Friday, June 18, 2010

Bill S-4 - Step Back In Time

The Senate is due to vote on Bill S-4 today (June 28). All indications say that it will pass despite nearly unanimous opposition to the Bill by First Nations and Aboriginal women's groups, then it has to go through the same process in the House once Parliament reconvenes in the fall.

Hopefully, in the meantime, MPs will see the Bill for what it is: A Step Back in Time. Despite the fact that Prime Minister Harper has apologized for the assimilatory foundations upon which residential school policy was based, this draconian, paternalistic bill is being imposed on First Nations against their will and contrary to their constitutionally protected right to be self-determining.

While I have many issues with the Bill, one aspect of the bill is clear evidence that Canada has reverted back to its paternalistic control over Indians as though they were once again wards of the state who must be controlled and assimilated. The verification officer is akin to the Indian agents which were slowly removed from reserves in the 1960's. Now they will be reinstituted to give Canada more control over Indians and their reserves for the benefit of the settler population.

Sections 8 to 16 inclusive of Bill S-4 deal with the verification process for adopting First Nations laws with regard to matrimonial real property on reserve (MRP). Before First Nations can enact their own MRP laws, they must be ratified through a community referendum process (25% of the eligible voters) and is "verified" by a verification officer that is appointed by an organization so designated by the Minister and the First Nation.

The job of the verification officer is to ensure that the community referendum plan and process is suitable to the officer. At all stages of the First Nation law-making process, the verification officer can withhold his/her approval which would prevent the First Nation from completing the next stage of the process. Even once the law-making process has been completed, the verification officer must certify the "conduct" of the referendum process before the laws are deemed validly approved.

The underlying assumption being that First Nations are not capable of respecting human rights - a stereotype denounced by even the Minister's Special Representative in her report on MRP. The inclusion of a verification officer and certification process has been described by various witnesses who have presented on Bill S-4 as akin to reinstituting Indian agents.

With regard to Indian agents and their control over Indians, John Borrows, a respected Indigenous scholar wrote an article which demonstrated through traditional story-telling that the federal government, in earlier times, consistently undermined First Nations liberties and freedoms by placing Indian agents in "supervisory roles" in their communities and that positive change has come about in First Nations by their continued resistance to these impositions. (J. Borrows, "Aboriginal Rights: Indian Agency and Taking What's Not Yours" (2003) 22 Windsor Y.B. of Access to Just. 253)

The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) explained that the superintendent general of Indian Affairs had a "vast array of powers to intervene in almost all areas of daily reserve life" and that the majority of those powers were granted to Indian agents. (RCAP, p.297) RCAP describes Indian agents as "all-powerful" because of their control over local, financial and judicial matters.

Once again, Bill S-4 seeks to re-establish "supervisors" within First Nations. INAC would have us take comfort in the fact that s.9(2) requires that the verification officer be unbiased, but if we go by past experience - this is highly unlikely. While some Indian agents demonstrated integrity, RCAP explains that many others were: "petty despots who seemed to enjoy wielding enormous power over the remnants of once powerful Aboriginal nations" and that "the Indian affairs branch often seemed to attract persons particularly imbued with the zeal associated with the strict morality and social Darwinism exhibited by deputy superintendents general Hayter Reed and Duncan Campbell Scott." (RCAP, p. 298)

How can INAC expect that they would attract anyone other than a person who believes First Nations need to be supervised to prevent human rights violations? Noel Dyck characterized Indian agents as "agents of coercive tutelage". (N. Dyck, "What is the Indian Problem: Tutelage and Resistance in Canadian Indian Administration (St. John's: ISER, 1991). This was inevitable given Indian Affairs' desire to preach the "gospel of self-help" to Indians living on reserve in the hopes that they would assimilate within a generation or two. (V. Satzewich, "Indian Agents and the 'Indian Problem' in Canada in 1946 (1997) 2 C.J.N.S. 227)

An aggressive nation-building strategy, together with ongoing settlement requirements led Indian Affairs to focus on socially transforming Indian communities to fit its own values. Despite contemporary awareness about the injustice of the situation, Indian agents blamed Indians for their lot in life and justified their control over them: "Unless they accepted the proposition that Native peoples could not lead a descent life without the direction that they provided, tutelage agents were cast in a role which they would arbitrarily and self-consciously exercise power over other human beings for no good reason." (Dyck, p.77)

The same can be said with the verification officers in Bill S-4. INAC is trying to socially transform First Nations from collectives with communal property and rights, to individuals divorced from their communities in both law and ideology. What "good reason" could INAC, through its verification officers have to impose its authority on First Nations local family matters? The very reason why our rights were protected in section 35 of the Constitution Act, 1982 is to protect our distinct cultures for the benefit of our future generations. If our cultures are communal then who is Canada to try to individualize us and destroy our Nations?

Prime Minister Harper stood before Canadians and apologized for the assimilatory foundations and attitudes of superiority upon which the residential schools policy was created. Specifically, he explained:"Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, "to kill the Indian in the child". Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country." (INAC, Apology)

If we are to take the Prime Minister at his word, then how could we enact a new law which would turn back the clock on Indian policy and reinstitute Indian Agents whose role it is to ensure that Indians behave as INAC believes they should - like the rest of Canadians. We already rejected the White Paper which tried to do the same thing. This Bill is Canada's way of doing indirectly what it is legally prevented from doing directly.

The vast majority of witnesses have testified strenuously against Bill S-4 and its two previous incarnations Bill C-8 and C-47. Yet, despite the Prime Minister's apology for the institutions imposed by INAC that "gave rise to abuse or neglect and were inadequately controlled", and that "There is no place in Canada for the attitudes that inspired the Indian Residential Schools system to ever prevail again", Canada is pushing this new legislation, verification officers and the creation of a new institution on First Nations against their will.

When will Canada listen to the nearly unanimous voices of First Nations and Aboriginal women who consistently tell Canada to stay out of their local affairs? Even Aboriginal women who advocated for MRP laws specifically stated this was to be done within the context of recognizing First Nation jurisdiction in this area. The United Nations Declaration on the Rights of Indigenous Peoples also provides that First Nations should have paramount jurisdiction over their own internal community affairs.

Indian agents were a sad chapter in our history and were (thankfully) slowly removed from Indian reserves in the 1960's. First Nations don't need Indian agents reintroduced through the back door as verification officers. If Canada truly wants to support, healthy, vibrant, self-sufficient First Nations, then it should provide equitable funding for social programs like housing, education and child and family services, as well as specifically empower and support First Nations to enact their own laws with legislative recognition and sufficient funding.

We have all stood together to reject this draconian and racist bill -now it is time for Canada to listen.

Bill S-4 - Backdoor Assimilation and Land Grab

Bill S-4 relates to matrimonial real property on reserve after the breakup of a marriage or relationship. After a process of hearing from witnesses and deciding on potential amendments, the Senate will vote on the Bill today. Even if the Bill is passed, it must still go through the same process in the House. Given Parliament's summer schedule, it likely won't be addressed until the fall.

That being said, there are numerous problems with Bill S-4. While some protections are important for those who divorce or no longer cohabitate, Bill S-4 represents backdoor assimilation - a key feature of the conservative government's agenda, well-informed by Tom Flanagan and his right-wing ideas. One particular issue of concern is that of the recent amendments which would allow courts to "consider" First Nation collective interests in divorce cases.

The legality of Bill S-4 in disposing of constitutionally protected land rights in reserves have not been fully canvassed. In my opinion, given that reserve lands are the same as Aboriginal title lands in terms of their inalienability and collective nature (as stated by the SCC), and given the fact that many of those reserves were created pursuant to treaties which are constututionally protected, there is no legal way that Bill S-4 can legally override that.

As Canada knows very well, legislation cannot amend the Constitution Act, 1982- and this Bill proposes to do just that. Adding a clause that allows the courts to only "consider" the collective nature of reserve lands does not change that fact. Either Bill S-4 can amend the Constitution or it cannot. Either Bill S-4 can violate treaty protected reserve lands or it cannot. It is not up to a court, within the context of a family dispute to only "consider" those facts and issue a decision which contravenes the Constitution Act, the Indian Act or treaties.

Canada argues that by adding provisions which allow the courts to "consider" First Nation land rights, that this somehow mitigates their legal and fiduciary obligations with regards to First Nation lands. Not only does this legislation not meet Canada's fiduciary obligations, it increases requirements on First Nations to defend their land rights. This legislation will require First Nations to defend the title to their reserve lands over and over again after each and every marital or relationship breakdown. We are requiring that First Nations appear in thousands of court rooms to defend their treaty rights and constitutional rights at their own expense.

Senator Brazeau made that point very clear when I appeared before the Senate - when First Nations said that had no capacity to develop their own laws but would challenge S-4 in court if it violated their land rights, Senator Brazeau told them they couldn't defend their collective rights because they had no capacity. Unfortunately, I fear this will be the case. Thousands of divorce cases will go to court absent representation from First Nations who have no money for lawyers, travel expenses or research to justify why their treaty and constitutionally protected reserve lands should remain protected.

There are no other constitutional rights that must be defended over and over again - but those of First Nations. Canadians have yet to accept that section 35 recognizes, affirms and protects Aboriginal and treaty rights - which includes land claims, modern treaties and self-government agreements. Canada has already stated that section 35 protects the inherent right of self-government - I can't see anything more inherent to self-government than First Nations management of their own lands.

Bill S-4 does not protect any of those rights, but insteads belittles them and reduces them to a mere "consideration" for judges who must decide how to dispose of reserve property. This is insulting to at best and illegal at worst. First Nations were forced unto reserves, they have lost the vast majority of their traditional territories and all they have left are their tiny reserves. Now we are telling First Nations that reserves are up for grabs and we can ignore constitutionally protected rights at will. This is reminiscent of the Royal Proclamation of 1767 and the days when we had to protect Indian lands from settlement.

Imagine First Nations which are located next to major cities or who have high rates of outmarriage due to small populations - within literally 1 year some reserves could be occupied exclusively by non-Indians and the "temporary" nature of that possession does not change that fact. How can we ask First Nations who have the lowest socio-economic indicators to lose what little they have left? That Canada could advance such a position is a disgrace and it flies in the face of international common law and norms in relation to the need to provide GREATER protections for Indigenous lands not less.

Once again, through the backdoor the Conservative government is trying to enforce its assimilatory agenda. The Conservatives know they can't simply disband reserves, so they are trying to do so under the guise of protection of families or economic development (Bill C-24). One can't help but take note that Flanagan was Harper's former advisor and that Flanagan is not only behind C-24 but has advocated specifically for the privatization of reserve lands.

Reserve lands are not for sale. They are not available for non-Indian settlement. Assimilation and land theft is supposed to be over - it is supposed to be a thing of the past that Canada has apologized for - unfortunately Bill S-4 ressurects those ideologies:

- that Indian land should be abvailable to non-Indians;
- that First Nations are incapable of resolving their own internal matters;
- that First Nation culture is inferior to ours, such that they are more likely to violate human rights;
- that First Nations are so juvenile and incompetent that they must be treated as wards and supervised while they consult with their communities on Bill S-4 and their actions watched closely and "verified" as acceptable.

We should all be disgusted that this assimilatory attitude is not called for what it is: racist and draconian. Canada needs to leave First Nations alone with regards to their own internal affairs. If they make mistakes, they'll fix them. If they violate human rights, the appropriate bodies will address that. We need to respect our Supreme Court of Canada cases, our treaties and our Constitution - First Nation constitutional rights are no less the Supreme Law of the Land, than other constitiutional rights like gender equality.

Please send your views and concerns to your MPs over the summer months.

Saturday, June 12, 2010

Letter to the editor re Manny's Mission to Disband Reserves

Re: article in Hamilton Spectator on June 10, 2010 re "Private property on reserves next frontier"

Saturday, June 12, 2010

Dear editor;

Your article which alleges that there is growing support for Aboriginal ownership is far from accurate. This is an initiative of Manny Jules from the Squamish band and has been incorporated into Bill C-24 First Nations Certainty of Land Title Act without ANY consultation with First Nations.

Only he and a handful of other First Nations are in support of this idea. These are the same First Nations who have also advocated for other related legislative initiatives like the First Nations Land Management Act (FNLMA) and the First Nations Commercial and Industrial Development Act (FNCIDA). Yet despite their claims, the VAST majority of First Nations have NOT signed on to their previous initiatives nor are the majority in support of dividing up reserves into fee simple lands.

This is an assimilation plan by Tom Flanagan proposed in his new book "Beyond the Indian Act" that is no different than what he proposed in his previous book "First Nations? Second Thoughts". His goal is to divide up reserves into fee simple and dispand First Nations. As his first book came across as too overtly racist, Flanagan has decided to advocate for assimilation through the back door and use an Indian as the spokesperson.

Since Manny Jules thinks solely through the lens of economic development and has not considered the other aspects of what makes Aboriginal peoples distinct - their connection to the land which is and always has been communal in nature, he was the perfect candidate. Jules is willing to assimilate himself and his band members for the sake of making money as if economic development is the key to all First Nations issues. He completely ignores the importance of treaty implementation, resolution of land claims, and respect for the inherent right of First Nations to be self-determining.

I do not believe that any Chief or Council would even have the authority to make such a deal. Jules and Flanagan also fail to point out that Aboriginal Nations could not parcel out their lands in fee simple legally, as this would be necessarily inconsistent with why Aboriginal lands are protected in section 35 of the Constitution Act, 1982. It would also be in direct conflict with the majority of treaties in Canada which are the benefit of our "heirs and heirs forever" which cannot be sacrificed for the financial benefit of only the present generation. How could the division of reserves into fee simple parcels to be sold to non-Indians for profit in any be said to respect our treaties?

Please see the review I did of Flanagan's new book called "Beyond the Indian Act":

This plan is identical to that of the Dawes Act in the United States which saw the loss of massive swaths of land from tribal territories, that, despite a subsequent reverse in policy, have never been fully restored. Flanagan and Jules believe that this piece of legislation is different because it is voluntary. There were also voluntary Indian "Indian Hunters" who chased down Indian children who had escaped from residential schools and brought them back. The voluntary nature of the plan is no less insidious because they were able to co-opt Indians into doing it.

They also casually refer to those First Nations that have Certificates of Possession (CPs) as though the transition from CP to fee simple would be as simple as registering the interest. They fail to mention that on some reserves CPs are in the hands of a few, and the vast majority of band members do not have CPs. How would that be an equitable division? What about those who live off-reserve (which we now know amounts to 50%)? What about the many generations of those yet unborn who have a right to their communal lands?

To say that their bright idea has not been well thought out is an understatement. Jules constantly refers to the Nisga'a as the ultimate example of a First Nation that will be registering their individual interests in a provincial registration system. Yet, they fail to mention that the Nisga'a are cited by the majority of First Nations of how NOT to negotiate a self-government agreement.

Jules also appeared before the Canadian Bar Association yesterday and spoke about how he wants to be a "free man" and a "horse man" and that the only way to do that was to get out of Indian Act, focus on economic development and ensure First Nations laws are consistent with federal and provincial laws.

One chief's response was that - "If Jules wants to be within the federal family, he can tear up his status card and move off reserve", or as another chief said "He is free to divorce his community whenever he likes". Even if Jules has the support of his community, he is free to try and negotiate a self-government agreement with Canada and do that. But in the meantime, he need not advocate the assimilation of the rest of the 630+ First Nations in Canada.

Please remember that when you write articles about First Nations lands, you are talking about constitutionally protected rights. The Constitution Act, 1982 is the supreme law of the land - which binds all Canadians. To talk about deleting or amending constitutionally protected rights without a constitutional amendment is illegal and downplays the significance of those rights.

Respectfully submitted;


Tuesday, June 8, 2010

Bill S-4 - An Empty Shell of a Legislative Promise

Bill S-4 is An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. The short title is: Family Homes on Reserves and Matrimonial Interests or Rights Act. The bill was introduced in the Senate in March 2010 and had its first reading on March 31, 2010. Its second reading was May 5, 2010 and it is currently before the Standing Senate Committee on Human Rights for study.

This is the third time that this bill has been introduced. Its other two incarnations, were Bill C-8 and Bill C-47 both of which were opposed by Aboriginal peoples and both of which did not become law. Canada is now trying to pass what is referred to as MRP legislation (laws which deal with how to address property of the marriage after marriage breakdown) without consulting with First Nations and Aboriginal peoples impacted by the bill.

Yesterday, I appeared as a witness before the Standing Senate Committee on Human Rights to present my views about the Bill. Below are the recommendations that I made to the Committee:


(1) Bill S-4 should be withdrawn until consultations have been completed.

I wrote a 700 page doctoral thesis on the status provisions of the Indian Act, yet despite my familiarity with registration, it took me a great deal of time to fully understand and assess the actual legislative implications of Bill C-3. Bill C-3 is only 8 pages long and contains only 10 amendments that primarily deal with one main section of the Indian Act.

Bill S-4 on the other hand, is 45 pages in length and contains 60 new legislative provisions that interact with numerous complex provisions of the Indian Act dealing with reserve lands. These provisions involve a complex interplay between property, family, Aboriginal, constitutional, human rights and administrative law. How can the Minister expect the majority of First Nations to understand the bill let alone agree to it - if he has not consulted with them?

Canada cannot enact a bill which is not legally sound and claim that this will fill the current legislative gap. Had Canada consulted years ago, we would not be looking at the third incarnation of legislation - we'd have addressed the issue already.

If the bill is not withdrawn, then the following substantive amendments should be made:

(2) The bill must include a section in the preamble that specifically acknowledges First Nation jurisdiction over property and civil rights (including MRP) within their reserves and that this jurisdiction stems from their inherent right of self-government which is recognized and protected by section 35 of the Constitution Act, 1982.

(3) Specific reference must be made in the preamble to the inalienability of reserve lands as well as the fact that reserve lands are protected for the exclusive use and benefit of First Nations.

The Minister says on the one hand that Bill S-4 will clearly not "affect the title to the lands or change the status of collective reserve lands", but on the other hand he admits that there are provisions that will "touch" on those rights. Despite the Minister's conflicting assurances regarding reserve land protections, Bill S-4 will not only create new interests in reserve lands, but it will also create new entitlements for non-Indians to those lands.

(4) A "for greater certainty" clause should be added which specifically clarifies that First Nations have the power to enact MRP and related laws and related dispute resolution mechanisms under relevant sections of the Indian Act.

In the alternative, a clause could be added to specifically empower First Nations in this regard. For the Minister to say that Canada or the courts can't recognize First Nations jurisdiction to enact their MRP laws on reserve is to say that Canada has no legislative authority under section 91(24) of the Constitution Act, 1867, that the Constitution Act, 1982 is not the supreme law of the land, and that all decisions of the SCC have no legal application here in Canada. That position is simply unsupportable.

(5) With regard to laws enacted by First Nations, there must be a specific provision which provides that in the event of a conflict between federal, provincial or First Nations laws in this area, First Nations laws will be paramount.

Rushing Bill S-4 through the Senate as if First Nations are inherently discriminatory and regularly violating human rights is based on negative stereotypes not supported by the evidence. As the Ministerial representative concluded: "First Nations are just as responsible, accountable and transparent as other governments in Canada." They should therefore be provided the opportunity to enact their own laws and dispute resolution processes with regard to MRP.

(6) Sections which refer to mandatory referendum or ratification processes must be deleted and replaced with a section that allows First Nations to establish their own law-making and dispute resolution mechanisms.

This section might also include specific reference to the Charter of Rights and Freedoms, the Constitution Act, 1982, and First Nations customary law.

(7) There must be a specific clause in the bill which contains a non-derogation clause so as to specifically protect Aboriginal and treaty rights as well as rights contained in land claims and modern agreements.

Similar clauses appear in section 25 of the Canadian Charter of Rights and Freedoms as well as the CHRA.

(8) There must be a specific and complete exemption from the application of Bill S-4 for those First Nations who have already developed their own laws in relation to MRP or for those who subsequently do so.

The Minister characterized Bill S-4 as the "perfect resolution". Respectfully, he could only come to such a conclusion if he ignored the input given by his own MRP representative, the views of nearly 1000 Aboriginal women chiefs and councillors, the NWAC, the majority of First Nations witnesses who opposed the bill and the CHRC and the CBA who all raised serious questions about it.

(9) Similar to the repeal of section 67 of the CHRA, there must be a minimum of a three-year transitional period for First Nations to provide them with a fair opportunity to review the new bill and develop their own MRP laws and dispute resolution processes.

It has taken Canada over 100 years to get around to considering MRP rules for the Indian Act - First Nations deserve at least a three year transition period to develop their own laws before any type of transitional legislation is imposed on their communities. There is a clear precedent with equally important rights in the CHRA and no reason why that can't be incorporated here.

The choice is not between homelessness for Aboriginal women or supporting self-government. We can make the choice to have both as supporting self-government is supporting Aboriginal women . Furthermore, Aboriginal women have suggested self-government as a solution to this issue.

(10) Any section of Bill S-4 which creates a new interest in land for non-Indians should be deleted entirely.

Temporary possession of reserve lands in an emergency situation for periods of 90-180 is one thing, but possession of reserve lands by non-Indians for a period greater than one year should be determined as per First Nation laws in this area.

First Nations collective rights to their land is not something that should be taken lightly as they are protected by the Indian Act, section 35 of the Constitution Act 1982 and numerous treaties. The SCC in Sparrow, Delgamuuwk, Haida, Taku, and Mikisew Cree to name a few have held over and over again that Canada has a legal obligation to consult with First Nations. Therefore, Canada lacks the requisite authority to unilaterally change the essential characteristic of reserve lands through Bill S-4 and it certainly can't do so without formal legal consultations with First Nations.

(11) Any section which refers to or incorporates the use of a verifier and/or ratification process administered by Canada, should be deleted entirely.

Canada's record on human rights in relation to Aboriginal peoples is far from clean. One need only refer to Lavell, Lovelace, Corbiere, and McIvor cases or the current NCFS discrimination complaint currently before the CHRC to see that Canada has not addressed its own human rights violations. What gives Canada the right to supervise First Nations government over MRP?

(12) A "for greater certainty" clause should be included which clarifies the fact that no provision contained in Bill S-4 overrides or in any way alters the protections contained in section 89 of the Indian Act with regards to reserve lands and property.

The implications of Bill S-4 have not been fully examined in light of section 89 and other provisions of the Indian Act, Aboriginal and treaty rights, section 35 of the Constitution Act, 1982 or the Crown's fiduciary and consultation duties. This alone makes Bill S-4 fatally flawed and should be withdrawn.

(13) The sections relating to valuations should be amended to take into consideration the unique nature of the interest being valued.

A home which is band owned, and has no windows, no running or clean water, and is full of mold and abestos, will not appeal to a bank to provide a loan to a band member who is on social assistance to enable them to pay their ex-spouse half the "value" of the home.

(14) The definitions related to spouse must be amended to reflect a longer period of cohabitation than one year given the nature of reserve lands.
Some of my more general recommendations include:

(15) Funding should be provided to First Nations to both participate in Bill S-4 consultations and to enact their own MRP laws and dispute resolution mechanisms.

First Nations did not receive funding to help develop band membership codes after Bill C-31 in 1985 and as a result, the majority of First Nations do not have their own codes. Similarly, no money way provided to First Nations to review their by-laws and other codes for compliance with the CHRA after the repeal of section 67. Not surprisingly, most First Nations have not amended their laws or prepared for potential human rights claims despite the looming June 2011 deadline.

This situation is repeating itself with Bill S-4 - no funding has been committed to First Nations to develop their own MRP laws. It should come as no surprise then if First Nations do not enact their own MRP codes and that the "transitional" or "interim" rules in Bill S-4 become the status quo. This can't be said to respect their s.35 right to self-government.

(16) Bill C-3 must be amended to fully address gender inequality which is a major barrier to the descendants of Indian women and their descendants being able to access reserve residency and Bill S-4 in the first place.

The Minister testified that Aboriginal women are the most vulnerable group in Canada and that they need "immediate protection", yet he refuses to amend Bill C-3 to finally remedy gender inequality in the Indian Act with regard to status. Failure to address Bill C-3 will render Bill S-4 useless to thousands of Indian women and their descendants.

(17) Canada should withdraw all bills currently in the Senate and the House unless and until such time as it has properly consulted with First Nations and those impacted.

For a full copy of my submission, go to my website under MRP which is in the Current Issues section: