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Pam Palmater

Tag: Justin Trudeau

  • 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

  • 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

  • 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

  • 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

  • Canada’s Criminalization of the Indigenous Tobacco Trade

    Canada’s Criminalization of the Indigenous Tobacco Trade

    *This article was originally published in Lawyer’s Daily on April 4, 2018

    Prime Minister Justin Trudeau claims that there is no more important relationship than the one with Indigenous peoples and committed to a renewed nation to nation relationship based on respect for Indigenous rights. To this end, Trudeau made many promises to First Nations, including a commitment to review and repeal all of the laws imposed on First Nations by the former Conservative government led by Stephen Harper.

    This is a significant commitment from the Liberal government, as Harper passed numerous laws impacting Indigenous rights — without complying with the legal duty to consult, accommodate and obtain the consent of First Nations. Laws related to drinking water, elections, financial transparency, matrimonial property, land surrenders and the removal of protections for lakes and rivers were passed in spite of strong opposition by First Nations. One bill which attracted a great deal of resistance was Bill C-10 An Act to amend the Criminal Code (trafficking in contraband tobacco).

    Bill C-10 created the new offence of trafficking in contraband tobacco and also prescribed minimum prison terms for repeat offenders. The RCMP defines contraband or illicit tobacco as including product “unlawfully manufactured in Canada, mainly on First Nations reserves and territories.” Yet, it is only unlawful to the extent that the federal government has made it unlawful.

    Current laws completely ignore the inherent, Aboriginal and treaty right of Indigenous nations to engage in their traditional economies. Not only do Indigenous nations have a right to trade in tobacco with other Indigenous nations, but they have a right to trade with settlers as well. Part of the traditional practice of trading in tobacco was trading with Europeans — which is in fact how Europeans came to enjoy tobacco today.

    Indigenous nations in North and South America have been growing, manufacturing and trading tobacco for thousands of years. Some anthropological estimates put the growth and use of tobacco as a crop by Indigenous peoples as early as 5000 BC. Indigenous peoples manufactured the tobacco plant for use in ceremonies, sacred rites and rituals, and it is still used in ceremonies today. Tobacco is often gifted to elders to perform ceremonies or exchanged between First Nations as part of cultural protocols, for example. Tobacco was also traditionally manufactured for snuffing, chewing and smoking as well as medicinal purposes and was even used as insect repellent. By comparison, European settlers did not start growing, using or trading in tobacco until very recently — in the last several hundred years — and only because Indigenous nations introduced it to them. If there is one economy that should be exclusively managed, controlled and legislated by First Nations — it is the tobacco trade.

    The Indigenous tobacco trade is an essential part of the traditional and modern cultural practices and economies of many Indigenous nations in what is now known as Canada and the United States. They have managed, protected and benefited from the many natural resources within their traditional territories since time immemorial — including tobacco. Today, the inherent, Aboriginal and treaty rights of Indigenous nations to engage in traditional practices, such as the growth, manufacture and trade in tobacco, are governed by traditional and modern Indigenous laws and regulations. These practices are also protected in s. 35 of Canada’s Constitution Act, 1982 which specifically protects Aboriginal and treaty rights — including pre-contact practices that were integral to Indigenous cultures.

    The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that Indigenous nations have the right to self-determination which includes the right to freely pursue their economic development (article 3); the right to be secure in their own means of subsistence and engage freely in all traditional and economic activity (article 20); and the right to benefit from their own lands and natural resources in their territories (article 25). While the United Nations considers these standards to represent the minimum standards for the “dignity, survival and well-being” of Indigenous peoples, Trudeau’s government has also committed to implementing UNDRIP into domestic law. At a minimum, the current government should exempt First Nations from these unconstitutional and human rights-infringing laws which criminalize the Indigenous tobacco trade.

    Article III of the Jay Treaty of 1794 recognized the trading practices of Indigenous nations north and south of the imposed border and confirmed that their rights to live and pass freely over the border would continue to be protected and included an exemption from customs, duties and other fees. In fact, a report of the Special Parliamentary Committee on Indian Self-Government (known as the Penner Report) specifically recommended that Article III of the Jay Treaty be specifically implemented into legislation. Instead, Canada has continued to deny Indigenous nations their long held rights to trade over the border.

    The problem is less about Indigenous criminality and more about colonial control of Indigenous practices for the benefit of non-Indigenous governments and corporations. In other words, the crime of contraband tobacco was created to disentitle Indigenous nations from engaging in their own tobacco trade. Not unlike what federal and provincial governments did with hunting and fishing.

    Characterizing Indigenous peoples who engage in the tobacco trade as gangs, criminals or members of organized crime is racist, factually wrong and is itself a form of hate crime insofar as it paints all Indigenous peoples in the trade as criminals and dangerous. Indigenous nations have just as much right to provide food, clothing and shelter for their families as anyone else, including Canadian businesses, like convenience store owners – who do not have constitutionally protected rights to engage in the tobacco trade.

    The racist backlash experienced by First Nations from being characterized as criminals stems directly from federal and provincial laws, policies, and enforcement measures which appear to target First Nations. Canada can’t have it both ways — they can’t complain about the cost of First Nation poverty and continually criminalize all our means of subsistence. This focus on contraband tobacco appears to be less about addressing organized crime and more about who gets to profit from the tobacco trade.

    *Link to the article that was originally published in Lawyer’s Daily on April 4, 2018

    https://www.thelawyersdaily.ca/articles/6233/canada-s-criminalization-of-the-indigenous-tobacco-trade-pamela-palmater?category=columnists

  • Trudeau’s Dance of Deception on Indigenous Rights

    Trudeau’s Dance of Deception on Indigenous Rights

    *Originally published in Lawyer’s Daily on February 26, 2018 (edited to include links) On Feb. 14, 2018, Prime Minister Justin Trudeau announced his plan to develop a new legislative framework called the “Recognition and Implementation of Rights Framework” intended to recognize Indigenous rights and avoid litigation. This announcement came after the incredible not guilty verdict in the Gerald Stanley murder trial — the farmer who killed Colten Boushie from Red Pheasant First Nation — and the subsequent nationwide rallies and protests by Indigenous peoples.

    There is no doubt that Trudeau was trying to deflect attention from the deep-rooted racism within Canada’s justice system — but also in his own government’s failure to take substantive action on any of the injustices facing Indigenous peoples. Despite his many pre- and post-election promises to Indigenous peoples — Trudeau has been all talk and little action.

    Aside from the opportunistic nature of his announcement, it is important to note that this is nothing new. Since his election, Trudeau has made the same core promises to recognize and implement Indigenous rights in a multitude of strategically timed announcements. He campaigned on reviewing and repealing all laws imposed on First Nations by the former Conservative government headed by Stephen Harper. He promised to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the provision of free, prior and informed consent which he confirmed meant a veto for First Nations.

    After he was elected he reconfirmed that his government would renew the nation to nation relationship based on rights recognition. However, his mandate letters to his cabinet tended to focus more on specific social programs than any rights-based agenda. Despite these very telling mandate letters, Trudeau managed to maintain the fanfare around his government’s commitments at the Assembly of First Nations’ (AFN) Chiefs in Assembly meetings in 2015 and 2016. With very similar impassioned speeches, he re-announced his government’s commitment to repeal all of Harper’s laws, review all Canadian laws to ensure their compliance with section 35 Aboriginal and treaty rights and implement UNDRIP.

    However, year after year, he has not taken any substantive steps in this direction. Therefore, when yet another announcement was made in June 2017, this time about a Memorandum of Understanding between the AFN and Canada, there was some expectation of concrete deliverables. Like all other announcements to date, the pomp and circumstance celebrating the MOU overshadowed the fact that the only hard commitment in the MOU was to meet with the AFN three times a year to talk.

    This is the well-choreographed dance used by Trudeau to make Canadians and Indigenous peoples believe that he is making great strides, “absolutely historic” advancements, or engaging in a “fundamental rethink” of the relationship with Indigenous peoples. Sadly, the AFN has become a willing partner in this deception. Had the AFN been doing its job, it would have advised First Nations not to count on the speeches and announcements, but to force hard commitments on paper. It should have been concerned that Trudeau’s legislative framework idea is yet another federal government idea, much like the creation of two Indian Affairs departments — neither of which was requested or developed by First Nations.

    We know from the Royal Commission on Aboriginal Peoples and the most recent Truth and Reconciliation Commission report that every time Canada imposes solutions on us — our lives get much worse. This announcement is no exception. Despite trying to distance himself from his father’s legacy, Justin Trudeau is covertly trying to do what his father Pierre Trudeau tried to do directly.

    In 1969, then Liberal Prime Minister Pierre Trudeau, together with his Minister of Indian Affairs, Jean Chretien released the 1969 White Paper on Indian Policy. The goal was to repeal the Indian Act, dissolve Indian Affairs, eliminate Indian status, get rid of reserves and treaties.

    There was tremendous opposition to this plan by First Nations, including protests and several official responses, including Citizens Plus — dubbed the Red Paper — from First Nations in Alberta and Wahbung: Our Tomorrows from First Nations in Manitoba. In both of these responses, First Nations said they did not want the Indian Act repealed and that any amendments had to be done with their consent. They also said that their separate status as Indians and treaty beneficiaries were to stay. Most importantly, they reconfirmed what First Nations have long said: that they need their lands, resources and jurisdictions recognized so they can rebuild their Nations. Trudeau abandoned the 1969 White Paper, but subsequent governments have never stopped trying to fulfil its objectives.

    Now, Justin Trudeau, who did not consult with First Nations nationally, has made unilateral decisions about Indigenous peoples including changing the name of the department, creating two new departments, limiting nation to nation relations to meetings with the AFN and a new legislative framework to limit Indigenous rights. We know that this legislation will limit rights because of the code words used by Trudeau during his announcement. His focus on “certainty” is a Justice Canada word used to extinguish Indigenous rights and title. His comment that this process is not about getting back what was lost — is code for no return of lands and resources or compensation for the loss of use or benefit.

    Trudeau’s confirmation that no amendments would be made to the Constitution means that no substantive recognition of Indigenous jurisdiction will be made. Finally, his focus on doing this to avoid the courts is another way of saying that he doesn’t want any more court cases upholding our rights to land and our right to decide what happens on our lands. Justice Minister Jody Wilson-Raybould made it very clear that free, prior and informed consent (FPIC) in UNDRIP “does not equate to a veto” — a stark contrast from Trudeau’s promise that FPIC “absolutely” equates to a veto.

    Trudeau’s dance of deception has the potential to gut Indigenous rights, treaties, title and jurisdiction in Canada, especially if he is permitted to ride the pomp and circumstance of these carefully worded, flowery announcements to royal assent before the next election — as he promised. Conflict is coming and the true test of reconciliation will be over our right to say no. *Link to the article originally published in Lawyer’s Daily on February 26, 2018:  https://www.thelawyersdaily.ca/articles/5976/trudeau-s-dance-of-deception-on-indigenous-rights-pamela-palmater?category=columnists Please check out my related video on Youtube discussing Trudeau’s false face speech to the UN about Canada’s relations with Indigenous peoples: https://www.youtube.com/watch?v=bI3-Vc01InQ&t=5s

    See also my related video providing a basic explanation of the federal legislative framework: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s

  • The Worst Thing That Could Happen is a First Nation Minister of AANDC

    Justin Trudeau will be sworn in as Prime Minister on November 4 and the question that seems to be dominating social media is whether or not he will appoint a First Nation person as the Minister of Aboriginal Affairs and Northern Development Canada (AANDC). Ever since contact, colonial officials sought out individual “Indians” to act on the Crown’s behalf in various contexts – as cultural and language interpreters, military scouts, and spies. In a modern context, Canadian officials have resorted to manipulating individual Chiefs to promote federal initiatives that they know run counter to our Aboriginal and treaty rights or will be met with mass resistance. This divide-and-conquer technique of pitting First Nations against First Nations has always been used to help the Crown deflect attention from the Crown’s culpability on any given issue. The worst thing that could happen for the promised nation to nation relationship is if Prime Minister Trudeau appointed a First Nation person as Minister of Aboriginal Affairs and Northern Development Canada (AANDC).

    Sometimes people misunderstand the role of Crown representatives. There is no doubt that diversity on cultural, gender, and regional fronts  helps the government be more representative of the public, better inform policy and decision-making, and make for a more productive and effective government. The research shows that this is true in both matters of government and business. However, outside of considerations of governance, Crown representatives are always Crown representatives. They are there to protect the interests of the Crown. They may have been elected by a specific constituency and can represent them politically or advocate on their behalf, but Cabinet Ministers are “Ministers of the Crown”. Therefore, even the Minister of AANDC is there to represent – first and foremost – the interests of the Crown – whether the person is First Nation or not.

    That said, it is true that the Supreme Court of Canada has added to the Crown’s obligations to First Nations in specific circumstances. Some of these special considerations include fiduciary obligations attached to the honour of the Crown, which gets expressed in a variety of ways from having to act in good faith, consulting with First Nations, and honouring commitments. However, it must be remembered that Members of Parliament owe their duty to “the system”, i.e., the Constitution, the rule of law, and all regulations imposed by Parliamentarians. Yet it is this “system” which has been found by numerous commissions, reports and investigations to be racist, exclusionary, and oppressive to First Nations. Thus, the very act of being a Cabinet Minister, therefore, sets him/her directly against First Nation interests. This is evident in the hundreds of court cases which name the Minister of Aboriginal Affairs and Canada against First Nations. In every single case, Canada litigates AGAINST First Nations. Changing the face of the Minister won’t change this fact nor does it change the racist system itself, which is the underlying problem. The Indian Act and thousands of federal laws, regulations and policies are still in place. It just looks less offensive – but putting a nicer face on it doesn’t make it any better and can actually cause more harm.

    If Trudeau is truly serious about a Nation to Nation relationship with First Nations, then he needs to come to the table in an honest way. Canada doesn’t need to portray its Cabinet Ministers to be anything other than what they are: they represent the Crown’s interests, not ours. Let’s have true nation to nation meetings with representatives of the Crown and move forward from there. It will be up to the First Nation side to how they wish to negotiate as Nations – either as larger Nations, i.e. Mi’kmaw Nation, Haudenosaunee, or Maliseet Nation; or whether they wish to represent their collective nation-based interests by way of region, treaty or otherwise. Let First Nations do the work of their Nations and Canada focus on how it will move forward in a more just way – beyond the lethal status quo.

    While we heard a great deal from the AFN about Nation to Nation relationships, their political actions betrayed them. Secret meetings between the National Chief and the Minister of AANDC do not equate to a nation to nation relationship. In fact, secret meetings, surprise announcements about deals with Canada, and a complete failure to call Canada out for its destructive, assimilatory agenda, was part of the AFN’s undoing. But it had to happen as it is the grassroots people who are the true governments of their Nations. The people simply took their power back and told their leaders that sovereignty starts with each Nation – not with a national political organization. Canada would never allow a political corporation to represent its interests in nation-based issues – why would we? Thanks to Idle No More movement, our grassroots people have empowered themselves to take a stand against all who threaten our sovereignties, jurisdictions, lands, cultures and identities. It doesn’t look like our people are willing to let things go back to the way they were. Trudeau will have to find a way to deal with this new reality if he expects to fully realize a nation to nation relationship.

    To appoint a First Nation Minister of Aboriginal Affairs will divide our Nations, and set us up to be for or against the “First Nations” Minister – a situation none of us want to be in. It will also act as a media distraction for more important issues, like murdered and missing Indigenous women or children in care. It will also unfairly make this Minister and this Minister alone, the target of all anger, criticism, and blame when things go wrong in the relationship. It would make Canadians lose sight that the fault is not in the Minister, but in the system and the entire Cabinet which keeps this unjust system in place.

    It’s time for the Crown to act honourably and come to the table in an honest and open way. Putting a First Nation Member of Parliament as Minister will not help us move back to nation to nation relations, but distract from that goal. Real change requires a radical departure from the old divide-and-conquer tactics of the past. In the end, Trudeau, his Cabinet, and the entire federal government must realize that the hard work that lies ahead to make amends for the harms done to First Nations; the committed effort needed to address this racist and oppressive system; and the sacrifices needed to restore justice in Canada is a burden that must be borne by Canada, and Canada alone. If we have learned anything from the Truth and Reconciliation Commission, it is that First Nations have carried the burden of injustice for far too long and at too great a price.