*Originally published in Globe & Mail Feb. 27, 2020
CANADA’S INDIAN POLICY HASN’T CHANGED MUCH
After the events of the past few weeks in Canada, one thing remains clear: Canada’s Indian policy hasn’t changed much since its inception. Indian policy has always had two objectives: to obtain Indian lands and resources and to reduce financial obligations to Indigenous peoples acquired through treaties or other means. Its primary methods were elimination or assimilation of Indian
Colonial governments had a long history of scalping bounties to kill specific groups of Indigenous peoples, using small pox blankets to increase death rates from disease and forced sterilizations to reduce the populations. Even Confederation did not dispense with the violent colonization of what would now become known as Canada. Canada’s first prime minister, Sir John A. Macdonald, told the House of Commons in 1882: “I have reason to believe that the agents as a whole … are doing all they can, by refusing food until the Indians are on the verge of starvation, to reduce the expense.” Canada was fully engaged in clearing the lands, by any means necessary.
Now referred to as Indigenous reconciliation, the goal is still the same: to clear the lands of Indigenous peoples in order to bolster settlement and extraction of resources. This singular focus formed the basis of the violent colonization of Indigenous lands and peoples and, ultimately, is why Canada has been accused of genocide by the National Inquiry into Missing and Murdered Indigenous Women and Girls. Canada’s complex set of laws, policies, practices, actions and omissions have created an infrastructure of violence toward Indigenous peoples and the continued dispossession of their lands.
This is at the heart of the devastating socio-economic conditions of many Indigenous peoples today, including multiple health crises such as diabetes, heart disease and strokes, lower life spans, higher rates of mental illness and some of the highest suicide rates in the world. These genocidal policies also serve to remove Indigenous peoples from their lands through high foster care rates, killings and disappearances of Indigenous women and girls and the skyrocketing incarceration rates.
Genocide in Canada
APOLOGIES VERSUS LAND BACK
Despite carefully worded apologies and promises of a better relationship, none of these conditions has changed and, in fact, most are getting worse. Add to this that First Nations have less than 0.02 per cent of all their lands left – mostly in tiny reserves controlled by the federal government. Political rhetoric about supporting Indigenous self-determination means very little when we are denied access to our lands and resources.
We need to be honest about what is going on. There never was any real intention of recognizing Indigenous land rights – whether under Indigenous laws, Section 35 aboriginal and treaty right protections in the Constitution Act, 1982, or by implementing the United Nations Declaration on the Rights of Indigenous Peoples. It has been painfully clear, at every flashpoint in Canada’s history, that it is willing to starve Indigenous peoples into submission or imprison them to access their lands.
This is at the heart of what is happening across Canada over the past few weeks. The Wet’suwet’en Nation, as represented by their traditional government, acting on Wet’suwet’en laws and decision-making protocols, have said no to pipelines on their traditional territory. While five of the six band councils within the Nation have allegedly agreed to the pipeline, their jurisdiction extends over their reserve lands. It is the hereditary leaders who have the legal jurisdiction over their traditional territory, to decide whether the pipeline can cross their pristine forests and rivers.
The Supreme Court of Canada had already acknowledged in the Delgamuukw case that these were the proper representatives to bring a claim of aboriginal title. Eight of these leaders have said no to the pipeline. Despite this, the RCMP invaded their territory and forcibly removed them from their lands – counter to Wet’suwet’en law, Canadian law and international law. UNDRIP, which is now implemented in British Columbia, prevents the forced removal of Indigenous peoples from their lands. This flagrant breach of Canada’s own rule of law is why the peaceful solidarity actions started all over Canada.
This is also why these actions will continue. Every time law enforcement is sent in to the clear the lands of the “Indians” to make way for pipelines and extraction of resources, you will see more and more Indigenous nations and Canadian allies stand against this injustice.
The real issue has always been about the land. The way forward is recognition of our right to be self-determining over our own lands and resources.
Anything less is just the same old Indian policy that invites more uncertainty and social conflict. Canada can do better. It’s time to move past genocide and work toward respect for Indigenous land rights.
#LANDBACK
*This article originally appeared in The Globe and Mail on February 27, 2020 and updated on February 28, 2020 and can be found here:
Ottawa, ON – The National Action Plan and Federal Pathway on Missing and Murdered Indigenous Women and Girls is not an adequate response to the crisis of murders and disappearances, and the ongoing genocide against Indigenous women and girls and 2SLGBTQQIA+ people that was identified by the National Inquiry. This is the conclusion of a number of Indigenous women experts, grassroots groups and organizations who work with Indigenous families, survivors and communities. They have grave concerns about the immediate health, safety and well-being of Indigenous women, girls and 2SLGBTQQIA+ people.
The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls issued 231 Calls for Justice to be included in a National Action Plan to end genocide that would be grounded in Canada’s domestic and international human rights and Indigenous rights obligations. Co-ordination across jurisdictions was understood by the Inquiry to be a critical part of any Plan moving forward.
The Plan entitled: 2021 National Action Plan: Ending Violence against Indigenous Women, Girls and 2SLGBTQQIA+ People, drafted by a working group of selected Indigenous organizations and government officials, sets out a vision, goals, and immediate next steps. This plan does not answer how to keep Indigenous women, girls and 2SLGBTQQIA+ people safe, with no specific information about how, when and by whom concrete actions will be taken. Nowhere in the document do governments acknowledge and accept responsibility for the laws, policies, and practices that contribute to, and perpetuate, the ongoing genocide of Indigenous peoples, and specifically of Indigenous women, girls 2SLGBTQQIA+ people.
Indigenous women, communities, families, survivors, experts and allies have worked for decades to shine a light on this crisis and demand accountability for the murders and disappearances by governments and institutions. There would never have been a National Inquiry were it not for their determined advocacy. Canada’s failure to create a proper plan to end genocide does not fall on those groups who provided input into the plan.
This comes at a specifically difficult time for many Indigenous women and families who are also residential school survivors. The discovery of the mass grave of 215 children represents an incomprehensible trauma to the Secwépemc peoples, survivors and communities across the country who have long known about other unmarked and mass graves. This is why Canada was found guilty of historic and ongoing genocide of Indigenous peoples that has led to high rates of violence against Indigenous women and girls today. This is yet another reason why Canada must take concrete steps to end the genocide and all forms of harm.
The National Action Plan, together with the Federal Pathway document, are together extremely disappointing because it does not provide the comprehensive, system-wide, inter-governmental plan that is needed to end genocide. There is no commitment for urgent emergency services to prevent the abuse, exploitation, disappearances and murders of Indigenous women and girls; nor is there a monitoring mechanism – independent of the government of Canada – to monitor the urgent end to genocide.
“With this document, Canada has once again dismissed the stories and voices of thousands of Indigenous women, survivors, and families and shown its willingness to be complicit as we continue to go missing and be murdered. We call for immediate action and full implementation of the Calls for Justice and the UN Declaration on the Rights of Indigenous Peoples.”
Kukpi7 Judy Wilson, Secretary-Treasurer of the Union of BC Indian Chiefs
“Considering that there is no coordination between the different levels of government, we ask ourselves what is the use of this work?”
Viviane Michel, President, Quebec Native Women
“The Nation-to-Nation process continues to marginalize and alienate Indigenous women and the representatives of their choice from substantive legal, policy and economic decision-making and governance over their own lives.”
Dr. Dawn Lavell-Harvard, President, Ontario Native Women’s Association
“The Plan and Pathway do not make expedited registration of First Nations women and their descendants an urgent priority. There are thousands of women and their descendants who are now entitled to status. They need to be registered to end the discrimination they have suffered for decades. It is long past time to restore First Nations women to their rightful place in their communities and nation.”
Sharon McIvor, Feminist Alliance for International Action
“I am pleased to see that intersectionality was included as a guiding principle in the Plan and that it recognizes the higher rates of victimization for Indigenous women and girls who have disabilities; but I don’t see a plan address this lived reality.”
Dr. Lynn Gehl
“This is not a national action plan. A national action plan defines concrete actions that will be taken and assigns responsibility, resources and timelines for implementing them. This ‘Plan’ does none of that.”
Shelagh Day, Chair, Human Rights Committee, Feminist Alliance for International Action
“Canada is a state perpetrator of genocide which specifically targets Indigenous women and girls for violence, exploitation, dispossession and oppression. Its failure to accept full responsibility for genocide and outline a plan to end it on an urgent, national basis puts the lives of Indigenous women and girls at grave risk.”
Dr. Pamela Palmater, Chair in Indigenous Governance, Ryerson University
Indigenous women, in collaboration with communities, families, survivors, advocates and allies, will continue to push Canada to take urgent action and be accountable to end genocide.
(SIPEKNE’KATIK, FN) — The United Nations Committee on the Elimination of Racial Discrimination (CERD) has called on Canada to investigate acts of violence against Mi’kmaw fishers and protect them from further violence, while also taking steps to respect and protect the Mi’kmaw right to fish.
A team of Mi’kmaw advocates, together with Justice for Girls – a human rights organization – worked with Sipekne’katik fishers to make a formal submission under UN CERD’s Early Warning and Urgent Action Procedure, when it was clear that federal and provincial governments and local law enforcement would not respect Mi’kmaw fishing rights or protect Mi’kmaw fishers from racist acts of violence.
Mi’kmaw lawyers Rosalie Francis (Sipekne’katik), Pamela Palmater (Ugpi’ganjig) and Alisa Lombard, together with Justice for Girls human rights experts Zoe Craig-Sparrow (Musqueam), Sue Brown and Annabel Webb from Justice for Girls authored the submission on behalf of the Sipekne’katik Mi’kmaw fishers: Randy Sack, Jason Marr, Robert Syliboy, Terrance Augustine, Ron Augustine and Cheryl Maloney, as well as the Mi’kmaq at Sipekne’katik, supported by Sipekne’katik Chief Mike Sack and Council. The submission laid out the evidence of Canada’s serious human rights violations of Mi’kmaw peoples who hold inherent, Aboriginal, and treaty rights and self-governing powers in relation to the fishery in Mi’kma’ki.
After considering the evidence presented by the team which detailed the escalating racist hate speech, violence, firearms, intimidation, the burning and destruction of Mi’kmaw property, including lobster traps, lobster processing facilities and work vehicles; CERD called on Canada to:
investigate the alleged racist acts of violence against Mi’kmaw peoples;
Investigate the alleged lack of response by Canada to protect Mi’kmaw from violence;
Prevent further acts of violence; and
Respect, protect and guarantee the fishing rights of Mi’kmaw peoples including repealing any laws that infringe those rights.
Jason Marr, one of the Mi’kmaw fishers explained: “As I watched my fish plant being destroyed by angry mobs, and police standing by, I felt that there was no respect or protection for the Indigenous Peoples of this country. I feel grateful that the International community is aware and watching Canada, as we continue our efforts to regain our ability to feed our families and communities by making a living off our lands and waters”.
Cheryl Maloney, another Mi’kmaw fisher said: “I was on the water with my community on launch day and experienced being surrounded by hundreds of hostile commercial fishers, I prayed and honestly believed that Canada would step up and help. That was not the case and is the reason we reached out to the United Nations. We are really thankful that the UN has called on Canada to protect our people.”
Pamela Palmater, Mi’kmaw lawyer and co-author of the submission stated: “We all appreciate this important intervention from UN CERD calling on Canada to respect Mi’kmaw rights and protect our peoples from violence. It is shameful that we had to seek international intervention, but Canada’s racist laws, policies and practices continue to breach our basic human rights and our inherent Mi’kmaw rights to our lands, waters and fishery. We have a right to govern ourselves which is continually denied by all levels of government. This has resulted in generations of violence, criminalization and extreme poverty of Mi’kmaw peoples. This has to end and we hope CERD’s intervention will be a wake up call for Canada.”
Chief Mike Sack on behalf of Sipekne’katik said: “We are proud of the resiliency and ingenuity of our community members, and in particular the team responsible for the submission to the United Nations.” Chief Sack added, “while under siege and with very few resources they were able to move through the necessary international channels to advance this process in defence of our peoples.”
AUDITOR GENERAL REPORT ON CLEAN WATER IN FIRST NATIONS
Prime Minister Justin Trudeau had no problem finding $7 billion dollars to buy Trans Mountain oil pipelines – so, where’s the money to pay for clean water pipelines in Indigenous communities? It may be hard to believe, but many First Nations in Canada still lack access to clean drinking water.
This week, the Auditor General for Canada (AG) released her report on whether Canada is providing enough support to ensure that First Nations have access to safe drinking water. The answer was a clear no. This is despite the Liberal government’s promise back in 2015 to eliminate all long-term drinking water advisories in First Nations by March 2021.
The report entitled “Access to Safe Drinking Water in First Nations Communities” found that federal policies and funding amounts did not align with its promise to end all long-term drinking water advisories (DWA) on reserve. But the story doesn’t begin or end with DWAs – that is only the tip of the iceberg. Auditor General Report on Clean Water
WHEN DID THE FIRST NATION WATER CRISIS START?
This crisis has been a long time in the making. First Nations would not be struggling to protect and access clean water if our sovereign jurisdictions, laws, and governing powers over our traditional territories and resources were respected. Canada has created and maintained this First Nation water crisis after generations of colonization, genocide, land dispossession, and control of our water sources.
And no, there is nothing in any of the treaties that explicitly stated the Crown could take all the water, control it, monetize it, and then deny access to clean water to First Nations. But that is exactly what has happened, despite the fact that the United Nations has recognized access to safe drinking water as a human right over a decade ago.
Canada continues to act as an outlaw, breaking Indigenous laws, its own domestic laws, and international laws in relation to human rights. When it comes to the basic human rights of Indigenous peoples – including the right to access, govern and protect water sources – Canada literally ignores its so-called “rule of law”. The continued failure to provide clean drinking water to First Nations or other Indigenous communities like the Inuit, is a prime example of systemic racism.
The Crown first steals Indigenous lands, resources, and waterways through fraud, deception, and countless breaches of its own laws, and then reserves unto itself jurisdiction in the Constitution Act 1867 over “Indians and lands reserved for the Indians”. In other words, the federal government has assumed legal and financial responsibility for both water and water infrastructure on First Nations reserves. Canada’s willful neglect of its assumed obligations has left numerous First Nations communities without clean water.
WHAT IS THE FIRST NATION WATER CRISIS?
First Nations have been calling on the federal government to address the lack of access to clean water for decades. In 1995, Health Canada and Indian and Northern Affairs Canada (INAC) found that 25% of water systems on reserve posed health and safety risks. In 2001, INAC found “significant risks” to water quality and safety in 75% of water systems on reserve – a shocking number.
A decade later in 2011, INAC reported to the AG that more than 50% of water systems still posed significant risks to community members. In 2014, it was 43% of water systems in trouble and in 2021, and that risk level hasn’t changed.
At a press conference about the AG’s report, Indigenous Services (ISC) Minister Marc Miller said that while they had hoped to address all long-term drinking water advisories, they lost “a construction season” due to the pandemic. One construction season? If we only start the clock from 1995 forward, then they’ve lost 25 years of construction seasons.
The AG pointed out that the delays by ISC were there long before the pandemic and referenced previous AG reports that have consistently raised concerns about the lack of clean drinking water in First Nations.
And let’s not forget the numbers here. In addition to the 60 long-term DWAs that are left to be resolved – half of those have been in place for more than a decade. Imagine an entire decade in Fredericton, Toronto, Winnipeg or Saskatoon without clean drinking water, where there was only enough water to bathe once a week. That would NEVER be tolerated anywhere else for any other community, but those in First Nations. The situation would be treated as the urgent crisis that it is.
FEDERAL POLICIES FOR WATER ON RESERVE ARE DECADES OLD
The federal government’s less than sincere commitment to urgently address the water crisis in First Nations is betrayed by the fact that their policies are decades old. The sad reality is that no one in the federal government has been concerned enough about the health, safety, and well-being of First Nations families, to treat the lack of access to safe drinking water as a crisis.
In fact, over the years, AG reports found that the federal government couldn’t even be bothered to do annual inspections for all the water systems, despite their medium to high-risk. It’s as if the words “significant risks” to community members were merely notations in a report and not significant warnings for risks to health, safety and well-being of First Nations.
The Auditor General also noted that some of the federal government’s policies in relation to water systems on reserve are decades old and some were written in the 1960’s. She further noted that they have not amended their policy in relation to funding for the operations and maintenance of water systems on reserve for over 30 years.
This means that the funding that the federal government provides to First Nations to maintain their water systems, does not take into account new technologies, the actual costs to maintain the systems and/or the risk-level and actual condition of the water systems. On top of that, they only provide up to 80% of the costs determined by this outdated policy, while at the same time paying First Nation water operators 30% less than the rest of Canada.
Is there any wonder why the federal government is constantly chasing long-term drinking water advisories and never seems to catch up? The ever-changing number of First Nation communities without clean water should be considered a national emergency – something that can and should have been rectified by now.
Think about it this way: if your roof has a leak and it would cost $10,000 to repair but you only “invest” $1,000, what happens? Well, your roof is not entirely fixed, so it continues to leak, causing more damage to the roof and the rest of the house. The next year, it will cost you $30,000 to fix the roof and the extra repairs for the house. Partial solutions to the water crisis serves to make the problem worse.
This is the point the AG made: “If funding to operate and maintain water systems is insufficient, water systems may continue to deteriorate at a faster-than-expected rated.” This is exactly what has happened.
THE NUMBERS SHELL GAME – HOW MANY FIRST NATIONS COMMUNITIES ARE WITHOUT WATER?
It’s important to dig into the numbers to truly understand the full scope of this problem. The AG’s report was limited to only 1,050 “public water systems” in 600+ First Nations. This is because ISC’s water policies and funding formulas do not provide support for those who rely on wells or cisterns. Worse than that, their water policies do not support those First Nations without any running water, let alone clean water!
And this isn’t a small number. More than one third of all households on reserve are in the category of wells and cisterns, or have no running water at all. So, the number of First Nation communities without access to clean water is a far bigger problem than it would first appear.
It’s also important to look at how ISC has differentiated between short-term and long-term DWAs. The government seems to be congratulating itself for having “only” 60 long-term DWAs left, meanwhile over the same period, the AG confirmed that there were 1,281 short-term DWAs.
More than 10% of those short-term DWAs were for periods of two months or more. But worse than that, the AG also found some First Nations had multiple short-term DWAs, that when added up, were more than a year in total cumulative length. But they don’t get counted in long-term DWAs, which effectively misrepresents the seriousness of short-term DWAs. Further, with long-term DWAs, they get counted as “lifted” or “resolved” if temporary measures are made to bring in water – even if the deficiencies in the water system have not been remediated.
DWA numbers are clearly not the most transparent or effective way to measure whether or not the water crisis has been remedied. The more transparent measure would be whether each household on First Nation reserves and each daycare, school, healthcare centre, community building, and business, has consistently safe, reliable, clean drinking water and sanitation. These numbers could easily be recorded as an aggregate and disaggregated set of statistics.
That’s the number that matters – how many First Nation households are without access to clean water – not how many DWAs you lifted one day, but were re-imposed the next. That’s a shell game that only serves to hide a much larger problem and certainly doesn’t respect the human right of First Nations to access clean water.
Canada brags about having 84,000 kms of pipelines all over the country servicing the oil and gas industry. When confronted with losing the Trans Mountain oil pipeline, Trudeau managed to find $7 billion dollars in a hurry to buy it. So, where are the pipelines bringing clean water to First Nations Trudeau?
There are mancamps full of thousands of mostly men flown into First Nation territories, in even in the remotest of places, that have access to healthcare, safe, mould-free housing, healthy food, and clean drinking water and sanitation. So, where is the healthcare, housing, food, and clean water for First Nations?
Canada’s military brings millions of litres of fresh water to other countries in emergencies – so where’s the clean water for First Nations? Canada has spent more than $240 billion dollars on pandemic relief measures, but there isn’t enough money to ensure that no First Nation goes without access to clean water during a pandemic? This isn’t a matter of lack of resources, these are conscious policy choices being made to breach the rights of First Nations, with significant impacts to their physical and mental health and well-being.
Minister Miller says they lost a construction season during the pandemic and that’s why they couldn’t address the water crisis. Yet, the construction season for oil and gas pipelines, the tar sands, mining projects and other extractive projects and infrastructure continued during the pandemic. But construction couldn’t proceed on water pipelines? These excuses are unacceptable.
No one is buying the excuses made by Liberal politicians anymore. The reason all First Nation households don’t have access to clean water is widespread, longstanding, systemic form of racism and a denial of basic human rights.
It is the same reason why there is a housing crisis on reserve; a humanitarian crisis of First Nations children in foster care; crisis-level incarceration rates of First Nations; and why there are thousands of murdered and missing Indigenous women and girls in this country. Policy choices are being made by bureaucrats with full knowledge of the harms inflicted.
HOW CAN CANADIANS HELP ADVOCATE FOR ACTION ON CLEAN WATER FOR FIRST NATION COMMUNITIES?
Until we address the racism in Canada’s laws, policies, and practices, we’ll never end the ongoing breaches of human rights against First Nations or their current lack of access to clean water. There is no such thing as incremental equality or partial human rights. You either have them or you don’t. And clearly, First Nations have neither equality nor the protection of human rights.
We need Canadians to stand up and say this isn’t right. We need Canadians to use their voices, their numbers, their powers and spheres of influence to demand better. Demand that the federal government bring every resource to bear to ensure safe, reliable, clean drinking water and sanitation to every single household on First Nation reserves. Not in two years, three years or after the next election – but this year. Next year’s reports need to count First Nation households without access to clean water and sanitation – not DWAs.
You can send emails, letters and petitions to Ministers, MPs, Senators and even the Prime Minister. You can withhold political and public support for politicians and make it conditional on ending the crisis. You can use your research, social media or publicity skills to support First Nations educate the public. There is no end to what Canadians can do. Now that you know better, you can put that knowledge into action for justice.
CONCLUSION
Canada needs to treat this water crisis as the national emergency it is and work in partnership with First Nations to address the entirety of the crisis – not just long-term DWAs. Canada needs to treat this situation with the same priority, urgency and resources as if this was in their own backyards.
We all know it would only take a week without access to clean water for any of these politicians to call in the army in their town or city if this happened to them. So, they need to stop with the excuses and simply get it done. And while they are at it, they should also return some of the lands, resources, and waterways they took – so this isn’t a problem in the future.
Access to clean water for all First Nations should never be considered a policy option.
C-92 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families
THE FEDERAL GOVERNMENT has once again proven that legislative initiatives tend to be effective deflections from their ongoing failures to address human rights abuses against Indigenous peoples. Bill C-92: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (2019) was heralded by the Assembly of First Nations (AFN) and the federal government as the solution to the “humanitarian crisis” of First Nations children in foster care. The AFN in particular pushed hard for the legislation to pass in Parliament, despite widespread opposition and protests from First Nations from all over Canada. First Nations legal and child welfare experts also warned Parliament that C-92 did not align with Canada’s political promises and could in fact make things worse. They were right.
NO STATUTORY GUARANTEE OF FUNDING
There are many substantive problems with C-92, but the most obvious is that there is no statutory guarantee of funding for First Nations in the legislation. In other words, there is no judicial right that a First Nation could use in court to force federal compliance in relation to funding under the Act. This concern was raised and effectively ignored by the AFN in its push to have the bill pass into law — all while federal officials were assuring First Nations that funding would follow. As expected, funding did not follow and to make matters worse, it looks like the federal government used C-92 as an attempt to insulate itself from the orders of the Canadian Human Rights Tribunal (CHRT).
The federal government has confirmed that it does not consider itself to be bound by CHRT orders to end racial discrimination in funding against First Nations children in foster care, once First Nations assume jurisdiction under C-92.
“Since (Bill C-92) falls outside the scope of the CHRT orders, the CHRT orders will not apply to a First Nation that has assumed jurisdiction.”
Federal officials further clarified that:
“There is no funding stream for the long-term operationalization of an Indigenous governing body’s law once they begin exercising jurisdiction.”
This confirmation comes from the federal government’s response to questions posed by the First Nations Child and Family Caring Society in their ongoing litigation at the CHRT. Canada is effectively telling First Nations: Sure, you can assume jurisdiction over housing, education, health care and child and family services; but if you do, your funding will be cut or reduced. Oh, and by the way, you assume all the liability.
The whole point of the CHRT’s original decision was for Canada to stop racially discriminating against First Nations children in foster care and their families. One of the primary reasons why First Nations children are apprehended and placed in foster care at such high rates is due to the purposeful, chronic and racially discriminatory underfunding of essential social services for First Nations — like child and family services. Ironically, one of the most striking pieces of evidence in the CHRT hearing came from the government’s own internal documents that confirmed that federal underfunding leads to higher rates of First Nation child apprehensions. Yet Canada continues to underfund child and family services and all services like housing, health care, education, water and mental health services like suicide prevention on reserve. It is no coincidence then, that First Nations have the worst socioeconomic conditions of all groups in Canada.
TRANSFER OF FEDERAL LIABILITY
This follows a similar pattern in federal legislative initiatives over the last few decades, where under the guise of addressing a breach of Indigenous rights, they instead use legislation to deflect from the matter and find ways to insulate itself from liability and/or transfer federal liability to First Nations. Bill C-3: Gender Equity in Indian Registration (2011) was supposed to end sex discrimination against First Nations women and their descendants in Indian registration. Instead it created new discrimination and in s. 9 insulated itself from any legal claims by those Canada had discriminated against for decades. Similarly, in Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur general) (2017), Canada once again failed to address all forms of sex discrimination and via s. 10 purports to insulate itself from liability for the discrimination endured by First Nations women and their descendants.
In enacting legislation, even in relation to First Nations, the federal government should always be assumed to be acting in the best interests of the Crown first, despite its fiduciary and other legal obligations to First Nations. C-3 and S-3 are just two legislative examples of explicit insulation of liability from Canada’s own wrongdoing. Another example is the Safe Drinking Water for First Nations Act (2013), which has done little to remedy ongoing the lack of clean drinking water and sanitation on all First Nation reserves but helped deflect media attention away from the crisis. Yet the legislation creates more problems than it solves including the creation of new ways to imprison First Nations members who breach the water laws; ensure federal laws are paramount over First Nation laws; and the inclusion of s. 11 which purports to limit liability for both the provincial and federal governments.
“DRAW DOWN” JURISDICTION?
In this context, it becomes apparent that First Nations who “draw down” jurisdiction under C-92 may be assuming significant financial and legal liability without corresponding legal protections and guaranteed, long-term needs and rights-based financial supports. Take a scenario where a First Nation band member is receiving federal support for health needs for their children under Jordan’s Principle and then the band assumes jurisdiction. What happens to the funding support for this First Nation band member and their children if — as the federal government has confirmed — they will not be bound by CHRT orders to provide funding to First Nations for critical programs like Jordan’s Principle (a child-first policy that is meant to ensure First Nations children have access to the same government services that other children do)? Does the member seek funding from the First Nation and if so, how will the First Nation provide this funding if the federal government ends Jordan’s Principle funding to First Nations under C-92?
The AFN has a lot to answer for in its support of C-92 without ensuring the free, prior and informed consent of First Nations, and worse, for forging ahead when so many First Nations leaders and First Nation child welfare experts were against the legislation as it read. First Nations who have given notice or are contemplating giving notice that they want to “draw down” jurisdiction over child and family services under C-92 are likely shocked to hear these concerning revelations by the federal government. This is not something the government shared during review of the bill or has included in their information packages online.
“TRUST US” MANTRA IS NOT ENOUGH
Were it not for the ongoing legal actions by the First Nations Child and Family Caring Society to hold the federal government to account to comply with CHRT orders, we might not know the gravity of the funding situation. Canada must now answer for this bad faith funding shell game to undermine the basic human rights of First Nations children. The “trust us” mantra is not enough when the issue is the ongoing genocide of First Nations. It is long past time for full transparency and to stop ducking its human rights obligations to First Nations children and families.
Imagine living in a country, where hospitals refused to treat you for a stroke, because the doctors and nurses assumed you were drunk? Imagine further, that the emergency room doctor refused to treat your young child for epilepsy, because they assumed she was on drugs? Well folks, that country is Canada.
It doesn’t sound like the Canada you know. It doesn’t seem to reflect Canada’s world-renowned medical experts and hospitals. Nor does it seem to jive with Canada’s impressive array of human rights protections. Yet, if you are Indigenous in Canada, you can expect this kind of treatment and worse – even in Canada’s best hospitals in British Columbia (BC).
Just before the holidays, a report was released which confirmed what most Indigenous peoples already knew – that racism against Indigenous peoples, especially First Nations peoples – is widespread in BC’s healthcare system.
IN PLAIN SIGHT
The report entitled – In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in B.C. Health Care – was written by Dr. Mary Ellen Turpel-Lafond who was the first, First Nations judge appointed to the Provincial Court of Saskatchewan; was the former Child and Youth Advocate in BC; and now the independent investigator for this report.
She had been appointed by BC’s Minister of Health to conduct a review of racism against Indigenous peoples in BC’s healthcare system. Dr. Turpel-Lafond and her Indigenous-led team engaged in four months of investigations, which included:
talking to 9,000 people from BC;
reviewing 185,000 data sets including more than 900 studies; and
logging 600 cases via their 1-800 number and website.
The report – which includes both its core findings and recommendations – contains numerous examples of Indigenous peoples given substandard medical treatment or no treatment at all in hospitals and healthcare facilities of all kinds. In some cases, individuals were treated so poorly, that they refused to go back for treatment and this was especially true for Indigenous women.
There were 11 main findings divided into (a) the problem of Indigenous-specific racism and (b) the problem with current solutions – both of which provide significant insight into the lack of accountability for racism and the harm it causes Indigenous peoples in BC’s healthcare systems.
Her main findings in relation to anti-Indigenous racism were as follows:
Widespread Indigenous-specific stereotyping, racism and discrimination exist in the BC healthcare system;
Racism limits access to medical treatment and negatively affects the health and wellness of Indigenous peoples in BC;
Indigenous women and girls are disproportionately impacted by Indigenous-specific racism in the healthcare system;
Current public health emergencies magnify racism and vulnerabilities, an disproportionately impact Indigenous peoples and
Indigenous health care workers face racism and discrimination in their work environments.
She also noted that talking about anti-Indigenous racism in healthcare can be very triggering for Indigenous peoples who have experienced the physical and mental harms associated with racist comments, substandard treatment or the denial of treatment. At the same time, she also stressed that the issue must be named, so that institutions can be held to account and the problems addressed.
STEREOTYPES
Dr. Turpel-Lafond shared the eight most common racist stereotypes held by BC healthcare workers about Indigenous peoples (primarily First Nations, and include that belief that they are:
(1) Less worthy of care;
(2) Drinkers/alchoholics;
(3) Drug-seekers;
(4) Bad parents;
(5) Frequent flyers – misuse health system;
(6) Irresponsible & wont do aftercare;
(7) Less capable; and
(8) Unfairly advantaged.
RACISM CAUSES REAL HARM
She also stressed that these racist stereotypes lead to real physical harm, mental harm and even death for Indigenous peoples, in the following ways:
(1) Unacceptable personal interactions – like racist comments;
(2) Long wait times/denial of service – more so than non-Indigenous patients;
(3) Lack of communication/shunning Indigenous patients;
(4) Not believing or minimizing health concerns – Indigenous peoples accused of faking;
(5) Inappropriate or no pain management – assuming patients are drug seeking;
(6) Rough treatment – like man-handling or physical harm;
(7) Medical mistakes & misdiagnosis – assuming patients drunk and not addressing underlying health issues; and
(8) Lack of respect for cultural protocols – intolerance of families or ceremonies.
The significant harms experienced by Indigenous peoples on a regular basis are why the report’s recommendations on how to move forward to address anti-Indigenous racism in BC’s healthcare system are so important. At their core, the recommendations all work to confronting the legacy of colonialism in healthcare head on:
“A basic awareness has grown that the current inequities and injustices faced by Indigenous peoples in Canada – such as those examined in this Review – are deeply rooted in an enduring legacy of colonialism, and that confronting that legacy requires substantive, transformative change.”
MOVING FORWARD
It is important that Canadians read this report and then push governments, hospitals, universities and all those working in the healthcare system, in any capacity to embrace their role in reconciliation and ensuring that the human rights of Indigenous peoples to healthcare are respected, protected and fully implemented. To do this, Dr. Turpel-Lafond believes that our collective path forward must be based on acknowledging and accepting three foundational principles:
(1) Racism in healthcare reflects a lack of respect for Indigenous rights to health;
(2) Racism in the healthcare system is integrated with racism in society; and
(3) While Indigenous voices must be centered in developing solutions, the responsibility to do this work rests with non-Indigenous people, communities, organizations and governments.
Before anyone breathes a sigh of relief that this is only a BC issue – it isn’t. Anti-Indigenous racism in healthcare is rampant in other provinces as well. It was only weeks ago, that Quebec came under fire when a video showed nurses saying racist and hateful comments to Joyce Echaquan before she died in the hospital. This was not an isolated incident but reflects a long-standing pattern of racism experience by Indigenous peoples in Quebec hospitals.
Don’t forget the Brian Sinclair inquiry in Manitoba, which documented how the hospital staff ignored Brian – a double amputee confined to a wheel chair – for 34 hours until he subsequently died of a treatable urinary tract infection. And sadly, these are not exceptional cases. From the Royal Commission on Aboriginal Peoples in 1996 to the Truth and Reconciliation Commission’s report in 2015 and the National Inquiry into Missing and Murdered Indigenous Women and Girls report in 2019 – racism in healthcare is a national crisis and has been for decades.
HEALTHCARE IS A HUMAN RIGHT
Racism in healthcare is a matter of life and death for Indigenous peoples and forms part of the ongoing genocide that the National Inquiry talked about in their report.
It was important for the BC government to undertake this investigation and accept the findings. Every other province and territory should follow suit and conduct a similar investigation. While it is important that BC’s Minister of Health Adrian Dix apologized and committed to take action – it is yet to be seen whether they will take the action needed to hold themselves accountable, make the required changes and make reparations to Indigenous peoples. Given the many reports sitting on government shelves gathering dust – it is incumbent on Canadians to do their part to ensure governments are held to account.
Healthcare is a basic human right and we are all served when we take steps to make sure that all peoples – including Indigenous peoples – can enjoy that right.
(Picture credit: Taken from the front over of the report In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in BC Healthcare, 2020).
