Issues In Phase I Which Must Be Addressed In Phase II

While the Assembly of First Nations (AFN) may claim to represent off-reserve status Indians, participants in the CAP consultation process made it quite clear that this is not always the case.  They stated that the National Chief of the AFN does not represent them, because they have no say in the election of either their band chiefs and councils, or of the AFN national chief.  They feel that if they have no means of demanding accountability from someone, then that person cannot claim to represent them. They also stated that it is the chiefs and councils and the AFN, that are oppressing off-reserve Indian people by fighting against them instead of supporting them.  Participants from at least one region said that off-reserve Indians are being told by representatives of both DIAND and the AFN that they must not have high expectations regarding the implementation of their voting rights - that the department is working together with the bands to provide off-reserve band members with limited voting rights that are not identical to those of on-reserve band members.

The AFN is best positioned and obligated to represent the political interests of status Indians living on-reserve.  Its political structure is such that the National Chief is accountable to the band chiefs and the band chiefs are accountable to their electors.  As off-reserve Indians are not, at the present time, electors in band elections, there is no mechanism in place for the AFN to acknowledge, identify with and support, the interests and concerns of off-reserve registered Indians.

Approximately 60 % of registered Indians do not live on Indian reserves.  These off-reserve status Indians, who are most impacted by the Corbière decision, form a significant part of the CAP constituency.  CAP is accountable to them through a political structure that invites their participation at the local, regional and national levels.  A high proportion of CAP executives at all levels of the organization are, themselves, off-reserve band members and are therefore well positioned to understand, identify with and fully represent these important issues.  Furthermore CAP has been given the mandate at its Annual General Assembly (AGA) to ì...continue the consultation process, information gathering and issues identification relevant to the Corbière Decision...î.  It is therefore  crucial that CAP be fully involved in any Phase II consultation activities.  Only through CAP involvement can it be ensured that the interests and issues of concern to off reserve registered Indians are properly represented and addressed.

Given that CAPís large constituency is the most severely impacted by this decision and its implementation, it is only fair and appropriate that the same level of Phase II consultation funding be made available to CAP and its affiliates that is made available to the AFN and to the bands.  At the AGA, CAP was further mandated to ì...vigorously advocate for equity of access to funding for all off-reserve people for the Stage Two Corbière process.î  It was made very clear that the situation of grossly disproportionate funding that occurred during Phase I consultations  is inappropriate and unacceptable and must not be repeated.

For many similar reasons, CAP supports the position that NWAC must also be equitably funded and have full participation in the Phase II consultations. NWAC represents the interests of Aboriginal women, who as the Supreme Court pointed out, are ìdoubly disadvantagedî.

CAP therefore recommends:

Recommendation 8

That the Congress of Aboriginal Peoples and the Native Womenís Association of Canada participate fully in all Phase II consultations and that their consultation activities be fully and equitably financed by the Department of Indian Affairs and Northern Development.

Many of the people CAP spoke with during its Corbière Commission hearings believe that the Corbière decision must lead to sweeping amendments to the Indian Act or even to its elimination and replacement with alternative legislation such as an Aboriginal Peopleís Act.   At the CAP AGA, CAP was given the mandate of taking .all measures and using the Corbière decision to "...abolish the Indian Act and develop with the PTOs a new Aboriginal Peoples Act that is based on the recognition of Aboriginal Peoples and respects their rights and human dignity as peoples."

At the heart of this objective is the Supreme Courtís declaration in Corbière that the denial of rights based on residence is an assault on the human dignity of Aboriginal peoples.  For off-reserve Indians, this declaration has implications for government legislation, regulations and policies, on a broad range of issues including:

equal income tax exemption treatment;

equal daycare support;

equal medical care and education support;

sales tax exemption for goods and services purchased off-reserve;
equitable share of provincial casino revenues;

off-reserve Video Lottery Terminal operations in some regions to generate revenues for off-reserve organizations;

involvement in negotiations and discussions with governments on issues such as logging, fishing, and land claims;

access to and benefit from existing government services and initiatives relating to employment and training, economic development, housing, childrenís services, etc. 

In addition to those listed above, a number of other issues were also identified that must be addressed during Phase II consultations.  Of primary concern was the financial accountability of chiefs and councils for band expenditures.  It was recommended that when a newly elected chief and council takes over from a previous chief and band council, a forensic audit must be conducted to avoid blame, and/or responsibility for previous deficits landing on the wrong party.

Membership was also identified as an issue for further thought.  Consultation participants spoke of the need for community control of membership as well as the need to address Bill C-31 and the continual discrimination people face in exercising their rights and gaining access to services.

Issues were also raised in relation to rural and urban governance.  In some regions the off-reserve people may prefer totally separate governance structures, such as the creation of new bands.  In other regions it was suggested that band councils create portfolios for addressing the needs of rural and urban non-resident band members.

It is essential that these and many other issues be carefully, thoughtfully and comprehensively explored to enable the full implications of the Corbière decision to be identified, examined and addressed.  Phase II consultations must be long-term in nature, extending well beyond November 20, 2000, possibly for several years.   The consultations period must include sufficient time for the Aboriginal organizations to carefully plan, promote and implement their consultation processes.  This would enable more effective consultations that allow for a full discussion of issues by all interested and affected parties. 

In this regard, CAP recommends:

Recommendation 9

That, in addition to the drafting of new regulations,  Phase II activities include the identification and implementation of necessary changes to existing legislation and governance structures, in recognition of the accountability issues that currently exist and the necessity to fully explore and address the full implications of the Corbière decision.

It is imperative that Phase II consultations extend beyond the November 20, 2000, expiration of the suspension of voting rights.

Recommendation 10

That Phase II consultations activities examine the options for abolishing the Indian Act and replacing it with an Aboriginal Peoples Act which recognizes all Aboriginal peoples and which respects their rights and human dignity as peoples.

During the course of the consultations the issue of voting rights for General List Indians was raised.  These are the approximately 50,000 registered Indians across the country who do not have membership in a band.  These individuals are looking for avenues through which to exercise their right to vote in local Indian politics as off-reserve Indians - to have a direct influence over the implementation of the rights and services due to them.  It was suggested that the creation of  new bands, some in urban centres would help to address this need. 

The idea of new bands was also heavily recommended in a number of regions by off-reserve Indians with band membership.  In some cases, people do not want to be involved with their bands.  They may have had a bad historical relationship based on past discrimination.  Or they may simply have no ties with the communities.

Others said that they have been living away from their reserves for a long time now, possibly several generations, and while they may have family ties with the community, they and their children will likely never live there.  They do not feel that it is appropriate for them to be voting in their reserve elections, however they still want to be involved in decision-making processes regarding their rights, services, entitlements etc.  They see the creation of new bands, in the community of their residence as an option for addressing this need.

At the CAP AGA, CAP was given the mandate to "...support, in principle, the concept of the creation and recognition of local or urban bands, and the right to self-identification and membership control.î  It was also mandated to support the off-reserv Aboriginal peoples of the three maritime provinces as they ì...pursue and test the New Bands Policy of the DIAND..."

It is in this light that CAP therefore recommends:

Recommendation 11