“Reconciliation” arose as Federal Policy after Haida and Taku legal victories

2004

This federal policy draft, attached here, marks a major shift in Canada. The new strategy to “quiet” Indigenous titles and rights is by mutual agreement: “in the spirit of reconciliation.”

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Finally realizing the Supreme Court of Canada’s repeated emphasis on “reconciliation”, which can be negotiated, the federal government revised its policies away from denial and towards vague statements of recognition. Along a program of “the concept of reconciliation,” Canada has been advancing Final Agreements and self-government agreements with renewed urgency, since the Haida people’s success in gaining the court’s recognition of their land rights.

Streams of government agreements with Indigenous Peoples, including agreements about child welfare, education, compensation for forestry operations, health care, land management, governance, and financial obligations have now, in specific instances, conceded key areas of Indigenous jurisdiction to Canada. Indigenous ratification of agreements with Canada, or even provinces or territories, becomes a reciprocal recognition. Whereas most peoples and nations never gave their countries away, nor struck a bargain with Canada for shared ownership, in the absence of constructive arrangements these agreements specifically require an Indigenous party to recognize Canadian interests. Once they are signed, and funding programs have shipped, these agreements are not constitutionally protected and “reconciliation” has no legal character.

Since 2004 we have seen “reconciliation” enter the scene to draw attention away from unilateral assertions of Indigenous rights on the ground, and away from litigation to prove claims. Instead: the Truth and Reconciliation Commission, where no more charges were to be laid in the trial of the residential schools; the flopped Recognition and Reconciliation Act in British Columbia, where a runaway band of elected Chiefs purported to provide recognition of Crown interests in unsurrendered territories; even “reconciliation in child welfare” – a numbing phrase designed to force Indigenous communities to accept existing Ministry interference as the baseline for ‘moving forward’; and so on.

And now we know that many Indigenous leaders have been complicit in those programs while they were completely aware that this is Canada’s strategy to side-step the Indigenous right. It was the Union of BC Indian Chiefs that copied and distributed this secret draft policy document in 2004. Attached above, it has been scanned and transcribed with OCR to recreate the original document. The draft spells out the fact that Canada is in a perilous legal and financial place, with investment evaporating every time Indigenous Peoples win in court – and that future wins are stacked up like an avalanche waiting to happen – and a big diversion is needed.

“Reconciliation” is now entering every area of “Aboriginal rights” negotiations – rights which can be exercised as Aboriginal Canadians – but it is a function of assimilating Indigenous nations into Canada. No one is really prepared to stand up and say “we don’t want reconciliation,” for obvious reasons.

But in this situation, Canada is abusing the concept to shame Indigenous leaders and representatives into subjugating themselves to Canada. Their nations never joined Canada – they were invaded and looted by Canada. And now the self-proclaimed country, having thrown its borders up around all these nations, wants to marry the one it robbed so there can be no more talk about separate possessions and interests and the little matter of injury.

“Reconciliation” is the New Deal. Canada is trying to buy land – and buy the people who own the land – with the promise that it will share the wealth once it has the deed.

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Declaration of the Tahltan Tribe, 1910 

We, the undersigned members of the Tahltan tribe, speaking for ourselves, and our entire tribe, hereby make known to all whom it may concern, that we have heard of the Indian Rights movement among the Indian tribes of the Coast, and of the southern interior of B.C.. Also we have read the Declaration made by the chiefs of the southern interior tribes at Spences Bridge on the 16th July last, and we hereby declare our complete agreement with the demands of same, and with the position taken by the said chiefs, and their people on all the questions stated in the said Declaration, and we furthermore make known that it is our desire and intention to join with them in the fight for our mutual rights, and that we will assist in the furtherance of this object in every way we can, until such time as all these matters of moment to us are finally settled. We further declare as follows:—

Firstly—We claim the sovereign right to all the country of our tribe—this country of ours which we have held intact from the encroachments of other tribes, from time immemorial, at the cost of our own blood. We have done this because our lives depended on our country. We have never treated with them, nor given them any such title. (We have only very lately learned the B.C. government makes this claim, and that it has for long considered as its property all the territories of the Indian tribes in B.C.)

Secondly--We desire that a part of our country, consisting of one or more large areas (to be erected by us),be retained by us for our own use, said lands and all thereon to be acknowledged by the government as our absolute property. The rest of our tribal land we are willing to relinquish to the B.C. government for adequate compensation.

Thirdly—We wish it known that a small portion of our lands at the mouth of the Tahltan river, was set apart a few years ago by Mr. Vowell as an Indian reservation. These few acres are the only reservation made for our tribe. We may state we never applied for the reservation of this piece of land, and we had no knowledge why the government set it apart for us, nor do we know exactly yet.

Fourthly–-We desire that all questions regarding our lands, hunting, fishing, etc., and every matter concerning our welfare, be settled by treaty between us and the Dominion and B.C. governments.

Fifthly—We are of the opinion it will be better for ourselves, also better for the governments and all concerned, if these treaties are made with us at a very early date, so all friction, and misunderstanding between us and the whites may be avoided, for we hear lately much talk of white settlement in the region, and the building of railways, etc., in the near future.

 

Signed at Telegraph Creek, B.C., this eighteenth day of October, nineteen hundred and ten, by

Nanok, Chief of the Tahltans

Nastulta, alias Little Jackson

George Assadza, Kenetl, alias Big Jackson

and eighty other members of the tribe

North American Indian Nation Government

The Second Session, held in Detroit Michigan, USA, at the Wolverine Hotel, September 1947

north-american-indian-government-2nd-session-1947-from-ubcic-archive

Excerpt, first paragraphs:

This National Indian Government which did not exist since 1763 has re-established in June 21, 1945, a great meeting was held at the Chateau Laurier in the City of Ottawa, Canada.

All the delegates who did attend the meeting at that time, they have all discussed their situation so, when they all realized that the Federal Government do not treat the Indian population with justice then they all decided to approve a National Indian Government established by the Indian and for the Indian, immediately they all voted for a new Indian Constitution act, right there the Indian Government was re-established…

…all the delegates present at that time did approve the first Indian law book to interest all the Indian people to read and learn what this National Indian Government expects to do for his people in the future.

At the Second Session, the following were elected:

Supreme Chief: Bernard Commanda, Nipissing Lake

Assistant Supreme Chief: John Chabot, Maniwaki Band

Secretary-Treasurer: Jules Sioui, Lorette Band

Assistant Secretary-Treasurer: Silver Star (E. Matteson), Pontiac Branch Band

 

Article 1. The Indian language has to be taught in the school by the teacher to safeguard the National Indian language(s).

1.A. Chief and Council of each Band has to govern the school, the teacher, and anything else that may pertain to the education of their children.

Note the report of the meeting was published in English and French in a single volume.

Oweekeno-Kitasoo-Nuxalk Tribal Council: re. land claim settlements

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Delivered to the First Nations Summit meeting in Vancouver, February 4, 1991.

oweekeno-kitasoo-nuxalk-re-land-claim-settlement-to-fns-meeting-feb-4-1991

Excerpt:

In the beginning the Creator bestowed upon our forefathers all the lands, waters, air and all its natural resources. This is a fact we all know as it has been handed down to us for generations and generations. With the blessings of the Creator, which today we now call Aboriginal Title and Rights, our First Nations cultivated our tribal territories in harmony with nature and perpetually sustained all natural resources and our peoples through good government, peace and order. Before we talk about land claims today, let us all stand so that we may share with you a few words with the Creator…

… When we talk about land claims we must never forget that the Creator provided all our First Nations with tribal territories adjacent to each other.

… Today, because the leaders of both the Governments of Canada and British Columbia, who we will call the “Crown”, want to totally eliminate our claim to traditional tribal territories, there are efforts made that appear to be dealing with the resolution of land claims, self-government and whatever other “aboriginal title and right” the First Nations claim to still hold. We must not forget the fact that our ancestors gained international recognition that the Crown must gain the consent of the First Nations if they want to take our traditional tribal territories. We must not forget the fact that the Crown, in spite of treaties with many First Nations throughout Canada, have consistently imposed cultural genocide policies and practices on all our First Nations. It is these two key facts that prove the Crown is still trying to eliminate our claim to traditional tribal territories while appearing to try to resolve the Indian problem.

If the Crown is serious and sincere about resolving the land claims question with all our First Nations, then it must consider the following recommendations:

Significance of Indian Consent

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Published in 1984 by the Union of BC Indian Chiefs

significance-of-indian-consent-documentation-ubcic-1984

Excerpt:

What do the Elders say? First we look at our own pattern of discovery of these issues. Every time we faced a crisis we discovered a new awareness of the truth which strengthened our position. We find this again in consent. The older generation will now say to us – now we got the picture – right in our dealings with Canada and her robbing the Indian Nations of our land. But down the road are we going to uncover further truths  which prolong the political uncertainty of our people. So even in this, they say we did not go far enough. We are right in what we have found on consent. But to go further, we should not be moving to entrench our selves in the Canadian Constitution. Again we have to look at why they maintain this stance and seek out the meaning of this position.

The Device of Indian Status

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The device of Indian Status and its creation: Non-Status Indians

  1. Summary

The Canadian construct of the “Status Indian,” where in reality there is no such thing but rather human beings who are Cree, Mohawk, Haida, Miq Maq, Ojibway, Tsimpshian, and other nationals, is a sweeping action of racial discrimination undertaken to dehumanize, number, register and administrate criminalization based on race; and as such it is a crime of inflicting mental harm on the members of those groups, or nations.

The Canadian government presently recognizes the Aboriginal rights of Status Indians, or persons with Indian Status, among two other Aboriginal groups: Metis and Inuit. Aboriginal rights, which are defined by Canadian courts constituted to uphold Canadian law (not Indigenous laws), are unequal to the rights of Peoples recognized in the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the Declaration on the Rights of Indigenous Peoples.

The British “Indian Department” defined the rights and liabilities of “Indian” or Indigenous persons distinct from any of “Her Majesty’s other Canadian Subjects” from 1757 until 1850. After the transfer of the Indian Department to Canadian administration in 1850, and until 1957, a “person” for Canadian legal purposes was “any individual other than an Indian” (Indian Act, 1886 amendment).

The Canadian imposition of the identity of an “Indian,” to the exclusion of their national identity, and prescription of the rights of a Status Indian was a total reversal of the British policy, which had limited colonial rights against the independence and exclusionary land rights of Indian Tribes. The legislation which accumulated as the 1876 Indian Act was unilateral, without consultation or prior notice, not consensual, and forcibly applied to define the membership and organization of Peoples who had no treaty with Canada – as well as to Peoples who had treaties with the British crown which, arguably, did not provide for this reclassification.

Indian Status was then assigned selectively to divide and diminish Indigenous communities. By randomly and inconsistently awarding the Status, and therefore federal recognition of identity and associated rights and liabilities connected to Indian Status (Indian Band membership, allocation of funds to Indian Bands per capita, and right to residence on Indian Reserves, among other things), the Status and Non-Status individuals within the groups suddenly had different interests.

The state actively promoted enfranchisement by Status Indians (the relinquishment of Indian Status); mis-designated individuals to Indian Bands where they happened to be visiting when the Commissioners arrived with their numbering and registration system to record Status Indians; later refused Indian Status to people who had not been at home when the Commissioners visited; stripped Indian Status from women (and their children) if they married Non-Status men; and presently refuses to recognize the aboriginal or Indigenous rights of Non-Status members of Indigenous communities, no matter how high ranking and honoured in those communities, including refusing Indian Status to those whose ancestors were coerced off the Status Indian list in exchange for fee simple holdings of their ancestral homes or were not at home during initial registration Commissions, and refusing the right to consultation and accommodation (and consent) on their traditional Indigenous title lands, and participation in Indian Band processes.

After changes to the Indian Act in 1985 under Bill-C-31, some people regained Indian Status, and some Indian Band Councils could determine their own membership. Bands cannot confer Indian Status.

The disadvantages of Non-Status Indians continue to increase as the state seeks more and more binding extinguishment of Indigenous Peoples’ rights through its Indian Act constructs of governance, from which decisions Non-Status Indians are excluded.

 

  1. Background

1755-1846

The British, desperate for military assistance during the final French-British conflict in North America, the Seven Year War, created the Indian Department in 1755 in an effort to better coordinate alliances with the decisively powerful Iroquois Confederacy – as well as attempting to alleviate concerns of colonial fraud and abuses against Indigenous Peoples and their lands along the colonial frontier (to improve the prospects of Indigenous military assistance).

The Iroquois Confederacy aligned itself with the British cause upon promises of freedom, trade and respect for their independence. Britain, or the Indian Department, negotiated some treaties of neutrality with France’s Indigenous allies to win the war against France in “Canada.”

The Articles of Capitulation of Montreal, 1760, following France’s submission to British control, included in Article 40 that the Indian Allies should be maintained in their territories, according to their choice to remain there, and on no account should they be disturbed there.

A smallpox epidemic broke out in the area within a year and killed an estimated 500,000 people. It became clear to Chief Pontiac that the British would honour none of their promises, and Pontiac began a campaign of burning British forts and eradicating British settlements from his and his allies’ territories.

In October 1763 King George III of Britain issued a Royal Proclamation as an executive order to discipline the colonies – to disallow settlement in non-treaty territories and affirm the promise of Indian independence in their nations – in order to placate Pontiac and preserve the British interests in Canada which relied meaningfully on him and his cooperation. This Proclamation stemmed Pontiac’s siege, and may have contributed substantially to the advent of the American war of independence, but it was not honoured for long.

The American war certainly preoccupied the British and engaged their former disaffected Allies again as well. In 1812, Pontiac’s last battle ensured the Americans stayed south of the Great Lakes.

In 1846 the British Crown completed the Treaty of Oregon with the United States of America and the USA agreed to the 49th parallel as its northern border. This treaty did not involve the Indigenous Nations whose lands span the 49th parallel.

1850-1876

In 1850 the colonial governments of British North America began to keep records of Indians and Bands entitled to benefits under treaty. At that time, the only Indian-British treaties in British North America were east of the Great Lakes.

In 1857, An Act for the Gradual Civilization of the Indian Tribes was introduced. This provided the mechanism to exempt Status Indians from the new list – by enfranchisement. Males over the age of 21 were offered fifty acres if they were approved, after examination, for enfranchisement by Commissioners, who were to be: “Visiting Superintendent of each Tribe of Indians, the Missionary to such Tribe for the time being, and such other person as the Governor shall appoint from time to time for that purpose.” The commissioners were capable also of recommending the benefits of enfranchisement to men who could not read or write, and completing the paperwork and transformation on their behalf.

By contrast, Status Indian men living on reserve in British Columbia would later be allowed only five or ten acres.

The wife and children of the enfranchised man would cease to be Status Indians, and would have no right to benefits associated with membership in an Indian Band, nor recognition by Canada of their Indigenous identity. These benefits, while dramatically inferior to the benefits of membership with a free Indigenous People, included promises of provision of rations, welfare, education, Christianization, medical service, housing, infrastructure and support to develop agriculture. The fact is that the promised benefits rarely materialized (to this day housing is inadequate for the less-than-half of Status Indians who actually have structures in which to live on reserve), were administered in an abusive way (medical experimentation or total medical neglect (Culhane, 1987; Kelm, 1999)); Indian Residential Schools; abject poverty; hunger; abandonment of agricultural programs (Royal Commission on Aboriginal Peoples, 1996).

On the west side of North America, in the Colony of Vancouver Island (1849), the British Hudson’s Bay Company was endowed with political power. The Chief Factor of the HBC, after being made “Governor” Douglas, forged fourteen highly questionable agreements with fourteen Indigenous tribes. In the Colony of British Columbia (1858), instead of making treaties the Governor made Indian Reserves for Indian Bands which were identified based on the information provided by the Indigenous themselves, at least in those areas accessible to the Governor at the time – which was less than a quarter of the Indigenous land base of the Indigenous Peoples of “British Columbia.”

The Indian Reserves which were demarcated between 1858 and 1862 in the Colony of British Columbia were, according to oral history and a few surviving maps, very large – encompassing, for instance, all the villages in a region and all the riverine and hunting areas used exclusively by that People; and were characterized as settler exclusion zones accompanied by guarantees of peace and mutuality – during a time of rapid (uncontrollable) immigration and settlement during three successive gold rushes.

In 1862 a smallpox epidemic was introduced on the coast of British Columbia by colonial officials of the highest offices (Swanky, 2013). Some 90% of Indigenous people on the coast and inland died of the disease. An uncounted number of villages were wiped out and, when survivors moved together into remaining villages, they were made into a single Indian Band where before there had been dozens of communities. For example, there were historically 30 different Nuxalk villages while today there is one Indian Band; a dozen historical Lil’wat villages while today there is one Lil’wat Band; and perhaps a hundred Nuu-chah-nulth villages while today there are some fifteen Bands. The right to return to, or restore, those ancestral villages has been uniformly denied – as in the exemplary case of the Neskonlith attempt to reoccupy an ancestral village at the present day expansion site of the Resort Municipality of Sun Peaks in 2001.

In 1867 the Dominion of Canada was constituted by the British North America Act. The BNA Act included two essential components with regard to Indigenous Peoples. Section 109 of the BNA Act stated that lands and resources would belong to the provinces “in fee,” except where “Other Interests” existed. The “Other Interests” were the Indigenous interests, which were obviously extensive if not complete to the exclusion of any provincial lands in fee whatsoever (St. Catharine’s Milling, 1898; Clark, 1990, McGill Queen’s University Press). The second component which protected Indigenous Peoples from invasion by colonial governments, or provinces, was the affirmation of the Royal Proclamation of 1763 in the Act, forbidding settlement or incursion ahead of agreement by treaty.

In 1871 British Columbia joined Canada by referendum in the elected assembly, which was elected by non-Indigenous people. Still neither British Columbia nor Canada attempted to complete treaties, as was constitutionally required before settlement or possessive actions. The Terms of Union of BC’s entry into Confederation stipulated in Article 13 that responsibility for “the Indians” and lands reserved for them would lie with the federal government, and that “tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government.”  But British Columbia actually set about reducing the already demarcated Indian Reserves to a fraction of the size.

The new creation in British Columbia of “Indian Bands” on these Indian Reserves was not a reflection of Indigenous governance and organization and often created a group where before there hadn’t been one – often planting or transplanting an Indian Reserve just outside a colonial resettlement of a traditional, developed Indigenous village which was preferred by the settlers for its development, proximity to water, geographical convenience, etcetera – and the new Band lists were populated according to the registration as Status Indians of whomever was present at the time of the Commissioner’s visit. In many cases the Bands were actual Indigenous villages populated by an existing community, and in many cases those Reserves and Bands were later forcibly relocated to make way for colonial settlement preference. In many cases, after 1871, Indian Reserves were established proximal to colonial industrial hubs, ensuring a captive population that worked for lower wages than white, Japanese or South Asian settlers.

During the massive reduction of the Indian Reserves demarcated by Governor James Douglas, and the creation of new reserves among Indigenous Peoples who had hitherto not been visited by Commissioners, and the relocation of Indian Reserves which had become inconvenient to settlement, a great number of Indigenous people found themselves living on lands they had owned and developed for generations – but outside of Indian Reserves. At this time many Indigenous individuals refused to move to Indian Reserves, then being excluded from the list of Status Indians, and often losing their lands to pre-emption by settlers anyway. Occasionally these people accepted the colonial registration of their lands in fee simple title, sometimes as pre-emptions, in exchange for relinquishing their Indian Status.

In 1876, the Dominion of Canada compiled its statutes regarding Indians (the Indigenous) into a single piece of legislation: the Indian Act. British Columbia had entered confederation in 1871 with no land treaties at all, only fourteen promises to 14 Indigenous communities on Vancouver Island that they could “fish and hunt as formerly,” as of 1854. The Indian Act was unquestionably used to obscure British Columbia’s outstanding failures to achieve legitimacy and responsible government under the Canadian Constitution, or BNA Act, such as by fulfilling the obligation to make treaty before proceeding on lands otherwise reserved to the Indians. The strategic and economic importance of British Columbia to Canada cannot be overstated – then or now – and it seems apparent that Canada wished to facilitate British Columbia’s joining Confederation by engineering an alternative to treaty making. The British government had refused funds to purchase lands, as requested by Governor Douglas. The Indian Act also was applied to Indigenous Peoples with treaties with the British crown, and used by the Canadian government to obscure its treaty obligations as the successor state to those treaties.

To 1982

From 1851 to 1951, individual Indian agents made lists of members who belonged to each Band.

In 1951, the current Indian Register was established by amendment of the Indian Act, and the many Band lists were combined into one.

This current Indian Register was established two years after Status Indians were entitled to vote in British Columbia, where Status Indians still formed a near majority of the population in many electoral districts. It was nine years before Status Indians were allowed to vote in Canada’s federal elections, and four years after Status Indians were unilaterally designated Canadian citizens following their extensive and vital participation in World War II.

By the early 20th century Indigenous family heads and individuals generally were well aware of the problems that came with Indian Status: confinement to an Indian Reserve; constant surveillance by Game Wardens and Indian Agents and Christian Missionary Priests; and the enforced Indian Residential School for their children. In British Columbia, if not elsewhere in Canada, a great number of Indigenous families simply evaded the Indian Agency altogether by not registering as Status Indians – in the Interior of British Columbia, where there were no treaty rights, these families simply lived away from the reserve and off “the beaten track” and were never bothered by Agents who were often unmotivated and also not fluent in the geography. Some Indian families crossed into the United States to live their lives and raise their families free of the imposition of Indian Status, sometimes returning once their children were over school age.

Importantly, these people did not take the added step of enfranchisement. They simply refused to comply with the state and went and lived their own way, keeping their children home and often maintaining their family connections and roles with their People. And sometimes not maintaining those connections, as the decision to live on reserve or not was a matter of contention which divided families.

Prior to 1955, Status Indians lost their Indian Status in a number of ways.  A few chose enfranchisement – voluntarily giving up status, usually for a minimal cash payment; by obtaining a college degree; or by becoming an ordained minister.

Since 1956 the Canadian federal government has issued an identity document to individuals who have Indian Status under the Indian Act. This document has been used by Status Indians to cross the border between Canada and the United States under the provisions of the Jay Treaty (1794), to purchase goods without paying taxes, to receive welfare payments from Indian Bands, to apply for on-reserve housing, to vote in Band elections and referendums, to receive subsidies for education, and to take advantage of affirmative action employment and training schemes. Obviously Non-Status Indians could not avail themselves of these opportunities.

 

1982

In 1982 the Canadian Constitution was enacted. For the first time “Aboriginal and treaty rights” – as opposed to the restriction on colonial rights by British orders – were guaranteed constitutionally by Canada to Status Indians, Metis and Innu people.

In 1985, the Indian Act was amended to restore Indian Status to individuals and their children who had lost it: to women who had married a man who was not a Status Indian; enfranchisement; having a mother and paternal grandmother who did not have status before marriage; being born out of wedlock of a mother with Indian Status and a father without it. Over 100,000 people who had lost their Indian Status in these ways were added to the Register. This was the result of litigation by Sharon McIvor, a woman who had not been able to get Indian Status because of her matrilineal heritage.

Canada recognizes the Aboriginal rights of Status Indians, Metis and Inuit individuals, and occasionally recognizes certain rights to a collective, usually based on the construct of the Indian Band, such as aboriginal rights or the right to be consulted about developments and accommodated for infringements of interests related to aboriginal rights.

The list of Status Indians is maintained by the Department of Aboriginal Affairs and Northern Development Canada. Sole authority for determining who will be registered is vested in the Canadian post of Registrar.

The government of Canada does not recognize any aboriginal rights of Non-Status Indians.

 

III. Challenges created by Non-Status

Voting

Non-Status Indians cannot vote in the elections and referendums held by the Indian Band, or First Nation, of their People. Canada has a forked policy of imposing Indian Act Band Councils on Indian Reserves and delegating to that Council the administration of the federal obligations concerning distribution of welfare, management of infrastructure and so on, on reserve land only.

From time to time the state then proposes to the Band Council developments on lands which are outside the reserves and within the Indigenous title areas of those peoples, and holds the decisions or referendums conducted by the Council as binding, while the Indian Act Band governance is not the proper authority concerning Indigenous Title lands.

Band Councils have been constituted and funded by Canada to administer on reserve activities, but this is an unconstitutional and illegal imposition, seriously undermining the International Bill of Rights Article 1 right of peoples to self-determination. Canada is not capable of unilaterally constituting an authentic Indigenous governance structure which has decision making powers over Indigenous title lands and which concern Indigenous Peoples’ rights. Still, when expedient for Canadian socioeconomic mores, Canada forces and funds decision making processes and then recognizes the resulting decisions over Indigenous titles made by Band Councils. Canada does not recognize decisions over Indigenous lands made freely by Band Councils or traditional governance mechanisms when those decisions are not conducive to industrial development, unless those decisions are supported by a Supreme Court ruling – and sometimes not even then.

While Non-Status Indians may be recognized as members by their own people through their traditional systems, they are excluded from participation in the Indian Band decisions which Canada constructs to create the appearance of legitimate disposal of traditional territories and social development for aboriginal peoples.

Land ownership

Until the last quarter of the 20th century, people with Indian Status could not own land. To own land a man would have to be enfranchised – give up Indian Status. Owning land – such that eviction was made unlikely – was an attraction. There are hundreds of cases of lands along the lower Fraser River in British Columbia, and in areas throughout the province – particularly those proximal to white settlements, being developed by Status and Non-Status Indians and then pre-empted by settlers without compensation or any type of recognition.

The certificates of possession which were and are used to document family land holdings on reserve cannot be held by Non-Status Indians. This has the effect of displacing members of the group.

Colonial elections

Had Indigenous individuals in British Columbia, and elsewhere in Canada, been able to vote in the early 20th century, and if they had organized to take advantage of that, there is no chance that any of their candidates would have lost – as the overwhelming majority of voters would have been Indigenous. Had Indigenous people voted in the referendum concerning joining the Dominion of Canada, the present legal status of British Columbia would be very different.

But Status Indians were not allowed to vote until 1949 in British Columbia, and not until 1960 in federal elections.

At various times Indigenous communities have had the opportunity to control provincial and federal ridings and elect their own candidate, owing to the majority Indigenous demographic of the electoral area. In 1949 British Columbia, Indigenous individuals registered to vote and elected Frank Calder, Nisga’a, to office in the Skeena Bulkley riding. In 1969 in British Columbia, Indigenous individuals voted in the federal election and put Leonard Marchand in parliament for the Kamloops area.

The only time an Indigenous issue has ever been a stake in a provincial British Columbia election was in 2001. The provincial government had just completed a Final Agreement with the Nisga’a people under Canada’s Comprehensive Claims Policy. The sitting New Democratic Party spent $5 million on advertising the Nisga’a Final Agreement as an achievement of the government. Even though this Agreement had the effect of extinguishing 92% of Nisga’a land title and re-constituting the Nisga’a government within Canadian parameters, the BC electorate was opposed to it on the basis of some financial compensation and the advent of some municipal-type powers which would be, without precedent, enjoyed by the Nisga’a. A new party was voted into office in BC in 2001.

Dispossession and Relocation; Consultation and Accommodation

The award of Indian Status and subsequent release of that Status in various circumstances was a tool of dispossession, in that enfranchised, previously Status Indian men, would be recognized as owners of their Indian title lands as fee-simple land owners. Their lands, and themselves, were then seen to be part of Canada.

In all cases in British Columbia, the Indigenous traditional family head systems have resisted, and, in some cases, withstood colonization, and in many cases individuals who do not have Indian Status are recognized by their own people, and so is their ownership of their ancestral lands. In many cases Non-Status individuals continue to hold and actively uphold hereditary and traditional social and political titles and the lands those titles come from.

However, Status Indians living on reserve have lately had many opportunities to lay different measures of claim to lands belonging to Non-Status Indians, in the absence of the Non-Status persons who cannot live on reserve or vote in Band Council elections and referendums, and who do not have the right to be consulted about developments on their lands, as Status Indians, or Aboriginal people, or Indigenous people, do.

While some Indigenous individuals were able to maintain their hereditary titles while living off-reserve, they did not have the federally recognized aboriginal right to hunt and fish. This makes participation in the feast hall and potlatch systems difficult, as a key part of that participation is providing the feast. Provision of food to needy families, elders or single parents is often a necessary aspect of holding, or keeping, social and political titles. Holding the office (title) of a county or region of the tribe or nation involves being on that land and maintaining it, essentially maintaining the environment, which entails hunting and fishing during those activities.

The dispossession of the Non-Status individuals has been a cumulative blow to the civil, political, economic, social and cultural feasibility of the peoples, even while their over-arching right to self-determination and to dispose of their natural wealth has been violently suppressed.

Education and Health Care

Non-Status Indians cannot use the medical travel subsidies, dental services, educational grants and awards, or medical programmes available to Status Indians. These subsidies are available to Status Indians in tacit recognition of treaty rights, and, in non-treaty areas, in lieu of treaties.

While Barbara Cunningham in Alberta was resident on the Peavine Metis Settlement, she applied for Indian Status because she needed the medical support available to Status Indians. After being registered as a Status Indian, she discovered she was no longer allowed to live at the Peavine Settlement. In the Supreme Court of Canada, Alberta v. Cunningham, 2011, her case for return to Peavine was rejected on the grounds that the Alberta Metis Settlement Act was an ameliorative program aimed at assisting disadvantaged groups, and now that Cunningham had Indian Status she could no longer be considered part of the disadvantaged group which that ameliorative program was aimed at.

 

Indian Act

The Indian Act is the federal legislative source of a gross number of human rights violations. Since 1876 this Act has legislated the removal of children from their own People’s homeland to Indian Residential schools; confinement of Status Indians to Indian Reserves; arbitrary relocation of Indian Reserves; the criminalization of up to 200 acts of Indigenous civil, political, economic, social and cultural life; failure to provide medical services; and has effected general racial prejudice within Canadian society.

Indian Status is not an enviable designation, and yet the withholding of that Status to Indigenous individuals who qualify for it – who qualify to live on the reserve of their people and vote in matters concerning them, has been a further source of violations to the self-determination of the Peoples, or at least the physical ability to take action to regain that self-determination as a group. Non-Status Indians bring no financial allocation per-person to the Indian Band, and therefore no resources to build housing, infrastructure, educational or medical facilities. On the other hand, the government awards Indian Status and membership in an Indian Band to individuals without any notice or discussion with the Band in question.

The Indian Act has been used to divide the groups (by making some Status Indians and some not) and then force relocation of Non-Status members of the groups owing to lack of reserve lands and lack of on-reserve housing and lack of service to Non-Status Indians on-reserve; to remove children from the groups; to impose conditions of life which have demonstrably effected the physical destruction of the groups, in part; to legislate a category of non-persons, i.e. Status Indians, which has incited racial prejudice resulting in a centuries-long epidemic of Canadian violence against Indigenous Peoples including killing members of the Indigenous groups; and, having made Status Indians not persons but wards of the state, members of the groups were sterilized in medical institutions, particularly children who were hospitalized during their detention at Indian Residential Schools.

 

Non-Status Organizations

So many Indigenous individuals were denied Indian Status that in 1969 the British Columbia Association of Non-Status Indians (BCANSI) was formed. This organization had two parallel purposes: to advocate for the health, education and housing of Non-Status Indians who, naturally, lived off-reserve; and to pursue the designation of Status Indian for the people it represented.

BCANSI became the United Native Nations, which is active today. This organization advocates for Non-Status Indians, and for Status Indians who live off-reserve and are prohibited by lack of proximity to their Indian Band from availing themselves of the various health, housing and education subsidies they are allowed under federal law through their Indian Band. Those subsidies are inadequate to serve the Status Indian population by at least 50%, so there is a general need aside from the Status / Non-Status eligibility problem.

By 2014, when the Daniels v. Canada decision against a federal fiduciary obligation to Non-Status Indians was made, on the basis of the “unrecognizable” character of Non-Status Indian people, organizations with memberships of Non-Status Indians had been around for half a century. The Supreme Court of Canada decided that those individuals who had a right to Indian Status should simply apply for it and have their cases decided on individual bases. The Non-Status Indian organizations continue to exist precisely because there is a large block of people who cannot win those individual cases, in spite of their eligibility and the support of their Indigenous People of origin, because of the lack of accommodation in the criteria for Indian Status eligibility in the Canadian process.

The Congress of Aboriginal Peoples (CAP) is one of five Aboriginal Representative Organizations recognized by the Government of Canada. Founded in 1971 as the Native Council of Canada (NCC), the organization was originally established to represent the interests of Métis and Non-Status Indians. Reorganized and renamed in 1993, CAP has extended its constituency to include all off-reserve Status Indians and Non-Status Indians, Métis and Southern Inuit Aboriginal Peoples, and serves as the national voice for its provincial and territorial affiliate organizations. CAP also holds consultative status with the United Nations Economic and Social Council (ECOSOC), which facilitates its participation on international issues of importance to Indigenous Peoples.

 

  1. Conclusion

The device of Indian Status enabled state control over the Indigenous identity. A “Status Indian” in Canada has constitutionally recognized rights, is owed federal fiduciary obligations. The imposition of the state-organized and geographically static “Indian Band” with an “Indian Reserve” – to the exclusion of recognition of Indigenous Peoples as Peoples who form their own political status and determine their own membership – allowed the state to reorganize and redefine membership in the groups according to Indian Status. It thereby enabled the reduction of the registered population of the groups by refusing Status to eligible individuals on mean and arbitrary bases.

The militaristic enforcement of restrictions on location and federal subsidy of individuals with Indian Status physically divided Indigenous Peoples by refusing inclusion of Non-Status individuals within the geographic and economic corrals of Indian Bands.

The refusal of Non-Status Indians’ participation in the political life of the groups’ only state-recognized decision making mechanism, the Indian Band, ensured an incomplete and unbalanced representation of the interests of the groups – at least the limited, on reserve interests.

The refusal of economic subsidy to Non-Status members of the group, combined with the total impoverishment of Status Indians on reserve, created a situation where families were forced to abandon the care of their Non-Status members in a protracted time of desperate need. Non-Status Indians had very few resources in the colonial world, where racism against them is rampant.

The denial of Non-Status Indians’ state-recognized rights, within the illegal occupation and police administration of the Indigenous Peoples’ nations, including the Aboriginal rights to hunt and fish, created a social and cultural gulf between individuals of the same group.

The particular vulnerability of women to losing Indian Status through marriage created sexist discrimination within the groups.

The forcible imposition of the Indian Act criminalized most expressions of Indigenous civil, political, social, economic and cultural life since its inception, with greater and less severity at different times since 1876. The rights of Status Indians were grossly impoverished in comparison to Canadian citizens.

The Indian Act set out an undesirable, punitive regime over Status Indians and rewarded relinquishment of that status, at least in terms of providing an escape from the Indian Act and recognizing basic human rights of a person. This created a very great, but unknown, number of today’s Non-Status Indians.

The ultimatum provided by the choice to relinquish Indian Status was cruel and unusual, asking individuals to give up identity, Aboriginal rights, tax-free status, increased educational subsidies, the right to live on reserve or “at home,” and medical and dental subsidies in exchange for freedom of movement, the right to vote in provincial and federal elections and the right to own land.

The Indian Act is unconstitutional. It is also internationally repugnant, violating every human rights treaty to which Canada is a party.

The response of the Indigenous Peoples to identify those of their members who had been deprived federal recognition as “Non-Status Indian” was a measure that correctly relegated the “Status Indian” designation to a corner of the collective mind which recognized Canadian interference in the formation of Indigenous identity, and countered it by formally recognizing that an ‘Indian” was a person over whom the state did not have the definitive hold. A person without “Status” (i.e. government recognition) may still be an “Indian” (i.e. a member of the group). This is an expression of self-determination which, even within the imposed realm of the Indian Act, demonstrates an exercise in the right to identity and nationality and a rejection of the state practice of defining membership.

The invention of the Indian Act and its application of Indian Status to exclude Indigenous persons from protection under the Canadian Charter of Rights and Freedoms was a crime that was not remedied until 2010. The application of this legislation to independent Indigenous Peoples with whom neither the British crown nor the crown in right of Canada have formal, explicit treaties, and to Peoples with treaties that provide otherwise, is an invasion and forms the basis of an ongoing illegal occupation.

Indigenous individuals have long since self-identified as “Indians,” a testament to the ruthless and complete assault on their own nationalities. The theft of those national identities, by punishment, torture, extravagant and humiliating denial, and the provision for the occasional entitlement or most basic exercise of survival for sufferance of the imposed identity, such as hunting or fishing rights, must be considered a crime against humanity. Indigenous nations, however long they have been denied, have by no means been destroyed and the rights of those Peoples to remedy and repair are incontestable.

The state-serving unilateral decision to withhold or award Indian Status has allowed Canada to meaningfully reduce the number of people to whom it recognizes fiduciary obligations and constitutional rights, as well as to meaningfully and forcibly dislocate, dispossess and alienate members of the groups. The harms caused by that practice are by now largely historical, meaning that the harmful results have been entrenched over generations and the intended damage caused by division and denial of identity is done (IACHR, Missing and Murdered Indigenous Women in British Columbia, Canada, 2015) – even while Non-Status individuals today seek the right to belong with their people under whatever inhuman regime overbears that right.

Indigenous Peoples deny Canada’s right to define their membership or their rights (IACHR #12-929, Edmonds v. Canada; Myers, Network for Native Futures, 2015).

The best way to restore the right to identity and the right to nationality of Status and Non-Status Indians is to effect the internationally overseen decolonization of Indigenous Peoples throughout Canada (Martinez, 1999; deZayas 2013); to protect all the rights of Peoples – firstly the rights to self-determination, to freely dispose of natural wealth and to in no case be deprived of their own means of subsistence (114th CCPR, the Committee’s Concluding Observations for Canada); and to hear the complaints of the Indigenous Peoples against Canada in a binding, third party independent and impartial tribunal.

 

“Establish Indigenous titles,” UN tells Canada

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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 7th and 8th 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.

Lil’wat Roadblock 1990 -to- Lil’wat statement to UN 2015.

More than 60 Lil’watemc were brutally arrested for blocking the Lillooet Lake Road. 25 years later, still pursuing justice and a Lil’wat future.

BC Supreme Court never allowed the Lil’wat defenders to deliver their legal defense in court.

The Lil’wat argument was that Canada has no treaty with Lil’wat and it therefore has no jurisdiction on Lil’wat territory. Neither does the RCMP. So the scenario of RCMP officers arresting Lil’wat people for defying a BC court injunction in Lil’wat territory was an illegal, extra-territorial move by Canada and unjustifiable at law.

25 years later Lil’wat is still suffering for Canada’s occupation of Lil’wat nation territory. The argument remains the same.

The resources leave, the environmental damage is catastrophic and the people are poor. Traditional government carries on at the office of the kitchen table, being unwelcome at the multi-million dollar Band office which accepted about $70 million from the province to go along with the 2010 Winter Olympics in Lil’wat territory.

Lil’wat Elders and sovereigntists pursue international remedies, with the case Edmonds v. Canada at the Inter-American Court of Human Rights, Washington DC.

And they send communications to the UN treaty bodies. Canada’s occupation of the unceded nations of Turtle Island, and its justification for doing so – the Doctrine of Discovery and Canada’s repeated assertion that the inclusion of Aboriginal rights in the Canadian constitution is superior to Canada’s obligations under international law – are completely indefensible.

The following is a statement from Lil’wat to the United Nations Human Rights Committee on the occasion of the 6th review of Canada under the International Covenant on Civil and Political Rights:

“Líl’wat is concerned with the realization of its rights equal to other humans; its freedom and independence. We have always maintained and continue to maintain that we are a free and independent state.
“This has been acknowledged and publicly confirmed by our neighbouring nations. The international community of States Parties to the UN Charter have yet to recognize our political status however it must be noted that Líl’wat people have not been a participant in the creation or ratification of international human rights law. The resulting mechanism is therefore unable to provide a forum for the resolution of existing issues between Canada and Líl’wat.
“While Líl’wat is being referred to as “Aboriginal,” “Indian” or “First Nations,” by Canada, and referred to as an “Indigenous People” in the UN, we are Líl’watmec of Líl’wat. Líl’wat has no treaty with Canada. Líl’wat has never freely determined our political status as being integrated in any way with Canada.
“Líl’wat refuses to be treated as if it was a Canadian minority group and has therefore limited its participation in the 114th Session of the ICCPR to presenting this simple question:
“When will the International Community of States address the occupation of Líl’wat by Canada, by assisting in the formation of a third party, impartial, independent tribunal to hear the international dispute between Líl’wat and Canada?”
The statement to the Committee included the text of the 1911 Declaration of the Lillooet Tribe, and a link to the 2006 thesis of Lynda Jean Crompton at UBC, “Prisoners of Democracy: The Lil’wat right to an impartial tribunal; an analysis of the Lillooet Lake roadblock case.”

UN Human Rights Committee questions Indigenous crisis in Canada

The Human Rights Committee questioned Canada in twenty different areas concerning the human rights of Indigenous Peoples.

The United Nations Committee members were “alarmed” by a number of basic Indigenous statistics and determined to find out “why” the state does not legislate constitutionally protected aboriginal and treaty rights; “how” the state was going about improving education and health outcomes; “what” targets the state has set for reducing Indigenous poverty; “when” the state would respond to the Truth and Reconciliation Commission’s Call to Action; “who” was being prosecuted and investigated for the widespread violent crimes against Indigenous women and girls; “where” aboriginal titles are being recognized and affirmed.

But the state did not answer any of those questions directly.

Over the course of two public meetings, July 7th and 8th in Geneva, Canada’s lack of compliance with the International Covenant on Civil and Political Rights (CCPR) was exposed and explored. The state’s contempt for the Covenant, refusal to acknowledge its application in Canada, and naked disinterest in making any attempt to meaningfully live up to the standards of this human rights instrument – which it ratified in 1949, where Indigenous Peoples’ rights are concerned, were literally confirmed by Canada’s delegation itself.

Indigenous Peoples have given everything to the struggle for their future and the sustainability of their lands and cultures, and they have also given the Committee a lot of detailed information about their struggle which informed the interview this week. This article is a point-by-point review of the questions which were asked of Canada and the answers, redirections, or silences, that were provided in response.

The Committee created a List of Issues (LOI) for Canada to respond to, and Canada provided a written response three weeks before the formal, public meeting where these further questions were asked.

Many Indigenous nations and peoples do not participate in this process because they do not agree that Canada has the right to report on them, as if they were a minority population within Canada’s citizenry, to the treaty bodies. These nations would like a place for themselves, to ratify the Covenants when appropriate and to speak to the treaty bodies about their own nation’s implementation of international human rights law.

Many Peoples did participate in hopes of promoting international recognition of Indigenous Peoples’ rights beyond the minority rights outlined in Article 27 of the Covenant, where Canada reports on them, to the more appropriate peoples’ rights outlined in Article 1. The first and second paragraphs of CCPR confirm the rights of all peoples to self-determination; to freely dispose of their natural wealth; to never be deprived of their own means of subsistence; and to freely determine their political status. Unfortunately the Committee did not make this leap and concerned itself mainly with Aboriginal rights, as defined by Canada, in the following areas.

The “precarious situation” of Aboriginal peoples in Canada

Land rights, Constitutional rights, and Aboriginal title:

“I fail to understand why constitutionally protected aboriginal rights are not specifically defined in legally enforceable terms.”

Questioning the uncertainty and lack of access to justice faced by Aboriginal peoples, several Committee members asked for clarification of Canada’s written response.

“There are concerns that disputes over Indigenous peoples’ rights to benefit from and control lands are continuing,” Dr. Anja Seibert-Fohr reiterated LOI Questions 19 and 20. “Part of the problem appears to me to be the uncertainty of the scope of aboriginal titles and rights. I fail to understand why constitutionally protected aboriginal rights are not specifically defined in legally enforceable terms.”

Dr. Seibert-Fohr was following up on a request for clarification made by Committee Member Margo Waterval: “What do you mean when you say Aboriginal court cases take a long time “due to the complexity of Aboriginal law and the interests at stake”?

Frank Wheldon[i] of the Canadian delegation had answered: “Section 35 of Canada’s Constitution recognizes and affirms aboriginal and treaty rights, but they’re not specifically articulated. The Canadian courts have provided guidance to interpret that section and identify those rights as well as justifiable limitations on those rights. With that said, defined aboriginal rights are specific to an aboriginal group. In that sense, one finding of aboriginal rights does not mean that other aboriginal groups have that right. Every case is a new case. And in each of those cases there are questions of title, harvest, rights to consultation. So, recognizing the delays before a judicial resolution, the government much prefers addressing those issues through negotiation rather than letting them get to court.”

Dr. Seibert-Fohr continued her question to Canada: “It appears the “case by case” approach is the very reason for the difficulties and uncertainties faced by Aboriginal peoples. I can understand the reluctance around creating fixed definitions of titles, for fear it might limit the application of future developments, but we are all lawyers here and we know how those eventualities can be addressed.”

“But without such clarification, it is difficult to rebut the assertion that the state attempts to extinguish Aboriginal rights, and not to honour historical treaties and arrangements.”

Wheldon addressed this very accurate observation as follows: “As elegant as it may be to articulate and implement rights uniformly, what has come back to us is the diversity of rights and diversity of circumstances in which those rights are claimed, which does not lend itself well to specific articulation of rights. Government favours establishment of land claims or modern treaties with Aboriginal groups.”

“Associated with that question was extinguishment. It is in reality a question of a clarification of rights and creation of certainty. There are a range of certainty techniques (he says there are too many to mention), but the objective associated with this is to articulate rights for certain groups. These rights can evolve over time, this is a practice recently introduced into negotiations around Section 35 rights.”

It is a fact that in the early days of the BC Treaty Commission their website featured a glossary. Under the entry “certainty,” it said “See extinguishment.” And nothing about that has changed.

The unqualified remark about evolving treaty rights must be checked: only rights pertaining to law making powers, or civil, social, cultural rights, may evolve. Land rights and rights to resources are specifically exempted from any evolution post-Final Agreement, according to the federal government’s commissioned study by Douglas Eyford, “A New Direction: Advancing Aboriginal and Treaty Rights.

 

Missing and murdered women, violence against Indigenous women and girls and… domestic violence?

The Committee spent a great deal of energy asking and repeating questions to the state delegation to get information about whether there would be a national inquiry into the missing and murdered women and how, for example, the Pickton murders continued unchecked for so long. They asked what the state is doing to address the high levels of violence against Indigenous women and girls, “and my question is not only about impunity, it’s structural. What is the state doing to address this elevated level of violence against Aboriginal women in society at large?” They asked, repeatedly, whether the recommendations made by visiting human rights bodies, the report by the Committee for the Elimination of Discrimination Against Women (CEDAW) and the report of the Inter-American Commission on Human Rights (IACHR) would be implemented, and how and when that would take place.

Canada’s response was not immediately believable, and Committee members repeated their questions during the first opportunity for follow-up.

The Canadian representative said, “I’ll be speaking to statistics from an RCMP perspective.” She read from the 2014 RCMP national overview report, and came to an unexpected conclusion. The Committee was told that Canada would be launching an extensive action plan, in fact it had been launched in April this year, featuring the key elements of addressing domestic violence on reserves, building more shelters for victims of domestic violence, supporting families with getting information on cases of missing women, and delivering programs for men and boys to help them stop acting out intergenerational displays of abuse.

Once the Canadian delegation was invited to respond to the follow up questions, the same questions as were asked in the first place were repeated, the Canadian delegate repeated her list of action items grounded in the RCMP’s 2014 report – support for victims, community based programs aimed at domestic violence, and better information sharing with victims’ families.

The question of implementation of the IACHR or  CEDAW reports was not broached, not until Martha LaBarge, Canadian Heritage, touched on the matter of the Human Rights Committee’s rightful ability to give Canada direction on Civil and Political Rights implementation – being the treaty body constituted by the Covenant, populated by independent experts, and therefore capable of making recommendations to states.

LaBarge responded to the Committee’s questions about how Canada views the Committee and its recommendations; whether the state intended to act on the forthcoming concluding observations which it is about to offer the state. She noted that there has not been a First Ministers’ conference since 1988. “We may have another one soon. This may help Canada receive and use the recommendations of the UN, including the IACHR report on missing and murdered women.”

LaBarge elaborated on the Missing Persons Acts of British Columbia and Manitoba, carefully explaining police protocol and special powers in the case of a missing person, which, she said, “may include a missing or murdered Aboriginal woman.” British Columbia has developed standards for reporting a missing person, effective in 2016. There is also state support for bias-free policing.

Canada’s response to the most outrageous, long-term ongoing crimes against Indigenous Peoples on the most painful subject of their oppression, the violence against the women and girls by non-Indigenous men who dump their bodies in shallow graves, was stunning in its bald refusal to address the questions being put directly to it. Questions the RCMP themselves, not their 2014 report, helped form by their well-known complicity in ensuring impunity for perpetrators of this kind of crime, if not actively participating themselves. The Oppal Commission featured a Coquitlam cop who couldn’t help staging the abduction of a dark haired woman from the downtown Eastside of Vancouver, and then a series of torture pictures, all while working directly for the BC Commission of Inquiry into Missing and Murdered Women.

Canada’s refusal to acknowledge the depth and breadth of this issue may be one of the most revealing actions of the “systemic discrimination” reported by the IACHR earlier this year.

The state representative named only “Jessica” (Laurie Wright, head of the delegation, did not introduce her colleagues especially extensively), told the Committee: “Canada has already provided the Committee with extensive reports and information on programs to address and prevent these crimes, including the RCMP overview which provides facts on which to base ongoing efforts.” She added information about a $200million program over five years to build shelters and carry out the “priorities” mentioned above by the state delegation. A new program for victims of violence “nationwide” has earmarked $30 million of a total $100 million over ten years to go to First Nations and Inuit health – that fund is now receiving applications from organizations that deal with domestic and family violence.

A Canadian delegate named (approximately) Lily Paul Nieuwe explained the “third government plan of action, 2012-2017, to address domestic violence and children exposed to it. This plan includes measures for aboriginal people. The plan is the result of broad consultations by government with 75 organizations, including women’s groups and Aboriginal women’s groups.”

The plan is apparently designed “to meet the needs of Inuit and First Nations; older persons; members of the Lesbian, Gay, Bisexual and Transgender communities; as well as men who are victims.” Lily Paul says building shelters is an urgent priority: “there are only one hundred shelters in Quebec, which is an aboriginal area.”

Miss Waterval had been one of the first Committee members to question Canada on the level of violence against Indigenous women: “You stated the RCMP released a national operational overview; so what was the legislation adopted in British Columbia and Manitoba in response to the report? And you did not answer, in the written report, the number of investigations, prosecutions and sanctions imposed in cases of disappearance and murder of Aboriginal women. Please reply to that. And is it true that most disappearances and murders remain unsolved?”

 

Legislation which impacts Aboriginal peoples, without consultation

Dr. Seibert-Fohr: “Could the delegation explain specific cases of consultation with Aboriginal peoples regarding the Canadian Environmental Assessment Act, the National Energy Board Act, the Fisheries Act, the Navigable Waters Protection Act, and the Jobs and Growth Act.* What remedial measures have been taken since the complaints we have heard that there were no consultations on changes to those federal Acts?”

The Indian Act was also referenced in the context of the report of the Special Rapporteur on the Rights of Indigenous Peoples’ visit to Canada in 2013. “The Indian Act was described as a rigidly paternalistic law at its inception, which structures aspects of Canada’s relationship with Aboriginal peoples.” The Committee expressed the view that amendments to the Indian Act have not remedied sex discrimination in the Act, where male Status Indians’ grandchildren have full Status but female Status Indians’ grandchildren have second-class Status.

Wheldon replied to this, “The government is committed to an incremental approach to reform and to give First Nations more control over their day to day affairs.” The state representative indicated that there are too many recent changes to the Indian Act to mention but that these are easily accessed (online). He redirected the Committee’s attention to the recent adjustment of the Indian Act to recognize the matrimonial property rights of women on Indian Reserves, and then replied to the “number of issues regarding discrimination in the Indian Act. Bill C-3 was a significant step forward for that. A Special Rapporteur has been appointed by the Minister to look into grievances in the registration process.” He characterized this form of resolution as an ongoing process, with discussions ongoing.

 

Abiding the Human Rights Committee, in Canada

At least three of the Canadian delegates repeated the statement that the CCPR has no force or application in Canada. This Covenant was ratified by Canada in 1949, and the government’s website indicates compliance with international human rights treaty bodies.

In his closing remarks, the Chair of the Committee reminded the assembled that it is the Treaty Body’s interpretation of the issues at hand, and their concluding observations and recommendations, which carry weight; not the state party’s interpretation of those observations.

Deprivation of liberties of persons of Aboriginal heritage

Canada readily agreed the number of Aboriginal inmates in prisons is disproportionately high compared to the Aboriginal population in Canada. When asked how the state was addressing this over-representation, Canada’s delegation told the Committee they were building more facilities to hold all the prisoners. They said the same thing in response to the Committee’s “alarm” at the high rate of Aboriginal youth in prison. The Committee’s question was presumably aiming at how the state would address the root causes of the criminal activity, obvious causes like poverty and powerlessness, and thereby decrease participation in the criminal justice system.

The committee member’s question, pursuant to an area of the LOI, was: “In view of the statistical over-representation of Indigenous people in jails, and that statistic on the rise, please describe the effectiveness of the programs put in place. What measures has the government taken with Aboriginal communities to prevent over-representation?” Miss Cleveland asked for this clarification, and continued, “What steps are taken to implement alternatives to imprisonment?” She echoed the earlier written request for disaggregated data on Aboriginal individuals who had benefitted from community-based corrections. Noting the over-representation of Aboriginal women in prison, she asked for data on those numbers since 2013 and asked, “how many are in maximum security? How does this compare to the classification of non-Aboriginal female prisoners in maximum security? What steps are taken to address this?”

The state did not reply.

The Committee was informed that in Canadian prisons, “disciplinary segregation” has a maximum extent of 30 days, for one offense (committed while in detention), or 45 days for multiple offenses. This information is not, however, consistent with incidences of segregation and solitary confinement which, although these matters were not raised in the CCPR review, are reported to be a regular Aboriginal experience in Canadian prisons. According to a recent report by CBC news, some Aboriginal inmates at the Regina Correctional Centre are confined to their cells 21 hours a day sometimes for months and even years. One former inmate did not set foot outside for several years.

Meanwhile, the Committee was told that the Corrections Release Act provides a framework for engaging with Aboriginal communities, and sections 81 and 84 of that Act allow that at any time, an Aboriginal inmate can be transferred to the care of a community. However, another recent CBC report indicates that nearly 85 per cent of aboriginal offenders are detained in federal prisons until they have served two-thirds of their sentences, at which time most offenders are entitled to statutory release, compared to 69 per cent of non-aboriginal offenders. Apparently, problems with securing housing and high caseloads for legal aid lawyers contribute to longer wait times for release of aboriginal inmates in federal prisons.

Committee members asked about the effectiveness of the Aboriginal Court Worker program and they were assured by the Canadian delegation that its clients have reported a satisfaction rate of over 95%; the program has reduced times for court processes and that courts themselves commend the program. Canada’s delegation stated that the Aboriginal Justice Strategy reaches 800 Aboriginal communities (“Aboriginal” includes Inuit, First Nations and Metis), and a recent review of the program shows recidivism among those who used it.

“Canada is committed to culturally appropriate (incarceration). Canada recognizes that Aboriginal people are over-represented at all stages of the criminal justice system, including as victims. Judges take into account an offender’s Aboriginal heritage and accompanying circumstances during sentencing.” While Aboriginal persons are in custody they have access to cultural programs, Elders’ visits, and community re-integration support. Canada continues to develop community based solutions.”

 

Poverty and Food Shortages

Mr. Wasawa: “The problem of food shortages among Aboriginal peoples has been raised. How does the state address this? The UN Special Rapporteur, James Anaya, reported alarming data on poverty among Aboriginal peoples. Does the state party have a specific target for poverty reduction in tackling this area?”

The state reply was delivered by Wheldon, who identified Canada’s first priority as the Nutrition North food subsidy program, which serves Inuit regions. This program has an annual budget of $60million and has recently been increased by $11million. “More broadly, regarding food security, it is addressed through a broad range of programs: Income Assistance on reserves; economic development initiatives, a framework set out on the economic development side; Aboriginal entrepreneurship programs and the development of Aboriginal human capital; development of Aboriginal assets; facilitating partnerships with other communities; strengthening the federal role in economic development: and there is the bedrock of strengthening Aboriginal food security.”

It is interesting to note that Article 1.b of the Covenant on Civil and Political Rights declares that “in no case may a people be deprived of their own means of subsistence,” and yet this is exactly what is being described by Mr. Wheldon. The total economic assimilation of Aboriginal communities. He does not mention anything about restoration of the decimated deer herds, salmon runs, or optimal berry producing areas.

 

UN Declaration on the Rights of Indigenous Peoples

Frank Wheldon, Aboriginal Affairs, addressed the Committee’s questions about Canada’s approach to the Declaration: “Regarding the UN Declaration on the Rights of Indigenous Persons,” he began.

The state party’s deliberate and pervasive use of inaccurate and derogatory terms when referring to Indigenous Peoples deserves its own unique examination. The number of instances of misuse of the term “Aboriginal peoples” in Canada’s written response, for example: “Aboriginal peoples off reserve are eligible for programs and services available to all Canadians,” paragraph 111, makes any accurate use of the internationally legally defined term “peoples” absolutely meaningless.

The state representative’s reference to a non-existent Declaration on the rights of “Persons” was not well received by the otherwise silent public audience of about 60 people, but was rejoined with an uncontrolled fit of derisive laughter. It sounded like a deliberate insult.

Wheldon then said, “The Declaration is not legally binding nor does it reflect customary international law. We are in partnership with Aboriginal people to make a better Canada, within the framework of the Canadian constitution and the 2010 statement of support for the Declaration. It’s an aspirational document.”

The Aboriginal Title Alliance submitted an extensive report to the Committee with further information and documentation on the List of Issues, as well as a brief memorandum on the importance of Article 1 to Indigenous Peoples. The report was driving to the need to have Canada report on implementation of self-determination by Indigenous Peoples, not to continue reporting on each aspect of daily Aboriginal life as if the dozens of distinct nations were ethnic minorities needing program management.

The Indigenous Peoples and Nations Coalition delivered a message to the Committee regarding Canada’s public session. Referencing the Report to the General Assembly of Alfred de Zayas, the independent expert on the promotion of a democratic and equitable international order, the statement reminded the Committee that the Indigenous nations “in” Canada may be referred to the Special Committee on Decolonization. Referencing the report of Miguel Alfonso Martinez on Indigenous treaties and constructive arrangements, Ambassador Ronald Barnes reminded the Committee that the burden of proof is on the state to show how it acquired jurisdiction over Indigenous Peoples, and that they do have the right of Article 1, the right to self-determination and equality as peoples.

 

“Engagement”? Or “Consultation” and “Accommodation”… or “Consent”?

Free, prior, informed consent is one of the provisions in the Declaration on the Rights of Indigenous Peoples. The Declarations announces that Indigenous Peoples have the right to be so informed and to consent before any developments take place in their lands.

“When Canada issued its statement of endorsement (of the DRIP, in 2010) it reiterated concerns regarding the provisions of free, prior, informed consent.” Frank Wheldon, replying to one of Mr. Yuji Wasawa’s questions.

Mr. Wasawa prefaced his question by explaining that he is a former member of the Permanent Forum on Indigenous Issues, and during his time there he “learned a lot.” He asked a string of questions further to LOI #19.

“Canada was one of only four countries who voted against the Declaration on the Rights of Indigenous Peoples in 2007. However, in 2010 Canada endorsed the Declaration. What made the government change its position?

“It is reported that Canada endorsed the Declaration with many reservations. How does the state party view the Declaration now? Has it changed its policies in light of the Declaration? In particular, how does the State apply the principle of free, prior, informed consent with respect to lands development and impacts on Aboriginal communities?”

Dr. Seibert-Fohr: “We are aware that consent is not happening in all areas although the Supreme Court of Canada acknowledges this right. As a consequence, Aboriginal peoples are forced into long court processes to protect their rights. Is it true that the state allows developments to continue in cases where consent has not been acquired?”

“I wonder why the government uses the term “engagement,” there is no legal definition for that term, instead of “consultation”? And why is there no legal framework for consultations with Aboriginal peoples? We know there are frameworks for public consultations regarding environmental assessments, this could be possible for consultations with Aboriginal peoples too.”

Wheldon spoke to the majority of issues particular to Indigenous Peoples. “From a Canadian perspective,” he continued, meaningful consultation and accommodation is central to reconciliation, which” he then provided a familiar Supreme Court of Canada quote, “is part of the process of reconciling the pre-existence of aboriginal societies with the sovereignty of the Crown.”

“In Canada, consultation is a process by which the rights of Aboriginal people are taken into account. Canada believes in a process of consultation and accommodation where individuals and people are more fully involved and consulted where their rights and interests may be affected.”

“There are a range of consultation processes ongoing about the consultation process, to ensure adequate consultation with Aboriginal groups.”

 

“Growing tensions” between the state and Indigenous Peoples

“In Question #19.a, the Committee asked about the “growing tensions” between the state and Indigenous Peoples. Could the state delegation provide us with a more specific response,” Mr. Yuji Wasawa asked.**

Canada’s written response took Question 19.a as an opportunity to say that “The Government of Canada works closely with First Nations, Metis, and Inuit groups in Canada; specifically with separate Aboriginal representative organizations and other stakeholders, to address the different challenges and opportunities facing their communities.”

It is worth noting Canada’s clarification that it prefers to work with umbrella organizations – who are government funded and have no clear mandate from the voters whose elected community officials end up in “seats on the Board” out of habit or as per government expectation and accompanying per diem, as in the case of the Assembly of First Nations[ii]. The state mentioned the Crown-First Nations Gathering as an example of this good work.

The state party went on to describe how it is “working hard to ensure constructive engagement with willing Aboriginal partners,” etc, but did not, in nine paragraphs, touch on any obvious, recent conflicts and confrontations. Not even the Miq Maq crisis of Fall, 2012, regarding fracking in their territory and their accompanying rejection of their historic treaty with Great Britain; or the alliance of Nations throughout the west coast and watersheds who are preparing to blockade attempts to develop the Enbridge Gateway pipeline; or the various marches on mining companies’ AGMs in downtown Vancouver, demanding a halt to new projects and action on the Mt. Polley mine tailings spill into the Fraser watershed.

The state delegation did not respond to the question about “growing tensions.”

 

Over-representation of Aboriginal children in Child Welfare system

“Lastly, on the Child welfare front,” said Frank Wheldon, perhaps unconsciously slipping back into the tactical language believed to be used most often in his offices within Canada’s Department of Aboriginal Affairs, “there is a shift to move to a preventative approach. It may be too early to establish whether and what magnitude the impact might have… but signs are positive it may yield fewer numbers of Aboriginal children in the child welfare system.” The state representative did not say what those signs were, nor have there been any announcements in Canada pertaining to such a shift, or talk of a consultation process to direct that shift. The most recent and high-profile moment in Canada with regard to Aboriginal child welfare was the highly adversarial case at the Canadian Human Rights Tribunal between the state and the First Nations Caring Society, over the matter of severe under-funding to Aboriginal child welfare agencies.

The state has been asked about programs or monitoring offices which might keep in touch with young people who had been involved in the Child welfare system. The Committee was informed that no such monitoring and feedback program exists at the federal level. Although there are several community and academic research reports on this subject they were not mentioned, but according to Wheldon it would be too “complex” to attempt a follow-up program on a Canada-wide level, given the multiple jurisdictions involved. He said that there are “multiple provincial-level studies” being conducted.

Ms. Waterval had asked about the “alarming” number of Aboriginal children in state care, and the statistical likelihood of an Aboriginal child to enter that system. Wheldon said this too was “complex,” and “I would offer assurances that cases are seen on a case by case basis and decisions based on the best judgment of the people involved. Any differences that might exist there are still outstanding questions as to the full range of circumstances affecting that.”

 

Aboriginal languages

“According to a recent UNESCO report, of 87 Indigenous languages in Canada, 64 are definitely, severely or critically endangered. We are concerned about these alarming statistics and the state of Aboriginal languages in Canada. Canada’s written response noted the Aboriginal Languages Initiative, but made no mention of what contribution is made by the ALI and its achievements; please explain.

“We note the state has not moved forward on implementing the results of its Task Force on Aboriginal Languages and Cultures, 2005, and has not followed up since the “stakeholders” could not agree on a method of implementation of the recommendations. Please explain this lack of agreement.”

Martha Labarge, Director General of Canadian Heritage, replied for Canada. She read from a recent press release summarizing the purpose and objectives of the ALI, but did not answer the question concerning the lack of agreement by the 87 different language speaking peoples, nor did she clarify that Canada had imposed the condition of a single, agreed implementation strategy on those 87 peoples, or it would not fund implementation of the Task Force recommendations at all. Not surprisingly the 87 peoples, ranging from east coast to west coast, across the Great Plains and up into circumpolar regions, could not come up with a single implementation strategy that would suit all their needs. The Task Force report sits on a shelf. The federally conceived ALI has $5million annually, and apparently the expected results of the ALI program include: “Aboriginal people have access to community-based projects and activities that support the preservation and revitalization of Aboriginal languages and cultures; Aboriginal communities are assisted in their efforts to enhance languages and cultures; and Aboriginal languages and cultures are preserved and enhanced as living cultures.”

The ALI and its $5million annually is the sole federal funding source for language revitalization in Canada.

Some Indigenous observers were concerned when the Indian Residential Schools Survivors Settlement Agreement compensated people, through the “Common Experience Payment,” for “loss of language, culture and family life.” They seem to have accurately predicted the end of federal funding for language revitalization. Even the Board of the BC First Peoples’ Heritage, Language and Culture Council is getting advice from its Board of Directors to accept financial support from such unlikely places as Enbridge, since government sources are evaporating.

In a Note to Canada concerning Laurie Wright’s opening remarks about Canada, the Indigenous World Association observed, “We could not help but notice in your opening remarks to the Human Rights Committee that Canada had two official languages, English and French, and about 200 ethnic languages. We were very surprised at this. We didn’t think Canada had so many ethnic languages so we started to list them: Italian, German, Dutch, Russian, Welsh, Spanish, Portuguese, Greek, Slovakian, Latvian, Estonian, Lithuanian, Irish, Turkish, Hebrew, Arabic, Persian, Polish, Hindi, Bengali, Punjabi, Tamil, Burmese, Vietnamese, Cambodian, Mandarin, Japanese, Filipino and Swahili. These are all that we could list. We would like to see the list of 200 that you have.

We were very disappointed that you did not mention Indigenous languages to the Human Rights Committee. I am sure they would like to know that Canada has not wiped out all the Indigenous languages in Canada. After all, the Truth and Reconciliation Report of June, 2015, states that the purpose of the residential schools was to “through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.”

If we can be of assistance, here are some Indigenous languages that you should know are still being used: Mohawk, Oneida, Onondaga, Cayuga, Seneca, Tuscarora, Cree, Micmac, Algonquin, Ojibway, Innu, Inuit, Dakota, Blackfoot, Dene, Haida, and many more.

We are very insulted… since you said that you take reporting to the Committee very seriously we have to conclude that your omission of Indigenous languages was deliberate.”

Canada’s choice to define Indigenous languages as ethnic languages is consistent with the condescending tone the written report takes in regard to Indigenous Peoples. Ethnic minorities do not have rights to self-determination which are connected to a land base: Indigenous Peoples do.

 

TRC

Margo Waterval followed up with questions about the Truth and Reconciliation Commission, which Canada mentioned in its June 15, 2015 response to the LOI: “Canada continues to make progress on all aspects of the Indian Residential Schools Settlement Agreement. This includes financial compensation and the establishment of a Truth and Reconciliation Commission.” These efforts build upon the Prime Minister’s historic apology in June 2008, on behalf of the Government of Canada, to former students, their families, and communities for the abuse experienced by many who attended…”.

Waterval asked, “How many children died? Those who survived were estranged from their language and culture. Has the Commission completed its report? And what is the follow up? Is the government intending to accept and implement the recommendations in the report?”

Wheldon replied for the state delegation, “There was a report submitted in June. It’s not the full report, that is expected sometime by the end of the year. The initial report is something governments, not only the federal government, are studying carefully. There are multiple and far-reaching recommendations in the Call for Action. This is a process which will take some time to develop a government position on, and one which will require careful study once the final report is released.”

The reluctance to respond to the TRC report was also notable throughout Canadian media. The Minister’s office turned down a CBC interview; there was no media statement; and politicians were curiously reluctant to step into the news media’s quote-seeking searchlights. To date the government has made no statement to even formally accept or acjnowledge the report.

 

 

Education

Mr. Wasaba questioned the state’s written claim that education and training for Aboriginal people was achieving results; he asked for concrete examples. The state delegation did not provide any, but Wheldon said:

Mr. Wasaba also noted that the plan for First Nations Control of First Nations Education was also off track beause of lack of First Nation support. He asked, “why does this Act (FNEA) not have the support of the First Nation Chiefs? Does the government plan to change the Act?”

Frank Wheldon replied, among a long list of very quickly-spoken rote answers, “It’s difficult to say at this stage why the Act did not pass.” Mr Wheldon could have at least referred the Committee to dozens of news articles quoting leaders in education and elected Indigenous leaders as to exactly why the strictures, lack of funds, concessions, release of fiduciary obligations, and side-agreements contained in the First Nations Education Act caused it to lose all support and even caused the resignation of the AFN National Chief who publicly supported it, but he did not. “The act is in abeyance now, suspended actually, but it’s not off the table completely. There are a number of aspects of the Act which government is willing to advance with willing partners. There are communities willing to work on elements of the education Act, regarding infrastructure and building, which can be inserted into other Acts to continue support for Aboriginal education initiatives. Still, on many of the Act’s priorities there are individual communities and groups if communities and First Nations organizations willing to work to reform the education system on reserves.” Wheldon did not name any of them.

 

Other instances of no reply.

Any developments on the protection of Indigenous Peoples’ intellectual property?

In many cases, such as with the above question, the state did not reply. In some cases the delegates simply repeated the same press-release quality text which gave rise to the question for clarification or specific examples in the first place. They did not run out of time, however. The Chair had plenty of time to fill as the session expired on Wednesday at 1pm after two three-hour sessions beginning Tuesday afternoon.

The Committee asked the Canadian delegation whether the national First Nations organization, AFN, had been involved in the production of the state response to the Committee. It is rumored it was not, but Canada did not answer.

Concerning the land rights of Indigenous Peoples, one Committee member asked: “what steps have been taken and has there been a policy change since the Supreme Court of Canada ruling on the Tsilhqot’in land rights?” No one from the Canadian delegation answered that.

Although Canada fleshed out its response to number 19 in the List of Issues by noting a lot of program funding for such ventures as various self-government programs and First Nations delegated health authorities, they did not reply to this question: “Are self-governing agencies of this kind provided with sufficient resources to carry out these services?” The answer to that question is actually “no.”

 

 

In Summary

A 17 year old Líl’wat’s observation of Canada’s statements during the CCPR meeting:

“You know you’re in trouble when your entire race is lumped in a category with handicapped people, the elderly, offenders and pregnant women.”

 

The Canadian delegation:

Led by: Laurie Wright, Assistant Deputy Minister for the Public Law Sector at the Department of Justice

Paul MacKinnon, Assistant Deputy Minister | Public Safety

Martha Labarge, Director General at Canadian Heritage

Bruce Scoffield, Minister Counsellor at Permanent Mission of Canada to the United Nations

 

“Jessica”

 

And Lily Paul Nieuwe,

 

Apparently representing in sum the: Department of Justice, Portfolio Affairs and Communication, Aboriginal and External Affairs, Strategic Management and Human Rights, Trade Commissioner Services and Operations, International and Intergovernmental Relations, Human Rights Law Section, Ministry of International Relations and Francophony of the Government of Quebec, and the Permanent Mission of Canada to the United Nations Office at Geneva.

 

* A question which was asked in the List of Issues but not answered by Canada’s written reply.

** A question which was repeated during the two-day public meeting.

[i] This spelling is an approximation based on the sound of the speaker’s name being announced by the head of the Canadian delegation, Laurie Wright. No searches of any spellings of this name which sound close produce any results in searches of Aboriginal Affairs websites from Canada.

[ii] The Assembly of First Nations is populated by the elected Chief of every Indian Band (or First Nation). However, it is a rare thing for elected Chiefs to bring home AFN business and hold community referendums on those issues and then return to AFN to represent their community’s interests on the matter at hand. The Recently failed First Nations Education Act, which the national Chief of the AFN participated in developing, is one example of the disconnect. Another example is the “Crown First Nations Gathering” in January of 2015, which produced a “to-do” list that left grassroots and urban aboriginal people amazed at the gap between themselves and the “willing partner” attitude displayed by their Chiefs towards the state government.

First Nation Land Code voted down in Lil’wat

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Elders, traditionalists keep to sovereignty and deny Canada’s offer for “municipal” powers.

On Saturday, March 14, the Líl’wat people voted against a Land Code proposed by their elected Chief and Council.

 

“Líl’wat has spoken. NO land code. 399 NO and 202 Yes.”

“Way to go Líl’wat. It’s not about winning or losing the vote. It’s about the Fight for our Rights. No means that our Sovereignty and our Unceded territory stays intact. We keep our strength. We can keep on keeping on fighting for our Inherent Sovereign Rights.

 

-Tat7ush, Líl’watmc

Líl’wat is one of dozens of Indigenous communities involved in the development of on-reserve Land Codes. These are specific agreements between First Nations and Canada which, if ratified by the community, turn administration of Indian reserve lands over to the First Nation’s elected Council. Land Codes set out dozens of rules and procedures to streamline and standardize their decision making about reserve lands, and those decisions are then recognized by Canadian courts as authoritative. Without a Land Code, assent by the Ministry of Aboriginal Affairs and Northern Development, Canada, is required before First Nations can proceed with their decisions.

The Land Codes have been the subject of widely differing opinions within First Nations whose elected Chiefs and Councils are pursuing them. In the Líl’wat experience, a group of Elders have met regularly over the past year to coordinate sharing of information about the potential impacts of a Land Code, and to encourage a vote of “no.”

Rosa Andrew, a Líl’watmc woman and elementary school teacher, explained the reason for that:

“The land code was giving us control of the reserve land and our people said, why talk about reserve lands when we own 100% of our territory? Why have the queen give us permission to administrate on these reserve lands, when we never agreed to live in this little area and we never gave up any of our lands to her. It [the Land Code] was a form of consent, giving our consent to giving up the rights to our territory.”

 

That is perhaps the most significant reason for the “no” vote, but it is not the only one.

Land Codes come with a substantial budget for development and promotion towards community ratification, but those who seek further scrutiny or oppose the Land Code are not funded to promote their arguments and investigations.

Looking more closely at the Land Code, as people in Lil’wat did on their own time and resources, there is very little financing indeed for implementation of the new administrative powers. In the first two years of implementation, Líl’wat would have received $280,000 for administrative operations, including transition funding. After that, federal funding to the Líl’wat administration of its reserves would have been at the discretion of Parliament.

The Land Code process – now engaged by dozens of First Nations across Canada – results in documents that are not unique to the people developing them. While Land Codes are in progress from Cree territory to the west coast, and while these agreements are described as the “basis for all future laws” in the First Nation, the ratified Codes are all nearly identical. They do not reflect cultural or legal differences – the Codes are simply instruments of municipalizing land use on reserves and standardizing indigenous approaches to governance: the Land Codes are anticipated to become the foundational laws of modern First Nations! (It says so in the Codes themselves.)

The Land Codes introduce a new class of person, a First Nations Citizen, which calls to mind the incorporation process of the Alaska Native Claims Settlement Act, 1971. Under that Act, only people alive at the time of signing could be shareholders! Similarly, traditional customs of land ownership and succession appear to be endangered species within the Land Codes which narrowly define exchange of Certificates of Possession and transfers of lands at death, as well as other existing, more traditional, mechanisms for land transfer.

Several First Nations in BC have voted down Land Codes because of these and other faults.

 

Promoting the Land Codes on Reserve

“I express this in response to the deluge of promotional materials, through information meetings, face book presentations and Councillors going door-to-door like salesmen advocating the land code. “

  • Raymond Pierre, Líl’watmc, open letter dated February 17, 2015

Substantial resources were made available to the Líl’wat Chief and Council to promote the Land code and encourage a “yes” vote. A website designed entirely to promote the Land Code was developed a year ago and it features videos with comments from half a dozen influential Líl’watmc, including Chief Lucinda Phillips:

“The one thing with the land code is that we would like to make Líl’wat a more safe, fair and cared for place to call home.”

The promotional materials remained unhelpfully vague about the exact nature, strength and scope of the administrative powers under the new Land Code, but each video includes encouragement from the Chief to vote “yes.” Those people who were skeptical about ratifying the Land Code noted that the Band Council did not produce materials on any potential negative impacts whatsoever.

In Líl’wat, the Chief and Council held several community meetings, sometimes hosting visiting Chiefs from elsewhere, including Grand Chief Stewart Phillip and Chief Robert Louie, Syilx, to talk about the Land Code. There is funding connected to the Land Code development process to pay for these types of meetings and promotional materials. Chief Robert Louie, Westbank, Syilx, stated in a filmed interview,

“The Framework Agreement is a form of sectoral self-governance. The Framework is the basis for First Nations to assume the rightful jurisdiction over its lands and resources. It’s the agreement that puts the First Nation as the recognized government authority over First Nation lands. A Land Code is the beginning of the self-governance authority for a First Nation by a First Nation over their lands and resources. The Land Code is basically the framework of future laws that will govern its land and resources.”

Many Líl’wat people used their own money and time to hold meetings, print letters and distribute assessments of the Code. Those people would not have agreed with Chief Louie’s point of view that only by agreement with Canada would it be possible for themselves, an Indigenous People, to exercise their “rightful” jurisdiction, self-governance or laws.

One of the open letters sent to Chief and Council refutes Chief Louie’s presentation as follows:

This Land Code is like signing a Treaty with the Government. We do not need to sign a Treaty with them. If we implement the Land Code, we’ll be giving all of our power over our lands to the Government. They’re trying to implement these Land Codes because the B.C. Treaty system has fallen apart. …Simply put…the Land Code is an attempt by Canada to reduce native nationhood to less than municipal status! Don’t fall for this trap!!

The Land Code will not give us our own Government. We already have sovereign reign over our unceded territory. If we say yes to the Land Code we will be acknowledging that the Government and DIA have jurisdiction and power over our lands. But, they don’t! Why give up 100 % jurisdiction and sovereignty just so they can give us a little bit of jurisdiction back. It just does not make sense.

            – Statement by the no-land-code coalition

Líl’wat has 3,000 hectares of reserve lands marked off by Canada. The traditional territory is approximately 800,000 hectares, a quarter the size of Vancouver Island.

 

 

“Chief and Council Land Code is putting us into Canada’s system of how they manage Land and Resources as a municipality.”

  • Statements by the no-land-code coalition.

 

Traditional Governance or Municipalization?

Elected leaders in Líl’wat often made statements about how the Land Code would help strengthen traditional governance and principles. The Council’s official summary of the purpose and guiding principles of the Land Code says, “The Líl’wat Nation wishes to preserve, protect and promote the health, heritage, culture and traditions of its Citizens through its strong connection to the land and resources.” Many voters clearly took these claims at face value or were unable to see that such statements are not borne out by the content of the legalistic, hard to read Land Code document.

A brief introduction, before the preamble, in the Land Code is the only part which is written in Ucwalmícwts, and it appears to have been translated from English to the Líl’wat language. In fact the English version is printed first.

Josh Anderson is an elected Councilor with the Líl’wat Chief and Council, holding the On-reserve Lands Management portfolio. He said in one promotional video,

“Through this government to government agreement between Líl’wat and the government of Canada, it’s showing that we are the rightful owners of our traditional territories and also of our reserve lands.”

This statement is not supported by any part of the actual Land Code document – there is no reference to ownership of land except that Canada will “continue to” hold title to Líl’wat reserve lands. There is also no actual paragraph, article or clause in the Land Code that refers to any part of traditional Líl’wat laws. The phrase “traditional Líl’wat territory” does not appear in the Land Code.

In an open letter from Raymond Pierre, Líl’watmc, these contradictions are addressed:

“The preamble to the proposed Land Code implies recognition by Canada of our traditional territory, but the actual [Land Code document] does not.  The Land Code applies to ‘reserve lands’.  The preamble also alludes to the inclusion of our Nt’akmen [traditional laws] in the Land Code; actually it does not. The Land Code proposes a profoundly hierarchical top-down decision-making system; diametrically opposite to our Nt’akmen.  It propels the Chief and Council over the people and the Creator straight to the top along with their lawyers and advisors.”

While the text of the Land Code states that the document was “drafted by the Citizens of the Líl’wat Nation,” this Land Code is mostly identical to the Squamish Land Code (which was voted down in 2011) – and all the other Land Codes passed by Indigenous Communities since signing Framework Agreements with the federal government in the 1990s and early 2000s.

Several key features in common to all Land Codes are: executive powers over land-use decisions shall be held by a small committee in certain circumstances; in all Land Codes the people of the community have suddenly become capital-C “Citizens of X First Nation.” In each case, “this Land Code is hereby enacted as the fundamental land law of the (X) First Nation.” Every Land Code addresses the same areas: matrimonial property rights; the same law making powers; federal expropriation of First Nation Lands; First Nation government expropriation of community lands; land lease procedures. In fact, the Table of Contents of all the Land Codes have the same subjects in the same sections in the same order – and they all say that the Code was written by their citizens.

Rosa Andrew remarks on that, and the Elders’ “no-vote-coalition” concerns,

“They knew the people were not ready for something like this. They became even more concerned when they saw it was being pushed through without the peoples’ consent. They became even more concerned when it was non-native people who were going door to door with the papers about the code and saying here, you need to vote for this. They wondered why? Why do they want it so badly?”

Each Land Code states that it is the most important source of land law in the First Nation. The Codes are deemed to have replaced the traditional laws. The dozens of First Nation Land Codes currently in progress are products of Canada’s First Nations Lands Management Act, which was supposedly formed in consultation with over a dozen First Nations late in the 1990s. The delegation of administrative land management powers described in the Codes is dependent on the transfer of administration of the Indian Reserves from Her Majesty in Right of Canada to the First Nation.

Most objections to the land code process are centered on that point. In order for a First Nation to begin to manage its reserve lands, it must go through the ritual of receiving title to its reserves from Canada. This action is explicit: by allowing Canada to give land title to an Indian Band, or First Nation, on its own nation’s traditional territory, the voting community is participating in the myth that Canada somehow gained title to those lands and is in possession of them now. That is an idea which cannot be true in British Columbia, where there have been no sales of traditional territories by Indigenous Peoples to Canada or to Great Britain.

However, in the Líl’wat Nation Land Code, which would have become “law” if ratified in the vote, states:

7.2(a): “the administration of Líl’wat Nation Land [meaning the Indian reserves] and Canada’s rights in Líl’wat Nation Land, other than title, have been transferred to the Líl’wat Nation effective the date the Land Code comes into force.”

The ratified Land Code would also have released Canada from any liabilities for administration on Líl’wat reserves from the date the Land Code came into effect.

The fundamental objective of the state of Canada in the Land Code process, as with the BC treaty process and the suite of legislation restricting First Nations in Bill C-45, is to have every First Nation operate as a municipality. The lawfirm Ratcliffe and Co. prepared the “municipal” diagram of Lil’wat featured with this article: that is Canada’s vision for Indigenous Peoples. Total economic and cultural assimilation.

 

“Chief and Council are not selling out they are GIVING it away.”

  • Statements by the no-land-code coalition.

 

The Rush for Development

The Land Codes have been criticized for their immediate effect, and apparently their most urgent purpose, of allowing an influx of corporate and industrial development on reserves. This might have been a development which Canada could be criticized for allowing, considering the small size of Indian reserves in question and the pressing need for community development on whatever lands are ‘available.’ Canada might have trouble justifying the leasing of those lands, as administrator of the Indian reserve, when other priorities as housing are so obviously pressing.

When First Nations oversee and approve development on their reserves, even if it is an action forced by poverty, those approvals will not be criticized because there is no conflicting fiduciary obligation. The First Nation appears to be making its own decision.

Indian reserves across BC hold small amounts of undeveloped lands very near urban centers where developers and industry are running out of affordable land options. Impoverished Indian reserves are a perfect, i.e. desperate, landlord. The Land Code provides extremely favourable terms to such third parties, saying that third party interests cannot be adversely affected except by their agreement. This is possible because in the Land Code, Canada holds title to the Indian reserves.

Joanne John, an elected Líl’wat Councillor, appears in the promotional videos giving the following insight that the Land Code is:

“Definitely an improvement in the opportunity that would present itself where we would be able to create our own policies and regulations, our own rules over what is going to be built, or whatever we can have a joint venture in…”

Chief Lucinda Phillips said in the video, on the subject of allocating reserve lands for third party businesses:

“The other thing with regard to the Land Code, and interests in lands, is having the opportunity to work with businesses that would like to have a business on reserve.”

Aware that it is only Canada’s physical power – not its legal right – which affords it control over Líl’wat affairs, Raymond Pierre’s letter of February 17, 2015 contests:

“This amounts to yet one more trick or fraud to have Líl’wat people give up our true position as members of a free and independent state with full authority over our traditional lands.  In voting ‘yes’ for the land code, we would be acquiescing or accepting Canada’s claim of sovereignty over us and our limited reserve which our ancestors knew in 1911 to be unlawful.

“I express this in response to the deluge of promotional materials, through information meetings, face book presentations and Councillors going door-to-door like salesmen advocating the land code.  The underlying message seems to be that only the insane or idiots will vote against it. I am neither, I’m voting “NO”.”

 

 

Land Codes – Part of a Bigger Picture

Dozens of First Nations in BC are involved in this stage of the Aboriginal Horizontal Framework: Lands and Resources. Canada’s legislation to enable this devolution of the Indian Act is the First Nations Land Management Act. It defines the rules and procedure by which Canada will allow nations to administer reserve lands, as well as identifying the acceptable authorities to whom it will delegate that power.

The specific agreements relating to administration of Indian reserve lands are called “Land Codes.” Currently the Ministry of Aboriginal Affairs and Northern Development, Canada (previously the Department of Indian Affairs), approves or denies every single land-related decision put forward by a First Nation in a Band Council Resolution. Such a Resolution is an action taken by the elected Chief and Council on reserve.

The other areas addressed by the Aboriginal Horizontal Framework (AHF) are Education, Governance, Housing and Infrastructure, Finance and Taxation, Health, and Children and Families. The AHF was presented to Canada’s Treasury Board in a formally commissioned inventory and classification of all monies spent by the federal government in Indian Reserves. While First Nations engaged in the BC Treaty Commission are designing Final Agreements which will release Canada from its current obligations in all these areas, other First Nations are negotiating delegated powers over education, through the “Education Jurisdiction Agreements,” and Children and Family services, most notably through the Aboriginal Peoples Family Accord – or delegated childcare agencies.

In each area, the federal government seeks release and indemnification by the First Nations in the specific area. So if an education jurisdiction agreement is ratified, for example, the federal government is no longer responsible for providing education on that Indian reserve. The education agreements come with provincial funding and oversight. With each “jurisdiction” agreement under the AHF categories, the First Nation assumes control of delivery of services – often with less than five years’ worth of financial certainty for their operations, and always without adequate, independent sources of revenue to sustain those operations. The AHF set out a seven-section model of pursuing First Nations’ incorporation and release of federal fiduciary obligations, a plan which appears to favour the federal government disproportionately.

Interestingly, the government of Australia is pursuing an identical set of these seven areas of jurisdictional delegation, essentially treaty-making on an issue-by-issue basis. But the piecemeal treaties never address historic harms, nor the prospect of a viable future, nor the outstanding question of ownership of the other…99.5% of the Indigenous People’s land base.

The “jurisdiction” agreements (such as the Land Codes) do not feature schedules of reparations and compensation for past harm which might offset the present day poverty and lack of human resources, lands resources, and cultural resources which have resulted from Canada’s genocidal policies.

 

“Líl’wat has no treaty with Canada. Indigenous Peoples are not British Subjects.”

  • Statements by the no-land-code coalition.

 

If not the Land Code, then what do people want?

Rosa Andrew:

“We want Canada to acknowledge that we are the rightful owners of our traditional territory, we have never ceded or surrendered the rights to our traditional territory. And as a people we are in the process of re-forming our own government, envisioning our flag, and creating the declaration of the Líl’wat People.

We want our nationality. We’re saying Canada has no right to force a nationality upon us. We are Líl’wat. We have never ever said that we are Canadian, but Canada has forced that upon us.

I think our people are in recovery. That’s a part of the restitution. We need time to heal. But our people are coming back strong, and the elders we have are knowledgeable people.”

On the same day as the Land Code vote, Lil’wat went to the polls to elect the Band Council, Political Chief and Cultural Chief. On that Saturday, Dean Nelson was voted in as Political Chief, while Phillips lost. Former Chief Leonard Andrew was elected to the new position of Cultural Chief.

There had been a death in the community just before the vote. Rosa Andrew remarked,

“…and usually in our culture that means everything stops. But they kept the vote on, and the body was in the gym even while people were voting at the office. I think people realized with that that it was not our traditional people pushing the vote forward, but it was really part of the government agenda, or people who have been assimilated.”

The painful dilemma facing Indigenous nations is a question of fighting for the full rights of their Peoples, and suffering the sell-out-or-starve-out tactics of the colonial governments, or trying to gain footholds in slippery-slope agreements like Land Codes where too much power is conceded to the state, in exchange for too little money too late.

Those Elders, community leaders and young people who hold to their ancestors’ vision, a vision of their people’s independence and individuality, sacrificing short-term convenience, give everything for that future. In the words of the school teacher, Rosa Andrew:

They understand what the people before us did to protect our territory.

It adds to the continuation of the protection of our territory, continuing from the 1911 declaration – which was put in place to protect us – whereas a “yes” vote would have surrendered all that.

Something else the ‘no’ vote did was it woke up our young people. They noticed that the elders were not getting paid to do those meetings, they are doing it because they know they have to protect the territory for the next generations.

 

 

Chief and Council do not speak for Líl’wat Nation!  Chief and Council only speak as wards of the State. They are not a legal entity!!

  • Statements by the no-land-code coalition.