This blog represents my own personal opinions, thoughts and ideas, and should never be relied on as legal advice. My goal is have a national discussion with the grass roots citizens to see where we can affect the changes we want for our families, communities, and Nations. We owe it to our ancestors to protect our cultures and territories for our future generations.
DEFENDING OUR SOVEREIGNTY
Monday, May 15, 2017
Nation to Nation Relations Need Repeal of Paternalistic Laws
(Originally published in Lawyer's Daily on April 17, 2017)
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.
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.
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.
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.
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 aserious strain on an already fragile relationship between First
Nations and the federal government. Trudeau’s election promises offered a
welcome path forward.
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
for Indigenous and Northern Affairs, Fisheries, Justice, Health, Families and
Natural Resources and will be chaired by Justice Minister Jody Wilson-Raybould.
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.
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
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.
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.
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.
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