Indigenous reports force feds ahead of UN review

Tags

Canada, Indigenous Peoples, Sovereignty, UN, United Nations

75% of reports to Committee on racial discrimination sent by Indigenous organizations.

Last week, Canada switched arrogance and condescension for gestures of off-kilter desperation at the Assembly of First Nations’ general assembly. That is probably because on August 14 and 15, Canada will be under the microscope at UN headquarters in Geneva. Fifteen Indigenous Peoples’ organizations have already submitted extensive reports for the Session, detailing Canada’s “seek and destroy” approach to their internationally recognized human rights.

It is a typical Canadian tactic to invent meaningless distractions right before a review by a UN treaty body: their delegates to the Session can then reply to the Committee’s independent experts by talking about “initiatives” or “joint meetings” which do not substantially exist, instead of answering directly.

This time Canada sent four federal ministers to the AFN’s annual assembly, July 25-27, where they implied that Ottawa is going to rescind the Indian Act. Bennett (Minister of Indigenous Affairs), Wilson-Raybould (Minister of Justice), McKenna (Environment) and Goodale (Public Safety), all made vague references to bright promises yet to come.

The only concrete message from Ottawa to the AFN Chiefs – only half of whom showed up at the all-expense-paid meeting in Regina – was that it will no longer claw back unused capital funds to First Nation communities after twelve months of dispersal.

This miserable material figure can and should be unsuccessfully compared to the immaterial, yet golden, future intimated by Bennett’s and Wilson-Raybould’s reported remarks.  “How will your nation and Indigenous government be organized? What is your territory?” Their remarks, on the other hand, will certainly be judged against the picture of Indigenous life under Canada which has been detailed in reports to the UN CERD.

“ Skeena watershed and coastal Indigenous communities depend on the salmon for food, their economies and cultures. This (LNG, Prince Rupert) project is a prime example of what’s wrong with Canada’s approach to engaging Indigenous communities in large-scale industrial developments: It continuously fails to honour the legal obligations to Indigenous Peoples in protecting their traditional resources; The Canadian government generally consults with Band Councils, which were created under the colonial Indian Act, and often fails to consult hereditary leadership or respect traditional governance systems; …”

. Skeena Indigenous Groups’ Submission to UN CERD. July 6, 2017

It is interesting to note that only weeks after this report to the CERD was posted for the Session, Petronas announced its withdrawal from this proposed project, “Pacific NorthWest LNG.”

The UN Committee for the Elimination of Racial Discrimination has dealt Canada sharp rebukes over the last two decades: stop extinguishing Indigenous Peoples’ titles; stop ignoring murderers who target Indigenous women; stop trying to destroy the Lubicon Cree to get oil access.

The UN treaty bodies have an internationally recognized judicial power to issue recommendations to member states in keeping with upholding international human rights conventions. Each committee periodically receives reports from the state under review, and also from non-governmental organizations, civil society, academia, and now from Indigenous Peoples’ organizations.

It is typically the reports from Indigenous Peoples and NGOs which have, in the past, resulted in strong recommendations from UN Committees to Canada. Many of those have produced changes in the government’s behaviour, although such changes have been isolated and usually only in direct connection to the issues reported. In British Columbia this includes instances of forgiveness of government treaty negotiation loans to small Bands; dissolution of treaty societies formed to negotiate in the BC treaty process – against community members’ protests; and possibly the current standstill in BC Treaty Commission business altogether.

Extinguishment “negotiations” are an ongoing problem that is at the center of the CERD’s focus on Canada:

“There are no viable options other than legal court action to counter the BCTC “treaty” process about these overlaps into St’át’imc territory. As negotiations with the outside First Nations progress, the eventual outcome will be the extinguishment of significant portions of St’át’imc territory without the St’át’imc having been involved in any negotiations to this effect.”

. SHADOW REPORT BY THE INTERIOR ALLIANCE: CANADA’S ONGOING                               COLONIZATION OF INDIGENOUS PEOPLES.   UN CERD COMMITTEE JULY 2017

In contradiction to the Interior Alliance’s extensive documentation of the extinguishment effect of Canadian “negotiations,” however, Minister Wilson-Raybould remarked to the press on her government’s plans: “They are explicit in rejecting certain long-standing federal positions—such as the focus on extinguishment, surrender or denial of rights.” Incidentally, that’s what Canada told the CERD in 2007.

 

Extinguishment, surrender and denial are precisely what Canada offers Indigenous Peoples. There is a veritable firestorm of examples of this, enveloping Indigenous Peoples. It is highly suspect that a Canadian Minister climbs a prominent national stage and says “we’re just about to change,” (again) only days before Canada has to answer a lot of very pointed questions in front of the world.

Consistent Canadian practices are to assimilate and co-opt economic development, to municipalize isolated communities under provincial legislation, to criminalize traditional economies, to rigidly maintain dependency by an overbearing and constantly metamorphosing bureaucracy which can never be finally functional. There is the “First Nations Land Codes” – where a community votes to recognize Canadian supremacy in its traditional territories, just for the privilege to enjoy managerial duties on-reserve. There are the “Strategic Land Use Planning Agreements” – where communities have shared maps of their territories showing cultural values and inadvertently given tacit approval to development in huge “low cultural value” lands. In the national Inquiry into Missing and Murdered Indigenous Women, crucial voices have undoubtedly been denied. Indigenous Peoples’ rights under Article 1 of the International Covenants on Civil and Political, and Social, Economic and Cultural Rights are completely denied. Canada specializes in the forcible removal of Indigenous children from their homes and communities, requiring parents and families to submit and surrender to provincial courts which have no jurisdiction whatsoever in the case of children and families who are not Canadian until they produce a referendum from their nation joining Canada.

Minister Wilson-Raybould, apparently speaking for those Indigenous individuals who have exercised their right to choose a nationality, appealed to the Chiefs to imagine their future as Canadians whose Indigenous rights are recognized and respected.

Ultimately, the Supreme Court of Canada expresses the state’s right to own Indigenous nations it has no treaties with. It is certainly a matter of interest in any investigation of racial discrimination. Apparently the key to Canada’s jurisdiction over nations with which it has no constructive agreements is owing to the fact that the British monarch, appointed by the Christian god, had sent a sailor with orders to discover and possess others’ lands in His name, and he was successful in this because the Christian god was superior, so the Supreme Court of Canada seems to say, to any of the existing nations’ gods. We know it is the presence of other Christian nations which is at issue in the matter of the Canadian court’s opinion on sovereign possession, because the issue was finally settled in 1846, according to Canadian judges, when the USA agreed in the Oregon Treaty to withdraw from pursuing any interests north of the 49^th parallel. From that date, Great Britain and now Canada enjoys sovereign possession of all lands from the Pacific Ocean to the Atlantic Ocean above that parallel, except Alaska, as per SCC, because all other Christian nations had, by that time, also promised Great Britain they would pursue no interests there.

Unfortunately for that internationally repugnant display of Canadian faith, which is the state’s current legal precedent, it is not clear that any Indigenous Peoples have formally joined and adhered to Canada. Wilson-Raybould was referring to that popular understanding among the Chiefs. The CERD has been made aware of that understanding, and again in the reports for this Session:

“In particular, we bring to the Committee’s attention the state’s use of its own  imposed Indian Band administration, under the Indian Act, on the state-defined Indian Reserve, to manufacture the appearance of Líl’wat consent to Canada’s disposal of the remainder of Líl’wat customary titles to lands and wealth outside the Reserve.

“Líl’watmc ask that the Committee question Canada about the origins of any rights of jurisdiction it may have in relation to Líl’wat which could justify Canadian licensing and development without the consent and against the Interests of the Líl’watmc under the Convention, and resulting in the continuing displacement and dispossession of Líl’wat.”

Líl’wat report to UNCERD, July 2017, with the International Human Rights                                         Association of American Minorities

The picture developed by fifteen Indigenous Peoples’ organizations shows Canada’s unabated attempts to assimilate Indigenous Peoples – their worldview, identity, economies, individuals, children, histories, and especially their lands and natural wealth – into Canada. Unilateral, non-consensual assimilation is categorically prohibited as a matter of human rights norms, and yet that end of the spectrum of Canada’s colonization is not the worst.

“If Ontario and Canada insist on excluding us from meaningful consultations on the Agreement in Principle, then we insist that Canada and Ontario exclude the areas where our First Nations’ asserted Aboriginal title and rights overlap with the “Algonquins of Ontario” claims, or at least suspend negotiations over  such areas, until such time as we have engaged in meaningful consultations and reached an acceptable accommodation.

“Despite our objections in March 2016, the “Algonquins of Ontario”, Canada and Ontario have proceeded to hold a referendum vote on the AIP.”

ALGONQUIN NATION SECRETARIAT  TO THE UN CERD COMMITTEE                                                          July 2017

 

“How does one start to describe the horrific conduct of Canada in their relentless efforts to extinguish the rights of Indigenous peoples within their ancestral homelands?”

“While the Supreme Court of Canada has determined that the Canadian and provincial governments have a duty to consult, negotiate, and accommodate Indigenous rights, the governments use these consultation and negotiation processes to coerce, terrorize, terminate, extinguish, and discriminate against Indigenous peoples and our rights.”

Submission to the UNCERD 93rd Session, July 31-August 25, 2017.                                             On behalf of the Mothers and Grandmothers of the Maliseet Nation

 

“Asubpeeschoseewagong Netum Anishinabek, also known as Grassy Narrows First Nation, is located on the English-Wabigoon River system in North Western Ontario, and is infamous for mercury contamination from an upstream pulp and paper mill. … In 2016, a former mill worker came forward to confess the mill had illegally buried barrels of waste along the river, leading to the persisting contamination and inability of the river system to recover naturally.”

Chiefs of Ontario report to UNCERD, July 2017

 

“On November 29, 2016, the Canadian Federal Cabinet directed the National Energy Board to approve the Kinder Morgan Trans Mountain pipeline expansion. This pipeline poses an unacceptable risk to the health, safety and livelihoods of First Nations throughout British Columbia, and will contribute to the negative environmental and health impacts experienced by Indigenous Peoples downstream of the tar sands, and of all peoples throughout the world as a result of accelerating global climate change. The Tsleil-Waututh, Squamish, Musqueam, Coldwater, Upper Nicola, Stk’emlupsemc te Secwepemc, Aithchelitz, Shxwhay Village, Yakweakwioose, Kwawkwaw-apilt, Tzeachten, Skowkale, Soowalie, and Squiala peoples have commenced legal proceedings seeking to challenge the federal approval for the Trans Mountain project… It is well established that diluted bitumen contains toxic chemicals that are a threat to drinking water, health, and the well-being of salmon and other beings.”

Submission to the UNCERD 93rd Session, 2017.                                                                                 Union of British Columbia Indian Chiefs.

Minister Bennett, for the federal department of Indigenous and Northern Affairs, said to the AFN Chiefs last week: “We want to partner with you on building on the strengths and assets you have in your communities. You have the power to determine the future of your communities.”

The international community is quite aware that Canada still wishes to build on the strengths and benefits belonging to Indigenous communities, whether Canada co-opts the participation of those communities through “benefits sharing” or “land management” or other agreements achieved under duress. The international community is also aware that Indigenous Peoples have the power to determine the future of their communities, and that Minister Bennett and her government may well have nothing to do with that.

As the Union of BC Indian Chiefs’ report articulated, “We are presently witnessing a great divide between the words of the Canadian government and its actions on the ground. We would like to highlight the term “rights ritualism” for the consideration of the Committee in respect to Canada’s present actions: a way of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses. Countries are often willing to accept human rights treaty commitments to earn international approval, but they resist the changes that the treaty obligations require.”

 

“Establish Indigenous titles,” UN tells Canada

Tags

aboriginal title, Canada, Human Rights Committee, Indigenous Peoples, National Inquiry into Missing and Murdered Indigenous Women, United Nations

The Human Rights Committee has just released concluding observations on fifteen “principal matters of concern” with Canada. Five of those concerns pertain to Indigenous Peoples and the violation of their rights in the International Covenant on Civil and Political Rights.

The Committee’s recommendations leave little room for the kind of redirection and side-stepping that Canada’s delegation to the United Nations treaty body performed on July 7^th and 8^th in Geneva.

The state should find ways and means to establish Indigenous Peoples’ titles to their lands, as well as ensuring Indigenous consent to developments which might impact their titles and treaty rights.

As per its obligations under the Covenant, the state should conduct a national inquiry into the situation of missing and murdered Indigenous women and coordinate police responses across the country to prevent this type of violence, as well as completing investigations and prosecuting the perpetrators, providing reparations to the victims’ families, and addressing the root causes of this violence.

Canada should provide a report on its progress in these two areas within one year.

The state should resolve the gender inequity present in the Indian Act.

Canada is asked to “ensure the effectiveness of measures taken to prevent the excessive use of incarceration” of Indigenous individuals, and “further strengthen its efforts to promote and facilitate access to justice at all levels by indigenous peoples.”

And, under the umbrella of addressing “the precarious situation of Indigenous Peoples,” the Committee recommends “the State party should in consultation with indigenous people: a) implement and reinforce its existing programmes and policies to supply basic needs to indigenous peoples; b) reinforce its policies aimed at promoting the preservation of the languages of indigenous peoples; c) provide family and child care services on reserves with sufficient funding and; d) fully implement the recommendations of the Truth and Reconciliation Commission with regard to the Indian Residential Schools.”

Indigenous Peoples’ rights are taking up larger and larger proportions of the UN treaty bodies’ recommendations to Canada.

In March of this year, the UN Committee for Economic, Social and Cultural Rights put Indigenous Peoples’ rights to “freely dispose of their natural wealth” as the first matter on its List of Issues to the state. That was followed by requests for information on housing, health, physical safety, languages, standards of living and children and family protection among Indigenous Peoples. In 2012, the UN Committee for the Elimination of Racial Discrimination asked, in its Concluding Observations, for Canada to respond within one year on three issues concerning urgent human rights crises, resulting from racial discrimination, being experienced by Indigenous Peoples. Canada was scheduled for its next review under the Convention for the Elimination of all forms of Racial Discrimination this November – but it has been dropped from the list after asking for more time to prepare. Canada’s last review under the Convention for the Elimination of Discrimination Against Women led to the direct recommendation that Canada launch a national inquiry into the situation of missing and murdered Indigenous women.

After Canada’s Universal Periodic Review in 2013, two thirds of the statements made to Canada by the other member states of the United Nations were specific to Indigenous rights and violence against Indigenous women and girls. While all those were present in the advance unedited report, many were excluded from the edited final version.

The next treaty body to review Canada’s compliance with international human rights standards will be the Committee on Economic, Social and Cultural Rights, in March of 2016.

You can search for reports and recommendations from Canada’s reviews by United Nations treaty bodies here.

UN report misses the mark on Indian Residential Schools Settlement Agreement, Truth and Reconciliation Commission

Tags

Edward John, Indian Residential School, Indigenous participation, Indigenous Peoples, informed consent, reparation, UN Special Rapporteur, Wilton Littlechild

Published June 29, 2014, on Vancouver Media Co-op.

There was not “indigenous participation” in creating them.

In response to the report of the Special Rapporteur on the Rights of Indigenous

Peoples on the situation of Indigenous Peoples in Canada, May, 2014

The first ever official visit of a UN observer on the situation of Indigenous Peoples in Canada reported briefly on “…the ongoing implementation of the Indian Residential Schools Settlement Agreement, which was negotiated and agreed upon by former students, the churches that ran the schools, the Assembly of First Nations, other aboriginal organizations, and the Government of Canada.”

In the past four years, the Settlement Agreement has been meaningfully mischaracterized in United Nations forums on Indigenous Peoples. Extravagant statements by indigenous politicians produced in Canada have now found their way into this year’s extremely important report by the UN Special Rapporteur on the Rights of Indigenous Peoples. Those statements have apparently curtailed adequate investigation by the international observer, and have certainly supplied misinformation.

Official UN documents produced by Grand Chief Edward John, Carrier, in his role as a member of the Permanent Forum on Indigenous Issues, and presentations by Chief Wilton Littlechild, Ermineskin Cree, in his role as a member of the Expert Mechanism on the Rights of Indigenous Peoples, threaten to lead history on a detour away from the mass grave of unremedied crimes which is the Indian Residential Schools Settlement Agreement, or IRSSA. Littlechild and John are themselves former students of Indian Residential Schools. John has been the Chair of the First Nations Summit, the aboriginal party to the BC Treaty Commission, for twenty years. Littlechild has been one of three Commissioners of Canada’s Truth and Reconciliation Commission since 2009.

It is time to review the facts of the 2006 Settlement between the churches who ran the Indian Residential Schools and victimized the Indigenous children, the government of Canada which paid for the schools and criminalized parents who tried to keep their children home and employed Royal Canadian Mounted Police to return runaway children to the schools, and the national chief of the Assembly of First Nations who signed it on behalf of former students without soliciting a mandate or their participation.

The circumstances surrounding the Assembly of First Nations’ decision to enter a negotiating process with the Canadian government deserves illumination. For instance, existing legal actions by individuals and groups of former students against Canada and the churches in 2005 were estimated at 100 years’ worth of trial. Victims of the schools who had won in court were being awarded damages approaching the million dollar mark. The judges in the existing cases, some 3,300 of them involving alleged serious abuse, gave judgment accepting the IRSSA contract in settlement of the actions, and stipulating in its Schedule n for the creation and the jurisdiction of the Truth and Reconciliation Commission.

The indemnification objectives which were realized by Canada in the Settlement – that no former student who benefitted by the Agreement, or his family, could ever sue in connection to the Schools – were realized cheaply. The Settlement Agreement was foisted on the Survivors as an ultimatum: if too many people dropped out, 5,000 or more, no one would be paid at all and the two-year period between the Agreement in Principle and the deadline to opt out would simply be lost time for the cases that were already in progress. The Agreement then closed the door to court action against church or state by anyone who had lost their “language, culture and family life,” by asserting that the matter had been lawfully concluded by the government’s posting of public notices of its intention to do so and advertising the details. The advertising was delegated to the AFN and their categorical failure to communicate is documented below. The content of the Settlement was questionable, in particular the spectacular shortage of funding to meet the stated aims and benefits to Survivors of the schools and their families and future generations. The impacts of the lump-sum compensation payments to former students have been studied: the impacts were in many cases tragic.

The statement that this Settlement was “negotiated and agreed upon by former students” is wrong.

There is also nothing “ongoing” about the IRSSA, except its shadow. Federal funding for language and culture has dried up and blown away since former students accepted the Common Experience Payments and released Canada for “loss of language, culture and family life.” The small compensation received has been spent, and life is mostly back to the way it was except that there are many brand new trucks sitting, without insurance or gas, outside the dilapidated houses described in great detail by the Special Rapporteur in his report on Canada. Former students are entitled to a set number of clinical counselling sessions without charge, but access to traditional healing services is less certain.

The fact that Canada is still sacrificing the Indigenous Peoples and their lands to Canadian industry has not been remedied by the Settlement Agreement or the Truth and Reconciliation Commission, which was just extended for one year – but this fact today was inarguably made possible by the Indian Residential Schools century.

 

Manufacturing the false identity of the Indian Residential Schools Settlement Agreement, and Canada’s Truth and Reconciliation Commission

How is it possible that a report on the situation of Indigenous Peoples in Canada, so careful and thorough in most other areas, could fail to remark on the inadequacies of the Settlement Agreement, the Truth and Reconciliation Commission, and the resulting outstanding nature of the crimes of Indian Residential Schools?

The matter has been closed by people in high places; the paragraph about an “ongoing” program “which was negotiated and agreed upon by former students” is a poison which has already contaminated several streams of United Nations thought on this matter. That poison was administered by indigenous politicians from Canada.

Statements made in a study authored by Grand Chief Edward John for the UN Permanent Forum on Indigenous Issues describe the Settlement, for the first time anywhere in connection with discussion of the IRSSA, as “reparations.” This is an impossible demand on the definition ofreparations. Compensation was made to individuals who were alive in 2005, while the crime of Indian Residential Schools was carried out against whole peoples for a century.

In the study’s conclusions, it remarks that: “The commissions have also proposed measures to repair the harm inflicted on indigenous peoples and establish mechanisms to help them realize their human rights to the fullest.” That blanket statement regarding all the Truth Commissions reviewed in the study most certainly does not stretch to cover Canada’s Commission, and yet there it is.

An impromptu presentation on the Truth and Reconciliation Commission of Canada, part of the IRSSA, was made by Chief Littlechild during the 2013 meeting of the Expert Mechanism on the Rights of Indigenous Peoples in Geneva. Littlechild was chairing the meeting and simply burst out with an unscheduled, hour-long power point one morning. He is also one of Canada’s TRC Commissioners. He showed slides to the indigenous delegates to the themed meeting on access to justice for indigenous peoples that had the appearance of an accountability report: “What the Commission has done so far to discharge its obligation;” “National Events;” “Research;” “Missing Children Project.”

In its placement at the start of a day of discussions on “access to justice” in the Human Rights Council Chambers in UN headquarters in Geneva, the presentation created the impression that Canada’s Truth and Reconciliation Commission was an example of access to justice – as one of the slides was titled. Canada could not have bought better credibility with money. Littlechild’s action of hijacking a UN meeting to glorify a state process was met with strained belief by the indigenous delegates. The presentation did not describe any moments of justice – just the activities of the Truth and Reconciliation Commission, such as commemorative events and a report on how many children died in Residential Schools.

Wilton Littlechild chairing the Expert Mechanism on the Rights of Indigenous Peoples, Geneva, July 2013.

Canada’s Truth and Reconciliation Commission has no power to subpoena perpetrators named during its collection of testimony from former students. The mandate specifies the Commission:

“shall not hold formal hearings, nor act as a public inquiry, nor conduct a formal legal process; shall not possess subpoena powers, and do not have powers to compel attendance or participation in any of its activities or events.”

“…shall perform their duties …in making their report and recommendations without making any findings or expressing any conclusion or recommendation, regarding the misconduct of any person, unless such findings or information has already been established through legal proceedings, by admission, or by public disclosure by the individual. Further, the Commission shall not make any reference in any of its activities or in its report or recommendations to the possible civil or criminal liability of any person or organization, unless such findings or information about the individual or institution has already been established through legal proceedings…”

Canada’s Truth and Reconciliation Commission is not on a mission for justice. In a brief produced by Dr. Bruce Clark, a legal expert on the Indigenous situation in Canada: “This is not only an expensive fraud upon the public but a cruel imposition upon the victims, who are encouraged to air their innermost suffering in the mistaken belief that it will lead to closure. The commission itself recognizes its task is only, “to document the truth of survivors, their families, communities and anyone who has been personally affected by the Indian Residential Schools legacy.” The commission will look at symptoms but neither the cause nor the liability of the causer. It can not and will not investigate crimes by the government.”

If the natures of the Settlement and Commission are skewed now in international human rights circles, they are perhaps even less clear in Canada. In an example of the many mixed messages from Canadian media concerning the scope of the TRC, The Globe and Mailnewspaper reported on January 1, 2008:

Former students plan to allege criminal deaths took place at Indian residential schools when they appear before a Truth and Reconciliation Commission, and the RCMP has been told to be ready to investigate.

Commission chief Bob Watts said he has met three times with police in the past year to advise them on the accusations former students are preparing to make. His comments mark the first time a senior official has acknowledged allegations deadly crimes were committed at the schools and that many children were buried without their parents being notified.

Mr. Bob Watts said he has been told that incidents of children disappearing at the schools were “quite widespread,” but that there probably are few, if any, records.

“If a child didn’t come back home because of something that was criminal, for example, it’s probably not going to be in any records,” he said. “We’ve heard stories about children being so severely punished, for example, that they died. So the commissioners are going to have to sort through how they are going to tackle this.”

Mr. Watts said former students will also speak of deaths caused by criminal negligence, such as placing healthy children in dorms with those fighting infectious diseases such as tuberculosis.

An RCMP spokeswoman confirmed yesterday that police are “working very closely” with Mr. Watts but declined further comment until the commissioners are in place.

Mr. Watts said many of the accused will likely be dead. As a result, native elders are requesting the commission include some form of ceremonial activity to acknowledge any crimes that went unpunished.

Unfortunately, the 2014 UN report on the situation of Indigenous Peoples in Canada recommends an extension of the timeframe of the Truth and Reconciliation Commission – not an extension of its mandate to coincide with informing legal investigation of accused criminals.

Dr. Bruce Clark continued, “…It is specifically crimes or lesser wrongdoings “by a government” that such commissions, if genuine, exist to expose, as the precondition to reconciliation based upon truth.”

“Truth and reconciliation commissions in the Americas” was an agenda item for the UN Permanent Forum on Indigenous Issues at their annual meeting in May, 2013, at UN Headquarters in New York City. It was then that the study co-authored by Grand Chief John was released. The Permanent Forum’s study relied on Chief Littlechild as an expert witness.[i]The report described compensation to individual former students under the Indian Residential Schools Settlement Agreement as “reparations.”

A dozen people signed up for the speakers’ list to make interventions on the agenda item, delivering a printed copy of their statements ahead of time. When it came time for that agenda item, the Chair announced that there would be no space for the item to be responded to. He eliminated the speakers’ list – but allowed three: Wilton Littlechild; Edward John; and Eduardo Gonazalez from the International Center for Transitional Justice, who assisted Canada in developing its Commission. Their statements were a pinion of praise for Canada’s Commission. Chiefs John and Littlechild repeated themselves on the points that Indian Residential School survivors were active in the development and signing of the Settlement Agreement, which formed the TRC; that those processes have announced a positive breakthrough in Canadian society; and that the Truth and Reconciliation Commission is equivalent to justice in progress. They always remark or infer that Indigenous Peoples throughout Canada are very satisfied with the Commission’s work so far, and that it signals the end of a colonial epoch.

Delegates and even the translators at the PFII meeting noted how unusual it is for an agenda item to be denied intervention without notice, even after a speakers’ list has been populated and print copies provided for translators. One of the excluded interventions read,

The IRSSSA and TRC as launched by the Canadian government, however, was a process which sought to extinguish Indigenous Nations’ right to reparations without acknowledging the full dimension of the crimes (genocide, crimes against humanity, forced assimilation) committed against them.  Instead it offered individual claimants compensation for personal injuries and abuse, establishing a ceiling limit for payments, and required a written “opt-out” procedure for those who spurned such paltry acknowledgements of the vastness of the damages visited not only upon themselves but upon their nations.  Many who accepted the compensation payments were not informed of their legal rights by the state-funded counsel which uniformly advised them to do so. [ii]

The Permanent Forum’s study gives this description of the Canadian Settlement Agreement and its mandate for the TRC:

The Commission grew out of a lengthy process of disputes and court-mediated negotiations that resulted in an extensive programme of reparations and a request for a formal apology from religious and State institutions that had acted in complicity in those abuses. In 2006, following extensive negotiations between the Government, churches and indigenous peoples, the Canadian Government approved the Indian Residential Schools Settlement Agreement, which cost an estimated 2 billion dollars. The Agreement called for the establishment of the Truth and Reconciliation Commission with a portion of the funds earmarked for reparation.

There were no “extensive negotiations between the Government, churches and indigenous peoples.” The statement is a lie with extreme implications, since the mark of an acceptable settlement of this type is the full and informed participation of Indigenous Peoples in creating it. By reporting that the Settlement Agreement met this criteria, Grand Chief John has single handedly elevated the Settlement and the Commission to a place it is not worthy of.

The study relied on statements made by Chief Littlechild, and Chief John named him as an expert witness when introducing the study during the Permanent Forum’s 12th Session, in 2013.

Chief Littlechild also made an intervention to the Expert Mechanism on the Rights of Indigenous Peoples before he became a member of it, in 2010, but when he had just been named to the Truth and Reconciliation Commission:

“…this TRC was not created by the government.  Rather it was established as an independent body with a 5-year mandate through the efforts of residential school survivors themselves as part of the largest class action lawsuits in Canadian history.”[iii]

On the contrary. Professor Kathleen E. Mahoney, a non-native lawyer, was the Chief Negotiator for the Assembly of First Nations in achieving the Indian Residential School Settlement Agreement. She was also “the primary architect of the Truth and Reconciliation Commission and led the negotiations for the historic apology from the Canadian Parliament and from Pope Benedict XVI at the Vatican,” according to her online biography.

Furthermore, in April of 2008, the Canadian federal public service civil list was amended to add the Commission and its entourage of lawyers, researchers and consultants to the federal payroll.

Lies and insinuation heaped on misrepresentation have formed international reputations for the Settlement and the Commission which bear no resemblance to the facts. Instead, those lies from the top of the world’s most influential organization have deafened an official visitor to the voices of the people who travelled hundreds of miles to tell him the truth while he was visiting Canada.

 

The shadows of the Indian Residential Schools Settlement Agreement:

in the shadow of the myth of former students’ participation in developing the Settlement Agreement and the Truth and Reconciliation Commission

It seems that when statements are made to the effect that former students were involved in negotiating the contents of the Settlement Agreement, they refer to former student Phil Fontaine, then Chief of the Assembly of First Nations which claimed leadership of what they called a “class action.” It is important to remember that the AFN is entirely subsidized by the government of Canada.

At a single AFN conference to discuss the Settlement in Winnipeg, in May of 2007, after it had been announced in its final form and approved by the government of Canada late in 2006, National Chief Phil Fontaine spent all his speaking time defending the Agreement without actually describing what it included. He was defending it to a lot of people who did not seem very impressed, and all expressed shock at the content – not a signal that any of them had participated in creating it or had heard from someone who did. Participants at that meeting included some of the most credible Indigenous leaders. The fact that none of them were involved in the negotiations of the Settlement is revealing. “This Settlement Agreement was not handed to us on a silver platter. We had to fight for every little bit that’s in the Agreement,” said Fontaine. But every part of the Settlement Agreement was the lowest common denominator of what Canada had already offered claimants in class action suits, and which those former students had rejected.[iv]

The AFN did produce a press release in response to frequently asked questions, dated November 23, 2005. It begins: “The AFN played a key and central in achieving the Agreement in Principle signed on November 20, 2005 to settle all Indian Residential School claims.” This sentence is copied directly from the press release; we are not sure what noun might be described by “key and central,” but the statement in unequivocal. It was not former students, but the AFN which was central to the Agreement.

This is confirmed in the opening of the next paragraph: “The biggest and most important victory the AFN was able to obtain for survivors in the Settlement Agreement is a new form of compensation for loss of language and culture and loss of family life through a lump sum payment or common experience payment (CEP) as it is called in the Agreement.” In this, the Assembly’s first press release on the subject of the Agreement in Principle for the Settlement Agreement, they do not mention “extensive negotiations between the Government, churches and indigenous peoples.” If those negotiations were a historical fact, the AFN would have mentioned it and recognized the people involved. But it is not a fact, it is a lie. The AFN was the key indigenous organization involved, they did not have a mandate to represent former students because former students do not vote in AFN assemblies – only Band Council Chiefs do, and Band Councils across Canada did not hold referendums seeking this mandate from their communities.

There are many more sources who attest to the absence of former students in creation of the Settlement and the Truth and Reconciliation Commission which was mandated within it by the judges who turned their plaintiffs over to it. Bob Watts was the CEO of the AFN at the time of negotiations. He recalled the development of the Settlement this way, during his talk at the 2012 Vancouver Human Rights Lecture:

National Chief Fontaine put together a proposal to look at a negotiated settlement. With the Assembly of First Nations we entered the process with lawyers from class actions from across the country – some representing individual survivors, lawyers representing churches, government, other aboriginal organizations.

Note that “other aboriginal organizations” tend to defy specific description in such testimonies as this presentation by Watts. And that an “aboriginal organization” is not a people. The harms of Indian Residential Schools were done to peoples. Watts continued:

I remember one time we were in Calgary. We were having a break and I was outside talking with one of our Elders who was part of our team, I asked him, how do you think things are going in there? And he said, “did you ever see that movie about Nemo?” “Finding Nemo? Yeah.” “You remember the seagulls?” “Yeah, I remember.” “That’s what they’re doing in there: ‘mine, mine mine mine mine,’ all the time. That’s what’s going on in there. Where are the Residential School survivors? They need to be first and foremost in everybody’s mind or we’re not going to have a successful negotiation.”

So we made sure the National Chief knew about that and it actually changed the dynamic of the negotiations.

The Assembly of First Nations, through National Chief Phil Fontaine, ended up launching its own class action to ensure a seat at the table* and be able to speak to every significant issue.

*Emphasis added.

An interested observer of the process corroborates this report another way. Having just won in court against the church that ran the school where he was sexually abused, and won damages worth “seventeen times the average common experience payment, if the average payment is $30,000” under the Settlement Agreement, William Blackwater wrote several letters to the Canadian Minister of Indian Affairs concerning the Settlement, in 2009.

Some suggest that there are survivors at the tables, but if you observe them for a few moments you will see that these are also our political leaders; leaders with other agendas.  They are leaders with other motivations.  They are NOT the survivors that receive the chronic abuse.  They are not survivors that are facing the challenges of the legacy.  To them we say great, you have moved on, but some of us have not had that opportunity.  Please give us the same chance.  We know that you have had space at the table and we are asking the same opportunity: we face the consequences of the Indian Residential Schools legacy every day without power, money and resources.

I am frustrated and continue to be concerned that my leadership and our decision makers do not take seriously survivor concerns.  It is evident in the lack of involvement of survivors; it is evident in the Truth and Reconciliation Commission Commissioner selection; it is evident in the implementation of the TRC; the implementation of the Independent Assessment Process, and the list goes on. [v]

Blackwater was for many years involved in the leadership of the Indian Residential Schools Survivors Society, a group based in British Columbia. He said in an interview with The St’át’imc Runner newspaper, in September 2007, “The AFN said they launched that suit on behalf of all survivors in Canada. When we went to the National Residential Schools Survivors Society national meeting in 2007, not one regional director was aware of a single survivor that had given their consent for Fontaine to act on their behalf in regard to the CEP package. None of us knew anything about it until after the fact.”

Bob Watts was also the AFN’s deputy at work with the government designing the Truth and Reconciliation Commission. He went on during his Vancouver lecture to give the only evidence of engagement with former students during the process of developing the Commission:

We were fortunate in terms of designing the Truth and Reconciliation Commission of having help from other TRC’s, sister truth and reconciliation commissions from around the world. One of the really important things we learned from the International Center for Transitional Justice was that we needed to manifest the outcomes that we sought to achieve. So that became the watchword for all of our work.

When we did dialogues all across the country and met with survivors about what they wanted to see from the Truth and Reconciliation Commission, that was our watchword.”

What Watts is describing here is a sort of legalistic consultation process led by the AFN. Judging by the complaints of leaders among advocates for former students, that consultation was obviously extremely limited and occurred late in the development of the Commission. This is probably not what most people would expect to hear when they are being told Canada’s Truth and Reconciliation Commission was “led by Survivors,” as Chiefs John and Littlechild repeatedly say.

 

in the shadow of the absence of informed consent

The Assembly of First Nations made millions from Canada just in its fee for (not) delivering the communications requisite to properly carrying out the consultative and consensual criteria demanded by the Settlement Agreement and its opt-out condition. The Agreement was subject to an opt-out action: if more than 5,000 former students formally opted out of benefits under the Agreement, it would be nullified. Well-paid delegates of the AFN visited a few communities but left again without having imparted the real crux of the matters contained in the Settlement, according to participants. Friendship Centers across the country eventually used their own resources to hold information sessions and study the Agreement.

By the time the opt-out deadline had passed, former students’ confusion about the process was certainly clear to the Empowered Residential School Survivors. This group of volunteers, based in the Nlaka’pamux nation in the interior of British Columbia, created a DVD called “Prep for CEP.” The presentation was a collection of interviews with lawyers, accountants and clinical councilors who offered analysis of the process and anticipated matters that would arise for former students participating in it.

The National Residential Schools Survivors Society had, at the time of the AFN announcement of the Settlement process, a membership of some 8,000 former students from across Canada. Their Chair, Ted Quewezance, attended a three day meeting in Lytton, Nlaka’pamux, organized and funded by the Empowered Residential School Survivors volunteers in September of 2007:[vi]

What I want to talk about is this Agreement. Phil Fontaine says, “It’s not perfect,” and I agree with him. A lot of survivors think we should have gotten more.

There’s a lack of participation by Survivors in this Agreement. Many Survivors don’t know what’s going on. It was supposed to be for Survivors, but Survivors don’t have a say in this Agreement. We did three surveys, in Montreal, Ottawa and Edmonton. We have identified over 1,000 concerns and issues about this Agreement. We’re not trying to kill the Agreement, it’s too damn late. The implementation starts today – the train is leaving Ottawa, and the judges, the lawyers, the AFN, the politicians, they all have a seat on that train. But there’s no Survivors on that train.

The deadline for former students, or their orphans or widows, to remove themselves from inclusion in the Settlement by formal notice, to “opt-out,” was August 20, 2007. Although it is safe to say that the majority of former students had no way of knowing about the significance of this clause, particularly widows and orphans of former students, or informed advice on what they should do, 1,074 former students opted out.

The fact that over 600 people attended the informational event in Lytton, BC, shows a lot of interest in questions that were not being answered by the AFN through their well-funded mandate to communicate the details of the Settlement. With a membership of 500 former students, the Empowered Residential School Survivors developed the September 2007 conference to help former students understand the meaning of the Settlement. Co-Founder Fred Henry explained the need for their action:

“We felt that all the information wasn’t getting back to our people here. We went to the Winnipeg National Survivors’ Conference. The conference was the start of our journey to help other Survivors and bring home and share what we learned. A lot of communities did not even know what the package consisted of, the Common Experience Payment, the Individual Assessment Process, the Opt-In Opt-Out period; what it all meant.

I know there are people out there who felt we are interfering with their programs. But we are not. We are grassroots people helping grassroots people. We are not politically driven in any way. We are holding this gathering for you. We are seeking healing across our nations.”

People left to rely on the AFN’s bulletins did not understand the “alive in 2005” condition. Spouses of deceased former students did not know they should have their children formally withdraw from the Agreement or be bound by it, even when neither they nor their loved one had benefitted by it. Children of deceased former students anticipated compensation. Most survivors knew they would never be able to sue for damages once the Settlement Agreement was passed unless they had opted out – but most did not know that in order to collect damages for gross physical abuses under the Settlement’s Independent Assessment Process, they would have to testify, to call witnesses, and to endure similar trial procedures to the court process that had deterred them from pressing their cases in the first place. They were also not given a comparison estimate of the difference in value of an independent court award for the most serious abuses and an award under the Independent Assessment Process (IAP) stipulated by the Agreement. The difference was 80-95% less in the IAP than similar damages awarded through the courts.

 

in the shadow of the myth of “reparations”

By 2012, the National Residential Schools Survivors Society had grown to 32,000 members. That February, the Society made a call for a judicial review of implementation of the Settlement Agreement. “The settlement agreement is an out-of-court settlement that is to be monitored by the courts,” said chairman Ray Mason. “Yet each day we have survivors complaining about their treatment by a consortium of lawyers, the role of Canada, lost records, information not provided, adjudicators not respecting our culture or language. Why is the court not taking responsibility?”

“We, as survivors from every region across this country, are totally, totally frustrated,” declared Ted Quewezance, spokesperson for the Society, in the NRSSS press conference. “It’s really hard to reconcile when the perpetrators, the churches and government, are not even at our TRC events. I ask, how do we have reconciliation when the perpetrators are not in the room? Where is the Member of Parliament when these TRC events are going on? Where is the church? The intent of the TRC was to have seven national events and educate Canadians, and that is not happening. We would like to open a public dialogue with survivors, families and communities across the country on continuing acts of genocide perpetrated against our people.

In response to the NRSSS demand, a spokesperson for Canada gave her position that, “The IRSSA is a court-approved and court-monitored class-action settlement of all Indian residential school claims across Canada and does not include a requirement for an independent review.”[vii]

In April of 2014, as party to the Settlement Agreement, the Assembly of First Nations appeared in court to make the case that “survivors of Indian Residential Schools must be treated fairly and with dignity consistent with the spirit and terms of the Indian Residential Schools Settlement Agreement.”  It seems that a high percentage of former students had been paying fees to lawyers and form-fillers in connection with their applications for compensation under the Settlement. A Manitoba Court decision this month, June 2014, determined that a large number of fee agreements invoiced to former students have been “illegal and unconscionable.”

The Independent Assessment Process was itself largely unconscionable.

Under the Settlement Agreement, adults who pursued their grievances of sexual assault while they were children in residential school were compensated according to a never before seen points-system model of assessment of harm. One rape, two rapes, 35 rapes; vaginal, oral, anal; one beating, five beatings, 60 beatings; all led to a sum of points which were then assessed at a uniform dollar value. The humiliation experienced by these adults at having to put forward their most painful personal losses, as if they could count them, in such hearings defies description. That is to say nothing of the revival of old wounds, the sense of injury, the sense of further victimization at agreeing to settle so low. Victims of sexual assault were compensated mainly in the order of 10% of settlements awarded in similar cases arrived at in individual suits against the schools as early as 1997.

The deadline for submissions under the IAP was September 19, 2012.

Victims of physical and mental abuse fared worse comparatively. Loss of income and loss of employability worked in favour of those who had lived all their lives after as alcoholics—and then quickly drank themselves to death after receiving their payments—but it worked against those individuals who did have the strength or unknown combination of support and luck to carry on. Two women who suffered the exact same abuses were awarded compensations varying by $50,000, the rationale given to the one who received a $16,000 pay-out for her complaint of several rapes being that she had managed to carry on a comparatively normal life: to hold down a job, raise a child and maintain a relationship.

Since the Settlement Agreement, funding to the Aboriginal Healing Foundation stopped in 2010. The Foundation was created in 1998, with a ten year mandate and initial funding of $350 million. Just before its untimely and tragic demise, not to be replaced, the Foundation released a study on the impacts of the lump-sum compensation to former students. Under the Common Experience Payment (CEP) aspect of the Settlement Agreement, former students were paid $10,000 for the first year they spent in an Indian Residential School, and $3,000 for each further year – the “10 + 3 formula.” This was an award for “loss of language, culture and family life.” The study’s findings included that “as of November 2009, Survivors had submitted 99,204 CEP applications. 74,701 payments were issued to Survivors, with the average payment being $20,529.” The deadline for CEP applications was September 19, 2011.

The report prepared for the Healing Foundation concluded the following based on intensive interviews in various locations across Canada:

Almost 20% of participants said that the CEP process and money were steps backward on their healing journeys. For these Survivors, the CEP process represented a very negative period in their lives and left them feeling worse off than before. They expressed bitterness and resentment toward an inadequate “10 plus 3” formula, anger toward eligibility criteria that deprived compensation to many living Survivors, and grief over the many Survivors who died before the Settlement Agreement was implemented.

About one-third of participants spoke about CEP and compensation from perspectives that took into account the intergenerational impacts of the residential school system. Survivors said the Common Experience Payment was not enough because the ongoing direct and indirect effects of the physical and sexual abuse that took place at residential schools cannot be compensated, and also that individual compensation is illogical in the sense that the residential school experience is not an individual phenomenon. It is a family and community experience that crosses generations.

The intergenerational issues most commonly raised related to family alienation which in turn resulted in a lack of parenting skills; however, participants also said that the CEP process led to increased openness between themselves and their children about the legacy of residential schools.[viii]

The study made reference to a dramatic increase in deaths within a year of the payments, but did not focus on the point. The study referred to suicides as individuals neared the time of an interview with government assessors of serious abuse in the Independent Assessment Process; death by overdose or intoxicated accident; and even murders, as events at the schools, long kept secret, began to come to light with victim testimonies in the Settlement-induced chaos.

Recently, the First Peoples’ Heritage, Language and Culture Council of the province of British Columbia has become the First Peoples’ Culture Council.” Heritage and Language are no longer specified. An Indian Residential School Survivor from Ts’k’way’lacw, St’át’imc territory predicted the dénouement in a 2008 interview. Rick Alec is a Native Alcohol and Drug Abuse Program Counsellor in Pavillion.

They squeezed the language and culture component into that agreement.

What’s going to happen to the language programs we have on reserve now? I think it’s going to affect all the programs. It might not show right off the bat, but it will come down later.

Five years from now you’re going to ask for program funding for a language class, and they’re going to tell you that’s been dealt with in this settlement: compensation for loss of language and culture.

It’s a turning point for us as native people, where we are either going to move forward or not. You hear it all the time: ‘what’s wrong with us started with the residential schools.’ But after we take this money, there’s no one left to blame. All the responsibility will be with us.

 

A slide from Littlechild’s power-point presentation to the EMRIP. His presentation never touched on the impacts of the schools to the peoples.

in the shadow of the myth of non-recurrence

When he goes on and on about truth and reconciliation at UN meetings in New York and Geneva, TRC Commissioner Chief Wilton Littlechild never mentions the modern day rate of apprehension of indigenous children and the placement of those children with non-native families. This is a kind of violent assimilation, actually fitting the description of Article 2 of the Genocide Convention, which carries on in spite of the Prime Minister’s apology to former Indian Residential School students where he promised such a thing would never happen again. In his 2012[ix] address to the Expert Mechanism on the Rights of Indigenous Peoples, contemplating the creation of the Access to Justice for Indigenous Peoples study, Littlechild mentioned the Special Rapporteur on Reparations and Non-recurrence in the same paragraph as thanking the government of Canada for financing his conference.

Indigenous children are seized from their families by Ministries of Child and Family Welfare at a rate eight times that of the Canadian average. The British Columbia Advocate for Children and Youth, Mary Ellen Turpel-Lafonde, has written a stack of reports on the shocking fates of too many of these children once in state care. The Attorney General of Canada has also written damning reports of federal agencies charged with the care of apprehended indigenous children.

The formal education of Indigenous children is another relevant matter, when considering the impact of Indian Residential Schools. Today, indigenous children must attend public school in Canada, whether on or off-Reserve, where the curriculum is controlled by the state. The UN Special Rapporteur on the rights of Indigenous Peoples’ 2014 report notes:

There are approximately 90 aboriginal languages spoken in Canada. Two-thirds of these languages are endangered, severely endangered or critically endangered, due in no small part to the intentional suppression of indigenous languages during the Indian residential school era. The same year the federal Government apologized for the residential school policy, 2008, it committed some CAN$220 million annually for the next five years to Canada’s “Linguistic Duality” program to promote English and French. By comparison, over the same period, the federal government spent under CAN$19 million annually to support indigenous language revitalization.

The report also summarizes indigenous objection to the unilateral federal First Nations Education Act:

Indigenous leaders have stated that their peoples have not been properly consulted about the bill and that their input had not been adequately incorporated into the drafting of the bill. The main concerns expressed by indigenous representatives include that (1) the imposition of provincial standards and service requirements in the bill will undermine or eliminate First Nation control of their children’s education; (2) the bill lacks a clear commitment to First Nations languages, cultures, and ways of teaching and learning; (3) the bill does not provide for stable, adequate, and equitable funding to indigenous schools; and (4) the bill will displace successful education programs already in place, an issue that was raised particularly in British Columbia.

in the shadow of “An Historic Non-apology”

Many former students found relief in the apology which Prime Minister Steven Harper delivered on June 11, 2008. There was finally recognition by the head of state that the violence which was done to them as children, their removal from their homes, was wrong.

Indigenous academics and lawyers found the formal statement bitter, however, and roundly criticized the government’s careful wording in place of something more honest.  Dr. Roland Chrisjohn and five others jointly released the lengthy statement “An Historic Non-apology, completely and utterly rejected” from which the following is excerpted:

We doubt that the Conservative party didn’t have a team of lawyers, rhetoricians, and spin doctors, if not writing the statement, at least agonizing over every phrase, every word, every revelation in the evolving document, considering in detail every implication and weighing each possible consequence. We had no trouble seeing through the Prime Minister’s tortured prose because we’re well aware of related issues that are no part of what the average Canadian is supposed to know and what government and church officials know all too well: the United Nations Genocide Convention and Canada’s role in it…

Bringing genocide to the table would take the churches, but more centrally the government of Canada, into the exhaustive examination of additional regions of its policies and programs with respect to indigenous peoples, regions that, up until now, it has successfully avoided (or at least, as it is now trying to do with residential school, managed to isolate from other policies). And, what is perhaps even more important, establishing that Canada’s policies toward indigenous peoples constitute an historic and ongoing genocide rules out Mr. Harper’s statement as an apology, since such would violate the second feature of a genuine apology; someone who is still doing it can’t be promising not to do it again.[x]

As for the suspected team of lawyers and spin doctors behind the public apology, if they weren’t there at that point they certainly were there when it came time to devise a system through which survivors of physical and sexual abuse would be compensated. Consider the following testimony. A junior employee with the Department of Indian Affairs was offered a job description one day, in connection with this scheme to minimize the damage. Her supervisor explained that if she took the new position, there would be an immediate promotion for her within the Department, followed by a second promotion within the year. The job description was not allowed out of the supervisor’s sight, much less out of the office; she was not allowed to make a copy. The lucky candidate, a sharp young woman fresh off the job of surveying and reporting on the state of native court services in Saskatchewan, chosen especially because she herself had Indian Status, had to read the job offer and return it immediately.

She had been hand-picked for the job of working in a team to find ways to minimize payments to Settlement claimants. Chantal Perrault left the Department then and sought out organizations that were actually attempting to advocate for indigenous peoples.[xi]

 

The report of the Special Rapporteur on the Rights of Indigenous Peoples on the situation of Indigenous Peoples in Canada, May, 2014

In spite of the untrue phrases written by others and copied into the Special Rapporteur’s report, some paragraphs will vindicate the victims of Indian Residential Schools, the Indigenous Peoples, better than the Indian Residential Schools Settlement Agreement and the Truth and Reconciliation Commission combined:

5. A particularly distressing part of the history of human rights violations was the residential school era (1874-1970s, with some schools operating until 1996), which destroyed their family and even their names. Thousands of indigenous children did not survive the experience and some of them are buried in unidentified graves. Generations of those who survived grew up estranged from their cultures and languages, with debilitating effects on the maintenance of their indigenous identity. This estrangement was heightened during the “sixties scoop” during which indigenous children were fostered and adopted into non-aboriginal homes, including outside of Canada. The residential school period continues to cast a long shadow of despair on indigenous communities, and many of the dire social and economic problems faced by aboriginal peoples are linked to that experience.

31. With respect to other issues affecting the well-being of indigenous peoples in Canada, among the results of the residential school and “sixties scoop” eras and associated cultural dislocation has been a lack of intergenerational transmission of child raising skills and high rates of substance abuse. Aboriginal children continue to be taken into the care of child services at a rate eight times higher than non-indigenous Canadians. Further, the Auditor General identified funding and service level disparities in child and family services for indigenous children compared to non-indigenous children, an issue highlighted by a formal complaint to the Canadian Human Rights Tribunal by the First Nations Child and Family Caring Society and the Assembly of First Nations. In a positive development, in 2000 the Province of Manitoba and the Manitoba Métis Federation, which represents Métis rights and interests in the province, signed a memorandum of understanding for the delivery of community-based and culturally appropriate child and family services, which has demonstrated important successes.

88. The Government should ensure that the mandate of the Truth and Reconciliation Commission is extended for as long as may be necessary for it to complete its work, and should consider establishing means of reconciliation and redress for survivors of all types of residential schools.

 

 

[i] Study on the links between indigenous rights, truth commissions and other truth-seeking mechanisms on the American continent (Etc.t9t20t3lt3) 28 May 2013

 

[ii] Intervention submitted by delegate of the International Human Rights Association of American Minorities.

 

[iii] United Nations Human Rights Council 15th Session,  September 13 – October 1, 2010, Palais de Nations, Geneva   Intervention by Chief Wilton Littlechild, Commissioner, TRC of Canada, Agenda Item 5: report of the UN Expert Mechanism on the Rights of Indigenous Peoples

 

[iv] The grass-roots organization “Empowered Residential School Survivors” drove from points in BC to the conference, video recorded it, and distributed copies in DVD format.

[v] Open letter to Minister of Indian and Northern Affairs Canada, Chuck Strahl, February 16, 2009. “Re: TRC Protocol and Process”

[vi] Empowered Residential School Survivors, Information and Healing Gathering, Lytton, BC, September 19, 20, 21, 2007, “Healing Through Empowerment.”

 

[vii] Winnipeg Free Press – PRINT EDITION “Residential schools pact needs review: coalition – It’s not going to happen, federal government says” By: Alexandra Paul Posted: 02/3/2012

[viii] The Indian Residential Schools Settlement Agreement’s Common Experience Payment and Healing: A Qualitative Study Exploring Impacts on Recipients. Prepared for the Aboriginal Healing Foundation, 2010

[ix] Statement by International Chief Wilton Littlechild, Expert Member (WEOG Region) 6th Session of the UN Expert Mechanism on the Rights of Indigenous Peoples (8th-l2th July 2013) Agenda Item 5: Study on the Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples July 9th’, 2012

Good afternoon to all delegations. Our custom at the Expert Mechanism has been to hold an International Expert Seminar on the subject of our primary study each year, in order to receive the benefit of input from knowledge holders, academic thinkers and experts in the area. This year, we held the International Expert Seminar on Access to Justice for Indigenous Peoples, including Truth and Reconciliation Processes at Columbia University. We would like to thank the hosts and co-organizers, the Institute for the Study of Human Rights, the international Center for Transitional Justice and the Office of the UN Commissioner for Human Rights. We were particularly pleased to hear from Mr. Pablo de Greiff, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence provide a keynote address. We would like to thank all the speakers of the International Expert Seminar, a few of whom are present here today. We would also like to thank the government of Canada for their financial support of this Seminar.

[x] An Historic Non-Apology, Completely and Utterly Not Accepted, By Dr. Roland Chrisjohn, Professor Andrea Bear Nicholas, Karen Stote, Professor James Craven (Omahkohkiaayo i’poyi), Tanya Wasacase, Pierre Loiselle, and Andrea O. Smith.

 

[xi] The Colonial Present, the rule of ignorance and the role of law in British Columbia, by Kerry Coast, Clarity Press, 2013.

UN Special Report on Indigenous Peoples in Canada

Tags

aboriginal rights, aboriginal title, Canada, Indigenous Peoples, James Anaya, Special Rapporteur, United Nations

Paragraph 99 – The Gretzky Clause is an Indigenous win

Published June 29, 2014 on Vancouver Media Co-op

The United Nations’ Special Rapporteur on the Rights of Indigenous Peoples has produced a review of the situation of Indigenous Peoples in Canada that seems to prescribe the diagnosis as the cure: death by bureaucracy. The documentary record is for the Human Rights Council, and it is as meticulous and specific as the Indian Act itself.

It might be just as limiting – save for two long sentences – paragraph 99. If Indigenous Peoples could “maximize” their benefit from revenues on “their lands,” as is recommended in the report’s final paragraph, Indigenous Peoples could pay their own way and make their own choices instead of having those choices legislated over top of them. They would not need the rest of this report.

In the meantime, some of the most significant crimes against humanity in the modern age have now been lifted out of the realms of colonial denial and set down in black international ink. The importance of this report is therefore unqualified: never before has an international observer summarized the gruesome history of Canadian imperialism in such unequivocal terms as the Special Rapporteur in his country report on Canada.

Professor James Anaya is a Regents Professor at the University of Arizona, lecturing on international law and indigenous peoples’ rights. He helped draft the Declaration on the Rights of Indigenous Peoples and has just completed his second and final term as Special Rapporteur at the same time as releasing the advance report on the Situation of Indigenous Peoples in Canada.

 

The Gretzky Clause

Professor Anaya recommended in paragraph #99, the very last words on the paper, “Resource development projects, where they occur, should be fully consistent with aboriginal and treaty rights, and should in no case be prejudicial to unsettled claims. The federal and provincial governments should strive to maximize the control of indigenous peoples themselves over extractive operations within their lands and the development of benefits derived therefrom.” That’s about the only thing Indigenous Peoples have been demanding of Canada, unsuccessfully, since Canada existed.

The age old question which Canada puzzles with in its Supreme Court is, “where is aboriginal land?” And the Court refuses to find any. Anaya did not recommend that Canada recognize aboriginal title, or get out a map and trace the old lines between the Indigenous nations of northernmost America and demand that those borders be respected or else double standards discrimination would be in effect, nor did he remark at all on the subject of what would be left of “Canada” if indigenous peoples were in control of their lands once again.

This is fairly plain talk for a lawyer though. Which square inch of Canada is not part of an unsettled claim? The Treaties are broken. The modern day negotiations are themselves a complete violation of human rights, requiring Indigenous parties to first surrender everything to the Crown in right of Canada before receiving various delegated and controlled powers in exchange. They are being negotiated by people put in power to represent the Indigenous side through systems of governance imposed by Canada. These problems were touched on in the report.

 

Negotiations and “land claims”

With a literal directness reputed of the “black letter lawyer,” his report states that “Over the past decades, Canada has taken determined action to address ongoing aspects of the history of misdealing and harm inflicted on aboriginal peoples in the country… Perhaps most significantly, it has legislation, policy and process in place to address historic grievances of indigenous peoples with respect to treaty and aboriginal rights. In this regard, Canada is an example to the world.” There are several notes to the fact that negotiations have been “mired” in difficulties. The statements are extremely political, and always extremely correct. Credit has been given for the appearance of attempting reconciliation, but it is taken away again by documented references to the failures of the process. The Rapporteur does not go so far as to say that the “mire” was by design, and that negotiations have clearly bought Canada the comparative peace of these past decades.

The negotiations programs are described as “…good practices, at least in their conception, such as Canada’s policy of negotiating modern treaties with aboriginal peoples and addressing their historic claims. A full exposition of these laws, policies and programmes is beyond the scope of this report.” Unfortunately, Canada’s policy of using Indigenous duress to accomplish surrender agreements with Indigenous communities is an exceptionally important example of the insidious perpetuation of the Canadian ultimatum: starve out or sell out. Ample information summarizing the slipknot effect of Canada’s “modern day treaty” making programmes were made available to the Special Rapporteur. He summarized that information: “In the comprehensive land claim processes, the Government minimizes or refuses to recognize aboriginal rights, often insisting on the extinguishment or non-assertion of aboriginal rights and title, and favours monetary compensation over the right to, or the return of, lands.”

One example that illuminates the carefully controlled core of modern “negotiations” was highlighted in the Special Rapporteur’s report. Regarding First Nations Education, a new act has emerged and shows the type of policy and procedure which Canada intends to legislate on all aboriginal peoples – if it’s not achieved through standardized, identical core provisions of self-government framework agreements and “land claims.” The First Nations Education Act was brought to the Special Rapporteur’s attention during his visit. The controversy over this Bill recently caused the National Chief of the Assembly of First Nations to resign.

The Rapporteur summarized Indigenous objections: “(1) the imposition of provincial standards and service requirements in the bill will undermine or eliminate First Nation control of their children’s education; (2) the bill lacks a clear commitment to First Nations languages, cultures, and ways of teaching and learning; (3) the bill does not provide for stable, adequate, and equitable funding to indigenous schools; and (4) the bill will displace successful education programs already in place, an issue that was raised particularly in British Columbia.”

It is exactly these problems – imposition of foreign standards; displacement of traditional structures; lack of financial certainty; a design for degradation of the delegated powers over time – which characterize all the other plans Canada has for First Nations negotiating under the present day policies. These problems characterize the results of all modern agreements between Canada and Indigenous Peoples today, covering the further six areas of lands and resources, self governance, health, children and families, housing and infrastructure, and finance.

Background context, exhibits on Canada’s record

The background provided in this report succinctly and definitively puts on record some of the most criminal tragedies wreaked by the colonizer on the Indigenous nations. Since Canada is officially in denial of many of these facts, the report is a categorical achievement for history. It qualifies the Indian Residential Schools, “the explicit purpose of which was to destroy their family and community bonds, their languages, their cultures, and even their names.” Canada still pretends those results might have been accidental, even in its formal apology of 2008.

The report acknowledges “…patterns of devastating human rights violations, including the banning of expressions of indigenous culture and religious ceremonies; exclusion from voting, jury duty, and access to lawyers and Canadian courts for any grievances relating to land; the imposition, at times forcibly, of governance institutions; and policies of forced assimilation through the removal of children from indigenous communities and “enfranchisement” that stripped indigenous people of their aboriginal identity and membership.” The significance of this single sentence in an official report to the Human Rights Council has not even begun to be appreciated, as it will be relied on in future international actions against Canada, in the pursuit of remedying the current hostile occupation of Indigenous homelands.

As for the most important colonial legal structures of imperialism in the Canadas, it was forced upon King George in 1763 by the military might of Pontiac and his many allies’ refusal to accept British retractions of their original treaties and compacts. The report gives that its place in relation to negotiations: “…the related policy of the British Crown of seeking formal permission and treaty relationships with indigenous peoples before permitting settlement in their territories.” And that Royal Proclamation, made exactly one quarter of a millenia before the Special Rapporteur’s visit, remains a pillar of the Canadian constitution; albeit one that has collapsed under the relentless weight of settlers fleeing other nations around the world and insisting on their own superior rights in Canada.

The collapse of that legal statute is not analyzed as a rotten cornerstone of the state of Canada and an object requiring closer scrutiny in the application of the rule of law in the first world; it might have been. It is the foundational instrument within Canada’s own laws which requires the consummation of honourable treaties.

 

The statistics of the minority

The international report emphasizes the statistical face of pan-Indigenous dispossession as it appears in census areas such as homelessness, poverty, low life expectancy, suicide, poor health, lack of education, overcrowded and dilapidated housing. “Of the bottom 100 Canadian communities on the Community Wellbeing Index, 96 are First Nations, and only one First Nation community is in the top 100.” Compared to Canadians, Indigenous individuals are exponentially worse off in every way. “At every level of education, indigenous people overall continue to lag far behind the general population.” There are many more.

But the Special Rapporteur is asked to comment on the situation of Indigenous Peoples, not indigenous individuals as minorities within a state. Indigenous Peoples have suffered every crime described by the Geneva Convention on the Prevention and Punishment of the Crime of Genocide. The report did not explicitly connect the impacts of Indigenous loss of life, loss of village sites, loss of power over community and national life and loss of control of lands and resources with the staggering present day economic sitution – the inability even to build adequate homes – except by implication in paragraph 99.

Worryingly, the summary statement suggests: “Indigenous peoples’ concerns merit higher priority at all levels and within all branches of Government, and across all departments.” This sounds like a proliferation of Indian Acts across the entire social, economic and cultural map. It is the general opinion, and most plausible legal situation, of Indigenous Peoples that their rights and remedies are not within the purview of the Canadian government or its departments – which have only ever contrived to suppress, co-opt and deny those concerns by every means available.

But when this statement is read together with the Gretzky Clause, paragraph 99, it now says: All branches of government should align themselves with ensuring the continuity and protection of aboriginal and treaty rights. All levels and departments should support Indigenous control of resources on Indigenous lands, especially extraction, and the benefits arising therefrom.

 

The Hazy Bering Land Bridge

There remains in the Special Reporter’s observations, conclusions, and recommendations, however, a missing link as dubious as the Bering Land Bridge. How can one file a report which begins with a summary of every crime of genocide, and ends with suggestions that the perpetrator be left in charge of remedying the situation? The report itself notes all manner of Canadian efforts to engage aboriginal peoples, and equally comments on indigenous representatives’ presentations to him on how unsatisfactory they are.

The reality is that every attempt at maximizing protection or use of “their lands” ends up in court, where “the adversarial approach leads to an abundance of pre-trial motions, which requires the indigenous claimants to prove nearly every fact, including their very existence as a people.”

Canada’s assumption of jurisdiction on unceded Indigenous land, as in British Columbia, or its most restrictive interpretations of treaty rights, are problems which merit third party, independent and impartial hearings. Canada cannot be the originator of a dispute and also the judge of its resolution. The Special Rapporteur never repeated this observation, made to him in person, in his report. It is in his mandate: Article 40 of the Declaration on the Rights of Indigenous Peoples, Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.

Instead: “Canada’s relationship with the indigenous peoples within its borders is governed by a well-developed legal framework a number of policy initiatives that in many respects are protective of indigenous peoples’ rights. But despite positive steps, daunting challenges remain. The numerous initiatives that have been taken at the federal and provincial/territorial levels to address the problems faced by indigenous peoples have been insufficient.”

Canada’s borders are in fact contested not to include many unceded, sovereign indigenous peoples and their lands in the first place, particularly in the west, and to this legal place the report does not proceed. Canada’s “well-developed legal framework” denies Indigenous Peoples’ own legal frameworks, and their jurisdictions on their homelands, and certainly has been well-developed to the point of the exclusion of the Canadian constitution where treaties are demanded before settlement is allowed. In fact, policy initiatives have entirely replaced legal instruments. And the objectives of those policies have not shifted by any measure since the 1857 Act for the Gradual Civilization of the Indian Tribes – an assimilation and dispossession policy. Just last year a more sophisticated option of the legislative release and indemnification of Canada by the Indigenous took the form of Bill C-45 and was passed in Canada’s Parliament. Fragments of Indigenous nations under duress participate in fragments of the Act. Finally, to suggest that the problems faced by Indigenous Peoples occupied by Canada could be sufficiently addressed by the perpetrator of the problems, the federal and provincial governments, is to fundamentally ignore many testimonies brought before the Special Rapporteur during his extraordinarily brief visit to Canada – October 8-15th, 2013. Some of those testimonies were brought by traditional governments of Indigenous nations, some were submitted only in writing, and they laid bare the urgent need for third party assistance in the conflict between their nations and the assumptive party, Canada.

The report is perhaps constrained by the state-biased mandate of the United Nations, reporting on implementation of the Declaration on the Rights of Indigenous Peoples, and it is in this way that the vulnerability of entrusting states with justice for Indigenous Peoples becomes obvious. The conflict at hand is between states and the Indigenous Peoples, and their lands, which states have assumed jurisdiction over. Or, “One of the most dramatic contradictions indigenous peoples in Canada face is that so many live in abysmal conditions on traditional territories that are full of valuable and plentiful natural resources. These resources are …targeted for extraction and development by non-indigenous interests.”

 

The report on the situation

There were many people and places that the UN delegation did not meet. Those who did manage to make meetings had less than one week’s notice of the time and location – and that was the work of Canada. Considering this, and the brevity of the visit, this first official report on the situation of Indigenous Peoples in Canada is of considerable scope and importance. If it is read.

The report is a good sweep of the situation:

“Parliament has jurisdiction over ‘Indians and lands reserved for Indians.’”

“First Nations communities that receive federal funding under the Indian Act regime, 70% of which have fewer than five hundred residents, typically have to produce over 100 or more reports a year to various federal agencies.”

“…indigenous leaders complain that the federal Government frequently uses a discourse of responsibility to Canadian taxpayers for the cost of First Nations treaty benefits, without a corresponding acknowledgment of the vast economic benefits that have accrued to non-indigenous Canadians as a result of the constitutional treaty relationships…”

“…the Government appears to view the overall interests of Canadians as adverse to aboriginal interests…”

The Special Rapporteur never mentions the astonishingly prolific, consistent and militant protest on the part of Indigenous peoples from coast to coast to coast, for centuries, and that these demonstrations and resistance movements are singly the cause of any of Canada’s good work noted in this report. The political tones resonate to good will and politesse and there is little within the report which Canada could reasonably take exception to.

But, as James Anaya characterizes his own work when speaking in public, he tries not to focus on the instances of conflict but on signs of progress and possibilities which might lead to peace and justice.

“Partnership” is recommended between the Indigenous and Canada, and that “…it is necessary for Canada to arrive at a common understanding with indigenous peoples of objectives and goals that are based on full respect for their constitutional, treaty, and internationally-recognized rights.”  This is optimistic.

But Anaya’s visit to Canada has already had effect. During his statement at the end of his official visit last Fall, he made the straightforward recommendation that the Truth and Reconciliation Commission be given an extension to continue its work in connection to Indian Residential School legacies. An extension of one year had been granted by the time the draft report was released this May, while the report calls for an open-ended mandate.

Paragraph 99, however, is the ace. It is nothing short of Wayne Gretzky in 1988, getting the goal that won the Oilers the Stanley Cup. And the Supreme Court of Canada has lost its shut-out. Development should be consistent with aboriginal and treaty rights; control and benefits of development on Indigenous lands should belong to the Indigenous.

It’s an optimistic coincidence that the key recommendation to Canada is numbered the same as the greatest Canadian hockey player, whose jersey number was retired by the National Hockey League in his honour. And it’s an enlightening coincidence that such an important icon was playing a Mohawk game. It’s possibly a pragmatic non-coincidence on the part of the author of the report, nominated for the Nobel Peace Prize this spring, to connect a source of national pride with a challenge worth meeting.

 

 

UN Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya, at Musqueam during his official visit to Canada. October 10, 2013.