Proceedings of the Standing Senate Committee on
Issue 14 - Evidence - March 27, 2012
OTTAWA, Tuesday, March 27, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 9:30 a.m. to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples, and on other matters generally relating to the Aboriginal Peoples of Canada (topic: the Metis in Canada).
Senator Gerry St. Germain (Chair) in the chair.
The 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 on CPAC or possibly on the web.
I am Gerry St. Germain, from British Columbia, and I have the honour and privilege of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
Today, we will begin to explore Metis issues, particularly those relating to the evolving legal and political recognition of the collective identity and the rights of the Metis in Canada. We plan to begin this study by having briefings from various government departments who will provide us with information, including facts on current federal programs and services, the status of Crown-Metis relations, general statistical information, and current legal issues, among other things.
This morning we will hear from representatives of Aboriginal Affairs and Northern Development Canada, the Office of the Federal Interlocutor for Métis and Non-Status Indians, and the Department of Justice.
Before we hear from our witnesses, I would like to introduce the committee members here this morning.
From the Northwest Territories, we have Senator Nick Sibbeston. Next to Senator Sibbeston is Senator Munson, from Ontario. Senator Don Meredith is from Ontario, and next to him is Senator Dennis Patterson from Nunavut. Last, but definitely not least, is Senator Jacques Demers from Quebec.
Members of the committee, please help me to welcome our witnesses. From the Office of the Federal Interlocutor for Métis and Non-Status Indians, we have Elizabeth Tromp, the Assistant Deputy Minister; Diane Robinson, Director, Aboriginal Relations; and Michael Nadler, Director General, Negotiations East. From the Department of Justice, we have Peggy Stone, General Counsel and Director.
You have a presentation, I believe, Ms. Tromp. We are looking forward to hearing it, and then the senators will be asking you questions, I am sure.
Elizabeth Tromp, Assistant Deputy Minister, Office of the Federal Interlocutor, Aboriginal Affairs and Northern Development Canada: Thank you very much, Mr. Chair and senators. Good morning. It is a pleasure to be with you today for the benefit of your study on Canada's Metis.
To start, I would like to talk a lit bit about the Office of the Federal Interlocutor for Métis and Non-Status Indians and to situate it within the department and the government as a whole.
The office was created in 1985 to respond to the need to have a voice for this constituency within the federal government. It was felt prudent at the time to house this function separately from the Department of Indian Affairs so as not to confuse the differing mandates and roles.
Of course, a lot has changed over the years. The interlocutor's office moved over to Indian Affairs in 2004, and, last year, the department was renamed Aboriginal Affairs and Northern Development Canada, AANDC, to better reflect the evolution of the minister's role with respect to First Nations, Inuit and Metis.
Of course, AANDC is not the only department that has a relationship with Metis people and organizations, and I know that you will be hearing from a number of my colleagues throughout the period of your study.
I would like to say a few brief words on the context of Canada's relationship with Metis people. Canada has a rich and profound relationship with Metis that is framed in our history. As you know, Metis, along with Indians and Inuit, are one of the Aboriginal peoples recognized in section 35 of the Constitution Act, 1982.
However, I would point out that Canada's relationship with Metis is distinct from that with First Nations or Inuit. For example, living off-reserve, Metis receive most of their basic social programming from provinces and not from the federal government. Provinces have their own deep relations with Metis people and organization, especially in Western Canada. There are also no federal Metis act, no federal registry of Metis people and no Metis reserves.
I also want to highlight the important role that provinces play in the lives of Metis people. Metis people receive most of their social programming from provincial governments, and when Metis assert Aboriginal rights they will be most likely doing it on provincial Crown lands. Whether it is the intertwined history of Metis and the creation of the Province of Manitoba, the historical battles and skirmishes in pre-Confederation Saskatchewan, or the establishment of Metis settlement lands in Alberta, the provinces each have unique histories and relations with Metis. No study of the Metis in Canada would be complete without considering the varying roles and relationships that provinces and territories have with Metis people and organizations.
My purpose in setting out this context is not to diminish the federal government's role but to illustrate that Metis are a distinct people. The federal government has a distinct relationship with them, as do provinces, and that is a reality on which Metis people and organizations would agree.
We turn now to demographic information.
The demographic information is the following: approximately 390,000 Canadians self-identify as Metis. That is about one third of the overall population of Canada who self-identify as Aboriginal. Metis constitute another young and growing Aboriginal population.
The median age among Metis is 29, compared with 40 for the non-Aboriginal population. Over two thirds, 68 per cent, of Metis live in the four Western provinces — 19 per cent in Ontario, 7 per cent in Quebec, 5 per cent in the Atlantic provinces and 1 per cent in the territories.
From 2001 to 2006, the Metis population in Canada increased by more than one third, or 36 per cent. That growth rate far exceeds the theoretical maximum growth from births and migrations in the current Metis population. The widely held view is that the most likely explanation for a significant portion of the recent growth in the Metis population is ethnic mobility, whereby people change the way they report their identity from one census to the next.
By way of comparison, the First Nations' population increased by 12.8 per cent over the same period. There is no definitive explanation for the increases in self-identification. Reasons may include increased awareness of family history, improved perceptions of aboriginality, recent legal decisions and media awareness. An analysis of census data indicates that the socio-economic indicators for Metis generally fall between those for First Nations' members and the general population.
In terms of the relationship between Canada and Metis, the federal government maintains relations with that Aboriginal group in a variety of ways. This includes bilateral relations with national Aboriginal organizations, tripartite relations with provinces and province-wide organizations south of the 60th parallel, and land claims north of the 60th parallel. The Office of the Federal Interlocutor for Métis and Non-Status Indians maintains bilateral relations with two national organizations that represent the interests of Metis in the provinces: the Congress of Aboriginal Peoples (CAP) and the Métis National Council (MNC).
CAP's constituency includes Metis people, but the organization also has a broad representation of off-reserve and non-status Indian people living in urban, rural and remote areas of Canada. The MNC exclusively represents the Metis from the west, from Ontario to British Columbia. Those bilateral relations are framed by a political accord with CAP and by the Metis nation protocol with the MNC. With respect to CAP, its solid bilateral agreement with the federal government is focused on strengthening its governance structure to help it better represent its constituents.
The government is engaged with the Congress of Aboriginal Peoples on its strategic priorities through a policy road map exercise. CAP's road map looks to deliver measurable results for its constituents and to help implement key and strategic changes to the Indian Act, such as those being implemented through Bill C-3.
With respect to the Métis National Council, significant progress has been made through the Métis Nation Protocol, the key document that frames the government's relationship with the MNC. For example, in 2009, former Minister Strahl led a contingent of Metis veterans and leaders to Juno Beach, France, to honour Metis contributions to the wars. In 2010, the government declared it to be the Year of the Métis; and, among other events, the government celebrated with Metis people from all over the country the one hundred and twenty-fifth anniversary of the Battle of Batoche, one of the seminal events in our country's history. In 2010 and 2011, our minister hosted provincial ministers and Metis leaders at two economic development symposiums that resulted in significant investments in Metis economic development by federal and provincial governments.
The Office of the Federal Interlocutor also maintains tripartite relations with provincial governments and province- wide organizations that represent the interests of Metis and other off-reserve Aboriginal peoples. In these processes, the focus is on achieving practical outcomes for Metis and non-status Indians and on supporting these organizations to advance their interests with federal and provincial governments. These processes provide all parties a neutral forum to discuss key socio-economic issues and to help the organizations build internal capacity, accountability and democratic governance structures.
North of 60, the constitutional landscape is different. Metis are included in three signed land claims in the Northwest Territories: the Gwich'in, Sahtu and Tlicho. Currently, Canada is negotiating with the Dene and Metis of the Dehcho region and a land and resources agreement with the Northwest Territories Métis Nation, formerly the South Slave Métis Tribal Council. Given the particular circumstances in the Northwest Territories and that the Dene and Metis lived side by side in communities, Canada agreed on a policy basis in 1978 to enter into comprehensive land claim negotiations with both the Dene and the Metis of the Northwest Territories.
I will turn now to socio-economic programs and services available to Metis and non-status Indians. The Government of Canada offers a broad range of programs and services that can be accessed by Metis — programs of general application that all Canadians can access, such as training, Employment Insurance, Canada Pension Plan and pan-Aboriginal programs, such as Aboriginal Skills and Employment Training Strategy, Aboriginal Head Start and the Urban Aboriginal Strategy, to name a few. There are few if any Metis-specific programs offered by the federal government. One exception is the financial support to help Metis organizations develop their membership systems in a fashion consistent with the Supreme Court criteria set out in the R. v. Powley decision. Another example is the core funding support we give to Metis and non-status Indian organizations.
With respect to Metis Aboriginal rights, in the 2003 Powley decision, the court found that a Metis community in Sault Ste. Marie and environs did have Aboriginal harvesting rights protected under section 35 of the Constitution Act, 1982. Like other Aboriginal rights, Metis Aboriginal rights are context- and site-specific. They must be proven on a case-by-case basis in accordance with the test set out by the Supreme Court. Essentially, the right in question must be a practice or tradition that was distinct and integral to an historical Metis community prior to effective imposition of European control; and that activity must also be integral to that Metis community today. The Supreme Court of Canada also set out certain criteria in Powley that an individual would need to meet in order to be considered Metis for the purposes of asserting section 35 Aboriginal rights. The main criteria in the Powley test are threefold: The individual must identify as a Metis person, must be a member of a present-day Metis community and must have ties to an historic Metis community.
One of the key questions for government in the context of Aboriginal rights is this: Who are the Metis for purposes of section 35 of the constitution? To be clear, the federal government does not define who a Metis person is and does not maintain a federal registry of Metis people. The Supreme Court of Canada suggested in Powley that having clearly identified Metis constituents would facilitate the implementation of Metis Aboriginal rights. Consequently, the Office of the Federal Interlocutor worked with eligible Metis organizations in the development of membership identification systems in a manner consistent with the criteria set out in Powley. To date, these organizations report that a total of some 50,000 Metis have been identified through processes consistent with the Powley criteria. This fiscal year, the Canadian Standards Association has been engaged to work with government and funded Metis groups to develop a methodology to verify the quality and integrity of these membership systems.
As noted, the Powley decision was about Metis harvesting. While the provincial and territorial governments are primarily responsible for the management and regulation of most natural resources within their boundaries, the Government of Canada is responsible for the management and regulation of those lands and natural resources under its control. These areas include the use and access of federal Crown lands, for example national parks and other federal protected areas, military bases and ranges as well as migratory birds and coastal fish species. In order to ensure a consistent national approach to the accommodation of Metis harvesting, the federal government provided guidance to all federal departments through the interim approach to the identification of Metis harvesters. This approach seeks to ensure the continuance of culturally appropriate harvesting practices within the boundaries of public health and safety and conservation.
With respect to the duty to consult, Canada meets its legal duty to consult through meaningful consultation with Aboriginal communities, including Metis groups, to ensure that Aboriginal views are taken into consideration when making decisions on projects that could adversely affect their rights.
In 2011, the updated guidelines for federal officials to fulfill the legal duty to consult were released to federal officials. The guidelines provide clear direction on the government-wide responsibility of departments and agencies to fulfill the duty to consult.
I would like to leave you with the perspective that it is early on in the understanding and appreciation of Metis rights. The jurisprudence in this area is limited, and I think the legal framework for Canada's relationship with Metis will continue to evolve over time.
That concludes my opening remarks. I appreciate that is a lot of information to take in. We will be pleased to take questions now and will do our best to answer them.
The Chair: Thank you, Ms. Tromp.
We have been joined by Senator Campbell from British Columbia and Senator Nancy Green Raine, also from British Columbia. Welcome, senators.
I have a list, but I will ask the first question.
Ms. Tromp, I would like you to explain to the committee the following statement, if you would. I see that more than two thirds, or 68 per cent, of the Metis live in four Western provinces, 19 per cent in Ontario, 7 per cent in Quebec, 5 per cent in the Atlantic provinces and 1 per cent in the territories. Yet, the Métis National Council seems to recognize only the areas from Ontario west.
Do you have an explanation for that, for the committee?
Ms. Tromp: I can try to answer that question for you. The Métis National Council's definition of Metis is generally consistent with the Powley definition. They essentially see Metis and represent the Metis who are Red River Metis and descendants of that group. They see that as a distinctive group and that is their definition of Metis. Ontario and west is where those Metis are, and that is the group that the council represents.
With respect to the other parts of the country, we also have the Congress of Aboriginal peoples, as I mentioned. They represent off-reserve Aboriginal people, including Metis and non-status. It is a broad definition and a broad approach. They have organizations out east that represent affiliates that represent that broader group, including people who would identify as Metis.
The Chair: I am sure there has been a lot of discussion and maybe you can enlighten us on this.
It was in the Red River settlement that the word "Metis'' emerged under Cuthbert Grant and especially under Louis Riel, when he tried to establish a government for the Metis people of that area, and the First Nations people that were there.
From your expertise and exposure to this, has anything definitive emerged that would indicate, for example, if you are from Croatia, then you are Croatian? Has anything been established so that if you are from this area that tried to establish a government, it would definitely indicate that that is where you would have to be from? This identity question is huge.
Ms. Tromp: I think you are asking me if there is one clear definition of Metis, and I think the answer is no, not really. You are right. People self-identify as Metis. I spoke about that and about the increase in the number of people self-identifying as Metis.
Some of these people will be of mixed ancestry, but not necessarily Metis in the sense that the Métis National Council would use the term or would define its own membership. It really depends on who is interpreting and who is asking.
The federal government does not have a clear or single definition of "Metis.'' That is left to the Metis organizations and groups themselves. Where we have an interest in knowing who the Metis are would be when it comes to who would be the rights holders. Again, that is evolving, but that then becomes an area where we do need to be able to say who those Metis are for the purposes of establishing who would hold harvesting rights, for example.
The Chair: All right.
Senator Campbell: Thank you, chair, and my apologies for being late. You should not leave your GPS on your vehicle while you are away for a week. The battery will go dead, apparently.
My question is a bit off topic, but it has to do with CAP. I find it interesting that in here you have that CAP's constituency includes Metis people. Whenever I have spoken to people representing the Metis, I have never heard CAP mentioned. That is the first thing.
Second, why do we have CAP here instead of, perhaps, more recognized national First Nations, for instance, Chief Atleo's organization?
About a year and a half ago I looked into CAP and could not find anything. I could find a small core here in the east but virtually nothing west. First, how do we get them with the Metis in there when we know that there is not a strong Metis council; and second, why would the federal government be entering into a bilateral agreement with CAP focusing on strengthening its governance structure? I do not understand who CAP represents. I have never been able to figure that out. I know it is supposedly off-reserve First Nations, but I had never heard of them until I came to Ottawa from British Columbia — and I was fairly involved with First Nations, at least in the lower mainland.
Could you explain about this bilateral agreement and how the Metis, from our study, fit into CAP?
Ms. Tromp: First, as you know, the Congress of Aboriginal Peoples is one of the national Aboriginal —
Senator Campbell: I do not know that.
Ms. Tromp: They are one of the national Aboriginal organizations that the government —
Senator Campbell: Who decided that?
Ms. Tromp: The government. They were present in the constitutional talks and the government had a long-standing relationship with them.
Senator Campbell: How long-standing?
Ms. Tromp: Since the 1970s and certainly since the constitutional talks in the 1980s.
Senator Munson: Since I covered them in the1970s.
Ms. Tromp: I will turn this question over to Ms. Robinson, our director of Aboriginal relations, who can speak more fully to the relationship with CAP and a bit more in depth on their membership.
Diane Robinson, Director, Aboriginal Relations, Office of the Federal Interlocutor, Aboriginal Affairs and Northern Development Canada: As Ms. Tromp said, the federal government has maintained a bilateral relationship with the Congress of Aboriginal Peoples since at least the constitutional discussions in the 1980s. They used to be called the Native Council of Canada and then the changed their name.
Their strength, as you mentioned, is in the East. They have very solid memberships in Quebec and in the Atlantic provinces. They represent the Labrador Metis Nation, which is now called NunatuKavut, and they have one organization in British Columbia called the United Native Nations Society.
The CAP has a much broader definition of who it represents. They claim to represent all Aboriginal people who live off-reserve. That would be status Indians who do not feel they are represented by the chiefs. It might be someone on a general list as opposed to a band list. They represent people who self-identify as Metis. They may or may not meet the Powley criteria, but they still self-identify as Metis. They also claim to represent anyone who says they are Aboriginal and may not specifically want to say that they belong to one group or another.
There are certainly Aboriginal people who are not represented by the Métis National Council or by Chief Atleo, and the Congress of Aboriginal Peoples fills that role.
Senator Campbell: Do you deal with Chief Atleo's organization?
Ms. Robinson: No. Our unit works specifically with Metis and non-status Indian organizations.
Senator Raine: I agree; the question of deciding who is a Metis is probably a difficult one. We were fortunate not so long ago to hear from a delegation from Norway, who told us about the Sami and their relationship with the Norwegian government. I found it very interesting.
The Sami people, who are Aboriginal people in Norway, also have recognized Aboriginal rights for caribou and reindeer herding and some fishing rights. Those are specific to the people who live there, who have always lived there and have always been engaged in those occupations. Anyone else in Norway who wishes to self-identify as a Sami can do so, and they are finding great success in promoting the Sami culture in Norway because of that.
When I asked specifically whether there are any entitlements for being a Sami person they were very clear in saying, "No, of course not. We are just like all other Norwegians. We have all the entitlements of any Norwegian.''
Could you break down the number of Metis by province in the West, instead of just the 68 per cent who live in the four Western provinces? What percentage of them live in each province?
Ms. Tromp: We are looking to see if we have the exact percentages. I can tell you roughly speaking that the majority would be in Manitoba and Saskatchewan, some in Alberta and a smaller percentage in Ontario and British Columbia.
Senator Raine: I believe it is 19 per cent in Ontario.
Ms. Tromp: Yes.
Senator Raine: Of the 68 per cent who live in the four Western provinces, it would be interesting to know the percentages in each province.
Ms. Tromp: We can absolutely get you that information.
Senator Raine: I am trying to wrap my head around it. Does the Metis national association represent the 19 per cent in Ontario plus the 68 per cent?
Ms. Tromp: It depends because, again, the self-identification is where we get our demographic data. Not everyone who self-identifies as Metis in the census, for example, would necessarily look to be represented by the Métis Nation of Ontario, which is the affiliate of the Métis National Council. Many would and would be members of that organization, but some might not. There is not a direct correlation. We could get membership numbers from those organizations for each of those provinces. It would not necessarily line up to what the census data is in terms of people who individually say, "Yes, I am Metis.''
Senator Raine: Just to be clear, the statistics that you have here, the 390,000 self-identified Canadians, is that taken from the census and not from any member in an organization?
Ms. Tromp: That is correct. In addition to that, we have the membership data that is provided to us by the organizations themselves.
Senator Raine: Do you need to belong to an organization to be counted as a Metis person?
Ms. Tromp: No. In a census, you can self-identify. If you believe yourself to be Metis, you can self-identify as Metis. I suppose it is similar to what you just described with respect to the Sami. You can say you are a Metis person, but to the extent that that brings you anything further would depend on whether you are a member of an organization and what collectively that organization makes available and what programming is available through that. If you are a rights holder in a particular area and you have joined an organization, you have a membership card and then you would presumably have a right to hunt. For example, that would apply to Metis in the Sault St. Marie area. There is a difference. There is a difference between simply self-identifying and being a member of an organization and then potentially being a rights holder.
Senator Raine: I am trying to understand and I am sure many Canadians are trying to understand because we now have court cases that seem to establish entitlements for certain people without any definition of who the people are who have the entitlements. If I read the newspaper that if you declare yourself a Metis you might somehow get an entitlement, I might run down and become a Metis. Obviously there has to be valid descriptions of who Metis are.
Ms. Tromp: Yes.
Senator Raine: The thing I found very interesting in the Norwegian situation was they were proud that the whole Norwegian society is well run and everyone has certain entitlements as Norwegians, which they work together for and pay for collectively, so there did not need to be any entitlements. However, having said that, they really wanted to promote the history and the culture and have people proud to call themselves a Sami.
Is that where we would like to go, or are we going in a different direction, where we are holding out a carrot of an entitlement that other Canadians cannot get?
Ms. Tromp: I will turn it over to my colleague from the Department of Justice in a moment to walk through more specifically how the court put parameters around who is a Metis for the purposes of being able to claim an Aboriginal right, which perhaps is the question you are asking.
As I said earlier, the Métis National Council and its affiliates in Ontario and the West decide who is Metis, and it is based on the definition established by the court. With respect, I do not know. However, I do not think you would be able to go and become a card-carrying member of one of the affiliates without being able to demonstrate your connection, your ancestry related to a historic Metis community — one that is distinctive, existed in the past and continues to this day. You would have to be able to demonstrate all of that.
There are genealogists who look at papers and establish who is a Metis, so it is a fairly rigorous test. You would have to be accepted by the community, therefore. If you were ever claiming a right, for example a harvesting right, you would have to be able to demonstrate that the community you are a part of existed in the past and still exists to this day and that the harvesting activity was something that was done in the past and continues to this day. It is a fairly rigorous test. It is not an issue of a simple entitlement.
In relation to the courts, there is not a lot of jurisprudence. We are still in early days on the issue of Metis rights. However, there have been a number of lower court decisions that are establishing specific locations where tests have been established and there is, therefore, a right to hunt for or harvest food. It is very context- and fact-specific in terms of the rights that are tied to that aspect of being Metis and being part of those Metis organizations.
There is a second part, where people self-identify. It is an expression of who they are culturally and their ancestry. Like all other Canadians, all Metis can avail themselves of all programs and services. Many of their services are delivered by the provinces, just as they are for other Canadians residing in a province. That is a very big piece of this as well.
The Chair: Are you using the Powley criteria to establish identity?
Ms. Tromp: The federal government does not establish identity. The organizations, the collectivity itself, determines their identity. When the Powley decision was rendered, the court strongly suggested that there needs to be a way to objectively verify who the Metis are for the purposes of Aboriginal rights and rights that might be established. Therefore, the federal government has been funding the provincial affiliate organizations of the Métis National Council, so from Ontario west, to develop their membership systems so that they can identify, consistent with that definition set out in Powley, who the Metis are in an objectively verifiable way. Another condition is that from time to time we can audit and review those systems to ensure that they are rigorous and that the membership that comes out of that is objectively verifiable.
The government funds them in the development of their systems. We do not do the identification; they do. Our concern is that at the end of the day there is a rigour and a standard in place so that federal and provincial governments will be able to rely on those membership systems so that if someone is a card-carrying member of that organization we would be able to rely on that for the purpose of establishing who potential rights holders might be in a particular circumstance.
That is a very important piece of work that the Government of Canada has supported since the Powley decision.
The Chair: Have you done audits?
Ms. Tromp: We have. We did a review of their systems in 2008. It showed that the systems each had their strengths and weaknesses and that some were developing faster than others, but they were all moving in the right direction. We used the information from that study to work with the organizations and fund and support work to address those issues. We are currently working with the Canadian Standards Association and the Metis organizations to determine what standards should be applied to these systems.
You may want to ask the Métis National Council and affiliates yourselves, but they are very interested in ensuring that their membership systems stand that test, that they are well run and among the best, that they cannot be challenged, that they have rigour and integrity.
We share that interest, and our office is working with them to support this work on standards development.
Senator Raine: I understand how it works with the Métis National Council in the provinces where they are active. In the other provinces, does it go to the Congress of Aboriginal Peoples by default, or do you deal with stand-alone Metis organizations in the other areas?
Ms. Robinson: Are you asking specifically about rights, relationship or programs?
Senator Raine: I am asking about rights.
Ms. Robinson: When the decision came down we started working with any organization that said they thought they represented Metis who would meet the Powley test. We gave the organizations some support and they started to do research. The ones in Eastern Canada in particular came back to us and said that they have Metis members but they do not represent Powley Metis, that they are descendents of the Mi'kmaq or Maliseet. We do not deal with those organizations on the basis of Powley Metis rights and building objectively verifiable systems. We do work with those organizations to help them build their membership systems, because it is still important for them to know and be able to identify their membership. We work with all the CAP affiliates in Eastern Canada and Quebec on the development of the membership systems.
There is the Metis Settlements General Council in Alberta. We do not need to work with them on their membership system because that is already legislated and funded by the provincial government. It is pretty clear who they are at this point.
Senator Raine: Is there not a group in Labrador?
Ms. Robinson: Yes. The NunatuKavut is a CAP affiliate, so we work with them as well.
Senator Raine: They do not meet the Powley definition?
Ms. Robinson: No. They assert that they are descendents of the Inuit.
Senator Meredith: Welcome, and thank you for your presentation. You indicated in your presentation with respect to CAP that it is a bilateral agreement with the federal government focused on strengthening its governance structure to help it better represent its constituents.
Can you elaborate on how you have been helping to strengthen their governance structure? You talked about the road map. Could you elaborate a little more on that as well?
Ms. Robinson: We have been working with them over the past year or so on the governance side to focus on building better financial accountability. We have worked with them to put in place a CMA to help oversee their financial matters and ensure that they are accountable in the reporting of finances to us and to their membership. They have just put in place a chief executive officer so that they can start to separate the political body from the administration. That is starting to build the key cornerstones of a proper governance system.
At the same time we are working with them on a policy agenda, which is what they are calling the road map. They have three objectives. They are hoping to achieve equity for off-reserve Indian peoples and Metis through a work plan, and they are supporting amendments to the Indian Act. They want to have five action items, which are economy, education, governance, representation and accountability, family support and Aboriginal rights and title. They have just started work on this and they held a special assembly this month to start building their policy positions on which they will be trying to work with government and the various departments that are responsible for those areas, and probably with the provinces as well.
Ms. Tromp: The government maintains a relationship with CAP, with MNC, in part because it values that input to the policy process. It is extremely helpful to have representative organizations that can develop these policies positions and articulate them to the government, which helps the government in terms of formulating policy and moving forward.
Senator Meredith: You talked about the economic development symposium that the government did in 2010 with them. I am always coming back, as a businessman, to looking at how First Nations people can really, truly take their own interest to the rest of Canada in terms of the markets that are available to them with the resources that they have. Can you elaborate a little more for me on this project? What are some of the results that came out of this in terms of any projects that the Metis people have undertaken?
How have you engaged young people in that process? You talk about the average age being 29. That is critical to me as we see young people across this nation facing various challenges and not being able to improve their socio-economic status, again because of the barriers. Please tie that in for me as to how you are making progress in that area around projects in terms of government funding of some of the projects that you have undertaken with the Metis people.
Ms. Tromp: I would say first that the government has a federal framework for Aboriginal economic development. It is a series of actions that involves programs, partnerships and legislation in some cases to increase participation of First Nations, Inuit and Metis in the economy. It is meant to be opportunity-driven and to put an emphasis on building strategic partnerships with Aboriginal groups, the private sector and provinces and territories. Some of the objectives there are to maximize federal investments by strengthening Aboriginal entrepreneurship, enhancing the value of Aboriginal assets, forging new and effective partnerships, developing Aboriginal human capital and better focusing the role of the federal government.
A lot of work has been done under that framework and in predecessor programs as well, one being the Aboriginal Business Development Program. In the period of 2000 to 2011, $96 million was provided in support of over 3,000 business development-related projects, with an average contribution of $74,000 per Metis recipient. Metis contributions accounted for 23 per cent of the total program contributions over that period. That represents contributions to Metis businesses and financial institutions.
A number of contributions have been made to support Metis-specific economic development funds: $3.12 million to establish a Metis entrepreneurship fund, and that is to be administered by the Apeetogosan (Métis) Development Inc., which is in Alberta, the SaskMétis Economic Development Corporation in Saskatchewan, and the Louis Riel Capital Corporation in Manitoba; $3 million for the Metis Economic Development Organization, MEDO, of Manitoba to establish a major resource and energy development investment fund; $5.19 million to the Clarence Campeau Development Fund, and that was leveraged with $1 million of its own capital investment to create an equity contribution program and a community infrastructure program to create and build Metis-owned businesses in the resource and energy sectors.
Senator Meredith: What about the training of youth?
Ms. Tromp: There are also labour market programs, and I know you will be speaking with colleagues from Human Resources and Skills Development who very much have programs such as the Aboriginal Skills and Employment Training Strategy, ASETS, which is something they could certainly speak to you about in more detail, which is very much about programming that gets exactly at that labour market participation and training for young Aboriginal people, including Metis.
What is consistent through all of what I have been talking about as well is that a lot of what is happening here is that the funds are provided to these Metis organizations and they are the ones that are moving that money out in support of Metis businesses, Metis youth, helping start businesses run by young people and the like.
The government as well, as I mentioned earlier, has had two symposia with the Métis National Council. This was further to discussions under the bilateral protocol on economic development, where they brought a broad range of community members, including youth, to talk about how to spur on economic development and what their issues and needs are. Colleagues of mine in the department are now helping them with regional fora to look more specifically at engaging private industry and how they can deal with more locally focused solutions and look at some of the broader issues that are preventing businesses from going forward.
The one other thing I would like to mention on the youth side is something called the Urban Aboriginal Strategy, which is not an initiative specific to Metis, but it is a place-based strategy that the federal government has had over the past five years in thirteen centres. It is really about leveraging partnerships and working with community committees in some of Canada's major centres where we have significant Aboriginal populations to look at how we can support increasing economic participation and improving self-reliance for Aboriginal people. Of course, Metis in urban centres would be captured in a lot of that work, and priorities there are very much focused on supporting life skills training and education priorities, with a real focus on helping youth get into the job market.
Senator Sibbeston: The Metis are a Canadian phenomenon. Metis are really the result of White people who initially came into the country joining up with the First Nations and creating Metis. I think it is a great outcome. You get the best of two races, kind of like a super-breed.
The Chair: I think that is a little bit over the top.
Senator Sibbeston: In the Northwest Territories, the Metis have a good, strong history because they are very independent, generally because they were more educated and more skilled. They were kind of the go-between between the White people and the native people. That is the role that the Metis played in the North. They were the interpreters and also the guides, the pilots on the boats and so forth. There is a very good book about Western Canada called Buffalo Days and Nights, which is the story of Peter Erasmus, a young guy in the 1800s when Fort Edmonton was just being established. It talks of the things he did, very adventuresome and interesting.
When I was younger, I did a bit of research on the Metis in the North. As the federal government paid treaty to the First Nations, the federal government paid scrip to the Metis. In the North, it did not involve land, but it involved a payment of $250 per each member of a Metis family. At the time, that was a lot. I talked to an old man in Providence and he said with that $250 he could build himself basically a house. He could buy all the materials, doors and windows, and build it himself. Scrip was in recognition of the extinguishment of Indian title. That was written on the scrip document. Even then, the federal government recognized that they had at that time what was known as Indian title.
I know that the Metis are working towards a recognition of their rights in Canada, and the Powley decision is a very important decision recognizing their hunting rights.
Is the movement in Canada towards the Metis eventually being recognized on the same basis and status as First Nations, with all the rights that the First Nations have? Would you say that that is the movement that Metis people in our country are working towards?
Ms. Tromp: As I said earlier, we have very little experience with the jurisprudence on Metis rights. It has been nine years since the Powley decision, so we have a long way to go into defining that, seeing how that legal landscape evolves.
I do not think it would be fair or reasonable to say that that is necessarily where all of that will go.
The Metis, being a distinct people, have a distinct history, and the relations that they have with the federal government and with provinces are, therefore, unique and different.
At this point, one cannot really say. There is no reason why that will not evolve into a relationship that is unique and will continue to be unique and different to that which Canada has with First Nations, where the history is different.
Senator Sibbeston: I have one other question that is little bit unrelated but deals with Metis.
For some reason, in Saskatchewan and areas like that, Metis attended residential schools. For some reason, the federal government has not recognized those residential schools as having been residential schools for the purpose of settlement of residential school issues.
Can you comment on that and why that may be? It seems that Metis are being denied the same rights as other native people in our country in that matter.
Ms. Tromp: The federal government, as you know, has an Indian residential school settlement program, and that is with respect to student survivors of federally run residential schools.
I guess the simple answer is that those Metis students who attended federally run schools are eligible for the same settlements as former First Nations students in terms of this federal program. However, there were also schools that were not federally run that might have been provincially run, and they do not meet the criteria for the federal program.
The Chair: Thank you, Senator Sibbeston. Good question.
Senator Munson: Welcome this morning. You answered part of this question with Senator Raine, but in your statement you said that there is no definitive explanation for increases in self-identification.
Some reasons may — you used the word "may'' — include increased awareness of family history, improved perception of Aboriginal nationality, recent legal decisions, media awareness, and others. I always like the others.
The word "entitlement'' was used, but is there a financial incentive to be identified as Metis, or is it about pride of place?
Ms. Tromp: I would say it is pride of place. I cannot think of anything that would confer a financial benefit simply for identifying yourself as Metis in the census.
Senator Munson: Thank you. I have another question. Our mandate is to examine and report on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Metis peoples, and Inuit.
You talked to Senator Meredith about these programs — the Urban Aboriginal Strategy and so on and so forth — but does the department know of, even though it is just before the budget, new and innovative ideas circulating within the federal bureaucracy or your own department on how to better address the federal government's responsibility? Is there something that we have not heard of that will help us with delivering our report?
Ms. Tromp: That is a very broad question, and I am not quite sure how I could answer that.
The government has set out a wide range of priorities and objectives with respect to all Aboriginal people, and, clearly, there is a very broad objective there in terms of improving socio-economic outcomes and reconciliation, and achieving certainty, for example, through comprehensive claims and other processes. All of that is part of a broader policy and government agenda, if you will, that seeks to address those outcomes and make all Aboriginal peoples full participants in Canadian society.
I am afraid I do not have anything to share in terms of other ideas or possibilities.
Senator Munson: On the other issue, are the Innu part of our study as well? Do you have any responsibility, in your particular function, for the people in Labrador, for example? Peter Penashue's people, so to speak. I ask that because in my other life as a reporter I covered the Davis Inlet business, and it was very moving and troubling and all things that were involved in that. There was a lot of money and a lot of work done to move the people from Davis. I do not know if it is part of our mandate, but I would like to have an update on where it is at today. I think they were very much part of the Aboriginal landscape.
Michael Nadler, Director General, Negotiations East, Aboriginal Affairs and Northern Development Canada: We are negotiating a comprehensive land claim with the Innu of Labrador. We were able to celebrate the achievement of agreement in principle in November, and final agreement negotiations are under way.
In terms of the relocation of Natuashish, Natuashish is a full participant in the negotiations. There are two Innu communities in Labrador — Sheshatshiu and Natuashish. Both communities are direct participants in the process and are high-capacity contributors to the process. There is a broader set of relationships for the department in those two regions, but I can speak to rapid progress on the negotiation side.
Senator Munson: The comprehensive agreement has been negotiated, or is in the process of being negotiated?
Mr. Nadler: We are in the middle stage. We have negotiated an agreement in principle, which is the step before a final agreement, so over the next two to three years we will be concluding final agreement.
Senator Munson: Is there any way that we can be privy to what it would mean and how this would play itself out in the near future?
Mr. Nadler: Absolutely. The agreement in principle was recently posted to the department's website, so, after this meeting, I can provide a written response that gives you the address for the website. There is also a news release and other background on the agreement that encapsulates a smaller piece in terms of the agreement and its potential.
Senator Munson: I would appreciate that. I do not know if this part of our mandate, chair, but I think it is important if we are looking at the wider and bigger approach to this issue.
The Chair: If it is of interest and relates to Aboriginal people generally, we will try to provide you with the information you are seeking, and I am sure the Department of Justice will provide you with that.
Senator Munson: Thank you.
The Chair: Ms. Tromp, you speak of jurisprudence. Are you suggesting that the government is relying on the courts to establish the identity of Metis rights? What is the government planning to do to identify and establish Metis identity and rights? It is the government that included them in section 35 in 1982, and now we seem to be relegating that responsibility to the courts. It would be nice if we could get a response to that. Senator Munson's identity question sort of circled around it. Do you have a response to that?
Ms. Tromp: I am not sure which identity question you are referring to.
The Chair: The identity of the Metis. You say that there is a lack of jurisprudence and are suggesting that the government is relying on the courts. Maybe I am interpreting this wrong, but you seem to be inferring that we are awaiting the courts to establish the identity for Metis and Metis rights. I would like as much clarification on that as possible to start with. It would be excellent to know exactly where the government is at and what it is planning to do to help identify those people that want to identify as Metis, so that it has the credibility it deserves in Canada.
Ms. Tromp: I will try to clarify that, and maybe my colleagues can help me out as we go deeper.
The government clearly was guided by the courts in this area; and we will continue to be guided by the courts. There have been a number of decisions in lower courts that have established or confirmed certain areas or that there is a community where there is a right to hunt or to harvest. We will continue to be guided by the courts.
In terms of what we are doing to support this, it really is the work that we are doing on supporting the organizations to identify their members that could be potential right holders. It is a significant amount of work and investment that the government has made to help identify those persons who could benefit.
We also have in place federally, because we can only do this for the federal government, the harvesting guidelines for federal lands, which are helpful for our enforcement personnel in parks and for natural resources with respect to Crown lands. For example, if they come across a person hunting for food and that person can identify themselves as Metis and has the appropriate documentation, which they can provide at a later date, it enables them to manage those rights and allow that activity to continue.
Those guidelines are provided, and those are the things we are doing further to that decision as a way to address in a practical manner the situation to ensure that there is a calm, orderly and consistent approach to how that is rolled out and put in place.
Peggy Stone, General Counsel and Director, Department of Justice Canada: I will add briefly that, as Ms. Tromp said, Powley set out the framework. There was very little there in terms of how specifically to identify a Metis. They gave the test similar to the test for First Nations people such that to exercise the right, you need to be part of a group that existed historically. You can maintain a current membership with a current community that is recognized. They adapted that test to the context of the Metis and moving the timeline for determining the historic date to European control rather than pre-contact.
In the communities, memberships for Metis are more difficult to determine than for First Nations because, as a practical reality, the government has a membership list for Indians that is used often in litigation to identify the person as a First Nations person. That list does not exist in the Metis world and so, as Ms. Tromp said, the government is working with organizations to help identify those people. Litigation is an expensive process to determine rights holders so, to the extent that there are alternative processes, that is the government's preferred way.
To date, there have not been many court decisions. Four or five across the country have determined that Metis communities exist and that their rights holders exercise some rights. Those are principally in the Prairie provinces. A couple of lower court decisions are under appeal in the Atlantic region where individuals charged with fishing in federal parks are unable to prove to date that there is an historic community in the Atlantic in those areas. As I said, those decisions are under appeal, and we will see what the courts ultimately decide. It is really not the best way to determine who a Metis is, but it is a vehicle open to First Nations and Metis people if they so choose.
The Chair: You mentioned a recognized community. How is a community recognized?
Ms. Stone: That goes to historic evidence. There are a number of factors that the court will look at. It needs historians and ethnographers to look at the history of the particular period. There have been statements from the courts that, as you know, Metis are a distinct people. They need to prove that at the time there was a community recognized as a Metis community historically. Ethnographers need to look at history and trace different ways of looking at correspondence and government documents and how those were treated with what historians say. They are difficult, expensive and time-consuming practices; and each one will be community-specific.
The Chair: Thank you. I am sorry, colleagues, but this identity question is critical to where we are going.
Senator Patterson: I have a few questions I would like to pursue that have not been raised. I want to start by endorsing Senator Sibbeston's positive comments about Metis. His comments about a super-race provoked some chuckles, but I note by your testimony that the Metis people seem to be better off than First Nations people according to the socio-economic indicators. This is welcome information and confirms my view of Metis I have dealt with in the past. Their biggest achievement was to have secured recognition under section 35, which was a very significant step in recognition of their uniqueness and their strength, I believe.
I will ask questions of officials from the interlocutor's office. The minister's responsibility was separate from your department in the 1980s when it was established and then it was brought into Aboriginal Affairs in 2004. Could you tell me whether there is a division devoted to Metis? Are there financial allocations to Metis peoples and Metis programs within the significant budget of Aboriginal Affairs that you could break down for us now or later?
Ms. Tromp: The Office of the Federal Interlocutor for Métis and Non-Status Indians is currently a separate office within Aboriginal Affairs and Northern Development Canada. It operates as a separate sector within that department.
Its role is essentially three-fold. It is meant to be the office of primary contact and first contact for Metis and non- status Indians in the federal government. I can say that, over the years, that role has been a helpful one in terms of supporting those organizations in linking up with other departments and other areas, but they have established their own relationships and they are program recipients with other departments, as well.
The office is responsible for supporting the bilateral and tripartite relationships with the organizations that I spoke about earlier. There are funds provided, basically for core funding for the organizations, capacity funding, and funding for those tripartite and bilateral processes that are under the federal interlocutor's contribution program. There are also funds provided for what we call managing Metis rights, which is really the work on the membership systems. That funding is also provided through our office.
We can get you the details of that budget and how that breaks down with respect to the various programs.
To answer your question regarding whether there is a particular office or location that provides those funds and manages that relationship, yes, and it is still the Office of the Federal Interlocutor but within Aboriginal Affairs.
Senator Patterson: Who is the head and how many person years?
Ms. Tromp: The federal interlocutor is the minister. The head of the office would be me as the assistant deputy minister. Again, we can provide you the specifics in writing, but I believe we are at around $40 million and around 66 FTEs. It is a small shop. About half of it is the Urban Aboriginal Strategy and about half is Metis and non-status Indians, both managing relationships and managing Metis rights.
In terms of the contribution dollars, it is about $41 million overall.
The Chair: You will provide us, Ms. Tromp, with the total budget, as well as answers to questions; will you not?
Ms. Tromp: We can provide the total budget breakdown.
The Chair: That would be great.
Senator Meredith: Ms. Tromp, with respect to page 8 of your presentation, you said that given that the Dene and Metis lived side by side in blended communities, Canada agreed on a policy basis in 1978 to enter into comprehensive land claim negotiations with both the Dene and the Metis of the Northwest Territories.
Are you currently in land claims negotiations with any other self-identified Metis group across Canada, and how are those negotiations going? We have heard from others who have appeared before us — Mr. Nadler, you might be able to comment on this, as well — with respect to the long, lengthy process and the economic burdens that are placed on these groups when they do want to add land to their reserves or carve out a piece of Crown land for their people.
Talk to me about how that is progressing, and, going back to economic development, are there any resources tied to these lands that the Metis have identified that they would like to see developed?
Mr. Nadler: Thank you for your question, senator. Let me respond in two pieces.
We have several land claims that involve Metis groups in the Northwest Territories. As you may be aware, others in the room were part of these events in history, so I will not go into too much detail but I will provide context.
Canada began the negotiations with the Dene and the Metis in the Northwest Territories in 1978. Those negotiations reached the stage of final agreement in 1990 but the agreement faltered. After that point, regional negotiations were undertaken and they involved both Dene and Metis, so the Dene and Metis negotiated together, jointly. We settled agreements in the Gwich'in settlement area in 1992 and the Sahtu settlement area in 1994. The Tlicho agreement in 2003 also included some Metis beneficiaries.
We have one ongoing negotiation with a Metis group in the Northwest Territories in the south Great Slave Lake — south of the lake. That negotiation is nearing agreement in principle, which is that middle stage I mentioned before in my comments on the Labrador Innu.
In Southern Canada, there is only one group that is currently contemplating a certain claim. We mentioned the group previously, and it is a group in Labrador that is claiming Inuit heritage. Their name is NunatuKavut. They are researching their claim at this point. They have not submitted a final assertion.
Senator Meredith: How many individuals are involved in terms of the number of the NunatuKavut group?
Mr. Nadler: We have not received their assertion, which is the final documents, so I cannot estimate at this point.
In the Northwest Territories, the ongoing negotiation with NWTMN, the Northwest Territories Métis Nation, represents about 3,000 Metis in three communities south of the lake.
While I recognize that much of the framework and context for negotiations in the Northwest Territories were set between 1978 and 1990, the actual final agreements flowed quickly after 1990. We saw the rapid progress in settlement claimants in the three areas where Metis were involved.
We might have seen similar progress south of the Great Slave Lake, except that the Dene and Metis process was separated. At that point, the Dene sought treaty land entitlement, so it set us back a little bit in restructuring the process.
The Chair: I have a quick question: There is a court case before the Supreme Court right now. It is the Manitoba Metis Federation, I believe, or is it the MNC?
Ms. Tromp: MMF.
The Chair: Do you provide funds to pursue legal claims in the courts for any of these groups?
Ms. Robinson: In the past we have, though it depends. We have a test case funding program, and the individual group that wants to bring it as a test case must apply. The government then has to decide that it is something that cannot be resolved through policy or other means, and then they might support it.
I am not sure that the Manitoba Metis Federation was successful in applying to that program. I do not believe we have funded that one.
The Chair: We are waiting for the court ruling on this at the moment, are we not? They presented on December 13 last year, I believe.
Ms. Tromp: Yes.
The Chair: The government is conducting an exercise to establish First Nations status and membership at the present time, from my understanding. Will this exercise be extended to the Metis and the Inuit if they so desire?
Ms. Tromp: Are you referring to some of the exploratory discussions that happened post-McIvor?
The Chair: Yes.
Ms. Tromp: My understanding is that the Metis groups were invited to be part of that process; the Congress of Aboriginal Peoples and Métis National Council both were invited to participate and were provided funds to do some more work, consult their membership and talk about issues of membership, citizenship, and the like. I believe they have provided reports back into government, and that is all being reviewed at the present time and being pulled together.
The Chair: I would like to thank the officials from the departments for appearing before us; we thank you for your excellent presentation and your candid and straightforward responses to the questions posed by senators.
Senators, we will suspend briefly and then go in camera to discuss the report that we are planning on the BC Treaty Commission.
(The committee continued in camera.)