DEFENDING OUR SOVEREIGNTY

Monday, August 1, 2016

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


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

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

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

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

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

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


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


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.


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://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.




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

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

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

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

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

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


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

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


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


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


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.


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:



 

 

 

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


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

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

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

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

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

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


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


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.


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://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.




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

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

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

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

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

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


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

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


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


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


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.


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:



 

 

 

Friday, May 13, 2016

Canadians are not racist? Indigenous Invisibility versus the Convenience of Racist Indifference - UPDATED

This week, former Prime Minister Paul Martin, told the media that the failure to address the many overlapping crises faced by Indigenous peoples is not a problem with Canadians – Canadians are not racist. The problem is with Indigenous peoples – we are invisible. Martin further alleges that Canadians are “a generous people” that will “rise to the occasion” to support others in need – if they are aware of the issue.

 
In my opinion, not only do we have a very deep and long-standing race problem in some segments of Canadian society, but this racism has also infected every level, branch and institution of the municipal, provincial, territorial and federal governments. This race problem is not new. It is in fact, one of the primary root causes of the challenges faced by Indigenous peoples today. Canadians are well aware of both the racism issue and the many over-lapping crises in First Nations.

Racism in Canada is Real

The racism experienced by Indigenous peoples in Canada is not just a matter of insult or offence. While there are no shortage of racist, hateful comments made about us as individuals, communities and Nations – the racism we face is lethal. It doesn’t just hurt our feelings – it leads to our pre-mature deaths in a large variety of ways. Scalping bounties led to the deaths on thousands of Mi’kmaw people. There was a higher death rate for Indigenous kids in residential schools than for soldiers in WWII. Thousands of Indigenous peoples are murdered or are disappeared. We have higher rates of disease and injury. And deaths while in the custody of hospitals, foster parents and police show how prevalent racism against Indigenous peoples is in Canada.


This isn’t just my opinion. The Royal Commission on the Donald Marshall Prosecution in 1989 found that he was wrongfully prosecuted and failed by everyone in the justice system because he was native. 1996 Royal Commission on Aboriginal Peoples spoke about racism against Indigenous women. The Aboriginal Justice Inquiry in Manitoba in 1999 admitted the justice system fails Indigenous peoples on a “massive scale”. The 2007 Ipperwash report confirmed that racism in the Ontario Provincial Police was widespread. And there have been many other reports which all speak to the deep-seated racism within Canada and its institutions.

We’ve known for a very long time that stories in the media about Indigenous peoples draws a high number of racist and hateful comments from all segments of society including teachers, professors, authors, professionals and politicians. In November of 2015, the General Manager and Editor in Chief of CBC News Canada issued a statement explaining why CBC will no longer allow comments on stories about Indigenous peoples. The reason for this is that Indigenous-related stories brought out “higher-than-average” comments which were not only hateful but also racist.

 
MacLean’s magazine even went so far as to say that Canada’s race problem is far worse than America’s and part of what makes it so bad is that Canadians keep denying they are racist.


In case you require something a little more official, the Ontario Human Rights Commission confirms that Canada has “a legacy of racism – particularly towards Aboriginal persons”.


The fact that Canada is so systemically and overtly racist is one of the reasons why Canada has so many laws against racism and hate speech, including federal and provincial human rights acts, the Criminal Code and the Charter of Rights and Freedoms, and is a signatory to numerous international human rights instruments. There would be no need for these protections if there were no issues around racism in Canada.

Invisibility versus Racist Indifference

Let’s just address this fiction before it becomes the new Liberal mantra. Neither Indigenous peoples, nor the many over-lapping crises we face are invisible. While 50% of Indigenous people live in remote reserves, about 50% live in or near urban centres. One can’t walk down the street in Winnipeg or Saskatoon without seeing Indigenous people. In terms of the challenges we face, First Nations like Attawapiskat have put our higher rates of suicide, poverty, homelessness in the forefront and is a prime example of Canada’s racist and differential responses to First Nation crises versus Canadian crises (Walkerton, Halifax, Fort McMurray).

 
Indigenous activists like Cindy Blackstock have ensured that Canadians are well aware of the over-representation of First Nations kids in foster care. The Canadian Human Rights Tribunal concluded that the reason for the chronic underfunding and disproportionate number of kids in foster care was because they were native. The problem of racism in Canada means that a tribunal actually had to direct Canada to stop its discriminatory treatment of Indigenous kids - and we are all still waiting for Canada to abide by this decision.

 
The Native Women’s Association of Canada led the way with public education and advocacy to focus the country’s attention on the thousands of murdered and missing Indigenous women. Even Canada’s own Attorney General and Office of the Correctional Investigator rang the alarm on Canada’s discriminatory treatment of Indigenous peoples which led to under-funded education systems and prisons over-represented with Indigenous peoples. We are far from invisible, but don’t take their words for it – the numbers speak for themselves.

In 2010, a study by Environics showed that 60% of Canadians are either somewhat or very familiar with Indigenous issues. This is nothing new. In fact, over the last two decades, at least half of Canadians were familiar with Indigenous issues. The majority of Canadians also believe that the challenges faced by Indigenous peoples are the result of the attitudes of non-Indigenous people and government policies. Since 1993, Canadians have ranked addressing the living conditions on reserve as one of the top priorities. There is absolutely no doubt that Canadians and their politicians know about the issues.

 
Idle No More, the largest social movement in Canada’s history, brought the issues of social conditions and unresolved treaties and land claims to the front of the media, government and world’s attention and held it there for nearly a year. But Indigenous peoples didn’t just capture the media headlines in 2012. There have been regular flash points over the last few decades that garnered a great deal of media attention including Listuguj, Oka, Gustafsen Lake, Ipperwash, Burnt Church, Elsipogtog, Caledonia and others. There are few in Canada who could claim that Indigenous peoples are invisible. They may not want to acknowledge the lethal results of this kind of racism, but they are aware it exists. After the Truth and Reconciliation Report, few can deny the racist underpinnings of Canada's genocidal policies against Indigenous peoples.

So, no, racism is not a figment of our imaginations. The many tombstones from Indigenous peoples killed at the hands of priests, doctors, foster parents, police and bureaucrats prove otherwise. And, no, Indigenous peoples are not invisible. There isn’t a newspaper, news channel or magazine that hasn’t had pictures of dirty water, run down homes, or deceased Indigenous women as their lead story at some point. And finally, no, most Canadians are not unaware of our dire circumstances. It’s the racist segments of society that make a conscious choice to turn a blind eye to our suffering while running to the aid of their non-Indigenous neighbor.
 
There are many authors, media commentators and people in society who deny the racist views held by the countless individuals and institutions who have stolen, sterilized, experimented on, scalped, beaten, raped, murdered, and dispossessed Indigenous peoples of their identities, cultures, children, lands, resources and independence. In my opinion, denying the racism which instigates the high level of violence and suffering in First Nations, is itself an act of racism. It is far too convenient to be willfully blind or indifferent to the lethal impacts of racism on Indigenous peoples. Apologies are easy, as are empty diversity policies, and promises for a new relationship. The hard work is in making amends for the damage done and which continues to be done to Indigenous peoples by people and governments which still have racist ideologies and intentions.

Canada was built on the dispossession, oppression and genocide of Indigenous peoples. Addressing racism now means far more than apologies, photo-ops and fancy words – it means the return of our lands and resources, the recognition of our jurisdiction, and the full implementation of our rights. This means land, wealth, and power changes hands - it means an uncomfortable recognition that Canada benefits from our continued oppression. Justice will require some discomfort. If it isn't uncomfortable, it isn't justice.
 
This isn’t a multi-cultural issue or one of diversity – we are not asking for “equality”, we are demanding justice. If we are going to move forward, we can't hide behind the convenience of the status quo. We have to be brave enough to shine a light on the problem and work together to address is. Indigenous peoples have many allies in Canadian society - not everyone is racist. Unfortunately, many still hold racist views which threaten our lives.
 
I think we can all do better than pretend the problem of racism against Indigenous peoples doesn't exist. While the new theme may be reconciliation, reconciliation is not a process in an of itself - it starts first with the truth. If Canada cannot admit it has a racism problem, then we can never take steps to address it. Let's continue the conversation in an open and honest way. Racism does exist in Canada.

UPDATE:

These comments that Mr. Martin said upset me. I've had to think about why they upset me so much, because it's not like I haven't heard them made many times from many different people. I don't react to the vast majority of these comments. I know these comments originate from people who are in different places and in different contexts. I believe most people are good people at heart. Most of us love our families and communities and we want to see a brighter future for everyone. So, in fairness to Mr. Martin, perhaps in making those comments, he meant to show faith in Canadian citizens that once they know about Indigenous struggles they will act. His recent interviews seem to suggest that since leaving office, he wants to advocate on their behalf. He recently denounced former Prime Minister Chretien's comments who suggested that First Nations should leave reserves; he has advocated for improved First Nation education and set up a foundation for that purpose; and he consistently called the chronic underfunding of First Nations social programs discriminatory. My blog was less about him - as a person - and more about the comments in general.

I also know that we are in the business of social justice to gain support for our cause. I have been advised by lots of people who have heard me speak that I should tone down my words, be careful not to come on too strong, and to focus on encouraging allies and not make enemies. As a Mi'kmaw person, I am honour-bound to live up to the treaty commitments of my ancestors who promised to live in peace with the settlers. My Dad fought in WWII alongside Canadians to ensure our treaty commitments were kept. He did his despite everything that has been done to us. So, I understand the importance of maintaining allies. I have strong opinions and I share them not to hurt anyone, but to advocate as strenuously as possible for our people, because our lives depend on it. I feel a grave sense of urgency to not lose another generation of babies. I don't want to see our languages die. I don't want our lands to become so contaminated we can't use them for our ceremonies. I have to be honest and say the truth as I see it. I've been in ceremonies where elders told me I have no choice but to speak the truth - regardless of the backlash. I have to be honest. Sugar-coating the situation only makes it worse. Sometimes the truth is uncomfortable and sometimes its painful - but its from the truth that we can come up with solutions. Reconciliation requires we go through this painful part to finally heal and make amends.

It's 2016 - there is no good reason to hold onto racist ideologies that allow the discrimination, violence, dispossession and oppression of our people to continue. It's very frustrating to see our kids be forced into foster care, imprisoned, beaten by police, commit suicide or go murdered and missing every day. Every single day while governments ponder their budgets, edit speaking points and delay justice, another Indigenous man, woman or child suffers. what that politicians meet in wood-paneled offices with expensive meals while they talk about measured justice, first steps and plans for the future, our people still die. People I love still die. This is why I speak and write the way I do. To us, the issues are urgent. We can't ever get our people back once we have lost them. We have to act now.

While the easy answer might be to blame a rogue cop, a psycho serial killer or the KKK, the reality is that there are large segments of Canadian society in positions of power that hold extremely racist views about Indigenous peoples. Harper's last decade of power is a prime example of how rampant racism is and the impacts it has on First Nations. Racism is not an anomaly. Its not an exception. It's not about one bad apple - its widespread and it's killing my people. Most of my friends and colleagues that work, study or volunteer in social justice causes hate answering the phone late at night. We know that it means another Indigenous person has committed suicide, died, been arrested or had their children taken from them. We all dread these calls. Because even though the government may have shifted a priority or the media has left, we are always left with the lived realities of not just inter-generational trauma, but modern-day racist laws, policies and decisions which affect our lives.

I think this is why I reacted so strongly to Mr. Martin's comments. Not because I think he is a racist or that all Canadians are racist. Mr. Martin has helped many individual First Nation people access education funds, he has supported them find employment, he has advocated strenuously in recent years for government to step up and act. On a personal level, he was supportive of my work at Ryerson University and even the work of many of us in the Idle No More movement. I think more people in positions of power should stand up and demand justice alongside our grassroots Canadians and Indigenous Nations.

I truly believe we cannot have reconciliation until we can be brave enough to hear the dark truth, challenge one another on our opinions and be critical of what isn't working. This shouldn't be taken personally, but social conflict is a necessary part of growth, change and improvement.

I apologize to anyone who thought I was saying that ALL Canadians are racist. I know that we have many good allies. In fact, Idle No More helped bring us all together. There has never been so much good will and cooperation between non-government organizations and community groups with Indigenous peoples. We have united to work jointly on child-welfare, anti-poverty, housing and homelessness, climate change and the environment, and human rights. The United Nations Human Rights Committee said last year that they never saw such a united force. I would like to believe that our collective efforts at social justice will make the changes we want to see in Canada.

I am sorry that this process won't be easy, it won't be speedy, and we won't always feel like we are on the same side. I hope in the end, you understand why it's necessary.

 
 
 

 

Friday, April 15, 2016

Daniels v. Canada - We are all "aborigines"


The Daniels decision hasn’t been out for 24 hours yet and already there is mass confusion about what it does and does not say. Despite the buzz in mainstream and social media, it does NOT make Metis and non-status Indians “Indians” under the Indian Act. The case also does NOT give Metis and non-status Indians any “rights”. This wasn’t a case about hunting or fishing. So, for all the emails, Facebook messages and inquiries I have received from people asking if I can help them become registered (status) Indians or whether they can get free education now – this case does not do that. While the case itself was an important one, the actual decision imported more problems than it resolved.

It was a case designed specifically to answer the question about whether Metis and non-status Indians are included in the definition of the term “Indian” in section 91(24) of the Constitution Act 1867 (also referred to as British North America Act). The Supreme Court of Canada’s (SCC) answer was “yes”.

Sections 91 and 92 of the Constitution Act 1867 set out the jurisdictional powers of the federal and provincial governments. Jurisdiction means an authority or power over a certain area. Generally, it does NOT create a legal obligation to act or legislate in that specific area. These individual areas of jurisdiction are referred to as “heads of power”. For example, the federal government has jurisdiction over things like criminal law, divorce law, banking and the military. The provinces have powers over hospitals, charities and taverns. The head of power at issue in this case is section 91(24) Indians and lands reserved for the Indians.

It should be remembered that this is NOT the first SCC case on what the term “Indian” includes under section 91(24). In 1939, the federal government and province of Quebec sought clarification from the court as to whether the term “Eskimo” now referred to as “Inuit” was included in the term “Indian”. In that case, the court used historical documents to demonstrate that while the Inuit were unique, they were considered to one of many “tribes” of Indians. As a result, the Inuit are considered “Indians” for the purposes of section 91(24) federal jurisdiction. This did NOT mean that all Inuit were registered as Indians under the Indian Act. In fact, section 4(1) of the Indian Act specifically states:

4(1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

The term “aborigine” is not defined in the Indian Act, but commonly refers to an indigenous person of a particular territory or country –the original inhabitants. The question now is whether Canada will make Metis and non-status Indians a new group of "aborigines" to be specifically excluded from the Indian Act, like the Inuit.

Just because Metis and non-status Indians have been recognized as “Indians” for the purposes of section 91(24) of the Constitution Act 1867, this does not mean that they will ever be included in the Indian Act or registered as Indians. Nor does it mean they will get a house on reserve, be considered treaty beneficiaries, or access any other legal entitlement. Inuit do not live on reserves nor are they considered First Nations. It is unlikely that the federal government will put Metis on reserves either.
 
Remember, it is not the Indian Act that sets out rules and regulations around “benefits” or “rights”. Whether or not Indian and Northern Affairs Canada (INAC) grants a benefit or decides to recognize a legal right is a matter of policy - i.e., a government decision made at Indian and Northern Affairs Canada (INAC) usually in consultation with Justice Canada, Treasury Board, the Prime Minister’s Officer and/or various other interested departments like Fisheries and Oceans (if related to fishing right for example).

Despite the fact that many of our rights are LEGAL rights protected by Indigenous laws, treaties and agreements, as well as domestic and international laws – most often the government lumps all “Indian” issues into generic policies that may not reflect the extent of our legal rights at all. In fact, Canada’s most common legal argument is that any “benefit” provided to Indians is out of the good will of the government (a matter of policy) and not out of any legal obligation. This is what the SCC referred to as “noblesse oblige” where the government mistakenly thinks that Indigenous rights are a matter of charity or generosity versus legal obligation.

What this case will do is break through the jurisdictional “limbo” to which Metis and non-status Indians have been relegated and force both federal and provincial governments to include Metis and non-status Indians in their consultation activities. While the court did not grant 2 of the 3 requested declarations, it DID confirm that governments have a fiduciary duty towards Metis and non-status Indians (duty to act in their best interests), AND that they must negotiate with them and consult with them on decisions impacting their rights.

That is the most neutral thing that I can say about this decision. In EVERY other way, this decision is one of the worst messes to come out of the SCC. While it may sort out who is an Indian, it does nothing to address the problems faced by Indians in accessing various federal programs and services. Remember, Jordan River Anderson was a registered Indian child, under federal jurisdiction, yet the province and federal government BOTH refused to pay for his health services and he died in hospital never seeing his home. Magically becoming an Indian doesn’t resolve the ongoing federal-provincial dispute over coverage for individuals living OFF reserve, let alone those normally resident on reserve.

On the Indigenous rights front – inherent, Aboriginal and treaty rights - this case is damaging.

To my mind, the Daniels decision is less about reconciliation and more about erasure of Indigenous sovereignty and identity. It takes John Ralston Saul’s idea of “we are all Metis people” together with the newest Canadian slogan “we are all treaty  people” and opens the floodgates to every person in Canada claiming a long lost Indian ancestor and asserting their identity and control over our lands and rights. It has the potential to effectively eliminate any real sovereignty or jurisdiction Indigenous Nations have over our own citizens and territories. It does not bolster Metis claims, but instead confuses them. It does not address the discrimination faced by actual non-status Indians, but paints them with the Metis “mixed people” brush. The very unique and specific circumstances of non-status Indians are completely over-looked in this decision.

We have gone from sovereign Indigenous Nations - to one generic group of Indians - to distinctions-based groups (Indian, Inuit and Metis) - and now back to Indians – all for the express purpose of reducing us to an “interest group” of “Aboriginal people”. This is not good for anyone. Certainly, no one asked us what we thought. Once again, National Aboriginal Organizations are at the helm – directing the pirate ship to ensure they get their cut of program funds for their organizations. Their win is big – they’ll likely get increased funding to set up new negotiating tables. For the Indigenous Nations on the ground – a new burden has been placed on us – proving that the thousands of newly-minted, self-identified “Indians” do NOT speak for us and do NOT have a say over our lands. For those who have been wrongly excluded by government laws policy (like Indigenous women and their children) – their new challenge will be to distinguish themselves from the floodgate of false claims to come – a burden not rightly borne by those who have already suffered so long at the hands of government discrimination.
 
This decision, taken together with Trudeau's White Paper 2.0 (the nice version), means we have many battles ahead. Please read this decision critically - don't partake in the celebrations just yet.
 

Tuesday, March 22, 2016

PM Trudeau's Nation to Nation Relationship Disppeared with Empty Budget Promises


(picture from Google Images & Huffington Post)
 
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