2nd Session, 41st Parliament,

Volume 149, Issue 42

Tuesday, March 25, 2014

The Honourable Noël A. Kinsella, Speaker

Study on Issues Pertaining to Human Rights of First Nations Band Members Who Reside Off-Reserve

Third Report of Human Rights Committee Adopted

The Senate proceeded to consideration of the third report of the Standing Senate Committee on Human Rights entitled:Recognising Rights: Strengthening Off-Reserve First Nations Communities, tabled in the Senate on December 12, 2013.

Hon. Mobina S. B. Jaffer moved the adoption of the report.

She said: Honourable senators, I rise today to speak on the consideration of the third report of the Standing Senate Committee on Human Rights entitled: Recognising Rights: Strengthening Off-Reserve First Nations Communities. The report was tabled in the Senate on December 12, 2013.

Across Canada, there are more First Nations people living off- reserve than living on reserve. In the 2006 Census, 60 per cent of the First Nations population reported living off-reserve. According to the 2011 National Household Survey, approximately 850,000 Canadians identified as First Nations, 62.4 per cent of whom lived off-reserve.

Off-reserve First Nations people comprise a largely urban population. The census data indicate that three quarters of off- reserve First Nations people live in urban areas. The census data also suggest that First Nations people living off-reserve face particular social, economic and health-related challenges. As a group, First Nations people living off-reserve score lower on virtually all social and economic indices than do non-Aboriginal people. In addition, this population is less likely to report being in good health than the non-Aboriginal population and is significantly more likely to report living with chronic illnesses, including arthritis, asthma, diabetes, heart problems, cancer and emphysema.

The off-reserve First Nations population is a distinct group of Aboriginal Canadians. However, off-reserve Aboriginal people may also be members of other segments of the Aboriginal population. Off-reserve First Nations people may or may not be members of a First Nations band and may or may not be registered as status Indians under the Indian Act. Of the off- reserve First Nations population in 2011, for example, 60.8 per cent were registered Indians while 39.2 per cent were not registered Indians. The study focused on the rights of the off- reserve First Nations population as a distinct group. This was the first parliamentary study of this group of Aboriginal Canadians.

Concerning the rights of off-reserve First Nations people, First Nations people have rights that are protected under section 39 of the Constitution Act, 1982. These include the rights that flow from the historic treaties signed between First Nations and the Crown. The rights of First Nations people living off-reserve also receive a level of protection under the equality provisions, section 15, of the Canadian Charter of Rights and Freedoms.

In the case of Corbiere v. Canada, 1999, the Supreme Court of Canada held that First Nations people cannot be excluded from voting in the First Nations communities simply because they do not live on a reserve. The voting rights of First Nations people living off-reserve are thus protected against discrimination based on residency off-reserve. In addition, the important recent decision of the Federal Court in Daniels held that Metis and non-status Indians are “Indians” within the meaning of section 91.24 of the Constitution Act, 1867, and therefore within the exclusive legislative authority of Parliament.

As noted previously, 39.2 per cent of the off-reserve First Nations population in 2011 were non-status Indians. Therefore, this decision, if upheld, would, according to the statistics just

cited, affect close to 40 per cent of the off-reserve First Nations population.

The Daniels decision may also reflect a broader evolution towards greater recognition of Aboriginal groups who have been overlooked or under-represented in the Canadian legal and political discourse. In this regard, the rights of the Metis were the subject of the Supreme Court of Canada’s decision in Manitoba Metis Federation, 2013.

My colleagues in the Standing Senate Committee on Aboriginal Peoples released a report last year examining the recognition of the identity and the rights of the Metis. In undertaking its study, the Standing Senate Committee on Human Rights was concerned with better understanding the rights of First Nations people living off-reserve, as well as the experiences of this group in exercising their rights and accessing federal programs and services.

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We hope that our report will generate an ongoing dialogue with the off-reserve First Nations people and their representative organizations, and contribute to greater overall understanding of the issues affecting this segment of the Aboriginal population.

The Committee’s Study: General. The Standing Senate Committee on Human Rights is concerned with ensuring that federal legislation and policies adhere to the Canadian Charter of Rights and Freedoms and international human rights standards. The committee also has a mandate to help educate the public and provide a forum for dialogue on human rights issues in Canada. In connection with its general mandate, the committee undertook in March 2012 to examine and report upon issues respecting the rights of off-reserve First Nations people and their ability to access services, with an emphasis on the current federal policy framework.

In the course of the study, the committee held hearings in Ottawa, as well as in Winnipeg, Saskatoon and Vancouver. We heard from 84 witnesses, including governments, academics, service delivery organizations and individuals. The committee also heard from a large number of friendship centres because of the considerable role this network of organizations has played in the lives of off-reserve First Nations people for over 50 years.

The study aligned with several of the committee’s previous studies, which considered issues affecting Aboriginal people. For example, in the committee’s 2011 report entitled, The Sexual Exploitation of Children in Canada: the Need for National Action, the committee played special attention to the realities facing many Aboriginal youth, especially girls and young women, which make them particularly vulnerable to sexual exploitation. In addition, in its report, Cyberbullying Hurts: Respect for Rights in the Digital Age, the committee also noted the particular vulnerabilities of Aboriginal children due to such factors as racism, living conditions, poverty and domestic violence.

Evidence Heard: Aboriginal women and girls. As in previous studies undertaken by the committee, the study on the rights of off-reserve First Nations people included a focus on the particular experiences and challenges faced by Aboriginal women and girls.

The committee heard from many witnesses that off-reserve First Nations women and girls continue to carry a heavy burden. The report examined the intersecting issues of sexism, racism, violence and poverty that may affect off-reserve First Nations women. In addition, the committee heard that women face economic strains associated with primary responsibility for child rearing and caregiving.

Programs and services. The federal government runs several programs that are either specifically designed for or accessible to the First Nations people living off-reserve. These programs are offered in many areas, including health, education, training and employment, youth, and housing.

One example is Health Canada’s non-insured health benefits program, which is available to status First Nations people living on- and off-reserve. In all, over 30 federal departments and agencies provide services to Aboriginal people in Canada. However, the committee heard that the challenges experienced by off-reserve First Nations people include a lack of access to federal programs and services for First Nations people.

The committee also heard of a lack of programs and services targeted to the specific needs of off-reserve First Nations people. As the report notes, there is a lack of clarity regarding federal and provincial responsibility for program and service delivery to off- reserve First Nations populations. As a result, this population may experience difficulty accessing both federal services provided on-reserve and provincial programs available to the general public.

At an individual level, many who leave their reserve communities may lose access to certain programs available on- reserve. They are often the victims of jurisdictional disputes that may result in the failure of governments to provide adequate services off-reserve.

Voting rights. Despite the charter protections for the voting rights of off-reserve band members, the committee heard that off- reserve First Nations band members do not have uniform access to band elections. This inconsistency in the inclusion of off- reserve members in band elections indicates that there is a gap between the existence of the right in law and its existence in practice. It also highlights a barrier to the participation of off- reserve band members in band decision making.

Friendship centres. The committee sought input from many friendship centres across Western Canada because of the crucial roles they play in the lives of First Nations people living off- reserve. As the committee heard, they provide a wide array of social and cultural services to First Nations people. Services may include programs related to health, education or employment, as well as child care, youth initiatives, emergency housing, food banks, cultural and spiritual activities, and access to elders.

In connection with the exercise of voting rights, some friendship centres also facilitate participation in elections, both band and mainstream — municipal, provincial and federal.

In addition to the important current role they play in the lives of off-reserve First Nations people, some witnesses envisioned a future role for friendship centres that included a greater role in

coordinating and administering federal programs for urban Aboriginal people.

The report surveys the evidence provided by various stakeholders consulted, as well as the personal stories of several community members. We were able to include and felt it important to include both individual and policy-level perspectives in the final report. The report also makes observations with respect to several issues surveyed in the report. These include observations respecting the role of friendship centres in continuing to provide important programs and services to off-reserve First Nation communities. The report notes the often limited budgets of friendship centres and notes that the strain on them will increase along with the rapid growth of the off-reserve First Nations population.

In addition, the report observes that First Nations people living off-reserve are not always able to access the services they need or services needed to facilitate the exercise of their rights, for example, voting.

The report’s findings are preliminary. This is, in part, because the committee was not able to hear from all of the interested parties on these issues. As well, the committee undertook its study on the rights of off-reserve First Nation band members at a time when the law surrounding these issues is undergoing important development. In particular, the Daniels case, in which the Federal Court declared that Metis and non-status Indians fall within the jurisdiction of the federal government, is currently under appeal. Issues respecting the rights of off-reserve First Nations people and programs and services to meet their particular needs and challenges are in flux.

The committee hopes that this report will help to generate greater understanding and dialogue on the important issues affecting the human rights of off-reserve First Nations’ band members.

The committee also hopes that the federal government and the relevant stakeholders take into account the preliminary findings in this report as they consider these evolving issues. The committee also undertakes to remain updated on these issues as they develop.

Honourable senators, in conclusion, I would like to share with you something that will stay with me all my life. Ever since I came to this great country almost 40 years ago, I have often visited Winnipeg and Manitoba, and I’ve always felt that in Winnipeg or in Manitoba all communities are welcome. The multicultural program, the multicultural community and the welcome of refugees are the best in the country.

While doing the study, we visited Winnipeg and we went to the friendship centre in Winnipeg, and I will never forget what I saw. The day we arrived at the friendship centre, they were having a celebration, a celebration on the deaths of five year-olds, six year- olds, and seven year-olds who were killed senselessly just because they were in the wrong place.

Honourable senators, we are supposed to be a chamber that looks after the rights of minorities. What is happening to Aboriginal people who are living off-reserve, the kind of life

they are leading? I urge all of us to look at this issue seriously because this is not the Canada we all wish for. Every child should have equal access to education, health and well-being.

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The Hon. the Speaker pro tempore: Continuing debate? Are honourable senators ready for the question?

Some Hon. Senators: Question.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

 

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