Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 28 - Evidence - November 28, 2012
OTTAWA, Wednesday, November 28, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 6:50 p.m. to examine and report on the legal and political recognition of Metis identity in Canada.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the Web.
I am Senator White, from Ontario, and I chair the committee. The mandate of this committee is to examine legislation in matters relating to Aboriginal peoples of Canada generally. Today we will continue to explore Metis issues, particularly those relating to the evolving legal and political recognition of the collective identity and rights of the Metis in Canada.
This evening we will hear from two groups: the New Brunswick Aboriginal Peoples Council and the Red Sky Métis Independent Nation.
Before hearing from witnesses I would like to take this opportunity to introduce members of the committee who are present this evening: Senator Nick Sibbeston from the Northwest Territories, Senator Sandra Lovelace Nicholas from New Brunswick, Senator Larry Campbell from British Columbia, Senator Charlie Watt from Quebec, Senator Dennis Patterson from Nunavut, Senator Salma Ataullahjan from Ontario, Senator Nancy Greene Raine from British Columbia and Senator Jacques Demers from Quebec.
Members of the committee, please help me in welcoming, from the New Brunswick Aboriginal Peoples Council, Kim Nash-McKinley, President and Chief; and Ron Swain, National Vice-Chief. They are joined at the table by Red Sky Métis Independent Nation, represented by Troy DeLaRonde, Métis Chief; and John Edmond, Legal Counsel. Also in the back, in case there are questions for them, are Donelda DeLaRonde, Executive Director; and Susan Blekkenhorst, Consultation Co-ordinator.
Witnesses, we look forward to your presentations, which will be followed by questions from the senators. Thank you very much for being here so late in the evening.
Please proceed. I will leave it to the New Brunswick Aboriginal Peoples Council to start.
Kim Nash-McKinley, President and Chief, New Brunswick Aboriginal Peoples Council: Good evening, chair and committee members. It is an honour and a pleasure to speak to you about Metis rights and enumeration in the traditional territory of the Algonquin peoples. I am the president and chief of the New Brunswick Aboriginal Peoples Council. I am a citizen of the Maliseet Nation, and my family totem is the bear. With me is the national vice-chief of the congress, Mr. Ron Swain, who is newly elected to that position.
The council is a community of Aboriginal peoples residing on our Aboriginal ancestral homelands off Indian Act- created reserves in what is now known as New Brunswick. Traditionally, Migmagi makes up what is known as the Maritimes and includes parts of Maine and Quebec. The council is an affiliate of the Congress of Aboriginal Peoples, our national representative organization.
Our community is widely dispersed throughout the province in villages, towns, cities and rural areas. We are the fastest growing and youngest population in Canada. The council is a political voice and advocates for the approximately 28,000 Aboriginal peoples, including Aboriginal and treaty rights holders, status, non-status, and non- territorial Aboriginal peoples who have made New Brunswick their home.
The council provides an organization for off-reserve Aboriginal peoples in New Brunswick for the purpose of advancing their culture, traditional, economic and general living conditions. Biologically and culturally, the members of the council are Aboriginal peoples. However, some of us are not recognized under Canadian law as Indian people.
When the Government of Canada decided to register all Indian people, a large number of people did not register. Some did not know they were supposed to register or did not understand the process, some were afraid to acknowledge their heritage, and government officials deliberately excluded others.
As the government has acknowledged, enumeration is one of the building blocks of Metis and off-reserve self- government and, therefore, to renewing the relationship between Canada and Aboriginal people. To understand how enumeration and imposed categories of Aboriginal identity has led to denial of rights, I want to give you a brief overview of how the term "Metis" has evolved.
Aboriginal peoples, government officials, historians and scholars have not used consistent terminology to describe or refer to persons of different Aboriginal ancestries, and the terminology continues to change. Metis are individuals of Indian, British and French ancestry. The different historical circumstances of Metis across Canada make it difficult to define Metis in a general sense. Historical terms used to describe Metis include "country-born," "half-breed," "mixed bloods," and there are many more. Based on the Indian Act, the term "non-status Indian" has been used by the federal government. Non-status Indians are granted comparable levels of service as Metis. For this reason, when referring to the Metis population, it is important to acknowledge and include non-status Indians.
Well before Canada was established, there were no set definitions to define Metis or to distinguish between Metis and Indians. Metis and Indians were treated as one and the same. For instance, the British imperial government included Metis in the distribution of gift giving for reinforced alliances between Aboriginal peoples and the British Crown.
At the end of the Seven Years' War fought between Britain and France for control of North America, the Royal Proclamation of 1763 established an important precedent that the Indian population had certain rights to the lands they occupied. Indian nations were a central force in the war, and alliances with them were pivotal to its outcome. The royal proclamation was based on mutual respect and ensured future negotiations recognized rights of the Aboriginal peoples who occupied the lands. Canada inherited these obligations in 1867.
The term "Indian" was not defined in the Constitution Act of 1867. In fact, the Indian Act of 1876 is the origin of the creation of categories for Indians. Prior to the act, Metis were considered Indians. However, it is possible to assess whether the framers of the Constitution considered Metis as Indian by examining legislation created at approximately the same time — for example, the Manitoba Act of 1870.
The Government of Canada allotted segments of land to Metis previously identified as half-breeds on the condition that they extinguished their Indian title. This is clear indication that the framers of the Constitution did intend "Indian" to include Metis. Otherwise, there would have be no need to allow Metis to extinguish their Indian title in the first place.
The Supreme Court of Canada, regarding Eskimos, determined that the Inuit are Indians under the Constitution Act of 1867. In this instance the court requested historical documentation prior to Confederation to determine the context of how the word Indian was used. The sources for this case indicated "Indian" was used in a generic sense both pre- and post-Confederation to refer to all Aboriginals or natives, including Metis. It is logical and realistic to conclude that the framers of the Constitution intended the term "Indian" to represent all Aboriginals under the central authority as opposed to categorizing Aboriginal groups. The original intent should be respected. Equality rights under section 15 of the Charter of Rights and Freedoms apply to Metis. Parliament is obligated to treat Metis and all Aboriginal peoples in the same fashion as it treats status Indians in terms of delivery of programs and benefits.
The Royal Commission on Aboriginal Peoples supports the notion that the federal government needs to accept responsibility for Aboriginal peoples. The report specified that it would take up to 20 years to put into practice all the recommendations outlined in the report. Unfortunately, the government has yet to implement any of the recommendations.
Metis rights are recognized and affirmed in the Constitution Act of 1982. Section 35 of the Constitution Act, 1982, states:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
Section 37 of the Constitution Act of 1982 requires a first ministers' conference to clarify and define the Aboriginal rights included in section 35. This section was repealed after three conferences — 1984, 1985 and 1987. Ultimately, the issues presented too many challenges for government to determine and define Metis rights.
In general, Metis rights that are under federal legislative jurisdiction are not granted to Metis. Metis would be entitled to those rights if they were regarded as Indians in the Constitution of 1867. Some of these rights include lands rights, hunting and fishing rights, taxation, programs and services, securing Aboriginal rights, consultation and enumeration.
The federal government maintains that Metis were not intended to be included in the scope as Indians under the Constitution of 1867. Yet, in 1873, Alexander Morris, the federal government's chief negotiator, negotiated Treaty 3 for the Crown. Metis had been enumerated into this treaty. It is possible that the government has treaty records that indicate the treaty beneficiaries or land claimants. If so, these people can be identified and enumerated. It is unclear, though, whether these records are entirely accurate.
Landless band enumeration: I would like to raise an example of a landless band that has been enumerated. One of the Congress of Aboriginal People's affiliates, formerly known as the Federation of Newfoundland Indians, is now the Qalipu Mi'kmaq First Nation band. The federation fought for and obtained federal recognition from Canada. They are now a landless band that is registered under the Indian Act. The federal government approved the Qalipu Mi'kmaq First Nation's membership criteria and anticipated approximately 15,000 members in total. To date, the Qalipu has approved about 23,000 members, based on the government's criteria. This band has an additional 7,000 applications that still need to be assessed and processed for membership. Evidently, the government underestimated the total number of members. This is a prime example of the necessity to put a better method of enumeration in place to prevent future inaccuracies.
Moving forward, and in closing, the Aboriginal population is increasing at a rapid pace, which substantially increases government's fiduciary responsibility. It is much more beneficial to negotiate rather than rely on the courts to impose their rulings for governments to abide by and respect Aboriginal rights. A process of negotiations needs to be launched to define Aboriginal rights along with an agreed-upon strategy based on enumeration of Metis and non-status Indians. Self- government negotiations will not be possible until there is a suitable negotiation process in place that is agreeable to Canada and national Aboriginal organizations.
For the purposes of enumeration, it is important to establish and define Metis rights. This is a difficult and necessary step needed for all parties involved to move forward. It is appropriate for governments and Aboriginal organizations to come together and resolve past injustices pertaining to the denial of Aboriginal rights.
Thank you.
The Chair: Mr. Swain, do you have comments to make?
Ron Swain, National Vice-Chief, New Brunswick Aboriginal Peoples Council: No, I am here in a support capacity for my colleague.
The Chair: Thank you. We will turn to Mr. DeLaRonde, then.
Troy DeLaRonde, Métis Chief, Red Sky Métis Independent Nation: Good evening, and thank you for the invitation to speak about our unique interest in the evolving legal and political recognition of the collective identity and rights of Metis in Canada.
I am Métis Chief Troy DeLaRonde, representing Red Sky Métis Independent Nation, or RSMIN. RSMIN is a unique and historically significant community that requires careful consideration when amending the framework of Canada.
At this time, I would like to identify key points of our submission: how RSMIN is distinguished from other Metis and First Nations; the definition, enumeration and registration of Metis; the availability and access of federal programs; the implementation of Metis Aboriginal rights, including those that may be related to lands and harvesting; and a section on recommendations.
First, how RSMIN is distinguished from other Metis: Red Sky Métis Independent Nation represents the descendants of the 84 half-breeds who were beneficiaries and annuitants under the Robinson-Superior Treaty of 1850, in concurrence with First Nations people. However, RSMIN is distinct from the First Nations people by way of traditional lands, traditions, customs and practices.
RSMIN is unique in Canada and asserts treaty rights. As recipients of treaty benefits, we could be the only status Metis in Canada included in a treaty. We define our territory by the boundaries of the treaty. We share common culture and traditions with other Metis groups, but our heritage is based on traditional trading posts and the fur trade that was established along Lake Superior in the 1600s. We settled in areas that Robinson described as so savage that, with the exception of a few mining interests, they would never be settled. Metis in the Lake Superior region will be unique from other Metis simply because of the geographic isolation they lived with back in the day. Their current existence, including culture and tradition, is a testament to their experiences, challenges, influences and adaptations necessary for survival.
Whereas it may be difficult to establish a definition that encompasses all Metis in Canada, RSMIN has a clear definition and criteria for enumeration. All RSMIN members have a documented and proven ancestral connection to individuals listed as half-breeds on the pay lists for the Robinson-Superior Treaty area. Anyone who has objectively verifiable evidence to show that they are a direct descendant of one or more of the 84 half-breeds of the Robinson- Superior Treaty of 1850 can apply to be registered as an RSMIN community member.
The charter protects individual rights, whereas Aboriginal rights are collective rights. If Charter or constitutional rights are invested in a group of people, then the membership of that group becomes of paramount importance when the exercise of those rights is debated. RSMIN makes this easy for government representatives through our membership process. We do not strive to identify all Metis. We can clearly identify who belongs to our nation and certainly within the framework of the Powley decision.
Questions and concerns for deliberation: Consideration that a national definition of "Metis" could infringe on the individual communities' unique history, practices and rights to self-govern, and transparency of community registries with Aboriginal Affairs and Northern Development Canada to verify no cross registration of First Nations and Metis registries.
The availability and accessibility of federal programs: Many requests for federal funding, programming and services for RSMIN had either been ignored or denied. RSMIN members have applied for funding, programming and services through Aboriginal avenues, some successfully, most not. An example is a letter of denial for post-secondary schooling assistance from the National Aboriginal Achievement Foundation, NAAF.
RSMIN offices, chief and council are largely run by volunteer efforts. Red Sky Information Centre provides information and referral services for people who need access to community health, social services, employment training, jobs, housing and educational services. Continued project funding allows RSMIN to provide much needed community services that enhance our community, provide guidance to our youth and allow for consultations to protect our interests in proposed projects in the RSMIN territory.
The implementation of Metis Aboriginal rights, including those that may be related to lands and harvesting: In the case of RSMIN, infringement has happened on many levels and is not justified, although it is understandable considering the precedent-setting nature of our assertions and unique position.
Clarification of the grey area surrounding the definition of Metis and RSMIN as a status Metis and recognition of RSMIN by Aboriginal Affairs as a treaty community will reduce the potential for infringement whereby ministries and individuals, including MNR, retail and border officials can recognize our Aboriginal and treaty rights based upon community identification cards.
The preservation of our natural resources is a part of who we are. That involves protecting our resources from infringement, working with the MNR to create a system to allow traditional practices to sustain these resources for future generations. For example, taking food from the land is also a protected historical practice for the Metis of the Robinson-Superior Treaty area.
MNR expectations of our members to obtain outdoor cards and appropriate licences to hunt and fish on our traditional territory constitute an infringement upon our constitutionally protected Aboriginal rights. The RSMIN enumeration and registration process should be more than adequate proof of an individual's Aboriginal right, let alone treaty right. The RSMIN community identification cards should be recognized as proof of harvesting rights.
I will now give our recommendations. A clarification of grey areas surrounding the definition of Metis will reduce the potential for infringement, whereby ministries and individuals, including NMR, retail and border officials, can recognize our Aboriginal and treaty rights based upon community identification cards. The federal government should verify the RSMIN registry process as sufficient evidence of status Metis heritage; include RSMIN in Aboriginal Affairs and Northern Development Canada community numbers; and formally recognize RSMIN as an Aboriginal/status Metis community under treaty conforming to the Powley test. Aboriginal Affairs and Northern Development Canada and Red Sky should engage in funding negotiations to provide core funding for operational aspects of the nation and to assist RSMIN in the collection and collation of RSMIN traditional knowledge.
We must ensure the needs of smaller groups are not overlooked by the politics of larger organizations. We need an educational campaign that addresses some of the discrimination, corrects history, creates public awareness and positively promotes Aboriginal participation across the country. The history of the Metis in Canada has only partially been told, and it is as diverse as it is rich.
Access to support and programs should be available to all communities with relevant sets of circumstances that warrant these supports and programs, guided by accountability factors such as openness and transparency.
A big part of RSMIN's focus has been on collecting historical information from our community for the purpose of one day producing a detailed account of our history to tell our story. We have done this in part through involvement in the consultation activities within the RST 1850 area. Consultations with project proponents have provided us with some opportunity to gather traditional knowledge specific to project areas. Provisioning for funding should be made that allows Metis communities to gather their history and traditional knowledge. This assists the consultation process and further enhances the Metis identity within a community.
The grey area around RSMIN's status Metis rights has created a condition where First Nation communities may have citizens that have Metis history and live by Metis customs and practices but self-identify as First Nations. If an individual can qualify for enumeration with both First Nation and RSMIN criteria, it is of great importance that a system be developed to allow clear identification of an individual as being either Metis or First Nation.
That finishes my speaking notes, but we do have a submission to follow. I do not know whether the submission has been translated yet, but we just finished it today. Along with that will also be a list of references, and we can provide those if you feel the need to see them. Thank you for your time.
The Chair: Thank you very much. It has not been translated. It will be shared with the rest of the members of the committee upon translation.
Senator Sibbeston: Thank you. I want to thank our witnesses tonight. Our Senate committee has undertaken a study of Metis. Metis are well known in Western Canada. There are large groupings of Metis people that are the descendants of Riel and Hudson Bay traders. That is the basis of Metis people. They are unique people. They are independent, with their own culture and language and so forth.
It is interesting to see other Metis people from other areas of the country. It is like Metis are coming out of the woodwork, as it were, and it is nice to see and is encouraging. We wish you well.
I will ask the question of Ms. Nash-McKinley. From what you have said, I take it that your organization is essentially a group of Aboriginal people that do not live on reserves; you all live in the city. You do not live on-reserve, so it is an amalgamation of Aboriginal people. I suspect some still have status or treaty status, and non-status and mixed blood that comprise your organization. I wanted you to confirm that.
I know that you are a member of the Congress of Aboriginal Peoples in Canada, so you are associated with the national group. Could you tell us about all that and how you feel about yourselves and your future?
Ms. Nash-McKinley: That is a big question. Thank you.
We are made up of a variety of Aboriginal people. Some of our members are people who have moved to the province for whatever reason. Our membership is Metis, Ojibwa, Cree, and the traditional ancestral homelands of the Maliseet, Mi'kmaq and Passamaquoddy Aboriginal peoples. In our province, our government does not recognize Passamaquoddy as being territorial; they belong to parts in Maine.
We are actually working with government, and have done so now for the past 43 years, to ensure that we have culturally appropriate programs and services available to the Aboriginal people who move to the province. Some are status that are not associated with reserves in the province of New Brunswick, so they do require appropriate programs and services.
Currently, that process of trying to ensure that we have access to culturally appropriate programs and services is ongoing. It is common knowledge that Aboriginal people do not access mainstream programs and services because there is a lot of racism and other issues involved in that process. They just do not access them.
Senator Sibbeston: Can I just ask this: What is your future? A lot of the Aboriginal peoples certainly in Western Canada have claims, be it land, resources or whatever. What is your future in terms of surviving as a people, growing and having a good future? Do you have any legal claims or Aboriginal rights that you are asserting beyond the fact that you are just Aboriginal people and are covered under the Constitution?
Ms. Nash-McKinley: Actually, New Brunswick is all unceded territory. Currently, there is a tripartite umbrella agreement that is signed between the province, the reserves and the federal government to negotiate land claim settlements and set up treaty tables. At this point, the Aboriginal Peoples Council is working on a proposal to ensure that we can capture the beneficiaries, heirs and descendants of the treaties who are Mi'kmaq, Maliseet and Passamaquoddy, but who are non-status, and ensure they are captured in this process.
We do strive towards self-governance. We strive towards having equal access and benefit sharing to our land and resources. We are working towards making sure that all the citizens of those three nations are included in a land claims process and also to make sure that they are included in any benefits from the lands and resources as well.
Senator Demers: Thank you very much for your presentation. I will ask three small questions. How many members do you have? What are the membership criteria for your organization? Does your organization issue membership cards?
Ms. Nash-McKinley: In New Brunswick, according to Statistics Canada, there are 28,260 Aboriginal people who reside off-reserve. Our organization has approximately 1,500 members. We currently have about 500 or 600 pending; they just have not been processed yet. We have membership criteria. It is based on court cases and land claim settlements throughout other parts of Canada. One of our criteria is that you must reside in the province of New Brunswick for six months. You have to be 16 years old to be able to apply. What membership allows you to do is to participate politically in the organization and to access some programs and services. I know I am leaving things out.
Senator Demers: What about the membership card?
Ms. Nash-McKinley: Yes, we do have a membership card. You have to prove your Aboriginal ancestry, show the link, who the person is, and supply documentation. The proof many people submit is based on the 1861 Census, when the census was done, and it is stated on there, "savage," "Indian"; that is the link. Sometimes it is on the marriage certificates, which go way back, and some of the documentation is very old.
Senator Demers: You answered the three questions. Thank you very much.
The Chair: I will go to Mr. DeLaRonde for the same response.
Mr. DeLaRonde: In our submission, I go into this in detail. Our membership in our registry is currently about 5,000. However, we have about another 3,000 or so that still need to be verified. Our process is that you have to prove that you are a descendant of the 84 half-breeds included in the Robinson-Superior Treaty. That is how it works. Naturally, some self-identification of an individual comes just with the territory of growing up in those parts. Most people have many commonalities between their upbringing and all of that, which lends itself to all that identification. Many people grew up Metis and they just thought it was an everyday part of life until they learned a little bit about their history and say, "I guess I am Metis."
As far as cards go, we do issue cards. We are in the process of updating our registry. We started our registry back in the 1990s and we want to bring it up to 2012 standards for confidentiality and make sure everything is in order. We are also digitizing our genealogy process and our cards and producing an actual official plastic picture identification card. It brings everything up to today's standards.
Senator Demers: You have 5,000, and 3,000 pending, so that would be a total of 8,000?
Mr. DeLaRonde: About 8,000 is what we are estimating.
Senator Watt: I have additional questions in relation to those of my friend on the other side. You said that in order to be eligible for membership, you mentioned you had to be 16 years of age. Could you clarify that a little bit? It could be subject to interpretation, the way that you respond to it. What happens if one is not 16; they are not a Metis? I would like to have clarification on that.
Ms. Nash-McKinley: If you are a member of NBAPC and you have small children, they are basically under your application, but when they reach the age of 16 they have to actually apply for their own separate membership card. Some people choose not to; some people choose to. We always give people the opportunity to choose. The age 16 is so that they can participate politically, voting at assemblies.
Our organization is structured with seven zones. We have 15 different local communities within those zones. They have zone directors that make up our board of directors, so we have seven directors. There is no age to be a member of the local communities, but on up to the council for participating politically and applying for your own membership, that is a different process than just at the local level. Again, they would basically submit the information following under their parents and make the link from them on through that way.
Senator Watt: I think that clarifies it.
Senator Campbell: Last week we had two witnesses who appeared from Quebec. The message I got was that all Metis started in Quebec. I see everyone is getting upset. I do not mean to say that you are not Metis. What we have been trying to figure out is what is Metis.
I like history. They were talking around 1700, where they first had put this. Jehan Denys was in Canada in 1654. Interestingly enough, in 1655, Pierre Denys, who was DeLaRonde, which is your name, appears in this history. I am wondering if in fact the Metis started in Quebec and they wore a separate and distinct culture to First Nations; they were of mixed blood; and they spread up to where your nation is, and they spread across over to the Red River. Do you think it is possible that there is one source that comes through for the Metis population?
We had other witnesses indicating that the Metis community was centred in the Red River. Would it not make just as much sense that it was a migration that came through, which would then go to the very essence of a distinct culture? It did not just pop up one day. This was a distinct culture that came along. I would like your comments on that, because it was the first time I was able to actually get some grasp of it. When I go on here and look at the descendants of Jehan Denys, the DeLaRondes are all over this. This makes me wonder, rather than starting from the Robinson treaty — and, in fact, the Robinson treaty is close to 200 years after we saw this. Could you comment on that?
Mr. Edmond, you have been pretty quiet here. If someone could comment on that for me, I would appreciate it.
Mr. DeLaRonde: I would like to comment on that. Jehan Denys is actually my grandfather fifteen generations ago.
Through all of our research over the last 20 years, we have been trying to accrue all of this data, and a lot of what I have been involved with is basically a very lengthy history project. Part of what we would like to do is basically tell our story of how this happens, and you are 100 per cent correct in showing that lineage going all the way back to Acadia.
Speaking of the Red River versus the French, there were two different things that happened. The Hudson's Bay and the North West Company had that feud going on, and there were definitely some lines moving back and forth, especially over the northern Ontario parts where our area is. I think there is definitely a distinct heritage that links back prior to that treaty.
Our criteria coming from that treaty are based on those particular treaty rights and are more directed to that, but you are absolutely correct in the assumption that Aboriginal rights for Metis come prior to that, and even a lot of the communities that may be First Nations along the shore of Lake Superior were populated by these small communities of Metis along the way. Just the way that history works, the way that communities are built and the way it all worked out is part of the assimilation, through just the natural biases of the time and how people looked upon Metis or Indians or First Nations and all these various components. There was a lot of prejudice, and some of that is where these people sort of dispersed, as we well know, but that is definitely a good origin point.
Senator Campbell: Where is Muskegon?
Mr. DeLaRonde: Michigan.
Senator Campbell: Is it across from you? There are many people that live in Muskegon that are in this group, so would they be part of Red Sky?
Mr. DeLaRonde: It depends on ancestry. We do go by our ancestry very specifically. Jehan's fifth grandson built the first sailing ship on Lake Superior in Sault St. Marie and also looked after the fort in Wisconsin across the way, and he ran his ships back and forth for silver mining.
Senator Campbell: What is the name of the group from Quebec that was here last week? You should talk to these people; you should really talk to them. They are true historians, and the clerk can give you the name of the organization.
Mr. DeLaRonde: I would love that.
Senator Campbell: It was the Québec Metis Nation.
Senator Patterson: I would like to thank you for the presentations. Both of them focused on history, and I thought the summary of the recent constitutional history from Ms. Nash-McKinley was very helpful. I would like to ask two questions, first of all, to Mr. DeLaRonde and his colleagues.
As Senator Sibbeston said, I think this study is the first of its kind, at least that this committee has undertaken, and perhaps the federal government, and we are receiving a lot of positive responses from witness for doing this, which is gratifying.
You listed quite a number of recommendations. I will not go through them all again, but I did note them. Your recommendations left me wondering where we start recognizing that we will have to make some recommendations and, of course, as a committee, we will probably have to think about what is realistic. We always like to think when we are making recommendations about the chances of the federal government in its wisdom responding and doing something with them.
Of all the recommendations you made, you seem to feel, especially in your answer to Senator Campbell's excellent, well-informed questions, that gathering the history and traditional knowledge was quite fundamental to everything else, if I read you right.
If you had to prioritize and you wanted us to recommend a first step that would be feasible, rather than trying to fix all of those issues you have eloquently described, what would the first priority be?
Mr. DeLaRonde: In our instance, what would best benefit us is the clarification and understanding of a status Metis and understanding and deliberation on how Metis could be included in treaty. That is a key factor for us. Looking at the overall picture of Metis across Canada, there are many things. This is actually a short list; we had a 20-page document earlier this morning that I pared down to this.
In talking to and doing the documenting in the communities, I found I worked very closely with individuals on quests of traditional knowledge. I learned an outstanding amount of information. A person does not realize how much he or she knows and takes for granted until you sit down and probe a little about his or her heritage. It is just the simple things about how a person grew up that had long been forgotten that is a very important factor. I think it is a good process for any community to go through because you learn a lot about your population, and losing that data is a crime. We have been trying to document this. Part of this was my learning GIS software so we can adequately document all of this. That is one of the key factors for this, and I do talk in a couple of areas about this, and I think in the submission we have a little more of that.
In general, for the overall recommendation, I think that would be for Metis, but for us in particular, just sort of entertaining the idea and looking around the idea of the status Metis is very important to us.
Senator Patterson: Thank you. Maybe I can ask the same question, Mr. Chair, of the New Brunswick Aboriginal Peoples Council. I think your recommendation to us was that a process of negotiation needs to be launched to define Aboriginal rights. I was privileged to attend the three meetings you described in the 1980s, and I would not recommend we try it that way again. If that is your main recommendation, and I am asking you the same question, what would you like to see us recommend as a priority? I wonder if you could describe just how you think the negotiation could work. Getting a bunch of first ministers and Aboriginal peoples in one room, as Senator Watt will remember and knows, was a pretty frustrating exercise for all concerned. It was a good educational process and it was fascinating, but it ended up with zip.
The Chair: Do you have a question Senator Patterson?
Senator Patterson: I thought I made it clear.
If you had one recommendation to make to us — and I thought it might be the process of negotiation but I will leave that to you — what would it be? If it is the process of negotiation, how do you see that happening?
Ms. Nash-McKinley: It actually is through negotiation. There are plans and policies and things all put in place to deal with this. Aboriginal and treaty rights are protected in the Constitution of Canada. That definition includes Metis, Indian and Inuit. It would be to consult and accommodate. Consultation is a huge thing.
Our organization in New Brunswick is designed to consult with our Aboriginal constituents, so we know who they are and how they identify by consulting with them. The process is there. You could start in each province, each territory and have the organizations collect that information. I guess that would be one place to start. Most of them probably already have it.
Senator Patterson: Who would you negotiate with?
Ms. Nash-McKinley: The federal government has a fiduciary obligation to all Aboriginal peoples, regardless of status or residency. In New Brunswick they tend to leave out the off-reserve, non-status Indians, so it tends to deal with the reserves.
It is very difficult to keep up with the language because it keeps changing. Originally, when you referred to "nations," in our province it would be the Mi'kmaq, Maliseet and Passamaquoddy, so in New Brunswick there are three nations. There are 15 reserves, and now the government refers to them as First Nations. The language is confusing, at best, and it is always changing.
We are not consulted on how we are referred to. We do not have any opportunity to identify as citizens of those nations. Basically we are told who we are in our province. For instance, when you are talking to the province, they will identify us pretty much as New Brunswickers and tell us that we have access to mainstream programs and services. There are huge issues there with everything. It is a very fundamental issue.
Aboriginal people, in general, are studied to death. Any research project you want to find on Aboriginal people, I am pretty sure you can find it. They have an app for that. Did I answer your question?
Senator Lovelace Nicholas: Thank you, and welcome.
Do you self-identify as a Metis? We have had witnesses here from the West and they self-identify as being Metis people.
Ms. Nash-McKinley: In New Brunswick, they have to provide proof of who they are. You can self-identify, and I know anybody watching this at home knows I will say that you can self-identify, but unless your community recognizes you — and you cannot prove who you are. I can stand in my garage but that does not make me a car. You can self- identify, but there is also your community, your history, your culture and traditions that make up and provide evidence and support for who you are.
Senator Lovelace Nicholas: You are not associated with the Metis out West at all? Should I call you Metis?
Ms. Nash-McKinley: No, we are the New Brunswick Aboriginal Peoples Council. We are an off-reserve representative organization in the province of New Brunswick.
Senator Lovelace Nicholas: All right. I know who you are. How do you feel about the people who self-identify as Metis and not as Aboriginal? I find that kind of ironic.
Ms. Nash-McKinley: I really cannot speak to how they feel about how they identify. Basically, in one sense, I agree that their ancestry is Aboriginal, which is what gives them the Aboriginal rights. If you are Cree and French, if you are Ojibwa and French and English, it is your Aboriginal ancestry that gives you that Aboriginal right.
Senator Lovelace Nicholas: That is what makes this study unique, because some want to be Metis and some want to be recognized as Aboriginal. It is pretty confusing.
Are you funded by the provincial government or the federal government?
Ms. Nash-McKinley: The federal government.
Senator Raine: Good evening, and thank you very much for being here. It is interesting, I must say, and the two groups cover the full spectrum of the challenge in front of us. I personally have had my eyes opened very wide about the history of Metis people and how they impacted the settlement or really were the settlement of the West and the fact that there are big roots in terms of the union of the Aboriginal and non-Aboriginal people in Eastern Canada as well. They were part of building this country.
I guess we all know that there is no magic well you can go to for money to solve everyone's problems. If you were going to recommend some kind of support, how would you direct that?
In particular, Mr. DeLaRonde, how are you managing now with 8,000 members in your community? I think you are spread out over a large area.
Mr. DeLaRonde: Yes.
Senator Raine: I travelled the northern Lake Superior road this summer. It is unbelievably beautiful country, but it is huge. I cannot imagine paddling a canoe across that lake.
The 8,000 members of your community, are they all still living in the community or have they left for greener pastures but still stay connected?
Mr. DeLaRonde: I do not have exact numbers of how many people are still — I am working on the GIS database, naturally, to identify exact numbers of people and where they are.
There are many small communities all over the Robinson-Superior Treaty area, which is all the water that drains into Lake Superior. Our people were all over this area. Some have moved to other communities, like southern Ontario, pursuing lives and careers, but they still do share some connection with the North.
As generations are moving further and further away, it is important to some of the older people involved in our community to keep invested in their youth, and they try to keep them in mind. As they grow up in these large urban populations, they kind of forget about that.
We do have many people who try to bring their children back up North so that they can actually see what it is all about, as you say, travelling across.
Funding is my other point. A lot of our organization consists of volunteer effort. The chief and council are volunteer positions. I have been volunteering my time, and my father volunteered his time toward this. If the council and membership see that a project needs to be done, sometimes one can get funding to do certain projects, but it would be very limited, contract-based and specific to that need.
We do run traditionally. We try to mesh with the non-profit corporation and identify funding. As soon as you add a dollar to something, things get all askew sometimes, so we have created an entity called the Red Sky Métis Independent Nation Operations Council that handles funding. It is very objective. A project happens, the money comes in, and comes out. It is very accountable and specific to handling that so the nation can be run traditionally.
The election of the chiefs is through the Order of the Sash. I am talking to many people that could take over that position. You must have continuity in addressing important matters, the nature of our claims and all these things. If you have a very rapid-moving representative government, it does not lend itself to our position. Traditionally, that is how things ran; it is sort of this natural progression of how things work, and the community is involved on a daily basis. I talk to many people on a daily basis. We are constantly getting input through the community, and if people have an interest in something, we immediately ask them if they would like to volunteer some time and head that up. In many ways that works very well because people with an honest interest in achieving something — not just lining their pockets — will step up and do stuff.
We would use the money for legal costs and all these various components in establishing ourselves, and trying to set up an economic structure that can actually help our community over the long term. We are trying to develop an economic development structure so that we can become self-sustainable.
However, in the meantime, we still have to run all these programs and day-to-day things, trying to keep the rain off our heads and so forth.
That is basically where we are coming from. We are trying to cover some of our expenditure gaps and adapt where our donations and things go, from rent to trying to pay for legal fees.
Senator Raine: You have done some consultation with industry in your area. Have you received some settlement from them, or are they just looking for your input?
Mr. DeLaRonde: Can you elaborate on that?
Senator Raine: I see Hydro One Northwest Transmission Expansion Project. Do you have defined traditional territory?
Mr. DeLaRonde: Our traditional territory, we are asserting over the entire Robinson-Superior Treaty area, including the communities within. It lends itself to being even more confusing. I hate to put on your plate to have to figure this out, but this is the real effect of what we are aiming to do.
Senator Raine: Was the Robinson-Superior Treaty of 1850 limited only to Canada, or was that down into the United States and the southern shores of Lake Superior?
Mr. DeLaRonde: That is a good question. I would have to look into that. We focus more on the Canadian side, but I believe it extended.
Senator Raine: That treaty was between the British Crown and the 84 half-breeds who lived there plus First Nations groups? Are they all in the treaty?
Mr. DeLaRonde: It was documented in either the Alison Gale report or Ernie Epp's report that for the 84 half- breeds, there were a total number of people included in the treaty, but separate pay lists were kept for the Metis portion and were for some time. Through biasing and assimilation, these people spread out into these other groups, whether they were clumped in with Indian or First Nation or moved into the other community. They spread out and maybe migrated west to the Manitoba areas. This is all part of a natural progression that was happening.
Going back to the point, I get lost in history —
The Chair: We have a couple of questioners.
Senator Sibbeston: I guess this is the second round. I was going to ask Mr. DeLaRonde, when he speaks of the Robinson-Superior Treaty, was that one document that was signed both by the half-breeds and the Indians in that area that then constituted a treaty between those people and the federal government?
Mr. DeLaRonde: I believe there were two attempts at making the Robinson-Superior Treaty one in which the chiefs elected not to sign because the smaller Metis tribes were not included in it. I do not have all that information marshalled in front of me. I have been trying to build a case for this for some time and have a lot of research on that, in particular, to that exact case.
However, speaking from my recollection, that is the basis of it. Separate pay lists were included in that. We have a lot of documentation on that, which I would be more than willing to supply.
Senator Sibbeston: It may be the only document and treaty that shows the half-breed people signing with the federal government. I think the practice through time, as the government dealt with the Aboriginal people, with the Indians and half-breeds in the West, was to make treaties with the Indians and have the words "cede, surrender and relinquish all of their rights to lands." With the Metis, there was a scrip process. It was not a treaty or a big heavy laden document. I have seen the documents the Metis signed in the Northwest Territories — a one-page form that says by signing they relinquish their Indian title to land. The half-breeds were eventually treated quite independently from the Indian people, as it were.
John Edmond, Legal Counsel, Red Sky Métis Independent Nation: It was the Province of Canada that entered into these two treaties in 1850; it was known as the Province of Canada. There was no federal government until 1867, so it was the Province of Canada.
I wanted to rise to the bait that Senator Campbell proposed to me some time ago.
The Chair: One question for both of you, Ms. Nash-McKinley: Would the communities in your area meet the Powley criteria for Metis identification?
Ms. Nash-McKinley: I believe the people who have applied for membership in our organization have proven their Aboriginal ancestry and they could. Occasionally, it happens that you have to go back and revisit if you find out some new information, as you do in any other case. We have a volunteer committee and there is a lot of work to be done, so sometimes things go unnoticed, but they are corrected.
The Chair: You do use it as a test informally?
Ms. Nash-McKinley: I guess the courts in New Brunswick use that as a test. We ensure that our members know because when we represent Aboriginal people in the province, it is very important that we can ensure that we can prove our Aboriginal ancestry. For a non-status Indian, it is the court's practice to charge.
Also, when it comes to Metis issues, currently, there is a court case that the Congress of Aboriginal Peoples is waiting for a ruling on. It is the Harry Daniels case. For those of you who do not know Harry Daniels, he was a Metis leader who worked for many years on local and international levels on behalf of Aboriginal peoples. He was a principal figure in having Metis and Inuit included in the constitution talks when the Aboriginal affairs minister then would have been Jean Chrétien.
The three main arguments that the Congress of Aboriginal People are making are that Metis and non-status Indians are Indians under section 91.24 of the Constitution. The Crown owes Metis and non-status Indians a fiduciary duty as Aboriginal peoples, and Canada must negotiate and consult with the Metis and non-status Indians on a collective basis through representatives of their choice, with respect to their rights, interests and needs as Aboriginal peoples.
I just want to add that because that ruling is supposed to come down any day. It has been a couple of decades in the courts. We are awaiting that and it will be good information for the committee to have.
The Chair: Thank you very much for that. Mr. DeLaRonde, I wish to direct the same question to you about Powley.
Mr. DeLaRonde: I actually referred to that. I have all the 10 criteria to the Powley case written in our submission. I address each one in particular to that.
The Chair: To be fair, we just received it before the meeting so we have not reviewed it.
Mr. DeLaRonde: I understand.
The Chair: Thank you very much.
Senator Patterson: My question is to the New Brunswick Aboriginal Peoples Council. You are part of CAP and you talked about negotiation. The Congress of Aboriginal Peoples has negotiated accords on cooperative property policy development between themselves and the Government of Canada. I think there was one in 2005, and subsequently there was the Métis Nation Protocol in 2008, under which the parties agreed to engage in discussions on various issues.
Could you tell me what you know about the status of those discussions to date? Are they active, and have they had any outcomes that have impacted your New Brunswick Aboriginal Peoples Council?
Ms. Nash-McKinley: If it is okay for the chair, can I defer to the national vice-chief, who is with us?
The Chair: Yes.
Mr. Swain: Thank you for that question. The Congress of Aboriginal Peoples actually has had different political accords with the federal government. It is funny you brought this up. We are currently renegotiating that political accord. We have just received a letter back from Prime Minister Harper and from Aboriginal Affairs Minister John Duncan. We actually are entering into renegotiating to make the accord more of a living document.
The last accord was signed by Harry Daniels, whom my colleague spoke about. Unfortunately, that accord was created and sat on a shelf and did not have political legs. We have approached the federal government to renegotiate an accord that actually will be a living document that has some substance to it so that we can address many of these issues.
While I have the floor, I wanted to make mention of the Harry Daniels case. It will be important. For 13 years it has been in the Federal Court and we think there will be a decision any time now. If there is a positive ruling, these three issues will substantially change the whole environment when it comes to Metis and non-status Indians in Canada.
Unfortunately for Metis and non-status issues, it always seems we have to go to court before we can get negotiations going. My colleague mentioned that she really thought that a table to negotiate different issues was vital, and we ask the Senate committee in its deliberations to really give that good thought and make it part of the recommendations.
You were talking about the three constitutional processes where a lot of dialogue took place and they were frustrating because they did not get ratified. I can talk about the Charlottetown process because I was part of the Métis Nation of Ontario at the time and was a signatory to the Metis Nation Accord. What was significant about those constitutional processes? They were agreed upon by every government in the country, including the federal and provincial governments, and it was actually ratified by those governments. It was turned down, unfortunately, by the referendum that took place in the country. However, there still was an agreement by governments that actually negotiated that.
As I said, the people of the country turned the referendum down, but we made some advancement. We made advancements on these three issues that some decisions would be made. You cannot turn the clock back. Those were negotiated and were there, and unfortunately constitutional talks are off the table and people are staying away from that. We probably will not see any constitutional talks in our lifetimes. However, I want to emphasize how negotiation still is an important process.
The Chair: Thank you very much for that. That is a great point, actually.
I want to thank each of you for your presentations. They were excellent. As always, it is nice to hear a different perspective from different parts of this country. I thank each of you for coming here tonight. I will end this meeting for this evening.
(The committee adjourned.)