University of Alberta Faculty of Law Blog

IBA Reflections: BC First Nations Justice Strategy

Tansi Nîtôtemtik, 

 

The Indigenous Bar Association conference, themed “Disrupted Systems”, wrapped up its second day on Friday with a stacked set of speakers, performers, and panels. This year’s conference featured important discussions about the state of the Canadian legal system and profession; systemic racism and inequity; practicing law and ceremony during a pandemic; new child welfare laws; incredible drum, flute and song performances; and more turtlenecks than we have ever seen at a single event.  This week, we will share some highlights of the conference before we jump back into evaluating the TRC Calls to Action in healthcare. 

(Illustration: “Meta” by Jason Sweeney)

 

Today, we will discuss the BC First Nations Justice Strategy as presented by Chief Doug White, Chair of the BC First Nations Justice Council.^[1] Signed in March of 2020, the Strategy was jointly developed with the BC government to reform the current legal system, address its harms against Indigenous people, and restore Indigenous legal structures.^[2]  

 

The numbers presented by Chief White were staggering, but not surprising for anyone who has been paying attention. Across Canada, First Nations, Metis and Inuk people make up around 5% of the total population, but a disproportionate 30% of Canada’s incarcerated population.^[3]   For women and girls, the figures are even more alarming. Forty-two percent of all incarcerated women are Indigenous, and 60% of all girls in custody are Indigenous.^[4] Indigenous people are also overrepresented as victims of crime, and underrepresented in roles of authority and responsibility.^[5]  

(Image: Office of the Correctional Investigator. (2020, January 21). Indigenous People in Federal Custody Surpasses 30%. Correctional Investigator Issues Statement and Challenge. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx)

 

Chief White attributes the worsening impact of the legal system on Indigenous people in BC to a variety of factors, including: 

• improper implementation of the Gladue principles in sentencing, 
• poor access to legal representation, 
• defunding of Legal Aid and Native Community Law Offices,

 as well as over-policing and under protection by police, as has been shown in reports like the AJI, RCAP, TRC and MMWIG.^[6]  

 

After the agreement to develop the Joint Strategy in 2017, a two year consultation and engagement process followed.^[7] During that time, BC did not wait to begin making changes. Funding was immediately increased to improve access to Gladue reports at sentencing and bail hearings, and to begin establishing a network of 15 Indigenous justice centers to provide legal services for criminal, family and child protection matters.^[8]  

 

The 25 strategies outlined in the Joint Strategy are based on 4 pillars: Core Values; Structures and Processes;  Roles, Responsibilities and Capacities; and Laws and Policies ^[9]  Within each of the strategies are clear lines of action for implementation. However, many of those lines of action simply state that an action plan must be developed.^[10]  

 

The emphasis that the BC strategy places on Indigenous-led justice and community-based programming is promising, as is the focus on reforming the current justice model to incorporate more Indigenous perspectives. Team ReconciliAction will be watching the progress in BC as the province embarks on this joint process led by the BC First Nations Justice Council, and is looking forward to the impact of the new strategies on the Indigenous people who shared those lands with settlers. If the BC strategy is successful, we hope to see the other provinces in Canada adopting principles that restore First Nations legal orders and structures within their borders.

Until Next Time,

Team ReconciliAction YEG

 

¹ Chief Doug White, BC First Nations Justice Strategy (Indigenous Bar Association Conference: Disrupted Systems, 2020).

² BC First Nations Justice Council, BC First Nations Justice Strategy (British Columbia, 2020) online: https://www.bcafn.ca/sites/default/files/docs/news/First_Nations_Justice_Strategy_Feb_2020.pdf at 3.

³ Chief Doug White, supra note 1; See also Office of the Correctional Investigator Government of Canada, “Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator”, (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

⁴ Chief Doug White, supra note 1; See also The Native Women’s Association of Canada (NAWC), “Number of Incarcerated Indigenous Women at New High”, First Nations Drum Newspaper (22 January 2020), online: <http://www.firstnationsdrum.com/2020/01/number-of-incarcerated-indigenous-women-at-new-high/>.

⁵ BC First Nations Justice Council, supra note 2 at 20–22.

⁶ Chief Doug White, supra note 1.

⁷ BC First Nations Justice Council, supra note 2 at 8.

⁸ Chief Doug White, supra note 1.

⁹ BC First Nations Justice Council, supra note 2 at 5.

¹⁰ BC First Nations Justice Council, supra note 2 at 27, 28, 29, 31, 32, 38, 40, 48, 49, 51.

5 Years After TRC: Indigenous Languages Act

 

(Artwork by Monique Aura Bedard)

Tansi Nîtôtemtik,

 

Today we continue our evaluation of reconciliation in language and culture with Calls to Action #13, #14 & #15.  Call #13 demands that the government explicitly acknowledge language rights as Aboriginal rights, while Call #14 & #15 calls for federal language legislation and a Commissioner’s office dedicated to Indigenous language revitalization and preservation.^[1] 

 

In the late 1800s, Indian Commissioner Hayter Reed suggested that the “native language is only to be used as a vehicle of teaching and should be discontinued as such as soon as practicable”.^[2] This rhetoric meant that children in residential schools would be prohibited from speaking their language both in and out of school. In 1903, the principal of the residential school in Red Deer, Alberta was reprimanded for the prevalence of the Cree language in the school.^[3] The inspector called it a “serious drawback”, and “an evidence of bad discipline”.^[4] Punishments for children speaking in their own tongue included closely cropped haircuts, hitting, strapping, or being forced to eat soap.^[5] This had long-lasting impacts on language use even after attitudes about Indigenous languages in the schools began to change in the 1960s. Parents decided not to teach their children to speak their own language, or warned them against speaking it at school.^[6]  As stated by Toronto linguistic rights lawyer David Leitch, no “other cultural group in Canada has been subject to a state-sponsored attempt to eradicate its language.”^[7]

 

(Artwork by Avis Charley)

 

Indigenous language is protected under the broad language of section 35 of the Constitution, but this protection has been a negative right - as in the government may not interfere with Indigenous language revitalization or preservation.^[8]  This is nice, but given that the purpose of the residential school system was assimilation through the destruction of Indigenous culture and language perhaps this right should be a positive one - as in the government is responsible for funding and supporting initiatives that revitalize and preserve Indigenous languages.  This was the position of Lorena Fontaine, an assistant professor at the University of Winnipeg, and David Leitch, who were in the midst of preparing a constitutional challenge on Indigenous language rights in education when Prime Minister Trudeau announced that Canada would co-develop Indigenous language legislation with Indigenous groups.^[9] 

 

The Indigenous Languages Act came into force on June 21, 2019, and formally recognizes Indigenous languages as rights under section 35 of the Constitution.^[10]  It also directly responds to Article 13 of the United Nations Declaration on the Rights of Indigenous Peoples, which states that “Indigenous peoples have the right to revitalize…and transmit to future generations their…languages” and that “[s]tates shall take effective measures to ensure this right is protected”.^[11]

 

Indigenous languages are currently endangered, some languages more critically than others. At the recent Métis Nation Engagement Session for the implementation of the Indigenous Languages Act, it was noted that there are very few Michif speakers under the age of 65.^[12]  In addition, these speakers are becoming more isolated from other Michif speakers and losing the ability to practice their language.^[13] The need for investment into reviving the Michif language is urgent. 

 

While Michif is one of the more critically endangered of Indigenous languages spoken in Canada, each language will require a distinct approach to revitalization and preservation. This means that language revitalization is best managed by the communities who speak those languages, and that funding models must take into account the diversity of these languages and distinctive needs of language keepers.^[14]  The Act acknowledges the need for Indigenous-led language management and the need for a distinctions based approach.^[15]

 

To go along with the new legislation, the federal government has allocated additional funding in the amount of $333.7 million over five years, beginning in 2019, and $115.7 million per year on an ongoing basis beginning in the fiscal year of 2023-2024 to support Indigenous languages and implementation of the Act.^[16] Canada has also committed to creating a Commissioner’s Office of Indigenous Languages to help facilitate the effective implementation of the Act, promote and support Indigenous language programming and initiatives, as well as carry out research and evaluation on Indigenous languages.

 

At a surface level Canada has met Calls # 13, #14 & #15, however, there is no breakdown on how funds will be allocated and little commitment to any positive duty other than long-term sustainable funding. This forces communities to compete for funding and maintains too much colonial control over the allocation of a set block of funds. Team ReconciliAction gives Canada a passing- but not perfect- grade on these Calls to Action.

That concludes our review of the Calls to Action relating to Language and Culture, stay tuned tomorrow for a discussion on the Center for Constitutional Studies Charter Series discussion on prevailing law between the Charter and the Vuntut Gwitchin Constitution!

Until next time, 

Team ReconciliAction

 

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 321.

² Ibid at 80.

³ Ibid at 81.

⁴ Ibid.

⁵ Ibid at 81–83.

⁶ Ibid at 84.

⁷ David Leitch, “Canada’s Native Languages: The Right of First Nations to Educate Their Children in Their Own Languages” (2006) 15:3 Const Forum Const 107 at 111.

⁸ Karen Drake, “Language Rights as Aboriginal Rights: From Words to Action” in Kiera L Ladner & Myra J Tait, Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books, 2017).

⁹ Nicola Luksic, “Constitutional challenge looks to revive aboriginal languages”, CBC News (10 April 2016), online: <https://www.cbc.ca/news/indigenous/aboriginal-language-constitution-1.3525982>; Justin Trudeau, Prime Minister of Canada, “Prime Minister Justin Trudeau’s Speech to the Assembly of First Nations Special Chiefs Assembly”, (6 December 2016), online: Prime Minister of Canada <https://pm.gc.ca/en/news/speeches/2016/12/06/prime-minister-justin-trudeaus-speech-assembly-first-nations-special>.

¹⁰ Indigenous Languages Act, 21 June 2019, SC 2019, c 23 [Indigenous Languages Act], s 6.

¹¹ Ibid, Preamble, s 5(g); United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/ RES/61/295, 46 ILM 1013 (2007), Article 13 [UNDRIP].

¹² Sharon Parenteau, Louis Riel Institute & David Morin, Gabriel Dumont Institute, Métis Nation Engagement on the Implementation of the Indigenous Languages Act: Summary of the 2017-18 Engagement (Canada, 2020).

¹³ Ibid.

¹⁴ Truth and Reconciliation Commission of Canada, supra note 1 at 321.

¹⁵ Indigenous Languages Act, 21 June 2019, SC 2019, c 23 [Indigenous Languages Act], s 45(2).

¹⁶ MNC, Métis Nation Engagement on the Implementation of the Indigenous Languages Act: Participant Guide (Canada, 2020) at 10.

IBA 2020 Reflections: The Honorable David Lametti on Achieving Justice

Tansi Nîtôtemtik, 

 

Thank you for tuning in for our reflections this week.  The IBA conference is a yearly highlight for so many, and we are grateful to the Faculty administration for sponsoring our attendance so that we may share the highlights with our readers. 

 

(Artwork: Bradly Wohlgemuth in Katerina Tefft, “Canadian justice system failing Aboriginal people”, (13 August 2013), online: The Manitoban <http://www.themanitoban.com/2013/08/canadian-justice-system-failing-aboriginal-people/15822/>)

 

Today’s post will reflect on the Achieving Justice for Indigenous Peoples in Canada presentation given by Canada’s Attorney General and Minister of Justice, The Honorable David Lametti.  It was nice to see Minister Lametti speak on the topic of Justice and Indigenous people, and engage directly with the Indigenous legal community on how to improve the current system.  

 

The Canadian Justice system has historically been oppressive to Indigenous people, from the creation of the Mounted Police for the purpose of driving Indigenous people onto reserves, to the problems created by over policing, lack of non-police services, and the continued over-representation of Indigenous people in the justice system.^[1]  In some provinces, an Indigenous male is more likely to be incarcerated then he is to finish high school.^[2]  The government has long been aware of the issues faced by Indigenous people in the justice system, even if we only look to such touchstone reports as Manitoba’s Aboriginal Justice Inquiry (AJI), the report of the Royal Commision on Aboriginal People (RCAP) and the final report of the TRC.^[3]  Through these reports,formal solutions and recommendations for improving the justice system for Indigenous people have been under discussion for over 30 years, which makes it all that much more disheartening to hear the Minister state that the problem of over-representation is getting worse, and not better.  This is a system that has been likened to a continuation of the horrific residential school system, and we cannot continue to discuss it without change for another 30 years.^[4]  

 

The Minister acknowledged systemic racism, and mentioned the need for reconciliation. Much of Minister Lametti’s presentation discussed diversifying the judicial bench at federal levels of court. He echoed his earlier calls from the September 2020 Diversity on the Bench forum, and encouraged IBA attendees to apply for judicial appointment.^[5] But perhaps the problem behind a lack of Indigenous applicants lies more with the broken system than Minister Lametti was willing to acknowledge.  The application process is an onerous one, and the historic profile of the judiciary is well - monochrome. Martha Jackman, a law professor at the University of Ottawa, and co-chair of the National Association of Women and the Law (NAWL) believes that many people self select out of the application process with the “probably accurate” belief that they won’t be appointed.^[6]  In addition, the requirement of both French and English fluency at the Supreme Court of Canada level is a barrier for Indigenous applicants who may well be “functionally bilingual”, but in their own language instead of French.^[7]  

 

A key moment during the talk came when former IBA president Koren Lightning-Earle posed a question to Minister Lametti about this bilingual criteria as a barrier to the appointment of Indigenous jurists. In a disappointing response, the Minister spoke to “tight word limits” and the need for lawyers to “plead in those two languages without the need of a translator” before stating that those with a goal of reaching the SCC should “begin learning [to speak] in either French or English”.^[8]  This statement ignores the deep and lasting effects of colonialism on Indigenous people, and is not reconciliatory in tone.  As one attendee pointed out, spoken French recalls traumatic memories of residential schooling for members of their family.  Team ReconciliAction is alive to the significance of both English and French languages in Canadian culture.  But Indigenous languages are the first languages spoken on this land. If Canada truly wants to reconcile and improve Cananda-Indigenous relations, Indigenous languages should be welcomed into colonial systems as an accepted form of bilingualism.

 

In the end, our takeaways from this session were as follows:

• Canada is keenly aware of the issues faced by Indigenous people in the justice system; and 
• Canada knows that the judiciary lacks Indigenous representation; and
• Canada can say many of the right words, like systemic racism, achieving justice, addressing reconciliation, diversity on the bench etc; but
• Canada isn’t willing to disrupt the colonial system to create meaningful change for Indigenous people at this time. 

 

We are grateful that we were able to be present for this discussion and we give our thanks to the engaged conference attendees who asked thoughtful and deliberate questions of the Minister and expected meaningful responses. We left Day 1 of the 2020 IBA conference hungry for Day 2 on October 23.  Stay tuned for tomorrow’s reflection on Advocacy in the Pandemic. 

 

Until next time, 

Team ReconciliAction

 

 

¹ Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba. Volume 1: The Justice System and Aboriginal People (Winnipeg: Province of Manitoba, 1991) [AJI]; See also Canada, Bridging the cultural divide: a report on Aboriginal people and criminal justice in Canada, Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996) [RCAP];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) [TRC Summary]; Office of the Correctional Investigator Government of Canada, "Indigenous People in Federal Custody Surpasses 30% - Correctional Investigator Issues Statement and Challenge - Office of the Correctional Investigator", (16 April 2020), online: <https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx>.

² Saskatchewan Human Rights Commission, Courageous Conversations: Engaging Citizens in Conversations that Matter, Chief Commissioner D. Arnot (Saskatchewan: Concentus Citizenship Education Foundation Inc., 2016).

³ AJI, supra note 1; TRC Summary, supra note 1; RCAP, supra note 1.

⁴ Nancy Macdonald, “Canada’s prisons are the ‘new residential schools’”, Maclean’s Canada (18 February 2016), online: <https://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/>.

⁵ John Schofield, “Federal justice minister invites diverse communities to make judicial applications”, The Lawyers Daily (18 September 2020), online: <https://www.cbabc.org/News-Media/News/2020/Federal-justice-minister-invites-diverse-communiti>.

⁶ Dale Smith, “Overcoming the diversity deficit on federal courts”, CBA National Magazine (14 October 2020), online: <http://www.nationalmagazine.ca/en-ca/articles/law/judiciary/2020/overcoming-the-diversity-deficit-on-federal-courts>.

⁷ Peter Zimonjic, “Functionally bilingual requirement for Supreme Court justices here to stay, says Wilson-Raybould”, (24 October 2016), online: CBC News <https://www.cbc.ca/news/politics/rowe-campbell-wilson-raybould-supreme-court-1.3819210>.

⁸ The Honorable David Lametti, Achieving Justice for Indigenous Peoples in Canada (Indigenous Bar Association Conference, Canada, 2020).

Joyce Echaquan: Death by Racism

 

Tansi Nîtôtemtik,

 

Our schedule this week includes evaluations of Calls to Action #6 through #12, which focus on reconciliation as it relates to education. However, recent events have necessitated we pause this work for today. 

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

Last week, an Indigenous mother of seven filmed her final moments from a hospital bed. Joyce Echaquan pleaded for help while the nursing staff made cruel and racist remarks about her.^[1]  This woman was treated as contemptible and worthless by the medical staff charged with her care.  Joyce died of complications from hospital-administered morphine shortly after she live-streamed her inhumane treatment.^[2]

 

Today, we honor Joyce and bring attention to the gap in adequate healthcare for Indigenous people. Joyce was an Atikamekw woman from the Manawan Reserve community in central Quebec.^[3] She was 37 years old, and a mother to seven children ranging from 7 months old to 19 years old.^[4] Her seven children and bereaved husband are left to pick up the pieces after her entirely preventable death. 

 

The notion that Indigenous people experience difficulty in receiving necessary health care is not new. For her part, Joyce had struggled with heart health for some time, and had often expressed fear of the hospital.^[5]  Joyce is not the first Indigenous person in Canada to die needlessly in the care of our health systems due to systemic and ingrained racism. In 2008, Brian Sinclair died of a treatable bladder infection after being ignored in a waiting room for 34 hours.^[6]  In 2016, Elder Hugh Papik had a stroke, but  was dismissed as drunk by hospital staff, and later died.^[7] In 1988, Katie Ross died of an untreated gunshot wound while strapped to the hospital bed, after medical staff failed to properly assess her and diagnosed her with anxiety.^[8] Today we ask what is Canada doing to ensure that all Canadians have access to the same standard of care?

 

Canada has a serious data deficit when it comes to collecting accurate, up-to-date and complete data on health outcomes for First Nations, Métis and Inuit.^[9] We do know that health indicators like infant mortality, life expectancy, and access to health services lag behind for Indigenous people in comparison to non-Indigenous people.^[10] We also have horrific and extreme accounts of racism in healthcare experienced by Indigenous people - including forced sterilization in the prairie provinces as recently as 2018.^[11]

 

TRC Call to Action #24 calls for training for health care professionals to combat racism and understand the effects of the legacy of colonialism on Indigenous people.^[12]  As we will show in a few weeks, this type of training has been implemented in various forms across Canada.^[13] Outside of the TRC, other reports have been released addressing inequity in healthcare. In Quebec where Joyce sought medical care, the Viens Report issued 142 Calls to Action specific to the Quebec health care system and its treatment of Indigenous people.^[14] 

 

Despite the action taken to date, in September 2020, Joyce Echaquan died in hospital of racism. Following her death, the Premier of Quebec denied any issue of systemic racism.^[15] Sit with that for a second—the Premier flatly ignored the 488 page Viens Report and its 142 Calls to Action that target Quebec’s racism problem. Straight up denial is right out of the tired, old, racist playbook. It is tragic that Joyce’s husband and children would probably have welcomed her home after being treated in hospital if it weren’t for racism. It is unacceptable that in 2020 Joyce’s necessary medical care was ignored because of racism. 

 

Today we honor the life of Joyce Echaquan, who should still be with us today.  We support the protestors in Quebec who joined the Justice for Joyce march this past Saturday.  Most of all, we mourn along with Joyce’s seven children and her husband at the untimely loss of their mother and wife. 

(Image Credit: Global News)

A Go Fund Me has been organized for the care of Joyce’s seven children, if you would like to contribute you can do so here.  

 

Tomorrow we will return to our evaluation of TRC Call to Action #6.

 

Until Next Time,

 

Team ReconciliAction YEG

 

 

¹ We will not be providing a source for this video, as ReconciliAction does not support the plague of voyeurism of BIPOC death.

² Jesse Feith, “Indigenous woman records slurs by hospital staff before her death”, (30 September 2020), online: Montreal Gazette <https://montrealgazette.com/news/local-news/indigenous-woman-who-died-at-joliette-hospital-had-recorded-staffs-racist-comments>.

³ Kristy Kirkup & Tu Thanh Ha, “Indigenous woman records slurs, taunts of Quebec hospital staff before her death”, The Globe and Mail (29 September 2020), online: <https://www.theglobeandmail.com/canada/article-indigenous-woman-records-slurs-taunts-of-quebec-hospital-staff-before/>.

⁴ Ibid.

⁵ Jesse Feith, supra note 2

⁶ Jane Gerster, “A man was ignored to death in an ER 10 years ago. It could happen again”, (21 September 2018), online: Global News <https://globalnews.ca/news/4445582/brian-sinclair-health-care-racism/>.

⁷ “Review into Hugh Papik’s death calls for cultural training for health care workers”, (27 February 2017), online: CBC News <https://www.cbc.ca/news/canada/north/hugh-papik-aklavik-stroke-death-review-recommendations-1.4001279>.

⁸ Heather I Peters & Bruce Self, “Colonialism, Resistance and the First Nations Health Liaison Program” (2005) 4:1 Currents: New Scholarship in the Human Services 12.

⁹ An Overview of Aboriginal Health in Canada (Prince George, BC: National Collaborating Center for Indigenous Health, 2013) at 3.

¹⁰ Brenda Gunn, Ignored to Death: Systemic Racism in the Canadian Healthcare System (Submission to EMRIP the Study on Health, Robson Hall Faculty of Law, University of Manitoba, 2016) [unpublished] at 5.

¹¹ Avery Zingel, “Indigenous women come forward with accounts of forced sterilization, says lawyer”, CBC News (18 April 2019), online: <https://www.cbc.ca/news/canada/north/forced-sterilization-lawsuit-could-expand-1.5102981>.

¹² Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 322.

¹³ See “The Royal College of Physicians and Surgeons of Canada :: Indigenous health”, online: <http://www.royalcollege.ca/rcsite/health-policy/initiatives/indigenous-health-e>.

¹⁴ Government of Quebec, Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (Quebec, 2019).

¹⁵ Kristy Kirkup & Tu Thanh Ha, supra note 3.

5 Years After TRC: Reducing Children in Care

Tansi Nîtôtemtik, 

 

Today we are looking at TRC Calls to Action #1 and #2.  Both of these Calls to Action call on governments to address the staggering number of Indigenous children in the child welfare system. The 2016 census showed that a shocking 52.2% of children in care were Indigenous.^[1] Why is this figure so shocking? Well, only 7.7% of children in Canada are Indigenous.^[2]  

(Image credit: Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>) 

 

Call to Action #1 calls for a commitment from governments to reduce Indigenous children in care through resourcing, monitoring and educating child welfare organizations, and requiring child-welfare investigators and decision makers to consider culturally appropriate environments and the effects of residential schools on children and caregivers. Call to Action #2 calls for annual published data on child welfare services and Indigenous children.^[3]

 

To evaluate Call to Action #1, Team ReconciliAction first needed to know if there has been a reduction of Indigenous children in care since 2015. However, the most recent federal data on the number of Indigenous children in care comes from the 2016 census. Due to the absence of annual published data, we have assigned a failing grade for Call to Action #2.  Finding out the number of Indigenous children in care would have been a simple task if Call to Action #2 had been adequately responded to.  Luckily for our readers, we law students are no strangers to research. 

 

News reports from June 2020 state that the proportion of Indigenous children in care in Saskatchewan hit an 11-year high for the number of children in care, with 86% of these children being Indigenous.^[4]  Following a similar upward trend, Alberta Human Services reported a 4% increase in Indigenous children in care in 2018, raising Alberta's figure to 70%.^[5]  Finally, between 2016 and 2018, BC saw an increase in the number of Indigenous children in care from 61% to 63%.^[6] 

 

The number of Indigenous children in care may be further impacted by recent published judicial interpretations of the Act respecting First Nations, Inuit and Métis children, youth and families since it's coming into force in January 2020. Several courts across the country have interpreted the new priority placement provision in the Act in a way that places or keeps the Indigenous child in foster care, by skipping over or deeming 'not applicable' placements that are legislated as ahead of foster homes in priority.^[7] We will discuss this Act in greater detail next week when we look at Call to Action #4.

 

Overall, Call to Action #1 cannot be assigned a passing grade for reducing the number of Indigenous children in care because the proportion of Indigenous children in care has not been reduced since the final report from the TRC was released in 2015. Perhaps tomorrow this grade can improve when we evaluate whether there has been progress on the individual means of reducing the number of Indigenous children in care as set out in TRC Call to Action #1. Stay tuned!

What do you think about progress on Calls to Action #1 & #2? Comment below. 

 

Until next time, Team ReconciliAction YEG

 

¹ Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>.

² Ibid

³Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 319.

⁴ Anna McMillan, “Number of children in Saskatchewan’s care hits 11-year high, with 86% identified as Indigenous”, online: Global News <https://globalnews.ca/news/7020525/indigenous-children-saskatchewans-care-11-year-high/>.

⁵ Human Services Alberta, Child Intervention Information and Statistics Summary (Alberta: Human Services Alberta, Child Intervention Division, 2018).

⁶ Government of British Columbia, “Children and Youth in Care”, (31 March 2018), online: <https://mcfd.gov.bc.ca/reporting/services/child-protection/permanency-for-children-and-youth/performance-indicators/children-in-care>.

⁷An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c 24 [The Act], s 16, When placing an Indigenous child, priority must be considered in order of, (a) with one of the child’s parents, (b) with another adult member of the child’s family,(c) with an adult who belongs to the same Indigenous group, community or people as the child, (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or (e) with any other adult. Alberta (Child, Youth and Family Enhancement Act, Director) v KC, 2020 ABPC 62 [AB Director v KC] at paras 30–31, Interpreted as inapplicable when family and Indigenous governing body have not put forth kinship or other placement options; British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82 [BCCFS v SH] Placement priority provision interpreted as not applicable when no other placement alternatives or evaluations have been provided to the court.

In the Media: Political, Institutional, and Community Responses to the MMIWG Final Report

Tansi Nîtôtemtik,

Since its release on June 3, 2019, the political, institutional, social and community responses to the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) have been nearly as various as they are numerous. Today’s post highlights some of the responses of Indigenous, institutional and political leaders. However, it is recognized that today’s post in no way comprehensively describes the full effects and consequences of the deeply moving and complex nature of the Final Report.

Indigenous Voices and Perspectives

Marion Buller, the chief commissioner for the National Inquiry into MMIWG, stated the most important of the Calls for Justice according to those who testified in the Truth Gathering Process were those regarding responsive police services, adequate housing, guaranteed food supply, and clean drinking water.[1] However, much of what the Final Report stated was initially overshadowed by controversial discussion regarding the use of the word ‘genocide’ to describe the disproportionate rates of violence and homicide against Indigenous women, girls, and 2SLGBTQQIA peoples in Canada.

Lorelei Williams, who testified at the MMIWG inquiry as a family member to two lost Indigenous women, said she was grateful for the finding of genocide by the National Inquiry, stating: “The genocide part of it is really speaking out to me... Our people have been through this for a long time, so I’m grateful for that part of it.”[2] However, Lorelei expressed she ultimately does not trust the government to move forward with implementing the Calls for Justice.[3] Some, such as Andrea Landry, an Anishinaabe from Pawgwasheeng, stated the National Inquiry and the Final Report were not what she envisioned and expressed concern about the fact that a “… [c]olonial government can, and will, define, dictate and decide the outcomes of the inquiry… The choice to implement the recommendations within the [Final Report] is ultimately, a political one.”[4] Interestingly, Landry further commented she would have liked to have seen a section for Indigenous leaders and Indigenous communities outlining suggested next steps and highlighting the positive and preventative change already taking place.[5]

Lawyer and activist Pam Palmater also believes the decision to respond to the Calls for Justice is a political one, saying: “[I have] 100% confidence that federal, provincial, and municipal governments have the resources and capacity and ability to [implement the Calls for Justice]. I am very concerned about the political willingness to do it.”[6]

Institutional Responses

Winnipeg Chief of Police Danny Smyth offered an interesting perspective with respect to the Calls for Justice concerning police services. Considering the shortcomings in Canada's system of services relating to Indigenous Peoples, Chief Smyth opined "it is not that big of a stretch" to conclude the lack of resources resulted in genocide.[7] Positively, Chief Smyth reported that changes were already in place for policing services across Canada.[8]  

Political Responses and Action

On June 24, 2019, Prime Minister Trudeau announced the federal government’s 13 million dollar pledge to fund more than 100 projects to honour the lives and legacies of missing and murdered Indigenous women and girls.[9] Shortly following the release of the Final Report, Trudeau also promised to develop a national action plan to address the violence against Indigenous women, girls, and 2SLGBTQQIA people.[10] Crown-Indigenous Relations Minister Carolyn Bennett expressed the perspectives of the Inuit, First Nations, and Metis, in addition to family members, victims and survivors of violence would be consulted in the development of the national action plan.[11] Asked when the national action plan would be rolled out, Bennett commented the plan would be ready when Indigenous people think it is ready.[12]

Artistic Responses

Some responses to the release of the Final Report were artistic in nature, with the intention of remembering and raising awareness for Canada’s missing and murdered Indigenous women and girls. A billboard campaign occurred across Canada in June curated by Artists Against Racism featuring 12 works by Indigenous artists.[13] The executive director of Arts Against Racism, Lisa Cherry stated that many of the 12 cities (Halifax, Kamloops, Edmonton, Vancouver, Montreal, Ottawa, Saskatoon, Regina, Moncton, Toronto, Thunder Bay, and Winnipeg) were chosen according to where Indigenous issues have been the biggest and most problematic.[14] To learn more about the campaign, please visit Eagles Rising.[15]

The Final Report has prompted responses from a cross-section of political, institutional, Indigenous and community leaders and members. While not all responses will be beneficial in nature, the Final Report is sparking much needed dialogue about the crisis of murdered and missing Indigenous women and girls. These conversations, challenging as they may be are well overdue.  

 

Yours Truly,

 

Team ReconciliAction YEG

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[1] CTV News, ‘Power Play: Final MMWIG Report Released’ at 00h:02m:14s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[2] CTV News, ‘Inquiry on Missing and Murdered Indigenous Women’ at 00h:00m:17s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[3] Ibid at 00h:03m:50s.

[4] Andrea Landry, “As An Indigenous Woman I Was Triggered By The MMIWG Report. Here’s What Needs To Happen Now”, Chatelaine (last modified 5 June 2019), online: <www.chatelaine.com/opinion/as-an-indigenous-woman-i-was-triggered-by-the-mmiwg-report/> [perma.cc/3RVN-PXA3].  

[5] Ibid.

[6] CTV News, ‘Power Play: Serious issues need to be addressed’ at 00h:00m:29s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[7] CTV News, ‘CTV National News: Historic Indictment’ at 00h:00m:30s in “Key takeaways from the final MMIWG report” (3 June 2019), online (video): CTV News <www.ctvnews.ca/politics/key-takeaways-from-the-final-mmiwg-report-1.4450095> [perma.cc/7P4B-JS5P].

[8] Ibid.

[9] David Reevely, “Liberals pledge $13M to ‘honour the lives and legacies’ of MMIWG”, Global News (24 June 2019), online: <globalnews.ca/news/5427735/mmiwg-liberals-13-million-pledge/> [perma.cc/92CB-234U].

[10] Rachel Aiello, “No timeline for federal ‘action plan’ responding to MMIWG inquiry”, CTV News (8 June 2019), online: <www.ctvnews.ca/politics/no-timeline-for-federal-action-plan-responding-to-mmiwg-inquiry-1.4457043> [perma.cc/2HN2-QHLB].

[11] Ibid.

[12] Ibid.

[13] Taylor Braat, “National billboard campaign hopes to continue MMIWG conversation”, Global News (last modified 12 July 2019), online: <globalnews.ca/news/5417338/national-billboard-campaign-mmiwg/> [perma.cc/S3CJ-9C97].

[14] Ibid.

[15] “Eagles Rising”, online: Artists Against Racism <artistsagainstracism.org/eaglesrising/> [perma.cc/BBL4-Z25N].

In the Media: Indigenous Candidates and Indigenous Issues in the Federal Election

Tansi Nîtôtemtik,

With the impending federal election nearly upon us, today ReconciliAction YEG highlights Indigenous candidates and provides a brief overview of what each party proposes to offer Indigenous voters if they get voted in on October 21^st.

Indigenous Candidates
The 2015 federal election saw the highest representation of Indigenous candidates to date, with a record-breaking 54 contenders, 10 of whom were elected.[1] As of October 1^st, 2019, Indigenous candidates in this year’s federal election total 42 contenders: 5 each for the Conservative Party of Canada (the “Conservatives”) and the Green Party of Canada (the “Green Party”); 2 running Independent (notably Jody Wilson-Raybould); and 15 each for the Liberal Party of Canada (the “Liberals”) and the New Democratic Party (the “NDP”).[2] At last count, 3 of the 42 are running in Alberta ridings. These include: Desmond Bull of the Louis Bull Tribe of the Maskwacis Nation running for the Green Party in the Maskwacis-Wetaskiwin riding[3]; Maggie Farrington, Chief Executive Officer of the Athabasca Chipewyan First Nation, running for the Liberals in the Fort McMurray-Cold Lake riding[4]; and Katherine Swampy a resident of Maskwacis and councillor for the Samson Cree Nation, running for the NDP in the Edmonton Centre riding.[5]

Party Platforms on Indigenous Issues
Some parties, such as the Conservatives, have yet to release the entirety of their platform with regard to Indigenous issues.[6] According to the National Post the Green Party is the only party to have made an official promise with regard to Indigenous Affairs since the start of the campaign on September 11^th, 2019. The Green Party has stated they will implement the Aalls to Action of both the Truth and Reconciliation Commission of Canada (TRC) and the Calls to Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.[7] As well, they have promised to re-introduce legislation to enshrine in Canadian law the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[8]

However, prior to the start of the campaign or as part of their official platform, most of the Parties have declared what they propose to do if they receive the winning vote. Both the Liberals and the NDP have stressed their commitment to implementing the 94 Calls to Action in the TRC Final Report and have made it a goal to lift the drinking water advisories across Indigenous communities in Canada within the elected term.[9]

The NDP and the Green Party have provided the most comprehensive breakdown in their platforms of what they propose to do for Indigenous voters and have touched on the important topics of housing, education, employment and economic development, and investment in public services.[10]

Little is known about the Conservative Party’s stance on Indigenous issues, except that Conservative Leader Andrew Scheer has said he is eager to build an open and positive relationship with Indigenous people.[11] However, he has also confirmed he would seek a judicial review of the Canadian Human Rights Tribunal decision ordering compensation of First Nations children harmed by on-reserve child welfare systems.[12] As the party currently in power, the Liberals are seeking judicial review of the First Nation child welfare compensation.[13]

The People’s Party of Canada has stated their intention to replace the “paternalistic Indian Act”.[14] As well, People’s Party Leader Maxime Bernier has said he wants to look into ways to bring clean drinking water to remote communities and to give Indigenous people individual property rights.[15]

Like the Conservatives, the Bloc Québécois have spoken little on the topic of Indigenous affairs, but they support the implementation of the UNDRIP and have promised to work toward administrative autonomy for Indigenous communities in the areas of education, justice, and culture.[16]

Voter Information
Please visit Elections Canada online to find your voter information, including who’s running, where to vote, and answers to any other voting questions. The 2019 federal election takes place October 21st, but advance voting happens October 10^th, 11^th, 12^th, and 13^th.[17]

The Canadian Broadcasting Corporation (CBC) has also provided a useful guide to voting in the 2019 federal election.[18] For a quick breakdown on how the parties compare on important key areas, including: Indigenous issues, child care, jobs, education, and healthcare, CBC has provided a useful comparison tool at Canada Votes 2019.[19] To explore how your views align with those of the parties, the 2019 Vote Compass can be found here.[20]

 

Yours Truly,

Team ReconciliAction YEG

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[1] Samantha Wright Allen, “‘We need to be at the table’: nominated Indigenous candidates near 2015’s record high”, The Hill Times (7 August 2019), online:  <www.hilltimes.com/2019/08/07/we-need-to-be-at-the-table-nominated-indigenous-candidates-near-2015s-record-high/210654>.

[2] “An Indigenous guide to the 2019 federal election”, CBC News (last modified 4 October 2019), online: <www.cbc.ca/news/indigenous/2019-federal-election-indigenous-candidates-1.5265989>.

[3] “Desmond Bull – Candidate for Maskwacis-Wetaskiwin (74)”, Green Party of Alberta (last visited 4 October 2019), online:<greenpartyofalberta.ca/cand-detail/?ID=74>.

[4] “Maggie Farrington: Your Liberal Candidate for Fort-McMurry-Cold Lake”, Liberal Party of Canada (last visited 4 October 2019), online: <maggiefarrington.liberal.ca>; Robynne Henry, “Farrington throws her name in for federal election”, Bonnyville Nouvelle (10 September 2019), online: <www.bonnyvillenouvelle.ca/article/farrington-throws-her-name-in-for-federal-election-20190910>.

[5] “Katherine Swampy For Edmonton Centre”, New Democratic Party of Canada (last visited 5 October 2019), online: <katherineswampy.ndp.ca>; “Katherine Swampy”, About.me (last visited 5 October 2019), online: <about.me/katherineswampy>.

[6] Olivia Stefanovich & Jorge Barrera, “Scheer’s relationship with Indigenous people is being tested in this election”, CBC News (4 October 2019), online: <www.cbc.ca/news/politics/scheer-conservative-indigenous-approach-2019-election-1.5130380>;

[7] National Post Staff, “Election 2019 platforms: Here’s what the Liberals, Conservatives, NDP and Greens are promising”, National Post (last modified 4 October 2019), online <nationalpost.com/news/politics/election-2019/federal-election-2019-platforms-guide-liberals-conservatives-ndp-green-platform-promises#indigenousAffairs>.

[8] Ibid.

[9] Jorge Barrera, “How do the main parties compare on these issues”, CBC News(last visited 5 October 2019), online: <newsinteractives.cbc.ca/elections/federal/2019/party-platforms/>; “Building A Better Future With Indigenous Peoples”, Liberal Party of Canada (last visited 5 October 2019), online: <2019.liberal.ca/our-platform/>.

[10] “Reconciliation”, New Democratic Party of Canada (last visited 5 October 2019), online: <www.ndp.ca/reconciliation>; “Reconciliation with Indigenous Peoples”, Green Party of Canada (last visited 5 October 2019), online: <www.greenparty.ca/en/platform/reconciliation-with-indigenous-peoples>.

[11] Stefanovich, supra note 6.

[12] Olivia Stefanovich, “Scheer says he’d seek ‘judicial review’ of First Nation child welfare compensation”, CBC News (3 October 2019), online: <www.cbc.ca/news/politics/scheer-trudeau-human-rights-first-nation-child-welfare-1.5307498>.

[13] Barrera, supra note 9.

[14] “Aboriginal Issues: A New Relationship Based on Mutual Respect”, People’s Party of Canada(last visited 5 October 2019), online: <www.peoplespartyofcanada.ca/aboriginal_issues_a_new_relationship_based_on_mutual_respect>.

[15] Ibid.

[16] “An Indigenous Guide”, supra note 2.

[17] “Voting (Home)”, Elections Canada (last visited 5 October 2019), online: <www.elections.ca/home.aspx>.

[18] Haydn Watters, “What you need to know to vote in Canada’s federal election”, CBC News(last modified 4 October 2019), online: <www.cbc.ca/news/politics/canada-voter-guide-2019-federal-election-1.5260336>.

[19] Barrera, supra note 9.

[20] CBC News, “Vote Compass”, CBC News (last visited 5 October 2019), online: <votecompass.cbc.ca/canada/>.

Reflection Post: The KAIROS Blanket Exercise, View from a Facilitator

Tansi Nîtôtemtik,

On Monday, September 9, 2019, the class of 2022 participated in the KAIROS Blanket Exercise. The class of 2022 is the fourth Faculty of Law class to complete the exercise. The Blanket Exercise is a 90-minute experiential workshop that aims to foster understanding about the shared history of Indigenous and non-Indigenous peoples.[1] Throughout the exercise participants get to “walk” through 500 years of the Indigenous Canadian experience, from pre-contact to present.

During a facilitated talking circle following the exercise students were asked to reflect upon two questions:

1. What is one thing you learned? and
2. What is one thing you want to know more about as a result of the exercise?

In one group a number of participants reflected upon the fact that they were unaware that the last Residential School closed in 1996 – the year they were born. Others shared they were unaware of the current devastating social, political and financial disparities between Indigenous and non-Indigenous Canadians. For example, the fact that the rates of suicide among First Nations communities is twice the national average, with Inuit rates being 6 to 11 times higher. When asked about what they wanted to learn, the students collectively expressed a desire to learn more, more about our past and present. Students expressed wanting to know more about reconciliation and the progress being made by Indigenous and non-Indigenous Canadians. They expressed interest in learning more about these issues by taking some of the many Indigenous Law courses offered by the Faculty of Law during the next three years.

The morning concluded with a closing smudge led by the Faculty of Law Elder in Residence Mr. Gilman Cardinal. Elder Cardinal reflected that he had never participated in such a smudge with so many participants. Elder Cardinal shared his hope for the future and that the Seven Generations teachings teach us that we are currently in the fourth generation of healing and have three generations ahead of us.

The Class of 2022 participating in the KAIROS Blanket Exercise is an example of healing. They have the opportunity to be a part of the next generation of lawyers graduating from the Faculty of Law with an awareness of the shared history between Indigenous and non-Indigenous Canadians. And perhaps even more importantly, a desire to ensure our past and present do not become our future.

To learn more about the KAIROS Blanket Exercise visit https://www.kairosblanketexercise.org/.

 

Until Next Time,

 

Team ReconciliAction YEG

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[1] Kairos Blanket Exercise, “The Blanket Exercise” (14 September 2019), online: < https://www.kairosblanketexercise.org/>.

Intro to Indigenous Law and Governance: Why Does This Topic Matter Now?

Tansi Nîtôtemtik,

Indigenous Governance has always, and should always, matter. However, Canadian society has historically viewed Indigenous Peoples as having no national identities, which has translated into a lack of knowledge on the part of the lay person.[1] This lack of knowledge is not where Canada, as a nation, should be.

Although Indigenous Governance should always be discussed, the timing of this topic for our blog is particularly current. There have been numerous media developments in recent years and as recently as the last few months. For example, the two volume Missing and Murdered Indigenous Women and Girls Final Reportwas released on June 3, 2019.[2] Furthermore, at the beginning of August 2019, it was announced that the Indigenous Law and Governance Centre at the University of Alberta would receive federal funding.[3] These two developments are a few of the many current issues and topics surrounding Indigenous Governance that we will be discussing in depth throughout this year. It is evident that the topic of Indigenous Governance is developing rapidly, and being aware of these advancements is essential. Through this blog, we hope to be able to effectively take on the role of conveying this information to you, our reader.

The ultimate goal for Canadian society is to be informed, to live harmoniously amongst one another, and work towards reconciliation. Given the historic societal view of Indigenous Peoples, the average non-Indigenous Canadian has a lot of work to do, and discussions on Indigenous Governance can begin to bridge this gap. There is a large amount of information that needs to be discussed to educate and bring Indigenous culture and Indigenous Governance to the forefront of our social consciousness. As a team this year, we hope to be able to inform our readers and help Canadians develop a better understanding and respect for Indigenous Peoples and their Governance. We are excited to embark on this learning journey with you.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Gregory Younging, Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples, (Edmonton, Alberta: Brush Education, 2018) at 77-78.

[2]“National Inquiry into Missing and Murdered Indigenous Women and Girls”, online: MMIWG <www.mmiwg-ffada.ca>.

[3]Folio, “Indigenous Law and Governance Centre at U of A Receives Federal Funding (14 August, 2019), online Folio <www.folio.ca>.

Intro to Indigenous Law and Governance: What is Indigenous Governance?

Tansi Nîtôtemtik,

Having established in our introductions last week that our theme this year is Indigenous Governance, you may now be wondering what exactly is “Indigenous Governance”.

The term “Indigenous Governance” is a term that, on its face, seems rather self-explanatory. To put it very, very simply, “governance” is a term that describes “how society[,] or groups within it, organize to make decisions.”[1]  When you pair this cursory definition of “governance” with the “Indigenous” descriptor, you are left with a phrase that concerns itself with how Indigenous Peoples and their communities organize themselves and make decisions. That is, Indigenous Governance is governance from the Indigenous perspective. It must be emphasized, however, that “governance” is not the same as “government.” Rather, “governance” is a broader concept that is “highly relevant to people and organizations whatever their involvement with government.”[2] As such, “Indigenous Governance” goes beyond the political, extending into and shaping other facets of Indigenous social life, including the private sector and civil society.[3]

And yet, Indigenous Governance is more than simply how Indigenous Peoples make and act on decisions. “Indigenous Governance” is, in fact, a principle that has greater depth, and one which comes with its own complexities and implications.

At its foundation, “Indigenous Governance” involves the recognition that Indigenous Peoples have historically had – and still continue to exercise – their own systems and powers of governance, beyond that of the Canadian State. The fact remains that neither Canada, its government, nor its governance began at the date of Confederation in 1867. Centuries of history occurred on this land long before the white, European colonists arrived. Before European contact, Indigenous Nations were self-sustaining and self-governing, their societies founded on – and governed by – their respective laws, values, traditions, stories, and oral histories.[4] After contact, and through generations of European imperialism, paternalism, and assimilation, these Indigenous systems of self-governance were displaced and eroded by the Canadian State’s own powers of governance.

That is not to say that when we speak of Indigenous Governance, we speak only in the past tense. Today, Indigenous systems and methods of governance are being revived and reignited. Indigenous Governance continues to survive, emerging as an alternative system of governance within Canada, one that is employed by Indigenous Nations and their people, for their communities. Now, in this post-colonial era, “Indigenous Governance” is inherently tied to ideas of Indigenous sovereignty and self-determination, recognizing that Indigenous Peoples are, in fact, their own people, with their own communities, who should have the ability to decide and dictate what is best for them, and how to conduct and organize themselves. Of course, given the diversity of Indigenous Peoples across Canada, what governance looks like and how it is applied varies across each community, and the manner in which it is delivered is dependent on a Nation’s language, history, culture, and legal frameworks. This is the leading reason why it is so difficult to definitively explain what “Indigenous Governance” is, and what it looks like.[5]

That being said, Indigenous Governance does not merely work to organize individual Indigenous communities; such governance also affects Nation-to-Nation relationships, be it between Indigenous Nations themselves, or between Indigenous Nations and the Canadian State. Following this, the study of Indigenous Governance acts as a key piece of the Reconciliation puzzle, as our exploration of the topic will ask us to look back on our histories, encourage us to question how we govern ourselves, and offer us new tools with which to govern, lead, and structure our communities and relationships as we move forward.

 

Until next time,

 

Team ReconciliAction YEG

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[1]Institute on Governance, “What is Governance?”, online: <https://iog.ca/what-is-governance/>.

[2]First Nations Governance Project, “Phase I Governance Report” (August 2018) at 10, online: <https://fnfmb.com/sites/default/files/2018-09/2018_FN-Governance_Project_phase1-low-res_update.pdf>.

[3]Ibid at 10.

[4]There is a story shared by the Chiefs of the Shuswap, Okanagan and Couteau Tribes of BC that explains how the Creator, following the suggestion of the Mole, placed the gift of knowledge of Truth and Justice within Man himself, thereby placing within human beings the power, and freedom, to discover who and what we are, and therefore, how to govern theselves. This story is reproduced in the “Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, Vol. 2” (Ottawa: Ministry of Supply and Services, 1996) at 102-103, online: <http://data2.archives.ca/e/e448/e011188230-02.pdf>.

[5]“Phase I Governance Report”, supra note 2 at 12.

 

Where Do We Go From Here?

Image retrieved from http://artprofsamerica.com/tag/activism/

Tansi Nîtôtemtik,

        Our last week of posts provided an institutional critique of the university as a site where a specific form of colonial knowledge is shaped and sustained. Course content and curricula still prioritize Eurocentric knowledge,[1] and like racialized students, racialized faculty members still face “being marginalized, ghettoized, and tokenized”[2] on a regular basis. Relatively low proportions of non-white faculty means fewer students are “exposed to the particular knowledge that racialized and Indigenous faculty can potentially bring to their teaching,”[3] and even when Indigenous faculty members are hired, they often face higher teaching loads and “a double burden, with expectations to mentor more students and [...] frequent requests to sit on a large number of committees to represent symbolic representation.”[4] Together, these factors combine to make academia extraordinarily arduous for Indigenous scholars.

        The deeper you dig, the clearer it becomes that current “policies and practices to address racism are limited or ineffective.”[5] So what do we do about it?! In The Equity Myth, Malinda S. Smith and her colleagues propose specific solutions to address the challenges described above. To begin with, universities must develop “support mechanisms for racialized and Indigenous faculty that recognize their experiences and the unique demands resulting from cultural taxation which have an effect on their career trajectories.”[6] There needs to be more “policies, data, modes of monitoring and evaluating equity, and practices [created] from a multidimensional rather than a unidimensional perspective.”[7] Even individual faculties have work to do - they must commit to “disrupting established ways of doing things and challenging normative notions of selection, appointment, and promotion.”[8] With a lot of time and even more effort, reforms such as these have the potential to undo the substantive and procedural inequities that exist within Canadian universities.

        But institutional change is slow and hard to come by, and in the meantime, students also a have a role to play in transforming the university classroom from an oppressive space to one of liberation and resistance. Students take what they learn in the classroom and apply it in their communities. Both within the classroom and beyond it, students must be encouraged to take an active role in theorizing new perspectives and making space for change. In law school especially, where students graduate and go on to make, interpret, and apply the law as legislators, lawyers, and judges, we must be empowered to think and act in anti-racist and decolonizing ways.

        Settler and Indigenous students alike can intervene when we witness or experience racism on a personal or structural scale. We can show up for walks to protest violence against Indigenous women. We can stand in at “round dances, flash mobs, and teach-ins,”[9] and add our voices to movements like Occupy Ottawa or Justice for Colten. We can join community groups and participate in discussion series. We can collaborate together on decolonizing projects and use social media to build new relationships and support systems. In taking on the responsibility to genuinely connect our academic work to political purpose and action, we can contribute to shaping a world we actually want to live in.

        I would like to end my time as team lead of ReconciliAction YEG by encouraging all of our readers to go forth and be activists. Create. Resist. Be brave. Speak out when you see injustice. Never stop learning and unlearning. Thank you for an amazing eight months!

Until next time,

Grace Cleveland

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[1] See Frances Henry and Audrey Kobayashi, “The Everyday World of Racialized and Indigenous Faculty Members in Canadian Universities” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 131.

[2] Carl E. James and Selon Chapman-Nyaho, “‘Would never be hired these days’: The Precarious Work Situation of Racialized and Indigenous Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 91.

[3] Frances Henry, Audrey Kobayashi, and Andrea Choi, “Representational Analysis: Comparing Canada, the United States, the United Kingdom, and Australia” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 29.

[4] Howard Ramos and Rochelle Wijesingyha, “Academic Production, Reward, and Perceptions of Racialized Faculty Members” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 68-69.

[5] “Conclusion” in Frances Henry, Enakshi Dua, Carl E. James, Audrey Kobayashi, Peter Li, Howard Ramos, and Malinda S. Smith, The Equity Myth: Racialization & Indigeneity at Canadian Universities (UBC Press: Vancouver, 2017) at 298.

[6] Ibid, at 315.

[7] Ibid, at 316.

[8] Ibid.

[9] Margaret Kovach, “Treaties, Truths and Transgressive Pedagogies: Re-Imagining Indigenous Presence in the Classroom” (2013) Socialist Studies 9:1:109-27 at 122.

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Are We Really All Treaty People?

This image depicts the treaties in place prior to 1975. Image retrieved from https://www.aadnc-aandc.gc.ca/eng/1380223988016/1380224163492.

Tansi Nîtôtemtik,

        Treaties are “constitutionally protected, government-to-government agreements that identify, define and implement a range of rights and obligations, creating long-term, mutually binding commitments.”[1] In Canada, treaties between Indigenous and non-Indigenous peoples have generally involved Indigenous groups surrendering vast areas of land and interests in them to the federal Crown in exchange for varying benefits such as hunting and fishing rights, farming equipment and livestock, education, reserve lands, and annual payments.

        Treaty-making in Canada goes back hundreds of years. Usually, when people think of treaties, it is the pre-1975 treaties that come to mind. Included in this group are the Treaties of Peace and Neutrality of 1701-1760, the Peace and Friendship Treaties of 1725-1779, the Upper Canada Land Surrenders of 1781-1862, the Williams Treaties of 1923, the Robinson Treaties and Douglas Treaties of 1850-1854, and the Numbered Treaties of 1871-1921.[2] Importantly, though, treaty-making did not end in 1975. There is also a modern treaty process in use today (which Friday’s post will explore in more detail). It is also crucial to note that much of the land in Canada remains unceded to this day. Together, modern and historical treaties combine to create a broad area of ceded land, but no one treaty is exactly the same.

        One element that does remain constant across treaties is the question of fairness. As Wednesday’s post will examine, a common criticism of historic treaties is in regard to the language barriers between signing parties – were Indigenous signatories fully cognizant of what they were surrendering? While many would not answer this question in the affirmative, others argue that those signing fully understood the legal ramifications of the treaties and intended for them to become law. Accordingly, they argue that these treaties created a relationship between Indigenous and non-Indigenous signees and bound future generations to the promises made. The conceptualization of “treaty as relationship”[3] can thus offer a way for the contemporary presence of settlers to be legitimized within Indigenous systems of law.[4]

        Whether or not you agree with the idea that ‘we are all treaty people,’ (where does this leave those living in unceded territory?), a relational understanding of treaties leads to another criticism; that is, the fact that the Crown has simply not lived up to its promises. Is a contract legally enforceable when one side fails to perform? Maybe “we are not all Treaty peoples”[5] after all. Further, while the value of land has risen exponentially, inflation rates have yet to be factored in to the other side of the deal. In Alberta, annual ‘treaty payments’ are still the same five dollars they were in 1876 when Treaty 6 was signed! It is difficult to defend these agreements when one side continually benefits from the deal, and the other is perpetually oppressed by it.

        Stay tuned as we talk treaty for the rest of the week – tomorrow we consider the perspectives of certain Elders on the meaning and intent of Treaty 6; Wednesday we analyze the signatures on Treaty 6, 7, and 8; Thursday we narrow our scope and provide a close reading of Treaty 6; and Friday we take a look at the modern treaty process in BC.

Until next time,

Team ReconciliAction YEG

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[1] BC Treaty Commission, “Treaties and Negotiations” online, http://www.bctreaty.ca/faq.

[2] Indigenous and Northern Affairs Canada, “Summaries of Pre-1975 Treaties” online, https://www.aadnc-aandc.gc.ca/eng/1370362690208/1370362747827.

[3] Aaron Mills, “Nokomis and the Law in the Gift: Living Treaty Each Day” in Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at 22.

[4] Ibid, at 21.

[5] Kiera L. Ladner, “150 Years and Waiting: Will Canada Become an Honourable Nation?” in Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at 400.

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Say Their Names

Abigail Andrews

Ada Brown

Adele Rose Mary Matinet

Adrienne Amikons

Aielah Saric-Auger

Alannah Cardinal

Alberta Williams

Alice Netemegesic

Alisha Germaine

Alissa Martin-Travers

Amanda Bartlett

Amanda Cook

Amanda Simpson

Amber Guiboche

Amber Tuccaro

Andria Meise

Angel Carlick

Angela Meyer

Angela Poorman

Angela Williams

Angeline Pete

Anne Maria Lucas

Anne Peters

Annette Holywhiteman

Annie Pootoogook

Annie Yassie

Ashley Machiskinic

Ashley Smith

Audrey Desjarlais

Azraya Ackabee-Kokopenace

Azraya Kokopence

Barbara Keam

Barbara Kentner

Barbara Loon

Barbara Shapwaykeesic

Beatrice Adam

Belinda Cameron

Belinda Williams

Bella Laboucan-McLean

Bernadette Ahenakew

Bernadette Leclair

Bernadine Quewezance

Bernice Bottle

Bernice Joan Rich

Betsy Owens

Bonnie Jack

Bonnie Joseph

Brandy Vittrekwa

Brandy Wesaquate

Brenda Campbell

Brittany Bearspaw

Brooklyn Moose

Caitlin Potts

Caralyn King

Carol Davis

Carol Prudhomme

Caroline Burns

Carolyn Connolly

Cassandra Antone

Cecilia Nikal

Cecilia Payash

Chantelle Bushie

Charity Keesic

Charlene Catholique

Charnelle Masakeyash

Cherisse Houle

Cheryl Black

Cheryl Duck

Cheryl Johnson

Cheyenne Fox

Chloe Matthews

Christina Littlejohn

Christine Cardinal

Cindy Gladue

Clarene Rose Panamick

Claudette Osborne

Constance Cameron

Corrine Moosomin

Crystal Saunders

Cynthia Audy

Cynthia Lynette Jamieson

Danielle LaRue

Danita Bigeagle

Daphne Mesher Brown

Darlinda Ritchey

Dawn Crey

Dawn Keewatin

Deanna Bellerose

Debbie Pelletier

Debbie Sloss-Clarke

Deborah Toulouse

Deidre Michelin

Delaine Copenace

Delena Lefthand Dixon

Della Ootoova

Delores Brower

Delores Brown

Delores Whiteman

Delphine Nikal

Denise Katherine Bourdeau

Desiree Oldwoman

Destiny Tom

Diana Rattlesnake

Diane Dobson

Diane Marshall

Diane Stewart

Donna Kabatay

Donna Kasyon

Donna Taylor

Donna Tebbenham

Doreen Hardy

Doreen Jack

Dorothy Spence

Edith McGinnis Quagon

Edna Bernard

Edna Smith

Elaine Alook

Elaine Flowers

Elaine Vawn LaForme

Elena Assam-Thunderbird

Elizabeth Dorion

Elsie Sebastian

Emily Ballantyne

Emily Osmond

Emma Dixon

Ernestine Kasyon

Eva Mitchell

Evaline Cameron

Evelyn Kebalo

Felicia Solomon

Flora Muskego

Fonassa Bruyere

Frances Ellah

Freda Goodrunning

Geraldine Beardy

Geraldine Settee

Gladys Simon

Gladys Tolley

Glenda Morriseau

Glennis Edwards

Gloria Black Plume

Gloria Gladue

Gloria Jean Martha Abotossaway

Gloria Moody

Heather Ballantyne

Heather Pelletier

Heaven Traverse

Helen Gillings

Helen Louise Jacobs

Helene Ratfat

Helyna Rivera

Henrietta Millek

Hilda Agawa

Hillary Wilson

Ila Oman

Immaculate Basil

Irma Murdock

Jacqueline Crazybull

Jamie McGuire

Jane Bernard

Jane Jack

Jane Louise Sutherland

Janet Henry

Janet Sylvestre

Janice Desjarlais

Janine Wesaquate

Jarita Naistus

Jean Moccasin

Jean Sampare

Jeanenne Fontaine

Jeanette Basil

Jeanette Cardinal

Jeanine St Jean

Jeannette Chief

Jennifer Catcheway

Jennifer Stewart

Jessica Cardinal

Joanna Andersen

Joanne Ghostkeeper

Jocelyn McDonald

Joey English

Jordina Skunk

Josephine Chakasim

Josephine Thompson

Joyce Hewitt

Joyce Tillotson

Juanita Cardinal

Judie Thibault

Judy Ann Benoit Ogden

Judy Ann Quill

Judy Chescue

Judy Quill

Justine Cochrane

Kari Gordon

Karina Wolfe

Karla Desrosiers

Katelynne Sampson

Kathleen Leary

Katie Ballantyne

Kellie Little

Kelly Goforth

Kelly Morrisseau

Kimberly Jararuse

Krystal Andrews

Krystle Knott

Lana Derrick

Laura Pilon

Lavina Tocher

Leah Anderson

Leanne Benwell

Leanne Lawson

Leona Brule

Leslie Talley

Liana Mathewson

Linda Condo

Linda Guimond

Linda Scott

Lisa Lynn Anstey

Lisa Young

Liz Bonnie Sakakeesic

Lora Banman

Lora Frank

Loretta Capot-Blanc

Loretta Lavalley

Loretta Saunders

Lori Berens

Lori Kasprick

Lorilee Francis

Lorraine Rivers

Louise Lorraine Laderoute

Lynn Childforever

Mabel Leo

Mae Morton

Maggie Burke

Maggie Mink

Maggie Natomagan

Maisy Odjick

Marcia Koostachin

Margaret Blackbird

Margaret Guylee

Margaret Perrault (Bluebird)

Margaret Vedan

Marguerite Dyson

Mariah Wesley

Marie Banks

Marie Desjarlais

Marie Laliberte

Marie Lasas

Marie Mike

Mariella Lennie

Marilyn Daniels

Marilyn Munroe

Marjorie Henderson

Marlene Abigosis

Martha Boyce

Mary Ann Birmingham

Mary Ann Davis

Mary Goodfellow

Mary Hill

Mary Keadjuk

Mary Kreiser

Mary Lidguerre

Mary Mark

Mary Peters King

Mary Smith

Mary Susan Evans-Harlick

Mavis Mason

Maxine Susanne Peters

Maxine Wapass

Melanie Geddes

Melissa Chaboyer

Mercedes Stevens

Michelle Gurney

Michelle Hadwen

Mildred Flett

Minnie Sutherland

Misty Potts

Mitzi MacDougall

Moira Erb

Monica Cardinal

Monica Jack

Myrna Montgrand

Nadine Machiskinic

Nancy Dumas

Naomi Desjarlais

Nellie Angutiguluk

Nicole Daniels

Nicolle Hands

Olivia Williams

Pamela Holopainen

Pamela Napoleon

Patricia Carpenter

Patricia Favel

Patricia Quinn

Patricia Wadhams

Paula Joy Martin

Pauline Brazeau

Petrina Lynn Whitecrow

Philomene Lemay

Rachel Quinney

Ramona Shular

Ramona Wilson

Rebecca Guno

Rebecca Jean King

Rena Fox

Rene Gunning

Renee Neganiwina

Rhonda Gardiner

Rhonda Running Bird

Richele Bear

Roberta Elders

Roberta Ferguson

Roberta Lincoln

Rocelyn Gabriel

Rose Decoteau

Rose-Ann Blackned

Rowena Sharpe

Roxanne Charlie

Roxanne Fleming

Roxanne Isadore

Roxanne Thiara

Ruby Hardy

Ruth Cocks

Sabrina Polchies

Samantha Johnings

Samantha Paul

Sandra Kaye Johnson

Sarah Jane Wawia Bernard

Sarah Mason

Sarah Obed

Sarah Skunk

Savannah Hall

Selina Wallace

Serena Colson

Serenity

Shannon Alexander

Sharon Abraham

Sharon Merasty

Sharon Murphy

Shelley Anderson

Shelley Lynne Joseph

Shelley May Anderson

Shelly Dene

Shirley Beardy

Shirley Cletheroe

Shirley Lonethunder

Shirley Waquan

Simone Sanderson

Sindy Ruperthouse

Sonya Nadine Mae Cywink

Spring Phillips

Stella St. Arnault

Stephanie Cormier Chaisson

Sunshine Wood

Susan Assin

Sylvia Guiboche

Tabitha Kalluk

Tamara Chipman

Tamra Keepness

Tania Marsden

Tanya Brooks

Tanya Hill

Tanya Nepinak

Tashina Cheyenne Vaughn General

Teresa Robinson

Terra Gardener

Terrie Dauphinais

Thelma Pete

Therena Silva

Theresa Anne Yakimchuck

Therese Labbe

Theressa Wilson (Jamieson)

Tiffany Morrison

Tiffany Skye

Tina Fontaine

Tricia Paquette

Trudy Gopher

Vanessa Tagoona

Velma Duncan

Verna May Simard-Shabaquay

Verna Patricia Sturgeon

Verna Simard

Victoria Crow Shoe

Victoria Hornbrook

Viola Isabella Panacheese

Viola Melvin

Viola Panacheese

Violet Heathen

Vivian Cada

Wendy Poole

Yvonne Elizabeth King [1]

 

Tansi Nîtôtemtik,

        These names belong to Indigenous women who have been murdered or are missing from communities across the country. Too often they are reduced to numbers on a page or lines on a graph.

        They were grandmothers, mothers, daughters, sisters, aunties, cousins, and friends. They were humans. And they deserved better. Say their names.

#SayHerName [2]

Until next time,

Team ReconciliAction YEG

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[1] This list is not complete; hundreds more have lost their lives to gendered and racialized violence. Our list is a compilation of work done by Maryanne Pearce (https://docs.google.com/a/ualberta.ca/spreadsheets/d/1pvMIkZ2JmoXCUEnUWmYbcFWxfz5xcD7ljz_a8UIVOH0/pub?output=html), No More Silence (http://itstartswithus-mmiw.com/community-lists/#1485456540464-287e628c-dde8), and the CBC (http://www.cbc.ca/missingandmurdered/).

[2] Kimberle Crenshaw and the African American Policy Forum launched the #SayHerName campaign in 2015 in an effort to call attention to violence against Black women in the United States. Say Her Name documents stories of Black women who have been killed by police and shines a spotlight on forms of police brutality experienced disproportionately by women of colour.  The initiative focuses on the intersections of race and gender, and the violence that exists there. These and other intersections must also be considered in the context of violence done to Indigenous women in Canada.

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What is IFLT?

Tansi Nîtôtemtik,

        Indigenous Feminist Legal Theory (IFLT) is “an intersectional, anti-essentialist, multi-juridical tool that is attentive to questions about power, gender, sexuality, colonialism, and law.”[1] Research and writing that fail to utilize IFLT are likely to, at best, omit crucial factors from their analyses and findings, and at worst, simultaneously reify and conceal oppressive ways of thinking and doing.

        IFLT is of particular significance in conversations surrounding violence against Indigenous women, and in addressing the underrepresentation of Indigenous women in the political sphere.

        In the former, it is common to encounter the sentiment that patriarchy was only introduced to Indigenous communities through European contact. However, Indigenous women have faced gendered violence for thousands of years.[2] There is no doubt that colonization heightened this violence through a renewed commitment to gender injustice and the addition of race as a new link on the chain of oppression, but denying the existence of pre-contact gendered violence in turn denies that Indigenous laws contain viable options for addressing it. Further, calls for a return to pre-colonial or “traditional gender roles” limit Indigenous women’s agency and “are used to deny sexism in indigenous communities today.”[3] Without IFLT, it is easy to miss these imperative nuances.

        In the latter, it is clear that Indigenous women are “frequently excluded from formal self-governance and self-determination practices.”[4] Less clear are the reasons for this. It is useful to consider the ways in which Indigenous women have historically been forced to choose between women’s rights and Indigenous rights – the two are often seen as mutually exclusive and inherently antagonist. Because of the small wins enjoyed as a result of the Indian Act, some Indigenous men are reluctant to risk losing the gains they have made, despite their artificiality. Here, IFLT can aid in advocating for a new system of governance altogether – one that no longer comes at the expense of Indigenous women.

        Both examples demonstrate the centrality of power and oppression when it comes to conceptualizing solutions to issues involving Indigenous women. Other theoretical approaches fail to “draw out gendered power dynamics as they occur in legal processes, reasoning, and the interpretation of principles” and to engage meaningfully “with claims about gender, tradition, culture, and legal agency.”[5] For all of these reasons, IFLT is best poised to succeed where other theories have fallen short.

Join us as we explore the contemporary and historical realities related to Indigenous women for the next two weeks.

Until next time,

Team ReconciliAction YEG

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[1] Emily Snyder, “Indigenous Feminist Legal Theory” (2014) CJWL 26:2 at 367.

[2] Emily Snyder, Val Napoleon and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2015) 48:2 UBC L Rev 593 at 628.

[3] Ibid, at 611.

[4] Snyder, supra note 1 at 366.

[5] Ibid, at 367.

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In the Media: Last Week in Edmonton

Tansi Nîtôtemtik,

        On October 4, the University of Alberta’s Faculty of Arts hosted What Comes Next: Political Afterlives of the Truth and Reconciliation Commission. The roundtable discussion featured big names (Glen Coulthard, Audra Simpson, and Robert Nichols), and even bigger ideas. Of particular note was the panel’s focus on the dark side of reconciliation – a dark side that, like last week’s terrorist attack, is generally not an issue most Canadians expect.

        Nichols drew a parallel between the ‘Jewish Question,’ and the Holocaust it enabled, to the ways in which Canada has been working to solve its ‘Indian Problem.’ He encouraged attendees to consider that what we are really dealing with in this country is a white supremacy problem. He also discussed the inherent contradictions in Canada’s political and juridical systems that make the framework of reconciliation at best, weak, and at worst, useless. After all, how can a country, whose capitalistic economy is based on continuous acquisition and growth, honestly accommodate Aboriginal title? As Nichols suggested, “it might not be possible.”[1]

        “Reconciliation,” Simpson explained, “is simultaneously impossible and irresistible.”[2] She noted that rather than being a meaningful tool for moving forward, Canada’s reconciliation project is instead a strategic and re-subjectifying political tool being wielded against Indigenous peoples and keeping them “in their place, as wounded.”[3] It is cunningly constructed to ensure that anyone who speaks out against reconciliation is placed in an antagonistic position to former students of residential schools and accordingly critics become the villains in a twisted trick of fate. Simpson’s conclusion was that reconciliation is simply the government’s latest attempt to make Indigenous peoples disappear.

        Like Simpson, Coulthard focused on alternative ways of looking at reconciliation. In his opinion, however, the apparatus of reconciliation was crafted to pacify Indigenous peoples following the Oka Crisis and the Red Power movements that gained international attention in the 70s, 80s, and 90s. Institutional reconciliation was “deployed”[4] as a means of subduing Indigenous militancy and calming the economic uncertainty that accompanied it. The language of reconciliation, Coulthard further argued, pathologizes Indigenous peoples and replaces the need for political reorganization with a need for healing. He advocated the development of a “combative consciousness”[5] as opposed to giving in to patriarchal, capitalist, state control. Ultimately, Coulthard admitted, he is more interested in the “political pre-lives of reconciliation”[6] than he is with the afterlife.

        The panelists were, in plainest terms, bad-ass. Their observations served as an important wake-up call for those of us who work within the context of the TRC, reminding attendees that in some ways, reconciliation can itself be a “mechanism of violence.”[7] Many thanks to the inspiring speakers and to the political science students and faculty members that made it happen.

Until next time,

Team ReconciliAction YEG

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[1] Robert Nichols, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[2] Audra Simpson, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[3] Ibid.

[4] Glen Coulthard, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[5] Ibid.

[6] Ibid.

[7] Ibid.

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Canada's Residential School System: A Primer

Image retrieved from http://www.thecanadianencyclopedia.ca/en/article/aboriginal-people-education

Tansi Nîtôtemtik,

        Jo-Ann Episkenew argues that “of all the policies that the colonial regime initiated, the policy that established and regulated the residential school system had, and continues to have, the most far-reaching destructive effects”[1] on Indigenous peoples in this country. Considering that even conservative estimates of attendance indicate more than 150,000[2] First Nation, Métis, and Inuit students passed through the system, this argument is well-founded.

        In the earlier days of the policy, attendance was not mandatory. However, with an amendment to the Indian Act in 1920, “every Indian child between the ages of seven and fifteen”[3] was forced to attend. Parents who resisted faced fines, jail time, and violence from the Indian Agents and other government officials tasked with enforcing the policy. This added to the reasonable distrust held by many Indigenous communities towards government officials to this day.

        The point of these schools was neither to provide Indigenous children with a formal education, nor to ensure a healthy and happy childhood. The point was to ‘break’ them from their cultures, their families, and their identities.[4] Sir John A. Macdonald, Canada’s first prime minister, felt that this break was necessary as an Indigenous child who remained with their parents would simply be “a savage who can read and write.”[5] Allowing children to remain with their parents was accordingly in direct conflict with the state’s aim to “kill the Indian in the child.”[6] Episkenew notes that:

Understanding culture as the complete way of life of a people, the regime mandated school officials to change every aspect of the children’s culture: their dress, food, language, religion, manner of working, and interpersonal relations. Understanding that language is a critical vehicle of cultural transmission, colonial officials identified eradication of the student’s Native languages, followed by their acquisition of English, as paramount to their resocialization efforts. […] School officials punished students who they caught speaking in their Native languages. Often that punishment was swift and severe.[7]

        The schools also maintained less than adequate conditions and failed to provide enough or nutritious food, clean or warm clothing, and meagre healthcare. This was in addition to the lax hiring standards for positions that, “because they afforded staff unlimited access to children, absolute power over those children, and little scrutiny […], attracted disproportionate numbers of pedophiles.”[8] Sexual, physical, emotional, and mental abuse was rampant. Many children left for residential school and never returned to their families. The records for missing and deceased students are largely incomplete and we will never know the full loss of life that the schools facilitated.

        The TRC findings evidence what survivors and their communities have long known; the residential school system was a sordid, centuries-long violation of human rights. Operated through the coordinated efforts of the federal and provincial governments, and Roman Catholic, Anglican, United, Methodist, and Presbyterian churches, these schools changed the lives of students and their families forever. For the rest of this week, our blog posts will be dedicated to exploring Alberta’s particular history, the concept of intergenerational trauma, and the legacy that residential schools have left behind.

Until next time,

Team ReconciliAction YEG

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[1] Jo-Ann Episkenew, Taking Back our Spirits: Indigenous Literature, Public Policy, and Healing (Winnipeg: University of Manitoba Press, 2009) at 44.

[2] Truth and Reconciliation Commission of Canada, “The Survivors Speak” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at vi.

[3] Episkenew, supra note 1 at 46.

[4] Truth and Reconciliation Canada, Honouring the Truth, Reconciling for the Future: The Executive Summary (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 2.

[5] Ibid.

[6] Truth and Reconciliation Commission, official website: http://www.trc.ca/websites/trcinstitution/index.php?p=39.

[7] Episkenew, supra note 1 at 47-48.

[8] Ibid, at 50.

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What is the Biggest Problem with Reconciliation?

Tansi Nîtôtemtik,

        A colonizer must jump two hurdles in order to succeed in a nation-building project: Indigenous societies must be dissolved, and a new, colonial society must be erected on the expropriated land of the original inhabitants.[1]

        The TRC’s Executive Summary exposes a plethora of the social, legal, and political processes mobilized by Project Canada to ensure these hurdles were jumped. However, from its first sentence, the summary frames ‘Canada’s Aboriginal policy’ as a thing of the past. Gone are the days where “the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.”[2] Or are they?

        One of the biggest problems with truth and reconciliation initiatives is the propensity of these paradigms to relegate colonial violence to an event from the past. When this happens, reconciliation can look more like a forced acceptance of that status quo, as opposed to an actual means of creating new relationships and realities. An alternative approach is to consider “settler colonization [as] a structure rather than an event,”[3] a structure that, in Canada, is still very much in place to this day.

        This truth is one that Canadian government and other institutions are invested in shrouding or denying. As our blog post on Wednesday will discuss further, settler Canadians rely on myths of themselves as benevolent peacemakers and on myths of Indigenous peoples as vanishing, or vanished, in order to justify the ongoing occupation of Indigenous lands. A historical nation-building narrative based on progress, prosperity, and peace means that nothing has to change.

        Other problems with the politics of remembrance, or “distraction,”[4] include the tendency of reconciliatory discourse to cast indigenous people as victims who experiences are strictly held in relation to colonialism, and for this victimization to become a spectacle for settler consumption.[5] This will be a theme we revisit in a blog post later in the year. As numerous scholars have pointed out, attempts to reconcile are painfully ironic when harm is still ongoing: it's "a little like accepting being bandaged by your armed assailant while he is still ransacking your house."[6]

        Further, truth and reconciliation commissions can work to “erase the resiliency and resurgence of indigenous communities.”[7] Of course, colonization has been devastating for indigenous communities – but as Friday’s blog post will demonstrate, Canada’s objectives of elimination and erasure remain unrealized.

        Despite these risks, truth and reconciliation initiatives like the TRC create opportunities for critique and engagement. We hope to provide you with just that over the rest of this week.

Until next time,

Team ReconciliAction YEG

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[1] Patrick Wolfe “Settler Colonialism and the Elimination of the Native” (2006) Journal of Genocide Research 8:4 at 388.

[2] Ibid, at 390.

[3] Truth and Reconciliation Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada), 2017, at page 1

[4] Jeff Corntassel and Christine Bird, “Canada: Portrait of a Serial Killer” in Kiera L. Ladner & Myra J. Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at page 197.

[5] Rachael Yacaa?at George, “Inclusion is just the Canadian Word for Assimilation” in Kiera L. Ladner & Myra J. Tait, eds., Surviving Canada: Indigenous Peoples Celebrate 150 Years of Betrayal (Winnipeg: ARP Books (Arbeiter Ring Publishing), 2017, at page 54.

[6] Dian Million, Therapeutic Nations (Tucson: U of Arizona P) 2013, at page 106

[7] George, supra note 5, at 54.

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Will We All Be Alive for #Canada300?

Where do I see Canada in the next 150 years? To be honest, I have absolutely no idea. However, with the technological and scientific advances occurring in today’s world, we may all be alive to witness Canada in the year 2167!

At Cambridge University, a researcher named Aubrey de Grey believes he has identified all of the causes of aging, and can overcome them all. By doing so, de Grey claims that humans are capable of living up to 1,000 years old.¹ He is convinced that he understands the theoretical underpinnings of human illness and death and has indicated that 25 years is all the world will need to make his theory a reality.

However, he recognizes that he is a computer scientist, not a human biologist.² S. Jay Olshansky, one of De Grey’s contemporaries, has the human sciences background that de Grey lacks. Olshansky is a professor of Public Health and research associate at the Center on Aging at the University of Chicago.³ His work pursues means to slow down human aging and discovering the “upper limits to human longevity.”⁴

If researchers are successful in extending the human lifespan, what kinds of political obstacles would they face?

Most people are skeptical that humans have the ability to extend their own lives.⁵ People firmly believe in the inevitability of aging and death and the science world is having a hard time changing that perspective.

But how then are pharmaceutical companies who sell “anti-aging products” so successful if the world refuses to buy into the idea of longevity?

These companies are excellent marketing specialists but they do not truly market “living longer.” Rather, they convince people that their products will allow them to remain young while they are alive. They encourage consumers to buy products that they claim will make them look and feel more youthful.

In the United States, pharmaceutical companies can legally sell anti-aging products that are merely placebo.⁶ The FDA allows “cosmeceuticals” to be sold without approval, so long as the product does not contain drugs.⁷

 

There is the additional problem that even if pharmaceutical companies attempted to conduct research on life extension, it would take a lot of money and a lot of time. These companies want to make money and it is not in their interest to invest all that time and money on an unsure bet.

However, if these money powerhouses teamed up with brilliant science minds, it’s impossible to say what they could accomplish.

There are also organizations popping up that provide cryonic freezing: a low temperature method of preserving human bodies in the hope that they can be revived by future medicine.⁸ Currently, this method of preservation is only available after death; you cannot be frozen while alive.

Whether or not you believe in life extension, there are many people working towards that ultimate goal.

So I may be long gone by the time #Canada300 rolls around, but who knows: maybe I won’t be.

¹Caspar Llewellyn Smith, “Aubrey de Grey: We don’t have to get sick as we get older”, The Guardian (1 August 2010), online: <https://www.theguardian.com/technology/2010/aug/01/aubrey-de-grey-ageing-research>.

²Sherwin Nuland, “Do You Want to Live Forever?”, MIT Technology Review (1 February 2005), online: <https://www.technologyreview.com/s/403654/do-you-want-to-live-forever/>.

^3See: https://www.lapetussolutions.com/team.

⁴See Olshansky’s professional website, <www.sjayolshansky.com/sjo/Background.html>.

⁵Richard A Miller, “Extending Life: Scientific Prospects and Political Obstacles” (2002) 80:1 Milbank Q 155 at 155, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690099/>.

⁶Ibid.

⁷US, US Food and Drug Administration, Cosmeceutical (Silver Spring: MD, US Food and Drug Administration, 2014), online: <https://www.fda.gov/Cosmetics/Labeling/Claims/ucm127064.htm>.

⁸See Alcor, a life extension foundation: <www.alcor.org/FAQs/faq01.html#cryonics>.

We Will Wait Our Turn, Just Not For Too Long

Where do I see Canada in the next 150 years? What an interesting question. I highly doubt I will be alive to witness it, but I have a few minor wishes for my own life time. Rather than focussing on where I think the country will be in 150 years, I am going to explain where I want it to be in ten.

Last year’s presidential election was contentious, controversial, and fascinating all at the same time. An election filled with name-calling, bigotry, media rants, and outright craziness led to one of the most shocking results ever. The world watched as Donald Trump became the 45th President of the United States over Hillary Clinton. A businessman commonly recognized from his appearances on The Apprentice beat out a career politician. Many people thought this was insanity; others prepared for what seems like the start of an apocalyptic movie.

Hillary Clinton’s loss left many women wondering when it will be their turn to hold the highest office in the United States. Will women ever get that chance? How many more years would we wait to shatter the most resilient glass ceiling in the world?

Thankfully, Marie Henein, a named partner at Henein Hutchison reminds us that Canadians should not be patting ourselves on the back yet. We have also never formally elected a female prime minister. The only woman to ever hold the highest seat in our country was the Right Honourable Kim Campbell 24 years ago when Brian Mulroney stepped down from office.¹

When we look at our current political climate it is hard to pinpoint when a woman will even have a chance to be Canada’s Prime Minister. Depending on the outcome of the current Conservative leadership race (click here for our post from last week covering this ), all three major Canadian parties will be led by men, assuming O’Leary wins. Since I have been eligible to vote no serious female contender has been available. So my question moving forward is: when?

While it is easy to point a finger at our neighbours south of the border for their lack of female leadership, we tend to overlook our own.  In fact, out of the 13 Canadian provincial premiers only three are women. Marie Henein was right when she stated that for women in North America the message is clear, “You can hold office, just not the highest one. You can succeed, just not too much.”² My hope is that by the time Canada is celebrating its 200th birthday this message has changed.

When we focus on the political climate elsewhere, women in other countries have fared far better than us. Sri Lanka set the stage for the rest of the world by electing its first female Prime Minister in 1960.³ Fifty-seven years ago a woman was leading a country. To many hopeful women, it would seem that we were making progress. As groundbreaking as Sirimavo Bandaranaike’s election was, another woman would not follow suit in 1979 when Margaret Thatcher became the Prime Minister of the United Kingdom. It took 19 years for another country to catch on, so while women were making progress, it was slow.

Currently only 33 women have been elected to represent their country in the highest office. Notably missing from the list is any North American country. The question remaining is why? What are we teaching young educated women? We are likely teaching women exactly what Marie Henein suggests, set big goals, become educated, and become successful. Just do not become too successful though because that is not what women do.

I truly hope that within the next 10 years this message has changed. It is time we change our attitudes about women in leadership. Instead of criticizing a woman’s “nasty” demeanour, it is time we celebrate her worth, ethic, and drive. Women are brilliant, capable, and deserving of the same successes as men. So by 2027 hopefully we will have one running our country as a result of her election, not as a result of merely filling in temporarily. Until then we will wait, not too patiently, for our turn.

 

 

¹ Marie Henein, “Thank you, Hillary. Now women know retreat is not an option,” The Globe and Mail (10 November 2016), online: <www.theglobeandmail.com/opinion/thank-you-hillary-women-now-know-retreat-is-not-an-option/article32803341/>.

² Ibid.

³ Christine Zhang & Andrea Roberson, “When the rest of the world elected women leaders,” The LA Times (14 November 2016), online: <www.latimes.com/projects/la-fg-women-world-leaders/#decade60>.

Zombie Law Apocalypse

Studying the British North America Act involves research into history: the foundations of the Dominion of Canada, the social and political factors that drove or opposed Confederation, and the laws that shaped our current jurisprudence and legislation. For this final week blogging as the Dominion 2017, each writer takes a turn looking to the future.

Pop culture has a mild obsession with fantastical zombie apocalypse theories like in the film World War Z and the television series The Walking Dead. Today we exploit this wordplay to write about Canada’s zombie laws.

Today’s post doesn’t predict a zombie apocalypse. Instead, it celebrates the impending doom of so-called zombie laws in the Criminal Code.[1]

Several “undead” laws remain “on the books”—in the Criminal Code—until Parliament amends or repeals them. Zombie laws are effectively null. If a court imposes a conviction under such laws, the defendant will likely succeed on appealing that conviction. Most zombie laws have been struck down by the courts for failing to comply with the Constitution.[2] Others are simply out of date with contemporary customs.[3]

Zombie laws usually don't do anything but sit on the books and make law students chuckle. So, what’s the harm of leaving them written in the code? It’s simply misleading; it can confuse the justice process. The government should clearly express what is an is not a law so that individuals are aware. Without the benefit of a legal education to sort through case law, many people may be unaware of laws that have been struck down.

Legal scholars across Canada renewed their demands on parliament to repeal zombie laws after the apocalyptic fallout when a judge used such a law. As we wrote in September, Court of Queen’s Bench Justice Denny Thomas convicted Travis Vader using a charge that has been struck down by the Supreme Court of Canada (SCC). Justice Thomas subsequently corrected that error and convicted Vader with manslaughter. This correction precluded Vader’s lawyers from appealing the conviction on the grounds that it fell under an unconstitutional provision.

A parliamentary democracy gives lawmakers parliamentary supremacy. Parliament can enact or repeal any law it wishes by passing a bill through the House of Commons. However, the Constitution supersedes all other legislation. In 1982 the constitutional supremacy clause was introduced.[4] It assures that all Canadian legislation is consistent with the constitutional provisions. When courts interpret legislation, they have the power to strike down a law and render it “of no force or effect” to the extent that it is inconsistent with the Constitution; including the Charter of Rights and Freedoms.[5]

The Charter also took effect in 1982 and, being part of the Constitution, holds the same status as supreme law. Several laws—among those listed below—that were enacted before 1982 have subsequently been rendered unconstitutional.

To bring the Criminal Code text in line with jurisprudence and contemporary social values, Parliament has announced that it will repeal (hopefully all) the zombie laws.[6] Eliminating uncertainty and vagueness in the Criminal Code will prevent potential future apocalyptic zombie justice system.

List of Undead Offenders:

• s. 71: Challenging someone or accepting a challenge to fight in a duel.[7]
• s. 159: Anal intercourse for people under 18 years; anal intercourse in groups.[8]
• s. 163(1, 7): Publishing crime comics.[9]
• s. 163(2)(d): Advertising drugs that “are a method for restoring sexual virility or curing venereal diseases.”[10]
• s. 179: Vagrancy.[11]
• s. 181: Spreading false news.[12]
• s. 230: Murder in commission of offences.[13]
• s. 250(1, 2): Water-skiing at night; water skiing without a spotter.[14]
• s. 287: Abortion.[15]
• s. 296: Publishing blasphemous libel.
• s. 365: Fraudulently pretending to practice witchcraft, sorcery, enchantment, or conjuration; or tell fortunes.[16]
• s. 427(1): Issuing trading stamps.[17]

 

[1] RSC 1985, c-46.

[2] Constitution Act, 1982, s 52, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].

[3] Tu Thanh Ha, “These Seven Archaic ‘Zombie Laws’ still Exist in the Criminal Code,” The Globe and Mail (8 March 2017), online: <www.theglobeandmail.com/news/national/these-zombie-laws-in-the-criminal-code-could-still-have-you-arrested/article34246168/>.

[4] Constitution, supra note 2, s 52.

[5] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[5] Kathleen Harris, “Federal Government to Axe 'Zombie Laws' from Canada's Criminal Code,” CBC News (7 March 2017), online: <www.cbc.ca/news/politics/criminal-code-reform-zombie-laws-1.4013869>; Brent Rathgeber, “The Criminal Code is in Dire Need of Housecleaning: Trudeau Needs to Pick Up where Harper Failed to Act,” iPolitics (22 September 2016), online: iPolitics.com <www.ipolitics.ca/2016/09/22/the-criminal-code-is-in-dire-need-of-housecleaning/>.

[6] Harris, ibid.

[3] Ha, supra note 2.

[8] R v M(C), 23 OR (3d) 629, 82 OAC 68; R v Roth, 2002 ABQB 145, 306 AR 387.

[9] R v Butler, [1992] 1 SCR 452, 89 DLR (4th) 449.

[10] Ha, supra note 3.

[11] R v Heywood, [1994] 3 SCR 761, 120 DLR (4th) 348.

[12] R v Zundel, [1992] 2 SCR 731, 56 OAC 161.

[13] R v Vaillancourt, [1987] 2 SCR 636, 68 Nfld & PEIR 281; R v Martineau, [1990] 2 S.C.R. 633, 76 Alta LR (2d) 1.

[14] R v Gatt, 1992 CanLII 1105 (BC SC).

[15] R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.

[16] Ha, supra note 3.

[17] Ibid.