Monday, May 15, 2017

Inquiry into Murdered and Missing Indigenous Women and Girls Fatally Flawed

(Originally published in Lawyer's Daily on May 15, 2017)

It looks like those who advocated for the long-awaited national inquiry into murdered and missing indigenous women and girls will be waiting a little while longer.

Despite the promise from Liberal Prime Minister Justin Trudeau that the national inquiry would be his first order of business, it has been 19 months since his election and the inquiry hasn’t held a single day of hearings. Although the commissioners held two soft launches in September 2016 and February 2017 promising to launch the hearings soon, the inquiry has not started, nor will they hear from the families until fall 2017.

Given that the commissioners were given exceptionally limited time to conduct the inquiry, the fact that they have already used up nine of the 26 months allocated to them is a major concern. At this point, the commissioners have very little to show for either the time used or the money spent to date — more than 10 per cent of its $53 million budget.

Given the lack of communication from the commissioners to date, we are all left wondering what is going on.

Equally concerning are reports that the federal government has been behind some of the delays by refusing to share its lists of potential witnesses with the commissioners or advance adequate funding to allow much-needed staffing to occur.

The long list of Indigenous families, leaders and advocates raising public concerns has been met with extended periods of silence. Recent cancellations of scheduled meetings of the inquiry have led to increased criticism by the same indigenous families and advocates who originally pushed so hard for the inquiry. There are even calls for the inquiry to be “reset” both in terms of the panel of commissioners and the inquiry format itself.

But, as problematic as all this administrative mess is — and it could very well unravel the inquiry — it is relatively minor in comparison to the fact that the inquiry, legally speaking, is fatally flawed.

Even if the federal government had ensured the inquiry started earlier in Trudeau’s term, and even if the commissioners had been able to quickly launch hearings, neither of these conditions could save the inquiry from its flawed Terms of Reference.

The Terms of Reference lack the two areas of inquiry that were most important to indigenous families, leaders and advocates: (1) a review of all the known police case files of murdered and missing Indigenous women and girls and (2) a comprehensive review and investigation of police behaviour, specifically racism, abuse and sexualized violence of Indigenous women and girls by police forces. Yet, these two things are specifically exempted or protected from review in the terms, forcing witnesses who want to give evidence about these issues, to go back to the very same police forces that committed the flawed investigations of their missing or murdered loved ones, or the same police forces that failed to act on abuses by their officers.

There is no way to save this inquiry from such fatal flaws. The provinces and territories all passed orders-in-council to allow the inquiry to proceed in their jurisdictions based on the terms as drafted — in other words, based on these two exemptions. Yet this flies in the face of what Indigenous women, leaders and advocates have long requested and what the minister heard in the national engagement sessions leading up to the drafting of the terms.

Despite the Human Rights Watch report about police officers sexually abusing Indigenous women and girls in British Columbia with impunity; or the police officers in Val D’or, most of whom will not face charges for allegations of ongoing sexualized abuse of indigenous women and girls in Quebec; or the rampant sexualized violence and discrimination within the RCMP as evidenced by the class action by its female members — none of this will be open for examination.

At best, the commissioners might be able to look at systemic discrimination within policing policy — but nothing that gets to heart of why so many Indigenous women fear police, and why so many of their investigations, or lack thereof, have been challenged by the families. This poses a real risk that we will end up with an inquiry that is more damaging than helpful. We could end up with a report like that of commissioner Wally Oppal from the Pickton inquiry which hints at generalized police failures in investigations but doesn’t shine a light on the darker side of policing.

One of the worst outcomes would be a report that presents a general historical overview of colonization, a recap of the well-known socioeconomic problems plaguing First Nations or one that represents the voices of so few indigenous witnesses that it misses the root problems altogether.

The inquiry terms are already biased toward violence in general and best practices related to violence prevention and safety. This has already led many commentators to focus on domestic violence, which is part of the issue, but by no means the whole issue. Such an unstructured inquiry means we could end up with a report on the already well-documented research on domestic violence but have nothing about police violence for example.

Given that the terms also focus the inquiry on the “vulnerabilities” of Indigenous women and girls as opposed to failures of federal, provincial and municipal governments and service agencies to protect the human rights of Indigenous women and girls — the inquiry risks missing the whole point. The fatal flaws of the Terms of Reference are reason enough for a reset of the inquiry.

There is no shame in learning from the lessons of the Truth and Reconciliation Commission’s reset and making sure that the thousands of murdered and missing Indigenous women and girls, their families and communities get the inquiry they asked for and the justice they deserve.

Nation to Nation Relations Need Repeal of Paternalistic Laws

(Originally published in Lawyer's Daily on April 17, 2017)

Prime Minister Justin Trudeau swept the Liberals into power on Oct.19, 2015, with the support of Indigenous peoples who voted in record numbers. Trudeau’s election platform consisted of core promises made to the Chiefs in Assembly on July 7, 2015, which would include the review and repeal of legislation unilaterally imposed on First Nations by former Conservative Prime Minister Stephen Harper. Trudeau confirmed his government’s commitment at a subsequent meeting of the Chiefs of Assembly on Dec. 8, 2015.

This was a significant commitment for First Nations since the unilateral imposition of these laws by the Harper government had inspired the largest social movement in Canada’s history: Idle No More. Indigenous peoples took to the streets for nearly a year protesting Bill C-45, an omnibus bill that would remove protections for various waterways; Bill C-27 First Nations Financial Transparency Act; Bill S-2 Family Homes on Reserve; Bill S-6 First Nation Elections; Bill S-8 Safe Drinking Water; and Bill C-428 Indian Act Abolishment. All of these bills involved some form of increased government control, something First Nations were not willing to accept. In addition to protests, First Nations decided to tackle these unconstitutional laws head on in the courts.

Mikisew Cree Nation won their initial case in Federal Court challenging Harper’s failure to consult on two omnibus Bills C-38 and C-45; and Onion Lake Cree Nation won their federal court battle against Bill C-27.

While Idle No More activities on the ground eventually subsided, First Nation discontent with federally imposed legislation continued to grow throughout Harper’s mandate. There was significant opposition and protests against Bill C-51, the Anti-Terrorism Act, which targeted the political activities of Indigenous peoples.

The situation came to a head when Assembly of First Nations (AFN) National Chief Shawn Atleo publicly supported Harper’s Bill C-33 First Nation Control of First Nations Education Act without informing or consulting First Nations. The resulting widespread cries for Atleo’s removal led to his resignation and put a serious strain on an already fragile relationship between First Nations and the federal government. Trudeau’s election promises offered a welcome path forward.

However, Trudeau’s first budget was a major disappointment not only for failing to address the many overlapping crises in First Nation social conditions, but also for completely ignoring his promises to repeal Harper’s legislation. The resulting First Nation criticism is likely what led to this year’s announcement that Trudeau’s government has created a ministerial working group to review all laws and policies related to indigenous peoples. The working group consists of the ministers for Indigenous and Northern Affairs, Fisheries, Justice, Health, Families and Natural Resources and will be chaired by Justice Minister Jody Wilson-Raybould.

On its face, the announcement appears to be an indication of the Trudeau government moving in the right direction in the promised nation to nation relationship. However, we do not have either a specific budget for this work or a terms of reference that specifies who will be engaged in the review, the time frame for completion, or the ultimate objectives.

The worst thing that could happen is yet another government committee struck to review its own laws, with its own legal interpretations of what does and does not violate the Constitution, cementing it firmly in its own colonial and paternalistic mindset.

Most will recall that Trudeau’s father, former prime minister Pierre Elliott Trudeau, struck out big time with his 1969 White Paper on Indian Policy calling for the elimination of Indian status, reserves and treaty rights. This ministerial review committee risks the same fate without First Nation leaders and experts at the table. Another core concern is that the scope of this review has been enlarged so much that this committee could spend years reviewing hundreds of laws and policies instead of repealing the handful that Trudeau promised to repeal.

Therein lies the other problem with Trudeau’s legal review committee — it is based on a nation to nation relationship that begins and ends with the AFN. This comprehensive legal and policy review must be done in partnership with the actual Aboriginal and treaty rights holders themselves; i.e., First Nations and treaty signatories, not the AFN. This is a critical first step before Trudeau’s vision of “a complete renewal of Canada’s nation to nation relationship with indigenous peoples” can be realized. It will require Trudeau’s working group to negotiate the terms of reference with representatives of the rights holders on a nation basis, like the Mi’kmaw Nation, or on a treaty basis, like engaging with all First Nations in Treaty 4, for example. It is possible for regional and other representative organizations to participate, so long as it is the rights holders themselves who mandate them to engage in this process.

To date, Trudeau has not asked how our nations want to be represented or engaged in this legislative review. First Nations in Canada are not the mythical race of “Indians” created by the Indian Act. They do not have one culture, one language or one set of laws. First Nations are part of larger Indigenous nations with laws, governments, histories and politics as varied as those found in the United Nations.

If Trudeau is serious about transforming the relationship with indigenous peoples, he will have to abandon the colonial requirement that all First Nations speak with one voice. Canadians don’t speak with one voice, nor do the provinces and territories. To expect more of First Nations is an adherence to racist stereotypes of the past which have no place in a multinational, democratic Canada that is truly committed to reconciliation, reparation and renewal. The terms of reference will be the real indication as to whether Trudeau is serious about a renewed relationship.

Thursday, March 2, 2017

New Government, Old Ways: Racism is STILL Killing Our People - Updated

"Millions promised for Indigenous kids is subsidizing mining companies, internal documents show". This was the headline on March 2, 2017 which made me and many other people very angry.

First of all, the Minister of Indigenous Affairs can't be trusted to tell the truth and secondly, thousands  of First Nation children end up in foster care because instead of providing adequate funding for First Nations kids, our money goes to subsidize the mining industry. This makes me absolutely furious as there is no excuse for this. Dr. Cindy Blackstock already filed and won a human rights claim against Canada at the Canadian Human Rights Commission to prove Canada's discriminatory under-funding for First Nation kids in care.

Then the tribunal actually had to direct Canada to comply with the order several times. Yet, instead of complying, Minister Bennett continues to claim they have, in fact, provided that funding. If I look angry when I speak about the injustice of this issue, it is because I am.

Some people say: "Pam you are too angry" or "The AFN isn't complaining, why should you?" Others say: "Pam, you have to admit that Prime Minister Justin Trudeau made better promises on First Nation issues than former Prime Minister Harper" and still others say "But Minister Bennett is so nice?" They are all right. I am angry; National Chief Bellegarde looks exceptionally happy these days; Trudeau did make better promises than Harper; and having met Bennett on several occasion, I can say she seems to be a super nice person.

Yet, I sometimes work in The Pas, Manitoba where Helen Betty Osbourne was kidnapped and raped, yet nothing has been done to stop the numbers of disappeared and murdered Indigenous women and girls. I am  often woken up in the middle of the night with phone calls or texts about someone's child having committed suicide or community members who have died in a fire or frozen to death outside.

The most recent hand-written letter I received was from an Indigenous man residing in prison who was hurting deeply because his mother had been raped by an RCMP officer and nothing was ever done about it. The over-incarceration of Indigenous peoples in prison has been a crisis for decades, but continues to get worse.

I receive calls from people who are trying their hardest to get to university, but there is no funding for them, so they give up. PM Trudeau promised $200M in extra funding for post-secondary education, yet that hasn't happened yet. And an email I received this week was from a Rape Crisis shelter who asked me to keep advocating on behalf of Indigenous women and girls despite how hostile the environment. The national inquiry is almost a year into its two year term and it still hasn't started yet, but our Indigenous women and girls continue to go missing and be murdered.

So, I admit that I am angry and I look angry and I sound angry. The pre-mature deaths and suffering of my First Nations brothers and sisters is nothing short of a national crisis. The lack of housing, proper schools, adequate health care, education, and child and family supports; along with the lack of basics like food and clean water,  have been called labelled as a "crisis" "grave" "discriminatory" and "inequitable" not just by First Nations and advocates, but also by former Prime Ministers, Supreme Court of Canada justices, the Auditor General for Canada, the Office of the Correctional Investigator, the Canadian Human Rights Commission and the United Nations.

So why has little been done to address the crisis? Despite all the promises from Trudeau, where is the action? Instead of action, we see daily doses of misinformation at best and lies at worst. Whatever you choose to call it, it's not the truth and herein lies the problem with Canada's new obsession with reconciliation. We can't ever get to reconciliation, no matter how it's defined, until we find a way to get to the truth and share it and take responsibility for it.

Canada is killing our people with its deeply ingrained racism towards to First Nations. If a, affluent neighborhood in Montreal had contaminated water which was making everyone sick, federal and provincial resources would instantly be brought to bear to remedy the situation. If a cozy suburb of Toronto developed the world's highest suicide rate, massive amounts of financial and human resources would be dedicated to remedying the crisis. If 50% of the Members of Parliament's children were stolen from them and put into foster care due to lack of funding for child and family services, watch how fast they'd reallocate funds from Canada's 150th to get their kids back.

So, why then does the government not act to do this when it involves First Nations? Why does the response always follow the same racist pattern:

(1) DENY the problem:

This is when the government either says that there is no crisis or that it is not as bad as the media or First Nations are saying it is. Then comes the inevitable Access to Information request which shows that the government was either lying or misinforming and they have to admit there may be a problem.

(2) DEFER the problem:

This is when the government says they will study the issue, even if it has been studied exhaustively and well-documented in the research. This is when they will buy the media silence of National Aboriginal Organizations like the Assembly of First Nations (AFN) by offering them some sort of project-based funding to meet about the issue, set up tables, or do policy papers on the subject.

(3) DEFLECT the problem:

At this stage, the problem can't be denied any longer, so the government will blame previous governments, blame First Nations themselves or make excuses as to why the problem can't be dealt with right now, like budgetary limitations or that changes can't be made overnight. The most common response at this stage is: "We can't just throw money at the problem" because (a) First Nations leaders are corrupt (Harper) or (b) First Nations have no capacity to address the issue (Trudeau).

The end result is that all of the problems get worse and our people die. The government response is usually a Tweet or speaking point for the media which says: "Our hearts go out to the community" or "We are sorry for your loss" and then everyone goes back to their offices to plan Canada's 150th birthday.

Every day that this government fails to take urgent action says that there is no relationship less important to Trudeau than the one with Indigenous peoples. The underlying message is that there is no life worth less in Canada, than the life of an Indigenous person. Until we accept that this is current government policy and force change, then it doesn't matter which party is elected - new or old, racism will continue to kill our people.

Quick Facts:

Indigenous peoples are 4% of Canadian population;
10x more likely to die in a fire;
5-10x more likely to commit suicide;
Some jails are 80-100% Indigenous;
50% of all kids in care are Indigenous;
More likely to go murdered or missing;
120+ First Nations without clean water.



And, as if on cue, one day after I wrote this blog, Minister Bennett wrote an op-ed saying more than money is needed to address discrimination against Indigenous children. Their standard pattern of denial, deferral and deflection is both appalling and predictable. The very method of discrimination (under-funding) is now denied as the solution to the discrimination by the very department that has been found guilty of discrimination for under-funding. If Minister Bennett doesn't think funding is part of the problem, she needs to go back and read the court order.

Just in case anyone thought the Minister's special representative on Child Welfare might be the solution, keep in mind, Cynthia Wesley-Esquimaux is a failed liberal candidate who also has the same bias as Minister Bennett. She was quoted as saying the liberals "are not going to take money and throw it up in the air like confetti" promoting more racist stereotypes against First Nations.