Well, the witch hunt has officially begun. If conservatives scream loud enough and persistently enough that all First Nations Chiefs are corrupt, then eventually people will start to believe that. Add to this the right-wing voices of academics like Flanagan, Gibson, Widdowson, and Helin; organizations like the Frontier Centre for Public Policy and Canadian Taxpayers Federation; and the strategic media use of isolated examples, and the anti-First Nation movement is reborn complete with its own Aboriginal spokesperson - Senator Brazeau.
Now, the focus on alleged corruption and lack of accountability of First Nations which Bill C-575 is meant to combat, helps to deflect the real issue - Canada's shameful neglect and inequitable funding of basic social programs for First Nations like child and family services, post-secondary education, housing, and water. It also helps focus attention away from the other paternalistic legislative reforms which are being advanced against the will of First Nations on the basis that Canada knows what is best for them.
Perhaps more importantly, this proposed bill turns the attention away from our federal politicians and away from the issue of MPs not wanting to divulge THEIR OWN expenses to the Auditor General. If that is not the ultimate in hypocrisy, I don't what is! You will recall that the Auditor General Sheila Fraser (AG) informed Parliament that she wanted to review the detailed expenses of federal MPs. After taking nearly 10 months to consider the matter, their answer was categorically "NO!" The only option left to the AG was to take them to court which she indicated she was not willing to do.
If you search the Internet and read through back issues of various newspapers you will hear endless excuses from these MPs about why they should not divulge their expenses - including that their expenses are audited by an outside firm. If you take this issue and apply it to a First Nations context, First Nations ALSO have their federal funding audited by firms and report all of this information to INAC in great detail. The issue is not whether or not MPs and First Nations "account" for their money, it is whether the details of this information should be made "public".
Despite the fact that a deal was subsequently reached between the AG and MPs which would allow the AG to do "spot checks" on MP expenses, the National Post reported that her audit would NOT look at the spending of individual MP offices, nor would any report name the names of MPs who had problematic expenses. This is a far cry from an audit of each and every MP's set of expenses being made public. How then could any MP, liberal, conservative or otherwise, demand that the expenses of each and every Chief and band councillor be made public?
Thanks to the questionable conduct of conservative senator Brazeau, even some First Nations community members are starting to believe the conservative hype about unaccountable First Nations, absent any hard facts. On what other issue would we ever ask Canadians and politicians to support legislation to address a stereotype? What is next? If I allege that all Indians are drunks, will Senator Brazeau create a YouTube video from the Senate asking that First Nations be banned from liquor stores?
While conservatives can easily sell a bill with the unassailable message of accountability, the real message is much more insidious: it asks Canadians to conclude, without any proof, that First Nations are not accountable for funding they receive from the federal government and that the ONLY way to address this is for the conservative government to ride in on its "white" horse and save the Indians. Meanwhile, the government can preach about values that it does not respect itself.
Of the times that former Minister of INAC intimated that First Nation elections were fraught with corruption, we never saw any reports or research to back that up. Senator Brazeau's YouTube video implies that First Nations are not financially accountable, but he does not offer any credible proof of this. Even the Frontier Centre for Public Policy made incredible claims this week about the depth of First Nations corruption without referring to a single study, report, or statistical analysis.
What evidence is out there? You could try reading the reports of the AG where she explained that First Nations experience the extreme version of accountability with regards to federal funds and in fact account so much and so often that they submit reports on their funds no less than once every three days. If there are any problems with these reports, First Nations run the risk of being subjected to co-management or third party regimes imposed on their communities to manage their funds. The conservative government has incurred billions of dollars of debt - where is its third party manager?
If you read those AG reports and watch some of the AG's presentations to the House or Senate, you will hear her describe how she has attempted to have INAC address its own problems and lack of progress on social programs and services. She has asked repeatedly that INAC make improvements and commented that INAC has made little or no improvement. She even cited the cap on the funding of First Nation programs and the outdated, problematic funding formulas for funding such programs as child and family services. As we all know, the latter issue is now before the Canadian Human Rights Tribunal.
It is Canada that has dropped the ball here on its own obligations. Trying to deflect attention onto First Nations represents both a promotion of a negative stereotype against First Nations and a hypocritical position given MPs' refusal to do what they are asking of First Nations. Furthermore, the proposed Bill C-575 asks that First Nations NOT receive the benefit of various information and privacy protections under ATIP legislation to which other governments are entitled. Another inequity advanced under an apparently closely held democratic value.
I challenge all Canadians to look behind the hype and get the facts; to look beyond the headlines and see the real message; and to think twice before they impose legislation on First Nations which represent values they don't require of their own governments.
Wednesday, October 6, 2010
Friday, October 1, 2010
Conservative Flip Flop or True Stripes?
This blog is somewhat related to my last one in that it involves another look at Conservative Party mentality and specifically that of Minister Duncan, Parliamentary Secretary Glover, and Conservative Senator Patrick Brazeau.
On Tuesday, September 21, 2010, National Chief of the Assembly of First Nations, Shawn Atleo, held a press conference explaining that the current gap in educational and employment rates between First Nations and other Canadians is not only unfair, but could be addressed by proper funding in education. He argued that a more equitable level of education funding, if invested now, would lead to $179 billion in return to Canada in terms of Gross Domestic Product. Liberal and NDP leaders added that it was a matter of fundamental justice.
Atleo later appeared on Parliament Hill as part of the national week of action of First Nations education. His call for reconciliation and proper investment in First Nations education was cheered on by various First Nation participants. He highlighted the atrocities of the residential school system and how education had been used as a tool of oppression. He called on Canada to help First Nations access education as a tool of freedom and empowerment.
The core message is one that has even been echoed even by right-wing thinkers like Calvin Helin, Tom Flanagan, Allan Cairns and others: education is empowerment and would address a great many social issues in First Nations. So, then, what is the problem? Atleo has explained that the current funding cap on education, which causes great inequality between First Nations and other Canadians, is not only unjust but prevents First Nations from furthering our genius, intelligence and greatness.
On the same day, Senator Brazeau responded with a "Senate of Canada" YouTube video from the Senate Chambers on Parliament Hill which some claim has portrayed First Nations as unaccountable and discriminatory. He further calls for a stop to all funding to First Nations and Aboriginal organizations until they can account or prove that they are achieving measurable outcomes. From his position of privilege in the Senate chamber, Brazeau argued that the current system favours "Aboriginal elites" and fosters a "sense of entitlement".
The response which followed was not surprising. First Nation leaders called Brazeau's comments unfounded and insulting. The talk amongst some academics seemed to question whether his video criticizing First Nations was an appropriate function of the Senate. I personally question whether or not he has gone too far this time. The video he posted was highly critical of First Nations, although obviously carefully worded. It was shot from the Senate Chamber, which to my knowledge, is reserved for Senate business. Also, the video itself used the Senate namesake and symbol, and all copyright belongs to the Senate.
While I am aware that there are a good number of Senators who work with Canadians and social groups to advocate for positive change to the environment, law, justice, and other social issues, I am not aware of any Senator who has used Senate resources to publically attack or criticize specific groups in society, like First Nations. I am not the only one who wondered whether this was appropriate. In a recent APTN article, APTN noted that Minister Duncan had "distanced" himself from Senator Brazeau and his remarks. APTN reported that Mnister Duncan said that Senator Brazeau's call for a "freeze" on funding to First Nations and organizations does not represent the views of the Conservative Government.
While this clarification on behalf of the Minister was well-received, it was unfortunately, very short-lived. As part of a political panel held on APTN News on Thursday, September 30, 2010, the Parliamentary Secretary Shelly Glover was asked about Senator Brazeau's comments on accountability. She was very clear in her response that she was in agreement with Brazeau's comments.
Not only was she in agreement with Brazeau on First Nations accounting for INAC funds, but for "all funds" which come from the government as it is comprised of "tax payer" funds. She also stated that there were "some indications" that the Conservative government has to take steps to make sure accountability is achieved - the implication being that they are not. Her comments are reminiscent of those of the former Minister of INAC, Chuck Strahl, who often made comments which insinuated that First Nations were plagued with corruption and a lack of accountability.
Of course, the implication in Glover's remarks are that First Nations are not accountable. MP Todd Russell said Senator Brazeau's comments were "outrageous" and explained that these comments only serve to paint all First Nations with the "same brush". He further explained that Senator Brazeau was a "mouth piece" for the Conservatives and that Brazeau was not accountable for his own inappropriate actions and statements made against First Nations and individuals who appear as witnesses for the Senate committees.
NDP MP Jean Crowder agreed and added that Senator Brazeau's comments promoted a "stereotype" against First Nations which is not true, as the Auditor General herself has found that First Nations DO account for their funding. First Nations themselves, including the Assembly of First Nations have said they have no problem accounting for their funds and have called for even better mechanisms by which to do so. Crowder also highlighted the fact that when Brazeau left the Congress of Aboriginal Peoples it was investigated for its own serious accountability issues. CAP's upcoming Annual General Meeting in November may well reveal even more issues left behind from Brazeau days.
So, which is it? Do Senator Brazeau's comments reflect the position of the Conservative government or not? If they do represent the conservative position, then the Duncan-Glover flip flop shows a serious lack of transparency on the part of the Conservatives and raises trust issues let alone a revelation of their true stripes. If they do not represent the conservative position, then the Conservatives better reign in their new Parliamentary Secretary. They can't have it both ways.
I guess we'll have to wait and see...
On Tuesday, September 21, 2010, National Chief of the Assembly of First Nations, Shawn Atleo, held a press conference explaining that the current gap in educational and employment rates between First Nations and other Canadians is not only unfair, but could be addressed by proper funding in education. He argued that a more equitable level of education funding, if invested now, would lead to $179 billion in return to Canada in terms of Gross Domestic Product. Liberal and NDP leaders added that it was a matter of fundamental justice.
Atleo later appeared on Parliament Hill as part of the national week of action of First Nations education. His call for reconciliation and proper investment in First Nations education was cheered on by various First Nation participants. He highlighted the atrocities of the residential school system and how education had been used as a tool of oppression. He called on Canada to help First Nations access education as a tool of freedom and empowerment.
The core message is one that has even been echoed even by right-wing thinkers like Calvin Helin, Tom Flanagan, Allan Cairns and others: education is empowerment and would address a great many social issues in First Nations. So, then, what is the problem? Atleo has explained that the current funding cap on education, which causes great inequality between First Nations and other Canadians, is not only unjust but prevents First Nations from furthering our genius, intelligence and greatness.
On the same day, Senator Brazeau responded with a "Senate of Canada" YouTube video from the Senate Chambers on Parliament Hill which some claim has portrayed First Nations as unaccountable and discriminatory. He further calls for a stop to all funding to First Nations and Aboriginal organizations until they can account or prove that they are achieving measurable outcomes. From his position of privilege in the Senate chamber, Brazeau argued that the current system favours "Aboriginal elites" and fosters a "sense of entitlement".
The response which followed was not surprising. First Nation leaders called Brazeau's comments unfounded and insulting. The talk amongst some academics seemed to question whether his video criticizing First Nations was an appropriate function of the Senate. I personally question whether or not he has gone too far this time. The video he posted was highly critical of First Nations, although obviously carefully worded. It was shot from the Senate Chamber, which to my knowledge, is reserved for Senate business. Also, the video itself used the Senate namesake and symbol, and all copyright belongs to the Senate.
While I am aware that there are a good number of Senators who work with Canadians and social groups to advocate for positive change to the environment, law, justice, and other social issues, I am not aware of any Senator who has used Senate resources to publically attack or criticize specific groups in society, like First Nations. I am not the only one who wondered whether this was appropriate. In a recent APTN article, APTN noted that Minister Duncan had "distanced" himself from Senator Brazeau and his remarks. APTN reported that Mnister Duncan said that Senator Brazeau's call for a "freeze" on funding to First Nations and organizations does not represent the views of the Conservative Government.
While this clarification on behalf of the Minister was well-received, it was unfortunately, very short-lived. As part of a political panel held on APTN News on Thursday, September 30, 2010, the Parliamentary Secretary Shelly Glover was asked about Senator Brazeau's comments on accountability. She was very clear in her response that she was in agreement with Brazeau's comments.
Not only was she in agreement with Brazeau on First Nations accounting for INAC funds, but for "all funds" which come from the government as it is comprised of "tax payer" funds. She also stated that there were "some indications" that the Conservative government has to take steps to make sure accountability is achieved - the implication being that they are not. Her comments are reminiscent of those of the former Minister of INAC, Chuck Strahl, who often made comments which insinuated that First Nations were plagued with corruption and a lack of accountability.
Of course, the implication in Glover's remarks are that First Nations are not accountable. MP Todd Russell said Senator Brazeau's comments were "outrageous" and explained that these comments only serve to paint all First Nations with the "same brush". He further explained that Senator Brazeau was a "mouth piece" for the Conservatives and that Brazeau was not accountable for his own inappropriate actions and statements made against First Nations and individuals who appear as witnesses for the Senate committees.
NDP MP Jean Crowder agreed and added that Senator Brazeau's comments promoted a "stereotype" against First Nations which is not true, as the Auditor General herself has found that First Nations DO account for their funding. First Nations themselves, including the Assembly of First Nations have said they have no problem accounting for their funds and have called for even better mechanisms by which to do so. Crowder also highlighted the fact that when Brazeau left the Congress of Aboriginal Peoples it was investigated for its own serious accountability issues. CAP's upcoming Annual General Meeting in November may well reveal even more issues left behind from Brazeau days.
So, which is it? Do Senator Brazeau's comments reflect the position of the Conservative government or not? If they do represent the conservative position, then the Duncan-Glover flip flop shows a serious lack of transparency on the part of the Conservatives and raises trust issues let alone a revelation of their true stripes. If they do not represent the conservative position, then the Conservatives better reign in their new Parliamentary Secretary. They can't have it both ways.
I guess we'll have to wait and see...
Sunday, September 26, 2010
Indian Agents are Back - PM's New Indian Affairs Crew
I am writing this blog today not only because of my increasing concern with regards to the number of bills which are being pushed through the House and Senate without any consultation with First Nations, but also because of the folks pushing these bills. Specifically, I am talking about the Prime Minister's newest crew of people at the highest levels who not only advise him about "Indian Affairs" but who also administer Indian Affairs.
Previously, PM Harper had Tom Flanagan as his Chief of Staff (COS). Mr. Flanagan as we all know, has written several controversial books and articles related to First Nations which more or less advocate for their eventual assimilation. In his view, any concept of special constitutional rights for First Nations is unjustified. He views First Nations concepts of communal property as both "primitive" and communist". Now he is advocating for the whole-sale privatization of reserve lands to free them up for sale. One might say - well he is not the COS anymore, so why should that matter?
Great question.. It matters firstly because it demonstrates that the Conservative Party has allowed itself to be influenced more by its right-wing thinkers (think Reform Party) than those who think more broadly or with open minds. Secondly, and perhaps more importantly, it matters because PM Harper has now surrounded himself with right-wing thinkers and those who have publically spoken out against First Nations in ways which have been described as racist or demeaning. These same people are now administering Indian Affairs in Canada.
As you all know, the new Minister of Indian and Northern Affairs Canada (INAC) is MP John Duncan. He comes from an enforcement-type background having worked on Pacific Fisheries issues in BC. As MP, Duncan was very vocal against First Nations being able to exercise their constitutionally protected Aboriginal right to fish. To his mind, the First Nations fishery amounted to nothing more than a “race-based” fishery that was illegal.
While some might question whether one comment is enough to paint the whole picture, I would point out that Duncan was also very vocal against the Nisga’a Self-Government agreement as well. This isn’t a situation where Duncan made a comment in the heat of the moment that he regretted and for which he later apologized. Duncan has not, from what I have seen, indicated that he has had any significant change of heart with regard to First Nations. If there was any doubt about how he feels now that he is Minister of INAC, I would refer readers to recent media which quote Duncan as saying that his priority is to ensure that First Nations have the “same” opportunities as other Canadians – ignoring of course that their rights are not the “same” but are constitutionally protected Aboriginal and treaty rights which include their inherent right to be self-governing.
If this were not enough, the new Parliamentary Secretary for INAC is Shelly Glover who also comes from an enforcement background. She worked for 19 years in the police force. Yet, she has been referred to as Canada’s version of Sarah Palin for her lack of capacity in terms of politics. For example, in an effort to distance herself from Tom Flanagan, she tried to claim that she had no idea who he actually was or if he was even Canadian. Even the interviewer laughed and found it as incredulous as the rest of us that she could be a conservative MP and not know that Tom Flanagan was PM Harper’s former COS. If she did know, her attempted deception was unsuccessful. If she didn’t know, the conservatives had better be concerned.
But again, we cannot judge a politician on one major flub up. What else do we know? She claims to be a Metis person affiliated with a Metis organization, although I could not find any information about her actual participation in the Metis community or how recent her self-identification is/was. What I did find were many media articles which described her as a “hard-nosed” and tough police officer especially with Aboriginal gangs. She is also supportive of tougher criminal laws and supports more money for prisons. This of course should be of great concern to First Nations who are already over-represented in provincial jails, under-represented on jury pools, and have been subjected to racial profiling, discriminatory treatment by law enforcement, and deaths while in police custody.
So, you might say that is only INAC and PM Harper has shown that he is a one-man band and so we should be more concerned about what the PM thinks than what his Ministers think. OK, so let’s look at PM Harper’s own Parliamentary Secretary, Pierre Poilievre. He has been described in the media as an “attack dog” and for using racist terminology in the House (that I will not repeat here) and refusing to apologize for it. However, he is most well-known for his comments made literally hours before the Residential Schools Apology where he made stereotypical comments against Aboriginal people saying they needed to learn the value of hard work more than they needed compensation and asked whether Canadians were “really getting value for all this money”.
What does this mean for Aboriginal-Crown relations in Canada? From my perspective, these key figures in the Harper government have significant influence over laws and policies which relate to First Nations and even how they are portrayed in the media. These right-wing ideologies don’t change overnight and there has been no indication that any of these individuals have backed away from their strongly held views. This has resulted in a major shift back to paternalistic ways of dealing with First Nations which presents a significant challenge to First Nations who are still struggling to deal with the legacies left by former paternalistic policy days.
But it is not just the current legislative initiatives that should cause us concern. It all started with the conservative rejection of the Kelowna Accord which was intended to address the very serious health, education and employment gaps between Aboriginal peoples and other Canadians. It has continued with the paternalistic suite of legislation going through the House and Senate and is even evident here in Ontario. In Ontario, the federal government’s resistance to negotiating with First Nations and Ontario regarding the HST meant a protracted and tense situation that played more to the public than to the parties at hand. As well, INAC imposed an Indian Act election and government on the Algonquins of Barriere Lake despite them having legally opted out of the Indian Act election provisions long ago.
What is on the horizon? I think we can expect that as Aboriginal women win court cases, like in McIvor’s case, Canada will reduce benefits so that their victories are empty. I also think that Flanagan’s original assimilatory plans will be implemented under the guise of “progress” like the current plans to privatize reserve lands and make them available for sale to non-Indians as well as Bill S-4 which would create new interests in reserve lands for non-Indians. Bill S-4 also reintroduces the concept of Indian agent under the new name of “Verifier” despite the near unanimous objections of First Nations and Aboriginal women alike.
If First Nations let themselves be divided or wooed by promises of funding for various projects, we could see permanent large scale assimilation and loss of reserve lands. A famous TV psychologist once said – if someone is trying to tell you who they are and what they are all about – then listen. In this case, I would ask First Nations to listen to what the conservative party has said but also match that to what they have done.
The conservative plan is still the assimilation of First Nations. The only difference being that they have learned from Flanagan’s mistakes and have obviously decided to implement their plans less overtly.
Previously, PM Harper had Tom Flanagan as his Chief of Staff (COS). Mr. Flanagan as we all know, has written several controversial books and articles related to First Nations which more or less advocate for their eventual assimilation. In his view, any concept of special constitutional rights for First Nations is unjustified. He views First Nations concepts of communal property as both "primitive" and communist". Now he is advocating for the whole-sale privatization of reserve lands to free them up for sale. One might say - well he is not the COS anymore, so why should that matter?
Great question.. It matters firstly because it demonstrates that the Conservative Party has allowed itself to be influenced more by its right-wing thinkers (think Reform Party) than those who think more broadly or with open minds. Secondly, and perhaps more importantly, it matters because PM Harper has now surrounded himself with right-wing thinkers and those who have publically spoken out against First Nations in ways which have been described as racist or demeaning. These same people are now administering Indian Affairs in Canada.
As you all know, the new Minister of Indian and Northern Affairs Canada (INAC) is MP John Duncan. He comes from an enforcement-type background having worked on Pacific Fisheries issues in BC. As MP, Duncan was very vocal against First Nations being able to exercise their constitutionally protected Aboriginal right to fish. To his mind, the First Nations fishery amounted to nothing more than a “race-based” fishery that was illegal.
While some might question whether one comment is enough to paint the whole picture, I would point out that Duncan was also very vocal against the Nisga’a Self-Government agreement as well. This isn’t a situation where Duncan made a comment in the heat of the moment that he regretted and for which he later apologized. Duncan has not, from what I have seen, indicated that he has had any significant change of heart with regard to First Nations. If there was any doubt about how he feels now that he is Minister of INAC, I would refer readers to recent media which quote Duncan as saying that his priority is to ensure that First Nations have the “same” opportunities as other Canadians – ignoring of course that their rights are not the “same” but are constitutionally protected Aboriginal and treaty rights which include their inherent right to be self-governing.
If this were not enough, the new Parliamentary Secretary for INAC is Shelly Glover who also comes from an enforcement background. She worked for 19 years in the police force. Yet, she has been referred to as Canada’s version of Sarah Palin for her lack of capacity in terms of politics. For example, in an effort to distance herself from Tom Flanagan, she tried to claim that she had no idea who he actually was or if he was even Canadian. Even the interviewer laughed and found it as incredulous as the rest of us that she could be a conservative MP and not know that Tom Flanagan was PM Harper’s former COS. If she did know, her attempted deception was unsuccessful. If she didn’t know, the conservatives had better be concerned.
But again, we cannot judge a politician on one major flub up. What else do we know? She claims to be a Metis person affiliated with a Metis organization, although I could not find any information about her actual participation in the Metis community or how recent her self-identification is/was. What I did find were many media articles which described her as a “hard-nosed” and tough police officer especially with Aboriginal gangs. She is also supportive of tougher criminal laws and supports more money for prisons. This of course should be of great concern to First Nations who are already over-represented in provincial jails, under-represented on jury pools, and have been subjected to racial profiling, discriminatory treatment by law enforcement, and deaths while in police custody.
So, you might say that is only INAC and PM Harper has shown that he is a one-man band and so we should be more concerned about what the PM thinks than what his Ministers think. OK, so let’s look at PM Harper’s own Parliamentary Secretary, Pierre Poilievre. He has been described in the media as an “attack dog” and for using racist terminology in the House (that I will not repeat here) and refusing to apologize for it. However, he is most well-known for his comments made literally hours before the Residential Schools Apology where he made stereotypical comments against Aboriginal people saying they needed to learn the value of hard work more than they needed compensation and asked whether Canadians were “really getting value for all this money”.
What does this mean for Aboriginal-Crown relations in Canada? From my perspective, these key figures in the Harper government have significant influence over laws and policies which relate to First Nations and even how they are portrayed in the media. These right-wing ideologies don’t change overnight and there has been no indication that any of these individuals have backed away from their strongly held views. This has resulted in a major shift back to paternalistic ways of dealing with First Nations which presents a significant challenge to First Nations who are still struggling to deal with the legacies left by former paternalistic policy days.
But it is not just the current legislative initiatives that should cause us concern. It all started with the conservative rejection of the Kelowna Accord which was intended to address the very serious health, education and employment gaps between Aboriginal peoples and other Canadians. It has continued with the paternalistic suite of legislation going through the House and Senate and is even evident here in Ontario. In Ontario, the federal government’s resistance to negotiating with First Nations and Ontario regarding the HST meant a protracted and tense situation that played more to the public than to the parties at hand. As well, INAC imposed an Indian Act election and government on the Algonquins of Barriere Lake despite them having legally opted out of the Indian Act election provisions long ago.
What is on the horizon? I think we can expect that as Aboriginal women win court cases, like in McIvor’s case, Canada will reduce benefits so that their victories are empty. I also think that Flanagan’s original assimilatory plans will be implemented under the guise of “progress” like the current plans to privatize reserve lands and make them available for sale to non-Indians as well as Bill S-4 which would create new interests in reserve lands for non-Indians. Bill S-4 also reintroduces the concept of Indian agent under the new name of “Verifier” despite the near unanimous objections of First Nations and Aboriginal women alike.
If First Nations let themselves be divided or wooed by promises of funding for various projects, we could see permanent large scale assimilation and loss of reserve lands. A famous TV psychologist once said – if someone is trying to tell you who they are and what they are all about – then listen. In this case, I would ask First Nations to listen to what the conservative party has said but also match that to what they have done.
The conservative plan is still the assimilation of First Nations. The only difference being that they have learned from Flanagan’s mistakes and have obviously decided to implement their plans less overtly.
Saturday, September 4, 2010
Now First Nations are Soviets and Primitive Communists?
I am writing this blog today because I have had enough of the right wing misinformation campaign against First Nations in Canada. It isn't enough that First Nations had to endure colonial control, theft of their lands and resources, broken treaty promises, loss of their languages and spirits in residential schools, and the ongoing impact of the Indian Act for the last few hundred or so years, but now they are being shamed, harassed and bullied into abandoning what First Nations have managed to save for their future generations.
First Nations identities, cultures, and lands are under attack once again from the newly revitalized right wingers (thanks to PM Harper and his conservative party) who think that the only "true" Canadians are those that look, walk, talk, and think alike. This is despite the fact that First Nations have never imposed such rules on Canadians. First Nations are not asking for anything other than for Canadians to live up to their constitutional promises.
http://www.canlii.org/en/ca/const/const1982.html
Section 35 of the Constitution Act, 1982 is the Supreme law of the land. No federal or provincial government has the authority to enact laws and policies outside those legal boundaries by which Canadians have agreed to live. Section 35 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. In case there was any doubt, in 1996 Canada publicly recognized that Aboriginal peoples have the "inherent right" to self-government and that this right was protected in s.35.
http://www.ainc-inac.gc.ca/al/ldc/ccl/pubs/sg/sg-eng.asp
The inherent right to be self-governing does not mean that First Nations MUST govern themselves according to western laws, ideologies, and governance structures. That would defeat the whole purpose of being self-governing according to one's OWN laws, customs, and practices. Even the Supreme Court of Canada in Van der Peet recognized that:
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html
Additionally, PM Harper stood before and on behalf of ALL Canadians and apologized to First Nations for the assimilatory attitudes upon which policies like residential schools were based. Specifically, PM Harper explained that:
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 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.
http://www.ainc-inac.gc.ca/ai/rqpi/apo/index-eng.asp
This apology is in line with other pronouncements from the Supreme Court of Canada (SCC)regarding the purpose of protecting the rights of Aboriginal peoples in the Constitution Act, 1982. Specifically, the SCC held in Powley that the purpose of section 35 was to protect to recognize and enhance Aboriginal peoples "survival as distinctive communities." Distinctive refers to the unique laws, cultures, traditions, practices and beliefs of Aboriginal Nations. The SCC explained that the "purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities" so that they can preserve their cultures for future generations.
http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html
So, if the supreme law of the land, our country's highest court, and even the Prime Minister recognizes the need to protect Aboriginal laws, customs, practices, beliefs, traditions, and cultures, how is it that the right wingers in society cannot wrap their minds around that concept?
Today, I read a comment in the National Post which referred to First Nations concepts of communal property as "Soviet-style native property rules". Never mind that the "Soviet Union" doesn't even exist anymore, but the comparison shows the ignorance of the commentator.
http://fullcomment.nationalpost.com/2010/09/03/national-post-editorial-board-enough-soviet-style-native-property-rules/
The commentator alleges that Canadians who live on reserve are "denied the ability to own real property". In fact, any Aboriginal person may own property off-reserve in fee simple. On reserve, they can hold property in a Certificate of Possession (CPs) which is similar to fee simple, except that it can't be sold to non-Indians. This form of property ownership respects the communal nature of land ownership in First Nations. The communal nature of land holding in First Nations has long been recognized by laws, courts, and our constitution as an integral
part of First Nations laws, rules and practices related to their lands.
The commentator also alleges that Aboriginal people "cannot hold true title to their homes" nor can they "mortgage a property to raise capital". In fact, Aboriginal people can hold CPs to their homes and even obtain a mortgage through various programs at CMHC and INAC. The link below provides details about how the process works:
http://www.cmhc-schl.gc.ca/en/ab/onre/onre_008.cfm
The commentator also claims that Aboriginal peoples cannot develop their "land as they see fit". This may or may not be true, depending on the zoning and other land use codes that may or may not in place in any particular First Nation. It is interesting to note however, that most Canadians cannot develop their land as they see fit due to zoning and other municipal land use by-laws. This comment reflects an obvious lack of knowledge around the subject.
More troubling is the allegation that Aboriginal peoples "can lose their homes without recourse, whenever it happens to be convenient for band council to give their property to a new occupant". This is categorically false. Various provisions of the Indian Act lay out how land is to be allotted, how CPs can be issued, and the process under which land can be expropriated. Canadian and provincial laws allow lands of Canadians to be expropriated in special circumstances, but never without compensation. The rules are similar on a reserve. Of course, the rules may well be different for self-governing First Nations and/or those under the First Nations Land Management Act.
http://laws.justice.gc.ca/PDF/Statute/I/I-5.pdf
The commentator uses the example of Kahnawake where the band council enacted residency by-laws prohibiting non-members from residing on their reserve. When asked about the legality of such a by-law, the former Minister of Indian Affairs, Chuck Strahl claimed it was "legal" and even "constitutional" despite the fact that in order for a by-law to be legal it must be submitted to INAC for approval - which according to INAC was never done.
http://www.nationalpost.com/news/story.html?id=2542877
I agree completely with the commentator that such a law, which evicts non-Indian spouses of legitimate band members from their homes, is racist. It divides children from their parents, and families from their communities. Instead of protecting their Nation, they are actually speeding up their own assimilation. I myself, have written a blog about the injustice of this situation.
http://nonstatusindian.blogspot.com/2010/02/mohawks-or-canadas-disappearing-indians.html
That being said, Kahnawake does not represent all 633 First Nations in Canada. Just as the serial killer Robert Pickton does not represent the values of all Canadians, nor does Kahnawake represent the majority of First Nations values.
Finally, the commentator praises Tom Flanagan's new book: Restoring Aboriginal Property Rights" as the answer to the situation of communal property rights. As Tom Flanagan describes First Nations as "primitive communists", it is easy to see where this commentator divined his inspiration to write about "Soviet" First Nations.
Flanagan's plan is to turn reserves into fee simple, maximize land values, and open up reserves to be sold to non-Indians. In my opinion, this does not recognize constitutionally protected land rights and simply represents a right wing desire to see Aboriginal peoples assimilated once and for all. I have written a book review which summarizes the plan and highlights significant issues with it. It is called "Opportunity or Temptation" and you can find it on the Literary Review of Canada website under back issues in April 2010.
Such a plan far from recognizes the "distinct" First Nations' traditions, practices, laws, and customs in relation to Aboriginal lands, but in fact represents an intolerance for such difference. It demands that Aboriginal people be more like "westerners" and embrace capitalism and concepts of individual wealth over the welfare of family, community and Nation. Aboriginal peoples are not asking Canadians to adopt First Nations laws and concepts, just to respect their right to have their own ideals.
A basic tennet of liberal democracies like Canada, is that of tolerance and respect for difference. Forcing First Nations to adopt Canadian ideals is actually very undemocratic. It is quite hypocritical for Canadians to defend their Charter and Constitutional rights so vehemently, except when it comes to the constitutional rights of Aboriginal peoples. It is time these right wingers thought more about what a true democracy means and start walking the walk before they go around telling other people to be more Canadian.
First Nations identities, cultures, and lands are under attack once again from the newly revitalized right wingers (thanks to PM Harper and his conservative party) who think that the only "true" Canadians are those that look, walk, talk, and think alike. This is despite the fact that First Nations have never imposed such rules on Canadians. First Nations are not asking for anything other than for Canadians to live up to their constitutional promises.
http://www.canlii.org/en/ca/const/const1982.html
Section 35 of the Constitution Act, 1982 is the Supreme law of the land. No federal or provincial government has the authority to enact laws and policies outside those legal boundaries by which Canadians have agreed to live. Section 35 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. In case there was any doubt, in 1996 Canada publicly recognized that Aboriginal peoples have the "inherent right" to self-government and that this right was protected in s.35.
http://www.ainc-inac.gc.ca/al/ldc/ccl/pubs/sg/sg-eng.asp
The inherent right to be self-governing does not mean that First Nations MUST govern themselves according to western laws, ideologies, and governance structures. That would defeat the whole purpose of being self-governing according to one's OWN laws, customs, and practices. Even the Supreme Court of Canada in Van der Peet recognized that:
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
http://www.canlii.org/en/ca/scc/doc/1996/1996canlii216/1996canlii216.html
Additionally, PM Harper stood before and on behalf of ALL Canadians and apologized to First Nations for the assimilatory attitudes upon which policies like residential schools were based. Specifically, PM Harper explained that:
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 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.
http://www.ainc-inac.gc.ca/ai/rqpi/apo/index-eng.asp
This apology is in line with other pronouncements from the Supreme Court of Canada (SCC)regarding the purpose of protecting the rights of Aboriginal peoples in the Constitution Act, 1982. Specifically, the SCC held in Powley that the purpose of section 35 was to protect to recognize and enhance Aboriginal peoples "survival as distinctive communities." Distinctive refers to the unique laws, cultures, traditions, practices and beliefs of Aboriginal Nations. The SCC explained that the "purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities" so that they can preserve their cultures for future generations.
http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html
So, if the supreme law of the land, our country's highest court, and even the Prime Minister recognizes the need to protect Aboriginal laws, customs, practices, beliefs, traditions, and cultures, how is it that the right wingers in society cannot wrap their minds around that concept?
Today, I read a comment in the National Post which referred to First Nations concepts of communal property as "Soviet-style native property rules". Never mind that the "Soviet Union" doesn't even exist anymore, but the comparison shows the ignorance of the commentator.
http://fullcomment.nationalpost.com/2010/09/03/national-post-editorial-board-enough-soviet-style-native-property-rules/
The commentator alleges that Canadians who live on reserve are "denied the ability to own real property". In fact, any Aboriginal person may own property off-reserve in fee simple. On reserve, they can hold property in a Certificate of Possession (CPs) which is similar to fee simple, except that it can't be sold to non-Indians. This form of property ownership respects the communal nature of land ownership in First Nations. The communal nature of land holding in First Nations has long been recognized by laws, courts, and our constitution as an integral
part of First Nations laws, rules and practices related to their lands.
The commentator also alleges that Aboriginal people "cannot hold true title to their homes" nor can they "mortgage a property to raise capital". In fact, Aboriginal people can hold CPs to their homes and even obtain a mortgage through various programs at CMHC and INAC. The link below provides details about how the process works:
http://www.cmhc-schl.gc.ca/en/ab/onre/onre_008.cfm
The commentator also claims that Aboriginal peoples cannot develop their "land as they see fit". This may or may not be true, depending on the zoning and other land use codes that may or may not in place in any particular First Nation. It is interesting to note however, that most Canadians cannot develop their land as they see fit due to zoning and other municipal land use by-laws. This comment reflects an obvious lack of knowledge around the subject.
More troubling is the allegation that Aboriginal peoples "can lose their homes without recourse, whenever it happens to be convenient for band council to give their property to a new occupant". This is categorically false. Various provisions of the Indian Act lay out how land is to be allotted, how CPs can be issued, and the process under which land can be expropriated. Canadian and provincial laws allow lands of Canadians to be expropriated in special circumstances, but never without compensation. The rules are similar on a reserve. Of course, the rules may well be different for self-governing First Nations and/or those under the First Nations Land Management Act.
http://laws.justice.gc.ca/PDF/Statute/I/I-5.pdf
The commentator uses the example of Kahnawake where the band council enacted residency by-laws prohibiting non-members from residing on their reserve. When asked about the legality of such a by-law, the former Minister of Indian Affairs, Chuck Strahl claimed it was "legal" and even "constitutional" despite the fact that in order for a by-law to be legal it must be submitted to INAC for approval - which according to INAC was never done.
http://www.nationalpost.com/news/story.html?id=2542877
I agree completely with the commentator that such a law, which evicts non-Indian spouses of legitimate band members from their homes, is racist. It divides children from their parents, and families from their communities. Instead of protecting their Nation, they are actually speeding up their own assimilation. I myself, have written a blog about the injustice of this situation.
http://nonstatusindian.blogspot.com/2010/02/mohawks-or-canadas-disappearing-indians.html
That being said, Kahnawake does not represent all 633 First Nations in Canada. Just as the serial killer Robert Pickton does not represent the values of all Canadians, nor does Kahnawake represent the majority of First Nations values.
Finally, the commentator praises Tom Flanagan's new book: Restoring Aboriginal Property Rights" as the answer to the situation of communal property rights. As Tom Flanagan describes First Nations as "primitive communists", it is easy to see where this commentator divined his inspiration to write about "Soviet" First Nations.
Flanagan's plan is to turn reserves into fee simple, maximize land values, and open up reserves to be sold to non-Indians. In my opinion, this does not recognize constitutionally protected land rights and simply represents a right wing desire to see Aboriginal peoples assimilated once and for all. I have written a book review which summarizes the plan and highlights significant issues with it. It is called "Opportunity or Temptation" and you can find it on the Literary Review of Canada website under back issues in April 2010.
Such a plan far from recognizes the "distinct" First Nations' traditions, practices, laws, and customs in relation to Aboriginal lands, but in fact represents an intolerance for such difference. It demands that Aboriginal people be more like "westerners" and embrace capitalism and concepts of individual wealth over the welfare of family, community and Nation. Aboriginal peoples are not asking Canadians to adopt First Nations laws and concepts, just to respect their right to have their own ideals.
A basic tennet of liberal democracies like Canada, is that of tolerance and respect for difference. Forcing First Nations to adopt Canadian ideals is actually very undemocratic. It is quite hypocritical for Canadians to defend their Charter and Constitutional rights so vehemently, except when it comes to the constitutional rights of Aboriginal peoples. It is time these right wingers thought more about what a true democracy means and start walking the walk before they go around telling other people to be more Canadian.
Friday, August 20, 2010
Canada's Blood Quantum Formula for Assimilation
This blog provides another excerpt from my doctoral thesis that I am currently converting into a book for publication. This section deals with the second generation cut-off rule in the Indian Act, 1985 that was not specifically challenged by Sharon McIvor in her court case. To my mind, the descent provisions in the Act are essentially blood quantum formulas that perpetuate colonial, racist ideologies about what it meant to be a "real" Indian.
Ongoing racist ideologies about the identities of Aboriginal peoples is the underlying problem with the Act and federal policies with regards to Aboriginal peoples. If we do not acknowledge and address that issue, equitable solutions will not be possible. The McIvor decision on appeal is a prime example of how embedded such racist ideology actually is in all levels of our society.
Here is the excerpt:
If we are ever to convince the courts to address this fundamental problem in federal policy, and even within their own jurisprudential logic and reasoning, we must name it for what it is - the current second generation cut-off rule in section 6(2) of the Indian Act,1985 is really a measurement of blood quantum or degree of descent.
The fact that Canada has chosen to use milder words to categorize the rule as: "genealogical proximity", "degree of Indian parentage", "genealogical connection", or "genealogical standard" does not escape the fact that this is an exercise in racism and forced assimilation.
Canada has openly created, justified and vigorously defended an identification system for Aboriginal peoples based solely on blood quantum or degree of descent, which is clearly a modern day act of racism.
The use of different wording does not cover up what Canada is doing - it is requiring that all status Indians be "real" Indians as viewed from Eurocentric ideologies around blood purity and race.
Aside from being legally unjustifiable, it is morally repugnant and should be exposed for what it is: forced assimilation.
Both blood quantum and assimilation has been denounced domestically and internationally and should no longer be a part of Canadian law or policy.
In fact, Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that no Indigenous peoples shall be subjected to forced assimilation or destruction of their culture. Further, the State has a positive obligation to prevent the loss of such culture and identity.
My goal in publishing this book is to raise awareness about the underlying problems and talk about the tough issues like why some Aboriginal people inadvertently advocate (through blood quantum) their own assimilation. Until we do this, Canadian courts will continue to define who we are based on colonial ideals of the "authentic Indian" which represents little more than fictional stereotypes.
Obviously, this is a small excerpt from hundreds of pages which explain all of the above concepts and provide scholarly and legal support for my claims. That being said, there are always strong views on all sides and there will always be differences of opinion. I, personally, can never accept a biological determination of who we are - whether you call it status, membership or something else.
Please feel free to send any comments to palmater@nonstatusindian.com
Ongoing racist ideologies about the identities of Aboriginal peoples is the underlying problem with the Act and federal policies with regards to Aboriginal peoples. If we do not acknowledge and address that issue, equitable solutions will not be possible. The McIvor decision on appeal is a prime example of how embedded such racist ideology actually is in all levels of our society.
Here is the excerpt:
If we are ever to convince the courts to address this fundamental problem in federal policy, and even within their own jurisprudential logic and reasoning, we must name it for what it is - the current second generation cut-off rule in section 6(2) of the Indian Act,1985 is really a measurement of blood quantum or degree of descent.
The fact that Canada has chosen to use milder words to categorize the rule as: "genealogical proximity", "degree of Indian parentage", "genealogical connection", or "genealogical standard" does not escape the fact that this is an exercise in racism and forced assimilation.
Canada has openly created, justified and vigorously defended an identification system for Aboriginal peoples based solely on blood quantum or degree of descent, which is clearly a modern day act of racism.
The use of different wording does not cover up what Canada is doing - it is requiring that all status Indians be "real" Indians as viewed from Eurocentric ideologies around blood purity and race.
Aside from being legally unjustifiable, it is morally repugnant and should be exposed for what it is: forced assimilation.
Both blood quantum and assimilation has been denounced domestically and internationally and should no longer be a part of Canadian law or policy.
In fact, Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that no Indigenous peoples shall be subjected to forced assimilation or destruction of their culture. Further, the State has a positive obligation to prevent the loss of such culture and identity.
My goal in publishing this book is to raise awareness about the underlying problems and talk about the tough issues like why some Aboriginal people inadvertently advocate (through blood quantum) their own assimilation. Until we do this, Canadian courts will continue to define who we are based on colonial ideals of the "authentic Indian" which represents little more than fictional stereotypes.
Obviously, this is a small excerpt from hundreds of pages which explain all of the above concepts and provide scholarly and legal support for my claims. That being said, there are always strong views on all sides and there will always be differences of opinion. I, personally, can never accept a biological determination of who we are - whether you call it status, membership or something else.
Please feel free to send any comments to palmater@nonstatusindian.com
Wednesday, July 28, 2010
Canada Lacks Authority to Legislate Extinction of Indians
I am in the process of editing my doctoral thesis into a book that will be published either late this year or early next. The topic is Aboriginal citizenship and how we need to think about Aboriginal identity and belonging in a different way. Canada has legislated our individual (status) and communal (membership) identities for so long that many of us have internalized the colonial views about what it means to be an Indian.
I am a Mi'kmaq woman and traditionally, my identity had nothing to do with status and everything to do with culture, language, practices, beliefs, customs, common ancestries, histories and territories. Today, unfortunately, for all practical purposes Canada controls status which largely controls band membership and therefore "recognized" identity.
Some of us have forgotten what it means to be Mi'kmaq, Mohawk or Cree and instead concentrate on Canada's Indian status, blood quantum, hair colour, or reserve residency as the only indicators of Aboriginal identity. Despite the fact that these racist criteria originated with colonial governments, and that they will eventually lead to our collective legal extinction, we are still struggling with high levels of internalization.
My book tries to address these issues. Here is an excerpt from my doctorate which makes the point that Canada lacks the authority to legislate our extinction:
Canada has the power under section 91(24) of the Constitution Act, 1867 to legislate with regards to "Indians". However, this does not give Canada a right to make rules for Aboriginal peoples which are harmful to them or that are inconsistent with Canada’s fiduciary duty towards them.
The protections contained in section 35 of the Constitution Act, 1982 equally act as a limit on federal and provincial governments with regards to Aboriginal and treaty rights. The Court in Sparrow explained that section 35 acts as a specific restraint on Canada’s power to legislate:
"Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle... and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada..." (emphasis added)
When the Aboriginal right to determine citizenship is considered in this light, it is obvious that restrictions on powers apply to all parties. Therefore, Canada lacks the power to ensure the extinction of Aboriginal peoples through its restrictive status and membership provisions in the Indian Act - despite its legislative powers in section 91(24) of the Constitution Act, 1867.
This is an important fact that has been lost in many of the studies and debates over Bill C-3. Canada has assumed that its power to legislate with regards to Indians knows no bounds - but the SCC jurisprudence indicates otherwise.
Many more edits to go before I finish my book - but I welcome comments on this excerpt from my doctorate in the meantime.
Pam
I am a Mi'kmaq woman and traditionally, my identity had nothing to do with status and everything to do with culture, language, practices, beliefs, customs, common ancestries, histories and territories. Today, unfortunately, for all practical purposes Canada controls status which largely controls band membership and therefore "recognized" identity.
Some of us have forgotten what it means to be Mi'kmaq, Mohawk or Cree and instead concentrate on Canada's Indian status, blood quantum, hair colour, or reserve residency as the only indicators of Aboriginal identity. Despite the fact that these racist criteria originated with colonial governments, and that they will eventually lead to our collective legal extinction, we are still struggling with high levels of internalization.
My book tries to address these issues. Here is an excerpt from my doctorate which makes the point that Canada lacks the authority to legislate our extinction:
Canada has the power under section 91(24) of the Constitution Act, 1867 to legislate with regards to "Indians". However, this does not give Canada a right to make rules for Aboriginal peoples which are harmful to them or that are inconsistent with Canada’s fiduciary duty towards them.
The protections contained in section 35 of the Constitution Act, 1982 equally act as a limit on federal and provincial governments with regards to Aboriginal and treaty rights. The Court in Sparrow explained that section 35 acts as a specific restraint on Canada’s power to legislate:
"Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle... and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada..." (emphasis added)
When the Aboriginal right to determine citizenship is considered in this light, it is obvious that restrictions on powers apply to all parties. Therefore, Canada lacks the power to ensure the extinction of Aboriginal peoples through its restrictive status and membership provisions in the Indian Act - despite its legislative powers in section 91(24) of the Constitution Act, 1867.
This is an important fact that has been lost in many of the studies and debates over Bill C-3. Canada has assumed that its power to legislate with regards to Indians knows no bounds - but the SCC jurisprudence indicates otherwise.
Many more edits to go before I finish my book - but I welcome comments on this excerpt from my doctorate in the meantime.
Pam
Friday, July 9, 2010
Letter to editor of Globe & Mail re Bill S-4
Dear editor;
My name is Pam Palmater and I am a Mi'kmaq lawyer originally from New Brunswick and am now the Chair of Ryerson University's Centre for Indigenous Governance. I was called as an expert witness on several bills, including Bill S-4 - Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise referred to as MRP legislation). Please find attached a copy of my official submission to the Senate in this regard. However, I would also refer you to the transcript of Senate proceedings as this contains additional vital information about the Bill and its potential impacts.
The reason for my letter to you today is because Mr. Curry, in his article dated July 6, 2010 and entitled "Senate approves bill to help abused, divorced aboriginal women", presented factually inaccurate information which serves only to perpetuate misleading information about the real issues and negative stereotypes about Aboriginal peoples.
For example, while the sub-headline may create drama around the vote to support/reject the bill, the fact is 32 Senators voted against it, not two, and they voted this way primarily because of the nearly unanimous voices of the Aboriginal leaders, women and organization that appeared before the Senate on Bill S-4. Those 32 Senators who voted against this bill did so based on very informed and detailed presentations from well-respected groups like the Canadian Bar Association who warned that this Bill would create new rights for non-Indians in reserve land and that consultation was required before the bill proceeded.
Even more shameful is the fact that there is very little reference to what Aboriginal peoples' views were - and an embarrassing lack of reference to the views presented by Aboriginal women themselves. Before the Senate there was nearly unanimous opposition to this Bill by Aboriginal women like myself, Native Women's Association of Canada, Quebec Native Women, Women Chiefs of the Assembly of First Nations and others. The common theme amongst the Aboriginal women was that change is definitely needed, but no Aboriginal women were willing to give up their individual and communal Aboriginal, treaty, land and governance rights in exchange for federal control over matrimonial property.
What gets forgotten is that a violation of the right to self-government of a First Nation is also a violation against that First Nation's women. Aboriginal women are struggling to protect their rights and identities for their future generations which can't be achieved if Canada resorts back to paternalistic control over their personal lives and re-institutes Indian agents through "verifiers". Even worse is the fact that this bill won't help Aboriginal women but will open up reserve lands to non-Indians in violation of countless treaties, the Royal Proclamation, the Indian Act itself and the Constitution Act, 1982. This aspect of the Bill is, in essence, illegal. It purports to unilaterally change constitutionally protected rights without amending the constitution. Canada cannot, by amendment of the Indian Act, amend the Constitution. First Nations lands are protected for the SOLE use of First Nations and changing this fact without consultation with First Nations has been referred to by various academics as an abuse of power.
Mr. Curry also refers to the fact that Bill S-4 is the third time around for MRP legislation but fails to highlight that the reason it failed the last two times was because there was no consultation with First Nations. Consultation is not a mere nicity that the government can choose to ignore at will. In addition to the honour of the Crown and its various fiduciary obligations towards Aboriginal peoples, Canada has a LEGAL obligation to fully inform, consult with and accommodate the legitimate concerns of First Nations whose Aboriginal, treaty and/or land rights may be impacted by government decisions, actions, policy or legislation. I need only refer to the numerous Supreme Court of Canada decisions like Haida, Taku, Mikisew Cree, Delgamuukw, Guerin, Sparrow, Van der Peet Trilogy, Sappier and Gray which support this fact.
The fact of the matter is that Canada "engaged" with Aboriginal political organizations at a very general level but it did not consult with First Nations specifically about Bill S-4. Even Canada's own Ministerial representative concluded that consultations had NOT taken place and that any solution must include consultation.
Whenever a well-read newspaper such as the Globe and Mail leaves out critical information that would permit readers to have access to at least the basic information to come to their own conclusions about issues like Bill S-4, it detracts from its usefulness and risks becoming a one-sided advocacy piece. Readers deserve more and so do the subjects that you treat. Aboriginal peoples are regularly portrayed negatively in the media because that serves the interests of right-wing thinkers who believe everyone should subscribe to their limited views about what it means to be a Canadian.
So, the fact the Mr. Curry could write about Bill S-4 and not even mention the fact that this Bill will affect First Nation jurisdiction over their own lands or that it does not recognize and implement their right to be self-governing - both rights of which are protected in section 35 of the Constitution Act, 1982 is irresponsible. In 1996 Canada recognized that the inherent right of self-government was protected in section 35 of the The Constitution Act, 1982 and that issues like membership and family law was the sole jurisdiction of First Nations. The Constitution Act, 1982 is the Supreme Law of Canada and Canada can't choose to honour it only when it is convenient. We just celebrated Canada Day on July 1 - perhaps we also need a day to celebrate our Constitution and remind Canadians that First Nations and their rights are just as an integral part of our Constitution as are our highly valued Charter of Rights and Freedoms.
In addition to these glaring omissions, I would also like to draw your attention to several factual inaccuracies:
(1) Mr. Curry claims that this bill is designed to help "abused, divorced aboriginal women". The conservative senators specifically clarified at the hearings that this bill was not targeted at abused Aboriginal women. I refer you to the transcript for more details. Similarly, even if it was, it should be noted that all legal experts who presented testified that this bill does not offer real remedies for Aboriginal women as there is no funding to access lawyers or courts and there is no funding to help create local remedies that are accepted by the community.
(2) Mr. Curry claims that Aboriginal women's only options are to "plead their case to the local band council". He obviously did not follow the hearings or peruse the transcripts which highlighted the First Nations who have already designed their own MRP laws or have traditional or informal rules which take care of MRP issues. I refer specifically to Anishanabek Nation, Six Nations, Akwesasne and others who, under this bill, will have their own MRP laws rejected. While MRP laws are necessary in many First Nation communities, what is needed is capacity building and funding to support First Nations to work with their communities to come up with their own laws and local dispute resolution mechanisms - we already know from residential schools how things turn out when Canada imposes its own views on Aboriginal peoples.
(3) Citing Senator LeBreton does not help Mr. Curry's article either. Mr. Curry cites her as saying that she is "mystified" that Aboriginal Women Senators Dyck and Lovelace would oppose the bill. With all due respect, she could only come to that conclusion if she ignored nearly every single submission and testimony that was made before the Senate hearings on Bill S-4. Senator Lovelace and Dyck are well-respected Aboriginal women who have been a part of the struggle to have the voices of First Nations and Aboriginal women in particular heard. What those two Senators did was actually listen to what Aboriginal women and First Nations said and brought those views and concerns forward. This is what is expected of those who represent the people - Senators blindly support whatever their political party advocates without listening to the people are undemocratic.
LeBreton didn't even listen to what her own conservative senators said at the hearing. She claims the legislation is geared towards "preventing cases of repeated abuse" yet her own conservative members specifically stated that it was not. When she did refer to testimony she discounted what the AFN had said on the basis that most First Nations leaders are male. Again, I would refer you to the testimony of the Aboriginal women, experts and organizations that were also against this bill. I would refer you to the report of the Ministerial Representative on MRP who highlighted the fact that there are more Aboriginal women chiefs of First Nations in Canada, than there are women in the House of Commons. My elders always use to tell me that before one could criticize another, they should be sure that they have their own teepee in order.
So, instead of trying to twist the issue to one of Aboriginal women versus Aboriginal men or individual rights versus communal rights, I would respectfully suggest that Mr. Curry look at the real issue: how Canada continues to develop policies and laws which control, divide and assimilate Aboriginal peoples despite their legally and constitutionally protected rights. If Canada was truly concerned about gender equality, it would work with Aboriginal women to amend Bill C-3 Gender Equity in Indian Registration Act to once and for all make status equal between Aboriginal men and women. Canada can't have it both ways - it either wants true gender equality for Aboriginal women in all laws and policies or it doesn't. If it does, then it has to listen to Aboriginal women about Bill S-4 and the need for consultation. If it doesn't, then we'll see more of the legislation that the conservatives have tried to cram through the House and Senate - Bill S-4, Bill C-3, Bill C-24, and Bill S-11.
Respectfully;
Pam
My name is Pam Palmater and I am a Mi'kmaq lawyer originally from New Brunswick and am now the Chair of Ryerson University's Centre for Indigenous Governance. I was called as an expert witness on several bills, including Bill S-4 - Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise referred to as MRP legislation). Please find attached a copy of my official submission to the Senate in this regard. However, I would also refer you to the transcript of Senate proceedings as this contains additional vital information about the Bill and its potential impacts.
The reason for my letter to you today is because Mr. Curry, in his article dated July 6, 2010 and entitled "Senate approves bill to help abused, divorced aboriginal women", presented factually inaccurate information which serves only to perpetuate misleading information about the real issues and negative stereotypes about Aboriginal peoples.
For example, while the sub-headline may create drama around the vote to support/reject the bill, the fact is 32 Senators voted against it, not two, and they voted this way primarily because of the nearly unanimous voices of the Aboriginal leaders, women and organization that appeared before the Senate on Bill S-4. Those 32 Senators who voted against this bill did so based on very informed and detailed presentations from well-respected groups like the Canadian Bar Association who warned that this Bill would create new rights for non-Indians in reserve land and that consultation was required before the bill proceeded.
Even more shameful is the fact that there is very little reference to what Aboriginal peoples' views were - and an embarrassing lack of reference to the views presented by Aboriginal women themselves. Before the Senate there was nearly unanimous opposition to this Bill by Aboriginal women like myself, Native Women's Association of Canada, Quebec Native Women, Women Chiefs of the Assembly of First Nations and others. The common theme amongst the Aboriginal women was that change is definitely needed, but no Aboriginal women were willing to give up their individual and communal Aboriginal, treaty, land and governance rights in exchange for federal control over matrimonial property.
What gets forgotten is that a violation of the right to self-government of a First Nation is also a violation against that First Nation's women. Aboriginal women are struggling to protect their rights and identities for their future generations which can't be achieved if Canada resorts back to paternalistic control over their personal lives and re-institutes Indian agents through "verifiers". Even worse is the fact that this bill won't help Aboriginal women but will open up reserve lands to non-Indians in violation of countless treaties, the Royal Proclamation, the Indian Act itself and the Constitution Act, 1982. This aspect of the Bill is, in essence, illegal. It purports to unilaterally change constitutionally protected rights without amending the constitution. Canada cannot, by amendment of the Indian Act, amend the Constitution. First Nations lands are protected for the SOLE use of First Nations and changing this fact without consultation with First Nations has been referred to by various academics as an abuse of power.
Mr. Curry also refers to the fact that Bill S-4 is the third time around for MRP legislation but fails to highlight that the reason it failed the last two times was because there was no consultation with First Nations. Consultation is not a mere nicity that the government can choose to ignore at will. In addition to the honour of the Crown and its various fiduciary obligations towards Aboriginal peoples, Canada has a LEGAL obligation to fully inform, consult with and accommodate the legitimate concerns of First Nations whose Aboriginal, treaty and/or land rights may be impacted by government decisions, actions, policy or legislation. I need only refer to the numerous Supreme Court of Canada decisions like Haida, Taku, Mikisew Cree, Delgamuukw, Guerin, Sparrow, Van der Peet Trilogy, Sappier and Gray which support this fact.
The fact of the matter is that Canada "engaged" with Aboriginal political organizations at a very general level but it did not consult with First Nations specifically about Bill S-4. Even Canada's own Ministerial representative concluded that consultations had NOT taken place and that any solution must include consultation.
Whenever a well-read newspaper such as the Globe and Mail leaves out critical information that would permit readers to have access to at least the basic information to come to their own conclusions about issues like Bill S-4, it detracts from its usefulness and risks becoming a one-sided advocacy piece. Readers deserve more and so do the subjects that you treat. Aboriginal peoples are regularly portrayed negatively in the media because that serves the interests of right-wing thinkers who believe everyone should subscribe to their limited views about what it means to be a Canadian.
So, the fact the Mr. Curry could write about Bill S-4 and not even mention the fact that this Bill will affect First Nation jurisdiction over their own lands or that it does not recognize and implement their right to be self-governing - both rights of which are protected in section 35 of the Constitution Act, 1982 is irresponsible. In 1996 Canada recognized that the inherent right of self-government was protected in section 35 of the The Constitution Act, 1982 and that issues like membership and family law was the sole jurisdiction of First Nations. The Constitution Act, 1982 is the Supreme Law of Canada and Canada can't choose to honour it only when it is convenient. We just celebrated Canada Day on July 1 - perhaps we also need a day to celebrate our Constitution and remind Canadians that First Nations and their rights are just as an integral part of our Constitution as are our highly valued Charter of Rights and Freedoms.
In addition to these glaring omissions, I would also like to draw your attention to several factual inaccuracies:
(1) Mr. Curry claims that this bill is designed to help "abused, divorced aboriginal women". The conservative senators specifically clarified at the hearings that this bill was not targeted at abused Aboriginal women. I refer you to the transcript for more details. Similarly, even if it was, it should be noted that all legal experts who presented testified that this bill does not offer real remedies for Aboriginal women as there is no funding to access lawyers or courts and there is no funding to help create local remedies that are accepted by the community.
(2) Mr. Curry claims that Aboriginal women's only options are to "plead their case to the local band council". He obviously did not follow the hearings or peruse the transcripts which highlighted the First Nations who have already designed their own MRP laws or have traditional or informal rules which take care of MRP issues. I refer specifically to Anishanabek Nation, Six Nations, Akwesasne and others who, under this bill, will have their own MRP laws rejected. While MRP laws are necessary in many First Nation communities, what is needed is capacity building and funding to support First Nations to work with their communities to come up with their own laws and local dispute resolution mechanisms - we already know from residential schools how things turn out when Canada imposes its own views on Aboriginal peoples.
(3) Citing Senator LeBreton does not help Mr. Curry's article either. Mr. Curry cites her as saying that she is "mystified" that Aboriginal Women Senators Dyck and Lovelace would oppose the bill. With all due respect, she could only come to that conclusion if she ignored nearly every single submission and testimony that was made before the Senate hearings on Bill S-4. Senator Lovelace and Dyck are well-respected Aboriginal women who have been a part of the struggle to have the voices of First Nations and Aboriginal women in particular heard. What those two Senators did was actually listen to what Aboriginal women and First Nations said and brought those views and concerns forward. This is what is expected of those who represent the people - Senators blindly support whatever their political party advocates without listening to the people are undemocratic.
LeBreton didn't even listen to what her own conservative senators said at the hearing. She claims the legislation is geared towards "preventing cases of repeated abuse" yet her own conservative members specifically stated that it was not. When she did refer to testimony she discounted what the AFN had said on the basis that most First Nations leaders are male. Again, I would refer you to the testimony of the Aboriginal women, experts and organizations that were also against this bill. I would refer you to the report of the Ministerial Representative on MRP who highlighted the fact that there are more Aboriginal women chiefs of First Nations in Canada, than there are women in the House of Commons. My elders always use to tell me that before one could criticize another, they should be sure that they have their own teepee in order.
So, instead of trying to twist the issue to one of Aboriginal women versus Aboriginal men or individual rights versus communal rights, I would respectfully suggest that Mr. Curry look at the real issue: how Canada continues to develop policies and laws which control, divide and assimilate Aboriginal peoples despite their legally and constitutionally protected rights. If Canada was truly concerned about gender equality, it would work with Aboriginal women to amend Bill C-3 Gender Equity in Indian Registration Act to once and for all make status equal between Aboriginal men and women. Canada can't have it both ways - it either wants true gender equality for Aboriginal women in all laws and policies or it doesn't. If it does, then it has to listen to Aboriginal women about Bill S-4 and the need for consultation. If it doesn't, then we'll see more of the legislation that the conservatives have tried to cram through the House and Senate - Bill S-4, Bill C-3, Bill C-24, and Bill S-11.
Respectfully;
Pam
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