By Michael Posluns, June 19, 2007.
The concept ‘Indian’ is a creation of statute. Prior to the arrival of Europeans, the Aboriginal peoples who inhabited the region that would become Canada had their own forms of social organization with their own names by which to identify their social groups.
Madam Justice Carol S. Ross, McIvor v. the Registrar, Indian and Northern Affairs Canada at para. 8.
It seems to me that it is one of our most basic expectations that we will acquire the cultural identity of our parents; and that as parents, we will transmit our cultural identity to our children.
Madam Justice Carol S. Ross, McIvor v. the Registrar, Indian and Northern Affairs Canada at para. 186
Several different developments are unfolding in Canada each of which will have a deep affect on the nature of Aboriginal and treaty rights as they are guaranteed under section 35 of the Constitution Act, 1982. Each of these developments appear on the surface to be quite independent of one another. Yet, in their consequences for strengthening Aboriginal rights, treaty rights and the inherent right to First Nations self-government each of these developments are better understood as one of several interwoven braids.
Where does the braid begin? Is there a point where a single thread is found, which pulled carefully and strategically holds the key to unraveling the whole cloth? For readers unfamiliar with the history of First Nations relations in Canada, the essential details can be summed up in two or three sentences.
From before Confederation in 1867, Canada (and the colonial provinces that came together to form a largely independent dominion at Confederation) followed policies ostensibly intended to “civilize” the various First Nations, and to deny the treaty or nation-to-nation relationship that the various First Nations had enjoyed with Great Britain in the 18th century. A variety of policies aimed at forced assimilation constitute the dominant themes of the history of the Indian Affairs Branch through most of the 20th century. By 1951, Canada had imposed by statute an ungodly long list of civil disabilities on Indians. Most, though not all of these disabilities were repealed in the 1951 revision of the Indian Act. Most of the First Nations leaders who emerged in the next 20 years had apprenticed to an earlier generation of leaders for whom the celebration of traditional ceremonies and the pressing of Indian land claims were criminal offences.
In 1982, Canada adopted the Constitution Act, 1982, a document that, in addition to setting out a number of formulas for future amendments of the Canadian Constitution, also included Part I, The Canadian Charter of Rights and Freedoms (“the Charter”), and Part II, The Rights of the Aboriginal Peoples of Canada (“section 35”).2 It is fundamental to an understanding of these two sets of rights that to keep in mind that they are distinct and separate parts of the Constitution Act. It is also fundamental to an understanding of their application by the courts that, while they are distinct and separate, they are also intimately bound up with one another. Sadly, little of the attitude of the senior officials in the Indian Affairs Branch has changed in the quarter century since Parliament adopted the Constitution Act, 1982. Sadly, the Justice Department, the fount of all federal government legal thought, sees its role, not primarily in fostering an appreciation for the two bundles of rights newly added to the Constitution but as defending the conduct of senior officials and the policies of the ministers of the day.
This article examines a number of current and critical conflicts for which this stage has been set. The conflicts on which I will focus will be ones which have surfaced as particularly critical in the past year.
1. McIvor v. The Registrar, Indian and Northern Affairs
In 1985, Parliament adopted Bill C-311, a set of amendments to the Indian Act intended to repeal the more noxious provisions discriminating against Indian women in the provisions regarding membership in an Indian band. Parliament moved at that time largely because the equality rights provisions of the Charter (section 15) were scheduled to come into effect in April 1985, three years after the rest of the Charter. It was clear that the previous membership provisions would not meet any kind of “Charter challenge.” The old membership rules were strongly inclined to favor patrilineal inheritance of membership. Most widely offensive was the provision that women who married outside their band were to lose their band membership. This ran against the traditional practice of many First Nations which followed the mother’s line in establishing an inherited membership. It also established the Parliament of Canada, rather than the various First Nations, would establish the membership rules (citizenship code) of First Nations across Canada.
If a woman gave birth out of wedlock, unless the mother produced the father’s name, the Registrar was entitled to presume that the father was non-Indian, and, thereby, deprive the child of membership in his mother’s community. This provision also deprived single mothers of the support of their children in their old age.)
Two different interests (possibly three) had long pressed for reform of the membership laws. Women’s groups and women parliamentarians had identified this as a “women’s issue” while First Nations saw the right to define citizenship as fundamental to “the inherent right to self-government.” Sadly, during all the years of constitutional debate (1970 to 1982), not one woman parliamentarian from the two main Canadian political parties of that day (Liberals and Progressive Conservatives) ever spoke of the need to increase the land base and the financial base of bands if they were to increase their numbers by as much as 50%. In effect, the non-Indigenous women parliamentarians wanted equal rights for Indian women but they did not object if the total quantum of rights were steadily eroded by governments representing their own parties.
C-31 (as it continues to be popularly known) made a distinction (essentially for the first time) between membership in an “Indian band” and registration as a status (card bearing) Indian under the federal Indian Act. Although this distinction was supposed to allow bands to take increasing control of their own membership (citizenship) laws, the practice of the past 22 years has been for the government to fund programs administered by band councils based on the estimates of populations drawing on Indian Affairs’ registry. In short, while a band can put a person onto their citizenship list, there will be no additional revenue for schools, housing, health care, public health, roads, sewers or other infrastructure.
On June 8 of this year, Madam Justice Carol Ross of the B.C. Supreme Court (the superior trial court of the province of British Columbia)3 declared that the membership sections of the Indian Act, sections 6.1 and 6.2 were inconsistent with the equality rights provisions of the Charter. Although these sections had been introduced to replace the previous discriminatory provisions, Justice Ross found that although they solved some problems they created others.
Although many women (and a good many men as well) were reinstated as the result of the adoption of C-31 there were a good many others who continued to be left out. Further, the benefits accruing to a person registered under 6.1 were considerably greater than the benefits accruing to a person registered under 6.2. A person registered under 6.1 was assured that his or her children would inherit and retain membership in their parent’s First Nations community. A person registered under 6.2 (typically referred to as “a 6.2” had no such assurance, unless they managed to marry “a 6.1”.
This was exactly the situation in which Sharon McIvor and her son Charles Jacob Grismer. Following the enactment of C-31, the Indian Affairs Registrar (long a force to be reckoned with in the lives of ordinary Indians who crossed his path) offered to reinstate Sharon McIvor under the less favorable terms of 6.2. Her son would not be reinstated. Ms. McIvor, a lawyer and professor, chose to go to court rather than to accept this perpetuation of the registrar’s tyranny.
Justice Ross, in her 144-page judgment, reviewed much of the history of “Indian status” (registration under the Indian Act) cataloguing the myriad ways in which the Indian Affairs Branch had dominated Indian culture. She also reviewed both the parliamentary debates on C-31 and the proceedings of the House of Commons Indian Affairs hearings on C-31. She relied on the statements of the then Minister of Indian Affairs, David Crombie, that the purpose of C-31 was to end the longstanding discrimination against Indian women while pointing the way to First Nations control of their own membership after Parliament had corrected its own past errors. Justice Ross then points to the various ways in which discrimination is perpetuated rather than curtailed in ss. 6.1 and 6.2. Based on those findings, insofar as the two sections bestowed different benefits on different members, she declared those sections inconsistent with the Charter. In keeping with a longstanding practice of the Canadian courts in dealing with Charter issues, Justice Ross then allowed one year before her ruling would take effect, so as to allow Parliament to develop a solution of its own devising, subject to the rights guaranteed to all persons in Canada under the Charter and to First Nations and other Aboriginal communities under Part II (section 35).
Whether or not the present federal Government will be prepared to sponsor a bill setting out new membership rules which will also attract the support of the major First Nations and Aboriginal political organizations as well as the other parties in a minority Parliament remains to be seen.
The McIvor decision is but the latest in a long line of decisions in which the courts have upheld the rights of First Nations collectively under section 35 and their individual members under the Charter. The earliest of these decisions often took even the supporters of First Nations by surprise, albeit pleasantly by surprise A good number of the more recent decisions might be considered to have been fairly predictable given the large body of precedent that the courts have developed over the past quarter century in regard to both sets of rights. While Justice Ross goes to some lengths to establish that she is interpreting the membership sections within the lines set down in previous equality rights decisions of the Supreme Court of Canada, it would still be fair to say that there was an element of surprise when her decision came down.
Two conflicting sets of interests within the larger Indigenous community in Canada will be delighted by Justice Ross’s decision but may not readily agree on amendments that would create membership rules consistent with the Charter. (1) The Native Women’s Association of Canada (NWAC), its affiliates across Canada and their many non-Indigenous supporters would want the widest possible definitions. (2) Another point of view is likely to be heard from various First Nations, on whose membership lists, the Registrar has placed people who do not have any ancestral connection to their community and whose presence in the community represents a further drain on scarce resources while the Indian Affairs Branch and the federal cabinet remain unwilling to increase the resources available to communities.
NWAC has attracted widespread support from non-Indigenous (mainly white) women’s groups who appear to share a belief that the quality of governance of First Nations communities will greatly improve if membership laws are made as wide as possible. The opposing view holds that the ever diminishing resources, for programs such as housing and schools, creates ever greater pressure on chiefs and councilors and that, in many instances, the total resource pool is simply too small to allow for a more equitable distribution.
What is most often overlooked by parliamentarians (for whom the NWAC and non-Indigenous women’s argument is generally more appealing) is the succession of public inquiries which have stipulated that the Indian Affairs Branch has so long been part of the problem that it is inconceivable that it could not become part of the solution. This was a specific finding with consequent recommendations of the 1983 Commons Special Committee on Indian (First Nations) Self-Government. It was also a finding and recommendation of the 1996 report of the Royal Commission on Aboriginal Peoples. Lastly, a 2000 Report of the Senate Committee on Aboriginal Peoples, entitled Forging New Relations made a similar finding.
The Overall Direction
The overall direction that is emerging in Canadian “Indian Policy” is not one that emanates from either the federal government or from the major, federally funded, Aboriginal organizations. More and more, policy is emerging within the lines laid down by the courts as they interpret both the Charter and section 35. It would be incorrect to say that it is the courts that are developing policy. As in McIvor, the court rules whether or not statutory provisions are inconsistent with the Constitution. It is then the duty of the government, Parliament and the First Nations organizations to develop policy and consequent statutory provisions that are consistent with the Constitution.
At the heart of the present difficulties, many believe, is the desire of the present Canadian government to move toward policies that would more closely resemble the assimilationist policies advocated early in his tenure as Prime Minister by Pierre Elliott Trudeau and that are better known to Americans in terms of the U.S. Dawes Act.
One bill presently before the Commons Aboriginal Affairs Committee, bill C-44 of the current session, would repeal the provision exempting Indian band councils and their administrations from the Canadian Human Rights Code. In principle, this sounds like “a non-brainer.” Only when one opens both eyes at once does it become obvious that, for all the flaws in the present Indian Act, if this bill were allowed to take its course, most of the protections of Indian lands and cultures would be struck down. The Government has steadfastly avoided anything resembling “consultation”, “reconciliation” and “accommodation” as those terms have been introduced by the Supreme Court of Canada. Expert witnesses appearing before the committee have pointed out that much of the fault for which band councils are commonly blamed arise from their agreeing to administer federally funded programs – the policies at issue are not First Nations policies, they are federal government policies.
Every opposition party in Parliament presently opposes this bill. The Government continues to press for its speedy passage. MPs on the Committee repeatedly ask the expert witnesses familiar with the Supreme Court rulings whether their own hearings do not constitute a form of consultation. The witnesses say that committee hearings are not consultations. Consultation, as the court has described it, requires actual dialogue between First Nations leaders and the minister who proposes to sponsor legislation affecting First Nations.
The courts have repeatedly said that “consultation” requires two parties actively listening to one another and doing that listening before a decision is taken into the public sphere. When that kind of consultation comes to Ottawa, that will be the beginning of a genuine reconciliation between Canada and the First Nations. That kind of consultation will represent what Martin Buber described as “genuine dialogue.” When federal Ministers choose to listen in that way, there will be less and less “Indian policy” in Ottawa and more and more “First Nations relations.
One of the many remarkable features of McIvor is Justice Ross’s observation near the outset, “The concept ‘Indian’ is a creation of statute.” Anything resembling genuine autonomy for First Nations, genuine self-government, requires that the government cease and desist from creating concepts which it then imposes on Indigenous cultures as well as individuals. A genuine “reconciliation,” a term much used in recent decisions on Aboriginal issues by the Supreme Court of Canada, might require a kind of “no-policy,” i.e., a policy under which the federal government steadfastly declines to make policy, but, instead, protects the space within which each of the “several First Nations” becomes free to establish their own policies, laws, customs and practices.
Michael Posluns is an independent scholar specializing in First Nations and parliamentary relations, and legislative history. He may be contacted at: mposluns@accglobal.net
FOOTNOTES
1. Affairs Canada 2007 BCSC 827. The full decision of the Honorable Madam Justice Carol Ross may be found at http://www.canlii.org/en/bc/bcsc/nav/date/2007_06.html
2. These are the most widely used short forms for the Charter of Rights and Freedoms and “The Rights of the Aboriginal Peoples of Canada.” Although the Aboriginal Peoples provisions constitute the entirety of Part II, they are also the entirety of section 35, with its four sub-sections. “Section 35” is the universally recognized reference amongst Aboriginal leaders, lawyers and scholars.
3. The Canadian court system is generally described as “a unitary system” although the legislative and executive branches of government are federated, i.e., separate federal and provincial legislatures and cabinets.