DEFENDING OUR SOVEREIGNTY

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.

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.