DEFENDING OUR SOVEREIGNTY

Tuesday, August 8, 2017

Indigenous Inquiry [into murdered and missing Indigenous women and girls] a Slow Motion Implosion

*(Originally published in the Lawyer's Daily on August 8, 2017- edited)

When the draft terms of reference of the National Inquiry into Murdered and Missing Indigenous Women and Girls were leaked to the media in the summer of 2016, many families, advocates, experts and communities were upset that there would be no investigation of the police — either their mishandling of individual files or their behaviour.

This omission was a shock to most since police racism and abuse was raised at every pre-engagement session conducted by Indigenous Affairs seeking input into the inquiry’s mandate. Families and advocates immediately responded by writing open letters calling on the federal, provincial and territorial governments to ensure that police handling of individual files and police behaviour would be included in the final terms of reference. Despite their strenuous advocacy, the final terms of reference specifically excluded any review of individual files or police conduct.

Since the launch of the inquiry in September 2016, it has been in slow motion implosion. The inquiry has been criticized for its numerous and lengthy delays, its failures to communicate with the families and its continued failure to provide information about schedules, logistics, process, or budgets. The Native Women's Association of Canada raised the issue that their phone calls to the inquiry were not answered or returned and were instead redirected to Indigenous Affairs — leading some to question the objectivity of the inquiry.

Then, one by one, the inquiry saw the resignations of some of its most senior staffers, including Michèle Moreau, the executive director; Chantale Courcy, director of operations; Tanya Kappo, manager of community relations; and Sue Montgomery, director of communications (the first, Michael Hutchinson, had been terminated). Several former staffers, speaking under condition of anonymity shared their concerns that the inquiry was lacking leadership and direction, and egos and power struggles have left it dysfunctional.

The recent resignation of one of the commissoners, Marilyn Poitras, makes chief commissioner Marion Bulller’s strenuous denial of significant problems in the inquiry, look blatantly detached from the seriousness of the situation. This is especially true when her own fellow commissioners are resigning, admitting they haven’t done their jobs and that the inquiry is in “crisis mode.”

To this end, an open letter was sent to the inquiry by a collective of Indigenous women, advocates and impacted family members calling for action and offering assistance. Others tried phone calls, e-mails and in-person meetings to try to get the inquiry back on track, with little obvious impact.


The continued lack of action on the part of the inquiry led many prominent advocates, Indigenous leaders and concerned families to call for a hard reset of the inquiry — which included calls for new commissioners, extended timelines, additional budget and  improved terms of reference.

Manitoba Keewatinowi Okimakanak (MKO) Grand Chief Sheila North Wilson, representing northern Manitoba First Nations, called for the current commissioners to resign and let the inquiry reset for the benefit of the families — a call shared by many. A hard reset is not without precedent as the Truth and Reconciliation Commission also struggled in the beginning and was reset with new commissioners and it was better for it. The issue of residential schools deserved a proper inquiry just as the issue of murdered and missing Indigenous women and girls deserves a competent, independent fulsome inquiry that has the time and resources necessary to address the core issues — which includes a review of individual files and police conduct.

The issue of a hard reset also divided the chiefs at the most recent Assembly of First Nations (AFN) annual general assembly in Regina. Numerous family members attended the AFN assembly to plead with the inquiry’s commissioners to resign and reset the inquiry. The chiefs were deeply divided on the issue of reset but all seemed to agree that the inquiry was plagued with problems and recommended numerous improvements.

Commissioner Buller’s statements prior to the chiefs’ vote that she would not resign regardless of the outcome of the vote, arguably created an adversarial relationship between Indigenous peoples and the inquiry. Many family members are saying that the inquiry has “already failed” and this division among the leaders and families on how to fix the broken inquiry is itself evidence that the inquiry lacks the trust it needs to do its job.

Equally as concerning were the developments at the AFN assembly, where chiefs and families who wanted to address their concerns about the inquiry met with or spoke to Indigenous Affairs Minister Carolyn Bennett. Bennett was also quick to support the chiefs at the AFN in their calls for a soft reset of the inquiry.

This inquiry is supposed to be independent of the federal government, yet by all appearances it is the federal government pulling the strings. The inquiry itself then scrambled to put together a press release on the very same day that families were calling for a hard reset of the inquiry claiming they will now review police conduct and individual files.

This release has caused greater confusion because the inquiry is both empowered and limited by the terms of reference agreed to by the federal, provincial and territorial governments which specifically excluded the review of open or ongoing individual files (which for murdered and missing Indigenous women and girls are many) and police misconduct. Any information related to these matters must be referred back to police — the very same institutions that did not handle the files properly to begin with or that failed to take action against racist, abusive or sexually violent police officers. Misleading the families this way in order to avoid more calls for a hard reset is a huge injustice to the many families and communities who are relying on this process in good faith.

What is clear despite all the confusion and dysfunction, is that a hard reset is required or it risks becoming like Wally Oppal’s Missing Women Commission of Inquiry where large numbers of witnesses pulled out of the inquiry and the resulting report lacks any credibility. The Ontario Native Women's Association has already pulled out of the inquiry and many others may follow suit if the inquiry is not addressed. Canada owes the families and communities better if the prime minister meant what he said that there is no relationship more important to Canada than the one with Indigenous peoples.

*The link to the article as originally published in the Lawyer's Daily ishttps://www.thelawyersdaily.ca/articles/4358



Wednesday, June 21, 2017

Why is Trudeau Government Opposing Charter Equality for Indigenous Women?

(Originally published in Lawyer's Daily on June 21, 2017 - edited)

Shortly after Confederation, the federal government used its jurisdictional powers over “Indians and lands reserved for the Indians” in s. 91(24) of the Constitution Act 1867, to enact the Indian Act, 1876 — making it nearly as old as “Canada” itself. For well over a hundred years, the Indian Act has included provisions intended to legislate Indians out of existence — a form of forced assimilation — that primarily targeted Indigenous women and their descendants for enfranchisement (loss of status as an “Indian” and removal from the reserve as a member).

Although there have been many amendments to the act over the years, the federal government, through the Indian Registrar, retains exclusive authority over the legal criteria for determining who is an Indian. Unfortunately, self-declared feminist Prime Minister Justin Trudeau’s elite feminist team of ministers is actively working against gender equality amendments for the Indian Act’s discriminatory registration provisions.

Under previous versions of the act, Indian women who married out (married a man not registered as an Indian) lost their Indian status, as did her children. Indian men who married out kept their Indian status and their non-Indian wives and children gained Indian status as well. This created a deep inequality that has been carried forward through successive generations despite the many human rights protections enacted in Canada over the same time period.

Many Indigenous women fought against these discriminatory provisions, including Jeannette Corbiere-Lavell and Yvonne Bedard, who lost their case at the Supreme Court of Canada in Lavell v. Canada (Attorney General) [1974] S.C.R. 1349. Sandra Lovelace (now Sen. Sandra Lovelace Nicholas) won her human rights claim against Canada at the United Nations Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) requiring Canada to amend the Indian Act in 1985.

However, the 1985 Bill C-31 amendments did not go far enough to remedy the ongoing gender inequality between Indian men and women and their descendants in the transmission of Indian status, so Sharon McIvor was forced to bring a s. 15 Charter challenge against Canada (The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11). Her win on appeal McIvor v. Canada (Registrar, Indian and Northern Affairs) 2009 BCCA 153 forced Canada to amend the act once again in 2010 with the Bill C-3 amendments, but Canada’s reluctance to remedy all gender discrimination led to the current case underlying the 2017 Bill S-3 proposed amendments in Descheneaux v. Canada 2015 QCCS 3555.

At issue in all of these cases was the federal government’s staunch refusal to once-and-for-all remedy all remaining vestiges of gender inequality between Indian men and women in the transmission of Indian status.

What is unique about the proposed Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) is not so much the need to address the Descheneaux decision (which declared various discriminatory sections of the Indian Act inoperative); but the stark political differences between the Senate and the House on the fundamental question of whether Indigenous women and their descendants deserve gender equality under the Indian Act.

After hearing the passionate testimonies of Indigenous women lawyers and experts, First Nation organizations and other legal witnesses; the Senate unanimously supported an amendment to Bill S-3 intended to grant the same status to Indian women and their descendants as that held by Indian men and their descendants, referred as the “6(1)(a) all the way” amendment.

The importance of gender equality for Indigenous women united Liberal, Conservative and independent senators alike. Minister Carolyn Bennett’s refusal to accept the amendment pitted the Senate against the House, whose Aboriginal Affairs Committee rejected the gender equality amendment and Parliament will likely vote to send the bill back to the Senate with a new title to respond to Descheneaux and not fully eliminate sex-based inequities.

The fact that Indigenous women must continue to battle Canada for equality is shocking in 2017 given that the Charter’s section 15 guarantee of equality between men and women has constitutional status. The Charter’s well-established case law on substantive equality and Aboriginal rights leaves little doubt about Canada’s legal and constitutional obligation to remedy gender inequality for Indigenous women — but it is by no means the only legal protection against sex discrimination in Canada.

Section 3(1) of the Canadian Human Rights Act R.S.C., 1985, c. H-6 prohibits discrimination on the grounds of race and gender. Section 35(4) of the Constitution Act, 1982 ensures that Aboriginal and treaty rights are guaranteed equally as between males and female persons.

The United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, Oct. 2, 2007, A/RES/61/295 (UNDRIP), which Trudeau has specifically promised to implement into law in Canada, includes article 44 which ensures that all the rights and freedoms contained in UNDRIP are guaranteed equally to male and female Indigenous peoples.

It must be remembered that cabinet ministers were directed by Trudeau to fulfil their mandates based on the principle that there is no relationship more important to Canada, than the one with Indigenous peoples.

It was therefore refreshing to hear former Minister for the Status of Women Patti Hadju acknowledge the “long-standing, systemic discrimination that Indigenous women and girls experience in this country”; that “intersection of racism and sexism greatly increases the vulnerability of Indigenous women” and that the “racism brought on by colonization has had devastating impacts on Indigenous women’s power, their status, their role in their communities and their economic situations.” Yet, the current Minister for the Status of Women, Maryam Monsef, is silent on the issue of Bill S-3 and Justice Minister Jody Wilson-Raybould and Indigenous Affairs Minister Bennett continue to actively obstruct the Senate amendments to fully remedy gender discrimination in the Indian Act. Minister Bennett and Minister Raybould-Wilson are responsible for creating this standoff over equality in the Senate and House.

No one wanted it to come to this, but here we are with the fundamental equality rights of Indigenous women in the balance. It is now up to the Senate of Canada to stand firm in its original stance defending both the Charter’s integrity and the equality rights of Indigenous women.

The next steps may be hard and they may be political uncomfortable — but for Indigenous women, it is a matter of life and death. Discriminatory exclusion under the Indian Act is one of the root causes of murdered and missing Indigenous women — it’s up to the Senate now to stand with the Charter and defends gender equality.


The link to the original article as published in Lawyer's Daily can be found here:
https://www.thelawyersdaily.ca/articles/4019/why-is-trudeau-government-opposing-charter-equality-for-indigenous-women-pamela-palmater?category=columnists


Tuesday, June 6, 2017

Bill S-3 Amendments to the Indian Act and the Never-Ending Battle for Equality for Indigenous Women


The Parliamentary Standing Committee on Indigenous and Northern Affairs (INAN) is currently studying Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities). As its title suggests, this bill should eliminate the remaining gender discrimination contained within the Indian Act’s registration and membership provisions – but it does not. The Indian Act’s registration provisions are already a complex mess of rules intended to legislate Indians out of existence – and the government’s version of the bill does not make it any better.
http://www.pampalmater.com/category/bill-s-3/

However, the Senate heard from First Nations, Indigenous and women’s advocacy organizations, Indigenous women, and legal experts during their initial study of the bill and agreed with the consensus opinion that the government’s bill falls short of eliminating gender discrimination. They introduced an amendment that addresses the bulk of the remaining discrimination – only to find the government fighting them all the way.

Bill S-3 is now being studied in the House and the government continues to defend their discriminatory version of the bill. We must continue to put pressure on Canada to address this long-standing injustice against Indigenous women and our children.

What follows is a chronology that will help provide context for how we got here:

1968 Mary Two-Axe Early (Kahnawake), formed the Indian Rights for Indian Women to advocate for gender equality in the Indian Act. Mary had married a non-Indian, lost her status, and her band attempted to evict her as a result.

Under older versions of the Indian Act, Indian women who married non-Indian men lost their status, as did their children. By contrast, Indian men who married non-Indian women kept their status and their non-Indian wives gained status – ensuring their children also had status.

Mary’s advocacy help gain media attention on the issue and the concurrent Royal Commission on the Status of Women included recommendations to amend these discriminatory provisions.

1973 – Jeanette Corbiere-Lavell (Wikwemikong) and Yvonne Bedard (Six Nations) lost their case at the Supreme Court of Canada which challenged the marrying out provisions of the Indian Act. The Court held that the Bill of Rights, which guaranteed equality before the law, couldn’t invalidate the Indian Act;

1974 – Native Women’s Association of Canada was formed to advocate for the rights of Indigenous women including their exclusion from registration and band membership due to Indian Act’s discriminatory "marrying out" rules (loss of Indian status/registration when an Indian woman marries a non-Indian man);

1981 – Sandra Lovelace (Tobique) [now Senator Sandra Lovelace-Nicholas] won her human rights complaint at the United Nations against the discriminatory Indian Act rules;

1982 – Former Prime Minister Pierre Elliot Trudeau helps patriate the Constitution, enacting the Charter of Rights and Freedoms, which includes section 15, an equality rights guarantee;

1985 Bill C-31 amends the Indian Act in response to the Lovelace case to restore Indian status and band membership to Indigenous women who lost it through marrying out, but the women were re-instated under section 6(1)(c), instead of full 6(1)(a) status and thus their entitlement to transmit status was more restricted than their Indian male counterparts. They could transmit status to their children [albeit only half status under section 6(2)] but not their grandchildren;

Section 6(1) status means you can pass on status to your children regardless of who you marry/partner; section 6(2) status means you cannot pass on status on your own - you must parent with another status Indian or your children have no status.

1985- 2010Sharon McIvor (Lower Nicola Indian band) challenges the ongoing (residual) gender discrimination in the Indian Act registration provisions and both trial and appeal level courts agree it is discrimination. The Supreme Court of Canada refuses to hear an appeal.

2010 – Bill C-3 amended the Indian Act in response to the McIvor case to remedy some aspects of gender discrimination, but leaves much of the discrimination unaddressed. This failed remedial legislation inspired more litigation.

2010 – Sharon McIvor immediately files a human rights petition in 2010 to the United Nations Human Rights Committee because of Canada’s failure to remedy all gender discrimination in Indian registration.


2015 Stephane Descheneaux, Susan Yantha and Tammy Yantha (Abenakis of Odanak) win their discrimination claim at the Quebec’s Superior Court against the Indian Act’s registration provisions that continue to discriminate between the descendants of Indian women and Indian men.

2016 Bill S-3 is introduced in the Senate with the stated intention of “eliminating sex-based inequities” from the Indian Act. Consensus from the First Nations, Indigenous women, advocacy organizations and legal experts called as witnesses before the Senate Committee on Aboriginal Peoples (APPA) is that Bill S-3 does not eliminate all sex-based inequities.

While Indian and Northern Affairs Canada (INAC) and Justice Canada (DOJ) claim that the bill is Charter compliant (i.e., there is no more gender discrimination), the expert witnesses highlight that the core of the gender discrimination is not addressed by the bill.

As a result, the Senate suspended consideration of the bill and instructed INAC to seek an extension from the court so it could draft a bill which did the job it claimed to be doing.

April 2017 - Lynn Gehl wins her discrimination complaint against INAC on the issue of unknown/unstated paternity which forces INAC to come up with additional amendments to Bill S-3 to address this as well;

2017 – Study of Bill S-3 continues in the Senate and the same witnesses express the same concerns that INAC did not use the court extension to draft amendments to eliminate all gender discrimination in the Indian Act.

One of the core areas of concern is the failure of the previous amendment (Bill C-3) to remedy gender discrimination for Indian women born prior to 1951 – an issue INAC referred to as “complex discrimination” best left for Phase 2 i.e., future discussions.

Having little faith in the many Phase 2 promises from past amendments, Indigenous women asked the Senate to amend Bill S-3 to address all gender discrimination. To this end, Senator Marilou McPhedron tabled the suggested amendment, referred to as “6(1)(a) all the way” which would make entitlement to registration for those born prior to April 17, 1985 equal as between Indian men and Indian women and their descendants – including those born pre-1951.

Letters of support for this amendment have poured into the Senate and Minister’s office by First Nations, First Nation organizations, women’s groups, individuals and families. Minister Bennett responds by fear-mongering saying that this amendment could entitle 2 million people and insists that the government cannot act without consulting First Nations. 


Key myths and facts about Bill S-3:

MYTH #1:
Bill S-3 is Charter compliant and addresses all known gender discrimination.

FACT:
Every time the federal government claims the Indian Act is Charter compliant, it has been proven wrong in court. Furthermore, although their initial claim was that Bill S-3 addressed all known gender discrimination, Minister Bennett later admitted that “we are not doing the whole thing in terms of discrimination”.

It should also be noted that the current Liberal Justice Minister Jodi Wilson-Raybould defends this bill, yet when she was the Regional Chief of the BC Assembly of First Nations she wrote a letter to government saying that pre-1951 cut-off date was discriminatory and should be removed. It was also the former Liberal government that introduced the "6(1)(a) all the way" amendment during debate on Bill C-3 study. They agreed with removing all the discrimination then, but not now.

MYTH #2:
Minister Bennett claims millions of new Indians will be registered if this amendment passes.

FACT:
There are less than 900,000 registered Indians in Canada. Remedying gender discrimination for Indian women who married out pre-1985 and entitling descendants of women to status on the same footing as descendants of Indian men, could not possibly result in 2 million new registrants. Many will have passed away already, many will not apply and many already have status – they would only be getting a higher level of status,but not adding new numbers. Every time the Indian Act has been amended, INAC has grossly over-estimated the numbers to manufacture fear and dissent. Sadly, but predictably, the AFN is also engaged in fear-mongering along the same lines as INAC.

No one cared about registration numbers when Indian men and white women were being registered – it only seems to be an issue now because its Indian women. 

MYTH #3:
All these new registrations will cost too much money.

FACT:
Canada adds 800,000 new Canadians every year from new births and new immigrants – all of whom are entitled to the full range of social programs and benefits at double or triple what is paid to First Nations for the same services. A one-time addition to the Indian register will not break the bank. More importantly, everyone is Canada is entitled to gender equality – regardless of any potential costs. Further, INAC already testified before Senate that they do not expect costs to increase for First Nations as the majority of new registrants will live off reserve.

MYTH #4:
Canada needs time to consult with First Nations about whether to amend the Indian Act to eliminate gender discrimination.

FACT:
The issue of gender discrimination in the Indian Act (and how to remedy it) is not a new issue. First Nations and Indigenous women’s organizations have been engaged with INAC for many decades on how to amend the Indian Act. Consultations, engagement sessions, information sessions and various discussion tables have been ongoing since before the 1985 amendments. Even if more than forty years of consultation had not already taken place, and it has, the government cannot legitimately consult on whether to continue to discriminate against Indigenous women. It has a constitutional and fiduciary duty not to discriminate.

This government has no choice legally but to remedy the discrimination.

MYTH #5:
It is ok to leave the issue of gender discrimination for another day.

FACT:
Section 15 of the Charter of Rights guarantees equality between men and women.

Section 35(4) of the Constitution Act, 1982 guarantees equality between Indigenous men and women with regards to Aboriginal and treaty rights.

Section 3 of the Canadian Human Rights Act prohibits discrimination in the provision of federal programs and services on the basis of gender.

Article 44 of the United Nations Declaration on the Rights of Indigenous Peoples guarantees equality between Indigenous men and women for all the rights included in the Declaration but specifically with regards to belonging to one’s Indigenous Nation.

Various international human rights bodies have long recommended that Canada once and for all eliminate gender discrimination in the Indian Act and even  noted that it is one of the root causes of murdered and missing Indigenous women and girls.

It is long past time that Canada finally amend the Indian Act and eliminate gender discrimination in Indian registration. They do not need more court cases, UN reports or a national inquiry to justify taking action.

At this point, it's simply a matter of political will.

Please use the following link to a template letter to support these amendments.

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.

https://www.thelawyersdaily.ca/articles/2889/nation-to-nation-relations-need-repeal-of-paternalistic-laws-pamela-palmater



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.

https://www.pressprogress.ca/millions_promised_for_indigenous_kids_is_subsidizing_mining_companies_internal_documents_show

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.

http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/127700/index.do

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.

http://www.pampalmater.com/child-welfare-unfair-for-first-nations/

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.

#racismkills

Update:

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.

http://www.huffingtonpost.ca/hon-carolyn-bennett/indigenous-children-discrimination_b_15131394.html

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.

http://www.cbc.ca/news/canada/thunder-bay/azraya-kokopenace-charlie-angus-1.3824868