Warrior Life Studios

Pam Palmater

Tag: Harper Assimilation Agenda

  • #StayUnited against #FNCFNEA

    Since the time I was small, I have always been told by Chiefs, politicians and elders about the importance of our unity – unity within our Mi’kmaw families, our communities and Nation. Leaders even spoke about the importance of inter-tribal or inter-nation unity. I come from a territory where the Wabanaki Confederacy, a political allegiance of multiple Nations, built upon our Nations’ diverse backgrounds for common purposes. The relationships which came from this confederacy have lasted until present day.

    At the same time, my elders were careful to explain that unity is not about sameness. Unity is a type of bond or treaty amongst Indigenous Nations which celebrates the different strengths, histories, cultures, insights and skills of each Nation and brings them together to make the whole stronger. Unity is a celebration or embracing of those differences to make the treaty group stronger in defending its sovereignty, territories or peoples. It is not an agreement on all issues at all times. Nor is unity about each Nation conforming to one way of thinking or acting. Diverse Nations inherently have different needs, outlooks, priorities and ways of accomplishing their goals.

    Several long-time leaders also told me that unity for the sake of unity can cause more harm than good. Unity for the sake of unity denies the very differences we celebrate as Nations and shuts out the voices of caution, overlooked facts, multiple perspectives and potential outcomes. Sometimes these lone voices are mischaracterized as oppositional, trouble-making, politicking or disloyal. Consensus building takes a great deal of effort and time; so when these brave voices speak out against the consensus, sometimes its hard not to lose patience or be frustrated.

    Yet, elders have told me that those voices which delay consensus for a time are sometimes the most loyal citizens – citizens who care so deeply about their community or Nation that they risk ridicule and exclusion to raise potential threats to the collective. They may not always deliver the message as we’d like or even have all the facts, but that is what consensus building is about – providing everyone with all the facts, potential outcomes and perspectives so that when a decision is made, everyone understands and accepts its – even if not in total agreement. I believe the future of our Nations depends on the consideration and inclusion of all voices.

    The biggest impact on our ability as Indigenous Nations to maintain our unity in times of need is the impact of colonization. Generations of colonial ideologies, residential schools, Indian Act restrictions, federal divide-and-conquer tactics, and systems of government-imposed rewards and punishments have impaired our ability to see unity as we once did. Canada has divided us into good Indians and bad Indians – those who comply versus those who resist. In so doing, the hard work of unity-building within Nations is impaired because the focus is on one-size-fits-all Indians. In fact, pan-Indianness is so ingrained that we often criticize ourselves for not being unified as “Indians” when we should be unified in resisting pan-Indianness.

    Our unity as Nations is like a treaty – a coming together of certain Nations at certain times to assert or defend certain causes. We can be united to defend our right to control education but different in how we want to assert that control (depending on each Nation’s priorities and needs). Sometimes our unity is based on historical relations, regional similarities or broad national interests. Our unity is no less powerful because the Mohawks educate one way and the Cree another. The similarity is in the assertion of sovereignty and jurisdiction over our right to control our own education systems, methods, content and outcomes.

    With regards to Prime Minister Harper and National Chief Shawn Atleo’s education “deal”, this was not made in a good way, nor in the spirit of unity. In fact, the countless secret meetings, lack of information, and surprise announcements are counter to our traditional ways of building consensus and capitalizing on our strengths and differences in unity. The biggest problem is that no space was ever made for the possibility that there would be no unity on this deal – the deal was made for us without us at the table. The result is wide-spread distrust, anger and reaction – all justified. Now, our leaders are forced to account to their citizens for decisions of which they had no part, causing even further disharmony amongst our Nations. Yet, none of this had to happen.

    For many decades, First Nations have been tightly unified on their views about First Nation education. While we may have taken very different approaches to other issues, on First Nation education we all agreed. First Nations are united in their views that we have jurisdiction over every aspect of our education systems (however we choose as individual Nations to define them) and that we should be the ones in control. We have always held the position that Canada must live up to its legal obligations to recognize and implement our treaty, Aboriginal and other rights to education with adequate funding. We have always asserted that Canada needs to make amends for the damages caused to our languages and cultures from residential schools by providing the supports needed to advance and protect them in current education systems – First Nations or provincial.

    How we choose to get there is up to us. Some of us may want to negotiate sectoral self-government agreements in education; some may wish to use the current systems with modified funding, some may want a treaty-based system, and others may want to design and implement their own systems independently with completely different funding agreements. We may have different methods, but we are united in defense of our right to choose how we will implement our right to control our own education systems. We are not all one mythical race of Indians after all.

    Our current initiatives in resisting the Atleo-Harper deal on education are not about sour grapes, jealousy, politics, the next federal election, the next AFN National Chief election, or who’s “right”. Those are all red-herrings critics throw in the mix to keep people from focusing on the real issue – control over our own education systems. The reason why so many Chiefs, grassroots citizens, academics, lawyers and Canadian allies are against this deal is because it violates our fundamental right to control our own education systems. We are not fighting against unity – we are fighting desperately to maintain our long-held unity in education.

    The Harper government has become very adept at its divide-and-conquer techniques. It also uses funding as a reward-punishment tool to further control and divide us. It’s most effective tool so far has been using First Nations individuals and organizations to promote its assimilatory agenda. Trojan horses filled with assimilatory Aboriginal warriors march forward to implement Harper’s plan under the guise of what’s good for us. The numerous bills being imposed on us all have wonderful titles and great media sound bites that distract us from what’s inside the bills. Calling a bill “First Nations Control” is a lie if what’s inside is increased Ministerial control.

    I think most of us expect this from Harper, but the most hurtful and offensive part is that we don’t expect our own leaders to do this to us. National Chief Shawn Atleo has hurt us all by acting as if he had the right to make this deal in the first place; by acting so secretively and outside our traditional ways of building consensus; and then standing in defense of this destructive bill – no matter what First Nations say. Part of being a leader is being humble and admitting when you have made mistakes. Atleo could still stand with First Nations against this bill, but he refuses to do so. Atleo destroyed our negotiating leverage in Ottawa and now he has broken our unity on education. He refuses to listen to us.

    Unfortunately, we don’t have time to commiserate about it – we have to act. We cannot give Harper any ammunition to use against us as he tries to ram this bill through the House and Senate. We have to show that Atleo does not speak for us, as the Minister is already relying on Atleo’s endorsement of the bill as his “proof” of consultation and consent. We cannot let Harper hide behind any First Nation individual or organization to roll out his assimilation plan.

    Most of all, we have to stay united against this bill to protect control over our education and save our cultures and languages for future generations. If we voluntarily allow Canada to legislate our treaty rights, there is no undoing it later. Harper is desperate to turn the treaty right to education into a discretionary program and service that is subject to Parliament’s budgetary whims. We can’t let Harper do that.

    Harper is scared of our voices. AANDC is running scared and is tweeting in defense of itself. Harper can see the growing opposition from First Nations and is speeding up the review of the bill. We have the power to stop this. When First Nations stand in unity, there is no piece of paper, no legislation, or crooked politician that can stop us. The “winter we danced” as Idle No More showed the world how powerful in peace our people are when we stand together. I’ve always believed in the power of our people to make change – let’s stay united on education and give our children some hope.

     

    #StayUnited against #FNCFNEA

  • First Nations Controlled, First Nations Education Act: Standardizing “the Indian in the child”

    On February 7, 2014, Assembly of First Nations (AFN) National Chief Shawn Atleo stood with Prime Minister Stephen Harper and Minister of Aboriginal Affairs and Northern Development Canada (AANDC) Bernard Valcourt and announced a “historic deal” on First Nations education. They announced that the federal government would change the name of education legislation to First Nations Control of First Nations Education Act, together with $1.9 billion in future monies.

    Since then, First Nations have been trying to figure out on what authority AFN made this deal on our behalf, and what exactly this deal entails. Every time that NC Atleo or Harper speaks, it becomes more and more apparent that Atleo and Harper are NOT of the same mind in terms of what this “deal” entails. In case anyone had any doubt about the fragile, if non-existent agreement between AFN and Harper, one need only refer to the letter from AFN dated Feb.28, 2014 requesting clarifications from the Harper government about what the deal means.

    You don’t have to hire a lawyer to know that you never ever commit to a deal without knowing what the deal is – i.e., get the details in writing. Atleo’s letter asks critical questions like:

    –        Is Canada committed to working with First Nations?;

    –        Will Canada “engage” or “collaborate” with First Nations on legislative drafting?;

    –        Will existing agreements and MOUs be honoured by Canada?;

    –        Is the funding new funding?; and

    –        Is the funding secure?

    It is almost unbelievable that the AFN would be asking these critical questions AFTER the deal has already been made and announced. What’s worse is that the AFN is asking these questions AFTER Atleo’s many media appearances and their FAQ Sheet which purports to answer these questions. How can the AFN assure First Nations that they will get to “inform” the legislative drafting process and then a few weeks later, ask the federal government if they will work with First Nations on the legislation?

    The joint Atleo-Harper announcement on February 7, 2014 and all the media statements by both parties in the days and weeks that followed is a clear indication that there is no common understanding. Here is a summary of how each side interpreted the “historic deal” (that has no written commitments):

     

    What AFN/Atleo Said

    What Harper/Valcourt Said

     

     

    Respects & recognizes rights, title & treaties

    Not about rights, it’s about social development

    Incorporates reciprocal accountability

    Ensures transparent & accountable

    First Nations

    No federal oversight

    Feds will provide the standards, reporting and other oversight mechanisms to “ensure” First Nations meet “new” standards

    Statutory guarantee of funding to address “real costs” of education

    4.5% cap on funding

    (versus 6% pop growth)

    Funding is guaranteed

    Funding will be for “willing partners”

    AFN will “inform” legislative process

    Feds will draft legislation and regulations

    Limited “enabling” legislation

    Full “comprehensive” education legislation

    New deal for First Nations

    What’s best for Canada

    Allows for diversity

    Same standards for all First Nations

    If this is THE deal (historic, but unwritten); which promises First Nation control (federal control of First Nations); and capped funding (future monies less than what is needed to take on new responsibilities); and a new relationship (where we voluntarily give up our treaty right to education) – then NO DEAL.

     

    But we already told Atleo NO DEAL. We told him during Idle No More, we told him when the Chiefs marched on Parliament against legislation, and we told him when Ontario, Quebec and Saskatchewan pulled out of National Panel on Education. Atleo needs to start listening.

    http://www.youtube.com/watch?v=Qnt7HsXLFL8

     

    It’s not hard – the problem has been identified in 100 studies: lack of real First Nation control, lack of funding and lack of culture and language in schools. The solutions have already been identified as well: First Nation control, adequate funding and culture and language. Legislation has never been required to do the right thing. It’s an Aboriginal, inherent and treaty right that is protected in Canadian and international law. The government doesn’t need legislation to respect the rule of law.

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

     

    No amount of political spin can hide the swindle of the century  – legislating the future of our Nations out of existence by standardizing “the Indian in the child” to be like every other Canadian.

    #NoFNEA

    #NoFNCFNEA

    #ImpeachAtleo

     

     

     

     

  • Defer, Deflect, Deny, Destroy: Harper’s First Nation Education Act

    *(My apologies for the length of this blog – it’s too critical of an issue to cover lightly)

     

    Since the federal government first assumed control over First Nation education, First Nations have suffered poor educational outcomes. During the residential school era, federal control over First Nation education meant a very real chance of starvation, torture, abuse, medical experimentation, beatings and death for the students. Upwards of 40% of the children who entered residential schools never made it out alive and others were permanently scarred.

    Prime Minister Harper apologized for the residential school policy, but has not taken a single step to address the disastrous results which stemmed from it like lost culture, language, identity, traditional Indigenous knowledges, belief systems, values, customs and practices. No sooner was the weak apology offered when Conservative MP Pierre Poilievre condemned it as a waste of money. The Harper government soon followed the apology by cutting funding to Indigenous languages which confirmed the lack of sincerity in the apology.

    Even a child knows that an apology is more than words; it requires an acknowledgement of the harm done, acceptance of responsibility for that harm, a promise not to do it again and actions to try to make amends for the harm done. Harper has not offered a true apology nor taken real actions to address the significant harms done. A litigation settlement for personal injuries, rapes and molestations that happened in those schools does not address the assimilatory harms.

    If Harper was sincere about the wrongfulness of Canada’s long-standing assimilation policy, it would not continue to have assimilation as its number one policy objective with regards to First Nations. If there was a true interest in righting wrongs in First Nation education, Harper need only read the many reports, publications, studies and statistics in relation to First Nation education which have clearly outlined the problems and the solutions. Yet, Harper has implemented his standard modus operandi in relation to First Nations issues: deny, deflect, defer and destroy.

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

    Even when faced with contrary evidence, Harper’s government has consistently denied that there is a problem with funding or federal control over First Nation education. Instead they issue press releases and make public statements about how much they fund First Nation education and focus on isolated First Nations which have recently built schools. The Office of the Correctional Investigator, The Auditor General, Special Ministerial Representatives, United Nations investigators and numerous experts have raised the alarm on the serious nature of federal control over First Nation education. Some of the conclusions include the following:

    –        Indian Affairs has failed to implement recommendations “most important to lives and well-being of First Nations” (Auditor General 2011);

    –        73% of all water, 65% waste water systems in FNs are high risk – INAC so behind in infrastructure funding, will take $4.7 billion just to fix current systems (Neegan 2011);

    –        The “inequitable and differential outcomes for Aboriginal offenders” are the direct result of “federal correctional policies and practices” (Correctional Investigator 2010);

    –        “current funding practices do not lead to equitable funding among Aboriginal and First Nation communities” (OAG 2008);

    –        funding inequities results in inability for First Nations to provide adequate child welfare services (Auditor General 2008);

     

    –        “inequitable access to services for First Nations…contributing factors to the over-representation of Aboriginal children in child welfare system” (INAC 2004);

     

    –        Funding formula created by INAC does not ensure equitable access to education & gap widening (Auditor General 2004);

    –        INAC failed to give Parliament real picture on FN housing – said increased housing stock overall, but found an actual decline of 30% (Auditor General 2003).

    When the evidence is too overwhelming and the media will not let the issue drop, then the Harper Conservatives deflect responsibility and try to either change the subject or shift the blame to First Nations themselves by making allegations against First Nation leaders as corrupt or mismanaging funds. This pattern has been too consistent and one need only look at the housing crisis in Attawapiskat, the corresponding allegation of mismanagement and the court case which cleared Chief Spence’s name to see this m.o. in action.

    Sometimes, like in the case of First Nation education, the public criticism is so intense that deflection will not work and then Harper usually defers the issue to be studied. In the case of First Nation education, many successive federal governments have followed the same pattern of deferring the issue to study and the result is numerous studies. The problem for Harper is that all these studies continue to say the exact same thing: the problem is federal control and chronic underfunding of First Nation education. It should be no surprise that the studies were nearly unanimous in their solutions for poor First Nation education outcomes: First Nation control and appropriate funding. It’s not rocket science Harper.

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

    When faced with an issue that simply won’t go away, and the usual deny, deflect and defer tactics won’t work; Harper usually reverts back to federal policy objective of assimilating Indians: destroying the “problem” all together. In an aggressive full blitz attack, Harper has introduced a complex legislative agenda which will have essentially the same effect as the White Paper 1969 would have: destroy Indians, reserves, treaties and any programs and services associated with them. With regards to education, Harper will introduce the First Nation Education Act, national legislation designed to trick First Nations into voluntarily giving up their treaty right to education in exchange for a federally-controlled legislative program.

    What are the implications of this legislation? The draft legislation has not yet been shared with the public, so I can’t comment on the specifics, but based on INAC’s Blueprint for Legislation document shared with First Nations, one can clearly see that First Nation concerns were valid:

    (1)  Indian agent-type federal controls, inspections and approvals will be tight;  

    (2)  The potential option of local First Nation control is limited and conditional;

    (3)  There will be no guaranteed funding as funding will still be policy-based; and

    (4)  Although promoted as optional legislation, the legislation proposes to set out a process for legal recognition and authorization to run schools.

     http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ-EDU/STAGING/texte-text/fN-Education_blueprint-ebauche_1373053903701_eng.pdf

    One need only look at the current suite of legislation to see where this legislation is headed.

    Other serious concerns related to this legislation include the fact that there were no consultations which respect Canada’s legal obligation to obtain the free, informed and prior consent of First Nations required under section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Instead, engagement sessions were held in urban areas across the country and largely skipped the 615+ First Nation communities. This legislation is paternalistic, unilaterally drafted and meant to be a one-size fits all approach to deflecting the real issue: federal control and chronic under-funding. The majority of First Nations did NOT ask for legislation and in fact passed numerous resolutions at the national, regional and provincial levels specifically opposing this legislation.

    One cannot forget that for many First Nations, First Nation education is a treaty right and those treaties are protected in both domestic and international law. Treaties are forever and are now protected in section 35 and cannot be unilaterally amended. This, together with the fact that this legislation also proposes to off-load (at least in part) First Nation education to the provinces makes this legislation unconstitutional. Canada is forgetting that when it supported UNDRIP, that article 14 states that First Nations have a right to establish and control their own education systems and Canada has an obligation to ensure that First Nation children have access.

    The failure to address First Nation education outcomes doesn’t even make economic sense. The 2% cap placed on funding has only made a bad situation worse. Yet, the studies show that were Canada to eliminate the gap between Canadian and First Nation education outcomes, this would yield $179 billion on GDP back to Canada. Why then would Canada continue to pay $100,000 a year to wrongfully imprison First Nations peoples, when a 4 year university education only costs $60,000 and we know the social and economic benefits of a good education? Canadians enjoy good education systems funded in large part from the wealth obtained from Indigenous lands and resources. It’s time to share the wealth as envisioned in the treaties.

    Every time Canada comes up with an idea on how to “fix” the “Indian problem” our people are oppressed, assimilated or lose our lives. Canada has failed miserably in their First Nation education policies. It’s long past time to step aside and allow First Nations peoples to heal from the inter-generational devastation caused by federal controls and fully support First Nation-controlled education systems. The treaties promised to fund these systems so that First Nations would prosper equally with our treaty partners. It’s time the treaties were honoured and all parties to the treaties enjoyed the benefits.

    Forget more paternalistic federal legislation and honour the treaties.

  • Human Rights Museum or Harper Propaganda Show?: Genocide in Canada Denied

    Canada has a dark history – one which begins long before Confederation in 1867. The state of Canada, which was previously a British colony, was only made possible by the theft of Indigenous lands and resources, and the genocide of Indigenous peoples. While some government officials will admit that some of their laws and policies may have resulted in assimilation, you will never hear any of them speak of their elimination policies which resulted in genocide. What is the difference between assimilation and elimination? Assimilation is when one group (usually the colonizing settler government) tries to force another group (Indigenous peoples) to abandon their culture, language, values, traditions, practices and beliefs for those of the colonizer. Policies like residential schools, resulted in the disruption and loss of Indigenous language and culture. This can and has resulted in inter-generational trauma in many Indigenous families, communities and Nations. Elimination policies are much more direct. The scalping bounties issued in the Atlantic region for the scalps of Mi’kmaw men, women and children were meant to physically eliminate Mi’kmaw peoples. The distribution of smallpox blankets to Indigenous peoples were meant to physically eliminate Indigenous peoples through the ourposeful spread of a deadly disease. Similarly, the forced sterilization of Indigenous women in Canada without their knowledge and consent was also meant to eliminate any future population of Indigenous peoples. These are what have been called elimination policies. Some will debate whether the residential school policy was a policy of assimilation or elimination, but I argue that it was both. The physical abuse for practicing one’s culture is a form of forced assimilation; whereas the starvation, torture and medical experiments conducted on the children which resulted in upwards of 40% of the children dying, is elimination. Whether it is assimilation or elimination, all of the acts fit under the definition of genocide as noted in the UN Convention Against Genocide.

    Article 2

    In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

    http://www.hrweb.org/legal/genocide.html

    If you look at any of the criteria, Canada has committed acts under each which can be defined as genocide. The colonizing governments have: (a) purposely killed Indigenous peoples (smallpox blankets, residential schools, scalping bounties, starlight tours); http://www.cbc.ca/news/canada/story/2013/02/18/residential-schools-student-deaths.html (b) have caused serious bodily harm (residential school torture, deaths and beatings in police custody, medical experiments in residential schools and in First Nation communities); http://www.theglobeandmail.com/news/national/hungry-aboriginal-kids-adults-were-subject-of-nutritional-experiments-paper/article13246564/ (c) deliberately inflicted conditions meant to bring about death and illness (chronic under-funding of essential human needs like water, sanitation, housing, and food); http://pi.library.yorku.ca/ojs/index.php/crsp/article/viewFile/35220/32057 (d) prevented births (forced sterilization of Indigenous women); http://www.naho.ca/documents/naho/english/publications/DP_womens_health.pdf (e) transferred children our of Indigenous communities (residential schools, massive 60’s scoop where kids taken and adopted into non-Indigenous families,  current policy of child apprehensions); http://www.originscanada.org/the-stolen-generation/ Thus, if the new Canadian Museum for Human Rights will not use the term genocide to describe what Canada has done to Indigenous peoples in Canada, then its own credibility will be called into question. A few staff members at the museum do not have the right decide how history will be presented. The grisly facts about Canada’s treatment of Indigenous peoples is something that must be recognized and accepted if there is any hope of moving forward in a good way or at least in a way which does not repeat the atrocities of the past. One does not have to look too far to find the real reason why the museum will not use the word genocide – it is Crown corporation, i.e., an arm of the government. The museum staff are quoted as saying: “as a Crown corporation, it’s important the museum’s terminology align with that of the federal government”.This Harper government’s modus operandi is to control information, silence opposition and present propaganda instead of open, accountable fact-based reports. http://www.winnipegfreepress.com/local/cmhr-rejects-genocide-for-native-policies-217061321.html While the museum appears to be relying on the fact that Canada has refused to acknowledge that its policies against Indigenous peoples were genocide, they should also note that those governments and politicians who have committed genocide in other parts of the world never admitted their illegal activity either. Canada will never admit wrong-doing unless and until it is brought to justice. Even Canada’s watered-down residential schools apology was quickly followed by a denial that any cultural genocide took place. http://aptn.ca/pages/news/2011/10/27/residential-schools-saganashduncan-apologize/ There is little point in even opening this museum if its only purpose is to act as a propaganda machine for the federal government. We can expect little more than government-approved pictures, displays, and histories if even the terminology are going to be censored. Why waste all that money, when one could simply log on to the Harper government website and read the propaganda directly? The continued denial of genocide in Canada, against the weight of much academic research and evidence, shows that Canada (the government) has no real interest in moving forward in a respectful relationship with Indigenous peoples. In fact, all of Harper’s actions to date indicate a desire to go back in time and resurrect old assimilation policies. Perhaps this is the real reason why Harper does not want the museum to educate Canadians about the truth? http://rabble.ca/blogs/bloggers/pamela-palmater/2012/09/harpers-manifesto-erasing-canadas-indigenous-communities

  • Bill S-2 – Family Homes on Reserve and Matrimonial Rights or Interests Act

    Harper’s Conservatives have given the signal that they may, once again, refocus their legislative eye on Bill S-2 Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise known as the MRP bill). To this end, the parties have been preparing to study the bill and hear from witnesses on possible amendments.

     Most of Canada’s legislative initiatives go largely unexplained to grassroots Indigenous peoples – community members and leaders alike. This Harper government, in particular, has done everything it can to mislead, misinform, distract, confuse and outright lie to First Nations about its intentions with regards to the Indian Act. More so, they have done very little to explain the implications of bills to those who will be impacted – First Nations community members.

     Most will recall Prime Minister Harper’s infamous words at the so-called Crown-First Nation Gathering this past January: “To be sure, our Government has no grand scheme to unilaterally repeal or to unilaterally amend the Indian Act.”

     Yet, here is the extensive list of government bills currently before Parliament which will unilaterally repeal or fundamentally alter the Indian Act in significant ways:

              Bill C-428 Indian Act Amendment and Replacement Act

              Bill C-27 First Nations Financial Transparency Act

              Bill S-2 Family Homes on Reserve & Matrimonial Interests or Rights Act

              Bill S-6  First Nations Elections Act

              Bill S-8  Safe Drinking Water for First Nations Act             Bill S-207  An Act to Amend the Interpretation Act  

    This does not include any of the omnibus or other bills which impact First Nations. There are two others bills expected to be introduced in the New Year as well:

               First Nation Property Ownership Act

              First Nation Education Act

    It would be almost impossible for First Nation community members to know what these bills are really about simply by reading the titles of the bills. The Conservative Party is very good at using titles for their bills which betray what the bill actually does. Bill S-2 is a prime example of a bill that is being promoted as one which will protect Indigenous women from domestic violence and “give” them equal rights upon marriage or relationship breakdown. This bill does neither of those things.

      It would make this blog far too long to review all of the sections, but communities should be aware of several problematic areas. The Preamble (which is just an introduction and does not contain any law) does give an important indication of the two theoretical underpinnings of the bill:   (1)   The bill has an individual-rights/interest focus versus an Indigenous communal, holistic approach; The bill focuses on the best interests of the individual child as opposed to the collective, inter-connected interests of the entire family (including the child), extended family, community and Nation. It is this very approach that led to residential schools, 60’s scoop and the current over-representation of our Indigenous children in the care of child welfare.

    (2)   The bill views First Nations peoples as “cultures” versus to governments with their own jurisdictions or Nations with their own sovereignty.

     The bill focuses everyone’s attention on the particular culture of the First Nation – which is to be “considered” by a judge in a marital dispute over property. However, there is no deference for First Nation legal or governance jurisdiction over property disputes over their own territories. This is very similar language to Supreme Court of Canada cases which have essentially frozen Aboriginal rights in “pre-contact” times and only protect those rights which the court considers “integral” enough. In this case, non-Indigenous people will be judge and jury over what our culture is, which parts of it are important, and whether it is relevant to property issues on reserve.

     The general focus of the bill is to enact provincial-like rules with regard to the divison of marital property on reserve after the break-up of a marriage or common-law relationship. This essentially means that each spouse is entitled to half – the house, land, etc. However, these provincial-like rules are not optional – they are mandatory. While the act considers them to be interim rules, the fact is no funds have been allotted for governance, law-making or enforcement and thus for many First Nations, they will remain permament. The bill also contains the following provisions:

     

    –          They apply to all First Nations until they enact laws pursuant to the bill;

    –          Non-Indians will be able to gain rights (exclusive occupation, life interest, etc) to the home and contiguous land on reserve;

    –          A judge can make a ruling that violence has occurred and bar that person from the house, without the alleged offender being charged or convicted;

    –          First Nations are not entitled to notice for emergency protection orders which give possession to a house and land to non-Indians;

    –          Certificates of Possession can be forcibly transferred from one First Nation spouse to another; and

    –          A person who is not member/Indian, can apply to have order enforced as though he/she was member/Indian.

    Without getting into too much technicality, this bill either conflicts with or violates various Canadian laws:

     

    (1)   Bill S-2 conflicts with the Indian Act – The Indian Act reserves land for the exclusive use and benefit of Indians and make it an offense for non-Indians to trespass on reserve, yet Bill S-2 creates new rights for non-Indians on reserve;

    (2)   Bill S-2 is outside is outside Canada’s legislative authority in section 91(24) of the Constitution Act, 1867 – This is because Canada is purporting to legislate with regard to the property and civil rights non-Indians which is the exclusive jurisdiction of the provinces. Thus, provincial legislation will also be required to make the bill effective.

    (3)   Bill S-2 violates section 35 treaty rights in the Constitution Act, 1982 – This is because many reserves were set up via treaties, which are now protected in section 35. These treaties are for the benefit of Indians – not non-Indians.

    (4)   Bill S-2 violates section 35 Aboriginal rights in the Constitution Act, 1982 – This is because the inherent right of First Nations to be self-governing over their own peoples and lands is recognized by Canada as protected in section 35. Yet with this bill, Canada purports to control internal matters even more than they do now.

     

    (5)   Bill S-2 represents a breach of Canada’s honour, its fiduciary obligations and its legal duty to consult and accommodate. Bill S-2 was drafted without First Nation input, there were no legal consultations, and the bill will result in more federal control, not less.

    (6)   Bill S-2 violates many articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – including:

     

    Art.3 – the right to be self-determining;

    Art. 4 – the right to be self-governing over our own internal affairs;

    Art. 19 – the right of free, informed and prior consent before ANY legislative measures that affects us; and

    Art. 37 – the right to recognition and enforcement of our treaties.

    Some of the other key concerns that have been raised by witnesses who have testified previously include the lack of access to justice as all remedies must be access through courts, no funding is provided for accessing legal services, and many communities don’t have local access to courts. The issue of housing on marital breakdown is further complicated by Canada’s refusal to address the housing crisis or provide adequate funding for shelters.

     

    There are many other issues not outlined here in order to keep this blog simple. However, I will be publishing a more detailed analysis of both direct and indirect impacts of this bill.

     My recommendations (in part):

     (1) The Status of Women committee who will be studying the bill should reject the bill in its entirety. The entire bill conflicts with both Indigenous laws and Canadian law and cannot be saved.

     (2) Canada should respect its own policy position that First Nations have a right to be self-governing which is constitutionally protected within section 35. This would correspond with the right to be self-determining as per Article 3 of UNDRIP.