Warrior Life Studios

Pam Palmater

Tag: Non-Status Indian

  • Daniels v. Canada – We are all “aborigines”

    The Daniels decision hasn’t been out for 24 hours yet and already there is mass confusion about what it does and does not say. Despite the buzz in mainstream and social media, it does NOT make Metis and non-status Indians “Indians” under the Indian Act. The case also does NOT give Metis and non-status Indians any “rights”. This wasn’t a case about hunting or fishing. So, for all the emails, Facebook messages and inquiries I have received from people asking if I can help them become registered (status) Indians or whether they can get free education now – this case does not do that. While the case itself was an important one, the actual decision imported more problems than it resolved.

    It was a case designed specifically to answer the question about whether Metis and non-status Indians are included in the definition of the term “Indian” in section 91(24) of the Constitution Act 1867 (also referred to as British North America Act). The Supreme Court of Canada’s (SCC) answer was “yes”.

    Sections 91 and 92 of the Constitution Act 1867 set out the jurisdictional powers of the federal and provincial governments. Jurisdiction means an authority or power over a certain area. Generally, it does NOT create a legal obligation to act or legislate in that specific area. These individual areas of jurisdiction are referred to as “heads of power”. For example, the federal government has jurisdiction over things like criminal law, divorce law, banking and the military. The provinces have powers over hospitals, charities and taverns. The head of power at issue in this case is section 91(24) Indians and lands reserved for the Indians.

    It should be remembered that this is NOT the first SCC case on what the term “Indian” includes under section 91(24). In 1939, the federal government and province of Quebec sought clarification from the court as to whether the term “Eskimo” now referred to as “Inuit” was included in the term “Indian”. In that case, the court used historical documents to demonstrate that while the Inuit were unique, they were considered to one of many “tribes” of Indians. As a result, the Inuit are considered “Indians” for the purposes of section 91(24) federal jurisdiction. This did NOT mean that all Inuit were registered as Indians under the Indian Act. In fact, section 4(1) of the Indian Act specifically states:

    4(1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

    The term “aborigine” is not defined in the Indian Act, but commonly refers to an indigenous person of a particular territory or country –the original inhabitants. The question now is whether Canada will make Metis and non-status Indians a new group of “aborigines” to be specifically excluded from the Indian Act, like the Inuit.

    Just because Metis and non-status Indians have been recognized as “Indians” for the purposes of section 91(24) of the Constitution Act 1867, this does not mean that they will ever be included in the Indian Act or registered as Indians. Nor does it mean they will get a house on reserve, be considered treaty beneficiaries, or access any other legal entitlement. Inuit do not live on reserves nor are they considered First Nations. It is unlikely that the federal government will put Metis on reserves either.

     

    Remember, it is not the Indian Act that sets out rules and regulations around “benefits” or “rights”. Whether or not Indian and Northern Affairs Canada (INAC) grants a benefit or decides to recognize a legal right is a matter of policy – i.e., a government decision made at Indian and Northern Affairs Canada (INAC) usually in consultation with Justice Canada, Treasury Board, the Prime Minister’s Officer and/or various other interested departments like Fisheries and Oceans (if related to fishing right for example).

    Despite the fact that many of our rights are LEGAL rights protected by Indigenous laws, treaties and agreements, as well as domestic and international laws – most often the government lumps all “Indian” issues into generic policies that may not reflect the extent of our legal rights at all. In fact, Canada’s most common legal argument is that any “benefit” provided to Indians is out of the good will of the government (a matter of policy) and not out of any legal obligation. This is what the SCC referred to as “noblesse oblige” where the government mistakenly thinks that Indigenous rights are a matter of charity or generosity versus legal obligation.

    What this case will do is break through the jurisdictional “limbo” to which Metis and non-status Indians have been relegated and force both federal and provincial governments to include Metis and non-status Indians in their consultation activities. While the court did not grant 2 of the 3 requested declarations, it DID confirm that governments have a fiduciary duty towards Metis and non-status Indians (duty to act in their best interests), AND that they must negotiate with them and consult with them on decisions impacting their rights.

    That is the most neutral thing that I can say about this decision. In EVERY other way, this decision is one of the worst messes to come out of the SCC. While it may sort out who is an Indian, it does nothing to address the problems faced by Indians in accessing various federal programs and services. Remember, Jordan River Anderson was a registered Indian child, under federal jurisdiction, yet the province and federal government BOTH refused to pay for his health services and he died in hospital never seeing his home. Magically becoming an Indian doesn’t resolve the ongoing federal-provincial dispute over coverage for individuals living OFF reserve, let alone those normally resident on reserve.

    On the Indigenous rights front – inherent, Aboriginal and treaty rights – this case is damaging.

    To my mind, the Daniels decision is less about reconciliation and more about erasure of Indigenous sovereignty and identity. It takes John Ralston Saul’s idea of “we are all Metis people” together with the newest Canadian slogan “we are all treaty  people” and opens the floodgates to every person in Canada claiming a long lost Indian ancestor and asserting their identity and control over our lands and rights. It has the potential to effectively eliminate any real sovereignty or jurisdiction Indigenous Nations have over our own citizens and territories. It does not bolster Metis claims, but instead confuses them. It does not address the discrimination faced by actual non-status Indians, but paints them with the Metis “mixed people” brush. The very unique and specific circumstances of non-status Indians are completely over-looked in this decision.

    We have gone from sovereign Indigenous Nations – to one generic group of Indians – to distinctions-based groups (Indian, Inuit and Metis) – and now back to Indians – all for the express purpose of reducing us to an “interest group” of “Aboriginal people”. This is not good for anyone. Certainly, no one asked us what we thought. Once again, National Aboriginal Organizations are at the helm – directing the pirate ship to ensure they get their cut of program funds for their organizations. Their win is big – they’ll likely get increased funding to set up new negotiating tables. For the Indigenous Nations on the ground – a new burden has been placed on us – proving that the thousands of newly-minted, self-identified “Indians” do NOT speak for us and do NOT have a say over our lands. For those who have been wrongly excluded by government laws policy (like Indigenous women and their children) – their new challenge will be to distinguish themselves from the floodgate of false claims to come – a burden not rightly borne by those who have already suffered so long at the hands of government discrimination.

     

    This decision, taken together with Trudeau’s White Paper 2.0 (the nice version), means we have many battles ahead. Please read this decision critically – don’t partake in the celebrations just yet.

     

    http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15858/index.do

  • The Silent War – Government Control of Indigenous Identity

    This blog represents excerpts from the talk that I gave last week on the issue of Indigenous Identity. I realize, however, that many of Indigenous peoples can’t access public lectures, conferences, and other similar forums for information and debate. I therefore decided to include this information in my blog, knowing that there are still many of us who do not have access to computers or the Internet. Canada’s cutting off the water supply at Constance Lake First Nation so that the community has barely enough to drink but not bathe, despite Canada’s “endorsement” of UNDRIP, is but one example of how many of us are forced to manage our extreme poverty and do not have computers, Ipads or TVs. Thus, many do not have the ability to access the kinds of information found on the Internet which many of us get to take for granted – like blogs. So, here are some excerpts from my discussion about Indigenous identity: I wear my Indigenous identity proudly, but have to carry on my back the other identities imposed by government through law and policy. I am forced therefore, to explain my Indigeneity as being comprised of two separate but conflicting sides which are constantly at “war”. The first is my identity as experienced by me internally – within my own heart as an individual and communally with my family, extended family, community and Nation. The second is my “lived experience of Indigenous identity” – i.e. my identity as experienced externally – through relations with both Canadian society and the state. My own identity has shaped by the histories, stories, lessons, and practices passed on to me by my large extended family. This has shaped my worldview, values, and aspirations – it is essentially what some might refer to as my cultural identity. My experience of identity on the other hand, has been shaped entirely by others – by school mates, teachers, employers, friends, neighbors, historians, judges, politicians and governments. While my own Indigenous identity is strong and has survived the test of time, it is scarred and bruised by my lived experience of identity and the ongoing attack on my identity through government law and policy designed to assimilate Indigenous peoples into the body politic. So who am I? I am a Mi’kmaq woman. That is my identity, recognizing however that Indigenous identity is a relationship – a two-way street between myself and my nation. What I mean by this is that my nation cannot exist unless its citizens, like me, both recognize it AND support it. Similarly, I can assert my Mi’kmaq identity but it requires my nation to both recognize AND support me as a citizen. This mutually dependent relationship has been the way of the Mi’kmaq Nation and its citizens since time immemorial. Yet, this relationship is also where Canada has chosen to erect barriers in order to divide, conquer, and destabilize us, with the ultimate goal of reducing our numbers until we are assimilated. My identity as a MI’KMAQ WOMAN has been in constant conflict with these barriers. My identity as a Mi’kmaq woman means that I am a Teacher who is responsible to pass on our history, language, culture, and laws. I am a Warrior who is responsible to protect our nations, territories, trees, animals, and citizens. I am a Caregiver who is responsible to care for my children, mothers, grandmothers, and aunties. I am also responsible to be a Leader in my own life – to stand up for what is just regardless of the consequences. I am responsible to be a Living Example – to live our values for our young ones to see so that they know how to live in balance. We are not to live in wealth that destroys the earth nor in poverty that destroys our spirit. Some have discounted our Indigenous values and traditions as being ancient and irrelevant in modern times. In my opinion, these traditional values are more important today than ever before. I believe they are what will inspire our people to action, stand up against the current injustices and reclaim our spirit and identities. However, despite my own identity as Mi’kmaq, I have been labeled as “ABORIGINAL” by others. This is a legal and social construct of the Canadian state which lumps my Mi’kmaq identity in with the generic terms of Indians, Inuit and Metis as if we were all just one race of people with the same cultures and world views. Taiaike Alfred, in his book Wasase, explains that “aboriginalism” amounts to little more than “racialized violence and economic oppression meant to bring about a silent surrender” of who we are as Indigenous peoples. I have resisted surrender – but the battle seems to be never-ending and I fear that most Canadians are not even aware of what is at stake for us. They see our identity only in terms of unfair entitlements and special treatment. Yet, my identity is primarily about my responsibilities and relations with my Nation and my connections with our traditional territory of MI’KMAKI. Mi’kmaki represents the seven distinct districts of Mi’kmaq territory including NB, NS, PEI, NFLD, parts of Quebec and Maine. With the exception of the last two years, I have spent my entire life living within my traditional territory and those lands are an essential part of my identity. My heart aches if I am far from home for too long as I know that my responsibilities to my territory does not diminish when I live elsewhere. However, the Crown has put limits on my ability to fully enjoy my Mi’kmaq identity through the imposition of provincial boundaries and policies that restrict my rights on a provincial basis. I am considered a NB MI’KMAQ and therefore not entitled to hunt or fish in NS; enjoy my treaty rights in PEI; or have a say in what happens in Mi’kmaq territory in NFLD. Even within NB, the provincial government has drawn an arbitrary line called the Ganong Line telling my Nation and the Maliseet Nation whose territory is whose. These barriers are all externally imposed and designed to divide our Nation. Within Mi’kmaki, my home community (or band) is EEL RIVER BAR FIRST NATION located in northern NB. Yet this is not even the location of our true community. It is the location to which my original community was relocated, as the lands on which they had originally occupied for their more permanent settlements were considered too valuable to be occupied by Indians. However, my family has now lived at Eel River Bar for many generations and therefore we have strong connections to that specific part of our territory as well. Yet, despite my own identity as a Mi’kmaq woman and the essential role that my connections to the land play in that identity, INAC (Indian and Northern Affairs Canada) has determined that I am a NON-BAND MEMBER and therefore not entitled to live in my home community or have a say in its governance or future. Unfortunately for many Indigenous peoples, our own communities have now taken over Canada’s role and exclude our own people on the same basis. I have learned how to survive in this war against my identity and live my Mi’kmaq identity despite the fact that I am a non-band member. I proudly assert that I am an ON-TERRITORY MI’KMAQ citizen. After all, I have always lived on my traditional Mi’kmaq territory and have acted always in protection of it. This is an important part of my identity and is really inseparable from it. Even now that I live in Toronto, I still have a strong connection to Mi’kmaki and maintain those connections. This is not easy to do when I am legally excluded from my community, but is necessary to ensure that identity for my children. As I explained earlier, there is consistent conflict between my personal identity and my lived experience of identity. I may feel like I am an on-traditional territory Mi’kmaq, but am still dismissed as an OFF-RESERVE INDIAN or URBAN ABORIGINAL. Non-Indigenous writers like Tom Flanagan, Alan Cairns and others try to persuade Canadians that because I don’t live on reserve, that this somehow makes me less of a Mi’kmaq person. To them, the movement of Indigenous peoples off-reserve is as inevitable as their corresponding loss of identity which is prophecized. Yet, there were never any reserves for the many thousands of years that we have existed as Mi’kmaq peoples. Reserves are an artificial creation and imposition of the government which were meant to control us and dispossess us of our traditional territories. The goal was to open up our lands for settlement. Why would I ever define myself in a way which legitimizes Canada’s theft of our lands? What kind of message would that be to my children? All of that lived experience of Indigenous identity which has been imposed from those outside my Nation ignores the fact that my identity also comes from the many great Mi’kmaq people who have made up our Nation, like my GREAT GRANDFATHER LOUIS JEROME. He is said to be one of the last traditional Chiefs of my home community and dedicated his life to travelling throughout Mi’kmaki to maintain relations amongst the seven districts. His daughter, my GRANDMOTHER MARGARET JEROME was a well-known healer of our community and had extensive knowledge of the traditional uses of plants and herbs in healing our people. She was so good at what she did that even non-Indigenous doctors asked for assistance in times of disease. Her son, my father, FRANK PALMATER quit school in grade three to care for his large family and then fought in the WWII to protect our territories. To him, the treaties we made with Britain were worth fighting to protect. Yet external determinations of my identity by the Canadian state ignore those connections. To INAC, because my grandmother married a non-Indian, she was no longer considered an Indian and therefore, not entitled to be a band member – nor were her children or grandchildren. Canadian laws turned my grandmother from a Mi’kmaq to an Indian to a non-status Indian and then back to Indian again in 1985. They are now referred to as BILL C-31’ers – those who got their Indian status restored in 1985 when the United Nations found Canadian laws discriminatory. My relations are considered lesser Indians than other Indians and often discriminated against because of their Bill C-31 status. As a result, this has meant no membership in our home community, no residency rights, or ability to participate in our government. All of these external laws create divisions, inequities and injustices that focus our attention on our externally imposed identities. Canada has successfully diverted our attention from our real identities. We are so busy trying to combat discrimination in Canadian laws that some of us have forgotten that that we must put as much energy, if not more, into protecting our Mi’kmaq identities. Growing up, I did not link my Mi’kmaq identity to my registration status under the Act. My family thankfully protected me from that hurt for as long as they could. I often identified myself as a TREATY INDIAN because the Mi’kmaq signed numerous peace and friendship treaties with the Crown. My family made sure I knew those treaties very well. These treaties, like those signed in 1725, 1726, 1752, etc, protect many of our Indigenous rights to hunt and fish for example, but are not the source of those rights. I therefore grew up knowing that our hunting, fishing, and gathering activities in which my large extended family participated were an essential part of who we were as Mi’kmaq peoples. Yet, the assertion of myself as a Treaty Indian is often met by a swift denial from federal and provincial governments. It is their position that I am nothing more than a NON-STATUS INDIAN. Since they only recognize status Indians as having treaty rights, governments tell me I don’t have a right to call myself Treaty Indian. Why do they call me a non-status Indian? Because there is a preference in the Indian Act for those who descend from the male line versus a female line. Had my grandmother been a grandfather, I would be registered under the Indian Act as an Indian (i.e. have status) as would my children. The changes that were made in 1985 in Bill C-31 did not fully remedy this legislated form of gender discrimination. Again Canada has directed our attention away from my status as a treaty descendant to one of non-status as an Indian. For every identity I assert in this battle, Canada has created another one to counter it. So, some say, well that’s OK Pam, soon under Bill C-3 you will be a STATUS INDIAN. In fact, I will be a section 6(2) status Indian, which is the lesser form of status. That status cannot be transmitted to my children. Even if my home community of Eel River Bar First Nation “allows” me to become a band member, my children will be excluded. Why? It’s not because Canada will exclude them from band membership under the Indian Act – Eel River Bar now controls its own membership and does the excluding for Canada. Layered on top of that lesser type of status will be the fact that it results from Bill C-3, I will be known as a BILL C-3’er, which is just as bad, if not worse, as being known as a Bill C-31’er. I will be considered a “new” Indian which discounts my lifelong identity and contributions as a Mi’kmaq woman and citizen. Furthermore, Indigenous women and their children impacted by Bill C-3 will NOT get to make claims for lost treaty, land claim, or other benefits despite the court finding of gender discrimination. Some of us have experienced the same kinds of loss of language, culture, and identity as those is residential schools, but because those affected are primarily Indigenous women and their children, they are treated as less worthy of being compensated for severe breaches of their Charter equality rights. So, again some might argue that government control over our identities only impacts my Indigeneity and there are many other aspects of my identity on which I could focus. After all, I am the MOTHER of two of the most amazing Mi’kmaq men – Yet even that identity is challenged by the state. Remember the 60’s scoop? Just as residential schools were being shut down all over the country, during the 1960-80’s, child welfare agencies were empowered to literally scoop up thousands of Indigenous children from their homes and place them in foster homes or permanently adopted them out without the knowledge or consent of the parents. Over 11,000 status Indian children were scooped and that number obviously does not account for all those children never registered as status Indians. These children denied their identities, languages, cultures, families, communities & Nations. Many Canadians misunderstand that period in our history to be over, which is the reason why it is labeled as the 60’s scoop – something that happened in the past. Yet Indigenous children NOW make up 60% of all children in care despite the fact that they are less than 4% of the population. We have HIGHER levels of our children in care now than in the 1960s!!! Canada and the provinces have continued with their policies of assimilation by TAKING OUR CHILDREN from us. Bill C-3 might not be directly physically removing our children, but will legally, socially, and politically remove them from us. Under Bill C-3, MY CHILDREN will be denied their status and thus their band membership, Mi’kmaq citizenship; and treaty rights. On some First Nations, no band membership means you can’t live on reserve and will be evicted. In that way, my children and many others could be prevented from physically being with their family. It is like Canada is taking away my right to parent my children and raise them as Mi’kmaq. This is not because they are any less Mi’kmaq than any status Indian person, but is solely because Canada has never shifted its position of assimilation. Canada is saying that they are not Mi’kmaq, but instead Canadian citizens who must adopt a different culture, identity, world view and even potentially a different place to live. Canada is ensuring that those children who are not stolen from us by Child Welfare agencies will still be removed from us by the Indian Act. This kind of law and policy which targets our children is one of the greatest threats to our future. Some of the more superficial persuasion might tell me to ignore all that and focus on my career and professional identity as a lawyer, but even my professional identities are challenged and belittled by state actors and society simply because of my Indigeneity. As an Indigenous person, my being a lawyer means that I am automatically part of Flanagan’s ABORIGINAL ELITE who are assumed to have never suffered the poverty and discrimination of “real” Indians but take advantage of all their benefits and affirmative action programs. Similarly, as a lifelong VOLUNTEER AND ACTIVIST, I have dedicated a great deal of my life to advancing our cause and helping to build capacity within our communities. However, in the Flanagan, Widdowson, Gibson, Tax Payer’s Federation and National Post world, I am part of the ABORIGINAL INDUSTRY that is allegedly “sucking First Nations dry”. With all of these battles, I can see how so many Indigenous peoples become confused about their identities, their relations with their communities and Nations, and with Canada generally. It feels like I have been engaged in this SILENT WAR MY ENTIRE LIFE which began so early that I can’t remember a time when I wasn’t in it. Something as essential to our individual and collective well-being as identity should not be part of the spoils of war. Liberal democracies pride themselves on fostering conditions that allow individuals to live the good life – the life we choose for ourselves. Why then can’t Indigenous peoples choose their own lives? Indigenous peoples have suffered enough with the loss of lands, natural resources, and water ways. They have survived wars against them, relocations, residential schools, the 60’s scoop, overrepresentation in jails, wrongful deaths, murdered and missing Indigenous women, and a whole host of assimilatory laws and policies. Attacking their identities hits us at our core. What is the solution? There are far too many complexities to get into in this blog, which is already too long, but certainly our Indigenous identities must be clearly and completely within our own hands – no more legislative control over who we are. We will likely still have internal struggles to de-colonize ourselves and rid of the divisions within our Nations, but they will be our struggles and we can work it out. In the meantime, legislation like the Indian Act simply cannot endorse gender or other forms of discrimination. Any initial cost that there might be to Canada will be far outweighed by the costs saved down the road. Poor health, violence, and suicide that results from people without an identity – people without hope or purpose – cost Canadians far more than healthy, secure communities. I aspire to be a contributing citizen of a strong, vibrant, inclusive Mi’kmaq Nation, which is self-determining and encourages participatory governance over our land and resources, international and inter-tribal relations, and economies that are based on our traditional values and principles that have evolved to address modern situations. That’s my aspiration for myself and my children so that my grandchildren and great grandchildren will never have to serve in this war against our identities and can instead focus on re-building the spirits and relations of our Nations.

  • Letter to editor of Globe & Mail re Bill S-4

    Dear editor; My name is Pam Palmater and I am a Mi’kmaq lawyer originally from New Brunswick and am now the Chair of Ryerson University’s Centre for Indigenous Governance. I was called as an expert witness on several bills, including Bill S-4 – Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise referred to as MRP legislation). Please find attached a copy of my official submission to the Senate in this regard. However, I would also refer you to the transcript of Senate proceedings as this contains additional vital information about the Bill and its potential impacts. The reason for my letter to you today is because Mr. Curry, in his article dated July 6, 2010 and entitled “Senate approves bill to help abused, divorced aboriginal women”, presented factually inaccurate information which serves only to perpetuate misleading information about the real issues and negative stereotypes about Aboriginal peoples. For example, while the sub-headline may create drama around the vote to support/reject the bill, the fact is 32 Senators voted against it, not two, and they voted this way primarily because of the nearly unanimous voices of the Aboriginal leaders, women and organization that appeared before the Senate on Bill S-4. Those 32 Senators who voted against this bill did so based on very informed and detailed presentations from well-respected groups like the Canadian Bar Association who warned that this Bill would create new rights for non-Indians in reserve land and that consultation was required before the bill proceeded. Even more shameful is the fact that there is very little reference to what Aboriginal peoples’ views were – and an embarrassing lack of reference to the views presented by Aboriginal women themselves. Before the Senate there was nearly unanimous opposition to this Bill by Aboriginal women like myself, Native Women’s Association of Canada, Quebec Native Women, Women Chiefs of the Assembly of First Nations and others. The common theme amongst the Aboriginal women was that change is definitely needed, but no Aboriginal women were willing to give up their individual and communal Aboriginal, treaty, land and governance rights in exchange for federal control over matrimonial property. What gets forgotten is that a violation of the right to self-government of a First Nation is also a violation against that First Nation’s women. Aboriginal women are struggling to protect their rights and identities for their future generations which can’t be achieved if Canada resorts back to paternalistic control over their personal lives and re-institutes Indian agents through “verifiers”. Even worse is the fact that this bill won’t help Aboriginal women but will open up reserve lands to non-Indians in violation of countless treaties, the Royal Proclamation, the Indian Act itself and the Constitution Act, 1982. This aspect of the Bill is, in essence, illegal. It purports to unilaterally change constitutionally protected rights without amending the constitution. Canada cannot, by amendment of the Indian Act, amend the Constitution. First Nations lands are protected for the SOLE use of First Nations and changing this fact without consultation with First Nations has been referred to by various academics as an abuse of power. Mr. Curry also refers to the fact that Bill S-4 is the third time around for MRP legislation but fails to highlight that the reason it failed the last two times was because there was no consultation with First Nations. Consultation is not a mere nicity that the government can choose to ignore at will. In addition to the honour of the Crown and its various fiduciary obligations towards Aboriginal peoples, Canada has a LEGAL obligation to fully inform, consult with and accommodate the legitimate concerns of First Nations whose Aboriginal, treaty and/or land rights may be impacted by government decisions, actions, policy or legislation. I need only refer to the numerous Supreme Court of Canada decisions like Haida, Taku, Mikisew Cree, Delgamuukw, Guerin, Sparrow, Van der Peet Trilogy, Sappier and Gray which support this fact. The fact of the matter is that Canada “engaged” with Aboriginal political organizations at a very general level but it did not consult with First Nations specifically about Bill S-4. Even Canada’s own Ministerial representative concluded that consultations had NOT taken place and that any solution must include consultation. Whenever a well-read newspaper such as the Globe and Mail leaves out critical information that would permit readers to have access to at least the basic information to come to their own conclusions about issues like Bill S-4, it detracts from its usefulness and risks becoming a one-sided advocacy piece. Readers deserve more and so do the subjects that you treat. Aboriginal peoples are regularly portrayed negatively in the media because that serves the interests of right-wing thinkers who believe everyone should subscribe to their limited views about what it means to be a Canadian. So, the fact the Mr. Curry could write about Bill S-4 and not even mention the fact that this Bill will affect First Nation jurisdiction over their own lands or that it does not recognize and implement their right to be self-governing – both rights of which are protected in section 35 of the Constitution Act, 1982 is irresponsible. In 1996 Canada recognized that the inherent right of self-government was protected in section 35 of the The Constitution Act, 1982 and that issues like membership and family law was the sole jurisdiction of First Nations. The Constitution Act, 1982 is the Supreme Law of Canada and Canada can’t choose to honour it only when it is convenient. We just celebrated Canada Day on July 1 – perhaps we also need a day to celebrate our Constitution and remind Canadians that First Nations and their rights are just as an integral part of our Constitution as are our highly valued Charter of Rights and Freedoms. In addition to these glaring omissions, I would also like to draw your attention to several factual inaccuracies: (1) Mr. Curry claims that this bill is designed to help “abused, divorced aboriginal women”. The conservative senators specifically clarified at the hearings that this bill was not targeted at abused Aboriginal women. I refer you to the transcript for more details. Similarly, even if it was, it should be noted that all legal experts who presented testified that this bill does not offer real remedies for Aboriginal women as there is no funding to access lawyers or courts and there is no funding to help create local remedies that are accepted by the community. (2) Mr. Curry claims that Aboriginal women’s only options are to “plead their case to the local band council”. He obviously did not follow the hearings or peruse the transcripts which highlighted the First Nations who have already designed their own MRP laws or have traditional or informal rules which take care of MRP issues. I refer specifically to Anishanabek Nation, Six Nations, Akwesasne and others who, under this bill, will have their own MRP laws rejected. While MRP laws are necessary in many First Nation communities, what is needed is capacity building and funding to support First Nations to work with their communities to come up with their own laws and local dispute resolution mechanisms – we already know from residential schools how things turn out when Canada imposes its own views on Aboriginal peoples. (3) Citing Senator LeBreton does not help Mr. Curry’s article either. Mr. Curry cites her as saying that she is “mystified” that Aboriginal Women Senators Dyck and Lovelace would oppose the bill. With all due respect, she could only come to that conclusion if she ignored nearly every single submission and testimony that was made before the Senate hearings on Bill S-4. Senator Lovelace and Dyck are well-respected Aboriginal women who have been a part of the struggle to have the voices of First Nations and Aboriginal women in particular heard. What those two Senators did was actually listen to what Aboriginal women and First Nations said and brought those views and concerns forward. This is what is expected of those who represent the people – Senators blindly support whatever their political party advocates without listening to the people are undemocratic. LeBreton didn’t even listen to what her own conservative senators said at the hearing. She claims the legislation is geared towards “preventing cases of repeated abuse” yet her own conservative members specifically stated that it was not. When she did refer to testimony she discounted what the AFN had said on the basis that most First Nations leaders are male. Again, I would refer you to the testimony of the Aboriginal women, experts and organizations that were also against this bill. I would refer you to the report of the Ministerial Representative on MRP who highlighted the fact that there are more Aboriginal women chiefs of First Nations in Canada, than there are women in the House of Commons. My elders always use to tell me that before one could criticize another, they should be sure that they have their own teepee in order. So, instead of trying to twist the issue to one of Aboriginal women versus Aboriginal men or individual rights versus communal rights, I would respectfully suggest that Mr. Curry look at the real issue: how Canada continues to develop policies and laws which control, divide and assimilate Aboriginal peoples despite their legally and constitutionally protected rights. If Canada was truly concerned about gender equality, it would work with Aboriginal women to amend Bill C-3 Gender Equity in Indian Registration Act to once and for all make status equal between Aboriginal men and women. Canada can’t have it both ways – it either wants true gender equality for Aboriginal women in all laws and policies or it doesn’t. If it does, then it has to listen to Aboriginal women about Bill S-4 and the need for consultation. If it doesn’t, then we’ll see more of the legislation that the conservatives have tried to cram through the House and Senate – Bill S-4, Bill C-3, Bill C-24, and Bill S-11. Respectfully; Pam

  • 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.

  • 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.

  • 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 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?

  • 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.

  • 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

  • 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!