Trust. Integrity. Reputation.
1999 Windspeaker June Headlines
Members of the Galwin'ku Ratpja Dancers performed at the traditional awareness gathering presented by the Native Canadian Centre of Toronto in late April.
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Photo Credit:
Kenneth Williams
Off-reserve voting rights decided
Indian Act section contrary to Charter
Native women pan Bill C-31
New gender initiative seeks to rectify past harm
Gathering quenches thirst of parched Native community
A brand new ball game - Editorial
Government Secrets - A threat to democracy - Guest Column
Guide to Ian Country - Windspeaker's Aboriginal Tourism Supplement
The above is only a partial list of all the stories featured in the June, 1999 issue of Windspeaker.
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Off-reserve voting rights decided
By Paul Barnsley
Windspeaker Staff Writer
OTTAWAThe Supreme Court of Canada has ruled that a part of Section 77 of the Indian Act violates the equality provision contained in Section 15 of the Canadian Charter of Rights and Freedoms.
Two questions were put to the Canada's top court when it was asked to decide the Corbiere case, in which the former chief of Ontario's Batchewana Indian Band, John Corbiere, claimed he, as a member of the band who resided off-reserve, should be allowed to vote in band elections.
To the first question - Do the words "and is ordinarily resident on reserve" contained in Section 77 (1) of the Indian Act contravene Section 15 (1) of the Charter, either generally or with respect only to members of the Batchewana band? - the court answered, "Yes, in their general application."
An even more direct and concise answer was given by the court to the second question - If the answer to question one is affirmative, is Section 77 (1) of the Indian Act demonstrably justified as a reasonable limit pursuant to Section 1 of the Charter?
The court's answer was one word - No.
Decoded into layman's terms, Native people who don't reside on reserve have the same right to vote in band elections as those band members who do reside on the reserve. Section 1 of the Charter guarantees basic rights and freedoms for all Canadians. One of those basic rights is the right to equal treatment and equal opportunity under the law. The court ruled that bands that refused to allow off-reserve members to vote were treating those members unequally and that Section 77 (1) of the Indian Act, which allowed bands to do this, placed an unreasonable limit on a basic right.
The court ruled the offending words in the act will be struck out and ruled invalid. But the court has suspended that ruling for 18 months to give the government and the First Nations time to come up with legislation that doesn't violate the Constitution.
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Indian Act section contrary to CharterBy Paul Barnsley
Windspeaker Staff Writer
OTTAWAThe law of the land has caught up with the Department of Indian Affairs. The long-awaited decision in the Corbiere case was handed down by the Supreme Court of Canada on May 20. The court ruled that Section 77 (1) of the Indian Act, which allowed bands to prohibit off-reserve residents from voting in band council elections, was contrary to the equality provisions of the Canadian Charter of Rights and Freedoms.
John Corbiere, the 64-year-old Batchewana Indian Band member who served as chief from 1966 to 1980 and again for one year in 1994 (he was ousted part way through that term for missing three meetings in a row, violating a rarely enforced attendance rule), first won a decision on the equality voting rights issue in the Federal Court of Canada in 1993. The band and the federal government took the case to the Federal Court of Appeal, lost again and then filed a final appeal with the Supreme Court of Canada. The loss there puts pressure on the federal government to change its policy in dealing with off-reserve people.
Corbiere was happy with the decision. He was able to attend a press conference in Ottawa shortly after the decision was handed down only because the Native Women's Association of Canada, an intervenor in his case, paid his way to the nation's capital. The legal battle has taken a financial toll on the Batchewana member. Wearied by his long legal battle, he didn't sound optimistic about how the government would respond to the decision.
"I have to wonder who's going to enforce it," he told Windspeaker. "They have the money and we're over here with the decision."
He said the Federal Court told Indian Affairs the offending section of the Indian Act was unconstitutional in 1993 and yet the government continued to fight him in court.
Regina lawyer Merv Phillips argued part of the case in the Supreme Court. He also was pleased with the court's decision.
"We led the charge as far as the fiduciary duty argument and the Charter argument at the court, and I understand it was successful. I haven't had a chance to read it, yet," he said. "I was honored to be able to make that argument and it was accepted by the courts. That's very important from the viewpoint of the constitutional negotiations that will now go forward. As you know, the judgment has been suspended for 18 months pending the negotiations."
Many observers interpret the decision to mean the federal government is now expected to look for ways to make the Indian Act conform to the Constitution. But Leona Freed, a member of the First Nations Accountability Coalition of Manitoba, thinks there's a way for bands and the federal government to continue to deny off-reserve members the vote.
"They're not going to like this so they're probably going to try to jump out of the Indian Act and into band custom," she said. "The decision probably will be ineffectual if bands start opting out of Section 74 and into band custom. If the chiefs don't like it, the uncaring or corrupt chiefs, they'll opt for band custom."
Merv Phillips said the decision will make it harder for band councils to use custom election codes to exclude off-reserve members.
"They can attempt that and, of course, I don't think we have to believe that First Nations as sovereign nations are going to be behaving in a democratic way," he said. "What's very important is, in terms of the customs circumstances, the election of those custom procedures have to involve and, again, recognize the fiduciary responsibility. The court has said if [custom codes] are adopted, as I understand it, if those are adopted without the proper participation then those too will be set aside."
Harry Daniels is president of the Congress of Aboriginal Peoples, a group that lobbies for off-reserve rights. He had unkind words for any band that tries to sidestep this decision by adopting custom election codes.
"If they do, then I want to tell you, they're just as racist and . . . what can you do with people like that?" he said. "If Indians pass those kinds of membership codes and restrictive elements then they're no better than the people they're fighting, the federal government - they're in league with them. They're discriminating against their own people."
Daniels said 53 per cent of Native people live off reserve and it's time for the government to pay attention to their needs.
"The court has taken the argument that CAP put forward that the government has a fiduciary responsibility for all Aboriginal people, in this case off-reserve Indians, and that they can't vacate that responsibility," Daniels said. "So, if they're going to strike up a Constitutional negotiation process to discuss this and to change that and to facilitate the rights of the off-reserve Indian people then I think CAP has to be intimately involved in that board and the government has to place enough funding."
The federal government has adopted the policy of only dealing with on-reserve residents, Daniels said.
"Everything that the government does is directed on reserve. They're striking up an apartheid system whereby you're an Indian if you're on reserve and if not, you're not an Indian anymore," he said. "They've abandoned their fiduciary responsibility to those Indians and that's the argument we made in the Batchewana case. I don't think this is going to be the end-all for this kind of a thing. It's been happening over the years. You've got to straighten out band councils, how people are elected and how they respond to the needs of off-reserve people."
Indian Affairs is going to have to make a fundamental change in direction as a result of the decision, Daniels said.
Real democracy and an end to corruption within band council governments are possible if the election process is opened up to all band members, Daniels believes.
"These dynasties have to fall. Democracy must prevail. It has to be one person, one vote. The best person, man or woman, who puts their name forward should win the position and they should establish a more democratic system on-reserve where all Indians are being served and all Indians are treated equally," he said.
The CAP president said the spotlight is now shining brightly on the Indian Affairs department and political agendas designed to limit the government's legal obligation - and its accompanying cost - will no longer be easy to hide.
"They have to act in the best of faith right now. If they don't, we can take them back to court. They don't want to negotiate; they force us into the court system. If they force us into the courts and we win, if their own court system has instructed them to do certain things, what is their recourse? None," he said.
"We didn't invent this. This is their own court system. If they in bad faith deal after this, then it's signalling to me that they don't give one iota of care or have any real compassion or don't really want to do things for Indians, and want to try to absolve themselves of any responsibility for Indians and continue to shrink the definition of who an Indian is."
Jim Sinclair, the former president of Native Council of Canada and now president of the Congress of Aboriginal Peoples in Saskatchewan, was happy with the decision, the result of a process begun when he was CAP president.
"I'm very happy about it. Both government and some of our leadership have been dragging their heels and I think it's time that people moved along and I think this decision will make people realize that they have to do something for themselves. They can't rely on any one person," he said.
But Sinclair has one problem with the way things worked out.
"It's an embarrassment for people like myself who've struggled for so long for basic fundamental rights for our people, where many chiefs and councils over the past number of years have isolated themselves into reserves and forgot about the treaty areas our forefathers signed for and have limited our rights mostly to reservations," he said. "This is a sad state for us when the white man and the white court of Canada has to re-recognize those rights for us and has to re-recognize the treaty areas and put it into perspective that we have the right to vote in those areas and we have the right to full participation regardless of where we live."
Doris Ronnenberg, president of the Native Council of Canada, Alberta said she sees this decision as the beginning of the end of the divide and conquer tactics used by the government against Aboriginal people. She said she wasn't sure how the Indian Affairs minister would react to this decision but added, "I hope she is for the rights of people and the right to vote."
The minister could not be reached for comment. The AFN promised a press release detailing that organization's response to the decision but it did not arrive by press time.
Native women pan Bill C-31By Paul Barnsley
Windspeaker Staff Writer
EDMONTONOttawa missed the boat when it attempted to eliminate discrimination against Aboriginal women with Bill C-31, a 1985 change to the Indian Act. That's the consensus reached during a three-day conference dedicated to examining the legacy of Bill C-31.
As far as the conference's delegates are concerned, the question isn't whether or not gigantic and harmful mistakes were made when Bill C-31 became law, it's whether the federal government intended to make them.
Several hundred people arrived at Edmonton's Ramada Inn for the May 14 to 16 gathering hosted by the Native Women's Association of Canada.
Most speakers left no doubt they believe the government has done its best to limit the number of people who are eligible for Indian status as a way of assimilating and disenfranchising the next generation of Native people. The women also stated in very strong terms that they believe the First Nations leadership has, for its own reasons, been only too anxious to help the government.
Almost every woman who attended the conference had a horror story to tell about her dealings with the Indian registrar and/or her band council. Two pioneers in the women's rights movement told their stories. Lawyers who have represented C-31 women in legal battles with Canada and First Nations offered their own interpretations of what the government agenda looks like. Two national Native leaders and one prominent activist from the past hammered Bill C-31 and the governments who have administered it.
In the same room where, in 1969, a very young Harold Cardinal gained national attention as he took aim at then Indian Affairs Minister Jean Chretien's White Paper, Cardinal was back to speak to the NWAC delegates on the morning of May 14. He recently completed his doctor of laws degree at the University of British Columbia and has returned to his home community in
Alberta.
"When the Mulroney government brought in Bill C-31 in 1985 it looked like it would be a watershed moment in Canadian thinking," Cardinal said. "It held the promise that a new way of dealing with our people would ensue."
But, Cardinal said, the government was not willing to follow through on the promise of C-31 and things started to go wrong. The bill has turned off-reserve residents and on-reserve residents into adversaries; it has failed to protect the rights of Native women and their children, he said.
Cardinal called on all Aboriginal people to put aside their differences and join forces to right the wrongs of the past.
"We must be able to set aside the principles of division, the principles of meanness, the principles of greed," he said. "We must replace them with our traditional values of generosity, inclusion, sharing and love. All of us who are First Nations people must be, should be, ought to be able to work together."
New gender initiative seeks to rectify past harm
By Marie Burke
Windspeaker Staff Writer
EDMONTONWith the acknowledgment that more than 50 per cent of the Aboriginal population are women, the Assembly of First Nations wants to ensure that their unique interests are being served.
That is a statement from AFN National Chief Phil Fontaine, released in a bulletin on May 5. Fontaine refers to the difficulties the AFN struggled with in the past to address women's issues in a constructive way. The establishment of a gender secretariat will change the way policies and programs are developed, states Fontaine.
According to the press release, the gender secretariat is being established at the AFN after Fontaine received direction from the Confederacy of Nations to include a gender equality initiative.
Windspeaker attempted on numerous occasions to get further comment from the AFN on the government-funded secretariat, but the media contact listed on the press release could not speak to the issue and no other knowledgeable representative could be reached.
The goal of achieving equality for Native women is the main thrust of the Native Women's Association of Canada's work, however, and has been for the last 25 years, said Marilyn Buffalo, NWAC president. A national conference on the effects Bill-C31 legislation had on that equality was held in Edmonton on May 14 to 16. Fontaine was invited to the conference, but did not attend. Neither did Indian Affairs Minister Jane Stewart, though she was scheduled to give an address to the group.
"The gender equality secretariat is a way of ghettoizing Aboriginal women's issues, because it would be a token voice, Buffalo said of the AFN initiative. "It would not reflect an independent voice."
The women that the AFN consults on gender equality will be chosen, hand selected, and that is an insult to Native women in Canada, said Buffalo.
Buffalo doesn't wonder what happened to the four proposals NWAC submitted to the Ministry of Indian and Northern Affairs that outlined the very same initiatives the AFN is now working on. The minister stamped AFN on them and then funded the AFN initiative, she said.
The initiative launched by the AFN is an attempt to nullify the voice of NWAC, because it did not accept the Gathering Strength document and what Buffalo calls the non-apology from the federal government last February, she said. The Gathering Strength document is Canada's response to the Royal Commission on Aboriginal Peoples.
"The AFN gender equality initiative is just smoke and mirrors because there is no way that Aboriginal people have accepted Gathering Strength. The AFN and the government of Canada are in partnership to try and take away the voice of Native women," said Buffalo.
Buffalo points to the AFN conference in Ontario last year where discussion revolved around gender equality. The Native women in Ontario rejected what the AFN had to offer because NWAC had not been invited to discuss these issues, said Buffalo.
At the 'Equality for All in the 21st Century' in Edmonton, several workshops focused on the principles of equality in self-government and gender equality in the next decade. Many participants pointed to the Indian Act and Bill C-31 as creating an unfair and unequal situation in Canada for Aboriginal women.
Buffalo believes the AFN has a responsibility to strongly advocate for Aboriginal women, but that was not proven on the issue of Bill C-49, the First Nations Land Management Act, she said.
The act will give First Nation people the means to undertake land projects without prior approval of Indian Affairs. NWAC wanted matrimonial property laws built into the act, but that was not to be.
Buffalo pointed to the amendments NWAC put forward to an independent fact finder set up to examine the property issue and opposed by the AFN and Indian Affairs. NWAC was the first to raise the issue of discrimination against women in the Indian Act on the division of matrimonial property.
For Buffalo, her work at NWAC is about full equality for Aboriginal people everywhere, especially the advancement of women to full equality by the middle of the 21st century.
"We are a group of grandmothers who want to teach our young women to be strong," she said.
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Gathering quenches thirst of parched Native communityBy Kenneth Williams
Windspeaker Contributor
TORONTO
Billed as "A:keknon," a Mohawk term for "The Community - Our Extended Family," the thirteenth annual traditional awareness gathering presented by the Native Canadian Centre of Toronto was held on April 24 and 25.
The two-day event included 23 workshops by 14 Elders and traditional teachers, with a drum social and youth dance following the first day of workshops, that also included an eagle feather presentation and giveaway.
A craft fair ran in conjunction with the traditional gathering. The workshops were filled, sometimes to overflowing.
Probably the highlight of the event was a performance by the Galwin'ku Ratpja Dancers of the Yolnju Aboriginal people of northeast Arnhemland in Australia, who had just managed to get to Toronto after a performance earlier in Chicago. Even though they had to leave many of their props behind in the United States, because of customs problems, they still thrilled the people in attendance with their songs and dances.
Dennis Stark, chair of the Anishnabek Committee that co-ordinated the event, said he was only expecting about 200 delegates but was pleasantly surprised that about 500 registered. He considered it part of a resurgence in Aboriginal culture.
"This is probably the most important event that the Native Canadian Centre of Toronto puts on each year because we bring in teachers and Elders from across North America and it gives the Toronto community a chance to hear them," he said.
He said that many Aboriginal people have been disconnected from their culture for a variety of reasons and this event allows them to gather and reconnect, a process that Stark himself went through.
"Six years ago, I didn't know hardly anything about my Native heritage," he said, adding that past traditional gatherings helped him reconnect with his own people.
"For a lot of the youth, they're seeing their parents come back to the circle, their grandparents back in the circle, and they're happy to fall in line too," he continued. "Among the youth, there's a tremendous resurgence and pride in being Aboriginal."
"This event is like spiritual water, as if we were in a desert and we needed some thirst-quenching spiritual nourishment," he said. "Some of the cultural memory is lost and, in surprising ways, it's being developed more and advanced in the cities. . . . Across North America, Native history, culture, memory and practice has caught on in the last 10 years like a wildfire on the plains."
Like Stark, Adams also came to previous traditional gatherings to remain connected to his Aboriginal roots.
