Home

Government misinformation about Bill S-2, First Nations family homes and matrimonial rights act

August 14, 2013 - 12:38pm | by brianbeaton

From Rabble.ca

First Nations don't want Harper's Family Homes on Reserves Bill

BY PAMELA PALMATER | AUGUST 14, 2013

First Nations don't want Harper's Family Homes on Reserves Bill

This letter is in direct response to the letter submitted by Jason McDonald, Director of Communications for Minister of Indian and Northern Affairs Canada (INAC) Bernard Valcourt to the Montreal Gazette on August 7, 2013. 

INAC has gone to great lengths to spread misinformation about the intentions, interpretations and potential impacts of Bill S-2 Family Homes of Reserve and Matrimonial Interests or Rights Act. It is interesting to note the Minister had his communications person write this letter, rather than a Justice Canada lawyer.

Despite the near unanimous rejection of previous versions of this bill and Harper's infamous promise to First Nations at the Crown First Nations Gathering not to unilaterally amend the Indian Act, the Harper government has spared no expense in its propaganda campaign to gain support for this unconstitutional bill. 

What follows is my response to INAC's misinformation about the bill. I have testified before Senate as a legal expert on a previous version of this bill, but was specifically prevented by Conservative members from testifying on the new version. I have also published other blogs on this bill here, here, here, here and here.

INAC: The bill "extends to people living on reserve the same basic rights and protections that individuals living off reserve enjoy regarding the family home."

This is not true. Indigenous Nations are sovereign nations with their own laws, rules, policies, governments, and justice systems. Their status as sovereign Nations are recognized in the fact of treaty making, as only sovereign Nations can enter into treaties with one another -- citizens of a state do not have that right. Their legal right to govern themselves is also protected in section 35 of the Constitution Act, 1982 as an inherent right (pre-existing to Canada as a state and not granted or given through law). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as other international laws also protect the right of First Nations to be self-determining.

First Nations have exclusive jurisdiction to determine their own laws, rules and procedures in relation to any marital or property issues on their traditional, treaty or reserve lands. When INAC claims they are extending the same basic rights to those living on reserve, what they mean is that they are illegally imposing provincial laws on reserve contrary to section 91(24) of the Constitution Act, 1867, section 35 of the Constitution Act, 1982 and contrary to various treaties and international laws. This legislation will also require the consent of the provinces and companion legislation to bring it into effect.

Even the description of a house on reserve as the family home is misleading. On many reserves, homes are occupied by upwards of 25 people including husband, wife, children, grandparents, aunts, uncles and cousins. Certificates of Possession (like fee simple deeds) can be in the name of hundreds of people. Many First Nation families do not exist as the western notion of nuclear family with mom, dad and 2.5 children. Any disposition of what is deemed a family home could have devastating effects on large extended families and especially elders. 

First Nations have not asked for this bill.

INAC: Bill S-2 does not change the fact that only registered Indians can hold a Certificate of Possession on reserve, but non-First Nations people can possess the home for a temporary period of time.

This statement is misleading about the real implications of the bill. The Indian Act prevents anyone who is not an Indian from even temporarily possessing land on a reserve -- which includes permanent structures on the land, like a house. Section 20(1) of the Indian Act specifies:

20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.

What INAC is trying to do is unilaterally amend the Indian Act in an illegal way -- in violation of domestic and international law. Section 2 of the Indian Act specifies that reserve lands are reserved for the exclusive use and benefit of the band (First Nation) for which they were set aside. These lands are not for anyone else's use.

Further, many treaties set up reserve lands for the exclusive use and benefit of Indians -- not non-Indians. These treaties are now constitutionally and internationally protected and cannot be unilaterally amended. This country would not exist but for the treaties which agreed to share the land -- now they are constitutionally protected and cannot be violated if Canada wishes to remain a democratic country. Harper can't pick and choose which constitutional provisions he likes -- Canada is either democratically governed with a constitution or it is a lawless dictatorship.

INAC does not have the power or authority to enact legislative provisions, such as this, that would be in direct conflict with its own constitution and other laws. INAC is also not being truthful when it claims that the Act only allows temporary possession by non-Indians. In fact, non-Indians can gain up to a life interest in lands and homes on reserve. This is far from temporary and combined with other proposed legislative amendments, this could translate into permanent possession.

INAC: The courts need this legislation to facilitate emergency protection orders to remove a violent partner from the home.

This is not true. INAC has focused on this legislation as being intended to protect First Nations women from violence, which it implies is rampant on every reserve. Government representatives have presented a false choice between First Nations women being tossed from their homes in the middle of the night or protecting self-government for First Nations. Yet, INAC has offered no statistical, research-based or other evidence to prove that women losing their homes on reserve is a rampant or common occurrence.

In direct contrast to their testimony, INAC has confirmed that the majority of CPs are held by women, not men. Additionally, when First Nations women living in shelters were interviewed about this legislation, the women emphasized the fact that their interests are not separate from their First Nation community -- and that none of them wanted their community's Aboriginal or treaty rights violated such as this legislation does.

This line of reasoning being promoted by INAC amounts to spreading racist, hateful stereotypes about First Nations for political purposes. INAC wants support to do indirectly, what Canada is not legally permitted to do directly -- take the remaining amount of lands held by First Nations and transfer them to Canadians, corporations and governments.

If this legislation was about protecting First Nation women, they would have built more homes on reserve, funded new shelters, increased funding for preventative services and increased funding for access to legal services for these women. Instead they have created  a new legal regime that the majority of First Nation women will never be able to access.

What is also extremely concerning about this provision is that it purports to empower courts to issue protection orders (possession of home to spouse) as against the alleged abuser in the absence of a charge or conviction. It also empowers the court to make possession orders for homes and lands on reserve -- which are communal First Nation property -- without any notice to the First Nation or any of the family members impacted by the order, like elders. This provision violates the basic human rights and freedoms of First Nations and further denies individuals any administrative fairness and justice.

INAC: The ratification process outlined in the bill is done according to First Nation practices and is to ensure the collective interests are protected.

Again, this is not true. The ratification process as outlined in the bill is a paternalistic control mechanism to ensure First Nations comply with INAC objectives -- it is not consistent with First Nation customs, traditions, practices or laws. Some First Nations already have their own laws in this regard, but INAC refuses to recognize these laws, and instead demands that First Nations engage in an Indian Affairs-designed and controlled process. If the concern was truly that laws are needed in this area, then INAC would recognize those First Nation laws.

Similarly, this legislation is not designed to respect collective interests to homes and lands on reserve, but is intended to further carve out individual interests and create new legal ierests for non-Indians. According to INAC, reserve lands represent less than 0.2 per cent of all the lands First Nations used to control. For INAC to want to divide up and steal the rest of those lands is unconscionable, let alone illegal. The spirit and intent of our nation to nation treaties was to share the wealth, not usurp it all for one treaty partner and leave the other impoverished and living on hand-outs.

First Nations have exclusive jurisdiction over their own laws and enforcement mechanisms and do not need INAC approval or supervision to deal with these issues. This provision is a gross violation of the constitutionally and internationally protected right to be self-governing.

INAC: INAC has consulted extensively with First Nations on this issue.

This is not true. In fact, INAC's own Special Ministerial Representative on Matrimonial Law on Reserve who interviewed First Nations individuals, communities and organizations all over Canada, concluded that none of the information packages or meetings to date amounted to legal consultation as required under section 35 of the Constitution Act, 1982. INAC representatives themselves told attendees at several meetings that various discussions were not intended as consultation.  Further, several meetings held with national organizations does not constitute legal consultations with the First Nation communities who actually hold the Aboriginal and treaty rights impacted.

Consultation is supposed to be a mutually negotiated, designed and funded process which ensures impacted First Nations communities (in this case, all 615) are fully informed about the legislation and its intended impacts as well as take measures to accommodate their concerns and obtain their consent. This simply did not occur. The Supreme Court of Canada has stressed repeatedly that Canada is legally obligated to consult, accommodate and in many cases, obtain the consent of First Nations prior to taking any action or decision that has the potential to impact constitutionally protected Aboriginal and treaty rights. UNDRIP further requires that Canada must obtain the free, informed and prior consent of First Nations before impacting their rights.

This has not happened and in fact, each version of this bill has been nearly unanimously rejected by First Nations men, women and communities all over Canada.

INAC: Canada is further supporting First Nations by creating a national Centre of Excellence to help First Nations implement these laws.

This new Centre was not requested by First Nations. If INAC wanted to support First Nations they would not have made substantial funding cuts to all the National, regional and provincial First Nation organizations that already assist First Nations with law development and implementation. Finally, law development is costly in any government, and INAC is expecting First Nations to develop and implement these laws without any funding support.

INAC is clearly not genuinely concerned about empowering First Nations governments, but is instead reverting back to nation-wide, one-size-fits-all paternalistic control. We all know what happens when INAC has control: we have deaths and torture in residential schools, lack of clean water and safe sanitation systems on reserve, housing crises, lack of education, suicide epidemics and other conditions of forced impoverishment.

It's time INAC got out of the business of controlling First Nations and let them govern themselves -- they couldn't do any worse than the atrocities already committed by Canada on our people.

Pamela Palmater's pictureDr. Pamela D. Palmater is a Mi'kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads their Centre for Indigenous Governance. 

++++++++++

From TheProvince.com

Guest column: Aboriginals threatened by present, not past

 BY ANDREW GAVIN MARSHALL, FOR THE PROVINCE AUGUST 13, 2013Guest column: Aboriginals threatened by present, not past

Idle No More protests are an attempt by aboriginals to take charge of their destiny - not a case of 'wallowing in the past,' says guest columnist Andrew Gavin Marshall.

In a recent article published in The Province, columnist Naomi Lakritz wrote that aboriginal people need to drop "the victimization mantle" and take "individual responsibility."

The essential idea, as Lakritz elaborated to me in an email exchange, was that aboriginal people should "move on" and stop "wallowing in the past."

How can people "move on" from history, if history has not moved on from them? Aboriginal people point to their history so that we may learn our own. Our histories are intertwined, and have been so since the first European colonists arrived in this land.

In 1920, Duncan Campbell, Canada's deputy Indian Affairs minister, declared: "I want to get rid of the Indian problem." The program of "assimilation" (or "cultural genocide") was largely undertaken through Indian "residential schools."

Some five decades after, our government used aboriginal children as lab rats, conducting nutritional and medical experiments on them.

Aboriginal communities across the country lack access to safe drinking water at a much higher level than the rest of Canadians. They face comparably higher levels of food insecurity, unemployment, poor housing, poverty, infant mortality, substance abuse, addiction and suicide, and make up a disproportionately high percentage of the prison population.

Early this year, the Harper government announced "a huge boom in Canadian natural resource projects" over the coming decade, potentially worth $600 billion.

Most of these projects will occur "on or near" aboriginal land (as in, the land we had not previously colonized in its entirety).

Harper's omnibus bills reduced the amount of protected lakes from 40,000 to 97 and rivers from 2.5 million to 63, paving the way for unhindered corporate extraction and environmental degradation. Whether next to a DeBeers mine in Attawapiskat, or near the tarsands in Alberta, aboriginal communities are directly exposed to the devastating environmental and health costs of our "development" projects.

It was within this context that, in late 2012, aboriginal people across Canada launched the Idle No More movement, taking responsibility not only for their own rights as indigenous people, but for the protection of the environment, linking up with indigenous groups in the United States to oppose pipelines and environmentally destructive projects, with peaceful protests, road blockades and public-awareness campaigns.

The Canadian government passes omnibus bills for the benefit of large resource-based corporations, rapidly accelerating environmental degradation, pushing not only Canada - but the human species as a whole - ever closer to the inevitable extinction faced by any self-destructive organism.

Instead of telling aboriginal people to "quit blaming the past" and take "responsibility," perhaps the rest of Canada should stop ignoring the past and take some responsibility for the present, to ensure that we may actually have a future, not simply as a nation, but as a species. Perhaps it's time for the rest of Canada to become Idle No More.

- Andrew Gavin Marshall is a researcher and writer based in Montreal.

MORE ON THIS STORY

++++++++

From 

Ten Other Things You Might Not Have Known About 20th-Century Aboriginal History in Canada.

by CONTRIBUTOR on JULY 25, 2013

By Sean Kheraj

2013-07-17 10.53.17

Ian Mosby's research on nutritional experiments on Aboriginal people in the 1940s and 1950s featured on cover of Toronto Star.

If there was a weekly prize for active historians in Canada, Ian Mosby would have been last week's winner. Canadian national news media (including print, radio, television, and web) prominently featured Dr. Mosby's recently publishedHistoire Sociale/Social History article, "Administering Colonial Science: Nutrition Research and Human Biomedical Experimentation in Aboriginal Communities and Residential Schools, 1942-1952."

This paper originated from some documents Mosby found at Library and Archives Canada while working on his dissertation. He discovered evidence of a little-known federal government program of nutritional experiments on starving Aboriginal people. Nutrition scientists conducted a series of experiments on malnourished Aboriginal children and adults for a period between 1942 and 1952. The federal government did not seek informed consent from the more than 1,000 residential school children from provinces across the country who were unwittingly included in this biomedical research.

When news of the publication hit Twitter, national news media outlets quickly picked up on the story and profiled Mosby's work in numerous publications and broadcasts. Here are a few examples:

As the story continued throughout the week, it prompted responses from several public commentators, including major newspaper editorials, the Manitoba's Minister of Aboriginal Affairs, the Grand Chief of the Assembly of First Nations, and former Prime Minister, Paul Martin:

Unfortunately, this kind of public attention to historical scholarship is rare, in part, because scholarly journals are often inaccessible to the public. The recent notoriety of Ian Mosby's work has raised the matter of open-access publishing for Canadian historians. Aside from those with institutional and personal subscriptions to such journals, the broader public beyond academia almost never learns about new historical research findings. Thankfully,the editors and publishers of Histoire Sociale/Social History heeded the suggestions of a handful of#Twitterstorians and released Mosby's article as an open access publication (for a limited time). Given that the American Historical Association just recently made the controversial decision not to support open access for recently completed dissertations, this example of Mosby's important research is hopefully a reminder that making historical scholarship broadly accessible can serve a greater public good while not undermining the professional interests of scholars.

Since there was so much public interest in twentieth-century history of Aboriginal people in Canada last week, I thought I would compile a list of ten open-access scholarly publications that provide insights into this history. Here are ten things you might not have known about the history of Aboriginal people in Canada in the twentieth century:

1. In the 1950s, the federal government relocated Inuit people to experimental colonies in the Arctic archipelago.

Alan R. Marcus. Out in the Cold: The Legacy of Canada's Inuit Relocation Experiment in the High Arctic. Copenhagen: IWGIA, 1992. http://www.iwgia.org/publications/search-pubs?publication_id=155

2. In 1933, the National Research Council subjected Aboriginal children of the Qu'Appelle reserve in southern Saskatchewan to experimental trials of BCG vaccines for tuberculosis.

Maureen Lux. "Perfect Subjects: Race, Tuberculosis,and the Qu'Appelle BCG Vaccine Trial"Canadian Bulletin of Medical History 15.2 (1998): 277-295.http://www.cbmh.ca/index.php/cbmh/article/view/407/406

3. Aboriginal people have fought for Canada in every overseas conflict in the twentieth century.

P. Whitney Lackenbauer with John Moses, R. Scott Sheffield, and Maxime Gohier. A Commemorative History of Aboriginal People in the Canadian Military Ottawa: National Defence. http://www.cmp-cpm.forces.gc.ca/dhh-dhp/pub/boo-bro/abo-aut/index-eng.asp

4. Throughout the entire twentieth century, Aboriginal people in British Columbia have organized politically for recognition of traditional land rights.

Paul Tennant. "Native Indian Political Organization in British Columbia, 1900-1969: A Response to Internal Colonialism" BC Studies 55 (1982): 3-49.http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1132/1176

5. From 1969 to 1971, the federal government conducted "Project Surname" a program to assign second names to Inuit people in the Northwest Territories who traditionally did not have surnames. Prior to this project, the government designated so-called disc numbers to Inuit people for identification and tracking purposes.

Valerie Alia, "Inuit Women and the Politics of Naming in Nunavut" Canadian Woman Studies14.4 (1994): 11-14. https://pi.library.yorku.ca/ojs/index.php/cws/article/viewFile/9524/8641

6. From 1913 to 1931, all levels of government participated in the removal and erasure of nearly every Coast Salish village and Indian reserve in the City of Vancouver.

Jean Barman. "Erasing Indigenous Indigeneity in Vancouver" BC Studies 155 (2007): 3-30.http://ojs.library.ubc.ca/index.php/bcstudies/article/view/626/669

7. In 1962, the British Columbia government agreed to end enforcing ethnic controls on alcohol sales in the Indian Act, which prohibited the sale of alcohol to Aboriginal people.

Robert A. Campbell. "A "Fantastic Rigmarole": Deregulating Aboriginal Drinking in British Columbia, 1945-62″ BC Studies 141 (2004): 81-104.http://ojs.library.ubc.ca/index.php/bcstudies/article/view/1705/1751

8. During the 1946-48 public inquiry on federal administration of Indian Affairs, the Indian Association of Alberta first argued that treaty rights should be the foundation for Aboriginal citizenship in Canada.

Laurie Meijer Drees. "Citizenship and Treaty Rights: The Indian Association of Alberta and the Canadian Indian Act" Great Plains Quarterly 20.2 (2000): 141-158.http://digitalcommons.unl.edu/greatplainsquarterly/20/

9. In Ontario in the 1950s and 1960s, Noranda Mines operated a sulphuric acid plant on Serpent River First Nation territory that processed uranium from the nearby Elliot Lake mines. The detrimental environmental effects of sulphuric waste from the plant devastated the Aboriginal community in the years since the closure of the plant.

Lianne Leddy. "Interviewing Nookomis and Other Reflections: The Promise of Community Collaboration" Oral History Forum 30 (2010): 1-18.http://www.oralhistoryforum.ca/index.php/ohf/article/view/386/457

10. In 1922, Dr. Peter Bryce, Canada's first chief medical health officer, publishedThe Story of a National Crime, a book that outlined statistical evidence that Canada's Aboriginal population was being destroyed by tuberculosis and the federal government had the means to stop it. The government ignored Bryce's warnings and fired him for publishing reports on the tuberculosis crisis.

Adam J. Green. "Telling 1922′s Story of a National Crime: Canada's First Chief Medical Health Officer and the Aborted Fight for Aboriginal Health Care" Journal of Native Studies 26.2 (2006): 211-228. http://www2.brandonu.ca/library/cjns/26.2/01green.pdf

If you have other open-access publications to recommend, please post the citations and links in the comments section below.

Sean Kheraj is an assistant professor in the Department of History at York University. He blogs at http://seankheraj.com

 Sean Kheraj July 25, 2013 at 9:43 am

Please do post other OA sources on this topic here. I know I missed a bunch in this round up. I also had numerous articles that I could not share here.

Shannon Stettner July 25, 2013 at 11:46 am

Hi Sean,

Athabasca University Press makes all of its books available for free download. Included in that is Recollecting: Lives of Aboriginal Women of the Canadian Northwest and Borderlands, edited by Sarah Carter and Patricia A. McCormack (http://www.aupress.ca/index.php/books/120181). While a number of the works don't pertain strictly to the twentieth century, it's a valuable collection. Kristin Burnett's article in the collection, "Obscured Obstetrics: Indigenous Midwives in Western Canada," does come into the twentieth century and touches on the influence of Dr. Helen MacMurchy, Chief of the Child Welfare Division for the Department of Health. More importantly, it reveals the importance of Aboriginal midwives in the settler communities of the West.

Shannon

 Sean Kheraj July 25, 2013 at 11:51 am

Shannon:

Thanks for posting the link to Sarah Carter and Patricia McCormack's edited collection with AU Press. I didn't end up using any AU Press sources, in part, because I was looking for 20th century examples, but the entire AU catalogue is open access and includes many excellent books on Aboriginal history in Canada. This includes Sarah Carter's fascinating history of marriage in Western Canada:

http://www.aupress.ca/index.php/books/120144

Norbert Kaysser July 25, 2013 at 2:09 pm

Frank Howard, NDP MP for the Skeena Riding, was instrumental in making it possible for First Nations People to vote in Canadian elections, like us Later Nations people take for granted. The Terrace-Kitimat airport should be re-named 'The Frank howard Airport' in honour of the great man. Norbert Kaysser nkaysser@hotmail.com

 Sean Kheraj July 25, 2013 at 3:29 pm

Norbert:

Thank you for mentioning Frank Howard and the history of First Nations voting rights. I had hoped to include an article or book on this topic, but I was not able to find out. If anyone knows of an OA source on this topic, please share it here in the comments. I think this would be a very interesting contribution to this list.

 Sean Kheraj July 25, 2013 at 4:15 pm

I should also note that I tried to represent a number of different journals that had open access articles. All of these journals are non-for-profit publications that rely on subsidies, subscriptions, and a lot of volunteer labour. If you want to support this type of scholarship, consider subscribing. For example, Canadian Journal of Native Studies has an individual annual subscription fee of just $30. Not too bad.

Corey July 25, 2013 at 7:53 pm

The list seems to ignore Atlantic Canada. If you want to include 20th century Atlantic Canadian Aboriginal history you should include the work of Martha Walls. Her study of the Kingsclear relocation scheme in NB shows how the state tried to remove/centralize Native communities in NB, and how the Maliseet were able to organize to resist these efforts. If is freely available from Acadiensis. While Acadiensis isn't totally OA, it only keeps the two most recent years of journals behind a paywall. Here is the link to Walls' article:http://journals.hil.unb.ca/index.php/acadiensis/article/view/5746/11045

 Sean Kheraj July 25, 2013 at 8:04 pm

Corey:

That is a superb reference. I spent some time browsing the Acadiensis archive, but I wasn't able to turn up this article. There was a lot of good articles on Mi'kmaw history, covering the eighteenth and nineteenth centuries and there were some on the Donald Marshall Jr. cases, but nothing that fit this list well. This article, however, is very interesting. I was unaware that the federal government attempted to consolidate Indian reserves in the Maritime provinces.

I'm also glad you added an Acadiensis article since the archive for that journal is freely available online. It is another excellent journal with a very reasonable individual subscription rate of just $26.25! Details here:http://journals.hil.unb.ca/index.php/Acadiensis/about/subscriptions

 Sean Kheraj July 25, 2013 at 8:06 pm

Corey:

Also, I'm more familiar with BC history, hence the regional bias in my selections. Thanks again for the excellent recommendation.

Susan MacArthur July 30, 2013 at 7:51 am

Also of significance is Bill C-31 to Amend the Indian Act, passed into law in April 1985 to bring the Indian Act into line with gender equality under the Canadian Charter of Rights and Freedoms. It proposed modifications to various sections of the Indian Act, including significant changes to Indian status and band membership, with three major goals: to address gender discrimination of the Indian Act, to restore Indian status to those who had been forcibly enfranchised due to previous discriminatory provisions, and to allow bands to control their own band membership as a step towards self-government.
On a personal note...my mother was granted her status back after having lost it in 1961, when she married my dad, a non-indian. She and many others were instrumental in the fight for the changes.

 Sean Kheraj July 30, 2013 at 10:39 am

Absolutely! This was one of the most important changes to the Indian Act in the 20th century.

 

 

 

 

Tags: