Warrior Life Studios

Pam Palmater

Tag: Section 35

  • Trudeau’s Dance of Deception on Indigenous Rights

    Trudeau’s Dance of Deception on Indigenous Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Defer, Deflect, Deny, Destroy: Harper’s First Nation Education Act

    *(My apologies for the length of this blog – it’s too critical of an issue to cover lightly)

     

    Since the federal government first assumed control over First Nation education, First Nations have suffered poor educational outcomes. During the residential school era, federal control over First Nation education meant a very real chance of starvation, torture, abuse, medical experimentation, beatings and death for the students. Upwards of 40% of the children who entered residential schools never made it out alive and others were permanently scarred.

    Prime Minister Harper apologized for the residential school policy, but has not taken a single step to address the disastrous results which stemmed from it like lost culture, language, identity, traditional Indigenous knowledges, belief systems, values, customs and practices. No sooner was the weak apology offered when Conservative MP Pierre Poilievre condemned it as a waste of money. The Harper government soon followed the apology by cutting funding to Indigenous languages which confirmed the lack of sincerity in the apology.

    Even a child knows that an apology is more than words; it requires an acknowledgement of the harm done, acceptance of responsibility for that harm, a promise not to do it again and actions to try to make amends for the harm done. Harper has not offered a true apology nor taken real actions to address the significant harms done. A litigation settlement for personal injuries, rapes and molestations that happened in those schools does not address the assimilatory harms.

    If Harper was sincere about the wrongfulness of Canada’s long-standing assimilation policy, it would not continue to have assimilation as its number one policy objective with regards to First Nations. If there was a true interest in righting wrongs in First Nation education, Harper need only read the many reports, publications, studies and statistics in relation to First Nation education which have clearly outlined the problems and the solutions. Yet, Harper has implemented his standard modus operandi in relation to First Nations issues: deny, deflect, defer and destroy.

    http://pi.library.yorku.ca/ojs/index.php/crsp/article/viewFile/35220/32057

    Even when faced with contrary evidence, Harper’s government has consistently denied that there is a problem with funding or federal control over First Nation education. Instead they issue press releases and make public statements about how much they fund First Nation education and focus on isolated First Nations which have recently built schools. The Office of the Correctional Investigator, The Auditor General, Special Ministerial Representatives, United Nations investigators and numerous experts have raised the alarm on the serious nature of federal control over First Nation education. Some of the conclusions include the following:

    –        Indian Affairs has failed to implement recommendations “most important to lives and well-being of First Nations” (Auditor General 2011);

    –        73% of all water, 65% waste water systems in FNs are high risk – INAC so behind in infrastructure funding, will take $4.7 billion just to fix current systems (Neegan 2011);

    –        The “inequitable and differential outcomes for Aboriginal offenders” are the direct result of “federal correctional policies and practices” (Correctional Investigator 2010);

    –        “current funding practices do not lead to equitable funding among Aboriginal and First Nation communities” (OAG 2008);

    –        funding inequities results in inability for First Nations to provide adequate child welfare services (Auditor General 2008);

     

    –        “inequitable access to services for First Nations…contributing factors to the over-representation of Aboriginal children in child welfare system” (INAC 2004);

     

    –        Funding formula created by INAC does not ensure equitable access to education & gap widening (Auditor General 2004);

    –        INAC failed to give Parliament real picture on FN housing – said increased housing stock overall, but found an actual decline of 30% (Auditor General 2003).

    When the evidence is too overwhelming and the media will not let the issue drop, then the Harper Conservatives deflect responsibility and try to either change the subject or shift the blame to First Nations themselves by making allegations against First Nation leaders as corrupt or mismanaging funds. This pattern has been too consistent and one need only look at the housing crisis in Attawapiskat, the corresponding allegation of mismanagement and the court case which cleared Chief Spence’s name to see this m.o. in action.

    Sometimes, like in the case of First Nation education, the public criticism is so intense that deflection will not work and then Harper usually defers the issue to be studied. In the case of First Nation education, many successive federal governments have followed the same pattern of deferring the issue to study and the result is numerous studies. The problem for Harper is that all these studies continue to say the exact same thing: the problem is federal control and chronic underfunding of First Nation education. It should be no surprise that the studies were nearly unanimous in their solutions for poor First Nation education outcomes: First Nation control and appropriate funding. It’s not rocket science Harper.

    http://www.chiefs-of-ontario.org/sites/default/files/files/OCOFOV%20Education%20Report%202012.pdf

    When faced with an issue that simply won’t go away, and the usual deny, deflect and defer tactics won’t work; Harper usually reverts back to federal policy objective of assimilating Indians: destroying the “problem” all together. In an aggressive full blitz attack, Harper has introduced a complex legislative agenda which will have essentially the same effect as the White Paper 1969 would have: destroy Indians, reserves, treaties and any programs and services associated with them. With regards to education, Harper will introduce the First Nation Education Act, national legislation designed to trick First Nations into voluntarily giving up their treaty right to education in exchange for a federally-controlled legislative program.

    What are the implications of this legislation? The draft legislation has not yet been shared with the public, so I can’t comment on the specifics, but based on INAC’s Blueprint for Legislation document shared with First Nations, one can clearly see that First Nation concerns were valid:

    (1)  Indian agent-type federal controls, inspections and approvals will be tight;  

    (2)  The potential option of local First Nation control is limited and conditional;

    (3)  There will be no guaranteed funding as funding will still be policy-based; and

    (4)  Although promoted as optional legislation, the legislation proposes to set out a process for legal recognition and authorization to run schools.

     http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ-EDU/STAGING/texte-text/fN-Education_blueprint-ebauche_1373053903701_eng.pdf

    One need only look at the current suite of legislation to see where this legislation is headed.

    Other serious concerns related to this legislation include the fact that there were no consultations which respect Canada’s legal obligation to obtain the free, informed and prior consent of First Nations required under section 35 of the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Instead, engagement sessions were held in urban areas across the country and largely skipped the 615+ First Nation communities. This legislation is paternalistic, unilaterally drafted and meant to be a one-size fits all approach to deflecting the real issue: federal control and chronic under-funding. The majority of First Nations did NOT ask for legislation and in fact passed numerous resolutions at the national, regional and provincial levels specifically opposing this legislation.

    One cannot forget that for many First Nations, First Nation education is a treaty right and those treaties are protected in both domestic and international law. Treaties are forever and are now protected in section 35 and cannot be unilaterally amended. This, together with the fact that this legislation also proposes to off-load (at least in part) First Nation education to the provinces makes this legislation unconstitutional. Canada is forgetting that when it supported UNDRIP, that article 14 states that First Nations have a right to establish and control their own education systems and Canada has an obligation to ensure that First Nation children have access.

    The failure to address First Nation education outcomes doesn’t even make economic sense. The 2% cap placed on funding has only made a bad situation worse. Yet, the studies show that were Canada to eliminate the gap between Canadian and First Nation education outcomes, this would yield $179 billion on GDP back to Canada. Why then would Canada continue to pay $100,000 a year to wrongfully imprison First Nations peoples, when a 4 year university education only costs $60,000 and we know the social and economic benefits of a good education? Canadians enjoy good education systems funded in large part from the wealth obtained from Indigenous lands and resources. It’s time to share the wealth as envisioned in the treaties.

    Every time Canada comes up with an idea on how to “fix” the “Indian problem” our people are oppressed, assimilated or lose our lives. Canada has failed miserably in their First Nation education policies. It’s long past time to step aside and allow First Nations peoples to heal from the inter-generational devastation caused by federal controls and fully support First Nation-controlled education systems. The treaties promised to fund these systems so that First Nations would prosper equally with our treaty partners. It’s time the treaties were honoured and all parties to the treaties enjoyed the benefits.

    Forget more paternalistic federal legislation and honour the treaties.

  • Manitoba’s Epic Failure: Manitoba and Mining Companies Work Together to Deny First Nation Rights

    Dr. Pamela Palmater, Chair in Indigenous Governance

    And

    Chief Arlen Dumas, Mathias Colomb Cree Nation

    In Bruce Owen’s article in the Winnipeg Free Press “Chiefs agree to work on revenue sharing” dated Aug. 23, 2013, Manitoba’s Energy and Mines Minister Dave Chomiak announced that seven First Nation Chiefs had agreed to work with the province and mining companies on revenue sharing in the form of jobs and economic opportunities related to mining. Chomiak was also quoted as saying that the mining companies are onside with sharing revenue from mines with First Nations. However, in dismissing Red Sucker Lake First Nation’s actions to evict Mega Precious Metals from their territories, he failed to present the whole picture to Manitobans.

    Manitoba is one of the only provinces that does not have a First Nation consultation policy, despite the Supreme Court of Canada saying since the 1990’s that the provinces have a legal duty to consult, accommodate and obtain the consent of First Nations for activities on their reserve, treaty and traditional lands. Despite their reference to a “draft” policy, First Nations have been left out of decisions in relation to natural resources on their lands. This has been a long-standing grievance with First Nations whose inherent, Aboriginal and treaty rights are constitutionally-protected. The United Nations Declaration on the Rights of Indigenous Peoples which Canada supported, also guarantees protections for First Nations lands and resources and reaffirms that states require First Nation consent.

    While Chomiak’s quotes make it seem like Red Sucker Lake is the only First Nation opposed to illegal mining in their territory; that could not be further from the truth. Mathias Colomb Cree Nation has also taken steps to protect their traditional, treaty and reserve lands from Hudbay Minerals – a Canadian mining giant currently in court for alleged abuses of Indigenous peoples against mining in Guatemala. Hudbay was issued Stop Work Orders and eviction notices after failing to talk to Mathias Colomb Cree Nation.

    These two communities are not alone in their efforts. On April 26, 2013, a protest was held outside of the Mines Branch in Winnipeg where approximately fifteen to twenty Chiefs, supported by Idle No More and other grassroots community members, were in attendance. Nine Chiefs, including Assembly of Manitoba Chiefs Grand Chief Derek Nepinak, Manitoba Keewatinowi Okimakanak Grand Chief David Harper and Southern Chiefs Organization Grand Chief Murray Clearsky, as well as Chiefs from Manto Sipi, Red Sucker Lake, Mathias Colomb Cree Nation, Wasagamack, Buffalo Point, and Garden Hill First Nations, issued a press release expressing very specific concerns against Manitoba’s illegal licenses and permits.

    The Minister also failed to share that the mining companies are not onside with sharing the wealth from First Nations lands and resources. Hudbay Minerals has never provided any of the wealth to Mathias Colomb Cree Nation and its mining operations have negatively impacted the health of the plants, animals and waters in their territory. Similarly, Mega Precious Metals has not indicated a willingness to share the wealth from its mine on Red Sucker Lake territory. It is due to this consistent refusal by the province of Manitoba to comply with constitutionally-imposed legal obligations to First Nations, and the mining companies reliance on illegal licenses and permits, that First Nations in Manitoba are rising up to defend their rights. Even the United Nations report on mining on Indigenous lands deems licenses issued this way as “tainted” and not legal.

    For Minister Chomiak to say that the mining companies are onside is perhaps the most outrageous claim in the article. In actual fact, both Hudbay and Mega Precious instituted heavy-handed measures against Mathias Colomb Cree Nation and Red Sucker Lake First Nations when they went out on their traditional lands and engaged in their peaceful traditional activities. The RCMP were called in, litigation was filed against the Chiefs and community members and injunctions were obtained to keep these First Nations off their own lands (and in the case of MCCN, an injunction was also obtained against Pam Palmater, an activist with Idle No More).

    Just because seven Chiefs out of 63 want to meet with the province and mining companies, does not mean the majority of First Nations are onside with either Manitoba’s illegal licenses or mining companies who knowingly profiting from illegally-issued licenses and permits. To make this assumption would also ignore all the resolutions and motions passed from First Nations and First Nation organizations. For example, Swampy Cree Tribal Council passed a motion this year stating:

    “Swampy Cree Tribal Council will not recognize any mining table, committee or working group or panel of experts set up by the Province of Manitoba or any decisions or recommendation they may make in relation to our lands and resources.”

    Similarly, the Treaty Land Entitlement Committee resolved this year that:

    “We hereby direct the federal and provincial government to honour and abide by our Moratorium not to use permits, licenses and any other dispositions or actions that may impact our Respective Treaty, Traditional territories and Ancestral lands”

    The Assembly of Manitoba Chiefs and other First Nation organizations have passed similar resolutions supporting First Nations in their efforts to protect their sovereignty, land and resources. But this issue just isn’t about First Nations – First Nations are trying to protect all Manitobans from the province’s illegal activities, like allowing Hudbay to develop a mine in a provincial park.

     

    It’s time Manitoba recognized the sovereignty and ownership of First Nations over their own lands and resources and started finding ways to work together to share the wealth and protect the lands as envisioned by the treaties.

     

     

  • Eyes Wide Shut: Chasing Section 35 and Ignoring the War

    Ok, so it’s been four months since the Assembly of First Nations (AFN) election for National Chief and the honeymoon period is officially over. I simply can’t stay silent any longer about where we are and where we are headed as First Nations. If we don’t take action now, even if that means speaking out and risking unity, then it is our First Nations citizens on the ground who will be the ones who continue to suffer from our political inaction. Harper’s aggressive actions since the election more than proves Harper’s real agenda – to once and for all eliminate the “Indian problem” – and it’s do or die time for us. http://indigenousnationhood.blogspot.ca/2012/09/harpers-indigenous-manifesto-erasing.html With respect, I take serious issue with any claim that there was “momentum” between Harper and First Nations prior to the Crown-First Nation Gathering (CFNG) that has suddenly withered since the AFN election. There was no momentum on any key issue of importance to grassroots First Nations peoples or First Nation leaders. Every single action Harper is pursuing against us right now, he started well over a year ago. It seems incredulous that NC Atleo would all of sudden decry the flurry of federal legislation being imposed on our First Nations when the majority of these bills were introduced into the House or Senate prior to either the CFNG or the AFN election. Don’t forget, mention of some of these pieces of legislation were made at the CFNG in Harper’s speech – I didn’t hear Atleo say anything about it then. http://www.cbc.ca/news/canada/story/2012/11/15/pol-cp-first-nations-atleo-harper-letter.html Similarly, with the substantial funding cuts to First Nation political organizations and those being implemented now at the individual First Nation level – we KNEW that this was Harper’s plan. This was not a shock to the AFN. The problem was never lack of knowledge, instead it was a complete failure to have a strategic action plan in place. That is not to say AFN could have single-handedly reversed those funding cuts, but for weeks since their announcement they had weak to no response. It is only now that there seems to be some outcry from the National Chief. But outcry or not, where is the plan? http://metronews.ca/news/canada/434784/atleo-pitches-plan-to-move-beyond-indian-act/ This is where things get progressively worse – Atleo’s new “plan” would have us locked into decades-long self-government negotiating processes which would indebt our First Nations by millions of dollars and trap us there, lest we want to be put into third party management for failure to pay. What about the First Nations citizens on the ground? Where is the plan for the current housing and water crisis? Our people need to have at least the basic necessities of life – where are their voices and priorities reflected? True, some First Nations are doing fairly well on some fronts, but we cannot ignore the multiple over-lapping crises right before our eyes. Many of our people are suffering from homelessness, over-crowding, lack of water, sanitation, food insecurity, the theft of their children by child and family services at alarming rates, many murdered and missing Indigenous women and the over-imprisonment of our men, women and youth. How much worse does it have to get before we shift our focus back to our peoples? http://indigenousnationhood.blogspot.ca/2012/10/indigenous-nations-urgent-situation.html Has AFN even thought about what a section 35 agenda would mean? First of all, it is focused on Canadian law and interpreted by Canadian judges. It should be no surprise then that the majority of the Supreme Court of Canada (SCC) cases have followed a very specific pattern: (1) They always specifically or indirectly protect Canada’s sovereignty; (2) They arbitrarily make up new sui generis (unique) law to ensure our rights can squeeze into Canadian law versus any recognition of our own laws; (3) The cases transform First Nations from sovereign Nations and governments to cultural entities frozen in pre-contact times that must be reconciled with Canadian sovereignty; (4) Whenever a principal or finding goes in our favour, it will inevitably be limited, redefined and reduced to an almost unusable right in subsequent cases. Take for example, the Indian priority in Sparrow which came second only after conservation. In Delgamuuwk, our priority sank to last after every other possible priority including: agriculture, forestry, mining, hydroelectric power, environment, infrastructure and settlement. (5) The section itself requires the extensive, costly litigation of our rights on a right by right, species by species and First Nation by First Nation basis. Many of these cases take decades to resolve and even once they hit the SCC, it is not uncommon for them to send the case back to trial. Even then, we are the only group subjected to re-hearings like in Marshall II which substantially altered the original court win. So, what is it about section 35 that offers an alternative to the current situation? Do they not realize that First Nations are the only entities with real sovereignty here? Canada knows this and is desperately buying up the rest of our lands through claims and securing its own sovereignty agreement by agreement. Canada is slowly piecing together their ownership and sovereignty, and some of us are allowing them to do that. I am not saying that they have offered any alternatives, but we don’t have to accept what they thrown down. In order to speed up the process Canada will introduce the First Nation Property Ownership Act so we can surrender the last of our lands. What about any of this is a plan forward? Atleo’s “plan” also calls for a National First Nations Auditor – seriously? That is nothing more than trying to please the government’s obsession with trying to make all First Nations look corrupt.Try selling that as a solution to a northern Ontario First Nation whose school is falling apart; or a flooded Manitoba First Nation whose residents have been displaced for many months; or a Saskatchewan First Nation whose water is contaminated. Who cares about another national First Nation entity which will benefit the CEO, its few employees and serve a relatively minor number of First Nations. Think of the First Nations Tax Commission, the First Nations Statistical Institute, and all those other “national” organizations located in British Columbia. We don’t need a First Nation bureaucracy on top of the massive Indian Affairs bureaucracy we have now. We are not one nation of people – we are many Nations with our own sovereignty(s). We have laws and governance systems which makes us strong Nations. We need to act on that strength, in different ways, in different territories, and according to our own laws and priorities. If we can’t stay focused on living and acting on our sovereignty everyday, then we’ll be easily led down the colonizer’s path of chasing “equality”, “section 35”, and other government carrots – while missing the war going on around us. Make no mistake, our peoples are the casualties in this war and things are growing steadily worse on all socio-economic fronts. The status quo is killing our people and has been for quite some time. The problem is that Harper has changed the status quo and things are about to get much worse. http://pi.library.yorku.ca/ojs/index.php/crsp/article/viewFile/35220/32057 Unbelievably, the AFN only now appears to be realizing that Harper’s full-blitz attack on First Nations has some “potential for harmful impacts”. This means that nationally, we are way behind in this war. The AFN has had many opportunities to take a stand over the last few years and has failed to do so each time. That is not to say that individual regions or First Nations have not been raising the alarm bells – in fact, some had to very publicly withdraw from Atleo-Harper education plan in order to preserve their treaty and inherent rights. There are also thousands of First Nation community members who want to see their leaders lead and are willing to stand behind their Nations – but they need to be inspired to action. There can be no more delays – we need action. Our peoples deserve better than our fear, hesitancy and wilful blindness to their suffering. We cannot chase Canada’s section 35 illusion with eyes wide shut. Harper is presenting us with a false choice: Indian Act or assimilation and some of us have fallen into the trap of letting him define our options. We need to take stock of where we have been, the situation we created by allowing this to happen, own it, and move forward. None of us as individuals have all the answers – but we are lucky, we still have the strength of our collective Nations to stand beside us. Let’s do this for our peoples and our Nations.  “When it comes to confronting our imperial realities some of us want to reform colonial law and policy, to dull that monster’s teeth so that we can’t be ripped apart so easily.” “Some of us believe in reconciliation, forgetting that the monster has a genocidal appetite, a taste for our blood and would sooner tear us apart than lick our hands.” “I think that the only thing that has changed since our ancestors first declared war on the invaders is that some of us have lost heart against history and against those that would submit to it.” “I am with the warriors who want to beat the beast into bloody submission and teach it to behave.” (Excerpt from: Taiaiake Alfred, Wasase: Indigenous Pathways of Action and Freedom (Toronto: University of Toronto Press, 2005).

  • Letter to editor of Globe & Mail re Bill S-4

    Dear editor; My name is Pam Palmater and I am a Mi’kmaq lawyer originally from New Brunswick and am now the Chair of Ryerson University’s Centre for Indigenous Governance. I was called as an expert witness on several bills, including Bill S-4 – Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise referred to as MRP legislation). Please find attached a copy of my official submission to the Senate in this regard. However, I would also refer you to the transcript of Senate proceedings as this contains additional vital information about the Bill and its potential impacts. The reason for my letter to you today is because Mr. Curry, in his article dated July 6, 2010 and entitled “Senate approves bill to help abused, divorced aboriginal women”, presented factually inaccurate information which serves only to perpetuate misleading information about the real issues and negative stereotypes about Aboriginal peoples. For example, while the sub-headline may create drama around the vote to support/reject the bill, the fact is 32 Senators voted against it, not two, and they voted this way primarily because of the nearly unanimous voices of the Aboriginal leaders, women and organization that appeared before the Senate on Bill S-4. Those 32 Senators who voted against this bill did so based on very informed and detailed presentations from well-respected groups like the Canadian Bar Association who warned that this Bill would create new rights for non-Indians in reserve land and that consultation was required before the bill proceeded. Even more shameful is the fact that there is very little reference to what Aboriginal peoples’ views were – and an embarrassing lack of reference to the views presented by Aboriginal women themselves. Before the Senate there was nearly unanimous opposition to this Bill by Aboriginal women like myself, Native Women’s Association of Canada, Quebec Native Women, Women Chiefs of the Assembly of First Nations and others. The common theme amongst the Aboriginal women was that change is definitely needed, but no Aboriginal women were willing to give up their individual and communal Aboriginal, treaty, land and governance rights in exchange for federal control over matrimonial property. What gets forgotten is that a violation of the right to self-government of a First Nation is also a violation against that First Nation’s women. Aboriginal women are struggling to protect their rights and identities for their future generations which can’t be achieved if Canada resorts back to paternalistic control over their personal lives and re-institutes Indian agents through “verifiers”. Even worse is the fact that this bill won’t help Aboriginal women but will open up reserve lands to non-Indians in violation of countless treaties, the Royal Proclamation, the Indian Act itself and the Constitution Act, 1982. This aspect of the Bill is, in essence, illegal. It purports to unilaterally change constitutionally protected rights without amending the constitution. Canada cannot, by amendment of the Indian Act, amend the Constitution. First Nations lands are protected for the SOLE use of First Nations and changing this fact without consultation with First Nations has been referred to by various academics as an abuse of power. Mr. Curry also refers to the fact that Bill S-4 is the third time around for MRP legislation but fails to highlight that the reason it failed the last two times was because there was no consultation with First Nations. Consultation is not a mere nicity that the government can choose to ignore at will. In addition to the honour of the Crown and its various fiduciary obligations towards Aboriginal peoples, Canada has a LEGAL obligation to fully inform, consult with and accommodate the legitimate concerns of First Nations whose Aboriginal, treaty and/or land rights may be impacted by government decisions, actions, policy or legislation. I need only refer to the numerous Supreme Court of Canada decisions like Haida, Taku, Mikisew Cree, Delgamuukw, Guerin, Sparrow, Van der Peet Trilogy, Sappier and Gray which support this fact. The fact of the matter is that Canada “engaged” with Aboriginal political organizations at a very general level but it did not consult with First Nations specifically about Bill S-4. Even Canada’s own Ministerial representative concluded that consultations had NOT taken place and that any solution must include consultation. Whenever a well-read newspaper such as the Globe and Mail leaves out critical information that would permit readers to have access to at least the basic information to come to their own conclusions about issues like Bill S-4, it detracts from its usefulness and risks becoming a one-sided advocacy piece. Readers deserve more and so do the subjects that you treat. Aboriginal peoples are regularly portrayed negatively in the media because that serves the interests of right-wing thinkers who believe everyone should subscribe to their limited views about what it means to be a Canadian. So, the fact the Mr. Curry could write about Bill S-4 and not even mention the fact that this Bill will affect First Nation jurisdiction over their own lands or that it does not recognize and implement their right to be self-governing – both rights of which are protected in section 35 of the Constitution Act, 1982 is irresponsible. In 1996 Canada recognized that the inherent right of self-government was protected in section 35 of the The Constitution Act, 1982 and that issues like membership and family law was the sole jurisdiction of First Nations. The Constitution Act, 1982 is the Supreme Law of Canada and Canada can’t choose to honour it only when it is convenient. We just celebrated Canada Day on July 1 – perhaps we also need a day to celebrate our Constitution and remind Canadians that First Nations and their rights are just as an integral part of our Constitution as are our highly valued Charter of Rights and Freedoms. In addition to these glaring omissions, I would also like to draw your attention to several factual inaccuracies: (1) Mr. Curry claims that this bill is designed to help “abused, divorced aboriginal women”. The conservative senators specifically clarified at the hearings that this bill was not targeted at abused Aboriginal women. I refer you to the transcript for more details. Similarly, even if it was, it should be noted that all legal experts who presented testified that this bill does not offer real remedies for Aboriginal women as there is no funding to access lawyers or courts and there is no funding to help create local remedies that are accepted by the community. (2) Mr. Curry claims that Aboriginal women’s only options are to “plead their case to the local band council”. He obviously did not follow the hearings or peruse the transcripts which highlighted the First Nations who have already designed their own MRP laws or have traditional or informal rules which take care of MRP issues. I refer specifically to Anishanabek Nation, Six Nations, Akwesasne and others who, under this bill, will have their own MRP laws rejected. While MRP laws are necessary in many First Nation communities, what is needed is capacity building and funding to support First Nations to work with their communities to come up with their own laws and local dispute resolution mechanisms – we already know from residential schools how things turn out when Canada imposes its own views on Aboriginal peoples. (3) Citing Senator LeBreton does not help Mr. Curry’s article either. Mr. Curry cites her as saying that she is “mystified” that Aboriginal Women Senators Dyck and Lovelace would oppose the bill. With all due respect, she could only come to that conclusion if she ignored nearly every single submission and testimony that was made before the Senate hearings on Bill S-4. Senator Lovelace and Dyck are well-respected Aboriginal women who have been a part of the struggle to have the voices of First Nations and Aboriginal women in particular heard. What those two Senators did was actually listen to what Aboriginal women and First Nations said and brought those views and concerns forward. This is what is expected of those who represent the people – Senators blindly support whatever their political party advocates without listening to the people are undemocratic. LeBreton didn’t even listen to what her own conservative senators said at the hearing. She claims the legislation is geared towards “preventing cases of repeated abuse” yet her own conservative members specifically stated that it was not. When she did refer to testimony she discounted what the AFN had said on the basis that most First Nations leaders are male. Again, I would refer you to the testimony of the Aboriginal women, experts and organizations that were also against this bill. I would refer you to the report of the Ministerial Representative on MRP who highlighted the fact that there are more Aboriginal women chiefs of First Nations in Canada, than there are women in the House of Commons. My elders always use to tell me that before one could criticize another, they should be sure that they have their own teepee in order. So, instead of trying to twist the issue to one of Aboriginal women versus Aboriginal men or individual rights versus communal rights, I would respectfully suggest that Mr. Curry look at the real issue: how Canada continues to develop policies and laws which control, divide and assimilate Aboriginal peoples despite their legally and constitutionally protected rights. If Canada was truly concerned about gender equality, it would work with Aboriginal women to amend Bill C-3 Gender Equity in Indian Registration Act to once and for all make status equal between Aboriginal men and women. Canada can’t have it both ways – it either wants true gender equality for Aboriginal women in all laws and policies or it doesn’t. If it does, then it has to listen to Aboriginal women about Bill S-4 and the need for consultation. If it doesn’t, then we’ll see more of the legislation that the conservatives have tried to cram through the House and Senate – Bill S-4, Bill C-3, Bill C-24, and Bill S-11. Respectfully; Pam