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.
Tag: Aboriginal
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What is a Non-Status Indian?
What is a Non-Status Indian? People ask me this question nearly everyday. Some people think Non-Status Indians are really just Métis people – those with mixed Aboriginal and non-Aboriginal ancestry. Others think that a Non-Status Indian is any person who is not registered under the Indian Act as an “Indian” – i.e. they are not Aboriginal people. I have even had government officials query whether we can ever know what a Non-Status Indian is as there is no legislative definition for them. For many years, some Aboriginal political organisations that represent Aboriginal peoples living off-reserve also represented Métis peoples. For example, the New Brunswick Aboriginal Peoples Council (NBAPC) used to be called the New Brunswick Association of Métis and Non-Status Indians. Although the Minister of Indian and Northern Affairs Canada (INAC) now has responsibility for Status Indians, Non-Status and Métis people, it wasn’t always that way. The Minister of INAC used to be responsible for status Indians and there was a Federal Interlocutor who was specifically responsible for Métis and Non-Status Indians. The terms Métis and Non-Status Indian have been used together for so long that there is understandable confusion about the two. In the most simplest terms – Métis people are those people who have descended from Métis groups across the country. These Métis groups were originally born from unions between Aboriginal peoples (Cree, Ojibway etc) and non-Aboriginal peoples and went on to identify not with their Aboriginal ancestors, nor did they identify with their non-Aboriginal ancestors. Métis peoples saw themselves as distinct from both groups and went on to develop their own practices, customs, traditions, languages and so forth. It is a common misunderstanding to refer to someone with mixed Aboriginal/non-Aboriginal ancestry as Métis, at least without knowing more. What about Non-Status Indians? Are they not Aboriginal people with mixed ancestries? Sometimes yes and sometimes no. Many Non-Status Indians have no more of a mixed ancestral heritage than do status Indians. So, then what is a Non-Status Indian? INAC’s website defines the term Non-Status Indian as follows: “…commonly refers to people who identify themselves as Indians but who are not entitled to registration on the Indian Registrar pursuant to the Indian Act.” The University of Saskatchewan’s Online Encyclopedia defines Non-Status Indians as follows: “People who are identified as Non-Status Indians in Canada are individuals who are not considered as Registered Indians because either they or their ancestors were refused or lost their Indian status through the mechanisms of the Indian Act, and who do not identify as being Métis. The mechanism by which people lost their status was “enfranchisement.” The most common method of enfranchisement was through intermarriage, whereby a Status Indian woman marrying a non-Indian man lost her Indian status—as did her children; this law existed until the Indian Act was amended in 1985. Other ways in which individuals could be enfranchised was by obtaining the federal right to vote (until 1960), feeing simple title to land, or receiving a university degree (until 1951). ” Professor and lawyer, Joseph Magnet had this to say about Non-Status Indians in his article “Who are the Aboriginal Peoples of Canada?”: “The consistent narrowing of the definition of ‘Indian’ in various amendments to the Indian Act created a large population of Aboriginal people without Indian status, or the rights and entitlements that attach to it – the non-status Indians… The population of non-status Indians is larger than is discerned by considering the legal exceptions in the various Indian Acts, however. It also includes people of Aboriginal ancestry and culture who were never entitled to register in 1876, as well as Aboriginal people entitled to register who chose not to submit themselves to the Department’s control….The non-status population includes the historical Indians and their descendants.” While all of these definitions are accurate, it may be simpler to say that Non-Status Indians are those people who identify as Indian (i.e. Mohawk, Mi’kmaq, Cree, Maliseet, etc) but who by choice or legislative exclusion are not registered under the Indian Act as Indians (i.e. they do not have “status”). For many, the term Non-Status Indian is not so much an identity, but a state of being. For example, I am a Mi’kmaq person and have always identified as such. My larger extended family is Mi’kmaq and we have worked our whole lives towards improving the lives of Mi’kmaq and other Aboriginal peoples who live off-reserve and who are treated differently because they lack a residence on reserve and/or because they do not have status under the Indian Act. I was raised to know the community from which my family originated, the traditions and practices of my Nation as well as the people who share the same Mi’kmaq history. While I identify as Mi’kmaq, I am also aware that due to gender discrimination in the Indian Act, I am not currently entitled to be a registered (status) Indian, despite the fact that my father was a status Indian and band member at Eel River Bar First Nation in New Brunswick. Therefore, I am a non-status Indian, i.e. a Mi’kmaq who is not registered under the Indian Act. That is my state of being as so decided by a government official at INAC. Some people have asked why I would continue to refer to myself or my situation with such a negative label as Non-Status Indian. My only answer is this: so long as there is a discriminatory federal process that tells me I am a Non-Status Indian, then I have an obligation to use the term, educate people about the term and work towards finally getting rid of the need to even have the term. Other terms such as First Nations or off-reserve Aboriginal peoples may include both status and Non-Status Indians. However, the saying “out of sight – out of mind” applies especially to this situation. In my opinion, generic terms tend to hide the fact that Non-Status Indians exist and this creates a lack of awareness about their issues. Non-Status Indians are being discriminated against on the basis of their gender, birth/blood status, and/or marital/family status. Some are denied band membership simply because they do not have status. Many do not qualify for federal programs and services because they lack status. Some are even denied the right to call themselves Cree, Mi’kmaq or Mohawk because some Aboriginal communities have come to associate their identities with federal recognition – i.e. status. These issues affect the quality of life of thousands of us across the country. We need to acknowledge the problem and find solutions. There are Non-Status Indians who live on and off-reserve, who do and don’t have band membership, who are and are not welcome in their home communities and those who associate with off-reserve political groups and those who don’t. One cannot easily generalize when it comes to Non-Status Indians, but certain demographic facts should be highlighted: Aboriginal women and their children are disproportionately affected by the discrimination of the Indian Act’s status provisions and comprise a higher number of Non-Status Indians. Non-Status Indians also suffer from the same poor socio-economic conditions as their status Indian brothers and sisters. Most live off-reserve and receive little assistance from federal and provincial governments or their own Aboriginal communities. It is time that all Aboriginal people started talking about this situation and included Non-Status Indians of all backgrounds in the discussion. That includes ensuring that Non-Status Indians are at the table when treaties, land claims, self-government and other issues of importance are discussed. As with most issues involving Aboriginal peoples, identity is a complex political, social, historical. cultural and legal issue that requires a deeper conversation amongst ourselves. First and foremost however, it requires a rejection of Canada’s presumed jurisdiction over our identity and the discriminatory tools it has used to label and divide us (status). There can be no right more inherent or more integral to one’s culture than the right of Aboriginal Nations to be self-defining. Hopefully, this has helped to answer the questions you have all e-mailed me recently about Non-Status Indians. There is a great deal more information out there regarding Non-Status Indians and I encourage you all to look for it and come up with your own thoughts and ideas about the issues we face and join the discussion. For those who are interested, you can get more information on my website at http://www.nonstatusindian.com/. You can also follow me on Facebook under the name Non Statusindian or on Twitter as Pam_Palmater. At any time, please feel free to e-mail me at palmater@nonstatusindian.com Pam
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Amendments to the Indian Act's Registration (Status) Provisions
The federal government appears to be pursuing a course of amendments to the Indian Act’s registration (status) provisions that will not address all of the gender discrimination raised by Sharon McIvor in her court case (McIvor v. Canada). It would seem that the Minister of Indian and Northern Affairs Canada (INAC, the honourable Chuck Strahl, is relying on the court of appeal’s obiter to significantly reduce the amount of gender discrimination it will fix. The problem is that this minimalist amendment which is being contemplated will have the same effect as the 1985 amendments to the Indian Act (also referred to as Bill C-31). Bill C-31 was supposed to bring the Indian Act into compliance with the Canadian Charter of Rights and Freedoms (Charter) and its section 15 equality provision. As INAC did not address all of the gender discrimination in the Bill C-31 amendments, McIvor and others had no choice but to try to address the residual (remaining) gender discrimination in court. Despite both the trial and appeal court agreeing that there is still gender discrimination in the registration provisions of the Indian Act; INAC plans only to address a limited portion of that discrimination. What is even more troubling about this situation is that INAC specifically decided NOT to conssult with Aboriginal peoples on this issue. To my mind, there can be no more important issue to Aboriginal peoples that the right to determine their own individual, communal and National identities. The Indian Act’s past and current registration formulas are restrictive and meant to eventually eliminate all status Indians and their communities in the future. I include communities because the majority of First Nations determine membership based on the Indian Act’s registration provisions. It is my opinion that Canada does not have the right to determine our legal, social, cultural or political identities and certainly does not have a right to limit our numbers or create a situation whereby we can all be legally extinct within several generations (for some communities). So, we as individuals and communities must not silently acquiesce to this situation. I agree that once a government has it in its mind to legislate in a certain manner, that it is very difficult to change their minds. However, it is not impossible and we as grass roots Aboriginal peoples have the power to stand up for ourselves in our own right and in partnership with our communities, organizations and Nations. When Mohawk lands were threatended in Quebec, the warriors showed up to defend them. When the Mi’kmaq treaty right to fish was threatended in New Brunswick, the warriors showed up to defend that right. Yet, when the future of our identities and communities are themselves at risk – where are the warriors? Our Aboriginal women and children are being unfairly excluded from their legal identities and their right to belong to their Nations. Where are the warriors to defend these women? One would not be entitled to call themselves a warrior in the past if they could not protect the women and children of their communities. Some of our leaders sometimes raise concerns about the lack of land and resources of their communities. They somehow associate this lack of wealth with an inability to include Aboriginal women and children as band members. Monetary gain may be attached to land and natural resources, and not to our women and children, but who we are as Mi’kmaq, Mohawk and Maliseet peoples is not based on how much money we have as individuals or communities. The many ways in which we are Cree or Ojibway have absolutely nothing to do with money. An Anishnabek’s identity and belonging in one’s community is a fact which is determined long before one know’s if they can access programs and services or live on a reserve. What some Aboriginal leaders are missing is that limiting the “pot” to a select few members does not address their lack of capacity in governance, their lack of access to lands and natural resources or their lack of power generally within Canada. A Nation is built, in part, upon its strength in numbers and the loyalty it receives from its citizens. Slowly reducing the number of members a band has is no different than the slow extinction of status Indians. Aboriginal Nations cannot improve their capacity and power within Canada without a solid citizenship base. All limited numbers does is ensure that this generation has access to bigger per capita pay-outs and quicker access to housing on reserve. Not everyone wants to live on a reserve – in fact, many Aboriginal peoples live off-reserve BUT in their traditional territories. Not everyone wants their identities recognized for the per capita pay-outs – some people want to protect their identities, those of their children and their heirs and heirs forver, because protecting their identities mean protecting the integrity of the Aboriginal communities from which they descend. There is a very simple math – an Aboriginal community can’t exist without its citizens and restrictive status or band membership codes means that Aboriginal peoples will continue to lose power and capacity instead of rebuild their once very powerful Nations. While there may be roadblocks to rebuilding our Nations and healing our people, it is up to us to take action and protect ourselves and our future generations. Despite the constitutional promise to Aboriginal peoples to protect our cultures and identities for future generations, I wouldn’t rely on Canada to keep its promise – would you? Take action – start talking – get your community or organization involved – our future generations are depending on it!