Eyes Wide Shut: Chasing Section 35 and Ignoring the War

Ok, so it's been four months since the Assembly of First Nations (AFN) election for National Chief and the honeymoon period is officially over. I simply can't stay silent any longer about where we are and where we are headed as First Nations. If we don't take action now, even if that means speaking out and risking unity, then it is our First Nations citizens on the ground who will be the ones who continue to suffer from our political inaction. Harper's aggressive actions since the election more than proves Harper's real agenda - to once and for all eliminate the "Indian problem" - and it's do or die time for us.

http://indigenousnationhood.blogspot.ca/2012/09/harpers-indigenous-manifesto-erasing.html

With respect, I take serious issue with any claim that there was "momentum" between Harper and First Nations prior to the Crown-First Nation Gathering (CFNG) that has suddenly withered since the AFN election. There was no momentum on any key issue of importance to grassroots First Nations peoples or First Nation leaders. Every single action Harper is pursuing against us right now, he started well over a year ago. It seems incredulous that NC Atleo would all of sudden decry the flurry of federal legislation being imposed on our First Nations when the majority of these bills were introduced into the House or Senate prior to either the CFNG or the AFN election. Don't forget, mention of some of these pieces of legislation were made at the CFNG in Harper's speech - I didn't hear Atleo say anything about it then.

http://www.cbc.ca/news/canada/story/2012/11/15/pol-cp-first-nations-atleo-harper-letter.html

Similarly, with the substantial funding cuts to First Nation political organizations and those being implemented now at the individual First Nation level - we KNEW that this was Harper's plan. This was not a shock to the AFN. The problem was never lack of knowledge, instead it was a complete failure to have a strategic action plan in place. That is not to say AFN could have single-handedly reversed those funding cuts, but for weeks since their announcement they had weak to no response. It is only now that there seems to be some outcry from the National Chief. But outcry or not, where is the plan?

http://metronews.ca/news/canada/434784/atleo-pitches-plan-to-move-beyond-indian-act/

This is where things get progressively worse - Atleo's new "plan" would have us locked into decades-long self-government negotiating processes which would indebt our First Nations by millions of dollars and trap us there, lest we want to be put into third party management for failure to pay. What about the First Nations citizens on the ground? Where is the plan for the current housing and water crisis? Our people need to have at least the basic necessities of life - where are their voices and priorities reflected? True, some First Nations are doing fairly well on some fronts, but we cannot ignore the multiple over-lapping crises right before our eyes. Many of our people are suffering from homelessness, over-crowding, lack of water, sanitation, food insecurity, the theft of their children by child and family services at alarming rates, many murdered and missing Indigenous women and the over-imprisonment of our men, women and youth. How much worse does it have to get before we shift our focus back to our peoples?

http://indigenousnationhood.blogspot.ca/2012/10/indigenous-nations-urgent-situation.html

Has AFN even thought about what a section 35 agenda would mean? First of all, it is focused on Canadian law and interpreted by Canadian judges. It should be no surprise then that the majority of the Supreme Court of Canada (SCC) cases have followed a very specific pattern:

(1) They always specifically or indirectly protect Canada's sovereignty;

(2) They arbitrarily make up new sui generis (unique) law to ensure our rights can squeeze into Canadian law versus any recognition of our own laws;

(3) The cases transform First Nations from sovereign Nations and governments to cultural entities frozen in pre-contact times that must be reconciled with Canadian sovereignty;

(4) Whenever a principal or finding goes in our favour, it will inevitably be limited, redefined and reduced to an almost unusable right in subsequent cases. Take for example, the Indian priority in Sparrow which came second only after conservation. In Delgamuuwk, our priority sank to last after every other possible priority including: agriculture, forestry, mining, hydroelectric power, environment, infrastructure and settlement.

(5) The section itself requires the extensive, costly litigation of our rights on a right by right, species by species and First Nation by First Nation basis. Many of these cases take decades to resolve and even once they hit the SCC, it is not uncommon for them to send the case back to trial. Even then, we are the only group subjected to re-hearings like in Marshall II which substantially altered the original court win.

So, what is it about section 35 that offers an alternative to the current situation? Do they not realize that First Nations are the only entities with real sovereignty here? Canada knows this and is desperately buying up the rest of our lands through claims and securing its own sovereignty agreement by agreement. Canada is slowly piecing together their ownership and sovereignty, and some of us are allowing them to do that. I am not saying that they have offered any alternatives, but we don't have to accept what they thrown down. In order to speed up the process Canada will introduce the First Nation Property Ownership Act so we can surrender the last of our lands. What about any of this is a plan forward?

Atleo's "plan" also calls for a National First Nations Auditor - seriously? That is nothing more than trying to please the government's obsession with trying to make all First Nations look corrupt.Try selling that as a solution to a northern Ontario First Nation whose school is falling apart; or a flooded Manitoba First Nation whose residents have been displaced for many months; or a Saskatchewan First Nation whose water is contaminated. Who cares about another national First Nation entity which will benefit the CEO, its few employees and serve a relatively minor number of First Nations. Think of the First Nations Tax Commission, the First Nations Statistical Institute, and all those other "national" organizations located in British Columbia. We don't need a First Nation bureaucracy on top of the massive Indian Affairs bureaucracy we have now.

We are not one nation of people - we are many Nations with our own sovereignty(s). We have laws and governance systems which makes us strong Nations. We need to act on that strength, in different ways, in different territories, and according to our own laws and priorities. If we can't stay focused on living and acting on our sovereignty everyday, then we'll be easily led down the colonizer's path of chasing "equality", "section 35", and other government carrots - while missing the war going on around us. Make no mistake, our peoples are the casualties in this war and things are growing steadily worse on all socio-economic fronts. The status quo is killing our people and has been for quite some time. The problem is that Harper has changed the status quo and things are about to get much worse.

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

Unbelievably, the AFN only now appears to be realizing that Harper's full-blitz attack on First Nations has some "potential for harmful impacts". This means that nationally, we are way behind in this war. The AFN has had many opportunities to take a stand over the last few years and has failed to do so each time. That is not to say that individual regions or First Nations have not been raising the alarm bells - in fact, some had to very publicly withdraw from Atleo-Harper education plan in order to preserve their treaty and inherent rights. There are also thousands of First Nation community members who want to see their leaders lead and are willing to stand behind their Nations - but they need to be inspired to action.

There can be no more delays - we need action. Our peoples deserve better than our fear, hesitancy and wilful blindness to their suffering. We cannot chase Canada's section 35 illusion with eyes wide shut. Harper is presenting us with a false choice: Indian Act or assimilation and some of us have fallen into the trap of letting him define our options. We need to take stock of where we have been, the situation we created by allowing this to happen, own it, and move forward. None of us as individuals have all the answers - but we are lucky, we still have the strength of our collective Nations to stand beside us.

Let's do this for our peoples and our Nations.

 "When it comes to confronting our imperial realities some of us want to reform colonial law and policy, to dull that monster's teeth so that we can't be ripped apart so easily."

"Some of us believe in reconciliation, forgetting that the monster has a genocidal appetite, a taste for our blood and would sooner tear us apart than lick our hands."

"I think that the only thing that has changed since our ancestors first declared war on the invaders is that some of us have lost heart against history and against those that would submit to it."

"I am with the warriors who want to beat the beast into bloody submission and teach it to behave."

(Excerpt from: Taiaiake Alfred, Wasase: Indigenous Pathways of Action and Freedom (Toronto: University of Toronto Press, 2005).

Bill S-2 - Family Homes on Reserve and Matrimonial Rights or Interests Act

Harper's Conservatives have given the signal that they may, once again, refocus their legislative eye on Bill S-2 Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise known as the MRP bill). To this end, the parties have been preparing to study the bill and hear from witnesses on possible amendments.

 Most of Canada's legislative initiatives go largely unexplained to grassroots Indigenous peoples - community members and leaders alike. This Harper government, in particular, has done everything it can to mislead, misinform, distract, confuse and outright lie to First Nations about its intentions with regards to the Indian Act. More so, they have done very little to explain the implications of bills to those who will be impacted - First Nations community members.

 Most will recall Prime Minister Harper's infamous words at the so-called Crown-First Nation Gathering this past January: "To be sure, our Government has no grand scheme to unilaterally repeal or to unilaterally amend the Indian Act."

 Yet, here is the extensive list of government bills currently before Parliament which will unilaterally repeal or fundamentally alter the Indian Act in significant ways:

          Bill C-428 Indian Act Amendment and Replacement Act

          Bill C-27 First Nations Financial Transparency Act

          Bill S-2 Family Homes on Reserve & Matrimonial Interests or Rights Act

          Bill S-6  First Nations Elections Act

          Bill S-8  Safe Drinking Water for First Nations Act
 
          Bill S-207  An Act to Amend the Interpretation Act
 

This does not include any of the omnibus or other bills which impact First Nations. There are two others bills expected to be introduced in the New Year as well:

           First Nation Property Ownership Act

          First Nation Education Act

It would be almost impossible for First Nation community members to know what these bills are really about simply by reading the titles of the bills. The Conservative Party is very good at using titles for their bills which betray what the bill actually does. Bill S-2 is a prime example of a bill that is being promoted as one which will protect Indigenous women from domestic violence and “give” them equal rights upon marriage or relationship breakdown. This bill does neither of those things.

 
It would make this blog far too long to review all of the sections, but communities should be aware of several problematic areas. The Preamble (which is just an introduction and does not contain any law) does give an important indication of the two theoretical underpinnings of the bill:
 
(1)   The bill has an individual-rights/interest focus versus an Indigenous communal, holistic approach;

The bill focuses on the best interests of the individual child as opposed to the collective, inter-connected interests of the entire family (including the child), extended family, community and Nation. It is this very approach that led to residential schools, 60’s scoop and the current over-representation of our Indigenous children in the care of child welfare.

(2)   The bill views First Nations peoples as “cultures” versus to governments with their own jurisdictions or Nations with their own sovereignty.

 The bill focuses everyone’s attention on the particular culture of the First Nation – which is to be “considered” by a judge in a marital dispute over property. However, there is no deference for First Nation legal or governance jurisdiction over property disputes over their own territories. This is very similar language to Supreme Court of Canada cases which have essentially frozen Aboriginal rights in “pre-contact” times and only protect those rights which the court considers “integral” enough. In this case, non-Indigenous people will be judge and jury over what our culture is, which parts of it are important, and whether it is relevant to property issues on reserve.

 The general focus of the bill is to enact provincial-like rules with regard to the divison of marital property on reserve after the break-up of a marriage or common-law relationship. This essentially means that each spouse is entitled to half - the house, land, etc. However, these provincial-like rules are not optional - they are mandatory. While the act considers them to be interim rules, the fact is no funds have been allotted for governance, law-making or enforcement and thus for many First Nations, they will remain permament.

The bill also contains the following provisions:

 

-          They apply to all First Nations until they enact laws pursuant to the bill;

-          Non-Indians will be able to gain rights (exclusive occupation, life interest, etc) to the home and contiguous land on reserve;

-          A judge can make a ruling that violence has occurred and bar that person from the house, without the alleged offender being charged or convicted;

-          First Nations are not entitled to notice for emergency protection orders which give possession to a house and land to non-Indians;

-          Certificates of Possession can be forcibly transferred from one First Nation spouse to another; and

-          A person who is not member/Indian, can apply to have order enforced as though he/she was member/Indian.

Without getting into too much technicality, this bill either conflicts with or violates various Canadian laws:

 

(1)   Bill S-2 conflicts with the Indian Act – The Indian Act reserves land for the exclusive use and benefit of Indians and make it an offense for non-Indians to trespass on reserve, yet Bill S-2 creates new rights for non-Indians on reserve;

(2)   Bill S-2 is outside is outside Canada’s legislative authority in section 91(24) of the Constitution Act, 1867 – This is because Canada is purporting to legislate with regard to the property and civil rights non-Indians which is the exclusive jurisdiction of the provinces. Thus, provincial legislation will also be required to make the bill effective.

(3)   Bill S-2 violates section 35 treaty rights in the Constitution Act, 1982 – This is because many reserves were set up via treaties, which are now protected in section 35. These treaties are for the benefit of Indians – not non-Indians.

(4)   Bill S-2 violates section 35 Aboriginal rights in the Constitution Act, 1982 – This is because the inherent right of First Nations to be self-governing over their own peoples and lands is recognized by Canada as protected in section 35. Yet with this bill, Canada purports to control internal matters even more than they do now.

 

(5)   Bill S-2 represents a breach of Canada’s honour, its fiduciary obligations and its legal duty to consult and accommodate. Bill S-2 was drafted without First Nation input, there were no legal consultations, and the bill will result in more federal control, not less.

(6)   Bill S-2 violates many articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – including:

 

Art.3 - the right to be self-determining;

Art. 4 – the right to be self-governing over our own internal affairs;

Art. 19 – the right of free, informed and prior consent before ANY legislative measures that affects us; and

Art. 37 – the right to recognition and enforcement of our treaties.

Some of the other key concerns that have been raised by witnesses who have testified previously include the lack of access to justice as all remedies must be access through courts, no funding is provided for accessing legal services, and many communities don’t have local access to courts. The issue of housing on marital breakdown is further complicated by Canada’s refusal to address the housing crisis or provide adequate funding for shelters.

 

There are many other issues not outlined here in order to keep this blog simple. However, I will be publishing a more detailed analysis of both direct and indirect impacts of this bill.

 My recommendations (in part):

 (1) The Status of Women committee who will be studying the bill should reject the bill in its entirety. The entire bill conflicts with both Indigenous laws and Canadian law and cannot be saved.

 (2) Canada should respect its own policy position that First Nations have a right to be self-governing which is constitutionally protected within section 35. This would correspond with the right to be self-determining as per Article 3 of UNDRIP.