DEFENDING OUR SOVEREIGNTY

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

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