There is no doubt that pre- and post-confederation governments in what is now known as Canada have developed policies, enacted laws and regulations, and engaged in practices that have had as their primary objectives: (1) to acquire First Nation lands and resources and (2) to reduce financial obligations acquired through treaties and other agreements with First Nations. Their primary methods have been to eliminate and/or assimilate “Indians”. Elimination took the forms of small pox blankets, scalping bounties, murders, starvation rations, and forced sterilizations. Attempts at forced assimilation took place in the form residential schools, forced adoptions (60’s scoop), and the Indian Act which outlawed certain cultural practices and created a legislative extinction date for First Nations. The impact of these laws, policies and practices have been nothing short of genocidal. The specific impact to First Nations languages have been devastating. The majority of the 70 different First Nation languages are at risk of extinction. The federal government would have us all believe that have moved on from this so-called legacy of the past and have transitioned into a period of reconciliation. The former Conservative Prime Minister Stephen Harper apologized in Parliament for the harms of residential schools: Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country. (PM Stephen Harper) Yet, following this apology, the Conservative government made staggering funding cuts to First Nations and First Nation organizations; and reduced the funds available for First Nation languages. Harper’s empty apology meant that the majority of First Nation languages would continue to be at risk of extinction. However, Harper’s decade of doom was followed by the welcome election promises of the current Liberal Prime Minister Justin Trudeau who promised to undo all the harms of the previous Harper government, including the repeal of legislation imposed on First Nations during Harper’s era. Trudeau also promised to implement all the Truth and Reconciliation Commission’s (TRC) Calls to Action and in particular, committed to legislate the formal recognition of Indigenous languages as an Aboriginal right and provide sufficient funding. Where he went wrong was in partnering with an Aboriginal organization – the Assembly of First Nations – to do this work, instead of working with the rights-holders: First Nations and their language experts. What has resulted is Bill C-91 An Act Respecting Indigenous Languages – legislation bountiful in flowery wording and empty on substantive rights. Not the best way to start off 2019 – the year of Indigenous Languages. Bill C-91 was introduced and had its first reading by the Minister of Canadian Heritage and Multiculturalism Pablo Rodriguez, on February 5, 2019. The bill went to second reading on February 20, 2019 and was referred to the Standing Committee on Canadian Heritage on the same day. Therein lies the first problem – that this bill is sponsored by the Minister of Canadian Heritage and Multiculturalism and being studied by the Standing Committee on Canadian Heritage. First Nation rights are not a matter of Canadian heritage or multi-culturalism. First Nations are not comparable to minorities or ethnic groups. First Nations are the original sovereign Nations of the territories on which Canada now sits with their nation-based laws, customs, practices, governments, economies, trading networks, and military alliances. Their status as sovereign Nations was undisputed and is the reason why treaties were signed. Nations only sign treaties with other Nations – not with subjects, citizens or cultural groups. First Nations were not then, nor are they now mere cultural groups. Trudeau had promised to work together with First Nations on a Nation-to-Nation basis in a way that recognizes First Nation rights and work in partnership, instead of the usual paternalistic, top-down approach. Yet, Bill C-91 is exactly that – top-down legislation drafted with the advice of the AFN, but not the First Nation rights-holders themselves. Worse than that, the bill is not a recognition of the official status of First Nation language rights or a guaranteed minimum level of funding. It reads more like a carefully worded, overly broad, vague set of theoretical aspirations than any legal commitment one could enforce. Even the Indigenous Languages Commissioner as set out in the bill is appointed by, paid by, and can be removed by, Canada; with powers limited to research and advocacy. This is a real missed opportunity for Trudeau who could have worked with First Nations language experts and designed legislation to truly protect First Nation languages and take real steps to undo the devastation done by federal laws and policies. Although there are many problems with the wording in every section of this bill, and there are many legal problems raised with said wording, I have five core concerns. First, there is no specific recognition of First Nation languages as official languages, nor is there a specific First Nation language right that is actually granted or recognized. The bill merely references rights “in relation to” Indigenous languages, but this could mean one’s personal right to speak a language versus the right to receive government services on one’s language, for example. Secondly, there is no specific recognition of First Nation jurisdiction or powers in relation to First Nation languages. The Minister of Canadian Heritage and Multiculturalism retains all powers in relation to the bill and any future regulations. My third concern is that there is no specific or firm commitment in relation to funding. The bill provides that the Minister will “establish measures to facilitate the provision” of funding. However, establishing “measures” is not a direct commitment for a specific funding amount or a commitment to whom this funding will flow. This relates to my fourth concern, that the bill promotes a pan-Aboriginal approach that is not First Nation-specific and appears to put other broadly-defined “Indigenous groups” on the same level as First Nations. Under this bill, funds could flow to anyone who incorporated an organization and claimed to be Indigenous – despite their lack of status as actual rights-holders within a specific First Nation territory. Finally, this bill appears to utilize the same federally-controlled legislative framework concept for rights definition, limitation and scoping. Trudeau already had to back away from the federal rights recognition framework already rejected by numerous First Nations and First Nation organizations. Of particular concern is the federal government’s intention to establish a “framework” that is intended to define, limit and determine the scope of the language rights to be exercised, how and by whom, by way of negotiated agreements. While the AFN and the Metis National Council have come out in support of the bill, the Inuit Tapariit Kanatami have been very critical of it, explaining that they feel Canada acted in bad faith, that is not Inuit-specific, and does not protect Inuit language rights. “The absence of any Inuit-specific content suggests this bill is yet another legislative initiative developed behind closed doors by a colonial system and then imposed on Inuit.” (President Natan Obed) It is important to remember that legislation is not legally required for the federal government to provide services in Indigenous languages or to provide funding to First Nations for Indigenous languages. One should always be weary of a government bearing gifts in the form of legislation, as it usually comes with federal control, provisions which limit First Nation rights, and can ultimately be amended or repealed at the will of government. The TRC Calls to Action, the Royal Commission on Aboriginal Peoples, and the United Nations Declaration on the Rights of Indigenous Peoples all provide support for legal recognition and financial support for First Nation languages. That being said, for those First Nations who support federal legislation to enhance the political and legal commitment to First Nation languages, the key moving forward will be in the wording. To make this legislation more helpful than harmful, substantive amendments will be required. Given the speed at which Parliament is moving the study of this legislation, it is unlikely that the majority of First Nations, their representative organizations, and language experts will get their 10-minute opportunity to present to the Standing Committee on much-needed amendments. Perhaps once the bill reaches the Senate, they will embrace their role as the “sober second thought” of government and slow down the process enough to hear from First Nation experts and consider meaningful amendments – assuming there still is a Liberal government after the SNC-Lavalin scandal. * Image is official United Nations logo for the 2019 International Year of Indigenous Languages. **A more detailed analysis to follow.
Tag: Prime Minister Justin Trudeau
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Bill C-91 An Act Respecting Indigenous Languages: More Hollow Reconciliation
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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:
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
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Public Inquiry Needed to Address Sexualized Violence in Policing and Corrections System
*Originally published in Lawyer’s Daily on November 6, 2017 (edited to include links)
The integrity of Canada’s policing and corrections system has been called into disrepute from the sexualized violence committed by its police and corrections officers against Indigenous women and girls, female prisoners and even their own female colleagues.
Recently, officials at Edmonton’s maximum security prison suspended seven employees — including managers — for allegations of sexual harassment and sexual assault. The male guards are now under investigation not only for the sexual harassment and assaults but also for their retaliatory actions against their female colleagues who tried to report the harassment. In some cases, it is alleged that protocols were breached risking the safety and security of the female prison guards including using inmates as weapons of intimidation.
While many would like to believe that this is an example of “a few bad apples,” the number of similar complaints across the country points to a much deeper problem in corrections. Earlier this year, in another maximum security prison in Agassiz, B.C., the sexual assault of a female prison guard by her male colleague was actually caught on camera. Far from an isolated incident, the union representing various locals in B.C. say they regularly assist female corrections employees in similar harassment cases.
http://www.cbc.ca/news/canada/british-columbia/female-prison-guard-sexually-harassed-1.4299400
The widespread sexually abusive actions by corrections officers is not limited to female colleagues. In 2012, prison guards at Ontario’s Grand Valley Institution for Women were accused of sexual abuse of female prisoners by trading tobacco and drugs for sexual acts. This was not news to the Correctional Service of Canada (CSC). The Canadian Association of Elizabeth Fry Societies, which represents women and girls in the justice system, has filed many reports on such incidents calling for an external review and for the CSC to stop using male guards in women’s prisons.
http://www.cbc.ca/news/canada/prison-guard-accused-of-trading-drugs-for-sex-1.1211354
Prison advocates also made calls for surveillance cameras in all institutions after surveillance videos captured numerous incidents of prison guards beating prisoners in Ontario and Quebec prisons in 2013. Several videos depict prisoners cowering in fear in what some lawyers have referred to as absolute “terrorism” committed by prison guards. The Office of the Correctional Investigator responded that not only that video surveillance procedures failed 70 per cent of the time, but that “it’s probably not a coincidence that some alleged prison beatings occur in spots where there’s no surveillance cameras.” The importance of surveillance cameras cannot be overstated. It was surveillance footage that showed Vancouver police dragging an unconscious Mi’kmaw man, Frank Paul, out of a jail cell and into an alleyway where he died of hypothermia in 1998.
http://www.cbc.ca/news/canada/prison-beatings-caught-on-video-at-ontario-and-quebec-jails-1.2426904
Who are the arrested, detained, or imprisoned supposed to call when they have been beaten or sexually abused by corrections officers? There is a major power imbalance between corrections and prisoners, and the police are part of the same abusive system that protects its own before protecting those in their charge. The RCMP have been inundated with class actions and public complaints about their long-standing racism, sexism, abuse and harassment against the public and its own members.
Though not admitting any wrongdoing, this year, the RCMP recently settled a class action suit against it for the long-standing sexual harassment and assault of thousands of female RCMP members. In 2016, a second class action suit against the RCMP — this time male members — allege harassment and bullying. Also in 2016, another complaint alleges RCMP bullying and unwanted sexual touching and nudity at their own police college run by the RCMP in Ottawa. This is all on top of the 2014 report which documented hundreds of cases of corruption, involving hundreds of officers in the RCMP.
The deep-rooted problem of racism, sexism and abuse in policing and corrections is not new in the male-dominated system. The Royal Commission on Donald Marshall Jr.’s wrongful imprisonment highlighted police racism back in 1989. The 1991 Report of the Aboriginal Justice Inquiry was instigated at the failure by police to properly investigate the sexual assault and murder of Indigenous woman Helen Betty Osborne and the police shooting of unarmed Indigenous leader J.J. Harper. The report highlighted the fact that the police do little to protect Indigenous peoples, especially women and girls.
The 2012 Missing Women Commission of Inquiry from B.C. found “blatant failures” and systemic bias against the victims and their families, many of whom were Indigenous. One of the most damning reports comes from Human Rights Watch in 2013 on abusive policing in B.C. which documented reports of RCMP physical and sexual abuse of Indigenous women and girls.
Both CSC and RCMP have both been implicated in the bullying, harassment, physical assaults, sexual assaults and/or deaths of female officers, female civilian employees, fellow male officers, male and female prisoners, and Indigenous women and girls. The class actions against the RCMP should have been a wakeup call for Public Safety Minister Ralph Goodale to take immediate remedial action. The 2017 CSC survey which reported that 40 per cent of CSC had been a victim of workplace harassment — 60 per cent of cases from their own CSC co-workers. The survey also showed that the problem is getting worse — having increased by over 30 per cent since 2014. Even the Canadian Human Rights Tribunal has noted that sexual harassment “continues to take place in organizations with a historical male dominance.”
The very fact that the terms of reference for the national inquiry into murdered and missing Indigenous women and girls excludes a review of police conduct is yet another example of the resistance of Canadian officials to address the problem. The knee-jerk reaction of governments to protect their police forces at all costs, may well cost them the loss of public confidence in policing and corrections.
The fact that the federal government chose a commissioner, Qajaq Robinson, for the national inquiry whose husband is a RCMP officer who pleaded guilty to beating Indigenous prisoners in 2009, begs the question as to whether PM Trudeau and his cabinet had any real intention of getting at the truth — which so far, all points directly at racism, sexism, abuse and corruption in policing and corrections.
One would have thought with a self-professed feminist prime minister and an experienced minister like Ralph Goodale, there would have been some immediate and substantive actions over the last two years since they took office. But, much like the perpetually absent Minister on the Status of Women Maryam Monsef — there are very few federal voices willing to tackle the monumental problem of racism, sexism, abuse and corruption in policing and corrections in Canada. It is hard to imagine a minister on the Status of Women as willfully blind on such high profile incidences of sexism and sexual abuse as Monsef.
When those entrusted to serve and protect serve only their own interests and abuse those in their care, the system will inevitably start to unravel — becoming a national crisis. Trudeau ought to use the revelations about sexual abuse in the Edmonton’s maximum security prison to dismantle this broken system of male dominance and sexualized violence in government institutions and restore public safety.
*Link to the article originally published in Lawyer’s Daily on November 6, 2017:
https://www.thelawyersdaily.ca/articles/5055/public-inquiry-needed-to-address-sexualized-violence-in-justice-and-corrections-system-pamela-palmater?category=columnists Please check out my a related video on my Youtube Channel: https://www.youtube.com/watch?v=5o1PCzjhhno&t=14s
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Nation to Nation Relations Need Repeal of Paternalistic Laws
(Originally published in Lawyer’s Daily on April 17, 2017)
Prime Minister Justin Trudeau swept the Liberals into power on Oct.19, 2015, with the support of Indigenous peoples who voted in record numbers. Trudeau’s election platform consisted of core promises made to the Chiefs in Assembly on July 7, 2015, which would include the review and repeal of legislation unilaterally imposed on First Nations by former Conservative Prime Minister Stephen Harper. Trudeau confirmed his government’s commitment at a subsequent meeting of the Chiefs of Assembly on Dec. 8, 2015.
This was a significant commitment for First Nations since the unilateral imposition of these laws by the Harper government had inspired the largest social movement in Canada’s history: Idle No More. Indigenous peoples took to the streets for nearly a year protesting Bill C-45, an omnibus bill that would remove protections for various waterways; Bill C-27 First Nations Financial Transparency Act; Bill S-2 Family Homes on Reserve; Bill S-6 First Nation Elections; Bill S-8 Safe Drinking Water; and Bill C-428 Indian Act Abolishment. All of these bills involved some form of increased government control, something First Nations were not willing to accept. In addition to protests, First Nations decided to tackle these unconstitutional laws head on in the courts.
Mikisew Cree Nation won their initial case in Federal Court challenging Harper’s failure to consult on two omnibus Bills C-38 and C-45; and Onion Lake Cree Nation won their federal court battle against Bill C-27.
While Idle No More activities on the ground eventually subsided, First Nation discontent with federally imposed legislation continued to grow throughout Harper’s mandate. There was significant opposition and protests against Bill C-51, the Anti-Terrorism Act, which targeted the political activities of Indigenous peoples.
The situation came to a head when Assembly of First Nations (AFN) National Chief Shawn Atleo publicly supported Harper’s Bill C-33 First Nation Control of First Nations Education Act without informing or consulting First Nations. The resulting widespread cries for Atleo’s removal led to his resignation and put a serious strain on an already fragile relationship between First Nations and the federal government. Trudeau’s election promises offered a welcome path forward.
However, Trudeau’s first budget was a major disappointment not only for failing to address the many overlapping crises in First Nation social conditions, but also for completely ignoring his promises to repeal Harper’s legislation. The resulting First Nation criticism is likely what led to this year’s announcement that Trudeau’s government has created a ministerial working group to review all laws and policies related to indigenous peoples. The working group consists of the ministers for Indigenous and Northern Affairs, Fisheries, Justice, Health, Families and Natural Resources and will be chaired by Justice Minister Jody Wilson-Raybould.
On its face, the announcement appears to be an indication of the Trudeau government moving in the right direction in the promised nation to nation relationship. However, we do not have either a specific budget for this work or a terms of reference that specifies who will be engaged in the review, the time frame for completion, or the ultimate objectives.
The worst thing that could happen is yet another government committee struck to review its own laws, with its own legal interpretations of what does and does not violate the Constitution, cementing it firmly in its own colonial and paternalistic mindset.
Most will recall that Trudeau’s father, former prime minister Pierre Elliott Trudeau, struck out big time with his 1969 White Paper on Indian Policy calling for the elimination of Indian status, reserves and treaty rights. This ministerial review committee risks the same fate without First Nation leaders and experts at the table. Another core concern is that the scope of this review has been enlarged so much that this committee could spend years reviewing hundreds of laws and policies instead of repealing the handful that Trudeau promised to repeal.
Therein lies the other problem with Trudeau’s legal review committee — it is based on a nation to nation relationship that begins and ends with the AFN. This comprehensive legal and policy review must be done in partnership with the actual Aboriginal and treaty rights holders themselves; i.e., First Nations and treaty signatories, not the AFN. This is a critical first step before Trudeau’s vision of “a complete renewal of Canada’s nation to nation relationship with indigenous peoples” can be realized. It will require Trudeau’s working group to negotiate the terms of reference with representatives of the rights holders on a nation basis, like the Mi’kmaw Nation, or on a treaty basis, like engaging with all First Nations in Treaty 4, for example. It is possible for regional and other representative organizations to participate, so long as it is the rights holders themselves who mandate them to engage in this process.
To date, Trudeau has not asked how our nations want to be represented or engaged in this legislative review. First Nations in Canada are not the mythical race of “Indians” created by the Indian Act. They do not have one culture, one language or one set of laws. First Nations are part of larger Indigenous nations with laws, governments, histories and politics as varied as those found in the United Nations.
If Trudeau is serious about transforming the relationship with indigenous peoples, he will have to abandon the colonial requirement that all First Nations speak with one voice. Canadians don’t speak with one voice, nor do the provinces and territories. To expect more of First Nations is an adherence to racist stereotypes of the past which have no place in a multinational, democratic Canada that is truly committed to reconciliation, reparation and renewal. The terms of reference will be the real indication as to whether Trudeau is serious about a renewed relationship.
See also my recent video explaining Trudeau’s proposed federal legislative framework and its potential impact on First Nation rights: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s
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New Government, Old Ways: Racism is STILL Killing Our People – Updated
“Millions promised for Indigenous kids is subsidizing mining companies, internal documents show”. This was the headline on March 2, 2017 which made me and many other people very angry. https://www.pressprogress.ca/millions_promised_for_indigenous_kids_is_subsidizing_mining_companies_internal_documents_show First of all, the Minister of Indigenous Affairs can’t be trusted to tell the truth and secondly, thousands of First Nation children end up in foster care because instead of providing adequate funding for First Nations kids, our money goes to subsidize the mining industry. This makes me absolutely furious as there is no excuse for this. Dr. Cindy Blackstock already filed and won a human rights claim against Canada at the Canadian Human Rights Commission to prove Canada’s discriminatory under-funding for First Nation kids in care. http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/127700/index.do Then the tribunal actually had to direct Canada to comply with the order several times. Yet, instead of complying, Minister Bennett continues to claim they have, in fact, provided that funding. If I look angry when I speak about the injustice of this issue, it is because I am. http://www.pampalmater.com/child-welfare-unfair-for-first-nations/ Some people say: “Pam you are too angry” or “The AFN isn’t complaining, why should you?” Others say: “Pam, you have to admit that Prime Minister Justin Trudeau made better promises on First Nation issues than former Prime Minister Harper” and still others say “But Minister Bennett is so nice?” They are all right. I am angry; National Chief Bellegarde looks exceptionally happy these days; Trudeau did make better promises than Harper; and having met Bennett on several occasion, I can say she seems to be a super nice person. Yet, I sometimes work in The Pas, Manitoba where Helen Betty Osbourne was kidnapped and raped, yet nothing has been done to stop the numbers of disappeared and murdered Indigenous women and girls. I am often woken up in the middle of the night with phone calls or texts about someone’s child having committed suicide or community members who have died in a fire or frozen to death outside. The most recent hand-written letter I received was from an Indigenous man residing in prison who was hurting deeply because his mother had been raped by an RCMP officer and nothing was ever done about it. The over-incarceration of Indigenous peoples in prison has been a crisis for decades, but continues to get worse. I receive calls from people who are trying their hardest to get to university, but there is no funding for them, so they give up. PM Trudeau promised $200M in extra funding for post-secondary education, yet that hasn’t happened yet. And an email I received this week was from a Rape Crisis shelter who asked me to keep advocating on behalf of Indigenous women and girls despite how hostile the environment. The national inquiry is almost a year into its two year term and it still hasn’t started yet, but our Indigenous women and girls continue to go missing and be murdered. So, I admit that I am angry and I look angry and I sound angry. The pre-mature deaths and suffering of my First Nations brothers and sisters is nothing short of a national crisis. The lack of housing, proper schools, adequate health care, education, and child and family supports; along with the lack of basics like food and clean water, have been called labelled as a “crisis” “grave” “discriminatory” and “inequitable” not just by First Nations and advocates, but also by former Prime Ministers, Supreme Court of Canada justices, the Auditor General for Canada, the Office of the Correctional Investigator, the Canadian Human Rights Commission and the United Nations. So why has little been done to address the crisis? Despite all the promises from Trudeau, where is the action? Instead of action, we see daily doses of misinformation at best and lies at worst. Whatever you choose to call it, it’s not the truth and herein lies the problem with Canada’s new obsession with reconciliation. We can’t ever get to reconciliation, no matter how it’s defined, until we find a way to get to the truth and share it and take responsibility for it. Canada is killing our people with its deeply ingrained racism towards to First Nations. If a, affluent neighborhood in Montreal had contaminated water which was making everyone sick, federal and provincial resources would instantly be brought to bear to remedy the situation. If a cozy suburb of Toronto developed the world’s highest suicide rate, massive amounts of financial and human resources would be dedicated to remedying the crisis. If 50% of the Members of Parliament’s children were stolen from them and put into foster care due to lack of funding for child and family services, watch how fast they’d reallocate funds from Canada’s 150th to get their kids back. So, why then does the government not act to do this when it involves First Nations? Why does the response always follow the same racist pattern: (1) DENY the problem: This is when the government either says that there is no crisis or that it is not as bad as the media or First Nations are saying it is. Then comes the inevitable Access to Information request which shows that the government was either lying or misinforming and they have to admit there may be a problem. (2) DEFER the problem: This is when the government says they will study the issue, even if it has been studied exhaustively and well-documented in the research. This is when they will buy the media silence of National Aboriginal Organizations like the Assembly of First Nations (AFN) by offering them some sort of project-based funding to meet about the issue, set up tables, or do policy papers on the subject. (3) DEFLECT the problem: At this stage, the problem can’t be denied any longer, so the government will blame previous governments, blame First Nations themselves or make excuses as to why the problem can’t be dealt with right now, like budgetary limitations or that changes can’t be made overnight. The most common response at this stage is: “We can’t just throw money at the problem” because (a) First Nations leaders are corrupt (Harper) or (b) First Nations have no capacity to address the issue (Trudeau). The end result is that all of the problems get worse and our people die. The government response is usually a Tweet or speaking point for the media which says: “Our hearts go out to the community” or “We are sorry for your loss” and then everyone goes back to their offices to plan Canada’s 150th birthday. Every day that this government fails to take urgent action says that there is no relationship less important to Trudeau than the one with Indigenous peoples. The underlying message is that there is no life worth less in Canada, than the life of an Indigenous person. Until we accept that this is current government policy and force change, then it doesn’t matter which party is elected – new or old, racism will continue to kill our people. Quick Facts: Indigenous peoples are 4% of Canadian population; 10x more likely to die in a fire; 5-10x more likely to commit suicide; Some jails are 80-100% Indigenous; 50% of all kids in care are Indigenous; More likely to go murdered or missing; 120+ First Nations without clean water. #racismkills Update: And, as if on cue, one day after I wrote this blog, Minister Bennett wrote an op-ed saying more than money is needed to address discrimination against Indigenous children. Their standard pattern of denial, deferral and deflection is both appalling and predictable. The very method of discrimination (under-funding) is now denied as the solution to the discrimination by the very department that has been found guilty of discrimination for under-funding. If Minister Bennett doesn’t think funding is part of the problem, she needs to go back and read the court order. http://www.huffingtonpost.ca/hon-carolyn-bennett/indigenous-children-discrimination_b_15131394.html Just in case anyone thought the Minister’s special representative on Child Welfare might be the solution, keep in mind, Cynthia Wesley-Esquimaux is a failed liberal candidate who also has the same bias as Minister Bennett. She was quoted as saying the liberals “are not going to take money and throw it up in the air like confetti” promoting more racist stereotypes against First Nations. http://www.cbc.ca/news/canada/thunder-bay/azraya-kokopenace-charlie-angus-1.3824868
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National Inquiry or National Disgrace? Trudeau’s Next Step is Critical
Before being elected Prime Minister, Justin Trudeau told Canadians and First Nations that there was no more important relationship to him than the one with Indigenous peoples. To this end, he promised to engage with First Nations on a Nation-to-Nation basis where free, informed and prior consent means a veto. Once elected, he reiterated his promises:
(1) Engage in a Nation-to-Nation relationship with First Nations;
(2) Lift the 2% cap in First Nations education;
(3) Review and repeal all the legislation former Prime Minister Harper imposed on First Nations without their consent;
(4) Implement all 94 Calls to Action from the Truth and Reconciliation Report, which includes implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and
(5) Complete a national inquiry on murdered and missing Indigenous women and girls.
True to his word, Trudeau’s first order of business was to mandate Indian Affairs Minister Carolyn Bennett, Justice Minister Jodi Wilson-Raybould and Status of Women Minister Patti Hajdu to develop an approach and mandate for an inquiry into murdered and missing Indigenous women and girls to find justice for them. By mid-December 2015, the first engagement sessions were held with the families of murdered and missing Indigenous women and girls, Indigenous women and their representative organizations, Indigenous leaders, and human rights experts to determine the scope and process of the inquiry. While these meetings were ongoing, Canada accepted written submissions and also engaged in an online survey regarding the scope and process for the inquiry.
http://www.aadnc-aandc.gc.ca/eng/1448638260896/1448638282066
It is important to note that both the pre-inquiry engagement process and the inquiry itself were to be done within a new political context – one which focused on openness. Trudeau promised to “bring new leadership and a new tone to Ottawa” and “set a higher bar for openness and transparency in government”. In fact, he went so far as to say that “Government and its information should be open by default.” His reasoning for doing so was to ensure that Canadians can trust their government and that government remains focused on the people it is meant to serve. All of these promises come straight from the Ministerial mandate letters.
http://pm.gc.ca/eng/ministerial-mandate-letters
As promised, the government posted the dates and locations of meetings; posted overviews of each session online; and issued a summary report of what they had heard once the pre-inquiry sessions had ended in March 2015. Out of respect for what seemed to be a mostly positive process, most leaders and advocates held back their commentary in hopes that the next stage would soon follow.
In the months which followed, none of the mandated Ministers reported on what was happening with regard to the inquiry. Some of us were wondering when they would establish a table to begin jointly drafting the Terms of Reference based on the input from these sessions and begin the process of jointly choosing the commissioners for the inquiry. Such a table was never established. Instead, we only found out that the Terms of Reference were in fact being unilaterally drafted by federal and provincial governments when they were leaked to the press. Shortly thereafter, the names of the Commissioners were also leaked. This is when it became very clear that the government reverted to its old secretive ways and had no real intention of working on a Nation-to-Nation basis with First Nations. It was clear Trudeau’s commitment to openness, transparency and working in partnership with Indigenous peoples had ended.
Despite Trudeau’s personal promise made at the Chiefs in Assembly that the “process by which it [inquiry] is established will be fully inclusive”, numerous requests to be a part of the drafting process, and be provided direct updates and briefings from the INAC Minister’s office, were either met with silence or commitments cancelled at the last minute. It was obvious that the government was playing politics with one of the most urgent issues ever to face Canada – the very lives of Indigenous women and girls. The renewed Nation-to-Nation relationship with Indigenous peoples was supposed to be based on “recognition of rights, respect, co-operation and partnership”. Trudeau had mandated these and other Ministers to work to gain the trust of Indigenous peoples and Canadians by demonstrating “honesty and willingness to listen”. Clearly, these Ministers have lost their way in regards to the national inquiry.
Being completely excluded from the drafting of the Terms of Reference and choosing the Commissioners was bad enough, but to face the wall of silence and exclusion made things much worse. Some of the families started to lose faith; Indigenous leaders were forced to speak out; and some Indigenous and allied advocates were pushed to raise their concerns publicly, since the direct route had been cut off. To make matters worse, the content of the draft Terms of Reference that were shared by the media, was a real slap in the face to many of those who participated in the engagement sessions, who made written submissions and/or who have tried to work very hard with various Ministers’ offices. The Terms of Reference did not reflect what was recommended by various United Nations human rights bodies, human rights organizations, legal experts, Indigenous leaders, Indigenous women’s organizations, Indigenous experts, or by the families.
http://www.cbc.ca/news/canada/british-columbia/terms-of-reference-mmiw-inquiry-lack-teeth-1.3689319
While there are many concerns with the draft Terms of Reference that were leaked by the media, the following is a brief overview of the main concerns as expressed by a variety of Indigenous women, families, leaders, experts and human rights allies:
(1) Police: There is no specific mandate to investigate police conduct, specifically racism & sexualized violence within police forces towards Indigenous women & girls, their families and First Nations;
(2) Evidence: There is no specific authorization for the inquiry to compel federal, provincial, and territorial documents, especially from police forces;
(3) Human Rights: The inquiry is not structured within a human rights framework which is a major weakness given Canada’s failure to protect the domestic and international human rights of Indigenous women and girls has been cited as a root cause of the crisis;
(4) Jurisdiction: There is no specific authority for the national inquiry to deal with matters that some provinces may feel are within their exclusive jurisdiction, like the critical issue of child and family services. Similarly, there is no explicit legal clarity around cross-jurisdictional sharing of information that will be required in the inquiry.
(5) Participant supports: There is no specific provision to provide protection from police for witnesses who bring forward information about police abuse. There are also no specific supports for travel, legal counsel or language translation.
My primary concern is related to the lack of specificity around racialized and sexualized police violence committed upon Indigenous women and girls and how police racism and misogyny impacts their decisions to investigate murders and disappearances or not, and the quality of those investigations.
As it stands now, there is no specific mandate to investigate failures by police forces to investigate murdered & missing Indigenous women & girls including both solved and unsolved cases, misnamed cases (murders deemed accidents), failures to file reports, failures to protect Indigenous women & girls; police facilitation (direct or indirect) of child prostitution and human trafficking, and the treatment of families and First Nations by police.
This is made all the more problematic by the fact that the draft Terms of Reference specifically directs the Commissioners NOT to investigate anything that could interfere with ongoing investigations – which would include cold cases not touched for over 20 years. Even more shocking is that Commissioners are instructed to send Indigenous families back to the same police forces that abused them, mistreated them or discriminated against them in the first place. Offering “navigators” akin to native court workers to help families deal with police processes is no replacement for a fulsome investigation of police failures and abuses, or the elimination of discriminatory police processes.
http://www.cbc.ca/news/canada/manitoba/mmiw-inquiry-police-steven-zhou-1.3690860
Even if one could argue that the current Terms of Reference does not need a specific mandate to review legislation, policies and oversight processes relating to policing and the justice system, the commissioners’ inability to compel police, their notes, or other police-held evidence under current laws and policies would make this implied power useless. These laws have resulted in a high impunity rate for police. If police officers who murdered unarmed racialized men in front of witnesses and on video can’t be compelled to cooperate with their own legislated Special Investigations Unit or share their notes and other evidence, what makes Trudeau think that some non-specific wording in the Terms of Reference will be able to do so? Canada is once again asking us to have faith in justice processes that protect police and harm Indigenous peoples. That is not what trust and partnership is about.
http://www.cbc.ca/news/canada/ottawa/abdirahman-abdi-siu-investigation-video-evidence-1.3700715
But Trudeau doesn’t have to take my word for it. Minister Bennett’s own report on the engagement sessions noted that not only should the inquiry be done in a human rights framework, but that the inquiry must address law enforcement – over and above systemic issues within the justice system. Families and experts from all over Canada said they want police accountability, independent reviews of cases, analysis of police racialized and sexualized conduct towards Indigenous women and girls, and the sexual exploitations of Indigenous women and girls.
http://www.aadnc-aandc.gc.ca/eng/1463677554486/1463677615622
Trudeau himself promised that the national inquiry would investigate “uncomfortable truths” and seek concrete actions related specifically to law enforcement. While the uncomfortable truth about police racism and sexualized violence, abuse and corruption has been in the public eye lately through media exposing the extensive nature of police abuses – Indigenous peoples have long known about this problem. We need this national inquiry to shine a light on this dark and uncomfortable truth for all to see, so we can put an end to it.
Prime Minister Trudeau, you made a promise to us. It’s up to you to force your Ministers to fulfill that promise. Convene a table this week so that Indigenous peoples can jointly draft the Terms of Reference and pick the Commissioners. Nothing less will live up to your Nation-to-Nation commitment. It’s never too late.
Additional resources:
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National Inquiry or National Disgrace? Trudeau’s Next Step is Critical
Before being elected Prime Minister, Justin Trudeau told Canadians and First Nations that there was no more important relationship to him than the one with Indigenous peoples. To this end, he promised to engage with First Nations on a Nation-to-Nation basis where free, informed and prior consent means a veto. Once elected, he reiterated his promises:
(1) Engage in a Nation-to-Nation relationship with First Nations;
(2) Lift the 2% cap in First Nations education;
(3) Review and repeal all the legislation former Prime Minister Harper imposed on First Nations without their consent;
(4) Implement all 94 Calls to Action from the Truth and Reconciliation Report, which includes implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and
(5) Complete a national inquiry on murdered and missing Indigenous women and girls.
True to his word, Trudeau’s first order of business was to mandate Indian Affairs Minister Carolyn Bennett, Justice Minister Jodi Wilson-Raybould and Status of Women Minister Patti Hajdu to develop an approach and mandate for an inquiry into murdered and missing Indigenous women and girls to find justice for them. By mid-December 2015, the first engagement sessions were held with the families of murdered and missing Indigenous women and girls, Indigenous women and their representative organizations, Indigenous leaders, and human rights experts to determine the scope and process of the inquiry. While these meetings were ongoing, Canada accepted written submissions and also engaged in an online survey regarding the scope and process for the inquiry.
http://www.aadnc-aandc.gc.ca/eng/1448638260896/1448638282066
It is important to note that both the pre-inquiry engagement process and the inquiry itself were to be done within a new political context – one which focused on openness. Trudeau promised to “bring new leadership and a new tone to Ottawa” and “set a higher bar for openness and transparency in government”. In fact, he went so far as to say that “Government and its information should be open by default.” His reasoning for doing so was to ensure that Canadians can trust their government and that government remains focused on the people it is meant to serve. All of these promises come straight from the Ministerial mandate letters.
http://pm.gc.ca/eng/ministerial-mandate-letters
As promised, the government posted the dates and locations of meetings; posted overviews of each session online; and issued a summary report of what they had heard once the pre-inquiry sessions had ended in March 2015. Out of respect for what seemed to be a mostly positive process, most leaders and advocates held back their commentary in hopes that the next stage would soon follow.
In the months which followed, none of the mandated Ministers reported on what was happening with regard to the inquiry. Some of us were wondering when they would establish a table to begin jointly drafting the Terms of Reference based on the input from these sessions and begin the process of jointly choosing the commissioners for the inquiry. Such a table was never established. Instead, we only found out that the Terms of Reference were in fact being unilaterally drafted by federal and provincial governments when they were leaked to the press. Shortly thereafter, the names of the Commissioners were also leaked. This is when it became very clear that the government reverted to its old secretive ways and had no real intention of working on a Nation-to-Nation basis with First Nations. It was clear Trudeau’s commitment to openness, transparency and working in partnership with Indigenous peoples had ended.
Despite Trudeau’s personal promise made at the Chiefs in Assembly that the “process by which it [inquiry] is established will be fully inclusive”, numerous requests to be a part of the drafting process, and be provided direct updates and briefings from the INAC Minister’s office, were either met with silence or commitments cancelled at the last minute. It was obvious that the government was playing politics with one of the most urgent issues ever to face Canada – the very lives of Indigenous women and girls. The renewed Nation-to-Nation relationship with Indigenous peoples was supposed to be based on “recognition of rights, respect, co-operation and partnership”. Trudeau had mandated these and other Ministers to work to gain the trust of Indigenous peoples and Canadians by demonstrating “honesty and willingness to listen”. Clearly, these Ministers have lost their way in regards to the national inquiry.
Being completely excluded from the drafting of the Terms of Reference and choosing the Commissioners was bad enough, but to face the wall of silence and exclusion made things much worse. Some of the families started to lose faith; Indigenous leaders were forced to speak out; and some Indigenous and allied advocates were pushed to raise their concerns publicly, since the direct route had been cut off. To make matters worse, the content of the draft Terms of Reference that were shared by the media, was a real slap in the face to many of those who participated in the engagement sessions, who made written submissions and/or who have tried to work very hard with various Ministers’ offices. The Terms of Reference did not reflect what was recommended by various United Nations human rights bodies, human rights organizations, legal experts, Indigenous leaders, Indigenous women’s organizations, Indigenous experts, or by the families.
http://www.cbc.ca/news/canada/british-columbia/terms-of-reference-mmiw-inquiry-lack-teeth-1.3689319
While there are many concerns with the draft Terms of Reference that were leaked by the media, the following is a brief overview of the main concerns as expressed by a variety of Indigenous women, families, leaders, experts and human rights allies:
(1) Police: There is no specific mandate to investigate police conduct, specifically racism & sexualized violence within police forces towards Indigenous women & girls, their families and First Nations;
(2) Evidence: There is no specific authorization for the inquiry to compel federal, provincial, and territorial documents, especially from police forces;
(3) Human Rights: The inquiry is not structured within a human rights framework which is a major weakness given Canada’s failure to protect the domestic and international human rights of Indigenous women and girls has been cited as a root cause of the crisis;
(4) Jurisdiction: There is no specific authority for the national inquiry to deal with matters that some provinces may feel are within their exclusive jurisdiction, like the critical issue of child and family services. Similarly, there is no explicit legal clarity around cross-jurisdictional sharing of information that will be required in the inquiry.
(5) Participant supports: There is no specific provision to provide protection from police for witnesses who bring forward information about police abuse. There are also no specific supports for travel, legal counsel or language translation.
My primary concern is related to the lack of specificity around racialized and sexualized police violence committed upon Indigenous women and girls and how police racism and misogyny impacts their decisions to investigate murders and disappearances or not, and the quality of those investigations.
As it stands now, there is no specific mandate to investigate failures by police forces to investigate murdered & missing Indigenous women & girls including both solved and unsolved cases, misnamed cases (murders deemed accidents), failures to file reports, failures to protect Indigenous women & girls; police facilitation (direct or indirect) of child prostitution and human trafficking, and the treatment of families and First Nations by police.
This is made all the more problematic by the fact that the draft Terms of Reference specifically directs the Commissioners NOT to investigate anything that could interfere with ongoing investigations – which would include cold cases not touched for over 20 years. Even more shocking is that Commissioners are instructed to send Indigenous families back to the same police forces that abused them, mistreated them or discriminated against them in the first place. Offering “navigators” akin to native court workers to help families deal with police processes is no replacement for a fulsome investigation of police failures and abuses, or the elimination of discriminatory police processes.
Even if one could argue that the current Terms of Reference does not need a specific mandate to review legislation, policies and oversight processes relating to policing and the justice system, the commissioners’ inability to compel police, their notes, or other police-held evidence under current laws and policies would make this implied power useless. These laws have resulted in a high impunity rate for police. If police officers who murdered unarmed racialized men in front of witnesses and on video can’t be compelled to cooperate with their own legislated Special Investigations Unit or share their notes and other evidence, what makes Trudeau think that some non-specific wording in the Terms of Reference will be able to do so? Canada is once again asking us to have faith in justice processes that protect police and harm Indigenous peoples. That is not what trust and partnership is about.
http://www.cbc.ca/news/canada/ottawa/abdirahman-abdi-siu-investigation-video-evidence-1.3700715
But Trudeau doesn’t have to take my word for it. Minister Bennett’s own report on the engagement sessions noted that not only should the inquiry be done in a human rights framework, but that the inquiry must address law enforcement – over and above systemic issues within the justice system. Families and experts from all over Canada said they want police accountability, independent reviews of cases, analysis of police racialized and sexualized conduct towards Indigenous women and girls, and the sexual exploitations of Indigenous women and girls.
http://www.aadnc-aandc.gc.ca/eng/1463677554486/1463677615622
Trudeau himself promised that the national inquiry would investigate “uncomfortable truths” and seek concrete actions related specifically to law enforcement. While the uncomfortable truth about police racism and sexualized violence, abuse and corruption has been in the public eye lately through media exposing the extensive nature of police abuses – Indigenous peoples have long known about this problem. We need this national inquiry to shine a light on this dark and uncomfortable truth for all to see, so we can put an end to it.
Prime Minister Trudeau, you made a promise to us. It’s up to you to force your Ministers to fulfill that promise. Convene a table this week so that Indigenous peoples can jointly draft the Terms of Reference and pick the Commissioners. Nothing less with live up to your Nation-to-Nation commitment. It’s never too late.
Additional resources: