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Pam Palmater

Tag: Pam Palmater

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Link to the UNHRC decision.

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

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

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

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

  • 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

  • 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

  • Justice for Our Stolen Children Camp – Thank you for Standing Up for our Children

    The violent deaths of Colten Boushie in Saskatchewan and Tina Fontaine in Manitoba hit their families, communities and First Nations pretty hard. These were youths who had their whole lives ahead of them. The fact that deep-seated institutional and societal racism and violence against Indigenous peoples is what led to their deaths is a glaring injustice that we have seen happen many times over to our people. But the other glaring injustice is how institutional and societal racism and violence allows the killers of our people to walk free. The high level of impunity for lethal race-based violence against Indigenous peoples serves only to reinforce the racist idea that Indigenous lives don’t matter. Without intervention from federal, provincial and municipal governments, agencies and police forces, our people will continue to be at risk.

    Canada’s failure to act on this crisis means that First Nations must continue to take action to stand against these injustices which are killing our people. At a time when our hearts were collectively breaking over the non-guilty verdicts in the Gerald Stanley murder trial of Colten Boushie and the Raymond Cormier murder trial of Tina Fontaine, First Nation members from Saskatchewan got together and created the Justice for Our Stolen Children Camp. On February 28, 2018, they raised a traditional teepee and lit a sacred fire in Treaty 4 territory at Wascana Park, just across from the Saskatchewan Legislative building. These grassroots community members used their most powerful tool to bring attention to this crisis – their voices and their traditions.

    But the teepee and the sacred fire not only attracted media attention for our issues, but it also turned into something special. This camp became a gathering place for those who had lost children to violence, foster care and the justice system. Mothers, fathers, aunties and cousins with broken hearts came to the camp to share their stories, release their emotions and start their healing journeys. Far from creating any safety risk to the public, this camp offered hope, comfort, solidarity, a sense of collectiveness and empowerment. The longer the camp remained at Wascana Park, the more the media took notice and started to highlight the many injustices faced by First Nations. The core message from the camp was that we need justice specifically for Indigenous youth in the wake of the Stanley and Cormier not guilty verdicts; and justice for the many Indigenous children stolen from our communities by child welfare agencies, the justice system and societal violence.

    For many months, it may have appeared to outsiders looking in, that they were alone and that their camp would eventually fade from attention. They occupied the area peacefully for four months, supported by donations from First Nations and allies. It wasn’t until the Province of Saskatchewan thought the camp would interfere with its planned location for its Canada Day beer gardens that they took legal action. On June 5, the camp was issued and eviction order and ten days later, the Regina Police Service began their eviction procedures by removing the tents. On June 17 the teepee was taken down and on June 18 six of the campers were arrested and removed from the area, though charges were never laid. Many of us watched with anger as the province carried out this heavy-handed action, trampling over the wounded hearts of those who have found some temporary peace at the camp – all for the sake of beer gardens.

    But if there is one lesson from our elders that we have to remember, is that we can never give up hope. Our ancestors died protecting the rights of future generations not yet born. We inherited the obligation to face each barrier put in front of us by colonial powers, with the same commitment to overcoming it, as our ancestors had. So, on June 21 National Indigenous Peoples Day, when we saw videos of the campers returning to Wascana Park, re-erecting the teepee and joining together in a round dance, our collective hearts were lifted again – this time with a renewed sense of resistance and empowerment. On June 23rd, a second teepee was erected and others joined in solidarity after that until there were many teepees side by side. People made donations of cash, food and water to support the campers and the healing continued. We owe so much to the spirit and determination of those who have stayed at the camp for long. Their commitment is why we are still talking about justice for our stolen children.

    There is a real and growing crisis in Saskatchewan that demands an emergency, crisis-level joint response by federal, provincial and First Nation governments, experts and advocates. It doesn’t matter what the federal or provincial governments say they have done, what programs they have funded, or who they talk to at various discussion tables – what matters is that what they have done to date has not worked and the crisis continues to get worse. Therefore, a radical shift from the status quo is required to save the lives of our children. They don’t have a whole childhood to wait for the slow, drawn-out process of policy change. Our children are dying and the statistics present a dire picture for their life-chances if we don’t change this now.

    Child Welfare

    In Canada, Indigenous peoples make up 5% of the population and Indigenous youth make up 7% of the youth population. Nationally, Indigenous children make up 48% of all children in foster care – a number that is 3 times higher than during the height of residential schools. However, in Saskatchewan, an alarming more than 70% of children in provincial care are Indigenous and the numbers continue to increase. We know that less than half of those children will graduate from highschool and more likely to end up in youth corrections. The statistics also show that that Indigenous girls in foster care are 4 times more likely to be sexually abused; more likely to be targeted for human sex trafficking and are over-represented in murdered and missing Indigenous girls. The theft of our children into foster care does not just impact the children. Indigenous mothers who lose their children to foster care are more likely to die from heart disease and suicide.

    Justice System – Prison

    Canada has had the lowest crime rate since 1969 with a reduction of 34% since 1998. Yet Indigenous people make up more than 26% of those in federal prisons and Indigenous women make up 34%. Saskatchewan’s numbers are frightening. Over 76% of admissions to Saskatchewan prisons are Indigenous – the highest rates in Canada. Nationally, 41% of youth in corrections are Indigenous, with 51% being Indigenous girls. In Saskatchewan youth corrections, 92% are Indigenous boys and 98% are Indigenous girls. They have the highest youth incarceration rates in the entire country. More than 1/5 of Indigenous prisoners were in residential schools and 2/3 were in the child welfare system. It is important to remember that Indigenous peoples represent 1/3 of all suicides in prison and more than half of those who suffer in solitary confinement/segregation.

    Violence – State & Societal

    In 1996, the report of the Royal Commission on Aboriginal Peoples noted that racism is rampant from police forces to the courts. Saskatchewan policing in particular has a long, violent history of racism against Indigenous peoples. In 2004, the Saskatchewan Commission on First Nations and Metis Peoples and Justice Reform found that racism in policing was a “major obstacle” in relations with First Nations. The well-known police practice of “Starlight Tours” where police detain and drive Indigenous men to the outskirts of town where they freeze to death doesn’t seem to have ended with the Neil Stonechild inquiry. Indigenous women are often targeted with sexualized violence – including from police. The Human Rights Watch report from 2017 documented instances of excessive use of force, abusive strip searches and other sexual harassment against Indigenous women. The statistics also show that Saskatchewan has the highest rate of police involved deaths (beatings, chokings, shootings) of Indigenous peoples (62.5%).

    The RCMP report into murdered and missing Indigenous women and girls showed that nationally Indigenous women and girls make up 16% of those murdered, but in Saskatchewan, that number jumps to 55%. Societal violence comes from the places most people do not suspect: priests, farmers, police, corrections, doctors, lawyers, judges, social workers, teachers, and foster parents. Very few of those who sexually violate or murder Indigenous women and girls are serial killers. The statistics also show they are less likely to be murdered by their spouse than Canadian women. The high level of impunity (non-conviction) for those perpetrators in society who continue to commit violence against Indigenous peoples is exacerbated by the many reports that document how police fail to protect Indigenous peoples or properly investigate their cases.

    We have a real crisis in Saskatchewan. What has been done isn’t working. We need a new approach – one that is led by First Nations and their experts and advocates. We owe a huge debt of gratitude to the campers at the Justice for Our Stolen Children Camp who have sacrificed their time and energy, and risked police arrest and jail, to keep the light on this crisis. We don’t want to lose any more of our children and we want to bring the rest of our children who are in foster care, corrections, trapped by human traffickers, or missing – back home. Bring our children home.

    In memory of all those precious lives those and sadly, too many to name:

    Neil Stonechild, Leo Lachance, William Kakakaway, Leonard Paul John, Colten Boushie

    Nadine Machiskinic, Shelley Napope, Melanie Dawn Geddes, Amber Redman, Danita Bigeagle

    Haven Dubois, Brandon-Bee Ironchild, Evander Lee Daniels

    Please see my YouTube video that I have created in support of the Justice for Our Stolen Children Camp:

    https://www.youtube.com/watch?v=2mYjduyt4Jw

  • Maxime Bernier’s “Extreme Multiculturalism” Twitter Rants Sound More Like Sour Grapes

    Last week, Conservative Member of Parliament, Maxime Bernier posted a series of tweets on Twitter espousing his opposition to “extreme multiculturalism” and the “cult of diversity” in Canada. According to Bernier, diversity will “destroy” the cultural identity of Canada and worse, will result in “cultural balkanization” that leads to social conflict and even “violence”. These tweets were not the usual fair commentary offered by elected officials on matters of public policy. No – there was something a bit more frantic, even desperate about these tweets. These tweets sounded like the rantings of a wayward politician who, having failed in all of his political endeavours to date, couldn’t think of any other way to get attention but to ride the populist white supremacy wave.

    A combination of deep-seated racism and white superiority, together with Trump-like fear-mongering seems to be the current populist recipe for manufacturing hate and division for the purpose of political gain. It also seems to reward the instigators with gratuitous attention on social media.

    If we are to understand Bernier’s Sunday night tweet rant better, we have to understand that Bernier is a failed politician. He was a separatist from Quebec who voted in the 1995 referendum for Quebec to separate from Canada, but that vote and his efforts, failed. He was later successful in being elected a Conservative MP from Beauce, Quebec and was even appointed Foreign Affairs Minister under former Prime Minister Stephen Harper. However, he was forced to resign in scandal when he left classified documents at his girlfriend’s place for nearly a month. After Harper’s Conservatives were devastated in the last election, giving Trudeau’s Liberals a majority government, Bernier ran for leadership of the Conservative party and lost to Andrew Scheer. Soon after, he released portions of a cry-all book about how he lost the leadership bid, but publication was halted. His own peers said this cry-all book was more about “sour grapes” from losing and his “vanity” and need for attention. Most recently, he was silently kicked from Scheer’s shadow cabinet.

    If ever there was a recipe for some hateful sour-grapes, this would be it. A failed separatist, Minister, leader, author and shadow cabinet member, Bernier clearly wants to make a name for himself in whatever way he can. We all know that Republican President Donald Trump’s sexist, racist, anti-immigrant fear-mongering seems to have appealed to the ultra right-wing and white supremacists in the USA. It also seemed to work for Conservative Ontario Premier Doug Ford, a “fiercely right-wing populist”, who won an election with a “take care of our own” attitude devoid of any substantive public policy – unless you include his buck-a-beer-for-all promise. It would seem that Bernier is once again suffering from sour grapes and has resorted to this hateful, racist rant against every other culture than his own people– the very people that seems to have rejected him. 

    It is not the fault of new immigrants that Bernier’s own party have rejected him over and over. Nor can his misery be tied to the legal right of people from diverse cultures to enjoy their traditions in Canada. This is an example of popular white supremacism – the idea that people of other racial, ethnic or cultural backgrounds are inherently dangerous and should not mix with “old stock Canadians” – i.e. “white” Canadians. The difference between the white nationalism/supremacy of the past is that those who espouse these views today tend to do so in a less direct way under the guise of public policy debate.

    But his hatefulness doesn’t focus only on new immigrants. Several days later, he was also first in line on Twitter to trash the Trudeau government’s intention to create a statutory “holiday” in remembrance of the atrocities committed in residential schools. Despite this being 1 of the 94 Call to Action of the Truth and Reconciliation Commission and represents the wishes of many of the survivors, Bernier accused called this “another sick characteristic of extreme PC [political correctness] and multiculturalism”. To my mind, the wishes of the survivors should be paramount on the issue of whether there is a national day of remembrance. Bernier went on to categorize the day of remembrance as a “cult of victimhood and obsession with past wrongs”. I wonder if he would also apply this logic to Remembrance Day on November 11th, or any of the war memorials that exist in Canada? Somehow, I don’t think so.

    The whole point of national days of remembrance and memorials is to ensure that Canadians never forget the atrocities that happened. The idea is to honour those we have lost and make sure history never repeats itself. It is a concept shared by most nations around the world. Germany for example has taken great steps to not only erase any Nazi symbols from their society, but also create memorials to remember the many lives lost. Here in Canada, we hope to have several national days of remembrance that include one for residential schools and memorials to lives lost, like murdered and missing Indigenous women. In recent months we have also been talking about how to deal with statues and other symbols of individuals who, despite being historic figures, were the perpetrators of a campaign of genocide against Indigenous peoples – like Sir John A. MacDonald. The TRC report confirmed that Canada engaged in all three types of genocide against Indigenous peoples – cultural, physical and biological. It is long past time that we talked about how to reflect history accurately and responsibly.

    Bernier’s Twitter rants about “extreme PC” couldn’t be further from the truth when it comes the ongoing legacy of injustice against Indigenous peoples in Canada. His Twitter tirades about immigrants who don’t share the same skin colour, religion or culture as him don’t reflect the laws of this country – Indigenous or Canadian. It’s highly ironic that Bernier would advocate against any more diverse immigrants while at the same time demand that Indigenous history be erased. I guess that is the privilege assumed by those whose ideas reflect and promote (directly or indirectly) white supremacy – as if anyone else is not only dangerous, but a threat to whiteness. While Bernier is only the most visible example of this kind of thinking, in fairness, he is not alone.

    Senator Lynn Beyak was booted from Conservative caucus after her racist postings about Indigenous peoples. Conservative MP Pierre Poillievre said racist remarks against residential school survivors on the same day as the apology. Former Conservative Indian Affairs Minister Bernard Valcourt regularly made racist comments against First Nations, at one point calling First Nation treaty Chiefs “threats to national security”. With regard to Bernier’s most recent comments, Conservative party leader Andrew Scheer has failed to specifically condone them, nor has he removed Bernier from the party – which he should do. This is not much of a surprise given the fact that Scheer’s own campaign manager was the founding director for Rebel Media which promotes white nationalism. 

    In the end, the Conservative Party needs to be very clear with Canadians about their party and what it stands for today. Andrew Scheer and the party either stand wholly behind Bernier or they do not – there is no in between. Right now, Scheer seems to stand more behind Bernier than not. It’s Scheer’s move now.

    To watch my Youtube video on this issue and participate in the ongoing discussion, click here:

    https://www.youtube.com/watch?v=BKl3j1B6VK8&t=1s

  • Assembly of First Nations election a battle for sovereignty

    *This article was originally published in The Lawyer’s Daily on July 18, 2018.

    The Assembly of First Nations will hold its election for national chief on July 25 in Vancouver. Only the chiefs of the 634-plus First Nations are eligible to vote but most chiefs’ assemblies see less than half of those attend, and of those, many are proxies and not actual chiefs.

    While elections for prime minister, premier and even mayors attract nightly political commentary, analysis and predictions in the months and weeks prior to their elections, there is generally very little commentary about the AFN election outside of Indigenous media like APTN, Windspeaker or smaller Indigenous political blogs. Yet, what is at stake in this election for First Nations should be of great concern to Canadians.

    This election feels more like a boiling point – a critical juncture spurred by the growing discontent of the AFN that was apparent in the last three AFN elections for National Chief. The outcome of this election could change everything for the better or the worse and Canadians will be impacted either way.

    The colonial reality of First Nations impoverished through the dispossession of lands and resources, together with an aggressive and unrelenting assimilation policy, forces leaders to make hard decisions in order to provide relief for their people. Their own local elections depend on whether houses are built on reserve to relieve the crisis-level over-crowding and homelessness or whether there is access to safe drinking water and food to keep their children out of foster care.

    The focus of local First Nation elections is often based on life and death issues – a far cry from federal or provincial elections which tend to focus on the best interests of the middle class, tax relief or international trade. The AFN is well aware of this dynamic in First Nations and uses the fear of losing critically needed social programs and services as a means to garner support for federal policies – which in turn equate to more money for the AFN itself. While everyone is aware of this dynamic, the need to provide for First Nation citizens is often paramount.

    Historically, First Nation leaders addressed their concerns privately, but the AFN’s drastic departure from its original purpose as an advocacy organization risks the very rights of First Nations, thus requiring the very public pushback we have seen in recent years.

    What is happening both before our eyes and behind closed doors is an epic battle to protect First Nation sovereignty, lands and cultures. It is a battle that seeks to frame reconciliation as more than the beads and trinkets offered by the Trudeau government and one which aligns more with First Nation constitutional and international rights.

    This election will be a contest between those who accept the federal government’s legislative framework agenda in exchange for relatively minor (but desperately-needed) funding increases to programs and services versus those who reject it, and demand the return of some of their lands, a share in their natural resources, and the protection of their sovereignty and jurisdiction. Either path will result in significant consequences for First Nations. But make no mistake – there will be government retaliation if the election choice is real reconciliation.

    Sadly, this is not a battle of their own making. Most of the divisions amongst First Nations have been created and maintained by federal bureaucrats, who have maintained their vise-like grip on the so-called “Indian agenda”. Even the first few attempts at national political organizing among First Nations after WWI and WWII were defeated by government interference.

    While the National Indian Brotherhood started out strong in defense of core First Nation rights and title, more recent years as the re-named Assembly of First Nations have seen a drastic decline in advocacy and a corresponding increase in the support of federal agendas. While most of the federal pressure occurs behind the scenes, the previous Conservative government wielded social program funding and federal legislative power as a weapon to bludgeon any attempt to advocate for First Nation rights. Former Prime Minister Harper’s government enacted a historic amount of legislation against the will of First Nations and even threatened to cut funding for “rogue chiefs” who dared challenge their legislative agenda of increased federal control over First Nations.

    While Trudeau was elected on a promise to repeal all of Harper’s legislation, he hasn’t done so – nor will he ever. He has his own legislative agenda designed to build upon Harper’s increased legislative control of First Nation governments by also limiting the scope and content of First Nation constitutional rights and powers once-and-for-all.

    The Trudeau government seeks to define and limit the scope of First Nation rights and powers under section 35 of the Constitution Act, 1982 in federal legislation under the guise of reconciliation. Therein lies the Trojan Horse of Trudeau’s brand of reconciliation. Trudeau’s reconciliation, while flowery and tearful, will result in the legal assimilation of First Nations into the body politic. Something his father, former Prime Minister Pierre Elliot Trudeau, tried to do with the 1969 White Paper on Indian Policy designed to get rid of Indian status, reserves and treaty rights.

    Real reconciliation – which is about addressing the wrongs of both the past and the present – requires the transfer of lands and resources back to First Nations, the sharing of the wealth made in First Nation territories and the full recognition of First Nation sovereignty and jurisdiction (the right to be self-determining). However, most Chiefs are acutely aware that although this is the path that most honours our ancestors and coincides with our rights; it is also the path with the most severe consquences. The path of retaliatory reconciliation has always attracted the full force of Canadian law enforcement and military power.

    When the Mi’kmaw Nation at Listuguj tried to manage their own fishery in the 1980’s, they were brutally beaten and arrested by the Surete du Quebec (SQ) police. When the Mohawks of Kanesetake tried to protect their traditional territory and burial grounds from a golf course in 1990, the SQ, RCMP and military laid siege to their territory for months.

    In 1995, an unarmed land defender named Dudley George was killed by Ontario police for protecting his reserve lands at Ipperwash. In the same year, the RCMP launched the largest attack on ever on a civilian population at Gustafsen Lake – all to prevent a small group of sun dancers from performing their ceremonies on so-called Crown lands.

    Even once the Mi’kmaw Nation at Esgenoopetitj (Burnt Church) had proven their treaty right to fish at the Supreme Court of Canada in 1999, the RCMP and DFO used brutal force to stop the Mi’kmaw from fishing. Hundreds of RCMP SWAT forces were called out to suppress the peaceful resistance of the Mi’kmaw Nation at Elsipogtog to hydro-fracking on traditional lands.

    Sadly, Canada’s vision of reconciliation only works if First Nations don’t assert their rights. First Nations are more than welcome to enjoy their pow-wows, re-name streets in their languages or hang their art in public spaces, as acts of multi-culturalism. But when it comes to asserting inherent, treaty or constitutional Aboriginal rights and land title – that is where Trudeau’s vision of reconciliation breaks down. One need only look at the arrests related to protests against the Trudeau/Kinder Morgan Pipeline to know where real reconciliation is headed.

    Canadians should be very concerned about the actions of their governments towards reconciliation and what this AFN election means for the safety and well-being of Indigenous peoples moving forward. Afterall, as beneficiaries of the treaties, Canadians have a role to play in addressing historic and ongoing wrongs.

    There is no way to sugar coat what is at stake in this AFN election. A vote for Perry Bellegarde is a vote down the rabbit hole of assimilation that looks eerily like a pipeline. A vote for real reconciliation means First Nations will have to brace for retaliatory impact – but this is the only path that will protect our rights from voluntary erasure.

    Full disclosure: I was the runner-up candidate in the AFN election 2012 to the former incumbent National Chief Shawn Atleo.

    * The link to the original article published in The Lawyer’s Daily:

    https://www.thelawyersdaily.ca/articles/6951/assembly-of-first-nations-election-a-battle-for-sovereignty-pamela-palmater?category=columnists

    Postscript:

    I would like to refer you all to two very good articles written by Indigenous commentators on the AFN election. Both Niigaan and Doug are excellent writers and have a great deal of insight into First Nation political issues.

    (1) “National chief election matters” written by Niigaan Sinclair for the Winnipeg Free Press on July 7, 2018:

    https://www.winnipegfreepress.com/local/national-chief-election-matters-487557421.html

    (2) “Changes needed to AFN structure” written by Doug Cuthand for the Saskatoon StarPhoenix on July 14, 2018:

    https://thestarphoenix.com/opinion/columnists/cuthand-changes-needed-to-afn-structure Please also see my related videos on my Youtube Channel: https://www.youtube.com/watch?v=bI3-Vc01InQ&t=5s https://www.youtube.com/watch?v=ur6FO3Ce8ww&t=12s

    Here is my related Youtube video that provides some basic analysis of the federal legislative framework: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s

  • Side-by-Side Comparison of NDP, Liberal & Conservative Platforms on First Nation Issues for Ontario Election 2018

    PLATFORM PROMISES

    NDP

    LIBERAL

    CONSERVATIVES

    Gov’mt to Gov’mt Relationship

    Yes, will sign accord, will work on stable revenue sources w First Nations (FNs)

    Yes, already have an accord

    L

    Land transfers back to First Nations

    L

    ? Will try to resolve land claims w FNs & Canada

    L

    Resource revenue sharing

    Yes, will share revenue w FNs,

    will give ON’s mining taxes to FNs

    ($218M over 5yrs)

    No? will continue to share “benefits of resource development” w FNs & Metis

    L

    Implement TRC

    Calls to Action

    Yes, will start w action items under prov jurisdiction

    Journey Together plan + $250M/3yrs (in progress)

    L

    Contribute to First Nation Health

    Yes, will double ON investment to $209M/year in FN Health Action Plan,

    FNs will decide health funding priorities, ex.

    expanded suicide prevention, more doctor time on reserve,

    more health care workers,

    more FN midwives,

    increase FN role in frontline care

    Yes, $80M over 4 yrs to expand child & youth mental health services for kids at risk,

    $220M over 3 years for improved access to healthcare, mental health, addiction, palliative care, Indigenous leadership in healthcare delivery

    L

    Address First Nation Hydro Costs

    Yes, FN exempt from Hydro costs,

    FN ownership stake in Hydro

    Reduce Hydro costs for remote communities by up to 50%

    L

    Safe Drinking Water

    Will address water infrastructure on reserve, then bill Ottawa

    L

    L

    Childcare on Reserve

    L

    Yes, $40M over 3 yrs for culturally relevant childcare on reserve,

    4500 new spaces on reserve

    $290M to double childcare spaces on reserve,

    $70M over 2 yrs for off-reserve children & families

    L

    First Nation Education

    L

    L

    L

    Jordan’s Principle

    No specific mention, but will pay for health services & infrastructure on reserve first, argue w feds later

    L

    L

    First Nation Policing

    Yes, will double ON investment in FNs to $30M, joint development of stand alone legislation

    Opt into provincial policing framework & create FN Police Service Boards

    L

    MMIWG

    Yes, will continue to support inquiry, provide family supports,

     increase resources to solve cold cases

    Yes, long-term strategy to end violence against Indig women,

    Address human trafficking & support survivors*

    L

    Address problematic Far North Act

    Yes, will replace it

    L

    L

    Jobs & Training & Economic development

    Yes, will prioritize FN training on & off-reserve,

    Partner w FNs to develop green energy,

    will work w FNs to develop minimum targets for FN procurement

    Yes, $30M over 2 years for skills training,

    Expanded role for institutes

    L

    First Nations/Indigenous  Institutes

    Yes, $28M in Friendship Centre repairs,

    $91M over 6yrs to 28 Centres,

    $41M programming for children & youth

    Yes, will support stronger role for Indigenous institutes, work with urban communities for off-reserve programs

    L

    First Nation Housing

    L

    Yes, will increase funds for Indigenous Supportive Housing Program

    L

    Indigenous Languages & Culture

    L

    Yes, will support Indigenous languages,

    Youth cultural camps, will support Indigenous culture

    L

    Social Assistance & Income Security

    Yes, will work w FN Income Security Reform Working Group & Urban Indigenous Table to implement Roadmap for Change Report

    Yes, will enhance access to culturally safe & responsive social assistance

    L

    North, Remote Communities

    Will replace Far North Act,

    $1B to get Ring of Fire moving now,

    Collaborate w FNs to get infrastructure projects moving

    Part of $1B commitment = year round access road to Ring of Fire,

    continue support Wataynikaney Power Grid project (16 remote FNs),

    gas price watchdog,

    invest more northern hospitals, schools, transportation,

    $500M/3yrs broadband,

    Increase access to mental health for Indigenous youth

    L

    First Nation

    Treaty Rights

    Ensure treaty rights respected

    L

    L

    First Nation Education

    Curriculum will include Indigenous history, colonialism, residential schools, reconciliation

    L

    L

    UNDRIP into provincial law

    Implement all TRC Calls to Action – starting with those in provincial jurisdiction

    L

    L

    Address Crisis in Foster Care

    Yes, will work with FN leaders & experts to identify needs of FN kids,

    No more solitary confinement,

    Mediation not courts,

    Goal = 0 kids in care

    L

    L

    Justice System

    Ban policing carding,

    Police training in human rights & racism

    Yes, will create bicultural justice centres,

    Culturally responsive supports in bail system,

    Improve FN repres on juries

    L

    Anti-Racism

    Ban policing carding,

    Police training in human rights & racism

    Data collection & analysis w partners,

    Increase diversity in gov’mt, boards, commissions,

    anti-racism education & training

    L

    Environment

    Expand parks & create new ones in consultation w FNs,

    Will clean up Wabigoon Mercury,

    Fund mercury treatment centre,

     Additional $12M for retroactive payments for mercury disability

    Support FNs to transition to non-fossil fuel energy to minimize impact,

    $85M Grassy Narrows remediation

    L

    *Please note: this chart is based exclusively on what is contained in the three platforms in terms of what they are promising going forward. It does not include external documents or statement, nor does it report on the past performances of any governments over time. It is merely a snapshot of what is being promised if you elect that party. Please send me a note if you see an error – this is accurate as of May 30, 2018. For a summary analysis of these platforms, please see my article in Lawyer’s Daily at: https://www.thelawyersdaily.ca/articles/6628/the-first-nations-agenda-in-the-ontario-election-pamela-palmater?category=columnists Or, for those without access to Lawyer’s Daily, please find it on my blog here: https://pampalmater.com/2018/06/the-first-nationsagenda-in-ontario.html

  • The First Nations’ Agenda in the Ontario Election

    *This article was originally published in Lawyer’s Daily on June 4, 2018 Prime Minister Trudeau and his Liberal Party have been taking a significant amount of heat for their collective failures to act on their substantive promises to First Nations — including, water, housing, education health and Aboriginal, treaty and land rights and title — as well as his approval of the Kinder Morgan pipeline without First Nation free, prior and informed consent. Here in Ontario, many First Nations also have their focus on Election 2018 and what it might mean for their relationship with the Crown in right of the province of Ontario. In theory, it shouldn’t matter which party gets elected in Ontario assuming they follow the rule of law which includes respecting Indigenous laws, the right to be self-determining, inherent rights, Aboriginal rights and title, treaty rights and the right to free, prior and informed consent. However, we know from practice that federal and provincial governments breach Aboriginal rights more than they honour them — so in that respect, it really does matter which party is elected — at least to some degree. It is important for voters — First Nations and Ontarians alike — to be familiar with the actual platforms of each party and not just their catchy slogans. We need to know in what ways these candidates will move forward in a spirit of reconciliation with First Nations in concrete terms. To this end, only two of three major parties have grown-up platforms — the NDP and the Liberals. The Conservatives don’t have an actual platform — unless we include the 12 promises made on the landing page of Doug Ford’s website — none of which contain more than a few sentences or mention Indigenous issues. Of the three platforms, only the NDP and Liberals have commitments specific to First Nations. The NDP and Liberal platforms share similar promises to First Nations, including their general commitment to reconciliation and to maintaining a government-to-government relationship. They also both commit to maintain support for the national inquiry into murdered and missing Indigenous women and girls as well as addressing racism in the justice system. Both also commit to cleaning up the mercury contamination at Grassy Narrows and to ensuring that the Ring of Fire is developed. Responsibility for First Nations health care has been the subject of much debate between the federal government’s section 91(24) jurisdiction in regards to “Indians and lands reserved for the Indians” and the provincial government’s section 92(7) jurisdiction in relation to hospitals. This debate has largely left out First Nation jurisdiction and the treaty responsibility to provide health care — a responsibly which is shared by the Crown in Right of Canada and the province. However, unlike other provinces, both NDP and Liberal platforms in Ontario make significant funding commitments to fill federal underfunding in health care on reserve. There are key areas where the NDP and Liberal platforms differ. The NDP promises to work with First Nations to create stable revenue sources, including resource revenue sharing. One of those commitments is to transfer all taxes made from mining in Ontario to First Nations, which the NDP estimate to be about $218M over five years. The Liberal platform on the other hand does not specifically commit to share in resource revenues, but only agrees to share in the “benefits of resource development” which could literally mean anything, but most likely refers to the usual jobs and community projects. In a similar vein, the NDP also specifically commits to respect First Nation treaty rights— something the Liberal platform does not address. Neither party addresses Aboriginal title and treaty land issues, or the addition of much-needed lands to reserves, except the Liberals who agree to continue land claim negotiations trilaterally with First Nations and the federal government. One need only look at the long-standing Six Nations land claim for the Haldimand tract as an example of how ineffective these negotiations are as “solutions” to land claims. Another critical area where the NDP and Liberals differ is in how they plan to address the crisis over over-representation of First Nations children in the foster care system — something federal Indigenous Services Minister Jane Philpott called a “humanitarian crisis.” Yet despite the crisis, the federal government has delayed complying with the orders of the Canadian Human Rights Tribunal to end racial discrimination and properly fund First Nation child and family services. Therefore, it matters whether or not the province of Ontario will step in. The Liberals have not made any commitments to address this crisis, but the NDP has promised to work toward the goal of no First Nation children in care; to end the use of solitary confinement for children; and to work with First Nation leaders and experts to identify the needs of these children. Both the NDP and Liberals commit to making First Nations a priority in terms of skills training. Neither made mention of specific contributions to First Nation post-secondary education, though the Liberals currently provide some funding to First Nations to attend university as well as support Indigenous educational institutes. Both plan to support Indigenous institutes and programming for Indigenous children, youth and families living off-reserve. Only the Liberals have made a commitment to fund 4,500 new childcare spaces on reserve and $70M over two years for childcare spaces for off-reserve children and families. This is a significant commitment given the fact that most children on reserve live in poverty and their homes are mostly headed by single mothers who could use childcare support for education, training and employment. Ultimately, both the NDP and Liberals make significant commitments to First Nations. The Conservatives have made no commitments at all. In fact, the 12 bullets on Ford’s webpage tend to show more of an obsession with Kathleen Wynne and ending carbon taxes. So far, all we have to go by is Ford’s reported failure to respond to requests for his Indigenous platform; his alleged refusal to allow an Indigenous woman to one of his events; he and his family’s alleged involvement in the drug trade; his alleged need to hire actors at events as supporters; and his alleged purchase of bogus memberships to support Conservative candidates — let alone his Trump-like views on women’s reproductive rights and climate change. He is not likely to be a strong candidate for the First Nation vote. Finally, there was no firm commitment by any party to address First Nation land and resource ownership or specific treaty rights. Nor was there any firm commitment to implement and respect the right of First Nations to free, prior and informed consent before any provincial decisions, laws or actions are implemented that might impact First Nation rights and title. In the end, whoever is elected will face the same issues as Trudeau and will have to decide whether reconciliation includes the rule of law, including Indigenous law, treaty law and constitutional laws, or more empty promises. *Link to the article that originally appeared in Lawyer’s Daily on June 4, 2018 https://www.thelawyersdaily.ca/articles/6628/the-first-nations-agenda-in-the-ontario-election-pamela-palmater?category=columnists

  • 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