Chief Betty Ann Lavallée of the Congress of Aboriginal Peoples Speaks on the Harry Daniels Case

Betty Ann Lavallée, CD (Ret’d)

National Chief, Congress of Aboriginal Peoples

 Fairmont, Château Laurier, Ottawa, Ontario

 Thursday, April 11, 2013

Note to Reader: Portions of the Speech may not be as delivered. Updates may follow.

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 Kwe – Hello, Bonjour –

Good morning to all who have gathered here today in Ottawa. It is a pleasure to be here on the traditional territory of the Algonquin peoples to speak to you about the recent Harry Daniels case concerning the recognition of Métis and Non-Status Aboriginal peoples under section 91(24) of the constitution of Canada. We believe and appreciate that this is a timely discussion, probably more so since the Crown has decided to appeal this case in the federal court of appeal.

I am the National Chief of the Congress of Aboriginal Peoples. Since 1971, the Congress of Aboriginal Peoples, (formerly known as the Native Council of Canada) has represented the interests of off-reserve status and non-status Indians, the Southern Inuit of Labrador and Métis peoples throughout Canada. The Congress is also the national voice for its affiliate organizations that advocate on behalf of Aboriginal Peoples living off-reserve.

My designated role here today is to address the issue of Non-Status Indians and Métis peoples and their history in conjunction with the Daniels case. The Congress has spent the last 14 years on this case, and we will continue to spend as much time as required in the present and into the future to see this issue resolved, once and for all! This court case did not differentiate between Métis and non-status Indians and nor does our organization. The Congress tries to be consistent and inclusive by including all Aboriginal peoples. We will leave no one behind!

In fact, the Congress lobbied the current government, and past governments to change its name to include all Aboriginal people. And we were certainly delighted when we heard the government listened and changed the department’s name from Indian Northern Affairs Canada to Aboriginal Affairs and Northern Development Canada.

We do appreciate and recognize Métis people and non-status Indians may have distinct differences pertaining to their own personal circumstances and how they identify themselves. The question of identity is extremely important to each and every person sitting in this room today. It defines who you are as an individual and a human being!

Right now, I am a status Indian, but I haven’t always had status. First, I was a non-status Indian, or at least I thought I was. My grandfather, a status Indian was approached to sign his name for enumeration purposes. He was unknowingly deceived, the papers he signed was to relinquish his status. My father’s military career also excluded our family from having status, or at least we thought it had. This meant there was a divide among my immediate family with respect to our culture, identity and the circumstances of my mother and father’s upbringing. I also chose a career in military and I remained a non-Status Indian. To me, I wasn’t an Indian, and I certainly didn’t want to be a non, nothing. I just figured I was Métis that is what my teachers at school told me I was.

I and of course my father received our status in 1985 under Bill C-31. Officially, it is a problem when legislation changes your identity back and forth, like a chameleon. Canada is now the only place in the world that legislates and defines people’s identity. So why is that? The only reason for this is to limit the Crown’s liability.

So! What is the difference between someone who is identified as Métis and/or a non-Status Indian? There really is no difference, both are discriminated against. A Non-status Indian is basically an Aboriginal person who is not registered with the Crown under the Indian Act and/or not registered to a band that signed a treaty with the Crown. This is consistent with Métis people. Even the former founding President of both the Native Council of Canada and the Métis Nation of Ontario, Tony Belcourt, acknowledged in his recent article that there is little difference between non-Status Indians and Métis people when he explained why both non-status Indians and Métis people were to be represented by Native Council of Canada. I quote:

“We made a deliberate and collective decision to build a national organization that would include both Métis and Non-Status Indians for two reasons: first, because it reflected the reality of membership of all of our organizations at the time; and, second, because we shared the same goals and were in basically the same position – landless and without federal recognition.”

Mr. Belcourt concluded in his article that membership should not be attached to a specific region or time in history. (Again I quote) “Although we share a similar history, culture, ancestors, territory, and traditions, one fact we need to realize is that the Métis are not a single homogenous group. History shows that we have seen ourselves in different ways: either, in part, because of the European or First Nations ancestry that was fundamental in shaping our culture and customs, or in part because of the ways of life, depending on where we live.”

The Congress indirectly represents its members through our regional affiliates (Provincial Territorial organizations). It is not possible to have one membership criteria from coast to coast because of the distinct realities in each region. Our membership is structured to include all Aboriginal peoples, geographically, historically and culturally, which in part is why we were able to launch this court case. This is obvious when you look at all of the plaintiffs involved in this case. Harry Daniels’ son, Gabriel Daniels was raised in Edmonton Alberta and he identifies as a Métis person. His mother was sent to Indian residential school along side Status Indians, and remains ineligible for Indian Status. Gabriel participates in Aboriginal cultural activities, including pow-wows, sweat lodges and round dances. Leah Gardner is a Non-Status Indian, residing in Wabigoon, Ontario. Terry Joudrey is also a Non-status Indian who resides in Nova Scotia. Both his mother and grandmother were Status Indians. Terry is ineligible for status because his father was not a status Indian. He does carry his Aboriginal Treaty Rights Association card with him to use as a license for hunting and fishing.

The Congress of Aboriginal Peoples is also a party to this case, as a National Aboriginal corporate body that advocates on behalf and for Métis people and Non-Status Indians throughout Canada. The judge was cognizant of the Congress’ role in his decision, in paragraph 43, Judge Phelan states: “the pivotal role CAP played in advancing this claim – a role that few, if any, individuals falling within the group known as Métis Non-Status Indians could do.”

Under paragraph 44, the Judge emphasized: “CAP has played a key position in modern day discussions between native groups and the federal government but it is not the only group to speak on behalf of the Métis.”

Judge Phelan noted in paragraph 47 of his decision: “Although the MNC were not involved in this litigation, the Court is cognizant of the fact that CAP is not the sole recognized voice of Métis.”

I find it very compelling after the judge made his decision on January 8, 2013, Mr. Belcourt wrote an article in February 2013 advocating MNC to create a more inclusive organization. During this whole process not one organization put a nickel into this court case! The Congress has spent many years on this case, and we continue to do so with no financial assistance. I know this as a fact because I was a board member from the beginning of this case. Why are people so interested now? This case is not over yet. I am curious to know why now is there a sudden rush to jump on the bandwagon!

After I stumbled upon Mr. Belcourt’s article, I found it intriguing that he not only mentioned the Daniels case, but also referenced the Powell case in great detail. In the Powley decision (dated September 19, 2003), the judge illustrated and I quote:

“The respondents shot a bull moose near Old Goulais Bay Road, in the environs of Sault Ste. Marie, within the traditional hunting grounds of that Métis Community. They made a point of documenting that the moose was intended to provide meat for the winter.”

What the judge did not mention, is that Stephen and Roddy Powley placed a hand written tag on the moose, this tag indicated the purpose, date and their Métis membership #. This membership number belonged to one of the Congress’ affiliates. Mr. Belcourt, states in his article, and I quote, “Each of the MNC Governing members amended its Constitution or Bylaws to incorporate the 2002 National Definition and registration…” Mr. Belcourt acknowledged, (I quote) “the federal government finally began providing financial support for registry purposes after the Supreme Court decision in Rv. Powley in 2003.” This is key to the Daniel’s case because Powley was a card-carrying member with OMMA, one of our affiliates. Hypothetically, if the Congress chose to redefine each of our membership criteria, similar to what the Crown has done for many years, it is quite possible that neither the Powley case nor this case would ever forge ahead.

The Congress’ mission is to include all Aboriginal peoples, regardless of how this creates financial challenges for some of our regional affiliates. The Crown would prefer that we establish a distinct definition to our membership. If the Congress made this move, the Crown would most likely begin to provide core funding to our affiliates who currently receive no funding. But, we would then comprise our standards to make sure that no one is forgotten.

We stand by our commitment! That is the only way we can proceed forward to create positive changes for our people. This is essential, even the Judge noted this by quoting The Royal Commission on Aboriginal people (in paragraph 26):

“The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.”

The history of Aboriginal people is well documented. Prior to confederation, it is obvious that the term “Indian” referred to all Aboriginal peoples. In 1839, a parliamentary sub-committee issued a report entitled “Indians in Upper Canada”. This report acknowledged injustices against the rights of Indians in accordance with documents issued in 1670 and the Royal Proclamation of 1763. This report clarifies and defines who is an “Indian” there was no differentiation between an Indian and someone with mixed blood. The Royal Proclamation was based on mutual respect and reconciliation with Aboriginal peoples in recognition of their contributions in the Seven Years’ War. The Royal Proclamation set out obligations that Canada inherited. It recognized Aboriginal rights and title to land and stated that all land would be considered Aboriginal land until ceded by treaty.

The British Imperial government recognized Aboriginal people, included Métis people through a gift giving process between the Crown and the Aboriginal allies. These gifts reinforced the alliances between Aboriginal peoples and the British Crown. This year marks the 250th anniversary for the Royal Proclamation. Each year, on October 1, in the city of Halifax, my people are received by the Crown to get their shot, powder, etc. as was promised in the pre-constitution treaties.

History shows us there is no distinction between Aboriginal peoples prior to Confederation. Nor does there appear to be any distinction made during confederation. The framers of the constitution in 1867 created a broad undefined scope for the term “Indians” to encompass all Aboriginal peoples. This is obvious when one looks at the motivating forces of confederation. One of the driving features of Confederation was the construction of the Canadian railway. Parliament wanted to expedite this process as quickly as possible. But Indians, including Métis, posed a challenge for the railway. Many Indian tribes maintained their livelihood by means of hunting and gathering. This was definitely an issue for the federal government of the day. Parliament needed to settle the Indians. One of the approaches used was to negotiate and form agreements with Indians, including Métis through various treaties and scrips with the federal government. These treaties did not discriminate or create distinct classes of Indians.

It is the Indian Act of 1876 that is the origin of distinguishing between Status and non-status Indians. The Indian Act itself is problematic on a number of levels. It does not enshrine the treaty relationship, but in many cases undermines or seeks to replace it. It was introduced and amended by governments that took a paternalistic view towards Aboriginal people. It is more about limiting the day-to-day existence of Status Indians and reserve communities, and limiting the Crown’s liability and responsibility, than it is about implementing and building relationships with sovereign people who were entered into this Act, without their consent!

Only those Aboriginal people who fit within the definition laid out in the Indian Act are able to hold status. Subsequently, many have lost their status by legislative means. For Instance, the Enfranchisement Act in 1869, under this Act, (section 6) any Indian women who married non-Indians were no longer considered Indians within the meaning of this Act and nor were their children. This discrimination has only been partially addressed.

In 1984, Bill C-47 was proposed in Parliament to grant status to 133,000. This group was comprised of Indian women who were enfranchised by section 12(1)(b), and their first and second-generation descendants.

Following elections, in 1985, Bill C-31 An Act to amend the Indian Act was passed to abolish enfranchisement and restore status to those individuals who had their status removed through enfranchisement in the “marrying out” rule and the “double mother rule.” Parliament provided status to 78,000 enfranchised by section 12(1)(b), and their first generation descendants.

This amendment resulted in restoring status to individuals and at the same time terminating individual’s status to those who acquired Indian status through marriage. The effects of Bill C-31 are revealed with one of the plaintiff’s in the Daniel’s case, Leah Gardner. Her father retained Indian status through Bill C-31, along with her late husband. Both of her children also have status. Her application for status was denied. And, believe me when I say this situation of Leah Gardner is only the tip of the iceberg! My own family situation is a nightmare!

Although both of her children are members of the Eagle Lake First Nation, she is not. She is also not eligible to live on the reserve or access the variety of services and benefits available to reserve occupants.

This situation creates a lack of belonging to identifiable communities and limited opportunities to participate in cultural activities. Gardner’s situation is a common occurrence among many Aboriginal families that continues to prevail today.

In 2011, Bill C-3, the Gender Equity in Indian Registration Act further reinstated 45,000 individuals who had become enfranchised.

How does the Crown determine the exact number of who should have their status restored or not? By previous calculations, the Crown has proven they are capable of calculating the numbers through their own enumeration records and reports. Although the public is not made aware of how these calculations are made. The only way the public knowledge to these calculations is indirectly through the census. The census is tied into membership. Our organization is very disappointed that you can no longer identify as an Aboriginal person by way of the census. We continue to encourage our members to respond to the voluntary census, but this is ultimately going to decrease our numbers as well as the Crown’s accountability.

Going back to the issue of enfranchisement. There are several forms of enfranchisement. Voluntary enfranchisement is distinct from automatic enfranchisement, where an individual would lose their Indian status upon obtaining a university degree, becoming a doctor, lawyer, soldier or joining the holy orders. Enfranchising under either form was supposed to mean consenting to abandon Aboriginal identity in order to assimilate with the majority.

There are cases of loss of status or assimilation that have conceivably gone unnoticed:

During the first and second world wars Aboriginal people fought alongside with Canadians, they were treated equally, until they returned home from active duty. During the Second World War, the federal government set up a generous Veterans’ benefit package. Unfortunately, Indian Veterans were unable to retain these same benefits. A prime example of this is that Status Indian Veterans were not able to access the $6000 in Veterans’ Land Act loans. The reason being is that reserve lands, subject to the Indian Act are communal and Indian Veterans can not hold individual title to the land. As a substitute, Indian Veterans could receive a grant up to $2,320. Given this disparity, it is quite possible Status Indians gave up their status to receive the equivalent benefit as other Veterans. This would not be an uncommon phenomenon if you considered the Manitoba Act in 1870 provided lands to half-breeds who relinquished their Indian title.

Similarly, in 1920, the government made it illegal for Indian children to stay at home from school and their children were forced into residential school. In 2011, the Congress participated in an exploratory process. It was through this process that we heard from other Aboriginal people who described that they did in fact relinquish their Indian status so that their children would not be subjected to the residential school system. Those who chose to protect their children, lost their identity, culture and community. To our knowledge this issue has not been explicitly addressed in the healing initiatives with the Truth and Reconciliation.

There has been severe and lasting damage to Aboriginal peoples who reside off reserve or who are not registered Indians. Legislation has divided families and communities according to externally created categories, and destabilized social structures necessary for communities to function. These categories prevent Aboriginal people from defining who belongs to their communities according to their own traditions and continues the cycle of assimilation.

When we look at the impact of the Daniels Case we need to go back to the purpose of the case. Harry Daniels launched this case to prove that all Aboriginal people have a place in Confederation.

Our organization has continually been faced with both provincial and federal governments denying their responsibility to Aboriginal people due to jurisdictional issues. Let me give you an example, in 2006 the federal government entered into the off-reserve Aboriginal housing sector. They allotted $300 million dollars over three years to the provinces to address the need for affordable housing in Aboriginal communities. Not one of our affiliates received the full amount of funding. Some of our affiliates were given most of the required amount. While one province under this program received $38.2 million dollars and refused to provide the money to our affiliate because this province and I quote “had other priorities”. This is just one of many examples the Congress has faced over the years due to jurisdictional issues.

Harry Daniels was a prominent figure. He fought for Métis and Aboriginal rights. He was also instrumental in having Métis and Aboriginal rights included in the Constitution Act of 1982. It was his belief that this jurisdictional wrangling would be resolved once Métis and Aboriginal rights were instituted in the Constitution. Unfortunately, this question of jurisdiction remained.

In this case, the plaintiffs put forward 3 declarations:

(a) Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867;

(b) That the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people;

(c) That the Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their  rights, interests and needs as Aboriginal peoples.

The judge granted the first declaration that Métis and non-status Indians are “Indians” under s 91(24) of the Constitution Act, 1867. The judge noted we did not make a case to claim a right for specific legislation or access to a specific program. It was only to be included in the Constitution of 1867. The other 2 declarations were not granted. But really, the first declaration allows the other two declarations to follow suite.

Now that the Crown has appealed the federal courts decision, this case moves forward to the federal court of appeal. If the Federal Court of Appeal rules in favour of Métis and non-status Indians, the fiduciary relationship and fiduciary duty will need to be addressed. They are both distinct. You can have a fiduciary relationship, similar to the Métis with the Manitoba Act, but have no fiduciary duty. Or alternatively the federal government has a fiduciary duty to the Algonquin people, but lack a treaty relationship.

Judge Phelan concluded there is a fiduciary relationship under paragraph 607: “the fiduciary relationship exists as a matter of law flowing from the declaration that Métis and Non-Status Indians are Indians pursuant to section 91(24). The relationship engages the honour of the Crown and applies to Métis as well as non-status Indians.”

In “tackling” fiduciary duty, the judge said (para 609):

“The Court is not prepared to make some general statement concerning fiduciary duty. Given the declaration of right in respect of section 91(24), one would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship.”

We at the Congress are confident that we will be successful with this appeal. Although, we were a bit disappointed that the Crown decided to appeal the ruling. We had hoped to move forward from this case. In 2006, the leader of the then opposition, the Hon. Stephen Harper, responded to a letter we sent to him on important issues reflecting the Congress. In Mr. Harper’s response, he was clear that the constitutional issue under section 91(24) would be reassessed and resolved for Aboriginal people. I quote, ‘The Conservative Party of Canada agrees with the necessity to reassess the federal responsibility for Aboriginal Canadians as outlined in section 91(24) of the Constitution Act (1867) (typo in letter 1987) and section 35.1 of the Constitution Act (1982).” It is obvious to me that Justice did not get the memo!

We do understand a ruling in our favour could cost the government billions of dollars. Today, over 60% of Aboriginal peoples now live off-reserve. If we look at the possible implications in this case, a determination that Non-Status Indians and Métis fall within section 91(24), the federal government would be obligated to provide both Métis and Non-status Indians with access to the same programs and services currently provided to status Indians. The reason for this is that section 15 of the Charter of Rights and Freedoms guarantees that similarly situated individuals will be afforded equal rights and benefits.

Some of the programs and services which are currently available to status Indians, but not to Métis and non-Status Indians consists of:

Heath Services, Non-Insured Health Benefits, Post-secondary Education, the Canadian Aboriginal Economic Development Strategy, Justice services, Housing, Community Infrastructure, Federal and Provincial Tax Exemptions, Band funding, and the list goes on.

If we look at just one of the services I just mentioned, such as Non-insured health benefits, the Crown’s implication is enormous. We know this because Health Canada initiated a study, using the 1996 census to determine what the figures would look like if Métis and Non-Status Indians were included under section 91(24). This research estimated 3 potential scenarios to calculate the total cost of their liability. The financial impact ranged from a low end of $203.5 million to an estimated high range of $2.13 billion per year. Considering the Aboriginal population has increased considerably since 1996, it is fair to say the liability is much greater! I could recite other Stats for the remainder of the programs I previously mentioned, however, I believe you get the picture!

Incidentally, I would like to point out an interesting discrepancy, just for the fun of it, as you are all aware the federal government provides transfer payments to the provinces and territories. What is especially interesting is the formula used to calculate these transfers. Did you know that the population figures for both on reserve and off reserve people are included in the transfer payments? Ironically, money is transferred to the provinces to provide services such as education and healthcare, and yet we have some provinces that continue to refuse to provide services to Aboriginal peoples based on jurisdiction. Now I am no Einstien, but this is a clear case of double dipping!

Over the years, the Congress, our affiliates and our off-reserve members have been required to pay both provincial and federal taxes, and then we have been declined for the most basic of services! This has to stop!

The Congress has experienced many ups and downs along the road throughout the development of the Daniels case. We imagine there will be some more hiccups to come. But after 14 years in the making we are proud to say, we did our very best to be inclusive and encourage others to do the same, otherwise these types of cases would cease to exist.

With this ruling it is paramount for the Congress and other communities to continue to move forward and exercise the same standards as any government, not for the Crown, but for all Aboriginal peoples, who are after all, rightful partners in Confederation.

We lalioq

Thank you

Merci beaucoup

 

Posted in: Chief Speeches, Speeches, Speeches 2013

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