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Pam Palmater

Tag: AFN

  • Canada’s Shell Game on C-92 Funding

    Canada’s Shell Game on C-92 Funding

    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.

    https://fncaringsociety.com/publications/caring-society-submissions-re-non-compliance-motion-feb-3-2021

    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.

    This article was originally published by The Lawyer’s Daily on Feb. 8, 2021, part of LexisNexis Canada Inc. Some edits have been made for style and to include references.

  • First Nations and the Business of Cannabis

    First Nations and the Business of Cannabis

    This article was originally published in The Lawyer’s Daily on Sept.25, 2019 -(see link below)

    Justin Trudeau’s 2015 election platform promise to immediately legalize marijuana if elected spurred a frenzy of activity behind the scenes. There were police officers, politicians and other former leaders, previously against the sale of the drug, making plans for their own cannabis boutiques. The very same people that had previously outlawed, arrested and jailed people for growing, possessing and/or selling cannabis would now have the unfair insider advantage about where to sell and to whom.

    In the chaotic positioning that played out behind the scenes by those “in the know,” very little attention was given to the full legal implications of Bill C-45, the Cannabis Act.

    The failure to properly engage First Nations about the legalization of cannabis was not only irresponsible policy making but was also a lost political opportunity to work on a nation to nation basis with First Nations — one of Trudeau’s other campaign promises. Trudeau, who had also pledged to respect Aboriginal and treaty rights and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), failed to sit down with First Nations and come up with a comprehensive cannabis legalization plan that would not only address legalization (manufacture and sale), but also the thousands of Indigenous peoples in jail or with criminal records for cannabis offences.

    Further, in neglecting Canada’s legal obligation to enact laws which are consistent with the Aboriginal rights contained in s. 35 of the Constitution Act, 1982, it missed the chance to harmonize federal, provincial and First Nations jurisdictions and laws in relation to cannabis. This void has created the potential for not only legal conflict, but for political and social tensions at the local level.

    Take for example, the situation in Ontario. Premier Doug Ford’s Conservative government has decided to proceed to license cannabis sales by way of a lottery. Only a small number of licences are targeted for First Nations distributors on reserve and none for First Nations peoples and businesses located off reserve. In every way, Ontario’s cannabis lottery scheme offends Aboriginal and treaty rights, as well as First Nations’ inherent sovereignty and jurisdiction over their own lands, peoples and businesses.

    Ontario’s plan presumes that provincial jurisdiction trumps First Nation jurisdiction — which is not the case. Both the 1997 Inherent Right Policy which confirmed that s. 35 includes and protects the right of First Nations to be self-determining, and Trudeau’s commitment to respect First Nation governance rights should have resulted in much more comprehensive legislation. UNDRIP, which is the standard by which United Nations treaty bodies will hold Canada to account, protects the Indigenous right of self-determination which includes governance, lawmaking and enforcement, as well as the management of Indigenous economies within their traditional territories (i.e. not limited to the reserves).

    These unresolved spheres of jurisdiction between First Nations and the provinces have already created confusion on the ground with some First Nations enacting their own laws, some ignoring provincial laws and others choosing to allow or ban cannabis on reserve as a governance decision.

    In still other First Nations, without any First Nation law in place, and according to the long-held legal and political position that provincial laws should not apply on reserve, many individuals have started their own cannabis businesses. This is putting a strain on some First Nations who felt not only excluded from cannabis policy development, but were not resourced to develop laws, policies and enforcement frameworks about First Nation-owned businesses versus individual businesses.

    Much of the First Nation critique also included concerns about the lack of time and resources to develop health and safety plans for each First Nation. While there are some exceptions, in general, much of this legal, economic and social co-ordination remains outstanding.

    What is worse is that Trudeau’s failure to work collaboratively with federal, provincial and First Nations jurisdictions created a political gap in which non-government entities, like the Assembly of First Nations (AFN), could step in and start stirring the pot.

    More than a year after the passing of the Cannabis Act, the AFN held a Cannabis Summit to talk about the implications of cannabis legalization. Their summit targeted federal and provincial government representatives and agencies, as well as First Nations. It was no surprise then that Day One of the summit saw the chief commissioner of the so-called First Nations Tax Commission (FNTC) on the agenda trying to persuade First Nations to submit to federal tax regimes for cannabis.

    The FNTC is a Crown agency, fully governed and staffed under federal laws and regulations. The inclusion of the word “First Nation” in the title is really misleading. The goal of the federal government, through the FNTC, has always been to get First Nations to tax themselves and give up their reserve lands and turn the lands into individual fee simple parcels (i.e. provincial jurisdiction).

    This brings us full circle back to the legal and political confusion at the local level which, on the one hand, is clearly the result of Trudeau’s failure to harmonize all legal systems and jurisdictions in Canada, but also the fault of the AFN.

    The AFN waited nearly four years to have this summit — which appears conveniently timed so as not to make any waves for the Trudeau government before the legislation was passed. We saw very little public advocacy for First Nation governments to be part of the policy development around legalization and thus, in the eyes of many, the AFN failed its job as an advocacy organization. The result? The AFN shares responsibility for this legal void as well as the thousands of First Nations peoples who are languishing in jail, on parole and subject to conditions and/or unemployable due to past cannabis offences which have not been pardoned or fully expunged from their records.

    Once again, First Nations peoples at the local level pay the price and receive few of the benefits. Far from delivering on his promise to fully legalize cannabis, Trudeau controlled and commodified the cannabis trade which seemed to benefit insider entrepreneurs and left the full decriminalization of cannabis for another day. In the end, there were no political waves from the AFN with regards to federal legalization.

    On the positive side, more and more First Nations leaders have engaged with their citizens and are in the process of enacting or have already enacted their own rules and regulations related to cannabis. Many have realized that they are on their own in terms of defending their jurisdiction to govern their own economies. They are in fact the rights holders and waiting around for the AFN to encourage Trudeau to harmonize laws is clearly not on the agenda. As with every other right ever proven by First Nations and reaffirmed in court decisions, the right to govern the cannabis business will have to be lived, asserted and defended by First Nations on the ground.

    This article was originally published in The Lawyer’s Daily on Sept.25, 2019: https://www.thelawyersdaily.ca/articles/15506/first-nations-and-the-business-of-cannabis-pamela-palmater?spotlight

  • Bill C-91 An Act Respecting Indigenous Languages: More Hollow Reconciliation

    Bill C-91 An Act Respecting Indigenous Languages: More Hollow Reconciliation

    There is no doubt that pre- and post-confederation governments in what is now known as Canada have developed policies, enacted laws and regulations, and engaged in practices that have had as their primary objectives: (1) to acquire First Nation lands and resources and (2) to reduce financial obligations acquired through treaties and other agreements with First Nations. Their primary methods have been to eliminate and/or assimilate “Indians”. Elimination took the forms of small pox blankets, scalping bounties, murders, starvation rations, and forced sterilizations. Attempts at forced assimilation took place in the form residential schools, forced adoptions (60’s scoop), and the Indian Act which outlawed certain cultural practices and created a legislative extinction date for First Nations. The impact of these laws, policies and practices have been nothing short of genocidal. The specific impact to First Nations languages have been devastating. The majority of the 70 different First Nation languages are at risk of extinction. The federal government would have us all believe that have moved on from this so-called legacy of the past and have transitioned into a period of reconciliation. The former Conservative Prime Minister Stephen Harper apologized in Parliament for the harms of residential schools: Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country. (PM Stephen Harper) Yet, following this apology, the Conservative government made staggering funding cuts to First Nations and First Nation organizations; and reduced the funds available for First Nation languages. Harper’s empty apology meant that the majority of First Nation languages would continue to be at risk of extinction. However, Harper’s decade of doom was followed by the welcome election promises of the current Liberal Prime Minister Justin Trudeau who promised to undo all the harms of the previous Harper government, including the repeal of legislation imposed on First Nations during Harper’s era. Trudeau also promised to implement all the Truth and Reconciliation Commission’s (TRC) Calls to Action and in particular, committed to legislate the formal recognition of Indigenous languages as an Aboriginal right and provide sufficient funding. Where he went wrong was in partnering with an Aboriginal organization – the Assembly of First Nations – to do this work, instead of working with the rights-holders: First Nations and their language experts. What has resulted is Bill C-91 An Act Respecting Indigenous Languages – legislation bountiful in flowery wording and empty on substantive rights. Not the best way to start off 2019 – the year of Indigenous Languages. Bill C-91 was introduced and had its first reading by the Minister of Canadian Heritage and Multiculturalism Pablo Rodriguez, on February 5, 2019. The bill went to second reading on February 20, 2019 and was referred to the Standing Committee on Canadian Heritage on the same day. Therein lies the first problem – that this bill is sponsored by the Minister of Canadian Heritage and Multiculturalism and being studied by the Standing Committee on Canadian Heritage. First Nation rights are not a matter of Canadian heritage or multi-culturalism. First Nations are not comparable to minorities or ethnic groups. First Nations are the original sovereign Nations of the territories on which Canada now sits with their nation-based laws, customs, practices, governments, economies, trading networks, and military alliances. Their status as sovereign Nations was undisputed and is the reason why treaties were signed. Nations only sign treaties with other Nations – not with subjects, citizens or cultural groups. First Nations were not then, nor are they now mere cultural groups. Trudeau had promised to work together with First Nations on a Nation-to-Nation basis in a way that recognizes First Nation rights and work in partnership, instead of the usual paternalistic, top-down approach. Yet, Bill C-91 is exactly that – top-down legislation drafted with the advice of the AFN, but not the First Nation rights-holders themselves. Worse than that, the bill is not a recognition of the official status of First Nation language rights or a guaranteed minimum level of funding. It reads more like a carefully worded, overly broad, vague set of theoretical aspirations than any legal commitment one could enforce. Even the Indigenous Languages Commissioner as set out in the bill is appointed by, paid by, and can be removed by, Canada; with powers limited to research and advocacy. This is a real missed opportunity for Trudeau who could have worked with First Nations language experts and designed legislation to truly protect First Nation languages and take real steps to undo the devastation done by federal laws and policies. Although there are many problems with the wording in every section of this bill, and there are many legal problems raised with said wording, I have five core concerns. First, there is no specific recognition of First Nation languages as official languages, nor is there a specific First Nation language right that is actually granted or recognized. The bill merely references rights “in relation to” Indigenous languages, but this could mean one’s personal right to speak a language versus the right to receive government services on one’s language, for example. Secondly, there is no specific recognition of First Nation jurisdiction or powers in relation to First Nation languages. The Minister of Canadian Heritage and Multiculturalism retains all powers in relation to the bill and any future regulations. My third concern is that there is no specific or firm commitment in relation to funding. The bill provides that the Minister will “establish measures to facilitate the provision” of funding. However, establishing “measures” is not a direct commitment for a specific funding amount or a commitment to whom this funding will flow. This relates to my fourth concern, that the bill promotes a pan-Aboriginal approach that is not First Nation-specific and appears to put other broadly-defined “Indigenous groups” on the same level as First Nations. Under this bill, funds could flow to anyone who incorporated an organization and claimed to be Indigenous – despite their lack of status as actual rights-holders within a specific First Nation territory. Finally, this bill appears to utilize the same federally-controlled legislative framework concept for rights definition, limitation and scoping. Trudeau already had to back away from the federal rights recognition framework already rejected by numerous First Nations and First Nation organizations. Of particular concern is the federal government’s intention to establish a “framework” that is intended to define, limit and determine the scope of the language rights to be exercised, how and by whom, by way of negotiated agreements. While the AFN and the Metis National Council have come out in support of the bill, the Inuit Tapariit Kanatami have been very critical of it, explaining that they feel Canada acted in bad faith, that is not Inuit-specific, and does not protect Inuit language rights. “The absence of any Inuit-specific content suggests this bill is yet another legislative initiative developed behind closed doors by a colonial system and then imposed on Inuit.” (President Natan Obed) It is important to remember that legislation is not legally required for the federal government to provide services in Indigenous languages or to provide funding to First Nations for Indigenous languages. One should always be weary of a government bearing gifts in the form of legislation, as it usually comes with federal control, provisions which limit First Nation rights, and can ultimately be amended or repealed at the will of government. The TRC Calls to Action, the Royal Commission on Aboriginal Peoples, and the United Nations Declaration on the Rights of Indigenous Peoples all provide support for legal recognition and financial support for First Nation languages. That being said, for those First Nations who support federal legislation to enhance the political and legal commitment to First Nation languages, the key moving forward will be in the wording. To make this legislation more helpful than harmful, substantive amendments will be required. Given the speed at which Parliament is moving the study of this legislation, it is unlikely that the majority of First Nations, their representative organizations, and language experts will get their 10-minute opportunity to present to the Standing Committee on much-needed amendments. Perhaps once the bill reaches the Senate, they will embrace their role as the “sober second thought” of government and slow down the process enough to hear from First Nation experts and consider meaningful amendments – assuming there still is a Liberal government after the SNC-Lavalin scandal. * Image is official United Nations logo for the 2019 International Year of Indigenous Languages. **A more detailed analysis to follow.

  • Indigenous Inquiry [into murdered and missing Indigenous women and girls] a Slow Motion Implosion

    *(Originally published in the Lawyer’s Daily on August 8, 2017- edited)

    When the draft terms of reference of the National Inquiry into Murdered and Missing Indigenous Women and Girls were leaked to the media in the summer of 2016, many families, advocates, experts and communities were upset that there would be no investigation of the police — either their mishandling of individual files or their behaviour.

    This omission was a shock to most since police racism and abuse was raised at every pre-engagement session conducted by Indigenous Affairs seeking input into the inquiry’s mandate. Families and advocates immediately responded by writing open letters calling on the federal, provincial and territorial governments to ensure that police handling of individual files and police behaviour would be included in the final terms of reference. Despite their strenuous advocacy, the final terms of reference specifically excluded any review of individual files or police conduct.

    Since the launch of the inquiry in September 2016, it has been in slow motion implosion. The inquiry has been criticized for its numerous and lengthy delays, its failures to communicate with the families and its continued failure to provide information about schedules, logistics, process, or budgets. The Native Women’s Association of Canada raised the issue that their phone calls to the inquiry were not answered or returned and were instead redirected to Indigenous Affairs — leading some to question the objectivity of the inquiry.

    Then, one by one, the inquiry saw the resignations of some of its most senior staffers, including Michèle Moreau, the executive director; Chantale Courcy, director of operations; Tanya Kappo, manager of community relations; and Sue Montgomery, director of communications (the first, Michael Hutchinson, had been terminated). Several former staffers, speaking under condition of anonymity shared their concerns that the inquiry was lacking leadership and direction, and egos and power struggles have left it dysfunctional.

    The recent resignation of one of the commissoners, Marilyn Poitras, makes chief commissioner Marion Bulller’s strenuous denial of significant problems in the inquiry, look blatantly detached from the seriousness of the situation. This is especially true when her own fellow commissioners are resigning, admitting they haven’t done their jobs and that the inquiry is in “crisis mode.”

    To this end, an open letter was sent to the inquiry by a collective of Indigenous women, advocates and impacted family members calling for action and offering assistance. Others tried phone calls, e-mails and in-person meetings to try to get the inquiry back on track, with little obvious impact.

    https://nbmediacoop.org/2017/05/16/open-letter-to-chief-commissioner-marion-buller-on-the-national-inquiry-on-missing-and-murdered-indigenous-women-and-girls/

    The continued lack of action on the part of the inquiry led many prominent advocates, Indigenous leaders and concerned families to call for a hard reset of the inquiry — which included calls for new commissioners, extended timelines, additional budget and  improved terms of reference.

    Manitoba Keewatinowi Okimakanak (MKO) Grand Chief Sheila North Wilson, representing northern Manitoba First Nations, called for the current commissioners to resign and let the inquiry reset for the benefit of the families — a call shared by many. A hard reset is not without precedent as the Truth and Reconciliation Commission also struggled in the beginning and was reset with new commissioners and it was better for it. The issue of residential schools deserved a proper inquiry just as the issue of murdered and missing Indigenous women and girls deserves a competent, independent fulsome inquiry that has the time and resources necessary to address the core issues — which includes a review of individual files and police conduct.

    The issue of a hard reset also divided the chiefs at the most recent Assembly of First Nations (AFN) annual general assembly in Regina. Numerous family members attended the AFN assembly to plead with the inquiry’s commissioners to resign and reset the inquiry. The chiefs were deeply divided on the issue of reset but all seemed to agree that the inquiry was plagued with problems and recommended numerous improvements.

    Commissioner Buller’s statements prior to the chiefs’ vote that she would not resign regardless of the outcome of the vote, arguably created an adversarial relationship between Indigenous peoples and the inquiry. Many family members are saying that the inquiry has “already failed” and this division among the leaders and families on how to fix the broken inquiry is itself evidence that the inquiry lacks the trust it needs to do its job.

    Equally as concerning were the developments at the AFN assembly, where chiefs and families who wanted to address their concerns about the inquiry met with or spoke to Indigenous Affairs Minister Carolyn Bennett. Bennett was also quick to support the chiefs at the AFN in their calls for a soft reset of the inquiry.

    This inquiry is supposed to be independent of the federal government, yet by all appearances it is the federal government pulling the strings. The inquiry itself then scrambled to put together a press release on the very same day that families were calling for a hard reset of the inquiry claiming they will now review police conduct and individual files.

    This release has caused greater confusion because the inquiry is both empowered and limited by the terms of reference agreed to by the federal, provincial and territorial governments which specifically excluded the review of open or ongoing individual files (which for murdered and missing Indigenous women and girls are many) and police misconduct. Any information related to these matters must be referred back to police — the very same institutions that did not handle the files properly to begin with or that failed to take action against racist, abusive or sexually violent police officers. Misleading the families this way in order to avoid more calls for a hard reset is a huge injustice to the many families and communities who are relying on this process in good faith.

    What is clear despite all the confusion and dysfunction, is that a hard reset is required or it risks becoming like Wally Oppal’s Missing Women Commission of Inquiry where large numbers of witnesses pulled out of the inquiry and the resulting report lacks any credibility. The Ontario Native Women’s Association has already pulled out of the inquiry and many others may follow suit if the inquiry is not addressed. Canada owes the families and communities better if the prime minister meant what he said that there is no relationship more important to Canada than the one with Indigenous peoples.

    *The link to the article as originally published in the Law360 Canada.

    Please check out my related video on my Youtube Channel: https://www.youtube.com/watch?v=X3fZXfTsf60&t=2s

  • 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

  • #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 4th 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

     

     

     

  • The Emperor’s New Clothes: First Nation CONTROL of First Nation Education Act?

    Today Prime Minister Stephen Harper, Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt and National Chief of the Assembly of First Nations (AFN) Shawn Atleo announced “re-tooled” education legislation. It should be pointed out that despite all the hype leading up to this announcement, there is no actual legislation to scrutinize. So, what did First Nations get from this announcement?

    http://www.pm.gc.ca/eng/news/2014/02/07/first-nations-control-first-nations-education-act

    The Prime Minister explained that this legislation is an agreement between Shawn Atleo of the AFN and Harper’s government. For Harper, this is about filling the labour shortage with Canada’s fastest growing population – First Nations – not about addressing socio-economic conditions imposed on First Nations through Canada’s archaic funding formulas which purposefully and chronically under-fund First Nations in comparison to provincial residents.

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

    He also referenced the many employers who sat in the audience ready to hire and train high school students. We all know from past announcements this means hiring First Nations to be the pick and shovel labourers for mining companies and other extractive industries. This is about creating a new kind of dependence for First Nations – dependence on labour jobs from extractive industries to undermine attempts by their leaders to defend their territories and the resources on them.

    Minister Valcourt also stated that they are looking at this legislation through an “economic lens” and not a treaty or inherent right lens. Therefore, the inherent right to be self-determining and exercise our own jurisdiction over education does not play into this legislation. He reconfirmed that Atleo was instrumental in the agreement which will ensure “stable and predictable oversight” by the federal government. He further noted that this legislation is about “Canada”. The Conservative government is not hiding their intentions here: it is assimilation into the body politic as they have stated over and over again.

    During the brief question period, Harper confirmed that the legislation was about the deal he struck with Atleo – uniform standards, curriculum and accountability. Atleo didn’t really say much of anything to add to the announcement. It looked more like a political endorsement of the Harper Government for their 2015 election than anything else. One lone woman stood up and stated that AFN and Harper did not consult with all First Nations and that she stood as a Treaty 6 person in objection to the legislation. The protestors on the ground were not permitted inside, so we could not hear their voices.

    Here’s a quick look at today’s “promises”:

    (1) There will be legislation, with a new name, but not shared today;

    (2) The regulations will be drafted later;

    (3) The focus of the legislation will be on provincial training, provincial rules, provincial certification, provincial curriculum and provincial standards (emphasis on provincial);

    (4) The legislation will impose “transparency and accountability” on First Nations as opposed to give First Nations any real control;

    (5) There will be funding, but not until 2015 and/or 2016 (after Harper’s term);

    (6) The funding will not be based on need or in line with the treaty right to education. Instead, an “elevator” (a.k.a. “cap”) will be placed at 4.5%; and

    (7) There is nothing to address the funding crisis in First Nation post-secondary education.

    It should be noted that nowhere in the announcement was there any description of whether this funding was “new funding” in addition to the current core funding; whether it is re-purposed monies from education or other programs that have been cut; or how this funding will be accessed by “non-willing partners” – i.e., those First Nations who reject the legislation.

    This appears to be more about deflecting the nasty publicity around the increasing litigation and human rights claims being brought by First Nations in relation to discriminatory funding in areas like education, housing and child and family services. The future funding promised after Harper’s term could evaporate as easily as the Kelowna Accord did when the Liberal term ended. A promise about future money, doesn’t educate First Nations kids now.

    None of it is really new. This announcement is just re-packaging of old promises that have taken years to come to fruition:

    (1) Election platform – promised adult education and skills training (note announcement yesterday on skills);

    (2) AFN-Harper Joint Action Plan – promised national panel on education

    (3) Crown-First Nation Gathering – promised national panel

    Then came the national panel to which AFN agreed, despite the objections of about half the First Nations in Canada. Saskatchewan, Ontario and Quebec pulled out of the national panel process and submitted their own reports in an unprecedented protest against AFN’s unilateral actions.

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

    This was followed by numerous AFN resolutions from the Chiefs in Assembly telling Atleo NOT to talk education legislation with Harper. And most will not forget Idle No More’s rallying cry against the suite of legislation intended to be imposed on First Nations. AFN heard them and proceeded anyway. Atleo said he “respected their views” and proceeded anyway. This led to a large number of First Nations wanting to pull out of the AFN and set up their Treaty Alliance to protect their treaties. All this and Atleo still forges this deal with Harper.

    The promise of future funding is being used as a carrot to gain support for legislation that has not even been shared with First Nations yet. They are hoping that we are desperate enough to support this plan before we can see the army inside the Trojan Horse.

    This is really about tricking First Nations into voluntarily turning their treaty right to fully-funded education into a program privilege that is subject to federal legislation, control and budgets. Even without treaties, First Nations have internationally protected rights to be self-determining, they have specific jurisdiction over their own education and a right to funded education.

    This proposed legislation is meant to strike down any attempts at litigation against discriminatory funding – which they likely wish they could do with Cindy Blackstock’s case against discriminatory funding in Child and Family Services.

    This is just another delay tactic. While we sit in meetings, the natural resources are removed from our territories. While we negotiate announcements, Justice Canada drafts the details of our surrender.

    Had the Emperor actually looked at what his tailor had sewn for him, he’d have realized that he wasn’t wearing any clothes, despite the fact that people he trusted told him how wonderful he looked.

    It’s always our choice. We can choose to say no. Canada does not need legislation to properly fund education. Remember what was promised today: nothing. But we stand to lose a great deal in supporting this legislation. Recognize First Nation jurisdiction over education. Implement the treaty right to education. Properly fund First Nation education. Say no to FNCFNEA.

  • Eyes Wide Shut: Chasing Section 35 and Ignoring the War

    Ok, so it’s been four months since the Assembly of First Nations (AFN) election for National Chief and the honeymoon period is officially over. I simply can’t stay silent any longer about where we are and where we are headed as First Nations. If we don’t take action now, even if that means speaking out and risking unity, then it is our First Nations citizens on the ground who will be the ones who continue to suffer from our political inaction. Harper’s aggressive actions since the election more than proves Harper’s real agenda – to once and for all eliminate the “Indian problem” – and it’s do or die time for us. http://indigenousnationhood.blogspot.ca/2012/09/harpers-indigenous-manifesto-erasing.html With respect, I take serious issue with any claim that there was “momentum” between Harper and First Nations prior to the Crown-First Nation Gathering (CFNG) that has suddenly withered since the AFN election. There was no momentum on any key issue of importance to grassroots First Nations peoples or First Nation leaders. Every single action Harper is pursuing against us right now, he started well over a year ago. It seems incredulous that NC Atleo would all of sudden decry the flurry of federal legislation being imposed on our First Nations when the majority of these bills were introduced into the House or Senate prior to either the CFNG or the AFN election. Don’t forget, mention of some of these pieces of legislation were made at the CFNG in Harper’s speech – I didn’t hear Atleo say anything about it then. http://www.cbc.ca/news/canada/story/2012/11/15/pol-cp-first-nations-atleo-harper-letter.html Similarly, with the substantial funding cuts to First Nation political organizations and those being implemented now at the individual First Nation level – we KNEW that this was Harper’s plan. This was not a shock to the AFN. The problem was never lack of knowledge, instead it was a complete failure to have a strategic action plan in place. That is not to say AFN could have single-handedly reversed those funding cuts, but for weeks since their announcement they had weak to no response. It is only now that there seems to be some outcry from the National Chief. But outcry or not, where is the plan? http://metronews.ca/news/canada/434784/atleo-pitches-plan-to-move-beyond-indian-act/ This is where things get progressively worse – Atleo’s new “plan” would have us locked into decades-long self-government negotiating processes which would indebt our First Nations by millions of dollars and trap us there, lest we want to be put into third party management for failure to pay. What about the First Nations citizens on the ground? Where is the plan for the current housing and water crisis? Our people need to have at least the basic necessities of life – where are their voices and priorities reflected? True, some First Nations are doing fairly well on some fronts, but we cannot ignore the multiple over-lapping crises right before our eyes. Many of our people are suffering from homelessness, over-crowding, lack of water, sanitation, food insecurity, the theft of their children by child and family services at alarming rates, many murdered and missing Indigenous women and the over-imprisonment of our men, women and youth. How much worse does it have to get before we shift our focus back to our peoples? http://indigenousnationhood.blogspot.ca/2012/10/indigenous-nations-urgent-situation.html Has AFN even thought about what a section 35 agenda would mean? First of all, it is focused on Canadian law and interpreted by Canadian judges. It should be no surprise then that the majority of the Supreme Court of Canada (SCC) cases have followed a very specific pattern: (1) They always specifically or indirectly protect Canada’s sovereignty; (2) They arbitrarily make up new sui generis (unique) law to ensure our rights can squeeze into Canadian law versus any recognition of our own laws; (3) The cases transform First Nations from sovereign Nations and governments to cultural entities frozen in pre-contact times that must be reconciled with Canadian sovereignty; (4) Whenever a principal or finding goes in our favour, it will inevitably be limited, redefined and reduced to an almost unusable right in subsequent cases. Take for example, the Indian priority in Sparrow which came second only after conservation. In Delgamuuwk, our priority sank to last after every other possible priority including: agriculture, forestry, mining, hydroelectric power, environment, infrastructure and settlement. (5) The section itself requires the extensive, costly litigation of our rights on a right by right, species by species and First Nation by First Nation basis. Many of these cases take decades to resolve and even once they hit the SCC, it is not uncommon for them to send the case back to trial. Even then, we are the only group subjected to re-hearings like in Marshall II which substantially altered the original court win. So, what is it about section 35 that offers an alternative to the current situation? Do they not realize that First Nations are the only entities with real sovereignty here? Canada knows this and is desperately buying up the rest of our lands through claims and securing its own sovereignty agreement by agreement. Canada is slowly piecing together their ownership and sovereignty, and some of us are allowing them to do that. I am not saying that they have offered any alternatives, but we don’t have to accept what they thrown down. In order to speed up the process Canada will introduce the First Nation Property Ownership Act so we can surrender the last of our lands. What about any of this is a plan forward? Atleo’s “plan” also calls for a National First Nations Auditor – seriously? That is nothing more than trying to please the government’s obsession with trying to make all First Nations look corrupt.Try selling that as a solution to a northern Ontario First Nation whose school is falling apart; or a flooded Manitoba First Nation whose residents have been displaced for many months; or a Saskatchewan First Nation whose water is contaminated. Who cares about another national First Nation entity which will benefit the CEO, its few employees and serve a relatively minor number of First Nations. Think of the First Nations Tax Commission, the First Nations Statistical Institute, and all those other “national” organizations located in British Columbia. We don’t need a First Nation bureaucracy on top of the massive Indian Affairs bureaucracy we have now. We are not one nation of people – we are many Nations with our own sovereignty(s). We have laws and governance systems which makes us strong Nations. We need to act on that strength, in different ways, in different territories, and according to our own laws and priorities. If we can’t stay focused on living and acting on our sovereignty everyday, then we’ll be easily led down the colonizer’s path of chasing “equality”, “section 35”, and other government carrots – while missing the war going on around us. Make no mistake, our peoples are the casualties in this war and things are growing steadily worse on all socio-economic fronts. The status quo is killing our people and has been for quite some time. The problem is that Harper has changed the status quo and things are about to get much worse. http://pi.library.yorku.ca/ojs/index.php/crsp/article/viewFile/35220/32057 Unbelievably, the AFN only now appears to be realizing that Harper’s full-blitz attack on First Nations has some “potential for harmful impacts”. This means that nationally, we are way behind in this war. The AFN has had many opportunities to take a stand over the last few years and has failed to do so each time. That is not to say that individual regions or First Nations have not been raising the alarm bells – in fact, some had to very publicly withdraw from Atleo-Harper education plan in order to preserve their treaty and inherent rights. There are also thousands of First Nation community members who want to see their leaders lead and are willing to stand behind their Nations – but they need to be inspired to action. There can be no more delays – we need action. Our peoples deserve better than our fear, hesitancy and wilful blindness to their suffering. We cannot chase Canada’s section 35 illusion with eyes wide shut. Harper is presenting us with a false choice: Indian Act or assimilation and some of us have fallen into the trap of letting him define our options. We need to take stock of where we have been, the situation we created by allowing this to happen, own it, and move forward. None of us as individuals have all the answers – but we are lucky, we still have the strength of our collective Nations to stand beside us. Let’s do this for our peoples and our Nations.  “When it comes to confronting our imperial realities some of us want to reform colonial law and policy, to dull that monster’s teeth so that we can’t be ripped apart so easily.” “Some of us believe in reconciliation, forgetting that the monster has a genocidal appetite, a taste for our blood and would sooner tear us apart than lick our hands.” “I think that the only thing that has changed since our ancestors first declared war on the invaders is that some of us have lost heart against history and against those that would submit to it.” “I am with the warriors who want to beat the beast into bloody submission and teach it to behave.” (Excerpt from: Taiaiake Alfred, Wasase: Indigenous Pathways of Action and Freedom (Toronto: University of Toronto Press, 2005).

  • AFN Election 2012: Stopping the Assimilation of First Nations in its Tracks

    After we all heard the National Chief (NC) of the Assembly of First Nations (AFN) Shawn Atleo give his speech at the Crown-First Nations Gathering (CFNG), it became readily apparent that the 2012 election campaign for the AFN NC had officially begun. Up to this point, Atleo had done little but sing the praises of the Harper Conservatives (Cons). It looked like Atleo and the AFN were following in the political footsteps of former President of the Congress of Aboriginal Peoples (CAP) Patrick Brazeau and hedging their bets that sucking up to the bully would yield better results than standing on our inherent rights. Two things about this “strategy” (if you can call it that): (1) it may have won Brazeau  a cushy Senate seat (an immediate, individual gain), but it left the grass-roots off-reserve people with nothing but an indebted organization with a horrific reputation as being the mouth piece of the Cons with an anti-First Nation political slant (long-term, community pain); and (2) the organization itself never gained anything in terms of major budget increases, political concessions from the Cons; nor did it advance the rights and interests of off-reserve Aboriginal peoples in any measurable way. I would have thought, that after all the criticism launched by the AFN at CAP for being so critical towards First Nations peoples, that the AFN itself would never walk down that same political path. Yet, it appears that Atleo, in an attempt to distance himself from former NC Phil Fontaine and make his own mark, decided that selling our souls to the devil would help him do that. It is a naive political strategy that demonstrates Atleo’s inexperience in high-stakes politics. He decided to support the Cons as opposed to the Liberals & NDP and decided to follow Harper down his assimilation path instead of participating in concrete social action or stand in defense of our peoples and communities. Atleo with all his “education” made it his mission to support education – but in a way which ignored the concerns of the treaty chiefs and the many concerns of the grass-roots First Nations peoples. This led to a major rift in the AFN and left regional First Nation organizations with no choice but to publicly denounce Atleo’s process. The Federation of Saskatchewan Indian Nations (FSIN), the Chiefs of Ontario (COO), the Quebec First Nations and more recently the Assembly of Manitoba Chiefs (AMC) all stand against Atleo’s rogue politics. To understand the significance of this rift, one must understand how important unity has been for the AFN. The National Indian Brotherhood (NIB) (now AFN) and First Nation politics in general were galvanized in the 1970’s when First Nations all across the country were faced with the Liberal’s 1969 White Paper which would have abolished the Indian Act, reserves, treaty rights and Indians. The First Nations united in their opposition and defeated the most brazen attempt to assimilate our peoples into oblivion. Since then, the power of unity has defeated the Meech Lake Accord, the First Nations Governance Act, and has also brought attention to our unresolved land issues and discrimination in various Canadian laws. The power of this unity is not to be underestimated. Atleo, in a few short years has all but destroyed this unity and has, in essence, gone rogue. While Harper exercises fierce dictatorial control over his MPs and uses the politics of fear to control citizens, Atleo  instead opts for a more Lone Ranger approach with similar results. Atleo is advancing his own agenda and according to many Chiefs, he is doing so without properly consulting them. This is a different claim than had Atleo been simply disagreeing with them. The political charge is that he is off making deals, cozying up to Harper, and agreeing to things like National Panels and CFNGs without consulting with the people he is supposed to represent. This sort of politics is not only ineffective (look at the growing rift), but it seems to me, to be in direct conflict with the AFN’s own Charter. http://www.afn.ca/index.php/en/about-afn/charter-of-the-assembly-of-first-nations Article 3(a) specifically states that the AFN is supposed to be in the business of “harmonising effective collective and co-operative measures”. Agreeing to a national panel on education without consulting with First Nations is not conducive to harmonizing or unifying First Nations on education. In case this is not clear enough, one need only refer to Article 21 (1) which specifically states that “The National Chief shall have no inherent political authority”. So, what power does the NC have? Any power he has is detailed in Article 21(2) “Any authority the National Chief may have shall derive exclusively and entirely from authority granted from time to time by the First Nations-in-Assembly”. It seems to me then, that Atleo agreeing to a national panel on education, and agreeing to a Joint Action Plan all before seeking the specific direction of the chiefs sounds like he has his own political agenda. The CFNG action plan read like the 1969 White Paper assimilation plan using modern words. Atleo has, in a few rogue steps, turned the Assembly of First Nations into the Assimilation of First Nations. http://indigenousnationhood.blogspot.ca/2012/02/war-and-peace-illusions-of-partnership.html If what a large number of chiefs are alleging is true, then Atleo has exceeded his political authority and it’s time for him to be removed as NC. Even if what they are alleging is not true, the future of First Nations in Canada depends on removing Atleo from office and re-focusing our political strategies and priorities away from one based on federal control and our ultimate assimilation. First Nations chiefs will have their chance to voice their concerns at the upcoming AFN AGM which will be held in Toronto this July 2012. Here is the timeline: – 10 weeks before the AGM, an electoral officer will be appointed. – 8 weeks before the AGM, the electoral officer will assume office. – 4 weeks before the election, the electoral officer must submit the names of the candidates for NC to all Chiefs; – 1 night before the election, he/she must arrange an All Candidates Forum for the AGM; – The election takes place on the 2nd day of the AGM starting at 9 am. Here are some of the rules relating to the election for NC: (1) Candidates must submit their nomination papers to the Electoral officer no earlier than 8 weeks prior to the election and no later than 5 weeks prior; (2) Each nomination form must be signed by at least 15 Chiefs and at least 8 of them must not be from the same province as the candidate; (3) In order to be eligible to be a candidate, you must be at least 18 years old, of First Nations ancestry and belong to a First Nation which is a member of the AFN. (4) Candidates can not spend more than $35,000 for election purposes and must submit a statement of expenses and names of contributors; NOTE – The Electoral officer can disqualify any candidate who does not participate in All Candidates Forum or does not file expenses; (5) Chiefs can send proxies to vote in their place; (6) Anyone who receives less than 15 votes is automatically eliminated; The winner must receive 60% of the vote and if he/she does not, then the candidate with the lowest vote is automatically eliminated and another vote takes place. Chiefs can go through many rounds of voting to obtain the 60% majority. So, what does all of this mean for the grass-roots community members? None of us get to vote in these elections. So, what are our options? I think the more we make ourselves aware of what the AFN is doing in our names, the better we will be able to put pressure on our own Chiefs on how to vote. For many years, in many First Nations, Chiefs have been deciding who he/she votes for as NC without ever consulting with the community. It is time for us to make a change and exercise our voices again. While it is painfully obvious that I do NOT support Atleo in the upcoming election, it is important to note that I do not and will not be publicly supporting any candidate that chooses to put their name forward. I think candidates need to stand on their own past records, their ability to lead and inspire our peoples, and the quality of their election platforms. In other words, I do not believe we should support candidates based on who endorses them. This becomes a popularity contest instead of one which is based on traditional leadership virtues. If we have learned anything from the Cons dictatorship-style politics, is that we do not want to mimic their politics. That being said, I am always happy to talk to any candidate who wants to know what I think about their platforms. I think the candidates would be well-advised to talk to lots of people, from a variety of backgrounds, about their platforms and start getting their direction from the people again. If a candidate wants to make AFN relevant, their platforms will have to speak to us – the grass-roots people – as much as they speak to the Chiefs. Free hint: Any platform that is written to speak to the Cons will be as useless as Atleo’s. There are lots of rumours going around about who might put their name forward at this year’s election, but we will all have to wait and see who is officially confirmed by the electoral officer. Doug Cuthand, a columnist for the Star Phoenix talks about a couple of these potential candidates: http://www.thestarphoenix.com/news/Treaty+treaty+natives+must+work+together/6201621/story.html At the end of the day, it is all just rumour and possibility until the candidates sign on the dotted line and get their nominations from their 15 chiefs. As the candidates are announced, I will definitely keep track of their platforms and offer commentary on their strengths and weaknesses as they role out. I will also be trying to find out as much as I can about their past political experiences; their individual track records; their political stance and where they stand on specific issues that matter to me, my family, community and Nation. It is my belief that we as First Nations people should all have a vote as to who will be the AFN NC. However, even though I am not permitted to vote, I will still try to have an impact on the results. I think we all have the power to make this election different. That is not to say that I promote the AFN as “the” vehicle or voice of First Nations, as that inherent authority rests with each Indigenous Nation. However, I do believe that the NIB used to serve a very powerful political and advocacy role in highlighting First Nation issues, bringing international attention to bear, and advocating at the national political level. There is no doubt that AFN has fallen off track in a major way and I don’t blame individuals for thinking it is useless and even harmful. I think it is doing far more harm to us now than good. If it stays this way, I will continue to advocate against it. I think the AFN has the potential to be a useful organization once again but so long as it caters to the will of its funders, it will be no more and no less than what Brazeau was for CAP – the mouthpiece of the Cons. In other words, the AFN will continue to be the First Nation enforcer of the Cons assimilation policies. There are those who think they have political savvy that believe we need to make concessions to make stave off mass budget cuts or further control over our communities. In case they forgot, treaties were our concessions and the Cons are bringing budget cuts and more legislation to control our communities. This political “strategy” based on fear is no plan at all. Our people, our territories and our futures are not for sale and I am not willing to trade my inherent rights for ANY organization. AFN has a choice – it has to be relevant to First Nations or it will fade into oblivion like CAP did. In case any of the 600+ Chiefs can’t attend the AFN AGM and election, and they are looking for someone to be their voting proxy, try sending one of our million grass-roots folks.

  • INAC’s “Expert” Panel on First Nation Education – Big Bucks, Zero Results

    Back in December of 2009,  Indian and Northern Affairs Canada (INAC) (as it then was) announced that it would be putting together an “expert” panel on First Nations education and that the Assembly of First Nations (AFN) would have some say over the mandate of the panel and the appointment of its members. The members of the panel were expected to be announced in early 2011 with a view to having a report in mid-2011. http://aptn.ca/pages/news/2010/12/09/govt-afn-launch-panel-to-study-education/ Up until this announcement, I had seen no call for proposals from INAC and no call from the AFN for educators to put their names forward for consideration. Then, on February 20, 2011 out of the blue, we see a notice posted on the MERX website that three individuals had already been chosen for the panel and were to be paid $200,000 EACH plus hst for a three month contract that was due to end July 31, 2011. http://www.merx.com/English/SUPPLIER_Menu.Asp?WCE=Show&TAB=1&PORTAL=MERX&State=7&id=214289&src=osr&FED_ONLY=0&ACTION=&rowcount=&lastpage=&MoreResults=&PUBSORT=0&CLOSESORT=0&hcode=gltUDmepFZnIFIhHGp3Jiw%3D%3D The contract was awarded without tender because INAC felt that no one else other than the three people chosen would be as “uniquely qualified” to conduct a national panel on First Nation education. The three chosen were: (1) David Hughes, CEO of Pathways to Education Canada, who was chosen to be the Chair of the panel, (2) George Lafonde, former Vice-Chief of Saskatoon Tribal Council; and (3) Caroline Krause, who described the present post-secondary funding system for First Nations as “corrupt” and thus offered her “unequivocal support” for Calvin Helin’s report “Free to Learn” which advocated for giving education funds directly to students and skip bands altogether. It is no surprise then, how she came to be regarded as an “expert” or chosen for this panel. http://www.macdonaldlaurier.ca/files/pdf/FreeToLearn.pdf This “blue ribbon” panel was to study the issue of First Nation education (once again) and come up with substantive recommendations. Their contracted mandate included the following: (1) They will be responsible to conduct face-to-face and online engagement activities across Canada to hear from First Nation leaders, parents, students, elders, teachers, provinces, and others with an interest and a view on how to enhance the education system and outcomes of First Nation learners at the elementary and secondary levels. (2) This will entail organizing and leading eight regional roundtables across Canada and one national roundtable and having key meetings with other stakeholders. (3) Based on work, the Panel will provide a summary following each roundtable, a progress report to the Minister of INAC and to the National Chief of the Assembly of First Nations mid-way through the process, and they will submit a final panel report with recommendations by July 31, 2011. The report was to be tabled at the AFN’s national assembly in July which is to be held in Moncton, NB this year. This panel received instant criticism from Chiefs all over the country but national Chief Shawn Atleo asked Chiefs to work with this panel despite their concerns. http://aptn.ca/pages/news/2011/03/03/blue-ribbon-education-panel-quietly-unveiled-draws-immediate-fire/ Despite ongoing concerns expressed by many Chiefs, the AFN stood by the Conservatives and encouraged chiefs to participate. Some chiefs were so upset with AFN that they wanted to meet without AFN present. http://aptn.ca/pages/news/2011/04/07/chief-wants-quebec-fn-gathering-without-afn/ Once can hardly blame their feelings given the lack of action on education – which has been a crisis issue since the 1950’s, if not earlier. Yet, we are already at June 23, 2011 and from what I understand, there has not been a single community meeting or engagement session held to discuss any of the important issues around First Nation education. This makes me wonder whether it is even possible for this expert panel to have a report by July 31, 2011 and if so, how such a rushed report would be worth the paper it is written on? Perhaps $200,000 per person was not enough financial incentive to have them conduct any of the work? This money will no doubt be added the the billions already spent on the bureacracy that “manages” First Nations. Then, last night on APTN National News, it was reported that David Hughes, the Chair of the expert panel had resigned. There was no information reported about whether he had been paid any of the $200,000 under the contract, whether and to what extent he had done any of the work or when he had resigned. Again, no announcement was made by either the AFN or INAC (now ANAC). Ironic that the very government who set up a panel that will make recommendations on how First Nations need to be more accountable with education funding is not very transparent or accountable with its own funds. http://aptn.ca/pages/news/ What should have been considered an embarrassing fiasco for both INAC and the AFN was turned into a National Aboriginal Day “announcement” that an expert panel on First Nations education was “set to begin”. In fact, it was reported that the panel might start as early as “this week”. Downplaying the resignation of the former Chair David Hughes, it was quietly noted that the new Chair is now Scott Haldane, the President of the YMCA. Atleo explained that the goal was to have a report sometime “this calendar year” and was promising real “action”. Is it just me, or are we all being presented with smoke and mirrors instead of seeing any real accountability by INAC or the AFN? It boggles my mind that the AFN would continue to prop up the Conservatives when clearly they are not taking any action on our critical issues. In fact, APTN reported that INAC was NOT committing to any action on education and Minister Duncan said INAC was not prepared to simply “write a blank cheque” to address funding inequities. I think it is time for the Conservatives to practice what they preach and start showing us some accountability. I also think its time for our real leaders to step up and start calling INAC on their sustained lack of action. Here are some of the questions I want answered: (1) Was any money paid out under the original MERX contract that was due to be completed on July 31, 2011? If so, how much? (2) Has a new contract and/or extension of the old contract been made with the current panelists? If so, what are the terms and how much is it for? (3) If there is a new contract and/or an extension of the old one, why would we enter into yet another contract and/or an extension of the current contract when the original objectives of the first contract were not completed? (4) What is the real reason why the former chair of the panel resigned? Who choose this Chair and why? (5) Did the AFN really have any say in the decision to create a panel, the madate of the panel and the membership? Really? Did Atleo choose another non-First Nations person as the chair? Finally, why is the AFN keeping us in the dark about this critical issue for our people and propping up the Conservatives instead of holding them to account? First Nation leaders are staring to speak up, grass roots citizens are expressing their concerns – is anyone listening? This situation is starting to look eerily familiar to the CAP-Brazeau affair. While that may have won Brazeau a Senate seat, it did little for the grass roots Aboriginal people who most needed someone to stand up for them. Trying to cover up a fiasco on First Nation education on National Aboriginal Day has to be one of the most insulting things INAC or the AFN could do to First Nations. I think we deserve a little better than that. At least the Auditor General thought so…… http://www.oag-bvg.gc.ca/internet/docs/parl_oag_201106_04_e.pdf How many more studies do we need to be certain that there is an issue in First Nation education? How many more Auditor General’s have to confirm INAC funding inequities before funding is increased? How much more of this will we allow to happen before the real leaders step forward?