Warrior Life Studios

Pam Palmater

Tag: UNDRIP

  • RCMP Invasion of Wet’suwet’en Nation territory breaches Canada’s “rule of law”

    RCMP invades Wet’suwet’en territory. Photo by Amber Bracken; Jan. 7, 2019

    While Prime Minister Justin Trudeau makes flowery public speeches about respecting the rights of Indigenous peoples and reassures the international community that there is no relationship more important that the one with Indigenous peoples, Canada invaded sovereign Wet’suwet’en Nation territory. When questioned about this aggressive move at a Liberal fundraiser in Kamloops, British Columbia, he responded: “No, obviously, it’s not an ideal situation… But at the same time, we’re also a country of the rule of law.” Canada’s invasion of Wet’suwet’en territory through its national police force, the Royal Canadian Mounted Police (RCMP), is an example of the blatant violation of the rule of law in favour of corporate interests. Canada has consistently failed to follow the rule of law when it comes to Indigenous peoples, and the violent arrests of the Wet’suwet’en people at the Gidimt’en checkpoint, set up in support of the Unist’ot’en homestead, is a glaring example of Canada’s lawlessness.

    The people of Wet’suwet’en Nation, as represented by their traditional government, have long asserted their sovereign jurisdiction over their Nation’s lands which span about 22,000 square kilometres in northwest British Columbia. These lands have never been ceded, nor have their rights to use, manage, protect or govern these lands been extinguished in any way. The Nation has never signed any treaty or constitutional agreement that has specifically surrendered their sovereignty as a Nation. While there have been many federal and provincial laws that have interfered with First Nation laws in general, there has never been an explicit extinguishment of Wet’suwet’en laws and jurisdiction over their Nation’s sovereign territory. Their land rights are not only recognized in Canada’s Constitution Act, 1982, but they are also protected in numerous international treaties and declarations, like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In other words, there was no legal basis for Canada to invade their territory.

    The Wet’suwet’en Nation is a governing Nation that has existed since time immemorial. They are made up of five clans: Gil_seyhu (Big Frog), Laksilyu (Small Frog), Gitdumden (Wolf/Bear), Laksamshu (Fireweed), and Tsayu (Beaver). The Wet’suwet’en are organized through a system of hereditary leaders and have a complex system of governance. While Canada did force the chief and council system on First Nations through the Indian Act, it was not successful in extinguishing or displacing the Nation’s traditional government. This is evidenced in the fact that when the Wet’suwet’en Nation decided to assert their land rights in Canada’s courts, they did so as a Nation, through their traditional government as represented by their hereditary leaders.

    In Delgamuuwk v. British Columbia (1997), the Wet’suwet’en, together with the Gitksan, asserted title to their lands. While the issue was ordered back to trial, the Supreme Court of Canada (SCC) made significant findings about the nature of Aboriginal title being a right to the land itself. The SCC found that the land is held communally, by all members of the Aboriginal Nation for their “exclusive use and occupation,” and that this right to land was protected in “pre-existing systems of aboriginal law” and Canada’s common law, even before the protection of Aboriginal rights in section 35 of the 1982 Constitution Act. No laws have since extinguished Wet’suwet’en rights with regards to their territory. Also significant is the fact that according to SCC jurisprudence, Aboriginal title contains an inherent limitation, in that title lands can’t be used in a way that is “irreconcilable” with the nature of the Nation’s attachment to those lands. The SCC explained it this way: “Implicit in the protection of historic patterns of occupation is a recognition of the importance of continuity of the relationship of an aboriginal community to its land over time.”

    What can we take from this case? Well, according to Canadian law, we know that it is the “Aboriginal Nation,” in this instance the Wet’suwet’en Nation, that has the legal ownership of their traditional territories, not an individual band. So it matters little that some of the bands may have signed an agreement with the pipeline company, especially if they did so in relation to territory off the reserve and without the free, prior and informed consent of the people. We also know that the lands are not held by individuals, but by the whole Nation. Thus any decisions in relation to those lands rest with the Nation. We also know that the purpose of section 35 is to protect the many ways in which Aboriginal Nations enjoy their title lands and these Nations can’t use them in ways which are inconsistent with those uses. The SCC specifically stated that if Aboriginal title lands are used as hunting grounds, then the land can’t be used in a way that destroys its value – as in strip mining.

    In the present case, not only were the Wet’suwet’en people using and occupying their lands, they were also protecting their lands from destruction by the Coastal GasLink pipeline slated to go through their territory. If Aboriginal Nations can’t risk destroying their title lands for extractive projects, certainly corporations should not be permitted to do so. It’s also clear that despite the media reports, this was never about a protest. This was always about occupying and protecting their lands – something they have the legal right to do. This is where the so-called “rule of law” comes into play. The rule of law is touted by Canada every time it actually wants to break the law; according to the United Security Council, rule of law means:

    All persons, institutions and entities, public and private … are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

    It becomes very clear then, that Canada has a long history of breaching the rule of law when it comes to First Nations. In the Wet’suwet’en case, Canada has prioritized the extraction interests of a corporation over the constitutionally protected rights of a sovereign Aboriginal Nation. This is a clear violation of the law. The Wet’suwet’en right to occupy and protect their territory is an internationally recognized human rights norm, now reflected in UNDRIP. Article 8 provides the right of Indigenous peoples not to be subjected to the destruction of their culture – something that would naturally come from destruction of their lands and waters with a pipeline.

    Article 10 provides that Indigenous peoples will not be forcibly removed from their lands or territories – as was done by the RCMP who arrested and removed Wet’suwet’en people from their own lands. Articles 25 and 26 specifically protect the rights of Indigenous peoples to own, use and control their traditional lands, waters, coastal seas and resources and further protects their rights to “uphold their responsibilities to their future generations in this regard.”

    Not only has Canada committed to implement UNDRIP into law, it is legally bound by many other international human rights treaties that it has ratified. While UNDRIP may not yet be law in Canada, it represents the minimum international legal norms for recognizing the core human rights of Indigenous peoples – something that Canada’s rule of law requires. Canada has also issued a directive on how it should engage with Indigenous peoples on litigation relating to their rights, which Canada claims is based on reconciliation with Indigenous peoples and respect for their legal rights. Former Minister of Justice Jody Wilson-Raybould made the bold claim that although she was just releasing this directive in January 2019, Canada has been using these rules for the last two years. It is important to note that this directive states that: “Aboriginal rights do not require a court declaration or an agreement in order to be recognized.” This is something the SCC has confirmed many times in its jurisprudence on the duty to consult, accommodate and get consent.

    Yet, we know that Canada has not only failed to abide by its own litigation directive, but it has blatantly violated Wet’suwet’en laws, Canadian laws, international laws and its own purported commitment to the rule of law.

    When Canada sent the RCMP into sovereign Wet’suwet’en Nation territory to destroy their check points and violently arrest and remove Wet’suwet’en people from their own lands, it became lawless – an outlaw state. It also violated its own litigation directive when the RCMP issued a statement saying that since there has been no court case declaring Aboriginal title, the RCMP were justified in their actions. In denying the Wet’suwet’en their constitutionally protected legal right to enjoy their title lands, Canada has prioritized the private, economic interests of a corporation – Coastal GasLink Pipeline – over the rule of law. As explained by the Wet’suwet’en:

    The Unist’ot’en homestead is not a protest or demonstration. Our clan is occupying and using our traditional territory as it has for centuries…. Our homestead is a peaceful expression of our connection to our territory. It is also an example of the continuous use and occupation of our territory by our clan.

    In this case, the laws of Canada were neither equally enforced, nor compliant with international human rights standards. Canada is not a country that follows the rule of law. Canada makes and breaks laws to suit its own economic and political interests, which run counter to those of Indigenous peoples. It is time to be honest about it, and call out Canada as an outlaw, and take action to support the Wet’suwet’en Nation, who have occupied their lands since time immemorial.

    This article was originally published in Canadian Dimension Magazine on April 24, 2019:

    https://canadiandimension.com/articles/view/rcmp-invasion-of-wetsuweten-nation-territory-breaches-canadas-rule-of-law

  • 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.

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

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

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

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

    PLATFORM PROMISES

    NDP

    LIBERAL

    CONSERVATIVES

    Gov’mt to Gov’mt Relationship

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

    Yes, already have an accord

    L

    Land transfers back to First Nations

    L

    ? Will try to resolve land claims w FNs & Canada

    L

    Resource revenue sharing

    Yes, will share revenue w FNs,

    will give ON’s mining taxes to FNs

    ($218M over 5yrs)

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

    L

    Implement TRC

    Calls to Action

    Yes, will start w action items under prov jurisdiction

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

    L

    Contribute to First Nation Health

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

    FNs will decide health funding priorities, ex.

    expanded suicide prevention, more doctor time on reserve,

    more health care workers,

    more FN midwives,

    increase FN role in frontline care

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

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

    L

    Address First Nation Hydro Costs

    Yes, FN exempt from Hydro costs,

    FN ownership stake in Hydro

    Reduce Hydro costs for remote communities by up to 50%

    L

    Safe Drinking Water

    Will address water infrastructure on reserve, then bill Ottawa

    L

    L

    Childcare on Reserve

    L

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

    4500 new spaces on reserve

    $290M to double childcare spaces on reserve,

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

    L

    First Nation Education

    L

    L

    L

    Jordan’s Principle

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

    L

    L

    First Nation Policing

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

    Opt into provincial policing framework & create FN Police Service Boards

    L

    MMIWG

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

     increase resources to solve cold cases

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

    Address human trafficking & support survivors*

    L

    Address problematic Far North Act

    Yes, will replace it

    L

    L

    Jobs & Training & Economic development

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

    Partner w FNs to develop green energy,

    will work w FNs to develop minimum targets for FN procurement

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

    Expanded role for institutes

    L

    First Nations/Indigenous  Institutes

    Yes, $28M in Friendship Centre repairs,

    $91M over 6yrs to 28 Centres,

    $41M programming for children & youth

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

    L

    First Nation Housing

    L

    Yes, will increase funds for Indigenous Supportive Housing Program

    L

    Indigenous Languages & Culture

    L

    Yes, will support Indigenous languages,

    Youth cultural camps, will support Indigenous culture

    L

    Social Assistance & Income Security

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

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

    L

    North, Remote Communities

    Will replace Far North Act,

    $1B to get Ring of Fire moving now,

    Collaborate w FNs to get infrastructure projects moving

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

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

    gas price watchdog,

    invest more northern hospitals, schools, transportation,

    $500M/3yrs broadband,

    Increase access to mental health for Indigenous youth

    L

    First Nation

    Treaty Rights

    Ensure treaty rights respected

    L

    L

    First Nation Education

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

    L

    L

    UNDRIP into provincial law

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

    L

    L

    Address Crisis in Foster Care

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

    No more solitary confinement,

    Mediation not courts,

    Goal = 0 kids in care

    L

    L

    Justice System

    Ban policing carding,

    Police training in human rights & racism

    Yes, will create bicultural justice centres,

    Culturally responsive supports in bail system,

    Improve FN repres on juries

    L

    Anti-Racism

    Ban policing carding,

    Police training in human rights & racism

    Data collection & analysis w partners,

    Increase diversity in gov’mt, boards, commissions,

    anti-racism education & training

    L

    Environment

    Expand parks & create new ones in consultation w FNs,

    Will clean up Wabigoon Mercury,

    Fund mercury treatment centre,

     Additional $12M for retroactive payments for mercury disability

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

    $85M Grassy Narrows remediation

    L

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

  • National Inquiry or National Disgrace? Trudeau’s Next Step is Critical

    Before being elected Prime Minister, Justin Trudeau told Canadians and First Nations that there was no more important relationship to him than the one with Indigenous peoples. To this end, he promised to engage with First Nations on a Nation-to-Nation basis where free, informed and prior consent means a veto. Once elected, he reiterated his promises:

    (1)   Engage in a Nation-to-Nation relationship with First Nations;

    (2)   Lift the 2% cap in First Nations education;

    (3)   Review and repeal all the legislation former Prime Minister Harper imposed on First Nations without their consent;

    (4)   Implement all 94 Calls to Action from the Truth and Reconciliation Report, which includes implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and

    (5)   Complete a national inquiry on murdered and missing Indigenous women and girls.

    https://www.liberal.ca/realchange/justin-trudeau-at-the-assembly-of-first-nations-36th-annual-general-assembly/

    True to his word, Trudeau’s first order of business was to mandate Indian Affairs Minister Carolyn Bennett, Justice Minister Jodi Wilson-Raybould and Status of Women Minister Patti Hajdu to develop an approach and mandate for an inquiry into murdered and missing Indigenous women and girls to find justice for them. By mid-December 2015, the first engagement sessions were held with the families of murdered and missing Indigenous women and girls, Indigenous women and their representative organizations, Indigenous leaders, and human rights experts to determine the scope and process of the inquiry. While these meetings were ongoing, Canada accepted written submissions and also engaged in an online survey regarding the scope and process for the inquiry.

    http://www.aadnc-aandc.gc.ca/eng/1448638260896/1448638282066

    It is important to note that both the pre-inquiry engagement process and the inquiry itself were to be done within a new political context – one which focused on openness. Trudeau promised to “bring new leadership and a new tone to Ottawa” and “set a higher bar for openness and transparency in government”. In fact, he went so far as to say that “Government and its information should be open by default.” His reasoning for doing so was to ensure that Canadians can trust their government and that government remains focused on the people it is meant to serve. All of these promises come straight from the Ministerial mandate letters.

    http://pm.gc.ca/eng/ministerial-mandate-letters

    As promised, the government posted the dates and locations of meetings; posted overviews of each session online; and issued a summary report of what they had heard once the pre-inquiry sessions had ended in March 2015. Out of respect for what seemed to be a mostly positive process, most leaders and advocates held back their commentary in hopes that the next stage would soon follow.

    In the months which followed, none of the mandated Ministers reported on what was happening with regard to the inquiry. Some of us were wondering when they would establish a table to begin jointly drafting the Terms of Reference based on the input from these sessions and begin the process of jointly choosing the commissioners for the inquiry. Such a table was never established. Instead, we only found out that the Terms of Reference were in fact being unilaterally drafted by federal and provincial governments when they were leaked to the press. Shortly thereafter, the names of the Commissioners were also leaked. This is when it became very clear that the government reverted to its old secretive ways and had no real intention of working on a Nation-to-Nation basis with First Nations. It was clear Trudeau’s commitment to openness, transparency and working in partnership with Indigenous peoples had ended.

    http://aptn.ca/news/2016/07/20/leaked-document-appears-to-give-broad-powers-to-mmiw-national-inquiry/

    http://www.theglobeandmail.com/news/national/missing-murdered-indigenous-women-inquiry-unlikely-to-have-mandate-to-review-police-conduct/article31020957/

    Despite Trudeau’s personal promise made at the Chiefs in Assembly that the “process by which it [inquiry] is established will be fully inclusive”, numerous requests to be a part of the drafting process, and be provided direct updates and briefings from the INAC Minister’s office, were either met with silence or commitments cancelled at the last minute. It was obvious that the government was playing politics with one of the most urgent issues ever to face Canada – the very lives of Indigenous women and girls. The renewed Nation-to-Nation relationship with Indigenous peoples was supposed to be based on “recognition of rights, respect, co-operation and partnership”. Trudeau had mandated these and other Ministers to work to gain the trust of Indigenous peoples and Canadians by demonstrating “honesty and willingness to listen”. Clearly, these Ministers have lost their way in regards to the national inquiry.

    Being completely excluded from the drafting of the Terms of Reference and choosing the Commissioners was bad enough, but to face the wall of silence and exclusion made things much worse. Some of the families started to lose faith; Indigenous leaders were forced to speak out; and some Indigenous and allied advocates were pushed to raise their concerns publicly, since the direct route had been cut off. To make matters worse, the content of the draft Terms of Reference that were shared by the media, was a real slap in the face to many of those who participated in the engagement sessions, who made written submissions and/or who have tried to work very hard with various Ministers’ offices. The Terms of Reference did not reflect what was recommended by various United Nations human rights bodies, human rights organizations, legal experts, Indigenous leaders, Indigenous women’s organizations, Indigenous experts, or by the families.

    http://www.theglobeandmail.com/news/national/families-feel-shut-out-after-draft-mandate-of-missing-murder-inquiry-leaked/article31071602/

    Protesters accuse Manitoba government of stalling MMIW inquiry

    http://www.cbc.ca/news/canada/british-columbia/terms-of-reference-mmiw-inquiry-lack-teeth-1.3689319

    While there are many concerns with the draft Terms of Reference that were leaked by the media, the following is a brief overview of the main concerns as expressed by a variety of Indigenous women, families, leaders, experts and human rights allies:

    (1)   Police: There is no specific mandate to investigate police conduct, specifically racism & sexualized violence within police forces towards Indigenous women & girls, their families and First Nations;

    (2)   Evidence: There is no specific authorization for the inquiry to compel federal, provincial, and territorial documents, especially from police forces;

    (3)   Human Rights: The inquiry is not structured within a human rights framework which is a major weakness given Canada’s failure to protect the domestic and international human rights of Indigenous women and girls has been cited as a root cause of the crisis;

    (4)   Jurisdiction: There is no specific authority for the national inquiry to deal with matters  that some provinces may feel are within their exclusive jurisdiction, like the critical issue of child and family services. Similarly, there is no explicit legal clarity around cross-jurisdictional sharing of information that will be required in the inquiry.

    (5)   Participant supports: There is no specific provision to provide protection from police for witnesses who bring forward information about police abuse. There are also no specific supports for travel, legal counsel or language translation.

    https://web.archive.org/web/20210228122859/http://www.amnesty.ca/news/statement-terms-reference-national-inquiry-missing-and-murdered-indigenous-women-and-girls

    My primary concern is related to the lack of specificity around racialized and sexualized police violence committed upon Indigenous women and girls and how police racism and misogyny impacts their decisions to investigate murders and disappearances or not, and the quality of those investigations.

    As it stands now, there is no specific mandate to investigate failures by police forces to investigate murdered & missing Indigenous women & girls including both solved and unsolved cases, misnamed cases (murders deemed accidents), failures to file reports, failures to protect Indigenous women & girls; police facilitation (direct or indirect) of child prostitution and human trafficking, and the treatment of families and First Nations by police.

    http://www.telesurtv.net/english/opinion/Ontario-Policing-Gang-Rapes-Murders-and-Child-Porn–20160201-0008.html

    This is made all the more problematic by the fact that the draft Terms of Reference specifically directs the Commissioners NOT to investigate anything that could interfere with ongoing investigations – which would include cold cases not touched for over 20 years. Even more shocking is that Commissioners are instructed to send Indigenous families back to the same police forces that abused them, mistreated them or discriminated against them in the first place. Offering “navigators” akin to native court workers to help families deal with police processes is no replacement for a fulsome investigation of police failures and abuses, or the elimination of discriminatory police processes.

     http://www.cbc.ca/news/canada/manitoba/mmiw-inquiry-police-steven-zhou-1.3690860

    Even if one could argue that the current Terms of Reference does not need a specific mandate to review legislation, policies and oversight processes relating to policing and the justice system, the commissioners’ inability to compel police, their notes, or other police-held evidence under current laws and policies would make this implied power useless. These laws have resulted in a high impunity rate for police. If police officers who murdered unarmed racialized men in front of witnesses and on video can’t be compelled to cooperate with their own legislated Special Investigations Unit or share their notes and other evidence, what makes Trudeau think that some non-specific wording in the Terms of Reference will be able to do so? Canada is once again asking us to have faith in justice processes that protect police and harm Indigenous peoples. That is not what trust and partnership is about.

    http://www.cbc.ca/news/canada/ottawa/abdirahman-abdi-siu-investigation-video-evidence-1.3700715

    But Trudeau doesn’t have to take my word for it. Minister Bennett’s own report on the engagement sessions noted that not only should the inquiry be done in a human rights framework, but that the inquiry must address law enforcement – over and above systemic issues within the justice system. Families and experts from all over Canada said they want police accountability, independent reviews of cases, analysis of police racialized and sexualized conduct towards Indigenous women and girls, and the sexual exploitations of Indigenous women and girls.

    http://www.aadnc-aandc.gc.ca/eng/1463677554486/1463677615622

    Trudeau himself promised that the national inquiry would investigate “uncomfortable truths” and seek concrete actions related specifically to law enforcement. While the uncomfortable truth about police racism and sexualized violence, abuse and corruption has been in the public eye lately through media exposing the extensive nature of police abuses – Indigenous peoples have long known about this problem. We need this national inquiry to shine a light on this dark and uncomfortable truth for all to see, so we can put an end to it.

    Prime Minister Trudeau, you made a promise to us. It’s up to you to force your Ministers to fulfill that promise. Convene a table this week so that Indigenous peoples can jointly draft the Terms of Reference and pick the Commissioners. Nothing less will live up to your Nation-to-Nation commitment. It’s never too late.

    Additional resources:

    http://www.telesurtv.net/english/opinion/Systemic-Sexism-in-Canada-Could-Derail-National-Inquiry-20160706-0021.html

     http://www.telesurtv.net/english/opinion/How-Canada-Should-Investigate-Violence-Against-Indigenous-Women-20160307-0016.html

  • National Inquiry or National Disgrace? Trudeau’s Next Step is Critical

    Before being elected Prime Minister, Justin Trudeau told Canadians and First Nations that there was no more important relationship to him than the one with Indigenous peoples. To this end, he promised to engage with First Nations on a Nation-to-Nation basis where free, informed and prior consent means a veto. Once elected, he reiterated his promises:

    (1)   Engage in a Nation-to-Nation relationship with First Nations;

    (2)   Lift the 2% cap in First Nations education;

    (3)   Review and repeal all the legislation former Prime Minister Harper imposed on First Nations without their consent;

    (4)   Implement all 94 Calls to Action from the Truth and Reconciliation Report, which includes implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and

    (5)   Complete a national inquiry on murdered and missing Indigenous women and girls.

    https://www.liberal.ca/realchange/justin-trudeau-at-the-assembly-of-first-nations-36th-annual-general-assembly/

    True to his word, Trudeau’s first order of business was to mandate Indian Affairs Minister Carolyn Bennett, Justice Minister Jodi Wilson-Raybould and Status of Women Minister Patti Hajdu to develop an approach and mandate for an inquiry into murdered and missing Indigenous women and girls to find justice for them. By mid-December 2015, the first engagement sessions were held with the families of murdered and missing Indigenous women and girls, Indigenous women and their representative organizations, Indigenous leaders, and human rights experts to determine the scope and process of the inquiry. While these meetings were ongoing, Canada accepted written submissions and also engaged in an online survey regarding the scope and process for the inquiry.

    http://www.aadnc-aandc.gc.ca/eng/1448638260896/1448638282066

    It is important to note that both the pre-inquiry engagement process and the inquiry itself were to be done within a new political context – one which focused on openness. Trudeau promised to “bring new leadership and a new tone to Ottawa” and “set a higher bar for openness and transparency in government”. In fact, he went so far as to say that “Government and its information should be open by default.” His reasoning for doing so was to ensure that Canadians can trust their government and that government remains focused on the people it is meant to serve. All of these promises come straight from the Ministerial mandate letters.

    http://pm.gc.ca/eng/ministerial-mandate-letters

    As promised, the government posted the dates and locations of meetings; posted overviews of each session online; and issued a summary report of what they had heard once the pre-inquiry sessions had ended in March 2015. Out of respect for what seemed to be a mostly positive process, most leaders and advocates held back their commentary in hopes that the next stage would soon follow.

    In the months which followed, none of the mandated Ministers reported on what was happening with regard to the inquiry. Some of us were wondering when they would establish a table to begin jointly drafting the Terms of Reference based on the input from these sessions and begin the process of jointly choosing the commissioners for the inquiry. Such a table was never established. Instead, we only found out that the Terms of Reference were in fact being unilaterally drafted by federal and provincial governments when they were leaked to the press. Shortly thereafter, the names of the Commissioners were also leaked. This is when it became very clear that the government reverted to its old secretive ways and had no real intention of working on a Nation-to-Nation basis with First Nations. It was clear Trudeau’s commitment to openness, transparency and working in partnership with Indigenous peoples had ended.

    http://aptn.ca/news/2016/07/20/leaked-document-appears-to-give-broad-powers-to-mmiw-national-inquiry/

    http://www.theglobeandmail.com/news/national/missing-murdered-indigenous-women-inquiry-unlikely-to-have-mandate-to-review-police-conduct/article31020957/

    Despite Trudeau’s personal promise made at the Chiefs in Assembly that the “process by which it [inquiry] is established will be fully inclusive”, numerous requests to be a part of the drafting process, and be provided direct updates and briefings from the INAC Minister’s office, were either met with silence or commitments cancelled at the last minute. It was obvious that the government was playing politics with one of the most urgent issues ever to face Canada – the very lives of Indigenous women and girls. The renewed Nation-to-Nation relationship with Indigenous peoples was supposed to be based on “recognition of rights, respect, co-operation and partnership”. Trudeau had mandated these and other Ministers to work to gain the trust of Indigenous peoples and Canadians by demonstrating “honesty and willingness to listen”. Clearly, these Ministers have lost their way in regards to the national inquiry.

    Being completely excluded from the drafting of the Terms of Reference and choosing the Commissioners was bad enough, but to face the wall of silence and exclusion made things much worse. Some of the families started to lose faith; Indigenous leaders were forced to speak out; and some Indigenous and allied advocates were pushed to raise their concerns publicly, since the direct route had been cut off. To make matters worse, the content of the draft Terms of Reference that were shared by the media, was a real slap in the face to many of those who participated in the engagement sessions, who made written submissions and/or who have tried to work very hard with various Ministers’ offices. The Terms of Reference did not reflect what was recommended by various United Nations human rights bodies, human rights organizations, legal experts, Indigenous leaders, Indigenous women’s organizations, Indigenous experts, or by the families.

    http://www.theglobeandmail.com/news/national/families-feel-shut-out-after-draft-mandate-of-missing-murder-inquiry-leaked/article31071602/

    https://warriorpublications.wordpress.com/2016/07/27/protesters-accuse-manitoba-government-of-stalling-mmiw-inquiry/

    http://www.cbc.ca/news/canada/british-columbia/terms-of-reference-mmiw-inquiry-lack-teeth-1.3689319

    While there are many concerns with the draft Terms of Reference that were leaked by the media, the following is a brief overview of the main concerns as expressed by a variety of Indigenous women, families, leaders, experts and human rights allies:

    (1)   Police: There is no specific mandate to investigate police conduct, specifically racism & sexualized violence within police forces towards Indigenous women & girls, their families and First Nations;

    (2)   Evidence: There is no specific authorization for the inquiry to compel federal, provincial, and territorial documents, especially from police forces;

    (3)   Human Rights: The inquiry is not structured within a human rights framework which is a major weakness given Canada’s failure to protect the domestic and international human rights of Indigenous women and girls has been cited as a root cause of the crisis;

    (4)   Jurisdiction: There is no specific authority for the national inquiry to deal with matters  that some provinces may feel are within their exclusive jurisdiction, like the critical issue of child and family services. Similarly, there is no explicit legal clarity around cross-jurisdictional sharing of information that will be required in the inquiry.

    (5)   Participant supports: There is no specific provision to provide protection from police for witnesses who bring forward information about police abuse. There are also no specific supports for travel, legal counsel or language translation.

    http://www.amnesty.ca/news/statement-terms-reference-national-inquiry-missing-and-murdered-indigenous-women-and-girls

    My primary concern is related to the lack of specificity around racialized and sexualized police violence committed upon Indigenous women and girls and how police racism and misogyny impacts their decisions to investigate murders and disappearances or not, and the quality of those investigations.

    As it stands now, there is no specific mandate to investigate failures by police forces to investigate murdered & missing Indigenous women & girls including both solved and unsolved cases, misnamed cases (murders deemed accidents), failures to file reports, failures to protect Indigenous women & girls; police facilitation (direct or indirect) of child prostitution and human trafficking, and the treatment of families and First Nations by police.

    http://www.telesurtv.net/english/opinion/Ontario-Policing-Gang-Rapes-Murders-and-Child-Porn–20160201-0008.html

    This is made all the more problematic by the fact that the draft Terms of Reference specifically directs the Commissioners NOT to investigate anything that could interfere with ongoing investigations – which would include cold cases not touched for over 20 years. Even more shocking is that Commissioners are instructed to send Indigenous families back to the same police forces that abused them, mistreated them or discriminated against them in the first place. Offering “navigators” akin to native court workers to help families deal with police processes is no replacement for a fulsome investigation of police failures and abuses, or the elimination of discriminatory police processes.

     http://www.cbc.ca/news/canada/manitoba/mmiw-inquiry-police-steven-zhou-1.3690860

    Even if one could argue that the current Terms of Reference does not need a specific mandate to review legislation, policies and oversight processes relating to policing and the justice system, the commissioners’ inability to compel police, their notes, or other police-held evidence under current laws and policies would make this implied power useless. These laws have resulted in a high impunity rate for police. If police officers who murdered unarmed racialized men in front of witnesses and on video can’t be compelled to cooperate with their own legislated Special Investigations Unit or share their notes and other evidence, what makes Trudeau think that some non-specific wording in the Terms of Reference will be able to do so? Canada is once again asking us to have faith in justice processes that protect police and harm Indigenous peoples. That is not what trust and partnership is about.

    http://www.cbc.ca/news/canada/ottawa/abdirahman-abdi-siu-investigation-video-evidence-1.3700715

    But Trudeau doesn’t have to take my word for it. Minister Bennett’s own report on the engagement sessions noted that not only should the inquiry be done in a human rights framework, but that the inquiry must address law enforcement – over and above systemic issues within the justice system. Families and experts from all over Canada said they want police accountability, independent reviews of cases, analysis of police racialized and sexualized conduct towards Indigenous women and girls, and the sexual exploitations of Indigenous women and girls.

    http://www.aadnc-aandc.gc.ca/eng/1463677554486/1463677615622

    Trudeau himself promised that the national inquiry would investigate “uncomfortable truths” and seek concrete actions related specifically to law enforcement. While the uncomfortable truth about police racism and sexualized violence, abuse and corruption has been in the public eye lately through media exposing the extensive nature of police abuses – Indigenous peoples have long known about this problem. We need this national inquiry to shine a light on this dark and uncomfortable truth for all to see, so we can put an end to it.

    Prime Minister Trudeau, you made a promise to us. It’s up to you to force your Ministers to fulfill that promise. Convene a table this week so that Indigenous peoples can jointly draft the Terms of Reference and pick the Commissioners. Nothing less with live up to your Nation-to-Nation commitment. It’s never too late.

    Additional resources:

    http://www.telesurtv.net/english/opinion/Systemic-Sexism-in-Canada-Could-Derail-National-Inquiry-20160706-0021.html

     http://www.telesurtv.net/english/opinion/How-Canada-Should-Investigate-Violence-Against-Indigenous-Women-20160307-0016.html

     

     

     

  • PM Trudeau’s Nation to Nation Relationship Disppeared with Empty Budget Promises

    Prime Minister Justin Trudeau won the hearts of many Canadians by finally getting rid of Stephen Harper and his decade of oppression, violation of civil rights and vilification of First Nations. Most breathed a sigh of relief on October 20th, 2015 when newly elected Trudeau talked about changing everything in Canada. He gave moving speeches about Canada’s shameful history with Indigenous peoples and committed to implementing all the calls to action from the Truth and Reconciliation Commission (TRC). Trudeau promised to start this process by implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)  and respecting the right of First Nations to say no to development on their territories. Most significant were his promises to renew the nation to nation relationship between Canada and First Nations which would be guided by the spirit and intent of treaties and that respected constitutionally-protected Aboriginal and treaty rights, inherent rights and First Nation jurisdictions. Today’s budget saw these promises evaporate into thin air only to be replaced by an under-funded program and service agenda.

    Today is a very difficult day for many Canadians. They are being asked to celebrate a budget which is being promoted as “historic” not just by Trudeau and the majority of journalists and commentators in main stream media, but even by the Assembly of First Nations (AFN) National Chief Perry Bellegarde. Canadians are faced with two major obstacles to understanding this budget: (1) trying to figure out which numbers are accurate and (2) assessing those numbers in their proper context. First, it’s important to note that Trudeau’s budget plays a shell game on the actual funding commitment during his 4 year (now 3.5 year) mandate. As we all know, monies promised for future mandates are not monies at all. This budget promised $8.4 billion to First Nations, but is in fact, less than $5.3 billion.

    ITEM

    BUDGET 2016

    ACTUAL $

    (within mandate)

    BUDGET vs ACTUAL

    TOTAL

     

    $8.4B

    $5.3B

    -$3.10B

    First Nation Education

    $2.6B

    $1.15B

    -$1.45B

    FN   Infrastructure

    $3.5B

    $2.44B

    -$1.06B

    Other   Programs

    $1.1B

    $706M

    -$705M

    So, in actual fact, Trudeau is only offering $5.3 billion in the next 3 budget years. The $2.6 billion he promised First Nations is really only $1.15B. He failed to deliver on his own election promise to First Nations. Now, he made sure to blame it on the Conservatives prior to the budget being released, but the failure is ultimately his. Still, without the proper context, many Canadians may think that billions of dollars is a lot of money. The chart below takes only a few examples and shows just how abysmally small this “historic” budget is in reality.

    ITEM

    NEED

    BUDGET

    NEED vs Budget

    FN Housing

    on Reserve

    $20B

    $550M

    -$19.45B

    FN Water

    & sewer

    $18B

    $618M

    -$15.4B

    FN Education

    k-12

    $20B

    $1.15B

    -$18.85B

    Indigenous

    Languages

    $8B

    $5M

    -$7.95B

    National Inquiry

    MMIW

    $100M

    $40M

    -$60M

    Where did I come with the $20 billion for First Nation housing? Indigenous and Northern Affairs Canada (INAC)’s own internal report noted that the housing needs for the 63 First Nations in Manitoba would cost $2 billion. Since Manitoba First Nations represent only 10% of all First Nations, the national cost to address the housing crisis would be closer to $20 billion give or take a few dollars. In First Nation education, the 2% funding cap imposed by the former Liberal government created a cumulative deficit of over $20 billion. This means First Nations are more than $20 billion behind the starting line when it comes to infrastructure (schools), staff, training, materials, curriculum development, etc. That doesn’t include extra costs for post-secondary education which has created a waiting list of thousands of First Nation students. Yet, there was no budget line for post-secondary education – instead there was only a promise that Trudeau’s government would work with students, parents, educators and Indigenous groups to “explore” future options.

    First Nation water and sewer should have been an easy budget line to address since there are already independent studies on what the actual costs are to address the crisis. The last report said it would cost almost $6 billion to fix the current water and sewer stock with an additional $2 billion for operation and maintenance needed over the next 4 years. Add to this a conservative estimate of $10 billion to add new water and sewer infrastructure that will be needed to service all the new houses needed in First Nations and you get a rough number of $18 billion. As anyone knows, the longer houses, water, sewer or any infrastructure system is left without maintenance and service, the worse it deteriorates, costing more to fix.

    The commitment to protect and support Indigenous languages is one of the most shocking lines in this budget. The TRC report recommended substantial support to revive and protect Indigenous languages since they are only endangered because of Canada’s purposeful attempts to wipe out our languages in various assimilation policies including residential schools. I made a conservative estimate of the cost based on what is currently spent on protecting the French language in Canada – approximately $2.4 billion annually. Given that there are approximately 53 Indigenous languages spread out over 10 provinces and 3 territories, and given that the majority of these languages are in critical states nearing extinction, much more intervention would be needed up front to save them. Thus, $20 billion over 3 years would provide enough up front funding to create immersion programs on reserve, develop or expand curriculum, and hire and train staff. This is a massive undertaking which is no less important than protecting French language and is an essential part of real reconciliation.

    It’s hard to believe that Trudeau would not at least ensure that the budget line for First Nation child and family services was consistent with the costs noted in the Canadian Human Rights Tribunal in the child welfare case it lost. An increase of $200 million is needed annually just to get child welfare funding for First Nations children somewhere close to provincial levels of funding. Yet the budget shows a mere $71 million for next year and $99 the year after. These levels are nowhere near what are needed to address the crisis of First Nations children in foster care. In Manitoba alone, 90% of all kids in care are Indigenous with one baby taken away from its mother every day on average. Nationally, despite being on 4% of the population, Indigenous kids represent about half of all kids in care. Sadly, it looks like Cindy Blackstock’s fight for justice for our kids is not over.

    Even the amount set aside for a national inquiry into murdered and missing Indigenous women and girls pales in comparison to the costs of past inquiries. But we also have to realize that not all of the $5.3 billion is even going to go to First Nations. A large percentage is set to go to INAC, DFO, CMHC, NEB*, various political organizations and even former Liberal Prime Minister Paul Martin. So once again, the bureaucracy will benefit first. Also, due to the length of this blog, it couldn’t include any analysis of the funding deficiencies for Indigenous peoples living off-reserve or the Inuit in the north – which would only compound the grossly under-funded budget presented. There are just too many budget items to go through in the space of one blog. However, there are some glaring omissions that have to be highlighted.

    ITEM

    BUDGET

    Implement TRC

    Calls to Action

    $0

    Implement UNDRIP

    Provisions

    $0

    Negotiate Nation to Nation

    Relationship structure

    $0

    Implement Aboriginal &

    Treaty Rights

    $0

    Review and repeal all legislation

    enacted without consultation

    during Harper decade

    $0

    All of the above were unequivocal election promises that were re-affirmed after Trudeau’s successful election, in his speech to the Special Chiefs Assembly. He told APTN in one definitive word that First Nations’ right to veto a project on their land was absolute. His promise to change everything about the status quo that is currently killing our people was based on a renewed nation to nation relationship. Not only did he back away from supporting a First Nation’s right to say no to development, with this budget so too does the nation to nation relationship disappear. There are no real funds set aside to support this foundational promise and his words say it all.

    Nowhere in the budget document does he refer to this “nation to nation” relationship, but instead refers to a renewed relationship with “Canada’s” Indigenous people aimed at “unifying Canada” and ensuring participation of Indigenous people in the economy. Throughout the document we have been downgraded from Nations to people, groups, communities and stakeholders. There is no mention of UNDRIP, TRC, or free informed and prior consent. There is no mention of the “sacred” constitutionally-protected Aboriginal and treaty rights in need of implementation. In fact, the nation to nation relationship based on free informed and prior consent turned into a “partnership” based on “consultation, and where appropriate, accommodation”. We are back to square one: letting courts determine the relationship. If you are the kind that is ok with endless “first steps” or “its a start” or believe “every dollar counts” or “something is better than nothing” or “we better take what we can get” – then I’m sure the budget works for you. However, I think our children deserve better than this. I think reconciliation envisions far more than this. If we don’t use our collective power as Indigenous Nations and allied Canadians to set this government back on track, we risk another lost decade and many more lost lives.

    I think I can definitively say the honeymoon is over. Time to snap back to reality and stop being distracted by the shiny beads and trinkets contained in all the flowery speeches and smiling photo ops. The health of our planet and future generations depends on us taking our role as the real governing power seriously. We need to hold this government accountable for its commitments and hold ourselves accountable to act and speak honestly. This budget is crap and we all deserve better. *Note: INAC = Indigenous and Northern Affairs Canada DFO = Department of Fisheries and Oceans CMHC = Canada Mortgage and Housing Corp NEB = National Energy Board

  • The Source of Our Power Has Always Been in our People – Not Voting in Federal Elections

    Since Canada is now in full blown election mode, one issue that has been getting as much attention as the election itself is the question of whether or not First Nations should vote. Some advocates claim that if all “Aboriginal people” voted, they could influence as many as 50/338 ridings. Those against voting question those numbers but also challenge the claim that how we exercise our “power” is by voting. As for me, I choose not to vote and do not believe that we should rest our hope on a federal election any more than we should an Assembly of First Nations (AFN) election. The whole point of sovereignty is that Indigenous Nations must assert, live, and defend our sovereignty, jurisdiction, and right of self-determination – not vote for federal politicians to do that for us.

    http://indigenousnationhood.blogspot.ca/2011/04/to-vote-or-not-to-vote-question-of.html

    I have had many lively debates with my family and friends about this issue and have heard a wide range of perspectives from Chiefs, elders, and community members all over Canada and the United States. There is certainly no consensus on the issue of voting in federal, provincial or state elections, nor should one expect there to be. As diverse, sovereign Nations, with distinct cultures, laws, values, governing systems, and traditions, we should expect as wide a variety of opinions as there would be at the United Nations on any given issue. I have never looked at the issue of voting as right or wrong – it’s just that we all have different views about how best to advocate for our people. I don’t think we should vote – others think we should. It’s not lateral violence, disrespect, or a radical boycott to believe firmly in sovereignty and choose to withdraw from oppressive Canadian processes.

    http://www.cbc.ca/radio/day6/episode-245-first-nations-voting-debate-spotting-lying-politicians-martin-short-on-robin-williams-and-more-1.3181885/first-nations-and-the-election-boycott-or-engage-1.3182006

    I firmly believe that the vast majority of our people who vote in elections or run as Members of Parliament do so with the best of intentions. They want the best for our people and see voting as an opportunity to get rid of the worst government this country has ever seen, or as a chance to vote for someone who is promising change. I look at heroes like the former MP Elijiah Harper who stopped the Meech Lake Accord, or current MP Romeo Saganash who worked on a bill to make the United Nations Declaration on the Rights of Indigenous Peoples l(UNDRIP) aw in Canada. Some of the most dedicated Indigenous activists whom I respect and admire also promote voting. This issue is not personal, nor should we allow it to be divisive. We owe it to each other to vehemently assert and defend strategic ways to advocate for our people – we just have different ideas about it.

    I believe strongly in our sovereignty and right of self-determination as Indigenous Nations. The United Nations emphasizes that we not only have the right of self-determination, but that this includes the right to freely determine our political status. That means we choose how we want to relate to the Canadian state – as citizens, Nations or something else. It is internationally recognized law that citizens don’t sign treaties with their nation-states – treaties are reserved for Nation to Nation relations. Both the Royal Proclamation of 1763 (which is now constitutionally-protected) and the historical treaties recognize our status as Nations. When I think about how I want to be represented at the negotiation table with Canada, I would much rather engage in Nation to Nation negotiations than as a stakeholder, interest group, or ethnic minority Canadian citizen.

    https://ricochet.media/en/534/first-nations-and-the-federal-election-an-exercise-in-self-termination

    Being a Canadian citizen has historically meant giving up one’s Indigenous identity, culture, spirituality, traditions, customs, practices, connection to the land, community, and Nation. For a short period, this was a voluntary choice – but for the majority of history, this has been a choice made for us by often brutal means. Defending our lands in Mi’kmaw territory meant being scalped. Speaking our languages in residential schools meant beatings, starvation, and sometimes death. Giving life to new generations of our people meant forced sterilizations for our women or the theft of our children by the thousands into foster care. We were never advocating for citizenship and voting – we were advocating to protect our sovereignty, lands, and peoples. When my father fought in WWII, he did so as part of our treaty obligation to defend the lands and peoples – not to gain a vote in federal elections. Our treaties are with the Queen, not Harper.

    http://ejournals.library.ualberta.ca/index.php/aps/article/view/22225

    Even once Canadian citizenship and voting rights were forced on us in the 1960’s, these rights did not afford us equal protection of Canadian law or justice. We have an ongoing crisis of murdered and missing Indigenous women, over-representation of our people in prisons, the highest rate of children in care, and socio-economic indicators have declined over the last 25 years. Every federal and provincial government that has ever been in power has failed to address any of these urgent social issues, let alone recognize Aboriginal title or Aboriginal and treaty rights. Voting in the oppressor’s regime has, not surprisingly, failed to end oppression. Yet, those in power in Canada would have us believe that our power comes from voting for them – as if they represent our Nations.

    http://www.theharperdecade.com/blog/2015/7/14/harpers-10-year-war-on-first-nations

    This leads to a very important question about power. Where does our power as Indigenous Nations to make change come from? Is it federal recognition as “willing partners” or “good Indians”, Indian status cards, voter registration cards, or the election of an MP of your political choice? Surely if this was the source of our power, we really would have died off a long time ago – as was the original policy objective. But if I listen to all the elders, former activists, youth and leaders, I have to conclude that we never would have survived Canada’s elimination and assimilation policies if we did not have a firm commitment to our identities, cultures, and sovereignty as Nations. Even today, for those who vote – they are voting for which party will be our next Minister of Indian Affairs. The political players are really secondary considerations given the complex construct of laws and policies and economic structures that exist to deny us our basic human rights, let alone our Aboriginal and treaty rights.

    http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=899&Lang=en

    Our greatest source of power has always been and always will be in our people. It is our collectives that have kept our Indigenous Nations strong, helped us survive these long dark winters under colonialism, and have offered the best hope of change for the future. The most exciting and transformative times in our recent history have not been tied to voting in federal elections, but were linked to our very public collective actions against Canadian processes. Take for example the nation-wide protests against the 1969 White Paper which set out to assimilate First Nations; the Constitution Express against the constitutional talks of the 1980’s which were set to exclude First Nations; and most recently with Idle No More against Harper’s suite of legislation intent on destroying the environment. The power of our people even inspired Canadians to work alongside us in solidarity to protect our lands and waters, and basic human rights. Unions, teachers, doctors, scientists, academics, lawyers, and other civil society groups have all joined forces to demand justice in Canada for all – including First Nations.

    Canada’s last best hope at protecting our lands and waters for future generations rests with First Nations, not the other way around. First Nations voting in federal elections will not bring about the change we need. From the robo-call scandal, to changes in electoral rules to massive corporate infiltration of political parties – any concept of democracy in Canada is an illusion. Until the system is changed, voting in a corrupt system won’t bring about justice. That is why it is so important to this debate to focus on the facts – simply voting under a belief that it will solve these issues is not helpful. Some important clarifications:

    (1) To say “If all Aboriginal people voted” is not possible or realistic. Not all Canadians vote, why would anyone assume all Indigenous people would?

    (2) In Canada’s voting system you have to vote for an MP – you don’t actually vote for Prime Minister. This means, you would blindly vote for a political party, even if the MP him/herself was a crook. This has happened.

    (3) Election laws have changed to make it harder to vote for First Nations.

    (4) Electoral ridings have been changed for this election changing voter composition and number. Had the new ridings applied in last election, Conservatives would have gained 22 extra seats. Conservatives won the last election with 166 seats. For this election, they could lose 18 seats and still hold a majority government.

    (5) There is no direct link between voting and the reduction in poor socio-economic outcomes for First Nations as claimed by National Chief Bellegarde. Harper’s Conservatives had some very prominent Indigenous MPs and a Senator who towed the assimilatory party line.

    (6) Indigenous peoples are not apathetic. They have higher voter turn outs in their First Nation elections than Canadians do in their elections. Not voting in federal elections is not an issue of apathy or “lack of education” as National Chief Bellegarde claims.

    (7) Justice for Indigenous peoples should never be tied to forcing our participation in Canadian political processes. Our Aboriginal and treaty rights are protected under international law and pre-exist Canadian laws and political parties.

    http://www.cbc.ca/news/politics/federal-riding-boundary-changes-add-to-2015-election-intrigue-1.2888547

    That being said, I agree that the “Stalinesque” Prime Minister Harper must go. The situation is so critical in Canada that if he is not removed now, he could continue to do irreparable harm to Canada – which is bad for all of us. I understand the urgent call for everyone who possibly can vote, to vote out Harper. I think we can all agree that getting rid of Harper is one of the most important things Canadians can do to save their democratic institutions. . Harper is, after all, enacting unconstitutional laws, selling natural resources to foreign countries, and committing grave injustices and human rights abuses in our territories. As treaty signatories, we committed to protecting settlers from harm. Some of us feel that we have an obligation to act – the only difference of opinion is what that action should look like.

    http://www.nationalobserver.com/2015/05/18/news/harper-worst-prime-minister-history

    I would never tell someone not to vote, nor would I tell them not to run for a position as MP. I’m just saying that I won’t do that and if someone asked me what they should do, I would tell them that the best place to put all our energy is into our Nations. We should use all our education, skills, experience, knowledge, time, money and energy into advocating for our people, supporting our activists and leaders, healing our illnesses, rebuilding our communities, protecting our cultures and identities, defending the health of our lands and waters, and strengthening our Nations.

    Some Indigenous peoples believe that voting is the best way to address Harper’s frightening dictatorial regime, while others believe that resisting and withdrawing from Canada’s oppressive processes and strengthening our Nations is a better focus for our energy. That debate won’t be settled any time soon, and that’s okay. I think most of us can agree that the power of our people working in solidarity together – Canadians and First Nations – can force the changes we need to turn this ship around and restore justice in Canada for the benefit of our current and future generations. My actions don’t include voting, but I stand in solidarity with First Nations and civil society groups who are calling on Canadians to vote out Harper and demand better of whatever political party succeeds.

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

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

     

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

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

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

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

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

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

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

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

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

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

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

     

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

     

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Forget more paternalistic federal legislation and honour the treaties.

  • Facts verus Rhetoric: Response to INAC’s Misinformation About Bill S-2

    This letter is in direct response to the letter submitted by Jason McDonald, Director of Communications for Minister of Indian and Northern Affairs Canada (INAC) Bernard Valcourt to the Montreal Gazette on August 7, 2013. INAC has gone to great lengths to spread misinformation about the intentions, interpretations and potential impacts of Bill S-2 Family Homes of Reserve and Matrimonial Interests or Rights Act. It is interesting to note the Minister had his communications person write this letter, versus a Justice Canada lawyer.

     

    Despite the near unanimous rejection of previous versions of this bill and Harper’s infamous promise to First Nations at the Crown First Nations Gathering not to unilaterally amend the Indian Act; the Harper government has spared no expense in its propaganda campaign to gain support for this unconstitutional bill. What follows is my response to INAC’s misinformation about the bill. I have testified before Senate as a legal expert on a previous version of this bill, but was specifically prevented by Conservative members from testifying on the new version. I have also published other blogs on this bill. http://indigenousnationhood.blogspot.ca/2012/11/bill-s-2-family-homes-on-reserve-and.html http://indigenousnationhood.blogspot.ca/2011/09/bill-s-2-family-homes-on-reserves.html

    http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-step-back-in-time.html http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-backdoor-assimilation-and-land.html http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-empty-shell-of-legislative.html  

    INAC: The bill “extends to people living on reserve the same basic rights and protections that individuals living off reserve enjoy regarding the family home”

    This is not true. Indigenous Nations are sovereign Nations with their own laws, rules, policies, governments, and justice systems. Their status as sovereign Nations are recognized in the fact of treaty making, as only sovereign Nations can enter into treaties with one another – citizens of a state do not have that right.

     

    Their legal right to govern themselves is also protected in section 35 of the Constitution Act, 1982 as an inherent right (pre-existing to Canada as a state and not granted or given through law). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as other international laws also protect the right of First Nations to be self-determining.

    First Nations have exclusive jurisdiction to determine their own laws, rules and procedures in relation to any marital or property issues on their traditional, treaty or reserve lands. When INAC claims they are extending the same basic rights to those living on reserve, what they mean is that they are illegally imposing provincial laws on reserve contrary to section 91(24) of the Constitution Act, 1867, section 35 of the Constitution Act, 1982 and contrary to various treaties and international laws. This legislation will also require the consent of the provinces and companion legislation to bring it into effect.

    Even the description of a house on reserve as the family home is misleading. On many reserves, homes are occupied by upwards of 25 people including husband, wife, children, grandparents, aunts, uncles and cousins. Certificates of Possession (like fee simple deeds) can be in the name of hundreds of people. Many First Nation families do not exist as the western notion of nuclear family with mom, dad and 2.5 children. Any disposition of what is deemed a family home could have devastating effects on large extended families and especially elders. First Nations have not asked for this bill.

    INAC: Bill S-2 does not change the fact that only registered Indians can hold a Certificate of Possession on reserve, but non-First Nations people can possess the home for a temporary period of time.

    This statement is misleading about the real implications of the bill. The Indian Act prevents anyone who is NOT an Indian from even temporarily possessing land on a reserve – which includes permanent structures on the land, like a house. Section 20(1) of the Indian Act specifies:

     20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.”

    What INAC is trying to do is unilaterally amend the Indian Act in an illegal way – in violation of domestic and international law. Section 2 of the Indian Act specifies that reserve lands are reserved for the exclusive use and benefit of the band (First Nation) for which they were set aside. These lands are not for anyone else’s use.

    Further, many treaties set up reserve lands for the exclusive use and benefit of Indians – not non-Indians. These treaties are now constitutionally and internationally protected and cannot be unilaterally amended. This country would not exist but for the treaties which agreed to share the land – now they are constitutionally protected and cannot be violated if Canada wishes to remain a democratic country. Harper can’t pick and choose which constitutional provisions he likes – Canada is either democratically governed with a constitution or it is a lawless dictatorship.

    INAC does not have the power or authority to enact legislative provisions, such as this, that would be in direct conflict with its own constitution and other laws. INAC is also not being truthful when it claims that the Act only allows temporary possession by non-Indians. In fact, non-Indians can gain up to a life interest in lands and homes on reserve. This is far from temporary and combined with other proposed legislative amendments, this could translate into permanent possession.

    INAC: The courts need this legislation to facilitate emergency protection orders to remove a violent partner from the home.

    This is not true. INAC has focused on this legislation as being intended to protect First Nations women from violence, which it implies is rampant on every reserve. Government representatives have presented a false choice between First Nations women being tossed from their homes in the middle of the night or protecting self-government for First Nations. Yet, INAC has offered no statistical, research-based or other evidence to prove that women losing their homes on reserve is a rampant or common occurrence.

    In direct contrast to their testimony, INAC has confirmed that the majority of CPs are held by women, not men. Additionally, when First Nations women living in shelters were interviewed about this legislation, the women emphasized the fact that their interests are not separate from their First Nation community – and that none of them wanted their community’s Aboriginal or treaty rights violated such as this legislation does.

    This line of reasoning being promoted by INAC amounts to spreading racist, hateful stereotypes about First Nations for political purposes. INAC wants support to do indirectly, what Canada is not legally permitted to do directly – take the remaining amount of lands held by First Nations and transfer them to Canadians, corporations and governments.

     

    If this legislation was about protecting First Nation women, they would have built more homes on reserve, funded new shelters, increased funding for preventative services and increased funding for access to legal services for these women. Instead they have created  a new legal regime that the majority of First Nation women will never be able to access.

    What is also extremely concerning about this provision is that it purports to empower courts to issue protection orders (possession of home to spouse) as against the alleged abuser in the absence of a charge or conviction. It also empowers the court to make possession orders for homes and lands on reserve – which are communal First Nation property – without any notice to the First Nation or any of the family members impacted by the order, like elders. This provision violates the basic human rights and freedoms of First Nations and further denies individuals any administrative fairness and justice.

    INAC: The ratification process outlined in the bill is done according to First Nation practices and is to ensure the collective interests are protected.

    Again, this is not true. The ratification process as outlined in the bill is a paternalistic control mechanism to ensure First Nations comply with INAC objectives – it is not consistent with First Nation customs, traditions, practices or laws. Some First Nations already have their own laws in this regard, but INAC refuses to recognize these laws, and instead demands that First Nations engage in an Indian Affairs-designed and controlled process. If the concern was truly that laws are needed in this area, then INAC would recognize those First Nation laws.

    Similarly, this legislation is not designed to respect collective interests to homes and lands on reserve, but is intended to further carve out individual interests and create new legal interests for non-Indians. According to INAC, reserve lands represent less than 0.2% of all the lands First Nations used to control. For INAC to want to divide up and steal the rest of those lands is unconscionable, let alone illegal. The spirit and intent of our nation to nation treaties was to share the wealth, not usurp it all for one treaty partner and leave the other impoverished and living on hand-outs.

    First Nations have exclusive jurisdiction over their own laws and enforcement mechanisms and do not need INAC approval or supervision to deal with these issues. This provision is a gross violation of the constitutionally and internationally protected right to be self-governing.

    INAC: INAC has consulted extensively with First Nations on this issue.

    This is not true. In fact, INAC’s own Special Ministerial Representative on Matrimonial Law on Reserve who interviewed First Nations individuals, communities and organizations all over Canada, concluded that none of the information packages or meetings to date amounted to legal consultation as required under section 35 of the Constitution Act, 1982. INAC representatives themselves told attendees at several meetings that various discussions were not intended as consultation.  Further, several meetings held with national organizations does not constitute legal consultations with the First Nation communities who actually hold the Aboriginal and treaty rights impacted.

    Consultation is supposed to be a mutually negotiated, designed and funded process which ensures impacted First Nations communities (in this case, all 615) are fully informed about the legislation and its intended impacts as well as take measures to accommodate their concerns and obtain their consent. This simply did not occur. The Supreme Court of Canada has stressed repeatedly that Canada is legally obligated to consult, accommodate and in many cases, obtain the consent of First Nations prior to taking any action or decision that has the potential to impact constitutionally protected Aboriginal and treaty rights. UNDRIP further requires that Canada must obtain the free, informed and prior consent of First Nations before impacting their rights.

    This has not happened and in fact, each version of this bill has been nearly unanimously rejected by First Nations men, women and communities all over Canada.

    INAC: Canada is further supporting First Nations by creating a national Centre of Excellence to help First Nations implement these laws.

    This new Centre was not requested by First Nations. If INAC wanted to support First Nations they would not have made substantial funding cuts to all the National, regional and provincial First Nation organizations that already assist First Nations with law development and implementation. Finally, law development is costly in any government, and INAC is expecting First Nations to develop and implement these laws without any funding support.

    INAC is clearly not genuinely concerned about empowering First Nations governments, but is instead reverting back to nation-wide, one-size-fits-all paternalistic control. We all know what happens when INAC has control – we have deaths and torture in residential schools, lack of clean water and safe sanitation systems on reserve, housing crises, lack of education, suicide epidemics and other conditions of forced impoverishment. It’s time INAC got out of the business of controlling First Nations and let them govern themselves – they couldn’t do any worse than the atrocities already committed by Canada on our people. Please contact your MP and oppose this legislation.