Warrior Life Studios

Pam Palmater

Tag: Indigenous peoples

  • Transitional Justice Plan Urgently Needed to End Genocide in Canada

    Transitional Justice Plan Urgently Needed to End Genocide in Canada

    Pam Palmater, Shelagh Day and Sharon McIvor testifying before the Inter-American Commission on Human Rights in Washington, DC – fall 2019

    For decades, the families of murdered and missing Indigenous women and girls and their communities; together with Indigenous women leaders and experts and allied human rights organizations, advocated for government action to end the crisis. Many families had called for a national inquiry, which was supported by various international human rights treaty bodies. After a tumultuous start and numerous set-backs, the National Inquiry concluded its work and released its final report at a ceremony on June 3, 2019, before hundreds of Indigenous family members, leaders and advocates. They found Canada guilty of both historic and ongoing genocide.

    Throughout the National Inquiry’s proceedings, Minister of Indigenous Affairs Carolyn Bennett committed that Canada would not sit idly by while the inquiry proceeded. They committed to take action to end the violence, which was well documented in numerous reports. Yet, they failed to act. Since the release of the final report, very little, if any substantive action has been taken by PM Trudeau’s Liberal government to end genocide against Indigenous women and girls in Canada.

    The abuse, exploitation, violence, disappearances and murders of Indigenous women and girls continues unabated and represents the largest human rights crisis ever facing Canada. The National Inquiry confronted this reality head on when it concluded that Canada is guilty of genocide that is both race-based and one that has specifically targeted Indigenous women. They found that:

    While the Canadian genocide targets all Indigenous peoples, Indigenous women, girls and 2SLGBTQQIA people are particularly targeted.

    This finding was based on an independent legal analysis and the extensive evidence
    gathered during the inquiry. They further explained:

    Canada’s colonial history provides ample evidence of the existence of a genocidal policy – a manifest pattern of similar conduct which reflects an intention to destroy Indigenous peoples.

    What resulted from this finding was a media blitz of commentators engaging in debates as to whether the inquiry went too far; whether they were using the word to strategically to get attention; or whether anything other than the Holocaust could ever amount to genocide. Very few of those commentators had specifically worked in, were educated in, or conducted research on genocide; nor were most of them lawyers. Yet, these emotional or political reactions to the finding is what led the discussion versus the very pressing need for governments to take urgent action.

    Even the United Nations High Commissioner Michelle Bachelet expressed great concern and called on Canada to examine this finding. Similarly, Luis Almagro who heads the Organization of American States, expressed his concern that Canada was too slow to act on the national inquiry’s findings. Meanwhile, some commentators reacted by saying that the inquiry’s finding should be investigated. There is no utility in reinvestigating this finding. It is a legal finding based on fact and law. What was needed then and what is needed now is action to end the genocide.

    None of this should come as a shock to government officials, Indigenous leaders, scholars and activists have long been calling Canada’s historic and ongoing treatment of Indigenous peoples genocide. Some have also highlighted the fact that sexualized genocide towards Indigenous women and girls has been an integral part of Canada’s violent colonization of Indigenous lands. While not a specific focus of Truth and Reconciliation Commission (TRC) investigation into residential schools, their final report also concluded that Canada’s actions towards Indigenous peoples amounted to cultural, physical and biological genocide: “part of a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will.”

    The crime of genocide is a crime under international law that developed over time – even before the UN Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948. A state need only be guilty of one of the five ways to commit genocide against a racial group like Indigenous peoples, which include:

    (1) killing;

    (2) physical/mental harm;

    (3) conditions of life to bring about
    destruction;

    (4) preventing births; and

    (5) the forced transfer of children.

    Canada is guilty of all five.

    The National inquiry, without excluding the possibility that individuals could be held liable for genocide in Canada, and duly noting that acts and omissions of provinces within Canada, draws a conclusion on the responsibility of Canada as a state for genocide under international law.

    The inquiry also found that pre- and post-colonial settler governments have created, maintained and reinforced an infrastructure of violence towards Indigenous women and girls. This infrastructure of violence is a complex set of institutional laws, policies, practices, actions and omissions that treat Indigenous women as lesser human beings, who are sexualized, racialized and treated as disposable because of their sex and their race. This infrastructure remains firmly in place today manifesting in high rates of violence towards Indigenous women and girls.

    This genocide has been empowered by colonial structures, evidenced notably by the Indian Act, the Sixties scoop, residential schools and breaches of human and Indigenous rights, leading directly to the current increased rates of violence death and suicide in Indigenous populations.

    The National Inquiry considered the following as examples of genocide:

    • Deaths of Indigenous women and girls in police custody;
    • Failure to protect them from exploitation and trafficking;
    • Failure to protect them from known killers;
    • Taking their children and placing in foster care at high rates;
    • Physical, mental and sexual abuse in state institutions (residential schools, hospitals, prisons, etc);
    • Denial of Indian status and band membership;
    • Forced and/or coerced sterilizations; and
    • Purposeful chronic underfunding of essential
    • human services like food, water, health, housing.

    These modern day examples discussed in the inquiry’s report would be in addition to
    earlier pre-meditated killings:

    • small pox blankets,
    • scalping bounties,
    • mass murders of some native groups, like the Beothuk; and
    • starvation policies and ethnic cleansing on the prairies.

    When considering the testimonies of thousands of families, Indigenous women leaders, and advocates, as well as subject-matter experts, together with extensive legal, historical and social science research; the inquiry could come to no other conclusion but genocide.

    Canada has displayed a continuous policy with shifting expressed motives but an ultimately steady intention, to destroy Indigenous peoples physically biologically and as social units.

    All governments and state agencies are still active perpetrators and perpetuators of genocidal violence against Indigenous women and girls in Canada. Ending the genocide which is embedded in state institutions and society as a whole, will require immediate and urgent remedies that match the scope and character of these grave human rights violations – i.e. a comprehensive national action plan that is well-resourced and focusing on transitioning Canada out of genocide. That is no small feat. This will require external oversight but international human rights bodies or experts, with Indigenous women as core decision-makers.

    Organizations like the Inter-American Commission on Human Rights (IACHR) have access to experts in genocide – experts who have worked with other countries to transition out of genocide. It makes no sense to ask the perpetrator of genocide to be the one to design the plan and implement the plan to get out of genocide. Indigenous women and human rights experts must be the ones to lead this process, together with international genocide experts to design this plan. Canadian officials must then work directly with Indigenous women and their Indigenous governments to oversee a fully- resourced transitional justice plan that is national in scope, applies to all levels of government and related agencies, and focuses on:

    1. ending ongoing genocide;
    2. reparations for harms done; and
    3. the prevention of future genocide.

    This will require an Indigenous and human rights framework and gender-based analysis for all stages of the plan. While Canada promised the United Nations that it would come up with a national action plan by June 2020, few expect more than their standard action plan framework that tends to be overly general with no measurable outcomes. This is why several Indigenous women and human rights advocates attended the IACHR in the fall of 2019 to ask for international intervention and oversight. Canada’s response at the time was that they were too busy with the election. Then, they were too busy with holidays. June is several weeks away and in all likelihood, Indigenous women and girls will be left behind again.

    Genocide is the worst crime and human rights violation that can be committed against a people. But you wouldn’t know it by looking at Canada’s lack of action on the crisis. Pipelines get more money and attention than Indigenous women and girls.

    It’s truly time for more international intervention before thousands more lives are lost.

    Video of IACHR session

    https://www.youtube.com/watch?v=fkQ4G5iEnAI&list=PLDnK0xT7aXRAGR7DszneZTPkBn0YJHfxB&index=11&t=292s

    Here is my latest Youtube video talking about the need for a gendered covid-19 plan to take into account that Indigenous women and girls face not only the pandemic, but also ongoing genocide:

    https://www.youtube.com/watch?v=mM6OBq1fo10
  • A Modern Treaty to Save Our Peoples and The Planet

    A Modern Treaty to Save Our Peoples and The Planet

    Left to Right: Stephen Lewis, Pam Palmater, David Suzuki, photo by Ian Mauro Climate Tour 2019

    This blog is an excerpt of the speech that I gave at the Climate Tour with David Suzuki and Stephen Lewis, on October 4, 2019 in Winnipeg, Manitoba at the University of Winnipeg on Treaty 1 territory. (Check against delivery).

    Kwe n’in telusi Pam Palmater. It is an honour to be here on Indigenous territory covered by Treaty one. Thanks to the elder for opening & to UofW for hosting us. Oct.4th important day to remember lives lost due to murdered and missing Indigenous women and girls.

    We have a hard truth to face. We are in the middle of two major crises: Canada is killing our people and the planet and we are here to stop it!

    The first crisis is that the National Inquiry into Murdered and Missing Indigenous Women and Girls found that Canada has and continues to commit genocide against Indigenous peoples – specifically targeting Indigenous Women and Girls.

    The second crisis is that Indigenous science and western science have both confirmed that we are headed for a massive climate disaster.

    To say that we are in a crisis of epic proportions would be an understatement. We need to act now to end the genocide of Indigenous peoples & stop the ecocide of the earth. Because we know that the pain of Indigenous peoples is the same pain felt by the planet. And the pain of this planet is felt first and foremost by Indigenous peoples.

    Settler governments in Canada, the United States, Australia, New Zealand and all over the world have colonized Indigenous territories with horrific acts of violence to peoples and the earth. The colonizing mentality pervades our governing systems and allows governments and corporations to treat people and the planet as resources to exploit – as though they were lifeless commodities. Extractive economies – now largely benefiting transnational corporations – have been authorized by governments land leave destruction in their wake.

    We’ve seen tears from Indigenous mothers whose daughters have been murdered by the thousands. We’ve also seen the heartbreak of killer whale mothers mourning the losses of their offspring who can’t survive in an oil tanker dominated eco-systems.

    And if we, as First Nations and Canadians, don’t act quickly – many more people, plants and animals will die. We no longer have the time to debate politics – the crisis in Canada is now a matter of life and death for all of us. It won’t be good enough in 50 years to look back and say we tried, we had the best intentions, or we gave it our best effort. We either do or die. And right now, Indigenous peoples are dying. Our planet is dying. But you all know this. We can no more deny the ecocide of climate change, than we can deny genocide of Indigenous peoples. The statistics, the research and the scientific evidence before our eyes is too overwhelming. Climate change is greatest threat to all life on earth – humans, plants and animals.

    Who bears the disproportionate burden of environmental destruction, water contamination and more pipelines? Indigenous peoples do. That is because genocide and ecocide go hand in hand. This earth has suffered a great assault, in part because of massive human rights violations to its caretakers – Indigenous peoples. Similarly, Indigenous peoples have suffered a great genocide in part because of the violence committed against our lands, waters, and ecosystems on which we depend.

    Our society’s economy has been constructed in a way which exploits ands abuses Indigenous women and the land with relative impunity. Well now, we all stand to pay the price of the impending climate disaster and corresponding the human disaster that will follow – all while large corporations reap the benefits.

    In the end – we will all suffer – if there is no drinkable water, farmable land or pollinators.

    What we need is a new treaty – a modern treaty that binds us all together – the people and the planet. A treaty that commits us to work together for the benefit of all Nations of peoples and living beings without discrimination, racism, sexism genocide or ecocide. A treaty that commits all people to heal our divisions so we can commit to protecting our collective futures.

    We must remember that our collective futures includes the plants, animals, birds ,fish, and insect Nations. They too have as much right to live on this planet as we do and if we have any hope of surviving, we’ll need every bee hive, every coral reef and every killer whale pod to maintain our precious eco-systems.

    This modern treaty can be a reality.

    It doesn’t matter what we call it, whose idea it was, where it originated or whether we agree on all aspects of it. This new treaty is about combining social justice and earth justice together to pave the way to a better future for all. The dual crises facing us requires that we do everything in our collective power to save our planet.

    This will require a societal revolution that goes beyond superficial changes and the glacial pace at which governments operate. It will require that we change everything and that will mean we need to get uncomfortable.

    We don’t need everyone for a revolution to save the planet. We don’t have time to wait around until the genocide and climate change deniers are convinced. If we wait, it will be too late for us all.

    Every single right we have ever gained – human rights, environmental protections or native rights – have been advanced by small numbers of people – sometimes only individuals pushing forward despite the odds. We can do this with all of you in this room. But we cant wait for all of you. We will forge ahead because we have to – its the only way to give Indigenous peoples and this planet a fighting chance.

    Other people will join when they see our successes. There will always be genocide deniers & climate change deniers, but we have an obligation to forge ahead anyway. If the lands are toxic from tar sands, and the water polluted from mining, none of our children will survive – whether they are Canadian or Indigenous. That’s why we need to work together.

    Together, we not only have the power to stop these abuses, but we can return Canada to its original treaty vision. Every single one of you has the power to stand up for what is right and save not only yourselves, but all those who can’t advocate on their own – for all of those whose voices that are not counted – the bees, the whales, the trees and the tiniest insects.

    None of you can do it alone and we don’t expect you to – the original treaty vision for Canada was premised on us working together to benefit from and protect the lands and waters which sustain us. Our advantage and our strength is in our collectives.

    Canada wouldn’t even exist without the treaty agreements between sovereign Indigenous Nations and the Crown. This original treaty vision was meant to protect the ecosystem on Turtle Island for as long as long as the grass grows, the rivers flow and sun shines.

    We are faced with two global crises – genocide and ecocide.

    We must use the spirit and intent of our original treaties to forge a new future Canadians – get out and vote in your system – use your numbers, your wealth, your influence and your privilege to force the change. But don’t stop there – the pressure must continue in full force post election in all forums – in Parliamentary and Senate Committees, in where you spend you money (or don’t), in the media, in the boardroom, in your advocacy and at the United Nations.

    Indigenous peoples will always be there on front lines, but we cant do it alone – we need you and you need us. Our very lives depend on it.

    We can protect the lands and waters and we can save lives. I believe in the power of the people to rise up and be the government of the people, by the people, for the people as it was intended. This generation was meant to lead our Nations back to balance. We were meant to protect this territory for our future generations. I believe in the power of our peoples to unite under a new treaty.

    Let’s end genocide against Indigenous peoples and ecocide against our planet.

    Lets work together for the radical changes we need to save our people and the planet.

    Wel’al’iog.

  • Check your White Male Privilege Andrew Scheer

    Check your White Male Privilege Andrew Scheer

    Still image from video of RCMP aiming gun at Wet’suwet’en people from Gidimten Camp Facebook.

    Today, Conservative leader Andrew Scheer made the shocking statement that protestors and activists need to “check their privilege” and let people whose jobs depend on the railway systems get to work. In this case, it is Scheer who needs to check his own privilege. His comments appear to be racially motivated as the people occupying the rails in Ontario are very obviously Indigenous peoples. Scheer’s comments reflect worn out stereotypes about Indigenous peoples that are not worth repeating, but are not based on facts. These kinds of comments serve only to promote societal division and manufacture hatred towards a specific group – Indigenous peoples. Scheer’s white male privilege as a top 1% income earner (according to Statistics Canada) stand in stark contrast to the staggering socio-economic conditions of the majority of First Nations peoples in Canada. First Nations have the highest rates of poverty in the country, the lowest health indicators and the highest rates of suicide in the world. Far from “privilege”, their under-privilege is a direct result of the violent colonization of their territories and the continued oppression of their peoples. 

    In 2019, the National Inquiry into Murdered and Missing Indigenous Women and Girls found, as a matter of fact and law, that Canada is guilty of both historic and ongoing genocide. Both the Organization of American States and the United Nations expressed deep concern about this finding and officials have offered to assist Canada address this. So, far there has been no urgent action to address ongoing acts of genocide against Indigenous peoples. The rates of Indigenous over-incarceration continue to sky-rocket with Indigenous women (less than 2.5% of the population) making of 42% of those in federal prisons. Why? Aside from noting many areas of discrimination within the justice system, the Office of the Correctional Investigator expressed concern that federal corrections seems “impervious to change”.

    Indigenous children represent half of all children in foster care, which even federal ministers called a “humanitarian crisis” – yet numbers continue to rise. The numbers of abused, exploited, disappeared and murdered Indigenous women also continue to rise, despite a National Inquiry drawing national attention to the crisis. Indigenous women and girls are the primary targets of human traffickers who are able to exploit them with relative impunity. It should come as no surprise to anyone at this point that some First Nations in Canada have the highest suicide rates in the world, even higher than post-conflict countries. Indigenous peoples make up 40-80% of homeless peoples in Canada depending on the region and we all know about the lack of access to clean drinking water that has plagued some First Nations for decades.

    The United Nations has called on Canada many times to address its grave human rights violations against Indigenous peoples to no avail. The Inter-American Commission on Human Rights has made similar recommendations to Canada to end the human rights violations. The former United Nations Special Rapporteur on the Rights of Indigenous peoples James Anaya, wrote in his report on Canada that the relationship with Indigenous peoples was getting worse over time and that “It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by Indigenous peoples”. He went on to report that “The most jarring manifestation of those human rights problems is the distressing socioeconomic conditions of Indigenous peoples in a highly developed country.”  Canada is wealthy because it stole the lands and resources of Indigenous peoples, carried out violent acts of genocide to reduce Indigenous populations and then constructed a complex set of laws, policies, practices, actions and omissions to oppress Indigenous peoples and clear the lands for settlement and extraction.

    These actions of solidarity across the country are about more than pipelines – they are about the continued genocide of Indigenous peoples and the failure of Canada to abide by the rule of law in respecting their land rights and their right to say no to development. These solidarity actions with the Wet’suwet’en Nation are about bringing attention to the ways in which Canada criminalizes Indigenous peoples for peacefully living, asserting and defending our sovereignty over our lands. While politicians make flowery speeches about reconciliation and respecting our rights, when it comes to wanting our lands for development or extraction, they will send in heavily armed RCMP or military to take what they want. That is what these actions are about – the failure of federal and provincial governments to abide by the rule of law – all the laws in Canada, not just the ones that suit their political or economic needs. 

    Scheer’s ill-informed comments serve only to cause confusion and apprehension in the public, instead of offering thoughtful solutions that would bring everyone together. His words are shameful and thankfully, don’t represent those of most Canadians. Canadians continue to be our strongest allies in seeking justice for our peoples as lawyers, teachers, academics, social workers, labourers, unions and Canadians from all backgrounds continue to stand with Indigenous peoples at solidarity actions all over Canada. That’s what the treaty relationship is all about. We need to work together to find a way to harmonize all laws in Canada – Indigenous, Canadian and international laws – and restore social justice for all peoples. We must urgently end genocide against Indigenous peoples which includes the ongoing theft of our lands and resources. It also means telling the RCMP to stand down. 

    Reconciliation doesn’t manifest at the end of a sniper rifle.

  • RCMP Invasion of Wet’suwet’en Nation territory breaches Canada’s “rule of law”

    RCMP invades Wet’suwet’en territory. Photo by Amber Bracken; Jan. 7, 2019

    While Prime Minister Justin Trudeau makes flowery public speeches about respecting the rights of Indigenous peoples and reassures the international community that there is no relationship more important that the one with Indigenous peoples, Canada invaded sovereign Wet’suwet’en Nation territory. When questioned about this aggressive move at a Liberal fundraiser in Kamloops, British Columbia, he responded: “No, obviously, it’s not an ideal situation… But at the same time, we’re also a country of the rule of law.” Canada’s invasion of Wet’suwet’en territory through its national police force, the Royal Canadian Mounted Police (RCMP), is an example of the blatant violation of the rule of law in favour of corporate interests. Canada has consistently failed to follow the rule of law when it comes to Indigenous peoples, and the violent arrests of the Wet’suwet’en people at the Gidimt’en checkpoint, set up in support of the Unist’ot’en homestead, is a glaring example of Canada’s lawlessness.

    The people of Wet’suwet’en Nation, as represented by their traditional government, have long asserted their sovereign jurisdiction over their Nation’s lands which span about 22,000 square kilometres in northwest British Columbia. These lands have never been ceded, nor have their rights to use, manage, protect or govern these lands been extinguished in any way. The Nation has never signed any treaty or constitutional agreement that has specifically surrendered their sovereignty as a Nation. While there have been many federal and provincial laws that have interfered with First Nation laws in general, there has never been an explicit extinguishment of Wet’suwet’en laws and jurisdiction over their Nation’s sovereign territory. Their land rights are not only recognized in Canada’s Constitution Act, 1982, but they are also protected in numerous international treaties and declarations, like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In other words, there was no legal basis for Canada to invade their territory.

    The Wet’suwet’en Nation is a governing Nation that has existed since time immemorial. They are made up of five clans: Gil_seyhu (Big Frog), Laksilyu (Small Frog), Gitdumden (Wolf/Bear), Laksamshu (Fireweed), and Tsayu (Beaver). The Wet’suwet’en are organized through a system of hereditary leaders and have a complex system of governance. While Canada did force the chief and council system on First Nations through the Indian Act, it was not successful in extinguishing or displacing the Nation’s traditional government. This is evidenced in the fact that when the Wet’suwet’en Nation decided to assert their land rights in Canada’s courts, they did so as a Nation, through their traditional government as represented by their hereditary leaders.

    In Delgamuuwk v. British Columbia (1997), the Wet’suwet’en, together with the Gitksan, asserted title to their lands. While the issue was ordered back to trial, the Supreme Court of Canada (SCC) made significant findings about the nature of Aboriginal title being a right to the land itself. The SCC found that the land is held communally, by all members of the Aboriginal Nation for their “exclusive use and occupation,” and that this right to land was protected in “pre-existing systems of aboriginal law” and Canada’s common law, even before the protection of Aboriginal rights in section 35 of the 1982 Constitution Act. No laws have since extinguished Wet’suwet’en rights with regards to their territory. Also significant is the fact that according to SCC jurisprudence, Aboriginal title contains an inherent limitation, in that title lands can’t be used in a way that is “irreconcilable” with the nature of the Nation’s attachment to those lands. The SCC explained it this way: “Implicit in the protection of historic patterns of occupation is a recognition of the importance of continuity of the relationship of an aboriginal community to its land over time.”

    What can we take from this case? Well, according to Canadian law, we know that it is the “Aboriginal Nation,” in this instance the Wet’suwet’en Nation, that has the legal ownership of their traditional territories, not an individual band. So it matters little that some of the bands may have signed an agreement with the pipeline company, especially if they did so in relation to territory off the reserve and without the free, prior and informed consent of the people. We also know that the lands are not held by individuals, but by the whole Nation. Thus any decisions in relation to those lands rest with the Nation. We also know that the purpose of section 35 is to protect the many ways in which Aboriginal Nations enjoy their title lands and these Nations can’t use them in ways which are inconsistent with those uses. The SCC specifically stated that if Aboriginal title lands are used as hunting grounds, then the land can’t be used in a way that destroys its value – as in strip mining.

    In the present case, not only were the Wet’suwet’en people using and occupying their lands, they were also protecting their lands from destruction by the Coastal GasLink pipeline slated to go through their territory. If Aboriginal Nations can’t risk destroying their title lands for extractive projects, certainly corporations should not be permitted to do so. It’s also clear that despite the media reports, this was never about a protest. This was always about occupying and protecting their lands – something they have the legal right to do. This is where the so-called “rule of law” comes into play. The rule of law is touted by Canada every time it actually wants to break the law; according to the United Security Council, rule of law means:

    All persons, institutions and entities, public and private … are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

    It becomes very clear then, that Canada has a long history of breaching the rule of law when it comes to First Nations. In the Wet’suwet’en case, Canada has prioritized the extraction interests of a corporation over the constitutionally protected rights of a sovereign Aboriginal Nation. This is a clear violation of the law. The Wet’suwet’en right to occupy and protect their territory is an internationally recognized human rights norm, now reflected in UNDRIP. Article 8 provides the right of Indigenous peoples not to be subjected to the destruction of their culture – something that would naturally come from destruction of their lands and waters with a pipeline.

    Article 10 provides that Indigenous peoples will not be forcibly removed from their lands or territories – as was done by the RCMP who arrested and removed Wet’suwet’en people from their own lands. Articles 25 and 26 specifically protect the rights of Indigenous peoples to own, use and control their traditional lands, waters, coastal seas and resources and further protects their rights to “uphold their responsibilities to their future generations in this regard.”

    Not only has Canada committed to implement UNDRIP into law, it is legally bound by many other international human rights treaties that it has ratified. While UNDRIP may not yet be law in Canada, it represents the minimum international legal norms for recognizing the core human rights of Indigenous peoples – something that Canada’s rule of law requires. Canada has also issued a directive on how it should engage with Indigenous peoples on litigation relating to their rights, which Canada claims is based on reconciliation with Indigenous peoples and respect for their legal rights. Former Minister of Justice Jody Wilson-Raybould made the bold claim that although she was just releasing this directive in January 2019, Canada has been using these rules for the last two years. It is important to note that this directive states that: “Aboriginal rights do not require a court declaration or an agreement in order to be recognized.” This is something the SCC has confirmed many times in its jurisprudence on the duty to consult, accommodate and get consent.

    Yet, we know that Canada has not only failed to abide by its own litigation directive, but it has blatantly violated Wet’suwet’en laws, Canadian laws, international laws and its own purported commitment to the rule of law.

    When Canada sent the RCMP into sovereign Wet’suwet’en Nation territory to destroy their check points and violently arrest and remove Wet’suwet’en people from their own lands, it became lawless – an outlaw state. It also violated its own litigation directive when the RCMP issued a statement saying that since there has been no court case declaring Aboriginal title, the RCMP were justified in their actions. In denying the Wet’suwet’en their constitutionally protected legal right to enjoy their title lands, Canada has prioritized the private, economic interests of a corporation – Coastal GasLink Pipeline – over the rule of law. As explained by the Wet’suwet’en:

    The Unist’ot’en homestead is not a protest or demonstration. Our clan is occupying and using our traditional territory as it has for centuries…. Our homestead is a peaceful expression of our connection to our territory. It is also an example of the continuous use and occupation of our territory by our clan.

    In this case, the laws of Canada were neither equally enforced, nor compliant with international human rights standards. Canada is not a country that follows the rule of law. Canada makes and breaks laws to suit its own economic and political interests, which run counter to those of Indigenous peoples. It is time to be honest about it, and call out Canada as an outlaw, and take action to support the Wet’suwet’en Nation, who have occupied their lands since time immemorial.

    This article was originally published in Canadian Dimension Magazine on April 24, 2019:

    https://canadiandimension.com/articles/view/rcmp-invasion-of-wetsuweten-nation-territory-breaches-canadas-rule-of-law

  • Overincarceration of Indigenous peoples nothing short of genocide

    Overincarceration of Indigenous peoples nothing short of genocide

                                                                                        (Public domain image)

    Canada’s colonial objectives have always been to clear the lands for settlement and development by whatever means necessary.

    After signing peace treaties in the 1700s, clearing the lands meant laws offering bounties on the heads of Mi’kmaw men, women and children. In the 1800s, clearing the lands meant ethnic cleansing on the Prairies – laws, policies and practices that confined native peoples to reserves

    and gave them insufficient rations to survive. In the 1900s, clearing the lands meant the theft of thousands of native children to be forced into residential schools where thousands died from abuse, torture and starvation. In the 2000s clearing the lands means the mass incarceration of Indigenous peoples in prisons paving the way for the extractive industry.

    The overincarceration of Indigenous peoples in federal, provincial and territorial prisons in Canada today is nothing short of genocide.

    On Jan. 21, 2020, Dr. Ivan Zinger, who heads the Office of the Correctional Investigator, issued an urgent statement about the rates of Indigenous peoples in federal prisons being at historic highs. While Indigenous peoples only make up five per cent of the Canadian population, they represent more than 30 per cent of those in federal prisons. Those statistics are even worse for Indigenous women who now make up 42 per cent of the prison population. A Statistics Canada report released in 2018 shows that almost half of all youth in corrections are Indigenous as well. This is all happening at a time when incarceration rates for the rest of Canada continue to decline. Why is this happening? Zinger states that federal corrections is “impervious to change” – a well-founded conclusion given the decades of commissions, inquiries and reports highlighting both racism in the justice system and the devastating impact it has on Indigenous peoples.

    In 1989, Chief Justice Thomas Hickman issued the final report of the Royal Commission on the Donald Marshall, Jr., Prosecution (Marshall Inquiry). Donald Marshall was a Mi’kmaw man from Nova Scotia who had been wrongly targeted by police and convicted of murder, spending 11 years in prison. The Marshall Inquiry found that the criminal justice system had failed Marshall “at virtually every turn” due “to the fact that Donald Marshall Jr., is a Native.” The report provided numerous recommendations to ensure more equitable treatment of native peoples in the future.

    A decade later, the Aboriginal Justice Inquiry of Manitoba released its report in relation to the

    murder of Helen Betty Osborne whose assailants had not been brought to justice; and John Joseph Harper, an unarmed native politician shot dead by Winnipeg police. Murray Sinclair, co-commissioner for the justice inquiry and chair of the Truth and Reconciliation Commission, made similar findings to the Marshall Inquiry: “[t]he justice system has failed Manitoba’s Aboriginal people on a massive scale.” His report also made numerous recommendations in relation to addressing racism and discrimination against Indigenous peoples in the justice system and beyond.

    In 2004, the Saskatchewan Commission on First Nations and Metis Peoples and Justice Reform found that racism was a major issue in police forces in their dealings with native peoples. This came on the heels of the Commission of Inquiry into Matters Relating to the Death of Neil Stonechild, also in 2004. This was an inquiry that investigated “Starlight Tours,” the arbitrary detention of native peoples by police who are driven out of town to freeze to death at night. Both reports offered recommendations, but like the other reports, most were largely ignored.

    In 2007 came the Ipperwash Inquiry in Ontario and most recently, in 2019 came the Final Report of the National Inquiry into Murdered and Missing Indigenous Women and Girls, which found Canada guilty of both historic and ongoing genocide. Racism in the justice system is a common theme in all of these reports and the Office of the Correctional Investigator has been raising the alarm for the overincarceration of Indigenous people for two decades.

    The statistics clearly show a steady rise in Indigenous incarceration from 17.5 per cent in 2000 to 30 per cent in 2020. But these represent the national statistics and, like rates of murdered and missing Indigenous women and girls, and Indigenous children in foster care, the provincial rates can be double the national rates.

    In Manitoba, more than 80 per cent of prisoners are Indigenous — the same province where 50 per cent of all women murdered and missing are Indigenous and 90 per cent of all children in foster care are Indigenous. In Saskatchewan, 76 per cent of prisoners were Indigenous, the same province which has more than 55 per cent of women murdered and missing as Indigenous and 85 per cent of children in foster care are Indigenous. We also know that more than two-thirds of Indigenous prisoners have been impacted by the foster care system. This is exactly the kind of colonial legacy that the Supreme Court of Canada in R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee 2012 SCC 13 cases meant to address when they instructed judges to find alternatives to prison for Indigenous peoples. Is no one listening?

    From the evidence, it is clear we have a direct pipeline from foster care to prison that seems to clear the way for pipelines on native territories. What the statistics don’t show is the history of thenRCMP and other police forces as an integral part of colonial settlement and development policies that have created this current crisis.

    From the RCMP’s Project Sitka to its massive military-style operation on Wet’suwet’en territory right now, native lands continue to be cleared by Canada’s laws, policies, practices, actions and omissions. The overincarceration rates will continue to increase unless we address these genocidal policies once and for all.

    While I agree with Zinger’s call for “bold and urgent action,” cultural programming and Indigenizing the prison will not get us there. We must confront racism against Indigenous peoples head on and prevent incarceration in the first place. This means addressing racism in federal and provincial laws and policies, as well as rampant racism in policing. In the meantime, we must begin the urgent process of decarceration for Indigenous women and children; Indigenous peoples with mental health issues; and Indigenous men languishing in prisons for little more than navigating poverty.

    This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc on January 30, 2020. https://www.thelawyersdaily.ca/articles/17658

  • Reconciliation with Indigenous Peoples in Universities and Colleges

    Reconciliation with Indigenous Peoples in Universities and Colleges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Not Reconciliation list:

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

    (2) Give a land acknowledgement;

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

    (4) Hang native art on campus;

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

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

    (7) Watch documentaries like Colonization Road;

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

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

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

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

    (12) Nominate a native person for an award;

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

    (14) Create an Aboriginal Advisory Committee on campus;

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

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

    (17) Invite native speakers into your classrooms.

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

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

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

    Real Reconciliation:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Cannabis legalization ignores First Nations

    Cannabis legalization ignores First Nations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Link to the UNHRC decision.

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

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

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

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

  • Inquiry into Murdered and Missing Indigenous Women and Girls Fatally Flawed

    (Originally published in Lawyer’s Daily on May 15, 2017)

    It looks like those who advocated for the long-awaited national inquiry into murdered and missing indigenous women and girls will be waiting a little while longer.

    Despite the promise from Liberal Prime Minister Justin Trudeau that the national inquiry would be his first order of business, it has been 19 months since his election and the inquiry hasn’t held a single day of hearings. Although the commissioners held two soft launches in September 2016 and February 2017 promising to launch the hearings soon, the inquiry has not started, nor will they hear from the families until fall 2017.

    Given that the commissioners were given exceptionally limited time to conduct the inquiry, the fact that they have already used up nine of the 26 months allocated to them is a major concern. At this point, the commissioners have very little to show for either the time used or the money spent to date — more than 10 per cent of its $53 million budget.

    Given the lack of communication from the commissioners to date, we are all left wondering what is going on.

    Equally concerning are reports that the federal government has been behind some of the delays by refusing to share its lists of potential witnesses with the commissioners or advance adequate funding to allow much-needed staffing to occur.

    The long list of Indigenous families, leaders and advocates raising public concerns has been met with extended periods of silence. Recent cancellations of scheduled meetings of the inquiry have led to increased criticism by the same indigenous families and advocates who originally pushed so hard for the inquiry. There are even calls for the inquiry to be “reset” both in terms of the panel of commissioners and the inquiry format itself.

    But, as problematic as all this administrative mess is — and it could very well unravel the inquiry — it is relatively minor in comparison to the fact that the inquiry, legally speaking, is fatally flawed.

    Even if the federal government had ensured the inquiry started earlier in Trudeau’s term, and even if the commissioners had been able to quickly launch hearings, neither of these conditions could save the inquiry from its flawed Terms of Reference.

    The Terms of Reference lack the two areas of inquiry that were most important to indigenous families, leaders and advocates: (1) a review of all the known police case files of murdered and missing Indigenous women and girls and (2) a comprehensive review and investigation of police behaviour, specifically racism, abuse and sexualized violence of Indigenous women and girls by police forces. Yet, these two things are specifically exempted or protected from review in the terms, forcing witnesses who want to give evidence about these issues, to go back to the very same police forces that committed the flawed investigations of their missing or murdered loved ones, or the same police forces that failed to act on abuses by their officers.

    There is no way to save this inquiry from such fatal flaws. The provinces and territories all passed orders-in-council to allow the inquiry to proceed in their jurisdictions based on the terms as drafted — in other words, based on these two exemptions. Yet this flies in the face of what Indigenous women, leaders and advocates have long requested and what the minister heard in the national engagement sessions leading up to the drafting of the terms.

    Despite the Human Rights Watch report about police officers sexually abusing Indigenous women and girls in British Columbia with impunity; or the police officers in Val D’or, most of whom will not face charges for allegations of ongoing sexualized abuse of indigenous women and girls in Quebec; or the rampant sexualized violence and discrimination within the RCMP as evidenced by the class action by its female members — none of this will be open for examination.

    At best, the commissioners might be able to look at systemic discrimination within policing policy — but nothing that gets to heart of why so many Indigenous women fear police, and why so many of their investigations, or lack thereof, have been challenged by the families. This poses a real risk that we will end up with an inquiry that is more damaging than helpful. We could end up with a report like that of commissioner Wally Oppal from the Pickton inquiry which hints at generalized police failures in investigations but doesn’t shine a light on the darker side of policing.

    One of the worst outcomes would be a report that presents a general historical overview of colonization, a recap of the well-known socioeconomic problems plaguing First Nations or one that represents the voices of so few indigenous witnesses that it misses the root problems altogether.

    The inquiry terms are already biased toward violence in general and best practices related to violence prevention and safety. This has already led many commentators to focus on domestic violence, which is part of the issue, but by no means the whole issue. Such an unstructured inquiry means we could end up with a report on the already well-documented research on domestic violence but have nothing about police violence for example.

    Given that the terms also focus the inquiry on the “vulnerabilities” of Indigenous women and girls as opposed to failures of federal, provincial and municipal governments and service agencies to protect the human rights of Indigenous women and girls — the inquiry risks missing the whole point. The fatal flaws of the Terms of Reference are reason enough for a reset of the inquiry.

    There is no shame in learning from the lessons of the Truth and Reconciliation Commission’s reset and making sure that the thousands of murdered and missing Indigenous women and girls, their families and communities get the inquiry they asked for and the justice they deserve.

    https://www.thelawyersdaily.ca/articles/3139/inquiry-into-murdered-and-missing-indigenous-women-and-girls-fatally-flawed-pamela-palmater?category=columnists