Warrior Life Studios

Pam Palmater

Tag: Aboriginal title

  • Clearing the lands has always been at the heart of Canada’s Indian Policy

    Originally published in The Globe and Mail on February 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.

    View article (PDF) Genocide, Indian Policy, and Legislated Elimination of Indians in Canada

    Reconciliation: The goal is the same

    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.

    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.

    Canada breaches its own “Rule of law”

    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.

    Read article: Mi’kmaw treaty rights, reconciliation and the ‘rule of law’

    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: Clearing the lands has always been at the heart of Canada’s Indian Policy. The blog version has been slightly edited for style and the addition of resources.

  • True Test of Reconciliation: Respect the Indigenous Right to Say No

    True Test of Reconciliation: Respect the Indigenous Right to Say No

                                    (Image from Unistoten Camp) *This article was originally published in Canadian Dimension Magazine on May 15, 2018. Conflict is coming. There is no getting around that fact. Anyone who believes that reconciliation will be about blanket exercises, cultural awareness training, visiting a native exhibit at a museum or hanging native artwork in public office buildings doesn’t understand how we got here. Reconciliation between Canada and Indigenous peoples has never been about multiculturalism, diversity or inclusion. Reconciliation is not an affirmative-action program, nor is it about adding token Indigenous peoples to committees, advisory groups or board rooms. We cannot tokenize our way out of this mess that Canada created. Real reconciliation requires truth be exposed, justice be done to make amends and then Canada’s discriminatory laws, policies, practices and societal norms be reconciled with Indigenous rights, title, treaties, laws and jurisdiction. That process of truth, justice and reconciliation will be painful. It requires a radical change. Nothing less than the transfer of land, wealth and power to Indigenous peoples will set things right. The true test of reconciliation will be whether Canada respects the Indigenous right to say ‘no.’ Canadian courts have been issuing decisions about Aboriginal rights and title and treaty rights, sending the strong message to governments that they must obtain the consent of Indigenous peoples before taking actions or making decisions that will impact our lives. Governments have not listened. Canada’s failure to listen is one of the reasons why Indigenous peoples spent more than 25 years negotiating the United Nations Declaration on the Rights of Indigenous Peoples which guarantees the right of Indigenous peoples to free, prior and informed consent. Article 19 of UNDRIP provides: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Consent is a legal concept which can be defined as the voluntary acquiescence of one person to the proposal of another. In general, it is the right to say yes or no to something and/or put conditions on an agreement. Consent must be free from misrepresentations, deceptions, fraud or duress. This is a very basic right, but one which has been denied to Indigenous peoples since contact. Take for example, the actions of Indian agents and police, who used food rations to extort sex from Indigenous women and girls. In the context of being forced to live on reserves, not being allowed to leave the reserve and being dependent on food rations, what real choice would a young girl have? Similarly, when police officers or judges detain Indigenous women and girls, drive them to secluded locations and force them to perform sexual acts — there is no real consent when the threat of lethal force or arrest on false charges is ever-present. This is especially so given our knowledge of the number of assaults and deaths of our people in police custody. There was no consent when they stole our children and put them into residential schools, nor was there any consent when priests, nuns and others raped those children. There was no consent when doctors forcibly sterilized Indigenous women and girls — sometimes without their knowledge. Today, the right of Indigenous peoples to free, prior and informed consent has become the central issue in Canada’s reconciliation agenda. Justin Trudeau campaigned on the promise of implementing UNDRIP into law and respecting the right of Indigenous peoples to say no. When asked by APTN host Cheryl McKenzie whether no would mean no under his government, he responded “absolutely.” Another way of putting this is that Indigenous peoples could exercise their legal right to refuse to approve or authorize a project. This veto right stems from various sources, but primarily our inherent rights as Indigenous governments with our own laws and rules which govern our traditional territories. They may also come from specific Aboriginal rights, treaty rights and Aboriginal title. These rights are not only protected within our own Indigenous laws, but also section 35 of Canada’s Constitution Act, 1982 and various international human rights laws, including UNDRIP. Yet, after Trudeau announced his latest idea to create a legislative framework to recognize Indigenous rights and avoid litigation, Justice Minister Raybould stated clearly that “consent doesn’t mean a veto” for Indigenous peoples. So, we are now back where we started. Canada has not yet reconciled its laws, policies or political positions to the fact that Indigenous peoples have the right to say no to development projects on our lands. This means that conflict will continue to grow over mining, forestry, hydraulic fracking and pipelines on Indigenous lands. The true test of reconciliation will inevitably play out on the ground, like it did in Oka, Ipperwash, Gustafsen Lake, Esgenoopetitj (Burnt Church) and Elsipogtog. Will Canada force the Kinder Morgan pipeline to go ahead against the will of British Columbia and First Nations? Will Canada isolate and exclude First Nations who do not subscribe to the extinguishment requirements of Canada’s land-claims process? What will happen to First Nations who stop provincial social workers and police officers from entering their reserves to steal more children into foster care? This will be the real test of our inherent right to say no. Canada will only truly give effect to reconciliation when Indigenous peoples have the right to say no — no to discriminatory government laws and policies; no to federal and provincial control over our Nations; no to racism from society, industry and government; no to sexualized violence, abuse and trafficking; no to theft of our children into foster care and the imprisonment of our peoples; no to the ongoing theft of our lands and resources; and no to the contamination and destruction of our lands, waters, plants, animals, birds and fish. The right to say no is the core of any future relationship with the Canadian state and its citizens. It’s a basic right — one which is grounded in our sovereignty as individuals and Nations to decide for ourselves the life we wish to live. Canada has made it clear we have no right to say no, only an obligation to say yes. First Nations leaders and citizens should not wait to see how this plays out in court – they should assert and defend their right to say no now. *This article was originally published in Canadian Dimension Magazine on May 15, 2018 at this link: https://canadiandimension.com/articles/view/true-test-of-reconciliation-respect-the-indigenous-right-to-say-no

  • The Indigenous right to say no

    The Indigenous right to say no

                                         (photo by Michelle Girouard)

    This article was originally published by The Lawyer’s Daily on October 12, 2018.

    The federal government recently announced that it will not appeal the court decision which quashed Canada’s approval of the Trans Mountain pipeline expansion. Instead, Canada will engage with the 117 impacted First Nations in a consultation process led by former Supreme Court of Canada Justice Frank Iacobucci.

    If ever there was a sign that the government was going to force this pipeline expansion through the review process, this is it. After all, federal elections are just around the corner and Liberal Prime Minister Justin Trudeau has become the face of the Trans Mountain pipeline dispute and all the broken promises that it entails.

    Being criticized from all sides — the provinces, industry, Canadians and Indigenous peoples, and now the Federal Court of Appeal — Trudeau decided to bring out the big guns: Iacobucci.

    There is little doubt that he was engaged to lead this process to ensure that the technical aspects of consultations are met, thus insulating the government from an appeal of its decision. Even the most trusting person would be hard pressed to believe that the Supreme Court of Canada (SCC) would hear an appeal about Iacobucci’s consultation process let alone consider it in a truly neutral fashion.

    Even if I am wrong about this, what kind of message does this send to First Nations who have been taking their cases to the SCC in the hopes of fair and impartial consideration for decades? Will they now wonder if their cases will be heard by justices who, after they retire will work with governments against their interests?

    Remember that conflict of interest is not only the presence of an actual conflict, but also reflects the appearance of conflict. Justice Canada describes judicial independence as the “cornerstone of the Canadian judicial system” and refers to the clear separation of government and the courts. While some might argue he is no longer a sitting justice and may be perfectly legal and ethical according to the rules of ethics of the federal government and even law societies — it still doesn’t feel right. In law school, we learned that lawyers are duty bound to uphold the honour of the legal profession while at work and in our personal lives — even after retirement.

    To my mind, Iacobucci carries with him the honour of Canada’s highest court in all his actions, even after retirement. While this may not be a legal ethic issue, it is certainly a moral one. With all due respect, joining the federal side of this pipeline dispute feels a lot like taking sides against First Nations. It feels like a betrayal.

    This is a similar story of betrayal that many First Nations feel when the RCMP takes the side of government in every single conflict between government laws and Aboriginal rights. The mandate of the RCMP is to not only prevent crimes and maintain peace and order, but also enforce laws.

    According to Canadian law, the Constitution is the highest law in the land. In theory, First Nations should be able to seek the assistance of the RCMP to protect their constitutional rights from being breached by governments or industry. Instead, the RCMP seems to always abide by the will of government and stop us from exercising our rights and/or provide physical protection and security for the extractive industry to allow them to breach our rights.

    The government is using these national institutions, the RCMP and the courts, against us to force the expansion of this pipeline. The RCMP arrested land and water defenders in B.C. and now a former SCC justice will be used to insulate Trudeau’s future approval of the pipeline expansion.

    Therein lies the real injustice of this process. Regardless of whether the new consultations are led by a former SCC justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

    Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word consent. When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with the woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

    The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

    The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the SCC would not interpret their own decisions in such an impoverished manner. To do so would render s. 35 an empty shell of a constitutional promise.

    No former SCC justice should take part in such an exercise as between Canada and First Nations. I think the honourable thing for the former justice to do would be to withdraw from the process. It might just help even the playing field in a game which is already skewed by a major imbalance of power.

    The link to the original article published by The Lawyer’s Daily on October 12, 2018

    https://www.thelawyersdaily.ca/articles/7537/the-indigenous-right-to-say-no-pamela-palmater?category=opinion

    We should also be able to exercise our right to say no to Trudeau’s proposed legislative framework that will impact our rights: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s

  • It’s up to Indigenous, environmental groups to protect the public interest

    This article is Part 2 of a 2-part series which was originally published in The Lawyer’s Daily on September 17, 2018. The link to Part 1 which was published Sept.11, 2018 is provided below.

    Despite objections from some of the Indigenous groups about the consultation process, the Federal Court of Appeal (in Tsleil-Waututh Nation et al. v. Canada (Attorney General) 2018 FCA 153) held that Canada acted in good faith and that the consultation framework it used was appropriate.

    This was a four-phase process which was to include (1) early engagement, (2) NEB hearing, (3) governor-in-council consideration and (4) regulatory authorization processes.

    Where Canada fell down was in Phase III of the consultation process in that it did not meaningfully consider the concerns of the Indigenous groups or attempt to accommodate or mitigate those concerns. There was no substantive discussion about Indigenous rights and the FCA found that federal officials did little more than act as “note-takers”. The court agreed with the Indigenous groups that Canada’s notes, referred to as the Consultation Chronologies, “should be approached with caution” for failing to accurately present the facts.

    When pressed by Indigenous groups for a response, federal officials merely repeated the line that they would deliver their concerns to the decision makers. When it finally did come time for a response, Canada informed the groups that it was bound by the recommendations of the NEB and that it was in effect, powerless to add any more conditions on the project. A surprising response given the fact that the FCA had already decided in the Gitxaala Nation case (Gitxaala Nation v. Canada 2016 FCA 187) that under the current legislative scheme, the only decision maker was in fact the governor-in-council and not the NEB.

    The Department of Justice is the largest law firm in Canada, working exclusively on behalf of the federal government — it had no excuse for its “erroneous position.” The FCA held that the duty to consult is not met by the mere exchange or discussing of information. Consultation has to focus on constitutionally protected rights and in so doing Canada is obligated to “substantially address the concerns of the First Nation” (from Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69. This coupled with the fact of Canada’s late disclosures, lack of responses, failure to provide more time and “closed-mindedness” frustrated the consultation process. It is Canada’s actions or lack thereof which is why the Federal Court of Appeal overturned its decision.

    So, what now? Well, this is far from over. The FCA has ordered that the decision is quashed and the approval must go back to the governor-in-council for reconsideration. As part of that reconsideration, the GIC must refer the NEB’s recommendations back to the NEB. Canada must also redo its Phase III consultations and accommodations before the GIC can reconsider the approval for the pipeline expansion.

    Of great concern is Prime Minister Justin Trudeau’s comments that Canada is considering the possibility of an appeal of this decision or legislation to force the pipeline project through.

    Whether Canada chooses to abide by the decision or not, what we know for sure is that Canada will forge ahead with the pipeline despite the fact that the impact of a tanker spill on the southern resident killer whales would be “catastrophic” and “there were no direct mitigation measures that Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers”. Perhaps Tahlequah (the female southern resident killer whale who recently carried her deceased calf for 17 days) was mourning for all us.

    However, there is a new complication to Canada’s pipeline plans. Six conservation groups, including the Raincoast Conservation Foundation, Ecojustice, David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defence Council and the World Wildlife Fund have filed a lawsuit in Federal Court seeking an emergency order to protect the southern resident killer whales.

    Indigenous peoples will also have to decide how to proceed to protect their lands, waters and the other life within their territories which depends on a healthy eco-system — including killer whales.

    What we know for sure is that we cannot count on either federal or provincial governments to put the health of peoples, lands, waters, plants or animals ahead of the money to be made from the extractive industry. As the FCA held, the public interest and the duty to consult with Indigenous peoples are not in conflict. To the contrary, the violation of the “constitutionally protected rights of Indigenous peoples cannot serve the public interest”.

    Looks like it is up to Indigenous peoples and environmental allies to protect the public interest and our collective futures — including Tahlequah’s and the future of her pod.

    This article is Part 2 of a 2-part series that was originally published in The Lawyer’s Daily on September 17, 2018.

    https://www.thelawyersdaily.ca/articles/7326/it-s-up-to-indigenous-environmental-groups-to-protect-public-interest-pamela-palmater?category=opinion.

    The link to Part 1 which was published Sept.11, 2018 is at this link:

    https://www.thelawyersdaily.ca/articles/7294/killer-whales-trans-mountain-pipeline-and-the-public-interest-pamela-palmater?category=opinion

    My Youtube video on this issue provides more detailed information about the case.

    https://www.youtube.com/watch?v=7HQfOctnT7o

  • Killer Whales, Trans Mountain Pipeline and the Public Interest

                      This article is Part 1 of a 2 part series which was originally published in The Lawyer’s Daily on September 11, 2018. Part 2 will be published in a few days.

    Tahlequah’s “tour of grief” which saw one of the female southern resident killer whales (referred to by scientists as J-35) carry her deceased calf for 17 days was an unprecedented show of grief for the death of her calf. It is also a sad reminder of the fact that these endangered whales have had no successful births for three years. Her visible mourning tore at the heartstrings of many Americans, Canadians and especially Indigenous peoples who know all too well the pain of losing their children. While it is not uncommon for a killer whale to hold her deceased calf for a few hours or a day, this show of extended grief was the first time observed by scientists.

    Some wonder whether Tahlequah’s actions were not a call for help given that there are only 75 whales left and the proposed increase in tanker traffic from the Trans Mountain pipeline threatens to wipe them out for good. Indigenous Nations in Canada and several conservation groups filed applications against Canada’s decision to approve the pipeline in the hopes of saving these whales and all life in the surrounding eco-system.

    On Aug. 30, 2018, Justice Eleanor Dawson delivered the decision of the Federal Court of Appeal (FCA) quashing Canada’s approval of the Trans Mountain Pipeline expansion (Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153). From the moment the decision was released, there was more shock and awe to go around than had the court pronounced that the earth was flat. While the controversy generated from that decision has been quite dramatic, the decision is far less apocalyptic than most might think.

    Ultimately, this decision to quash the approval of the Trans Mountain expansion reflected principles espoused by the Supreme Court of Canada (SCC) for the last two decades. No new law was created — it was a case which reflected the current legal status quo.

    This case — unlike the raging fires in British Columbia or the melting of the ice in the Arctic — is rather non-calamitous; unless of course you consider the fate of the southern resident killer whale or the health of the Indigenous lands and waters upon which this pipeline will wreak havoc. That is because despite the fact that the Federal Court of Appeal quashed the decision in this instance, it also set up the conditions for which the federal government can approve the pipeline in the future. So, while Prime Minister Trudeau moans about how “hurt” he is by the decision, and while the extractive industry goes into full panic mode, the only ones who need to be worried here are the Indigenous peoples and their conservation allies who will now face the full wrath of the oil industry and its federal and provincial cheerleaders.

    Here’s how it all started: On Dec. 16, 2013 (under the Harper government) Trans Mountain submitted an application to the National Energy Board (NEB) for a certificate to allow the expansion project to proceed. After several years of review, on May 19, 2016, the NEB recommended to the governor-in-council that the pipeline expansion be approved. Six months later, on Nov. 29, 2016, the governor-in-council (cabinet) (under the Trudeau government) accepted the NEB’s recommendation and issued an order-in-council to that effect. The appeals of this decision were heard at the FCA in October of 2017 and the court issued its decision almost a year later in August 2018.

    This case involves individual applications by five First Nation collectives, two of B.C.’s largest cities, and two conservation groups asking the Federal Court of Appeal to overturn Canada’s decision to approve the pipeline expansion. The respondents in the case were the Attorney General of Canada, the NEB and the Trans Mountain Pipeline company. The FCA consolidated the applications into one to be heard together.

    While the applicants made various arguments challenging different aspects of the decision-making process, the FCA determined that the only “decision” that was under review was the decision of the governor-in-council to approve the expansion. That decision was challenged on two primary grounds (1) the NEB’s process and resulting report were flawed and (2) Canada did not fulfil its duty to consult with Indigenous peoples.

    The primary reason why the FCA found that the NEB’s process was flawed was because it “unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic”. Specifically, the NEB excluded the impact of increased marine traffic on the B.C. coast on the southern resident killer whales, which are an endangered species, was not properly considered within its assessment of the impacts of the project. This is despite the fact that they had already acknowledged that the increase in large tanker traffic “would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species” and that “Southern resident killer whales are an endangered species”.

    They further acknowledged that: “… the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals”.

    The FCA noted that Project-related tankers carry the risk of significant, if not catastrophic, adverse environmental and socio-economic effects should a spill occur”. Ultimately, the governor-in-council could not rely on such a deficient report in order to make its decision.

    The other ground challenging the validity of the decision was the finding that Canada did not fulfil its duty to consult and accommodate Indigenous peoples’ legitimate concerns about the impact of the pipeline on their territories and their constitutionally protected Aboriginal rights and title.

    Specifically, the Tsleil-Waututh Nation asserted Aboriginal title to the land, water, air and marine resources. The Squamish Nation asserted Aboriginal title, Aboriginal rights, the right to be self-governing and the right to fish. The Coldwater Band asserted Aboriginal rights and title, as did the Sto:lo Collective, Upper Nicola Band and Stk’emlupsemc te Secwepemc — all within their respective territories. They had all engaged in Canada’s consultation processes despite the limited funding to participate, the brief timelines and the consistent failure of federal officials to respond to their concerns.

    In the end, the facts clearly show it was the First Nations groups who were acting in good faith, despite Canada’s less than honorable actions.

    This is the first of a two-part series.

    This article is Part 1 of a 2 part series which was originally published in The Lawyer’s Daily on September 11, 2018. Part 2 will be published in a few days. The original link for Part 1 can be found here: 

    https://www.thelawyersdaily.ca/articles/7294/killer-whales-trans-mountain-pipeline-and-the-public-interest-pamela-palmater?category=opinion

    You can also watch the CBC panel where we discussed the implications of this case:

    https://www.youtube.com/watch?v=Kutq9mleRTA&t=28s Here is the link to my Youtube video breaking down the decision: https://www.youtube.com/watch?v=7HQfOctnT7o

  • Trudeau’s Dance of Deception on Indigenous Rights

    Trudeau’s Dance of Deception on Indigenous Rights

    *Originally published in Lawyer’s Daily on February 26, 2018 (edited to include links) On Feb. 14, 2018, Prime Minister Justin Trudeau announced his plan to develop a new legislative framework called the “Recognition and Implementation of Rights Framework” intended to recognize Indigenous rights and avoid litigation. This announcement came after the incredible not guilty verdict in the Gerald Stanley murder trial — the farmer who killed Colten Boushie from Red Pheasant First Nation — and the subsequent nationwide rallies and protests by Indigenous peoples.

    There is no doubt that Trudeau was trying to deflect attention from the deep-rooted racism within Canada’s justice system — but also in his own government’s failure to take substantive action on any of the injustices facing Indigenous peoples. Despite his many pre- and post-election promises to Indigenous peoples — Trudeau has been all talk and little action.

    Aside from the opportunistic nature of his announcement, it is important to note that this is nothing new. Since his election, Trudeau has made the same core promises to recognize and implement Indigenous rights in a multitude of strategically timed announcements. He campaigned on reviewing and repealing all laws imposed on First Nations by the former Conservative government headed by Stephen Harper. He promised to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the provision of free, prior and informed consent which he confirmed meant a veto for First Nations.

    After he was elected he reconfirmed that his government would renew the nation to nation relationship based on rights recognition. However, his mandate letters to his cabinet tended to focus more on specific social programs than any rights-based agenda. Despite these very telling mandate letters, Trudeau managed to maintain the fanfare around his government’s commitments at the Assembly of First Nations’ (AFN) Chiefs in Assembly meetings in 2015 and 2016. With very similar impassioned speeches, he re-announced his government’s commitment to repeal all of Harper’s laws, review all Canadian laws to ensure their compliance with section 35 Aboriginal and treaty rights and implement UNDRIP.

    However, year after year, he has not taken any substantive steps in this direction. Therefore, when yet another announcement was made in June 2017, this time about a Memorandum of Understanding between the AFN and Canada, there was some expectation of concrete deliverables. Like all other announcements to date, the pomp and circumstance celebrating the MOU overshadowed the fact that the only hard commitment in the MOU was to meet with the AFN three times a year to talk.

    This is the well-choreographed dance used by Trudeau to make Canadians and Indigenous peoples believe that he is making great strides, “absolutely historic” advancements, or engaging in a “fundamental rethink” of the relationship with Indigenous peoples. Sadly, the AFN has become a willing partner in this deception. Had the AFN been doing its job, it would have advised First Nations not to count on the speeches and announcements, but to force hard commitments on paper. It should have been concerned that Trudeau’s legislative framework idea is yet another federal government idea, much like the creation of two Indian Affairs departments — neither of which was requested or developed by First Nations.

    We know from the Royal Commission on Aboriginal Peoples and the most recent Truth and Reconciliation Commission report that every time Canada imposes solutions on us — our lives get much worse. This announcement is no exception. Despite trying to distance himself from his father’s legacy, Justin Trudeau is covertly trying to do what his father Pierre Trudeau tried to do directly.

    In 1969, then Liberal Prime Minister Pierre Trudeau, together with his Minister of Indian Affairs, Jean Chretien released the 1969 White Paper on Indian Policy. The goal was to repeal the Indian Act, dissolve Indian Affairs, eliminate Indian status, get rid of reserves and treaties.

    There was tremendous opposition to this plan by First Nations, including protests and several official responses, including Citizens Plus — dubbed the Red Paper — from First Nations in Alberta and Wahbung: Our Tomorrows from First Nations in Manitoba. In both of these responses, First Nations said they did not want the Indian Act repealed and that any amendments had to be done with their consent. They also said that their separate status as Indians and treaty beneficiaries were to stay. Most importantly, they reconfirmed what First Nations have long said: that they need their lands, resources and jurisdictions recognized so they can rebuild their Nations. Trudeau abandoned the 1969 White Paper, but subsequent governments have never stopped trying to fulfil its objectives.

    Now, Justin Trudeau, who did not consult with First Nations nationally, has made unilateral decisions about Indigenous peoples including changing the name of the department, creating two new departments, limiting nation to nation relations to meetings with the AFN and a new legislative framework to limit Indigenous rights. We know that this legislation will limit rights because of the code words used by Trudeau during his announcement. His focus on “certainty” is a Justice Canada word used to extinguish Indigenous rights and title. His comment that this process is not about getting back what was lost — is code for no return of lands and resources or compensation for the loss of use or benefit.

    Trudeau’s confirmation that no amendments would be made to the Constitution means that no substantive recognition of Indigenous jurisdiction will be made. Finally, his focus on doing this to avoid the courts is another way of saying that he doesn’t want any more court cases upholding our rights to land and our right to decide what happens on our lands. Justice Minister Jody Wilson-Raybould made it very clear that free, prior and informed consent (FPIC) in UNDRIP “does not equate to a veto” — a stark contrast from Trudeau’s promise that FPIC “absolutely” equates to a veto.

    Trudeau’s dance of deception has the potential to gut Indigenous rights, treaties, title and jurisdiction in Canada, especially if he is permitted to ride the pomp and circumstance of these carefully worded, flowery announcements to royal assent before the next election — as he promised. Conflict is coming and the true test of reconciliation will be over our right to say no. *Link to the article originally published in Lawyer’s Daily on February 26, 2018:  https://www.thelawyersdaily.ca/articles/5976/trudeau-s-dance-of-deception-on-indigenous-rights-pamela-palmater?category=columnists Please check out my related video on Youtube discussing Trudeau’s false face speech to the UN about Canada’s relations with Indigenous peoples: https://www.youtube.com/watch?v=bI3-Vc01InQ&t=5s

    See also my related video providing a basic explanation of the federal legislative framework: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s