Year: 2014

Myth of the Crooked Indians: C-27 First Nations Financial Transparency Act

Can you think of any Prime Minister, President or World Leader that would withhold food, water, or health care as a bullying tactic to force its citizens into compliance with a new government law, policy or scheme? Can you ever imagine this happening in Canada? I don’t think most of us could. Yet, this is exactly what is happening with Harper’s implementation of the illegal C-27. Minister Valcourt has threatened to cut off funds for food, water and health care if First Nations do not get in line and abide by this new legislation – despite the fact that it was imposed without legal consultation and is now being legally challenged. How many First Nations children will have to die for Harper to sit down and work this out with First Nations? Bill C-27 (formerly C-575) First Nation Financial Transparency Act (FNFTA) is the classic deflection tactic by Harper’s Conservatives to distract Canadians from the extreme poverty in many First Nations and Canada’s role in maintaining those conditions. The solution to chronic underfunding of essential human services like water, food, and housing lay not in more legislation, but in addressing the problem: the underfunding. Presenting accountability legislation as the solution implies that First Nations are the cause of their own poverty – a racist stereotype Harper’s Cons use quite frequently to divide community members from their leaders and Canadians from First Nations.

This racist stereotype is recycled again and again when Harper is pressed to account for the fourth world conditions in some First Nations. The response always seem to be: “Well, we gave them x million dollars, where did all the money go”? What Harper never tells Canadians is that in giving First Nations x million dollars, that he has given them half of what is needed to provide the specific program or service. Without all the facts, this propaganda serves to distance Canadians from First Nations.

In the last couple of years, Harper has been hit hard in the media about Canada’s persistent failure to address the basic needs of First Nations. The following high-profile poverty-related crises in First Nations meant that Harper needed some instant damage control and distraction – which he got with C-27:

– Cindy Blackstock’s discrimination case for inequitable child and family service funding to First Nations kids in care;

– Numerous housing, water and suicide crises and states of emergency in individual First Nations; – Auditor General’s numerous findings related to inequitable funding in housing, water and education; – RCMP’s report about over-representation of murdered and missing Indigenous women; and – United Nation’s finding that Canada’s human rights violations leads to “abysmal” poverty in First Nations despite Canada’s enormous wealth;

The Cons also use third parties, like the Canadian Taxpayers Federation, to advance their racist propaganda and deflect from the real issues. How many times have we heard the phrase “millionaire chiefs” or “exhorbitant salaries”? Yet there has never been a millionaire Chief in the history of Indian Act Chiefs. Canada has failed to show where any Chief ever received a million dollar salary from federal funding.

But let’s pretend all 633 Chiefs in Canada got million dollar salaries (which they do not). That would mean $633 million dollars a year in salary to Chiefs. The annual budget for First Nation programs and services is approximately $10 billion. It would be pretty hard to argue that 6% of the budget going to give all Chiefs a million dollar salary would be the actual cause of First Nation poverty.

We simply can’t have this conversation around accountability without the facts. The facts are this: the average Canadian salary is $46,000/year. The average elected First Nation leaders’ salary is $36,000/year. Yet, there are numerous municipal librarians making $100,000 a year to manage books, while First Nation leaders must manage human lives.

http://www.afn.ca/uploads/files/accountability/5_-_the_straight_goods_on_first_nation_salaries.pdf

But why are we even talking about salaries when we should be talking about funding First Nation food, water and housing? That’s because of C-27 FNFTA and all the media hype around an alleged lack of transparency in First Nations. There are critical problems with this legislation which make it both unconstitutional and illegal: (1) it was done without legal consultation, accommodation and consent of First Nations and (2) it’s a direct interference with inherent First Nation jurisdiction; and (3) it violates their internationally-protected First Nation right to be self-determining.

http://laws-lois.justice.gc.ca/PDF/F-11.66.pdf

FNFTA states that its purpose is to “enhance the financial accountability and transparency of First Nations” – which presumes, of course, that this is lacking. The Act itself provides that:

– financial statements must be audited yearly;

– it must include a schedule of salaries and expenses of Chiefs and Councillors;

– Canada can publish the information on the Internet; and

– Copies of the audits must be provided by First Nations to their band members.

These may seem like harmless provisions, except when you realize that First Nations already have to submit audited financial statements every year, or their funding can be cut off. First Nations band members have always had the right to obtain copies of their First Nation audits – either directly from the First Nation or from Indian Affairs.

What’s not obvious in this Act or its associated rhetoric, is that First Nations are the most accountable governments on the entire planet! The Auditor General has made very disturbing findings about the level to which First Nations must report on their federal funding – a “burdensome” 60,000 reports a year! That’s over 95+ reports per First Nation every year or one report every 3 days. The Auditor General even found that many of these reports are not even read by federal bureaucrats. So what’s the problem?

http://www.oag-bvg.gc.ca/internet/English/parl_oag_201106_04_e_35372.html#hd5j

Enacting FNFTA seems more like an exercise in smearing First Nation leaders, than addressing any real glaring omission in accountability. And, with the Harper government, there is always a hidden gem. While he is turning community members against their leaders and distracting Canadians from the real issue of underfunding, here is what Harper is REALLY doing in this Act:

– reporting of any salary, income or expenses of Chiefs and Councillors made in the PERSONAL capacity;

– First Nations must make their audits accessible to the PUBLIC on the Internet for at least 10 years;

– refusal by a First Nation to comply with any of these provisions means Canada can CUT FUNDING.

So let’s look at each of these provisions more closely.

Personal Income:

Imagine if any political leaders in Canada had to report their personal wealth in addition to the salary of their public office. Prime Minister Harper is the 6^th highest paid political leader in the world with a salary of approximately $300k/year. Harper not only makes 7 times what the average Canadian makes, but makes far more than other world leaders with much larger populations and economies.

https://ca.news.yahoo.com/blogs/canada-politics/stephen-harper-6th-highest-paid-world-leader-study-134621685.html

But let’s forget about his salary for a minute. What is Prime Ministers and federal politicians had to publicly disclose their PERSONAL wealth? Then we are no longer talking about over-paid Prime Ministers, we are talking about million dollar Prime Ministers. Stephen Harper’s personal wealth has been estimated at $5M. Former Prime Minister Paul Martin is in the hundreds of millions. Why the double standard? Why did so many federal MPs refuse to disclose their own expenses? I agree there is an issue of accountability in Canada, but it’s with the federal government, and not First Nations.

Public Access:

The other issue is about accountability and to whom? This act makes First Nations accountable to the Minister first, the Canadian public second, and lastly to their band members. This Act does nothing to improve accountability of leaders generally to their membership. In fact, band members will not get any information that they were not entitled to previously. What is new is that the Canadian public has a NEW right to access that information. One has to wonder why that is the case. Canadians don’t participate in First Nation governments, they don’t vote for the leaders, and they certainly don’t pay for their programs and services – despite that persistent myth.

There is no reason for Canadians to have access to this information – especially any information related to First Nation PERSONAL financial information. Some lawyers have even argued that this Act creates not only a double and higher standard on First Nations than on Canadian politicians; but also violates their legal privacy rights. There is simply no need for this piece of the legislation.

Cutting Funding:

Here is the real issue. Harper’s bully government has been meticulous in designing heavy-handed, paternalistic legislation with extreme-force compliance mechanisms built in and FNFTA is no exception. If First Nation do not or cannot comply, they can have all of their funding cut. We are not talking about funding for Ottawa-type expenditures like summer tulips, Canada Day fireworks, or international trips – we are talking essential human services like food, water, heat and housing. As temperatures reach -40 degrees in the north right now, this could be disastrous.

http://www.cbc.ca/news/politics/first-nations-to-resist-complying-with-financial-transparency-act-1.2849517?cmp=rss

Many Idle No More grassroots citizens, Indigenous lawyers, academics, activists and leaders have come out against this legislation – not because any of us are against the general principle of open, accountable and transparent governments, but because Canada has no right to interfere in the governance of our Nations for any reason. We have never surrendered our sovereignty or right to govern ourselves. In 1997, Canada even recognized as a matter of policy, that our right to be self-governing is constitutionally protected.

I know there have been some bad individual leaders during our time. I know that some individual communities struggle with internal leadership issues. But that’s not all our communities.

I also know that we have all suffered many generations of colonization, inter-generational trauma from residential schools, and the impossible choices forced upon our leaders in managing extreme poverty.

We have so many problems because of the systemic racism, assimilatory government policies, chronic underfunding, failure to implement our treaty and Aboriginal rights; lack of access and control over our lands and resources; and federally-imposed laws which tell us how to govern.

One bad leader does not justify calling in the colonizer to further control our communities. Our Nations thrived here since time immemorial and our Nations will continue for many more millennia. We can survive and heal from colonization, just as we can get past any one bad leader. We simply can’t let Harper’s racist propaganda divide us. He wants community members to invite him in to control their communities – but once he’s in, it will be difficult, if not impossible, to get him back out.

Say no to FNFTA and stand with those First Nations who are resisting its illegal imposition on our communities.

http://indigenousnationhood.blogspot.ca/2010/10/bill-c-575-first-nations-financial.html

#rise #idlenomore #warriorup #sovereignty #No2FNFTA

November 26, 2014
Lynn Gehl v. Canada: Unstated Paternity and Indian Status

Lynn Gehl v. Canada: Unstated Paternity and Indian Status

Dr. Lynn Gehl is a First Nations woman who is grounded in the traditional Indigenous knowledge of her Algonquin Anishinaabe culture and tradition. Gehl’s family originates from the Algonquins of Pikwakanagan (formerly Golden Lake Band) in Ontario. Yet, despite her connection to her culture, her Algonquin upbringing, and her ancestral ties to her First Nation, Gehl is denied legal recognition as an “Indian” by the federal government.

But just like Mary Two-Axe Early, Jeanette Corbiere-Lavell, Yvonne Bédard, Sandra Lovelace and Sharon McIvor before her, Gehl is not taking no for an answer. After more than twenty years of applications, protests and appeals, Gehl is headed to court.

Mary, Jeannette, Yvonne, Sandra, Sharon

(lynngehl.com and Google Images)

Mary Two-Axe was a well-known advocate who challenged Canada’s discriminatory Indian Act which took Indian status away from Indian women if they married a non-Indian. Jeanette-Corbiere Lavell and Yvonne Bédard took Canada all the way to the Supreme Court of Canada to challenge these marrying-out provisions and lost. This gave Sandra Lovelace the opportunity to go straight to the United Nations and argue her case and win. The United Nations decided that Canada cannot enact legislation that denies Indian women and their children the right to enjoy their culture together with their communities. However, the Bill C-31 amendments, while reinstating some Indian women, still discriminated against many others. Sharon McIvor dedicated 25 years to the court system to challenge this residual discrimination. She also won, but the court left it up to Canada to amend the Act. This resulted in Bill C-3, which remedied some of the discrimination for Indian women, but added more discriminatory provisions to the Act, which forced McIvor to take her case to the United Nations as well. While we wait for the decision in that case, Lynn Gehl has put in over 20 years trying to seek justice for Indian women and their children in terms of unstated paternity.

Today (Monday, October 20^th) Gehl and her legal counsel, Christa Big Canoe from Aboriginal Legal Services Toronto, will appear before the Ontario Superior Court to argue that the Indian Act rules around who is an “Indian” are discriminatory on the basis of race, marital status and/or gender. The Indian Act, and the means by which the federal government applies the act to Indian children whose fathers are unknown, results in them receiving a lesser form of Indian status, or no status at all. Gehl’s case focuses on what is known as unknown or unstated paternity – Aboriginal Affairs and Northern Development Canada’s (AANDC) policy to automatically presume that an unknown or unstated father is a non-Indian – even if the father is, in fact, an Indian. Unstated or unknown paternity manifests in a variety of ways. For example, AANDC will unilaterally determine that the father is non-Indian if:

–          an Indian mother does not know the name of the father;

–          the father refuses to acknowledge paternity of the child;

–          the father refuses to sign the birth certificate and/or Indian registration form;

–      the mother does not have the money to complete and file all vital statistics forms; there may be difficulty meeting time-lines for remote First Nations women who must fly into hospitals to have children;

–          the underage mothers may have privacy concerns related to paternity in smaller communities; and/or

–          an Indian mother refuses to name the father (due to incest, rape, domestic violence).

AANDC is not legally required to process applications with the presumption that an unstated father is a non-Indian. This is a clear policy choice made by AANDC to reduce the number of Indians over time. Prior to 1985, there was a legal presumption of Indian paternity for unwed mothers – there was no mad dash to try to scam the system and register non-entitled children. Thus, there is no reason why AANDC cannot presume Indian paternity in the absence of documentation. At the end of the day, the child is born to, will live with and be raised by his/her Indian mother, family and community. However, such a policy does not correspond to Canada’s ultimate objective regarding Indians. AANDC’s policy objective has always been “the final solution of the Indian problem” i.e., to ensure “there is not a single Indian in Canada”. In fact, Canada is the last remaining country to determine who is an Indigenous person based on racial characteristics (descent through male blood). It is a racist formulation based on outdated views about biological characteristics of “races” and debunk sciences like eugenics and phrenology which sought to eliminate “undesirable” human populations.AANDC is the federal government department which created the rules to determine who can be registered as an Indian (status). Indian status confers not only program benefits like education and health care, but also determines who can be a band member; live on the reserve; vote or run for office in a First Nation; and often who is and is not a treaty beneficiary. Just like Canadian citizenship determines whether or not a Canadian can access education and health services from their province, Indian status determines eligibility on the federal side. So, its not that Indians get anything “more” from status in terms of programs, its just the source of the benefits.AANDC has done an incredible job of misinforming Canadians about the impacts of registering Indians. They often make comments about “floodgates” (i.e. everyone will become an Indian) and “costs” (this will be burden on taxpayers). The truth is, in terms of registrations, it would not have a significant impact.. While the Bill C-31 population projections (Indian women being reinstated to Indian status) ranged from 20-40% increase, the projected increases for unstated paternity are relatively small – approximately 2%. This does not substantiate the fear-mongering around population increases. Similarly, if the only concern here is money – there is no increased burden on taxpayers. For every person that is registered as an Indian they will get less money for education, health care, housing, food, water, and less child and family services. Status Indians are the most impoverished people in Canada. Plus, its the wealth from Indigenous lands and resources that pay for our programs and services and also subsidizes the programs and services of Canadians – not the other way around. Therefore, there is no financial argument to made against affording equality to Indian women and their children.This federal policy purposefully, systematically and disproportionately impacts Indigenous women who are most often the primary caregivers of their children and statistically more likely to live in poverty. This is especially true of young, teenage Indigenous mothers – 80% of whom were found to live in households making less than $15,000 a year. These mothers, often lone parents, depend on the federal programs and services associated with Indian status to care for their children.

Gehl is relying on section 15(1) of the Canadian Charter of Rights and Freedoms which guarantees equal benefit of the law without discrimination based. While section 6 of Act may on its face, appear to apply equally to Indian men and women, in reality, AANDC interprets and implements it in a gender-biased manner, which has a substantial and disproportionate impact on Indian women and their children whose paternity is unknown. The fact that AANDC interprets the Act so as to prejudice the descendants of unwed Indian women discriminates against them on the basis of marital status as well.

Section 6 is a modern manifestation of historical discriminatory views of Indian women based on race, gender and marital status that should have been repealed decades ago.

Gehl, who has five continuous generations of Indian lineage on her paternal side, will argue that she should be registered as an Indian. She will also seek a declaration from the court that Section 6 of the Indian Act:

(1)   Discriminates against applicants born out of wedlock;

(2)   Discriminates against applicants who do not know their paternity; and

(3)   Be applied so as not to disadvantage the descendants of individuals whose paternity is unknown.

Other recommendations for change from Indigenous women have included:

–           Amend the Act to permit registration based on one parent’s registration;

–           AANDC should discontinue its discriminatory interpretation and implementation of the registration provisions;

–           AANDC should specifically eliminate the unstated paternity policy;

–           Remove administrative and financial barriers to timely and accurate birth registrations;

–           Provide legal and social protections to young mothers to protect their rights to privacy, personal safety and registration of their children.

Gehl, like Sandra Lovelace and Sharon McIvor have spent decades in the courts fighting for their right to belong. It’s time Canada afforded equality to all people – including Indigenous women. Selection of sources on Unstated Paternity:

Lynn Gehl personal website

http://www.lynngehl.com/

P. Palmater, Beyond Blood: Rethinking Indigenous Identity (Saskatoon: Purich Publishing, 2011).

http://www.chapters.indigo.ca/books/beyond-blood-rethinking-indigenous-identity/9781895830606-item.html?ikwid=beyond+blood&ikwsec=Home&ikwidx=0

M. Mann, Indian Registration: Unrecognized and Unstated Paternity (2013)

http://apr.thompsonbooks.com/vols/APR_Vol_5Ch6.pdf

M. Mann, Disproportionate and Unjustifiable: Teen First Nations Mothers and Unstated Paternity Policy (2013)

http://apr.thompsonbooks.com/vols/APR_Vol_9Ch12.pdf

L. Gehl, Indian Rights for Indian Babies: Canada’s “Unstated Paternity Policy” (2013)

http://journals.sfu.ca/fpcfr/index.php/FPCFR/article/view/187

National Aboriginal Women’s Association, Aboriginal Women and Unstated Paternity (2007)

http://www.laa.gov.nl.ca/laa/naws/pdf/nwac-paternity.pdf

S. Clatworthy, Indian and Northern Affairs Canada, Factors Contributing to Unstated Paternity (2003)

http://www.canadiancrc.com/PDFs/Unstated_Paternity_First_Nations-Canada_Birth_Registrations_en.pdf

October 20, 2014
Laurie River Lodge Adventures: Watch Out for Animals and Indians?

It is hard to believe that in 2014, there are still businesses who provide services to the public that have no problem profiting from the lands, resources and traditional knowledges of Indigenous peoples, but who, at the same time, spread racism and hatred against us. Laurie River Lodge, an outdoor adventure business located in northern Manitoba and owned by Brent and Erin Fleck, is one such company. Laurie River Lodge has a website which includes a link to a promotional brochure which explains what clients can expect when they purchase an adventure with their lodge. Their website is: http://www.laurieriverlodge.com/index.php And their brochure can be found under the Heading “Outpost Plan” at the following link: http://www.laurieriverlodge.com/downloads/2014/2014_trip_planning_guide.pdf On the same page that the Lodge warns its customers about animals, it provides a warning about its Cree Indian guides. The offending comments can be found on page 10, under the section entitled “Section 1-9 What You Can Expect From Us”:

We take great care when hiring our staff; however the subject of Native Guides must be touched upon. We use Cree Indian guides from the town of Pukatawagon in northern Manitoba. They are wonderful people and fun to fish with however, like all Native North Americans, they have a basic intolerance for alcohol. Please do not give my guides alcohol under any circumstances. This is rarely a problem and by telling you in advance I hope to avoid it altogether.

The Lodge is speaking about the band members of Mathias Colomb Cree Nation (MCCN) whose primary reserve is located in Pukatawagan in northern Manitoba. They apparently use MCCN band members as guides for their business. It is also noteworthy that this business uses the lands and resources contained within MCCN’s traditional, treaty and reserve lands as well as their trap-lines. Band members were so upset by these racist remarks that they contacted Chief Arlen Dumas and asked that he look into this and he responded immediately by sending out a letter to the Lodge owners. Chief Dumas explained that he was “appauled” to see that this business profits from his Nation’s lands, resources and people to ensure a profit for the owners, but at the same time promotes racist stereotypes against the very people they use to make a profit: Cree guides. Chief Dumas explains: Not only did you single out the band members from our reserve in Pukatawagan, but your brochure presented an ominous or threatening tone by stating and/or implying that: (1) Our Cree people have a genetic and/or biological intolerance for alcohol due to their race; (2) You warned the public against giving our members any alcohol due to this intolerance, one can only presume you meant that some sort of harm would come to the public; and (3) That while rare, this “problem” does occur and the public needs to avoid it. None of the above statements or implications about our people are true. The comments are racist and negative stereotypes which only serve to promote or incite hatred against our people. There is no scientific basis for your claim that Cree people have an intolerance for alcohol, nor is there any basis for alleging that our Cree people would drink while working or that the pose a risk to the public. As a result of such discriminatory remarks, Chief Dumas demanded that the remarks be removed from the website; a public apology be offered to all Cree and First Nation people; personal letters of apology be sent to all their Cree employees; and that they make amends to MCCN.

He concluded the letter by stating that if the Lodge owners refuse to address the issue, he would “have no choice but to take further steps to protect my band members from your racist, discriminatory incitement of hatred.”Chief Dumas is right to be upset about these public comments. It is not just a matter of taking offense to insulting words, this Lodge potentially faces a discrimination complaint, a civil suit and very bad publicity for their business. The Manitoba Human Rights Code (provincial law) provides that Manitobans recognize that “to protect this right it is necessary to restrict unreasonable discrimination against individuals, including discrimination based on stereotypes or generalizations about groups with whom they are or are thought to be associated, and to ensure that reasonable accommodation is made for those with special needs” and such discrimination is prohibited. The Criminal Code (federal law) under section 319 makes the public incitement of hatred against a particular group, like the Cree people a criminal offense. The Charter of Rights and Freedoms (constitutional law) also provides that: 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Even international law protects people from racism and discrimination. If morals could not guide these business owners, certainly they have an obligation to follow the law. It is no wonder why discrimination against Indigenous peoples has not subsided, given openly racist attitudes like this. One would have thought the days of warning people against animals and Indians were over.

May 28, 2014

Dramatic Contradictions: 2014 Report of the United Nations Special Rapporteur on Indigenous Peoples

The United Nations Rapporteur on the rights of Indigenous Peoples in Canada James Anaya released his advanced, unedited report on “The Situation of Indigenous Peoples in Canada”. The Rapporteur based his report on research, various sources, a visit to Canada in October 7-15, 2013, meetings with federal and provincial government officials, and meetings, visits with and submissions from Indigenous peoples.

http://unsr.jamesanaya.org/docs/countries/2014-report-canada-a-hrc-27-52-add-2-en-auversion.pdf

There is a disturbing underlying theme in the report – one which speaks of “dramatic contradictions”:

(1) The continued “abysmal” social conditions in First Nations in the context of increasing wealth and prosperity in Canada; and

(2) The numerous laws and protections for First Nation rights versus the many human rights violations committed against First Nations.

Anaya noted that while some First Nations have risen up against these injustices with the Idle No More movement, others are starting to give up attempts to resolve their claims. Anaya concluded that the relationship between Canada and First Nations has become much worse since the last visit to Canada in 2003. It doesn’t take a rocket scientist to figure out that this is during Prime Minister Harper’s term.

Abysmal Social Conditions in First Nations

Anaya’s most serious concerns relate to the “striking” statistics related to the poverty in many First Nations. Of the bottom 100 communities in Canada – 96 are First Nations. “The most jarring manifestation of these human rights problems in the distressing socio-economic conditions of indigenous peoples in a highly developed country.”

http://pi.library.yorku.ca/ojs/index.php/crsp/article/viewFile/35220/32057

He found that there has been no improvement in the gap between First Nations and Canadians in terms of housing, health care, education, welfare and social services. Given the significant needs of First Nations, Anaya had expected that the cost of social services would have been higher and was shocked to find that it was lower. He cited Canada’s own Auditor General who pointed out that the failure to address poverty on reserve is due to the lack of appropriate funding from the federal government.

This led Anaya to conclude: “One of the most dramatic contradictions indigenous peoples in Canada face is that so many live in abysmal conditions on traditional territories that are full of valuable and plentiful natural resources.”

Canada’s Immense Wealth and Prosperity

It’s not like there isn’t enough money to go around. Canada is one of the wealthiest countries in the world because of the lands and resources which belong to Indigenous peoples. The mining industry alone brought in $44 billion in 2013.

http://www.nrcan.gc.ca/node/15983

That figure doesn’t include the hundreds of billions in other natural resources that come straight from Indigenous lands. Anaya noted that while governments and private interests are the ones that profit from resources on Indigenous lands, it’s the Indigenous peoples who suffer all the negative consequences in health, economy and culture that comes with the resulting environmental degradation.

This situation is not just an unfortunate, but inevitable consequence of western “progress” – it’s a calculated policy choice to impoverish First Nations for the benefit of others. Anaya notes that Canada’s consistent failure to consult with First Nations, take unilateral actions against their rights and portray them in negative light to the public is an “affront” to Canada-First Nation relations. Anaya explains that the federal public discourse on First Nation rights is presented as a burden to tax-payers instead of educating Canadians about the “vast economic benefit” they receive from First Nations. Harper’s continued negative comments against First Nations risks “social peace”.

First Nations could be completely self-sufficient economically if they controlled only a fraction of their lands and resources. Yet, in pursuit of maximized profit, Canada continues to ignore the legal rights and interests of First Nations. Canada (both federal and provincial governments) maintain their legal and physical blockades against First Nations to prevent them from accessing and benefitting from their own lands and resources. Anaya notes that despite the fact that treaties are constitutionally protected and allows Canadians to enjoy immense wealth, 30% of Justice Canada litigation is fighting treaties. Canada uses all of it power – its laws, policies and programs to maintain First Nations in poverty, while partnering with private interests to maximize government and corporate profits.

Legal Protections vs. Violations

Part of the dramatic contradiction which is so striking to outside observers. As noted by Anaya: “It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada that have reached crisis proportions in many respects.” Canada presents a façade of human rights but commits numerous violations against Indigenous peoples – with apparent impunity. Although Anaya did not do a complete accounting of which laws and violations, he noted several human rights violations that have received “insufficient” attention by governments including the well-being gap, housing crisis, murdered and missing women, over-representation in Justice system, gender discrimination in Indian status, and lack of education to name a few.

*Legal Protection

Human Rights Violation

Constitution Act – s.35 – Inherent Right to be Self-Governing

Indian Act’s Ministerial control over every aspect of First Nations’ lives

Legislative suite which protects Ministerial control – Water, elections, education, matrimonial real property, transparency acts

Must extinguish rights to negotiate self-government agreements/claims

Constitution Act – s.35 – protect Aboriginal and treaty rights

Duty to consult and accommodate

Free, informed and prior consent

Federal and provincial governments (with court’s approval) allow agriculture, forestry, mining, hydroelectric power, general economic development, protection of environment or endangered species, building of infrastructure and settlement of foreign populations to trump constitutionally protected rights

Charter of Rights and Freedoms – s.15 Equality rights & non-discrimination

Canadian Human Rights Act – non-discrimination

Various provincial human rights acts – non-discrimination

Indian Act’s discriminatory treatment of Indian women and descendants

Failure to address disproportionate number of murdered and missing Indigenous women

Over-representation of Indigenous peoples in jail & Indigenous children in state custody

Discriminatory/less funding for child welfare

Discriminatory/less funding for education

Unsafe or no drinking water

Criminal Code – s.319 hate speech

Media, teachers, writers, MPs, Ministers, RCMP, provincial police forces, PM make racist and discriminatory remarks and portrayals of First Nations

Criminal Code – s.271 sexual assault

s.267 assault with weapon or causing bodily harm

s.279 unlawful confinement

s.215 failure to provide necessaries of life

RCMP and provincial police taking Indigenous men on “Starlight” tours

RCMP, provincial police and/or judges sexually assaulting and raping Indigenous women and girls

Deaths while in child welfare – state care

*This table represents my own observations of laws vs. rights violations in Canada.

Conclusions and Recommendations:

Anaya concluded that Canada could address these human rights violations if it wanted to do so. Let’s hope Canadian officials take a good hard look at Anaya’s observations and recommendations and take the necessary action to end these human rights violations against Indigenous peoples. A highlight of some of Anaya’s key recommendations:

– Sufficient funding for education, health, and child welfare; – Focus on Indigenous-run social and judicial services;

– Urgent, increased funding to address the housing crisis;

– Enhance education, funding and consult on any proposed legislation;

– Comprehensive, nation-wide inquiry into murdered and missing Indigenous women and girls;

– Consent for all laws impacting Indigenous peoples;

– Address gender discrimination in the Indian Act;

– No resource development without free, informed and prior consent of Indigenous peoples; and

– Maximize Indigenous control and benefit from any extractive operations on Indigenous lands.

“Indigenous peoples concerns merit higher priority at all levels and within all branches of Governments, and across all departments.”

May 23, 2014

Déja Vu: RCMP Report on Murdered and Missing Indigenous Women

After much prodding by the media, and the Harper government’s (Minister of Public Safety) review and approval, the RCMP finally released their report on murdered and missing Indigenous women. Although slated for a March release, in typical Conservative style, the much-delayed report was released on a Friday before the Victoria Day long weekend. The report not only confirmed the over-representation of Indigenous women as murdered and missing in Canada, but the figure of 1181 was nearly double the 600+ figure originally reported by the Native Women’s Association of Canada (NWAC). http://www.rcmp-grc.gc.ca/pubs/mmaw-faapd-eng.htm Indigenous women suffer a victimization rate three times higher than the Canadian population and are grossly over-represented in the number of women that go murdered and missing. While homicides have declined for Canadian women, the same cannot be said for Indigenous women. Indigenous women make up 4% of the population in Canada but 11% of the missing women and 16% of the murdered women. While these numbers are high, the levels in the western provinces and northern territories are frightening. The number of murdered Indigenous women in Manitoba is 49% and in Saskatchewan its 55%.

On the positive side, the RCMP finally turned their investigative minds to this serious issue. Because the reality is, if the RCMP can’t be motivated to look into this crisis, there is little chance in getting their assistance in addressing it. We also now have additional statistics that the show that the problem is worse than originally thought which one would hope would spur the RCMP and others into emergency action. Further, it was important that the RCMP recognized that more than a police response will be needed to address this crisis and that all of the socio-economic issues must also be addressed.

That’s the extent to which I can be positive about this report. For the most part, this report just recycled information we already knew. We already knew the over-representation of Indigenous women and girls in murdered, missing and victimization rates, as well as the socio-economic conditions which make Indigenous women and girls vulnerable. Secondly, this report suffers from a glaring omission – an analysis of the RCMP’s role in this crisis. While there are many good men and women in the RCMP who believe in justice, those who do not, need to be exposed. Finally, if this report is any indication of an RCMP “action plan” – very little is going to change. If we can’t get real about the root causes of this crisis, we’ll still be talking about this in ten years.

In 1989, the Report of the Royal Commission on the Donald Marshall Jr., Prosecution concluded that Marshall had been wrongfully convicted of murder and spent years in jail simply because he was Mi’kmaw. “The criminal justice system failed Donald Marshall Jr., at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal.” The report went further to investigate how prominent “White” people were treated with Mi’kmaw people when accused of crimes. It concluded that the RCMP would not pursue investigations of prominent “White” people despite the evidence which showed an “undue and improper sensitivity to the status of the person being investigated” and made “the ideal of justice for all meaningless”. http://www.novascotia.ca/just/marshall_inquiry/_docs/Royal%20Commission%20on%20the%20Donald%20Marshall%20Jr%20Prosecution_findings.pdf

The 1991 Report of the Aboriginal Justice Inquiry of Manitoba looking into the murder of Helen Betty Osborne also concluded that despite the fact that it is well-known that Aboriginal women and girls suffer extreme rates of violence, the Justice system does not protect them. In the case of Osborne, the RCMP treated the Indigenous witnesses brutally in comparison to how they treated the “white” accused.

http://www.ajic.mb.ca/volume.html

Just in case the RCMP forgot that there was an issue in need of attention, the United Nations Rapporteur rang the alarm in 2004 when he concluded that the over 500 murdered and missing Indigenous women in Canada had been neglected for far too long by Canada. Again in 2010, NWAC brought the issue to the public eye by releasing their research which showed there were at least 600+ murdered and missing and stated that the numbers of Indigenous women and girls that are murdered while in police custody, prisons or child welfare authorities also needed to be investigated. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/100/26/PDF/G0510026.pdf?OpenElement

Twenty years after Helen Betty Osborne’s death, a serial killer named Robert Pickton was able to kidnap and murder Indigenous and non-Indigenous women with little fear of getting caught. Why? According to Forsaken: The Report of the Missing Women Commission of Inquiry, Pickton was able to prey at will due to “critical police failures” to take reports of missing women, follow up and investigate thoroughly or in a timely way. Issues of racism, systemic bias and victim-blaming were all noted in the report. http://www.ag.gov.bc.ca/public_inquiries/docs/Forsaken-ES.pdf

The most disturbing of all reports is the 2013 report entitled Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Colombia prepared by Human Rights Watch. This report concluded that Indigenous women and girls are not only “under-protected” by the RCMP but are in fact the objects of RCMP abuse. They highlighted the many allegations of RCMP officers sexually exploiting and abusing young Indigenous girls.. There are reports of confinement, rape, and sexual assault on Indigenous girls and some have led to law suits. They also reported on a class action law suit against the RCMP by its own female officers for sexual harassment and gender discrimination. http://www.hrw.org/sites/default/files/reports/canada0213webwcover.pdf

While the government and RCMP have, at times, tried to blame the victims for their own circumstances, it seems very clear that a large part of the problem is government and RCMP’s racist and sexist attitudes towards Indigenous women and girls. In addition to Canada’s discriminatory laws and policies against Indigenous peoples generally, and women specifically, the Human Rights Watch group even reports on an example of the judiciary being involved in the abuse against these girls. David Ramsay, a provincial court judge, was accused of sexually assaulting and violently abusing girls between 12 and 17 and eventually plead guilty. How are Indigenous women and girls supposed to get justice if the Justice system participates in the abuse and rape of these women? http://www.canada.com/theprovince/news/story.html?id=b8a2e53c-5753-496e-a032-765fef4a0e5d

One of the biggest impediments to moving forward is the continued failure of the federal government to have the RCMP investigated to determine the full extent to which racism against Indigenous people and sexism against women in general hamper their work. Harper’s own discriminatory attitude towards Indigenous peoples is a significant barrier to moving forward. Even the most recent United Nations report from the Rapporteur commented on how poor the relationship is between Canada and Indigenous peoples and has become worse since the last visit to Canada in 2003. The United Nations is not alone in its observation of deteriorating government relations – the Bertelsmann Foundation is the latest to note that Canada’s record on governance has declined under Harper, especially when it comes to Indigenous peoples. The UN further stated that Canada’s negative public comments about Indigenous peoples risks social peace. http://www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf

We need a comprehensive emergency plan to prevent any more murdered and missing Indigenous women and girls. Multiple groups need to be brought together including (but not limited to) the RCMP, federal and provincial governments and police forces, Indigenous peoples, and experts to develop a plan of action. This plan should include many of the recommendations already noted in the commissions and enquiries outlined above (and won’t be repeated here). Addressing the chronic underfunding of basic human services like housing, water, food, and education is critical to addressing federally-maintained poverty which puts women and girls (and men) in vulnerable positions.

It is important to ensure that at the same time as the emergency action plan is being carried out, that a proper comprehensive investigation of the RCMP for any role it may have had in physically abusing, confining, raping, sexually assaulting and/or causing Indigenous women or girls to go murdered or missing is critical. This investigation should include an analysis of how many times they failed to file reports, do investigations or follow up as per their standards and procedures. The RCMP and other police forces must be accountable for their actions with a view to ending this crisis. Otherwise, little has changed from the days when the RCMP would drag our children back to residential schools and ignore their complaints of abuse in the schools.

Instead of letting another 10 years go by talking about murdered and missing Indigenous women and girls, Canada needs to take immediate emergency action on this crisis.

Instead of Canada spending so much money surveillance of Indigenous advocates who are trying to protect Indigenous families, it could use that money towards adequate housing, shelters and supports for Indigenous women and girls.

Instead of spending multi-millions to keep Indigenous peoples in prisons, Canada could use that funding to pay for k-12 and post-secondary education.

Instead of spending millions on litigation to deny treaty rights, land claims and access to natural resources, Canada could spend those funds to support Indigenous peoples access their lands and resources to support self-sufficient Nations.

Instead of trying to assimilate Indians , Canada needs to accept that we are here to stay and work together for our mutual benefit as envisioned by the treaties.

Instead of allowing those who view Indigenous women and girls as worthless to dictate their fate, we need to recognize these women and girls are the future of our Nations and protect our life-givers.

May 22, 2014
Harper’s Shell Game: Bill C-33 is on “Hold” – not Dead

Today, only 3 days after Assembly of First Nations (AFN) National Chief Shawn Atleo resigned, Prime Minister Harper’s Conservative government has made its move. Contrary to Harper’s usual backroom politics and secret meetings with the National Chief, Harper has switched it up. He has decided to play this political game out in the open for all to see. Aboriginal Affairs and Northern Development Canada (AANDC) Minister Bernard Valcourt offered a statement to the press today saying that it will put consideration of Bill C-33 First Nation Control of First Nation Education Act on hold until the AFN clarifies their position.

“With the support of the Assembly of First Nations, our Government introduced historic legislation, the First Nations Control of First Nations Education Act (Bill C-33) in April. However, given the recent resignation of the National Chief, following today’s second reading vote, any further consideration of this legislation will be put on hold until the AFN clarifies its position.

Our Government firmly believes that First Nations students deserve a quality education, like every other Canadian.

The First Nations Control of First Nations Education Act provides the structures and supports necessary to help First Nations students reach their potential and become full participants in the Canadian economy. It would entrench in law the five conditions for success identified by the Chiefs in Assembly last December.”

This is a very calculated move on the part of Harper’s government which serves a three-fold purpose. Firstly, this move serves as an indication to the AFN that Harper will give it another chance to get back in line. The carrot being offered is the promised funding attached to the bill (post-conservative-election funding). If the AFN confirms their support of the bill, they’ll all kiss, make up and move on as they were pre-Atleo. Atleo’s resignation would go down as a minor hiccup for Harper.

Secondly, this move could serve to cause internal chaos at AFN. Harper is essentially casting his line to see which member of the AFN executive will take the bait – i.e., who will step up to replace Atleo and maintain the status quo relationship between the AFN and Harper government. Saskatchewan Regional Chief Perry Bellegarde has been front and centre in the media supporting the Atleo-Harper education deal – at least until Atleo’s resignation. Then, there’s always New Brunswick Regional Chief Roger Augustine, who recently wrote an open letter trying to convince Chiefs to support Bill C-33 – so maybe it will be him? It’s hard to say at this point.

However either of these two scenarios turn out – they both miss the point. It simply doesn’t matter if the AFN Executive jointly issue a statement clarifying their support for the bill, or one of the Executive is appointed as interim National Chief and supports the bill. The AFN has no legal or political authority to allow, approve or in any way provide permission for this bill to proceed through the legislative process. At the risk of sounding like a broken record, the AFN is not a rights-holder – it is an advocacy organization. To those with Aboriginal, treaty and inherent rights to education, it doesn’t matter what the AFN says, except in so far as the AFN has the power to negatively impact our struggle to preserve those rights. We are the rights holders and we are the only ones who can decide. Our strong opposition to this bill is what’s really scaring Harper and motivating this move.

Finally, and perhaps most ironically, what this recent move by the federal government does is focus attention away from the education bill and place it back on the AFN. Harper is hoping to reduce the building momentum against this bill by directing our attention to the AFN. Many people are now waiting to see what the AFN will say. The media is fixated on the AFN election and who the candidates might be. Some have even commented that AANDC’s announcement to put the bill on hold is a sort of victory.

But perhaps that’s the idea? Maybe in putting this legislation “on hold” Harper hopes this will be enough to snuff out the fire that has been lit in our communities to defeat this bill? Keep in mind, First Nation leaders and citizens, together with Canadians, have organized major rallies for May 14 in Ottawa to voice their opposition to this bill. Maybe Harper is hoping we’ll see no need to rally, now that the bill is on hold – but they’d be wrong. We have to use every single day to our advantage to oppose this bill.

Bill C-33 is still in Parliament, still in Senate pre-study (though on hold) and could be re-animated and rammed through Parliament at a moment’s notice. We have to maintain our focus on killing this bill and worrying about the AFN later. We need to ensure that our voices are heard and that we do everything we can to ensure this bill does not pass. We all want to change the status quo and address the crisis in First Nation education – but giving up control over our education to the Minister is not the way to do that.

AANDC could start addressing the crisis by providing fair funding and addressing the cumulative deficit in education. AANDC could literally address the chronic underfunding TODAY. It’s a choice they make – against every study, domestic and international law, our treaties and even economic recommendations – not to do so. Look at the lengths Canada will go to in order to defer, deflect and deny the problem of purposeful, chronic underfunding of First Nation education. All of these many decades of studies, reports, and meetings, followed by more studies, reports and meetings are meant to delay the inevitable conclusion – First Nation education must be funded.

But if Harper has his way – this bill will pass and so too will our chance to protect our future generations from Harper’s assimilation plans.

We have to stay focused. We have the power to defeat this bill. Hopefully, AFN will have learned from all of this and stand behind the people. But, either way, as sovereign Nations, we have to stand up and defend our sovereignty and jurisdiction over the education of our children and give them hope for their future.

#KillBillC33

#StayUnited against #FNCFNEA

#May14 in Ottawa!!!

May 5, 2014
No Compromise on First Nation Control of First Nation Education: Response to Regional Chief Augustine

Our unity on First Nation control of First Nation education has been broken by one of our own representative organizations: the Assembly of First Nations. While most of the attention has focused on Atleo, and his recent surprise resignation, we can’t forget that some of the Regional Chiefs have allowed this to happen. http://www.mediaindigena.com/dan-david/issues-and-politics/atleos-last-historic-moment Recently, Regional Chief Augustine issued an open letter in the Globe and Mail arguing that Chiefs should be supporting Bill C-33 – First Nation Control of First Nation Education Act. In his letter to the Globe and Mail he publicly insulted chiefs by saying if they don’t support this legislation, they clearly don’t understand it. http://www.theglobeandmail.com/globe-debate/as-first-nations-leaders-we-should-support-new-education-act/article18388152/ Regional Chief Augustine, against the majority of Chiefs across the country, seems to think he can belittle Chiefs into supporting Bill C-33. He says he has lost patience with them, accuses them of having not read the bill; and implies they are not experts enough in education, or they would see how this bill will save the Indians. Further, he implies that if he and Atleo disagree with dissenting Chiefs, his and Atleo’s views should reign.

Yet, Augustine does not point to a single provision of the Act that is an improvement for First Nation education, nor does he show how this Act will improve outcomes for our children. He simply mimics the AANDC Minister’s speaking points and tries to scare Chiefs by presenting them with a false choice: Bill C-33 or the Minister’s many scary powers over education in the Indian Act.

This sort of uninformed rhetoric does more to harm to Augustine’s position, than help it. First of all, anyone familiar with the Indian Act knows there are relatively few education provisions in the Indian Act, most of which are not even used any more. In comparison to Bill C-33, the Minister will have greatly enhanced powers over First Nation education.

The majority of all analysis to date by actual First Nation legal, policy and education experts are in agreement that this Act increases Ministerial power and decreases First Nation control. Augustine refers to experts, but doesn’t name any. There is a reason why there is such a mass opposition to this bill, and it’s not a fear of losing the status quo. We are all wanting to overturn the status quo and make changes for our people. Most of us however, want to go forward, not backwards. Most of us want to preserve our sovereignty and jurisdiction over education, not give up control to the Minister, his education co-managers or third party managers.

This Act lays out a path for the assimilation of First Nations into provincially-directed curriculum, the incorporation of provincial laws on reserve, forces First Nations to educate non-First Nations students, and all must be done in either English or French. This is not a “new journey” – it’s the same path of assimilation Canada has been trying to force us down for the last 500 years. We are trying to undo the damage of residential schools – not repeat it.

Augustine goes on in his letter to chastize Chiefs for allegedly adopting an all or nothing approach, yet presents Chiefs with a defeatist approach: something or nothing. He uses the same logic and persuasion tactics that the federal government has used for decades. He essentially argues that we have to take whatever deal we can get, because we won’t get anything better. He forgets we have survived many Prime Ministers, Minister of Indian Affairs and other adversaries over the years. This Prime Minister too, will pass. The question is: will we have sold the farm out of fear or preserved our rights for future generations? Augustine is so ingrained in colonial ideologies that selling out rights for beads and trinkets becomes the only logical option – a very defeatist and weak approach. It is certainly not an approach befitting our strong, proud, independent Nations that have thrived on Turtle Island since time immemorial. We have a choice – we don’t have to give up control over our education. That doesn’t have to be the sacrifice we make to advance our cause for properly funded education systems. Our Aboriginal, inherent and treaty rights are solid – we have had them since time immemorial and they cannot be unilaterally extinguished. We can only lose them if we voluntarily give them up. Augustine wants us to embrace inevitable assimilation – the standardization of the Indian in the child, until there are no Indians – all in exchange for a little money. http://www.indigenousnationhood.blogspot.ca/2014/03/first-nations-controlled-first-nations.html Some things that are not negotiable and our sovereignty and jurisdiction over education is one of them. Our rights are not for sale. To voluntarily allow Canada to legislate the treaty right to education is an insult to the ancestors who fought to protect those rights for future generations. Harper wants First Nations to voluntarily transform their treaty right to education into a discretionary program entitlement that is subject to the whims of Parliament. Why would anyone do this? Augustine’s impatience with Chiefs is more of a reflection of his own skewed view of First Nation politics. He thinks the quick deal is the best deal – one battle at a time he says. He equates “winning” with money. He forgets that sometimes the real win is the protection of what makes us who we are: our sovereignty as Nations. No amount of money can ever be as powerful as the sovereignty bestowed on us by the Creator and defended by our ancestors for generations. There can no compromise on First Nation Control of First Nation Education. The solution is simple: In the short term we must address the crisis in First Nation education created by the purposeful, chronic underfunding by the federal government. Amendments can be made to contribution agreements by adjusting funding levels AT LEAST comparable with the provincial rates, with additional amounts to build and repair schools, teach Indigenous languages and build capacity and training. There is a cumulative deficit in the billions in underfunded education on reserve. Even if we are funded now, it will take decades to catch up. In the longer term, it will be up to each Nation to decide how they want to go about addressing the larger issues of treaty implementation, restitution of lands and resources and the recognition of First Nation governance. It’s not for any one leader, organization, Minister or Regional Chief to make that decision for us. #StayUnited against #FNCFNEA #KillBillC33 #ValcourtResign

May 4, 2014
#StayUnited against #FNCFNEA

Since the time I was small, I have always been told by Chiefs, politicians and elders about the importance of our unity – unity within our Mi’kmaw families, our communities and Nation. Leaders even spoke about the importance of inter-tribal or inter-nation unity. I come from a territory where the Wabanaki Confederacy, a political allegiance of multiple Nations, built upon our Nations’ diverse backgrounds for common purposes. The relationships which came from this confederacy have lasted until present day.

At the same time, my elders were careful to explain that unity is not about sameness. Unity is a type of bond or treaty amongst Indigenous Nations which celebrates the different strengths, histories, cultures, insights and skills of each Nation and brings them together to make the whole stronger. Unity is a celebration or embracing of those differences to make the treaty group stronger in defending its sovereignty, territories or peoples. It is not an agreement on all issues at all times. Nor is unity about each Nation conforming to one way of thinking or acting. Diverse Nations inherently have different needs, outlooks, priorities and ways of accomplishing their goals.

Several long-time leaders also told me that unity for the sake of unity can cause more harm than good. Unity for the sake of unity denies the very differences we celebrate as Nations and shuts out the voices of caution, overlooked facts, multiple perspectives and potential outcomes. Sometimes these lone voices are mischaracterized as oppositional, trouble-making, politicking or disloyal. Consensus building takes a great deal of effort and time; so when these brave voices speak out against the consensus, sometimes its hard not to lose patience or be frustrated.

Yet, elders have told me that those voices which delay consensus for a time are sometimes the most loyal citizens – citizens who care so deeply about their community or Nation that they risk ridicule and exclusion to raise potential threats to the collective. They may not always deliver the message as we’d like or even have all the facts, but that is what consensus building is about – providing everyone with all the facts, potential outcomes and perspectives so that when a decision is made, everyone understands and accepts its – even if not in total agreement. I believe the future of our Nations depends on the consideration and inclusion of all voices.

The biggest impact on our ability as Indigenous Nations to maintain our unity in times of need is the impact of colonization. Generations of colonial ideologies, residential schools, Indian Act restrictions, federal divide-and-conquer tactics, and systems of government-imposed rewards and punishments have impaired our ability to see unity as we once did. Canada has divided us into good Indians and bad Indians – those who comply versus those who resist. In so doing, the hard work of unity-building within Nations is impaired because the focus is on one-size-fits-all Indians. In fact, pan-Indianness is so ingrained that we often criticize ourselves for not being unified as “Indians” when we should be unified in resisting pan-Indianness.

Our unity as Nations is like a treaty – a coming together of certain Nations at certain times to assert or defend certain causes. We can be united to defend our right to control education but different in how we want to assert that control (depending on each Nation’s priorities and needs). Sometimes our unity is based on historical relations, regional similarities or broad national interests. Our unity is no less powerful because the Mohawks educate one way and the Cree another. The similarity is in the assertion of sovereignty and jurisdiction over our right to control our own education systems, methods, content and outcomes.

With regards to Prime Minister Harper and National Chief Shawn Atleo’s education “deal”, this was not made in a good way, nor in the spirit of unity. In fact, the countless secret meetings, lack of information, and surprise announcements are counter to our traditional ways of building consensus and capitalizing on our strengths and differences in unity. The biggest problem is that no space was ever made for the possibility that there would be no unity on this deal – the deal was made for us without us at the table. The result is wide-spread distrust, anger and reaction – all justified. Now, our leaders are forced to account to their citizens for decisions of which they had no part, causing even further disharmony amongst our Nations. Yet, none of this had to happen.

For many decades, First Nations have been tightly unified on their views about First Nation education. While we may have taken very different approaches to other issues, on First Nation education we all agreed. First Nations are united in their views that we have jurisdiction over every aspect of our education systems (however we choose as individual Nations to define them) and that we should be the ones in control. We have always held the position that Canada must live up to its legal obligations to recognize and implement our treaty, Aboriginal and other rights to education with adequate funding. We have always asserted that Canada needs to make amends for the damages caused to our languages and cultures from residential schools by providing the supports needed to advance and protect them in current education systems – First Nations or provincial.

How we choose to get there is up to us. Some of us may want to negotiate sectoral self-government agreements in education; some may wish to use the current systems with modified funding, some may want a treaty-based system, and others may want to design and implement their own systems independently with completely different funding agreements. We may have different methods, but we are united in defense of our right to choose how we will implement our right to control our own education systems. We are not all one mythical race of Indians after all.

Our current initiatives in resisting the Atleo-Harper deal on education are not about sour grapes, jealousy, politics, the next federal election, the next AFN National Chief election, or who’s “right”. Those are all red-herrings critics throw in the mix to keep people from focusing on the real issue – control over our own education systems. The reason why so many Chiefs, grassroots citizens, academics, lawyers and Canadian allies are against this deal is because it violates our fundamental right to control our own education systems. We are not fighting against unity – we are fighting desperately to maintain our long-held unity in education.

The Harper government has become very adept at its divide-and-conquer techniques. It also uses funding as a reward-punishment tool to further control and divide us. It’s most effective tool so far has been using First Nations individuals and organizations to promote its assimilatory agenda. Trojan horses filled with assimilatory Aboriginal warriors march forward to implement Harper’s plan under the guise of what’s good for us. The numerous bills being imposed on us all have wonderful titles and great media sound bites that distract us from what’s inside the bills. Calling a bill “First Nations Control” is a lie if what’s inside is increased Ministerial control.

I think most of us expect this from Harper, but the most hurtful and offensive part is that we don’t expect our own leaders to do this to us. National Chief Shawn Atleo has hurt us all by acting as if he had the right to make this deal in the first place; by acting so secretively and outside our traditional ways of building consensus; and then standing in defense of this destructive bill – no matter what First Nations say. Part of being a leader is being humble and admitting when you have made mistakes. Atleo could still stand with First Nations against this bill, but he refuses to do so. Atleo destroyed our negotiating leverage in Ottawa and now he has broken our unity on education. He refuses to listen to us.

Unfortunately, we don’t have time to commiserate about it – we have to act. We cannot give Harper any ammunition to use against us as he tries to ram this bill through the House and Senate. We have to show that Atleo does not speak for us, as the Minister is already relying on Atleo’s endorsement of the bill as his “proof” of consultation and consent. We cannot let Harper hide behind any First Nation individual or organization to roll out his assimilation plan.

Most of all, we have to stay united against this bill to protect control over our education and save our cultures and languages for future generations. If we voluntarily allow Canada to legislate our treaty rights, there is no undoing it later. Harper is desperate to turn the treaty right to education into a discretionary program and service that is subject to Parliament’s budgetary whims. We can’t let Harper do that.

Harper is scared of our voices. AANDC is running scared and is tweeting in defense of itself. Harper can see the growing opposition from First Nations and is speeding up the review of the bill. We have the power to stop this. When First Nations stand in unity, there is no piece of paper, no legislation, or crooked politician that can stop us. The “winter we danced” as Idle No More showed the world how powerful in peace our people are when we stand together. I’ve always believed in the power of our people to make change – let’s stay united on education and give our children some hope.

#StayUnited against #FNCFNEA

May 1, 2014
#IMPEACH ATLEO – Response to AFN’s “Analysis” Of Its Own Education Deal With Harper

The National Chief of the Assembly of First Nations (AFN) Shawn Atleo made a “historic” deal with Prime Minister Stephen Harper on First Nation education. What makes this deal so historic? Well, it’s the deal that no First Nation asked for and its one that Atleo had no power to make. It’s historic because not only will Atleo go down in history as the worst National Chief, but he has taken the AFN down with him. For the most part, many Regional Chiefs sat by and watched him do it. Now, the AFN thinks that by analyzing its own deal, this will help make the bitter taste of assimilation wash down more easily. They are wrong.

It is important to understand that Atleo has absolutely no independent political power as National Chief. The AFN’s Charter is very specific about this. So, all of his deal-making with Canada is outside the legal scope of this authority. The Prime Minister, who is not a signatory to the treaties between First Nations and Her Majesty, is also acting outside the legal scope of his power. Harper has no power to unilaterally amend treaties or violate constitutionally-protected treaty rights. Yet, this political duo is taking matters into their own hands and changing the rules in education and treaty rights – just like they both promised at the Crown-First Nation Gathering.

The opposition to this deal is not new – it has been significant and consistent throughout the last few years. Three provinces of First Nations pulled out of the National Panel on Education – Saskatchewan, Quebec and Ontario – as a strong message to Atleo that he did NOT have the mandate to make a deal on First Nation education. Atleo did not listen. He forged ahead despite the growing opposition. The Chiefs in Assembly passed numerous resolutions AGAINST Atleo making any deals on First Nation education and specifically against education legislation. Atleo hung on tightly to Harper and forged ahead despite growing calls for his impeachment.

Then came the “deal” – the promise of adequate funding, First Nation control, and legislation that would recognize our Aboriginal and treaty rights to education. From the moment Atleo-Harper held their joint press conference, First Nations knew we were in trouble. Atleo sang songs about how he was saving our children from the status quo while Harper countered every point Atleo made – although with great tact. When Atleo realized that Harper wasn’t singing the same song, Atleo send a strongly worded letter asking whether or not any of the promises Atleo made to First Nations were in fact going to be kept by Harper. The answer was no. Instead of throwing away his pride, admitting to his colossal mistake and standing with First Nations against Harper’s assimilation agenda, Atleo stood by Harper.

What followed was political propaganda from Harper, Minister Valcourt and Atleo meant to save the deal from being challenged in the public arena. AFN’s open letters, statements, clarifications, and press releases were desperate acts of damage control. It was too late – Chief Gilbert Whiteduck filed a judicial review against Canada about the proposed legislation. First Nations spoke honestly and critically in the media about the damage this proposed Act would do. Lawyers, academics, analysts and political commentators all seem to come to the same conclusion: the Act did not reflect First Nations control or protect treaty rights, and even the funding was an illusion.

The proof is in the act – Bill C-33 which was supposed to be called First Nations Control of First Nations Education Act actually reads:

An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other acts

The Act establishes a “framework” and that framework is to “enable” First Nations control over elementary and secondary schools. But what does this mean exactly? First Nations have been very specific that they want recognition of their exclusive jurisdiction and control over all aspects of education in First Nations. The Summary portion of the Act provides more clarity:

This enactment provides for the control by First Nations of their elementary and secondary education systems. It establishes a framework to enable First Nations to exercise that control by administering schools situated on their reserves, by delegating the power to administer schools to a First Nation Education Authority or by entering into a tuition or administration agreement. (emphasis added)

First of all, any “control” by First Nations is limited only to elementary and secondary education. In addition, that control is limited to the administration of on reserve schools only. That administrative control is further limited to a power to delegate – i.e. that control MUST be exercised by giving up all control to First Nation Education Authorities – a new level of bureaucracy.

In simple terms, Canada is retaining all of its control over First Nation education – this is clear throughout the Act. At best, this Act outlines a complex process for how Canada will DEVOLVE limited ADMINISTRATIVE control over some, not all, education to First Nation organizations (not First Nations themselves). In case there was any doubt, the Summary goes on to explain that it is Canada that will set out the roles and responsibilities of First Nation educators and will create a National Organization, in addition to this Education Authorities as yet another layer of control over First Nations education.

This cumbersome new bureaucratic system will not be adequately funded, and the majority of the funds will be eaten up by this bureaucracy. The only people that will benefit are those waiting in the wings to gain favour from the Harper government and be appointed to one of these new boards. While newly appointed bureaucrats suck up the already inadequate funding that should be going to First Nations to operate their schools, a new financial burden is being placed them – the requirement to provide education to non-First Nation people.

One doesn’t even have to read the actual provisions contained inside the Act to know that this is not in the best interests of First Nations. Yet, Atleo continues to vehemently defend the deal he made with Harper. Atleo’s most recent “analysis” of the Act is a sign that the AFN stopped working for First Nations and is more concerned about gaining favour with Harper to the detriment of our children and future generations.

The analysis is not really an analysis so much as it is AFN’s spin on their colossal failure. A simple, plain language analysis could have been done in relatively few pages. However, their analysis does not even start until the 4^th page of their document. The first three pages simply outline history – what we already know. What’s worse is that when the analysis does start, it begs us to read into the Act what isn’t there – legal recognition, implementation, enforcement and funding of First Nations controlled education systems according to First Nation laws, rights and priorities.

Highlights of AFN’s Analysis:

“Principle” of First Nation Control:

AFN uses the same weasel words that Justice Canada and Aboriginal Affairs and Northern Development Canada (AANDC) uses. Instead of a direct recognition of First Nation jurisdiction over all education systems, AFN and AANDC say that First Nation education should be “designed” based on a “guiding principle” of First Nation control. The design of First Nation education is being done by AANDC through this Act, and the guiding principles of First Nation control are not law – they are fluffy statements used to give the illusion of control without actually recognizes a legal right.

“Reference” to language and culture:

AFN argues that a mere reference to language and culture is significant, but fails to highlight how this is limited by the actual provisions within the Act that make provincial standards the norm and English and French the standard languages of instruction.

K-12 Education is part of life-long learning:

AFN highlights that this is an important statement in the preamble of the Act, yet ignores the fact that this Act is specifically limited to K-12 education. In an analysis, we would expect AFN to highlight the substantive promises, not the fluff. This Act does not state that First Nations have jurisdiction over every level of education, thus the lifelong learning statement is just more fluff.

Protecting the Treaty Right to Education:

AFN claims that the preamble which states that Canada protects Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 should give comfort that this Act respects treaty rights. All the preamble actually says is that Canada protects treaty rights in section 35. It does not say this Act protects treaty rights. These weasel words are meant to distract our people and give them false comfort.

AFN asks us to believe that the non-derogation clause contained within the Act is further protection of our Aboriginal or treaty right to education. Yet, that is not what the clause says. The clause speaks to the non-derogation (to take away from) or abrogation (to end or cancel) of Aboriginal and treaty rights generally. There is no positive protection of the treaty right to education, no specific mention of the treaties which protect education being exempt from the Act, and no acknowledgment of Canada’s legal obligations to recognize and implement the treaty right to education. Instead, this Act purports to legislate that treaty right without our consent. The very act of introducing this Bill without the free, informed and prior consent of First Nations, violates the treaty right and/or Aboriginal to education. Further, the failure to fully fund education in First Nations violates the treaty provisions, which in turn violates the constitution. AFN should be advocating and defending our rights – plain and simple.

Access to Education:

Instead of focusing on the necessary funding to ensure that First Nations can provide robust education (of their own design) to First Nations, this part of the Act is not focused on First Nations at all. This section speaks to forcing First Nations to provide education (as outlined by AANDC) to non-First Nation residents. This is an added burden and could impede the ability to direct their education system as per Indigenous values and traditions.

AANDC, as part of its assimilation agenda, is trying to transition the rights-based obligations of Canada to First Nations, to a discretionary one of programs and services to generic residents. This is the transition from First Nations to provincial municipalities. This is not the first Act to do this. Look at the Matrimonial Real Property Act which purports to give non-Indians property rights on reserve in contravention of treaties and the Indian Act itself. This will also create an administrative and financial burden on First Nations. The fact that AFN would not highlight this and defend First Nation rights shows they are no more than an arm of the federal government facilitating the assimilation agenda.

Joint Council of Education Professionals:

Again, this is another provision that First Nations did not ask for, but is a mandatory aspect of this Act. The very fact that this Council is created and governed by federal legislation speaks to the lack of independence. Either way, whether federally-controlled or jointly AFN-Harper controlled – this is not the vision of First Nations regarding jurisdiction over education. If the funding component was addressed, First Nations would be able to build their own capacity with whatever “expert” assistance they determine to be relevant.

Instead, this Act, like the Matrimonial Property Act, gives the illusion of control and independence, while mandating Centres of Excellence, National Joint Council, controlled by the federal government to oversee federal legislation. None of this speaks to First Nation control. All of AFN’s hopes with regards to this Joint Council are based on “anticipated” roles, not actual roles contained in the legislation.

Even after all of this, AFN still expects First Nations to follow blindly down this legislative path in “anticipation” of good results. The way I see it, once Canada lives up to its current legal and treaty obligations, I might be more inclined to have some faith in their intentions to live up to the hopes of AFN in this legislation. Until then, we owe our future generations a little more than pie in the sky false hopes.

First Nation Languages:

Nice try AFN, but the legislation is clear. The language of instruction in schools is French and English. There is no way you can interpret the law as written in any other manner. The First Nation “is to”, i.e. must offer French or English. They “may” “in addition” offer First Nation languages. This is an optional, permissible action, in addition to regular instruction. Given that First Nations are also being forced to adopt provincial standards and curriculum, there’ll be little room for English-French as core instruction to provincial standards, as well as First Nation immersion. The two are incompatible.

I don’t want the courts left to interpret our rights. We have domestic and international legal rights to speak our own languages and educate our children in our own languages and on our own standards. This is also an inherent right based on our sovereignty and jurisdiction over education. If Canada had intended that First Nations would be “allowed” to educate their children in First Nation languages in immersion, they would have written it that way. Justice Canada’s legislative drafters are skilled in writing the intentions of the instructing Minister. There was no mistake here.

First Nation Governance?

First Nation Education Authorities are the heart of this Act. It is intended that First Nation “control” is exercised through First Nation Authorities. These authorities are defined by Canada. They are agents of AANDC. Similarly, AANDC defines who is to be hired by these authorities, including Directors and Principles, and prescribes their roles. AANDC takes it a step further and includes a school inspector – modern day Indian agent to oversee and “verify” compliance with the Act. This Act goes even further and gives the power to AANDC to require that the First Nation Authority hire a Special Advisor, and can even appoint a third-party educator known as a “temporary administrator” against the will of the First Nation.

In comparison to the current Indian Act, this act gives AANDC much more detailed and expansive powers over First Nation education. The Act makes it mandatory for the Director, principal and staff of a First Nation school to comply with the third-party educator. Given the horrific outcomes of federally-run residential schools, First Nations have a right to fear such invasive control over their education systems – far more intrusive than now. The difference between residential schools and modern-day federally-controlled schools under this Act is that the federal government was liable for the damages they caused in residential schools. In this Act, they absolve themselves of any and all liability for any harm done to First Nations.

Other Issues with the Act:

The funding is inadequate and will be eaten up by new federal and regional education bureaucracies;

The Act limits First Nation “control” to on reserve schools and excludes First Nation control over their students within their territories but off reserve;

The Act mandates the provision of already-stretched education services to non-First Nations;

The Act mandates parents to register and force attendance of their children – not unlike residential schools, which could result in increased abductions of First Nation children by Child and Family Service agencies into already swollen foster care;

The functions and powers of the National Joint Council are unlimited and could be substantially expanded under the yet-to-be-written regulations;

There is no requirement that the regulations be approved by or jointly drafted by First Nations – Canada retains all the power to enact any regulation regarding this Act;

The provisions around the Joint Council membership seem to be more about saving the AFN as an organization, than of representing the views and choices of First Nations – although not defined in the Act, the regulations will determine who is the representative organization;

A First Nation is not permitted to charge tuition fees to any of its attendees (I’m thinking specifically non-First Nation attendees) which precludes the design of special schools or funding options for schools;

The Act prescribes who can and cannot act as a Director or Principal, which in very small communities could severely limit whether local people could apply for these jobs;

Methods of calculation for funding purposes have skewed comparators in “similarly-sized provincial” schools given that the treaty right is not comparable with those who do not have similarly-protected constitutional rights, histories, experiences, socio-economic conditions, governance capacity or catch-up to do from harms in residential schools;

Finally, the height of an undemocratic, irresponsible, unaccountable government:

Canada reserves all these powers to direct First Nation education, but will not allow itself to be held accountable if it causes harm – by insulating itself from liability.

This isn’t what First Nations meant by recognition of First Nations jurisdiction over their own education systems, nor does it recognize and implement the treaty right to education. The AFN’s continued defense of Atleo-Harper’s education deal. At any time the regional chiefs of the AFN could have stopped Atleo by impeaching him; they could have resigned in protest; they could have spoken up loud and clear.

While it’s true that some regional chiefs were ostracized and excluded from information and decision-making, staying silent about what is happening does not protect the people. I am a strong believer in unity, but not at the expense of unifying ourselves out of existence. Our ancestors were kind, respectful people who guarded their protocols to ensure good working relationships with other Nations. But our ancestors were also warriors and knew when to stand up and protect their people from harm.

Atleo’s three-piece suits, photo-ops, club speeches, international travel, and fancy dinners with Harper and his Ministers are an insult to the First Nations women who go murdered and missing, to our kids who die in foster care, to the children without hope who die of suicide; and the many people who die pre-mature deaths from purposeful, chronic federal underfunding.

The problem and the solution have been identified in hundreds of reports. Recognition of First Nation jurisdiction and adequate funding could change lives of First Nations and Canadians as we know it. Even the economic analysis says we’d all live much richer, fuller lives – First Nation and Canadian – if we invested in First Nation education. You don’t need legislation or any more studies to do this – it’s a simple choice by Canada. Not all pressing problems have such simple solutions, but it’s the solution itself – funding – that Canada has taken great pains to avoid.

It’s time to stop shaking hands with those who are trying to eliminate us and start defending the rights of our people.

Related blogs:

http://www.indigenousnationhood.blogspot.ca/2014/03/first-nations-controlled-first-nations.html

http://www.indigenousnationhood.blogspot.ca/2014/02/harpers-cons-and-fnea-would-you-want.html

http://www.indigenousnationhood.blogspot.ca/2014/02/first-nation-control-of-first-nation.html

April 29, 2014

First Nations Controlled, First Nations Education Act: Standardizing “the Indian in the child”

On February 7, 2014, Assembly of First Nations (AFN) National Chief Shawn Atleo stood with Prime Minister Stephen Harper and Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt and announced a “historic deal” on First Nations education. They announced that the federal government would change the name of education legislation to First Nations Control of First Nations Education Act, together with $1.9 billion in future monies.

Since then, First Nations have been trying to figure out on what authority AFN made this deal on our behalf, and what exactly this deal entails. Every time that NC Atleo or Harper speaks, it becomes more and more apparent that Atleo and Harper are NOT of the same mind in terms of what this “deal” entails. In case anyone had any doubt about the fragile, if non-existent agreement between AFN and Harper, one need only refer to the letter from AFN dated Feb.28, 2014 requesting clarifications from the Harper government about what the deal means.

You don’t have to hire a lawyer to know that you never ever commit to a deal without knowing what the deal is – i.e., get the details in writing. Atleo’s letter asks critical questions like:

– Is Canada committed to working with First Nations?;

– Will Canada “engage” or “collaborate” with First Nations on legislative drafting?;

– Will existing agreements and MOUs be honoured by Canada?;

– Is the funding new funding?; and

– Is the funding secure?

It is almost unbelievable that the AFN would be asking these critical questions AFTER the deal has already been made and announced. What’s worse is that the AFN is asking these questions AFTER Atleo’s many media appearances and their FAQ Sheet which purports to answer these questions. How can the AFN assure First Nations that they will get to “inform” the legislative drafting process and then a few weeks later, ask the federal government if they will work with First Nations on the legislation?

The joint Atleo-Harper announcement on February 7, 2014 and all the media statements by both parties in the days and weeks that followed is a clear indication that there is no common understanding. Here is a summary of how each side interpreted the “historic deal” (that has no written commitments):

What AFN/Atleo Said	What Harper/Valcourt Said

Respects & recognizes rights, title & treaties	Not about rights, it’s about social development
Incorporates reciprocal accountability	Ensures transparent & accountable First Nations
No federal oversight	Feds will provide the standards, reporting and other oversight mechanisms to “ensure” First Nations meet “new” standards
Statutory guarantee of funding to address “real costs” of education	4.5% cap on funding (versus 6% pop growth)
Funding is guaranteed	Funding will be for “willing partners”
AFN will “inform” legislative process	Feds will draft legislation and regulations
Limited “enabling” legislation	Full “comprehensive” education legislation
New deal for First Nations	What’s best for Canada
Allows for diversity	Same standards for all First Nations

If this is THE deal (historic, but unwritten); which promises First Nation control (federal control of First Nations); and capped funding (future monies less than what is needed to take on new responsibilities); and a new relationship (where we voluntarily give up our treaty right to education) – then NO DEAL.

But we already told Atleo NO DEAL. We told him during Idle No More, we told him when the Chiefs marched on Parliament against legislation, and we told him when Ontario, Quebec and Saskatchewan pulled out of National Panel on Education. Atleo needs to start listening.

http://www.youtube.com/watch?v=Qnt7HsXLFL8

It’s not hard – the problem has been identified in 100 studies: lack of real First Nation control, lack of funding and lack of culture and language in schools. The solutions have already been identified as well: First Nation control, adequate funding and culture and language. Legislation has never been required to do the right thing. It’s an Aboriginal, inherent and treaty right that is protected in Canadian and international law. The government doesn’t need legislation to respect the rule of law.

http://www.chiefs-of-ontario.org/sites/default/files/files/OCOFOV%20Education%20Report%202012.pdf

No amount of political spin can hide the swindle of the century – legislating the future of our Nations out of existence by standardizing “the Indian in the child” to be like every other Canadian.

#NoFNEA

#NoFNCFNEA

#ImpeachAtleo

March 6, 2014