Thursday, December 27, 2018

Trump's "Crazy Town" Represents a Clear and Present Danger to Canada

                            (Photo taken when I marched in Trump Protest in NYC)

Donald Trump shocked countries around the world when he won the election for President of the United States of America (USA) on November 8, 2016. Trump was formally elected as the 58th US President, together with Mike Pence as his Vice-President, by the Electoral College on December 19, 2016. However, the official inauguration ceremony did not take place until January 20, 2017. While most of us were in a state of shock during the weeks between Trump's election and his inauguration; millions of Americans immediately took to the streets in nationwide protests under the collective chant “Not my President!”.

Trump’s presidential welcome (or lack thereof) did not get any better at his inauguration. In fact, attendance at Trump’s formal inauguration ceremony was one of the lowest in modern history – the crowds were only a fraction of the size that attended former President Obama’s inauguration. Not only has the open wound of Trump’s election failed to heal, but Trump’s toxic team has infected the White House with such high levels of corruption and lies that no one knows who to trust anymore.

  (Photo I took just before the rest of the protest march arrived at Trump Tower in NYC)

Since taking office, Trump has tried to fulfill his campaign promises of enacting a Muslim travel ban; erecting a wall between the USA and Mexico; deporting undocumented immigrants, and nominating conservative judges to the Supreme Court with mixed results. While his Supreme Court appointment, Brett Cavanaugh went through despite multiple sexual assault allegations - it may go down as one of, if not the, most controversial appointments in US history. Trump's travel bans were overturned by the courts and his wall will likely never be built.

At the same time, he has engaged in an anti-media campaign to discredit any media outlet critical of his Presidency as “fake news”. His obsession with fake news is more of a reflection of his own lies and those of his reported Russian hacker friends, than any media-wide conspiracy to lie to the American people about the President.

He has also used social media to call out his perceived political enemies, name-call anyone who doesn’t agree with him and taunt world leaders. While his national security team has no doubt worked overtime to prevent World War III; Trump’s presidency has the added stress of one political scandal after another. From his reported relationship and subsequent pay-off to porn star Stormy Daniels; to his alleged collusion/collaboration with Russia; and the guilty pleas of former Trump aides to various criminal offences; Trump has no doubt set the record for the most tumultuous first 18 months in office.

Unlike our ability to change the channel when Trump’s former reality show "The Apprentice" would invade our TV screens, the very real “live reality” show of Trump’s presidency is the only channel available to Americans right now. While Trump’s crazy hair, weird hand gestures and remarkably bizarre and often incoherent rants might provide endless fodder for late night comedy shows; this President’s junior high school style diplomacy does more than just reflect poorly on Trump as an individual. The Office of the President is an institution that is supposed to represent the American people, but currently appears to only represent Donald Trump's every whim or vendetta in an embarrassing Twitter drama.

The now infamous anonymous op-ed allegedly written by an insider has described Trump as “impetuous, adversarial, petty and ineffective”. Excerpts from award-winning journalist, Bob Woodward’s new book: Fear: Trump in the White House, together with insights gleaned from other journalists with access to the White House, like Michael Wolff’s Fire and Fury: Inside the Trump White House expose the current turmoil within the White House. Taken together with Trump’s own public behavior and the insights gleaned from former senior officials, we all have cause to be worried; and when I say “we”, I mean Americans, Canadians and Indigenous Nations all over Turtle Island.

                                      (photo from Google images)

It’s not much of a stretch to assume that a White House in this much turmoil, being led by someone who thrives on conflict and chooses to align himself with autocrats and dictators over America's long-held allies; presents a clear a present danger for national security at a global level, but also public safety at the local level. Canada is America’s closest ally – politically and geographically. Any form of major or sustained attack on the USA, risks the safety of Canadians working in the US or inter-married with Americans.

Similarly, those Canadians living in border towns may suffer the consequences of attacks made in close proximity. As a known ally of the US, retaliatory attacks on the US might also be accompanied by direct attacks on Canada. It matters very much to our safety and security to know what is happening in the south. So, while Canadians, like many Americans, would also like to turn the channel when Trump appears on our news stations – our collective worry prevents us from doing so. It is far worse for sovereign Indigenous Nations who pay the price for decisions made without us.

                            (photo about Standing Rock from Sacred Ecology)

It's no coincidence that Canada has been sucked into the trade dispute between the US and China. Recently, several Canadians were detained by the Chinese government, reportedly as a bargaining chip to force Canada to release an Executive from Huawei being held for extradition to the US. While Canada is not a party the US-China trade dispute, Canadians are collateral damage on Trump's toxic, combative presidency.

It is important to note, that these observations from the northern part of Turtle Island are not related to the divide between liberal and conservative ideologies or Republican and Democrat politics. These concerns are not about NAFTA, the trade tariffs Trump imposed on Canada or the fact that Trump called our Prime Minister “very dishonest and meek”. No, these concerns represent the very real concerns of Canadians and First Nations, who, like many Americans and Native American tribal governments, value the advances made in our societies in relation to Indigenous sovereignty and rights, civil rights, human rights and freedoms, and the push to address social injustices like racism, poverty and homelessness. It is also safe to say that the recent United Nations Report on Climate Change has Indigenous Nations all over Turtle Island deeply concerned about the health and well-being our lands, waters and future generations if “leaders” like Trump remain in power.

Trump may be able to brag about the American economy and the low unemployment rates, but this does little to quell the violence which stems from white supremacy and racists emboldened by Trump’s perceived alignment with these groups. His outright refusal to condemn Naziism and his claim there are good people within the white supremacist movement has made it even more difficult to keep the lid closed on Pandora’s box of hatred. Under the guise of “making America great again” the worst segments of society have come forth in more public ways to spread their hatred against racialized peoples under the guise free speech and diversity of thought. And why should northern Turtle Island be concerned? Because white supremacy, hatred and race-based violence is an infection that spreads when you give it oxygen. And given that Turtle Island is divided by an artificial border, there is little stop this rise in white supremacy from expanding its lethal infection north in Canada.

              (photo of white supremacists in Charlottesville from PBS website)

And it is spreading north. Steve Bannon, Trump’s former strategist, whose far-right ideologies are praised by Neo-Nazis and the KKK, was invited to speak about populism at the Munk debate. However, while hatred is spreading, that doesn't mean it is new to Canada. One need only look at Canada's lethal genocidal policies against Indigenous peoples and it ongoing racism, violence and destruction of native lands to know - racism and white supremacy is alive and well in Canada. It is the recent rise in populism, fueled by Trump, that has encouraged it to spread to new generations in Canada in more public ways. The reported anti-black and anti-Indigenous actions of Ontario Premier Doug Ford, and the hateful, anti-immigrant rants of Maxime Bernier are just the tip of the iceberg.

Formerly hidden or subversive hate groups in Canada and the US have been given very powerful signals from exceptionally powerful men (usually right-wing, ultra-conservative) that the coast is clear to more actively spread hatred. So, Trump’s impact on Canada presents a very real and present danger to Indigenous Nations and racialized Canadians.

So the question is: are Americans (and Canadians) truly condemned to two more years of Trump’s “Crazy town” or are there realistic alternatives? Early in his presidency, some political commentators offered their analyses on the chances of Trump being impeached. More recently, commentators and politicians alike have suggested the possibility of declaring him unfit under the 25th amendment. While some worry that this may cause a constitutional crisis, others like Massachusetts Senator Elizabeth Warren – embroiled in her own controversy of white appropriation of Indigenous identity - feels that the US may already be in a constitutional crisis if Cabinet feels Trump can’t do the job.

What most political analysts do agree on is that there is a very remote chance that Trump will ever be removed from office. Could this be why there is reportedly a core group within the White House trying to protect country? Could this be why senior White House officials are taking huge personal risks to expose the potential danger within and protect the American people? While it is hard to know anyone’s personal motivations, it would be incredible to think that someone is watching out for the people.

Some believe that a true patriot – a real American – is one who votes and that true loyalty to the American flag and constitution means standing by your President no matter what. Sure there is some buyer’s remorse amongst some who voted for Trump, and some feelings of regret by those who didn’t vote at all having assumed that there was no way Trump could be elected. But what about the collective fear and worry by Americans and Native Americans – regardless of their voter status or their political leanings – about the very real and dark turn of events since Trump’s election? What of the confirmed Russian interference with the election, the risks of retaliation from other countries against Trump’s aggressive tactics, the thousands of children traumatized when they were separated from their migrant families, destruction of native lands, murdered and missing Native American women, or the very obvious rise in racist, white supremacist banter?

How does American loyalty to the institution of the Presidency jive with their loyalty to equality, democracy, freedom of the press, human rights, the right to life and their own constitution?

If this is the difficult issue facing Americans right now, imagine how those working in the White House feel? Worse, imagine how Native Americans feel that this is all taking place on their sovereign territories? While it may be easy to condemn the unnamed officials who are trying to keep the White House stable despite the Trump circus, what real choice do they have if they are committed to “the people” – which is supposed to be the real government anyway?

It may not follow the rules of democracy or the processes laid out in policies, but how long can good people use process, protocol or past practice as an excuse not to act?  In his address to before the Canadian Parliament in 1961, America’s 35th President John F Kennedy said; “The only thing necessary for the triumph of evil is for good men to do nothing”. I am sure many Americans are hoping that more good people come forward and take concrete actions to protect the US and Canada both from the risks posed by Trump’s "Crazy town".

In the meantime, my money is on “the people” – the people who have risen up and taken a stand against this infection of hatred - those who shoulder the unfair burden of making sure it doesn’t turn into a plague. Our sovereign Indigenous Nations have something to say about the threat to public safety and national security in our territories. Our treaty partners have not only breached our treaties, but their self-interested, hateful actions pose real dangers to our peoples and our Canadian and American allies. The fight for our future is real. We better make 2019 the year of the revolution and Make America (and Canada) Native Again.

      (I took this photo while marching in the anti-Trump protests in NYC shortly after his election).

For my Youtube video about this topic, please see the following link:

Sunday, October 28, 2018

Saskatchewan: The Land of Living Skies and Lethal Racism

                   (Justice for Our Stolen Children Camp, Wascana, Saskatchewan, 2018)

Saskatchewan is known as the “land of the living skies” for its breathtakingly colourful northern lights. It is also one of the most beautiful prairie-provinces in Canada, with stunning purple sand beaches and the incredible Sahara-like Athabasca Sand Dunes that stretch for nearly 100 kilometres. The province also boasts over 100,000 lakes and rivers, making it nearly 12% water. The diverse Indigenous Nations which have thrived on these territories since time immemorial have tied their customs, practices and traditions, and even their traditional Indigenous knowledge systems to the life-giving resources from these rich lands, waters and eco-systems. The very land that has sustained the Nehiyaw, Anishinabe and other Nations for thousands of years is firmly rooted in their identity as individuals, families, and Nations. Sadly, Saskatchewan is also well-known as one of the most racist provinces in Canada. With colonization and the clearing of the plains, came brutal acts of genocide, land dispossession and violent racism against First Nations – a legacy that has and continues to be a lethal reality for First Nations.

Saskatchewan is the home to farmer Gerald Stanley, who shot and killed an unarmed First Nation youth, Colten Boushie, in cold blood in 2016, but was found not guilty by an all-white jury two years later – a result that shocked the nation. But it’s not just white farmers killing Indigenous peoples – 62.5% of people who died from police encounters in Saskatchewan were Indigenous, despite being only 11% of the population. But this should not come as a shock to anyone. It wasn’t that long ago in 2004 that the Neil Stonechild Inquiry exposed the Saskatchewan police practice known as “Starlight Tours” to the world. Starlight Tours occur when police officers detain Indigenous youth, drive them out of town and leave them stranded in sub-zero temperatures causing their deaths. While this racist practice was well-known by First Nations as common practice, Canada had a hard time accepting the persistence, prevalence and lethal nature of racism in this country. Meanwhile, the rate of murdered and missing Indigenous women and girls continued to climb.

In 2014, the Royal Canadian Mounted Police (RCMP) released a report on the “known” cases of murdered and missing Indigenous women and girls in Canada which showed that Indigenous women and girls make up only 2.5% of the Canadian population, but 16% of the murder victims in Canada. However, Saskatchewan had the highest provincial rates - 55% of all murders of women were Indigenous. This unique intersection of racism and misogyny creates a situation where sexualized violence is perpetrated against Indigenous women and girls at alarming rates with relative impunity, and by all walks of society. While it is true that domestic violence is part of the issue, many of the murders and acts of sexualized violence were committed by society – doctors, lawyers, teachers, judges, social workers, foster parents and even police officers. Human Rights Watch released a report about police officers in Saskatchewan who commit sexualized violence against Indigenous women and girls in their custody, including sexual harassment, assault, invasive strip searches by male officers, and groping.

Racialized violence, abuse and neglect of First Nations is so ingrained in Saskatchewan that it is not only reflected in societal attitudes, but those of its governing bodies and agencies. Nowhere are the socio-economic conditions worse for First Nations than in the sister provinces of Manitoba and Saskatchewan. More than 80% of all children in care in Saskatchewan are Indigenous – second only to Manitoba’s 90% - primarily due to discriminatory agency practices or conditions of poverty from chronic and discriminatory government under-funding of core social services. Racism has a multiplier effect where not only are Indigenous children wrongly apprehended, but because of that race-based apprehension, they are less likely to get a high school education, and more likely to end up in youth corrections. More than 2/3 of all Indigenous peoples in prison were in the child welfare system. It should be no surprise then that Indigenous foster girls are also over-represented in murdered, missing, and sex trafficked and those exploited in the child porn industry. Human traffickers know exactly where to get them - foster and group homes.

These multiple, over-lapping crises rooted in racism and violence against Indigenous peoples is getting worse. The Supreme Court of Canada, the federal Office of the Correctional Investigator, the Auditor General, child welfare advocates, and numerous United Nations human rights bodies, together with countless research findings, commissions, inquiries and coroner’s reports all point to continued failures by federal and provincial governments to take concrete action to stem or reverse these crises. This failure, which is nothing less than colossal in Saskatchewan, sends the very toxic message to society that Indigenous lives have less value. Despite all the symbolism in a post-TRC report Canada, provinces like Saskatchewan have made very few substantive changes that have addressed any of these issues. All the political meetings, negotiation tables, and other so-called partnership initiatives haven’t stopped the suffering of the people – instead conditions are getting worse.

This is the reason that Idle No More was born. Not only did this organic social movement grew from Indigenous grassroots community members – it was inspired by federal and provincial government inaction on these social issues and their constant breach of our Aboriginal and treaty rights. Omnibus bills to remove protections for the many lakes and rivers which make up Saskatchewan, together with provincial leases, permits and other authorities for corporations to continue to steal from Indigenous lands helped inspire a Saskatchewan born, nationwide movement to demand action. Idle No More wasn’t the first public show of protest over racial injustice, and it won’t be the last. First Nation family members of lost loved ones organized the Justice for Our Stolen Children Camp to again raise awareness and demand action. Their message was simple - the gross injustices committed against First Nations peoples in the name of racism and misogyny, like poverty, homelessness, over-incarceration, over-representation of our children in foster care and murdered and missing Indigenous women and girls – are all getting worse, not better.

It would appear that Saskatchewan’s Premier is wholly detached from the problem. His focus seems to be on maximizing extraction of resources from First Nation lands; ignoring Aboriginal, treaty and lands rights; and clearing the legal playing field for more violence. In his recent Throne Speech, Moe announced that he will pass “trespass” legislation to allow more policing in “rural” areas. His focus is on the property rights of rural farmers without any mention for the safety of rural First Nation communities. We all know what this means. More laws to protect farmers who may hurt or kill other First Nations youth. His plan is eerily similar in nature to the bills proposed in the United States by certain states, to protect those (white people) who run over protesters with their cars, for example. Then add to Moe’s trespassing legislation, the fact that he is planning to arm conservation officers with AR-15 type carbine rifles! The very same conservation officers, who have recently been authorized to enter reserves through an MOU with the Federation of Sovereign Indigenous Nations (FSIN).

There is a political storm brewing in Saskatchewan that further risks the lives of First Nations people. Trespass legislation and semi-automatic weapons are the not answer. Land and resource transfers back to First Nations, ending discriminatory practices, implementing treaty rights - all of those would contribute to justice for First Nations. Pumping more weapons into First Nation territory will only lead to more deaths.

It is long past the time that the province of Saskatchewan take real steps to stem the race-based violence and deaths of First Nations from whose lands and waters every single resident of Saskatchewan benefits.

Friday, October 12, 2018

The Indigenous right to say no

                                     (photo by Michelle Girouard)

This article was originally published by The Lawyer’s Daily on October 12, 2018.

The federal government recently announced that it will not appeal the court decision which quashed Canada’s approval of the Trans Mountain pipeline expansion. Instead, Canada will engage with the 117 impacted First Nations in a consultation process led by former Supreme Court of Canada Justice Frank Iacobucci.

If ever there was a sign that the government was going to force this pipeline expansion through the review process, this is it. After all, federal elections are just around the corner and Liberal Prime Minister Justin Trudeau has become the face of the Trans Mountain pipeline dispute and all the broken promises that it entails.

Being criticized from all sides — the provinces, industry, Canadians and Indigenous peoples, and now the Federal Court of Appeal — Trudeau decided to bring out the big guns: Iacobucci.

There is little doubt that he was engaged to lead this process to ensure that the technical aspects of consultations are met, thus insulating the government from an appeal of its decision. Even the most trusting person would be hard pressed to believe that the Supreme Court of Canada (SCC) would hear an appeal about Iacobucci’s consultation process let alone consider it in a truly neutral fashion.

Even if I am wrong about this, what kind of message does this send to First Nations who have been taking their cases to the SCC in the hopes of fair and impartial consideration for decades? Will they now wonder if their cases will be heard by justices who, after they retire will work with governments against their interests?

Remember that conflict of interest is not only the presence of an actual conflict, but also reflects the appearance of conflict. Justice Canada describes judicial independence as the “cornerstone of the Canadian judicial system” and refers to the clear separation of government and the courts. While some might argue he is no longer a sitting justice and may be perfectly legal and ethical according to the rules of ethics of the federal government and even law societies — it still doesn’t feel right. In law school, we learned that lawyers are duty bound to uphold the honour of the legal profession while at work and in our personal lives — even after retirement.

To my mind, Iacobucci carries with him the honour of Canada’s highest court in all his actions, even after retirement. While this may not be a legal ethic issue, it is certainly a moral one. With all due respect, joining the federal side of this pipeline dispute feels a lot like taking sides against First Nations. It feels like a betrayal.

This is a similar story of betrayal that many First Nations feel when the RCMP takes the side of government in every single conflict between government laws and Aboriginal rights. The mandate of the RCMP is to not only prevent crimes and maintain peace and order, but also enforce laws.

According to Canadian law, the Constitution is the highest law in the land. In theory, First Nations should be able to seek the assistance of the RCMP to protect their constitutional rights from being breached by governments or industry. Instead, the RCMP seems to always abide by the will of government and stop us from exercising our rights and/or provide physical protection and security for the extractive industry to allow them to breach our rights.

The government is using these national institutions, the RCMP and the courts, against us to force the expansion of this pipeline. The RCMP arrested land and water defenders in B.C. and now a former SCC justice will be used to insulate Trudeau’s future approval of the pipeline expansion.

Therein lies the real injustice of this process. Regardless of whether the new consultations are led by a former SCC justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word consent. When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with the woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the SCC would not interpret their own decisions in such an impoverished manner. To do so would render s. 35 an empty shell of a constitutional promise.

No former SCC justice should take part in such an exercise as between Canada and First Nations. I think the honourable thing for the former justice to do would be to withdraw from the process. It might just help even the playing field in a game which is already skewed by a major imbalance of power.

The link to the original article published by The Lawyer's Daily on October 12, 2018

We should also be able to exercise our right to say no to Trudeau's proposed legislative framework that will impact our rights:

Monday, September 17, 2018

It's up to Indigenous, environmental groups to protect the public interest

(Photo by Ken Balcomb, Center for Whale Research, pic from Washington Post)

This article is Part 2 of a 2-part series which was originally published in The Lawyer's Daily on September 17, 2018. The link to Part 1 which was published Sept.11, 2018 is provided below.

Despite objections from some of the Indigenous groups about the consultation process, the Federal Court of Appeal (in Tsleil-Waututh Nation et al. v. Canada (Attorney General) 2018 FCA 153) held that Canada acted in good faith and that the consultation framework it used was appropriate.

This was a four-phase process which was to include (1) early engagement, (2) NEB hearing, (3) governor-in-council consideration and (4) regulatory authorization processes.

Where Canada fell down was in Phase III of the consultation process in that it did not meaningfully consider the concerns of the Indigenous groups or attempt to accommodate or mitigate those concerns. There was no substantive discussion about Indigenous rights and the FCA found that federal officials did little more than act as “note-takers”. The court agreed with the Indigenous groups that Canada’s notes, referred to as the Consultation Chronologies, “should be approached with caution” for failing to accurately present the facts.

When pressed by Indigenous groups for a response, federal officials merely repeated the line that they would deliver their concerns to the decision makers. When it finally did come time for a response, Canada informed the groups that it was bound by the recommendations of the NEB and that it was in effect, powerless to add any more conditions on the project. A surprising response given the fact that the FCA had already decided in the Gitxaala Nation case (Gitxaala Nation v. Canada 2016 FCA 187) that under the current legislative scheme, the only decision maker was in fact the governor-in-council and not the NEB.

The Department of Justice is the largest law firm in Canada, working exclusively on behalf of the federal government — it had no excuse for its “erroneous position.” The FCA held that the duty to consult is not met by the mere exchange or discussing of information. Consultation has to focus on constitutionally protected rights and in so doing Canada is obligated to “substantially address the concerns of the First Nation” (from Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69. This coupled with the fact of Canada’s late disclosures, lack of responses, failure to provide more time and “closed-mindedness” frustrated the consultation process. It is Canada’s actions or lack thereof which is why the Federal Court of Appeal overturned its decision.

So, what now? Well, this is far from over. The FCA has ordered that the decision is quashed and the approval must go back to the governor-in-council for reconsideration. As part of that reconsideration, the GIC must refer the NEB’s recommendations back to the NEB. Canada must also redo its Phase III consultations and accommodations before the GIC can reconsider the approval for the pipeline expansion.

Of great concern is Prime Minister Justin Trudeau’s comments that Canada is considering the possibility of an appeal of this decision or legislation to force the pipeline project through.

Whether Canada chooses to abide by the decision or not, what we know for sure is that Canada will forge ahead with the pipeline despite the fact that the impact of a tanker spill on the southern resident killer whales would be “catastrophic” and “there were no direct mitigation measures that Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers”. Perhaps Tahlequah (the female southern resident killer whale who recently carried her deceased calf for 17 days) was mourning for all us.

However, there is a new complication to Canada’s pipeline plans. Six conservation groups, including the Raincoast Conservation Foundation, Ecojustice, David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defence Council and the World Wildlife Fund have filed a lawsuit in Federal Court seeking an emergency order to protect the southern resident killer whales.

Indigenous peoples will also have to decide how to proceed to protect their lands, waters and the other life within their territories which depends on a healthy eco-system — including killer whales.

What we know for sure is that we cannot count on either federal or provincial governments to put the health of peoples, lands, waters, plants or animals ahead of the money to be made from the extractive industry. As the FCA held, the public interest and the duty to consult with Indigenous peoples are not in conflict. To the contrary, the violation of the “constitutionally protected rights of Indigenous peoples cannot serve the public interest”.

Looks like it is up to Indigenous peoples and environmental allies to protect the public interest and our collective futures — including Tahlequah’s and the future of her pod.

This article is Part 2 of a 2-part series that was originally published in The Lawyer's Daily on September 17, 2018.

The link to Part 1 which was published Sept.11, 2018 is at this link:

My Youtube video on this issue provides more detailed information about the case.

Tuesday, September 11, 2018

Killer Whales, Trans Mountain Pipeline and the Public Interest

                  (photo by NOAA from Raincoast Conservation Foundation)

This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days.

Tahlequah’s “tour of grief” which saw one of the female southern resident killer whales (referred to by scientists as J-35) carry her deceased calf for 17 days was an unprecedented show of grief for the death of her calf. It is also a sad reminder of the fact that these endangered whales have had no successful births for three years. Her visible mourning tore at the heartstrings of many Americans, Canadians and especially Indigenous peoples who know all too well the pain of losing their children. While it is not uncommon for a killer whale to hold her deceased calf for a few hours or a day, this show of extended grief was the first time observed by scientists.

Some wonder whether Tahlequah’s actions were not a call for help given that there are only 75 whales left and the proposed increase in tanker traffic from the Trans Mountain pipeline threatens to wipe them out for good. Indigenous Nations in Canada and several conservation groups filed applications against Canada’s decision to approve the pipeline in the hopes of saving these whales and all life in the surrounding eco-system.

On Aug. 30, 2018, Justice Eleanor Dawson delivered the decision of the Federal Court of Appeal (FCA) quashing Canada’s approval of the Trans Mountain Pipeline expansion (Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153). From the moment the decision was released, there was more shock and awe to go around than had the court pronounced that the earth was flat. While the controversy generated from that decision has been quite dramatic, the decision is far less apocalyptic than most might think.

Ultimately, this decision to quash the approval of the Trans Mountain expansion reflected principles espoused by the Supreme Court of Canada (SCC) for the last two decades. No new law was created — it was a case which reflected the current legal status quo.

This case — unlike the raging fires in British Columbia or the melting of the ice in the Arctic — is rather non-calamitous; unless of course you consider the fate of the southern resident killer whale or the health of the Indigenous lands and waters upon which this pipeline will wreak havoc. That is because despite the fact that the Federal Court of Appeal quashed the decision in this instance, it also set up the conditions for which the federal government can approve the pipeline in the future. So, while Prime Minister Trudeau moans about how “hurt” he is by the decision, and while the extractive industry goes into full panic mode, the only ones who need to be worried here are the Indigenous peoples and their conservation allies who will now face the full wrath of the oil industry and its federal and provincial cheerleaders.

Here’s how it all started: On Dec. 16, 2013 (under the Harper government) Trans Mountain submitted an application to the National Energy Board (NEB) for a certificate to allow the expansion project to proceed. After several years of review, on May 19, 2016, the NEB recommended to the governor-in-council that the pipeline expansion be approved. Six months later, on Nov. 29, 2016, the governor-in-council (cabinet) (under the Trudeau government) accepted the NEB’s recommendation and issued an order-in-council to that effect. The appeals of this decision were heard at the FCA in October of 2017 and the court issued its decision almost a year later in August 2018.

This case involves individual applications by five First Nation collectives, two of B.C.’s largest cities, and two conservation groups asking the Federal Court of Appeal to overturn Canada’s decision to approve the pipeline expansion. The respondents in the case were the Attorney General of Canada, the NEB and the Trans Mountain Pipeline company. The FCA consolidated the applications into one to be heard together.

While the applicants made various arguments challenging different aspects of the decision-making process, the FCA determined that the only “decision” that was under review was the decision of the governor-in-council to approve the expansion. That decision was challenged on two primary grounds (1) the NEB’s process and resulting report were flawed and (2) Canada did not fulfil its duty to consult with Indigenous peoples.

The primary reason why the FCA found that the NEB’s process was flawed was because it “unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic”. Specifically, the NEB excluded the impact of increased marine traffic on the B.C. coast on the southern resident killer whales, which are an endangered species, was not properly considered within its assessment of the impacts of the project. This is despite the fact that they had already acknowledged that the increase in large tanker traffic “would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species” and that “Southern resident killer whales are an endangered species”.

They further acknowledged that: “... the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals”.

The FCA noted that Project-related tankers carry the risk of significant, if not catastrophic, adverse environmental and socio-economic effects should a spill occur”. Ultimately, the governor-in-council could not rely on such a deficient report in order to make its decision.

The other ground challenging the validity of the decision was the finding that Canada did not fulfil its duty to consult and accommodate Indigenous peoples’ legitimate concerns about the impact of the pipeline on their territories and their constitutionally protected Aboriginal rights and title.

Specifically, the Tsleil-Waututh Nation asserted Aboriginal title to the land, water, air and marine resources. The Squamish Nation asserted Aboriginal title, Aboriginal rights, the right to be self-governing and the right to fish. The Coldwater Band asserted Aboriginal rights and title, as did the Sto:lo Collective, Upper Nicola Band and Stk’emlupsemc te Secwepemc — all within their respective territories. They had all engaged in Canada’s consultation processes despite the limited funding to participate, the brief timelines and the consistent failure of federal officials to respond to their concerns.

In the end, the facts clearly show it was the First Nations groups who were acting in good faith, despite Canada’s less than honorable actions.

This is the first of a two-part series.

This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days. The original link for Part 1 can be found here: 

You can also watch the CBC panel where we discussed the implications of this case:

Here is the link to my Youtube video breaking down the decision:

Thursday, August 23, 2018

Justice for Our Stolen Children Camp - Thank you for Standing Up for our Children

The violent deaths of Colten Boushie in Saskatchewan and Tina Fontaine in Manitoba hit their families, communities and First Nations pretty hard. These were youths who had their whole lives ahead of them. The fact that deep-seated institutional and societal racism and violence against Indigenous peoples is what led to their deaths is a glaring injustice that we have seen happen many times over to our people. But the other glaring injustice is how institutional and societal racism and violence allows the killers of our people to walk free. The high level of impunity for lethal race-based violence against Indigenous peoples serves only to reinforce the racist idea that Indigenous lives don’t matter. Without intervention from federal, provincial and municipal governments, agencies and police forces, our people will continue to be at risk.

Canada’s failure to act on this crisis means that First Nations must continue to take action to stand against these injustices which are killing our people. At a time when our hearts were collectively breaking over the non-guilty verdicts in the Gerald Stanley murder trial of Colten Boushie and the Raymond Cormier murder trial of Tina Fontaine, First Nation members from Saskatchewan got together and created the Justice for Our Stolen Children Camp. On February 28, 2018, they raised a traditional teepee and lit a sacred fire in Treaty 4 territory at Wascana Park, just across from the Saskatchewan Legislative building. These grassroots community members used their most powerful tool to bring attention to this crisis – their voices and their traditions.

But the teepee and the sacred fire not only attracted media attention for our issues, but it also turned into something special. This camp became a gathering place for those who had lost children to violence, foster care and the justice system. Mothers, fathers, aunties and cousins with broken hearts came to the camp to share their stories, release their emotions and start their healing journeys. Far from creating any safety risk to the public, this camp offered hope, comfort, solidarity, a sense of collectiveness and empowerment. The longer the camp remained at Wascana Park, the more the media took notice and started to highlight the many injustices faced by First Nations. The core message from the camp was that we need justice specifically for Indigenous youth in the wake of the Stanley and Cormier not guilty verdicts; and justice for the many Indigenous children stolen from our communities by child welfare agencies, the justice system and societal violence.

For many months, it may have appeared to outsiders looking in, that they were alone and that their camp would eventually fade from attention. They occupied the area peacefully for four months, supported by donations from First Nations and allies. It wasn’t until the Province of Saskatchewan thought the camp would interfere with its planned location for its Canada Day beer gardens that they took legal action. On June 5, the camp was issued and eviction order and ten days later, the Regina Police Service began their eviction procedures by removing the tents. On June 17 the teepee was taken down and on June 18 six of the campers were arrested and removed from the area, though charges were never laid. Many of us watched with anger as the province carried out this heavy-handed action, trampling over the wounded hearts of those who have found some temporary peace at the camp – all for the sake of beer gardens.

But if there is one lesson from our elders that we have to remember, is that we can never give up hope. Our ancestors died protecting the rights of future generations not yet born. We inherited the obligation to face each barrier put in front of us by colonial powers, with the same commitment to overcoming it, as our ancestors had. So, on June 21 National Indigenous Peoples Day, when we saw videos of the campers returning to Wascana Park, re-erecting the teepee and joining together in a round dance, our collective hearts were lifted again – this time with a renewed sense of resistance and empowerment. On June 23rd, a second teepee was erected and others joined in solidarity after that until there were many teepees side by side. People made donations of cash, food and water to support the campers and the healing continued. We owe so much to the spirit and determination of those who have stayed at the camp for long. Their commitment is why we are still talking about justice for our stolen children.

There is a real and growing crisis in Saskatchewan that demands an emergency, crisis-level joint response by federal, provincial and First Nation governments, experts and advocates. It doesn’t matter what the federal or provincial governments say they have done, what programs they have funded, or who they talk to at various discussion tables – what matters is that what they have done to date has not worked and the crisis continues to get worse. Therefore, a radical shift from the status quo is required to save the lives of our children. They don’t have a whole childhood to wait for the slow, drawn-out process of policy change. Our children are dying and the statistics present a dire picture for their life-chances if we don’t change this now.

Child Welfare

In Canada, Indigenous peoples make up 5% of the population and Indigenous youth make up 7% of the youth population. Nationally, Indigenous children make up 48% of all children in foster care – a number that is 3 times higher than during the height of residential schools. However, in Saskatchewan, an alarming more than 70% of children in provincial care are Indigenous and the numbers continue to increase. We know that less than half of those children will graduate from highschool and more likely to end up in youth corrections. The statistics also show that that Indigenous girls in foster care are 4 times more likely to be sexually abused; more likely to be targeted for human sex trafficking and are over-represented in murdered and missing Indigenous girls. The theft of our children into foster care does not just impact the children. Indigenous mothers who lose their children to foster care are more likely to die from heart disease and suicide.

Justice System - Prison

Canada has had the lowest crime rate since 1969 with a reduction of 34% since 1998. Yet Indigenous people make up more than 26% of those in federal prisons and Indigenous women make up 34%. Saskatchewan’s numbers are frightening. Over 76% of admissions to Saskatchewan prisons are Indigenous – the highest rates in Canada. Nationally, 41% of youth in corrections are Indigenous, with 51% being Indigenous girls. In Saskatchewan youth corrections, 92% are Indigenous boys and 98% are Indigenous girls. They have the highest youth incarceration rates in the entire country. More than 1/5 of Indigenous prisoners were in residential schools and 2/3 were in the child welfare system. It is important to remember that Indigenous peoples represent 1/3 of all suicides in prison and more than half of those who suffer in solitary confinement/segregation.

Violence – State & Societal

In 1996, the report of the Royal Commission on Aboriginal Peoples noted that racism is rampant from police forces to the courts. Saskatchewan policing in particular has a long, violent history of racism against Indigenous peoples. In 2004, the Saskatchewan Commission on First Nations and Metis Peoples and Justice Reform found that racism in policing was a “major obstacle” in relations with First Nations. The well-known police practice of “Starlight Tours” where police detain and drive Indigenous men to the outskirts of town where they freeze to death doesn’t seem to have ended with the Neil Stonechild inquiry. Indigenous women are often targeted with sexualized violence – including from police. The Human Rights Watch report from 2017 documented instances of excessive use of force, abusive strip searches and other sexual harassment against Indigenous women. The statistics also show that Saskatchewan has the highest rate of police involved deaths (beatings, chokings, shootings) of Indigenous peoples (62.5%).

The RCMP report into murdered and missing Indigenous women and girls showed that nationally Indigenous women and girls make up 16% of those murdered, but in Saskatchewan, that number jumps to 55%. Societal violence comes from the places most people do not suspect: priests, farmers, police, corrections, doctors, lawyers, judges, social workers, teachers, and foster parents. Very few of those who sexually violate or murder Indigenous women and girls are serial killers. The statistics also show they are less likely to be murdered by their spouse than Canadian women. The high level of impunity (non-conviction) for those perpetrators in society who continue to commit violence against Indigenous peoples is exacerbated by the many reports that document how police fail to protect Indigenous peoples or properly investigate their cases.

We have a real crisis in Saskatchewan. What has been done isn’t working. We need a new approach – one that is led by First Nations and their experts and advocates. We owe a huge debt of gratitude to the campers at the Justice for Our Stolen Children Camp who have sacrificed their time and energy, and risked police arrest and jail, to keep the light on this crisis. We don’t want to lose any more of our children and we want to bring the rest of our children who are in foster care, corrections, trapped by human traffickers, or missing – back home. Bring our children home.

In memory of all those precious lives those and sadly, too many to name:

Neil Stonechild, Leo Lachance, William Kakakaway, Leonard Paul John, Colten Boushie

Nadine Machiskinic, Shelley Napope, Melanie Dawn Geddes, Amber Redman, Danita Bigeagle

Haven Dubois, Brandon-Bee Ironchild, Evander Lee Daniels

Please see my YouTube video that I have created in support of the Justice for Our Stolen Children Camp:

Tuesday, August 21, 2018

Maxime Bernier's "Extreme Multiculturalism" Twitter Rants Sound More Like Sour Grapes

Last week, Conservative Member of Parliament, Maxime Bernier posted a series of tweets on Twitter espousing his opposition to “extreme multiculturalism” and the “cult of diversity” in Canada. According to Bernier, diversity will “destroy” the cultural identity of Canada and worse, will result in “cultural balkanization” that leads to social conflict and even "violence". These tweets were not the usual fair commentary offered by elected officials on matters of public policy. No – there was something a bit more frantic, even desperate about these tweets. These tweets sounded like the rantings of a wayward politician who, having failed in all of his political endeavours to date, couldn’t think of any other way to get attention but to ride the populist white supremacy wave.

A combination of deep-seated racism and white superiority, together with Trump-like fear-mongering seems to be the current populist recipe for manufacturing hate and division for the purpose of political gain. It also seems to reward the instigators with gratuitous attention on social media.

If we are to understand Bernier’s Sunday night tweet rant better, we have to understand that Bernier is a failed politician. He was a separatist from Quebec who voted in the 1995 referendum for Quebec to separate from Canada, but that vote and his efforts, failed. He was later successful in being elected a Conservative MP from Beauce, Quebec and was even appointed Foreign Affairs Minister under former Prime Minister Stephen Harper. However, he was forced to resign in scandal when he left classified documents at his girlfriend’s place for nearly a month. After Harper’s Conservatives were devastated in the last election, giving Trudeau’s Liberals a majority government, Bernier ran for leadership of the Conservative party and lost to Andrew Scheer. Soon after, he released portions of a cry-all book about how he lost the leadership bid, but publication was halted. His own peers said this cry-all book was more about “sour grapes” from losing and his “vanity” and need for attention. Most recently, he was silently kicked from Scheer’s shadow cabinet.

If ever there was a recipe for some hateful sour-grapes, this would be it. A failed separatist, Minister, leader, author and shadow cabinet member, Bernier clearly wants to make a name for himself in whatever way he can. We all know that Republican President Donald Trump’s sexist, racist, anti-immigrant fear-mongering seems to have appealed to the ultra right-wing and white supremacists in the USA. It also seemed to work for Conservative Ontario Premier Doug Ford, a “fiercely right-wing populist”, who won an election with a “take care of our own” attitude devoid of any substantive public policy - unless you include his buck-a-beer-for-all promise. It would seem that Bernier is once again suffering from sour grapes and has resorted to this hateful, racist rant against every other culture than his own people– the very people that seems to have rejected him. 

It is not the fault of new immigrants that Bernier’s own party have rejected him over and over. Nor can his misery be tied to the legal right of people from diverse cultures to enjoy their traditions in Canada. This is an example of popular white supremacism – the idea that people of other racial, ethnic or cultural backgrounds are inherently dangerous and should not mix with “old stock Canadians” - i.e. "white" Canadians. The difference between the white nationalism/supremacy of the past is that those who espouse these views today tend to do so in a less direct way under the guise of public policy debate. 

But his hatefulness doesn’t focus only on new immigrants. Several days later, he was also first in line on Twitter to trash the Trudeau government’s intention to create a statutory “holiday” in remembrance of the atrocities committed in residential schools. Despite this being 1 of the 94 Call to Action of the Truth and Reconciliation Commission and represents the wishes of many of the survivors, Bernier accused called this “another sick characteristic of extreme PC [political correctness] and multiculturalism”. To my mind, the wishes of the survivors should be paramount on the issue of whether there is a national day of remembrance. Bernier went on to categorize the day of remembrance as a “cult of victimhood and obsession with past wrongs”. I wonder if he would also apply this logic to Remembrance Day on November 11th, or any of the war memorials that exist in Canada? Somehow, I don’t think so.

The whole point of national days of remembrance and memorials is to ensure that Canadians never forget the atrocities that happened. The idea is to honour those we have lost and make sure history never repeats itself. It is a concept shared by most nations around the world. Germany for example has taken great steps to not only erase any Nazi symbols from their society, but also create memorials to remember the many lives lost. Here in Canada, we hope to have several national days of remembrance that include one for residential schools and memorials to lives lost, like murdered and missing Indigenous women. In recent months we have also been talking about how to deal with statues and other symbols of individuals who, despite being historic figures, were the perpetrators of a campaign of genocide against Indigenous peoples – like Sir John A. MacDonald. The TRC report confirmed that Canada engaged in all three types of genocide against Indigenous peoples – cultural, physical and biological. It is long past time that we talked about how to reflect history accurately and responsibly.

Bernier’s Twitter rants about “extreme PC” couldn’t be further from the truth when it comes the ongoing legacy of injustice against Indigenous peoples in Canada. His Twitter tirades about immigrants who don’t share the same skin colour, religion or culture as him don’t reflect the laws of this country – Indigenous or Canadian. It’s highly ironic that Bernier would advocate against any more diverse immigrants while at the same time demand that Indigenous history be erased. I guess that is the privilege assumed by those whose ideas reflect and promote (directly or indirectly) white supremacy – as if anyone else is not only dangerous, but a threat to whiteness. While Bernier is only the most visible example of this kind of thinking, in fairness, he is not alone.

Senator Lynn Beyak was booted from Conservative caucus after her racist postings about Indigenous peoples. Conservative MP Pierre Poillievre said racist remarks against residential school survivors on the same day as the apology. Former Conservative Indian Affairs Minister Bernard Valcourt regularly made racist comments against First Nations, at one point calling First Nation treaty Chiefs “threats to national security”. With regard to Bernier’s most recent comments, Conservative party leader Andrew Scheer has failed to specifically condone them, nor has he removed Bernier from the party – which he should do. This is not much of a surprise given the fact that Scheer’s own campaign manager was the founding director for Rebel Media which promotes white nationalism. 

In the end, the Conservative Party needs to be very clear with Canadians about their party and what it stands for today. Andrew Scheer and the party either stand wholly behind Bernier or they do not – there is no in between. Right now, Scheer seems to stand more behind Bernier than not. It's Scheer's move now.

To watch my Youtube video on this issue and participate in the ongoing discussion, click here:

Wednesday, July 18, 2018

Assembly of First Nations election a battle for sovereignty

*This article was originally published in The Lawyer's Daily on July 18, 2018.

The Assembly of First Nations will hold its election for national chief on July 25 in Vancouver. Only the chiefs of the 634-plus First Nations are eligible to vote but most chiefs’ assemblies see less than half of those attend, and of those, many are proxies and not actual chiefs. 

While elections for prime minister, premier and even mayors attract nightly political commentary, analysis and predictions in the months and weeks prior to their elections, there is generally very little commentary about the AFN election outside of Indigenous media like APTN, Windspeaker or smaller Indigenous political blogs. Yet, what is at stake in this election for First Nations should be of great concern to Canadians. 

This election feels more like a boiling point – a critical juncture spurred by the growing discontent of the AFN that was apparent in the last three AFN elections for National Chief. The outcome of this election could change everything for the better or the worse and Canadians will be impacted either way.

The colonial reality of First Nations impoverished through the dispossession of lands and resources, together with an aggressive and unrelenting assimilation policy, forces leaders to make hard decisions in order to provide relief for their people. Their own local elections depend on whether houses are built on reserve to relieve the crisis-level over-crowding and homelessness or whether there is access to safe drinking water and food to keep their children out of foster care. 

The focus of local First Nation elections is often based on life and death issues – a far cry from federal or provincial elections which tend to focus on the best interests of the middle class, tax relief or international trade. The AFN is well aware of this dynamic in First Nations and uses the fear of losing critically needed social programs and services as a means to garner support for federal policies – which in turn equate to more money for the AFN itself. While everyone is aware of this dynamic, the need to provide for First Nation citizens is often paramount.

Historically, First Nation leaders addressed their concerns privately, but the AFN’s drastic departure from its original purpose as an advocacy organization risks the very rights of First Nations, thus requiring the very public pushback we have seen in recent years. 

What is happening both before our eyes and behind closed doors is an epic battle to protect First Nation sovereignty, lands and cultures. It is a battle that seeks to frame reconciliation as more than the beads and trinkets offered by the Trudeau government and one which aligns more with First Nation constitutional and international rights. 

This election will be a contest between those who accept the federal government’s legislative framework agenda in exchange for relatively minor (but desperately-needed) funding increases to programs and services versus those who reject it, and demand the return of some of their lands, a share in their natural resources, and the protection of their sovereignty and jurisdiction. Either path will result in significant consequences for First Nations. But make no mistake - there will be government retaliation if the election choice is real reconciliation.

Sadly, this is not a battle of their own making. Most of the divisions amongst First Nations have been created and maintained by federal bureaucrats, who have maintained their vise-like grip on the so-called “Indian agenda”. Even the first few attempts at national political organizing among First Nations after WWI and WWII were defeated by government interference. 

While the National Indian Brotherhood started out strong in defense of core First Nation rights and title, more recent years as the re-named Assembly of First Nations have seen a drastic decline in advocacy and a corresponding increase in the support of federal agendas. While most of the federal pressure occurs behind the scenes, the previous Conservative government wielded social program funding and federal legislative power as a weapon to bludgeon any attempt to advocate for First Nation rights. Former Prime Minister Harper’s government enacted a historic amount of legislation against the will of First Nations and even threatened to cut funding for “rogue chiefs” who dared challenge their legislative agenda of increased federal control over First Nations.

While Trudeau was elected on a promise to repeal all of Harper’s legislation, he hasn’t done so – nor will he ever. He has his own legislative agenda designed to build upon Harper’s increased legislative control of First Nation governments by also limiting the scope and content of First Nation constitutional rights and powers once-and-for-all. 

The Trudeau government seeks to define and limit the scope of First Nation rights and powers under section 35 of the Constitution Act, 1982 in federal legislation under the guise of reconciliation. Therein lies the Trojan Horse of Trudeau’s brand of reconciliation. Trudeau’s reconciliation, while flowery and tearful, will result in the legal assimilation of First Nations into the body politic. Something his father, former Prime Minister Pierre Elliot Trudeau, tried to do with the 1969 White Paper on Indian Policy designed to get rid of Indian status, reserves and treaty rights.

Real reconciliation - which is about addressing the wrongs of both the past and the present - requires the transfer of lands and resources back to First Nations, the sharing of the wealth made in First Nation territories and the full recognition of First Nation sovereignty and jurisdiction (the right to be self-determining). However, most Chiefs are acutely aware that although this is the path that most honours our ancestors and coincides with our rights; it is also the path with the most severe consquences. The path of retaliatory reconciliation has always attracted the full force of Canadian law enforcement and military power.

When the Mi’kmaw Nation at Listuguj tried to manage their own fishery in the 1980’s, they were brutally beaten and arrested by the Surete du Quebec (SQ) police. When the Mohawks of Kanesetake tried to protect their traditional territory and burial grounds from a golf course in 1990, the SQ, RCMP and military laid siege to their territory for months. 

In 1995, an unarmed land defender named Dudley George was killed by Ontario police for protecting his reserve lands at Ipperwash. In the same year, the RCMP launched the largest attack on ever on a civilian population at Gustafsen Lake – all to prevent a small group of sun dancers from performing their ceremonies on so-called Crown lands. 

Even once the Mi’kmaw Nation at Esgenoopetitj (Burnt Church) had proven their treaty right to fish at the Supreme Court of Canada in 1999, the RCMP and DFO used brutal force to stop the Mi’kmaw from fishing. Hundreds of RCMP SWAT forces were called out to suppress the peaceful resistance of the Mi’kmaw Nation at Elsipogtog to hydro-fracking on traditional lands.

Sadly, Canada’s vision of reconciliation only works if First Nations don’t assert their rights. First Nations are more than welcome to enjoy their pow-wows, re-name streets in their languages or hang their art in public spaces, as acts of multi-culturalism. But when it comes to asserting inherent, treaty or constitutional Aboriginal rights and land title – that is where Trudeau’s vision of reconciliation breaks down. One need only look at the arrests related to protests against the Trudeau/Kinder Morgan Pipeline to know where real reconciliation is headed. 

Canadians should be very concerned about the actions of their governments towards reconciliation and what this AFN election means for the safety and well-being of Indigenous peoples moving forward. Afterall, as beneficiaries of the treaties, Canadians have a role to play in addressing historic and ongoing wrongs.

There is no way to sugar coat what is at stake in this AFN election. A vote for Perry Bellegarde is a vote down the rabbit hole of assimilation that looks eerily like a pipeline. A vote for real reconciliation means First Nations will have to brace for retaliatory impact – but this is the only path that will protect our rights from voluntary erasure.

Full disclosure: I was the runner-up candidate in the AFN election 2012 to the former incumbent National Chief Shawn Atleo.

* The link to the original article published in The Lawyer's Daily:


I would like to refer you all to two very good articles written by Indigenous commentators on the AFN election. Both Niigaan and Doug are excellent writers and have a great deal of insight into First Nation political issues.

(1) "National chief election matters" written by Niigaan Sinclair for the Winnipeg Free Press on July 7, 2018:

(2) "Changes needed to AFN structure" written by Doug Cuthand for the Saskatoon StarPhoenix on July 14, 2018: 

Here is my related Youtube video that provides some basic analysis of the federal legislative framework: