Document Information

Date: 1983-03-29
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 16 (29 March 1983).
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MINUTES OF PROCEEDINGS

TUESDAY, MARCH 29, 1983
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The Special Committee on Indian Self-Government met in London, Ontario at 10:05 o’clock a.m., this day, the Acting Chairman, Mr. Burghardt, presiding.

Members of the Committee present: Messrs. Allmand, Burghardt, Manly and Oberle.

Ex-officio member present: From the Assembly of First Nations: Ms. Roberta Jamieson.

Liaison member present: From the Native Women’s Association of Canada: Ms. Sandra Isaac.

In attendance: From the Research Branch of the Library of Parliament: Mrs. Barbara Reynolds, Research Officer.

Witnesses: From the Association of Iroquois and Allied Indians: Mr. Gordon Peters, President; Councillor Linda Commandant, Gibson Reserve and Chief Alfred Day, Oneida Reserve. From the Native Women’s Association of Canada: Ms. Jeanette Corbiere Lavell.

The Committee resumed consideration of its Order of Reference dated Wednesday, December 22, 1982. (See Minutes of Proceedings, Wednesday, December 22, 1982, Issue No. 1.)

Mr. Peters made a statement and, with Councillor Commandant and Chief Day, answered questions.

It was agreed that the part of the Association of Iroquois and Allied Indians’ presentation which was not read into the record, be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Apendix “SEND-17”)

Ms. Corbiere Lavell made a statement and answered questions.

At 2:10 o’clock p.m., the Committee adjourned to the call of the Chair.

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EVIDENCE

(Recorded by Electronic Apparatus)

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Tuesday, March 29, 1983

The Acting Chairman (Mr. Burghardt): We will call this session of the Special Committee on Indian Self-Government to order. I would first of all like to welcome the committee to London, and certainly those witnesses who will be appearing before this committee.

As a member of this committee, it is good to be in this great City of London, and personally for me to welcome my colleagues and all those who will be appearing in the City of London here today.

For the benefit of those who perhaps have not been following as closely as others the workings of this committee, this special subcommittee of the standing committee on Indian affairs was formed last fall following an order of Parliament last summer regarding the work of the standing committee. Parliament ordered the setting up of two special subcommittees to look at the entire Indian Act. The first subcommittee met last summer and early fall on the subject of Indian women and the Indian Act. That subcommittee, which I chaired, presented its report to the standing committee on September 20 of last year. Following that, the second subcommittee was set up, and it has been working extensively across the country, meeting with various Indian bands and groups and representatives and other interested people on the overall subject of Indian self-government.

Certainly in light of the constitutional conference of a couple of weeks ago, the work of this committee has taken on an even greater, important role. I think one would have to agree that we can see that this is part of the ongoing process that was agreed to at the constitutional conference. The report of this committee, I am sure, will have a great bearing and a great effect on certainly the next constitutional conference and on what eventually will develop between the Canadian government and the native peoples of Canada.

The committee already has visited British Columbia, Saskatchewan, Alberta, southern Manitoba, northwestern Ontario. Yesterday we had a full day’s session at Kettle Point, here in southwestern Ontario, and this is the second day of our hearings in this region. There are a number of other trips yet to be taken across the country, to the Maritimes and Quebec, also to the Northwest Territories, and these trips will be forthcoming in the next few weeks and months.

We are to report back to Parliament, hopefully back to the standing committee and to Parliament, by the fall of this year.

Having said that, I would like officially to introduce the members of the committee. Representing the Conservative Party, is Mr. Frank Oberle, who is a member of Parliament for Prince George-Peace River, British Columbia. Also … and this is a breakthrough which was established by the first subcommittee by having ex officio members at this table with full powers, other than voting, of course, if we ever get to any

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votes, but certainly full involvement to question and to dialogue and to advise and play a full role as a member of the committee-we have Ms Roberta Jamieson, representing the Assembly of First Nations. I know other committee members feel the same as I do, that we have greatly learned and benefited from Ms Jamieson’s presence on this committee.

Representing the New Democratic Party, Mr. Jim Manly, who is a member of Parliament for Cowichan-Malahat–The Islands, in British Columbia. Representing the Liberal government, the Hon. Warren Allmand, former Minister of Indian Affairs, member of Parliament for Notre-Dame-de- Grâce—Lachine East, in Quebec.

Mr. Allmand: Not representing the government.

The Acting Chairman (Mr. Burghardt): Well, you are representing the Liberal Party.

There is a vacant seat, but it will soon be filled, because we know she is here, a liaison member of the committee from the Native Women’s Association of Canada, Ms Sandra Isaac; and she will be here with us shortly.

Also, there is another liaison member whose chair is vacant this morning as well, a representative of the Native Council of Canada.

My name is Jack Burghardt, a member of Parliament for London West and chairman of these hearings here in southwestern Ontario.

This morning, we are going to hear from the Association of Iroquois and allied Indians. On behalf of the committee, I welcome the witnesses before us this morning. As witnesses we have Gordon Peters, President of the Association of Iroquois and Allied Indians; Linda Commandant, a councillor from the Gibson Reserve; and Chief Albert Day from the Oneida Reserve. We welcome you and look forward to your presentation. Without any further ado, we will call on Gordon Peters.

Mr. Gordon Peters (President, Association of Iroquois and Allied Indians): First of all, I would like to take this opportunity to welcome everybody here to the City of London. As you know, there are quite a few Indian reserves in southwestern Ontario. I think there are approximately three or four within about 10 miles distance from here. So on behalf of those bands, I would welcome you to this area.

The Association of Iroquois and Allied Indians welcomes this opportunity to meet with parliamentarians and inform them of our concerns in relation to Indian self-government. This presentation is necessarily a little more than an outline of the views we have taken and the positions we have developed.

We have not dealt at length with such matters as financial transfers, which we regard as a matter of political will rather than legislative intricacy. Even so, we would be pleased to forward further elaboration on any point on which the committee wishes to know our views.

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Our bands want the committee to know who we are; where and how we live and why we take the positions that we do. For this purpose, it is perhaps more important for the committee to sense how we think and what we think, particularly in the short time available for oral presentation.

We are always prepared to inform the committee about what we think and invite its questions and queries at any time.

To begin with, the Association of Irquois and Allied Indians is a non-profit corporation with share capital representing eight bands in Ontario. Each chief and one councillor of the member band sit as directors of the association. The bands represented by the association are, Batchewana, with a band population of approximately 500; Gibson, with a population of 250; Hiawatha, population 150; Moravian of The Thames, population 500; Oneida of The Thames, population 2,500; Mississaugas of New Credit, 700; Mohawks of the Bay of Quinte, 2,750 and Walpole Island, 2,000.

As you can see on the chart that we presented in the front, we have indicated the area of reserve or territory that now exists with each band. We also indicated the original reserve or territory that existed when the bands were first settled in this area. We have put a note that all lands are indicative only and may be subject to claim dispute by the bands.

The association represents bands’ diverse and physical location. Each is unique in its history. Many are located where their ancestors ranged before the white man came. Walpole Island, for example, has never ceded the aboriginal title to its reserve on Lake St. Clair.

Others have relocated to their present reserves: the Gibson Band from Oka in Quebec; the Moravian Band to a mission established by the Moravian Church in the late eighteenth century, destroyed during the war of 1812 and rebuilt; the Mohawks of the Bay of Quinte were allies of the British who moved there after the American Revolution; the Mississaugas of the New Credit moved to the Grand River Valley in the 1840s after their extensive reserve in the Credit Valley, today Port Credit and the City of Mississauga, was granted to settlers.

Part of the rich history of our bands is a regrettable pattern of land dealings with the government. Mississauga claims have been in dispute for over a century. The present village of Shannonville is located on Mohawk reserve land on the Bay of Quinte that was never surrendered. The Gibson Band moved to Muskoka to avoid a land dispute from Quebec, only to have 11,000 acres lopped off its Ontario reserve without a surrender, during World War I. The riparian rights of the Walpole Island Band are still in dispute with both the provincial and federal governments. Most of our lands passed from Inidan hands because they were coveted by others.

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History has shown that white governments have regarded our lands, our culture and our special relationship with the Crown as a temporary expedient. In 1969 the white paper merely proved to other Canadians, who do not know our history the truth of what we have always known: the Indian Act is dedicated to the subservience of our rights under arbitrary authority and to the enfranchisement of as many of our people as possible. The failure of the act to accomplish that goal has not resulted in any change in this basic framework. Our people and our councils are treated like transients.

Parliament cannot change history but it can change policies and it can change the Indian Act.

The association asks that this special committee recognize that we will be faithful to our culture and to our history; that we are capable of managing our own affairs and our future and that it is in the interest of all Canadians that we are able to do so.

It is not in the power of any government to deny us our future as Indian people. It is in the power of the committee to work with us to shape that future. We will do our part.

In the remainder of this brief we set out our views and our concerns about Indian self-government and what it future means to our band.

We have included in here at the very beginning a summary of our recommendations on the things we would like to deal with today.

We talk about the constitutional framework, the legal status of Indian governments, some theories of Indian governments, accountability, the future role of the Department of Indian Affairs, the trust relationship with the Crown, Indian status in terms of citizenship and band membership, lands and resources; Indian government control of lands, estates, and fiscal stability. These are just some of the areas we would like to speak to you about today. I, think it is important that rather than my going through these documents for you, and reading this to you, if you have not taken the time to read approximately four pages of the summary recommendation, I would suggest that we take approximately five or ten minutes and read the summaries, and then you will have an indication of the framework of what we would like to speak to you about today.

The Acting Chairman (Mr. Burghardt): Mr. Peters, I am in the hands of the committee. I am sure they are well aware of many of these sections on which you want to address the committee, but certainly if they want to just take a few minutes to briefly read over them, that is fine with the Chair, so perhaps we will do that. Thank you.

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The Acting Chairman (Mr. Burghardt): I think we can begin with some comments and questions to Mr. Peters. I trust that Linda Commandant and Alfred Day are also available to comment-or will they be making a presentation as well?

Mr. Peters: They will be able to answer questions also as we go through this. One thing I would like to make clear before we start is that during the course of this session we will be trying to provide you with as many examples as possible of the things we are talking about. We are not here to tell you any of the numerous horror stories that go on within the communities. What we are trying to do here is establish a new positive feeling that we have. We sense that there is a new type of magic sweeping through the land with an Indian country, and we are trying to relate that type of magic to you at this session.

Also, we would like to officially table this brief as part of the record. We did not want to read through it; we will just table it as part of the record.

The Acting Chairman (Mr. Burghardt): That will become part of the record; you can be sure of that.

I think, then, we are open for comments and questions from the committee. Mr. Manly, would you like to begin this morning, please?

Mr. Manly: Thank you, Mr. Chairman, and I would like to thank the AIAI members for being here and presenting their brief.

The first question I have deals with the constitutional framework, your last point, where you point out that AIAI bands do deal with the province and have no theoretical or other objections to doing so. I understand that you have been involved in the negotiations with the Province of Ontario on the fishing agreement and there seems to be a continual problem with the federal government signing that. I wonder if you could give us some background as to what you see as the problems. Why is the federal government not forthcoming here? The federal government has indicated that it sees some constitutional problems involved, and I would appreciate your comments on that.

Mr. Peters: Maybe I could give you a quick history of what happened and why we make the final statement there. I think you should realize that people in southern Ontario primarily have been dealing with European people since the very first people came into this country. We have a history of dealing with that aspect, and we are not averse to dealing with it in any way, shape or form. We are not saying that we are going to allow the provinces, or the Province of Ontario, to determine what rights we have, but we are not averse to dealing with them in terms of getting those rights recognized.

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In dealing with the fishing agreement, the background that I was talking about before stems from Restigouche. Ontario and Quebec are in the same position when we come to the delegated authority of the Ministry of Fisheries and Oceans in regard to inland fishing. We went to Quebec at the time of the Restigouche siege, and the Minister of Indian Affairs was called in The Ministry of Fisheries and Oceans would not come into Restigouche when we were trying to resolve that problem. At that time the Minister of Indian Affairs told us: Yes, we do have a responsibility to the Indian people, but we also recognize that this authority has been transferred to Quebec; deal with Quebec.

In Ontario, we had some similar problems dealing with the MNR in Moraviantown, my own reserve, where we had 30 armed officers plus came in to arrest a couple of guys for fishing. When we took the initiative to try to resolve those problems we remembered the Restigouche incident; we went to the province and negotiated. When we negotiated with them the federal government turned around and told us that the province did not have the right; they did not have that delegated authority to negotiate that type of jurisdiction. So on the one hand, in Quebec we could not deal with the federal government and we were forced to deal with the province; then we turn around and with the same type of authority in Ontario we are forced to deal with the provinces … and then the federal government reneged on its deal afterward.

I think the federal government, in response to that, never believed that the Indian people of Ontario could possibly deal with the MNR and the types of jurisdictional problems that we were going through. As a result, they sat back, they waited and they allowed us to go ahead and negotiate with the province. We did come out with a deal with the province. The federal government at the last moment decided that suddenly it was time for them to negotiate, and we only had approximately four days left. The timeframe had expired. We had first set six months. We further negotiated that to nine months, and beyond that point we had approximately four weeks before the signing. It was only during that last four weeks that the federal government ever came forward and attempted to get involved heavily in the negotiations. So I do not think they ever believed for a minute that we were going to come up with a settlement out of that, that we would ever negotiate a position with the province, that we would ever negotiate jurisdiction on contiguous waters outside the reserves. But we did, and that is where we stand today. We still have not reached an agreement with the federal government as to the signing of that agreement.

Mr. Manly: The federal government, at the time of the provincial agreement, when the Indian leaders signed in December, hoped that they would be able to sign at the end of January. I have since heard that the minister has made similar

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statements, that he hopes that he can sign immediately. Has there been any progress made?

Mr. Peters: Limited progress, in terms of getting the federal government to the table. Our greatest difficulty is in the fact that this is a political agreement we are making and we should be dealing directly with the ministers on this issue. Mr. De Bane has now taken the position that this is what the federal government wants, and he has sent one of his appointed officials in, Mr. Reilly, to deal with us. His position is, you either do this or we scrap the agreement.

From the Indian side, we did not put that perspective forward, because we wanted to make sure that this type of agreement was enacted. On December 17, when we signed that agreement, we could easily have said to the federal government, okay, we have negotiated for over a year, let us throw it out. Now the onus is turning around, and we look as though we are the people who are not in agreement with what is going. The federal government is recommending changes. They are saying, if you do not agree today, we will throw the agreement out and it will be your fault that we cannot negotiate this. But these are points that have come after the negotiations were shut down.

Mr. Manly: Can you explain, in fairly simple terms, what some of the changes are that the federal government is pushing for?

Mr. Peters: First of all, when Mr. De Bane came back to me, which was in January, he suggested that he needed two weeks into January, when we negotiated on December 17. We said that because of the Christmas holidays, because of what the process was going to go through, we would extend that to January 31, the end of the month. It was okay with them.

We met with Mr. De Bane on January 7. They proposed three major changes. We did incorporate some of those changes into the agreement, things like defining who a resident was, what a non-resident was. One of the things we were trying to keep established was the authority of the band. We did that. The latest thing, the thing we are hung up on right now-and I do not see it as being a major point-is consultation with user groups. They want put into the agreement that they will consult with user groups, they will negotiate with us and consult with user groups.

That is fine, as far as I am concerned, but when I started to negotiate this agreement I was not negotiating with user groups, I was negotiating government to government. Now, suddenly, a fourth party has come into play in this thing, the user groups from the federal side and the user groups from the provincial side. They are having a detrimental effect on the agreement simply because, for the first time ever, Indian people are going beyond the jurisdiction they have been saddled with over the years and are taking the initiative to enact that jurisdiction.

What has happened with both parties, federal and provincial, is that they are taking heat from their constituents.

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Putting the user group into the agreement is a 100% indication that the federal, or provincial, government does not give a damn about what happens to us as long as their constituents are protected in the agreement. That agreement certainly did not start out to be negotiated in that manner.

Mr. Manly: You said that one of your concerns was to maintain the authority of the band. Do you feel that the government wants to undercut this by dealing directly with individual Indian people? Could you expand a bit on what you mean by that and whether you see this as being a point of contention with the federal government?

Mr. Peters: I think the point we were trying to establish when we were talking about the authority of the band was that right now, even though the provincial government has that delegated responsibility from the federal government, MNR could, if they so desired, come on the reserve. They made a specific agreement with us before, which they have violated. They said before that they would not come on any Indian reserves in Ontario without the express written agreement of the Minister of Natural Resources, in consultation with the chief in council. They came on to the Moravian Reserve with the written permission of the Minister of Natural Resources, period-no consultation with anyone. We confronted them on that basis. They said they felt that, if they had informed us, when they made their move to come into the reserve those people would not have been there to be arrested. In other words, we have a government situated on our reserve that is not trusted by the provincial government. What we were trying to do was to maintain the authority of our reserves. At that point, we served notice to the MNR that, regardless of whether they were acting under a delegation of the federal government, they were not going to come onto our reserves under those auspices.

Mr. Manly: And the fishing agreement would protect that authority.

Mr. Peters: Yes, the fishing agreement would protect that authority. It would be protected in two ways: one, with the recognition that we do have that authority within the band council to regulate those through bylaws and to enforce those bylaws ourselves.

Secondly, we were dealing with conservation officers themselves in the agreement, how they would be crossappointed and what authority the band would have to lay down job descriptions, to to lay down the type of authority we want for them, if they are going to work with us, through crossappointment, to exercise the jurisdiction of band councils.

Mr. Manly: Time on this issue has dragged on, it is now three and a half months since the agreement was signed with the Province of Ontario and the federal government still has not signed. What is going to happen if the federal government does not sign?

Mr. Peters: We will be back to square one, where we began. There will be over a year of negotiation wasted, there will have been countless hundreds of thousands of dollars expended in a useless exercise. But one thing that will not be wasted out of

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this exercise is that the Indian people know what their rights are. The Constitution now recognizes those rights. We will fight for those rights now, regardless of whether the federal government signs that agreement. The onus will not be on us now, if anything happens within those communities. We have tried our best to negotiate the best possible deal we could through that agreement.

Mr. Manly: So if something similar to the Restigouche incident happened, the blame would lie fairly with the federal government.

Mr. Peters: Yes.

Mr. Manly: Thank you very much. Thank you, Mr. Chairman.

The Acting Chairman (Mr. Burghardt): Thank you, Mr. Manly. Mr. Oberle, would you like to comment, please?

Mr. Oberle: Thank you, Mr. Chairman. I too wish to express my appreciation for an excellent brief. I think you people must have monitored our hearings, because the questions that have reoccurred and the themes that have reoccurred are answered in your brief, at least to my satisfaction. Naturally, I would want to elaborate on some aspects of your brief.

First, to dispose of one question: This whole business of negotiating and dealing with provinces has been one of internal conflict in the native community. We are hearing testimony. Some people are saying: How can you be sovereign and deal with a provincial government? Your dealings are really with the federal government. You, obviously, do not have that same hang-up, do you?

Mr. Peters: No, we do not. Primarily we are concerned that Indian governments start to exercise those powers. If we have to sit down and negotiate the type of thing you are talking about, the wranglings with the provincial and federal governments, we could see a slow-down in the entire process that is sweeping the country right now. We could see that thing being slowed down, almost putting to rest the process of simply negotiating. The one thing that we understand very clearly in southern Ontario is that there are three jurisdictions that have to be recognized. There are things that are clearly federal, things that are clearly provincial and there are things that are clearly Indian government powers. We realize that a lot of those jurisdictions are going to be overlapping and those are the things we will negotiate. We will not negotiate the things that are clearly ours, but we will negotiate the grey areas of shared jurisdiction.

Mr. Oberle: I am particularly interested in the section dealing with accountability and trust. You clearly say that Indian governments should not be held accountable to, I assume, the federal government, and in some cases provincial governments; and in turn, those governments should not be accountable to Indians for the actions of Indian governments. What that tells me is that you are prepared to relieve the minister of the responsibility he has presently: the trust

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responsibility. You mentioned the Musqueam case in here, which is an action against the minister for breach of trust. I would assume, looking at the table at the beginning of your brief outlining the territory that has been lost to Indian people in your area, that you would have several actions of breach of trust against the minister. I am talking particularly about that part of the minister’s trust responsibility which requires him to assure that your land be held for your use in perpetuity, that its value be constant or enhanced, and that other assets and resources be held in trust for you and your children with the same requirements.

I assume by what you are telling us in your brief that you are prepared not to relieve the minister of the responsibility that he had in the past, but in the future, as control is turned over to you, you would be prepared to relieve him of that responsibility. Is that right?

Mr. Peters: Yes, we are not prepared ever to allow the federal government to get out of the trust responsibility it has, but at the same time if we were prepared to operate as a level of government among ourselves, we would have to be prepared to be accountable to ourselves also.

Mr. Oberle: That is a very crucial point, and we have to deal with that extensively in our report. You are saying you are not prepared to relieve the minister of his trust responsibility, yet you are prepared to assume it. Let us nail that down a little more concisely. You want to have complete control over land—first of all, you say, assets. Does that include land?

Mr. Peters: Yes.

Mr. Oberle: You do not want the minister to interfere with the band governments’ management decisions about these assets, which you are now telling me include lands. How can the minister … how can you require him to have a trust responsibility to your children if he is not permitted to interfere with the management of these assets?

Mr. Peters: I think what we are talking about is a legal trust responsibility overall. When we get into specifics on trust on certain areas, we talk about three kinds of trust in our brief. The political trust that the Musqueam case is talking about now we say is not worth anything to us.

Mr. Oberle: It is a red herring.

Mr. Peters: I do not know where that came from or what it was derived from. We are saying it is not good enough. When we are talking about a fiscal accountability, we are looking at equalization payments of some sort; some block funding of some kind; some way better to manage the responsibility that is there now.

When we talk about the legal responsibility, that is what we are talking about overall. That is the overall responsibility we are looking at: the legal combined with the fiscal.

Mr. Oberle: I am still not clear. Maybe we ought to ignore all the other trusts, moral, political, fiscal trust, which is really a social contract the government has with the provinces, with municipalities and individual Canadians, and obviously has

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with Indian people as well. So maybe that narrows it down to the legal trust.

Again, it is going to be very difficult to convince anyone that the minister is to surrender all his jurisdiction and control mechanisms regarding the management of assets and land to Indian governments; in other words, he turns over complete control to you. I think that is the way it has to happen, but frankly, I must confess to you, if I were the minister I would have to tell you that as I turn control and ownership of these assets over to you, I will also turn my responsibility, my legal trust responsibility, over to you; because you cannot have one without the other. You might go and sell or otherwise dispose of or mismanage these assets, and then your children might come back, 80 years from now, and sue me for breach of trust.

I really would like to narrow that down, because as I said earlier, this is a very crucial issue and one of the main components of the report. You must make-I suggest to you you might make a distinction between the trust responsibility and legal responsibility and accountability the minister has now, he has exercised in the past, and that which he might be required to exercise after the establishment of Indian selfgovernment and the turning over of the management of these assets. I just cannot get clear in my mind how you can have one without the other.

Mr. Peters: I guess the point we are trying to make is that there has to be a guarantee there; that trust is in terms of a guarantee that we can still, among ourselves, as a level of government, carry out all those functions of a government within that land base that we have. The trust responsibility that he has to have is to make sure that our lands are unmolested by the provincial governments; to make sure that our lands are unmolested by the federal government; to make sure that we do have equalization payments. That is the kind of trust we are talking about.

Mr. Oberle: All right. I am sorry to have to belabour this point. You are saying you only want the minister to protect your assets against other governments. In other words, if it were a band government’s intention to sell or otherwise alienate the land to other private interests or to competing interests other than government, you would not hold the minister accountable for that later on?

Mr. Peters: No, we would not, because that is the choice the band would have to make; a choice that that Indian government, at that time, would have to make in relation to giving up their land, if they wanted to do so. If they went through a proper procedure within their band, however they determine that to be, through referendum, whatever procedure they wanted—if they wanted to do that, then that would be the responsibility of that government at that time; that Indian government.

Mr. Oberle: So really when we talk about land, we are talking about, in your particular case-the special right that you would have as partners in Confederation is the protection from expropriation for any reason without your consent. Would that be an accurate … ?

Mr. Peters: Yes.

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Mr. Oberle: Okay. But other than that you would have complete control over assets and land.

Mr. Peters: Yes.

Mr. Oberle: Thank you very much.

I would like to go to another important section in your brief, and that deals with membership. I am particularly interested in the two types, the two-tier membership structure. Some of your band members will share in the collective ownership and management of assets and land, and other band members will not. Could you give me a definition of the two types of members?

Mr. Peters: First of all, I would like to make a distinction between what we determine as being Indian status and citizenship and the membership issue. First of all, the control of Indian citizenship has to be within our control. At that point we would be able to determine who was going to be an Indian, what is an Indian, and when, if it were possible to lose that Indian citizenship, you could. When we talk about membership, we talk exclusively about membership in a specific band, in a specific nation or tribe of Indian people. When we talk about a two-tier system, it is a concept that, for a band member, has to deal specifically with certain areas. If a band member were excluded from the reserve, from the band, you could still not take that citizenship away from him, but he would not be allowed to make decisions that directly affect his community.

Mr. Oberle: You also say in connection with that that to be an Indian does not necessarily mean that you will be a band member. Here I suppose you are talking about the enrolment in a general list rather than a band list of certain Indian persons who choose not to live within the collective structure of a band government, for instance urban Indians, or persons who have not earned or achieved citizenship and membership in a band. Is that correct?

Mr. Peters: Yes. When we talk about that type of thing, there are specific choices that Indian people can make right now in determining how their future will evolve as an individual, and that is what we are trying to take into account here when you make that choice as an individual. If you want to become an urban Indian, move to the city, then through that process you are making a decision as to what to do. What we are saying is: provide us with the land base; make sure we have that adequate land base; make sure that through that land base we have the right to control the resources within that land base to make sure we can supply to our people the economic opportunities that are available so that they do not have to move to the cities if they do not want to, so that the choice is not made for them by the extent of employment that is available or the conditions that are available.

Mr. Oberle: All right, but once the decision is made, if a person still chooses an urban life, then you do not wish to be accountable in terms of any fiscal responsibility that you have for band members; that once they choose to live in the city,

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leave the reserve, you do not wish to share in the expense of the social contract that is associated with that.

Mr. Peters: Well, that is a tough concept to deal with, because I do not think we are saying that we are going to cut anybody loose from the responsibilities we have as an Indian government. What we are saying is that if you can adequately provide us with the resources that we need, and then we can share that jurisdiction for those people, then we will do that: we will share that responsibility for taking care of those people whether they be in the city or in the community.

Mr. Oberle: All right. So in practical terms, would you, say if a person lives in the city, removed from the reserve which has the social amenities to schools and health care centres, and so on, on the reserve, but it is too remote for a person who lives in the city, would you enter into some kind of a fiscal arrangement with the province to deliver those services to your members in the city?

Mr. Peters: Well, that goes back to the whole concept of equalization payments. If we had the money, and if we had the right as Indian people to purchase those services where we desired to purchase those services, and the types of services we want, we could go into some kind of administrative arrangement with the province, or with the City of Toronto, or with the City of London, or with any other agency we so desire. But right now we do not have that ability to do those things; so therefore, whenever services are enacted on the reserve, they only apply specifically to certain areas.

Mr. Oberle: My final question, Mr. Chairman; I will get back later. Once you have replaced the Department of Indian Affairs, or have restructured it to be a fiscal transfer agency, and once adequate fiscal assets are transferred to your band to service your members and citizens, you would then see no difficulty in returning some of this money to some other government agency to deliver services to members not living on the reserve.

Mr. Peters: That is correct. It would be then a choice of the people in that community to make that decision; it would be the choice of that Indian government to make the decision whether or not they wanted to continue to try to be fiscally responsible. Again, it is a hard concept to deal with, and it is a hard thing to deal with, because of the very fact that people that go to the cities .. . if you take Toronto, for instance-how do we make that type of arrangement in practicality to deal with so many individuals living within the city? The concept of dealing with that concept is fine, but the reality is that it is a very difficult thing to deal with because of the financial situation and how that is structured within the Province of Ontario, within the City of Toronto.

Mr. Oberle: Okay. Can you give me a profile of a typical band member who does not share in the ownership and management of your assets and resources? Could he be a white man …

Mr. Peters: As it is set up right now?

[Page 17]

Mr. Oberle: No, as it is envisaged here. Could he be a white man having married into the band?

Mr. Peters: It could be. It could also be a white lady that married into the band. What we would foresee in that pattern when we talk about that, and it ranges in two areas, is the ability for them to have political input into what happens within that band, to collectively be a part of that band, to make decisions as to what happens to those assets. Right now, even though they would be non-Indian by nature, or maybe their children, or whatever the concept is that is finalized for citizenship, those people would have the ability to share in those resources, but not to make decisions on those resources. The people that would be outside that, who would not have the ability to share in those assets, would be members of that community that are somehow excluded, as we have not outlined any way right now to say that you could be excluded from your band membership. There could be a lot of ways. It could be criminal; it could be anything; it could be any criteria that you want to set for excluding certain people from that membership.

Mr. Oberle: So they could actually be Indian …

Mr. Peters: It could actually be an Indian also.

Mr. Oberle:—with a record of social misbehaviour, a criminal record, or psychlogical instability, or whatever criteria the band might wish to establish.

Mr. Peters: Yes. I think the onus should be placed on the band to come up with that criteria, and no one else.

Mr. Oberle: Thank you, Mr. Chairman.

The Acting Chairman (Mr. Burghardt): Thank you, Mr. Oberle.

Just if I may on this same subject, Mr. Peters. On page 17 of your brief, which in detail outlines Indian status and band membership, you say, and I quote from your brief: As the new Constitution becomes interpreted in the Courts, or as Government disavows the automatic enfranchisement policy it has pursued in the past, many “non-status Indians” may become entitled to Band membership. Where this does not result from direct action by the Indian government itself, there should be an indemnity payable to the band by the federal government equivalent to a per capita share of the Band’s equity in Band assets, including land, or $2000, whichever is greater.

I wonder if you could further expand on that, and I am just wondering how you have arrived at the figure of $2000.

Mr. Peters: Well, I suppose, first of all, the figure of $2000 is probably coming out of the air somewhere, just throwing it out as an arbitrary figure in dealing with some of the aspects of southern Ontario. Very low, yes, but it is only in response, and it is only to show you exactly what the band’s per capita shares are when we are talking about these things now. When an Indian lady that lives on our reserve marries another person

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from another reserve, another gentlemen, and leaves our reserve, she takes with her her per capita share of what is in her band. Some transfers are as little as $2, or $3, some are $6, and some may be in the range of $15,000 to $20,000. But the point we are trying to make by this is that the band’s assets on a per capita share are really limited right now in dealing with those aspects.

The Acting Chairman (Mr. Burghardt): I take it then, Mr. Peters, that the point is that you want this area recognized as such, that that figure is not necessarily the figure; you put this figure in just to try to prove a point; it is an arbitrary figure.

Mr. Peters: Yes.

The Acting Chairman (Mr. Burghardt): What is your stand now regarding Section 12.(1)(b) of the Indian Act? How does the association feel about that, in light of the recommendation of the first subcommittee regarding Indian women and the Indian Act?

Mr. Peters: We, as an affiliate of the Assembly of First Nations, dealt with that issue at the constitutional table in terms of equality, and we said, yes, we do agree with equality, and yes, we do agree that there have been injustices practiced on our women in our entire structure.

In that structure, as it stands now, whoever came up with that idea, that concept, certainly knew exactly how to deal with the issue. What it does is it goes right after the basic part government-women and their children that are excluded from membership. It is very difficult. What it does is it takes away … for reserves, for Indian tribes, nations, that are dealing with the clan system-the very essence of that community by destroying the clan system by actually taking the mother out of the community and taking her completely away from not only the band but citizenship in general in being an Indian.

So we agree that there have been injustices, and we agree that it must come back; but we also want to take it one step farther in having to deal with the very basic concept of citizenship, and that is where we get into the aspect of membership. We may be able, at that point in time, if we so desire it within the band, to exclude a woman, a man, a child, or whoever, from that membership, but certainly we could never exclude them from that right of citizenship; and that is the position we take within this association. We believe that Section 12.(1)(b) should be taken out of the Indian Act, and a lot of other sections that are in there also.

The Acting Chairman (Mr. Burghardt): I notice, too, that you recommend that Section 12.(1)(a), the double-mother clause, should be abolished, but you say abolished retroactively.

Mr. Peters: I think that came into effect around 1951 or that era. If it is not taken into account retroactively, we still stand to lose quite a few of the citizens we have within our Indian nations. We say “retroactively” because those children, who are in that position right now, currently live on reserves. The majority would be living on the reserve, and they are

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recognized as having that Indian status. So they are part of that system right now. To exclude them, it is very difficult for us to say: You can be an Indian for 21 years of your life; and when you turn 21, suddenly you are no longer an Indian. What are you then? So that is the position we take on that.

The Acting Chairman (Mr. Burghardt): Thank you Mr. Peters.

Mr. Allmand.

Mr. Allmand: Thank you, Mr. Chairman. Before I ask some questions on the brief, I want to ask a few supplementaries to the questions asked by Mr. Manly about the fishing agreement.

I was not clear, Mr. Peters, on your answer to Mr. Manly. At one point, with respect to the clause that deals with consultation with user groups, you said something like: I have no real problem with that clause. But then, as you spoke further, one got the impression you did not like it at all.

Mr. Peters: Okay.

Mr. Allmand: I just want to be clear on whether or not you think it is a good clause. I understand what it is. It has been suggested by Mr. De Bane that it does not give the user groups a veto, but it obliges them to consult if they are going to designate lakes or water or parts of lakes and so on. In order to really know your position, I am wondering if you are really opposed to it, if you could accept it or what.

Mr. Peters: Yes, I could probably accept that clause if I were also given something else in return. But I am not prepared in a negotiating situation to suddenly have something come in at the end, where they say: Okay, you either accept it or you do not accept it.

How it applies to us, as Indian organizations and Indian bands in the same manner, is that we do not need, as an Indian government, to put into this agreement that we are going to consult our people. That is a given; we are going to consult our people. For the federal and provincial governments to sign to each other that they are going to consult their people is playing with some politics here, inside this agreement.

What I would suggest and what would probably be acceptable to the rest of my colleagues in Ontario is: Sure, we are committed to consult; and we are not only committed to consult with our own people, but we are willing to consult with the non-Indian people who are going to be affected by how we negotiate our zones and negotiate any other parts of that agreement in terms of regulation. So in that respect, I would suggest maybe Mr. De Bane and Mr. Pope could exchange letters with each other outside the agreement to confirm they are going to consult with their own people.

Mr. Allmand: Thank you. That helps me understand your position.

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I would like to ask some questions about the brief. If I understand from the part of your brief dealing with Indian government control of land, you say the surrender provisions of the act should be repealed. I am not clear on whether you would like to have no surrender provisions at all or whether you would like new surrender provisions over which the Indian bands would have full control.

Mr. Peters: That is a concept we are dealing with right now. History has shown us that all these things have happened to us. We have treaties now that were negotiated. We did not come out with the same kind of treaty we went into. We have surrenders made by bands in relationship to churches, to missionaries, to all kinds of organizations, that have not really filled the bill for the Indian people. We have surrenders where annuities have not been paid. ‘All kinds of things are happening that are inconsistent with the surrenders that are there now.

What we are suggesting is: Where any of these things have been inconsistent and where Indian people have not been afforded the benefits of that surrender, then all those lands that have been in that position should revert back to the Indian people. The Indian people, at that point in time, would be able to take their land and determine themselves now, at this point in their lives, what should be surrendered and what should not be surrendered under their terms and their conditions.

Mr. Allmand: I see. For the future, you agree there should be the capacity of the band to do surrenders, but fully under their control, without any interference from the minister or department officials.

Mr. Peters: Absolutely.

Mr. Allmand: That is clear. Thank you.

With respect to the two-tier system for Indian status and band membership, if I understand it correctly, one tier would be that you would be an Indian and have the benefits of being an Indian under the law, with the responsibilities and the rights; but you may not be a member of a band. The second tier would be that you could also become a member of a band.

With respect to the first tier, that would seem to put Indians in the same way aboriginal Inuits are now. Aboriginal Inuits are not registered as Indians. They do not belong to bands. They can live in Rankin Inlet or move to Baker Lake. They can, as a matter of fact, live in Ottawa. They always remain Inuit, but they do not have the very specific type of membership of belonging to communities such as Canadian Indians do. It is an interesting concept. As I say, it has been carried on for years with the Inuits, and nobody seems to be upset. It does not seem to bother the programs for the Inuits.

But it is the first time we have heard this proposal, having heard many Indian groups; and I am just wondering whether or not you have had the chance to consult on this with other Indian organizations, including the AFN.

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Mr. Peters: We did table proposals in regard to the two-tier system with the AFN. At the same time, we proposed quite a few other things on how to deal with the concepts involved in the Constitution.

We came up with some other things in relation to this, in terms of the membership and how to deal with the equality issue. We began to look at the system. It is not a new system with the Indian people because it existed with the Indian people hundreds of years ago. It is something that was lost to the Indian people because-what happened was that the federal government became a registry for Indian people, and with that power they had as one individual in Ottawa determining what the registry was, they could then determine who was going to be an Indian and who was not. The internal system that Indian people had was broken down. It has been broken down for hundreds of years.

Mr. Allmand: You say this system existed before the Europeans came. Did it exist, for example, within nations, let us say, the Iroquois people, or did it cross over nations toothe Iroquois to Ojibway, Ojibway to Micmac and so on? Do you know that or … ?

Mr. Peters: I do not know that 100% but I do know that within certain Iroquois tribes that hypothesis existed. They realized that Indian people were Indian people. You could not give up or you could not take away from them that right to be Indian people. But what you could do was exclude them from that community, from making decisions as to how` things were going to be affected in that community, and that is exactly what we are trying to talk about in this two-tier system: the ability of people who are there, who are functioning within the community, to make decisions about the community.

Mr. Allmand: You would still have some mechanism within the Indian community in Canada to decide who was an Indian and who was not an Indian, I suppose. You would not leave that to the non-Indian government, such as the federal government. Nearly every brief that has been put to us has stated very firmly that Indian people must have the right to decide who Indians are and that should not be imposed from outside their group. Consequently, if you had such a two-tiered system, in one tier it would be the bands which would decide what the membership rules were for that band.

I would presume, if I am to make deductions from your proposals, that it would be the Indians of Canada, through their organizations, who would decide whether it should be one-quarter blood or however. Whatever rules they decide upon that it would be themselves who would decide on Indian status in Canada and not the Canadian government. Is that correct?

Mr. Peters: That is correct. I think the responsibility still lies with the Indian people to decide who Indian people are. It was at the Constitution, when specifically people said yes. We know who Indian people are and we know who Indian people are not, and even though there are a lot of people out there with mixed blood, the Indian people at the community level still know who those Indian people are and how they live.

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I think one of the criteria that have to be involved in this aspect is the retention of the cultural background that you have to have. It is vastly different from the fact … People of mixed marriages, who live on reserves, grow up within that culture and people who are not a part of that reserve system are sometimes-not all the time … phased away from the cultural aspects that we carry. It is the loss of the cultural aspects that have a direct bearing on that type of citizenship as opposed to the percentage of blood that you have. Obviously, there is going to come a time when we are going to have to set out specific criteria as to how that is going to be decided. But it is going to be the responsibility of the Indian people to set that criteria.

Mr. Allmand: So, if I understand this proposal correctly, you tabled it or presented it to the AFN but they have not made a decision on it yet. There has been no decision on it. Is that right?

Mr. Peters: Well, I think when we tabled it this past fall the proposals that we put forward may have been a little too premature because we had not even at that point decided whether or not we would be attending that conference in March. The types of things that are being presented, in terms of a two-tier system, in terms of an aboriginal council, in terms of Indian governments legislating, I think are the things that will come through the ongoing process, when those things are firmly entrenched and we get into the aspect of getting the mechanism in place and how to deal with all the items that we have.

Mr. Allmand: My final question is with respect to your part on the future role of the Department of Indian Affairs and Northern Development. You say the department should be limited to funding transfers and unique advisory services, not otherwise available. I understand those two things but I am not clear on the third one which is internal corporate needs. What do you have in mind when you suggest that as a continuing role for this department? It is summarized on page 6.

Mr. Peters: Linda has told me what this means. I will tell you what she has told me. I guess it involves aspects of … different bands are developing at different rates. How are they going to deal with those financial services that they become involved with? It is still going to be the prerogative of certain bands that, if they feel they need the department to still run certain aspects of the system for them until …

Mr. Allmand: I think I understand it now. There would be certain bands that would not be ready to take over the full corporate status that you suggest and it would be the department’s role to assist their moving towards this status. In the meanwhile they may need some of the old type of services. Fine. Thank you very much, Mr. Chairman.

The Acting Chairman (Mr. Burghardt): Thank you, Mr. Allmand. Ms Jamieson, the Assembly of First Nations.

Ms Jamieson: Thank you, Mr. Chairman. Thank you very much, Gordon Peters and colleagues, for the presentation this morning. It is quite forward looking. I was particularly

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impressed … on page 10 they have a plan if the constitutional discussions prove nonproductive. So they have plans A, B, C, and F, and I am sure others that are not even in this brief.

I wanted to ask about an area that is not covered in the brief directly and that is something that in my own personal view is very important for Indian government—a land base.

You talk about management of the land and you have discussed trust assets and who should look after the land and how surrenders should be handled, etc., but you do not deal with the issue of claims settlement. I wonder if you have any comments on the current land claims process and, in commenting, I wonder if you could tell me if you think it is important or appropriate for this committee to make any recommendations in that area.

Linda Commandant (Councillor, Gibson Reserve, Association of Iroquois and Allied Indians): As far as the current land claims policy goes, the specific claims policy of the area that we in southwestern Ontario have been dealing with primarily, the policy is inadequate. Right now you present your claim to a federal government body. That body is the people who determine whether or not that claim is valid.

As for this committee making recommendations, I think it is very important if you are looking at the whole area of Indian self-government. We have to have an expanded land base in order to assist the growth and development of our communities. We are all at very exciting times in the growth and development of our communities because we are now beginning to realize the potential that our communities have within the Indian government system. I think it would be entirely appropriate for this committee to make certain recommendations as to how the claims policy can work in expanding the land bases.

Ms Jamieson: Do you have any particular views on how the policy should change that we should consider? What do you think ought to change? I know that you have done some work in this area. Maybe you would like to touch on it now and forward something at a later stage to the committee. We would appreciate that.

Mr. Peters: Maybe I can tell you about the land claims business. First of all, one thing about this specific lands claims that has to be dealt with and rectified: As is mentioned in the Constitution, there is the protection of aboriginal and treaty rights; yet within the specific lands claims policy that exists now for Canada, which came out after the patriation of the Constitution, there is still no recognition that existing pre- Confederation treaties will be dealt with in the same terms as outlined in the Constitution. The Constitution does not talk about Confederation treaties; it says treaties. We want to make that specifically clear because Ontario and provinces that go east are the ones that are directly involved in pre- Confederation treaties so we are directly affected by those concepts that are being put forward.

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In terms of the specific lands claims policy, we found it to be very ineffective in dealing with the claims that we had put forward from Ontario. The criteria were such that we refused to put certain claims forward. Ontario was holding approximately 200 claims at one point and would not put them into the system.

We ran into such problems in dealing with the federal government when they specifically said to us that the claims process was set out specifically to deal with specific land claims and if we did not get involved in the process with the claims department in Ottawa, the ONC, then the obvious place we had to go after that was the court system. We do not have a very good record of going into the court system; therefore it is to our advantage to try to resolve our land claims through the political process rather than the legal process.

It was also stated to us in no uncertain terms that if we wanted to use the legal process every available means of defence would be used against us—technical defences, meaning that we would be spending the majority of our time fighting the technical arguments with a possibility of losing those technical arguments where the merits of our case would not even be heard in the court system. That involves the statute of limitations, the doctrine of laches and a few other things within the agreement itself.

One of the basic problems we had with the agreement itself, too, was the ability to negotiate within that agreement. Basically, Justice has 100% authority within that system, and if Justice does not agree with anything that is put forward they simply make a ruling and that is the end of the case. At that point you have the option again of going the legal route. What is really difficult about it is that some of the aspects Justice deals with on a percentage basis. Their concepts that you might be 50% right or you might be 75% right—you may be a percentage right. To me, right and wrong are right and wrong. It is cut and dry: either you are right or you are wrong. You are not 50% right or you are not 60% right; you are either right or you are wrong. But under the system that the specific lands claims operates under you can be a percentage right or you can be a percentage wrong. You deal on that basis, and if you do ever reach a settlement you are effectively paid by the percentage that you are correct. I do not know if you are 40% correct whether that is good or bad, but certainly in our aspect that is less than 50% right and that would constitute wrong. Yet you can get a 40% settlement if you negotiate that way. The alternative to negotiating that, again, is to go back to the courts.

Other problems are getting people to come to the table to negotiate with you. We have had the Gibson claim that we have been dealing with for three years now on what we feel is a very cut-and-dry case. The problem with Justice, when we got right down to the end line, was that we got involved in some semantics about what is a reserve and what is not a reserve. One year you go through certain procedures and you call it a reserve; a short time later you go through the same procedures and it is not a reserve.

Those are the types of things that we are fighting within the specific lands claims policy. If it takes you three years to go

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through a system right now, and you get to a point where you get down to the end and what they are saying to you at the end of the system is that they think you have a good chance if you go to court but they will settle with you on this basis. We could have gone to court three years ago, and we could have made the same impact three years ago in the court system that we would be making now.

Ms Jamieson: Would you see it as a positive step, given that much of the criticism really ends up being that the current federal government, or any federal government, ends up being judge, jury, funder to you and the person you are claiming against, to remove claims policy, to remove the determining voice from the federal government, make them a party to the negotiations and take the negotiations outside of strictly government-Indian relations in terms of internal government departments, which is the way it is run now? You have your federal department, you have Indian Affairs; you have ONC; and then you have your Indians—and that is basically, with one exception, maybe, in the country, the only process that is available other than courts. Would re-orienting that process so that it is a negotiating forum, that it provides equality on the side of the Indian claimant and on the side of the government and some forum that would see that that relationship would be preserved—and provincial governments if they are implicated, or others … be a positive step?

Mr. Peters: That would be a positive step. We forwarded that submission to the federal government over two years ago. We developed a process within Ontario which we said was fair and equitable to the people in Ontario in dealing with specific land claims. At that time we were fighting for better recognition through the tripartite process within Ontario and part of the Indian Commission of Ontario dealt with specific land claims.

You are right when you say that the federal government right now is judge, jury, executor. They are everything rolled into one, and that is specifically the problem now. When negotiations break down there is no way we can arbitrate that situation. It is totally in the hands of the government to determine what they want to do with that process if we do not want to negotiate any further or if we fail to come to an agreement on negotiation. So anything where we could take some of the authority away from the federal government in that dealing would be of benefit. It would be a positive step.

Ms Jamieson: Thank you. I for one will make sure we give serious attention to that in our report.

Mr. Peters: We will send you again the specific proposal that we did present to the federal and provincial government in dealing with this aspect.

Ms Jamieson: Thank you. I appreciate that.

I have a couple of other areas in the brief itself that I would like to question on. One is, the brief suggests a corporate model for Indian government in which band members become shareholders. I am wondering if you use the term “corporate”

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in a legal sense, or if you are using it to convey to people in a way that is understandable a collective body with collective rights-if you are using the word “corporate” to get that idea across or if you are using it in a legal sense. I will tell you why.

My fear is this. You become a body corporate—and I have some legal training and maybe I am getting hung up on this. You have an incorporated government. Three years from now the laws change for the company; the laws in the land that affect corporate bodies change. What happens to your government? Or you are sued. What happens to your assets? I am not trying to attribute too much malice to our legislators, but one could easily undermine, or, depending on the way you structured it, bankrupt a company and destroy Indian government.

I wonder if you have thought of that, how you dealt with that fear, and how you intended to use the word “corporate”?

Mr. Peters: We are using the word “corporate” simply as a model. It is something …

Ms Jamieson: As a figure of speech?

Mr. Peters: A figure of speech. It is something that people are very well aware of, knowing how corporations work and how they deal. If you look at the bottom of page 12, we make it very clear that when we talk about Indian government:

The Association recommends that any new form of Indian government be based on a clear model that deals with management, regulation, supervision, accountability, individual rights, voting, dissent, procedures, etc. Our Bands will consider adopting certain features of corporations, but they will not incorporate.

Ms Jamieson: That is very helpful. I am glad you have pointed that out.

Another question I have is on the model. You indicate in your summaries, on page 5, for instance, that the corporate model in many ways is appropriate, and you give some reasons. Then you say:

Other models are possible, however, and Indian Government must be based on a comprehensive model clearly expressed.

Does that mean one model for Indian government for all of Canada; or what does that mean?

Mr. Peters: No, it does not. I do not think in how we perceive Indian government one model would be acceptable for anyone within our own organization, the eight bands that we represent, or anyone across Canada. When we talk about Indian government, it must come from the community you live in. It has to be given rise in that individual locality and it must be governed within that individual locality.

We at one point in time had some proposals on the table dealing with Indian national government, and those were excluded from the NIB in years past. It has always been the feeling that the chief and council had the utmost authoritythat continued primacy of the chief and council—in dealing

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with specific issues at the band level that concern their constituents.

I am not trying to make any slurs on the system that is presently functioning for Canada, but the system as we look at it is upside down. You have people at the top telling everybody how to live their lives on a daily basis, what will affect them, and how things will happen for them every day. We would propose that it should be the other way around: that the community itself should be the judge of how they want to live, and they should pass the regulations and make the regulations as to how they live, and the constituents should be directing the politicians, the immediate politicians, as to what kind of regulations will govern their lives.

We are simply trying to cut down the number of people who go unrepresented on a large basis, the way the structure is set out right now within the Canadian government.

Ms Jamieson: Thank you. I think there is a lot of food for thought there for all of us.

The other question I have is on that page as well. I wonder why you suggest the federal government as a supervisory or regulatory agency for Indian government. We have heard a lot about government-to-government relationships in our hearings, and I just wonder how that fits. What is it that you want the federal government to supervise? Is it Indian government? And how does that fit with the government-to-government relationships about which we have heard so much? To me, much of the complaint that the committee has been hearing is that if anything, Indian governments, bands, art oversupervised, over-managed, and over-policed. So there may be some specific areas that you are looking at, and I just wonder if you would expand on that.

Maybe I can rephrase that, because I am going to add this on at the end anyway. You might want to answer both aspects. I am wondering, the way this is put, if this is supportive of a type of charter system where the band comes up with a kind of charter and then the federal government has some overseeing role. Is that the direction you would want? We have had presentations from—one that comes to mind is the Sechelt Band, which proposes that type of relationship, where the band has its own constitution, which becomes a charter; once it is satisfactory to the minister, that is the way the band operates, but there still is some type of supervisory role that rests with the minister. Is that the direction you want to go in?

Mr. Peters: No. What we had proposed, and what this was proposing was—in itself, this statement was a statement of what is happening within the supervisory and regulatory agencies of the government right now. It is further explained in the brief—the inadequacies of that system, with the minister now functioning in that capacity. It explains the problems that that presents now and why it should not be part of the new system of Indian government.

Ms Jamieson: So it has to be read in that context. Okay. I thought I read here somewhere, although I cannot find it for the life of me now, that you have asked for, or suggested there

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be, with any legislation which is passed, some kind of an Indian consent mechanism. Is that here?

Mr. Peters: No. It is not in this brief. It was in the constitutional brief which we had presented to the Assembly of First Nations in regard to consent.

Ms Jamieson: We are not clear about legislation. We had a brief yesterday and on other occasions saying, in fact, that no legislation ought to be passed unless it is demonstrated to be acceptable to Indian people. The obvious question is, how do you do that? Many people argue that there is a committee system now; that a bill goes through the House and, after first and second reading, it goes to committee, so Indian people have lots of opportunity, it is argued, to come before the committee and make representations. It is even argued that maybe we should put more Indians on these committees, and that will provide for further input. Then there is a lot of other people who are saying, no, that is not what we mean by Indian consent, just to have a couple of Indians around to give their ideas.

So I wonder how you see that. Is that consent element important? If so, do the current committee ideas fit? If not, what would fit?

Mr. Peters: Okay. Maybe I could start with the end one first in dealing with the committee aspect. We do not think that the committees as they are currently structured are adequate to represent the views of Indian people. It is taken under the direction of the federal government that we now are members of Canada and that, as constituents in those federal ridings, the parliamentarians who sit on these committees speak for us. We suggest that is not correct.

Through the constitutional talks, what we were trying to establish was a definite relationship between us and Canada. The matter of whether or not we are citizens had to be dealt with at that point. We did try to deal with that aspect, and I think we are still dealing with that aspect—that being that Indian people have not yet joined Confederation. It was attempted to be made clear by our speakers, who said that every province which has joined Confederation to this point has had some special privileges granted to it. We would like the same thing granted to us. If we were to join as Indian nations in the Confederation of Canada, we would like to be granted some of those special privileges other people have been granted, and especially in terms of equalization payments which go to the provinces right now.

I guess when we talk about consent, our idea of consent extends into two areas: yes, we need consent over legislation; yes, we need consent over what happens to us within the Constitution in matters which directly affect us. We have looked at several mechanisms to deal with that type of consent. We looked at the model of guaranteed seats which was available to the Maori people in Australia and New Zealand, and realized that such an arrangement did not happen very often. That model was not successful, and they did not get the

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use out of it which they had hoped for. Those guaranteed seats were then swallowed up by the rest of the voting members, and they did not have any direct consent over what was to happen.

We proposed an aboriginal council to sit outside the legislative body, which would be an Indian type of legislative body. We called it an aboriginal council. We could go with an aboriginal council from this organization and deal with all the problems which exist in terms of constitutional change and legislative change at once, if we had to; we could deal specifically also with an Indian council that could deal directly with those matters—which is where consent would come out. And consent would have to be given by that body before any legislation could be enacted or before any changes could be enacted to the Constitution.

Ms Jamieson: Is this a national council?

Mr. Peters: Yes. We proposed a national council. It could very well work within the system on representation. We talked about the theory of government a little while ago as to how decisions would be made, and very serious consideration would have to be given as to what types of authority that council had overall, and whether or not representation gave them the right to make decisions for Indian people on that basis. Consideration would be necessary about whether the decisions had to made within that specific region those representatives came from and were being carried into that council.

Ms Jamieson: My colleagues on this committee are members of Parliament and probably would be interested in this, so I will ask it on their behalf. How would this council relate to the House of Commons, or how would it relate to the Senate, in a practical sense? Would it be a separate chamber, or what?

Mr. Peters: Okay. Yes. It would be a separate chamber, similar to a senate.

Ms Jamieson: A special senate?

Mr. Peters: Yes, a special senate.

Mr. Oberle: Sober second thoughts with veto powers on Indian matters.

Ms Jamieson: Did you hear that? Mr. Oberle is suggesting that it would be a sober second-thoughts chamber with veto powers on Indian matters. I do not know whether you want to comment on that or not.

Mr. Oberle: Keeping in mind that our senators are not always sober.

The Acting Chairman (Mr. Burghardt): Shame!

Ms Jamieson: My next question is this. When you talk about Indians not having joined Confederation and some Indians use the word “sovereignty”, we often see a reaction in the non-Indian public which, in my opinion, is a result of misunderstanding, perhaps a little fear. How do you deal with that? There are two things that seem to be sparked in people’s minds when Indians talk about quasi-sovereignty or sovereignty and not having joined Confederation. One is that Indians are separatists, and they want to destroy the country,

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or they want to take back their land and throw everybody out. The other thing is that it is going to cost the Canadian taxpayer a fortune to set things right or to fulfil Indian government aspirations. How do you deal with those two fears?

Mr. Peters: Basically, in the constitutional talks, Prime Minister Trudeau said, yes, there is something there of self-determination, self-control for Indian people, and it ranges somewhere in between sovereignty and assimilation. Now that is quite a broad spectrum to get involved in, because we are currently undergoing, and have been undergoing, the total assimilation policies within the government structure.

For us to deal with sovereignty, all we say is that we are talking about self-determination. We have the stable things which are set out by the international covenants on civil and political life. We have the stable population, the stable land base. There are three or four other criteria which they set out. We have those things, therefore we have the right to be self-determined in our aspirations. But we are only talking about over the land that we now have, or over the future lands that we may acquire through whatever agreements or settlements that we make with the government. We are talking about control over those areas.

We are talking about the cost factors involved. The cost factor which is now involved is very high, when you look at all the central agencies, all the people, all the time and everything which is spent in dealing with the Indian people just more or less to say, get rid of them. The other option is that if you get away from the assimilation and you start forward to the sovereignty aspect of it—that is, sovereignty over our specific lands again, the costs of educating, the cost of bringing people in line in development phases and making people self-sufficient, would probably be less over a period of time than what already has been spent in getting us to this point where we are now.

When we talk about overall costs, we say, yes, we have a right to be part of the plan for equalization payments, because we made the first instalment this country has-which is the land. It is all the land and resources now under federal and provincial control. That is the one-time contribution we have given to this country. Therefore we think we have the right to receive equalization payments in the same way as any province has or any other area. We have the right to those things because we did contribute something to this country.

Ms Jamieson: Thank you.

You have raised the issue of international covenants, and I would like to return briefly to the issue of the trust relationship. We discussed it earlier, and in your brief it is related mainly, as I understand it, to assets and the legal trust responsibility. Many witnesses have argued before us that there is a higher trust responsibility, and I notice you say you are not interested in the so-called “political” trust. I am not sure if you are talking about that as the word “political” was used in the Musqueam case, but it has been argued before this

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committee that there are international responsibilities which oblige Canada, as a sort of colonial government which has received some of the colonial legacy of what has happened historically in this country, to promote the development of Indian self-government, and that is a form of trust responsibility. Do you have any views on that? Is that something your association has thought about or subscribes to?

Mr. Peters: We have to think in those terms also because we specifically deal with treaties. When we talk about the foundations of our nations, where our rights flow from, the inherent abilities we possess, we remember that they came a long time ago. They came to us and we have never given those up.

What we have done is entrust certain governments to make sure certain things, especially our land, are protected. That is the trust we are still talking about, to make sure we are able to live on our lands, that our lands are unmolested and that this goes on as long as we want it to continue.

Internationally, as sovereign people at that point in time, we say we had the right to make those treaties. We did not make treaties as social contracts, as they are purported to be at this point in time. Our treaties we made at that time were made for a specific reason. We were a military ally at that time. We were a force to be reckoned with at that time; but now, because of the fact that we do not have the population and we do not have the military force we once had in determining how these treaties should be made, it is taken that we had social contracts, that they can be taken away from us and that there is no overall trust responsibility there to make sure we are protected. That is the reason why we went into those aspects.

We have not given up on the international aspects yet. We do not intend to give up on the international aspects, because currently, if you look at some of the international treaties that are still wide open … For example, take the J Circular, which recognizes that international ability. We still have to deal with those things; we still have that international flavour for Indian nations, and we are not about to give that up.

Ms Jamieson: Thank you. I understand now your comments on trust.

I have one final question, and that is on page 8, when you talk about Indian government control of land. In the third item there, you say:

Surrendered lands should be returned to reserve status subject to existing interests.

Aside from the interesting use of the word “existing”, why is this included in your brief?

Mr. Peters: Primarily, there has to be an absolute connection between land resources and self-sufficiency in Indian

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government. Without land, without resources, there is no selfsufficiency; and without being self-sufficient, there is no Indian government. So it is our premise that we have to have the land before we can actually make the advancements in the resource development to attain that self-sufficiency.

As to the sort of lands we are talking about, as I explained earlier, there are a lot of cases now in regard to surrendered lands where the land base that was surrendered was done so under different terms and conditions, whether legally or illegally. What we are talking about is the surrendered lands that have been taken illegally and should be returned. They should be returned to reserve status immediately, subject to the existing interest that is now there, as we have put it.

We are not about to say we are going to throw everybody off their land, we are going to take all this land back, and suddenly, we are going to become the masters of all this land. But we certainly would like the government to recognize that our land was taken away from us through a lot of misrepresentation, and we want that land back.

Ms Jamieson: I think that is a useful point to make, because you deal with the issue that you want the land but you do not want to displace people who are currently living on the land, so there are no threats to those people.

Second, just for the information of committee members, there is a great deal of land- in this area of the country that was surrendered for lease or for sale. Correct me if I am wrong. Much of the land was neither sold nor leased, and it remains in limbo under the control of the Dominion of Canada, and in many instances under the 1924 land agreement, with the provincial government having underlying title. So these lands are in limbo at the moment, and many of the bands are seeking their return. Is that an accurate statement?

Mr. Peters: Yes, that is an accurate statement; and we tried to point that out in our summary. If you take a look at our summary, we show you the area of reserves or territory our reserves now encompass. If you take a look at our original territory or the original reserves we had . .. We are not talking about 100 or 200 years ago; we are talking about things that have happened during World War 1 and World War II, that era. When we deal with these land questions, we automatically go back to the Indian Act; and if you look at the chronology there and what happened in 1929-50—some years ago— Indian people were not even recognized as human beings. They did not even have the right to deal with this kind of land mass they had, and that is why the original is so much greater than the territory we now have.

Those are the surrendered lands we are talking about, some of the lands that were surrendered and some of the lands that were not surrendered.

Ms Jamieson: One final question occurs to me, Mr. Chairman. I hope you will allow me to put it.

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Much of the brief talks about the Indian Act and amending the Indian Act. Many people have said they are looking to this committee to make recommendations well beyond the Indian Act. They have said tinkering with it is not going to allow for Indian government to operate. Are your views that we should deal with changes through the Indian Act only, or are your views this way because you think that is what is most possible? Are you looking for other forms of legislation? Are your views strongly held that it is the Indian Act we should be dealing with?

Mr. Peters: It comes to mind to us that the terms of reference of this committee deal with the fiscal and administrative relationships that evolve from the federal government to Indian people. With that in mind, we recognize the limitations this committee has in being able to deal with these types and forms of legislation. We believe there should be changes to the Indian Act; we also believe there should be changes to other legislation in regard to Indian people. But moreover, what we are saying to this committee is to bring the administrative acts, such as the Indian Act, in line with the recognition that the Constitution is giving Indian people this day. Those are the things that have to be looked at.

I know the federal and provincial governments do not want to deal with that specifically in terms of enforceable rights; but at some point in time, if they want to have us in their Constitution and if they want to have our contribution recognized to what Canada is today, they are going to have to deal, with us on enforceable rights. It is going to come down to that. So all we are saying is yes, bring legislation in line, because we know what our rights are. We know we have enforceable rights, and we are asking this committee to help us shape these things up so that we can be recognized as having those rights.

Ms Jamieson: So you have dealt with the Indian Act as the legislation that currently affects Indian people the most; but you want the committee to make recommendations with respect to other legislation, if in fact the conclusion we come to is to make Indian government the interface in Canadian law for Indian government. Is that right? Am I understanding you?

Mr. Peters: We would like to take some of the administrative aspects of the Indian Act and eliminate the discretionary powers of the minister; and in terms of legislation, when we talk about equalization payments, block funding or those types of things, we would like to see them also legislated into being.

We would like to see Section 91(24) expanded to include all the things it should include. We can talk about that in terms of the Constitution as it exists and in the Constitution if it does not exist. It is still there, and it is still federal responsibility to be able to deal with those things.

All we are asking is that this committee realize that not only the Indian Act must be changed, but there should be new enabling legislation to direct the Constitution with the responsibilities that the Constitution outlines towards Indian people now.

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Ms Jamieson: Thank you, Mr. Chairman. This was such an interesting and well presented brief, I have many more questions; but I will leave it there for the moment. Thank you.

The Acting Chairman (Mr. Burghardt): Thank you, Ms Jamieson, for those interventions.

Ms Isaac.

Ms Sandra Isaac (Liaison Member of the Committee, Native Women’s Association of Canada): Thank you, Mr. Chairman.

I have two questions. On page 10 of your brief, it states:

It should also be noted that the Association does not insist on purely federal interaction; our Bands have dealt, and will continue to deal, with the provincial government in the areas of common concern and mutual benefit …

—as you have been stating throughout the presentation.

Now, would one of the areas of common benefit, for example, be Indian child welfare, as already done by some provinces through tripartite agreements, where we utilize the services and training of the province better to control the native children in care; or do you prefer federal legislation in this area?

Mr. Peters: I think it comes down to a choice of what we want. When we go back to it, we say we do not necessarily need strictly federal interaction. What we do need, when we talk about those resources that we need, is we need those financial resources to put us in a position so that if we want to go with the provincial government and we want to say to them, yes, we would like to buy some services from you, in determining how we will develop our child welfare system, how we will decide what adoption is, how we will decide all the things that go into that omnibus legislation that they are preparing, through the province—if we want to buy into those services, then we will buy into those services. If we do not want to buy into those services and we want to maintain control with the federal government, then we can go that way; and if we want to buy our services from individuals, we will buy them from individuals. But we have to have the choice of where we purchase our services.

Ms Isaac: Okay. Thank you.

On page 16 is something that maybe you could elaborate on, your two-tier system; first where you say:

Federal legislation would recognize all persons Constitutionally “Indian” as Indians for the purpose of Indian programs. It is acknowledged that not all programs will necessarily be available to all Indians.

Could you elaborate on this? Would you mean there, for instance, that off-reserve Indians—these programs will be available to them, or will they not?

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Mr. Peters: What we were talking about there-and I went over that a little while ago, when I was trying to make clear that we are not—when we say that not all programs will be necessarily available to all Indian people, we were trying to determine what kind of jurisdiction we would be able to have and what kind of agreements we would be able to make with the provinces or with other agencies where our people may be located. What we are talking aabout overall is certain programs such as health, education—programs which are currently there now and which the government is trying to limit as to where those services are available.

Ms Isaac: And will be expanded.

Mr. Peters: Right. So what we are talking about here is in health, you do not have to be living on the reserve to have the benefits of the health services, or you do not have to be living on the reserve to get the benefits of university education.

Ms Isaac: As long as you are recognized by the band.

Mr. Peters: Right.

Ms Isaac: Yes. I see. Okay, thank you very much. The Acting Chairman (Mr. Burghardt): Thank you, Ms Isaac.

Mr. Allmand, you had a comment.

Mr. Allmand: I have an additional question.

On page 10, the brief points out that a lot could be done right now in Indian self-government because the Parliament of Canada has the constitutional right, power, and freedom to act without the provinces to establish such Indian self-government, under Section 91(24). And that is correct. The federal government and Parliament, through its constitutional powers, could with bilateral consultation with the Indian people establish, through legislation, Indian self-government. However, it would not have the protection of entrenchment. Another government could come along in the next election or the following election and say, we do not like that kind of thing, and just amend it, unfortunately; whereas when it is entrenched, it is very difficult for any government of the day to change it, because they have to go through the constitutional process. I just want to make that clear.

At the first ministers’ conference on aboriginal rights, in the opening statement of the Prime Minister, he made some proposals which went beyond what he ever proposed before. As you said, he rejected assimilation and he rejected full sovereignty, but he said we are ready to discuss anything in between. Do you think it would be a good idea to urge bilateral discussions between the federal government and the Indian people of Canada to go ahead on their own to establish Indian self-government before we can get the provinces on-side and entrench it; in other words, as a first step, put Indian selfgovernment in legislation as a result of bilateral negotiations with the federal government and then continue to work for entrenchment through the constitutional processes with the provinces, which may not come until later?

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Mr. Peters: About that statement, maybe we could even go a step beyond that; and it is what we practise at the band level right now. We as Indian people have to make sure that our people are well aware of the rights they have and the ability to practice the things they have within their power. At that point we can have bilateral negotiations with the federal government. We can negotiate with them. We can have the things implemented that are not there now. We talk about the expansion of 91(24). We also talk about the ability to practise; and that has to go hand in hand.

If we have those legislated and we are practising them, it is very difficult for the provinces then to come back to us and say, we are sorry, but we do not recognize that you have any form of self-government. When you are actually practising it, when the actual government is already legislating it, it is like the right of use of occupancy. If you are there, you are there. You may not have legal title to that land, but you are there, and by the fact that you occupy it, you are going to keep it. That is the type of thing we are looking at in terms of Indian governments.

If we waited for the provincial governments and the federal government to come to terms to make a constitutional amendment, as I said earlier, we could be waiting for quite a while, and the resurgence of what we have now could be dampened.

Mr. Allmand: Thank you.

The Acting Chairman (Mr. Burghardt): Thank you, Mr. Allmand.

I would just like to refer to page 10 briefly as well, because you say:

The Association is not dogmatic in terms of self-government as an aboriginal, treaty or other Constitutional right.

I take it from your comments this morning, and also from the brief that has been presented, that you are not dogmatic in a lot of these areas; and I am especially concerned about the question of complete sovereignty—Ms Jamieson earlier referred to it—and also the question of land claims, because sometimes statements are made and they are interpreted by non-native people as meaning just that, complete sovereignty, or that when you talk about land claims, you intend to take over many of these lands and people will be dissociated from those lands. I just want to have you further underline your thoughts on that so we completely understand your stand regarding those two issues.

Mr. Peters: Okay. First of all, when we say we are not dogmatic about self-government as an aboriginal, treaty, or other constitutional right, what we are saying is very basically what I just said to Mr. Alimand, that we do not care how we get to self-government, as long as we get there. If we wait for that right to be entrenched, it may never be entrenched. But as long as we are practising that ability, and as long as we are

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working towards the goal of practising that for ourselves, then we know we will get there at some time.

We talked a little while ago about full sovereignty. We are talking about self-determination and control of our own lands. When we talk about surrender of lands, again we are saying that we are not about to have people removed from their land. We are there as an existing interest that is there, has been there. We are prepared to negotiate that. We are prepared to do something about that so that we can survive and co-exist in this country without having always to be faced with confrontation with the people or with the governments.

The Acting Chairman (Mr. Burghardt): I just want to ask Chief Day a question, because he has been sitting there and has not had the opportunity to comment, although he has been welcome to do so.

Yesterday at our hearings at Kettle Point there was a particular brief on economic development that was presented to us and I asked the question of Chief Deleary of the Chippewas to comment on the wood-working plant and company that you have operating on the Oneida Reserve. Without going into a lot of detail, but for the sake of our record and the committee, I wonder whether you could just tell us how that is operating and show how an Indian community can operate its own facility and try to develop its own economic base.

Chief Alfred Day (Oneida Reserve): Thank you, Mr. Chairman.

I am not sure how much detail you want me to go into. We first thought of a concept of some type of employment approximately three years ago, and various things were done with the help of the government. We decided that a woodworking plant would be the best option available to us. It has been started with the help of the government, as you mentioned. We feel it goes a long way towards helping us, but at the same time it is only one example of what could happen.

A number of other bands would like to do something along the same line, but they do not necessarily have the right approach. They do not follow the regulations of the department correctly or what have you. There is so much bureaucratic red tape that the Department of Indian Affairs throws at us that it is really hard to try to develop these employment opportunities for our people. It takes a long time to get into this type of system and hopefully, in our case at Oneida, eventually it will be a flourishing business, and it will provide a lot of employment opportunities.

The Acting Chairman (Mr. Burghardt): How many people do you have employed there now?

Chief Day: We currently have 10.

The Acting Chairman (Mr. Burghardt): And how are sales?

Chief Day: Well, some of the people told us we picked the worst possible time to start our business. It is fluctuating, but we hope to pick up in the near future.

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The Acting Chairman (Mr. Burghardt): Thank you very much, Chief Day.

Mr. Peters.

Mr. Peters: Mr. Chairman, I would like to make a comment in regard to economic development. We talk about a lot of specific businesses or relations with the surrounding communities that we develop in our areas, but what should be noted is that we have not become involved this morning in the administrative aspect of the department and how they funnel money and channel stuff to us.

It has to be clearly understood by this committee that within the system that we deal with we are penalized for economic development. If we as Indian people advance, if we become aggressive, start into your own phasing, search for funding from other sources, we are cut off from further funding from the department for our projects.

In the Ontario region we went up to about 19% of the national budget for an overall budget; we are down to about 17% this year, which means that Ontario will be taking a tremendous cut in financing; and on top of that we have again in the last few weeks lost $900,000 in economic development. That is almost $1 million we just lost last week in economic development to the British Columbia fishermen.

When we talk about economic development here in Ontario, yes, it is fine, we have specific places where we do things and we have specific reserves that have development, but those are the exceptions. It must be noted that that is the exception because there are a heck of a lot of other reserves around that have absolutely nothing in terms of employment. While we talk about that type of development, at the same time we are losing 2% of the national budget and we are losing almost an additional $1 million after that point in economic development. Those things have to go on the record, how those things are administered in Ontario.

The Acting Chairman (Mr. Burghardt): Thank you very much. I think we have had a very full and detailed hearing from the Association of Iroquois and Allied Indians.

To Gordon Peters, the President, our thanks for being lucid in your comments and certainly detailed in the brief; also to Linda Commandant, Councillor on the Gibson Reserve, and Chief Alfred Day from the Oneida Reserve. On behalf of committee members, I thank you very much for this presentation. It will help the committee greatly in writing its report.

Mr. Peters: Before we break, could I ask this committee some questions?

The Acting Chairman (Mr. Burghardt): Well, yes, okay, that is acceptable. We are starting to run out of time, but go ahead. We will see how long it goes.

Mr. Peters: Okay. First of all, I will give you the history of why I want to ask these questions.

First of all, I was part of the National Indian Brotherhood, which at one time had asked for the federal inquiry into how

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the department was spending the moneys now being appropriated by Parliament for Indian people.

Last year when this committee was being struck, there were certain specific terms of references that we had agreed to through the NIB joint council of chiefs for Canada, but those were changed, I think, on the last day or the day before Parliament rose in the spring.

We did agree to certain procedures as to how that committee would carry out its function, and now we have run into some difficulty at the first ministers’ conference as to what kind of interim report should be issued, things that happened to your committee in terms of intervention from the government of the day.

What we would like to find out from you is what alternatives do we have as Indian people to the report that you will be drafting on behalf of Indian people and the recommendations that they have given this committee this fall? How were we guaranteed in any way, shape or form that all the concepts and ideas that we are putting forward to this committee will be recognized and will be dealt with according to the concept of Indian government that we are putting forward?

The Acting Chairman (Mr. Oberle): I will attempt to answer it first. You should know that this committee functions totally independently of the government. Once the terms of reference had been negotiated with the minister on behalf of the government and the opposition parties, basically represented by Mr. Manly and myself … I think you were part of the negotiation. Once we had arrived at an agreement on the terms of reference which included the membership of ex officio members representing the national native associations, we then set out to do our work. We work out our own schedule; we operate within the terms of reference which are rather broad.

The concession we had to make at the time was that the question of discrimination on the grounds of sex inherent in the Indian Act had to be dealt with first and a deadline was put on the committee as to when it had to report. We chose to shorten that deadline and get on with the main work because we knew that the question of members would recur; that you could not discuss self-government without dealing with the question of membership.

We did all this and we are now left to our own discretion, our own devices. We schedule our own meetings and witnesses and no one except the members around the table will have any influence on the content of the report. Naturally, it would be very difficult to reflect fairly and adequately all recommendations that we receive. We have to exercise some judgment and some discretion.

I will give the other members an opportunity to reflect their own ideas.

I have served on the Indian Affairs committee for the last ten years. I see this work as a culmination of 10 years of work

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in trying to arrive at an understanding and an appreciation of the legitimate concerns and the legitimate aspirations that Indian people have.

I see the report that will be produced by this committee not only as a basis for very significant development in terms of changes to the Indian Act and the relationship between the partners of Confederation and Indian people. I also see it as a basis for the agenda which will lead to constitutional changes, and it will be the basis for further constitutional discussions.

So let me tell you that the work that you have expanded on in putting together your brief is not in vain and will receive serious consideration.

Mr. Manly, did you wish to add to that?

Mr. Manly: Thank you very much, Mr. Chairman.

I think your question is a very important one. The whole question of the way in which the government sometimes tries to lean on committees is one that we, as a committee, want to be very careful of. We did experience the government leaning on us a little bit prior to the constitutional conference, and I think that that is something we are very concerned about as we go about drafting our report in terms of what guarantees you have as to what will be in the report.

I do not think you have any kind of iron-clad guarantee, but speaking in a non-partisan way, I think the members of this committee are all impressed and concerned with the issues of Indian self-government; that the testimony that has been presented to us has been good and has been helpful, and that that has affected our thinking a great deal. And that is going to be reflected in the report. In addition to that, we have a representative from the Assembly of First Nations who will share in the drafting of the report, and so I think the drafting process and the report process will be a helpful part of this committee’s work. But as I say, there is no iron-clad guarantee.

I think our job as members of Parliament is to take very seriously the kind of testimony that we hear in places like London, and to consider this and to weigh it in the entire context of the Canadian federation. I think we will do this, and I look forward to a very positive report and one that I hope will be acceptable to Indian people.

Thank you.

Mr. Peters: I have one last question in regard to the drafting of this report. How much emphasis is going to be put on the four studies that have been commissioned by this group in regard to trying to determine how many dollars are coming to the bands, and what percentage is to be used by the department- things like that?

Mr. Oberle: The studies that we have commissioned are independent from the departmental budget. We operate as a

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separate entity. As a matter of fact, I made a note yesterday, and I want to recommend that to my colleagues, that the studies that will help us write the report, because they are dealing in key areas, should be printed and maybe made available, at least to all the witnesses who have appeared before us, so that they too can arrive at an idea of how we balanced and reconciled all the different ideas that came before us and how we arrived at our conclusions.

So if you are asking whether these studies and the money that we are spending will put a strain on the budget of the department, they will not; we are a separate entity.

The Acting Chairman (Mr. Burghardt): Ms Jamieson.

Ms Jamieson: First of all, on the studies, I learned in participating on this committee that it was not a usual thing for committees to go out and commission independent studies; that we had to seek that authority specifically. It is not so? Well, this is the argument that I was given when we argued for the independent studies, because we were originally referred to departmental files, etc., and it was important to many members that we go outside and get independent studies. I think it depends on what comes back, what the studies look like, how much we will use them in our report. But I personally will support, as Frank Oberle said, that we release those studies to the public, at least to the witnesses that have been before us.

On the other two issues that you have raised, the vulnerability of this committee to government leaning, I think we will have to see how we play that out over the next few months until we come to a report. Jim Manly is quite right when he reports that we did experience some leaning before the constitutional conference, and that is a test to this committee, and that is a test to each member individually, to ensure that we act as a committee and that we act in a non-partisan manner, because this committee is, after all, responsible not to the government but to the House of Commons.

I bear a particular responsibility, I think, and I intend to exercise that responsibility in a very watchful manner. I intend to keep a sort of watching brief, almost like a hawk, on how this committee operates and how much government interference, if any, is attempted to be exercised over this committee, because that is not why the Assembly of First Nations is working with this committee. This is really an experimental committee, and we will have to evaluate for ourselves how it works and what kind of impact we have—good, bad—and what we end up with.

Insofar as a guarantee of how much will be used of the evidence in the report, there is no guarantee. Again, it will be a test of us, as members and as a committee, to see how accurately we reflect what we have heard. I am hoping that I and our researcher will be able to impact on that favourably.

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Now, the onus then falls, once the report comes out, after we have done the best job we can, again on the witnesses, on the Indian public, who I hope will holler loudly if they like it, and just as loudly if they do not like what the report says.

So I hope it is not taken, and I do not think it is, that just because the Assembly of First Nations is participating on this committee that naturally implies national acceptance of its report. On the contrary. And this is where the ball will fall to the Indian court to make its views known as to the contents of the report, as to how accurately it reflects what evidence you have provided and how responsive the recommendations have been to the needs and the aspirations that you have expressed.

Those are my comments, Mr. Chairman.

The Acting Chairman (Mr. Burghardt): Thank you.

If I might just further comment on that, regarding the presence of ex officio members on this committee, and certainly on the first subcommittee, this was a first, really, because parliamentary committees operate under the jurisdiction of Parliament and strictly with members of Parliament as members. Because of the concern of the entire standing committee on Indian Affairs in dealing with this matter, and to develop a very trustworthy and honest relationship with the various native organizations, it was agreed that we would have representations from the various native organizations as ex officio members on this committee.

I can say, as chairman of the first subcommittee, and Mr. Oberle and Mr. Manly were members of that committee as well, that we received a great deal of benefit from the representation by the native organizations, and their researchers as well, too, did a remarkable job in helping us write the report. Now, I am sure there were many aspects there was not total agreement on, but we were able to arrive at a consensus in the report, which was accepted by the standing committee.

I would think this committee would operate in the same manner, and I, for one, certainly from what I have seen on the part of the representations of native organizations, and especially in this committee the work of Ms Jamieson—I think you have no fear that you are not going to be properly represented and your concerns really taken to heart, because not only the members of the committee but especially Ms Jamieson have done a remarkable job, from what I have been able to see thus far in that area. So I think you should be assured that the committee will try to come out with a balanced report in this area.

I believe Mr. Allmand had a comment on this same subject.

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Mr. Allmand: Yes. With respect to the studies, to begin with, those studies are paid for out of the House of Commons budget and not the Department of Indian Affairs budget.

Secondly, I look on those research projects as merely providing very detailed specific information and not making any recommendations on policy. In other words, they will tell us very specifically—one of them—how much is being spent on Indian matters through all departments, including Employment and Immigration, Health and Welfare, God knows what. It will not say to us, you should do this or you should not do that. Those kinds of recommendations come from our Indian witnesses, and we will have to decide what we recommend. But even if the research reports should make recommendations on policy, which I am not expecting, they would only be four of several hundreds of inputs that we are getting from all over Canada. I look on them basically as a source of information and not policy recommendations.

Finally, I was kidding a bit at the beginning when the chairman, introducing us, referred to me as representing the Liberal government and I said I was not. But I try to make that point, because I am a member of the Liberal Party in the House of Commons, but I do not represent the minister or the Cabinet. We have a member on this committee, who is not here today, who does. He is the parliamentary secretary to Mr. Munro, and he is the government representative on the committee. The rest of us who are Liberals are expected to listen to the evidence, to the input, and make our recommendations as we see them flowing from the input of our witnesses, and not simply to act as spokesmen for the government. That is the approach that I take on the committee and I hope, when we make our report, it will exemplify that. I agree with Mr. Oberle that the reports the research people put out—which will be very valuable information for everybody—we make public.

The Acting Chairman (Mr. Burghardt): Ms Jamieson.

Ms Jamieson: I have just one final thing to add to what Mr. Allmand was saying, and that is that the government of the day will have its time to respond to the report as well, because under the new rules in the House, as I understand it, this committee requests a comprehensive—the way it is worded uses the word “comprehensive”—response to our report. The government must table within 120 days that response. So the government will have its time to comment on the committee’s activity and that is the appropriate time for the government to comment.

Thank you.

The Acting Chairman (Mr. Burghardt): One final question? Is that it? Again, thank you very much for your presentation and your comments. We appreciate it very much.

Just before we break for about five minutes, I suggest that we move on to the next witness, and I think we can probably

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complete our hearings very shortly without taking a lunch break, if that is the agreement of the committee.

The other thing is that I need agreement from the committee, for the record, that we do append the presentation from page 4 on, so that it can be printed and become part of the record. Is that agreed?

Some hon. Members: Agreed.

The Chairman: Thank you very much. We will break . . .

Mr. Peters: I just wanted to thank you for the reassurance that the studies that have been commissioned will come back to the Indian people, so that they will also be able to observe those. And I would like to thank the parliamentarians who have taken the time to sit on this committee to listen to the concerns of Indian people, their aspirations. Also I would like to thank Mr. Oberle for wearing the excellent pin that he has on his lapel. Thank you very much.

The Acting Chairman (Mr. Burghardt): He changes pins wherever he goes—I should say that. He is a true politician. All right, we will break for a few minutes and resume as quickly as possible.

The Acting Chairman (Mr. Burghardt): We will continue our hearings today by welcoming our second witness, Jeanette Corbiere Lavell, who is here on behalf of the Native Women’s Association of Canada. Ms Lavell, we welcome you, and your name is certainly very well known to anyone associated with Indian affairs, and I am sure to many other people as well across this country. So we appreciate your presence here today on behalf of the Native Women’s Association of Canada.

I will introduce my colleagues to you: Mr. Frank Oberle, representing the Conservative Party, a member of Parliament from British Columbia; Mr. Jim Manly, from the New Democratic Party, also from British Columbia; the Hon. Warren Allmand, from Quebec, a former Minister of Indian Affairs; and I am Jack Burghardt—it just so happens from London here—a member of Parliament.

Also at the table, and I am sure she will be here in just a few minutes, is Ms Roberta Jamieson, who is an ex-officio member of the Assembly of First Nations, and Ms Sandra Isaac, who is a liaison member of the Native Women’s Association of Canada.

Do you have an opening statement you would like to make at this time?

Ms Jeanette Corbiere Lavell (Member, Native Women’s Association of Canada): Yes and no. First of all, I would just like to thank the committee for giving me the opportunity to

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make a presention to you, and to voice some of my own concerns and opinions. As well, the native women, because I feel if it were not for them I perhaps would not have had the opportunity to even be here. It is good to see some people that I have been familiar with, like Roberta; I have worked with her in the past, and also Mr. Allmand; I served on one of your committees within the Justice department. Mind you, this has all been a few years, when I was quite active with the Native Women’s Association.

For the past few years, I have been back working among my own people with the result that I may not be as familiar with a lot of the questions that you have been looking at. However, I would like to gear my presentation more to how the Indian Act is affecting us as native women, generally as well as specifically; the kinds of attitudes and things that I have had to live with because of this section within the Indian Act, which mainly is Section 12.(1)(b).

I did not have the time to make an actual document; however, I will be submitting one for your consideration when you are writing up your conclusions. So that will be forthcoming as soon as I get it together, but I will briefly go back over some of the things that have happened in the past just to refresh your memory.

I was born and brought up on the Wikwemikong Reserve. I speak my own language; I am Ojibway. I have taught younger children Ojibway. I have also been quite active in native studies. My people are still all on the Wikwemikong Reserve. My grandmother is still there; she is now 87 years old and she is considered one of the elders of that community. My parents are there, quite active. My brother is also living there. As the Indian people here realize, you are related to practically the whole reserve. Such is the situation with me and my reserve. So that is the background I come from.

However, in 1970 I married someone who is not from my reserve—someone, in fact, who is not Indian … and because of Section 12.(1)(b), I lost every legal right that I had to ever participate within my own community legally. I do not have any right to live there right now, nor do I have any entitlement to any benefits that reserve may offer me. At that time I did not consider all the forthcoming implications that my marriage involved. That certainly was not the determining factor when I got married.

However, on the advice of certain people I approached my lawyer, Clayton Ruby, and we said that obviously this is discriminatory since it only affects me as a native woman and it does not affect the native man.

So with that we started our court proceedings. First of all we went to the county court, and that was a drastic situation in that the judge there said: Obviously you want your cake and eat it too because you are a Canadian citizen; what else do you want?—everyone knows that being Indian is not up to expectations today. In fact, he was putting me down for trying to maintain ties with my own people, so that was a disaster.

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We appealed it to the Federal Court of Appeal. At that level it was unanimous: the judges all agreed that this is discriminatory and you should not voluntarily have to give up any rights that you have with your particular reserve.

The presentation we were making in the midst of all this initially was very simple, in my opinion, and I just could not understand how it got so complicated. As a native woman all I wanted was the right of choice whether I should keep my status or not. I know a great many women who marry outside their reserve choose to completely leave that reserve. They did not want to have any ties. However, because I am so close to my own family and my own people—this was my community— I did not see why I had to give that up. I wanted the freedom of choice to decide that. That was the basic premise that we approached this whole question on: the status of Indian women.

Unfortunately, it was appealed by our government, in their wisdom, to the Supreme Court of Canada. I think had we been a few years later … The time just was not ripe; we lost by one vote. That was in 1973 so this is now 13 years later and there still has not been any change as far as I am concerned in the situation affecting me. I still do not have any status within the meaning of the Indian Act, which is my nationality, my citizenship basically, that we are talking about. It has been taken away. I did not receive any remuneration that the various bands talk about, nothing.

We have waited for 13 years now. I gather the native women’s organizations are saying that with all the judicial proceedings that are going on it could be another 5, 10, 20 years. Meanwhile this particular section is affecting a lot of native women and children. These children are growing up. They need protection right now, and a lot of native women need the protection that they should be entitled to right now. They cannot afford to wait much longer.

Looking back at the Indian Act—and I am sure you have heard presentations like this—we all know that this is an act that is imposed upon us from an outside culture. It is basically based on European attitudes, European values. A lot of the sections are contrary to our native culture. With that in mind, I think it is up to this committee and Parliament: they legislated this on us; they are the ones who are going to have to take this legislation and rectify the particular situation that exists right now. This is where perhaps we will have some difficulty with the local Indian control, and perhaps we can get into that later. But what I am trying to stress is that this is a system from the outside imposed upon us as native people.

I think within our own native tribes—and this varies right across Canada—women were always treated on an equal level.

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Men were not more superior nor were women treated any more inferior simply because they were women. This is a foreign concept to us. Because of the conditions, we had to be on an equal basis. Certain people were given certain respects simply because they were wiser in certain areas. They were elders, and that is understood; but it was never simply because of your sex that you were granted certain rights.

I think it is also documented within the archives that Indian women, as well, signed treaties in a day when white women could not even own anything and they were the property of their husbands. This is back in the 1800s. I think it is a good indication of the values and attitudes that Indian people had toward each other.

Getting down to present-day situations, we hear time and time again where our male organizations are stating that this has always been and therefore this is the way it always should be, that obviously we have male superiority and male dominance here and why change it now. But such has not been the case, and I think this fact has often been overlooked. We have various tribes … Roberta is part of a tribe where they are matriarchal. Even within my own tribe my grandmother tells me that they were always very much involved in any decision affecting them. Mind you, in those days they moved around from one area because my family were in fishing. So the time to move was always considered on an equal basis. My grandfather was a fisherman, but he never arbitrarily decided certain aspects. It was always done on a mutual basis simply because it was survival and it had to be.

I know that you have been listening to the presentations by the Native Women’s Association. They have filed, point by point, all the various things in terms of reinstatement-the fact that we should only recognize people who are of native blood, really, as having the right to status. I agree. I see a lot of non-native people right now who have the rights that I should have been entitled to. They have been conferred, these rights, whereas I do not have any of them. Getting back even to being reinstated within the Indian Act, this question I think is going to be very difficult to implement in a lot of reserves, simply because most reserves are run on family lines … the people who are in political power at the time … generally it is run on family lines.

There is the whole question of voting right now, that is an outside system. Prior to the Indian Act, we did not have elections, votes, for chief and council. This whole system has, I feel, deteriorated the leadership, the natural leadership, and the family controls that existed prior to the Indian Act, with the result now that if certain families are not, perhaps, as dominant, or are at the bottom, they do not get the benefits they would be entitled to. If you approached your chief and

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your council, no matter if you had every right to that issue, whatever it might be, simply because you might have a disagreement, or a family feud-there might be some discrepancy— you will not be given that. These are the kinds of considerations we have to look at.

This why the native women are saying that, when we do give total control to local governments, there may be a lot of hardships created as well. There is going to have to be a fair system implemented so that those kinds of situations are not allowed to exist. For instance, the Prime Minister’s home town is Montreal; he does not have to apply to the mayor and the council for citizenship within the City of Montreal, it is his guaranteed right. It is governed, and no one has any say in it as long as he fits the criteria that govern that. However, I am afraid that if we leave it to the chief and the council, that may not be so. I do not think any Canadian has to worry about whether he or she is on the right side of certain people in order to be given the protection of, or the rights to, certain privileges.

I am trying to remember some of the other things that I wanted to … Looking back, when we did lose at the Supreme level, in my opinion, I think the Canadian Bill of Rights was negated, simply because I was not given the protection of the law. It was decided that sex, within the meaning of the Indian Act, was not a determining factor and I could be legally discriminated against-and this is our judicial system.

When we talk about reinstatement for all the Indian women who have lost their status, I know this is also quite a controversial issue for reserves, for Indian organizations, because they feel that the land base is too small at present. I know that they have talked about ways and means of looking at this and rectifying the situation. However, reinstatement for anyone who has lost her status should be retroactive, and it also should not depend on whether there is a sufficient land base. Furthermore, it should be by choice, as I stressed before. I personally would like to be part of my community. I have a friend who does not want to be involved, she has chosen a life for herself away from her native people. That is fine. And, as has been pointed out on quite numerous occasions, there are quite a few non-Indian people who now have legal status as native people. I am sure it can be balanced somehow, if we look at provisions whereby only native people have native status, when you are talking about monetary considerations, or land bases and things like that. Before I was married, I owned property on my reserve. That, unfortunately, was removed. I do not have anything now, any kind of property on that particular reserve.

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Another strong point that native women, and also a lot of our elders, are stressing, is that when we talk about culture—and this is a strong point that a lot of native people are talking about, this is what makes us unique, what makes us who we are, our cultural background, our cultural considerations—mainly, this comes about through our women, because it is we who bear the children, it is we who talk to them, we nurture them, we teach them the language, we teach them our legends, our background, our whole set of values, our attitudes. This is dependent on the women. The present Indian Act right now is, in fact, eroding our native culture, simply because it is removing the very source of our education of children in our native ways. Non-Indian women, even if they do marry Indian men … their children are brought up within the only ways she knows, and obviously those are of the non-Indian society. She will be gearing those children to her own parents, whereas my children have very, very close ties with their grandfather, who is teaching them our native language-except that my children are not legally recognized as being native people. They have absolutely no rights to that reserve. If something should ever happen to me and my husband, my parents, I am sure, probably could adopt, but those children would not have any rights within that reserve, simply because they do not have Indian status right now.

Maybe I could just leave that for now, and be open to some questions.

The Acting Chairman (Mr. Burghardt): Thank you very much for those opening comments, Mrs. Lavell. I will open it to the committee. Who would like to comment first? Mr. Oberle.

Mr. Oberle: Thank you, Mr. Chairman. Thank you, Miss Lavell, for taking the time to appear before our committee. As you know you have become quite a celebrity throughout the country. Your name is well known and very much entrenched in the legal books of our country. I am not a lawyer, but certainly I hear your name mentioned everywhere as a champion of a very important and just cause. This committee has a very serious responsibility in coming to grips with the situation. As you know, in our first go-round, the committee reached a consensus which coincides with your view—that is in other words, recommended reinstatement retroactively and so on.

I voiced serious reservations throughout the hearings on this particular question of enfranchisement because I felt then, and still do, that by correcting the Indian Act and amending it to coincide with the conventional or contemporary white man’s statutes, we were correcting a wrong by creating another. If we believe at all in the idea of sovereignty and self-determination, one of the most basic components of that must be the right to decide who your citizens are. If I may use your example of the Prime Minister moving to Quebec, it is true that he does not have to apply to the Mayor of Montreal to buy a house or live there, but the Province of Quebec is very much involved in

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deciding who its new immigrants will be, immigrants who come from abroad. I am talking in the larger sense. That is a right that the provinces negotiated for themselves in the earlier constitutional talks. Of course, in Quebec it has to do with what they perceive to be a very serious threat to their culture and language —6 million French-speaking Quebecois in a sea of 260 million North Americans speaking the English language.

So while your cause is right and just in terms of other major cardinal principles of what the white man espouses to be his democratic right to freedom of movement, there is no doubt that we will have to arrange for native people in this country to have some special rights which will permit them to preserve their culture, to rediscover their traditional values and their language.

And since you cannot completely dissociate culture from governmental structure, it will be necessary for us to accommodate a type of governmental structure which some white men consider abhorrent—a collective type of government structure which is alien to the white man’s Christian-Judaean principles generally and his principles of democracy to which all political parties subscribe, with the freedom of the individual being the cornerstone of society. And that is not traditional to the Indian culture.

So what I am telling you is that we a real quandary here. By arranging and reinstating your right, what have we done to the concept of the right to self-determination of Indian people generally? Frankly, I am looking forward to drafting the report and to continuing that particular argument. So it is important that we have you before us.

Could I ask you some specific questions—the first one being, Who was it in your case to initiate the enfranchisement action? As I understnad it, it had to do with your requirement for a house now, and you were denied the right to build or acquire a house on the reserve. Was that how it all happened? Was it the band council which took the initial action or was it the Indian Affairs department?

Ms Lavell: No, there was never any incident like that in my case.

Mr. Oberle: What actually happened initially?

Ms Lavell: You mean how did I lose my status?

Mr. Oberle: Yes.

Ms Lavell: As I pointed out, when I did get married in 1970, on recommendations from several learned colleagues within Indian organizations, I took this matter to legal counsel and protested it to Ottawa to the Registrar General. That is how.

Mr. Oberle: Yes, but before that. I mean, you got married …

Ms Lavell: I never applied for anything from my reserve. I simply wanted a matter of choice as to whether I retained my status or not. It did not have anything to do with any housing or any eligibility for any grants or loans, or anything.

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Mr. Oberle: Yes, but these were considerations. So what you are telling me is that you, yourself, initiated the action. You knew that because you had married; your status on the reserve had been changed; so you initiated the action yourself.

Ms Lavell: Yes, because I realized that it was automatic. Any woman from my reserve who married outside automatically lost her status as an Indian person. So with that in mind, I thought perhaps something could be done so that I could have a choice. That is why I initiated this action. It was the Registrar General who removed … well, I am assuming that; I have never been notified. But because of the whole legal proceedings which followed, I just assume that they are the ones who followed through on it.

Mr. Oberle: As you know, in practice some bands simply ignore departmental requirements and lists and keep people on their band lists anyway. We have had evidence of that before this committee. I recall a colourful evening where we had two ladies in disguise known as Shuswap 1 and Shuswap 2-both being in the same situation as you were—but they are still full members and full participants in band affairs, simply because the band council chose to ignore the federal government’s list. But you decided to make it an issue yourself, and …

Ms Lavell: I did not make it an issue in that I removed myself from the list. That was arbitrarily done for me. And because our community is so closely knit and so small, just as soon as you do get married, the community knows. So it was the band administrator at the time who removed my name; it was not done through any application on my part, and I resented the fact that he went ahead and did this without even consulting me. It was arbitrarily done for me.

As I say, I think this happens on a lot of reserves. Now perhaps on more isolated reserves where the person has been away for a few years and they are not aware of a marriage having taken place, that person is still entitled and registered. However, on a great many reserves, everyone knows what everyone else is doing. And this person in all his wisdom, undertook to remove my name from the band list. It was not through any doing on my part. I regret that he did even that because, at the time, I was going to school and certainly could have benefited from continuing my education at the time.

Mr. Oberle: Supposing this would have occurred 200 years ago to one of your ancestors who may have chosen to marry a man, a stranger, and I am not saying that that was the case in your situation now, but a strange person who could not earn the respect and confidence of the rest of the band members, what would have happened in a case like that? Would you have been required to leave the community, or what would have traditionally taken place in a situation like that?

Ms Lavell: First of all, I do not think that situation would have arisen, because our elders and our parents had say over marriages, and so that situation would not have arisen. Furthermore, I think marriages that were sanctioned, they

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accepted; the whole community accepted the decision that was made by that family, because marriages are family decisions. So that question would never have arisen.

This whole particular section has come about because of the European attitude when the Indian Act was instituted, and I think it is the European attitude which decides whether a person is demanding more respect or less respect, or if they are not suited or suited. I think our native communities, within our own value system, tend to look upon each individual, and it is up to them to assert whether they demand respect or not.

Mr. Oberle: I think I know quite a bit about Indian culture, I have studied it extensively, but I know even more about the European customs, and they were not very much unlike what you have just described; marriages were arranged in the olden times. At times where this was a practice and a custom, and marriages could not take place without the consent of the elders and the rest of the family, it was not uncommon that young people decided that they did not like the arrangement and found their own lover. I can tell you what happened in Europe, a lot of the people emigrated to Canda, and I am one of those, but not for that particular reason, the marriage I entered into was by choice. But a lot of them left their family, became the so-called black sheep, moved some place else or emigrated to Canada to bother the native people here. Would you say that there was no such incident in the olden times that a young person met a stranger and they fell in love and decided, against all odds, to make their life together, and then what happened?

Ms Lavell: From my own experience, I cannot see where that would have been a happening, simply because our native communities, our families are so close-knit. We have a large extended family, and it just would not have been possible. As a matter of fact, even to the present day our families are so close-knit that the grandmothers have a lot of influence over the daughters, and the grandchildren as well, and if a mistake has been made, and we all know the deterioration that exists right now, that family assumes the responsibility for caring for each other. I think it has to be a very very drastic situation where native people will turn their backs on one of their own; or even a native person themselves, it has to be a fairly drastic decision for them to completely leave their community.

As I say, some women have chosen to do that, and that is fine. I agree; I think they have every right to make that decision. Perhaps it has been in their own best interest that this has happened, because of whatever situation their own background was, their own personal background that they came from, that they do leave their communities and that they do not have anything to do with it, but I do not think that is generally the case.

Getting back to one of the other things that I was going to comment on was that I am not, for instance, advocating that we should still be under the total control of the federal

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government in terms of the Indian Act. That is not my premise at all. What I am stating is that the present situation that exists must be rectified by the government, and once we have reinstated the women who have lost their status, and perhaps rectified some of the situations that are discriminatory right now in terms of the other children and men, then perhaps we can go from that basis to giving our native people control of determining band membership.

I wholeheartedly agree that we do have to have that right, but there has to be some means of control right now to rectify the situation that has gone on, simply because it did not arise from native people ourselves. That was imposed on us from the outside, and simply because of that it should be also rectified from the outside. Once that has been done, then we can proceed with whatever criteria the chiefs and the band councils and the native organizations see fit in determining their band membership.

For instance, we talked about the Prime Minister. Granted, Quebec may want to determine who can come into their province, I can see that. It is up to the individual chiefs and the community as such, and as I say, it is still relevant to determine who should be members of that particular community. Since it is them who are responsibile for the ongoing running of that community, they should have the right to determine that, but there should also be some guidelines and some controls. I think basically this is what we are stressing.

I have a fear that for various reasons, perhaps through financial or recognition, political, whatever, people could buy their way into reserves, and this has been expressed as a concern to me. They say we could have a great many people who would buy their membership, simply because there could be a chief who is … And you know, none of us are immune to this kind of influence. The time could arise, and I think this has happened in the States where a great many people have lost some integrity, where people within controlling situations could be bought off. That could conceivably arise. This is why we have to have some control.

The Prime Minister, he was born in Canada, it can never be taken away from him. I was born and brought up on that reserve, yet it was taken away. There is no comparison really, and because of that reason I think I should be reinstated to that reserve by the people who took that status away in the first place.

The Acting Chairman (Mr. Burghardt): Thank you, Mr. Oberle. Mr. Manly.

Mr. Manly: Thank you, Mr. Chairman, and you, Ms Lavell, for your testimony.

Just so you will know where my questions are coming from, I agree with the right of bands to control their membership in accordance with non-discriminatory criteria, and I also agree that people who have lost their status through the discrimina-

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tory provisions of the Indian Act should have that status reinstated. But as you pointed out, this is a very complex issue and there are a lot of questions that it raises.

In discussing this in the past, one concern that I have heard raised is that amongst the Ojibway, women are the bearers of the bloodline, and there is a need to keep the bloodline pure, and on this basis some members of the Ojibway feel that any woman who marries a non-Indian should not be a member of the nation. Could you address that question, please?

Ms Lavell: Obviously, I am not going to agree to that kind of conclusion. However, I think we have to look at the present situation since the Europeans have arrived on this continent. There has been quite a bit of intermarriage from the very beginning. I do not think there are that many native people who can say they are actually full-blooded.

On my particular reserve, a lot of our people, the Odawas, came from the United States. My reserve is Odawa and Ojibway. For various reasons, we have a lot of intermingling. We have a lot of French, Scottish and Irish, simply because it was a frontier country at the time. There were not all that many people.

You can even go further up north. If you look along the coast of Hudson Bay and James Bay, there is a lot of intermarriage there. These are native people right now who have status; but in their background, there was intermarriage. These people have not lost their culture, their right to be unique. I just do not think that is a relevant situation.

The way the present Indian Act is, I can see that same facet is still there, simply because you have white women moving into communities. That is just as much a farce within the native communities—and probably moreso, in my opinionthan the Indian women who marry out. What you are doing with the present Indian Act, by allowing white women to gain Indian status, is eroding more the culture of native people than by doing the opposite, simply because these women are bringing up their children within their own values, their own attitudes.

So to me, the present system has more bearing on the loss of a culture than if we allowed our native women to keep their culture. As I said, it is we, as native women, and our elders in the community who are responsible for maintaining those cultural values, attitudes and concepts.

Mr. Manly: Given that the historical situation is as you describe it, with a lot of intermarriage, and given that presently on reserves there are non-Indian women who have acquired status, resulting in some cultural change obviously, how important would that other tradition be about women as the bearers of the bloodline? Is that still an important tradition amongst the Ojibway?

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Ms Lavell: It is, very much so. I do not see where there is any real discrepancy, because as I said, you always know who your mother is. That is one thing you do know. That is always there. It is an assured thing; and as I said, it is the women who maintain those cultural lines, and those children who are brought up within the meaning of our Indian culture are part of that community. They are more bound to stay within that community as compared to someone who is outside that culture, who will obviously communicate and relate better to the non-Indian society; so therefore, you are eroding your bloodlines moreso.

Mr. Manly: So you see cultural lines as being more important and more significant than bloodlines.

Ms Lavell: It could go part and parcel. However, I do not see that it is such a detriment, because it is usually one generation. If my son marries an Indian girl, then there is no real erosion, really.

Mr. Manly: If I could move on to a second question, it is interesting that you took your case all the way to the Supreme Court. We have heard some suggestions for Indian bands’ determining their own membership and having some kind of appeal tribunal within the Indian community. Do you think individuals within that community should have the right to appeal beyond an Indian court or Indian tribunal to, for example, the Supreme Court of the province or the Supreme Court of Canada?

Ms Lavell: I agree there have to be further mechanisms other than the local decision. Looking even at my own particular reserve, at the present situation the way it is because of the media, the past situations and occurrences that have developed, I am sure the chief would not be enthused about accepting me back as a member of that community. I have every right to be a part of that community; but conceivably, it could be denied me.

Mr. Manly: Okay, you say there should be an appeal beyond the local community. One suggestion we heard yesterday was that, given four different areas within a nation, if a situation came up in one of them, there would be an appeal board composed of members from the three other areas. Now, would that be adequate, or do you still feel there should be some appeal beyond that available to individuals?

Ms Lavell: If we had a mechanism whereby the people sitting on that appeal board were impartial and they could look at a situation without any family ties, this is very important on any reserve, because you do have strong family connections. If you can set up a situation that is above that, then that should be sufficient. Then I think you would get your impartiality. Right now, councils and chiefs and even particular areas are still governed by family ties. When you get down to decisions, perhaps a lot of it is not very fairly made, such as decisions on whether or not it is economic or whatever.

I know a situation where a woman applied to have her house redone. She was going to pay for the materials. The chief and the council denied her that simply because, in their wisdom, they assumed she did not have that right, whereas another

[Page 56]

family in the same situation was given that. She could not turn to anyone else, and the reason she was denied that is because she tends to be very vocal.

So those kinds of situations are existing right now, and I am sure that could be magnified a hundred times.

Mr. Manly: Given your experience with the Supreme Court of Canada, would you say Indian people have the potential to be as impartial as non-Indians?

Ms Lavell: I think that is difficult. Do you figure non- Indians are impartial?

Mr. Manly: I am asking: Given your experience with the Supreme Court of Canada, did you feel . . .? I do not want to ask you to comment on that decision . . .

Ms Lavell: I was brought up to trust the judicial system and our court system. That was shattered, mind you. I do not think I have very much trust in a lot of boards that are set up. However, we have to be optimistic and hope we can find some sort of mechanism. Perhaps if we do get elders who are not prone to political decisions or economic considerations, but who are going to be looking from our own cultural values, who have no real influence, like materialistic influence or political or status kinds of things, I feel they could probably make just decisions, which is the way our Supreme Court should be. However, I think our Supreme Court maybe is sometimes influenced by political views.

Mr. Manly: So you can feel as optimistic about Indian elders as you can about Supreme Court judges?

Ms Lavell: I think I would be more optimistic about our Indian elders.

Mr. Manly: Thank you for that.

One final area of questioning. You pointed out that this is a very difficult area to implement, and then you pointed out that reinstatement should not be dependent on an expanded land base.

Ms Lavell: I do not think I said that.

Mr. Manly: Okay, that is what I wanted to ask you about. Do you feel this committee should be pushing for an expanded land base in connection with reinstatement and for expanded financial entitlement for reinstatement?

Ms Lavell: I agree. I think there are a great many reserves that are already very heavily populated, where the land base is very small, and if such is the case, if women who have lost their status do apply to be reinstated in that particular reserve, I do not think land considerations should be one of the aspects taken at that time.

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The thing is, they are applying for a right to their own nationality; and that should not be based on the land considerations. However, I do understand, for housing and for other services, that that is a priority and it has to be taken into consideration. Right now I know my own reserve can afford to accept me back. It is not going to make any difference according to their land base. I am sure there are a great many reserves across Canada where that is not going to be a consideration. Why can it not be instituted right away?

Mr. Manly: But the government does have an obligation, you are saying, to expand that land base and make those resources available.

Ms Lavell: I think where the situation warrants it, it should be done, of course, yes. I wholeheartedly agree. And the services should also be included. For 13 years now, I presumably had some share within those band funds. Obviously there is still money there. I do not know where it is gone; back to the reserve, I guess. But these kinds of things should be given back to that particular reserve to provide the services to anyone who wants to return.

Mr. Manly: Thank you very much.

Just one final comment, Mr. Chairman. I would like to dissociate myself from the understanding of the Judaeo- Christian ethic that Mr. Oberle has advanced. I do not think that necessarily needs to be associated with the concept of 19th-century individualism. I do not think it is incompatible with a collective approach to life.

Thank you very much.

Mr. Oberle: I hope they put that on the record.

The Acting Chairman (Mr. Burghardt): It is obviously on the record.

Thank you, Mr. Manly.

Ms Jamieson.

Ms Jamieson: Mr. Chairman, I will resist the attempt to get into that debate, although I feel it very strongly.

Thank you, Jeanette, for your presentation.

I want to explore a couple of areas. First of all, some facts. Do you live on the reserve now?

Ms Lavell: No, I do not.

Ms Jamieson: You do not live there?

Ms Lavell: I would like to live there, but for various reasons I am not living there. I am not legally entitled to live there, for one thing.

Ms Jamieson: I understand that, under Canadian law, but judging from your comments, I thought you lived there. No?

Ms Lavell: To clarify, I spend probably 20 hours of every day on that reserve.

Ms Jamieson: Where do you live?

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Ms Lavell: I live on Manitoulin Island. I have my own place outside the reserve. However, I am working among my own people again, and I do spend most of my time there.

Ms Jamieson: And your children?

Ms Lavell: My children were going to school on that reserve. Just recently I have changed schools.

Ms Jamieson: May I ask why? You do not have to answer if you do not want to. I just wondered.

Ms Lavell: It is fairly technical, I guess. No, I do not want to make any comment.

Ms Jamieson: Okay. I just wondered to what extent you were now involved in the community.

Ms Lavell: As I pointed out, I am working in my own community and I am constantly involved in different activities. I would say that I live there. I am living with my parents, basically, but I do not have my own house.

Ms Jamieson: Is it fair, then, to say that you are an accepted member of that community; you function as a member of that community?

Ms Lavell: This is my dilemma. I would like to function as a member of that community, but because of this imposition on me, I do not have any say in the policies affecting us. I am a native person within that community; however, I cannot vote for the chief, for the council, I cannot be part of any committee that is struck up. My background is in education. We have education committees. I cannot say anything within that education committee. I cannot be a member of that particular situation.

A lot of other areas are just not open to me. I am treated as if I had just come from Toronto as a first-year teacher. I have to pay for all the regular things that a teacher from Toronto would, even though that is my community. My fellow native teachers have a lot of other benefits which I do not have.

Ms Jamieson: With the traditional rules that would have been applied in your community, what would have happened in this case? Would your husband have been allowed to come into the community and live there, and your children as well?

Ms Lavell: Definitely. I do not see any discrepancy. Even right now the whole community does accept both of us.

Ms Jamieson: Both you and your husband?

Ms Lavell: My husband is just as much respected as I am. In fact, our children are part and parcel of that whole community. The elders walking down the road recognize both ofus. In fact, my husband, because of his line of work—he is involved in music and photography—really gets along very well with the community as a whole. He is part and parcel of that as well.

The misconception is—we are not asking that he have any legal status within that community. That is not the issue, and I would not like to see that happen. I do not think he should ever have the right to own property or to vote or to have anything to do, because he is not Indian.

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Ms Jamieson: Those are the rules, incidentally, that would go in my area as well … just as you describe it.

That, then, is consistent with—if the people there made the rules, presumably they would make them much different from how the Indian Act is currently drafted. Would you agree with that?

Ms Lavell: I would hope so. However, as I said, we have to be careful in considering point-blank-obviously you can make proper decisions, because people are subject to influences. I was at another reserve just a month ago and that was raised. Another woman said they were very frightened because the white women in our community have such a strong voice and the Indian people are sitting back. So if decisions are made, it is not going to come from the native people, simply because of the way that it already exists; the white people who are already there will be able to have an impact.

Ms Jamieson: But whose responsibility is it? In the final analysis, you cannot go to the courts; you are worried about going to the community to make the decision; yet the appeal is to the Canadian government to make the decision.

Ms Lavell: The appeal is to rectify the situation as it exists right now. From there, I think, once you have rectified the situation, once you have your criteria—and this is what I am assuming you are doing right now.

Ms Jamieson: No, we are not.

Ms Lavell: Well, the Indian organizations are doing it. I know the Union of Ontario Indians apparently is doing papers on it; and some of those particular sections I do not agree with.

Ms Jamieson: So you are saying it should be rectified, the people should be reinstated. . .and then what happens? That is where you lose me.

Ms Lavell: Then I think the native people themselves can make their own decisions. This is where self-control of Indian government can come in.

Ms Jamieson: Not self-control.

Ms Lavell: Well, Indian control of Indian government, yes.

Ms Jamieson: This is the dilemma that constantly comes in front of this committee. Mr. Oberle talked about it. How can this committee with a straight face and honesty support the concept of Indian government, Indian people determining citizenship, and at the same time make yet another decision that undermines that? We have reams and reams of evidence from Indian witnesses who say, look, you created the situation, you people created the Indian Act, you created the rules—and at the constitutional conference you have the Assembly of First Nations on record as saying, we agree those women have been treated unjustly but we do not agree that to do yet another law is going to fix it; we think it is time now to stop that kind of mentality, to stop forcing your rules on our community and let our communities decide.

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That is the dilemma we have. That appeals to anybody who is very supportive of Indian government. Yet there is the other side of the coin that is argued, that the governments did it, so they should fix it.

How do you meet the scenario that I have outlined, where the Indian governments should determine citizenship? To do yet another wrong is further undermining that. That is like saying, yes, I will let you run the store as long as you do it the way we want you to do it.

Ms Lavell: I do not think the comparison is similar. It seems to me that if there is a wrong existing that wrong should be rectified first. You cannot proceed into any new area with a wrong premise, and this is what would be happening.

Granted, our Indian organizations are saying that Indian women are being discriminated against. However, you do have individuals who will not agree with that when you get down to local areas, for whatever reason. We cannot judge them at this point in time. What we are saying is that there is this discrimination that already exists, has been allowed to exist; what we need to do, and I do not see that it could be wrong, you are not telling the Indian organizations . . . In my opinion you would be rectifying a situation that was imposed on them, the same way if—well, I do not know how to compare it-but once you have rectified the wrong situation that does exist, then I think the native people themselves can determine their band membership from then on. But I do not think you can just leave it as such. If I could think of some way of comparing it. . .

Ms Jamieson: I understand what you are saying, I think.

I do not think anybody wants to leave it the way it is. I think people are saying: Imposition—good, bad, rotten, mediocre things—it is still imposition. That is what is being said. That is what I am hearing anyway.

Ms Lavell: I think there are a great many women who are very much concerned that, if it were left up to their own chiefs and councils to rectify the situation, it would not be so.

Ms Jamieson: But you are prepared to leave it up to them after you are reinstated?

Ms Lavell: After we are reinstated, because then the situation that has gone on will have been rectified. Once you have changed that situation, then I think people can say, well, we are going to start with a clean slate now. We have been given directives from the powers that be that we can proceed now. Because right now I cannot have any say at that chief and council. . .I cannot vote for who sits at that council. I cannot vote for that chief. Therefore, if I wanted someone to represent me at that level I do not have any say in it, I am just completely in limbo. So if we institute a process whereby we

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leave it to them to determine, if I have not had a say in the first place, I am not involved in it at all.

However, if I were reinstated, then I would be part of that process.

Ms Jamieson: What does this committee, or any committee which considers this, do in an instance where the federal government decides it has tremendous guilt and has to rectify this wrong, despite what some people say in certain parts of the country, and they go ahead and do it? What do they do when those women want to go home, and their communities say, you can be on the general list, that is fine, Canada has rectified the wrong. But as a community, we have a decision to make and you must apply to us, and we are not willing to accept you until you meet our criteria as a community. What happens then? Because we have evidence on that, that people are saying, we do not buy that that is anybody else’s right to say that and impose further membership on us.

The other side of that is that they feel they are exercising their government responsibilities irresponsibly. We have had governments here saying, we do not have enough to build any houses; we do not have enough land for anybody to live here. We do not have enough money for anything. How can we share poverty? That is what you are talking about. That is why the emphasis is so much put on the formula, and the part that this committee does have to deal with is a formula. The first subcommittee has made recommendations, good, bad or otherwise, but this committee has to deal with some type of formula. That is why the emphasis has been put on it in the evidence that we have.

Do you have any comments on those two points?

Ms Lavell: I can see where it is a dilemma, the fact that a lot of our reserves are fairly poor. However, I do not see where the women who do apply for membership are going to be descending by the hundreds to these reserves. I do not think that is the case. There probably will be on some particular reserves quite a few applications, but I do not think there are going to be all that many when you actually get down to it.

Furthermore, you have a great many non-Indian people already on the reserve. I gather this is more prevalent in the east where they enjoy a great many benefits, and for whatever reason. Perhaps they should not be there any more. These are other considerations that need to be taken … But simply because they are there, they have a strong political voice within the community, no one can do anything about it. It is a dilemma, I can see that. However … it is going around in circles. I am not content to accept the fact that reinstatement must not occur until all these other situations are ironed out, because that conceivably could take a great many more years; and, as I pointed out, a great many women and children are suffering right now, for whatever reason. Maybe they just want to go back and take care of their own family on the reserve.

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Ms Jamieson: How would you feel about a system whereby the federal government reinstated all these women to a general list, and then applications were made to individual band lists and the orderly transfer of people with formula of land, etc., would follow?

Ms Lavell: That would not be the most satisfactory solution to me, because I feel I was part of that community that I belonged to, which was the Wikwemikong Reserve. I had rights within that community. For 13 years now I have not been able to enjoy any of those rights. I do not see how my going back there is going to really enforce that much hardship on them. In fact, it should be an added consideration, simply because I have a great deal of experience in the outside world which I feel my own community could benefit from, in terms of management and education.

Ms Jamieson: In your case it sounds as though there would not be a problem.

Ms Lavell: Well, as a matter of fact, I think there is a problem simply because the particular chief on my reserve does not happen to personally agree.

Ms Jamieson: So that is not the most satisfactory solution …

Ms Lavell: No, but the thing is he does have influence and, in fact, he is blaming a lot of the trials on that reserve on women such as me apparently. So these are the kinds of things we have to deal with. That is why I am saying we need to have the situation rectified so that if there are women who do want to come and be part of that community they can have some say in it. It will not be at the whim of a few others who have been elected for whatever means.

Ms Jamieson: Well, I am not sure we are going to find any answers.

Ms Lavell: Well, I can see that it is …

Ms Jamieson: It is a real dilemma and I am not sure whether we would be rectifying or creating more.

Ms Lavell: Well, the thing is, it seems to me that the government has gone on record for making decisions in a lot of areas, economically, with the Canadian budget right now. The government is not afraid. They have made decisions in the past and they have every right to make decisions.

Ms Jamieson: Well, I wish we were back in the Indian government again. I would suggest to you that just because they make decisions does not make it right. Then we are back into the problem of Canadian government influencing Indian government.

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My premise there is that it was the Canadian government who first of all instituted this wrong and I feel it is up to them to rectify the situation. I do not believe you can leave that to the individual bands; it has to be rectified, then from there I think the membership can decide who the future members are going to be.

Ms Jamieson: Without outside interference?

Ms Lavell: Without outside interference.

Ms Jamieson: —from the Government of Canada, its authority, its standards, whatever it has.

Ms Lavell: Right.

Ms Jamieson: It would go along the lines of some kind of traditional, or whatever the community decided.

Ms Lavell: But you have to have a premise, a base, to start work from. You cannot possibly go around in circles and say: it is this or it is that. We have to start off some place.

Ms Jamieson: It is precisely that starting point. There is not agreement on it. Thank you very much, Mr. Chairman. Thank you, Jeanette.

The Acting Chairman (Mr. Burghardt): Thank you, Ms Jamieson. Mr. Oberle.

Mr. Oberle: To just follow along that line. Supposing now, as has been recommended to us in testimony, we build into our recommendation or into the criteria respecting self-government the idea of a referendum. How would that relate to your situation if all band members were asked the question: Is Ms Lavell to be a full-fledged member of this band? In other words, take it away from the chief and the band council. Would that be a solution?

Ms Lavell: Well, it is one way of dealing with it. I would further add that it is not terribly practical because one way of influencing would be to say, fine, I will give $10 to every person who votes okay. Those things have been known to have happened, so a referendum is not going to be an impartial kind of decision.

We have had referenda on whether or not to have liquor on the reserves. Because of the influence of the church, even though a great many people do drink, the referendum was lost. There are always other influences.

Mr. Oberle: Thank you.

Ms Lavell: I would not really like to see that happen.

The Acting Chairman (Mr. Burghardt): Just on the point of this situation’s being rectified, you are well aware, of course, of the recommendations of the first subcommittee on Indian women and the Indian Act which has recommended that Section 12.(1)(b) be removed from the Indian Act. It is yet to be seen whether that is going to be acted upon by the federal

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government. Indications are that there is a very good possibility that it will be. That would mean that Section 12.(1)(b) would be removed from the Indian Act if it were passed. The dilemma is still there whether the Indian bands would accept that. As far as the Canadian government is concerned, I imagine the government could say, well, we have passed legislation removing Section 12.(1)(b) from the Indian Act and our hands are clean now and that is it, but you still then have the problem of the Indian bands’ accepting that. Do you agree with that?

Ms Lavell: I think there is a problem if you remove that section without reinstating the women. It was my understanding that the Prime Minister said that by 1985 this particular section had to be removed.

The Acting Chairman (Mr. Burghardt): It would be removed regardless under the Constitution. The recommendation of the special subcommittee also recommended that reinstatement take place.

Ms Lavell: What is the influence of the Minister of State for the Status of Women, Judy Erola? What is she doing regarding this particular section?

The Acting Chairman (Mr. Burghardt): I do not know whether that is relevant here, but I can answer that she is in complete agreement in having that section removed. I know that for a fact. She has stated so publicly, as late as yesterday, as a matter of fact, at a meeting in Ottawa with women, so I read in the press this morning.

I guess my concern is that the Canadian government can remove this from the Indian Act, and can also recommend that women be reinstated, but then, in many cases certainly, it is still up to Indian bands to accept that.

Ms Lavell: That is my question: Why is it up to Indian bands to accept that. Simply because these women were on that particular band list of that particular reserve, if we are reinstated, it should be back to that reserve. I do not think you can be reinstated into a state of limbo, floating around some place, hoping some reserve will accept you or not; that is vying for favours. I do not think that is what we are looking at.

The Acting Chairman (Mr. Burghardt): I take it from what you have said this morning that you are accepted on the reserve. You are involved in the reserve with the exception of any powers to vote and to officially voice your opinion in matters dealing with the reserve.

Whenever the day might come, would you be able to be buried on the reserve, is that your wish?

Ms Lavell: I would assume so, because this is my home; this is where I am spending all of my time. However, at present it may not happen, because I understand this is a dilemma for a lot of women. Right now I cannot enjoy the benefits our reserve happens to have . Once you reach Grade Eight and enter high school, the students have to leave the reserve. Since

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I am living there right now, ex officio, I would have to assume the responsibility of paying the education of my children because there is no high school on that reserve.

The Acting Chairman (Mr. Burghardt): One of the witnesses who we heard at the first subcommittee had no intention of moving back to the reserve—she lives off the reserve—but just wanted the right when she died to be buried on the reserve. That is why I ask. Perhaps it is not necessarily the question that a lot of the non-status Indian women now, to regain their status, would automatically move back to the reserve and even claim whatever benefits and rights they have lost over the years.

Ms Lavell: I agree with you. I do not think very many women will move back. Even in my case, I can see that probably in the near future I may be moving elsewhere. However, the point I would like to make is that this was a right that I had, a right to my own nationality, and I would like to be able to decide if I want to retain that status or not. Whether the chief agrees with it or the council or the government, should not have any bearing on it. These are certain rights that are guaranteed to us through the United Nations and through our Constitution.

The Acting Chairman (Mr. Burghardt): Miss Isaac, do you have some questions?

Ms Isaac: Yes, I do. Are you aware of the amendment that was made to the Constitution of Canada at the First Ministers Conference regarding the equality provisions under Section 35?

Ms Lavell: Unfortunately, I am not very familiar with it. As I say, I have been fairly isolated lately; therefore I am not really familiar with all the previous proceedings.

Ms Isaac: The second question is, what are your views on the rights of the non-Indian spouse, providing discrimination is nonexistent and one neither loses nor gains status? What are your views on their rights? Should they be limited? Have you considered that?

Ms Lavell: In consulting with native women in our organizations, I think the general feeling is that the non-Indian spouses on either side should be able to enjoy certain benefits, as long as they are together as a family unit. However, once that particular unit breaks down, I do not think the non-Indian spouse has any right to any benefit within the meaning of the reserve or the Indian Act.

Ms Isaac: I see, okay. That is similar to the recommendations, I think, of the first subcommittee. I think that is the general kind of agreement.

I think, basically, all the questions have been asked. I cannot think of any more.

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The Acting Chairman (Mr. Burghardt): Thank you very much, Ms Isaac, and certainly thank you, Mrs. Lavell, for your presence here and the information you have given the committee.

As you can appreciate, this is a dilemma, which this committee is going to have to face, and all of us connected with Parliament, really. Hopefully it will be resolved to your satisfaction and certainly to the satisfaction of the native peoples, who are much concerned about it. Again, thank you very much, and thank you to the committee. Are there any further comments?

Ms Jamieson: One comment: I just wanted to thank you very much for your chairing the last two days. You have done a very able job and it has been a pleasure to work with you.

The Acting Chairman (Mr. Burghardt): Thank you very much. It has been my pleasure to be associated with you people once again.

With that, we will adjourn—okay, one more.

Ms Lavell: I would just like to stress strongly that this whole question on the status of native women has been an issue for 13 years now, and I think it has to be resolved fairly soon. I can see this whole dilemma about Indian control taking a great deal of time and consideration, but I really strongly believe that particular section needs to be looked at, and perhaps acted upon, independently of the other considerations, and I certainly hope that you will take that . . .

The Acting Chairman (Mr. Burghardt): Thank you very much. I think we have your message loud and clear. Thank you.

This hearing is now adjourned.

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APPENDIX “SEND-17”

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Constitutional Framework

*Self-determination for aboriginal peoples is now an agenda item for future Constitutional Conferences.

*Parliament has not legislated to full extent of its jurisdiction over “Indians”, nor to the full extent of “Lands reserved for the Indians”.

*A.I.A.I. is primarily concerned that Indian Self-Government have early recognition, whether constitutionally or legislatively, in consultation with Bands.

*A.I.A.I. Bands do deal with the Province and have no theoretical or other objections to doing so.

Legal Status of Indian Governments

*Bands need to be constituted as legal entities similar to corporations but having all the rights, privileges and immunities of a person with Indian status.

*Band Councils, or Indian Governments, should exercise the powers of the Band.

Theory of Indian Government

*The Indian Act does not set out a model due to:

*uncertainty;

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*incompleteness; and

*excessive Ministerial discretion.

*The corporate model is in many ways appropriate, with

*Indian Government as Board of Directors

*Band members as shareholders

-some with voting preference
-some with preferred interests in land.

*Federal government as supervisory or regulatory agency.

*Other models are possible, however, and Indian Government must be based on a comprehensive model clearly expressed.

Accountability

*There are three kinds of accountability:

*Political

*Fiscal

*Legal

*Bands recognize the need for accountability and would like Government to do the same.

*Indian Governments should not be accountable to Government for their management of Indian assets.

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*Government should not be accountable to Indians for transactions of Indian Governments.

*Standard business practices and procedures should be practiced by Indian Governments to ensure accountability.

Future Role of D.I.N.A.

*Should be limited to:

*funding transfers;

*unique advisory services not otherwise available; and

*internal corporate needs.

*The Department has lost its sense of mandate and perspective; it is increasingly remote from the needs and concerns of Bands.

*Bands have the perspective and the capacity; they are ready for Indian Self-Government now.

Trust Relationship with the Crown

*Largely illusory and readily denied by Government as in the Musqueam case.

*A.I.A.I. plans to intervene in the appeal to the Supreme Court of Canada.

*Bands see no merit in the concept of “Political Trust”.

*Indian Governments will accept future responsibility; Government should stand on its record as trustee.

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Indian Status & Band Membership

*Indian status should derive from the Constitution Act, 1982 and be recognized in federal legislation.

*Parliament can single out groups of aboriginal people for programs, etc.

*Indian status does not mean Band Membership: the right to share in community assets and participate in Indian Government is granted or withheld by that Government.

*This two-tier system is consistent with both Government and Indian needs.

*Correction of past inequities may require indemnification of Bands by Government.

*Indian Governments should control customary marriages and adoptions.

*The “double-mother” rule should be abolished.

Lands and Resources

*For too long Crown title to reserves has implied only vague and insubstantial rights on the past of Bands.

*The title question should be cast in terms of Trust or a new form of “Indian Reserve Title” should be created. Parliament has the authority to do so, in consultation with Bands.

*The Allotment System is little understood and much ignored by Bands. This creates confusion between the rights of the individual allottee and collective rights of his or her Band.

*Indian Governments should control land tenure in Indian reserves and the broad discretionary powers of the Minister should be abolished.

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Indian Government Control of Land

* This is a legitimate goal.

* Past confusion requires extensive transitional provisions.

* Surrendered lands should be returned to reserve status subject to existing interests.

* Indian Government control should supplant Ministerial discretion.

* Non-Indian interests could be created, possibly subject to special voting procedures within the Indian Governments.

* The surrender provisions of the Act should be repealed.

Estates

* Entitlement to share in Indian assets and resources should be determined by Indian Governments. This could be done within the present Act.

* Past management has created a large backlog and left many problems in its wake. These must be resolved before Indian Governments assume any responsibility.

* Estate administration is a classic application of the law of trust and bears careful study by the Committee.

Fiscal Stability

* A.I.A.I. favours entrenchment of a provision ensuring transfer funds to enable Indian Governments to provide comparable levels of public services as other Governments.

* The model for such a provision is section 36 (2) of the Constitution Act, 1982.

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Parliament derives its principal powers to legislate in respect of Indian affairs from section 91 (24) of the Constitution Act, 1867: “Indians and lands reserved for the Indians”. These are two separate powers and Parliament has not legislated to the full extent of either, although it could in consultation with Bands.

The jurisdiction over “Indians” is undefined. The courts have never set limits upon that jurisdiction and it is submitted that existing legislation has not approached whatever theoretical limits there may be. Provincial laws, under the doctrine of paramountcy, only apply to Indians where federal law is silent.

The jurisdiction over “Lands reserved for the Indians” was defined in the St. Catharines Milling case as extending to “all lands reserved, upon any terms or conditions, for Indian occupation”. It is the Association’s view that only Parliament can legislate with respect to the use and occupation of Indian reserve or surrendered lands. In other words, “Indians” can have a double aspect while “Lands reserved for the Indians” is an exclusively federal domain.

While Indian self-government is not expressly referred to in the Constitution, federal law undoubtedly draws on both of section 91 (24) powers in legislating powers for Indians, Bands and Band Councils. As a practical matter, all of Parliament’s powers could be delegated to Indian communities without offending the Constitution.

The First Ministers, only last week, resolved to include self-determination for aboriginal peoples as an agenda item at future Constitutional Conferences. In effect, this places Indian self-government at the Constitutional level without, of course, giving legal substance to the concept.

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The Association is not dogmatic in terms of self-government as an aboriginal, treaty or other Constitutional right. Certainly there are legal and historical arguments which favour such interpretations, but we feel that Parliament has the Constitutional right, power and freedom to act without the Provinces to establish Indian selfgovernment. We also believe that it should do so in consultation with Bands if Conkitutional discussions prove non-productive.

It should also be noted that the Association does not insist on purely federal interaction; our Bands have dealt, and will continue to deal, with the provincial government in areas of common concern and mutual benefit. Recognizing that others take a different view, we do not share it.

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1. Legal Personality

In law, this is simply the capacity to act in one’s own name and to sue and be sued. Bands do not have that capacity now, Band Councils do not have it and it is not always clear that Government can act on behalf of the Band. This gives rise to many problems:

*Lawsuits commenced by Bands must be framed as “class actions” subject to the complex and technical rules unique to such actions.

*In one case, the Federal Court of Appeal held that the St. Regis Band could not be an “employer” of the teachers it supervised and paid because there was no express authority in the Indian Act for the Band Council to employ teachers.

*Government is often involved in Band transactions where it has no active role but is made a party out of uncertainty as to the Band’s capacity to do business.

*Band Councils regularly adopt so-called “Band Council Resolutions” (B.C.R.’s) which have no independent legal force; they are either impotent or subject to government approval.

*Creditors often look to Government for payment of Band accounts since Bands are considered to be non-suable.

The Association recommends that Bands be given legal personality with perpetual succession and that Band Councils, or Indian Governments, be empowered to transact business, sue and be sued in the name of the Band with all collateral powers of a natural person.

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2. Theory of Indian Government

The pervasive discretion of the Minister and the Governor in Council to limit or interfere with Bands and Band Councils makes it difficult to propose a “model” for Indian Government.

For most purposes, an appropriate analogy is a corporate model along the following lines:

*The Indian government is the Board of Directors having management, control and direction of affairs.

*Band members are shareholders having a common interest in assets of the Band.

*Reserve residents may have preferred or exclusive voting rights.

*Some reserve residents may be preferred shareholders in the sense that they have prior rights to reserve lands allotted to them.

*The Minister and Governor in Council function as supervisory and regulatory agencies of Government.

This represents one model; others are possible, such as: the reserve as “Condominium”, the Band as an “unincorporated association”, the Band Council as a “federal board, agency or tribunal”, etc. None of these provides as complete a model as the corporation. The important point is that the Indian Act does not provide any model at all.

The Association recommends that any new form of Indian government be based on a clear model that deals with management, regulation, supervision accountability, individual rights, voting, dissent, procedures, etc. Our Bands will consider adopting certain features of corporations, but they will not incorporate.

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3. Accountability

Any government is accountable at three levels:

*Politically

*Fiscally

*Legally

Political accountability is the ultimate responsibility to satisfy the electorate that policy is wise and management sound. All Indian governments should be politically accountable, bearing in mind that many Bands still hold customary elections rather than follow the Indian Act procedures. It has never been shown that one form of election generates greater accountability to Indian Bands than another.

Fiscal accountability is the responsibility to provide historic management data on a regular basis according to recognized procedures, to budget and pay accounts as they come due, and to report to the electorate as well as to Government and funding agencies.

Legal accountability is self-explanatory; liability may be civil, criminal or both.

Accountability creates problems in policy-making for government and has long been raised as an objection to Indian self-government. It is ironic that the Department is quick to assert its obligations to account for public money through the Minister to Parliament but slow to acknowledge that it is itself accountable to Indian Bands for its management of their money. Any theory of Indian Self- Government must include an accounting to Indian Bands by government as well as by Indian Bands to government.

That said, the Association recommends that Indian assets managed by Indian governments be subject to political and legal accountability and that funds transferred to Bands be subject to fiscal accountability on the same basis as DREE, CIDA, or any other transfer program.

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Usual protections such as bonding of employees, liability insurance, tendering requirements, conflict disclosure, indemnities, etc. should be built into the Indian Self-Government system. The federal government should not be accountable to Bands in respect of Indian assets managed by Indian governments.

4. Future Role of Indian & Northern Affairs

The Association recognizes certain areas of expertise within the Department that will be required for some time to come. Unfortunately, these are isolated areas such as historical research, records management, curriculum development, claims funding and many areas of technical support. These groups, in a supportive or advisory role, could provide continuing benefits.

Otherwise, the Department should limit its functions to block-funding of Indian governments and its own corporate needs.

To some extent, these suggestions reflect our Bands’ growing frustration with increasing numbers of specialists and “high-flyers” who spend too little time in our communities and limit themselves to too few issues when they are there. Over the past decade, the Department has lost its sense of perspective; and too many of its employees want to delay change until they get it back. This is unacceptable.

Our Bands are ready for Indian Self-Government now and our leaders have all the perspective anyone could possibly want or need. Much of the assistance we will require, as any government would, can be bought on the open market; we would only look to the Department for the balance.

5. The Trust Relationship with the Crown

We wish to make it clear that when we speak of a trust relationship, we are speaking of a legally-enforceable trust. All other forms are noble in sentiment, illusory in effect and expedient obstacles to change.

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The simple fact is that the Government acknowledges a trust responsibility when it is managing Indian assets well, denies it when mistakes are made and retires to contemplate it when Indian governments attempt to secure their legitimate areas of jurisdiction.

The most dramatic and recent example of this phenomenon is the Musqueam decision of the Federal Court of Appeal. Government vigorously denied any trust responsibility for the management of surrendered lands and made its point. The Association is currently seeking leave to intervene in the appeal of that decision to the Supreme Court of Canada.

Our Bands see no advantage to them in any concept of a “political trust”. We are quite prepared to manage our own assets and we do not expect the Crown to become liable for our decisions. At the same time, however, we do expect the Crown to accept responsibility for its past management of Indian assets as trustee of them for our people.

No scheme of Indian Self-Government will be acceptable to us if Government will retain control over any of our assets unless our legal remedies are clearly based upon the law of trusts and the law of restitution. There is nothing vague or abstract about this fundamental statement of simple justice.

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The Association takes the position that Constitutional recognition of “the aboriginal peoples of Canada”, defined as including “Indians”, puts the determination of Indian status beyond the reach of Parliament. The legal parameters of aboriginal status can now be determined only by further Constitutional definition or by the Courts.

This means that any person who is Constitutionally an aboriginal cannot be denied existing aboriginal and treaty rights afforded other members of his aboriginal group.

This does not mean that Parliament can no longer single out particular groups of aboriginal peoples for special legislative treatment so long as it does not abrogate Constitutional rights.

Nor does this mean that, a person who qualifies Constitutionally as an aboriginal is automatically entitled to share in the lands or resources of a particular Band unless the Band holds those resources as part of its aboriginal or treaty rights and the person’s aboriginal affinity is to that Band.

The Association recommends a two-tier system status and membership.

*Federal legislation would recognize all persons Constitutionally “Indian” as Indians for the purpose of Indian programs. It is acknowledged that not all programs will necessarily be available to all Indians.

*Indian governments will determine Band membership for the purpose of voting, sharing in Indian assets such as reserve lands, capital distributions, etc.

This, in effect gives the Indian government control over who shares in its communal assets. In the corporate model, this is analogous to a closely-held corporation. In

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terms of the present Indian Act, Indian status would be analogous to registration on the General List, while Band membership would be analogous to registration on a Band List.

In operation the system would work as follows:

*Any person who is Constitutionally an Indian will have Indian status pursuant to federal legislation. A person may have Indian status without being a member of any Band.

*A decision must be made whether a person could be a Band member without having Indian status. Bands could, perhaps, decide for themselves.

*Indian governments will determine who is entitled to Band membership subject to:

(a) automatic Constitutional entitlements;
(b) non-discrimination on the basis of sex; and
(c) reasonable protective provisions for persons who are already members of the Band.

*Depending on the interaction of various Band criteria, a person could be a member of more than one Band.

As the new Constitution becomes interpreted in the Courts, or as Government disavows the automatic enfranchisement policy it has pursued in the past, many “nonstatus Indians” may become entitled to Band membership. Where this does not result from direct action by the Indian government itself, there should be an indemnity payable to the Band by the federal government equivalent to a per capita share of the Band’s equity in Band assets, including land, or $2,000.00, whichever is greater.

The Association feels that as Indian Self-Government becomes established, Band membership will increasingly mean an entitlement to share in assets and resources as well as to participate in government itself. On this basis, there is no public interest in determining such entitlement outside of the Indian community; Parliament should abandon its jurisdiction in favour of Indian governments.

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Indian governments should also be free to determine entitlements based on customary marriages and adoptions, and these customs should have full effect in law.

Finally, our Bands feel that there is an urgent need for the following change to the Indian Act:

*Section 12 (1)(a)(iv), the double-mother rule, should be abolished retroactively.

The Association feels that this provision is both arbitrary and capriciously unfair.

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1. Crown Title

Most, if not all, problems relating to reserve and surrendered lands stern from the fact that the bare legal title to these lands lies with the Crown, either federal or provincial, while the possession, use and benefit lie with Indian Bands. It is clear that Government was frequently prepared to convey a title to the Bands, but usually drew back for fear of improvident dispositions.

Here are some of the results of this historic relationship:

*For 150 years, the Indian interest in their own lands has been trivialized into a legal non-interest. One court in the last century described a Band as “mere tenants at the pleasure of the Crown”.

*Last year, the federal government argued in the Musqueam case that the Band had no proprietary interest in their lands. The Federal Court of Appeal did not agree, but this did not change the result: the Band lost.

*No dealings can be concluded with non-Indians by Bands. The Band cannot convey or fetter the title of the Crown (but note sections 53 and 60 of the Indian Act).

*Government has been unwilling to cast the relationship in more familiar terms, the most obvious being the trust: one party has title, another has the benefit. Nor is it willing to create, as it could, a unique species of title that would recognize the proprietary interests of the Band. Such a move is long overdue.

*Here again, when Bands demand change, Government is concerned about erosion of the trust responsibility. When Bands demand compensation, there is no trust responsibility.

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*Indians were largely prevented by the Act from making improvident dispositions. Government, however, disposed of huge tracts of land at upset prices. The result was the same.

The Association recommends either that a special “Reserve Title” be granted to Indian governments or that they be statutorily empowered to deal with the title of the Crown.

2. Allotment System

Crown Title deals with the relationship between the Crown and the collective rights of the Band. The Allotment System deals with the relationship between the rights of individual occupants and Band rights.

The Allotment System developed to give individuals a form of title to lands they improved analogous to a fee simple. In days past, this was represented by a “location ticket”; today, by a “certificate of ‘possession”. Allotments are made by the Band Council but are not effective until approved by the Minister.

There are many major problems with the Allotment System:

*As legislatively imposed in the last century, it was so unfamiliar that half the Bands in Canada do not use it at all. Amongst Bands who do use it, interpretations vary widely.

*The System is described so badly in legislation, and is so subordinated to the discretion of the Minister, that it is in many cases impossible to establish priorities between the individual and the Band or between the individual and the Government.

*It is clear that the allottee is to have exclusive possession of his tract of reserve lands. It is not clear how he can dispose of it or in how many ways he can be relieved of it.

*Courts are reluctant to deal with these issues since they refuse to fetter the pervasive discretion of the Minister.

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The Association recommends that Indian governments be empowered to codify the land management practices they have followed or wish to follow and that the discretionary powers of the Minister be abolished.

3. Indian Government Control of Land

If one assumes a corporate model of Indian government, land becomes a Band asset to be managed by its government for its members. Past confusion and uncertainty, however, will require transitional provisions to protect existing interests, Indian or non-Indian.

Indian governments should obtain immediate control over surrendered lands, as reserves, subject to valid existing interests in those lands. The Minister’s power to reduce sale proceeds, rents and interest pursuant to section 59 (a) of the Act should be abolished.

The broad powers of Government pursuant to sections 57 and 58 of the Act should be relinquished in favour of Indian governments; similarly, powers under sections 18 (2) and 28 (2) should be relinquished.

The words “by which a band or a member of a band purports to permit” in section 28 (1) of the Act should be replaced by, “unless duly executed on behalf the Indian government, authorizing”.

A Registry function must be developed including provision for proper surveys, registration of interests and establishment of priorities. This scheme should be clear, complete and freely accessible at the local level.

The integrity of reserve lands can be protected from secured creditors by way of Indian government guarantees and subrogation to the creditor’s rights. Abient some provision for secured financing, much valuable land cannot be developed either for residential or economic purposes.

Proposals for non-Indian use of reserve lands could be subject to special voting procedures for ratification. Nothing as complex as the surrender process should be imposed on Indian governments and, if surrenders are to remain in legislation, there should be added a process for returning surrendered lands to reserve status.

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These comments highlight areas of concern that the Association wishes to see addressed in the course of transferring lands to Indian governments.

It should, however, be noted that a corporate model does break down to some extent in terms of land and resources. The Indian government would be, effectively, the proprietor, the administrator, the taxer and the regulator of Band lands. Any potential for conflict between these functions must be identified and resolved.

4. Estates

The administration of estates and succession rights to reserve lands are areas that impinge on both lands and membership. The Association feels that Indian governments should be active in making determinations of criteria for entitlement.

At the same time, however, the Association recognizes that Indian governments could establish such criteria within the Indian Act system as now established.

We also recognize that estates represent the largest administrative backlog in the Department, that the regulations are concise to a fault, and that the Government, as administrator, is frequently caught in conflicts between two or more estates. In other words, Indian governments will be reluctant to assume responsibilities for estate matters until such time as the present problems are resolved.

The administration of estates is governed by the law of trust and the Association recommends that this Committee focus on this important area and on the problems we have identified.

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Indian governments need to plan, budget, contract, audit and account just like any other level of government. Secure levels of funding and revenues ensure sound business practices. The Association is proud of the administrative record of its member Bands and heartened by the potential which exists in our communities.

We did note with much interest, and commend to the Committee for its consideration, the following provision in section 36 (2) of the Constitution Act, 1982:

We feel that a similar provision should be entrenched either legislatively or constitutionally to ensure that Indian governments have the resources to do the job.

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The Association welcomes this opportunity to meet with Parliamentarians and inform them of our concerns in relation to Indian Self-Government. This presentation is necessarily little more than an outline of the views we have taken and the positions we have developed.

We have not dealt at length with such matters as financial transfers which we regard as matters of political will rather than legislative intricacy. Even so, we would be pleased to forward further elaboration on any point on which the Committee wishes to know our views.

Our Bands want the Committee to know who we are, where and how we live, and why we take the positions we do. For this purpose, it is perhaps more important for the Committee to sense how we think than what we think, particularly in the short time available for oral presentation.

We are always prepared to inform the Committee about what we think, and invite its questions or queries at any time.

A.I.A.I.

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