Warrior Life Studios

Pam Palmater

Tag: treaty rights

  • Clearing the lands has always been at the heart of Canada’s Indian Policy

    Originally published in The Globe and Mail on February 27, 2020.

    Canada’s Indian policy hasn’t changed much

    After the events of the past few weeks in Canada, one thing remains clear: Canada’s Indian policy hasn’t changed much since its inception. Indian policy has always had two objectives: to obtain Indian lands and resources and to reduce financial obligations to Indigenous peoples acquired through treaties or other means. Its primary methods were elimination or assimilation of Indian

    Colonial governments had a long history of scalping bounties to kill specific groups of Indigenous peoples, using small pox blankets to increase death rates from disease and forced sterilizations to reduce the populations. Even Confederation did not dispense with the violent colonization of what would now become known as Canada. Canada’s first prime minister, Sir John A. Macdonald, told the House of Commons in 1882: “I have reason to believe that the agents as a whole … are doing all they can, by refusing food until the Indians are on the verge of starvation, to reduce the expense.” Canada was fully engaged in clearing the lands, by any means necessary.

    View article (PDF) Genocide, Indian Policy, and Legislated Elimination of Indians in Canada

    Reconciliation: The goal is the same

    Now referred to as Indigenous reconciliation, the goal is still the same: to clear the lands of Indigenous peoples in order to bolster settlement and extraction of resources. This singular focus formed the basis of the violent colonization of Indigenous lands and peoples and, ultimately, is why Canada has been accused of genocide by the National Inquiry into Missing and Murdered Indigenous Women and Girls. Canada’s complex set of laws, policies, practices, actions and omissions have created an infrastructure of violence toward Indigenous peoples and the continued dispossession of their lands.

    This is at the heart of the devastating socio-economic conditions of many Indigenous peoples today, including multiple health crises such as diabetes, heart disease and strokes, lower life spans, higher rates of mental illness and some of the highest suicide rates in the world. These genocidal policies also serve to remove Indigenous peoples from their lands through high foster care rates, killings and disappearances of Indigenous women and girls and the skyrocketing incarceration rates.

    Apologies versus Land Back

    Despite carefully worded apologies and promises of a better relationship, none of these conditions has changed and, in fact, most are getting worse. Add to this that First Nations have less than 0.02 per cent of all their lands left – mostly in tiny reserves controlled by the federal government. Political rhetoric about supporting Indigenous self-determination means very little when we are denied access to our lands and resources.

    We need to be honest about what is going on. There never was any real intention of recognizing Indigenous land rights – whether under Indigenous laws, Section 35 aboriginal and treaty right protections in the Constitution Act, 1982, or by implementing the United Nations Declaration on the Rights of Indigenous Peoples. It has been painfully clear, at every flashpoint in Canada’s history, that it is willing to starve Indigenous peoples into submission or imprison them to access their lands.

    This is at the heart of what is happening across Canada over the past few weeks. The Wet’suwet’en Nation, as represented by their traditional government, acting on Wet’suwet’en laws and decision-making protocols, have said no to pipelines on their traditional territory. While five of the six band councils within the Nation have allegedly agreed to the pipeline, their jurisdiction extends over their reserve lands. It is the hereditary leaders who have the legal jurisdiction over their traditional territory, to decide whether the pipeline can cross their pristine forests and rivers.

    Canada breaches its own “Rule of law”

    The Supreme Court of Canada had already acknowledged in the Delgamuukw case that these were the proper representatives to bring a claim of aboriginal title. Eight of these leaders have said no to the pipeline. Despite this, the RCMP invaded their territory and forcibly removed them from their lands – counter to Wet’suwet’en law, Canadian law and international law. UNDRIP, which is now implemented in British Columbia, prevents the forced removal of Indigenous peoples from their lands. This flagrant breach of Canada’s own rule of law is why the peaceful solidarity actions started all over Canada.

    Read article: Mi’kmaw treaty rights, reconciliation and the ‘rule of law’

    This is also why these actions will continue. Every time law enforcement is sent in to the clear the lands of the “Indians” to make way for pipelines and extraction of resources, you will see more and more Indigenous nations and Canadian allies stand against this injustice.

    The real issue has always been about the land. The way forward is recognition of our right to be self-determining over our own lands and resources.

    Anything less is just the same old Indian policy that invites more uncertainty and social conflict. Canada can do better. It’s time to move past genocide and work toward respect for Indigenous land rights.

    #Landback

    This article originally appeared in The Globe and Mail on February 27, 2020 and updated on February 28, 2020 and can be found here: Clearing the lands has always been at the heart of Canada’s Indian Policy. The blog version has been slightly edited for style and the addition of resources.

  • Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    As expected, the Assembly of First Nations was first out of the gate offering glowing praise for this Liberal government’s federal budget, followed shortly thereafter by the Metis National Council and Inuit Tapiriit Kanatami – the three male-dominated national Aboriginal organizations. Their organizations have seen substantial increases in funding for their political organizations in recent years. Meanwhile, the Native Women’s Association of Canada – the only political organization representing Indigenous women at the national level – issued its own press release criticizing the government for failing Indigenous women. They accused the federal government of, once again, ignoring the pressing needs of Indigenous women and in so doing, not only hampering reconciliation but breaching their core human rights. NWAC is especially aggrieved about this lack of funding for Indigenous women and families, given the urgent need to address murdered and missing Indigenous women and girls.

    The exclusion of Indigenous women and girls as a priority in this federal budget is a glaring example of the ongoing racism and sexism that is so deeply embedded in Canada’s laws, policies, practices and institutions – the very same racism and sexism the Liberal government claims to be against. When the federal government announced the National Inquiry into Murdered and Missing Indigenous Women and Girls in 2016, former Liberal Minister for the Status of Women, Patty Hadju, spoke of the urgent need to address the longstanding racism and sexism embedded in Canada’s institutions.  Yet, this urgent policy objective is not reflected in any substantive way in federal budget 2019. In fact, there are no funds allocated for a comprehensive plan to address violence against women generally, and no funds for a targeted comprehensive of plan of action to address violence against Indigenous women and girls specifically. Indigenous and women’s organizations have called on Canada to take comprehensive action now to implement recommendations from the United Nations treaty bodies to reduce murdered and missing Indigenous women and girls before the national inquiry’s report is released.

    http://fafia-afai.org/en/press-release-coalition-calls-for-urgent-action-to-stop-violence-against-indigenous-women-and-girls-%EF%BB%BF/

    The National Inquiry’s report is due out in less than a month and there is no budget set aside to implement whatever recommendations come from that report either. The limited funds for commemoration seems not only inadequate, but also premature given that the crisis has not abated. Where is the urgent and sustained help for the many families deeply impacted by the abuse, exploitation, trafficking, disappearances and murders of thousands of Indigenous women and girls?

    A particularly shocking exclusion from the budget is the lack funding for First Nations child and family services to address the crisis of First Nations children in foster care. Former Minister of Indigenous Services, Jane Philpott called the staggering statistics related to First Nation kids in care a “humanitarian crisis” – comparing it to the residential school system. She pledged to work with First Nations to address the critical need for funding to prevent apprehensions and address the root causes of over-representation, which include conditions of poverty. This glaring omission from the budget is confounding given the fact that Parliament had previously committed to targeted funding to accompany Bill C-92 An Act respecting First Nations, Inuit and Metis children, youth and families, which already been introduced in Parliament. Although the federal government promised significant funding to support Bill C-92 – there is no specified funding either in the bill or the budget. Not a single dollar has been allocated to support First Nations develop their own laws and institutions specific to child and family services, hire and train staff, as well as provide the much-needed wrap around social, educational and health services to families in need as advocated in the Spirit Bear Plan.

    https://fncaringsociety.com/sites/default/files/Spirit%20Bear%20Plan%20%28EN%29.pdf

    Dr. Cindy Blackstock, the head of the First Nation Child and Family Caring Society welcomed the additional funding for Jordan’s Principle, however explained that it does not go far enough and many children – like non-status Indian children are still excluded. Jordan’s Principle is a child-first principle which aims to ensure First Nation children can access all public services in a culturally-appropriate way, without any delays or hurdles because they are First Nations. The federal budget pledges $1.2 billion over three years. However, the flat funding does not take into account population growth over the funded years, or the rising cost of inflation. There are also no additional funds to address the thousands of First Nation children who will be newly entitled to Indian status as a result of Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) or from the revised unstated paternity policy in relation to registration. Both of these issues are the result of the federal government losing two court cases (Descheneaux and Gehl) on discrimination against First Nations women and children.

    Yet, despite the legal obligation to provide funding, none has been identified in this budget. This limited funding is not an act of reconciliation. The federal has been dragged to this point – kicking and screaming – by the Canadian Human Rights Tribunal, with no less than five non-compliance orders for failing to end discrimination in funding of First Nation children in care. So, while the extra funding is welcome, it is not a “gift”.

    A particularly disturbing omission is the lack of targeted funding for First Nation women and their descendants who would newly entitled to Indian status under Bill S-3. The bill has been in place for a year and will add thousands to the registration list, yet no new funds have been identified for education, health or housing for individuals or First Nations. This is despite the fact that the United Nations just agreed with Sharon McIvor that the Indian Act still discriminates against the descendants of First Nations women who married-out, and directed Canada to provide full reparation. This means registering them and providing much-needed social programs. Similarly, there is no targeted funding to address the increase in registration due to Lynn Gehl’s successful court case against Canada for it’s discriminatory unstated paternity policy. At every turn, First Nations women and children are forced to wait for justice and are denied their basic human rights and access to the same programs and services available to their fathers, brothers and uncles.

    One of the most under-served categories of First Nations are those living off-reserve. Approximately 33% of First Nations live off-reserve in Canada, and a disproportionate number of families are headed by single Indigenous mothers. Metis and Inuit don’t live on reserves at all – therefore the majority of Indigenous peoples live off-reserve. The amount allocated in the budget is a mere $60 million over 5 years to help fund off-reserve organizations like native friendship centres. That is barely $10 million a year – nowhere near what is needed to address urgent housing, education, and health needs for more than 800,000 Indigenous peoples living off-reserve – let alone the growing homelessness crisis plaguing Indigenous peoples. Niigaan Sinclair reports in the Winnipeg Free Press that the chronic under-funding is made worse by the fact that federal bureaucrats and other consultants and contractors, suck up nearly 50% of all funding appropriated by Parliament for First Nations. With three departments now directly responsible for Indigenous and Northern Affairs, who is to say whether First Nations will see much of this funding at all, let alone Indigenous women and children.

    https://www.winnipegfreepress.com/opinion/columnists/new-dollars-sure-but-same-political-game-507393892.html?fbclid=IwAR3jyFhBNuvatzHwVlW-JLWn28sw4MWAdhaGPfD2_strkkdgeiRGRJ0nQsU

    While there are many other problems with federal budget 2019, the most glaring omission is the exclusion of Indigenous women and children. Back in 2016, the Liberal government promised a gender based analysis for future budgets. Yet, this budget lacks a gender-based, human rights-based and Indigenous rights-based analysis that focuses on not just policy objectives like reconciliation, but concrete domestic and international legal obligations. There is no mention of returning lands and resources back to First Nations, no mention of a financial plan in relation to treaty implementation or how the federal government will ensure Indigenous women’s voices are at the many negotiating tables they fund. This budget is a disgrace and does little to address any of the pressing Indigenous issues impacting Indigenous women and children like kids in care, murdered and missing Indigenous women, over-incarceration, homelessness, unequal access to Indian status, poverty and poor health outcomes. Trudeau makes good use of flowery speeches and tearful apologies to Indigenous peoples,  but has left Indigenous women and children far behind – again.

    Perhaps Prime Minister Trudeau should give some Indigenous women a call and figure out how to amend the budget so it better reflects the law in this country. At least, that’s what a feminist Prime Minister would do.

    APTN Panel discussion on Federal Budget 2019 and what it means for Indigenous Peoples:

    https://tinyurl.com/y689zmyh

  • Bill C-91 An Act Respecting Indigenous Languages: More Hollow Reconciliation

    Bill C-91 An Act Respecting Indigenous Languages: More Hollow Reconciliation

    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.

  • Cannabis legalization ignores First Nations

    Cannabis legalization ignores First Nations

    *This article was originally published in The Lawyer’s Daily on Jan.30, 2019. For decades, federal and provincial governments, through their local, regional and national police agencies and court systems, have arrested, charged and imprisoned thousands of First Nations people for engaging in the cannabis trade. Many had hoped that Prime Minister Justin Trudeau’s stated commitment to renewing the relationship with Indigenous peoples and his desire to legalize cannabis would help address many issues, one of which being the crisis-level over-incarceration of Indigenous peoples. Despite legalization of cannabis in 2018, Trudeau’s Liberal government has not yet seen fit to provide relief for Indigenous peoples languishing in prisons for cannabis-related offences. This is disappointing on two fronts: the first being that Trudeau has not kept his promises to Indigenous peoples; and second, that the first ever female Indigenous Justice minister didn’t take steps to get Indigenous peoples out of prison. We know that the over-incarceration of Indigenous peoples is a real crisis — one that continues to grow without abatement. Despite being only five per cent of the population in Canada, they represent more than 27 per cent of those in federal prisons. Indigenous women make up a staggering 43 per cent and Indigenous youth are now over 46 per cent of admissions to youth corrections. Yet, even these statistics don’t show the whole picture. The provincial incarceration rates, especially in the Prairies, are astounding. Provincial prisons can be as high as 80 per cent Indigenous peoples and for Indigenous girls in Saskatchewan, that rate is an unbelievable 98 per cent. We also know that more than half of all drug offences in 2016 were cannabis-related (58 per cent) and the majority of the charges were for possession. To say that we have a real incarceration crisis is an understatement, but the limited cannabis legalization scheme, which does not substantively address over-incarceration of Indigenous peoples, is yet another broken promise. While a handful of First Nation businesses have been specifically “permitted” to engage in this new trade, the majority are under a very real risk of legal sanctions — both as individuals and as First Nations — who assert their jurisdiction in this area. It is a cruel colonial irony that the very same people who have been imprisoned for their role in the cannabis trade — First Nations peoples — are now largely prohibited from engaging in the trade without permission from provincial governments. Neither the federal nor provincial governments engaged in nation-to-nation dialogue with First Nations over how to best bring federal, provincial and First Nation laws into harmony in relation to cannabis. Despite the many calls from First Nations for collaboration, First Nations were left out of the legislative drafting process and any good faith attempt to provide a trilateral, good faith path forward. In May 2018, prior to the legalization of cannabis, the Standing Senate Committee on Aboriginal peoples released a report on Bill C-45 An Act Respecting Cannabis and to Amend the Controlled Drugs and Substances Act, the Criminal Code and Other Acts, which noted a real lack of “meaningful consultation” with Indigenous peoples and recommended that legalization be delayed for one year. The Standing Senate Committee recommended that Canada use the year to engage in negotiations with First Nations about tax collection and revenue sharing on reserves, recognition of the right of First Nations to enact their own legislation and funding for substance abuse and healing centres. They further recommended that no less than 20 per cent of all cannabis production licences be issued to First Nations. This would have provided sufficient time for First Nations to draft their own laws, rules and regulations and develop their own business policies and public safety protocols. While the Ministers of Health and Indigenous Services penned a letter to Senate claiming that their government “respects the jurisdiction of Indigenous communities”, Justice Canada officials previously clarified in Senate hearings that their position is that First Nations cannot enact by-laws in relation to cannabis on reserve and that provincial laws would apply. The federal government can’t have it both ways. Incredibly, Trudeau has missed yet another opportunity to engage with First Nations on a nation-to-nation basis and decided to forge ahead on cannabis legislation without properly engaging with First Nations or meaningfully considering their inherent Aboriginal and treaty rights to pass their own laws. Instead, the federal government assumes provincial jurisdiction setting the stage for the legislated exclusion of First Nations and conflict on the ground. This isn’t the first time the government of the day has blockaded First Nations from engaging in their own business and trade endeavours to support their communities. It wasn’t that long ago that the Conservative government under former Prime Minister Stephen Harper enacted Bill C-10 An Act to amend the Criminal Code (trafficking in contraband tobacco) to create the new offence of trafficking in contraband tobacco and prescribed minimum mandatory sentences for repeat offenders. It was very clear that the bill was intended to target First Nations and their long practice of growing, manufacturing and trading in tobacco despite their inherent, Aboriginal and treaty rights to do so. The RCMP defined contraband tobacco as product that is primarily manufactured on First Nations reserves. This bill effectively acted as a legal blockade attempting to criminalize First Nations for engaging in their own traditional economies — an economy not even known to Europeans prior to contact. Settler governments have long engaged in the colonization of Turtle Island through the theft of First Nations lands and resources, but also through the appropriation of their lucrative trade practices, products and routes. The criminalization of the tobacco trade for First Nations went hand in hand with the transfer of control and benefit from tobacco to settler governments. It looks like Canada is doing the same thing to First Nations with regards to the cannabis trade. https://pampalmater.com/2018/04/canadas-criminalization-of-indigenous.html While it may or may not have been grown, manufactured and traded traditionally, there is no doubt that this is the modern evolution of the right to trade as outlined in so many Supreme Court of Canada cases like the Van der Peet trilogy and the Sappier and Gray cases. First Nations are not limited to economic practices of pre-contact times or be “frozen in time.” Yet, that is exactly what seems to be happening with the cannabis trade. In fact, it looks like those that are first in line to profit from this new legal trade are the very politicians and police officers that once fought so hard to imprison First Nations for trading in tobacco and now cannabis. Those previously engaged in tobacco and drug enforcement have an unfair advantage of knowing all the confidential intelligence on the drug trade and its key players, as well as where and when to sell product and to whom. On top of this, former cops have connections all over the country, and that alone is an incredible form of advantage and means of intimidating the so-called competition. This gross injustice is now compounded by the fact that only certain businesses will be granted licences and the majority of those licences do not include First Nations or their businesses. According to the federal government’s report to Senate, there are only 5 Indigenous producers out of the 105 in Canada — a far cry from the minimum 20 per cent recommended by Senate. As the most impoverished communities in Canada, First Nations have incredible social pressures on them to find ways to provide for their communities in a legally and politically hostile context. Federal and provincial governments have created legal blockades around most First Nation traditional economies like hunting, fishing and gathering. They have left First Nations with few alternatives. If Trudeau thinks that First Nations will simply shrug their shoulders and move along to a different economic opportunity, he is sadly mistaken. Many First Nations are invested in this trade and will defend their legal right to do so with or without provincial approval. The ability of the police to enforce federal or provincial laws in this regard will be highly suspect given their former colleagues’ involvement in the trade. Would the police be upholding the law or protecting the thin blue line’s new income stream? All of this pending conflict — and there will be conflict — could have been avoided had Trudeau practised what he promised and engaged with First Nations on a nation to nation basis and respected First Nation rights. It’s never too late to act, but with an election just around the corner — it is unlikely Trudeau will rock the boat for all those former cops and Liberal politicians who now stand to make millions from cannabis. *Link to the article as originally published in The Lawyer’s Daily: https://www.thelawyersdaily.ca/articles/9968/cannabis-legalization-ignores-first-nations-pamela-palmater?category=opinion

  • The Indigenous right to say no

    The Indigenous right to say no

                                         (photo by Michelle Girouard)

    This article was originally published by The Lawyer’s Daily on October 12, 2018.

    The federal government recently announced that it will not appeal the court decision which quashed Canada’s approval of the Trans Mountain pipeline expansion. Instead, Canada will engage with the 117 impacted First Nations in a consultation process led by former Supreme Court of Canada Justice Frank Iacobucci.

    If ever there was a sign that the government was going to force this pipeline expansion through the review process, this is it. After all, federal elections are just around the corner and Liberal Prime Minister Justin Trudeau has become the face of the Trans Mountain pipeline dispute and all the broken promises that it entails.

    Being criticized from all sides — the provinces, industry, Canadians and Indigenous peoples, and now the Federal Court of Appeal — Trudeau decided to bring out the big guns: Iacobucci.

    There is little doubt that he was engaged to lead this process to ensure that the technical aspects of consultations are met, thus insulating the government from an appeal of its decision. Even the most trusting person would be hard pressed to believe that the Supreme Court of Canada (SCC) would hear an appeal about Iacobucci’s consultation process let alone consider it in a truly neutral fashion.

    Even if I am wrong about this, what kind of message does this send to First Nations who have been taking their cases to the SCC in the hopes of fair and impartial consideration for decades? Will they now wonder if their cases will be heard by justices who, after they retire will work with governments against their interests?

    Remember that conflict of interest is not only the presence of an actual conflict, but also reflects the appearance of conflict. Justice Canada describes judicial independence as the “cornerstone of the Canadian judicial system” and refers to the clear separation of government and the courts. While some might argue he is no longer a sitting justice and may be perfectly legal and ethical according to the rules of ethics of the federal government and even law societies — it still doesn’t feel right. In law school, we learned that lawyers are duty bound to uphold the honour of the legal profession while at work and in our personal lives — even after retirement.

    To my mind, Iacobucci carries with him the honour of Canada’s highest court in all his actions, even after retirement. While this may not be a legal ethic issue, it is certainly a moral one. With all due respect, joining the federal side of this pipeline dispute feels a lot like taking sides against First Nations. It feels like a betrayal.

    This is a similar story of betrayal that many First Nations feel when the RCMP takes the side of government in every single conflict between government laws and Aboriginal rights. The mandate of the RCMP is to not only prevent crimes and maintain peace and order, but also enforce laws.

    According to Canadian law, the Constitution is the highest law in the land. In theory, First Nations should be able to seek the assistance of the RCMP to protect their constitutional rights from being breached by governments or industry. Instead, the RCMP seems to always abide by the will of government and stop us from exercising our rights and/or provide physical protection and security for the extractive industry to allow them to breach our rights.

    The government is using these national institutions, the RCMP and the courts, against us to force the expansion of this pipeline. The RCMP arrested land and water defenders in B.C. and now a former SCC justice will be used to insulate Trudeau’s future approval of the pipeline expansion.

    Therein lies the real injustice of this process. Regardless of whether the new consultations are led by a former SCC justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

    Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word consent. When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with the woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

    The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

    The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the SCC would not interpret their own decisions in such an impoverished manner. To do so would render s. 35 an empty shell of a constitutional promise.

    No former SCC justice should take part in such an exercise as between Canada and First Nations. I think the honourable thing for the former justice to do would be to withdraw from the process. It might just help even the playing field in a game which is already skewed by a major imbalance of power.

    The link to the original article published by The Lawyer’s Daily on October 12, 2018

    https://www.thelawyersdaily.ca/articles/7537/the-indigenous-right-to-say-no-pamela-palmater?category=opinion

    We should also be able to exercise our right to say no to Trudeau’s proposed legislative framework that will impact our rights: https://www.youtube.com/watch?v=c7Z3579b20c&t=2s

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Killer Whales, Trans Mountain Pipeline and the Public Interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    This is the first of a two-part series.

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

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

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

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

  • The First Nations’ Agenda in the Ontario Election

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

  • 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

  • The Worst Thing That Could Happen is a First Nation Minister of AANDC

    Justin Trudeau will be sworn in as Prime Minister on November 4 and the question that seems to be dominating social media is whether or not he will appoint a First Nation person as the Minister of Aboriginal Affairs and Northern Development Canada (AANDC). Ever since contact, colonial officials sought out individual “Indians” to act on the Crown’s behalf in various contexts – as cultural and language interpreters, military scouts, and spies. In a modern context, Canadian officials have resorted to manipulating individual Chiefs to promote federal initiatives that they know run counter to our Aboriginal and treaty rights or will be met with mass resistance. This divide-and-conquer technique of pitting First Nations against First Nations has always been used to help the Crown deflect attention from the Crown’s culpability on any given issue. The worst thing that could happen for the promised nation to nation relationship is if Prime Minister Trudeau appointed a First Nation person as Minister of Aboriginal Affairs and Northern Development Canada (AANDC).

    Sometimes people misunderstand the role of Crown representatives. There is no doubt that diversity on cultural, gender, and regional fronts  helps the government be more representative of the public, better inform policy and decision-making, and make for a more productive and effective government. The research shows that this is true in both matters of government and business. However, outside of considerations of governance, Crown representatives are always Crown representatives. They are there to protect the interests of the Crown. They may have been elected by a specific constituency and can represent them politically or advocate on their behalf, but Cabinet Ministers are “Ministers of the Crown”. Therefore, even the Minister of AANDC is there to represent – first and foremost – the interests of the Crown – whether the person is First Nation or not.

    That said, it is true that the Supreme Court of Canada has added to the Crown’s obligations to First Nations in specific circumstances. Some of these special considerations include fiduciary obligations attached to the honour of the Crown, which gets expressed in a variety of ways from having to act in good faith, consulting with First Nations, and honouring commitments. However, it must be remembered that Members of Parliament owe their duty to “the system”, i.e., the Constitution, the rule of law, and all regulations imposed by Parliamentarians. Yet it is this “system” which has been found by numerous commissions, reports and investigations to be racist, exclusionary, and oppressive to First Nations. Thus, the very act of being a Cabinet Minister, therefore, sets him/her directly against First Nation interests. This is evident in the hundreds of court cases which name the Minister of Aboriginal Affairs and Canada against First Nations. In every single case, Canada litigates AGAINST First Nations. Changing the face of the Minister won’t change this fact nor does it change the racist system itself, which is the underlying problem. The Indian Act and thousands of federal laws, regulations and policies are still in place. It just looks less offensive – but putting a nicer face on it doesn’t make it any better and can actually cause more harm.

    If Trudeau is truly serious about a Nation to Nation relationship with First Nations, then he needs to come to the table in an honest way. Canada doesn’t need to portray its Cabinet Ministers to be anything other than what they are: they represent the Crown’s interests, not ours. Let’s have true nation to nation meetings with representatives of the Crown and move forward from there. It will be up to the First Nation side to how they wish to negotiate as Nations – either as larger Nations, i.e. Mi’kmaw Nation, Haudenosaunee, or Maliseet Nation; or whether they wish to represent their collective nation-based interests by way of region, treaty or otherwise. Let First Nations do the work of their Nations and Canada focus on how it will move forward in a more just way – beyond the lethal status quo.

    While we heard a great deal from the AFN about Nation to Nation relationships, their political actions betrayed them. Secret meetings between the National Chief and the Minister of AANDC do not equate to a nation to nation relationship. In fact, secret meetings, surprise announcements about deals with Canada, and a complete failure to call Canada out for its destructive, assimilatory agenda, was part of the AFN’s undoing. But it had to happen as it is the grassroots people who are the true governments of their Nations. The people simply took their power back and told their leaders that sovereignty starts with each Nation – not with a national political organization. Canada would never allow a political corporation to represent its interests in nation-based issues – why would we? Thanks to Idle No More movement, our grassroots people have empowered themselves to take a stand against all who threaten our sovereignties, jurisdictions, lands, cultures and identities. It doesn’t look like our people are willing to let things go back to the way they were. Trudeau will have to find a way to deal with this new reality if he expects to fully realize a nation to nation relationship.

    To appoint a First Nation Minister of Aboriginal Affairs will divide our Nations, and set us up to be for or against the “First Nations” Minister – a situation none of us want to be in. It will also act as a media distraction for more important issues, like murdered and missing Indigenous women or children in care. It will also unfairly make this Minister and this Minister alone, the target of all anger, criticism, and blame when things go wrong in the relationship. It would make Canadians lose sight that the fault is not in the Minister, but in the system and the entire Cabinet which keeps this unjust system in place.

    It’s time for the Crown to act honourably and come to the table in an honest and open way. Putting a First Nation Member of Parliament as Minister will not help us move back to nation to nation relations, but distract from that goal. Real change requires a radical departure from the old divide-and-conquer tactics of the past. In the end, Trudeau, his Cabinet, and the entire federal government must realize that the hard work that lies ahead to make amends for the harms done to First Nations; the committed effort needed to address this racist and oppressive system; and the sacrifices needed to restore justice in Canada is a burden that must be borne by Canada, and Canada alone. If we have learned anything from the Truth and Reconciliation Commission, it is that First Nations have carried the burden of injustice for far too long and at too great a price.