Warrior Life Studios

Pam Palmater

Tag: native

  • Canada’s Shell Game on C-92 Funding

    Canada’s Shell Game on C-92 Funding

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

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

    NO STATUTORY GUARANTEE OF FUNDING

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

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

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

    Federal officials further clarified that:

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

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

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

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

    TRANSFER OF FEDERAL LIABILITY

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

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

    “DRAW DOWN” JURISDICTION?

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

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

    “TRUST US” MANTRA IS NOT ENOUGH

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

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

  • In Plain Sight: Widespread Racism in BC Healthcare

    In Plain Sight: Widespread Racism in BC Healthcare

    RACISM IN BC HEALTHCARE

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

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

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

    IN PLAIN SIGHT

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

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

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

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

    In-Plain-Sight-Summary-Report.pdf

    FINDINGS

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

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

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

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

    STEREOTYPES

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

    (1)   Less worthy of care;

    (2)   Drinkers/alchoholics;

    (3)   Drug-seekers;

    (4)   Bad parents;

    (5)   Frequent flyers – misuse health system;

    (6)   Irresponsible & wont do aftercare;

    (7)   Less capable; and

    (8)   Unfairly advantaged.

    RACISM CAUSES REAL HARM

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

    (1)   Unacceptable personal interactions – like racist comments;

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

    (3)   Lack of communication/shunning Indigenous patients;

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

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

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

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

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

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

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

    MOVING FORWARD

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

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

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

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

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

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

    HEALTHCARE IS A HUMAN RIGHT

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

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

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

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

     

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

  • Buy Native and Give Native All Year Long

    Buy Native and Give Native All Year Long

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

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

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

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

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

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

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

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

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

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

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

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

    BUY NATIVE:

    Online:

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

    https://cheekbonebeauty.ca/

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

    https://www.shenative.com/

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

    https://tammybeauvais.com

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

    https://www.nishiin.ca/

    Shop in Store:

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

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

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

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

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

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

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

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

    GIVE NATIVE:

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

    https://fncaringsociety.com/welcome

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

    https://www.yintahaccess.com/

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

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

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

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

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

    http://tinyhousewarriors.com/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Killer Whales, Trans Mountain Pipeline and the Public Interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    This is the first of a two-part series.

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

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

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

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

  • “No Natives” Allowed: How Canada Breeds Racism and Fear

    On the one hand, I cannot believe that we as Indigenous peoples are still subjected to such overt racism on a such a frequent basis. On the other hand, I am not surprised, given that this kind of anti-First Nation sentiment is still out there in more hidden forms also known as systemic racism. I guess the best way to describe my feelings is that I sometimes feel overwhelmed that these perverse ideologies don’t just come from a few wackos, but comes from all elements in society – individuals, business, professionals, academics, politicians, and government.

    I received this picture from people on Facebook today who wanted to bring this issue to the attention of the public and the police. This picture is allegedly of a restaurant in Lakefield, Ontario. It was reported in the Toronto Sun that the police are investigating this as a hate crime. Here is the link to that story: http://www.torontosun.com/news/canada/2011/03/16/17638211.html If this incident actually happened (and everyone is innocent until proven guilty), it is a symptom of how Indigenous peoples are portrayed generally in our society – in schools, the media and by federal and provincial governments. Even if this one turns out to all a big misunderstanding, there used to be many similar signs like this, just for Aboriginal people:

    I am less surprised by this kind of overt racism from members of small communities, when I hear famous people, like Kevin O’Leary (who appears on Dragon’s Den and CBC News’ Lang & O”Leary show). You will recall, that Kevin O’Leary called his co-host an “Indian giver” and when she rebuked him for such barbaric language, he repeated the phrase and defended his use of it. http://www.thestar.com/news/canada/article/950584–cbc-ombud-slams-o-leary-s-offensive-on-air-comment This comment was made on Canada’s CBC News during prime time when a large number of Canadians would be watching. It happened LAST October 2010 and not a word of apology was issued by O’Leary or CBC. It wasn’t until 5 months later and AFTER the CBC Ombudsperson had publicly released their decision that the comment was wrong and so was CBC for not immediately addressing it – that we heard any mention of an apology. Specifically, the Ombudsperson stated: “In this instance, the preferred course would have been for O’Leary not only to privately recognize the fault of his ways but to publicly express remorse, either that night or the next night or soon after. But if he wasn’t going to publicly apologize, the program could have done something further to make amends. Its obligation goes beyond the complainant to the viewers in order to uphold the broader reputation of the program and CBC itself.” http://www.cbc.ca/ombudsman/pdf/2011-03-02-Jamieson.pdf This is obviously the point I am getting at about the effect such comments have, especially when left for many months to fester. The problem is that Indigenous peoples are getting it from all sides and by not acting to address these issues, it’s no wonder society thinks this is acceptable. Scripted apologies forced by legal decisions, litigation or threat of job loss are hardly sincere or even effective at undoing the damage caused. http://www.nationalpost.com/news/canada/pundit+censured+offensive+exchange/4399119/story.html You will recall on the very same day that Prime Minister Stephen Harper offered a public apology on behalf of all Canadians for the physical, sexual, and other abuses committed in residential schools, his conservative MP, Pierre Poilievre, had the nerve to question the compensation being given to survivors and asked whether it was “value for money”. I still feel nauseated when I read his comments. As if there is any monetary amount that could ever compensate for sexual abuse like rape, physical abuse like beatings, neglect that resulted in many deaths and the loss of culture, language and hope. http://www2.macleans.ca/2008/06/11/pierre-poilievre-shows-his-empathy-for-residential-school-survivors/ Keep in mind, Canada has compensated Japanese families for ripping them from their homes and putting them in camps during the war. The Chinese were also compensated for the head tax that was imposed on them to prevent them from immigrating to Canada. While the Supreme Court of Canada has specifically said that discrimination is not “a race to the bottom” (i.e. who is more discriminated against), they have said that often times Aboriginal peoples are dually disadvantaged on mulitple levels not necessarily experienced by other groups. http://www.canlii.org/en/ca/scc/doc/1999/1999canlii687/1999canlii687.pdf Indigenous peoples suffered in residential schools for their entire childhoods and many others suffer the deadly inter-generational effects for communities all over the country which could take generations to address. How could the residential school compensation be less “value for money” than another group’s? Somehow, conservatives and others find a way to insert doubt and blame into the conversation when it is about Indigenous peoples. We all know about Senator Patrick Brazeau who uses the Senate chambers, resources, and logo to film carefully worded videos meant to portray First Nations as lazy and corrupt. In fact, on my previous blogs, I have highlighted his negative, stereotypes of First Nations and how in one show he even accused First Nations as hubs of “illegal activity”. This all coming from an individual who claims to be First Nations – imagine the powerful effect this would have on the views and opinions of non-Aboriginal peoples. That brings us to Minister of Indian Affairs, John Duncan. As you know from my previous blogs, I am no fan of Minister Duncan given his past racist comments about Indigenous peoples and their rights. https://pampalmater.com/2010/09/indian-agents-are-back-pm-new-indian.html Duncan was very much opposed to Aboriginal and treaty rights to fish, ignored their constitutional protection, and characterized them as “race-based”. http://www.mediaindigena.com/rickharp/issues-and-politics/indian-affairs-minister-john-duncan-menacing-or-muzzled More recently, however, Minister Duncan appeared before the Senate Committee on Aboriginal Peoples regarding Bill S-11, the bill dealing with safe drinking water on First Nations. Senators have commented that all witnesses, both Aboriginal and non-Aboriginal alike, including water experts and legal experts all agree that this Act is so bad that even amendments could not save it. On March 8, 2011, Minister Duncan, expressing his frustration, commented that:

    “This committee has been receiving a very one-sided view on the way things are going.  We’ve actually been working very collaboratively especially with the Treaty 6, 7 and 8 group from Alberta….  You’re correct in concluding that everyone does not have the same view.  But I think this committee has managed to somehow capture a prevalence of negative views.  Sometimes that’s what happens.  It’s easier  in First Nation politics to be aggressively  contrary to something than it is to be supportive.  And that’s an observation that I will make and stand behind and it’s something I hope we can change”

    How could we as Indigenous peoples NOT be, at the very least, “agressively contrary” to the sexual abuse in residential schools, the outlawing of our cultures, the legislated exclusion of our women and children from our Nations, the removal of thousands of our children to child welfare agencies, the early deaths of our people from extreme poverty, the theft of our traditional lands and resources,  and the political and legal destruction of our laws, governments and communities? In other countries, this can and has resulted in revolutions. While I can’t say for sure what was going on in his head, it certainly appears to me that Minister Duncan gave his comment some thought before he said it as he followed up his comment with confirmation that he will stand behind it. This is not dissimilar to Kevin O”Leary standing beside his racist remarks, or Tom Flanagan standing beside his comments. I have always been told to believe people when they tell you who they really are – so I am listening. Aside from showing a pre-disposition to having racist views about Indigenous peoples, Minister Duncan’s negative stereotyping of First Nations does little to suggest his views have evolved over time. Looking at it from society’s point of view, if the Minister of Indian Affairs, who is supposed to be an advocate and champion for Aboriginal peoples in Canada has such hostile, negative views about Aboriginal peoples, why would we expect society to be any better? It is almost as if Minister Duncan is sickened to even have to work on this portfolio – which begs the question – why the heck does he?

    Sadly, comments by our top law enforcement agencies about Indigenous peoples do not fair any better. Official documents in the Canadian Military have characterized Mohawks as insurgents or terrorists. This not only false and offensive, it also serves to spread fear and distrust amongst non-Indigenous society. My children’s own friends ask questions about whether we are “terrorists”.

    http://video.ca.msn.com/watch/video/military-apologizing-to-mohawks/16ahlo0dq

    The damage has been done. No carefully worded apology will be able to undo the damage to Indigenous peoples and especially the Mohawk in this case. Canadians are more likely to see us as terrorists than the First Peoples of this country. If there was any doubt, just ask Christy Blatchford and TVO, who portrayed Mohawks in Six Nations as lawless and out of control: https://pampalmater.com/2011/01/update-tvo-agenda-botches-show-on.html

    Yet, despite the military’s indication in 2010 that they would be offering a very carefully worded apology, one remains to be given. Many months later and not a single word has been issued. It makes me wonder what kind of priority they made of the apology. Instead, there seems to be a universal default that these comments will be allowed to be said, defended, repeated, and given time to sink in before any superficial apology is offered. We deserve more than this anti-First Nation propaganda on our own homelands.  http://www.montrealgazette.com/news/Military+apologize+Mohawk+Warriors/4015748/story.html

    Add to this the list of right-wing academics who promote the assimilation of Aboriginal peoples in various forms like Tom Flanagan, Dale Gibson, Frances Widdowson, and Alan Cairns, etc. This is reinforced by some teachers in schools which either don’t teach their students about Aboriginal peoples, do so in a minimal way or teach some of these same stereotypes. This is further reinforced by the various media outlets who make millions off portraying First Nations as lazy, crooked, criminals and movies or TV shows which promote an archetype of Indians that few today can live up to – the “good” version or the “bad” version.

    This is an old battle, one that we have been fighting since contact. While many in society would like to believe that old colonial ideologies about Indigenous peoples have long waned, the opposite is true. Just take a peek at some of the vile comments posted on online media stories about Indigenous peoples and you’ll see what I mean. Not only do Indigenous peoples face this battle on multiple fronts and on a daily basis, but they must also face the battle within themselves, Every day we face the battle to prove we are worthy as human beings. Too often this battle is lost and we lose our young people to suicide, violent deaths, and early deaths from diseases, malnutrition, and lack of housing caused by extreme poverty.

    I’d like to point out that the Criminal Code of Canada specifically prohibits hate crimes (section 319) which provides that public statements made against an identifiable group that incites violence against that group is a CRIME. Similarly, section 318 specifically probihits GENOCIDE – which is the killing of an identifiable group, or creating lufe conditions would bring about that group’s physical destruction. Sounds like an option, but the tricky part is you have to get the Attorney General to agree to bring these charges. So, back to the drawing board…while assimilation, racism, theft of our lands, resources and souls continues…

    Those of us who manage to wake up every day and win this internal battle (at least enough to keep trudging along), must then engage in the political and legal battle for our basic human rights and freedoms, to protect our cultures and identities for future generations, as well as the key issues like sovereignty, Aboriginal and treaty rights, land rights and so on. We have to know more than anyone else about our issues, we have to work harder than anyone else, and we have to find ways to do so politely and with smiles on our faces lest we be characterized as “agressively contrary” or “terrorists”. So the next time you hear someone say how easy First Nations have it; how they get everything for free; or how lazy they all are, why don’t you suggest they live with Indigenous peoples for a while and see what the “free & easy” life is really like? Or perhaps they’d like to discuss the subject with those of us who fight in this battle 24-7? It is time Canada accepted the fact that we will not be assimilated. Whether you call it “agressively contrary”, “insurgency” or “criminal” – we will continue to protect our cultures and identites for future generations. If only Canadians could leave their minds open long enough to see the incredible strength of our diverse peoples, the beauty of our rich cultures and traditions, the unique ties we have to our territories, or the incredible pride we have in our identities – then they would see why we refuse to give it up.