University of Alberta Faculty of Law Blog

Canada's Racism on an International Stage

Tansi Nîtôtemtik,

As a party to various United Nations (“UN”) treaties, Canada’s human rights record is reviewed every few years by the UN Human Rights Committee, as well as by other Committees related with the UN. These committees review whether states such as Canada are living up to their international treaty promises. The most recent report on Canada’s record as related to racism was released in 2017 by the Committee on the Elimination of Racial Discrimination. This report reflects that the international community is well-aware of the racism in Canada, with today’s blog post specifically focused on the instances of racism against those of Indigenous descent in this country that is identified in the report. [1]In this report, which you can find online here, there are multiple issues found with the government’s treatment of Indigenous peoples. Such identified problems include:

• Concern about the “disproportionately high rate of incarceration of indigenous peoples and persons belonging to minority groups, in particular African-Canadians, due to reasons such as socioeconomic disparity, high incarceration rates of members of minorities who have mental or intellectual impairments, lack of appropriate community services, overpolicing of certain populations, drug policies and racially biased sentencing.”[2]
• Further concern over reports that both African-Canadian and Indigenous offenders are overrepresented in “segregation” (solitary confinement); that 50% of Indigenous inmate women have reportedly been placed in segregation; and that Indigenous inmates have the longest average stay in segregation.[3]
• Concern about the lack of an action plan and of full implementation of the TRC, and that the United Nations Declaration on the Rights of Indigenous Peoples Action Plan has not yet been adopted. [4]
• Multiple and significant concerns about the government’s treatment of Indigenous land claims, including that claimants must go through years of high-cost litigation to achieve results. [5]
• Alarm at the “continued high rates of violence against indigenous women and girls.” While “welcoming the 2016 launch of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Committee is concerned at the lack of an independent mechanism to re-examine cases where there is evidence of inadequate or biased investigations, and at the failure to provide regular progress reports and to build transparent and accountable relationships with survivors, families and stakeholders.”[6]
• Concern about the multiple forms of discrimination faced by Indigenous persons with disabilities, who reportedly face additional barriers to health care, education and social services, in particular if they are located in remote communities with inadequate access to quality services.[7]
• Alarm that despite previous recommendations, and decisions by the Canadian Human Rights Tribunal, “less money is reportedly provided for child and family services for Indigenous children than for children in other communities, and that this gap continues to grow.” [8]
• Concern that the federal “Government has adopted an overly narrow definition of Jordan’s Principle [as stated in the Family Caring Society of Canada case] [and has] failed to address the root causes of displacement, while tens of thousands of children are needlessly removed from their families, communities and culture and placed in [Canada’s] care.” [9]
• Concern at the “disparity in resource allocation for education and the lack of sufficient funding of mother tongue education programmes, leading to unequal access to quality education, especially for African-Canadian and indigenous children, which contributes to future socioeconomic disparity among these groups” [10]

The international community is well aware of Canada’s human rights issues as related to Indigenous peoples. As time goes on, the UN calls for government action will become stronger, and the government will not be able to ignore its international human rights commitments. It is time for Canada’s government to live up to the promises they have made, and equalize their treatment of Indigenous people in Canada.

Until next time,

Team ReconciliAction YEG

 

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[1]  Report of the Committee on the Elimination of Racial Discrimination, UNGAOR, 93rd Sess, Supp No 40, UN Doc CERD/C/CAN/CO/21-23 (2017), online: <tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/21-23&Lang=En>.

[2] Ibid at 3.

[3] Ibid.

[4] Ibid.

[5] Ibid at 4.

[6] Ibid at 6.

[7] Ibid at 7.

[8] Ibid.

[9] Ibid.

[10] Ibid.

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Hate Groups and Violence

Tansi Nîtôtemtik,

Image of Chief Grizzly Mamma. Retrieved from <www.cbc.ca/news/canada/nova-scotia/cornwallis-protest-chief-grizzly-mama-canada-day-1.4187445>.

Today’s post examines the relationship between hate groups and racist violence; as well, we look at solutions on how to combat anti-Indigenous racism.

During a Canada Day celebration in 2017, protestors gathered in downtown Halifax to condemn the statue of Edward Cornwallis, a British military officer and founder of the city. Chief Grizzly Mamma, an Indigenous woman, shaved her braids as a symbolic act to bring attention to the scalping proclamations issued by Cornwallis during his 3-year term as governor of the province.[1] Cornwallis declared bounties of “[t]en guineas for every Indian taken or destroyed.”[2] Mi’kmaq women and children were also subject to the bounty and it is noted that scalping was not used against the hostile French during this period.[3] According to Daniel Paul, a Mi’kmaq Elder, Cornwallis’ actions were part of a genocidal campaign against the Mi’kmaq peoples.[4] Chief Grizzly Mamma views the statue as a symbol of colonial violence against Indigenous peoples, a violence that persists even today.[5] Note: the statue has now been removed by order of a regional city council vote.[6]

In response to the demonstration, counter-protestors arrived wearing matching polo shirts along with the Canadian Red Ensign flag, a colonial symbol, claiming that the Indigenous ceremony was “disrespecting General Cornwallis.”[7] These counter-protestors were members of the Proud Boys, a far-right fraternal organization who self-describe as “western chauvinists who refuse to apologize for creating the modern world.”[8] Opposed to political correctness, their mantra is “West is best.”[9] The Southern Poverty Law Center has documented their transphobic, sexist, misogynistic, and racist beliefs.[10] The founder of the Proud Boys, Gavin McInnes, who considers himself an Islamophobe[11] and anti-Semite,[12] believes that criticisms of colonialism should be met with white people proudly responding, “You’re welcome.”[13] McInnes also defended Cornwallis’ bounty.[14]

Katherine Hensel, a Secwepemc lawyer and adjunct professor of law at the University of Toronto, argues that the rhetoric espoused by the Proud Boys contributes to violence faced by Indigenous peoples today. Hensel explains, “For [Gavin McInnes] to suggest that [violence against Indigenous peoples was] justified then, really reframes the discourse ... and the concern is [it justifies violence today].”[15] She goes on to state, “Indigenous people in Canada do not enjoy security of the person and liberty in the same manner that non-Indigenous people in Canada do. And that’s been continuous since Cornwallis’ time.”[16]

Hensel’s description of the Proud Boys as “disruptive and potentially threatening”[17] is far from hyperbolic. McInnes himself stated in 2017, “I cannot recommend violence enough. It’s a really effective way to solve problems.”[18] As part of a fourth-tier initiation, Proud Boys members must engage in a major fight for the cause. Members have also attended the deadly Charlottesville Unite the Right rally.[19] Furthermore, individuals subscribing to alt-right ideologies similar to the Proud Boys’ own have been killing prolifically in the United States.[20] Note: the Proud Boys members at the Cornwallis event did face disciplinary action.[21]

Hensel warns, “Indigenous people in Canada are number one on the target list for this type of far right rhetoric and activity and potential violence and actual violence.”[22] As an example of the ongoing violence, Hensel cites the case of Barbara Kentner, a First Nations woman who was hit with a trailer hitch by a passing truck in Thunder Bay, Ontario. The passenger, Brayden Bushby, a non-Indigenous man, yelled, “Oh, I got one” after striking Kentner, who later died of internal injuries.[23] Furthermore, data shows that Indigenous people face higher levels of violent crime[24] and, in particular, violence against Indigenous women and girls is disproportionately high.[25] Hensel believes a lack of education on these issues is partly to blame.[26]

The Truth and Reconciliation Commission’s Calls to Action specifically mandate that medical and nursing schools, law societies, public servant groups, sports organizations, and corporate sector actors must receive education in anti-racism training.[27] Education is a vital step in dispelling anti-Indigenous myths and stereotypes that feed into racist narratives; in educating ourselves, we bolster our “moral and legal and constitutional integrity.”[28] TRC Chair, Senator Murray Sinclair, speaking on the lack of education on Residential schools and Indigenous history, wisely said, “Education, or what passed for it, got us into this situation, and education is what will lead us out.”[29]

Alberta is far from immune to racism, our own provincial history being replete with instances of extreme prejudice and discrimination. The history of the Ku Klux Klan’s strong base in Alberta is particularly troubling.[30] However, recent controversies surrounding the Soldiers of Odin, an anti-immigrant far-right group, occurring right here in Edmonton remind us that we do not currently live in a racism-free society.[31] Individually, we can engage in acts of solidarity for marginalized folks, like the Stand Up Against Racism rally in response to the racist letter sent to the Anderson family.[32]

Until next time,

Team ReconciliAction YEG

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[1] Anjuli Patil, “Cornwallis Protest Held Amid Canada Day Celebrations”, CBC News (1 July 2017), online: <www.cbc.ca/news/canada/nova-scotia/cornwallis-protest-chief-grizzly-mama-canada-day-1.4187445> [Patil, Cornwallis Protest].

[2] Trina Roache, “‘It’s Not Forgotten’: Mi’kmaq Bounty Never Rescinded”, ATPN National News (21 February 2018), online: <aptnnews.ca/2018/02/21/not-forgotten-mikmaq-bounty-never-rescinded/>.

[3] Ibid.

[4] Brett Bundale, “Edward Cornwallis Considered: The Man Behind Halifax’s Divisive Debate”, Global News (last updated 20 August 2017), online: <globalnews.ca/news/3401361/edward-cornwallis-considered-the-man-behind-halifaxs-divisive-debate/>.

[5] Patil, Cornwallis Protest, supra note 1.

[6] Cassie Williams, “Controversial Cornwallis Statue Removed From Halifax Park”, CBC News (31 January 2018), online: <www.cbc.ca/news/canada/nova-scotia/cornwallis-statue-removal-1.4511858>.

[7] Patil, Cornwallis Protest, supra note 1.

[8] Proud Boys, “Welcome to the Greatest Fraternal Organization in the World” (no date), online: Proud Boys USA <proudboysusa.com/>.

[9] Ibid.

[10] Southern Poverty Law Center, “Proud Boys” (no date), online: SPLC <www.splcenter.org/fighting-hate/extremist-files/group/proud-boys> [SPLC Proud Boys].

[11] Ibid.

[12] “Who are the Proud Boys Who Disrupted an Indigenous Event on Canada Day?”, CBC Radio (7 July 2017), online: <www.cbc.ca/radio/asithappens/as-it-happens-tuesday-edition-1.4189447/who-are-the-proud-boys-who-disrupted-an-indigenous-event-on-canada-day-1.4189450>.

[13] SPLC Proud Boys, supra note 10.

[14] Peter Zimonjic, “Claim Scalping of Mi’kmaq Was Justified Risks Further Violence Against Indigenous People, Lawyer Says”, CBC News (6 July 2017), online: <www.cbc.ca/news/politics/proud-boys-claim-refuted-1.4193974>.

[15] “Responding to Power and Politics Interview with Gavin McInnes” (last updated 4 October 2017) at 00h:03m:15s, online (video): CBC News <www.cbc.ca/news/politics/responding-to-power-politics-interview-with-gavin-mcinnes-1.4193760> [Hensel Interview].

[16] Ibid at 00h:03m:00s.

[17] Ibid at 00h:04m:51s.

[18] SPLC Proud Boys, supra note 10.

[19] Ibid.

[20] Keegan Hankes & Alex Amend, “The Alt-Right is Killing People”, Southern Poverty Law Center (5 February 2018), online: <www.splcenter.org/20180205/alt-right-killing-people?fbclid=IwAR36Zaqq3Jxr8lrrC2AELbuofU2YY6IYR8jzv6eTCGuEPW29X42KXHNt-yM>.

[21] Elizabeth McMillan & Anjuli Patil, “Forces Members Who Disrupted Indigenous Rally Face ‘Severe Consequence’”, CBC News (4 July 2017), online: <www.cbc.ca/news/canada/nova-scotia/proud-boys-canadian-military-indigenous-protest-disrupted-1.4189615>.

[22] Hensel Interview, supra note 15 at 00h:06m:34s.

[23] Jody Porter, “First Nations Woman Dies After Being Hit By Trailer Hitch Thrown From Passing Car in Thunder Bay, Ont.”, CBC News (4 July 2017), online: <www.cbc.ca/news/canada/thunder-bay/trailer-hitch-death-1.4189426>.

[24] Canada, Department of Justice, Aboriginal Victimization in Canada: A Summary of the Literature, by Katie Scrim, Report (Ottawa: Department of Justice, 27 July 2017), online: <www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd3-rr3/p3.html>.

[25] “Fact Sheet: Violence Against Aboriginal Women” (no date), online (pdf): Native Women’s Association of Canada <www.nwac.ca/wp-content/uploads/2015/05/Fact_Sheet_Violence_Against_Aboriginal_Women.pdf>.

[26] Hensel Interview, supra note 15 at 00h:06m:50s.

[27] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: TRC, 2015) at 3, 7, 10.

[28] Hensel Interview, supra note 15 at 00h:07m:19s.

[29] JDM Stewart, “Education is the Best Path to Reconciliation on Residential Schools”, The Globe and Mail (last updated 30 November 2017), online: <www.theglobeandmail.com/opinion/education-is-the-best-path-to-reconciliation-on-residential-schools/article17735219/>.

[30] Wallis Snowdon, “A Dark Chapter: Should Edmonton’s KKK History be Acknowledged?”, CBC News (last updated 30 November 2016), online: <www.cbc.ca/news/canada/edmonton/a-dark-chapter-should-edmonton-s-kkk-history-be-acknowledged-1.3872961>; Jonny Wakefield, “After Charlottesville, Police and Activists Look to Counter Alberta’s Extreme Right”, Edmonton Journal (last updated 21 August 2017), online: <edmontonjournal.com/news/local-news/after-charlottesville-police-and-activists-look-to-counter-albertas-extreme-right>.

[31] Phil Heidenreich, “Edmonton Protestors Confront Far-Right Group that CBSA Report Suggests is ‘Not Afraid to Use Violence’”, Global News (last updated 4 September 2018), online: <globalnews.ca/news/4425310/soldiers-of-odin-edmonton-mccauley-protest/>; Jonny Wakefield, “Edmonton Chapter of Far-Right Soldiers of Odin Group Disbands”, Edmonton Journal (last updated 15 October 2018), online: <edmontonjournal.com/news/local-news/edmonton-chapter-of-far-right-soldiers-of-odin-group-claims-it-is-dissolving>.

[32] Anna McMillan, “Hundreds Stand Behind St. Albert Family Who Received Racist, Threatening Letter”, CBC News (28 October 2018), online: <www.cbc.ca/news/canada/edmonton/st-albert-racist-letter-block-party-community-support-1.4881950>.

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Racism: a post for settlers, from a settler

Tansi Nîtôtemtik,

Photo retrieved from: https://www.cbc.ca/news/politics/lynn-beyak-kicked-out-conservative-caucus-1.4474130

 

Racism seems inescapable, from the genocidal violence and cruelty against the Rohingya people, to the more acute and targeted attack on Jewish people at the Tree of Life Synagogue in Pittsburgh;[1] and from the suppression of African American voters in Georgia, to the election of a Brazilian president who has stated that his children are too educated to be romantically involved with black people.[2]

Racism seems inescapable here in Alberta too. Some recent examples of obvious, headline-grabbing racism in Alberta include City Centre Mall security kicking out elder Gary Moostoos for eating soup, motorists calling Bashir Mohamed the n-word while cycling, motorists calling Jesse Lipscombe the n-word while filming a video, posters attacking Sikhs at the University of Alberta for practicing their cultural beliefs, Edmonton peace officers assaulting an African Canadian teenager while waiting for a bus, someone trying to burn down the Edson mosque, Zach Running Coyote being kicked out of a Red Deer McDonald’s after being the victim of verbal harassment, a woman shouting racist hate speech at Rahul Kumar over a parking dispute, a man at the Clareview Superstore expressing sympathy to Yasmin Ugas because she was wearing a hijab and he thought she was a “slave and wearing slave garments,” and an anonymous neighbour sending Katrina Anderson a letter threatening her and her children.[3]

Speaking of racism, Halloween is imminent. There is already public debate stirring online after someone decided to dress up as a stereotype of an Indigenous person holding a welfare cheque. These sorts of costumes are racist. They may seem like “just a joke” to some, but they reinforce stereotypes that have been used to oppress Indigenous people for decades.

There are also incidents of racism that are given greater attention because of the status of their perpetrators. In 2017, Senator Lynn Beyak (pictured above) undermined the Truth and Reconciliation Commission’s (TRC) Final Report because it did not “focus on the good.”[4] It should be noted that the TRC included a segment in its final report that discussed some of the positive memories that students had of residential schools despite the broader colonial system of cultural genocide.[5] Nevertheless, Senator Beyak insisted on expressing her disappointment in the TRC. Behind her disappointment was an observable defensiveness. It was as if, when the TRC stated that Canada had committed cultural genocide, Senator Beyak had interpreted the TRC as saying that a member of her family had committed cultural genocide - or at least that’s my best attempt at rationalizing her statements. Whatever kept her from accepting the truth, Senator Beyak’s comments are effectually no different than the Halloween costume that I mentioned earlier: both reinforce the lie that Indigenous people are using a false victim narrative to take advantage of government pity and resources. 

Given the many different manifestations of racism that exist in Canada today, we settlers (the members of the cultural hegemony) have a responsibility to keep ourselves and each other accountable for how we treat those who do not enjoy the same privileges that we do. But how do we fulfill this responsibility?

After Senator Beyak’s comments, Justin Brake of the Aboriginal Peoples Television Network ran a story called “The ‘Beyak Effect’: Fighting anti-Indigenous racism and settler denialism in Canada.”[6] In the piece, Ry Moran, Director of the National Centre for Truth and Reconciliation, makes a couple of helpful remarks: “We have to be very honest with ourselves, and we have to as a country drop the natural defence mechanisms that we have, which is denialism, head-in-the-sand-ism, rejectionism, and the disbelief that we are in fact telling the truth, and that this truth has been unequivocally proven... For those that are seeking to find the silver lining in the cloud, or to deny that the residential schools were bad, we really gotta be honest: why are we trying to do this? Why are you looking for the good in this? Just sit with the bad for a minute and actually put yourself in the shoes of that child.”[7] I think that we should take Moran’s recommendations to heart. We must face the truth honestly and empathetically. If we are unable to do so, we must then address what exactly is keeping many of us settlers from finally accepting difficult truths.

 

Until next time,

 

Team ReconciliAction YEG

 

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[1] AP of the United Nations, “Rohingya genocide is still going on, says top UN investigator”, The Guardian (24 October 2018), online: <https://www.theguardian.com/world/2018/oct/24/rohingya-genocide-is-still-going-on-says-top-un-investigator>; Campbell Robertson, Christopher Mele and Sabrina Tavernise, “11 Killed in Synagogue Massacre; Suspect Charges With 29 Counts”, The New York Times (27 October 2018), online:  <https://www.nytimes.com/2018/10/27/us/active-shooter-pittsburgh-synagogue-shooting.html>

 

[2] Frederick Knight, The Conversation, “Georgia election fight shows that black voter suppression, a southern tradition, still flourishes”, PBS (28 October 2018), online:  <https://www.pbs.org/newshour/politics/georgia-election-fight-shows-that-black-voter-suppression-a-southern-tradition-still-flourishes>; Gavin Fernando, “Is this the world’s most repulsive politician?”, news.com.au (2 May 2016), online:  <https://www.news.com.au/lifestyle/real-life/wtf/is-this-the-worlds-most-repulsive-politician/news-story/926a4a59cf6132f770dfdbd46f610e97>

 

[3] Otienna Ellwand, “Respected aboriginal elder ‘humiliated’ by ban from mall”, Edmonton Journal (28 October 2014), online:   <https://edmontonjournal.com/news/local-news/respected-aboriginal-elder-humiliated-by-ban-from-mall>; Clare Clancy, “Edmonton police won’t lay charges after cyclist complains of racism on the road”, Edmonton Journal (5 August 2016), online: <https://edmontonjournal.com/news/local-news/edmonton-police-wont-lay-charges-after-cyclist-complains-of-racism-on-the-road>; Claire Theobald, “Shocking video of racial slurs directed at Edmonton man goes viral”, Edmonton Journal (1 September 2016), online: <https://edmontonjournal.com/news/local-news/shocking-video-of-racial-slurs-directed-at-edmonton-man-goes-viral>; Wallis Snowdon, “University of Alberta investigating ‘disturbing’ racist posters”, CBC (20 September 2016), online: <https://www.cbc.ca/news/canada/edmonton/university-of-alberta-investigating-disturbing-racist-posters-1.3770286>; Zoe Todd, “Alberta mosque set ablaze in ‘brazen’ arson”, CBC News (17 June 2018), online: <https://www.cbc.ca/news/canada/edmonton/edmonton-mosque-fire-eid-islamic-society-alberta-1.4710155>; The Canadian Press “Indigenous man questions expulsion from Red Deer McDonald’s after racist encounter”, Calgary Herald (26 June 2018), online:  <https://calgaryherald.com/news/local-news/indigenous-man-questions-expulsion-from-red-deer-restaurant-after-racist-encounter>; Jackie Dunham and Josh Dehaas, “Woman who hurled racist insults at Edmonton man won’t apologize”, CTV News (21 August 2018), online: <https://www.ctvnews.ca/canada/woman-who-hurled-racist-insults-at-edmonton-man-won-t-apologize-1.4061392>; Julia Wong, “Victim of racist exchange at Edmonton supermarket recorded video to raise awareness of Islamophobia”, Global News (30 August 2018), online: <https://globalnews.ca/news/4420159/victim-of-racist-exchange-at-edmonton-supermarket-recorded-video-to-raise-awareness-of-islamophobia/>; Phil Heidenreich, “Threatening letter that says ‘this isn’t a reserve’ prompts Alberta family to move”, Global News (17 October 2018), online: <https://globalnews.ca/news/4565993/racist-letter-st-albert-alberta-indigenous-condo/>

 

[4] John Paul Tusker, “Conservative senator defends ‘well-intentioned’ residential school system”, CBC News (8 March 2017), online: <https://www.cbc.ca/news/politics/residential-school-system-well-intentioned-conservative-senator-1.4015115>

 

[5] The Survivors Speak, Truth and Reconciliaction Commission of Canada (2015), at 185-8, online pdf: <https://www.trc.ca/websites/trcinstitution/File/2015/Findings/Survivors_Speak_2015_05_30_web_o.pdf>

 

[6] Justin Brake, “The ‘Beyak Effect’: Fighting anti-Indigenous racism and settler denialism in Canada”, APTN National News (21 February 2018), online: <https://aptnnews.ca/2018/02/21/beyak-effect-fighting-anti-indigenous-racism-settler-denialism-canada/>

 

[7] Ibid.

 

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Smallpox Blankets

Tansi Nîtôtemtik,

First Baron Jeffery Amherst. Photo retrieved from: http://www.biographi.ca/en/bio/amherst_jeffery_4E.html.

Today’s post explores letters written between colonial officials in 1763 that offer evidence that smallpox blankets were used as instruments of biological warfare against Indigenous peoples. The letters are not only illustrative of the acts that were sanctioned, but also of the disturbing colonial attitudes towards Indigenous peoples at the time.

Prior to European arrival, infectious diseases such as smallpox, yellow fever, and measles did not exist in present-day North America. [1] As such, Indigenous nations did not possess the antibodies to ward off infection, and diseases had a particularly crippling effect on their respective populations. In fact, some scholars estimate that, by about 1990, Indigenous populations had decreased by upwards of 93 percent. [2] This statistic is partially attributable to factors such as war and dispossession; however, scholars contend that disease was the most significant contributory cause of the decline. [3]

The letter exchanges between Jeffery Amherst, a British military field marshal, and Henry Bouquet, a colonel, are particularly revealing. In the first exchange, the mercenary suggests to Amherst that smallpox-infected blankets could be given out to “inoculate the Indians.” [4] Amherst’s reply reads:

You will do well to try to inoculate the Indians by means of blankets, as well as to try every other method that can serve to extricate this execrable race. I should be very glad your scheme for hunting them down by dogs could take effect, but England is at too great a distance to think of that at present. [5]

These letters were written in light of the Indigenous-led resistance movement against British rule lead by Odawa chief Obwandiyag (also known as Pontiac). As such, they seem to posit a direct tactic of biological warfare.

Some historians are skeptical, noting that there is no evidence that Bouquet or any of his men actually carried out the act. [6]  However, in the same year, a trader at Fort Pitt (present day Pittsburgh, Pennsylvania), wrote of a meeting with two members of the Delaware Nation, “[w]e gave them two blankets and a handkerchief out of the [smallpox] hospital. I hope it will have the desired effect.” [7] Taken together with the letters, despite conclusive proof that acts of biological warfare were carried out, both writings nonetheless point to disturbing colonial attitudes at the time. Indigenous peoples are conceptually painted as less than human and means of eradication are discussed as though simple means of state policy.

Next week, ReconciliAction YEG will cover topics on violence and racism against Indigenous peoples in Canada.  We thank you for reading.

Until next time,

 

Team ReconciliAction YEG

 

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[1] “Epidemic: European Contact with Aboriginal Peoples”, The Canadian Encyclopedia (23 July 2015), online: <https://www.thecanadianencyclopedia.ca/en/article/epidemic>.

[2] Ibid.

[3] Ibid.

[4] Jordan Gill, “‘Extirpate this execrable race’” The dark history of Jeffery Amherst”, CBC (29 April 2017), online: < https://www.cbc.ca/news/canada/prince-edward-island/jeffery-amherst-history-complex-1.4089019>

[5] Ibid.

[6] Supra note 1.

[7] Ibid.

 

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Edmonton’s Own Hospital of Horrors

Tansi Nîtôtemtik,

 

“Charles Camsell Indian Hospital” Edmonton, Alberta. Photo retrieved from: https://edmontonjournal.com/entertainment/books/book-explores-edmonton-indian-hospital-horrors-and-healing-since.

 

As we continue our week discussing trauma and oppression throughout Canada, today’s post will look at traumatic experiences of Indigenous persons in a setting a lot closer to home for many of our readers: the Charles Camsell (Indian) Hospital in Edmonton, Alberta.

The Charles Camsell was founded in 1913. Originally a Jesuit College for boys, the hospital was later sold to the Government of Canada and began operation as a hospital for the Royal Canadian Army Medical Corps. With the rise of tuberculosis (TB) diagnoses of First Nations, particularly the Inuit, the government later approved the hospital for conversion to a TB hospital. [1] 

In combating the TB crisis, Indigenous persons from Alberta, the Yukon and parts of the Northwest Territories were often forcibly removed from their families and communities to live in the Charles Camsell.[2] Sadly, many of the patients never saw their families again.

While at the hospital, Indigenous patients received medical care that often went far beyond the usual practices to combat TB. Accounts of the traumatic and oppressive practices have been the subject of many news stories, books and documentaries over the past two decades. Such experiences include children being routinely tied up at night (face down), so they would not cause disruptions to other patients and medical staff.[3] Further experiences of abuse within the hospital include experimental surgeries, drug testing, forced sterilization and shock treatment. In addition, allegations of sexual assault, beatings, isolation in rooms for long periods of time, food and drink deprivation, forced feeding and forcible eating of patients’ own vomit have been made by victims of the Camsell’s staff. [4]  

Of the above horrific experiences, stories of forced sterilization have been revealed increasingly over time by ex-patients of the Camsell. The practice of forced, or coerced, sterilization was seen as legitimate due to Alberta’s legislation at the time, the Sexual Sterilization Act. The Government of Alberta created the Act as a means to “protect the gene pool” thus allowing the sterilization of individuals living in government-run institutions who were deemed to have “undesirable traits”. Although enacted in 1928, it took over 40 years to come to an end, having finally been repealed in 1972. [5]

One such story of the forced sterilization of Indigenous women while in the care of the Charles Camsell came from Priest Rene Fumoleau. Fumoleau indicated that some women from Denendeh, located in the Northwest Territories, came to him with concerns of why they were no longer able to have children. Upon further medical assessment, the women discovered that following the birth of their children in the Camsell Hospital, they had been sterilized without their permission or knowledge of the procedure. As a result of the practices flowing from the Sexual Sterilization Act, and claims against these horrifying practices, the Government of Alberta has paid out more than $50 million to those wrongfully sterilized under the Act.[6]

Many Indigenous patients lost their lives while in the care of the Camsell Hospital. One Elder remembers being drafted from a nearby Residential School to make numerous graves in the frozen ground, describing the deceased as “some in boxes, some wrapped in blankets, some in pieces.”[7]

The ReconciliAction YEG Team acknowledges the horrific practices that many Indigenous patients fell victim to over two decades of operations at the Charles Camsell Indian Hospital. We remember those that were lost, and honour those still suffering. Awîyak mistahi kiteyemiht (to honour someone).

Until next time,

 

Team ReconciliAction YEG

 

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[1] Collete Leung, “Charles Camsell Indian Hospital”, Eugenics Archive Canada (12 October 2014), online: https://eugenicsarchive.ca/discover/institutions/map/543a2cb5d2e5248e4000001a.

[2] Fish Griwkowsky, “Book explores Edmonton ‘Indian hospital’ horrors - and healing since”, Edmonton Journal (1 March 2017), online: https://edmontonjournal.com/entertainment/books/book-explores-edmonton-indian-hospital-horrors-and-healing-sinc [Hospital horrors].

[3] Ibid.

[4] Michele LeTourneau, “Filmmaker seeks Inuit treated at Camsell”, Nunavut News (19 May 2018), online: https://nunavutnews.com/nunavut-news/filmmaker-seeks-inuit-treated-at-camsell/.

[5] Luke Kersten, “Alberta passes Sexual Sterilization Act”, Eugenics Archive Canada (24 October 2018), online: https://eugenicsarchive.ca/database/documents/5172e81ceed5c6000000001d.

[6] Sabrina Whyatt, “Sterilization victims urged to come forward”, Windspeaker (1998), online: https://ammsa.com/publications/windspeaker/sterilization-victims-urged-come-forward-0.

[7] Hospital horrors, supra note 2.

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Indigenous Homelessness

Tansi Nîtôtemtik,

Photo retrieved from: https://edmontonjournal.com/news/local-news/two-years-is-a-statement-more-than-100-homeless-deaths-in-2017-honoured-at-memorial

The first time I participated in a smudge was behind the Alberta Supports Centre on 105 Street downtown. It was a beautiful ceremony signifying spiritual purification, reclaiming a spark of Indigeneity amongst the bleak, wintry backdrop of Edmonton's characteristic brutalist urbanism. Nearby, a tense lineup of people waited to access Income Support as we, a huddled group of do-gooder not-for-profit employees, tried to ignore the cold. I was part of a group of housing first workers from different Edmonton community agencies being trained in Indigenous cultural traditions by Homeward Trust’s Oskapewis (Indigenous Cultural & Educational Helper). He was teaching us about Indigenous culture because we all worked with homeless people and, in Edmonton, a lot of homeless people are Indigenous.

 

This is not exactly a revelation. We all know that. Canadians associate homeless people with Indigenous people so intuitively that it rivals our own association with hockey or Tim Horton’s (or not doing enough to address homelessness). And who can blame us? In Edmonton, 48% of homeless people are Indigenous even though only 5.4% of the overall population is Indigenous.[1] In Canada, if you are Indigenous and living in a city there is almost a 7% chance that you will experience homelessness, which is eight times more likely than a member of the general population.[2]

 

So what caused the disproportionate representation of Indigenous peoples amongst homeless Canadians? Both local and national research has concluded that the problem of Indigenous homelessness is the result of 1) historical colonial oppression, and 2) systemic racism that still exists today.[3]

 

Homeless Hub, an online database of Canadian homelessness data created by the Canadian Observatory on Homelessness, described the problem of historical colonial oppression as follows:

Homelessness amongst Indigenous Peoples should be considered as a consequence resulting from Canada’s history of colonization and exploitation of Indigenous land and populations. Significant abuse and cultural trauma occurred through the use of residential schools to house and educate Indigenous children. Furthermore, the 60’s Sweep –which took Indigenous children and placed them in white foster homes within the child welfare system has led to unstable families and homes. Many of the personal issues (including familial dysfunction, substance use, addictions, health issues, community violence) faced by Indigenous Peoples and that act as contributors to homelessness can be directly linked to various types of historical trauma...There are also serious social issues stemming from the historical trauma including high incarceration rates and high suicides rates amongst youth.[4]

 

Moreover, there exist current structural barriers that contribute to Indigenous homelessness. Some that have been identified include: lack of funding for education and housing on reserves (which has also been noted to contribute to a special form of homelessness - inadequate on-reserve homelessness); racism in the criminal justice system; racist landlords and employers; and the difficulties of transitioning from on-reserve to urban living.[5]

 

The picture above is of the June 2018 memorial service, which commemorated the 107 Edmontonians who died while homeless in 2017.[6] Those 107 people represent over 6% of the estimated number of homeless Edmontonians in 2016. [7] This statistic should serve as a sobering reminder that homelessness is a potentially fatal condition that disproportionately affects Indigenous peoples in Canadian cities.

 

Homelessness has not always existed. In fact, some sources say that the problem, as we know it today, only began in the late-70s and early-80s.[8] There is little doubt that historical oppression of, and systemic racism against, Indigenous people has contributed to the prevalence of homelessness in Canada. As such, removing systemic barriers to Indigenous peoples' prosperity is a necessary part of a serious strategy to end homelessness, and seriously addressing homelessness is a necessary part of reconciliation with Indigenous peoples.

 

Until next time,

 

Team ReconciliAction YEG

 

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[1] “About Homelessness” (2018) at “The Local Picture (Homelessness in Edmonton)”, online: Homeward Trust <https://homewardtrust.ca/ending-homelessness/about-homelessness/>

 

[2] “Indigenous Peoples” (2017), online: Homeless Hub  <https://homelesshub.ca/about-homelessness/population-specific/indigenous-peoples>

 

[3] “Indigenous Relations” (2018), online: Homeward Trust <https://homewardtrust.ca/who-we-are/indigenous-relations/> ; “Indigenous Peoples” (2017), online: Homeless Hub  <https://homelesshub.ca/about-homelessness/population-specific/indigenous-peoples>

 

[4] Supra, note 2.

 

[5] Supra, note 3.

 

[6] Stephen Cook, “‘Two years is a statement’: More than 100 homeless deaths in 2017 honoured at memorial”, (June 15, 2018), online: Edmonton Journal <https://edmontonjournal.com/news/local-news/two-years-is-a-statement-more-than-100-homeless-deaths-in-2017-honoured-at-memorial>

 

[7] “Homeless Count” (2018), online: Homeward Trust https://homewardtrust.ca/planning-research/homeless-count/

 

[8] J. David Hulchanski, PhD, “Homelessness in Canada: Past, Present, Future”, Conference keynote address, Growing Home: Housing and Homelessness in Canada, (18 February 2009), University of Calgary, online pdf: <https://www.canadiansocialresearch.net/hulchanski.pdf>

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Tuberculosis in Inuit Nunangat

Tansi Nîtôtemtik,

An Inuit child being examined for tuberculosis. Photo Retrieved from: <www.rcinet.ca/en/2019/03/06/prime-minister-to-apologize-to-inuit-for-mistreatment-during-tb-programme/>

Today’s post looks at the disproportionate rates of tuberculosis among Inuit in Canada’s North (Inuit Nunangat[1]). The alarming disparity is the result of the historical acculturation and displacement of Inuit peoples as well as the failure of settler governments to maintain sustainable, culturally appropriate, and accessible healthcare.

Tuberculosis (TB) is an infectious disease that primarily targets the lungs and is caused by the inhalation of the bacteria Mycobacterium tuberculosis.[2] TB can affect bones, kidneys, and lymph nodes. Symptoms of active TB can include a bad cough, weakness, fever, and, if left untreated, death.[3] Currently, incidents of TB among Inuit peoples are 290 times higher than non-Indigenous Canadians.[4]

The history of TB in North America stretches back to the earliest European contact. Settlers brought TB as early as the 1400s. The Indigenous populations had little resistance to the disease and were highly susceptible to infection.[5] Reports from the 1800s suggest that TB killed more Inuit than all other diseases combined.[6]

During the 1950s and 60s, the Canadian government relocated Inuit peoples en masse from their traditional lands in order to control TB and “provide them with a better quality of life.”[7] Many Inuit were taken to sanitaria in southern Canada for treatment but never made it back to their communities.[8] This resulted in the separation of Inuit families, the displacement of Inuit people thousands of kilometres from their communities, and the disruption of Inuit culture. The movement resulted in children being sent to Residential Schools. TB was a crisis in Residential Schools as well, accounting for nearly 50% of recorded student deaths.[9]

The relocation caused radical changes in “gender roles, roles between generations, relationship with the land, coping mechanisms, and loss of language and cultural identity”[10] for the Inuit. Government efforts to house relocated Inuit “resulted in a dependence on social housing programs that continues today. Limited employment opportunities, coupled with lower levels of educational attainment, predispose Inuit to poverty which further entrenches this dependence.”[11] Lastly, acculturation, the rapid transition from a traditional society to an industrialized one, has brought about food insecurity, malnutrition, inadequate housing, mental illness, and addiction among the Inuit.[12] As shown below, these factors increase the occurrence of TB.

Sir William Osler, a Canadian physician, described TB as “a social disease with a medical aspect.”[13] Indeed, evidence clearly shows that social determinants exacerbate and worsen the prevalence of TB.[14] Inuit face higher infant mortality rates, lower average life expectancies, lower median incomes, higher rates of food shortages, and higher rates of unemployment compared to non-Indigenous Canadians.[15] 52% of Inuit in Nunangat live in overcrowded housing.[16] Overcrowded homes, indoor air pollution, and household mould all contribute to higher rates of TB.[17]

The shift from nutrient-dense country food to market food has caused poor diets and micronutrient deficiencies for Inuit peoples, which, in turn, increases the risk of TB.[18] It is recognized that utilizing traditional food systems results in “better cultural identity, health, and survival for Aboriginal peoples;”[19] however, there is a lack of access to culturally appropriate food. There exist serious geographic barriers, with Inuit patients having to travel thousands of kilometres for treatment. Furthermore, culture and language barriers between Inuit patients and non-Inuit healthcare workers can result in negative experiences, which can cause reluctance to seek further treatments.[20] Unemployment, mental illness, and addiction have been found to worsen rates of TB as well.[21]

Although past governments made concentrated efforts to combat TB during periods of outbreaks, there were never consistent treatment campaigns. Historically, when TB rates declined, healthcare intervention was abandoned.[22] Currently, the Tuberculosis Task Force, developed in partnership by Inuit Tapariit Kanatami (a leading organization representing Inuit peoples) and the federal government, aims to “[break] the cycle of transmission and [engage] Inuit as full partners in all aspects of TB prevention and control.”[23] Furthermore, the Liberal federal government has pledged $13 million for TB prevention and control, with over $1 million of that amount specifically aimed at Inuit populations.[24]

Settler governments have paternalistically approached TB treatment by ignoring the consequences of separating Inuit peoples from their families, communities, and traditional ways of living. The effects of this systemic ignorance have rippled through generations and plague thousands today. As future practitioners, it is important to remember that our legal systems are not separate from social realities. Moreover, settler and non-Inuit lawyers need to keep the above social and historical context in mind when working with Inuit clients and partners.

Until next time,

Team ReconciliAction YEG

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[1] The traditional territories of the Inuit are collectively known as Inuit Nunangat, which includes four regions: Inuvialuit (Northern NWT), Nunavut, Nunavik (Northern Quebec), and Nunatsiavut (Northern Labrador). See: “About Inuit” (no date), online: Inuit Knowledge Centre <www.inuitknowledge.ca/inuit-research/about-inuit>.

[2] “Tuberculosis: Frequently Asked Questions” (2016), online (pdf): Alberta Health Services <www.albertahealthservices.ca/assets/news/rls/ne-rls-2016-10-03-tb-faq.pdf>.

[3] “Symptoms of Tuberculosis (TB)” (last modified 24 March 2016), online: Government of Canada <www.canada.ca/en/public-health/services/diseases/tuberculosis-tb/symptoms-tuberculosis-tb.html>.

[4] M Patterson, S Finn & K Barker, “Addressing Tuberculosis Among Inuit in Canada” (2018) 44:3/4 Can Communicable Disease Report 82 at 82, online (pdf): Government of Canada <www.canada.ca/content/dam/phac-aspc/documents/services/reports-publications/canada-communicable-disease-report-ccdr/monthly-issue/2018-44/issue-3-4-march-1-2018/ccdrv44i03a03-eng.pdf> [Addressing Tuberculosis].

[5] Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: Supply and Services Canada, 1996) at 21.

[6] “Inuit-Specific Tuberculosis (TB) Strategy” (March 2013) at 12, online (pdf): Inuit Tapariit Kanatami <www.itk.ca/wp-content/uploads/2013/03/20130503-EN-FINAL-Inuit-TB-Strategy.pdf> [TB Strategy].

[7] Ibid at 14.

[8] The Nanilavut Initiative seeks to right this wrong by locating the burial grounds and remains of ancestors and relatives, returning them to their original communities. See: Michele LeTourneau, “Federal Apology Expected to Accompany Nanilavut Launch”, Nunavut News (10 March 2018), online: <nunavutnews.com/nunavut-news/federal-apology-expected-to-accompany-nanilavut-launch/>.

[9] Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: TRC, 2015) at 93.

[10] TB Strategy, supra note 6 at 14.

[11] Ibid at 16.

[12] Ibid at 14.

[13] Truth and Reconciliation Commission, Canada’s Residential Schools: The History, Part 1: Origins to 1939, vol 1 (Montreal: McGill-Queen’s University Press, 2015) at 379.

[14] Addressing Tuberculosis, supra note 4 at 83-84.

[15] “Social and Economic Inequality in Inuit Nunangat” (January 2018), online (pdf): Inuit Tapariit Kanatami <www.itk.ca/wp-content/uploads/2018/03/Social_Inequity_Infographic_English.pdf>.

[16] Ibid.

[17] TB Strategy, supra note 6 at 16-17.

[18] Ibid at 17.

[19] Ibid.

[20] Ibid at 21-22.

[21] Ibid at 20.

[22] Addressing Tuberculosis, supra note 4 at 83.

[23] “Tuberculosis Task Force” (last modified 7 November 2017), online: Government of Canada <www.canada.ca/en/indigenous-northern-affairs/news/2017/10/tuberculosis_taskforce.html>.

[24] Ibid.

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In Light of the Hateful Letter to the Andersons

Tansi Nîtôtemtik,

Photo retrieved from: https://globalnews.ca/news/4565993/racist-letter-st-albert-alberta-indigenous-condo/

 

Over the next two weeks, the ReconciliAction YEG team will explore how racism in Canada has affected Indigenous peoples in a broader societal sense that is not limited to the law. The law exists within a society, and in interpreting the law it is always helpful to better understand the society that is governed by the law and that gives the law its legitimacy.

 

Racism against Indigenous peoples was in the news again last week when Katrina Anderson (pictured above), an Indigenous woman and resident of St. Albert, Alberta, received a racist letter from an anonymous neighbour. [1] The letter singled out Anderson for her Indigenous identity and made numerous threatening statements against Anderson and her kids, ultimately telling them to “[g]o back to the reserve where Indians belong!” These words seemed even more threatening when considered in light of the fact that a month earlier, someone threw a rock through a window of the Andersons’ home. [2]

 

If you read the letter, you get the impression that its author thought that the Andersons did not belong in their own neighbourhood or in St. Albert. This is ironic considering, among other broader colonial realities, that St. Albert was established as a Métis settlement. [3] However, neither that irony, nor the broader irony of a settler telling an Indigenous woman that she doesn’t belong, seems to have occurred to the letter’s anonymous author.

 

Too often, Indigenous peoples are made to feel like they do not belong in their own homes. Too often, we settlers feel entitled to the lands that we occupy, and act on that entitlement through hate speech. The Supreme Court of Canada may have rejected the doctrine of terra nullius as applying in Canada, but the doctrine of stare decisis does not apply to settlers’ worldviews. [4] It is up to us settlers to reform our own worldviews so that someday Indigenous people, like the Andersons, no longer have to be the victims of settler entitlement.

 

Until next time,

Team ReconciliAction YEG

 

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[1] Phil Heidenreich, “Threatening letter that says ‘this isn’t a reserve’ prompts Alberta family to a move”, Global News (17 October 2018), online: <https://globalnews.ca/news/4565993/racist-letter-st-albert-alberta-indigenous-condo/>.

 

[2] Global News, “Racist, threatening letter prompts Alberta family to move out of their condo” (17 October 2018), online: Global News <https://globalnews.ca/video/rd/1346826307735/?jwsource=cl> at 00h: 01m: 05s.

 

[3] “Father Lacombe Chapel”, Musée Héritage Museum (website), online: <https://museeheritage.ca/heritage-sites/father-lacombe-chapel/>.

 

[4] Tsilhqot’in Nation v British Columbia, 2014 SCC 44, at para 69.

 

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Case Summary: R v Côté

Tansi Nîtôtemtik,

Outaouais Region in Quebec, photo retrieved from: https://where.ca/blog/photo-friday/giles-lake-outaouais-quebec/

R v Côté [1] is a leading Supreme Court of Canada case concerning an Aboriginal right to fish for food in accordance with ancestral practices. The facts, issues, and analysis are set out below.

The facts

In July 1984, members of the Desert River Band (the appellants), an Algonquin people, were convicted under Quebec’s Regulation Respecting Controlled Zones for entering a controlled harvest zone in the Outaouais region without paying a fee for motor vehicle access. The appellants had entered the controlled harvest zone for the purpose of teaching students traditional hunting and fishing practices. Franck Côté, an individual Desert River Band member, was also convicted under section 4(1) of the Quebec Fishery Regulations for fishing in the zone without a license. The appellants jointly challenged their convictions on the grounds that they were exercising an Aboriginal right and Treaty right to fish on their traditional lands under section 35(1) of the Constitution Act, 1982. Both the Superior Court and the Court of Appeal for Quebec upheld the convictions.

The Issues

The Supreme Court considered the following issues on appeal:

1. Can an Aboriginal right, such as fishing, exist independently of a claim to Aboriginal title?
2. If so, have the appellants established an Aboriginal right in this instance?
3. If an Aboriginal right has been established, has it been infringed?

Analysis & Decision

Chief Justice Lamer (as he then was) wrote the reasons for the majority (Justices La Forest and L’Heureux-Dube wrote separate concurring opinions). He concluded that the appellants were not required to prove Aboriginal title over the fishing area in question in order to demonstrate an ancestral Aboriginal right to fish. [2] The Court then proceeded to consider whether the appellants possessed an Aboriginal right to fish within the controlled harvest zone. In so doing, Lamer CJC utilized the test for an Aboriginal right set out by the Supreme Court in R v Van der Peet: [3]

1. Is the right to fish within the controlled harvest zone an integral part of the distinctive Aboriginal society of the Algonquin people, prior to European contact?
2. Is there a continuity between Aboriginal practices, customs, and traditions that existed prior to contact and a practice, custom, or tradition that is integral to Aboriginal communities today?

On the first branch of the test, the Court found that the evidence adduced at trial (as found by the trial judge) supported the conclusion that fishing in the controlled harvest zone was a significant part of the life of the Algonquin people, constituting their primary form of subsistence. [4]  Further, the record indicated that fishing remained a significant and integral part of Algonquin peoples’ lives. This meant that the second phase of the test was also met.

In considering whether the right had been infringed, the Court referenced the test for infringement set out in Sparrow: [5]

1. Was the limitation unreasonable?
2. Does it impose undue hardship?
3. Does it deny the holder of the right the preferred means of exercising that right?

The Court held that the Quebec Fishery Regulations infringed Côté’s right to fish for food. This was because the regulations required that a person fishing in a defined area required a license to do so. Under the regulations, the Minister of Fisheries retained the authority to issue individual licenses to Aboriginal persons, but there was no criteria stipulating how that discretion was to be exercised. Therefore, the regulation was unreasonable. Lamer CJC concluded that, at the very least, the regulatory regime was required to “structure the exercise of a discretionary power to ensure that the power is exercised in a manner consistent with the Crown’s fiduciary duties to Aboriginal peoples.”

By contrast, the Court held that the Regulation Respecting Controlled Zones did not infringe the appellants’ right to fish for food. This was because Algonquin persons could access the controlled zone by foot, without fee. The fee paid for entering the controlled zone was a form of “user fee” for the upkeep of the facilities and roads. Te Court therefore determined that the access fee facilitated, rather than restricted, the fishing rights of the appellants. [7] As such, the limitation was not unreasonable and did not impose undue hardship.

Our summary of Côté concludes ReconciliAction YEG’s two week coverage of leading Supreme Court of Canada cases in Aboriginal law. Next week, our blog will address Aboriginal peoples’ experiences of trauma and oppression. Thank you for reading!

Until next time,

Team ReconciliAction YEG

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[1] [1996] 3 SCR 139, 138 DLR (4th) 385 [Côté].

[2] Ibid at para 41.

[3]  [1996] 2 SCR 507, 137 DLR (4th) 289.

[4] Côté, supra note 1 at para 67.

[5]  [1990] 1 SCR 1075, 70 DLR (4th) 385.

[6] Côté, supra note 1 at para 76.

[7] Ibid at para 80.

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R v Morris

Tansi Nîtôtemtik,

Tsartlip First Nation, photo retrieved from: http://www.greenangelsfoundation.org/chopping-for-charity/first-nations/

Today’s post looks at the Supreme Court of Canada’s decision of R v Morris, an Aboriginal hunting rights case. The question posed to the Court was “whether a provincial government acting within its constitutionally mandated powers can interfere with treaty rights and, if so, to what extent.”[1]

 

Background & Facts

Morris and Olsen were arrested for breaches of prohibitions contained within the Wildlife Act, including: 

 

hunting of wildlife with a firearm during prohibited hours (s. 27(1)(d)); hunting by the use or with the aid of a light or illuminating device (s. 27(1)(e)); hunting without reasonable consideration for the lives, safety or property of other persons (s.29); and, in the case of Olsen only, discharging a firearm at wildlife from a motor vehicle (s. 28(1)). [2]

 

The charges were the result of a decoy operation, following a “rod and gun” club meeting, where members expressed dissatisfaction of Indigenous persons engaging in night hunting.[3] As a defence to the above charges, Morris and Olsen argued their right to hunt was protected by the North Saanich Treaty of 1852.[4]

 

The trial judge found that “night hunting with illumination was one of  the various methods employed by the Tsartlip [people] from time immemorial”. However, despite evidence that night hunting had not resulted in any accidents to date, he concluded that there was no treaty right to hunt at night because it was “inherently unsafe.” Both men were subsequently convicted under s.27(1)(d) (prohibited hours), and Olsen solely under s.28(1) (from motor vehicle). They were acquitted of s.29 (safety), and the charges were stayed in terms of s.27(1)(e) (illumination). The convictions under s.27(1)(d) were upheld by both summary convictions appeal judge as well as the Court of Appeal of British Columbia. [5]

 

The only provisions at issue before the SCC in this decision were s. 27(1)(d) and (e), in relation to night hunting, and the aid of light or illuminating device.

 

Analysis & Application

The Court divided their analysis into two parts:

1. Whether the impugned provisions of the Wildlife Act impair a treaty right (this involves characterizing the scope of the treaty right claimed by Morris and Olsen and delineating any limits on that right).
2. Whether the impugned provisions of the Wildlife Act are valid and applicable under the constitutional division of powers in ss. 91 and 92 of the Constitution Act, 1867 and under s. 88 of the Indian Act. [6] 

 

Part One

The Court discussed the treaty right in question between the Crown and the Saanich. The treaty commitment important to this case read “it is . . . understood that we [the Saanich Tribe] are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.” [7] Although the wording of such guarantee suggests freezing the exercise of the right to the time at signing, the Court refused this approach. The Court instead gave a liberal interpretation, in line with the Marshall decision, citing “[t]reaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories”.[8] Upon applying this approach to their analysis of the facts, the Court determined that the Tsartlip’s treaty rights include the right to hunt at night and with illumination, and consequently the Wildlife Act impaired this right. [9]

 

Part Two

The Court held that the legislative prohibitions set out in s. 27(1)(d) and (e) of the Wildlife Act, although valid provincial law, were nonetheless overbroad, inconsistent with the common intention of the parties to the treaties, and completely eliminated a chosen method of exercising their treaty right.[10] In order for provincial legislation to be applicable, it can only insignificantly interfere with a treaty right (anything more is a prima facie impairment of the treaty right). In applying this ratio to the facts, the Court found that the prohibitions involved a categorical ban on night hunting and hunting with illumination, which goes beyond a insignificant interference with a treaty right, and as such constitutes a prima facie infringement of a treaty right. [11]

 

In terms of s.88 of the Indian Act, Justices Deschamps and Abella for the majority stated:

 

Although provincial laws of general application that are inapplicable to aboriginal people can be incorporated into federal law under s. 88 of the Indian Act, this cannot happen where the effect would be to infringe treaty rights.  Because paras. (d) and (e) of s. 27(1) of the Wildlife Act constitute a prima facie infringement, they cannot be incorporated under s. 88 of the Indian Act. [12]

 

Thus, the impugned provisions of the Wildlife Act were not applicable in this case. For the above reasons, the Court allowed the appeal, set aside the convictions under s.27(1)(d) and (e), and entered acquittals for Morris and Olsen. [13]

 

Note: For Chief Justice McLachlin and Jutsice Fish’s dissent click here (paragraphs 62 +) 

 

Until next time,

 

Team ReconciliAction YEG

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[1] R v Morris, [2006] 2 SCR 915 at para 1, 274 DLR (4th) 193.

[2] Ibid at para 6.

[3] Ibid at para 8.

[4] Ibid at para 3.

[5] Ibid at paras 11-13.

[6] Ibid at paras 14-15.

[7] Ibid at para 17.

[8] Ibid at para 29.

[9] Ibid at para 41.

[10] Ibid at para 58.

[11] Ibid at para 60.

[12] Ibid.

[13] Ibid at para 61.

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R v Sioui

Tansi Nîtôtemtik,

A topiary creation photographed during a festival at Jacques-Cartier Park in 2017 in Gatineau, QC. Photo retrieved from: <http://985thejewel.com/dont-miss-mosaicanada-jacques-cartier-park/>

Continuing with our theme of examining Aboriginal law jurisprudence from Canada’s highest court, today’s post examines an older case decided in 1990: R v Sioui.[1] The case involved the prosecution of Huron Band members near Gatineau, Quebec, for cutting down trees, camping, and making fires in Jacques-Cartier Park. In considering the charges against the defendants, the Court had to decide whether the regulations applied to them as Indians per the definitions in the Indian Act, and whether an 18th century agreement could be regarded as a treaty that protected their rights to the activities at issue.

The defendants’ cutting down trees, making fires and camping in undesignated areas in Jacques-Cartier park was found contrary to ss. 9 and 37 of the Regulation respecting the Parc de la Jacques‑Cartier, adopted pursuant to the Quebec Parks Act. The defendants admitted that they did commit the offences, but also asserted that “they were practising certain ancestral customs and religious rites which are the subject of a treaty between the Hurons and the British, a treaty which brings section 88 of the Indian Act into play and exempts them from compliance with the regulations.”[2]

A large part of the SCC’s analysis focused on whether the 18th century agreement could be considered a treaty. To answer this question, the Court discussed whether each party (i.e. the government representative(s) and the Huron representative(s)) had the authority and capacity to enter into such an agreement; the legal nature of the document; and whether the agreement was a treaty. The Court found that the September 5, 1760 document was a treaty within the meaning of s. 88 of the Indian Act, but had to consider whether its status as a treaty could render the regulations of the Parks Act of no force in applying to the defendants in this case. [3]

Q: Did the treaty apply with respect to nullifying the requirements of the Parks Act regulations?

In short, yes. Chief Justice Lamer, writing for a unanimous court, held that, because of the 1760 document, the Crown’s occupation of the land was subject to the rights and customs of the Huron-Wendat. Regardless of Crown occupation, the Huron still had a right to practice their customs on the land, and the Siouis’ actions did not affect the Crown’s occupation of the park.[5]

The Court also discussed concepts of treaty interpretation that have guided subsequent Aboriginal law jurisprudence. The decision states that “once a valid treaty is found to exist, that treaty must in turn be given a just, broad and liberal construction.”[6] This sentiment invites courts to be liberal in their interpretation of treaties. Additionally, courts must assess the true  “spirit and intent” of the treaty from the Indigenous perspective rather than the purely literal reading of the text.[7]

 

Until next time,

Team ReconciliAction YEG

 

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[1] R v Sioui, [1990] 1 SCR 1025.

[2] Ibid at 1026.

[3] Ibid at 1060.

[4] Ibid at 1069-172.

[5] Ibid at 1075.

[6] Ibid at 1071.

[7] Ibid.

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Behn v Moulton Contracting Ltd

Tansi Nîtôtemtik,

Retrieved from: https://www.facebook.com/FortNelsonFirstNation/

Today’s post discusses Behn v Moulton Contracting Ltd, a Supreme Court of Canada decision that deals with issues of standing and abuse of process in the context of individuals asserting collective rights.

The appellants, the Behn family, are members of the Fort Nelson First Nation (FNFN), an Indian Act band and party to Treaty 8 in Northeastern British Columbia.[1] The respondents, Moulton Contracting Ltd, a lumber company, had applied for two timber harvesting licenses and a road permit for two parcels of land within the FNFN’s territory. The BC Ministry of Forests (“Ministry”) granted the licenses and permit, referred to as “the Authorizations.”[2] Traditionally, specific families of the FNFN are allocated lands to which they are entitled to hunt and trap (called traplines). The two parcels of land in question in this case have historically been associated with the Behn family.

Before the Authorizations were granted to Moulton, the Ministry contacted the FNFN, trappers and George Behn, the headman of the Behn family, for the purposes of getting their advice and amending government plans for forestry development. After several exchanges between the parties and an amendment to complete archaeological impact assessments, the Ministry informed George Behn that they had granted the Authorizations to Moulton. Mr. Behn wrote to the Ministry requesting that the licenses and permit be cancelled and further consultation take place. Moulton moved equipment on to the land to begin operations. In response, the Behns set up camp blocking Moulton from carrying out their harvest, arguing that the Crown had not fulfilled their duty to consult and that community members’ treaty rights to hunt and trap were being infringed.

Moulton sued the Behns, the FNFN and its chief, as well as the Crown, claiming damages against the Behns due to interference in contractual relations. The case was appealed to the Supreme Court of Canada.

The Court outlined three legal issues in dispute:[3]

1. Can individuals members of an Aboriginal group raise a breach of collective rights or a breach of the duty to consult?
2. Can those individuals invoke treaty rights?
3. Did the Behns’ blocking of the timber harvest as a challenge to the Authorizations amount to an abuse of process?

Duty to Consult:

The Behns argued that their blockade was not illegal since the Crown failed to properly discharge their duty to consult when issuing the Authorizations. Because the duty to consult was breached and the Authorizations were invalid, the Behns’ actions were justified. Before addressing these issues, the Court had to first determine whether the Behns themselves could legitimately assert the duty to consult.

The Court proceeded to give a lengthy overview of the duty to consult.[4] In this decision, the duty to consult is characterized by the following:

• A part of the process of reconciliation demanded by section 35 of the Constitution Act, 1982
• Applies to treaty rights and cannot be contracted out of when negotiating modern treaties
• Constitutional and legal duty of the Crown, which is derived by the Honour of the Crown
• Supports the reconciling of Crown sovereignty with the pre-existence of Aboriginal societies
• Triggered when knowledge exists of an Aboriginal right or title and Crown conduct will adversely affect that right
• Content of the duty depends on the severity of the infringement and the strength of the right or title (mere consultation to accommodation)
• Mandates that both the Crown and the Aboriginal group must act in good faith and be reasonable and fair in their dealings with one another
• Does not give Aboriginal peoples a veto over Crown conduct
• Does not require the parties to reach a substantive agreement
• Is owed to Aboriginal groups defined under section 35 of the Constitution Act, 1982, and these peoples hold such rights collectively, not individually

Individuals and organizations can be authorized by an Aboriginal group to assert s. 35 rights on behalf of that group. However, the FNFN never explicitly authorized the Behns to contest Moulton’s licenses and road permit;[5] even though the FNFN did implicitly approve of the Behns representing their interests in this case. The Court found that the Behns cannot claim a breach of the duty to consult, since that duty is owed to FNFN, the Aboriginal group, and not the Behns individually.[6]

Treaty Rights:

The Behns also challenged the legality of the Authorizations by claiming their treaty rights to hunt and trap were violated. The Crown argued that only collective bodies, such as the FNFN, have legal standing to bring such an action. The Court held that although Aboriginal and treaty rights are collective in nature, it is also true that individuals exercise these rights; they possess both collective and individualistic features.[7] The Grand Council of the Crees and the Cree Regional authority, as interveners in this case, argued that Aboriginal and treaty rights should be categorized as either collective, mixed, or individualistic.[8] Ultimately, the Court rejected this argument, finding it unnecessary to create the suggested broad categories at this stage of the development of the law.

A second line of argument was put forward claiming that because the lumber harvesting area in question was on the Behns’ traditional traplines, they had a greater interest in stopping Moulton than other members of the FNFN. Accordingly, the Behns were in a unique position because of the specific geographic tie to the proposed harvesting area. However, the Court declined to make a decision on whether the Behns had proper legal standing on this basis since the issue of abuse of process would ultimately decide the appeal regardless.

Abuse of Process:

The Court outlined the doctrine of abuse of process as a flexible, inherent, and residual power of the judge’s discretion to prevent the misuse of court procedure.[9] The doctrine is used to avoid the violation of principles of justice, oppressive or vexatious proceedings, and to ensure that the administration of justice is not brought into disrepute.

Neither the Behns nor the FNFN sought judicial review, requested an injunction, or asked for other judicial relief at the appropriate time.[10] The Behns had an opportunity to act when the Authorizations were first granted. The Timber Sales manager had the power to suspend the Authorizations until all legal issues were resolved. If the Behns were to appropriately challenge the Crown’s decision, it had to have been during the license-issuing phase.

The Court held that the Behns arguing a breach of the duty to consult and a violation of treaty rights was an abuse of process. To allow the Behns’ submissions would be “tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”[11] Furthermore, the Court found that the Behns’ actions were not done in good faith, which is a foundational principle of the duty to consult. Ultimately, the Court dismissed the appeal.

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[1] Behn v Moulton Contracting Ltd, [2013] 2 SCR at para 5, 357 DLR (4th) 236.

[2] Ibid, para 6.

[3] Ibid, paras 18-19.

[4] Ibid, paras 26-30.

[5] Ibid, para 31.

[6] Ibid.

[7] Ibid, para 33.

[8] Ibid, para 34.

[9] Ibid, para 39.

[10] Ibid, para 37.

[11] Ibid, para 42.

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Mikisew Cree First Nation v Canada

Tansi Nîtôtemtik,

Retrieved from: www.facebook.com/mikisewcreefirstnation/

“So what does reconciliation mean to the rest of Canada, to the federal government? All the nice words are meaningless, don’t mean nothing … I ask you to reach out and stand together as we should.” - Steve Courtoreille, former Mikisew chief who initiated the 2013 court action.[1] 

On October 11, 2018, the Supreme Court of Canada released their latest decision concerning Aboriginal law: Mikisew Cree First Nation v. Canada. This decision had unanimous agreement in its result, but had four sets of reasons justifying why the Court decided the way it did. 

The overarching question in this appeal was whether the duty to consult (for background on this concept, see our post from last year), should apply to the legislative process -- basically, whether the government has to consult before a law is passed. The laws in question in this specific case were two omnibus bills passed in 2012 by the then-Conservative federal government. In the bills, there were some changes to regulatory protections for waterways and the environment, which the Mikisew Cree felt affected their constitutionally-protected right to hunt, trap, and fish. The Mikisew thought that they should have been consulted before the legislation was drafted and tabled in Parliament. Therefore, the Mikisew began their lawsuit to ask the Court to extend the government’s duty to consult obligations.[2]

The Court dismissed the appeal, rejecting the Mikisew Cree’s argument that the duty to consult should apply to the lawmaking process of the federal government. There are four separate sets of reasons as to why this decision was made, summarized in brief below. For the full decision, click here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17288/index.do.

Reasons for Judgment (Karakatsanis J. (Wagner C.J. and Gascon J. concurring)) [3]

• The Federal Court did not have jurisdiction to consider the judicial review application of the Mikisew Cree. Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under the Constitution Act, 1867. Therefore, the process of legislation creation cannot be subject to judicial review.
• The duty to consult doctrine is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers.
• The separation of powers, an essential value of Canada’s constitution, “recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others.”[4] Therefore, recognizing that a duty to consult applies during the law-making process may require courts to improperly trespass onto the legislature’s domain. Recognizing a duty to consult in this arena would undoubtedly go against the principles of parliamentary sovereignty and parliamentary privilege.
• The remedies available for breaches of the duty to consult would not be appropriate for breaches of the duty in the law-making process because of its invitation to courts into the process.
• Practical concerns include: if a government consulted, they could always amend the law later; private members bills would not trigger the duty; as well “disentangling what steps the duty to consult applies to (because they are executive) and what actions are immune (because they are parliamentary) would be an enormously difficult task.”[5]
• Just because the duty to consult as a legal concept is not found to apply to the legislative process, the government is not absolved of their duty to act honourably. There are sufficient remedies for Aboriginal groups when a law may affect their section 35 rights.

In their concurring reasons,  Justices Abella and Martin agreed with the analysis regarding the Federal Court’s lack of jurisdiction. However, their reasons differed in their analysis of the duty to consult. They found that “because the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under section 35.”[6] However,  if it were found that the government breached their duty to consult, this would not necessarily invalidate legislation. “The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively, and should not...become a means by which legislation is routinely struck down.”[7]

In his concurring reasons, Justice Brown commented that:

The entire law‑making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference. The making of policy choices is a legislative function, while the implementation and administration of those choices is an executive function. This precludes judicial imposition of a duty to consult in the course of the law‑making process. [8]

The final set of concurring reasons, from Justices Moldaver, Côté and Rowe, indicated agreement with Justice Brown, and further emphasized the danger of the courts playing an interventionist role in the law-making process. [9]

The decision in this case presented an opportunity for the Court to require the government to work with First Nations stakeholders proactively, during the policy-making process. Instead, the current system remains: the government makes a law that negatively affects constitutionally-protected rights, and that group must spend considerable time and expense in litigation to try and fight for their rights. This is certainly not the result that the Mikisew Cree were looking for, but they have indicated in interviews that their fight does not end with this decision. [10]

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[1] “'We're going to rally': Mikisew Cree leaders vow to be heard after Supreme Court rules against duty to consult” , Nicole Bergot, Edmonton Journal (11 Oct 2018), online: <edmontonjournal.com/news/local-news/were-going-to-rally-mikisew-cree-leaders-vow-to-be-heard-after-supreme-court-rules-against-duty-to-consult>.

[2] Mikisew Cree First Nation v Canada (Governor General in Council) at 4-11.

[3] Ibid at 13-53.

[4] Ibid at 35.

[5] Ibid at 40.

[6] Ibid at 54.

[7] Ibid at 96.

[8] Ibid at 102.

[9] Ibid at 149.

[10] Supra note 1.

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Case Briefs: Beckman v Little Salmon/Carmacks First Nation

Tansi Nîtôtemtik,

Photo retrieved from: <https://whatsupyukon.com/locations/little-salmon-carmacks-first-nation-government/>.

 

Beckman v Little Salmon/Carmacks First Nation [1] is a leading Supreme Court of Canada case concerning the Crown’s duty to consult Aboriginal peoples within the context of a modern Treaty agreement. The case is significant for two main reasons: firstly, it is the Supreme Court’s first judgment to discuss the duty to consult within a modern treaty framework; and secondly, it offers substantial discussion on the nature of the duty and its application, particularly when it intersects with the rights of third parties and private interests.

 

Background & Facts:

Little Salmon/Carmacks First Nation (“Little Salmon”) entered into a modern land claim agreement (the “LSCFN Treaty”) with the federal and Yukon Territory governments in 1997. [2] The LSCFN Treaty is one of 11 that falls under an umbrella agreement signed in 1993 after 20 years of negotiations  between the Council of Yukon Nations, the Government of Canada, and the Government of the Yukon. [3] Under the terms of the LSCFN Treaty, Little Salmon members retain a right of access for hunting and fishing for subsistence in the traditional territory.

In October 2004, the Yukon Director of Agriculture approved an application for 65 hectares of agricultural land made by Larry Paulsen, a Yukon resident, after recommendation from the Yukon Land Application Review Committee (“LARC”). Paulsen’s application contained lands that fell within the traditional and Treaty areas of Little Salmon. Of particular concern, the land intersected the trapline of Mr. Johnny Sam, a Little Salmon member.  

Prior to its final approval in October 2004, Little Salmon wrote to LARC outlining its concerns with the proposed grant. Specifically, the First Nation submitted that the land grant would significantly interfere with the traditional hunting and trapping activities of Mr. Johnny Sam. The First Nation was invited to attend a LARC meeting reviewing the land grant scheduled for July 2014, but they failed to do so. The meeting minutes indicated that Little Salmon’s concerns were addressed. Despite this, the First Nation was not notified by the Director of Agriculture that the application had been approved until July 2005, nearly a year after its approval. [4]

 

Issue & History

Following the approval, the First Nation commenced an application for judicial review. At issue was whether the LSCFN Treaty precluded a duty of the Government of Yukon to consult with the First Nation, because consultation for land grants was not specifically provided for under the terms of the Treaty. A subsidiary issue was whether, if the duty to consult applied, it had been met based on the facts at hand.

Both chambers judge [5] and the Yukon Court of Appeal [6] held that the LSCFN Treaty did not preclude the Crown’s duty to consult in this instance, though the duty fell to the lower end of the spectrum. The Court of Appeal also held that the Yukon Government had met its duty to consult in this case, reversing the lower court on this point.

 

The Decision: Supreme Court of Canada

The Supreme Court of Canada unanimously dismissed the appeal. Justice Binnie, writing for the majority, held that the LSCFN Treaty did not exclude the duty to consult in this instance, as “the Crown cannot contract out of its duty of honourable dealing with Aboriginal peoples.” [7] He tied the “thoughtful administration of the treaty” to the overall goal of reconciliation. [8]  However, he concluded that the duty had been met in this case. This was because Little Salmon had sufficient knowledge of the application and was entitled to submit its concerns to LARC in writing, which had been addressed at the July 2004 LARC approval meeting. [9]

Binnie J’s reasons are notable for highlighting the rights and expectations of non-Aboriginal persons within the consultation process. In particular, he emphasized Mr. Paulsen’s entitlement to a government decision that was procedurally fair and made within a “reasonable timeframe.” [10] He also framed the hunting and trapping rights of Mr. Sam as a “derivate benefit,” concluding that Mr. Sam was not an appropriate party to the consultation. [11]

On the extent and scope of the duty, Binnie J elaborated further:

The First Nation goes too far ... in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive rights of accommodation. The First Nation submits that its concerns were not taken seriously - if they had been, it contends, the Paulsen application would have been denied. This overstates the scope of the duty to consult in this case. The First Nation does not have a veto over the approval process. No such substantive rights is found in the treaty or in the general law, constitutional or otherwise. [12] 

In a concurring minority opinion, Justice Deschamps concluded that the particular provisions of a Treaty, when relevant, should prevail over the common law concerning the Crown’s duty to consult. [13] Since the LSCFN Treaty provided a consultation mechanism for the transfer of Crown land, he stated, these terms should apply to overrule the common law. Under the circumstances, Deschamps J agreed with the majority that the Crown’s duty to consult had been met in this case, despite the delay in notifying the First Nation that the application had been successful. [14]

What does Little Salmon tell us about the nature and content of the duty to consult, as it pertains to modern treaty agreements? The decision is positive in the sense that it does not permit the Crown to “contract out” of its duty to consult Aboriginal peoples in the context of modern treaties. However, it is noteworthy that the Court discredited the collective Treaty rights of the First Nation as exercised by Mr. Sam under the LSCFN Treaty in favour of an individual proprietary right possessed by Mr. Paulsen. It speaks to a theme in the jurisprudence to favour individual rights over the collective, which can have the unfortunate effect of infringing upon Indigenous and Treaty rights in the process.

 

Until next time,

Team ReconciliAction YEG

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[1] 2010 SCC 53, [2010] 3 SCR 103 [Little Salmon].

[2] Little Salmon/Carmacks First Nation Final Agreement, (1997 July 1), online:  <http://www.eco.gov.yk.ca/pdf/little_salmon_carmacks_fa.pdf.>

[3] Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon, (1993).

[4] Little Salmon, supra note 1 at para 198.

[5] 2007 YKSC 28, 296 DLR (4th) 99.

[6] 2008 YKCA 13,  296 DLR (4th) 99.

[7] Little Salmon, supra note 1 at para 61.

[8] Ibid at para 10.

[9] Ibid at para 7.

[10] Ibid at para 35.

[11] Ibid.

[12] Ibid at para 14.

[13] Ibid at para 94.

[14] Ibid at para 205.

 

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Case Briefs: R v Pamajewon

Tansi Nîtôtemtik,

Shawanaga First Nation, photo retrieved from: http://shawanagafirstnation.ca

 

Today’s post will discuss the Supreme Court of Canada’s (SCC) decision in R v Pamajewon, a leading case in Aboriginal self-government under Section 35 of the Constitution Act, 1982.

The facts: Pamajewon and Jones

The appellants were Jones and Pamajewon, members of the Chief and Council of Shawanaga First Nation in Ontario. After high-stakes bingo and other gambling activities were found taking place on the Shawanaga First Nation, both were found guilty of the offence of keeping a common gaming house contrary to section 201(1) of the Criminal Code. This section of the Code reads as follows:

201. (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. [1]

The appellants argued that such activities fell under the authority of the Shawanaga First Nation lottery law; however, there was no by-law passed pursuant to section 81 of the Indian Act, nor was there a provincial licence authorizing the gambling activities. The band argued both were unnecessary due to their inherent right of self-government under Section 35(1) of the Constitution Act, 1982. [2]

 

The facts: Gardner, Pitchenese and Gardner

In addition to the above, Arnold Gardner, Jack Pitchenese and Allan Gardner, members of the Eagle Lake First Nation, were also appellants for a case heard at the same time. They were found guilty of conducting a scheme for the purpose of determining the winners of property, contrary to section 206(1)(d) of the Criminal Code.  Section 206(1)(d) of the Code reads as follows:

206. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who

(d) conducts or manages any scheme, contrivance or operation of any kind for the purpose of determining who, or the holders of what lots, tickets, numbers or chances, are the winners of any property so proposed to be advanced, lent, given, sold or disposed of...[3] 

The parties were directly involved with operating a bingo on-reserve, which they argued was pursuant to the Eagle Lake First Nation Band Council’s lottery law. This law was also not a by-law passed pursuant to section 81 of the Indian Act, nor was there a provincial licence authorizing the gambling activities.[4]

 

Issue

The issue to be decided by the SCC in this case was read as the following constitutional question:

Are s. 201, s. 206 or s. 207 of the Criminal Code, separately or in combination, of no force or effect with respect to the appellants, by virtue of s. 52 of the Constitution Act, 1982 in the circumstances of these proceedings, by reason of the aboriginal or treaty rights within the meaning of s. 35 of the Constitution Act invoked by the appellants? [5]

 

Analysis

Chief Justice Lamer, writing for the majority, stated that “[a]ssuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is nonetheless that laid out in Van der Peet…[as] claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard.”[6] In asserting their claim to self-government, the SCC had to decide whether s. 35(1) affirmed the rights of the Eagle Lake and Shawanaga First Nations to “participate in, and to regulate, gambling activities on their respective reserve lands.”[7]

 

Decision

After applying the test set out in R v Van der Peet, the Court found that “the gambling activities, and the bands’ regulation of those activities do not fall within the scope of  the Aboriginal rights protected under s. 35(1).”[8] Although there was evidence that the Ojibwa people had traditions of public games and sporting events, which pre-dated the arrival of Europeans, these practices were not deemed as integral to their distinctive culture. [9]

 

(Note: For those that need a refresher on Van der Peet and the test for Aboriginal rights, check out last semester’s blog post!)

 

Until next time,

Team ReconciliAction YEG

 

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[1] Criminal Code, RSC 1985, c C-46, s 201(1) [Code].

[2] R v Pamajewon, [1996] 2 SCR 821 at paras 3-6, 138 DLR (4th) 204 [Pamajewon].

[3] Code s 206(1)(d).

[4] Pamajewon at paras 8-11.

[5] Pamajewon at para 20.

[6] Pamajewon at para 24.

[7] Pamajewon at para 26.

[8] Pamajewon at 36.

[9] Pamajewon at paras 26-28.

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Supreme Court Decisions: Lax Kw'alaams Indian Band v. Canada

Tansi Nîtôtemtik,

Photo retrieved from: https://www.fraserinstitute.org/blogs/what-is-the-lax-kwalaams-first-nation

Many First Nations claims about hunting and fishing rights have been litigated all the way to the Supreme Court of Canada. One such case was Lax Kw'alaams Indian Band v. Canada (Attorney General). This case dealt with the distinctions between pre-contact and post-contact practices of the Lax Kw'alaams Band on the BC coast. The overall question posed to the SCC was: which practices were distinctive and integral enough to be considered part of their pre-contact culture? [1] 

Essentially, the Lax Kw’alaams were trying to establish that their large-scale commercial fishing activity was protected as an Aboriginal right.[2] These appeals were not in response to criminal charges or regulatory prosecutions; rather, they were the result of the Lax Kw’alaams efforts to open the door on this particular right.

The Lax Kw’alaams are a traditional fishing people whose way of life has been interconnected with the fishing, harvesting, and production of goods from the abundant fish available, such as salmon, halibut, and eulachon. It was a key point that these people both consumed and traded these fish, creating products for trade such as eulachon grease, which was a highly valuable preservative. [3]

The Lax Kw’alaams asserted their history as supporting a modern right to harvest and sell fish commercially, as a way for them to accumulate wealth and prosperity. In fact, this aspect was asserted as being part of their culture -- “the “accumulation and redistribution of wealth to acquire or retain a high rank” within Tsimshian society were said to be integral features of their distinctive Aboriginal culture.” [4]

The SCC’s Justice Binnie, writing for a unanimous Court, framed the issue as “whether [the Lax Kw’alaams’] ancestral practices, customs and traditions provide a proper legal springboard to the right to harvest and sell all varieties of fish in a modern commercial fishery — a right that would be protected and privileged by section 35(1) of the Constitution Act, 1982.” [5]

Acknowledging the need for a certain amount of flexibility in these types of cases, Justice Binnie outlined a 4-step consideration process that a court should follow when deciding on an Aboriginal rights claim.

1. Characterize the “precise nature of the claim” based on the arguments and facts before the court.
2. Determine whether the applicants have proven both (i) the existence of the pre-contact practice, and (ii) that the practice was integral to the distinctive pre-contact Aboriginal society.
3. Determine whether the claimed modern right can be reasonably considered to be a continuation of the established pre-contact practice.
4. If an Aboriginal right to commercial trade is found to exist based on the previous three factors, courts should consider that, in the right circumstances, objectives such as the pursuit of economic and regional fairness are in the interest of all Canadians and, “more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.”[6]

In the decision, the Court deferred to the trial judge’s findings of fact, especially that the Lax Kw’alaams’ ancestors “were not a trading people.” Ultimately, the SCC rejected their claim to a modern commercial right. [7]

Until next time,

Team ReconciliAction YEG

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[1] Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56

[2] Ibid at para 7.

[3] Ibid.

[4] Ibid at para 22.

[5] Ibid at para 39.

[6] Ibid at para 46.

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Case Briefs: R v Badger

Tansi Nîtôtemtik,

Map of Treaty 8 territory. Image retrieved from: <sites.ualberta.ca/~publicas/folio/36/20/opinion.html>

Today’s post will review the Supreme Court of Canada case of R v Badger, a leading case on treaty hunting rights and treaty interpretation.

Three appellants, Wayne Clarence Badger, Leroy Steven Kiyawasew, and Ernest Clarence Ominayak (all three were Cree status Indians under Treaty 8) were charged with violating provisions of the Alberta Wildlife Act. [1] Specifically, Mr. Badger was charged under s. 27(1) for shooting a moose outside of the hunting season. Mr. Kiyawasew and Mr. Ominayak were charged under s. 26(1) for shooting moose without hunting licenses. All three were hunting on privately owned lands within ceded Treaty 8 territory.

Three issues were raised by the appeal:

• Are status Indians allowed to hunt on private lands situated within ceded treaty territory?
• Did the Natural Resources Transfer Agreement, 1930 (NRTA) modify or extinguish the appellants’ hunting rights?
• Do sections 26(1) and 27(1) of the Wildlife Act apply to status Indians?

Issue #1:

The Court set out a standard for determining if status Indians can hunt on privately owned land. Justice Cory stated, “the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use.” [2] In applying this new approach, the Court found that both Mr. Badger and Mr. Kiyawasew were hunting on lands that they did not have a right of access. Mr. Badger was hunting a quarter of a mile from a farm house that did not appear abandoned while Mr. Kiyawasew was hunting in a field where crops were recently harvested, run-down barns were close, and signs were posted. However, Mr. Ominayak was hunting on a muskeg, with no signs, fences, or buildings nearby. The Court found that this was unoccupied land for the purposes of hunting and within the scope of Mr. Ominayak’s treaty right to hunt.

Issue #2:

Treaty 8 outlined two restrictions on hunting rights: first, a geographic limitation, i.e., the hunting rights only apply within the surrendered tracts; and second, government regulations for conservation purposes. [3] The NRTA transferred responsibility over game laws from the federal government to the provincial governments. In doing so, it also conferred the power to apply conservation laws to status Indians in order to protect game and fish supplies. [4] The Court found that the NRTA did not extinguish the treaty right to hunt for food. Rather, the NRTA modified the treaty right by ending the right to hunt commercially but increased the hunting area to include all unoccupied Crown land in the province, during any season.[5] Under both the Treaty and the NRTA, hunting rights would be subject to conservation regulations.

Issue #3:

Based on the visible, incompatible use standard mentioned above, the Wildlife Act did not infringe on Mr. Badger’s and Mr. Kiyawasew’s treaty rights since they had no right of access to the lands in question. Thus, the Wildlife Act applied to both hunters. [6] Because Mr. Ominayak was hunting on land not being put to visible use, his treaty right to hunt was not affected by the geographic limitation. In applying the Sparrow test, the Court found that the hunting licensing scheme prima facie infringed Mr. Ominayak’s treaty rights; however, the Court could not make a finding on whether the infringement was justified since the government did not present any evidence to that effect. [7]

Mr. Badger’s and Mr. Kiyawasew’s appeals were dismissed while Mr. Ominayak’s appeal was allowed and a new trial was ordered to determine whether the government could justify their infringement on his hunting rights. [8]

In its decision, the Court also set out established treaty interpretation principles: [9]

• Treaties are sacred, solemn agreements between First Nations and the Crown
• The honour of the Crown is always at stake
• It is assumed that the Crown intends to fulfill its obligations and “sharp dealings” will not be tolerated
• Any ambiguities in the treaty will be resolved in favour of the First Nations
• Any restrictions of rights under the treaty will be narrowly construed
• The onus of proving rights under the treaty have been extinguished lies on the Crown
• The Crown must show that there was clear and plain intent to extinguish the rights
• Treaties must be not be interpreted in a strict technical sense but rather in the sense that they would have been understood by the First Nations at the time of the signing [10]
• Because the First Nations relied on oral agreements rather than written ones, verbal promises made by commissioners during negotiations are useful in treaty interpretation [11]

Professor Catherine Bell argues that the decision is a disappointing one, writing that the power of the federal government to abrogate treaty rights unilaterally without the consent of Treaty Nations “leaves treaty rights in a vulnerable position.” [12] A more progressive approach to treaty jurisprudence could better recognize the nation-to-nation relationship the treaties solemnized.

 

Until next time,

 

Team Reconcili-Action YEG

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[1] R v Badger, [1996] 1 SCR 771 at paras 21-22, 133 DLR (4th) 324 [Badger].

[2] Ibid at para 54

[3] Ibid at para 40.

[4] Ibid at para 33

[5] Ibid at para 83.

[6] Ibid at para 101.

[7] Ibid at para 98.

[8] Ibid.

[9] Ibid at para 41.

[10] Ibid at para 52.

[11] Ibid at para 55.

[12] Catherine Bell, “R. v. Badger: One Step Forward and Two Steps Back?” (1997) 8:2 Const Forum Const 21 at 26.

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Case Briefs: St. Catharine's Milling

Tansi Nîtôtemtik,

Photo retrieved from: http://www.wabigoonlakeon.ca/

For the next two weeks, ReconciliAction YEG will be summarizing important Aboriginal law cases. Today’s post will cover what was the leading case on Indigenous land rights for 85 years: St. Catharine’s Milling and Lumber Company v The Queen. [1]

 

St. Catharine’s Milling was a jurisdictional dispute between Ontario and Canada that was appealed all the way up to the Judicial Committee of the Privy Council (the final judicial authority in Canada at the time). While one of the primary issues in the case concerned the nature of Indigenous land rights, there was no Indigenous representation in the arguments made before the Privy Council. All arguments about the nature of Indigenous land rights were made by colonial government officials, and so Indigenous peoples were not given a voice in deciding how their land rights would be described for nearly a century.

 

The dispute arose because Ontario served a writ on St. Catharine’s Milling and Lumber Company (the spelling of which is a little inconsistent) after the company acted on a permit by the federal government to harvest trees from a tract of land near Wabigoon Lake (pictured above) in Treaty 3 territory. The Salteaux tribe of the Ojibway people ceded the land to the federal government in Treaty 3, and the federal government in turn granted a logging permit to St. Catharines. Ontario successfully argued that, pursuant to the British North America Act, [2] the federal government could not grant this logging permit because it was an infringement on provincial jurisdiction.

 

Edward Blake, counsel for Ontario, argued that there were three possible characterizations of Indigenous interests in land: first, that Indigenous peoples had an absolute interest in their land; second, a “middle view” that Indigenous people had a right of “occupancy and enjoyment, of a special kind, perhaps limited to the purposes of hunting and fishing, tribal in its character, capable, not of transfer, but only of extinguishment or of surrender to the owner of the fee or of the allodial title…” (the “allodial title” in this case meaning the Crown); and third, a “lowest view of Indian title,” which denies Indigenous peoples an absolute legal right to land, but permits them to use and enjoy the land based on “grace and policy.” [3]

 

The third, lowest view was the view that was adopted in St. Catharine’s Milling, and consequently the view that governed Canadian law for almost a century. Lord Watson, delivering the judgment for the Privy Council, considered the Royal Proclamation of 1763, [4] and went so far as to say the following about lands that were not ceded or sold to the Crown in a treaty:

 

It was suggested, in the course of the argument for the Dominion, that inasmuch as the [Royal Proclamation of 1763] recites that the territories thereby reserved for Indians had never been “ceded to or purchased by” the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the [Royal Proclamation of 1763], which show that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the sovereign. [5]

 

As such, for most of the 20th Century, Indigenous title meant something less than a “right.” It meant that the Crown merely permitted Indigenous people usufructuary enjoyment and occupation of their lands. Because of St. Catharine’s Milling, there would be no common law recognition of the modern concept of “Aboriginal title” until the Supreme Court of Canada would decide Calder v British Columbia (Attorney-General) [6] in 1973. The Truth & Reconciliation Commission has said that until Calder and subsequent Aboriginal title cases were decided, St. Catharine’s Milling contributed to a “chilling effect on the willingness of Aboriginal people to turn to the civil system to address their disputes with government or to assert the rights they felt they continued to have.” [7]

 

In conclusion, St. Catharine’s Milling was a significant obstacle to Indigenous peoples’ land rights, and their participation in our legal system for the better part of a century.

Until next time,

 

Team ReconciliAction YEG

 

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[1] [1888] UKPC 70, [1888] 14 AC 46 (12 December 1888) [St. Catharine’s Milling].

 

[2] The British North America Act, 1867, SS 1867, c 3.

 

[3] Blake, Edward. The St. Catharine's Milling and Lumber Company V. the Queen: Argument of Mr. Blake, of Counsel for Ontario. Toronto: Press of the Budget, 1888. Arguments of Counsel for the Respondent.

 

[4] Royal Proclamation, 1763, RSC, 1985, App. II, No. 1.

 

[5] Supra note 1 at 5.

 

[6] [1973] SCR 313, 34 DLR (3d) 145 [Calder].

 

[7] Truth and Reconciliation Commission of Canada. Final report of the Truth and Reconciliation Commission of Canada: Volume 5. Montreal: McGill-Queen’s University Press, 2015.

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The Pass System

Tansi Nîtôtemtik,

Photo retrieved from: https://www.uregina.ca/external/communications/feature-stories/current/images/fsp-11182015.jpg

 

The “pass system” is a part of Western Canada’s history that our readers may not be familiar with. The system largely restricted Indigenous persons’ mobility rights. Following the North-West Rebellion, the pass system materialized as an effort by Indian Affairs to confine Indigenous peoples of Canada’s Prairies to their reserve. As such, in order for a person to leave their reserve, they were required to obtain a pass, which outlined the duration and purpose for their absence. The Indian Agent then approved or refused their absence. Those found outside of their reserve without a pass, or in violation of their pass, were subsequently taken into custody and summarily returned to their reserve. [1]

 

So where did this terrible system start?

On May 6, 1885, in a letter addressed to Edgar Dewdney, Major General Middleton advised the Indian Commissioner to “issue [a] proclamation warning breeds and Indians to return to their reserves and that all found away will be treated as rebels.”[2] Later that summer, Hayter Reed, recently “promoted” to Assistant Indian Commissioner, drafted a lengthy memorandum regarding the “future management of Indians” for Dewdney. Recommendation seven from this memorandum read as follows:

No rebel Indians should be allowed off the Reserves without a pass signed by an J.D. official. The dangers of complications with white men will thus be lessened, and by preserving a knowledge of individual movements any inclination to petty depredations may be checked, by the facility of apprehending those who commit such offences.[3]

The implementation of the pass system soon followed.

 

No basis in law

Aside from the obvious issue with restricting individual rights to mobility, a major issue of the pass system was that it had no basis in law, but was deemed rather as a “local administrative tyranny, informally endorsed at the ministerial level of Indian Affairs”.[4] Indigenous peoples who were meant to abide by this farce of a system fought against it by disobeying the restrictions imposed by the Indian Agent. Eventually, the North West Mounted Police chose to no longer enforce the passes, in the absence of legislative sanctions to backup the system. Hayter Reed acknowledged the absence of law in order to make the system enforceable, writing in a letter, “there has never been any legal authority for compelling Indians who leave their reserves to return to them.” He later wrote, “all we can do is to endeavour to keep the true position from the Indians as long as possible.” [5] By the early 1890s, Indian Affairs modified the substance and intent of the system, transitioning it to a form of monitoring movement of Indigenous peoples. This system continued until 1941 and was formally repealed in 1951. [6]

 

Residential Schools

The system also had an impact on mobility for Indigenous parents hoping to reunite with their children. Oral history from Elders who experienced the pass system firsthand recall its use in keeping families apart during this time, recollecting that “the pass system helped support the residential school system as Indian agents would often refuse to sign passes if they suspected they would be used to visit children there.”[7]

 

To our readers

Less than a hundred years ago, individuals were told to essentially “check in and out” with an agent. We ask our readers to imagine having to ask to leave their homes to go buy food from the supermarket - something that Indigenous persons living on-reserve were expected to do (see photo above). The pass system is another example of how Canada has, and continues to, restrict the rights of Indigenous people.

 

Until next time,

 

Team ReconciliAction YEG

 

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[1] Laurie F. Barron, “The Indian Pass System in the Canadian West, 1882-1935” (1988) 13:1 Prairie Forum at 25.

[2] Ibid at 27.

[3] Ibid at 28.

[4] Ibid at 25.

[5] Circles for Reconciliation, “The Pass System: Segregation in Canada”, (12 October 2016), online: http://circlesforreconciliation.ca/2016/10/12/the-pass-system-gathering-theme/.

[6] Ibid.

[7] Ibid.

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The Gradual Civilization Act

Tansi Nîtôtemtik,

 

Photo retrieved from: <www.pinterest.ca/pin/384846730649538811/?lp=true>.

...it is desirable to encourage the progress of Civilization among the Indian Tribes in this Province, and the gradual removal of all legal distinctions between them and Her Majesty's other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such Individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it…[1]

The year was 1857, and Canada’s 5th Parliament had recently gained the power from England to create legislation regarding Canada’s First Nations peoples. The statute that resulted was called “An Act for the Gradual Civilization of the Indian Tribes in Canada”, and is commonly known as the Gradual Civilization Act. This Act contemplated how Indigenous men could become, in Parliament’s view, contributing members of society, once they had proven themselves as having “deserved it.” [2] 

Essentially, the Act required Indigenous men to firstly, want to be members of the colonial society, and secondly, display that they had a number of characteristics that proved them worthy.  The purpose of the Act was to ensure the removal of all legal distinctions between First Nations peoples and others in Canadian society (i.e., white settlers and newcomers).

A look at the process below certainly indicates that successfully completing all the steps would effectively alienate the person from their community, culture, and traditions. The Act outlined the following process:

• Various “Commissioners” were appointed for the purpose of “examining Indians,” and Indigenous men that were interested could offer themselves to be examined for the purposes of the Act.
• To be considered for the granting of “civility” under the Act, Commissioners had to report in writing to the Governor that “any such Indian of the male sex, and not under twenty one years of age, is able to speak, read and write either the English or the French language readily and well, and is sufficiently advanced in the elementary branches of education and is of good moral character and free from debt.”  [3]
• If such a report were received, then the Governor would enfranchise that individual (allow them to vote, as discussed in yesterday's post).
• There was also a way to achieve enfranchisement through a 3-year “probationary” period if these requirements were not met. For this, the individual had to be: male, between 21-40 years of age, “speak readily either the English or the French language, [be] of sober and industrious habits, free from debt and sufficiently intelligent to be capable of managing his own affairs.” [4]
• By becoming civilized, as per the definitions of the Act, the person would be able to vote and would be granted a piece of farmland (note that the piece of farmland was cut from the land already reserved for the tribe and granted to the enfranchised person.)

This Act displays one systematic attempt to try to wash Indigenous culture from Indigenous peoples. The Act also states that “the wife, widow, and lineal descendants of an Indian enfranchised under this Act, shall be also enfranchised by the operation thereof, and shall not be deemed members of his former tribe…”. [5]

Therefore, if a man chose to undergo this process, both he and his family would be lost in No Man’s Land -- not a part of their Nation, and not truly integrated into white Canadian society, either.

 

Until next time,

Team ReconciliAction YEG

 

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[1] An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians, SC 1857, c 26, Preamble, online (pdf): <www.caid.ca/GraCivAct1857.pdf>.

[2] Ibid.

[3] Ibid, para 3.

[4] Ibid, para 4.

[5] Ibid, para 8.

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