Warrior Life Studios

Pam Palmater

Tag: First Nations

  • 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

  • Reconciliation with Indigenous Peoples in Universities and Colleges

    Reconciliation with Indigenous Peoples in Universities and Colleges

    Reconciliation has become the buzz word of the decade ever since the Truth and Reconciliation Commission (TRC) of Canada published their report on residential schools in Canada.* The TRC, headed by (then) Justice Murray Sinclair, heard from residential school survivors, families and native communities from all over Canada about their experiences in residential schools and their lives afterwards. These schools lasted for over 100 years, with the last one only closing in 1996.

    Despite being called schools, residential schools were actually designed to separate native children from their parents, extended families and communities, for the express purposes of assimilating them into, what the TRC describes as “Euro-Christian society”. Thousands of children were starved, neglected, tortured, medically experimented on, mentally, physically and/or sexually abused or even murdered. Their experiences have had long-lasting, inter-generational impacts on many more thousands of children, grandchildren and great-grandchildren.

    The TRC offered 94 Calls to Action directed to the federal and provincial governments, churches, businesses, the media, the public at large and, specifically, universities and colleges. The report went well beyond just the 94 specific Calls to Action – it also talked about reconciliation with native peoples generally. However, as is the case with many Royal Commissions, Public Inquiries and other similar reports, many Canadians never read them. The failure to read the TRC report, didn’t stop people from taking the word “reconciliation” and literally applying it to everything they do that touches on native issues and calling it “reconciliation”. I think reconciliation has gone off track.

    To my mind, the word reconciliation should have substantive meaning; not just in the residential school context, but in the entire relationship between native peoples and the Crown. Firstly, it should be about exposing the whole truth of the genocide committed in Canada beyond residential schools. The TRC concluded that what happened in Canada was cultural genocide, but more than that, it was also physical and biological genocide. Canada needs to come to terms with that. It needs to come to terms with genocide in all of its forms, both historic and ongoing.

    Secondly, reconciliation is about Canada taking full responsibility for this genocide.There should be no diminishing the experiences of survivors; no making excuses; no trying to justify what happened; no using semantics to try to downplay the atrocities committed; and no denying any of the harms suffered by native peoples. In any discussion about reconciliation, we should be centering the voices of the survivors and not the perpetrators, just like the TRC did.

    Lastly, we can never get to real reconciliation without Canada making a real apology – not a court ordered apology, or carefully worded political apology approved by Justice lawyers. I mean a real apology where Canada:

    (a) accepts responsibility for all of its actions and consequences; 

    (b) promises never to do it again, and in fact, doesn’t do it again; 

    (c) makes full amends for ALL of the harms done – which may include compensation, but is not               limited to compensation.

    Canada, in general, seems think that a political apology, coupled with meager monetary compensation and some commemoration is enough to ask all of us to move forward. There is a real problem with moving forward when the whole truth has yet to be exposed. If moving forward means skipping over the rest of the truth and focusing on superficial acts, like renaming National Aboriginal Peoples’ Day to National Indigenous Peoples Day, then we are very far away from reconciliation.

    It is also incredible that Canada could even fathom moving forward when it has failed to stop the harms from continuing. For example, while the last residential school closed in 1996, this was followed by the 60’s scoop forced adoptions of native children into white families all over the world. That was then followed by the crisis of of over-representation in foster care. There are more native children stolen from their parents, families and communities today, than at the height of residential schools. In fact, the crisis of over-representation in foster care has even been acknowledged as a “humanitarian crisis” by federal officials. 

    When I say Canada, I want to be clear that I am talking about federal, provincial, territorial and municipal governments for sure; but also churches, Canadian citizens, mainstream media, corporations, businesses, universities and colleges. Every single person and institution in Canada has benefited from the genocide and dispossession committed against native peoples  – either directly or indirectly. That makes lots of people uncomfortable to hear, but it is the reality. Most people have long thought that the so-called “plight” of native peoples was the responsibility of government alone – often willfully blind to their own roles.

    Universities, colleges and training institutes in particular, have benefited directly from the dispossession of native peoples from their lands and sometimes benefited directly from Indian monies held in trust by the Crown. They have long excluded native peoples as faculty and administrators, while at the same time educating countless generations of Canadians and international students a sanitized version of both history and the present. Native voices and realities has been erased by universities for many decades. While it is very positive to see many universities and colleges embracing the TRC report and taking concrete steps to advance reconciliation, it has become very clear that there is a fundamental misunderstanding about what reconciliation really means in a university context.

    The TRC called on universities and colleges to undertake the following:

    Call to Action #16 – Create Aboriginal language degrees and diploma programs;

    Call to Action #24 – Medical and nursing schools to provide a mandatory course dealing with            Aboriginal health issues, which includes skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism;

    Call to Action #28 – Law schools to provide a mandatory course in Aboriginal people and the law with required skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism;

    Call to Action #65 – Social Sciences and Humanities Research Council (SSHRC) and post-secondary institutions and educators establish a national research program with multi-year funding to advance understanding of reconciliation; and

    Call to Action #86 – Journalism programs and media schools provide mandatory education for all students on the history of Aboriginal peoples.

    However, it must be kept in mind that reconciliation goes well beyond those specific Calls to Action. Universities and colleges have a long way to go to address their role in the dispossession and oppression of native peoples – both historic and ongoing. However, I think this discussion needs to happen in reverse. Before I share some ideas about what universities should be doing to advance reconciliation, it may be more useful to look at some examples of what should NOT be considered reconciliation and why. 

    Not Reconciliation list:

    (1) Apologize for university’s past contribution to oppression of native peoples;

    (2) Give a land acknowledgement;

    (3) Senior administration or professors attend a First Nation community or pow-wow;

    (4) Hang native art on campus;

    (5) Change street names or building names on campus;

    (6) Partake in cultural sensitivity training or Aboriginal History 101;

    (7) Watch documentaries like Colonization Road;

    (8) Read Thomas King’s The Inconvenient Indian (I love this book);

    (9) Send a First Nation or organization an email asking what you can do to help;

    (10) Hire more native peoples to reflect our % of the population;

    (11) Have an elder open and close your conferences;

    (12) Nominate a native person for an award;

    (13) Invite native faculty to sit on committees or Senate;

    (14) Create an Aboriginal Advisory Committee on campus;

    (15) Send a happy National Aboriginal Day tweet or Facebook post;

    (16) Include First Nations in your research projects; and/or

    (17) Invite native speakers into your classrooms.

    There are many universities and colleges doing a number of the above items under the banner of reconciliation right now. Some may have even done some of these prior to the TRC report. However, I have seen a number of universities include some of these items in their reports on reconciliation. To my mind, none of these items fall under reconciliation. They are all important in different ways, and universities, should be doing these things, but they are not reconciliation.

    Why not?  Because most of the items on the above list should already be done in universities and colleges as a matter of law – as per federal and provincial human rights laws; employment laws; non-discrimination laws; equality laws; and campus commitments to diversity, equity and inclusion. Universities don’t get to pat themselves on the back for doing what they should have been doing all along under the law. Furthermore, some of the actions noted above should be happening as a matter of academic practice. If you teach about native issues, it should be a given that native voices and content are centered. It’s a matter of professional ethics and academic standards that faculty learn about the subjects they teach – or ought to be teaching. 

    The following represents a few things that universities should be doing under the banner of real reconciliation:

    Real Reconciliation:

    (1) Ensure that you hire native faculty and staff that reflects plus 20% extra hires to build institutional capacity; provide support for new hires; and to make amends for having excluded native peoples for all these years;

    (2) There should be proportional (20%) native hires in ALL faculties and departments, especially politics, law, science, engineering, medicine and business (in addition to social work, midwifery & native studies);

    (3) Do NOT ever hire just one native faculty member at a time. That is an incredibly unfair burden to that faculty member as everyone, even with the best of intentions, will want their advice, guidance, ideas and participation of that one faculty member on every committee, project and initiative;

    (4) When you hire, you must develop workloads and expectations around the fact that many First Nation hires will have community-based expectations/obligations that should be accommodated.

    It is their connection to their First Nations, their knowledge exchange and community-based work that often informs who they are, how they teach and what they teach.That unique knowledge and experience comes with commitments to their home communities which takes time and energy and should be accommodated and counted.

    (5) Don’t stop at recruitment and hiring of native faculty and staff. Think about what your institution does to KEEP them there, i.e., professional supports, active mentorship, recognition, research dollars, promotions, pay levels, leadership opportunities, advanced training and skill development and flexible or alternative work arrangements.  (6) Keep current commitments to native faculty and staff. For example, if you have a Chair in Traditional Native Medicine, make sure that Chair is made permanent, funded from core university dollars and not dependent on external funders (i.e., supported only if the funds are available). Making reconciliation initiatives dependent on the goodwill of corporate funders puts them all at risk given the fact that native peoples are largely discriminated against in the corporate world. Universities must engage in real sacrifices – of power and wealth – in order to engage in real reconciliation. That means the university itself must dedicate and protect the funds for reconciliation initiatives – includes faculty, staff, chairs, research and projects.

    (7) Real reconciliation is about more than who teaches, it also requires that native peoples also be represented in the governance and senior administration of universities and colleges – as Presidents, Provosts, Chancellors and on boards of governors. They must be part of the decision-making mechanisms throughout the institution – including in the unions, committees and Senate, on all issues, but especially those that impact native peoples specifically.

    (8) Native peoples need to be the ones deciding how targeted native research funding is distributed; who gets research chairs in native issues; and how academic success is measured – that means including the community-based work and advocacy that is an inherent part of the lived personal and professional realities of many native peoples.

    (9) First Nations and Inuit communities need to have a direct line of input into university programs, curricula, research and governance that impact them and their students. It is not good enough to have one native faculty or several native staff members speak for diverse Nations. The relationship needs to include voices inside and outside the institution.

    (10) Every university and college sits on native territory should reflect local native languages, cultures and symbols throughout the campus, in ways that are directed by native peoples (with a focus on local native communities) and respectful of their cultures. It is not good enough to have just one dedicated “native” area – like a statue, park bench or student centre. Our presence must be reflected throughout the campus(es).

    (11) The benefit and privilege of a university education and research needs to be fully shared with local First Nations, with more focus on open access to information and publications and translation of research in accessible formats for community use.

    (12) Universities need to think about education beyond tuition-paying students and include strategic partnerships and alliances with native communities to help fill research, policy and/or technical gaps that exist due to chronic under-funding and failure to implement treaties, by building these requirements into courses and research or special projects.  (13) Universities could help make amends for past harms. Take for example, the crisis of disappearing native languages. Universities and colleges in partnership with native communities, elders and languages speakers, could help prevent native languages from extinction. Together, they could develop comprehensive k-12 education, as well as community-based native language instruction, to try to undo the devastating impacts of Canada’s assimilatory policies and the university’s roles in it.

    (14) Universities need to ensure that their reconciliation plans are co-developed by native communities and experts – which may include faculty, but also those external to the university that are not at any risk of retaliation or ostracization. Without native peoples directing the path forward, universities risk of forging ahead with superficial plans, or replicating the status quo. (15) Universities must also focus on the recruitment, retention and support of native students towards academic success. This includes not only a welcoming atmosphere, various student supports like housing and grants, but also native faculty advisors, native courses, and special research projects and other opportunities.  (16) Universities must take active measures against the growing trend of rushing to hire “self-identified” native peoples who are not native, not connected to community and have no lived experience as a native person. Universities are being flooded with those making false claims and universities commit further harms to actual native people by taking no action to prevent it from happening.  When frauds take our places in universities as students, staff or faculty, our voices are once again erased and our identities over-shadowed by white ethnicity shoppers whose only claim to Indigeneity is ancestry.com or some distant relative from 400 years ago. At best, these frauds skew our numbers and taint our research, and at worst, they proactively work against real native peoples.

    (17) Universities must find ways to prevent Deans from using the same old racist tactics, like using so-called “merit” versus “diversity” as a way to keep native people out of universities. This perception of merit is very biased and often used in racist ways to discriminate against native peoples. It has been used to keep women out of the boardroom and with lower salaries. It has also been used by non-native Deans to keep native peoples out of tenure-track positions. Even after the TRC report, I have still seen Deans revert to this racist form of excluding native peoples – as if their traditional Indigenous knowledges, their professional experiences, their community-based work are not valued the same as a non-native’s traditional educational background as “merit”.

    There is a lot to do and it will require a fundamental shift in both thinking and practice. It will require real changes – a transfer of both power and wealth. This requires that universities make sacrifices to make space for native peoples – not simply Indigenize here and there. Universities can’t simply tweak their current structures and expect substantive results.  Clearly there is a great deal that university can and should be doing. This blog is already too long to include a much longer list. I truly believe that some of this will happen in short term, and some of it will take a little longer. But without real native people at the helm – directing the path – it runs the risk of preserving the same status quo or worse. I believe that we are at a turning point.  The TRC has helped jump start both conversation and action at the university and college level. We just need to ensure the way forward is co-developed by native peoples and communities, together with universities and colleges. We have a real opportunity to make lasting, impactful changes. Let’s move beyond the superficial and engage in real, transformative reconciliation now – which will mean doing things as they haven’t been done before. We’re ready academia – are you?

    For those who prefer audio, here is a link to my Warrior Life podcast based on this blog: https://soundcloud.com/pampalmater/indigenous-reconciliation-in-university-and-colleges For those who want more information, here is a link to my Woodrow Lloyd Lecture on Reconciliation at the University of Regina in 2018: https://www.youtube.com/watch?v=89s3l2mYGWg&list=PLDnK0xT7aXRBut5qi5rlJrDQWpS-Pxu1v&index=2&t=3083s

    *This blog is based on a much longer speech that I delivered in Halifax for the Canadian Centre for Policy Alternatives in 2018.

  • Bill C-92’s Indigenous Child Welfare Act: More Pan-Indigenous Legislation that Risks Continuing the Status Quo

    Bill C-92’s Indigenous Child Welfare Act: More Pan-Indigenous Legislation that Risks Continuing the Status Quo

    Bill C-92 An Act respecting First Nations, Inuit and Metis children, youth and families has been heralded as a “historic turning point”, an “important first step”, a “major milestone” and other similarly over-used and under-impressive political phrases to describe yet another top-down initiative from the federal government. While the Assembly of First Nations National Chief Perry Bellegarde (AFN) claimed that this legislation was “co-drafted” by the AFN and the federal government, that was not the case. In fact, Dr. Cindy Blackstock confirmed that First Nations did not co-draft the legislation and First Nations were not even permitted to see the second draft before it was tabled. This should be no surprise as Justice Canada does not co-draft legislation with anyone other than the French and English legislative drafters at Justice Canada – this is their long-standing practice. Bill C-92 content is glaring evidence that First Nation experts in child welfare did not hold the pen on this bill.

    There are many problems with this bill, but the main problem is it does not deliver any of what was promised by the federal government. Prime Minister Trudeau’s Liberal government promised to address the “humanitarian crisis” through federal legislation that fully recognized First Nation jurisdiction in relation to child welfare; that would provide statutory funding; and would eliminate the over-representation of First Nation children in care. If this bill is not substantially amended before it is passed, it will not accomplish any of those important goals. Ultimately, it will be our children and our families on the ground – in our communities – that will pay the biggest price. The fact that the AFN is promoting this bill so strenuously, without regard for the numerous and serious concerns raised by First Nation leaders, lawyers, academics and child welfare experts, shows how disconnected they are to the crisis at hand.

    Despite the many issues raised by the Assembly of Manitoba Chiefs, the First Nations Child and Family Caring Society and others, the AFN supports this bill as do the Metis National Council (MNC) and Inuit Tapiriit Kanatami (ITK). While I also have numerous, detailed concerns with the wording, structure and content of this bill, they are too many to include in this blog. What follows is a general overview of my concerns from a First Nation perspective. 

    Pan-Indigenous Legislation

    First of all, pan-Indian legislation has always been difficult to work with because of the differences between the 50-60 traditional Indigenous Nations in Canada that are now separated into 634+/- individual First Nations (Indian bands), across various provinces and within different treaty areas (some without treaties). However, pan-First Nation legislation, with opt-in clauses and flexible provisions to deal with legal, political and cultural variances, would be far superior to what is offered in this bill. Bill C-92 purports to cram First Nations, Inuit and Metis into one act that offers the same legislative options to all three groups – despite their vastly different histories, socio-economic conditions and rights.

    There are vast differences between the legal rights and specific needs of First Nations, Inuit and the Metis. For example, the Metis have much better socio-economic conditions than First Nations and Inuit. Geographic differences between the Inuit and First Nations and Metis, also require solutions tailored to their unique situation. Failure to do so can create inequalities between the groups.

    Substantive Inequality

    This bill also misses the mark in its purported goal to support Nation-to-Nation (First Nations), government-to-government (Metis) and Inuit-Crown relations by treating us all the same. Here’s the problem – when Canada treats all three groups formally the same, it prejudices the rights, needs and interests of those with more acute conditions. In other words, by treating all three groups as formally equally, those with the most acute needs will be treated substantively unequal. While disadvantage should never be about a “race to the bottom”, formal equality will embed discrimination into the very structure of this legislation and will operate to disadvantage First Nations in particular. First Nations are larger in population, have higher rates of child apprehensions and higher rates of underlying poverty, caused by the kinds of land dispossession and breach of treaty rights not experienced by Metis (with some exceptions).

    That is not to say that the Metis should not have their own framework- that is for them to decide what works best for them with the needs of their own constituency. First Nation, Metis and Inuit options should not be limited to the same generic legislative framework, from the same budget line, which assumes the same socio-economic needs, legal rights and interests. This pan-Indigenous template is not in line with the federal government’s promised “distinctions-based” approach and serves to embed substantive inequality into the act.

    First Nation Jurisdiction

    First Nation jurisdiction should be the heart of this bill. At best, what is offered is a delegated authority under federal jurisdiction, which is conditional on agreement with the provinces. At worst, this bill increases federal Ministerial control, while leaving provincial laws, policies and practices virtually in tact. Bill C-92 creates new powers for an unnamed federal Minister to carry out the provisions of the legislation, make regulations, possibly collect data and provide a report to Parliament after five years. What is missing is the original purpose of the bill: to recognize First Nation jurisdiction. While it purports to recognize First Nation jurisdiction, it does so with several substantive conditions. First Nation jurisdiction and laws in relation to child welfare appear to be directly or indirectly subject to the following limits:

    –          Canadian Charter of Rights and Freedoms;

    –          Canadian Human Rights Act;

    –          Section 35 Constitution Act, 1982 jurisprudence and limits in relation to constitutionally protected rights;

    –          “Inherent right to self-government” which indirectly incorporates the impoverished definition of self-determination outlined in the Inherent Right Policy;

    –          Constitution Act, 1867, section 92 provincial jurisdiction, i.e. provincial laws are the minimum standard;

    –          Successful negotiation of a tri-lateral coordination agreement between the First Nation, province and federal government (or proof they made good faith effort to negotiate);

    –          Pre-existing definitions of “best interests of the child” from legal precedents;

    –          Sections 10-15 of Bill C-92, which outlines specific limitations in relation to the best interests of the child, parental representation, notice of apprehensions, preventative care as the priority, and no apprehensions due to poverty.

    If a First Nation manages to ensure their laws meet all of these conditions, then they could be recognized as a “federal law”, but not a law in their own right – based on First Nation jurisdiction. It seems very clear that what is being offered is a delegated authority under federal jurisdiction, which is also limited by the constitutional division of powers. Nothing in this bill binds a provincial government or requires them to even come to the table – let alone contribute any funding. Some First Nations may be okay with exercising their powers this way in order to address the urgent crisis, but the federal government should just be honest about it and stop trying to package it as First Nation jurisdiction.

    There is also no specific recognition for pre-existing First Nation laws – oral or written – except in the case of self-government agreements, and these laws would only be paramount to the extent of any conflict with Bill C-92. What of First Nations that choose not to make agreements with the province? What if a First Nation chooses to negotiate only with the federal government? There are far more questions than answers in this bill – all of which need to be addressed in order to avoid legal chaos and uncertainty around jurisdiction.

    Funding & Socio-Economic Conditions

    My last major concern about this bill is the failure to include clear, directive language that would provide a statutory guarantee for annual funding, that is based on equal access to holistic, wrap- around social programs and services, that take into account specific needs, population increases, inflation, geographic location, and actual costs. Without this statutory guarantee, any recognition or First Nation jurisdiction is entirely hollow. Substantial funds are required for the development and enforcement of First Nation laws, policies and regulations in relation to child and family services; staffing and training; infrastructure; legal and technical research and advisory services; data collection and analysis; and monitoring, compliance, reporting and enforcement. The core issue has always been the long-standing chronic and discriminatory under-funding of social services for First Nations, like food, water, housing, health and education. This racist under-funding is what created the crisis and serves to maintain. Legislation is not needed to end discriminatory funding, but if legislation is to be enacted, a firm commitment for funding needs to be included.

    It is noteworthy that there is no mention of First Nation Aboriginal rights or treaty rights in relation to the funding that attaches to child welfare. While it may be politically expedient to create an act that is neutral on “rights” for all parties, this must be in exchange for a substantive, enforceable legal funding commitment. Long gone are the days where First Nations can reasonably or responsibly rely on the word of Ministers to hope that they fulfill their political promises. Ministers change, governments change and the law changes – which is why, if there is to be legislation, that it include a statutory guarantee of funding.  Without it, this legislation is empty of any real intention or ability to end the status quo – a price that will continue to be paid by our children and their children. First Nation cannot afford to lose any more children to a racist and sexually violent system that decreases their life chances and limits their ability to enjoy life with their families, communities, and Nations. The increasing foster care rates, incarceration rates and murdered and missing rates compel us to act urgently and with purpose.

    All that is required is for Parliament to sit down with First Nation child welfare experts and make the required amendments. Without substantive amendments, this bill may end up causing more harm than good and inject legal chaos into an already broken system and risk the lives of more of our children. Canada has apologized for the trauma caused by residential schools, while at the same time admitting that child welfare has continued the trauma. Canada has stated that this is a humanitarian crisis and as such is legally and morally bound to do better. 

    It’s time to sit at the table and urgently work this out for the sake of the children. Video of my recent testimony to Senate Committee on Aboriginal Peoples pre-study on C-92: https://www.youtube.com/watch?v=vkcl0iF0Yic To listen to my 3-part extended interview with Dr. Cindy Blackstock on my podcast show: Warrior Life, here is the link: https://soundcloud.com/pampalmater/cindy-blackstock-on-justice-and-equality-for-first-nation-children If you prefer video instead of podcast, you can listen and watch on my YouTube channel here: https://www.youtube.com/watch?v=t5LvH3LY_20&t=2s

  • Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    As expected, the Assembly of First Nations was first out of the gate offering glowing praise for this Liberal government’s federal budget, followed shortly thereafter by the Metis National Council and Inuit Tapiriit Kanatami – the three male-dominated national Aboriginal organizations. Their organizations have seen substantial increases in funding for their political organizations in recent years. Meanwhile, the Native Women’s Association of Canada – the only political organization representing Indigenous women at the national level – issued its own press release criticizing the government for failing Indigenous women. They accused the federal government of, once again, ignoring the pressing needs of Indigenous women and in so doing, not only hampering reconciliation but breaching their core human rights. NWAC is especially aggrieved about this lack of funding for Indigenous women and families, given the urgent need to address murdered and missing Indigenous women and girls.

    The exclusion of Indigenous women and girls as a priority in this federal budget is a glaring example of the ongoing racism and sexism that is so deeply embedded in Canada’s laws, policies, practices and institutions – the very same racism and sexism the Liberal government claims to be against. When the federal government announced the National Inquiry into Murdered and Missing Indigenous Women and Girls in 2016, former Liberal Minister for the Status of Women, Patty Hadju, spoke of the urgent need to address the longstanding racism and sexism embedded in Canada’s institutions.  Yet, this urgent policy objective is not reflected in any substantive way in federal budget 2019. In fact, there are no funds allocated for a comprehensive plan to address violence against women generally, and no funds for a targeted comprehensive of plan of action to address violence against Indigenous women and girls specifically. Indigenous and women’s organizations have called on Canada to take comprehensive action now to implement recommendations from the United Nations treaty bodies to reduce murdered and missing Indigenous women and girls before the national inquiry’s report is released.

    http://fafia-afai.org/en/press-release-coalition-calls-for-urgent-action-to-stop-violence-against-indigenous-women-and-girls-%EF%BB%BF/

    The National Inquiry’s report is due out in less than a month and there is no budget set aside to implement whatever recommendations come from that report either. The limited funds for commemoration seems not only inadequate, but also premature given that the crisis has not abated. Where is the urgent and sustained help for the many families deeply impacted by the abuse, exploitation, trafficking, disappearances and murders of thousands of Indigenous women and girls?

    A particularly shocking exclusion from the budget is the lack funding for First Nations child and family services to address the crisis of First Nations children in foster care. Former Minister of Indigenous Services, Jane Philpott called the staggering statistics related to First Nation kids in care a “humanitarian crisis” – comparing it to the residential school system. She pledged to work with First Nations to address the critical need for funding to prevent apprehensions and address the root causes of over-representation, which include conditions of poverty. This glaring omission from the budget is confounding given the fact that Parliament had previously committed to targeted funding to accompany Bill C-92 An Act respecting First Nations, Inuit and Metis children, youth and families, which already been introduced in Parliament. Although the federal government promised significant funding to support Bill C-92 – there is no specified funding either in the bill or the budget. Not a single dollar has been allocated to support First Nations develop their own laws and institutions specific to child and family services, hire and train staff, as well as provide the much-needed wrap around social, educational and health services to families in need as advocated in the Spirit Bear Plan.

    https://fncaringsociety.com/sites/default/files/Spirit%20Bear%20Plan%20%28EN%29.pdf

    Dr. Cindy Blackstock, the head of the First Nation Child and Family Caring Society welcomed the additional funding for Jordan’s Principle, however explained that it does not go far enough and many children – like non-status Indian children are still excluded. Jordan’s Principle is a child-first principle which aims to ensure First Nation children can access all public services in a culturally-appropriate way, without any delays or hurdles because they are First Nations. The federal budget pledges $1.2 billion over three years. However, the flat funding does not take into account population growth over the funded years, or the rising cost of inflation. There are also no additional funds to address the thousands of First Nation children who will be newly entitled to Indian status as a result of Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) or from the revised unstated paternity policy in relation to registration. Both of these issues are the result of the federal government losing two court cases (Descheneaux and Gehl) on discrimination against First Nations women and children.

    Yet, despite the legal obligation to provide funding, none has been identified in this budget. This limited funding is not an act of reconciliation. The federal has been dragged to this point – kicking and screaming – by the Canadian Human Rights Tribunal, with no less than five non-compliance orders for failing to end discrimination in funding of First Nation children in care. So, while the extra funding is welcome, it is not a “gift”.

    A particularly disturbing omission is the lack of targeted funding for First Nation women and their descendants who would newly entitled to Indian status under Bill S-3. The bill has been in place for a year and will add thousands to the registration list, yet no new funds have been identified for education, health or housing for individuals or First Nations. This is despite the fact that the United Nations just agreed with Sharon McIvor that the Indian Act still discriminates against the descendants of First Nations women who married-out, and directed Canada to provide full reparation. This means registering them and providing much-needed social programs. Similarly, there is no targeted funding to address the increase in registration due to Lynn Gehl’s successful court case against Canada for it’s discriminatory unstated paternity policy. At every turn, First Nations women and children are forced to wait for justice and are denied their basic human rights and access to the same programs and services available to their fathers, brothers and uncles.

    One of the most under-served categories of First Nations are those living off-reserve. Approximately 33% of First Nations live off-reserve in Canada, and a disproportionate number of families are headed by single Indigenous mothers. Metis and Inuit don’t live on reserves at all – therefore the majority of Indigenous peoples live off-reserve. The amount allocated in the budget is a mere $60 million over 5 years to help fund off-reserve organizations like native friendship centres. That is barely $10 million a year – nowhere near what is needed to address urgent housing, education, and health needs for more than 800,000 Indigenous peoples living off-reserve – let alone the growing homelessness crisis plaguing Indigenous peoples. Niigaan Sinclair reports in the Winnipeg Free Press that the chronic under-funding is made worse by the fact that federal bureaucrats and other consultants and contractors, suck up nearly 50% of all funding appropriated by Parliament for First Nations. With three departments now directly responsible for Indigenous and Northern Affairs, who is to say whether First Nations will see much of this funding at all, let alone Indigenous women and children.

    https://www.winnipegfreepress.com/opinion/columnists/new-dollars-sure-but-same-political-game-507393892.html?fbclid=IwAR3jyFhBNuvatzHwVlW-JLWn28sw4MWAdhaGPfD2_strkkdgeiRGRJ0nQsU

    While there are many other problems with federal budget 2019, the most glaring omission is the exclusion of Indigenous women and children. Back in 2016, the Liberal government promised a gender based analysis for future budgets. Yet, this budget lacks a gender-based, human rights-based and Indigenous rights-based analysis that focuses on not just policy objectives like reconciliation, but concrete domestic and international legal obligations. There is no mention of returning lands and resources back to First Nations, no mention of a financial plan in relation to treaty implementation or how the federal government will ensure Indigenous women’s voices are at the many negotiating tables they fund. This budget is a disgrace and does little to address any of the pressing Indigenous issues impacting Indigenous women and children like kids in care, murdered and missing Indigenous women, over-incarceration, homelessness, unequal access to Indian status, poverty and poor health outcomes. Trudeau makes good use of flowery speeches and tearful apologies to Indigenous peoples,  but has left Indigenous women and children far behind – again.

    Perhaps Prime Minister Trudeau should give some Indigenous women a call and figure out how to amend the budget so it better reflects the law in this country. At least, that’s what a feminist Prime Minister would do.

    APTN Panel discussion on Federal Budget 2019 and what it means for Indigenous Peoples:

    https://tinyurl.com/y689zmyh

  • Cannabis legalization ignores First Nations

    Cannabis legalization ignores First Nations

    *This article was originally published in The Lawyer’s Daily on Jan.30, 2019. For decades, federal and provincial governments, through their local, regional and national police agencies and court systems, have arrested, charged and imprisoned thousands of First Nations people for engaging in the cannabis trade. Many had hoped that Prime Minister Justin Trudeau’s stated commitment to renewing the relationship with Indigenous peoples and his desire to legalize cannabis would help address many issues, one of which being the crisis-level over-incarceration of Indigenous peoples. Despite legalization of cannabis in 2018, Trudeau’s Liberal government has not yet seen fit to provide relief for Indigenous peoples languishing in prisons for cannabis-related offences. This is disappointing on two fronts: the first being that Trudeau has not kept his promises to Indigenous peoples; and second, that the first ever female Indigenous Justice minister didn’t take steps to get Indigenous peoples out of prison. We know that the over-incarceration of Indigenous peoples is a real crisis — one that continues to grow without abatement. Despite being only five per cent of the population in Canada, they represent more than 27 per cent of those in federal prisons. Indigenous women make up a staggering 43 per cent and Indigenous youth are now over 46 per cent of admissions to youth corrections. Yet, even these statistics don’t show the whole picture. The provincial incarceration rates, especially in the Prairies, are astounding. Provincial prisons can be as high as 80 per cent Indigenous peoples and for Indigenous girls in Saskatchewan, that rate is an unbelievable 98 per cent. We also know that more than half of all drug offences in 2016 were cannabis-related (58 per cent) and the majority of the charges were for possession. To say that we have a real incarceration crisis is an understatement, but the limited cannabis legalization scheme, which does not substantively address over-incarceration of Indigenous peoples, is yet another broken promise. While a handful of First Nation businesses have been specifically “permitted” to engage in this new trade, the majority are under a very real risk of legal sanctions — both as individuals and as First Nations — who assert their jurisdiction in this area. It is a cruel colonial irony that the very same people who have been imprisoned for their role in the cannabis trade — First Nations peoples — are now largely prohibited from engaging in the trade without permission from provincial governments. Neither the federal nor provincial governments engaged in nation-to-nation dialogue with First Nations over how to best bring federal, provincial and First Nation laws into harmony in relation to cannabis. Despite the many calls from First Nations for collaboration, First Nations were left out of the legislative drafting process and any good faith attempt to provide a trilateral, good faith path forward. In May 2018, prior to the legalization of cannabis, the Standing Senate Committee on Aboriginal peoples released a report on Bill C-45 An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts, which noted a real lack of “meaningful consultation” with Indigenous peoples and recommended that legalization be delayed for one year. The Standing Senate Committee recommended that Canada use the year to engage in negotiations with First Nations about tax collection and revenue sharing on reserves, recognition of the right of First Nations to enact their own legislation and funding for substance abuse and healing centres. They further recommended that no less than 20 per cent of all cannabis production licences be issued to First Nations. This would have provided sufficient time for First Nations to draft their own laws, rules and regulations and develop their own business policies and public safety protocols. While the Ministers of Health and Indigenous Services penned a letter to Senate claiming that their government “respects the jurisdiction of Indigenous communities”, Justice Canada officials previously clarified in Senate hearings that their position is that First Nations cannot enact by-laws in relation to cannabis on reserve and that provincial laws would apply. The federal government can’t have it both ways. Incredibly, Trudeau has missed yet another opportunity to engage with First Nations on a nation-to-nation basis and decided to forge ahead on cannabis legislation without properly engaging with First Nations or meaningfully considering their inherent Aboriginal and treaty rights to pass their own laws. Instead, the federal government assumes provincial jurisdiction setting the stage for the legislated exclusion of First Nations and conflict on the ground. This isn’t the first time the government of the day has blockaded First Nations from engaging in their own business and trade endeavours to support their communities. It wasn’t that long ago that the Conservative government under former Prime Minister Stephen Harper enacted Bill C-10 An Act to amend the Criminal Code (trafficking in contraband tobacco) to create the new offence of trafficking in contraband tobacco and prescribed minimum mandatory sentences for repeat offenders. It was very clear that the bill was intended to target First Nations and their long practice of growing, manufacturing and trading in tobacco despite their inherent, Aboriginal and treaty rights to do so. The RCMP defined contraband tobacco as product that is primarily manufactured on First Nations reserves. This bill effectively acted as a legal blockade attempting to criminalize First Nations for engaging in their own traditional economies — an economy not even known to Europeans prior to contact. Settler governments have long engaged in the colonization of Turtle Island through the theft of First Nations lands and resources, but also through the appropriation of their lucrative trade practices, products and routes. The criminalization of the tobacco trade for First Nations went hand in hand with the transfer of control and benefit from tobacco to settler governments. It looks like Canada is doing the same thing to First Nations with regards to the cannabis trade. https://pampalmater.com/2018/04/canadas-criminalization-of-indigenous.html While it may or may not have been grown, manufactured and traded traditionally, there is no doubt that this is the modern evolution of the right to trade as outlined in so many Supreme Court of Canada cases like the Van der Peet trilogy and the Sappier and Gray cases. First Nations are not limited to economic practices of pre-contact times or be “frozen in time.” Yet, that is exactly what seems to be happening with the cannabis trade. In fact, it looks like those that are first in line to profit from this new legal trade are the very politicians and police officers that once fought so hard to imprison First Nations for trading in tobacco and now cannabis. Those previously engaged in tobacco and drug enforcement have an unfair advantage of knowing all the confidential intelligence on the drug trade and its key players, as well as where and when to sell product and to whom. On top of this, former cops have connections all over the country, and that alone is an incredible form of advantage and means of intimidating the so-called competition. This gross injustice is now compounded by the fact that only certain businesses will be granted licences and the majority of those licences do not include First Nations or their businesses. According to the federal government’s report to Senate, there are only 5 Indigenous producers out of the 105 in Canada — a far cry from the minimum 20 per cent recommended by Senate. As the most impoverished communities in Canada, First Nations have incredible social pressures on them to find ways to provide for their communities in a legally and politically hostile context. Federal and provincial governments have created legal blockades around most First Nation traditional economies like hunting, fishing and gathering. They have left First Nations with few alternatives. If Trudeau thinks that First Nations will simply shrug their shoulders and move along to a different economic opportunity, he is sadly mistaken. Many First Nations are invested in this trade and will defend their legal right to do so with or without provincial approval. The ability of the police to enforce federal or provincial laws in this regard will be highly suspect given their former colleagues’ involvement in the trade. Would the police be upholding the law or protecting the thin blue line’s new income stream? All of this pending conflict — and there will be conflict — could have been avoided had Trudeau practised what he promised and engaged with First Nations on a nation to nation basis and respected First Nation rights. It’s never too late to act, but with an election just around the corner — it is unlikely Trudeau will rock the boat for all those former cops and Liberal politicians who now stand to make millions from cannabis. *Link to the article as originally published in The Lawyer’s Daily: https://www.thelawyersdaily.ca/articles/9968/cannabis-legalization-ignores-first-nations-pamela-palmater?category=opinion

  • What You Need to Know About Sharon McIvor’s Major UN Victory on Indian Status

    What You Need to Know About Sharon McIvor’s Major UN Victory on Indian Status

    (Picture of Sharon McIvor and I at the United Nations in Geneva)

    Sharon McIvor has won yet another landmark legal victory for First Nations women – this time at the United Nations Human Rights Committee (UNHRC). On January 14, 2019, the UNHRC released their decision which found that Canada still discriminates against “Indian” women and their descendants in the registration provisions of the Indian Act. Despite the fact that Sharon had already proven her discrimination case at trial and on appeal here in Canada, the federal government refused to eliminate all the remaining sex discrimination from the Act. This meant that Sharon and her descendants still have lesser or no Indian status as compared to her brother and his descendants – simply based on sex. Sharon was therefore forced to bring a human rights claim to the UNHRC under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The UNHRC found Canada had violated Sharon’s human rights and directed Canada to provide an effective remedy for Sharon McIvor, her descendants, and others who have suffered the same discrimination.

    It is important to note that Canada is bound by this decision. The ICCPR came into force for Canada on August 19, 1976 and Canada has agreed to be bound by the jurisdiction of the UNHRC to make decisions on matters coming before it. This means that Canada has chosen to be bound by the rights contained within this Covenant for the benefits of all those in Canada. In this case, the UNHRC found that Canada had violated Sharon’s human rights under articles 3 and 26, read in conjunction with article 27 of the ICCPR.

    Article 3 guarantees the equal right of men and women to enjoy the rights contained in the ICCPR. Article 26 provides that all people are equal under the law and specifically prohibits discrimination on the basis of race, sex, birth or other status. These two articles were considered in conjunction with article 27 which provides that ethnic minorities within States shall not be denied their right to enjoy their culture in community with other members of their group. The UNHRC found that Canada had violated Sharon’s rights under all three articles and directed Canada to do make “full reparation” to Sharon, her descendants and others in her position. Canada was directed to:

    (1)   Register all those like Sharon and her descendants, under section 6(1)(a) of the Indian Act;

    (2)   Take steps to clean up any residual discrimination within First Nation communities arising from sex discrimination in the Indian Act; and

    (3)   Take any additional steps necessary to avoid similar violations in the future.

    The federal government has been given a 180 days to inform the UNHRC about how it will implement this decision. The good news is that the federal government has the capacity to comply with the first part of the decision this month. The federal government already drafted amendments to the Indian Act’s registration provisions in Bill S-3 that would remove the remaining sex discrimination raised by Sharon McIvor’s case. The problem is that Parliament didn’t enact those provisions into force. While all the other amendments contained within Bill S-3 were brought into force in 2018, they purposely left our remedy for sex equality for “someday” – a hypothetical right that we can only hope is fulfilled someday. First Nations women deserve better than this.

    While the Indian Act’s registration provisions have a long, complicated history, and the various amendments made over time, including Bills C-31, C-3 and the most recent S-3 have created a complex mess of criteria almost impossible to understand; the core issue is simple. Indian women who married non-Indians and their descendants have lesser or no status compared to Indian men who married non-Indians and their descendants. Sex discrimination in federal legislation, like the Indian Act, is against Canadian law as well as international human rights laws to which Canada has agreed to be bound. There is simply no legal justification for continuing to deny the basic right of sex equality to First Nation women and children. To do so makes the federal government an outlaw – both in Canada and internationally.

    The question now is whether the self-professed “feminist” Prime Minister Justin Trudeau and his Liberal government will abide by the UNHRC decision or continue to violate the core human rights of First Nations women and children. Reconciliation with First Nations demands immediate implementation of this decision, but the Liberal (and Conservative) record is very poor when it comes to respecting the human rights of First Nations women. They have the power to do it – but it always has been, and always will be, a matter of political will.

    Sharon has sacrificed more than 33 years to this battle to protect the rights of First Nation women and our children. It is because of Sharon that I have a political voice as a First Nations woman. Implementing this decision will not only mean that my children will finally be able to be registered and included as members of my First Nation, but Sharon and I, and thousands of others like us, will finally be treated equally with our First Nation brothers.

    Canada cannot claim to stand as a champion of human rights in the global context while continuing to deny First Nations women and children basic human rights. Reconciliation requires shedding the hypocritical rhetoric and taking action to do what is morally right and legally required.

    The world is watching Canada. Here is our press conference calling on Canada to abide by UN decision and end sex discrimination: https://youtu.be/gy9evq7a6hg

    Link to the UNHRC decision.

    Link to CBC article about the case: https://www.cbc.ca/news/indigenous/indian-act-sex-discrimination-un-committee-1.4982330

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

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

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

  • The Indigenous right to say no

    The Indigenous right to say no

                                         (photo by Michelle Girouard)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Killer Whales, Trans Mountain Pipeline and the Public Interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    This is the first of a two-part series.

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

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

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

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

  • Maxime Bernier’s “Extreme Multiculturalism” Twitter Rants Sound More Like Sour Grapes

    Last week, Conservative Member of Parliament, Maxime Bernier posted a series of tweets on Twitter espousing his opposition to “extreme multiculturalism” and the “cult of diversity” in Canada. According to Bernier, diversity will “destroy” the cultural identity of Canada and worse, will result in “cultural balkanization” that leads to social conflict and even “violence”. These tweets were not the usual fair commentary offered by elected officials on matters of public policy. No – there was something a bit more frantic, even desperate about these tweets. These tweets sounded like the rantings of a wayward politician who, having failed in all of his political endeavours to date, couldn’t think of any other way to get attention but to ride the populist white supremacy wave.

    A combination of deep-seated racism and white superiority, together with Trump-like fear-mongering seems to be the current populist recipe for manufacturing hate and division for the purpose of political gain. It also seems to reward the instigators with gratuitous attention on social media.

    If we are to understand Bernier’s Sunday night tweet rant better, we have to understand that Bernier is a failed politician. He was a separatist from Quebec who voted in the 1995 referendum for Quebec to separate from Canada, but that vote and his efforts, failed. He was later successful in being elected a Conservative MP from Beauce, Quebec and was even appointed Foreign Affairs Minister under former Prime Minister Stephen Harper. However, he was forced to resign in scandal when he left classified documents at his girlfriend’s place for nearly a month. After Harper’s Conservatives were devastated in the last election, giving Trudeau’s Liberals a majority government, Bernier ran for leadership of the Conservative party and lost to Andrew Scheer. Soon after, he released portions of a cry-all book about how he lost the leadership bid, but publication was halted. His own peers said this cry-all book was more about “sour grapes” from losing and his “vanity” and need for attention. Most recently, he was silently kicked from Scheer’s shadow cabinet.

    If ever there was a recipe for some hateful sour-grapes, this would be it. A failed separatist, Minister, leader, author and shadow cabinet member, Bernier clearly wants to make a name for himself in whatever way he can. We all know that Republican President Donald Trump’s sexist, racist, anti-immigrant fear-mongering seems to have appealed to the ultra right-wing and white supremacists in the USA. It also seemed to work for Conservative Ontario Premier Doug Ford, a “fiercely right-wing populist”, who won an election with a “take care of our own” attitude devoid of any substantive public policy – unless you include his buck-a-beer-for-all promise. It would seem that Bernier is once again suffering from sour grapes and has resorted to this hateful, racist rant against every other culture than his own people– the very people that seems to have rejected him. 

    It is not the fault of new immigrants that Bernier’s own party have rejected him over and over. Nor can his misery be tied to the legal right of people from diverse cultures to enjoy their traditions in Canada. This is an example of popular white supremacism – the idea that people of other racial, ethnic or cultural backgrounds are inherently dangerous and should not mix with “old stock Canadians” – i.e. “white” Canadians. The difference between the white nationalism/supremacy of the past is that those who espouse these views today tend to do so in a less direct way under the guise of public policy debate.

    But his hatefulness doesn’t focus only on new immigrants. Several days later, he was also first in line on Twitter to trash the Trudeau government’s intention to create a statutory “holiday” in remembrance of the atrocities committed in residential schools. Despite this being 1 of the 94 Call to Action of the Truth and Reconciliation Commission and represents the wishes of many of the survivors, Bernier accused called this “another sick characteristic of extreme PC [political correctness] and multiculturalism”. To my mind, the wishes of the survivors should be paramount on the issue of whether there is a national day of remembrance. Bernier went on to categorize the day of remembrance as a “cult of victimhood and obsession with past wrongs”. I wonder if he would also apply this logic to Remembrance Day on November 11th, or any of the war memorials that exist in Canada? Somehow, I don’t think so.

    The whole point of national days of remembrance and memorials is to ensure that Canadians never forget the atrocities that happened. The idea is to honour those we have lost and make sure history never repeats itself. It is a concept shared by most nations around the world. Germany for example has taken great steps to not only erase any Nazi symbols from their society, but also create memorials to remember the many lives lost. Here in Canada, we hope to have several national days of remembrance that include one for residential schools and memorials to lives lost, like murdered and missing Indigenous women. In recent months we have also been talking about how to deal with statues and other symbols of individuals who, despite being historic figures, were the perpetrators of a campaign of genocide against Indigenous peoples – like Sir John A. MacDonald. The TRC report confirmed that Canada engaged in all three types of genocide against Indigenous peoples – cultural, physical and biological. It is long past time that we talked about how to reflect history accurately and responsibly.

    Bernier’s Twitter rants about “extreme PC” couldn’t be further from the truth when it comes the ongoing legacy of injustice against Indigenous peoples in Canada. His Twitter tirades about immigrants who don’t share the same skin colour, religion or culture as him don’t reflect the laws of this country – Indigenous or Canadian. It’s highly ironic that Bernier would advocate against any more diverse immigrants while at the same time demand that Indigenous history be erased. I guess that is the privilege assumed by those whose ideas reflect and promote (directly or indirectly) white supremacy – as if anyone else is not only dangerous, but a threat to whiteness. While Bernier is only the most visible example of this kind of thinking, in fairness, he is not alone.

    Senator Lynn Beyak was booted from Conservative caucus after her racist postings about Indigenous peoples. Conservative MP Pierre Poillievre said racist remarks against residential school survivors on the same day as the apology. Former Conservative Indian Affairs Minister Bernard Valcourt regularly made racist comments against First Nations, at one point calling First Nation treaty Chiefs “threats to national security”. With regard to Bernier’s most recent comments, Conservative party leader Andrew Scheer has failed to specifically condone them, nor has he removed Bernier from the party – which he should do. This is not much of a surprise given the fact that Scheer’s own campaign manager was the founding director for Rebel Media which promotes white nationalism. 

    In the end, the Conservative Party needs to be very clear with Canadians about their party and what it stands for today. Andrew Scheer and the party either stand wholly behind Bernier or they do not – there is no in between. Right now, Scheer seems to stand more behind Bernier than not. It’s Scheer’s move now.

    To watch my Youtube video on this issue and participate in the ongoing discussion, click here:

    https://www.youtube.com/watch?v=BKl3j1B6VK8&t=1s