Presentation to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development

On remaining discrimination in the Indian Act, Matrimonial Real Property, Band Membership, Aboriginal Citizenship, Education and the Long Gun Registry.

Good Morning Chair Warkentin and members of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. It’s an honour to be here on the unceded territory of the Algonquin people to present to you some priority issues of the Congress of Aboriginal Peoples. With me today is our new Vice Chief Dwight Dorey, who will be speaking to you concerning the Daniels Case and section 91(24) of the Constitution Act 1867.

My presentation to you will focus on remaining discrimination in the Indian Act, Matrimonial Real Property, Band Membership, Aboriginal Citizenship, Education and the Long Gun Registry. There are many more issues that will need to be discussed at a later date including health, economic development, housing, homelessness, language and culture.

Since 1971, the Congress has been at the forefront of the Aboriginal peoples movement in Canada advocating for our constituency of Forgotten Peoples.  We advocate for the rights and interests of status and non-status Indians living off-reserve and Métis. The year 2011 marks the 40^th anniversary of the founding of our organization.

Despite the successes that have occurred over the last 40 years, the Canadian public continues to associate Aboriginal issues with Indians living on reserves. The reality is that 80% of the ancestry Aboriginal population now live off-reserve, with 60% living in urban areas.  This is the most significant demographic factor for policy makers, yet it’s the one where the least action takes place because of jurisdictional issues.

On May 18^th, we were pleased to learn that Prime Minister Harper had changed the name of Indian Affairs and Northern Development to Aboriginal Affairs and Northern Development Canada.  This was an important step to better reflect the scope of the Minister’s responsibilities for all Aboriginal peoples.  This type of straightforward thinking and inclusive decision-making is what we need to make progress.

Indian Act Registration

The Indian Act remains the principal expression of the federal government’s jurisdictional policy over “Indians, and Lands reserved for Indians” under subsection 91(24) of the Constitution Act, 1867.

The political and social reality affecting Aboriginal peoples is based by and large on this outdated legislation.

The Indian Act status and membership rules have a long history of impacting the lives of all Aboriginal people. For example, of the almost $10 billion per year that the federal government invests in Aboriginal specific programming, almost 90% goes to assist on-reserve Status Indians. This out-dated policy framework needs to be reshaped and recast to reflect the fact that the federal government has the responsibility to act in a fiduciary capacity for all Aboriginal peoples.  This was the central finding of the largest and most extensive inquiry undertaken in Canadian history: The Royal Commission on Aboriginal Peoples. In 1996, it reported that the relationship between Aboriginal peoples and non-Aboriginal peoples needed to be fundamentally restructured. The facts of Aboriginal life have changed and it’s time for policies and frameworks to reflect the new reality.

CAP is pleased that the government will be re-introducing Bill S-2 concerning Matrimonial Real Property.  This legislation will address a long-standing gap and better protect the rights of Aboriginal people, particularly women living on reserve.  For many years, we’ve been calling for an effective MRP regime on reserve.  Aboriginal women on reserve face unfair and unconstitutional discrimination in the exercise of their right to a fair share of matrimonial real property after the break up of a marriage or common law relationship.  We view the bill as a positive step to ensuring that Aboriginal women and children receive equitable distribution of matrimonial real property assets in the event of divorce, separation, family violence or death.

The Congress has never bought into the Indian Act and we have a long history of fighting this legislation. Back in 1974, with financial assistance from our organization, Jeanette Corbiere Lavell was the first non-status woman to bring a challenge to the Indian Act. Today, our women continue to be discriminated against through the Indian Act, but through the brave work of people like Sharon McIvor and Sandra Lovelace, as well as many others, we are taking this legislation apart piece-by-piece.

I’m a registered 6(2) Indian. Under the law, my son is not entitled to be registered as an Indian. We are graded like cattle or grades of beef. It is unadulterated discrimination and fighting this is a central priority for CAP.

In January of this year, Canada proclaimed into force Bill C-3 The Gender Equity in Indian Registration Act. This was a direct result of the McIvor decision, which took 20 years to move through the courts. Because this legislation is narrow in scope, sex discrimination remains in the status registration provisions. Not all descendants of Indian women who lost status through “marrying-out” have gained status. The first generation was covered by Bill C-31 in 1985 and the second generation through this year’s Bill C-3, but further generations remain cut off from Indian status. The only way to be sure that sex discrimination is eliminated from the Indian Act is to place descendants of Status Indian women on the same footing as descendants of Indian men. Today, Aboriginal women are still not treated equally as transmitters of status. As a result of this discrimination, thousands of their descendants have been forgotten.

Because this long standing issue of discrimination against Aboriginal women remains unresolved, Sharon McIvor has filed a complaint against Canada at the UN Human Rights Committee.

Another remaining problem relates to the post-1985 Indian Act registration rules and how they operated in cases of unstated paternity.  In 1985, Canada went from a “one-parent” descent rule which favoured Indian men. to a new system called the second-generation cut-off rule. Now, whether you are an Indian man or Indian woman, mixed parenting is only allowed for one generation. After the second generation of mixed parenting, a person is no longer an “Indian”.  So today, when a status Indian mother does not disclose the father’s identity, the child’s registration can only be based on the mother’s entitlement. From 1985 to 1999, this resulted in either the downgrading or outright loss of Indian status to approximately 50,000 Indian children.

The new second-generation cut-off rule will result in a drastic reduction of the status Indian population over the course of a few generations. Status Indians like many other Canadian citizens, fall in love and have children with people from other cultures.  This common social occurrence, when paired with the second-generation cut-off rule, has the perverse result of depriving the children of these unions of either their Indian status or the ability to pass status on to their own children.  It has been estimated that in 60 years, only one-third of the descendants of the current status Indian population will be entitled to status. That number will continue to decline. Academics and demographers alike have argued that the Indian registration rules introduced in 1985 will lead to the legislative extinction of status Indians. A clear solution to this problem would be for Canada to return to a one-parent descent rule for Indian status and apply it equally to men and women.

Everyone here can acknowledge that the capacity of the courts to deal with these issues is limited. CAP is seeking a political commitment to examine and address Aboriginal citizenship and all the associated broader questions. With the passage of Bill C-3 in December 2010, the federal government launched the exploratory process. It is not a consultative process and I am pleased to say the government has not pre-determined or pre-defined the agenda or questions in regard to Indian registration, band membership and Aboriginal citizenship. CAP is currently engaged with the process and is hosting dialogue sessions across Canada.

Band Membership

Section 74 of the Indian Act allows bands to elect their Chiefs and councils according to their own customs. Currently, about 30% of the bands have adopted their own custom codes. Under these rules, a band can admit to membership people who are not status Indians. They can also deny membership to any status Indian, except Indian women restored to status under s.6(1)(c).

Despite this apparent opportunity to break away from the Indian Act, 30% of the bands have adopted membership rules that are more restrictive than the Indian Act itself.  CAP was pleased when the Conservative government delivered on its promise to repeal Section 67 of the Canadian Human Rights Act. Since 1977, Section 67 had shielded bands from complaints of discrimination stemming from membership codes. In June of this year the transition period ended, and we expect that many of the custom election codes will now be challenged under the Canadian Human Rights Act. My understanding is that Aboriginal Affairs and Northern Development has not provided any resources to the bands to review and update their membership codes to ensure that they are compliant with the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms.

Aboriginal Citizenship

In regard to Aboriginal citizenship, CAP takes the position that the right of Aboriginal peoples to determine our own citizenship is an inherent right derived from the Creator and protected under both Section 35 of the Constitution Act, 1982 and under the UN Declaration on the Rights of Indigenous peoples. Our right to self-governance was never extinguished.

The issues surrounding Aboriginal citizenship are varied and complex and more work needs to be done to clearly define concepts to understand their meaning and implications. We view the exploratory process as the beginning of a long process of questioning and thinking, as we move towards self-determination and citizenship.

The possible self-government structures for urban Aboriginal peoples are wide ranging. CAP has been working on these challenging issues for many years and at the same time struggling with the reserve focus of federal government policies and programs. Federal and provincial wrangling has slowed progress for urban Aboriginal populations. With the resolution of the federal government’s responsibility for Métis and non-status Indians, Aboriginal and state relations will be clear, and some of the on- and off-reserve distinctions will be resolved.

In 1982, our leader Harry Daniels was responsible for the entrenchment of Métis into section 35(2) of the Canadian Constitution. The concept of Métis citizenship is linked to Métis self-government and Métis self-determination. The issue of who are the Métis has been the subject of much debate. CAP has always maintained that Métis and Indian identity are not watertight and separate identities. It is not surprising to us that some individuals who are Métis also happen to be eligible for Indian status. Excluding persons with Indian status from the definition of Métis is simply discrimination.

Resolving these issues will be a long-term process with many legal and political challenges along the way. We have some hard terrain to cover, but we are determined to cross it.

Education

The education of our children and youth is a priority of the first order.  Aboriginal youth have the highest drop out rates…the lowest levels of literacy…and the lowest levels of skills development. The odds are better that our youth will end up in jail rather than graduating from high school.

It is education that will improve our economic situation, and lives.  It is education that is integral to reducing poverty in our communities and eliminating our dependency.

At the Aboriginal Summit on Education held in February, we were encouraged by the discussions concerning strengthening Aboriginal successes in education.  The provincial and territorial Ministers of Education have recognized that in the next 15 years, Aboriginal students will represent over 25% of the elementary student population in some provinces and territories. We encourage the Prime Minister to call a First Minister’s Meeting on Education where an interjurisdictional commitment could be mobilized to improve school experiences for our students.

Canadian Firearms Registry

Lastly, I want to talk to you about the Canadian Firearms Registry. Currently, Aboriginal firearm owners who are not compliant with the Firearms Act can incur criminal liability for unauthorized possession of non-restricted firearms under section 91 and 92 of the Criminal Code. Last week, the Government gave notice concerning the Bill to abolish the long-gun registry.

CAP joins many other Aboriginal organizations across Canada in calling for an end to the Long Gun Registry. We view the licensing and registration requirements imposed by the Registry as an infringement of our right to hunt.

Aboriginal hunters and harvesters are not part of the crime problem and the registry is ineffective and wasteful. Any infringement on Aboriginal and treaty rights to hunt, trap or fish is not acceptable to our organization. CAP remains supportive of regulations requiring hunters and harvesters to secure an acquisition license and to follow rules for the safe storage offirearms.

In conclusion, I wish to express our appreciation for the attention that the Prime Minister has brought to Aboriginal issues by meeting with national Aboriginal leaders. In the days ahead, we look forward to active engagement with this House of Commons Standing Committee, which has such an important role to play.

Wela’lin ! Merci and Thank you