboriginal people who are not Mohawks? What happens if a Mohawk woman lives with a Mi'kmaq man?
Mi'kmaq people are not Mohawks. They have very different cultures, languages, customs, traditions and territories. Yet, it is my understanding that Mi'kmaq people who are married to Mohawks can apply to transfer their band membership from their Mi'kmaq band to the Kahnawake band. This is the same for any band member across the country. If this is the case, then what Kahnawake is really protecting is a generic "Indian" identity and not a Mohawk one after all.
More than that, the majority of Indian bands in Canada do not explicitly use blood quantum to determine membership. But they do use the Indian Act rules, which since 1985 include a second-generation cut-off rule which amounts to a blood quantum rule of 25% or 1/4 blood. It is quite foreseeable then, that an Aboriginal person who is a band member of some other reserve could transfer their membership to Kahnawake and become a "Mohawk" band member. This would mean that non-Mohawk Aboriginal people of less than 50% blood quantum could become "Mohawk" and have the right to live on Kahnawake, but actual Mohawk people with less than 50% blood quantum would be refused membership and possibly residency. Even worse, Mohawk band members who live with non-Mohawks could be forced to leave the reserve.
Setting aside the interests of non-Aboriginal people for one minute, Kahnawake's residency rules do little to advance Mohawk culture, and instead create situations of pain, heart-ache, division, exclusion, break-up of families, and loss of cultural connection. Not only is the rule an offence to the dignity of Mohawks who have non-Aboriginal partners, it is counter to their own Mohawk history, traditions and customs. The reserve could end up being comprised of "Mohawk" band members who are not Mohawk at all, while actual Mohawks must live off reserve.
In much of the research that I have read about Mohawk people, and especially that of Kahnawake, sources seem to indicate that Mohawks were traditionally very inclusive in terms of citizenship and as a result, have a high degree of mixed ancestries in their community. Gerald Alfred wrote about the identity struggles in Kahnawake in his book "Heeding the Voices of our Ancestors":
Kahnawake as a community had traditionally been extremely receptive to the integration of outsiders. Mission records from the early period of the community’s history confirm that Mohawks at Kahnawake had continued the practice of adopting and assimilating captives, resulting in a diverse racial mixture within the Mohawk community. Even into the modern era, Kahnawake Mohawks accepted many non-Native people through marriage and among those residents who came to enjoy community membership and later formal recognition of this membership through inclusion as status Indians when the Indian Act system was implemented in Kahnawake during the 20th century. (p.163)
Alfred explains that the community assimilated the racist ideas of the Indian Act in terms of what it meant to be an Indian - i.e. a Mohawk , and blended European notions of "race" with their desire to protect their cultural identity. As a result, some members of Kahnawake actually believe that blood quantum is the only way to protect their culture, despite the fact that this concept was completely alien to their traditional ways of viewing their identity and citizenship. Alfred concludes that part of the problem is that the community had not acknowledged the deep extent to which community members have internalized Indian Act ways of thinking and therefore do not realize that instead of rejecting the Indian Act, they are actually perpetuating it!
How can a community expect to protect its culture if they can so easily turn their backs on their own children and grandchildren? In my opinion, some (not all) community members and leaders have been under the dark cloud of colonialism for so long, that it is hard for them to see their identity through any other eye, than that of the federal government - who, as we all know, designed the Indian Act and its policies with a view to assimilating Aboriginal peoples based on racist conceptions of blood purity. Colonial policies were designed to divide communities and families and impose a generic "Indian" identity on all Aboriginal peoples with a legislated formula designed to ensure their eventual disappearance.
How ironic is it then, that the leaders in Kahnawake would adopt policies which accomplish the exact same thing? Kahnawake currently operates under the Indian Band Council governance system set forth under the Indian Act; it limits their territories with which they form an identity to the reserves that were created by Indian Affairs; they label their citizens as "band members" pursuant to the Indian Act, and they assert that the only real Mohawks are those with 50% Mohawk blood or more. In actual fact, Kahnawake's rules speed up the assimilation process much faster than even the Indian Act rules!
No wonder the Chief is worried that the federal government will walk on to their reserve one day and say "You're not Indians anymore". Using blood as the sole indicator of identity guarantees this eventuality. We are Nations within a Nation and our people will continue to live, love and interact with other Aboriginal and non-Aboriginal Nations. Intermarriage is a human right and fact of life. Perhaps it is time to acknowledge the damage done to our Aboriginal identities by Canada and the Indian Act; recognize how much of this racist thinking has been internalized to our ways of thinking about ourselves; and take steps to protect our real identities for the well-being of our present generations, for the benefit of our future generations, and to honour the identities of our ancestors.
Over the last few weeks, Aboriginal and non-Aboriginal media have picked up a story that strikes at the heart of what it means to be an Aboriginal person in Canada. Are Mohawks, Mi'kmaq, Cayuga, Cree and Maliseet the biological result of nothing more than a simple formula to determine one's blood purity - or does being Mohawk have more to do with common histories, ancestors, and territories or the sharing of common languages, customs, traditions and cultures? The Mohawk Indian Band Council in Kahnawake, through its Indian Act chief, Mike Delisle, have once again communicated the message that they are a blood club.
However, before I deal with the core issues, a little context is necessary. Kahnawake, unlike the majority of bands in Canada, post their membership rules on their website for all to see. Most bands who have their own membership codes do not post their codes publically and sometimes refuse to provide copies to their own band members and/or potential band members. By way of anecdote, I have been sending letters to my own band for several years attempting to obtain both a copy of their membership code and an application form so that my children and I can apply. My phone calls and letters continue to go unanswered. I share this experience with a great number of band members and potential band members who attempt to seek information from their communities to no avail. I have to give credit to Kahnawake for making their membership code public and easily accessible to their members and potential members alike.
According to the Indian Act, 1985, band membership is generally given to status Indians who are associated with a specific band upon their application to have their name entered on the band list. This list is maintained by Indian and Northern Affairs Canada (INAC). However, pursuant to section 10 of the Act, bands are permitted to enact their own membership codes and maintain their own band lists, so long as they have a community vote and the majority votes in favour of the code. Their initial code must be submitted to INAC for approval, but once that is done there is no further requirement for bands to submit updated or amended codes. It took me many years of dealing with INAC's Access to Information and Privacy (ATIP) process, but I was finally provided with all the band membership codes in Canada. Having read every single one, I can tell you that blood quantum is not a common criteria.
Getting back to the issue at hand, there have been numerous headlines about Kahnawake's decision to evict non-Mohawks. The key issue appears to be that Kahnawake has a rule that no non-Mohawks can live on their reserve. Yet, Mohawks are still marrying out, having common law relationships with non-Mohawks and having children with non-Mohawks. As a result, Kahnawake has delivered notices to a group of non-Mohawks advising them that they are to be evicted. Some of the headlines I have seen recently include:
"If you marry out, you move out"
"Why Mohawks evict non-Natives"
"Racism on the reserve"
"Kahnawake non-Mohawk eviction deadline looms"
"Mohawk Chief denies ethnic cleansing"
"Natives only please"
"Not Native, then leave reserve Mohawks say"
So, is it non-Mohawks who must leave the reserve, or non-Natives? If the answer is non-Mohawks, then what is a non-Mohawk? If it's non-Native, how does the inclusion of other non-Mohawk Aboriginal peoples (like Mi'kmaq) further Kahnawake's goal of Mohawk identity preservation?
One would assume that a non-Mohawk is a non-Aboriginal person. Many of the reports noted above appear to indicate this is the case. However, if this residency rule is applied "evenly", then it might also apply to Mohawks who don't meet the blood quantum requirement for band membership. But what about Aboriginal people who are not Mohawks? What happens if a Mohawk woman lives with a Mi'kmaq man?
Mi'kmaq people are not Mohawks. They have very different cultures, languages, customs, traditions and territories. Yet, it is my understanding that Mi'kmaq people who are married to Mohawks can apply to transfer their band membership from their Mi'kmaq band to the Kahnawake band. This is the same for any band member across the country. If this is the case, then what Kahnawake is really protecting is a generic "Indian" identity and not a Mohawk one after all.
More than that, the majority of Indian bands in Canada do not explicitly use blood quantum to determine membership. But they do use the Indian Act rules, which since 1985 include a second-generation cut-off rule which amounts to a blood quantum rule of 25% or 1/4 blood. It is quite foreseeable then, that an Aboriginal person who is a band member of some other reserve could transfer their membership to Kahnawake and become a "Mohawk" band member. This would mean that non-Mohawk Aboriginal people of less than 50% blood quantum could become "Mohawk" and have the right to live on Kahnawake, but actual Mohawk people with less than 50% blood quantum would be refused membership and possibly residency. Even worse, Mohawk band members who live with non-Mohawks could be forced to leave the reserve.
Setting aside the interests of non-Aboriginal people for one minute, Kahnawake's residency rules do little to advance Mohawk culture, and instead create situations of pain, heart-ache, division, exclusion, break-up of families, and loss of cultural connection. Not only is the rule an offence to the dignity of Mohawks who have non-Aboriginal partners, it is counter to their own Mohawk history, traditions and customs. The reserve could end up being comprised of "Mohawk" band members who are not Mohawk at all, while actual Mohawks must live off reserve.
In much of the research that I have read about Mohawk people, and especially that of Kahnawake, sources seem to indicate that Mohawks were traditionally very inclusive in terms of citizenship and as a result, have a high degree of mixed ancestries in their community. Gerald Alfred wrote about the identity struggles in Kahnawake in his book "Heeding the Voices of our Ancestors":
Kahnawake as a community had traditionally been extremely receptive to the integration of outsiders. Mission records from the early period of the community’s history confirm that Mohawks at Kahnawake had continued the practice of adopting and assimilating captives, resulting in a diverse racial mixture within the Mohawk community. Even into the modern era, Kahnawake Mohawks accepted many non-Native people through marriage and among those residents who came to enjoy community membership and later formal recognition of this membership through inclusion as status Indians when the Indian Act system was implemented in Kahnawake during the 20th century. (p.163)
Alfred explains that the community assimilated the racist ideas of the Indian Act in terms of what it meant to be an Indian - i.e. a Mohawk , and blended European notions of "race" with their desire to protect their cultural identity. As a result, some members of Kahnawake actually believe that blood quantum is the only way to protect their culture, despite the fact that this concept was completely alien to their traditional ways of viewing their identity and citizenship. Alfred concludes that part of the problem is that the community had not acknowledged the deep extent to which community members have internalized Indian Act ways of thinking and therefore do not realize that instead of rejecting the Indian Act, they are actually perpetuating it!
How can a community expect to protect its culture if they can so easily turn their backs on their own children and grandchildren? In my opinion, some (not all) community members and leaders have been under the dark cloud of colonialism for so long, that it is hard for them to see their identity through any other eye, than that of the federal government - who, as we all know, designed the Indian Act and its policies with a view to assimilating Aboriginal peoples based on racist conceptions of blood purity. Colonial policies were designed to divide communities and families and impose a generic "Indian" identity on all Aboriginal peoples with a legislated formula designed to ensure their eventual disappearance.
How ironic is it then, that the leaders in Kahnawake would adopt policies which accomplish the exact same thing? Kahnawake currently operates under the Indian Band Council governance system set forth under the Indian Act; it limits their territories with which they form an identity to the reserves that were created by Indian Affairs; they label their citizens as "band members" pursuant to the Indian Act, and they assert that the only real Mohawks are those with 50% Mohawk blood or more. In actual fact, Kahnawake's rules speed up the assimilation process much faster than even the Indian Act rules!
No wonder the Chief is worried that the federal government will walk on to their reserve one day and say "You're not Indians anymore". Using blood as the sole indicator of identity guarantees this eventuality. We are Nations within a Nation and our people will continue to live, love and interact with other Aboriginal and non-Aboriginal Nations. Intermarriage is a human right and fact of life. Perhaps it is time to acknowledge the damage done to our Aboriginal identities by Canada and the Indian Act; recognize how much of this racist thinking has been internalized to our ways of thinking about ourselves; and take steps to protect our real identities for the well-being of our present generations, for the benefit of our future generations, and to honour the identities of our ancestors.
Thursday, February 4, 2010
Aboriginal Peoples in NB not Consulted on Proposed Sale of NB Power to Québec
The Premier of New Brunswick (NB) announced in 2009 that NB had signed a Memorandum of Understanding (MOU) with Hydro-Québec that would involve the transfer/sale of NB Power and/or its assets to Québec (or part thereof). Premier Shawn Graham explained that this is necessary for all New Brunswickers: "By entering into this agreement, New Brunswick is securing access to affordable, clean hydroelectricity, which will make the province's economy more competitive and provide a cleaner environment for future generations of New Brunswickers." The obvious question being: do New Brunswickers feel the same way?
It is the province's goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn't been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi'kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights.
Firstly, NB signed a bilateral agreement with the Mi'kmaq and Maliseet Chiefs that had as its goal (in part) to: "facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens" on a wide variety of issues. The very first item listed for discussion and consultation is "Land and Resources". Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal.
Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi'kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB's legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part:
" As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate.
I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them.
As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. ...This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed.
Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. ...
Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. ...
Therefore, this letter will:
(1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982;
(2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and
(3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets."
The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the "next few months". When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province's legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation.
For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to:
(1) properly inform communities about the specific implications of this proposed deal;
(2) consult in an appropriate manner; and
(3) accommodate the interests, rights and concerns raised during consultations.
Our land and resources are worth at least the time it takes to have this discussion.
It is the province's goal to enter into a legal, binding agreement with Hydro-Québec by March 31, 2010. I fail to see how the Premier could possibly finalize an agreement with Hydro-Québec by March 31, 2010, if he also plans on informing Aboriginal communities about how this deal might impact their Aboriginal and treaty rights, including their land claims and also engaging in proper consultations with them. It is not as if he hasn't been given due notice that there are unresolved land claims in New Brunswick. Both on and off-reserve Mi'kmaq, Maliseet and Passamaquoddy peoples have informed NB about their land claims and that they expect to be consulted on decisions made by NB that could impact those claims and their Aboriginal and treaty rights.
Firstly, NB signed a bilateral agreement with the Mi'kmaq and Maliseet Chiefs that had as its goal (in part) to: "facilitate communication and consultation between First Nations Leaders and their constituents and between the Province and its citizens" on a wide variety of issues. The very first item listed for discussion and consultation is "Land and Resources". Given the reaction of the NB Chiefs in the recent media reports, it does not appear as if NB has lived up to its part of the deal.
Secondly, the New Brunswick Aboriginal Peoples (NBAPC) which represents Mi'kmaq, Maliseet and Passamaquoddy people living off-reserve in NB was not included in the above-mentioned bilateral agreement. However, that does not absolve NB of its legal obligations to inform the off-reserve Aboriginal peoples represented by the NBAPC of the implications of this proposed deal, consult with them and accommodate their interests and concerns. As this was not done, Frank Palmater, a Director of the NBAPC sent a letter to the Premier in November 2009 reminding him of their outstanding land claim and NB's legal obligation to consult with them before any decisions are made with regard to NB Power and its assets. It reads in part:
" As you know, the Mi’kmaq, Maliseet and Passamaquoddy Peoples in New Brunswick have never surrendered or ceded their traditional territories. They did not sign treaties which gave up rights to their lands, nor have they since settled a comprehensive land claim ceding their Aboriginal and treaty rights to their land in exchange for anything. In fact, as you also know, the NBAPC and other Aboriginal groups have received funding in the past to complete land claims research with a view to submitting a formal claim. All that was missing was the province of New Brunswick’s commitment to negotiate.
I refer you to the book, Our Land: The Maritimes: The Basis of the Indian Claim in the Maritime Provinces of Canada, edited by former President of the NBAPC, Gary Gould and his collaborator, Allan Semple. The book publically asserted both a historical and legal basis of Aboriginal title in New Brunswick. The NBAPC has also advocated on behalf of its members with regards to their claims to Aboriginal title in New Brunswick. The fact that the province of New Brunswick has ignored our claims does not mean that we have not made those claims and maintain them.
As you are aware, there are numerous legal cases that have been heard at the Supreme Court of Canada relating to fiduciary duty, the honour of the Crown and the duty to consult and accommodate with regards to Aboriginal peoples and their interests. ...This duty to consult and accommodate applies regardless of whether our Aboriginal title right has been confirmed in court of law. The duty is triggered when the province of New Brunswick has “real or constructive knowledge” of the “potential existence” of the Aboriginal right or title claimed.
Therefore, the province of New Brunswick must not only act honourably in all of its dealings with Aboriginal peoples, which includes the NBAPC, it must also consider both their historical and future relationship with Aboriginal peoples. This relationship has as its base, our treaties and our traditional lands upon which we currently share with the province. ...
Practically speaking, this means that our Aboriginal title to our traditional territories in New Brunswick act as a “burden” to the province’s title and, as such, it cannot be sold, traded and/or otherwise dealt with unless and until our underlying Aboriginal title claims have been addressed. In other words, you do not have the right to even consider the sale of NB Power and/or its assets to another province because NB Power and its assets sit on lands which are claimed by the Mi’kmaq, Maliseet and Passamaquoddy peoples in New Brunswick and the sale, trade or loan of NB Power and/or its assets can and will have a negative impact on our land claim once it is finally addressed. Moreover, it is also our understanding that there are various specific land claims relating to NB Power and/or its assets that have yet to be addressed. ...
Therefore, this letter will:
(1) Re-assert our long-standing claim to Aboriginal title in the lands traditionally used and/or occupied by the Mi’kmaq, Maliseet and Passamaquoddy in New Brunswick, a right which is protected by section 35 of the Constitution Act, 1982;
(2) Remind the Province of New Brunswick of its legal and moral obligations to act honourably and in good faith and to both consult with us and accommodate our interests with regards to the proposed sale of NB Power and/or its assets; and
(3) Request that the Province of New Brunswick meet with us immediately to establish a process to finally address our long-outstanding Aboriginal title claim as well as our treaty and other rights in New Brunswick, before considering the sale of NB Power and/or its assets."
The Premier promptly responded to this letter on December 7, 2009 by indicating that no binding agreement had yet been signed and that NB, would in fact, be meeting with the NBAPC on this issue within the "next few months". When the NBAPC failed to hear from the Premier, Frank Palmater sent another letter reminding him of the looming deadline and the province's legal obligations to consult. Now, the Chiefs of New Brunswick are also pointing out the lack of consultation.
For the benefit of all New Brunswickers: Aboriginal and non-Aboriginal, the Premier ought to slow down this run-away train and avoid a complete disaster (legally and politically) and take time to:
(1) properly inform communities about the specific implications of this proposed deal;
(2) consult in an appropriate manner; and
(3) accommodate the interests, rights and concerns raised during consultations.
Our land and resources are worth at least the time it takes to have this discussion.
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