Category Archives: First Nations

Essays on the First Nations of Canada, including Inuit and Métis, by Wayne K. Spear

Georges Erasmus Calls for Action on RCAP Recommendations

george-erasmus

In November, it will have been 20 years since the Royal Commission on Aboriginal Peoples issued its multi-volume final report. In this audio clip, former RCAP Co-Chair, Georges Erasmus, renews the call to make those recommendations a reality.

Will colonial domination survive UNDRIP?

This week Canada’s ministers of Justice and Indigenous Affairs, Carolyn Bennett and Jody Wilson-Raybould, addressed the United Nations Permanent Forum on Indigenous Issues. The occasion was their government’s decision to revoke its “permanent objector status” vis-à-vis the UN Declaration on the Rights of Indigenous Peoples, also known as UNDRIP.

The UN Declaration on the Rights of Indigenous Peoples goes back decades. The proposal to draft standards and principles confronting the injustices committed against the world’s indigenous peoples arose in 1982. At its September 2000 adoption, UNDRIP was opposed by four nations, among whom was Canada. (The others were Australia, New Zealand and the United States—all states with a colonial history.)

In 2010, the Harper Conservatives endorsed UNDRIP but qualified this meaningless gesture by asserting that the declaration was aspirational only, had no legal force, and was inconsistent with Canada’s constitution and Charter of Rights and Freedoms.

A mere 15 pages, UNDRIP’s 46 articles can be read in a sitting. Here’s an example of language which Canada found objectionable:

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

At the time UNDRIP was adopted, Mr. Harper was promoting the oil sands and crafting resource-industry-friendly omnibus bills. His aspiration for Canada was energy superpower. A lot of the former Prime Minister’s thought, time, and energy were committed to energy, and especially to getting Alberta’s bitumen out of the ground and pipelining it westward to markets in China.

For the decade he held office, indigenous resistance was Stephen Harper’s Nemesis. The last thing the Conservatives needed, or wanted, was a UN endorsement of indigenous rights to own, use, develop and control their lands, territories and resources.

Canada’s Supreme Court wasn’t helping Mr. Harper much, either. A handful of rulings established that, at least in principle, aboriginal people could possess aboriginal land title and that their free, prior, and informed consent (here the acronym is FPIC) must be sought by governments prior to land and resource development. Tsilhqot’in Nation v British Columbia went a step further. Not only was it possible to hold aboriginal title, but the Supreme Court ruled in 2014 that a specific group, the Xeni Gwet’in, indeed held it to a territory of 1,750 square kilometres.

So is colonialism dead?

No, and here’s why the old business of colonial domination will probably survive UNDRIP, the Supreme Court of Canada, and the Truth and Reconciliation Commission.

First of all, UNDRIP is not, as the previous government of Canada has asserted, legally binding. There’s no court that can compel the government, and there is no mechanism to impose sanctions should Canada breach any of the Declaration’s 46 “aspirational” articles. As for the Supreme Court decisions, FPIC is a duty to seek consent rather than to obtain it. Under the present regime, the only unqualified Aboriginal right is the right to say Yes.

The courts are clear on the point that indigenous people do not hold veto rights over land and resource development. Where a proposal is likely to infringe upon aboriginal rights, there must be government accommodation, but any assertion of a right must be balanced against its counter-assertions. If Canada must reconcile with Aboriginal people, the opposite has also and always been true. At 4% of the population, aboriginal people are a tiny minority, and no Canadian court is ever going to affirm the proposition that the will of a majority could be overwhelmed by what is after all marginal peoples.

What the courts have articulated is simply and merely the principle of balancing minority and majority rights. Tsilhqot’in looks breathtakingly liberationist (or dangerously activist, if such are your politics) only against the disgraceful backdrop of rights-balancing from 1867 to-present. As I like to point out in my public lectures, the Indian Residential School System was entirely about reconciliation: namely, reconciling yourself to being told by Ottawa what’s best for you, and having it imposed under threat of fine, imprisonment, or even starvation. Under this model, the minority rights could be balanced against the majority will by absorbing that minority into the political body of Canada. No more minority, no more problem.

And, really, what has changed? When Attawapiskat hit the news yet again, the knee-jerk reaction of newspaper columnists was to call for absorbing the Cree into Canada’s towns and cities, much as the agents of Indian Affairs had advocated assimilation a century earlier. (The paradox is that they pursued this end by establishing remote reserves like Attawapiskat.) What the majority never appear to endorse are measures and arrangements that might promote strong, independent, aboriginal nations.

But I digress.

This business of reconciling rights involves the Crown and aboriginal people. The Crown asserts rights and prerogatives consistent with the traditions of English common law, while the Constitution Act of 1982 (specifically section 35) recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.”

Supreme Court Chief Justice, Beverley McLachlin, has written in the Tsilhqot’in decision that “the s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.”

As discussed, s. 35  of the Constitution Act, 1982  imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.

All fine and good, but it isn’t the pit of history’s bitter fruit. As recognized by UNDRIP and the Truth and Reconciliation Commission—and the Royal Commission on Aboriginal Peoples, for that matter—the crux of our problem is colonialism. Or, to put it another way, the reconciliation of English common law traditions and indigenous traditions.

Which are not reconcilable.

Colonialism can not be reconciled with decolonization. Canada’s assertion of Dominion from sea to sea to sea can not be reconciled with indigenous assertion of sovereignty, anywhere in Canada, and certainly not within a s.35 Constitution Act framework.

Either Canada gets to tell aboriginal people what’s good for them, and impose it from above (again, the only form of reconciliation ever even contemplated in Canada), or it doesn’t get to do that. Either Canada gets pipelines because the government wants pipelines, or a minority aboriginal population gets a veto. The Supreme Court, of course, would have no such thing. The vision they have put before us is of good-faith negotiations to balance majority and minority rights. And that’s probably as close to decolonization as we’re likely to get by the steam of a colonial institution, which is what the Supreme Court is.

Jody Wilson-Raybould is described as a “Kwakwaka’wakw Canadian politician.” I’ve met her and I’ve heard her speak about indigenous rights and self-determination. I know from personal experience that she can deliver a decent speech. At the UN this week, she said “let us make this the century of the world’s Indigenous peoples, one where Indigenous peoples, no matter where they live, deconstruct their colonial legacy and rebuild their communities.” Not a bad sentiment, that.

As a cabinet minister and Attorney General and a member of the Privy Council, Ms. Wilson-Raybould has sworn an oath to the Queen. Her sworn duty is to serve the Crown. That’s not just a principle or an abstraction or “aspirational.” It is backed by the full legal force of the state, and if she is derelict she can indeed be sanctioned by her government. And by her government, I don’t mean the Sovereign Kwakwaka’wakw Nation, which in any case is not recognized by Canada (just as the Tsilhqot’in Nation is not recognized) and has scant recourse should the good Minister of Justice happen to let them down.

Miche vs Canada: the dangerous quicksand of First Nations rights

This is a story about folks who just want a chance to clean the slate and get on with their lives

Meet my good friend, Miche. Here is his story.

miche

Some years ago, Miche and I belonged to a company called Native Leasing Services, based on my reserve—the Six Nations of the Grand River, near Brantford in Ontario.

The idea of Native Leasing Services is simple: you work for the company, and the company leases you to aboriginal organizations across Canada. NLS provides all the services typical of its industry: payroll, group benefits, HR, and so on. Miche and I worked at the Aboriginal Healing Foundation, in Ottawa. That’s how we got to be good friends.

Because NLS is located on a reserve, our income was income-tax-free. We paid Employment Insurance and other common payroll deductions, including a leasing fee. It was legal and, in the opinion of NLS (which Miche and I share), consistent with long-standing Aboriginal rights in Canada.

Somewhere along the way, the federal government changed the rules concerning native income and taxation. They didn’t like the idea of NLS, so they came up with new rules that made it near-impossible for an Aboriginal person to claim income-tax-free status.

Today, you have to live and work on a reserve, and any product or service that you produce has to be delivered and consumed on a reserve as well. As soon as you or your product steps foot off a reserve, the federal government demands the taxes.

Tomorrow, who knows? The government is always changing its rules.

NLS went to court to fight the changes. The test cases dragged on for years (court cases usually do) and the Canadian courts ruled against us.

Typically in these test cases, the government will issue a Remission Order. The idea is that once you’ve lost in court, the ruling applies and you have to start paying taxes, as per the court’s decision. The Remission Order “forgives” the taxes up to that point, and you start from zero.

So far that hasn’t been the case. Revenue Canada, or CRA, is claiming all the back taxes from the roughly 4,000 former NLS employees. Some of us were with NLS as early the ‘80s and ’90s and face decades of back taxes. The government is pursuing hundreds of thousands of dollars from people who make, maybe, 30 or 40 thousand dollars a year. In some instances, tax bills that started out as $10,000 are now ten times that, due to compounding interest.

Miche takes home about $24,000 a year, after taxes, or just over $1,000 every two weeks. This month, CRA began to garnish his income. Even before this happened, he was borrowing money to pay the rent. He has a young daughter, and all the usual bills. He’s been struggling to make ends meet.

As a result of CRA’s actions, Miche’s wife has taken a new job a few hours away, on her home reserve in Akwesasne. Their daughter goes back and forth. The family gets to spend a day or two together each week, except when a shift comes up and Miche’s wife gets a last-minute call to come into work, as she did last weekend.

Miche is so stressed he’s been on medical leave. CRA is demanding over $195,000 in back taxes, a number that goes up every single hour of every single day due to compounding interest. Absent a Remission Order, he’ll be under financial stress for the rest of his life—even if he lives 50 more years and dies at 100. (He figures this is unlikely, and that stress is taking years off of his life.)

As crazy as this is, it’s not unusual. Former NLS employees are routinely hounded and threatened. Many, like Miche, work at health and social service agencies, for modest wages. CRA has clawed back the pensions of former NLS employees who are now sick and elderly. They’ve seized bank accounts. They’ve threatened further, unspecified legal actions. All for something that was legal not so long ago.

They have also made it impossible for people to plan and secure their financial future. What’s the point of getting a better job, saving for your child’s education, or putting retirement funds aside (asumming you’re even able to do this—which most NLS employees aren’t) if it’s just going to be suddenly taken away without your even knowing? Imagine looking 30 years down the road and still seeing an uncertain, even desperate, financial picture. Maybe you don’t have to imagine. Maybe that’s you. In any case, it’s the very definition of hopelessness.

Although we applied for the Remission Order 3 years ago, no progress has been made. The Minister of Revenue has to sign the order, and when we ask about progress we get a bureaucratic answer: “we’re looking at it.” And looking, and looking.

Meanwhile over at CRA they’re wreaking havoc with marriages, families, and lives. Here’s the best-worst part: the pocket change they are getting from Miche (about $300 a month) is not even going to pay for the psychological and physical help he needs already. He’s a wreck. He can’t sleep. He can’t focus. He breaks into tears. He worries, understandably, about his wife and daughter. Things were already tough. Now he’s being pushed to the end of his rope.

There are many, many of these stories that I could tell. As we’ve all seen in the recent KPMG affair, if you are a millionaire or billionaire, CRA has bottomless understanding and compassion. Your Remission Order is on the way, even before you ask. But if you live paycheck-to-paycheck, and you owe even $100 dollars, expect to be hunted to the ends of the earth and squeezed for every last dime. CRA has even sent people to banks to get a few bucks from NLS employees.

Let’s be clear: the government is never going to get this money. They will get cents on the dollar, because that’s all that there is to be had. No one has $200,000 sitting in a pile, in the corner of the room. CRA will spend a hundred dollars to get one dollar back, and the cost of getting this dollar won’t just be financial: it will be emotional and psychological.

A lot of good, generous people have written letters to the new federal government asking that the Remission Order be issued for the NLS employees. I’d like to think the Prime Minister and his cabinet will look at this issue and see it for what it is: an impossible situation. For the federal treasury, Miche’s debt is an irrelevance. It’s less money than the rounding error on a new military fighter jet or the federal cabinet’s annual meal budgets. Pocket change.

But for Miche, this debt is a burden that’s slowly grinding him down, and the same is true for many others.

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This is a story about folks who just want a chance to get on with their lives. That’s why Miche and Ramona Dunn (above) have gone public: to resolve an impossible situation. They are not scam artists or criminals. They have jobs and families and hopes for an ordinary decent life, a hope that is slipping away.

Go here to read Ramona Dunn’s petition to have the Remission Order Application moved quickly through the assessment process to bring closure and to allow the individuals affected to get on with their lives.