Warrior Life Studios

Pam Palmater

Tag: Human Rights

  • My Submission to United Nations Human Rights Committee on Canada’s Human Rights Violations

    My Submission to United Nations Human Rights Committee on Canada’s Human Rights Violations

    Statement of Pamela Palmater

    to the

    114th Human Rights Committee Session:

    Formal Briefing on Canada

    (July 6, 2015 Geneva, Switzerland)

    Kwe, n’in teluisi Pam Palmater. I am from the sovereign Indigenous Nation of the Mi’kmaq in Mi’kma’ki, Canada. I am here as an impacted Indigenous individual thanks to the support of Franciscans International. Today I would like to testify to three urgent situations related to Canada’s obligations under the Covenant which are also raised in the joint submission presented by the NGO Mining Working Group in response to the List of Issues which I fully support:

    First, the criminalization of Indigenous peoples in Canada for our human rights advocacy and defense of our lands.

    Federal and provincial laws and regulations have criminalized Indigenous peoples’ traditional occupations and trade economies by making it illegal to hunt, fish, gather or use our natural resources within our traditional, treaty, title, trapping or reserve lands. Engaging in Indigenous rights advocacy or defense of the environment to protect the health of our lands, waters, plants, animals and people also results in our public vilification, beatings, arrests, imprisonment, and/or deaths.

    The incarceration rate for Indigenous peoples is 10 times higher than the national average. Since 2000, the Indigenous inmate population has increased by over 56% and in some prisons, represent as much as 65% of the inmate population. The Government’s own studies have consistently concluded that it is the result of racism in Canada’s justice system.

    The recently enacted Anti-Terrorism Act (C-51) threatens to treat peaceful Indigenous activists as potential terrorists. There are several examples in which Canada’s Ministers, military, and RCMP have already labelled First Nations as “insurgents”, “eco-terrorists” and “threats to national security.” Given this context, we feel that we will be targeted under this law if we continue our traditional practices.

    Second, the Committee ought to emphasize the growing crisis of poverty and discriminatory treatment of Indigenous peoples.

    Despite being less than 4% of the population, Indigenous children make up nearly 50% of all children in state care (90% in Manitoba). 73% of all water systems in First Nations are at high risk – for those that have running water. The majority of houses on reserve are in need of major repair and/or overcrowded (upwards of 25 people to a home). Indigenous peoples suffer higher rates of ill health, accidents, and injuries and have some of the highest suicide rates in the world. Indigenous women and girls are over-represented in those that are murdered or missing – 16% nationally, but as high as 55% in provinces like Saskatchewan. Indigenous peoples have lower rates of education and employment and live 7-20 years less than Canadians.

    As different UN mechanisms have consistently found, this crisis is particularly jarring in a wealthy and highly developed country like Canada – especially since the majority of the wealth comes from Indigenous lands.The situation is aggravated by the Government’s failure to protect Indigenous peoples’ rights, to remedy harms, and to properly fund Indigenous institutions.

    Third and finally, I emphasize Canada’s failure to consult with Indigenous peoples regarding legislation and actions impacting Indigenous lands and waters.

    Despite decisions from the Supreme Court of Canada directing Canada to consult, accommodate, and obtain the consent of Indigenous peoples, Canada has unilaterally limited debate and refused to consult with Indigenous peoples on legislation which impacts our inherent, Aboriginal and treaty rights.

    Peaceful civil actions by Indigenous peoples to protect lands and waters from clear-cutting, mining, hydro-fracking or pipelines are met with heavy RCMP intervention. State law enforcement is used to protect state subsidized corporations to engage in the extraction of Indigenous lands, waters and resources without our consent, to our social and economic detriment, to the destruction of our lands and waters and in violation of our human rights.

    Together with the NGO Mining Working Group, I urge the Committee to consider the following recommendations for Canada:

    (1) Repeal Bill C-51 Anti-Terrorism Act and all recent legislation unilaterally imposed on Indigenous peoples and start a comprehensive study and consultative process in partnership with Indigenous peoples;

    (2) Develop independent and more robust oversight, reporting, and redress mechanisms for Canada’s national security activities, law enforcement, and surveillance of Indigenous peoples and other environmental and human rights defenders;

    (3) Take all measures necessary to ensure that all domestic and international extractive activities by Canadian corporations comply with human rights obligations, including obtaining the free, informed and prior consent of Indigenous peoples;

    (4) Provide adequate funding to Indigenous peoples to address the multiple, over-lapping crises in education, health, housing, food, water, infrastructure, flooding;

    (5) Take emergency action to address structural discrimination especially the over-representation of Indigenous children in care; murdered and missing Indigenous women and girls; and the over-incarceration of Indigenous peoples; and

    (6) Implement treaties, address outstanding claims of lands and resources; and develop a more equitable revenue sharing structure in partnership with Indigenous peoples.

    (    Note:        

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

           The Committee only allows 3 minutes to present. Therefore, all presenters had to pick only 2 or 3 core issues to discuss. I could not read the entirety of even this small submission, so I hit the highlights of the issue and read the recommendations. Sharon McIvor was there to make a submission on two issues: murdered and missing Indigenous women and sex discrimination against Indigenous women and their descendants in the Indian Act registration provisions. Art Manuel presented on self-determination and Canada’s failures in this regard. Amnesty International spoke on a variety of issues, one of which was Bill C-51 and recommending its repeal. f

  • Transcript of my Testimony on Bill C-51 Anti-Terrorism Act – March 24 2015

    Dr. Pamela Palmater (Chair in Indigenous Governance, Ryerson University, Department of Politics & Public Administration, As an Individual)*  Thank you for inviting me here today to speak. I want to first acknowledge that we’re on the traditional territory of the Algonquin Nation and that’s not just the polite acknowledgement. That’s the very reason why all of you get to sit here today. Were it not for the cooperation, generosity, kindness, and political alliances, Canada wouldn’t be what it is. Were it not for the peace treaties between our nations that are now constitutionally protected and form part of the foundational aspect of Canada, none of us would be sitting here today. I think that goes to the very heart of Bill C-51 and why I am opposed to it. Canada has placed Bill C-51 before indigenous peoples without any information, analysis, details on how it will impact our nations, any consultation, information or consent from our part. It is a gross violation of our nations to nation relationship. I don’t have time to go through all of the technical legal details and problems with this bill except to say that I echo all of the concerns that have already been brought and will be brought by the thousands of lawyers in this country, security experts, former prime ministers and former Supreme Court of Canada justices. My main concern is how this bill will impact me, my family and indigenous peoples all over Canada and our treaty partners, other Canadians.   Canada has a long history of criminalizing every aspect of indigenous identity. From the scalping bounties in 1949, which nearly wiped out my Mi’kmaq Nation, to the Indian Act, which has outlawed our culture, our right to educate our own children, and even excluded indigenous women from our communities. Every aspect of our identity has been criminalized, both historically and continues into present day. In every single instance, we’ve had to resist all of these laws, keeping in mind these were all validly enacted laws. It was legal to take Mi’kmaq scalps; it was legal to confine us to reserves; it was legal to deny us legal representation. All of these things were law in Canada. We had to be criminals as in, we had to break the law in order to preserve our lives, our physical security, and our identities. We are being faced with this very problem again with Bill C-51. Over the years, these laws have morphed into provincial and municipal regulations that deal with even our traditional means of providing subsistence—hunting, fishing, gathering have all been so criminalized for indigenous peoples that we end up skulking around in the forest just to be able to provide food for our families. Every single court case that has been won at the Supreme Court of Canada has been a battle between indigenous peoples trying to live their lives and exercise their rights and identities facing some kind of criminal or regulatory charge. In every single instance, we have been labelled as criminals, treated as criminals, and one need only look at the current prison population to understand that this is still the case; not just the case, but as Howard Sapers, from the Office of the Correctional Investigator, has indicated, a “national crisis and embarrassment.” And why? Not because we’re actually terrorists; not because we’re more culturally predisposed to being criminals, but as a direct result of Canada’s discriminatory laws and policies. There have been endless justice inquiries, which have pointed to the infection in our Canadian justice system of racism. The Donald Marshall wrongful prosecution inquiry, the Manitoba justice inquiry, the Ipperwash Inquiry, say that every aspect of our justice system, from the arresting officers, to the lawyers, to the judges, to the prison systems, overtly and systemically discriminate against indigenous peoples. That’s our current reality. Bill C-51 proposes to take that to the last and final step. All we have left now, as indigenous peoples are our thoughts. Our private thoughts will now be criminalized. It will now be possible to be considered a terrorist for storing alleged terrorist propaganda on our own personal computers. My declaration of sovereignty, and I’m going to say it before Bill C-51 passes, I’m part of the sovereign Mi’kmaq Nation. That kind of material on my computer could be considered terrorism, a threat to national security because it’s a threat to Canada’s sovereignty. Welcome to the new terrorist. My name is Pam Palmater. I’m a lawyer, I’m a professor, I’m a mom, and I’m a social justice activist. I’ve won numerous awards for my work in social justice, women’s equality, and children’s rights but depending on whose radicalized view you speak of I have also been called a radical, bad Indian, eco-terrorist, enemy of the people, top-five-to-fear Canadian, dangerous militant, and Waco extremist. My biggest concern isn’t how I’m presented in the media or by government officials, I’m stronger than that. My biggest concern concern is how this impacts me right now, the level of government surveillance for a law-abiding, peaceful, social justice activist, who’s never been arrested or convicted of any crime. In my ATIP to CSIS they explain that they have a right to prevent subversive and hostile activities against the Canadian state which is why they have a file on me. However they don’t offer me the courtesy of saying why I would be considered subversive or hostile, in fact everything I do couldn’t be more public.   In my ATIP to Indian Affairs they would not confirm that they monitor me. However they said they do conduct an analysis of me and my activities because I’m an active voice. That analysis comprised 750 pages of documents which tracked all of my whereabouts, what provinces I was travelling to, where I was speaking, and the dates and times. However they could not provide my security file because it was destroyed. When I attend gatherings, rallies, protests, or public and private events I often cannot make cell phone calls, send texts, or access my social media, my bank cards, or my credit cards. I can be at an Idle No More rally or protest and text my children but I cannot communicate with the very chief who has the same protest. This causes me great concern for my safety. How am I supposed to help ensure the comfort and safety of the people at rallies and myself if I can’t communicate with anyone…and I don’t have to remind this committee the staggering statistics and vulnerabilities of indigenous women in this country. I contacted the RCMP as well. They never responded to my ATIP, however individual RCMP officers at various events have confirmed that they were there to monitor me. At numerous protests I have been informed by RCMP and provincial police that I had to keep my protest peaceful. Sometimes they didn’t identify themselves. At speaking engagements the host first nation would demand that any undercover RCMP, or Ontario, or other police officers identify themselves and in many cases they did. What’s more concerning is the number of government officials that follow me around from speaking engagement to speaking engagement and often identify themselves when called upon to do so. Probably the most shocking is when I travel internationally in countries like Samoa, Peru, England, and Switzerland only to be informed by local authorities that Canadian officials are there to monitor me. That’s very frightening in a country where I have committed no crime, but to advocate peacefully on behalf of my people. In the Prairie provinces the RCMP are very active. They will often call ahead to the University of First Nations where I’m speaking and ask them to identify what my target will be or where I plan my protest. This isn’t just a problem for me. We’ve all heard about Cindy Blackstock and others. Skipping of course to what my recommendations are because I can see that I’m out of time. Bill C-51 must be withdrawn there is no way to fix it. There must be proper public information consultation, specific consultation for indigenous peoples, and a proper parliamentary study. Directing Justice Canada to rubber stamp the bill is compliant even if it has a 95% chance of being overturned in court is not democratic. We need an independent review body to report on the ongoing surveillance of indigenous peoples that will take complaints, do proper investigations, and offer redress. Finally, we’re in desperate need of a special first nation advocate to be appointed for any and all court processes in all provinces and territories whenever applications are made in secret for court warrants. This person would be an amicus, a friend of the court who would be independent and can speak to all of the various constitutional and indigenous rights at stake. This is absolutely essential especially if Bill C-51 is to be passed. The Chair: Fine thank you very much, Ms. Palmater. *Taken from: Standing Committee on Public Safety and National Security Committee Meeting March 24, 2015 – Evidence #57 – Unedited Transcript Copy provided by House of Commons Canada.

  • Dramatic Contradictions: 2014 Report of the United Nations Special Rapporteur on Indigenous Peoples

    The United Nations Rapporteur on the rights of Indigenous Peoples in Canada James Anaya released his advanced, unedited report on “The Situation of Indigenous Peoples in Canada”. The Rapporteur based his report on research, various sources, a visit to Canada in October 7-15, 2013, meetings with federal and provincial government officials, and meetings, visits with and submissions from Indigenous peoples.  

    http://unsr.jamesanaya.org/docs/countries/2014-report-canada-a-hrc-27-52-add-2-en-auversion.pdf

    There is a disturbing underlying theme in the report – one which speaks of “dramatic contradictions”:

    (1)   The continued “abysmal” social conditions in First Nations in the context of increasing wealth and prosperity in Canada; and

    (2)   The numerous laws and protections for First Nation rights versus the many human rights violations committed against First Nations.

    Anaya noted that while some First Nations have risen up against these injustices with the Idle No More movement, others are starting to give up attempts to resolve their claims. Anaya concluded that the relationship between Canada and First Nations has become much worse since the last visit to Canada in 2003. It doesn’t take a rocket scientist to figure out that this is during Prime Minister Harper’s term.

    Abysmal Social Conditions in First Nations

    Anaya’s most serious concerns relate to the “striking” statistics related to the poverty in many First Nations. Of the bottom 100 communities in Canada – 96 are First Nations. “The most jarring manifestation of these human rights problems in the distressing socio-economic conditions of indigenous peoples in a highly developed country.” 

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

    He found that there has been no improvement in the gap between First Nations and Canadians in terms of housing, health care, education, welfare and social services. Given the significant needs of First Nations, Anaya had expected that the cost of social services would have been higher and was shocked to find that it was lower. He cited Canada’s own Auditor General who pointed out that the failure to address poverty on reserve is due to the lack of appropriate funding from the federal government.

    This led Anaya to conclude: “One of the most dramatic contradictions indigenous peoples in Canada face is that so many live in abysmal conditions on traditional territories that are full of valuable and plentiful natural resources.”

    Canada’s Immense Wealth and Prosperity

    It’s not like there isn’t enough money to go around. Canada is one of the wealthiest countries in the world because of the lands and resources which belong to Indigenous peoples. The mining industry alone brought in $44 billion in 2013.

    http://www.nrcan.gc.ca/node/15983

    That figure doesn’t include the hundreds of billions in other natural resources that come straight from Indigenous lands. Anaya noted that while governments and private interests are the ones that profit from resources on Indigenous lands, it’s the Indigenous peoples who suffer all the negative consequences in health, economy and culture that comes with the resulting environmental degradation.

    This situation is not just an unfortunate, but inevitable consequence of western “progress” – it’s a calculated policy choice to impoverish First Nations for the benefit of others. Anaya notes that Canada’s consistent failure to consult with First Nations, take unilateral actions against their rights and portray them in negative light to the public is an “affront” to Canada-First Nation relations. Anaya explains that the federal public discourse on First Nation rights is presented as a burden to tax-payers instead of educating Canadians about the “vast economic benefit” they receive from First Nations. Harper’s continued negative comments against First Nations risks “social peace”.

    First Nations could be completely self-sufficient economically if they controlled only a fraction of their lands and resources. Yet, in pursuit of maximized profit, Canada continues to ignore the legal rights and interests of First Nations. Canada (both federal and provincial governments) maintain their legal and physical blockades against First Nations to prevent them from accessing and benefitting from their own lands and resources. Anaya notes that despite the fact that treaties are constitutionally protected and allows Canadians to enjoy immense wealth, 30% of Justice Canada litigation is fighting treaties. Canada uses all of it power – its laws, policies and programs to maintain First Nations in poverty, while partnering with private interests to maximize government and corporate profits.

    Legal Protections vs. Violations

    Part of the dramatic contradiction which is so striking to outside observers. As noted by Anaya: “It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada that have reached crisis proportions in many respects.” Canada presents a façade of human rights but commits numerous violations against Indigenous peoples – with apparent impunity. Although Anaya did not do a complete accounting of which laws and violations, he noted several human rights violations that have received “insufficient” attention by governments including the well-being gap, housing crisis, murdered and missing women, over-representation in Justice system, gender discrimination in Indian status, and lack of education to name a few.

    *Legal Protection

    Human Rights Violation

    Constitution Act – s.35 – Inherent Right to be Self-Governing

     

     

    Indian Act’s Ministerial control over every aspect of First Nations’ lives

     

    Legislative suite which protects Ministerial control – Water, elections, education, matrimonial real property, transparency acts

     

    Must extinguish rights to negotiate self-government agreements/claims

    Constitution Act – s.35 – protect Aboriginal and treaty rights

     

    Duty to consult and accommodate

     

    Free, informed and prior consent

    Federal and provincial governments (with court’s approval) allow agriculture, forestry, mining, hydroelectric power, general economic development, protection of environment or endangered species, building of infrastructure and settlement of foreign populations to trump constitutionally protected rights

    Charter of Rights and Freedoms  – s.15 Equality rights & non-discrimination

     

    Canadian Human Rights Act – non-discrimination

     

    Various provincial human rights acts – non-discrimination

    Indian Act’s discriminatory treatment of Indian women and descendants

     

    Failure to address disproportionate number of murdered and missing Indigenous women

     

    Over-representation of Indigenous peoples in jail & Indigenous children in state custody

     

    Discriminatory/less funding for child welfare

     

    Discriminatory/less funding for education

     

    Unsafe or no drinking water

    Criminal Code – s.319 hate speech

    Media, teachers, writers, MPs, Ministers, RCMP, provincial police forces, PM make racist and discriminatory remarks and portrayals of First Nations

    Criminal  Code – s.271 sexual assault

     

    s.267 assault with weapon or causing bodily harm

     

    s.279 unlawful confinement

     

    s.215 failure to provide necessaries of life

    RCMP and provincial police taking Indigenous men on “Starlight” tours

     

    RCMP,  provincial police and/or judges sexually assaulting and raping Indigenous women and girls

     

    Deaths while in child welfare – state care

    *This table represents my own observations of laws vs. rights violations in Canada.

    Conclusions and Recommendations:

    Anaya concluded that Canada could address these human rights violations if it wanted to do so. Let’s hope Canadian officials take a good hard look at Anaya’s observations and recommendations and take the necessary action to end these human rights violations against Indigenous peoples. A highlight of some of Anaya’s key recommendations:

    – Sufficient funding for education, health, and child welfare; – Focus on Indigenous-run social and judicial services;

    – Urgent, increased funding to address the housing crisis;

    – Enhance education, funding and consult on any proposed legislation;

    – Comprehensive, nation-wide inquiry into murdered and missing Indigenous women and girls;

    – Consent for all laws impacting Indigenous peoples;

    – Address gender discrimination in the Indian Act;

     – No resource development without free, informed and prior consent of Indigenous peoples; and

     – Maximize Indigenous control and benefit from any extractive operations on Indigenous lands.

     

    “Indigenous peoples concerns merit higher priority at all levels and within all branches of Governments, and across all departments.”

  • Harper Solicits Research to Blame First Nations for Murdered, Missing and Traded Indigenous Women

    Canada’s shameful colonial history as it relates to Indigenous peoples and women specifically is not well known by the public at large. The most horrific of Canada’s abuses against Indigenous peoples are not taught in schools. Even public discussion around issues like genocide have been censored by successive federal governments, and most notably by Harper’s Conservatives. Recently, the new Canadian Museum for Human Rights refused to use the term “genocide” to describe Canada’s laws, policies and actions towards Indigenous peoples which led to millions of deaths. The reason?: because that term was not acceptable to the federal government and the museum is after all, a Crown corporation. http://indigenousnationhood.blogspot.ca/2013/07/human-rights-museum-or-harper.html Aside from the fact that this museum will be used as a propaganda tool for Canada vis-à-vis the international community, Harper’s Conservatives are also paying for targeted research to back up their propaganda as it relates to murdered, missing and traded Indigenous women. This is not the first time that Harper has paid for counter information and propaganda material as it relates to Indigenous peoples, and it likely won’t be the last. However, this instance of soliciting targeted research to help the government blame Indigenous peoples for their own victimization and oppression is particularly reprehensible given the massive loss of life involved over time. http://indigenousnationhood.blogspot.ca/2011/06/secret-agent-harper-conservative-spy.html The issue of murdered and missing Indigenous women was made very public by the Native Women’s Association of Canada (NWAC) several years ago through their dedicated research, community engagement and advocacy efforts. Even the United Nations took notice and starting commenting on Canada’s obligation to address this serious issue. Yet, in typical Harper-Conservative style, once the issue became a hot topic in the media, they cut critical funding to NWAC’s Sisters in Spirit program which was the heart of their research and advocacy into murdered and missing Indigenous women. http://indigenousnationhood.blogspot.ca/2010/11/neanderthal-politics-shame-on.html To further complicate the matter, any attempts for a national inquiry into the issue has been thwarted by the federal government, despite support for such an inquiry by the provinces and territories. One need only look at the fiasco of the Pickton Inquiry in British Columbia to understand how little governments in Canada value the lives of Indigenous women, their families and communities. The inquiry was headed by Wally Oppal, the same man who previously denied the claims of Indigenous women who were forcibly sterilized against their knowledge and consent. The inquiry seemed more interested in insulating the RCMP from investigation and prosecution than it was about hearing the stories of Indigenous women. http://rabble.ca/blogs/bloggers/pamela-palmater/2011/10/murdered-missing-and-still-excluded-indigenous-women-fight-eq Now, the Canadian public has to deal with a new chapter to this story – the sale of Indigenous women into the sex trades. The CBC recently reported that current research shows that Indigenous women, girls and babies in Canada were taken onto US ships to be sold into the sex trade. While this is not new information for Indigenous peoples, it is something that Canada has refused to recognize in the past. The research also shows that Indigenous women are brought onto these boats never to be seen from again. http://www.cbc.ca/news/canada/thunder-bay/story/2013/08/21/tby-first-nations-women-human-trafficking-ships-united-states.html The issue of murdered and missing Indigenous women has now expanded to murdered, missing and traded women. One might have expected a reaction from both the Canadian government and the Assembly of First Nations (AFN). Yet, the day after the story hit the news, the AFN was tweeting about local competitions and the federal government was essentially silent. I say essentially, because while all of this was taking place, the federal government put together a Request for Proposals on MERX (#275751) to solicit research to blame the families and communities of Indigenous women for being sold into the sex trade. https://www.merx.com/English/SUPPLIER_Menu.asp?WCE=Show&TAB=1&PORTAL=MERX&State=7&id=275751&src=osr&FED_ONLY=0&ACTION=&rowcount=&lastpage=&MoreResults=&PUBSORT=2&CLOSESORT=0&IS_SME=Y&hcode=%2f6A6jdkNJoHoufgILSp4Xg%3d%3d Instead of making a call for true academic research into the actual causes and conditions around Indigenous women, girls and babies being sold into the sex trade, the federal government solicited research to prove: (1) the involvement of family members in their victimization; (2) the level to which domestic violence is linked to the sale of Indigenous women into the sex trade; and (3) even where they are investigating gang involvement, it is within the context of family involvement of the trade of Indigenous women. The parameters of the research excludes looking into federal and/or provincial laws and policies towards Indigenous peoples; funding mechanisms which prejudice them and maintain them in the very poverty the research identifies; and negative societal attitudes formed due to government positions vis-à-vis Indigenous women like: – rapes and abuse in residential schools; – forced sterilizations; – the theft of thousands of Indigenous children into foster care; – the over-representation of Indigenous women in jails; – and the many generations of Indigenous women losing their Indian status and membership and being kicked off reserves by federal law. The research also leaves out a critical aspect of this research which is federal and provincial enforcement laws, policies and actions or lack thereof in regards to the reports of murdered, missing and traded Indigenous women, girls and babies. The epic failure of police to follow up on reports and do proper investigations related to these issues have led some experts to conclude that this could have prevented and addressed murdered, missing and traded Indigenous women. Of even greater concern are the allegations that have surfaced in the media in relation to RCMP members sexually assaulting Indigenous women and girls. http://www.cbc.ca/news/canada/british-columbia/story/2013/02/12/bc-human-rights-watch-abuse-report.html This MERX Request for Proposals is offensive and should be retracted and re-issued in a more academically-sound manner which looks to get at the full truth, versus a federally-approved pre-determined outcome. It’s time Canada opened up the books, and shed light on the real atrocities in this country so that we can all move forward and address them.

  • Eskan Racism – Bottled and Sourced in Canada for Over 500 Years

    With the warming of the days that comes with summer and the positive effect a little vacation and relaxation has on many of us, I had hoped that the red necks would be able to take some time off as well. Yet, this latest advertisement for Eska Water is another testament to the fact that racism in Canada is an ongoing problem that doesn’t just surface when there is tension or disagreement – but is, in fact, so embedded in some parts of the population that they themselves don’t even recognize it. http://www.youtube.com/watch?v=VfNDFdZVDE8 Some of you may think that I am being too harsh and that none of the folks as Eaux Vives Canada Inc ever “intended” for anyone to take offence. http://www.theepochtimes.com/n2/canada/native-group-wants-racist-water-ad-pulled-58789.html Some of you might also feel that if any of us don’t like the ad, we should simply refrain from watching it. Alternatively, it has been suggested that anyone who is offended by the ad should take solice in the fact that the ad was intended to be “funny” and not meant to represent any particular group. Eaux Vives Canada has explained that they had no indication that anything in the ad might cause a problem – nothing to make them “suspect” an issue. In fact, Eaux Vives conducted a focus group of the local population and received “all positive feedback”. They admit, however, that there may not have been any First Nations people included in that sample. http://www.ctv.ca/generic/generated/static/business/article2089081.html Eaux Vives Canada Inc is responsible for approving such an ad, so this reflects very poorly on their company, including those in the senior-most positions who make the decisions. However, one should also shine the spotlight on the ad’s creators – KBS & P which stands for Kirshenbaum Bond Senecal and Partners. http://www.kbsp.com/ They are owned by MDC Partners Inc. A company that specializes in marketing. http://www.mdc-partners.com/#/agency/mdc_partners/2/about You’ll notice that KBS & P’s bigger clients include Coke, Levis, North Face and Victoria’s Secret. They work in the big leagues, so to speak, and either know better or should have known better. Further, for anyone who does any kind of advertising – be it print, television or online media – they all know or should know, the laws relating to discrimination, racism, hate crimes and limitations on free speech. Its not like these companies do not have access to legal advisors, community relations experts and senior management-types to appropriately review and approve public ads. Afterall, these ads don’t just sell products, they reflect on the character or lack thereof of the company and it’s leaders. That is why when the company’s spokesperson, Gilles Corriveau said to the media that the company had “no intention to hurt people”, he made the company look even worse. Anyone who studies anti-discrimination law knows that it is NOT the intention that counts – but the effect that it has on the person or groups offended. But more than that, big companies like Eska Water, KBS & P or MDC Partners cannot plead ignorance when they ALL have the resources, capacity and experience to know better. I might also ad that there are no shortage of people that work in the area of human rights, anti-discrimination, anti-racism, and First Nations issues. Any number of people, groups, organizations or universities could have been consulted to provide input on any number of ads that has the potential to impact certain groups in society. Let’s pretend no such experts or advisors exist, is there any excuse for not googling the issue of racism in the media and making sure that your company is adequately aware of the issue? I googled the issue just now and tons of sources came up. Even the first source that popped up would have made the company think twice – had they taken the time to read it: http://www.usask.ca/education/coursework/802papers/crawford/jamesc.html The issue, sadly, is much deeper than that. The company itself indicated that it may have failed to include First Nations people in their focus sample, which amounts to more than a mere oversight – some might even call it incompetent. There is no doubt that the company was trying to portray an Indigenous group, whether or not it was a fictional one. In so doing, they used stereotypes about what Indigenous people look and act like – neither of which were presented with accuracy, thoughtfulness or dignity. http://www.youtube.com/watch?v=LSggKIAShbM Indigenous people in Canada and indeed all over the world must fight the colonially-imposed requirement to be “authentic” or “pure” Indians. The stereotype includes the requirement to live and behave as this did at some arbitrary and distant point in pre-contact times. Real Indians wear feathers, paint their bodies and carry around spears, arrows and other weapons. Real Indians are primitive and fierce and seek only to make war with non-Indians. These stereotypes are not just promoted in the media, but are also promoted by right-wing academics and governments. https://pampalmater.com/2011/03/no-natives-allowed-how-canada-breeds.html In the Eaux Vives Eska water ad, we see the age-old stereotype of purity. The mixing of orange juice with water is portrayed as being an offence to maintaining the purity of the water. Colonial governments have been obsessed with defining Indigenous peoples in terms of “purity” both legally and politically. Even Canada, through the Indian Act and other laws and policies, tries to exclude from legal recognition any Indigenous person who is not a “pure” Indian – i.e., someone who is mixed Indian and non-Indian (water and orange juice). http://www.vueweekly.com/front/story/blood_challenge/ This means that the public at large is constantly bombarded by these types messages and no consistent education about Indigenous realities in Canada. Even the omission of positive images of Indigenous peoples in the media serves to reinforce negative stereotypes. How often do you see an Indigenous woman consulted as a legal or political expert on the news, in the papers or in advertisements of any kind? What about Indigenous men as business analysts, foreign affairs experts or champions of human rights? We are led to believe that Aboriginal women are all victims of violence and Aboriginal men all corrupt leaders or criminals. It is simply not enough to say, if you don’t like the commercial don’t watch it. Even if we could be with out children and youth 24-hours a day, the fact is they will eventually be exposed to these sorts of ads. However, what is worse is that Canadians will be exposed to these kinds of ads and thus these old stereotypes will continue to be reinforced and played out in relations between Indigenous and non-Indigenous peoples in Canada. Consider the situation where racist jokes are told to co-workers but not the Indigenous person in an office. This still has the effect of creating a hostile work environment for the Indigenous person. I would argue that ads like Eska Water helps create a hostile country for Indigenous peoples where we are seen as the savage terrorists as opposed to the First Peoples. https://pampalmater.com/2011/05/from-savages-to-terrorists-justifying.html We as Indigenous people already know, that none of these stereotypes reflect our wonderfully diverse and rich realities, ways of being and relations. We do indeed have many social issues created and perpetuated by colonial governments, like the inequities in funding for essential services, Canada’s failure to live up to treaty and self-government obligations, the theft of our lands and the failure to share our resources with us – like water. Over 50% of First Nations in Canada have unsafe drinking water according to the Auditor General. http://www.oag-bvg.gc.ca/internet/docs/parl_oag_201106_04_e.pdf The very least Eaux Vives Canada should have done was issue an IMMEDIATE apology. The hiring of a public relations firm shows more concern for minimizing loss of profit than for the humanity of others. They don’t need a meeting with First Nations leaders to know that the right thing to do is to pull the ad. What an insult for Eaux Vives Canada to make such a mockery of Indigenous peoples and profit from OUR water sources while First Nations are denied access to this and other basic necessities of life. This water ad serves, ironically, to highlight the problem in ideology (racist ad) and in practice (lack of clean water for First Nations). Racism has been ongoing in Canada for over 500 years since contact. It is time to acknowledge the problem and work towards addressing it.

  • Mohawk Tobacco Trade – Standing up for Our Sovereignty

    The days of only looking at issues that impact our local communities (bands) are long over if we expect to protect our cultures, identities and Nations for future generations. The issue of our sovereignty as Indigenous Nations (Mohawk, Mi’kmaq, Maliseet, etc) must be looked at in the bigger context. I am the first to admit that we have significant issues to address in our home communities and many of them are absolutely life and death issues related to poverty, addictions, housing, violence, and child welfare. It is critical that we ensure we have citizens dedicated to addressing these issues for the well-being of our families, communities and Nations. At the same time, we also have to dedicate some of our citizens to fighting the larger battle which is being waged against our identities, cultures, and sovereignty. In the days of my great grandfather and his grandfathers, Mi’kmaq people made sure they protected their women and children by having warriors posted at our our local settlements. However, knowing that our territory (known as Mi’kma’ki) was rich in resources and our traditional territory was vast (7 districts covering many provinces), we also ensured that all directions were protected from intrusion by other Nations. The idea being that you had to have all directions covered, even if one direction required more attention at any particular time. The same can be said about our current state of affairs. Our social issues have taken such priority, that in some ways we may have left ourselves vulnerable to attack from other directions. I don’t just mean within our own Nations either. If the sovereignty of the Mohawk is being challenged, that has a direct impact on the future of Mi’kmaq sovereignty and vice-versa. Similarly, every Indigenous Nation in this country has its own special resources that is uses to support its communities and whether it is tobacco, lobster, moose, seal or oil, we owe it to each other to not allow government or corporations to jeopardize what little we have left. We can’t think for a minute that the loss of lobster fishing for the Mi’kmaq will not have a significant impact for the Maliseet and their logging rights. We owe it to our Nations and our future generations to make sure that our political strategies have all the bases covered. It is for this reason that I write about the Mohawk Tobacco trade. The Aboriginal right of the Mohawk to engage in their centuries-old trading activities is being threatened by big business and provincial governments all of whom are desperate to get their hands on money which rightfully belongs to the Mohawk. Similarly, the self-determining rights of the Mohawk to exercise jurisdiction over their own political and business activities threatens their very sovereignty. http://aptn.ca/pages/news/2011/01/15/smokes-seized-on-alberta-first-nation-had-federal-stamp-commission/ http://aptn.ca/pages/news/2011/02/02/tobacco-battle-flares-in-two-more-provinces/ As many of you know, many of the traditional Mohawk territories in what is now Ontario, Quebec and the USA have lands which are particularly suited to the growing of tobacco, which is why they have engaged in growing tobacco for many years. Their traditional use and trade of tobacco has evolved into a larger scale tobacco growing, manufacturing, sales and trade industry. Today, First Nations like Six Nations and Kahnawake are engaged in various elements of the tobacco trade. One of those companies, Rainbow Tobacco, is based on Mohawk territory in Kahnawake. They have had their shipments of tobacco to other First Nations seized by several provinces for failure to have provincial markings on their cigarettes, despite the fact that they did have federal markings. This only appears to be an issue since  non-Indigenous businesses started complaining. However, these groups try to sway public opinion by categorizing the Mohawk Tobacco Trade as “illegal” and “contraband”. By using this kind of language, it relegates Indigenous peoples to criminal status and detracts from any arguments they might make in their own defense. http://aptn.ca/pages/news/2011/02/25/charges-against-rainbow-tobacco-band-politicians-looming-rcmp/ The following arguments have been made against the Mohawk tobacco trade: (1) It is illegal because there are no provincial stamps. In fact, there is no requirement that First Nation products have provincial approvals. The cigarettes had the proper federal stamps, and since jurisdiction (as between feds-provs) with regards to First Nations, their lands and property, vests in the FEDERAL government, the province would be ultra vires (outside the scope of their legislative authority) should they attempt to legislate in this regard. In case anyone needs a reminder, here is what the Indian Act, 1985 has to say about the matter: Section 87 – the interests of Indians and bands in reserve lands AND the personal property of Indians and band on a reserve are NOT subject to taxation; Section 89 – the real (land) or personal (movable) property of Indians and bands on a reserve (or deemed to be on a reserve) are NOT subject to: charge, pledge, mortgage, attachment, levy, SEIZURE, distress or executive in favour of ANY PERSON, other than an Indian or band; Section 91 – certain property can’t be traded by Indians like: grave poles, totem poles, rocks with paintings, but tobacco is NOT one of them; Section 93 – can’t remove certain materials from reserves like minerals, stone, timber etc without a permit, but tobacco is NOT one of them. The Mohawk tobacco is not illegal, not subject to provincial tax or jurisdiction and the province had no right to seize anything on any reserve. (2) Smoking is bad for you and causes too many health problems. There is no doubt that smoking is bad for you and does cause way too many health problems that can even result in one’s death. I don’t smoke and I don’t ever want my children to smoke either. My father smoked and he died of lung cancer. I would never want that for any family or community. However, the issue of whether or not to engage in smoking is not the matter in question. The issue is whether or not First Nations can grow, manufacture, sell and trade tobacco products on their traditional territories and/or between First Nation reserves. First Nations have no less of a right to make a living off the resources on their territories than all the settlers who made good use of our lands. In fact, First Nations have a constitutionally protected right to do so – this is something that non-Indigenous businesses can’t say. The double-standard inherent in this ideology is obvious. It is legal and publically acceptable for non-Indigenous businesses to manufacture and trade tobacco, but it is a moral sin when First Nations do it. This has nothing to do with morals and everything to do with the bottom-line: the provinces see it as a cash grab and corporations see it as losing “their” profits. (3) Tobacco can only be used by First Nations as it was used traditionally. This line of reasoning is not only racist, it is legally inaccurate. The Supreme Court of Canada has clarified on many occasions that Aboriginal peoples and their rights are NOT to be frozen in pre-contact times. The SCC has further clarified that Aboriginal rights are able to evolve over time into modern methods of exercising those rights. Telling First Nations they can only use tobacco as they did in pre-contact times would be like us telling lawyers they still have to wear white wigs in court or that you have to take the Mayflower boat on your next holiday to Cuba. (4) Most of the First Nation tobacco companies are owned by band members and not the band. Regardless of my own personal feelings about individual vs. band owned businesses, again this is not the issue at hand. Those are debates to be had between band members and their bands or citizens within Indigenous Nations. I am stunned however, by the hypocrisy of statements like this when they come from the same right-wing people who are advocating the privatization of reserve lands. You simply can’t have it both ways. (5) Indigenous peoples should compete in the market place on the same level as everyone else. People who advocate this line of reasoning are usually the non-Indigenous tobacco companies or retailers who blame their poor sales on Indigenous tobacco trade as opposed to the decline in tobacco usage in Canada. What they forget is that the “market place” is fueled by the lands and resources, and the spin off taxes and businesses, which rightfully belong to First Nations. How is it that settlers could steal our lands and resources, use them to make a profit, and then when First Nations get into the market place with what little resources they have left, all hell breaks loose? They also forget that the provisions of the Indian Act noted above are legal rights afforded to First Nations. Their Aboriginal and treaty rights are also constitutionally protected. The issue is not whether the settler society likes that Aboriginal and treaty rights are protected, the fact of the matter is that they are the supreme law of the land. (6) Indigenous peoples use the money from the tobacco trade to fund all sorts of illegal activities like drugs. This ludicrous, stereotype is advanced by people like conservative Senator Patrick Brazeau. If you view the following video, you’ll hear him make this racist stereotype against First Nations: http://aptn.ca/pages/news/2011/02/04/aptns-mp-panel-back-in-business-but-for-how-long/ There are always individuals who break the law in Canada. That does not mean Canadians are all crooks. Robert Pickton was a serial killer, does that mean all Caucasian people in Canada are serial killers? Of course not. Then why is it acceptable for Senators and others to advance such disgusting racist stereotypes against our people? We have to call them on it, and then get back to the real issue: we are sovereign nations and our sovereignty has been challenged here. While you may not personally like tobacco, that is not the issue. Mohawks engaged in their traditional tobacco trade are no more criminals than Mi’kmaq people fishing lobster. Yet, when the Mi’kmaq proved their treaty right to fish and sell lobster, the non-Indigenous fishers could not accept having to share what was never theirs to begin with. It resulted in government officials riding their boats over our people (literally) and calling us criminals and in the media said we were engaged in illegal fishing. http://www.youtube.com/watch?v=HsvG4KpFHOA If we do not stand up for our sovereignty at EVERY instance that it is challenged, including those times when we don’t like the issue, then we’ll have no defense when we want to exercise it for issues we do like, i.e., land and hunting. We  owe it to each other to get each other’s backs and to ensure that all our directions are covered. There is no negotiation when it comes to sovereignty. Our heroes were not well-paid lawyers or consultants – they had nothing and risked their lives for us. We have to prove to our future generations that we were worth the fight. http://www.youtube.com/watch?v=3Ul4KmHlzMc

  • The Illusion of Justice in Canada – The Conservatives Conditional Support of UNDRIP

    I was having a hard time deciding between several important issues that I wanted to write about in my blog this week. I was really struggling between the injustices against our Indigenous peoples noted in Howard Saper’s Corrections report, the fact that Sharon McIvor is forced to take the plight of Indigenous women to the United Nations or Canada’s hollow endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). All of these issues are important and deserve far more critical attention than they are getting. That is when I realized that these issues are part of a shameful pattern on the part of the Conservatives. The Conservatives have created an illusion that they are addressing justice issues faced by Indigenous peoples here in Canada by promoting their pretend platform on human rights and equality. Some readers might think this is an overly critical assessment of what seems to be a very progressive agenda – but I would ask those readers to look beyond the media hype and dig deeper to what is ACTUALLY being promised and what is not. I have to start with UNDRIP because Canada’s alleged “endorsement” of it is the biggest illusion of all. As we all know, Canada was one of 4 states that refused to sign UNDRIP along with the USA, Australia and New Zealand. These are some of the countries with the largest Indigenous populations who suffered greatly under the colonial laws, rules, and policies implemented by these States. Their collective refusal to endorse UNDRIP sent a strong message to Indigenous peoples that their colonial rule would continue for some time to come. Australia subsequently changed its mind and decided afterwards to issue a conditional Statement of Support for UNDRIP and New Zealand soon followed suit. That left Canada and the United States on the hot seat, so to speak, and their failure to endorse UNDRIP a major political impediment to Indigenous-Crown relations. Therefore, the Conservative government made a commitment in its speech from the throne in the spring of 2010 to endorse UNDRIP: “A growing number of states have given QUALIFIED RECOGNITION to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”(emphasis added) It is now November 2010 and we are only just getting the alleged “endorsement” now. I say “alleged” because words mean everything in the world of politics. We know from our collective experiences with treaty making and implementation, that the Crown does not always act honourably in its dealings with Indigenous peoples. In a letter from T. Bannister to the Council of Trade and Plantations, one European colonist wrote about the shameful ways in which treaties were being “negotiated” with Indigenous peoples: “Their quarrels and wars were not for ambition, empire or bloodthirstiness but to defend their property and bounds… Their injuries have been very great, as divesting them of their land by force or fraud, first making them drunk and then to sign what they knew not what… Ad to this our inhumanity to them … We vilify them with all manner of names, and opprious language, cheat abuse and beat them, sometimes to the loss of limbs, pelt them with stones and set dogs upon them … too often an Article of Peace has run in one sense in English and quite contrary in Indian, by the Governor’s express order…”. I would like to think that Canada has moved past some of its double-dealings of the past, but this limited endorsement of UNDRIP by the Conservatives proves otherwise. From one side of their face they promise to make changes to address our issues and from the other side, they rally public support against us and find creative political spin to keep from acting on their promises. Canada did not truly, in letter and spirit, endorse UNDRIP – they issued a “Statement of Support” that does not change Indigenous rights (or lack thereof) in Canada. This is not my own personal opinion that I am espousing; I am taking this straight from the horse’s mouth. What follows is a summary of Canada’s “Statement of Support”: (1)”The Declaration is as ASPIRATIONAL document…” (the definition of “aspirational” is a “cherished desire”; something for which one “wishes”) (2)”the Declaration is a NON-LEGALLY BINDING document that does not reflect customary international law NOR CHANGE Canadian laws” (emphasis added) (3)”Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties. THESE CONCERNS ARE WELL KNOWN AND REMAIN.” (emphasis added) (4) “We are now confident that CANADA CAN INTERPRET THE PRINCIPLES expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” (emphasis added) Those are the highlights of what Canada ACTUALLY signed. These are the limits under which it “supports” UNDRIP – i.e., so long as it has NO legal affect in Canada. For those who might think that I am somehow misinterpreting what Canada means by their conditional support, INAC’s own press release again clarified that: (1) “the Declaration is not legally binding” and (2) they are only endorsing it as “an aspirational document” and NOT as a legally binding document. For those who have any further questions about what this all means, INAC also provides a section entitled “Frequently Asked Questions”. In answer to the question of whether a State which originally voted against UNDRIP can change its mind, INAC very clearly says “There is no official way for a State to change its position on a declaration“. All it can subsequently do is issue a Statement of Support. Canada knew this when it originally voted against UNDRIP. In answer to the question of what UNDRIP means: “The UNDRIP is a non-legally binding aspirational document“. I am not sure how much clearer they could have made their position. So, at the end of the day, all Canada has done is publicly support the cherished wish list of Indigenous peoples but that wish list will not have any legal application or effect in Canada. Regardless of this striking fact, one might argue that Canada could still make significant and substantive changes to its relationship with Indigenous peoples and take transformational action to address serious social, economic, political, cultural and legal issues impacting on the well-being of Indigenous peoples, the majority of which it caused through its colonial laws and policies. Sure….Canada “could” do that – the question is will it? Well, let’s see what Minister of INAC John Duncan had to say: http://aptn.ca/pages/news/2010/11/12/canada-finally-backs-un-indigenous-declaration/ You will note in the above interview with APTN, that Minister Duncan re-affirms that UNDRIP is an “aspirational” document only that has NO legal application in Canada. Furthermore, on whether Canada’s endorsement of UNDRIP will bring about significant changes for Indigenous peoples in Canada, Minister Duncan responds that Canada has its “own agenda” and as a result does not “anticipate any significant change”. So, once again I am still asking myself what the heck is everyone so excited about? Why on earth would the Assembly of First Nations celebrate this announcement? Why would First Nations leaders appear in the media and praise Canada for making such a significant commitment to the rights of Indigenous peoples? Did anyone take the time to actually read what the Statement said or what INAC said its alleged “endorsement” means? Here is a brief overview of the state of Indigenous peoples in Canada right now: (1) Indigenous peoples have the lowest socio-economic conditions of all groups in Canada – meaning the lowest education and employment rates coupled with the highest disease, poverty and violence rates; (2) Funding for essential social services like post-secondary education, drinking water infrastructure, and child welfare are all so grossly underfunded and unequal when compared to non-Indigenous funding, that even Canada’s Auditor General has criticized Canada for its lack of action in addressing it; (3) Indigenous women in Canada do not enjoy even BASIC equality rights that are enjoyed by non-Indigenous women and now Sharon McIvor is being forced, after 25 years of litigation and struggle, to seek redress at the United Nations for Canada’s lack of action; (4) Hundreds of land claims remain unresolved despite Canada’s promise years ago to bring about “revolutionary” change to the ways in which claims were handled; and (5) Our people are homeless on their own traditional territories, our women are murdered and missing at alarming rates, our children are taken from our families and communities at rates as high or higher than during the 60’s scoop, our men and women are incarcerated at a higher rate that non-Indigenous people, and racism is still prevalent within our justice system and leads to deaths while in custody, starlight tours, and utter neglect. If Minister Duncan is right and Canada will not make any significant changes to how it deals with Indigenous issues and will simply continue to advance its own agenda, then what good does their conditional support of UNDRIP do for us? Why would our political leaders be so quick to praise Canada for agreeing to do literally nothing on our behalf? At this rate, our reserves will be turned into private property and sold to big business by the Flanagan-Jules plan; those remaining reserves will all be occupied by non-Indians through Bill S-4 MRP laws; and if anyone remains after that, they will all be legislated out of extinction by Bill C-3’s discriminatory status provisions. The Conservative’s conditional support of UNDRIP creates an illusion of justice in Canada – it is our choice whether we stand beside them and accept it. If our leaders won’t stand up for us then it is time that the people told their leaders to step aside and let our people stand up for themselves.

  • Excerpts of My Presentation to the Standing Committee on Bill C-3

    What follows is an excerpt from my presentation that I will be delivering to the Standing Committee on Aboriginal Affairs which is studying a draft of Bill C-3 – Gender Equity in Indian Registration Act. Once I make the presentation, I will post my entire presentation online on my website: www.nonstatusindian.com. Part of the problem with Bill C-3 is how to respect gender equality in practice and not just the law. Delayed equality is not full equality. Canada fought the McIvor case for over 20 years and now proposes a minimal amendment that would require another person like Sharon McIvor to spend another 25 years to seek gender equality on essentially the same facts. An undefined joint process that does not have a specific mandate, clear objectives or identified funding for wide-spread participation does not provide any real comfort that gender discrimination, or any discrimination, will be addressed any time soon. This situation is coupled with the fact that no additional funding has been identified for bands based on their increased membership numbers. This could result in bands feeling that they do not have sufficient resources to accommodate all their members and may amend or create band membership codes which specifically exclude those affected by Bill C-3. Canada often blames Aboriginal peoples for not being of one mind on these issues. How quickly Canada forgets that this registration system was not only imposed upon us, but we were never consulted about what we wanted and the decision-making power rests solely with Canada. Aboriginal peoples have been living under the dark cloud of the Indian Act for over 130 years. How could Canada expect any result other than exactly what the Indian Act was designed to do – ensure that we were dependent, divided, and without our beliefs guide us. It’s time for Canada to right its wrongs. To do other than address all the gender (and other) discrimination could mean additional and significant delays in justice for Aboriginal women and children with regard to: (i) equal access to status and band membership; (ii) equal access to citizenship in self-government agreements; (iii) equal access to beneficiary status under treaties (historic and modern); (iv) equal access to beneficiary status under land claim agreements (specific and comprehensive); (v) an equal political voice in their communities (as electors and/or nominees for chief and council); and (vi) equal access to programs and services from Canada in relation to health, education, economic development, and tax supports; (vii) equal access to band programs and services like education & training, headstart, on- reserve schooling, housing, and tax supports; and (viii) equal access to elders, mentors, leaders, community members, land bases, cultural traditions, customs and practices, cultural events, and language training, etc. Respecting our Constitution, Charter, CHRA, and international human rights instruments and norms means we no longer have the option to exclude Indian women and their descendants from their birth right on the basis of political compromise, administrative inconvenience, opposition to human rights or added costs. Canada has previously exercised its legislative jurisdiction to amend the Act much more broadly than the litigation required and there is no reason it can’t do so again. Let’s try to get it right this time – my children are counting on you to uphold Canada’s commitment to gender equality and human rights both in the letter and in spirit. Here are my recommendations with regards to Bill C-3: (1) I believe that Canada should withdraw the Bill and redraft more appropriate legislation that deals with gender discrimination, in conjunction with Sharon McIvor and other Aboriginal technical experts from the AFN, NWAC, and CAP. If this could not be done, then I would recommend the following: (2) Make an amendment to section 2 of Bill C-3, by adding the words “or was born prior to April 17, 1985 and was a direct descendant of such a person” to section 6(1)(a) of the Indian Act, 1985; (3) Delete sections 3 and 4 of Bill C-3 and any references to a new section 6(1)(c.1) of the Indian Act; (4) A new section should be added before or after sections 7 and 8 of Bill C-3 that provide protections for Bill C-3 individuals with regards to band membership, especially for those born pre-1985; (5) Section 9 of Bill C-3 should be deleted in its entirety or amended to provide limited protection for bands and only in relation to status; (6) Adequate funding be provided to First Nations for band-delivered programs and services based on their increased membership numbers (if any) and funding to enable all bands to draft membership codes, to review their current band membership codes and make the necessary amendments to incorporate gender equality; (7) Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate a process by which to compensate those affected by Bill C-3 (or some other form of the Bill) in the fairest, quickest manner possible; (8) Additional legislation be drafted in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals to proactively address the remaining aspects of gender discrimination in the Indian Act; and (9) That Canada, in partnership with AFN, NWAC, CAP, Aboriginal communities and individuals negotiate the mandate, terms of reference, funding structures and deliverable objectives of the joint consultation process that will lead to further amendments dealing with the larger discrimination and jurisdiction issues under the Indian Act in the short term, and negotiate a similar process to engage in longer term solutions like modern treaties, self-government agreements and so forth. Obviously my presentation contained a great deal more detail about what the actual problems were with Bill C-3, but this lets everyone know what I’m thinking in terms of go-forward solutions. Keep an eye on my website for my entire presentation which will be posted later on this week.

  • UPDATED – Bill C-3 – Gender Equity in Indian Registration Act

    Sharon McIvor went to court to challenge the gender discrimination in section 6 of the Indian Act, 1985. Registration under the Indian Act provides greater entitlements to Indian men who married out (married a non-Indian) and their descendants as compared with Indian women who married out. McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry). As a result of these legal proceedings, Canada embarked upon a very short “engagement” process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case. On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced Bill C-3 An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law. With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration: (1) Did your grandmother lose her Indian status as a result of marrying a non-Indian? (2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act? (3) Were you born on or after September 4, 1951? The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES – if they had disentitled kids (non-status Indian kids) and NO – if they never had any kids or had kids with another registered Indian therefore making their children “entitled”. Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1): (1) Did your mother lose status for marrying an Indian man? (2)Is your father a non-Indian? (3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)? (4)Did you have a child with a non-Indian on or after September 4, 1951? Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians – (1) those who had “disentitled” (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids. For the first time in the Indian Act’s history, one’s specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one’s parents. This new section would now put the focus on the status of one’s children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men. This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed. At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues. But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed. When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made. PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve. What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services. Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities. Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture. The Indian Act’s registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this. By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations. Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada’s financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples – it represents more of the assimilatory attitudes upon which this Act was originally based. We wouldn’t accept the reopening of residential schools – therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act. One can only hope that the joint process announced by Canada will address these urgent issues.

  • McIvor is Just the Start – The Indian Act is Full of Discrimination

    So by now, everyone has heard of the McIvor case and knows that the registration provisions of the Indian Act, otherwise referred to as “status”, will be amended as a result. The question remains: what are we going to do about the discrimination that won’t be addressed by those amendments? For anyone who hasn’t heard of Sharon McIvor v. Canada – a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn’t always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question. In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all. It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services. At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed. The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected. Canada then embarked upon an “engagement” process – accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed – from August to November 2009. Canada’s reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada’s excuse that it needed to rush is somewhat questionable. Canada offered two amendment options to Aboriginal peoples for consideration: Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman: (a) who lost status due to marrying a non-Indian; and (b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the “double mother” rule was first included in the Indian Act). To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the “child” mentioned in (b) above. A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman’s child (the subsequent parent of the grandchild with a non- Indian) was born before 1985. In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1). What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don’t think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor‘s case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way. How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada’s discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens’ will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities? McIvor’s case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples: (1) Gender discrimination – An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather); * Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination. (2) Arbitrary cut-off date – The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not; (3) Illegitimate siblings – Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock; (4) Unstated paternity – If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status – this results in the child having lesser or no status; (5) Métis scrip takers – Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis; (6) Second generation cut-off – Indians may be refused status because one of their parents do not have status – this equates to a blood quantum requirement that discriminates against those children of mixed marriages; (7) Non-Aboriginal preference – (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions – Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s). As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act. It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based – it seemed to forget that the Indian Act’s status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so. Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada’s authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with “Indians and lands reserved for the Indians” but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations – it’s time we were able to heal and re-assert our own identities. No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our “heirs and heirs forever”. It is time for Canada to undo the harm it has caused. I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?