THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Tuesday, May 14, 2019
The Standing Senate Committee on Aboriginal Peoples met this day at 9 a.m. to study the subject matter of those elements contained in Division 25 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures.
Senator Scott Tannas (Deputy Chair) in the chair.
The Deputy Chair: Good morning. 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 either in the room, on television or listening via the web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of the Algonquin peoples.
I am Scott Tannas from Alberta, and I have the privilege of chairing today’s meeting of the Standing Senate Committee on Aboriginal Peoples.
Today, we are starting our examination of the subject matter of those elements contained in Division 25 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019, and other measures.
Before we begin, I would invite my fellow senators to introduce themselves.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Francis: Brian Francis, Prince Edward Island.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba region.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
The Deputy Chair: I would like to welcome to the committee the National Chief of the Congress of Aboriginal Peoples, Robert Bertrand, and Jocelyn Formsma, Executive Director of the National Association of Friendship Centres. Thank you for appearing before the committee this morning.
Before we start, we have speaking notes from National Chief Bertrand in English only. Are we agreed that we will accept a unilingual document for our use this morning?
Hon. Senators: Agreed.
The Deputy Chair: We’ll start with opening remarks from Chief Bertrand, and then we will follow with Ms. Formsma.
Robert Bertrand, National Chief, Congress of Aboriginal Peoples: Good morning, senators, representatives and guests. Thank you for inviting me to participate today on the pre-study on Bill C-97 on behalf of the Congress of Aboriginal Peoples.
I wish to acknowledge that we are on the traditional and unceded territory of the Algonquin peoples and their descendants.
Division 25 of Bill C-97 establishes the departments of Indigenous Services Canada and Crown-Indigenous Relations Canada and sets out ministerial duties. CAP and our affiliates were not consulted on the division of Indigenous and Northern Affairs Canada into these two departments.
In our view, through this legislation the government is continuing to impose colonial and paternal governing structures. We are concerned that the bill defines the mandate of Indigenous Services Canada quite narrowly to only provide programs and services to those Indigenous individuals it deems eligible.
First, I will speak to the definitions in the legislation. As we all know, the Canadian government has a history of using definitions to assimilate and exclude our peoples. In Bill C-97, Indigenous peoples has the meaning assigned by the definition of Aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982. In this act aboriginal peoples of Canada include the Indian, Inuit and Métis peoples of Canada.
The definition therein extends to CAP’s constituency. For over 48 years, CAP has been advocating for the rights and the needs of off-reserve status and non-status Indians, Metis peoples across Canada and Inuit of southern Labrador, the majority of whom live in urban, rural and remote areas.
CAP believes that the government must adhere to the definition of Aboriginal peoples as defined in the Constitution in its development of legislation, programs and policies for all Indigenous peoples. However, what’s not clear in Bill C-97 is the definition of eligible Indigenous individuals, which is referred to under several items.
CAP submits that persons who are Metis and non-status Indians must be explicitly included in the definition of Indigenous individuals within the bill so that they can benefit from services provided for Indigenous persons of Canada.
In 2016 the Supreme Court of Canada unanimously affirmed in Daniels v. Canada that Metis and non-status Indians are Indians under subsection 91(24) of the Constitution Act, 1982. The government must acknowledge their responsibility to legislate for Metis and non-status peoples, as made clear in the Daniels decision. Bill C-97 should explicitly reflect this responsibility.
Clarification is also needed on the government’s definition of an Indigenous governing body included in Bill C-97. It is currently defined as “. . . a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.”
We request clarification as to whether urban and off-reserve Indigenous organizations are considered governing bodies. Who invests these organizations with authority and who will provide services for all Indigenous peoples in urban and rural settings?
Since the functional creation of Indigenous Services Canada, we have not had positive engagement with that department. Recently, in January 2019, CAP invited the new Minister O’Regan to meet with us to discuss the department’s mandate and CAP’s political accord with the federal government, as well as our work to improve socio-economic conditions for Indigenous peoples living off reserve in Canada.
In an April 14, 2019, letter the minister’s office refused and referred us to work with the Minister of Crown-Indigenous Relations.
How can Canada’s Minister of Indigenous Services refuse to meet with a national Indigenous organization and refuse to acknowledge the need to improve the socio-economic conditions of Indigenous peoples regardless of where they live?
Bill C-97 sets out in subclauses 6(1) and 6(2) that the minister is responsible in matters related to child and family services. This year, Indigenous Services Canada also introduced Bill C-92 without consultation with our peoples. If passed, the legislation will leave huge gaps in child and family services for the off-reserve, non-status and Metis populations.
The preamble of Subdivision A of Division 25 of Bill C-97 states that the Department of Indigenous Services will take:
. . . takes into account socio-economic gaps that persist between Indigenous individuals and other Canadians with respect to a range of matters as well as social factors having an impact on health and well-being, . . . .
The inequalities that divide Canada’s Indigenous and non-Indigenous populations are widely recognized, and these inequalities affect CAP’s constituency.
The Canadian government has created programs that are designed to address the gaps in educational attainment, income equality, employment and access to health services, such as the existing Post-Secondary Student Support Program, the Non-Insured Health Benefits for First Nations and Inuit, and the University and College Entrance Preparation Program that now fall under Indigenous Services Canada. However, access to these programs is limited to those who are registered under Canada’s Indian Act legislation or are recognized as Inuit.
Our peoples continue to be excluded from accessing these vital programs. Our youth who need the most support to get the best start in their education are left out.
Bill C-97 sets out the minister’s duty in matters of education. Off-reserve First Nations, Metis, Inuit and non-status peoples continue to have lower post-secondary education attainment levels compared to non-Indigenous populations. The 2016 data show that only 52.1 per cent of non-status Indigenous persons between the ages of 25 and 64 had a post-secondary qualification. This falls far short of the almost two-thirds of the non-Aboriginal population who had post-secondary qualification.
In addition, the non-status Indigenous population had an unemployment rate of 12.7 per cent compared to 7.4 per cent for the non-Aboriginal Canadian population and a median income of $26,145 compared to $34,604 for the non-Aboriginal population.
In the Daniels decision, the Supreme Court of Canada characterized Metis and non-status Indians as being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. At the Federal Court in the same matter, Justice Phelan acknowledged Metis and non-status Indians were being deprived of programs, services and intangible benefits recognized by all governments as needed.
The Supreme Court ruling made clear that it would have enormous practical utility for those who found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution. A declaration would guarantee both certainty and accountability. Daniels resolved the question of responsibility to our peoples.
For the purposes of accountability and certainty we would ask that the wording of the bill on the mandate of the Department of Indigenous Services be broadened to indicate the responsibility to serve Metis and non-status populations.
There is an opportunity here for the federal government to address the inequality and discrimination it has too often propagated. It is time for Canada to recognize that its responsibilities to our Indigenous people cannot be limited to those it chooses to recognize.
In the spirit of reconciliation, CAP calls for Indigenous Services Canada to serve all Indigenous peoples regardless of status or where they live. We believe that all Indigenous citizens have the right to be treated with respect, dignity, integrity and equality.
All Indigenous peoples must have substantively equal access to programs and services. Our Indigenous rights, as recognized in the Canadian Constitution and the United Nations Declaration on the Rights of Indigenous Peoples, must have equal protection.
Thank you. Meegwetch.
Jocelyn Formsma, Executive Director, National Association of Friendship Centres: My comments won’t be very long. I appreciate the opportunity to be invited to speak to the Senate on behalf of the National Association of Friendship Centres.
The bill is huge, but I will make some comments on its sections that are relevant to what we are presenting to this committee.
In terms of the portion that speaks to the Department of Indigenous Services, we note that the mandate is broad enough to consider the work that friendship centres do. We read this as being included in that mandate. Given that we’re representative of the network of friendship centres across Canada, we want to ensure that the new department views our organization as a vital stakeholder when they’re talking about the work they will be doing, including the gradual transfer of departmental responsibilities to Indigenous organizations, which is in the preamble portion.
We’ve brought forward our perspectives on the definitions of Indigenous governing bodies and Indigenous organizations. Whether or not friendship centres would be included as an Indigenous organization, to be clear there might need to be some amendment to that definition, which would include removing the reference to an Indigenous governing body or any other entity that represents the interests of an Indigenous group.
As we’ve mentioned, friendship centres don’t claim to represent peoples. We represent friendship centres that have a perspective and are civil society organizations that provide a wide range of services but are also community hubs for Indigenous peoples living in the urban setting.
While we are a major provider of services and are major hubs for urban Indigenous communities that exist across Canada, we would not take the further step to say that we represent peoples, so to speak.
However, we are a major stakeholder within the Indigenous urban landscape when you look at our network of over 112 local friendship centres and provincial and territorial associations. Every year we serve hundreds of thousands of Indigenous peoples, First Nations, Metis and Inuit, and hundreds of thousands of children and youth. Not to be included as an Indigenous organization or major stakeholder within this bill, we feel that would be a mistake.
What we would put forward would be to look at the definition of Indigenous organization as an entity or institution owned and operated by Indigenous people, which is what friendship centres are. We may not be affiliated with a political organization. Some of our members are and have good relationships with local First Nations, Metis and Inuit organizations. On the whole, we are owned and operated by Indigenous people generally and usually a mix.
I’ll comment on the minister’s responsibilities. Since there’s no distinction made within the minister’s responsibilities, we want to make sure they include all Indigenous peoples of Canada, which includes urban and non-status. Under the minister’s duties, I mention again the reference to Indigenous organizations where it becomes important for that definition to come into play.
Under clause 13 there’s support for Indigenous bodies. That definition says:
The Minister may support Indigenous bodies that specialize in research or statistics, . . . .
The National Association of Friendship Centres was the secretariat for a number of years for the Urban Aboriginal Knowledge Network, which was a conglomerate of regional hubs that did community-driven research. To look at us and say that we specialize in research or solely do research might not fit within this definition. However, we were the secretariat that supported and facilitated community-driven research.
That was important because we wanted the community to be in charge of the research and leading the academic institutions. We aren’t solely a research institution. We wanted to ensure that support for Indigenous bodies, which term is not defined within the act, would be broad enough to include organizations like ours that do research as a component of our overall work.
I’ll just speak to the Crown-Indigenous Relations and Northern Affairs Canada or CIRNAC component. Similarly, I want to ensure that the definitions and the preamble include all Indigenous peoples. I want to provide some perspective to the committee, especially around the implementation of UNDRIP, the United Nations Declaration on the Rights of Indigenous Peoples.
Again we see ourselves as a major stakeholder. We don’t see ourselves as politically representing peoples. However, in Article 5 of the United Nations declaration states that:
. . . Indigenous Peoples have the right to conserve and reinforce their own political, judicial, economic, social, and cultural institutions . . . .
We feel we are definitely a social institution. We are not necessarily political, legal or economic, but we are certainly a social institution. Article 23 states that:
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.
It goes on to say that they:
. . . have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
We feel we are Indigenous peoples operating our own institutions. Article 33 states:
2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.
Finally, Article 34 states:
Indigenous peoples have the right to promote, develop and maintain their institutional structures . . . , in accordance with international human rights standards.
When we think about Crown-Indigenous Relations, the connection between that department and friendship centres isn’t quite the direct connection you would think between the Assembly of First Nations, the ITK and any other NIO. However, we feel that we have a strong sense of what’s going on within the communities.
People walk through our doors every day. We certainly would welcome a relationship and partnership with the department to be able to give those perspectives so that the policy that we’re creating is based on good information and what’s actually happening on the ground.
We feel that friendship centres are an expression of Indigenous people as individuals and an expression of self-determination. It’s people coming together to find resources and collect what they need for other people within the urban communities they’ve created. We don’t look at these as pan-Indigenous communities. They are Indigenous communities made up of many different people from many different nations within those communities.
We can speak to the ways in which friendship centres promote self-determination through service provision, education, cultural revitalization, economic well-being, food sovereignty and language revitalization.
Those are my comments on the bill, and I would welcome any questions. Thank you.
Senator Coyle: Thank you to both of you. You were very clear and helpful in your very specific recommendations. I have a specific question for each of you, but before doing that I have a general question to ask.
The new Minister of Indigenous Services was in the Senate. He was asked a question by our colleague, Senator Joyal, regarding this move as part of a move toward eliminating the Indian Act. One thing the minister said was:
That was done precisely to accelerate the work of moving First Nations out from under the Indian Act, and in fact to get rid of it entirely.
I would like to hear from each of you, your sense of agreement or disagreement with this fundamental shift. This is not just a technical shift. This is moving Canada on a new path. At least, that’s what is being said here.
What is your response to the general movement of creating these two new entities as part of moving us out from under the Indian Act and in fact eliminating it ultimately?
Mr. Bertrand: As far as CAP goes, we are in favour of the new path. As I’ve said on a number of occasions that I’ve been here, we strongly object to the off-reserve constituents that CAP represent always being left out. A major part of the Indigenous population out there is affected and will not be represented by the organizations.
From reading the preamble, they will deal with First Nations, Metis and Inuit. Many people are falling through the cracks. Those are the people we represent who will not be represented in this new path, or whatever you want to call it.
Ms. Formsma: I have two questions to ask. If that were on the horizon and we were to be engaged, what will people need and what will they need from us as friendship centres?
When there is a change to the Indian Act, we find there’s also a change in what people need from friendship centres. If people suddenly become status Indians under the Indian Act after a change to that act, we find we have more people coming to the centres to find out what it means to finally get status and looking for information. When there are changes, it affects how we are able to provide services.
I don’t have the final report here, but we did a number of consultations with friendship centres across Canada on Bill S-3, the citizenship bill. I don’t have the final report, so I couldn’t provide an overview. I remember sitting in on our national gathering and people talking about how citizenship affects service provisions.
A number of First Nations citizens come to friendship centres because they are unable to access those services within their First Nations. People who are away from their home territories aren’t able to access their Aboriginal treaty rights. They rely on the work of friendship centres to meet those needs.
I might be able to share the results of that final report with the Senate, if you thought it might be helpful to see what urban Indigenous peoples are saying about First Nations and citizenship within First Nations in that bill.
Senator Coyle: Your point is very clear, Chief Bertrand, in terms of being specifically mentioned so that you’re not left out yet again. I don’t mean you personally; I mean all the people you represent who have a right that is clearly articulated since the Daniels decision. You want to make sure that is explicit.
Ms. Formsma, you’re concerned about the definitions section. You’re not an organization or part of a group of organizations or governing organizations that are representative of Indigenous peoples in Canada, so you could perhaps inadvertently be left out because of how it is currently articulated.
I think I heard you say organizations owned and operated by Indigenous people. Could you say again the wording you wanted to have either replaced or added?
Ms. Formsma: The definition we’re proposing would mean an entity or institution that is owned and operated by Indigenous people, and this would be up for discussion as well.
This would leave the door open because there are organizations like friendship centres and other Indigenous organizations, with which you could consult or ask to do some of the work required under each of these departments or enter into agreements that are not necessarily the Indigenous governments or Indigenous representative organizations.
We have friendship centres that have direct relationships with the federal government for projects and programs they are operating. A lot of them are even supported by local First Nations governments or are in partnership with regional Metis organizations.
I don’t want to see the hands being tied. I wouldn’t want to see a bill passed, and when we get down the road later we find out that they can’t be funded for a program because they are not an Indigenous organization under the definition in that bill.
Senator Coyle: To clarify your intent, when you say “owned and operated,” that could also mean private sector and not just civil society. I believe your intention is civil society as well as the government, and not necessarily private sector. Lots of the private sector is owned and operated by Indigenous people.
Ms. Formsma: I am speaking from a civil society perspective. Depending on what project would be conceptualized under the act, just don’t leave that door closed. Perhaps there is better wording that could be used to ensure the intent of Parliament is there. We are putting forward some thoughts as to how we can add some of those additional words.
I was also trying to look to what was in the international scope around the wording the United Nations uses. They use the generic term of Indigenous peoples organization. I couldn’t find their definition within any of the documents I was looking at. I thought maybe we could borrow some of that wording. At the UN level, that term has been criticized but it also includes Indigenous governments.
They have to be included under Indigenous peoples organization, but it also includes civil society Indigenous organizations as long as they are by and for Indigenous peoples.
Senator LaBoucane-Benson: Senator Coyle got to the heart of one of my questions around owned and operated. You are proposing an interesting definition. You haven’t looked into the legalities of that, have you?
I come from the not-for-profit sector as well. This is something we have been trying to define for a very long time. How do you know an organization is truly operated by Indigenous people and brings forward an Indigenous world view? That would be one for the lawyers to figure out.
In Alberta we have the Metis Settlements General Council. We have a huge membership in our Métis Nation of Alberta. We have three treaty organizations and 44 or 45 First Nations.
Could you give me an idea of the numbers of non-status people? Within the definitions, all of the ones I mentioned would be captured and would be able to build a relationship with the federal government in service delivery.
Ms. Formsma said that the friendship centres have relationships and funded programs. I know that other not-for-profit organizations do. I am trying to figure out what would be the breadth of the Indigenous people not captured in this bill.
Mr. Bertrand: In the 2016 census it was reported that there are about 200,000 non-status nationally.
Senator LaBoucane-Benson: But that includes Metis.
Mr. Bertrand: That does not include Metis.
Senator LaBoucane-Benson: I understand the definition but in the census there are 200,000 across Canada. I was asking about Alberta, so that seemed like a lot.
A lot of governing bodies and a lot of not-for-profit organizations could see themselves in this bill building relationships with the federal government and moving forward in a good way. I agree that we could have a bit of definition clarification and be more robust.
I was trying to figure out, of all the Indigenous people in Canada, who would not be represented in this bill. It would be 200,000 non-status people.
The Deputy Chair: For scheduling purposes, I wanted to let you know that we invited the Assembly of Manitoba Chiefs to appear today. They just confirmed in the last few minutes that they can attend the 10 a.m. scheduled session.
We will hear from them. They will be by themselves. We’ll extend our meeting to about 10:30 to hear from them.
Senator Francis: Mr. Bertrand, this is a question for you. You said that in 2016 the Supreme Court of Canada unanimously affirmed in Daniels v. Canada that Metis and non-status Indians were Indians under subsection 91(24) of the Constitution Act.
Could you explain briefly what is the difference, if there is a difference, between Indians as defined under the Constitution versus the Indian Act?
Mr. Bertrand: As you can very well imagine, it is difficult to find a definition. After the Daniels decision back in 2016, we were expecting a chance to sit down with the federal government to start defining a Metis and an Indian according to Daniels.
Unfortunately, even with the signing of our political accord back in December, since that time we haven’t actually sat down with the federal government. When I meet our different PTOs and when I talk to the grassroots, they are telling me that if you are a Metis or non-status, with the Daniels decision you are now considered an Indian and should have all the rights that go with that title.
In my discussions with members of the government, they don’t see it like that. They don’t see it the same way. What we have to do is sit down and start talking. You cannot go to a dance alone. You need to have a partner, and right now the partner is not showing up at the discussion table.
Senator Francis: In your opinion how does the government see it?
Mr. Bertrand: As you can tell by the preamble to this bill, when they say, “nation to nation” it is First Nations, MNC and ITK. The majority of our constituents are left out. I have said all along it’s wrong that you are leaving out such a large portion of the Indigenous population.
Senator Doyle: I know you are not pleased with the fact that the Congress of Aboriginal Peoples wasn’t consulted in the way it should be. Do you feel that in the long run the new dual structure will more adequately reflect the needs of the Aboriginal people? Laying aside the fact that you are not pleased to have fallen through the cracks and what have you, do you think that in the long run it will be a major improvement for Aboriginal people generally?
Mr. Bertrand: As I mentioned before, I hope they are heading in the right direction. However, as I see it right now, you cannot be just for a small proportion of the Indigenous population. When this government was elected, I remember they were talking all about inclusion. We were quite happy. All of our PTOs were happy they would be included.
However, as time went on, we saw that a large portion of the population was not included in the government’s decision making. When they handed out resources, a large population was being excluded. It makes for great board of directors meetings because our PTOs are quite upset and quite mad at being constantly passed over.
Coming to meetings like this one is important. As you know, I have been here a few times and I always say we have to be included. I am hoping this will reflect in the different reports that you write so that the government in there now will finally accept there is another large group out there.
Senator Doyle: When you look at the number of groups represented and contacted, it amounts to about 800,000 Indigenous people, 1,700 participants, 100 sessions and 400 communities. I am wondering why you would be left out, given the numbers that were actually consulted by government on this issue.
Mr. Bertrand: I did not see those numbers, senator.
Senator Doyle: They are covered in Part 4, Division 25, by the various measures related to Indigenous matters and questions unanswered. I would imagine that would cover this bill as well. It mentions the numbers of Indigenous groups that were represented.
Mr. Bertrand: I think they met with a lot of First Nations and MNC groups. Yes, it’s to their advantage to participate in the discussions they had, but all their discussions would naturally be to help their organizations.
If you talk to 20 First Nations, they will be in favour of what is done for First Nations. However, the large membership of non-status and Metis were not included, for instance. These people were not contacted. Their points of view are not reflected in this bill. That’s what we are saying.
Senator Doyle: Because you are off reserve and urban, would it be difficult to consult?
Mr. Bertrand: We wrote to the minister. We asked why we were not part of the discussions. We didn’t even have an answer to our letter.
I don’t want to put words in their mouths, but they were specific in their talks in terms of with whom they were to have discussions. That is my own personal opinion.
Ms. Formsma: Perhaps I could add our experience with the split of the department. Indigenous services, friendship centres and service delivery are a very natural fit, so we have a relationship with that department. However, when we go to CIRNAC, Crown-Indigenous Relations and Northern Affairs Canada, we are finding that we are not there because we are not deemed an organization representing rights holders. I don’t know how else to say it, but we are not there.
I am not saying that we should, we want or we are trying to elbow our way in. When it comes to creating good policy and when it comes to developing programs at the federal level, friendship centres have critical data and an information perspective based on the everyday realities of what is needed by the Indigenous people who are walking through our doors. We are getting better at collecting the data, and we are in the process of trying to look at what are the trends over time.
We want to be asked for that information. This is not to say consult us as though we were Indigenous peoples being consulted. We know that sometimes consultations with First Nations, Metis and Inuit people are happening in friendship centres. We provide the space, the food and the time for those consultations to happen.
We are looking for some engagement and recognition that we could and should have a relationship with that department where it makes sense. We really want to provide those perspectives and in some cases in partnership with the Indigenous governments as well.
Senator Patterson: My apologies for being late this morning.
First of all, Mr. Bertrand, I heard you say in answer to a question, “we are in favour of the new path.” You also referred to the nation-to-nation relationship.
In clause 7 of the bill under Crown-Indigenous relations the bill talks about:
(c) advancing reconciliation with Indigenous peoples, in collaboration with Indigenous peoples and through renewed nation-to-nation, government-to-government and Inuit-Crown relationships.
You said earlier that:
CAP and our affiliates were not consulted on the division of Indigenous and Northern Affairs Canada into these two departments.
You went on to say that:
. . . the government is continuing to impose colonial and paternal governing structures.
Could you explain why you used those quite negative terms of “colonial” and “paternal?”
You said there was no consultation. Yet, you have said that you were in favour of the new path. I can’t quite understand why you would say you are in favour if you were left out of the consultations and you call it “colonial” and “paternal.”
Mr. Bertrand: We are in favour of the idea behind this bill. What we are strongly against is the fact that again we are being left out. When I mentioned, “to impose colonial and paternal governing structures,” we are being told again, instead of being asked to participate or being asked for our ideas. These two new government departments will say, “What’s good for First Nations on reserve will also be good for the Indigenous people that live in urban and rural areas.”
We know you cannot put the two of them together. That’s what I meant, senator.
Senator Patterson: I think you used the term, “eligible Indigenous individuals.” That leaves you out unless you are explicitly included in the definition.
I am looking at the powers, duties and functions of the Minister of Indigenous Services under subclause 6(1) where it says:
. . . to the provision of services to Indigenous individuals who are eligible to receive those services under an Act of Parliament or a program of the Government of Canada for which the Minister is responsible.
Then, in subclause 6(2) it says that there is a whole list of important services: child and family, education, health, social development, economic development, housing, et cetera.
Mr. Bertrand: Infrastructure.
Senator Patterson: Are you saying that by tying the powers of the minister to Indigenous individuals who are eligible to receive services under an act of Parliament or a program of the Government of Canada, it leaves your members out because they are not eligible to receive services under an act of Parliament or a program of the Government of Canada? Is that right?
In other words, have they excluded your members by this definition of who is eligible to receive services? Do I understand you correctly?
Mr. Bertrand: I just briefly read the preamble. I made a note of the ministerial duties that you mentioned a while ago about child and family services. I wrote beside it, “Is it on or off reserve?” The bill doesn’t come out and say that we will be helping both on and off-reserve kids, Aboriginal children.
We want the bill to be clearer by including Indigenous people who live off reserve. When I said that we were in favour, yes, we are in favour if these changes are made to the bill.
Senator Patterson: The friendship centres perform a wonderful service which is colour blind. Is that a good term to use? It’s open to all. We have received some very impressive presentations from the national association and individual friendship centres, so I would hope that you would be respected in this departmental reorganization.
Senator Coyle and Senator LaBoucane-Benson also pointed out that maybe changing the definition to “owned and operated by Indigenous people” might be too broad a net, so I won’t ask you again about that.
Could you tell us where your funding comes from? Do you have funding from Indigenous Services Canada or through Crown-Indigenous Relations? It’s important to me because if you are left out of the act and yet you are receiving funding from either of these ministries, this would be relevant. I won’t ask about the northern program.
Could you explain whether you get funding from these departments?
Ms. Formsma: Yes. I’ll comment on the definition again. The point is taken, and I wanted to put on the floor some new ideas. In the existing definition, the piece we are reacting to is the governing body, which refers to the other definition. That’s not the issue for us, but the other piece is any other entity that represents the interests.
We could make an argument that we represent interests and we represent service delivery. If the intent of Parliament is that we would be included in the definition, I think we want to make sure that’s clear.
Right now, we get a vast majority of our funding from federal departments and the Friendship Centre Program operated under the urban programming for Indigenous peoples that has four streams. Friendship centres get one of those streams and are also included, depending on the region and the urban coalition tables. That’s the Friendship Centre Program funding.
Senator Patterson: Under which department?
Ms. Formsma: Under Indigenous Services. We don’t receive program funding from Crown-Indigenous Relations, but we have received project funding to do certain initiatives. For example, the most recent one was Bill S-3, the consultation and citizenship with First Nations who are urban-based. We received some money to do some of those consultations.
Senator Patterson: Would you add to the Indigenous organization definition “including friendship centres” or “including the National Association of Friendship Centres,” particularly?
Ms. Formsma: Yes, absolutely. For us it would be ideal if we were specifically named in there.
Senator McCallum: I want to turn to Mr. Bertrand’s term jurisdictional wasteland. This bill incorporates two very different processes. It’s a budget bill and it’s a cleaving of the INAC foundation related to treaties. The late introduction of this bill makes it very difficult to make any meaningful changes when they are wrapped up with a budget bill.
It seems that this bill will throw your organization and other organizations further into jurisdictional wasteland. Your organizations must expend valuable resources, trying to play catch-up with bills like Bill C-91, Bill C-92, this bill and the divorce bill. All of these bring with them problems of inequity, discrimination and supervised neglect.
Could you describe the jurisdictional wasteland? It seems to leave you in such a unique position in Canada where it makes it difficult for you to advocate for your people.
Mr. Bertrand: There are many different answers to your question.
Yes, we’re in a wasteland, the majority of which is caused by these departments not contacting and not coming back to us to ask us for our opinion. They’ve pushed us aside. They’re not asking for our opinions, and we’re there in a wasteland.
Many of the 200,000 non-status Indians, according to StatsCan, are not receiving the services they are entitled to. The Daniels decision was quite true when they said that they were now considered Indians.
Would they be entitled to all of the services? We don’t know. We would like to sit down with the federal government and start negotiating. If they’re not entitled to all, what are they entitled to? All we want to do is to sit down and start discussions with the federal government.
Until that is done, we are in this wasteland created by the government.
Ms. Formsma: I’ll speak quickly on that point. The friendship centres end up being experts in navigating multiple jurisdictions, including First Nations, Metis and Inuit, not as much probably, for the participation of the Inuit in the south and within the federal and provincial governments. People come in who need health services, so the friendship centres end up having to be the navigators to ensure that they get what they deserve and what’s within their rights.
I feel as though the splitting doesn’t affect so much the jurisdictional quagmire that Indigenous people find themselves in generally, but the result is that friendship centres end up having to become well versed in what those will mean so that we can better serve the people who come through our doors.
Senator Pate: There have been discussions about overlapping jurisdiction between the departments and how it would be defined, the jurisdictions of the different groups of First Nations, Metis and Inuit, and the types of organizations that would be involved.
Given that one of the eventual objectives is to see the demise of the Indian Act and the demise of the paternalistic and colonial nature of Canada’s relationship with Indigenous peoples, what do you see as a preferred approach in terms of achieving meaningful engagement, consultation and then moving to a position of joint governance, if I can put it that way?
Everybody is saying they haven’t been consulted, which still leaves it as a paternalistic approach to being consulted as opposed to an engagement process.
Ms. Formsma: I will answer your question with a question, which is classic. When it comes to what it is that the government needs to be consulting on, what makes sense? Where are the people? What already exists within that landscape?
I sometimes use the example of the Wet’suwet’en Nation. They had a formal process of consultation, at least they thought, but the people felt like they hadn’t been consulted. Oftentimes the friendship centre networks know the communities in which they operate and can be a resource to bring the community into their spaces to be consulted.
We’re not saying that you have to consult us as friendship centres. However, if you talk to us, if you use us as a resource and you use the network that we’ve built in whatever community, the friendship centres are the ones that can bring in people from urban settings to be consulted on whatever it is.
That could include being a resource to First Nations governments for their own people, which happens in places like Sudbury and the Sault Ste. Marie for the Anishinaabe in that territory.
It’s more recognizing that we are the resource and we have a role in this regard. The more information we can provide to our membership around the jurisdictions the better. It’s not up to us as friendship centres to determine who should have those jurisdictions. It’s up to the people themselves. We’ll have to eventually navigate whatever those jurisdictions are within the centres we operate. We need to know and we need to be able to navigate those to help the people.
Mr. Bertrand: CAP, as I mentioned before, has PTOs. We have organizations in every province. All those organizations are divided either into regions or zones spread across the province.
I am more familiar with the Native Alliance of Quebec, or NAQ. We have communities across the province. If we have a consultative event, in a matter of a couple of hours we know what the people are thinking up in Côte-Nord, Abitibi or wherever.
The fact is that we’re not consulted. We find information that could be very valuable for the federal government, and it is not being used.
Senator Christmas: I recall last year, Mr. Bertrand, that CAP signed a political accord with the Government of Canada. If memory serves me correctly, that was with Minister Bennett as the Minister of Crown-Indigenous Relations.
Could you give us an update on how those discussions on the political accord are progressing?
Mr. Bertrand: Senator, thank you very much for this very important question. Yes, we signed a political accord. As I recall, it was in December 2018. We meet every two weeks, once by conference call and once in person. I must tell you that progress is very slow. We hope that we will finally be able to have something tangible in a few months, but I can tell you that so far... One of our chiefs said that —
— we’re spinning the tires in the mud with the meetings that we’ve had so far.
It’s tough. We hope we will get some concrete action in the future, some results, but right now it is very hard. Were some of the discussions brought about because of an upcoming election? Is it because of this bill we’re discussing right now? We don’t know, but we do know that when the other four NIOs signed their political accords or whatever — they have different names for different organizations — there were resources attached to them. CAP was the only one that didn’t have any resources attached to it.
Right now, whenever we bring in the presidents or the chiefs to discuss, CAP has to pay for all of the expenses, the hotels and the meals. We will keep doing it because it’s important, but we are getting the short end of the stick.
Senator Christmas: Mr. Bertrand, if you don’t mind, in future appearance I’d like to ask you the same question.
The Deputy Chair: On behalf of all of us, I extend thanks to Ms. Formsma and National Chief Bertrand.
For our next panel of witnesses, I’d like to welcome Marcel Balfour, Senior Policy Analyst with the Assembly of Manitoba Chiefs. Welcome, Mr. Balfour, the floor is yours.
Marcel Balfour, Senior Policy Analyst, Assembly of Manitoba Chiefs: Tansi. I thank members of the Standing Senate Committee on Aboriginal Peoples for the time to speak to you on the subject matter of Division 25 of Part 4 of Bill C-97.
Only tabled in Parliament on March 19, 2019, and introduced in the House of Commons on April 8, 2019, it’s my understanding you must submit your final report to the Senate no later than June 6, 2019. This is a very quick turnaround to discuss something as important as the creation of two departments that fundamentally changes the current legislative relationship through the Indian Act. This is why I am here today to express concern with the bill as it relates to the Department of Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada through the bill.
Canada has not consulted with First Nations in Manitoba on the bill, most notably how it amends the Indian Act. It repeals the Department of Indian Affairs and Northern Development Act. It removes First Nations-specific funding required to fund the Indian Act and the federal obligation for First Nations with a move to a pan-Indigenous approach and no clear committed funding for First Nations. It identifies funding for other groups covered by the two departments. It lacks specific requirements to implement the UNDRIP and how First Nations in Manitoba will be involved with Canada in the transformation of the Department of Indian Affairs and Northern Development, most recently referred to as the Department of Indigenous Services.
In June of last year, AMC Grand Chief Arlen Dumas sent a letter to Canada seeking to have First Nations in Manitoba be involved in the amalgamation of the regional First Nations and Inuit Health Branch within the regional office of Indigenous Services. I could provide a copy of that to you, if you want.
As well, in November 2018, Grand Chief Dumas wrote to Canada seeking to stop work on its Indigenous rights framework, expressing concern with the pan-Indigenous approach, and to stop forcing on First Nations in Manitoba prescribed and unilaterally developed solutions such as tying 10-year grants to working with the First Nations Financial Management Board, a federal Crown entity.
The Assembly of Manitoba Chiefs has no knowledge of the federal government’s consultation with First Nations in Manitoba on the creation of the Department of Indigenous Services, DISC, and CIRNAC. I encourage the committee to inform itself on what consultation Canada claims it did with First Nations in Manitoba and across the country.
Bill C-97 will wholly impact First Nations rights through its omnibus and ancillary approach. Additional acts will come into force that will impact First Nations without meaningful discharge of the duty to consult and accommodate. The AMC understands that Canada is not required to consult First Nations while it’s drafting legislation. However, once a bill is completed in draft form, it does require due diligence review as to whether the bill will potentially impact First Nations rights, which will determine how to respond to the duty to consult and accommodate. Accordingly, it is recommended that Division 25 be removed from Bill C-97 until meaningful consultation takes place with First Nations in Manitoba and other regions, as required.
The AMC has been in discussion with the minister’s senior staff for a number of months now on how we change the way Canada works with First Nations, including having a satisfaction survey on how the department is delivering services to First Nations and working with our leadership. It was our expectation to do this in June 2019 at a joint transformation gathering. We would collect information from our leadership, First Nations service delivery and technical staff on how they define and view transformation and how the department could work more effectively and efficiently with our communities.
The decision to transform one department into two was yet another opportunity for Canada to fundamentally change the way that it works with First Nations and its approach to Aboriginal treaty rights and decision making. Once again, Canada aimed for the lowest bar in terms of involving, engaging and consulting with First Nations in Manitoba. It didn’t really do much of that at all.
Bill C-97 already changes the way Canada works with First Nations in Manitoba and creates a new legislative regime. We have identified some of the concerns with respect to Subdivision A, the creation of ISC and the preamble reference to:
— in accordance with transparent service standards and the needs of each Indigenous group, community or people —
It is not clear what transparent service standards are in relation to ISC. Clarification should be provided regarding its exact meaning. The balance of what exists federally involves the government’s guidelines on service standards. It is noted that the Province of Manitoba receives federal funding for services for First Nations in Manitoba but does not provide such transparent service standards. That raises the question why First Nations are treated differently from those in provinces that do not have the same requirement when they receive federal funds.
Speaking of provinces, Subdivision C, under the heading “Maximum payment of $2,200,000.00,” reads:
. . . there may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Infrastructure and Communities or the Minister of State (Indigenous Services), in accordance with terms and conditions approved by the Treasury Board, in addition to the sum referred to in that section 161, a sum not exceeding $2,200,000,000 to provinces, territories, municipalities, municipal associations, provincial, territorial and municipal entities and First Nations for the purpose of municipal, regional and First Nations infrastructure.
There should be a legislated, transparent service standard for the provinces that, at least at a minimum, require involvement of First Nations in identifying the spending priorities and reporting to First Nations. I note as well that only in the preamble does it refer to UNDRIP. It does not take in responsibilities of ISC at clause 7. Perhaps it should, especially since later in Subdivision B, Bill C-262 refers to the proposed UNDRIP act, and that’s only for the CIRNAC minister. We were wondering what is the difference between the CIRNAC minister and the DISC minister. Why does one have that obligation and the other doesn’t?
In the definitions section, the definitions of Indigenous governing body and Indigenous organization are confusing. It appears to potentially include provincially or federally incorporated entities, including political advocacy organizations. It appears there are two meanings with the definition of Indigenous organizations and Indigenous governing body and/or entity that represents the interests of Indigenous people and its members.
It would appear that the Assembly of Manitoba Chiefs, or even the Assembly of First Nations, which are provincially incorporated entities with political advocacy bodies, could fit into this definition. Manitoba First Nations have been clear that the AMC as a political advocacy body is not a rights holder and shouldn’t be legislated in this type of legislation.
Finally, with regard to the selection of advisory and other committees at clause 10, First Nations of Manitoba are concerned with how that gets done. If it’s just at the discretion of the DISC minister, we don’t necessarily want that to be determined without the involvement of First Nations leadership. As well, support for Indigenous bodies at clause 13 speaks to:
. . . the collection, analysis, interpretation, publication and distribution of . . . information or data . . . .
The AMC is very keen on ensuring that the First Nations principles of ownership, control, access and possession are incorporated. Perhaps you might want to consider an amendment to include subclause 13.1:
Before making a decision under Section 13, the Minister shall consider whether the activities supported have been certified . . . as respecting OCAP principles.
Thank you for your time.
Senator Patterson: It’s great to see you again. You look even better in the flesh than on a video screen. I recall your presentation on Bill C-92.
You’ve given us a lot of things to consider here, but I want to touch on the last point you made that non-rights holders, like the AFN and the AMC, if I understood you rightly, could be included in the definition of Indigenous organizations.
Mr. Balfour: By Interpretation.
Senator Patterson: Yes. It says in clause 2:
. . . an Indigenous governing body or any other entity that represents the interests of an Indigenous group and its members.
This resonates with me because the Inuit also have a national advocacy organization that is not a rights holder. It’s called ITK. It has a very high standing and visibility in Ottawa. It is very convenient for the federal government to interface with them rather than the folks who live in the regions under a set of land claims agreements who are rights holders.
Could you explain why you’re concerned about that very broad definition of Indigenous organization? Is it because you believe they could start delivering programs under agreements? Is that the problem here? What is underneath your concern?
Mr. Balfour: Money for the First Nations in Manitoba is the purview and the responsibility of the First Nations in Manitoba. It’s not for political entities to be looking at accessing unless the chiefs endorse it. The activities that the AMC undertakes are mandated through the Assembly of Manitoba Chiefs
. I would be remiss and would not be doing my job if I wasn’t here to tell you that’s a concern. You should be involving First Nations directly and not making room for provincially or federally incorporated entities.
Senator Christmas: Mr. Balfour, it’s good to see you again. I was very intrigued by your comment about a satisfaction survey for DISC. I was looking through the act to see if there was reference to any kind of measurement to see whether or not the services provided by DISC are indeed periodically evaluated, to see if there’s any kind of effort to go to the clients, meaning First Nations, and to see if there’s a process in place for the clients to comment on the service they’re receiving from DISC.
I haven’t had much time to think about that, but obviously you’ve commented on it. Could you elaborate on what would be your vision of a satisfaction survey that may be asked of DISC or other departments that serve Indigenous peoples?
Mr. Balfour: I mentioned that because I think it’s really important. Regionally, the Assembly of Manitoba Chiefs has taken the lead in a number of areas over the years. This would be taking the lead in this particular area. I am not speaking to Canada wide, but we have our challenges with the former Health Canada FNIHB under DISC, along with DISC, Indian Affairs and Health Canada.
Being able to respond to that, getting it directly and involving First Nations, is something we meaningfully took from grand chiefs meetings with the ministers to say that this is how we are to do things in our own backyard. This is how AMC will respond to how we transform and create these new entities. The bill goes around the good faith efforts we’ve been establishing with the ministers.
Senator Christmas: Do you envision this satisfaction survey as something that Indigenous organizations would carry out, or do you see it as a responsibility of the federal government to determine how effective its services are?
Mr. Balfour: If we’re working in partnership and transforming the way we’re working together, shouldn’t we be doing it together?
Senator Christmas: Yes, obviously.
Mr. Balfour: Yes, and that was originally our approach. Getting feedback from the leadership and getting them involved in that is certainly what we thought would be different from having Canada do it itself, evaluate its own people and get performance increases for saving money.
Senator Christmas: To let you know, I come from a background of quality control and ISO, so I understand the value of making sure the services you deliver are effectively measured. Thank you for that. If you have any further comments on how perhaps that could be reflected in legislation, we would welcome them.
Senator LaBoucane-Benson: On paper or in theory, the idea of splitting this into three departments — one for the Arctic, one for the relationship and one for the service delivery — makes sense. Then having enabling legislation for every service the federal government provides also makes sense. However, when we get into the weeds, the idea of consultation and co-development, there are many different ideas of what it is supposed to look like. It doesn’t seem this government hit the mark on the consultation and co-development pieces.
You said something about a transformation gathering in June 2018. I am trying to figure out what that was about. Could you explain what that transformation gathering was? I wonder if that was the idea around consultation.
Mr. Balfour: Perhaps I misspoke. It is 2019. It is coming up.
Senator LaBoucane-Benson: What is the purpose of that? Is it to discuss this piece of legislation once it’s passed?
Mr. Balfour: No, not at all. The idea of transformation, how things are supposed to be done differently, the involvement of First Nations leadership, and how we do things uniquely in Manitoba are up for discussion.
We are working on some exciting things. You no doubt have heard of our Bringing Our Children Home Act and of the good work that the First Nations Family Advocate Office has been doing, with support from the former minister in terms of CFS reform. We also have some really good activities in terms of working with support of Canada on development of a First Nations universal health accord. We are doing exciting things and making sure we develop partnerships and good relationships to be able to look at where we want to go in the future of health.
In the area of education, we have been talking about our education transformation as it relates to a new regional education agreement, along with a new regional education funding formula. As well, because Jordan’s Principle began in Manitoba, we are using it as a way to potentially change the way Canada does business, at least first and foremost with that file, so that we take over and we determine how to carry out and implement Jordan’s Principle in Manitoba, potentially through a Jordan’s Principle capacity enhancement centre.
We will be focusing on a number of good things. Regionally, there has been a number of funding announcements and things we have been working on with ISC. The opportunity to share at that gathering, along with ministers and others, will be a good occasion to highlight how Manitoba and Canada can go forward.
Senator LaBoucane-Benson: That’s fantastic. It sounds like Manitoba has been doing incredible work. I am so glad to hear about it. It seems that in the separation to Indigenous Services the whole idea was for the minister to be able to focus on service delivery. Do you think there is hope for the Manitoba First Nations and the federal government to come together in this bill and be able to continue that good work?
Mr. Balfour: No.
Senator LaBoucane-Benson: None whatsoever.
Mr. Balfour: Maybe, but I can’t speak on this point.
Senator LaBoucane-Benson: It is just your opinion.
Mr. Balfour: No, I am sorry, but we can’t support anything that is pan-Indigenous.
Senator McCallum: Thank you for your presentation. [Indigenous language spoken].
I will speak about the cleaving into two sections. CIRNAC will be the institutional structure with the governance and building capacity to promote self-reliance, prosperity and well-being, which is part of self-determination. ISC will be taking on the delivery of service and programs, closing the socio-economic gap and building capacity, which is also self-determination. This cleaving into two sections separates or splits self-determination. They are both self-determination concepts and they are now in two different camps.
How will this affect your self-determination initiatives?
Mr. Balfour: This concerns us because we don’t know. In terms of the separation of the responsibilities it is unclear how this bill will be carried out in relation to the good work we have already established.
Senator Patterson: We were led to believe by the Prime Minister that the Indigenous rights framework would be a primary vehicle for reconciliation, recognition and respect when he said, “No relationship is more important to Canada than the relationship with Indigenous Peoples.”
You have expressed how the Assembly of Manitoba Chiefs have rejected the Indigenous rights framework approach, and I think you referred to a letter. Could you elaborate on why the AMC withdrew support for the Indigenous rights framework and if that relates to this bill at all, please?
Mr. Balfour: Other than the lack of consultation, other than the lack of concern expressed by chiefs as it relates to the treaty relationship, and other than the fact that it’s pan-Indigenous in nature and leaves a number of things undefined as they relate to non-First Nations, we only discovered this as somebody was wading through the budget implementation bill. It wasn’t a bill standing on its own to inform folks. This was really last minute. We quickly pulled this together in terms of how these concerns with the bill were not necessarily fully focused at the time. We didn’t have the bill at the time when the framework was rejected.
The Deputy Chair: Mr. Balfour, on behalf of all of us, we want to thank you. It was good to see you in person. As always, we enjoy your insights and deeply appreciate your taking the time to come and see us.
Senator LaBoucane-Benson: Could you provide your speaking notes to the clerk for translation? Did you send us a brief?
Mr. Balfour: I could send it. It’s on my computer. Allow me to do that.
Senator LaBoucane-Benson: If you send it to the clerk, it will be translated.