Warrior Life Studios

Pam Palmater

Tag: Indigenous

  • Clearing the lands has always been at the heart of Canada’s Indian Policy

    Originally published in The Globe and Mail on February 27, 2020.

    Canada’s Indian policy hasn’t changed much

    After the events of the past few weeks in Canada, one thing remains clear: Canada’s Indian policy hasn’t changed much since its inception. Indian policy has always had two objectives: to obtain Indian lands and resources and to reduce financial obligations to Indigenous peoples acquired through treaties or other means. Its primary methods were elimination or assimilation of Indian

    Colonial governments had a long history of scalping bounties to kill specific groups of Indigenous peoples, using small pox blankets to increase death rates from disease and forced sterilizations to reduce the populations. Even Confederation did not dispense with the violent colonization of what would now become known as Canada. Canada’s first prime minister, Sir John A. Macdonald, told the House of Commons in 1882: “I have reason to believe that the agents as a whole … are doing all they can, by refusing food until the Indians are on the verge of starvation, to reduce the expense.” Canada was fully engaged in clearing the lands, by any means necessary.

    View article (PDF) Genocide, Indian Policy, and Legislated Elimination of Indians in Canada

    Reconciliation: The goal is the same

    Now referred to as Indigenous reconciliation, the goal is still the same: to clear the lands of Indigenous peoples in order to bolster settlement and extraction of resources. This singular focus formed the basis of the violent colonization of Indigenous lands and peoples and, ultimately, is why Canada has been accused of genocide by the National Inquiry into Missing and Murdered Indigenous Women and Girls. Canada’s complex set of laws, policies, practices, actions and omissions have created an infrastructure of violence toward Indigenous peoples and the continued dispossession of their lands.

    This is at the heart of the devastating socio-economic conditions of many Indigenous peoples today, including multiple health crises such as diabetes, heart disease and strokes, lower life spans, higher rates of mental illness and some of the highest suicide rates in the world. These genocidal policies also serve to remove Indigenous peoples from their lands through high foster care rates, killings and disappearances of Indigenous women and girls and the skyrocketing incarceration rates.

    Apologies versus Land Back

    Despite carefully worded apologies and promises of a better relationship, none of these conditions has changed and, in fact, most are getting worse. Add to this that First Nations have less than 0.02 per cent of all their lands left – mostly in tiny reserves controlled by the federal government. Political rhetoric about supporting Indigenous self-determination means very little when we are denied access to our lands and resources.

    We need to be honest about what is going on. There never was any real intention of recognizing Indigenous land rights – whether under Indigenous laws, Section 35 aboriginal and treaty right protections in the Constitution Act, 1982, or by implementing the United Nations Declaration on the Rights of Indigenous Peoples. It has been painfully clear, at every flashpoint in Canada’s history, that it is willing to starve Indigenous peoples into submission or imprison them to access their lands.

    This is at the heart of what is happening across Canada over the past few weeks. The Wet’suwet’en Nation, as represented by their traditional government, acting on Wet’suwet’en laws and decision-making protocols, have said no to pipelines on their traditional territory. While five of the six band councils within the Nation have allegedly agreed to the pipeline, their jurisdiction extends over their reserve lands. It is the hereditary leaders who have the legal jurisdiction over their traditional territory, to decide whether the pipeline can cross their pristine forests and rivers.

    Canada breaches its own “Rule of law”

    The Supreme Court of Canada had already acknowledged in the Delgamuukw case that these were the proper representatives to bring a claim of aboriginal title. Eight of these leaders have said no to the pipeline. Despite this, the RCMP invaded their territory and forcibly removed them from their lands – counter to Wet’suwet’en law, Canadian law and international law. UNDRIP, which is now implemented in British Columbia, prevents the forced removal of Indigenous peoples from their lands. This flagrant breach of Canada’s own rule of law is why the peaceful solidarity actions started all over Canada.

    Read article: Mi’kmaw treaty rights, reconciliation and the ‘rule of law’

    This is also why these actions will continue. Every time law enforcement is sent in to the clear the lands of the “Indians” to make way for pipelines and extraction of resources, you will see more and more Indigenous nations and Canadian allies stand against this injustice.

    The real issue has always been about the land. The way forward is recognition of our right to be self-determining over our own lands and resources.

    Anything less is just the same old Indian policy that invites more uncertainty and social conflict. Canada can do better. It’s time to move past genocide and work toward respect for Indigenous land rights.

    #Landback

    This article originally appeared in The Globe and Mail on February 27, 2020 and updated on February 28, 2020 and can be found here: Clearing the lands has always been at the heart of Canada’s Indian Policy. The blog version has been slightly edited for style and the addition of resources.

  • Canada’s Shell Game on C-92 Funding

    Canada’s Shell Game on C-92 Funding

    C-92 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families

    THE FEDERAL GOVERNMENT has once again proven that legislative initiatives tend to be effective deflections from their ongoing failures to address human rights abuses against Indigenous peoples. Bill C-92: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (2019) was heralded by the Assembly of First Nations (AFN) and the federal government as the solution to the “humanitarian crisis” of First Nations children in foster care. The AFN in particular pushed hard for the legislation to pass in Parliament, despite widespread opposition and protests from First Nations from all over Canada. First Nations legal and child welfare experts also warned Parliament that C-92 did not align with Canada’s political promises and could in fact make things worse. They were right.

    NO STATUTORY GUARANTEE OF FUNDING

    There are many substantive problems with C-92, but the most obvious is that there is no statutory guarantee of funding for First Nations in the legislation. In other words, there is no judicial right that a First Nation could use in court to force federal compliance in relation to funding under the Act. This concern was raised and effectively ignored by the AFN in its push to have the bill pass into law — all while federal officials were assuring First Nations that funding would follow. As expected, funding did not follow and to make matters worse, it looks like the federal government used C-92 as an attempt to insulate itself from the orders of the Canadian Human Rights Tribunal (CHRT).

    The federal government has confirmed that it does not consider itself to be bound by CHRT orders to end racial discrimination in funding against First Nations children in foster care, once First Nations assume jurisdiction under C-92.

    “Since (Bill C-92) falls outside the scope of the CHRT orders, the CHRT orders will not apply to a First Nation that has assumed jurisdiction.”

    Federal officials further clarified that:

    “There is no funding stream for the long-term operationalization of an Indigenous governing body’s law once they begin exercising jurisdiction.”

    This confirmation comes from the federal government’s response to questions posed by the First Nations Child and Family Caring Society in their ongoing litigation at the CHRT. Canada is effectively telling First Nations: Sure, you can assume jurisdiction over housing, education, health care and child and family services; but if you do, your funding will be cut or reduced. Oh, and by the way, you assume all the liability.

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

    The whole point of the CHRT’s original decision was for Canada to stop racially discriminating against First Nations children in foster care and their families. One of the primary reasons why First Nations children are apprehended and placed in foster care at such high rates is due to the purposeful, chronic and racially discriminatory underfunding of essential social services for First Nations — like child and family services. Ironically, one of the most striking pieces of evidence in the CHRT hearing came from the government’s own internal documents that confirmed that federal underfunding leads to higher rates of First Nation child apprehensions. Yet Canada continues to underfund child and family services and all services like housing, health care, education, water and mental health services like suicide prevention on reserve. It is no coincidence then, that First Nations have the worst socioeconomic conditions of all groups in Canada.

    TRANSFER OF FEDERAL LIABILITY

    This follows a similar pattern in federal legislative initiatives over the last few decades, where under the guise of addressing a breach of Indigenous rights, they instead use legislation to deflect from the matter and find ways to insulate itself from liability and/or transfer federal liability to First Nations. Bill C-3: Gender Equity in Indian Registration (2011) was supposed to end sex discrimination against First Nations women and their descendants in Indian registration. Instead it created new discrimination and in s. 9 insulated itself from any legal claims by those Canada had discriminated against for decades. Similarly, in Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur general) (2017), Canada once again failed to address all forms of sex discrimination and via s. 10 purports to insulate itself from liability for the discrimination endured by First Nations women and their descendants.

    In enacting legislation, even in relation to First Nations, the federal government should always be assumed to be acting in the best interests of the Crown first, despite its fiduciary and other legal obligations to First Nations. C-3 and S-3 are just two legislative examples of explicit insulation of liability from Canada’s own wrongdoing. Another example is the Safe Drinking Water for First Nations Act (2013), which has done little to remedy ongoing the lack of clean drinking water and sanitation on all First Nation reserves but helped deflect media attention away from the crisis. Yet the legislation creates more problems than it solves including the creation of new ways to imprison First Nations members who breach the water laws; ensure federal laws are paramount over First Nation laws; and the inclusion of s. 11 which purports to limit liability for both the provincial and federal governments.

    “DRAW DOWN” JURISDICTION?

    In this context, it becomes apparent that First Nations who “draw down” jurisdiction under C-92 may be assuming significant financial and legal liability without corresponding legal protections and guaranteed, long-term needs and rights-based financial supports. Take a scenario where a First Nation band member is receiving federal support for health needs for their children under Jordan’s Principle and then the band assumes jurisdiction. What happens to the funding support for this First Nation band member and their children if — as the federal government has confirmed — they will not be bound by CHRT orders to provide funding to First Nations for critical programs like Jordan’s Principle (a child-first policy that is meant to ensure First Nations children have access to the same government services that other children do)? Does the member seek funding from the First Nation and if so, how will the First Nation provide this funding if the federal government ends Jordan’s Principle funding to First Nations under C-92?

    The AFN has a lot to answer for in its support of C-92 without ensuring the free, prior and informed consent of First Nations, and worse, for forging ahead when so many First Nations leaders and First Nation child welfare experts were against the legislation as it read. First Nations who have given notice or are contemplating giving notice that they want to “draw down” jurisdiction over child and family services under C-92 are likely shocked to hear these concerning revelations by the federal government. This is not something the government shared during review of the bill or has included in their information packages online.

    “TRUST US” MANTRA IS NOT ENOUGH

    Were it not for the ongoing legal actions by the First Nations Child and Family Caring Society to hold the federal government to account to comply with CHRT orders, we might not know the gravity of the funding situation. Canada must now answer for this bad faith funding shell game to undermine the basic human rights of First Nations children. The “trust us” mantra is not enough when the issue is the ongoing genocide of First Nations. It is long past time for full transparency and to stop ducking its human rights obligations to First Nations children and families.

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

  • In Plain Sight: Widespread Racism in BC Healthcare

    In Plain Sight: Widespread Racism in BC Healthcare

    RACISM IN BC HEALTHCARE

    Imagine living in a country, where hospitals refused to treat you for a stroke, because the doctors and nurses assumed you were drunk? Imagine further, that the emergency room doctor refused to treat your young child for epilepsy, because they assumed she was on drugs? Well folks, that country is Canada.

    It doesn’t sound like the Canada you know. It doesn’t seem to reflect Canada’s world-renowned medical experts and hospitals. Nor does it seem to jive with Canada’s impressive array of human rights protections. Yet, if you are Indigenous in Canada, you can expect this kind of treatment and worse – even in Canada’s best hospitals in British Columbia (BC).

    Just before the holidays, a report was released which confirmed what most Indigenous peoples already knew – that racism against Indigenous peoples, especially First Nations peoples – is widespread in BC’s healthcare system.

    IN PLAIN SIGHT

    The report entitled – In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in B.C. Health Care – was written by Dr. Mary Ellen Turpel-Lafond who was the first, First Nations judge appointed to the Provincial Court of Saskatchewan; was the former Child and Youth Advocate in BC; and now the independent investigator for this report.

    She had been appointed by BC’s Minister of Health to conduct a review of racism against Indigenous peoples in BC’s healthcare system. Dr. Turpel-Lafond and her Indigenous-led team engaged in four months of investigations, which included:

    • talking to 9,000 people from BC;
    • reviewing 185,000 data sets including more than 900 studies; and
    • logging 600 cases via their 1-800 number and website.

    The report – which includes both its core findings and recommendations – contains numerous examples of Indigenous peoples given substandard medical treatment or no treatment at all in hospitals and healthcare facilities of all kinds. In some cases, individuals were treated so poorly, that they refused to go back for treatment and this was especially true for Indigenous women.

    In-Plain-Sight-Summary-Report.pdf

    FINDINGS

    There were 11 main findings divided into (a) the problem of Indigenous-specific racism and (b) the problem with current solutions – both of which provide significant insight into the lack of accountability for racism and the harm it causes Indigenous peoples in BC’s healthcare systems.

    Her main findings in relation to anti-Indigenous racism were as follows:

    1. Widespread Indigenous-specific stereotyping, racism and discrimination exist in the BC healthcare system;
    2. Racism limits access to medical treatment and negatively affects the health and wellness of Indigenous peoples in BC;
    3. Indigenous women and girls are disproportionately impacted by Indigenous-specific racism in the healthcare system;
    4. Current public health emergencies magnify racism and vulnerabilities, an disproportionately impact Indigenous peoples and
    5. Indigenous health care workers face racism and discrimination in their work environments.

    She also noted that talking about anti-Indigenous racism in healthcare can be very triggering for Indigenous peoples who have experienced the physical and mental harms associated with racist comments, substandard treatment or the denial of treatment. At the same time, she also stressed that the issue must be named, so that institutions can be held to account and the problems addressed.

    STEREOTYPES

    Dr. Turpel-Lafond shared the eight most common racist stereotypes held by BC healthcare workers about Indigenous peoples (primarily First Nations, and include that belief that they are:

    (1)   Less worthy of care;

    (2)   Drinkers/alchoholics;

    (3)   Drug-seekers;

    (4)   Bad parents;

    (5)   Frequent flyers – misuse health system;

    (6)   Irresponsible & wont do aftercare;

    (7)   Less capable; and

    (8)   Unfairly advantaged.

    RACISM CAUSES REAL HARM

    She also stressed that these racist stereotypes lead to real physical harm, mental harm and even death for Indigenous peoples, in the following ways:

    (1)   Unacceptable personal interactions – like racist comments;

    (2)   Long wait times/denial of service – more so than non-Indigenous patients;

    (3)   Lack of communication/shunning Indigenous patients;

    (4)   Not believing or minimizing health concerns – Indigenous peoples accused of faking;

    (5)   Inappropriate or no pain management – assuming patients are drug seeking;

    (6)   Rough treatment – like man-handling or physical harm;

    (7)   Medical mistakes & misdiagnosis – assuming patients drunk and not addressing underlying health issues; and

    (8)   Lack of respect for cultural protocols – intolerance of families or ceremonies.

    The significant harms experienced by Indigenous peoples on a regular basis are why the report’s recommendations on how to move forward to address anti-Indigenous racism in BC’s healthcare system are so important. At their core, the recommendations all work to confronting the legacy of colonialism in healthcare head on:

    “A basic awareness has grown that the current inequities and injustices faced by Indigenous peoples in Canada – such as those examined in this Review – are deeply rooted in an enduring legacy of colonialism, and that confronting that legacy requires substantive, transformative change.”

    MOVING FORWARD

    It is important that Canadians read this report and then push governments, hospitals, universities and all those working in the healthcare system, in any capacity to embrace their role in reconciliation and ensuring that the human rights of Indigenous peoples to healthcare are respected, protected and fully implemented. To do this, Dr. Turpel-Lafond believes that our collective path forward must be based on acknowledging and accepting three foundational principles:

    (1)   Racism in healthcare reflects a lack of respect for Indigenous rights to health;

    (2)   Racism in the healthcare system is integrated with racism in society; and

    (3)   While Indigenous voices must be centered in developing solutions, the responsibility to do this work rests with non-Indigenous people, communities, organizations and governments.

    Before anyone breathes a sigh of relief that this is only a BC issue – it isn’t.  Anti-Indigenous racism in healthcare is rampant in other provinces as well. It was only weeks ago, that Quebec came under fire when a video showed nurses saying racist and hateful comments to Joyce Echaquan before she died in the hospital. This was not an isolated incident but reflects a long-standing pattern of racism experience by Indigenous peoples in Quebec hospitals.

    Don’t forget the Brian Sinclair inquiry in Manitoba, which documented how the hospital staff ignored Brian – a double amputee confined to a wheel chair – for 34 hours until he subsequently died of a treatable urinary tract infection. And sadly, these are not exceptional cases. From the Royal Commission on Aboriginal Peoples in 1996 to the Truth and Reconciliation Commission’s report in 2015 and the National Inquiry into Missing and Murdered Indigenous Women and Girls report in 2019 – racism in healthcare is a national crisis and has been for decades. 

    HEALTHCARE IS A HUMAN RIGHT

    Racism in healthcare is a matter of life and death for Indigenous peoples and forms part of the ongoing genocide that the National Inquiry talked about in their report.

    It was important for the BC government to undertake this investigation and accept the findings. Every other province and territory should follow suit and conduct a similar investigation. While it is important that BC’s Minister of Health Adrian Dix apologized and committed to take action –  it is yet to be seen whether they will take the action needed to hold themselves accountable, make the required changes and make reparations to Indigenous peoples. Given the many reports sitting on government shelves gathering dust – it is incumbent on Canadians to do their part to ensure governments are held to account.

    Healthcare is a basic human right and we are all served when we take steps to make sure that all peoples – including Indigenous peoples – can enjoy that right.

    Warrior Life Podcast Interview with Dr. Mary Ellen Turpel-Lafond

     

    (Picture credit: Taken from the front over of the report In Plain Sight: Addressing Indigenous-specific Racism and Discrimination in BC Healthcare, 2020).

  • Buy Native and Give Native All Year Long

    Buy Native and Give Native All Year Long

    (Treaty Truckhouse fundraiser [top left], Rez Famous Clothing [top right], Warrior Life Clothing [bottom left], Unist’ot’en fundraiser [bottom right])

    If you are anything like me, I need multiple lists to keep myself organized this time of year. With the holidays speeding towards us faster than we can keep up, I need a list for tasks to complete at work before we break for the holidays; a grocery list to prepare for multiple family feasts; and, of course, the holiday gift-giving list. Without these lists, I would certainly be doomed to rely on my brain, which is already overloaded with the 2019 work I have to complete and the giant to-do list for 2020. I find lists extremely helpful, as they keep me from impulse shopping and overspending. I also have another list, which is my giving list – a list that reminds me to share my privilege with others. The one thing these lists all have in common is that they are all focused on buying native and giving native all year long.

    Recently, Niigaan Sinclair, the award-winning Anishinabe columnist for the Winnipeg Free Press, wrote an article urging Manitobans and Canadians to buy Indigenous.

    https://www.winnipegfreepress.com/local/buy-indigenous-this-holiday-season-565799362.html

    He argues that it makes more sense to invest in Indigenous businesses that contribute to local economies, rather than the large US-owned box stores where billions of dollars flow to US corporate owners. This makes a great deal of sense. When you invest in First Nation businesses for example, you help First Nation economies, which in turn, help regional Canadian economies through their own spending and employment. Niigaan provided a list of various Indigenous businesses that offer everything from food, music and books; to clothing and jewellery. Who could ask for a better list of gift-giving options, than this list of Indigenous goods that are handmade and steeped in the rich cultures and traditions of local First Nations?

    This past summer, Sarain Fox, an Anishinabe television host, actress, model and activist shared with the Globe and Mail how she assembles her wardrobe from Indigenous-made products. 

    https://www.theglobeandmail.com/life/style/article-activist-sarain-fox-assembles-a-wardrobe-of-indigenous-made-products/

    Sarain has always made lifting up others part of everything she does and giving a nod to her curated list of Indigenous artists and businesses is part of helping to promote them. She highlighted some of the Indigenous clothing, boots and purses she wears every day. Her goal is to celebrate Indigenous peoples every day – not just on holidays like Indigenous Peoples Day. A shout-out from someone with Sarain’s public profile helps promote Indigenous businesses and boost the Indigenous economy referenced by Niigaan. You can also find other curated lists of native owned businesses in Canada and the USA on websites like Beyond Buckskin:

    http://www.beyondbuckskin.com/p/buy-native.html

    I agree with them both. Buying native helps support local First Nation and Canadian economies and should be a focus all year round – not just during the holidays. I would also add that it is usually this time of year that we see public calls to support various groups and causes with donations. The holidays evoke in many people a moral obligation and desire to share their good fortune – big or small – with others to help address urgent individual needs and/or advance social justice more broadly. To my mind, this should never be about “charity” or holiday-based “good will”; but instead be about fulfilling our legal obligations to one another under the various treaties we signed to share the lands, resources and wealth. It is also about real reconciliation, which is about more than a celebration of native cultures, but also about individual responsibility to address past and ongoing injustices.

    To this end, there are various native groups and organizations to which you could direct your giving this holiday and throughout the new year ahead. There are small organizations working hard to advocate for the basic human rights of First Nations children in foster care or the safety of Indigenous women and girls. Similarly, there are smaller, more informal groups in need of supplies and/or legal assistance as they occupy First Nation territories to protect the lands, waters, plants and animals from the devastating environmental destruction of the extractive industry. In protecting water sources, forests and ecosystems from contamination, First Nations warriors are protecting the health and well-being of both Indigenous peoples and Canadians. We all have treaty and other obligations to contribute in some way to the protection of Turtle Island for future generations – and giving to native causes can be part of that.

    There are far too many native businesses and causes to note here, so what follows is a list of some of the ways that I buy native and give native all year round. While some of those on the Buy Native list are larger businesses, there are hundreds of individuals who sell their goods at pow wows and cultural events, as well as through social media outlets. I have purchased some of the best beaded earrings from artists who I spotted on Instagram. Similarly, while larger native organizations on the Give Native list are easier to find through their websites, don’t forget to scan your social media for smaller groups making call outs for urgently needed donations.

    BUY NATIVE:

    Online:

    Cheekbone Beauty was founded by Jennifer Harper and is an Indigenous owned, cruelty free cosmetic company. They offer high quality cosmetics and donate part of their profits to help fund education for Indigenous peoples. Their Warrior Women line of lipsticks include shades named after native women warriors – like Sarain Fox, Cindy Blackstock and me! I bought their most recent holiday collection, which includes my shade of lipstick – true warm red!

    https://cheekbonebeauty.ca/

    She Native is an Indigenous owned company that offers leather handbags and clothing that share Indigenous teachings and positive messaging. I have bought their t-shirts and hoodies and just love them! I really appreciate the positive messaging and celebration of Indigenous women.

    https://www.shenative.com/

    Tammy Beauvais Designs is another company that is 100% Indigenous owned and Tammy can be seen selling purses, ribbon skirts and native designed clothing for men and women all over Canada. One of my favorite things about pow wows is racing to find her stall to buy something new. One of my favorites is a beautiful white bomber jacket with native-inspired flowers all over it.

    https://tammybeauvais.com

    Nishiin Designs is a business I just recently found through social media. They are an Indigenous company that offers Anishinabe designed purses, clothing and accessories. I saw one of their purses on Instagram, fell in love with it and insta-ordered it!

    https://www.nishiin.ca/

    Shop in Store:

    Cedar Basket Gift Shop is located inside the Native Canadian Centre in downtown Toronto. They have a huge collection of artwork, crafts, household items, jewellery and moccasins handcrafted by Indigenous peoples. I especially love their baskets and beadwork. I have never been able to visit that store and leave without a gift for someone.

    https://ncct.on.ca/gift-shop/

    Teekca’s Aboriginal Boutique is a native-owned store at The Forks in Winnipeg that is well-known for its custom work. I had shirts and blazers specially tailored for my son who loves wearing his one-of-a-kind beaded suits to work.

    http://www.teekcasboutique.ca/en/home

    Rez Famous is a Mi’kmaw clothing company from back home in the Maritimes. I have their tees, hoodies, caps and everything I can get my hands on! You can find them at pow wows as well as on Facebook.

    https://www.facebook.com/rezfamousbrand/

    Warrior Life clothing is one of my own latest initiatives to help raise funds to keep my media completely independent. I use the proceeds to help pay for the costs of my Youtube channel, my Warrior Life podcast and my Indigenous Nationhood blog. It will also (hopefully) defray some of the costs for my second podcast set to be released in the new year.

    https://teespring.com/stores/warrior-life-2

    GIVE NATIVE:

    First Nations Child and Family Caring Society, headed by Dr. Cindy Blackstock, advocates strenuously for First Nations children, youth and families so they can grow up happy, healthy, safe and proud of who they are as First Nations. They brought a human rights complaint against Canada for historic and ongoing racial discrimination against First Nations children in foster care – and won. They continue their battle at the Tribunal and in the courts to force Canada to comply with the orders and finally end discrimination. There are so many ways you can help them: including “7 Free Ways to Help”; purchasing children’s educational books and calendars; and/or making donations.

    https://fncaringsociety.com/welcome

    Gitdimt’en Yintah Access is a group of First Nation peoples from the Wet’suwet’en Nation from Gitdimt’en clan who are governing their territory and protecting it from pipelines. They are true warriors who risk their safety and freedom by protecting lands and waters from the devastation of pipelines. They need our support in terms of supplies and donations for their legal fees. You can give one-time donations or ongoing monthly support.

    https://www.yintahaccess.com/

    Unist’ot’en Camp is another clan from the Wet’suwet’en Nation governing their territory to protect it from pipelines. You can support them through buying their merchandise, making a one time donation to their legal fund or offering monthly support for supplies for those protecting the lands and waters.

    http://unistoten.camp/support-us/donate/

    Treaty Truckhouse Legal Fund is a group of grassroots peoples including Mi’kmaw treaty rights holders, grandmothers and local allies who are standing united as water protectors of the Shubenacadie River in the Sipekne’katik District of Mi’kma’ki. They have been trying to protect the river for years and as a result need donations for legal expenses.

    https://ca.gofundme.com/f/720lt7c

    Tiny House Warriors is an initiative from the Secwepemc peoples whose mission is to: “stop the Trans Mountain pipeline from crossing unceded Secwepemc Territory.” The Secwepemc peoples are asserting their law and jurisdiction on their territory by building tiny houses all along the pipeline route in order to block access to this pipeline. Kanahus Manuel is one of the native women warriors who has placed her safety and freedom on the line to protect our collective futures. You can donate through their official Tiny House Warriors or Secwepemc Nation Youth Network Go Fund Me pages on their website.

    http://tinyhousewarriors.com/

    I hope you all have a safe and happy holiday with family and friends and I look forward to joining forces with you all in the New Year to advocate for justice on Turtle Island. PODCAST: Here is my extended Warrior Life podcast episode on this same issue: https://soundcloud.com/pampalmater/buy-native-give-native-all-year-long

  • First Nations and the Business of Cannabis

    First Nations and the Business of Cannabis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Justice system still not protecting Indigenous women and girls

    Justice system still not protecting Indigenous women and girls

    (Picture by Pam Palmater, Rally for Justice for Murdered and Missing Indigenous Women and Girls in Winnipeg)

    This article was originally published in The Lawyer’s Daily on May, 28, 2019.

    “Her life mattered. She was valued. She was important. She was loved.”

     R. v. Barton [2019] S.C.J. No. 33.

    Cindy Gladue was an Indigenous woman originally from Alberta, where she grew up with her four siblings and extended family. She was also the mother to three daughters and her family described her as both a loving mother and caring auntie. She had close friends and always dreamed about being the first in her family to go to university. Cindy Gladue loved and was loved. She did not deserve her violent death in 2011 nor the indignity done to her body after. 

    She is now one of the many thousands of murdered and missing Indigenous women and girls in Canada — a growing crisis that represents grave human rights violations. The trial of the man who admittedly committed this act of violence against Cindy is an example of how defective Canada’s justice system is when it comes to Indigenous women victims and how negligent Canada has been in ensuring the basic human rights of Indigenous women and girls are met.

    In this column, there will be no details about Cindy’s appearance, what she wore the night she was killed, where she was killed, whether she knew her killer, her level of education, her health status, or what she did for a living — because none of the facts is relevant to her death. Cindy is not to blame for her death. Cindy did not kill herself. Cindy did not engage in a dangerous knife fight or try to kill someone.

    Regardless of which version of the story is accepted by the next trial judge — that she was killed by a male trucker who violently cut an 11-cm gash in her vagina, or that she died from a tear from his violent, but unarmed interaction with her — she still died as a result. According to the SCC quoting from evidence at trial, the trucker then tried to hide evidence, change the crime scene and lie about his involvement. His name doesn’t deserve to be said aloud, nor does he get to hide behind any of the racist or sexist excuses he used at trial to defend himself. None of the evidence referred to at trial or the SCC indicates that he should be believed. Cindy’s life story does not get to be narrated by the man who admits to committing this violence against her.

    Sexualized violence against Indigenous women and girls in Canada has been allowed to continue in plain sight by government officials, police officers, lawyers and judges who have treated Indigenous women and girls as though they are less worthy of life. In fact, were it not for the lengthy and persistent advocacy of Indigenous women and their allies, Canadians would still be unaware of the crisis.

    However, awareness of the crisis only gets us so far. The court proceedings which followed Cindy’s death show just how deeply engrained racism and sexism against Indigenous women still is in Canadian society, especially the justice system. In R. v. Barton [2019] S.C.J. No. 33, Justice Michael Moldaver, writing for the majority, allowed the accused’s appeal in part and sent the matter back to trial, but only on the charge of the unlawful act of manslaughter. The dissent would have dismissed the accused’s appeal entirely. Justices Rosalie Silberman Abella and Andromache Karakatsanis writing for the dissent (Chief Justice Richard Wagner concurring) agreed with the Alberta Court of Appeal that the matter be ordered back for retrial on both charges of first-degree murder and manslaughter. 

    The majority made some important points about the extent to which racism is still widespread in the justice system. At para.199, the majority explained: “Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system. For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few. … In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.”

    They went on to say that the criminal justice system and all of its participants must take reasonable steps to address these biases — especially against Indigenous women. To this end, they directed that, on a go forward basis, trial judges ought to provide express instruction to juries to counter the well-known prejudice against Indigenous women. While there is no set text, trial judges should instruct juries about Indigenous women and girls having been subjected to a long history of colonization and systemic racism and then dispel myths about Indigenous women and those who are exploited for sex. These stereotypes were outlined in para. 202:

              – Are not entitled to legal protections;

              – Not deserving of respect, humanity and dignity;

              – Are sexual objects for male gratification;

              – Are available for the taking and no consent needed;

              – Assume any risks associated with “sex work”;

              – Are less credible than other people.

    The majority further stressed that, as a matter of respect, both the Crown and the defence counsel should have referred to her as Ms. Gladue instead of “Native girl” during the trial. These are important points and the SCC made many important clarifications in the case in relation to the many problems surrounding sexual assault cases.

    However, there is a downside to the majority’s decision. Their logic and reasoning around the impact of racism and bias in this case did not follow through to their ultimate finding. The majority allowed the accused’s appeal in part, by limiting the charge for which the killer could be retried — manslaughter only. The dissent pointed out that racism doesn’t work that way and can’t be so easily compartmentalized. They explained that there was no “filter” on the victim’s prior sexual history and no warning by the judge to the jury to avoid making stereotypical assumptions about Indigenous women.

    They also argued that this created an image of Cindy “that was unfair and would have permeated the whole trial and the jury’s deliberations on both murder and manslaughter” (para. 214). The dissent further emphasized, “He [trial judge] provided no specific instructions crafted to confront the operative social and racial biases potentially at work. This rendered the whole trial unfair” (para. 215).

    While the dissent did go further than the majority, they too missed an important opportunity to speak to the indignity committed against Cindy’s body after her death when segments of her vagina were brought into court as an exhibit. Cindy was a life-giving mother of three girls. Her body and her life-giving parts had already suffered a gross violation which led to her death. There was no necessity — in an effort to prosecute her killer — to remove her life-giving parts and put them on display in a courtroom. They could have used the coroner’s testimony, animated illustrations of the extent of the cut or tear, and worst-case scenario, pictures. Putting her life-giving parts on display served to further dehumanize her before the judge and jury. 

    Even though the SCC made some important findings in this case, their caution that the justice system has a lot more work to do applies equally to them. We need more than the “important step forward” they commended themselves for — we need a wholescale change. That won’t happen if the highest court in the land cannot call out and end the kind of indignity committed against Cindy — which represents the many indignities committed against Indigenous women and girls since contact. 

    This article was originally published in The Lawyer’s Daily on May, 28, 2019 – link below:

    https://www.thelawyersdaily.ca/articles/12605/justice-system-still-not-protecting-indigenous-women-and-girls-pamela-palmater-?category=opinion

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

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

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

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

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

    Pan-Indigenous Legislation

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

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

    Substantive Inequality

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

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

    First Nation Jurisdiction

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

    –          Canadian Charter of Rights and Freedoms;

    –          Canadian Human Rights Act;

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

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

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

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

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

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

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

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

    Funding & Socio-Economic Conditions

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

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

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

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

  • The Indigenous right to say no

    The Indigenous right to say no

                                         (photo by Michelle Girouard)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • It’s up to Indigenous, environmental groups to protect the public interest

    This article is Part 2 of a 2-part series which was originally published in The Lawyer’s Daily on September 17, 2018. The link to Part 1 which was published Sept.11, 2018 is provided below.

    Despite objections from some of the Indigenous groups about the consultation process, the Federal Court of Appeal (in Tsleil-Waututh Nation et al. v. Canada (Attorney General) 2018 FCA 153) held that Canada acted in good faith and that the consultation framework it used was appropriate.

    This was a four-phase process which was to include (1) early engagement, (2) NEB hearing, (3) governor-in-council consideration and (4) regulatory authorization processes.

    Where Canada fell down was in Phase III of the consultation process in that it did not meaningfully consider the concerns of the Indigenous groups or attempt to accommodate or mitigate those concerns. There was no substantive discussion about Indigenous rights and the FCA found that federal officials did little more than act as “note-takers”. The court agreed with the Indigenous groups that Canada’s notes, referred to as the Consultation Chronologies, “should be approached with caution” for failing to accurately present the facts.

    When pressed by Indigenous groups for a response, federal officials merely repeated the line that they would deliver their concerns to the decision makers. When it finally did come time for a response, Canada informed the groups that it was bound by the recommendations of the NEB and that it was in effect, powerless to add any more conditions on the project. A surprising response given the fact that the FCA had already decided in the Gitxaala Nation case (Gitxaala Nation v. Canada 2016 FCA 187) that under the current legislative scheme, the only decision maker was in fact the governor-in-council and not the NEB.

    The Department of Justice is the largest law firm in Canada, working exclusively on behalf of the federal government — it had no excuse for its “erroneous position.” The FCA held that the duty to consult is not met by the mere exchange or discussing of information. Consultation has to focus on constitutionally protected rights and in so doing Canada is obligated to “substantially address the concerns of the First Nation” (from Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69. This coupled with the fact of Canada’s late disclosures, lack of responses, failure to provide more time and “closed-mindedness” frustrated the consultation process. It is Canada’s actions or lack thereof which is why the Federal Court of Appeal overturned its decision.

    So, what now? Well, this is far from over. The FCA has ordered that the decision is quashed and the approval must go back to the governor-in-council for reconsideration. As part of that reconsideration, the GIC must refer the NEB’s recommendations back to the NEB. Canada must also redo its Phase III consultations and accommodations before the GIC can reconsider the approval for the pipeline expansion.

    Of great concern is Prime Minister Justin Trudeau’s comments that Canada is considering the possibility of an appeal of this decision or legislation to force the pipeline project through.

    Whether Canada chooses to abide by the decision or not, what we know for sure is that Canada will forge ahead with the pipeline despite the fact that the impact of a tanker spill on the southern resident killer whales would be “catastrophic” and “there were no direct mitigation measures that Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers”. Perhaps Tahlequah (the female southern resident killer whale who recently carried her deceased calf for 17 days) was mourning for all us.

    However, there is a new complication to Canada’s pipeline plans. Six conservation groups, including the Raincoast Conservation Foundation, Ecojustice, David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defence Council and the World Wildlife Fund have filed a lawsuit in Federal Court seeking an emergency order to protect the southern resident killer whales.

    Indigenous peoples will also have to decide how to proceed to protect their lands, waters and the other life within their territories which depends on a healthy eco-system — including killer whales.

    What we know for sure is that we cannot count on either federal or provincial governments to put the health of peoples, lands, waters, plants or animals ahead of the money to be made from the extractive industry. As the FCA held, the public interest and the duty to consult with Indigenous peoples are not in conflict. To the contrary, the violation of the “constitutionally protected rights of Indigenous peoples cannot serve the public interest”.

    Looks like it is up to Indigenous peoples and environmental allies to protect the public interest and our collective futures — including Tahlequah’s and the future of her pod.

    This article is Part 2 of a 2-part series that was originally published in The Lawyer’s Daily on September 17, 2018.

    https://www.thelawyersdaily.ca/articles/7326/it-s-up-to-indigenous-environmental-groups-to-protect-public-interest-pamela-palmater?category=opinion.

    The link to Part 1 which was published Sept.11, 2018 is at this link:

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

    My Youtube video on this issue provides more detailed information about the case.

    https://www.youtube.com/watch?v=7HQfOctnT7o

  • Killer Whales, Trans Mountain Pipeline and the Public Interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    This is the first of a two-part series.

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

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

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

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