Friday, August 30, 2013

Manitoba's Epic Failure: Manitoba and Mining Companies Work Together to Deny First Nation Rights

Dr. Pamela Palmater, Chair in Indigenous Governance


Chief Arlen Dumas, Mathias Colomb Cree Nation

In Bruce Owen’s article in the Winnipeg Free Press “Chiefs agree to work on revenue sharing” dated Aug. 23, 2013, Manitoba’s Energy and Mines Minister Dave Chomiak announced that seven First Nation Chiefs had agreed to work with the province and mining companies on revenue sharing in the form of jobs and economic opportunities related to mining. Chomiak was also quoted as saying that the mining companies are onside with sharing revenue from mines with First Nations. However, in dismissing Red Sucker Lake First Nation’s actions to evict Mega Precious Metals from their territories, he failed to present the whole picture to Manitobans.

Manitoba is one of the only provinces that does not have a First Nation consultation policy, despite the Supreme Court of Canada saying since the 1990’s that the provinces have a legal duty to consult, accommodate and obtain the consent of First Nations for activities on their reserve, treaty and traditional lands. Despite their reference to a “draft” policy, First Nations have been left out of decisions in relation to natural resources on their lands. This has been a long-standing grievance with First Nations whose inherent, Aboriginal and treaty rights are constitutionally-protected. The United Nations Declaration on the Rights of Indigenous Peoples which Canada supported, also guarantees protections for First Nations lands and resources and reaffirms that states require First Nation consent.

While Chomiak’s quotes make it seem like Red Sucker Lake is the only First Nation opposed to illegal mining in their territory; that could not be further from the truth. Mathias Colomb Cree Nation has also taken steps to protect their traditional, treaty and reserve lands from Hudbay Minerals - a Canadian mining giant currently in court for alleged abuses of Indigenous peoples against mining in Guatemala. Hudbay was issued Stop Work Orders and eviction notices after failing to talk to Mathias Colomb Cree Nation.

These two communities are not alone in their efforts. On April 26, 2013, a protest was held outside of the Mines Branch in Winnipeg where approximately fifteen to twenty Chiefs, supported by Idle No More and other grassroots community members, were in attendance. Nine Chiefs, including Assembly of Manitoba Chiefs Grand Chief Derek Nepinak, Manitoba Keewatinowi Okimakanak Grand Chief David Harper and Southern Chiefs Organization Grand Chief Murray Clearsky, as well as Chiefs from Manto Sipi, Red Sucker Lake, Mathias Colomb Cree Nation, Wasagamack, Buffalo Point, and Garden Hill First Nations, issued a press release expressing very specific concerns against Manitoba’s illegal licenses and permits.

The Minister also failed to share that the mining companies are not onside with sharing the wealth from First Nations lands and resources. Hudbay Minerals has never provided any of the wealth to Mathias Colomb Cree Nation and its mining operations have negatively impacted the health of the plants, animals and waters in their territory. Similarly, Mega Precious Metals has not indicated a willingness to share the wealth from its mine on Red Sucker Lake territory. It is due to this consistent refusal by the province of Manitoba to comply with constitutionally-imposed legal obligations to First Nations, and the mining companies reliance on illegal licenses and permits, that First Nations in Manitoba are rising up to defend their rights. Even the United Nations report on mining on Indigenous lands deems licenses issued this way as “tainted” and not legal.

For Minister Chomiak to say that the mining companies are onside is perhaps the most outrageous claim in the article. In actual fact, both Hudbay and Mega Precious instituted heavy-handed measures against Mathias Colomb Cree Nation and Red Sucker Lake First Nations when they went out on their traditional lands and engaged in their peaceful traditional activities. The RCMP were called in, litigation was filed against the Chiefs and community members and injunctions were obtained to keep these First Nations off their own lands (and in the case of MCCN, an injunction was also obtained against Pam Palmater, an activist with Idle No More).

Just because seven Chiefs out of 63 want to meet with the province and mining companies, does not mean the majority of First Nations are onside with either Manitoba’s illegal licenses or mining companies who knowingly profiting from illegally-issued licenses and permits. To make this assumption would also ignore all the resolutions and motions passed from First Nations and First Nation organizations. For example, Swampy Cree Tribal Council passed a motion this year stating:

“Swampy Cree Tribal Council will not recognize any mining table, committee or working group or panel of experts set up by the Province of Manitoba or any decisions or recommendation they may make in relation to our lands and resources.”

Similarly, the Treaty Land Entitlement Committee resolved this year that:

“We hereby direct the federal and provincial government to honour and abide by our Moratorium not to use permits, licenses and any other dispositions or actions that may impact our Respective Treaty, Traditional territories and Ancestral lands”

The Assembly of Manitoba Chiefs and other First Nation organizations have passed similar resolutions supporting First Nations in their efforts to protect their sovereignty, land and resources. But this issue just isn’t about First Nations - First Nations are trying to protect all Manitobans from the province’s illegal activities, like allowing Hudbay to develop a mine in a provincial park.
It’s time Manitoba recognized the sovereignty and ownership of First Nations over their own lands and resources and started finding ways to work together to share the wealth and protect the lands as envisioned by the treaties.



Friday, August 23, 2013

Harper Solicits Research to Blame First Nations for Murdered, Missing and Traded Indigenous Women

Canada's shameful colonial history as it relates to Indigenous peoples and women specifically is not well known by the public at large. The most horrific of Canada's abuses against Indigenous peoples are not taught in schools. Even public discussion around issues like genocide have been censored by successive federal governments, and most notably by Harper's Conservatives. Recently, the new Canadian Museum for Human Rights refused to use the term "genocide" to describe Canada's laws, policies and actions towards Indigenous peoples which led to millions of deaths. The reason?: because that term was not acceptable to the federal government and the museum is after all, a Crown corporation.

Aside from the fact that this museum will be used as a propaganda tool for Canada vis-à-vis the international community, Harper's Conservatives are also paying for targeted research to back up their propaganda as it relates to murdered, missing and traded Indigenous women. This is not the first time that Harper has paid for counter information and propaganda material as it relates to Indigenous peoples, and it likely won't be the last. However, this instance of soliciting targeted research to help the government blame Indigenous peoples for their own victimization and oppression is particularly reprehensible given the massive loss of life involved over time.

The issue of murdered and missing Indigenous women was made very public by the Native Women's Association of Canada (NWAC) several years ago through their dedicated research, community engagement and advocacy efforts. Even the United Nations took notice and starting commenting on Canada's obligation to address this serious issue. Yet, in typical Harper-Conservative style, once the issue became a hot topic in the media, they cut critical funding to NWAC's Sisters in Spirit program which was the heart of their research and advocacy into murdered and missing Indigenous women.

To further complicate the matter, any attempts for a national inquiry into the issue has been thwarted by the federal government, despite support for such an inquiry by the provinces and territories. One need only look at the fiasco of the Pickton Inquiry in British Columbia to understand how little governments in Canada value the lives of Indigenous women, their families and communities. The inquiry was headed by Wally Oppal, the same man who previously denied the claims of Indigenous women who were forcibly sterilized against their knowledge and consent. The inquiry seemed more interested in insulating the RCMP from investigation and prosecution than it was about hearing the stories of Indigenous women.

Now, the Canadian public has to deal with a new chapter to this story - the sale of Indigenous women into the sex trades. The CBC recently reported that current research shows that Indigenous women, girls and babies in Canada were taken onto US ships to be sold into the sex trade. While this is not new information for Indigenous peoples, it is something that Canada has refused to recognize in the past. The research also shows that Indigenous women are brought onto these boats never to be seen from again.

The issue of murdered and missing Indigenous women has now expanded to murdered, missing and traded women. One might have expected a reaction from both the Canadian government and the Assembly of First Nations (AFN). Yet, the day after the story hit the news, the AFN was tweeting about local competitions and the federal government was essentially silent. I say essentially, because while all of this was taking place, the federal government put together a Request for Proposals on MERX (#275751) to solicit research to blame the families and communities of Indigenous women for being sold into the sex trade.

Instead of making a call for true academic research into the actual causes and conditions around Indigenous women, girls and babies being sold into the sex trade, the federal government solicited research to prove:

(1) the involvement of family members in their victimization;

(2) the level to which domestic violence is linked to the sale of Indigenous women into the sex trade; and

(3) even where they are investigating gang involvement, it is within the context of family involvement of the trade of Indigenous women.

The parameters of the research excludes looking into federal and/or provincial laws and policies towards Indigenous peoples; funding mechanisms which prejudice them and maintain them in the very poverty the research identifies; and negative societal attitudes formed due to government positions vis-à-vis Indigenous women like:

- rapes and abuse in residential schools;
- forced sterilizations;
- the theft of thousands of Indigenous children into foster care;
- the over-representation of Indigenous women in jails;
- and the many generations of Indigenous women losing their Indian status and membership and being kicked off reserves by federal law.

The research also leaves out a critical aspect of this research which is federal and provincial enforcement laws, policies and actions or lack thereof in regards to the reports of murdered, missing and traded Indigenous women, girls and babies. The epic failure of police to follow up on reports and do proper investigations related to these issues have led some experts to conclude that this could have prevented and addressed murdered, missing and traded Indigenous women. Of even greater concern are the allegations that have surfaced in the media in relation to RCMP members sexually assaulting Indigenous women and girls.

This MERX Request for Proposals is offensive and should be retracted and re-issued in a more academically-sound manner which looks to get at the full truth, versus a federally-approved pre-determined outcome.

It's time Canada opened up the books, and shed light on the real atrocities in this country so that we can all move forward and address them.

Tuesday, August 13, 2013

Facts verus Rhetoric: Response to INAC's Misinformation About Bill S-2

This letter is in direct response to the letter submitted by Jason McDonald, Director of Communications for Minister of Indian and Northern Affairs Canada (INAC) Bernard Valcourt to the Montreal Gazette on August 7, 2013. INAC has gone to great lengths to spread misinformation about the intentions, interpretations and potential impacts of Bill S-2 Family Homes of Reserve and Matrimonial Interests or Rights Act. It is interesting to note the Minister had his communications person write this letter, versus a Justice Canada lawyer.
Despite the near unanimous rejection of previous versions of this bill and Harper’s infamous promise to First Nations at the Crown First Nations Gathering not to unilaterally amend the Indian Act; the Harper government has spared no expense in its propaganda campaign to gain support for this unconstitutional bill.

What follows is my response to INAC’s misinformation about the bill. I have testified before Senate as a legal expert on a previous version of this bill, but was specifically prevented by Conservative members from testifying on the new version. I have also published other blogs on this bill.
INAC: The bill “extends to people living on reserve the same basic rights and protections that individuals living off reserve enjoy regarding the family home”

This is not true. Indigenous Nations are sovereign Nations with their own laws, rules, policies, governments, and justice systems. Their status as sovereign Nations are recognized in the fact of treaty making, as only sovereign Nations can enter into treaties with one another – citizens of a state do not have that right.
Their legal right to govern themselves is also protected in section 35 of the Constitution Act, 1982 as an inherent right (pre-existing to Canada as a state and not granted or given through law). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as other international laws also protect the right of First Nations to be self-determining.

First Nations have exclusive jurisdiction to determine their own laws, rules and procedures in relation to any marital or property issues on their traditional, treaty or reserve lands. When INAC claims they are extending the same basic rights to those living on reserve, what they mean is that they are illegally imposing provincial laws on reserve contrary to section 91(24) of the Constitution Act, 1867, section 35 of the Constitution Act, 1982 and contrary to various treaties and international laws. This legislation will also require the consent of the provinces and companion legislation to bring it into effect.

Even the description of a house on reserve as the family home is misleading. On many reserves, homes are occupied by upwards of 25 people including husband, wife, children, grandparents, aunts, uncles and cousins. Certificates of Possession (like fee simple deeds) can be in the name of hundreds of people. Many First Nation families do not exist as the western notion of nuclear family with mom, dad and 2.5 children. Any disposition of what is deemed a family home could have devastating effects on large extended families and especially elders.

First Nations have not asked for this bill.

INAC: Bill S-2 does not change the fact that only registered Indians can hold a Certificate of Possession on reserve, but non-First Nations people can possess the home for a temporary period of time.

This statement is misleading about the real implications of the bill. The Indian Act prevents anyone who is NOT an Indian from even temporarily possessing land on a reserve - which includes permanent structures on the land, like a house. Section 20(1) of the Indian Act specifies:

 20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.”

What INAC is trying to do is unilaterally amend the Indian Act in an illegal way – in violation of domestic and international law. Section 2 of the Indian Act specifies that reserve lands are reserved for the exclusive use and benefit of the band (First Nation) for which they were set aside. These lands are not for anyone else’s use.

Further, many treaties set up reserve lands for the exclusive use and benefit of Indians – not non-Indians. These treaties are now constitutionally and internationally protected and cannot be unilaterally amended. This country would not exist but for the treaties which agreed to share the land – now they are constitutionally protected and cannot be violated if Canada wishes to remain a democratic country. Harper can’t pick and choose which constitutional provisions he likes – Canada is either democratically governed with a constitution or it is a lawless dictatorship.

INAC does not have the power or authority to enact legislative provisions, such as this, that would be in direct conflict with its own constitution and other laws. INAC is also not being truthful when it claims that the Act only allows temporary possession by non-Indians. In fact, non-Indians can gain up to a life interest in lands and homes on reserve. This is far from temporary and combined with other proposed legislative amendments, this could translate into permanent possession.

INAC: The courts need this legislation to facilitate emergency protection orders to remove a violent partner from the home.

This is not true. INAC has focused on this legislation as being intended to protect First Nations women from violence, which it implies is rampant on every reserve. Government representatives have presented a false choice between First Nations women being tossed from their homes in the middle of the night or protecting self-government for First Nations. Yet, INAC has offered no statistical, research-based or other evidence to prove that women losing their homes on reserve is a rampant or common occurrence.

In direct contrast to their testimony, INAC has confirmed that the majority of CPs are held by women, not men. Additionally, when First Nations women living in shelters were interviewed about this legislation, the women emphasized the fact that their interests are not separate from their First Nation community – and that none of them wanted their community’s Aboriginal or treaty rights violated such as this legislation does.

This line of reasoning being promoted by INAC amounts to spreading racist, hateful stereotypes about First Nations for political purposes. INAC wants support to do indirectly, what Canada is not legally permitted to do directly – take the remaining amount of lands held by First Nations and transfer them to Canadians, corporations and governments.
If this legislation was about protecting First Nation women, they would have built more homes on reserve, funded new shelters, increased funding for preventative services and increased funding for access to legal services for these women. Instead they have created  a new legal regime that the majority of First Nation women will never be able to access.

What is also extremely concerning about this provision is that it purports to empower courts to issue protection orders (possession of home to spouse) as against the alleged abuser in the absence of a charge or conviction. It also empowers the court to make possession orders for homes and lands on reserve – which are communal First Nation property – without any notice to the First Nation or any of the family members impacted by the order, like elders. This provision violates the basic human rights and freedoms of First Nations and further denies individuals any administrative fairness and justice.

INAC: The ratification process outlined in the bill is done according to First Nation practices and is to ensure the collective interests are protected.

Again, this is not true. The ratification process as outlined in the bill is a paternalistic control mechanism to ensure First Nations comply with INAC objectives – it is not consistent with First Nation customs, traditions, practices or laws. Some First Nations already have their own laws in this regard, but INAC refuses to recognize these laws, and instead demands that First Nations engage in an Indian Affairs-designed and controlled process. If the concern was truly that laws are needed in this area, then INAC would recognize those First Nation laws.

Similarly, this legislation is not designed to respect collective interests to homes and lands on reserve, but is intended to further carve out individual interests and create new legal interests for non-Indians. According to INAC, reserve lands represent less than 0.2% of all the lands First Nations used to control. For INAC to want to divide up and steal the rest of those lands is unconscionable, let alone illegal. The spirit and intent of our nation to nation treaties was to share the wealth, not usurp it all for one treaty partner and leave the other impoverished and living on hand-outs.

First Nations have exclusive jurisdiction over their own laws and enforcement mechanisms and do not need INAC approval or supervision to deal with these issues. This provision is a gross violation of the constitutionally and internationally protected right to be self-governing.

INAC: INAC has consulted extensively with First Nations on this issue.

This is not true. In fact, INAC’s own Special Ministerial Representative on Matrimonial Law on Reserve who interviewed First Nations individuals, communities and organizations all over Canada, concluded that none of the information packages or meetings to date amounted to legal consultation as required under section 35 of the Constitution Act, 1982. INAC representatives themselves told attendees at several meetings that various discussions were not intended as consultation.  Further, several meetings held with national organizations does not constitute legal consultations with the First Nation communities who actually hold the Aboriginal and treaty rights impacted.

Consultation is supposed to be a mutually negotiated, designed and funded process which ensures impacted First Nations communities (in this case, all 615) are fully informed about the legislation and its intended impacts as well as take measures to accommodate their concerns and obtain their consent. This simply did not occur. The Supreme Court of Canada has stressed repeatedly that Canada is legally obligated to consult, accommodate and in many cases, obtain the consent of First Nations prior to taking any action or decision that has the potential to impact constitutionally protected Aboriginal and treaty rights. UNDRIP further requires that Canada must obtain the free, informed and prior consent of First Nations before impacting their rights.

This has not happened and in fact, each version of this bill has been nearly unanimously rejected by First Nations men, women and communities all over Canada.

INAC: Canada is further supporting First Nations by creating a national Centre of Excellence to help First Nations implement these laws.

This new Centre was not requested by First Nations. If INAC wanted to support First Nations they would not have made substantial funding cuts to all the National, regional and provincial First Nation organizations that already assist First Nations with law development and implementation. Finally, law development is costly in any government, and INAC is expecting First Nations to develop and implement these laws without any funding support.

INAC is clearly not genuinely concerned about empowering First Nations governments, but is instead reverting back to nation-wide, one-size-fits-all paternalistic control. We all know what happens when INAC has control – we have deaths and torture in residential schools, lack of clean water and safe sanitation systems on reserve, housing crises, lack of education, suicide epidemics and other conditions of forced impoverishment. It’s time INAC got out of the business of controlling First Nations and let them govern themselves – they couldn’t do any worse than the atrocities already committed by Canada on our people.

Please contact your MP and oppose this legislation.