Bill C-51 - My Testimony to Senate Standing Committee on National Security and Defence (April 27, 2015)
Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University, as an individual: Thank you. My name is Pam Palmater. I come from the sovereign nation of the Mi'kmaw in the East. I would first like to acknowledge the traditional territory on which we are sitting, that of the Algonquin Nation, which is one of the many sovereign nations with which Canada is allied and committed to maintaining peace in this territory. It is the only reason why we get to sit here today. These treaties and other agreements are constitutionally protected and form part of the foundation of Canada practically, politically, militarily and legally. Bill C-51 goes to the heart of this relationship.
Canada has already predetermined, through its ministers and others, that First Nations are "insurgents" and "national threats to security." This is one of the reasons why I'm bringing testimony today. In addition to the submissions I made in the house, which I've attached as appendices to what I'm going to be saying today, I'm going to focus on the nature of these treaties and exactly what's at stake with Bill C-51.
These treaties were not just about mutual respect, respecting our right to govern ourselves and our own laws. They were also about mutual benefit, but most importantly and for this committee today, they were about mutual protection. These treaties were about military alliances and legal obligations to protect one another and defend these territories. The two central tenets of the majority of these treaties was that there would be peace in this territory, defending our lands, protecting First Nations and settlers, and that we had a military and political alliance against all other aggressors. That's not a responsibility held unilaterally by Canada. It's a constitutionally protected joint responsibility and it is violated by this bill.
First Nations have fought in Canada's wars because of these treaties. First Nations have helped protect this territory and our borders from other nations because of these treaties. National defence, public safety and national security have been, first and foremost, a responsibility of First Nations in this territory since time immemorial and that has never ceased. The treaties confirm this.
Specific treaty provisions like the Treaty of 1752 with the Mi’kmaw Nation was specifically about the duty to protect one another, military alliance, and the Crown was to provide ammunition to the Mi’kmaw on an annual basis to this end.
The Treaty of Niagara was the same thing: military alliance, mutual protection and the provision of ammunition. Treaty No. 6 for the Cree was all about peace in this territory, military alliance, and $1,500 a year would be spent on ammunition to provide the First Nations for the defence of these territories. We're not just talking about hunting and fishing with treaties; we're talking about military alliances.
We agreed, nation to nation, that this territory would be a peaceful one. We agreed to keep each other safe, and despite the many aggressions by Canada against our people, we have kept the peace. Despite scalping laws, rape, torture and murder in residential schools, forced sterilizations, we have kept the peace.
Canada has turned the national police — the RCMP — and the army against First Nations. We have kept the peace. There are no greater allies that Canada can have in the war on terror than First Nations in this country. First Nations have shown that they will hurt themselves before Canadian citizens.
We are not the enemy, yet Minister Valcourt has publicly stated that our leaders are threats to national security. The Department of National Defence has called us insurgents and has a manual on how to deal with our dangerous activity.
This bill is too broad. It violates our basic human rights, Aboriginal and treaty rights and civil liberties. The Supreme Court of Canada said in Nolet that no valid legislative objective, even one of public safety, can sanitize Charter violations. And this bill contemplates Charter violations before we even know what the alleged crime is.
There are no stronger allies to Canada than First Nations, and we've given our lives to prove that. Yet Canada, with this bill, has failed to consult with us on our core Aboriginal treaty and inherent right to jointly manage national defence. To that end, I have several recommendations in addition to my previous submission.
One, the bill is fatally flawed and must go back to the drawing board for proper consultation with First Nations.
Two, there must be an independent body to report on the extensive level of surveillance against First Nations in this country and our treatment as terrorists as opposed to treaty partners.
Three, there must be a First Nations special advocate or an amicus of the court to make sure that Aboriginal treaty and Charter rights are upheld during secret court processes for warrant applications and wiretaps.
Four, there must be a joint national study on racism and discrimination in the justice system that has been identified by previous commissions — the royal commission, Donald Marshall commission, Ipperwash inquiry and the Manitoba justice commission — that deals with the infection of racism in the entire justice system that can and will impact Bill C-51 should it be passed.
Five, the ministries of public safety and national defence must include a like First Nation body to ensure joint decision making and consultation on all matters of public safety, emergency preparedness and national defence. The First Nation representative should be appointed by themselves, and a First Nation representative should be included on any oversight body in relation to intelligence services.
Specifically to the next draft of Bill C-51, there needs to be a preamble which acknowledges the treaties and First Nations’ sovereignty and specifically acknowledges our joint constitutionally protected mandate of national defence in this country, provisions which detail decision making and reporting with First Nations on all of the issues covered in Bill C-51, very specific clarifications that anti-terror does not mean anti-First Nation and anti-First Nation governance and activities.
There must be an assurance that no information about individuals or First Nation communities be given to third parties, the private sector or foreign governments any more from this point forward; specify that sharing of information relates to anti-terror only and not this unknowable, mystical generic threat to national security.
Those departments specified for sharing information must have specific exclusions: Indian Affairs, Health Canada, Fisheries and Oceans, the environmental agency, NRCan and CRA must all be excluded from information sharing, as those are the ones primarily involved with First Nations.
All offences must be specified. There can be no general offence of anything that can't possibly be known.
There must be specific attention to curtailing any sweeping electronic surveillance.
Any new laws must contain a mental fault element.
And there must be a maximum use and reference to current laws versus duplicating or expanding unknowable laws.
(Taken from official transcript - April 27, 2015).
Video of the presentation can be found here: