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04/03/1998
Indian Claims Commission Recommends Canada Grant Special Standing for the Friends of Michel Society to Submit Claims
Ottawa (April 3, 1998) - The Indian Claims Commission today released its report on the Friends of the Michel Society Inquiry: 1958 Enfranchisement Claim. The report is unique because of the issues it addresses and the recommendation put forth by the Indian Claims Commission (ICC or "the Commission").
The central issue in the report is whether or not the Friends of the Michel Society can even bring a claim to the Department of Indian Affairs and Northern Development (DIAND). The Society is a group formed to represent descendants and former members of the Michel Band in Alberta. The Society maintains that land from their original reserve was improperly surrendered. However, the Band and its reserve no longer exist - members of the Band lost their Indian status when the entire Band was "enfranchised" in 1958.
Enfranchisement was established by government as a way to assimilate Indian people into the Canadian mainstream through the operation of enfranchisement provisions. Enfranchisement refers to a process in which Indian people voluntarily or involuntarily lost their registered Indian status and band membership in return for the full rights of Canadian citizenship. Supposedly, this would "better" Indian people by encouraging them to abandon their traditional lives and cultures in order to join mainstream society.
The first legislated version of enfranchisement was called the Gradual Civilization Act (1857), reflecting the view that First Nations needed to be "civilized" before becoming full citizens. The 1876 Gradual Enfranchisement Act added new measures to hasten the assimilation process, including involuntary enfranchisement of Indian women who married non-Indian men. Relevant to this inquiry, later versions of the Indian Act provided for the enfranchisement of entire bands. The Michel Band was one of only two bands in Canada ever to be entirely enfranchised and to lose their status as a band.
The Michel Band, originally part of Treaty 6 signed in 1878, was located northwest of Edmonton on the Sturgeon River. Over the years the Band had lost many members through enfranchisements. In 1958, the entire Band was enfranchised (four members not considered able to support themselves were not enfranchised, but were removed from the band membership list). By 1962, all reserve lands and assets of the Michel Band had been distributed to its enfranchised members. The Band essentially ceased to exist.
Recognizing that enfranchisement discriminated against Indian women who automaticallylost Indian status upon marriage to non-Indian men, Parliament introduced the Bill C-31 amendments in 1985 to comply with the Canadian Charter of Rights and Freedoms. The bill repealed all enfranchisement provisions and created a process in which those who lost Indian status could apply to have it reinstated. Bill C-31 also provided that certain reinstated individuals were also entitled to be placed on band membership lists.
Approximately 660 individuals who are former members or descendants of the Michel band regained Indian status and requested that Indian Affairs place them on a Band list or reconstitute the Band. These requests were rejected. The evidence shows that most, if not all, of these people are former members and descendants of those enfranchised before 1958.
When the Society submitted a claim to DIAND in 1985 involving alleged wrongful land surrenders and the Band's enfranchisement, Canada took the position that the Friends of the Michel Society is not entitled to be recognized as a band under the Indian Act, and that the Society therefore has no standing to bring a specific claim.
Assuming that the Band ceased to exist in 1958, the parties agreed to have the Commission conduct an inquiry into the narrow issue of whether the Bill C-31 amendments and the other provisions of the Indian Act imposed a statutory obligation on Canada to reconstitute the Band. This involved a thorough review and interpretation of the Bill C-31 provisions. The Commission found that on a strictly legal basis, Canada has no obligation to reconstitute the Michel Band, and the Society has no standing to bring a claim under the Specific Claims Policy.
However, the consequence of this conclusion meant that former members and descendants of the Michel Band would have no practical means to address their land claims against Canada since litigation is usually not a viable option. If the Michel Society is correct in asserting that the Michel Band experienced improper and invalid land surrenders in the early 1900s (bearing in mind that the Commission did not make any findings on these assertions), it would be manifestly unfair to allow Canada to ignore its legal obligations and not have to account for the damages suffered by the Band and its descendants. Canada would benefit from the discriminatory effect of enfranchisement provisions that were repealed by Parliament in 1985.
Therefore, the Commission relied on its supplementary mandate which allows the ICC to make recommendations to government where it concludes that the Specific Claims Policy was correctly implemented but the outcome is nonetheless unfair. In its report, the Commission recommends that Canada grant special standing to the Friends of Michel Society allowing the Society to submit specific claims in relation to alleged invalid surrenders of reserve land for consideration of their merits under the Specific Claims Policy.
"Canada's position is correct from a purely technical legal perspective," said ICC Commissioner Carole Corcoran. "But here is a case where technical legal arguments do not result in justice. Basically, these people fell through the gaps in the Bill C-31 amendments. The amendments did not provide for the reinstatement of Indian status for those people collectively enfranchised in 1958. The gap also creates unfairness for the 660 former members who did regain status but not the benefits of band membership because Canada does not recognize the Michel Band. For Canada to say that the Society cannot bring a claim because they are not a band compounds the sense of injustice for these people. In the interests of fairness, Canada should consider the specific claims of the Michel Society on their merits. This approach is consistent with the broad objectives of the Specific Claims Policy, Bill C-31, and the spirit of trust, understanding and reconciliation between the Crown and aboriginal peoples."
The ICC was established in 1991. Its mandate is: to inquire, at the request of a First Nation, into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations; and to provide mediation services on consent of the parties at any stage of the claims process.
