Blog

Birth Alerts

Tansi Nîtôtemtik,

Lately there has been a lot of media coverage of a deeply problematic practice that serves to increase the number of Indigenous children involved in the child welfare system and actively discriminates against Indigenous families: birth alerts. However, birth alerts aren’t new--they’ve existed for years. Today we will discuss what they are, and why they’re so problematic.

(Photo credit: Indiginews, https://indiginews.com/vancouver-island/birth-alerts Reporter Anna McKenzie and her daughter, photograph by Captured Memories Photography)

Birth alerts are used when a newborn is born to a parent that has been assessed as ‘high risk’, to notify hospitals and other child and family services (CFS) agencies that further assessment is required before the newborn can go home with their family. ^[1] Birth alerts often contain personal information of expectant parents without consent, obtained and sent by social workers to hospitals. Hospital staff then inform CFS when the baby is born. ^[2]

It is not surprising in the context of widespread discrimination against Indigenous peoples in the healthcare system, that birth alerts are used disproportionately for Indigenous mothers. According to government records, 28% of birth alerts resulted in infants being apprehended from their families and 58% of families subjected to birth alerts in B.C in 2018 were Indigenous.^[3] In addition, Cindy Blackstock notes that there is no evidence supporting the effectiveness of birth alerts. ^[4]

Increased attention to birth alerts was triggered in part by the National Inquiry on Missing and Murdered Indigenous Women and Girls (MMIWG) Final Report, released in 2019. As one Director of the Ontario Children’s Aid Society notes:

Before the National Inquiry into Missing and Murdered Indigenous Women and Girls, we didn’t really look at the practice critically. We never reflected on its long-term impact on the infant or their mother, or that the other components of the baby’s safety, for example their emotional, spiritual, and intellectual safety, were compromised in those situations. We also didn’t consider how the practice was inequitable, and led to overrepresentation of Indigenous, Black, and other marginalized communities in the child welfare system.^[5]

Many provinces have responded to demands to end the practice of birth alerts by stopping their use and implementing voluntary prenatal intervention and planning instead. However, this is not the case across Canada.^[6]  

The following chart shows where birth alerts are still used: ^[7]

It is extremely disappointing to see that the practice of birth alerts continues in so many Canadian provinces; especially when there is so much information about how profound the negative impact of the child welfare system is on Indigenous families. Team ReconciliAction is hopeful that this harmful and discriminatory practice will be removed from all provinces, and replaced with programs that don’t victimized Indigenous families but instead empower them. That is the only way we can move forward with true reconciliation.

 

Thanks for reading! 

 

Until next time,

 

Team ReconciliAction YEG

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¹Government of Manitoba, “End of Birth Alert Practice” (2020) online:<www.gov.mb.ca/fs/childfam/end-birth-alerts.html>.

²Anna McKenzie, “Birth alerts banned in B.C., but trust still a barrier for Indigenous parents” (11 Feb 2021) online: The Discourse <thediscourse.ca/vancouver-island/birth-alerts-banned-in-b-c-but-trust-still-a-barrier-for-indigenous-parents>.

³Ibid. 

⁴Tessa Vikander & Bayleigh Marelj, “Several Canadian provinces still issue birth alerts, deemed ‘unconstitutional and illegal’  in B.C.” (Jan 15, 2021) online: APTN News <www.aptnnews.ca/national-news/provinces-continue-birth-alerts/>. [Birth Alerts, APTN]

⁵Ontario Association of Children’s Aid Societies, “The practice of birth alerts in Ontario is ceasing October 15th. What’s next for child welfare agencies and their approach to working with expectant mothers?” (13 October 2020) online: <www.oacas.org/2020/10/the-practice-of-birth-alerts-in-ontario-is-ceasing-october-15th-whats-next-for-child-welfare-agencies-and-their-approach-to-working-with-expectant-mothers/>

⁶Birth Alerts, APTN, supra note 4.

⁷ Data compiled by Team ReconciliAction from Birth Alerts, APTN, supra note 4.

Teresa's Year-End Reflection

Artist Credit: Chief Lady Bird

 

Tansi Nîtôtemtik,

 

This year has flown by! Thank you for following along, and for all your comments, emails, and feedback. It has been a distinct pleasure to share our team’s journey with you.

 

One highlight of my year was participating in the Kawaskimhon Moot. It was an opportunity for me and my partner to push our imaginary federal response to the limits of existing policies and mandates. I learned that even working within the existing colonial system, there is so much more that the Canadian government could do to support Indigenous communities.

 

Speaking of support—as of March 31, 2021, there are still 54 long-term drinking water advisories in effect in 34 communities.^[1] From 2016 to 2019, the federal government has invested and/or committed billions of dollars to eliminating and preventing long-term drinking water advisories in Indigenous communities.^[2] The Government of Canada website states that new water treatment systems take an average of 3 to 4 years to complete.^[3] My hope is that subsequent budgets will not stall or cancel the remaining public projects. It is essential that these remaining 34 communities receive clean water infrastructure.

 

Five years after publication, only nine of the TRC’s Calls to Action have been completed.  Reconciliation is not dead (contrary to the musings of a certain national newspaper columnist), it hasn’t even begun. At times I have felt angry and discouraged, and at other times impressed by the progress on the Calls to Action. But at all times I have felt grateful to have this platform to share information about reconciliation efforts (or lack thereof) with the public.

 

Daily, we are besieged with commentaries and news, and few if any of us have the time to sift through it all. I am glad that this blog will continue next year to help the public filter out untruths and misrepresentations about reconciliation with Indigenous peoples.

 

This is the final post for the 2020/2021 ReconciliAction YEG team. Please sign up for notifications below to hear from the incoming team in September 2021!

 

Sincerely,

Teresa

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^[1] Government of Canada, “Ending long-term drinking water advisories”, online: https://www.sac-isc.gc.ca/eng/1506514143353/1533317130660 [Ending Advisories].

^[2] Government of Canada, “Investing in First Nations drinking water”, online: https://www.sac-isc.gc.ca/eng/1606477385487/1606477411854.

^[3] Ending Advisories, supra note 1.

Sarah's Year-End Reflection

(Artwork by Mo Aura Bedard & Chief Lady Bird)

Tansi Nîtôtemtik, 

It's hard to believe this is my last post for ReconciliAction YEG, and my last days of law school.  As you know, its been a year with coronavirus, the anti-racism movement, cat lawyers and zoom everything.  But I am so grateful to have spent the last 8 months as a contributor to this project.  

Exploring the progress of reconciliation was a journey for our team, and at times a painful one.  Progress five years out from the release of the report and Calls to Action has been minimal and where there has been movement, it often takes a colonial approach to reconciliation.  

One of the areas I have been fortunate to spend a lot of time on during law school is Bill C-92 which came into force last year as An Act Respecting First Nations, Inuit and Metis children, youth and families. (Side note:  If anyone has any suggestions for a good shorthand name for this act, please do share, AARFNIMCYF does not exactly roll off the tongue!)

This Act is important, first because it sets out a national standard for Indigenous child welfare that applies across all provinces and second, because it acknowledges the inherent jurisdiction that Indigenous people have over the care of their children.  This new legislation is one of the more meaningful actions taken in response to the TRC, but it is also an example of what Canada is doing wrong in reconciliation.  

In this act, there is still room for a colonial interpretation of the Best Interests of the Child, and while a coordination agreement is not required for a people to exercise jurisdiction, it remains to be seen what the outcome will be in a colonial Canadian court, where a community gives notice of intent to exercise jurisdiction but where efforts to reach a coordination agreement have not been successful.

Additionally, there remains a level of ignorance in government about the types of decisions that are specifically harmful to Indigenous people.  Earlier this year, we discussed the bilingual requirement for Supreme Court Justices, and the barrier that creates for Indigenous people.  In mandating that all justices have a working understanding of both English and French, the rich language history of Indigenous people is diminished.  This also ignores the pain associated with being forced to learn a second colonial language. During the 2020 IBA conference, Justice Minister David Lametti was questioned on this policy, and gave a disappointing response that amounted to "learn french, or don't be an SCC justice".  When we consider the long history of forced assimilation, this is just another form of Indigenous erasure.

These are just two stand out examples of the way that reconciliation for Canada is not about building a collaborative working relationship with Indigenous people, but rather is a continued exertion of colonial control where reconciliation can only occur on Canada's terms, and take it or leave it.  

This makes my personal relationship with reconciliation daunting.  But the opportunity this blog project provided to read the stories of survivors in the TRC report, and feel the resiliency and strength coming through despite years of oppression, gives me some hope.  My work on this blog, and throughout law school, has provided me with an excellent foundation for recognizing the systemic issues that lead to oppressive decision making, so that I can help make space for Indigenous voices and perspectives to be considered, accepted, sought out, valued and incorporated into colonial law. 

I guess with that, it is my turn to say goodbye to ReconciliAction YEG.  I would like to applaud my teammates this year, on their incredible writing and discussion, and the passion and personal perspective each one of you brought to this project.  I would like to thank Professor Yahya and Professor Friedland, who supported us through the year and gave us free reign to tackle some controversial and spicy topics.  I would like to thank those who came before us, and provided our team with this wonderful and established platform.  And lastly, I am so grateful to our readers for following along and engaging in the discussion with us every week.  

Until next time, 

Sarah

Anita’s Year End Reflection

Tansi Nîtôtemtik,

I have had the immense pleasure of working on this blog with 4 other amazingly talented and caring people who I am sure will go on to do great things and they have made this a memorable experience premised on support and understanding. Delving into the Truth and Reconciliation Commissions Calls to Actions each week has been a journey resulting in very polarizing emotions for me as a First Nations Nehiyaw Iskwew (Cree woman). Our group was not afraid to tackle the hard topics and questions and I am very proud of what we have accomplished. Our efforts have brought awareness and been an advocate for the implementation of the TRC Calls to Action.

The issues have hit close to home for me especially because of my lived experience and the frustrations with the lack of action on so many of the Calls have been hard to reconcile with. Week after week, day after day there was one disappointment after another but yet when there was movement on a Call it was a thing to be celebrated and we did. So, while I am very grateful for this experience to learn and write on the TRC -- 5 years later. I find myself angry and sad and even more determined to be a part of the voices that demand change. To date, only 9 of the 94 Calls to Action have been completed. Nine. After 5 years with incremental movements on the others and none on way to many.

The TRC’s goal was to redress the intergenerational legacy and the ongoing impact of residential schools on survivors and their families. I wish we could have seen a better outcome by now but my hope in this is not lost. One of the routes to Reconciliation will be through education and we must all do our part when called upon, this blog, this year and this topic has been a unique chance as a law student to do that. For that I am grateful. Canada and its provinces have an urgent duty to the education and implementation of the TRC and it is failing. Alberta’s current government is a prime example of its failure to adequately do so with its new “draft curriculum”, which some argue perpetuates rather than addressing systemic racism, I would agree.

Thank you for being a part of this journey, and I truly hope you join ReconciliAction next year!

Sincerely,

Anita

Tamya's Year-End Reflection

Tansi!

It is hard to believe that the school year is drawing to a close and that this is my last post on the blog. The past year has certainly been one that will stay in our memories forever. Although the coronavirus pandemic has been extremely difficult, it has also showcased the resilience and strength of so many. 

As I reflect on this past year and what I’ve learned, a few thoughts come to mind. Firstly, if our evaluation of the Truth and Reconciliation Commission (TRC) Calls to Action reflect where Canada is at with reconciliation, then we have made minimal progress. Some initiatives, like funding Indigenous infrastructure show small steps forward, but ultimately reconciliation simply hasn’t taken priority in Canada. 

(Photo Credit: BBC News, https://www.bbc.com/news/world-us-canada-35105339 Senator Murray Sinclair at the release of the TRC Report, 2015)

So, where do we go from here? Canada truly needs to “walk the walk”. There have been so many reports, committees and conferences discussing how Indigenous peoples continue to be discriminated against in economic policies, criminal justice and child welfare to name a few; but our institutions continue to respond with inaction. As noted by my colleague yesterday, when action is taken, the reasons are political rather than being grounded in a recognition of inherent rights. 

Secondly, I find hope in the increasing recognition of Indigenous self-government. For so long, Indigenous peoples have been treated like a “problem” that needs to be solved. After years of ineffective and racist policies, there appears to be a slow move towards placing power back into the hands of Indigenous communities. 

However, this is not without conflict. Questions like those raised in Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22 demonstrate the complexity in applying multiple frameworks to determine individual rights. Further, without adequate resources, self-governed institutions are being set up to fail. We must capitalize on the opportunity to work in partnership with Indigenous communities and build robust frameworks that allow them to thrive.

Lastly, I am so grateful to have been a part of this project! Learning about a different Call to Action every week has taught me so much about reconciliation and working on this team has been nothing short of wonderful. Thank you for following along with us, and I truly hope you tune in next year!

Sincerely,

Tamya

2020/2021 Reflection Posts - Tyler

 

Tansi Nîtôtemtik,

 

This week we will be wrapping up the 2020/2021 ReconciliAction YEG through reflections from each writer. Drawing the short straw and going first is Tyler, whose introduction can be found here.

Kenojuak Ashevak - National Gallery of Canada

 

Back in September, while doing the introduction posts, I wrote that ‘reconciliation’ seemed to be a malleable concept that could be little more than a feel-good substitute for damaging inaction. After reading and writing on reconciliation and the Calls to Action over this past 8 months, I feel that I am more entrenched in this position – with some caveats.

 

While I feel less optimistic than ever with the political process and its ability to engage with meaningful reconciliation, I am more optimistic that there exists a legal or constitutional approach that could be a strong avenue towards genuine reconciliation and justice.

 

The Calls to Action and the Final Report are incredibly direct in their operation and have set out detailed historic reasons why each call has been made. In my opinion, the failing grades throughout this year demonstrate that a political approach to the Calls to Action and reconciliation more broadly is not working. The best time for political leadership to have addressed the Calls to Action would have been immediately following the period in which they were made. Now - five years later, how do the Calls to Action become an increased priority?  

 

Supreme Court of Canada 

One of the very first cases that first-year law students read is the Quebec Secession Reference. It is elegantly written and forceful in its effect. In contemplating the legality of Quebec’s potential unilateral departure from the confederation, the Supreme Court explicitly sets out the big picture values which underlie the function of the Canadian constitution: federalism, democracy, the rule of law and the protection of minorities. The Secession reference places an emphasis on approaching these values through a ‘living tree’ approach – one that develops and evolves with time to meet changing needs.

 

While directly addressing the Calls to Action has been less than successful at this point, I have an optimism that just and practical reconciliatory outcomes are possible - and may exist through Canadian constitutional law and the very principles outlined in the Secession reference. While this may be a naive optimism, a strong federalism structure and constitutionally protected Aboriginal rights already exist and are unique to Canada. A ‘living tree’ interpretation of these existing frameworks could legally recognize the equal existence of Indigenous Nations within a federal structure, and I am of the understanding that this would be the proper and legally consistent interpretation.  

 

Reconciliation isn’t about federal and provincial colonial governments holding power and control over Indigenous people, acquired through historic wrongs, and returning rights when it is politically convenient – it is about building a relationship that can recognize equal party nation-to-nation relationships that pre-existed confederation. While responses to the Calls to Action haven’t been inspiring, keep court watching as the right questions continue to be asked.

 

A big thanks to the writing team this year and everyone who followed along,

Tyler

Indigenous Land Acknowledgements

Pre-1975 Treaties, Source: AANDC

 

Tansi Nîtôtemtik,

 

Indigenous land acknowledgements stand for respect, connection to the land, and better relations between Indigenous and non-Indigenous peoples.^[1] They are important for understanding the longstanding history of the place where we reside, and to understand our place within that history.^[2]

 

Unfortunately, Indigenous land acknowledgements “have become a “compulsory email footer and check mark at an event”.”^[3]

 

The Native Governance Centre offers tips for creating a successful Indigenous land acknowledgement statement. The first step is “self-reflection”, in that it is important to ask ourselves why we are delivering a land acknowledgement--if the answer is simply because we have to tick a box, or it’s required by our organization, more research and self-reflection is warranted.^[4]

 

How can you rethink land acknowledgements?

 

In a blog entry entitled “Beyond territorial acknowledgements”, Chelsea Vowel, a Métis woman from Lac Ste. Anne, Alberta, writes:

If we think of territorial acknowledgments as sites of potential disruption, they can be transformative acts that to some extent undo Indigenous erasure. I believe this is true as long as these acknowledgments discomfit both those speaking and hearing the words. The fact of Indigenous presence should force non-Indigenous peoples to confront their own place on these lands.^[5]

 

A territorial or land acknowledgement can be an act of reconciliation. By properly researching and delivering land acknowledgments, individuals and organizations recognize the ongoing oppression and struggles facing Indigenous peoples and communities. A well-thought out land acknowledgement recognizes the treaties or the fact that no treaties exist in the area, and respects the history and presence of Indigenous people on the territory.^[6] Land acknowledgements are intended to provoke further thought and reflection on improving relations with Indigenous peoples. They are an important tool for decolonizing our communities by recognizing the reality of Canada’s colonial history and how it continues to marginalize and oppress Indigenous history, culture, and peoples.

 

The next time you are tasked with delivering a land acknowledgement, ask yourself:

1. Why am I delivering this acknowledgement?
2. What is the history of this territory?
3. What are the impacts of colonialism on the Indigenous people who lived and continue to live here?
4. What will I do beyond this acknowledgement to dismantle colonialism in my area?

 

And while you’re at it, tell your organizations to stop checking boxes and get started on actually rebuilding relationships with Indigenous peoples.

 

Land acknowledgements need a serious reboot. We all share a responsibility in encouraging our peers and communities to see land acknowledgements as an opportunity for serious thought and reflection on the colonial structures that perpetuate injustice for Indigenous peoples. With continued and persistent education and decolonization, we may still see reconciliation in our lifetimes.

 

Until Next Time,

ReconciliAction YEG

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^[1] Odette Auger, “Land acknowledgements are about better relations, not just checking a box”, APTN News (14 March 2021), online: https://www.aptnnews.ca/national-news/land-acknowledgements-british-columbia/.

^[2] Ibid.

^[3] Ibid.

^[4] Native Governance Center, “Indigenous Land Acknowledgement”, online: https://nativegov.org/a-guide-to-indigenous-land-acknowledgment/.

^[5] Âpihtawikosisân, “Beyond territorial acknowledgements:, online: https://apihtawikosisan.com/2016/09/beyond-territorial-acknowledgments/.

^[6] Kairos Canada, “Territorial Acknowledgement as an act of reconciliation”, online: https://www.kairoscanada.org/territorial-acknowledgment.

Colonial Métis and Self Indigenization

(Artwork: "The Earth is My Governement" (2018) by Christi Belcourt)

Tawnshi kiya mataen,

Since the official acknowledgement of Métis as section 35 rights holder in the Constitution, there has been a rise in claims to Métis ancestry and nationhood.  People find Indigenous ancestry in their family tree and declare “aha! I am Métis!” Métis identity frequently gets treated as though it arises through European and Indigenous mixed ancestry, which has led to self identified Métis Nations across Canada making claim to Métis identity. However, as Adam Gaudry pointedly notes, race mixing in other forms has rarely led to the formation of a distinct culture.[1] Thus, it is not mere mixed ancestry that formed the Métis, but something more.

Métis Identity

The Métis identity is linked to a unique and collective origin story, it is premised on a shared set of laws and governance that stem from the geographical resource availability, and the languages and norms present in the place where Métis communities first became established.[2]   Gaudry points out that the development of the Métis as a distinct community, did not occur because of race mixing but rather was a choice made by historical Métis to build a community and develop laws and systems for that community.[3]  This development was inherently prairie centered, dependant on large herds of buffalo and regional proximity with Cree speakers. 

Of course, the Métis of the late 1800’s and early 1900’s were painted by Canada as inferior, as traitors and extremist rebels.  During this time the Métis suffered the loss of many great leaders, and forced displacement through Scrip. This is where Métis identity can get tricky.

Disrupted Connections

As the Métis dispersed, new communities were established in other locations.  Other Métis became “hidden”, choosing to integrate into non-Métis communities or even deny their Métis identity.  There are many Métis today who have been raised in communities under these same legal orders, and who have never lost touch with the collective set of experiences that initially made the Métis into a distinct people.  But there are others who were lost.  Stripped of their history and identity by colonial assimilation forces, bullied into hiding, victims of stolen culture.  Where do the descendants of the assimilated fit in with Métis identity?

Contemporary Métis Nations are cognizant of the disruption in continuity of many Métis people and welcome reconnection of disconnected kin.  This reconnection is more than just uncovering a genealogical link, it is a return to the Métis community.  Identifying as Métis is reciprocal, and requires a person to be claimed by a community just as much as it requires a person to claim that they belong.  Métis identity cannot exist without Métis citizenship, without belonging to a community that claims you.

Métis Colonialism

Today, we see multiple organizations across Canada claiming status as Métis Nations, but relying on early mixed race marriages rather than the intentional development of a distinct people as the basis for this claim.  In particular, this has been a problem with “Eastern Métis” where Indigenous ancestry can certainly be found, but the distinctive legal orders and kinship structures are absent. 

Intermarriage between Indigenous and European people occurred anywhere that there were both Indigenous and European people.  The primary issue with “Eastern Métis” is that there is no evidence to support that these historical intermarriages led to those people self-identifying as a distinct culture.[4]  Moreso, the term “Métis” was externally applied to these people by Europeans to denote the mixed ancestry or “half-breed” status.  A more critical issue, is that “Eastern Métis” have made repeated attempts to claim rights under Section 35 of the Constitution to the detriment of the existing Indigenous Nations of those territories which, curiously, are the same communities these “Eastern Métis” claim to be a part of.[5] 

Most recently, the question of whether the Métis have rights west of the Rocky Mountains arose, when the Métis Nation of British Columbia (separate from the BC Métis Federation) made claim to land and hunting rights on the same lands as the Secwepemc traditional territory.  There is no dispute as to whether there are Métis people west of the Rocky Mountains, however, these Métis arrived in British Columbia as settlers, and have no claim to the territory there simply because they are an Indigenous people who live on that land.[6]

This type of infringement upon the rights of First Nations is inherently colonial in nature.  Métis identity and the prosperity of the Métis as an Indigenous people cannot, as Stephen Mussell succinctly stated, come at the expense of First Nations.[7]

Supplemental Reading

Colonial claims to identity are a very large topic, that this post simply cannot cover in one of the final posts of the year.  If you are interested in learning more about Métis origins and false claims to nationhood, we would encourage you to read Distorted Descent: White Claims to Indigenous Identity by Darryl Leroux

Stay tuned for our final substantive post tomorrow, before we each reflect on our year with ReconciliAction YEG

Until Next Time,

ReconciliAction YEG

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[1] Adam Gaudry, “Métis Are a People, Not a Historical Process”, online: The Canadian Encyclopedia <http://thecanadianencyclopedia.ca/en/article/Métis-are-a-people-not-a-historical-process>.

[2] Ibid.

[3] Ibid.

[4] Adam Gaudry & Darryl Leroux, “White Settler Revisionism and Making Métis Everywhere: The Evocation of Métissage in Quebec and Nova Scotia” (2017) 3:1 Critical Ethnic Studies 116, online: <http://www.jstor.org/stable/10.5749/jcritethnstud.3.1.0116>.

[5] Ibid.

[6] “Do Métis have Rights in British Columbia? Let our Métis People be heard in a Good Way”, (22 October 2020), online: Yellowhead Institute <https://yellowheadinstitute.org/2020/10/22/do-Métis-have-rights-in-british-columbia-let-our-Métis-people-be-heard-in-a-good-way/>.

[7] Ibid.

Re: Remembering and Honouring Justice Beverley Browne

Tansi Nîtôtemtik,

Today we celebrate the extraordinary life of Beverley Browne, first Chief Justice of  Nunavut, Canada's largest and youngest territory. Justice Browne served in this role for 10 years, with an overall contribution to Nunavut’s justice system that spanned over 2 decades. Sadly, she passed away at the age of 68, last Wednesday, March 24 peacefully, surrounded by her family.

Browne became a judge in the Northwest Territories in 1990 and was appointed Chief Justice of Nunavut in 1999--the same year that Nunavut was founded. She was responsible for building Nunavut's justice system and played a key role in establishing Canada's only single-level trial court. This was an incredible and important feat because Nunavut’s unique system enables justice to be provided to the area’s remote communities. Justice Browne’s continued advocacy also led to her co-founding the Akitsiraq Law School to train Inuit lawyers in Nunavut.

In 2009, Justice Browne made the decision to leave Nunavut for Alberta, where she served on the Court of Queen's Bench and helped create Alberta's Gladue and Restorative Justice committees. ^[1] She continued to serve not only as a deputy judge in Nunavut but also led meetings aimed at revitalizing the elder’s program in the Nunavut Court of Justice up until her retirement earlier this year. ^[2]

In 2017, Browne was one of the people who helped come up with the idea of Indigenous Career Day at the Edmonton Law Courts, while working on a committee striving to improve the quality of Gladue Reports. Gladue Reports provide essential information for judges to consider in their sentencing deliberations for Aboriginal offenders.^[3] 

“Aboriginal issues are near and dear to my heart. I have always believed that if you are not part of the solution, then you are part of the problem,” said Justice Browne, who described the creation of Indigenous Career Day as a concrete response to the Truth and Reconciliation Commission of Canada’s Calls to Action.^[4]

Last November, Justice Browne was honoured at a ceremony in Alberta held by Cree elders, who gave her the spirit name “Woman Standing with the Law.” This was a  great honour and testament to her commitment and dedication to justice and access to justice.^[5]

In addition to Justice Browne’s many impactful achievements, her personal accomplishments included raising her children and creating music. She played the saxophone and flute. In 1996, Justice Browne founded the Iqaluit Music Society, which was recently awarded the $1-million Arctic Inspiration Prize. 

The legacy of Justice Browne is one of enormous respect in the legal community-- a friend, mentor and colleague, she will live on in the hearts of the people she touched--which are many in the communities she fought for. Justice Browne’s impressive career and courage will stand as a reminder that when we fight for what we believe in, anything is possible.

Thank you for reading, Until next time,

Team ReconciliAction YEG

 

[1] 'Inspirational:' First chief justice of Nunavut, Beverley Browne, dies at age 68 - PrinceGeorgeMatters.com

[2] Justice Beverley Browne remembered as ‘gold standard’ for judges | Nunatsiaq News

[3] News & Announcements (albertacourts.ca)

[4] Ibid

[5] Supra Note 2 Ibid

On the Horizon of Aboriginal Law – 2021 Cases and Decisions

 

Tansi Nîtôtemtik,

 

Aboriginal law is an ever-evolving and complex area of jurisprudence. Since this year’s blog began in September, Canadian Courts have been grappling with novel and significant questions relating to Aboriginal law. Today we will highlight three ongoing cases that we believe will make lasting impacts on this area.

 

 

The Cowichan Tribes Case:

A map from 1827 showing Cowichan villages on the land that is now Richmond - Barry Lawrence Ruderman Antique Maps

 

Aboriginal Title was first recognized by the Canadian Supreme Court in the 1973 case of Calder.^[1] Forty years later in the 2014 case of Tsilhqot'in, the Supreme Court set out the modern framework and legal test for recognizing Aboriginal Title.^[2] Tsilhqot’in also included ways in which Crown entities may justifiably infringe on Aboriginal Title.^[3]

 

Cowichan Tribes v Canada is an ongoing case before the British Columbia Superior Court that asks many unanswered questions relating to Aboriginal title. In this case, the Cowichan are claiming title over parts of Richmond, British Columbia, which encompasses not only land held by the Crown - but private land.

 

This is a massive case due to the introduction of evidence. The court estimates that it will take over 400 days of trial, which will stretch over a period of three years.^[4] With appeals, litigation will most likely last well over a decade. There have already been several evidentiary decisions released this year stemming from Cowichan, and over the following years there will undoubtedly be countless more decisions on how the Court interacts with evidence, expert witnesses, and the Indigenous perspective of Aboriginal title claims.^[5]

 

Restoule v Canada:

The case of Restoule involves the interpretation of the Robinson treaties, which predate Canadian confederation. In his engaging and compelling decision for the Ontario Superior Court, Justice Hennessy held that a clause that considered the future augmentation of annual payment under the treaties ought to be increased to contemporary standards.^[6] This decision is one that seems to genuinely take into account the Indigenous perspective at the time that the Robinson treaties were signed. It approaches reconciliation as a concept that embraces principles of respect, responsibility, reciprocity and renewal. ^[7]

 

The decision of Restoule has been appealed by the Government of Ontario, and was before the Ontario Court of Appeal starting in January, 2021. This case could hold massive implications not only for how treaty obligations are met in practice, but also implications for what the role of the Courts is in interpreting Aboriginal law more broadly. You can read about the implications of the Superior Court decision from uAlberta Law Professor Darcy Linberg, here. 

 

R v Desautel:

The case of Desautel was heard before the Supreme Court this past October. It relates to Section 35(1) of the Constitution Act, 1982. While the framework to assert an Aboriginal right under section 35(1) is well established – Desautel asks a very significant question: can Indigenous groups who are not currently Canadian be recognized as ‘Aboriginal People of Canada.’^[8]

 

The applicant in Desautel is a member of an Indigenous group who were forced out of British Columbia in the 19th century. They currently reside on reservation land in Washington state, and assert that the meaning of ‘Aboriginal peoples of Canada’ is inclusive of Indigenous groups whose traditional land makes up what is now Canada. This group claims a continued connection to their traditional lands in Canada.

 

This Supreme Court decision should be released in the coming months. It could have further implications to how Indigenous nations are able to assert their sovereignty while existing within larger colonial governments.

 

Richard Desautel outside of the Court in Nelson, British Columbia. Photo: Bill Metcalfe

 

Keep an eye out for how the Court approaches these cases.

 

Until Tomorrow,

 

ReconciliAction YEG

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[1] Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313.

[2] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

[3] Ibid. 

[4] Jacqueline Ronson, "Cowichan Nation Alliance's land rights claim comes to Duncan" The Discourse (21 January 2020) online: <https://thediscourse.ca/cowichan-valley/cowichan-nation-alliance-lawsuit-duncan>. 

[5] See generally Cowichan Tribes v Canada (Attorney General), 2021 BCSC 383.

[6] Restoule v. Canada (Attorney General), 2018 ONSC 7701.

[7] Ibid, at 412.

[8] R v Desautel, 2019 BCCA 151. 

5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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TRC 5 Years Later: A New Oath of Citizenship

Image: Government of Canada / https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/become-canadian-citizen.html

 

Tansi Nîtôtemtik,

 

Today we finish off our substantive review of the Truth and Reconciliation Commission’s 94 Calls to Action. Check in tomorrow to see our summary of the grades we awarded this year!

 

The Oath of Citizenship is a solemn declaration that all citizenship candidates 14 years or older must take as the last step before becoming Canadian citizens.^[1] The oath is a promise to obey Canadian laws and obey their duties as Canadian citizens.^[2] The current oath does not include a solemn promise to respect Indigenous or treaty rights, and does not reflect that “we are all Treaty people”.^[3] For this reason, the TRC calls on the federal government to not only educate newcomers to Canada about Indigenous history and rights, but also to pledge to observe the Treaties.^[4]

 

Call 94 states:

1. 94. We call upon the Government of Canada to replace the Oath of Citizenship with the following: I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.

 

Bill C-8, An Act to amend the Citizenship Act,^[5] was reintroduced in the House of Commons in October 2020 to replace the version (Bill C-99) that died with the dissolution of Parliament in June 2019. Through this legislation, the text of the Oath will remain largely the same, with only the below underlined portions added through this amendment:

 

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada, including the Constitution, which recognizes and affirms the Aboriginal and treaty rights of First Nations, Inuit and Métis peoples, and fulfil my duties as a Canadian citizen.

 

While this new phrasing does not capture the Call 94 precisely, it does reflect the federal government’s stance on Aboriginal treaties thus far. According to the Government of Canada’s website, different departments within the federal government consulted with the Assembly of First Nations, the Métis National Council and Inuit Tapiriit Kanatami to ensure the Oath of Citizenship reflects Call 94.^[6]

 

Canada squeaks by with a passing grade for tabling legislation not once, but twice, in relation to this call. In order to receive full marks, Parliament needs to pass Bill C-8 to replace the Oath of Citizenship with a new oath with Indigenous content.

 

 

Until Next Time,

ReconciliAction YEG

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^[1] Government of Canada, “Delivering on Truth and Reconciliation Commission Calls to Action”, online: https://www.rcaanc-cirnac.gc.ca/eng/1524506203836/1557512859985.

^[2] Ibid.

^[3] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, (Ottawa: Library and Archives Canada, 2015) at 314.

^[4] Ibid.

^[5] Bill C-8, An Act to amend the Citizenship Act (Truth and Reconciliation Commission of Canada’s call to action number 94), 2nd Sess, 43rd Parl, 2020, cl 1 (first reading 22 October 2020).

^[6] Ibid.

Re: Call to Action #93 - Immigration and Citizenship

Tansi Nîtôtemtik,

93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and the history of residential schools.^[1]

This Call to Action for the federal government calls for the inclusion of more information about Canada's treaties with indigenous peoples and the history of residential schools in the Canadian citizenship test to create an understanding of our history within new citizens and combat racism and discrimination.

Many immigrants are not aware or educated on the complex history of Indigenous People and the challenges they have faced (and still face) when first arriving in Canada. There is a lack of understanding of the years of colonization, policies, residential school system, systemic discrimination, and dispossession that has created devastating effects on Indigenous communities. As a result, many newcomers learn negative and damaging stereotypes about Aboriginal people.^[2]

On December 10, 2019, on International Human Rights Day, the Environics Institute for Survey Research and the Canadian Race Relations Foundation released the Race Relations in Canada 2019 Survey. This study confirms the reality of racism in Canada and found that immigrants quickly picked up such negative stereotypes after immigrating to Canada.^[3] 

So, what do new immigrants learn about First Nations, Metis and Inuit? Upon reviewing the “Study Guide – Discover Canada – The Rights and Responsibilities of Citizenship”, we found the following. In the “Canada’s History” chapter, two small paragraphs show how woefully and sickeningly inadequate a history lesson on Aboriginal people in Canada is:

“The arrival of European traders, missionaries, soldiers and colonists changed the native way of life forever. Large numbers of Aboriginals died of European diseases to which they lacked immunity. However, Aboriginals and Europeans formed strong economic, religious and military bonds in the first 200 years of coexistence which laid the foundations of Canada.”^[4]

In the Chapter “Who we are”, there is a tiny mention of  treaties and one reference to Residential Schools that is almost casually mentioned: 

”Aboriginal and treaty rights are in the Canadian Constitution. Territorial rights were first guaranteed through the Royal Proclamation of 1763 by King George III and established the basis for negotiating treaties with the newcomers— treaties that were not always fully respected. From the 1800s until the 1980s, the federal government placed many Aboriginal children in residential schools to educate and assimilate them into mainstream Canadian culture. The schools were poorly funded and inflicted hardship on the students; some were physically abused. Aboriginal languages and cultural practices were mostly prohibited. In 2008, Ottawa formally apologized to the former students.”^[5]

It is hard to read such a gloss-over of the history and harms of the Residential School era that brought such suffering and intergenerational trauma to the original stewards of the land. Canada must do better in providing a deeper understanding to new immigrants if it truly wants to further reconciliation and help to fight negative stereotypes faced by Aboriginal people. Instead of simply indicating that treaties with Indigenous Canadians "were not always respected", let's talk about why these treaties were not respected and the issues created by not respecting them. That would be a step toward reconciliation and teaching new immigrants how they can be a part of the solution.

A promised overhaul of Canada's citizenship guide remained a work in progress back in May  2019. The government said it was revamping the 68-page Discover Canada document, last updated in 2012, to better reflect diversity and to include more "meaningful content" about the history and rights of Indigenous people and the residential school experience.^[6] But when is this finally going to be done? Almost 2 years have passed since this proposed “revamping”. This delay is unacceptable.

Canada gets an F on Call to Action #93. 

Until Next Time,

Team ReconciliAction

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[1] TRC Calls to Action

[2] The connection between immigrants and Aboriginal people in Canada's mosaic | Canadian Immigrant

[3] Project Details (environicsinstitute.org)

[4] Discover Canada - Canada’s History - Canada.ca

[5] Discover Canada - The Rights and Responsibilities of Citizenship - Study Guide,discover.pdf

[6] Revamped citizenship guide still a work in progress as election nears | CBC News 

Investing in Indigenous Infrastructure

Investing in Indigenous Infrastructure

Tansi Nîtôtemtik,

Last week, the Canada Infrastructure Bank announced the launch of an Indigenous Community Infrastructure Initiative (ICII) aimed to reduce the infrastructure gap between Indigenous and non-Indigenous communities and accelerate investment in Indigenous communities. ^[1] Currently, it is estimated that this infrastructure gap is between $25 billion and $30 billion.^[2] 

While this news is certainly promising, especially considering the dire need for basic infrastructure like access to clean drinking water on so many reserves, (see this post and this post) let’s break down what this announcement means. 

(Photo Credit: The Star Edmonton (Nov 13, 2016)- Samples of drinking water from North Caribou (Weagamow) Lake First Nation)

The Canada Infrastructure Bank (CIB) is a crown corporation whose purpose is to invest federal funding into different infrastructure projects that generate revenue, serve the public interest, and attract private capital.^[3] This February, the CIB set a target to invest at least $1 billion in revenue-generating projects that benefit Indigenous peoples, and the recent funding announcement is a promising step towards this goal. ^[4]

Historically, Indigenous communities have faced challenges with getting capital needed to finance infrastructure projects due to a lack of funding for down payments. ^[5] In addition, once financing is secured, Indigenous communities and businesses experience fluctuating interest rates, long processing wait-times, unfavourable loan conditions, and complex funding requirements.^[6]The result of these inequities is that Indigenous-led projects to create community infrastructure are often costly and difficult to execute.

The CIB has announced that the ICII will provide low-interest and long-term financing through loans of at least $5 million for up to 80% of total project capital cost. However, the funding will only be provided for revenue-generating products within the CIB priority sectors: green infrastructure, clean power, broadband, public transit and trade and transportation. ^[7] 

For Indigenous sovereignty to truly be recognized, Indigenous communities must be given the opportunity to decide what infrastructure is needed and how to implement these projects. It remains to be seen what types of projects are given funding and whether the funding continues. 

Taking a step back, a $1 billion dollar commitment towards the $25-$30 million dollar infrastructure gap is a drop in the bucket. However, the announcement of funding from the CIB to reach this goal is a step in the right direction. 

Thanks for reading!

Until next time,

 

Team ReconciliAction YEG

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¹Canada Infrastructure Bank, “The Canada Infrastructure Bank launches its Indigenous Community Infrastructure Initiative to accelerate new investment and reduce the infrastructure gap” (19 Mar 2021) online: <cib-bic.ca/en/the-canada-infrastructure-bank-launches-its-indigenous-community-infrastructure-initiative-to-accelerate-new-investment-and-reduce-the-infrastructure-gap/>. [CIB Announcement]

²Olivia Stefanovich, “Canada Infrastructure Bank set to launch $1B initiative for Indigenous community projects” (19 Mar 2021) online: CBC News <cbc.ca/news/politics/indigenous-infrastructure-fund-1.5955719>. 

³Canada Infrastructure Bank, “About us”, online:<cib-bic.ca/en/about-us/>.

⁴Ibid.

⁵CIB Announcement, supra note 1.

⁶Wendy Stueck, “Infrastructure Bank urged to help Indigenous groups take equity stakes in resource projects” (17 Mar 2021) online: The Globe and Mail <theglobeandmail.com/business/article-infrastructure-bank-urged-to-help-indigenous-groups-take-equity-stakes/>.

⁷Canada’s Public Policy Forum, “Improving access to capital for Canada’s First Nation communities” (Ottawa: 2016) online (pdf): <ppforum.ca/wp-content/uploads/2018/03/First-Nation_March-8.pdf> at 11. 

The RCMP and Colten Boushie

 

Tansi Nîtôtemtik,

 

In November, we reviewed the Calls to Action on the Royal Canadian Mounted Police. In doing so, we outlined the history and one initial purpose of the RCMP: to exert control over Indigenous people during and following the signing of treaties. In that post, we suggested that no iteration of the RCMP could exist alongside any serious understanding of ‘reconciliation.’

 

Today, a report on the RCMP's actions following the 2016 shooting death of Colton Boushie will be made public.^[1] It is unlikely that this report will add any previously unknown information to the public dialogue, it will just make ‘official’ what many already knew - that the RCMP members involved in the aftermath of the shooting death of Colten Boushie acted in a "racist and discriminatory manner."^[2]

 

IJAC: Indigenous Joint Action Coalition

 

The details concerning the RCMP and Colten Boushie are cruel and deeply dehumanizing. To notify the family of Colten Boushie’s death, RCMP members first surrounded the family home in tactical gear. They told a grieving mother to ‘get it together’ and asked if she had been drinking. They potentially violated the families’ Charter rights by performing an illegal search of the house. They then showed up uninvited to Colten Boushie’s wake to update the family on the ongoing investigation.^[3]

 

The RCMP failed to conduct responsible police work. They did not secure the crime scene and lost valuable evidence to rain. They arrested some of the only witnesses, friends of Boushie, on charges that were never pursued. They left these witnesses, one in bloody clothing, in cells overnight – then expressed frustration that these witnesses ‘lacked co-operation’.^[4] The RCMP played a central role in the acquittal of the man who shot Colten Boushie, a trial that many have commented on as being tragically unjust.^[5] To cap it off, within two years the RCMP destroyed all records of internal police communications from that night – making any investigation more difficult.^[6]

 

These actions are not a one-off, they were not mistakes. This goes to the core of the RCMP – an organization that has demonstrated it lacks the capacity to change. The current commissioner of the Royal Canadian Mounted Police is Brenda Lucki. On June 23^rd of this year, Commissioner Lucki stood in the House of Commons before a Standing Committee on Public Safety and National Security to give her thoughts on a proposal to study racism in policing across Canada. She was directly asked if there was systemic racism in the RCMP. Commissioner Lucki’s answer was completely inappropriate. She declared, almost boastfully, that systemic racism did exist within the RCMP. The Commissioner’s example? One part of the physical testing to be an officer includes jumping six feet, as was stated:

“Evidence told us that the average person can broad jump their height. Of course, how many six-foot people do we hire? And there are people in all different cultures that may not be six feet, including there’s not a lot of women that are six feet tall, that would not be able to get through that type of test…”^[7]

 

Adrian Wyld - Canadian Press

 

This answer is very important and telling. It showed how little the leader of an organization plagued with constant acts and accusations of racism struggles to grasp an understanding of the most basic of these concepts. These comments were made while the investigation of the RCMP involvement with Colten Boushie was ongoing.

 

Several First Nations groups have called for Commissioner Lucki to step down.^[8] There have been calls for a Federal inquiry into the structure of the RCMP.^[9] When Commissioner Lucki released a public relations statement clarifying and acknowledging the existence of systemic racism in the RCMP, she faced backlash from her own officers for ‘betraying’ the RCMP and being a ‘pawn’ to the Prime Minister’s office, which suggests deep organizational issues.^[10]

 

This isn’t an issue that gets fixed through symbolic measures and an organizational statement on ‘reconciliation’.^[11] The RCMP are at the frontlines of an embarrassingly disproportionate justice system. They haven’t demonstrated capacity to change, and there can be little expectation at this point that such change can come from within.

 

Until tomorrow,

 

ReconciliAction YEG

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[1] Guy Quenneville, “RCMP Racially discriminated against mother, mishandled witnesses, evidence in Colten Boushie case: watchdog” CBC News (20 March 2021) online: <https://www.cbc.ca/news/canada/saskatoon/colten-boushie-rcmp-shooting-complaint-gerald-stanley-1.5934802?cmp=rss>.

[2] Ibid.  

[3] Ibid.

[4] Joe Friesen, “RCMP discriminated against Boushie’s family, fuelled racial tensions: review” The Globe & Mail (20 March 2021).

[5] See generally: Kent Roach, “Colten Boushie, Gerald Stanley and a case that’s hard to defend.” Toronto Star (20 January 2019) online: <https://www.thestar.com/news/canada/2019/01/20/colten-boushie-gerald-stanley-and-a-case-thats-hard-to-defend.html>.

[6] Joe Freisen, “RCMP destroyed police records form the night Colten Boushie died.” The Globe & Mail (22 March 2021). Online: <https://www.theglobeandmail.com/canada/article-rcmp-destroyed-police-records-from-the-night-colten-boushie-died/?cmpid=rss&utm_source=dlvr.it&utm_medium=twitter>.

[7] Rachel Gilmore, “Asked about systemic racism in RCMP, Lucki discusses different heights of officers” CTV News (24 June 2020) online: <https://www.ctvnews.ca/politics/asked-about-systemic-racism-in-rcmp-lucki-discusses-different-heights-of-officers-1.4998165>.

[8] See generally Mike McDonald, “Garden River First Nation Chief calls on RECMP Commissioner Brenda Lucki to resign” Sault Online (26 October 2020) online: <https://saultonline.com/2020/10/garden-river-first-nation-chief-calls-on-rcmp-commissioner-brenda-lucki-to-resign/>.

[9] Douglas Quan, “’She threw us under the bus’: internal email shows RCMP commissioner faces backlash over racism comments” Toronto Star (8 July 2020) online: https://www.thestar.com/news/canada/2020/07/08/she-threw-us-under-the-bus-rcmp-commissioner-faces-internal-backlash-over-systemic-racism-comments.html>.

[10] Ibid.

[11] Royal Canadian Mounted Police, “Saskatchewan RCMP commits to implementing the recommendations of the Civilian Review and Complaints Commission’s final report examining the RCMP’s investigation of the death of Colten Boushie.” Press Release (20 March 2021) online: <https://www.rcmp-grc.gc.ca/en/news/2021/saskatchewan-rcmp-commits-implementing-the-recommendations-the-civilian-review-and-0>.

Call to Action #91: International Sporting Events

 

Tansi Nîtôtemtik,

 

International sporting events have always been intertwined with politics. In the years that lead up to an event such as the Olympic games, billions of dollars are spent to transform host cities in a manner that best presents the host nation to the international community.^[1] With any international game comes the international spotlight - often with a deep examination and corresponding dialogue on the host countries’ track-record on human rights issues and abuses.^[2]

 

Over the next decade, as Indigenous peoples continue to gain recognition and legal authority as distinct nations, the spotlight of international sporting events will be a uniquely powerful tool in this process. This past summer, the Iroquois National Lacrosse team was not invited to the 2022 World Lacrosse Games, despite having qualified – and having invented the sport.^[3] A current boycott petition has garnered over 55,000 signatures.^[4]

The Iroquois Nationals Lacrosse team - Aiden Fearn

 

Call to Action 91 is slightly different than most calls, as it is specific to these international sporting events that do not happen often in Canada. Call to Action 91 is stated as:

 

91. We call upon the officials and host countries of international sporting events such as the Olympics, Pan Am, and Commonwealth games to ensure that Indigenous peoples' territorial protocols are respected, and local Indigenous communities are engaged in all aspects of planning and participating in such events.

In the executive summary of the Truth and Reconciliation Commission, the 2010 winter games that were hosted in Vancouver were praised for their proactive work to involve the four host nations in the decision-making process: the Squamish, Musqueam, Tsleil-Waututh, and Lil’wat peoples.^[5] The cultures of the four host nations were visibly displayed throughout the event with partnerships being made to ensure that territorial protocols were respected.^[6] The Olympic Committee has called these actions an “example to future games.”^[7]

 

Dancers at the Vancouver opening ceremonies - John Huet

 

Simultaneously, there were protests and demonstrations against the Vancouver Olympics, with many critics pointing out how much-needed services were being cut to fund the games – in an already existing economic downturn. Studies following the Olympics show that the finds diverted into hosting the Olympic games had disproportionate effects on unhoused Canadians.^[8]

 

 

Following the Vancouver Olympics, it is difficult to assign a grade to Canada as there has been a limited sample size. The 2015 Women’s World Cup in Canada did not seem to prioritize Indigenous relations, but was already facing unequal gender-based funding.^[9] The next true test for Canada will be the 2026 FIFA world cup, several games which are to be hosted in Edmonton. To engage Indigenous communities in planning, the time would be now.

 

 

Until Tomorrow,

 

ReconciliAction YEG

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[1] See generally Own Gibson, "Sochi 2014: the costliest Olympics yet but where has all the money gone?" The Guardian (09 October 2013) online: <https://www.theguardian.com/sport/blog/2013/oct/09/sochi-2014-olympics-money-corruption>.

[2] Human Rights Watch, "China: Repression Threatens Winter Olympics" (22 December 2020) online: <https://www.hrw.org/news/2020/12/22/china-repression-threatens-winter-olympics>.

[3] Allana McDougall, "Petition calls for boycott of world lacrosse games after Iroquois Nationals excluded" APTN News (24 July 2020) online: <https://www.aptnnews.ca/national-news/petition-calls-for-boycott-of-world-lacrosse-games-after-iroquois-nationals-excluded/>.

[4] Iroquois National Team Petition, online: <https://www.change.org/p/international-world-games-association-iwga-support-the-iroquois-nationals-lacrosse-team-inclusion-2022-world-games-birmingham-usa>.

[5] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 300.

[6] Ibid. 

[7] The Olympic Games "First Nations Stand Tall As Shining Example of Vancouver 2010 Legacy" (19 June 2019) online: <https://www.olympic.org/news/first-nations-stand-tall-as-shining-example-of-vancouver-2010-legacy>.

[8] "Homeless youth pushed out for 2010 Games" CBC News (13 Feb 2011) online: <https://www.cbc.ca/news/canada/british-columbia/homeless-youth-pushed-out-for-2010-games-1.1015418>.

[9] Bob Mackin, "Is the Women's World Cup the Right Place to Talk about Missing Women?" TheTyee (30 January 2015) online: <https://thetyee.ca/Opinion/2015/01/30/Missing-Women-World-Cup/>.

 

 

 

Call to Action #92: Corporate Reconciliation

(The Memory (It Will Be OK Mom) by Jim Logan via Joshua Nichols, “The Limits of Meaningful Aboriginal and Treaty Rights”, (27 June 2019), online: Centre for International Governance Innovation <https://www.cigionline.org/articles/limits-meaningful-aboriginal-and-treaty-rights>.)

 

Tansi Nîtôtemtik,

Reconciliation is the responsibility of everyone who shares this land. While many of the TRC Calls to Action have focused on government action and funding, the corporate sector is responsible for a lot of land and resource development, employment and servicing in Canada. Indigenous people managed the land and resources for thousands of years through relationships of interdependence with the earth, animals and other people.  More than a century of colonial development has stripped Indigenous people of access to their traditional lands and most economic development has created further inequities to the detriment of Indigenous communities. Now, as we face a climate crisis in addition to a wealth favoring patriarchal model of capitalism, we have to wonder if the corporate sector can work with Indigenous people and communities to make decisions that improve the current situation and allow for sustainable economic growth as well as the possibility of a future for humankind.

Call to Action #92 calls upon the corporate sector to:

1. commit to meaningful consultation and seek the free and informed consent of Indigenous peoples prior to any economic development projects;
2. ensure equitable access to jobs, education and training and ensure that Indigenous communities gain long-term sustainable benefits from economic development projects;
3. Educate management and staff on the legacy and history of Indigenous people, and on UNDRIP, treaties and Aboriginal rights, Indigenous law, human rights and anti-racism. [1]

For part one of this call, the courts have already downloaded the procedural aspects of the duty to consult onto corporations, and has ensured that consultation involves meaningful two way communication and engagement.[2]  However, it has been made clear that consent is not included in the scope of the duty to consult.[3]  This means that economic development can proceed even when the affected Indigenous groups do not consent, for the benefit of the greater public (ie. Profit).   The exclusion of consent from the duty to consult removes incentive to build strong, meaningful and reciprocal relationships with the true caretakers of the land.   

To address parts two and three of this Call, the Canadian Council for Aboriginal Business has started a certification program for Progressive Aboriginal Relations (PAR).[4]  The level of certification is determined by a panel of Indigenous judges and is meant to signal to communities and vendors that a company is a good business partner, a great place to work, and is committed to prosperity in Indigenous communities. The program relies on independent 3^rd party evaluation of four key drivers.  Companies must demonstrate a clear and cascading commitment to Indigenous relations through their leadership actions, employment initiatives and recruiting activities, business development and relationship building with Indigenous businesses, and through their community engagement.[5]

Much like the growing demand on corporations to roll out green initiatives, there is growing demand for PAR certification as well.  These types of corporate social responsibility indicators are appealing to vendors and could influence better relationship building even in the absence of required consent.

(Photo by Michael Toledano via Amanda Follett Hosgood, “One Year after RCMP Raid, Tensions Rise as Wet’suwet’en Evict Pipeline Company”, (5 January 2020), online: The Tyee <https://thetyee.ca/News/2020/01/05/Year-After-RCMP-Raid-Wetsuweten-New-injunction/>)

There is still much work to do in getting corporations to participate in reconciliation and be actively anti-racist.  The PAR certification is a start, but the blockades and protests during the TransMountain and Coastal GasLink pipeline development in early 2020 are a clear indication of a missing element in corporate-Indigenous relations.  Companies should collaborate with community leaders on environmental preservation and sustainability, and should work to include Indigenous voices in executive level decision making.  The idea that destruction of vulnerable lands is in the greater public interest is short sighted and not only impacts Indigenous communities, but everyone alive today.  

For Call #92, we are assigning a grade of D.

Until Next Time,

ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 306.

[2] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida]; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 [TransMountain].

[3] TransMountain, supra note 2; William v British Columbia (Attorney General), 2019 BCCA 74 [William].

[4] “Progressive Aboriginal Relations (PAR)”, online: Candian Council for Aboriginal Busines <https://www.ccab.com/programs/progressive-aboriginal-relations-par/>.

[5] Ibid.

Re: MMIWG2S Movement is taking back Canada

Tansi Nîtôtemtik,

On March 13, 2021 people from across the country united in a nationwide“Take Back Canada”  rally to honour and commemorate the lives of those women who have been murdered or are missing. Families and friends of Missing and Murdered Indigenous Women, Girls and Two-Spirit Individuals  (MMIWG2S) and those wanting to bring awareness participated in various ways such as online forums, socially distanced marches and rallies, or from their homes by hanging a red dress from their windows or on their lawns in solidarity.

Photo Credit: Anita Cardinal-Stewart

The need to bring awareness for MMIWG and the “No More Stolen Sisters” campaign has gained momentum, especially in the last year with the noticeable increase in posts on social media circulating information about women going missing across the province. However, this increased awareness lacks media coverage or timely action from law enforcement in taking reports seriously or investigating those reports. 

Closer to home, the murder of Billy Johnson last December has brought friends, family and community together in the heartbreaking search mission for recovery of her body every weekend for the last month.^[1] Billy Johnson’s older sister Arianne Snakeskin said “we just want to bring her home and we want to bring awareness to the MMIW so that more families don't have to continue to go through this, it’s hard” in a Global News interview. In that same interview, she spoke about how the Edmonton Police Services’ (EPS) response was concerningly slow when her family reported Billy missing and for weeks would not release any information until the person responsible was charged. Further, when the family asked for help to search with a helicopter the EPS said it was too expensive.^[2]

If we want to improve the safety of indigenous women and girls, there must be a concentrated effort to address long-standing inequities on a systemic level in the institutions that hinder those women and their families from getting the kinds of supports they need.

Attendees and participants of the “Take Back Canada” rally call on the federal and provincial governments to take action on the 231 calls for justice made during the national MMIWG inquiry. Standing together in solidarity is a way to bring national attention to these calls for justice and these campaigns, even if it is hanging a red dress in your window or going to a rally, the cause needs all our support to do so.  

The pandemic creates additional challenges and increased situations of violence, which have had a profound effect on the health of women over this past year. It is estimated that one in five indigenous women reported being a victim of violence during the early pandemic months. According to a report ^[3] by the Native Women’s Association of Canada (NWAC), Indigenous women are 3.5 times more likely to experience violence compared to non-Indigenous women. The NWAC Report also found an increase in the number of violent incidents, usually by an intimate partner, and that one in five women reported being a victim of physical or psychological violence during the first three months of the pandemic.^[4]

One of our ReconciliAction team members attended the rally in Edmonton this past weekend to stand as a witness and was very honoured to be apart of the emotional and impactful event. The words of the survivors and loved ones who held signs of those they are remembering must be witnessed, and we at ReconciliAction stand in solidarity with the MMIWG2S and No More Stolen Sisters Movements.

Thank you for reading. 

Until next time,

Team ReconciliAction

 

[1] https://globalnews.ca/news/7638333/edmonton-missing-woman-billie-johnson-search/amp/

[2] Ibid

[3] https://www.nwac.ca/wp-content/uploads/2015/05/Fact_Sheet_Violence_Against_Aboriginal_Women.pdf

[4] Violence against Indigenous women up during early days of pandemic (aptnnews.ca)

The Independent Assessment Process (IAP) Final Report

Tansi Nîtôtemtik,

Last week the release of the Independent Assessment Process (IAP) Final Report marked an important step in the reconciliation process. But before we get too far into the report findings, let's take a step back and talk about the function of the IAP.

Independent Assessment Process (IAP)

In 2007, the implementation of the Indian Residential Schools Settlement Agreement (IRSSA) began. IRSSA was the culmination of collaborative efforts from legal counsel for former students, legal counsel for the Churches, the Assembly of First Nations, other Indigenous organizations and the Government of Canada, with the ultimate goal of bringing “a fair and lasting resolution to the legacy of Indian Residential Schools.” ^[1]   One of the five main elements of IRSSA was an Independent Assessment Process (IAP) for claims of sexual or serious physical abuse. ^[2] The IAP was set up as a non-adversarial process where victims shared their residential school experiences in private with neutral adjudicators. These adjudicators would then determine if the claim was allowed, and apply a predetermined formula to decide on compensation (as set out in the Settlement Agreement). ^[3]   

Three categories of claims were allowed under the IAP, as follows:

1. Sexual and physical assaults, as particularized in the IAP, which were committed by an adult employee of the residential school or another adult who was lawfully on the premises.
2. Sexual or physical assaults, as particularized in the IAP, committed by one student against another at residential school, in which case staff knew or should have known about the abuse; or, in serious sexual abuse cases, where reasonable supervision standards were not in place.
3. Any other wrongful act or acts committed by an adult employee or another adult lawfully on the premises where the abuse caused serious psychological consequences for the claimant, as particularized in the IAP. ^[4]

Report findings

In total, the IAP received 38,257 applications. Of those applications, there were 26,693 hearings. 7,075 claims were not admitted, withdrawn or dismissed and the rest of the claims settled through negotiated settlements.^[5] The average IAP payment, including legal costs, was $111,265 and the costs of the Independent Assessment Process totaled approximately $4 billion.^[6]  

The Report noted that there were numerous challenges to the IAP, stemming from the remarkable amount of claims, unexpected procedural and substantive issues, and the different circumstances of individual residential school survivors. ^[7] One particular issue identified was the misconduct of certain legal counsel during the course of the IAP. One particularly egregious example is a now disbarred Calgary-based lawyer whose firm represented more than 5,600 claimants--the largest caseload of any lawyer involved with the IAP. Rather than fulfilling his role as an advocate for the victims of residential school survivors ethically and respectfully, he mishandled their files and solicited clients using his connection to community organizations. ^[8] Unfortunately, legal counsel repeatedly took advantage of residential school survivors during the IAP, including another now disbarred lawyer who misappropriated over one million dollars from the IAP claimants he represented.^[9]

Feedback on the process was obtained from IAP claimants, and some voiced concerns about the compensation “grid” being overly restrictive, certain losses being very difficult to prove, the exclusion of certain residential schools, and being under compensated compared to what would be given in a court of law.^[10]  

Regarding the final outcomes, the claimants who were interviewed reported the following:

• Only 60% were satisfied with the decision and the compensation provided;
• Only 52% were satisfied with the timeliness of the IAP; and
• 69% of claimants were satisfied with the time it took to receive compensation: about four months following the decision. ^[11]

Although the IAP has concluded and the Final Report has been published, the work is far from over. Financial compensation cannot “buy” healing, and it is important to remember that many claims were either not accepted or were excluded from the restrictive criteria of the IAP. Canada still has a lot of work to do, and the repercussions of the residential school system continue to live on. 

Thanks for reading,

 

Team ReconciliAction YEG

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¹Government of Canada, “Indian Residential Schools” (21 Feb 2019) online: <https://www.rcaanc-cirnac.gc.ca/eng/1100100015576/1571581687074#sect4>. [IRS Doc]

²Ibid.

³Indian Residential Schools Adjudication Secretariat, “About the Independent Assessment Process” online: < http://www.iap-pei.ca/former-ancien/iap/about-eng.php>.

⁴IRS Doc, supra note 1.

⁵Government of Canada, “Statistics on the Implementation of the Indian Residential Schools Settlement Agreement” (21 Feb 2019) online: <https://www.rcaanc-cirnac.gc.ca/eng/1315320539682/1571590489978>.

⁶Independent Assessment Process Oversight Committee 2021, “Final Report” (March 11, 2021) online(pdf): <http://www.iap-pei.ca/media/information/publication/pdf/FinalReport/IAP-FR-2021-03-11-eng.pdf> at 60.

⁷Ibid at 38.

⁸Ibid at 53.

⁹Ibid at 54.

¹⁰Ibid at 66-68.

¹¹Ibid at 68.

The First Virtual Kawaskimhon Moot

 

Tansi Nîtôtemtik,

Normally, the middle of the winter term is a time for upper year law students to travel across Canada to participate in national moot court competitions. The COVID-19 pandemic has halted in-person competitions, but most of the national moots elected to host virtual competitions so that students could develop their oral advocacy skills in the ‘new normal’ format: online.

This past weekend, the University of Alberta sent four law students to the Kawaskimhon Moot, hosted by the University of Saskatchewan’s College of Law: Jordyn Woycheshin (3L), Alexa LaPlante (3L), Kienna Shkopich-Hunter (2L), and ReconciliAction co-lead Teresa Holmes (3L). 

Kawaskimhon is Cree in origin and roughly translates to “speaking with knowledge”. The Kawaskimhon Moot is unique from other competitive moots in that it is conducted in accordance with Indigenous customs of peaceful negotiation and consensus-building. The moot incorporates Indigenous legal traditions alongside federal, provincial, and international law. Students represent an assigned party and participate in complex roundtable negotiations with the assistance of facilitators.

 

Kawaskimhon Moot logo, Source: https://law.usask.ca/kawaskimhon2021/index.php

 

This experience is one that the participants can take into their legal careers and beyond. Students learn to be self-managing and collaborative, and deal with resolution of substantive issues. They also learn to reach collaborative agreement on the negotiation process itself, and how they will determine they have found consensus between parties.

This year, the problem centered on examining a land title issue from a Métis perspective. Teams were asked to create legislation to be relied upon by a fictional Métis Nation to deal with the effects of COVID-19. Participants were required to consider a number of legal issues including jurisdiction, Métis law, Charter rights, enforcement, adjudication, and penalties. This issue is very real in nations across Canada. Record breaking numbers of laws, bylaws, and policies are being created and applied across the country in response to the COVID-19 pandemic. The University of Alberta represented the federal government, while other law schools represented the Métis Nation, the Government of Saskatchewan, the RCMP, the National Centre for Truth and Reconciliation, and the Métis National Council.

 

Table 3 Participants at the 2021 Kawaskimhon Moot. Photo Credit: Teresa Holmes

 

The moot problem was not without its controversy. A few days before the moot, one facilitator announced his withdrawal from the event accompanied by his opposition to the problem. The problem was based on the assumption that Canada possesses underlying title and can give it to the Métis Nation. As this facilitator indicated, the doctrine of discovery and terra nullius are colonial assumptions that have been widely discredited by many, including our blog's authors. Further, Indigenous sovereignty and the right to self-govern have been recognized by the United Nations and the Truth and Reconciliation Commission as important aspects of reconciliation with Indigenous peoples.

The participants took this facilitator’s feedback as an opportunity to discuss and incorporate an analysis of underlying sovereignty and title into their discussions. Our hope is that future Kawaskimhon Moot problems will address the ongoing harms caused by an assumption of Crown sovereignty, and recognize its implications within the moot exercise and in Canadian society.

We would like to extend our gratitude to the organizers of the first virtual Kawaskimhon Moot. It was disappointing that we could not participate in person in Iqaluit, but the virtual experience was also rewarding and memorable.

Congratulations to the organizers, and participating  teams, coaches, facilitators of the 2021 Kawaskimhon Moot!

 

Until Next Time, 

ReconciliAction YEG

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Re: TRC Call to Action #90 – Funding for Indigenous Athletes and Programs

Tansi Nîtôtemtik,

We call upon the federal government to ensure that national sports policies, programs, and initiatives are inclusive of Aboriginal peoples, including, but not limited to, establishing:

i. In collaboration with provincial and territorial governments, stable funding for, and access to, community sports     programs that reflect the diverse cultures and traditional sporting activities of Aboriginal peoples.

ii. An elite athlete development program for Aboriginal athletes.

iii. Programs for coaches, trainers, and sports officials that are culturally relevant for Aboriginal peoples.

iv. Anti-racism awareness and training programs.

Sports and recreation and indigenous involvement in sport have been at times a way for the youth too to connect with one another, realize their own abilities and potential and celebrate their cultural identity. Reclaiming pride in their ancestry, sports has been a vehicle to promote better health and self-esteem but it also brings communities closer together for Indigenous peoples. Participation in sport has been an important aspect of indigenous communities since time immemorial. The continuation of that promotes a stronger community and cultural identity. The importance of sport is tied to the health of the community and is yet another area that is disproportionately underfunded.^[1]

On August 12, 2019, it was announced that a contribution of up to $47.5 million over five years to expand sport and physical activity programming in Indigenous communities across Canada. That includes nearly $1 million over two years to Indigenous Sports Council Alberta (ISCA).^[2]

ISCA is a registered non-profit provincial multisport organization that represents all First Nation, Métis and Inuit youth in Alberta. It works to promote recreation and sports programs, and it offers leadership training opportunities at all levels.^[3] The Council also supports individuals who compete and succeed at higher levels of competition. This funding is aimed at helping to provide safe and welcoming activities and more Indigenous people in the province with the opportunity to participate in sport and physical activity. But at one million dollars for all Alberta, that seems like a mighty stretch of a buck for the many athletes and communities that need extracurricular activities now more than ever. This amount does not mention funds for much-needed facilities that house sports activities especially those living in the northern climates. This oversight is troubling because the investment is crucial for giving Indigenous youth a space to hone their skills within their own communities. 

Investing in current and future Indigenous athletes is a must to improve the health, education and employability of Indigenous persons in Canada, and to reduce at-risk behaviour. The remaining $46.5 million spread out across Canada over 5 years for nations is not sufficient to make a significant change happen. Perhaps it is a start but in the end, it does not represent a serious push to invest in Indigenous athletes on a more proportionate scale as compared to non-Indigenous athletes.

Throughout this week you have learned how Indigenous athletes have overcome so many challenges in sport. You've learned about the endurance and resilience of indigenous athletes over time and how the sport is making a resurgence in many communities and with many indigenous youths. The demand for equitable and accessible recreation equipment and sports opportunities is getting louder and is required to help overcome barriers to opportunity in sport.^[4] Without adequate funding and equal opportunities, those barriers will continue to exist for Indigenous athletes preventing them from fulfilling their full potentials or being able to compete at all.

Until Next Time

Team ReconciliAction YEG

 

[1] Indigenous Peoples and Sport in Canada (hillnotes.ca) 

[2] Online: The Government of Canada Announces Sport and Physical Activity Program Investment in Indigenous Communities in Alberta - Canada.ca

[3] Ibid

[4] Indigenous Sports – Our Stories (pressbooks.pub)