Warrior Life Studios

Pam Palmater

Tag: tobacco

  • Canada’s Criminalization of the Indigenous Tobacco Trade

    Canada’s Criminalization of the Indigenous Tobacco Trade

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Mohawk Tobacco Trade – Standing up for Our Sovereignty

    The days of only looking at issues that impact our local communities (bands) are long over if we expect to protect our cultures, identities and Nations for future generations. The issue of our sovereignty as Indigenous Nations (Mohawk, Mi’kmaq, Maliseet, etc) must be looked at in the bigger context. I am the first to admit that we have significant issues to address in our home communities and many of them are absolutely life and death issues related to poverty, addictions, housing, violence, and child welfare. It is critical that we ensure we have citizens dedicated to addressing these issues for the well-being of our families, communities and Nations. At the same time, we also have to dedicate some of our citizens to fighting the larger battle which is being waged against our identities, cultures, and sovereignty. In the days of my great grandfather and his grandfathers, Mi’kmaq people made sure they protected their women and children by having warriors posted at our our local settlements. However, knowing that our territory (known as Mi’kma’ki) was rich in resources and our traditional territory was vast (7 districts covering many provinces), we also ensured that all directions were protected from intrusion by other Nations. The idea being that you had to have all directions covered, even if one direction required more attention at any particular time. The same can be said about our current state of affairs. Our social issues have taken such priority, that in some ways we may have left ourselves vulnerable to attack from other directions. I don’t just mean within our own Nations either. If the sovereignty of the Mohawk is being challenged, that has a direct impact on the future of Mi’kmaq sovereignty and vice-versa. Similarly, every Indigenous Nation in this country has its own special resources that is uses to support its communities and whether it is tobacco, lobster, moose, seal or oil, we owe it to each other to not allow government or corporations to jeopardize what little we have left. We can’t think for a minute that the loss of lobster fishing for the Mi’kmaq will not have a significant impact for the Maliseet and their logging rights. We owe it to our Nations and our future generations to make sure that our political strategies have all the bases covered. It is for this reason that I write about the Mohawk Tobacco trade. The Aboriginal right of the Mohawk to engage in their centuries-old trading activities is being threatened by big business and provincial governments all of whom are desperate to get their hands on money which rightfully belongs to the Mohawk. Similarly, the self-determining rights of the Mohawk to exercise jurisdiction over their own political and business activities threatens their very sovereignty. http://aptn.ca/pages/news/2011/01/15/smokes-seized-on-alberta-first-nation-had-federal-stamp-commission/ http://aptn.ca/pages/news/2011/02/02/tobacco-battle-flares-in-two-more-provinces/ As many of you know, many of the traditional Mohawk territories in what is now Ontario, Quebec and the USA have lands which are particularly suited to the growing of tobacco, which is why they have engaged in growing tobacco for many years. Their traditional use and trade of tobacco has evolved into a larger scale tobacco growing, manufacturing, sales and trade industry. Today, First Nations like Six Nations and Kahnawake are engaged in various elements of the tobacco trade. One of those companies, Rainbow Tobacco, is based on Mohawk territory in Kahnawake. They have had their shipments of tobacco to other First Nations seized by several provinces for failure to have provincial markings on their cigarettes, despite the fact that they did have federal markings. This only appears to be an issue since  non-Indigenous businesses started complaining. However, these groups try to sway public opinion by categorizing the Mohawk Tobacco Trade as “illegal” and “contraband”. By using this kind of language, it relegates Indigenous peoples to criminal status and detracts from any arguments they might make in their own defense. http://aptn.ca/pages/news/2011/02/25/charges-against-rainbow-tobacco-band-politicians-looming-rcmp/ The following arguments have been made against the Mohawk tobacco trade: (1) It is illegal because there are no provincial stamps. In fact, there is no requirement that First Nation products have provincial approvals. The cigarettes had the proper federal stamps, and since jurisdiction (as between feds-provs) with regards to First Nations, their lands and property, vests in the FEDERAL government, the province would be ultra vires (outside the scope of their legislative authority) should they attempt to legislate in this regard. In case anyone needs a reminder, here is what the Indian Act, 1985 has to say about the matter: Section 87 – the interests of Indians and bands in reserve lands AND the personal property of Indians and band on a reserve are NOT subject to taxation; Section 89 – the real (land) or personal (movable) property of Indians and bands on a reserve (or deemed to be on a reserve) are NOT subject to: charge, pledge, mortgage, attachment, levy, SEIZURE, distress or executive in favour of ANY PERSON, other than an Indian or band; Section 91 – certain property can’t be traded by Indians like: grave poles, totem poles, rocks with paintings, but tobacco is NOT one of them; Section 93 – can’t remove certain materials from reserves like minerals, stone, timber etc without a permit, but tobacco is NOT one of them. The Mohawk tobacco is not illegal, not subject to provincial tax or jurisdiction and the province had no right to seize anything on any reserve. (2) Smoking is bad for you and causes too many health problems. There is no doubt that smoking is bad for you and does cause way too many health problems that can even result in one’s death. I don’t smoke and I don’t ever want my children to smoke either. My father smoked and he died of lung cancer. I would never want that for any family or community. However, the issue of whether or not to engage in smoking is not the matter in question. The issue is whether or not First Nations can grow, manufacture, sell and trade tobacco products on their traditional territories and/or between First Nation reserves. First Nations have no less of a right to make a living off the resources on their territories than all the settlers who made good use of our lands. In fact, First Nations have a constitutionally protected right to do so – this is something that non-Indigenous businesses can’t say. The double-standard inherent in this ideology is obvious. It is legal and publically acceptable for non-Indigenous businesses to manufacture and trade tobacco, but it is a moral sin when First Nations do it. This has nothing to do with morals and everything to do with the bottom-line: the provinces see it as a cash grab and corporations see it as losing “their” profits. (3) Tobacco can only be used by First Nations as it was used traditionally. This line of reasoning is not only racist, it is legally inaccurate. The Supreme Court of Canada has clarified on many occasions that Aboriginal peoples and their rights are NOT to be frozen in pre-contact times. The SCC has further clarified that Aboriginal rights are able to evolve over time into modern methods of exercising those rights. Telling First Nations they can only use tobacco as they did in pre-contact times would be like us telling lawyers they still have to wear white wigs in court or that you have to take the Mayflower boat on your next holiday to Cuba. (4) Most of the First Nation tobacco companies are owned by band members and not the band. Regardless of my own personal feelings about individual vs. band owned businesses, again this is not the issue at hand. Those are debates to be had between band members and their bands or citizens within Indigenous Nations. I am stunned however, by the hypocrisy of statements like this when they come from the same right-wing people who are advocating the privatization of reserve lands. You simply can’t have it both ways. (5) Indigenous peoples should compete in the market place on the same level as everyone else. People who advocate this line of reasoning are usually the non-Indigenous tobacco companies or retailers who blame their poor sales on Indigenous tobacco trade as opposed to the decline in tobacco usage in Canada. What they forget is that the “market place” is fueled by the lands and resources, and the spin off taxes and businesses, which rightfully belong to First Nations. How is it that settlers could steal our lands and resources, use them to make a profit, and then when First Nations get into the market place with what little resources they have left, all hell breaks loose? They also forget that the provisions of the Indian Act noted above are legal rights afforded to First Nations. Their Aboriginal and treaty rights are also constitutionally protected. The issue is not whether the settler society likes that Aboriginal and treaty rights are protected, the fact of the matter is that they are the supreme law of the land. (6) Indigenous peoples use the money from the tobacco trade to fund all sorts of illegal activities like drugs. This ludicrous, stereotype is advanced by people like conservative Senator Patrick Brazeau. If you view the following video, you’ll hear him make this racist stereotype against First Nations: http://aptn.ca/pages/news/2011/02/04/aptns-mp-panel-back-in-business-but-for-how-long/ There are always individuals who break the law in Canada. That does not mean Canadians are all crooks. Robert Pickton was a serial killer, does that mean all Caucasian people in Canada are serial killers? Of course not. Then why is it acceptable for Senators and others to advance such disgusting racist stereotypes against our people? We have to call them on it, and then get back to the real issue: we are sovereign nations and our sovereignty has been challenged here. While you may not personally like tobacco, that is not the issue. Mohawks engaged in their traditional tobacco trade are no more criminals than Mi’kmaq people fishing lobster. Yet, when the Mi’kmaq proved their treaty right to fish and sell lobster, the non-Indigenous fishers could not accept having to share what was never theirs to begin with. It resulted in government officials riding their boats over our people (literally) and calling us criminals and in the media said we were engaged in illegal fishing. http://www.youtube.com/watch?v=HsvG4KpFHOA If we do not stand up for our sovereignty at EVERY instance that it is challenged, including those times when we don’t like the issue, then we’ll have no defense when we want to exercise it for issues we do like, i.e., land and hunting. We  owe it to each other to get each other’s backs and to ensure that all our directions are covered. There is no negotiation when it comes to sovereignty. Our heroes were not well-paid lawyers or consultants – they had nothing and risked their lives for us. We have to prove to our future generations that we were worth the fight. http://www.youtube.com/watch?v=3Ul4KmHlzMc

  • Conservatives’ Election Platform for Aboriginal Peoples is “Assimilatory”

    With all this talk of a possible federal election, I was wondering how long it would take for the three major national parties (Liberals, NDP and Conservatives) to start talking about their platforms in relation to Aboriginal peoples. Thanks to APTN National News, we got to hear a preview of their platforms last night. For anyone who missed the APTN panel, please go to the following link and watch it before you read my commentary: http://aptn.ca/pages/news/2011/02/04/aptns-mp-panel-back-in-business-but-for-how-long/ For those who don’t have video capabilities, I will briefly review the discussion. Appearing in this broadcast was Conservative Senator Patrick Brazeau, NDP MP and Aboriginal Affairs critic Jean Crowder, and Liberal MP and Aboriginal Affairs critic Todd Russell. The purpose of this panel was to discuss the possible federal election, whether the parties had a platform on Aboriginal issues and what their views were on First Nations tobacco industry and sovereignty. Here is an overview of what they had to say: (1) WILL THERE BE AN ELECTION? Russell – He was concerned with direction that the Conservatives are taking, i.e. billions in tax cuts to wealthy corporations and little for families and First Nations education. While they will try to work cooperatively, if the Conservatives don’t change direction, they will vote against the budget. Crowder – The issue is whether Harper will work with minority parties to make Parliament work for Canadians and substantial work needs to be done for Aboriginal communities. Brazeau – This Conservative government does not want an election and Canadians don’t want an election. Canadians want them to focus on the economy and creating jobs and training opportunities for Aboriginal people to “hold” jobs. (2) WHAT ABORIGINAL ISSUES ARE MOST IMPORTANT? Russell – Liberals have already spoken about their vision for Aboriginal policy going forward: (1) they would remove the 2% funding cap on post-secondary education, (2) substantial investments in Aboriginal education and k-12 system, (3) national response to murdered and missing Aboriginal women, and a (4) commitment to endorse UNDRIP which has happened. He also stresses that there must be a rebuilding of trust between government and Aboriginal peoples and criticized the Conservative government for their plans to get rid of communal property ownership on reserves and for their overall “assimilationist” approach to Aboriginal issues. Aboriginal peoples are not the same – they have legally protected rights. Crowder – When NDP develops platform on Aboriginal issues, they work with their Aboriginal Commission which is made up of Aboriginal peoples and they are working on running Aboriginal candidates in the next election. The larger issues are Nation to Nation status, inherent rights, treaties and other issues like education, health care and water. Brazeau – “There may be a disconnect” between the Conservative government and Aboriginal peoples in “some cases” but “the relationship is getting better”. The Liberals are just fear-mongering. Brazeau said he heard 5 years ago about the Conservative plans to take away First Nation rights and promote assimilation. He refers to their record: (1) residential schools apology, (2) funding for murdered and missing Aboriginal women and (3) UNDRIP. However, their focus is Aboriginal education and economic development. (3) HOW DO THE PARTIES VIEW THE TOBACCO TRADE BETWEEN SOVEREIGN FIRST NATIONS? Brazeau – The topic of “illegal tobacco” needs to be addressed. “Many of the tobacco shops on reserves” “are being used for other illegal drugs” and other “illegal things that are happening”. We have to start treating Aboriginal people equally with other manufacturers and store owners who sell tobacco”. Perhaps we need to start to “tax” them and their is a “role for the federal government in this”. Crowder – (1) There is a public health issue with the availability of cheap tobacco. (2) You have to control the supply of the raw product to control the manufacturing and (3) There are solutions like a First Nation tobacco tax imposed by First Nations and that goes back to First Nations. Russell – Aboriginal communities and the public have identified issues of health and economics. There are also issues of sovereignty, jurisdiction and treaty rights. We need to have these discussions around a negotiating table. So what we have seen in this panel on the part of the Conservatives is really more of the same. Brazeau accused Russell of fear-mongering when Russell said that the Conservatives were using an assimilatory agenda to make Aboriginal people the same as other Canadians and ignore their legally protected rights. Yet, Brazeau could not help himself when he later said that the Conservative goal was to treat First Nations the same as other Canadians. While the Conservatives try to dance around their ultimate agenda so that their assimilatory views do not look so overt, the fact of the matter is that this is exactly what they are attempting in their Aboriginal policy. You can look at any of their activities over the last few years and see the common thread of trying to making Aboriginal “the same” as everyone else and an almost complete rejection of their legally and constitutionally protected rights. For example: (1) Bill C-3 did not remedy gender inequality which leads to loss of status. In fact, Canada defended the second-generation cut-off rule despite the fact that it guarantees the legal extinction of First Nations. (2) Bill S-4 does not provide real access to justice for Aboriginal peoples living on reserve after a marital break-up, but it does guarantee land rights to non-Indians of reserve lands for the first time in history. (3) Bill C-575 does not address the severe poverty of First Nations that lead to their early deaths. It creates more reporting requirements for First Nations who already report more than any other entity in Canada. (4) There have been numerous studies, reports, commissions and inquiries that prove that Aboriginal men and women are incarcerated at a disproportionately higher rate than non-Aboriginal peoples and sometimes the cause is pure racism. Yet, the Conservative response is to spend millions building new prisons and hiring new corrections officers so they can house the increasing numbers which will effectively remove any remaining Aboriginal people (who are not assimilated through the Indian Act) out of society. (5) When the Native Womens’ Association of Canada identified an alarming number of murdered and missing Aboriginal women in Canada, the Conservatives cut the funding and poured millions into policing to help “all Canadians”. (6) When the Corrections Ombudsperson identified discrimination against Aboriginal offenders; the former auditor general Sheila Fraser identified inequality in funding critical services like child and family services and education, when the Ministerial representative for INAC noted that matrimonial real property legislation required consultation, when the UN identified numerous unresolved issues in Canada with regard to Aboriginal peoples, the response is always the same – there is no response. (7) Now it is reported that Canada is providing funds in one form or another to people like Tom Flanagan and Manny Jules to promote the privatization of reserve lands. No land = no community = assimilation. I could go on and on, but my blogs cover alot of this stuff. Brazeau focused on education and jobs – assimilating Aboriginal people into Canadian society, and no recognition of their special legal, constitutional and cultural status. It is the Flanagan-Cairns-Helin-Gibson-Widdowson-Canadian Tax Payers plan: Step 1 – underfund essential services so that First Nations off reserves, Step 2 – educate them in the Canadian system and put them in “regular” jobs and debt, Step 3 – entice individuals with financial incentives not tied to their community and villify their leaders, Step 4 – bleed off Indian women and their descendants through the Indian status provisions, and Step 5 – innocently promote individualism under the guise of equality. I am not saying that jobs or education are bad. In fact, I am a huge promoter of education so that we can build capacity to help heal our communities and rebuild our Nations. Having jobs and income to finance these projects are also essential. But I don’t agree with the requirement that we abandon our cultures, languages, identities, histories, legal rights, lands, communities, governments, laws, or treaties. The Conservatives hope to entice us down the path of assimilation “voluntarily” – but we have another choice. We can be Indigenous and educated. We can be Indigenous and own our own businesses. We can be Indigenous and have relations with Canadians. We do not need to give up our identities, communities and Nations to be entitled to demand fair treatment and respect of our rights. I have never been a voter myself, nor do I belong to any political party, but in recent years I have started to think that we need to take action on multiple fronts. I am still thinking about it, but the Conservatives are getting scarier as each year passes and their arrogance and paternalism on Aboriginal issues becomes more and more apparent. MP Todd Russell spoke of jurisdiction, treaty rights, and negotiation. MP Jean Crowder spoke of inherent rights, treaties and Nation to Nation relations. Brazeau preached about federal taxation of “illegal” First Nation business, the disconnected relation they have with Aboriginal peoples, and the need to treat Aboriginal peoples the same as other Canadians. Could the message be any clearer?