*This article was originally published in Lawyer’s Daily on June 4, 2018 Prime Minister Trudeau and his Liberal Party have been taking a significant amount of heat for their collective failures to act on their substantive promises to First Nations — including, water, housing, education health and Aboriginal, treaty and land rights and title — as well as his approval of the Kinder Morgan pipeline without First Nation free, prior and informed consent. Here in Ontario, many First Nations also have their focus on Election 2018 and what it might mean for their relationship with the Crown in right of the province of Ontario. In theory, it shouldn’t matter which party gets elected in Ontario assuming they follow the rule of law which includes respecting Indigenous laws, the right to be self-determining, inherent rights, Aboriginal rights and title, treaty rights and the right to free, prior and informed consent. However, we know from practice that federal and provincial governments breach Aboriginal rights more than they honour them — so in that respect, it really does matter which party is elected — at least to some degree. It is important for voters — First Nations and Ontarians alike — to be familiar with the actual platforms of each party and not just their catchy slogans. We need to know in what ways these candidates will move forward in a spirit of reconciliation with First Nations in concrete terms. To this end, only two of three major parties have grown-up platforms — the NDP and the Liberals. The Conservatives don’t have an actual platform — unless we include the 12 promises made on the landing page of Doug Ford’s website — none of which contain more than a few sentences or mention Indigenous issues. Of the three platforms, only the NDP and Liberals have commitments specific to First Nations. The NDP and Liberal platforms share similar promises to First Nations, including their general commitment to reconciliation and to maintaining a government-to-government relationship. They also both commit to maintain support for the national inquiry into murdered and missing Indigenous women and girls as well as addressing racism in the justice system. Both also commit to cleaning up the mercury contamination at Grassy Narrows and to ensuring that the Ring of Fire is developed. Responsibility for First Nations health care has been the subject of much debate between the federal government’s section 91(24) jurisdiction in regards to “Indians and lands reserved for the Indians” and the provincial government’s section 92(7) jurisdiction in relation to hospitals. This debate has largely left out First Nation jurisdiction and the treaty responsibility to provide health care — a responsibly which is shared by the Crown in Right of Canada and the province. However, unlike other provinces, both NDP and Liberal platforms in Ontario make significant funding commitments to fill federal underfunding in health care on reserve. There are key areas where the NDP and Liberal platforms differ. The NDP promises to work with First Nations to create stable revenue sources, including resource revenue sharing. One of those commitments is to transfer all taxes made from mining in Ontario to First Nations, which the NDP estimate to be about $218M over five years. The Liberal platform on the other hand does not specifically commit to share in resource revenues, but only agrees to share in the “benefits of resource development” which could literally mean anything, but most likely refers to the usual jobs and community projects. In a similar vein, the NDP also specifically commits to respect First Nation treaty rights— something the Liberal platform does not address. Neither party addresses Aboriginal title and treaty land issues, or the addition of much-needed lands to reserves, except the Liberals who agree to continue land claim negotiations trilaterally with First Nations and the federal government. One need only look at the long-standing Six Nations land claim for the Haldimand tract as an example of how ineffective these negotiations are as “solutions” to land claims. Another critical area where the NDP and Liberals differ is in how they plan to address the crisis over over-representation of First Nations children in the foster care system — something federal Indigenous Services Minister Jane Philpott called a “humanitarian crisis.” Yet despite the crisis, the federal government has delayed complying with the orders of the Canadian Human Rights Tribunal to end racial discrimination and properly fund First Nation child and family services. Therefore, it matters whether or not the province of Ontario will step in. The Liberals have not made any commitments to address this crisis, but the NDP has promised to work toward the goal of no First Nation children in care; to end the use of solitary confinement for children; and to work with First Nation leaders and experts to identify the needs of these children. Both the NDP and Liberals commit to making First Nations a priority in terms of skills training. Neither made mention of specific contributions to First Nation post-secondary education, though the Liberals currently provide some funding to First Nations to attend university as well as support Indigenous educational institutes. Both plan to support Indigenous institutes and programming for Indigenous children, youth and families living off-reserve. Only the Liberals have made a commitment to fund 4,500 new childcare spaces on reserve and $70M over two years for childcare spaces for off-reserve children and families. This is a significant commitment given the fact that most children on reserve live in poverty and their homes are mostly headed by single mothers who could use childcare support for education, training and employment. Ultimately, both the NDP and Liberals make significant commitments to First Nations. The Conservatives have made no commitments at all. In fact, the 12 bullets on Ford’s webpage tend to show more of an obsession with Kathleen Wynne and ending carbon taxes. So far, all we have to go by is Ford’s reported failure to respond to requests for his Indigenous platform; his alleged refusal to allow an Indigenous woman to one of his events; he and his family’s alleged involvement in the drug trade; his alleged need to hire actors at events as supporters; and his alleged purchase of bogus memberships to support Conservative candidates — let alone his Trump-like views on women’s reproductive rights and climate change. He is not likely to be a strong candidate for the First Nation vote. Finally, there was no firm commitment by any party to address First Nation land and resource ownership or specific treaty rights. Nor was there any firm commitment to implement and respect the right of First Nations to free, prior and informed consent before any provincial decisions, laws or actions are implemented that might impact First Nation rights and title. In the end, whoever is elected will face the same issues as Trudeau and will have to decide whether reconciliation includes the rule of law, including Indigenous law, treaty law and constitutional laws, or more empty promises. *Link to the article that originally appeared in Lawyer’s Daily on June 4, 2018 https://www.thelawyersdaily.ca/articles/6628/the-first-nations-agenda-in-the-ontario-election-pamela-palmater?category=columnists
Tag: free prior informed consent
-
Trudeau’s Dance of Deception on Indigenous Rights
*Originally published in Lawyer’s Daily on February 26, 2018 (edited to include links) On Feb. 14, 2018, Prime Minister Justin Trudeau announced his plan to develop a new legislative framework called the “Recognition and Implementation of Rights Framework” intended to recognize Indigenous rights and avoid litigation. This announcement came after the incredible not guilty verdict in the Gerald Stanley murder trial — the farmer who killed Colten Boushie from Red Pheasant First Nation — and the subsequent nationwide rallies and protests by Indigenous peoples.
There is no doubt that Trudeau was trying to deflect attention from the deep-rooted racism within Canada’s justice system — but also in his own government’s failure to take substantive action on any of the injustices facing Indigenous peoples. Despite his many pre- and post-election promises to Indigenous peoples — Trudeau has been all talk and little action.
Aside from the opportunistic nature of his announcement, it is important to note that this is nothing new. Since his election, Trudeau has made the same core promises to recognize and implement Indigenous rights in a multitude of strategically timed announcements. He campaigned on reviewing and repealing all laws imposed on First Nations by the former Conservative government headed by Stephen Harper. He promised to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the provision of free, prior and informed consent which he confirmed meant a veto for First Nations.
After he was elected he reconfirmed that his government would renew the nation to nation relationship based on rights recognition. However, his mandate letters to his cabinet tended to focus more on specific social programs than any rights-based agenda. Despite these very telling mandate letters, Trudeau managed to maintain the fanfare around his government’s commitments at the Assembly of First Nations’ (AFN) Chiefs in Assembly meetings in 2015 and 2016. With very similar impassioned speeches, he re-announced his government’s commitment to repeal all of Harper’s laws, review all Canadian laws to ensure their compliance with section 35 Aboriginal and treaty rights and implement UNDRIP.
However, year after year, he has not taken any substantive steps in this direction. Therefore, when yet another announcement was made in June 2017, this time about a Memorandum of Understanding between the AFN and Canada, there was some expectation of concrete deliverables. Like all other announcements to date, the pomp and circumstance celebrating the MOU overshadowed the fact that the only hard commitment in the MOU was to meet with the AFN three times a year to talk.
This is the well-choreographed dance used by Trudeau to make Canadians and Indigenous peoples believe that he is making great strides, “absolutely historic” advancements, or engaging in a “fundamental rethink” of the relationship with Indigenous peoples. Sadly, the AFN has become a willing partner in this deception. Had the AFN been doing its job, it would have advised First Nations not to count on the speeches and announcements, but to force hard commitments on paper. It should have been concerned that Trudeau’s legislative framework idea is yet another federal government idea, much like the creation of two Indian Affairs departments — neither of which was requested or developed by First Nations.
We know from the Royal Commission on Aboriginal Peoples and the most recent Truth and Reconciliation Commission report that every time Canada imposes solutions on us — our lives get much worse. This announcement is no exception. Despite trying to distance himself from his father’s legacy, Justin Trudeau is covertly trying to do what his father Pierre Trudeau tried to do directly.
In 1969, then Liberal Prime Minister Pierre Trudeau, together with his Minister of Indian Affairs, Jean Chretien released the 1969 White Paper on Indian Policy. The goal was to repeal the Indian Act, dissolve Indian Affairs, eliminate Indian status, get rid of reserves and treaties.
There was tremendous opposition to this plan by First Nations, including protests and several official responses, including Citizens Plus — dubbed the Red Paper — from First Nations in Alberta and Wahbung: Our Tomorrows from First Nations in Manitoba. In both of these responses, First Nations said they did not want the Indian Act repealed and that any amendments had to be done with their consent. They also said that their separate status as Indians and treaty beneficiaries were to stay. Most importantly, they reconfirmed what First Nations have long said: that they need their lands, resources and jurisdictions recognized so they can rebuild their Nations. Trudeau abandoned the 1969 White Paper, but subsequent governments have never stopped trying to fulfil its objectives.
Now, Justin Trudeau, who did not consult with First Nations nationally, has made unilateral decisions about Indigenous peoples including changing the name of the department, creating two new departments, limiting nation to nation relations to meetings with the AFN and a new legislative framework to limit Indigenous rights. We know that this legislation will limit rights because of the code words used by Trudeau during his announcement. His focus on “certainty” is a Justice Canada word used to extinguish Indigenous rights and title. His comment that this process is not about getting back what was lost — is code for no return of lands and resources or compensation for the loss of use or benefit.
Trudeau’s confirmation that no amendments would be made to the Constitution means that no substantive recognition of Indigenous jurisdiction will be made. Finally, his focus on doing this to avoid the courts is another way of saying that he doesn’t want any more court cases upholding our rights to land and our right to decide what happens on our lands. Justice Minister Jody Wilson-Raybould made it very clear that free, prior and informed consent (FPIC) in UNDRIP “does not equate to a veto” — a stark contrast from Trudeau’s promise that FPIC “absolutely” equates to a veto.
Trudeau’s dance of deception has the potential to gut Indigenous rights, treaties, title and jurisdiction in Canada, especially if he is permitted to ride the pomp and circumstance of these carefully worded, flowery announcements to royal assent before the next election — as he promised. Conflict is coming and the true test of reconciliation will be over our right to say no.
See also my related video providing a basic explanation of the federal legislative framework: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s