Trust. Integrity. Reputation.
Trust. Integrity. Reputation.
Top News - July - 2001
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Photo Credit: Brad Crowfoot |
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Chief optimistic about new office
High court puts Native rights in doubt
Senate committee to study urban Native problemsAn open letter to the national sheaf - Jeff Bear
Aboriginal rights are meaningless - Guest Column
Where are you chief?- Editorial
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Chief optimistic about new office
By Cheryl Petten
Windspeaker Staff Writer
OttawaA new federal body is being created to help speed up resolution of residential school claims.
The creation of the new Office of Indian Residential Schools Resolution of Canada was announced by Prime Minister Jean Chrétien on June 7. The office will report to Deputy Prime Minister Herb Gray. Jack Stagg will be deputy head, as well as chief federal negotiator, working with church leaders to reach an agreement on shared responsibility for abuses that occurred within the residential schools, and compensation for those abuses.
Stagg, who was appointed special advisor to the deputy Prime Minister in May, worked at Indian and Northern Affairs Canada (INAC) for more than 20 years. Prior to his latest appointment, he was associate deputy minister of Fisheries and Oceans.
According to Allison MacNeil in the deputy prime minister's office, the new office will consolidate existing resources dedicated to the residential school claims within the departments of Indian Affairs and Justice.
"The idea is to centralize and focus federal efforts and co-ordinate negotiations between the government and the major church organizations regarding their shared responsibility for the claims that are arising out of residential schools issues," MacNeil said.
"The office will examine how to resolve claims in and outside of the courts, and will assist in implementing the government's wider objectives of facilitating healing and reconciliation for residential school survivors and their communities."
Chief Robert Joseph is executive director of the Provincial Residential School Project, a sub-committee of the First Nations Summit in British Columbia that works to help residential school survivors. Although details about how the new office will function haven't been made available, Chief Joseph has a wish list of what he'd like to see happen.
"I just think immediately that it will be important for the new office to act independently and autonomously from Indian and Northern Affairs Canada. And if it can do that- if it has the mandate and the authority to operate autonomously from Indian Affairs, and the federal government in general, so to speak-it can be focused in seeking resolution to the residential school issue," Chief Joseph said.
"For the most part, they've had a section within Indian Affairs that has primarily responded to the litigation side of things, and its primary workload has been to provide a defence for the federal government against the lawsuits. And hopefully, this new office will create a broader vision around healing and reconciliation and advancing other solutions beyond existing ones, which are primarily legal. So in that respect, I think it's an important development."
Chief Joseph hopes that by expanding the focus beyond litigation, the office will go beyond dealing with sexual and physical abuse, and also look at other losses caused by residential schools, such as loss of language and loss of culture.Chief Joseph expects to learn more about the new office later this month, when he meets with the Privy Council and with Jack Stagg in Ottawa. Until then, he remains optimistic.
High court puts Native rights in doubt
By Paul Barnsley
Windspeaker Staff Writer
OttawaNative observers are saying the Supreme Court of Canada's ruling in the Mitchell case is a sign Canada has no intention of honoring its Section 35 recognition of Aboriginal rights.
Grand Chief Mike Mitchell of Akwesasne (a First Nation community that straddles the U.S./Canada border near Cornwall, Ont.) had won victories in both the Federal Court of Canada and the Federal Court of Appeals before being forced into the Supreme Court of Canada when the federal government appealed. Mitchell claimed he had the right to cross the border without paying Customs duties because the border was imposed on his people in 1783 without their consent. He argued that Section 35 of Canada's Constitution, which recognizes and affirms existing Aboriginal rights, protected the long-standing right of his people to travel within their traditional territory.
Chief Justice Beverly McLachlin, writing the unanimous decision for the court, ruled Mitchell had not demonstrated an Aboriginal right was there to assert. She criticized the lower court rulings in Mitchell's favor, saying, "While appellate courts grant considerable deference to findings of fact made by trial judges, the finding of a cross-border trading right in this case represents, in view of the paucity of the evidence, a 'clear and palpable error.'"
The court stated decisively it has no use whatsoever for Indigenous claims of sovereignty.
"Under English colonial law, the pre-existing laws and interests of Aboriginal societies were absorbed into the common law as rights upon the Crown's assertion of sovereignty unless these rights were surrendered, extinguished or inconsistent with Crown sovereignty," the chief justice wrote. "The enactment of s. 35(1) of the Constitution Act, 1982 accorded constitutional status to existing Aboriginal and treaty rights, including the Aboriginal rights recognized at common law. However, the government retained the jurisdiction to limit Aboriginal rights for justifiable reasons in the pursuit of substantial and compelling public objectives identity."
Mitchell is now expected to pay the Department of National Revenue's outstanding $361.64 bill for unpaid duty, taxes and penalties. The federal government paid his legal bills for this appeal because the government wanted to take the case forward to its final conclusion so it could be clear what the law was.
But Mitchell lost much more than $361.64. His reliance on the spirit of the government's words about respect for the First Nations' inherent right of self government caused him to expose his peoples' rights to the authority of a Canadian court, said Mohawk academic Taiaiake Alfred.
Dr. Alfred, director of the University of Victoria's Indigenous governance program, is from Kahnawake, about an hour's drive east of Akwesasne. He sees the court decision as the end of one road and the beginning of another for Native people in Canada.
"I don't know how anyone, at this point on, who still believes Aboriginal rights are a good thing. Who can put faith in Aboriginal rights after Mitchell?" he asked. "From Van der Peet (a previous Supreme Court decision) on , people were reading it in optimistic terms and saying, in spite of what it says about infringement, we've still got this. No! It's been closing. Look at it from Mitchell now backwards and look what it tells you. It tells you the Canadian government can gut Section 35 (1) and can override any presumed right that we may have on the basis of its determination of what the economic and political interest of Canada is. She's come clearly out and said that. Now, once people digest this, I don't know how anyone could still want to operate within Canadian law. It's time to completely disregard Canadian law as having any hope or any promise for the protection of our rights as peoples."
Alfred said Native people have played the game by Canada's rules and the Mitchell decision and the (Atlantic fishing rights) Marshall II decision should be enough to convince anyone that politics has infiltrated the highest court when it comes to disputes involving First Nations and Canadian authorities.
"It was taking a chance and being as accommodating as we can be and still getting completely shut down and completely denied. The implication of that is that the relationship between Natives and the state in Canada is going to be exclusively within the realm of politics and economics. And anybody who puts any further stake in Aboriginal rights is deluded or an assimilator himself. We're not the ones who have brought the situation to this point. We have played by the rules. Mike Mitchell has taken a lot of flack and is taking a lot of flack right now in our communities for putting our rights in jeopardy," he said. "He looks bad. If he'd won people would have said something different, but the fact is you have a person who was committed to the belief, number 1, that he was right, and number 2, that Canada was capable of recognizing historical fact and justice. But justice gets put aside in the interests of power."
The decision underlines that band councils can't represent Indigenous nations effectively, Alfred said.
"Within the context of Canadian law, he brought it forward as the chief of a band council. That doesn't impact on, nor does it affect at all, our position on our rights as a nation," he said.
Alfred believes the court decision, reached after considering arguments by federal lawyers, makes claims by Indian Affairs Minister Robert Nault that the government respects First Nations inherent right to self government ring hollow.
"It says that the Liberals are correct, right? In terms of their understanding of their legal ground. They say that our authority is only administrative. They say our authority is derived from whatever legislation the government passes. According to their Supreme Court surprise, surprise-they're right," he said.
Justice Ian Binnie wrote a section of the decision that Alfred finds even more troubling. Although the main decision was authored by the chief justice and dealt only with issues the court was asked to address, Binnie felt the need to go beyond that.
McLachlin noted Crown lawyers had argued that "sovereign incompatibility"-the concept that only Canada can hold ultimate sovereignty over lands included in Canada, including the traditional lands of Indigenous peoples-was a compelling reason why the court should not recognize Mitchell's right to cross the border without paying duty. Since she had concluded that Mitchell hadn't proved that right existed, she felt no need to deal with sovereign incompatibility.
Justice Binnie felt the need to deal directly with the sovereignty issue.
"Counsel for [Mitchell] does not challenge the reality of Canadian sovereignty, but he seeks for the Mohawk people of the Iroquois Confederacy the maximum degree of legal autonomy to which he believes they are entitled because of their long history at Akwesasne and elsewhere in eastern North America," he wrote. And added something Alfred and others see as a chilling warning about future cases. "This asserted autonomy, to be sure, does not presently flow from the ancient Iroquois legal order that is said to have created it, but from the Constitution Act, 1982. Section 35(1), adopted by the elected representatives of Canadians, recognizes and affirms existing Aboriginal and treaty rights. If [Mitchell's] claimed Aboriginal right is to prevail, it does so not because of its own inherent strength, but because the Constitution Act, 1982 brings about that result."
Alfred sees that as an outright rejection of the concept of the inherent right to self government.
"Inherent right is just double-speak," he said. "Co-opting terminology. It's almost stupid to say it's a conspiracy . . . of course it is. The Supreme Court, the Cabinet, the federal departments, as if they don't collaborate and talk about coordinating their approach to these problems. Our people have become so deluded by colonialism. It's stupid now to talk about Aboriginal rights. Let's talk about organizing. What about confrontation of all of these ideas. Look at what's happening all over the Americas. Native people are standing up and challenging. It's the same thing in these other countries. Do we think we're special?"
Assembly of First Nations Grand Chief Matthew Coon Come also had harsh words for the ruling.
"The Supreme Court has issued a very harsh ruling, one that is grounded in colonial thinking," he said. "It seems that the court is willing to overrule or erase over 2,000 years of Indigenous Iroquois Confederacy constitutional history, culture and trading practices on the basis of a few hundred years of recent political events."
He argued that Canada is ignoring the real history of its interaction with Indigenous peoples.
"It is supremely ironic that the Mohawk Nation, which fought successfully in 1812 to repel the American invasion of British North America-thus securing Canada's independence to this day-should now have the national status under which it fought against the American invaders so harshly denied," Coon Come said.
Coon Come echoed a conclusion already reached by many who watch the evolution of Native law in Canada -the court has turned conservative and even anti-Indian.
"The Supreme Court seems to be moving in a further direction, recalling its judgment in Marshall II, of narrowing the trade and commercial rights of Indigenous peoples in Canada. Our socio-economic conditions are terrible; as observed by the Royal Commission, First Nations Peoples have been economically marginalized and locked out. This Supreme Court ruling perpetuates this disturbing trend."An open letter to the national sheaf
By Jeff Bear
Meganumbe
Dear Matt (if I may):
After much deliberation and soul searching, the management team of "Me, Myself and I" has reached a consensus about your performance in year one as the national chief, la grande fromage, of the AFN, the Assembly of Indians.
Our performance evaluation technique is culled from the infamous School of Hard Knocks. Like youse guys at the AFN, we wanted to have OUR OWN consultation process. My colleagues at the school have insisted that we release the results of our extensive consultation process-forthwith.
Recommendation 1
Hire me to muzzle me.
About that urban vote you want to start up? Who do you think you're fooling? You would like to represent urban Indians? Yet, you reject all requests to be accountable to us. Tsk. Tsk. If you want our vote, then you better invite us to your meetings. Heck, you could even hire a few of us. Certainly your staff seems to think that I am looking for a job. Your staff also believes that I should be praising you, to focus on the positive and not the negative. I am being accused of being like all the so-called "white journalists." Didn't anyone tell you that the media is not here to wave your flag?
Recommendation 2
Chase old ghosts out of your closet.
Now on to some unsolicited, probably unwanted, advice: Stop hiring horses that can't run anymore. Obidey, a former national, is nobody's friend and everybody's favorite philosopher's empty cup. You are taking the advice of a man whose confrontational approach to mediation has never and will never work. Everybody in Jean Crouton's government still remembers when Obidey scored a touchdown with the Charlottetown Accord 10 years ago. We could have been the third order of government with Obidey running around wearing the crown of eleventh premier. Fortunately, the third order was not allowed, due in large part to Obidey's neglect of his own constituents. Canada said No! Indians said No! You should learn how to say the same word. The word on the street is he is still campaigning for the top job-just ask Georges, or Philip.
Recommendation 3
Indians will drink until the cows come home. Kill the cow, and keep your religion out of politics.
Now I want to deal with your problems with alcohol. I mean really, Matt. You should know better than to wag your finger. Indians like to drink. Almost everyone I know who works for you drinks. One of your consultants and I have passed many long nights competing to describe the long legs of Australian Shiraz, the lingering aftertaste of a Napa Cab, and the subtle aroma of an oak-aged Chardonnay from southern Ontario. We smoke cigars and sing to the music of Redbone cranked so high that most of British Columbia must've heard us singing the "Witch Queen of New Orleans." On one occasion we sang so loud and drank so hard that Mount Baker spewed some dust all over us. But you know something? Neither of us wanted to be the national sheaf. Nor did we want to be sheaf of an Indian band.
I was not surprised to hear and read about so many people agreeing with you on your drinking and dancing comments. The fact is that alcohol has been used as a tool by the colonizers. Alcohol was the killer of the souls of many of our ancestors and the drink is responsible for many social ills that exist today. Alcohol is a killer. But you are using the grog brought to us by settler nations as the war club of choice. You hold it over the reformed alcoholics' heads, playing on their feelings of guilt. You hold the club over the insecure social drinkers in your Ottawa office who shall never dance without a rearview mirror. Your comments were riddled with religious zeal and sanctimony.
Recommendation 4
Keep your distance from Stockwell Day.
Duh!
Recommendation 5
Banish the Indian agent!
Your buddy, Bob Nault, is getting away with highway robbery. He seems to be dancing circles around you and the rest of the AFN. Your vice squad is doing a hundred times better than you and your political staff and advisors. Take some of their advice instead of listening to the jealous and jilted lawyers and consultants that hang on your coattails. Go after Bob "I'm a cowboy and I'm gonna get the Indians" Nault. INAC's minister is a bully and you are the scrawny little bushman in a political battlefield built by Mickey Mouse. Eat some spinach. Grab some kryptonite and fight like a man! Banish the patriarchal chains we keep dragging around.
Recommendation 6
Talk to your own people and stick with those who care.
Yesterday I saw you on the APTN news. I know your people don't think much of Native media, placing their hopes instead on a cold and right wing mainstream media. But you looked good (cut your sideburns though) on the InVision report. During a week when all of Canada's daily editorials are taking sides with Cowboy Bob, you should be sliding up to APTN's capable host, Carol Adams at InVision. Bob Nault's office is apparently on her speed-dial. Are you? The mainstream press has an agenda and it's not to make you look good. The days of wine and roses with the Canadian press and its broadcast underbelly are over. On the left coast of British Columbia they have eliminated their Aboriginal department and replaced it with a Bureau of White Men's Rights. The television, radio and print press is standing silently on the sidelines applauding the shift to the far right. Soon they want all the white people here to vote on our rights.
Where will you be when this happens? Having coffee with the parliamentary press bureau?
Conclusion
Get with the program.
To "get with the program" you must go to the watering holes of "hot summer Indians" that can be found near most main streets of Kanada. In Vancouver, the registration office is at the Balmoral Hotel. When you check in ask for the "Ira Hayes" suite. The room has the bare essentials-a bed, a poster of Iwo Jima and a copy of the New Testament. This should get you ready for Halifax where your rooms will cost the equivalent of a new teen centre in Thunder Bay. Oh yes, and if you want to talk to me about how the program works, I'm the guy in the corner of the bar at most hotels, swirling Cabernet and Chardonnay fronted by a sign that says: Dances with national sheafs.
Cheers.
Jeff Bear is a member of the Maliseet Nation of Tobique, N.B., living in Vancouver. Meganumbe was one of the first treaty negotiators, a Maliseet, who helped negotiate the provisions of the 1725 treaty which stands as the template for the 1760 treaty referenced in the Marshall court case.
