ABORIGINAL LEGAL SERVICES OF TORONTO (ALST)
Report Submitted by the NGO
Aboriginal Legal Services of Toronto
to the
United Nations Committee on the Elimination of Racial
Discrimination (CERD)
[16 July 2002]
TABLE OF CONTENTS
Executive Summary............................................................................................................ 3
Issues and Questions.......................................................................................................... 4
THANKSGIVING ADDRESS............................................................................................ 7
PART I - INTRODUCTION............................................................................................... 7
Aboriginal Legal
Services of Toronto...................................................................................................................... 8
The Community Legal
Clinic...................................................................................................................................... 8
The Community Council............................................................................................................................................. 9
Aboriginal Criminal,
Family and Youth Court Workers....................................................................................... 10
PART II –SUBMISSIONS................................................................................................. 10
ARTICLE I................................................................................................................................................................... 10
ARTICLE 2.................................................................................................................................................................. 11
Indian Act............................................................................................................................................................... 12
First Nation Membership..................................................................................................................................... 13
New Proposed
Legislative Initiatives................................................................................................................. 13
Royal Commission on
Aboriginal Peoples (RCAP)......................................................................................... 14
Justice..................................................................................................................................................................... 15
ARTICLE 3.................................................................................................................................................................. 16
ARTICLE 4.................................................................................................................................................................. 16
Federal Residential
School Policy....................................................................................................................... 17
Community Relocation......................................................................................................................................... 18
Assimilation Policy............................................................................................................................................... 18
Justice..................................................................................................................................................................... 19
ARTICLE 5.................................................................................................................................................................. 20
Courts and Tribunals............................................................................................................................................ 21
Police Violence Against
Aboriginal Peoples.................................................................................................... 22
Inherent Right To
Self-Government and Urban Aboriginal Peoples............................................................. 23
First Nations
Governance Act – Re-Writing the Indian Act.......................................................................... 24
The Anti-Terrorist Act......................................................................................................................................... 24
Article 5(d)(i) Freedom
of Movement................................................................................................................. 25
Article 5(d)(iv) The
Right To Marriage And Choice Of Spouse.................................................................... 25
Article 5(d)(v) The Right To Own Property Alone As Well As
In Association With Others.............. 26
Article 5(d)(vi) The
Right To Inherit.................................................................................................................. 26
Article 5(d)(vii) The
Right To Freedom Of Thought, Conscience And Religion........................................ 26
Article 5(d)(ix) The
Right To Freedom Of Peaceful Assembly And Association....................................... 26
Article 5(e)(iii) The
Right To Housing............................................................................................................... 27
Article 5(e)(vi) The
Right To Equal Participation In Cultural Activities....................................................... 27
Residential Schools............................................................................................................................................... 28
Article 5(f) The Right
Of Access To Any Place Or Service Intended For Use By The General Public, Such
As Transport Hotels, Restaurants, Cafes, Theatres And Parks........................................................................................................... 32
ARTICLE 6.................................................................................................................................................................. 32
Canadian and Ontario
Human Rights Commissions........................................................................................ 32
ARTICLE 7.................................................................................................................................................................. 33
Education................................................................................................................................................................ 33
Conclusion.................................................................................................................................................................. 33
Executive Summary
Canada and its provinces have failed to comply with
the Convention as it applies to Aboriginal Peoples in Canada. This failure was not acknowledged in the
thirteenth and fourteenth reports submitted by Canada under the terms of the
International Convention on the Elimination of All Forms of Racial
Discrimination.
Aboriginal
Legal Services of Toronto (ALST) is a unique organization that serves the legal
needs of Urban Aboriginal Peoples in the City of Toronto, and advances the
interests of Urban Aboriginal Peoples across Canada. ALST makes the following submissions in response to Canada’s
reports, offering an Indigenous perspective on where Canada continues to fail
under the terms of the Convention.
In
spite of its responsibilities and obligations as a signatory nation state under
the Convention, Canada continues to fall far short in addressing racial
discrimination against Aboriginal Peoples in Canada. The Royal Commission on Aboriginal Peoples in Canada published
its 4,000-page report in 1996, after five years of intensive study of the
economic, social and cultural status of Aboriginal Peoples in Canada, and the
relationship between Aboriginal Peoples and other Canadians. The Report issued some 400 recommendations
offering practical solutions to addressing the well-documented realities of
racism still faced by Canada’s First Peoples.
Today, over five years since the first publication of the Report, Canada
has failed to implement the vast majority of the recommendations and continues
with its legislative and policy agendas that deny the inherent rights of
Aboriginal Peoples.
The
Parliament of Canada has not only maintained the very problematic Indian Act which controls Aboriginal
Peoples in Canada, but has proposed a new First
Nations Governance Act which increases governmental control over, and
further undermines the rights of, Aboriginal Peoples. The Government of Canada continues to assert its authority to
define who are “Indians”, maintain the reserve system (relegating Aboriginal
Peoples to reserve lands across Canada), impose foreign systems of government
on reserves, control ownership of property on reserve, provide substandard
health care and housing, and limit economic and social development within First
Nations communities.
The
assimilation agenda which drove Canadian policy with regard to Aboriginal
Peoples for the last two centuries continues to be felt this day, whether
through the Indian Act and proposed First Nations Governance Act which seek
to legislatively eliminate “Indians” and therefore eliminate the “Indian
problem”, or through the ongoing legacy of the atrocities that were visited
upon Aboriginal Peoples for generations through residential schooling and
forced adoption of Aboriginal Peoples out of their homes, their communities,
their culture and traditions.
Aboriginal Peoples in Canada are over-incarcerated in the criminal
justice system, are over-policed and suffer from anti-Aboriginal
police-violence, suffer disproportionately high infant mortality rates, youth
suicide rates, and homelessness.
It
is clear that the agenda of Canada with respect to Aboriginal Peoples is not
working, nor will it until Canada begins to act with integrity and respect for
Aboriginal Peoples, respect the spirit and content of the International
Convention on the Elimination of All Forms of Racial Discrimination, and
implement the hundreds of recommendations that its own Royal Commission on
Aboriginal Peoples have identified as solutions to healing the relationship
between Aboriginal Peoples and the rest of Canada.
Issues
and Questions
Questions for Canada:
Issue 1:
The Royal Commission on Aboriginal Peoples issued its five volume report
to the Federal government in 1996, after a five year intensive study, meeting
100 times, having 178 days of hearings, recording 76,000 pages of transcripts,
generating 356 research studies. The
Report contains over 400 recommendations
Question:
Which, if any, of the Recommendations has the Federal government
implemented? What is the Federal
government’s current plan and future plan for implementing the Royal Commission
Report?
Issue 2:
The Royal Commission on Aboriginal Peoples held that the “historical
assimilation goals will have been reached” and that there will no longer be any
“Indians” as a result of the Indian Act’s second-generation cut-off rule.
Question: Given the
numerous court challenges to the Indian
Act and the second generation cut off rule since the inception of Bill C-31
in 1985, what action does the Federal government of Canada propose to take to
ensure that Aboriginal people and their culture are not erased from the face of
the Canadian tapestry?
Issue 3: The Royal Commission on Aboriginal
Peoples found that the urban Aboriginal population increased by 55% between
1981 and 1991 and it was estimated to grow by 43% by the year 2016.
Question: What steps, if
any, has the Federal government taken to ensure that its present and future
fiduciary responsibilities are met to this ever-growing Urban Aboriginal
population?
Issue 4: The Federal Government acknowledges
on page 8 of its Report to CERD that Aboriginal Peoples are over-represented in
the Canadian criminal justice system yet the Government has refused to
acknowledge the reality of over-incarceration.
Question: How will the Government of Canada act in
good faith to reduce and eliminate the powerful contributing factors to the
over-incarceration of Aboriginal Peoples – factors such as unemployment, poor
health, physical and mental health issues, alcohol, and drug and solvent abuse?
Issue 5: The effects of the Government of
Canada’s long standing assimilation policy continue to today with thousands
upon thousands of Aboriginal Peoples across Canada suffering the legacy of
residential schooling and forced adoption – both of which removed Aboriginal
children from their communities, culture and tradition in attempts to
assimilate. The numerous and varied
abuses and losses suffered by Aboriginal children in the name of assimilation
are well documented. Many are
attempting to find redress through the courts – be that through lawsuits
against the Federal Government and the churches for abuse in residential
schools, or through suits against the government seeking disclosure of adoption
records to enable claimants to find their families and home communities. Government consistently opposes these
efforts for redress, and we understand that the litigation strategy implemented
by the Government is to delay in the hopes that the claims will disappear.
Question: What steps is the Government of
Canada taking to ensure that Aboriginal Peoples bringing forward claims against
the government are treated with fairness and respect? When will the Government apologize for the atrocities visited
upon Aboriginal children? And when will it move together with Aboriginal
Peoples to heal the legacy of these atrocities?
Issue 6: Since the 1970’s, the Government of
Canada has consistently attempted to off-load its responsibilities relating to
Aboriginal Peoples, particularly in the areas of education, health, housing,
land and natural resources.
Question: How does the Government of Canada justify
off-loading its fiduciary responsibilities to Aboriginal Peoples to the
provinces and municipalities? What
measures is the Government taking to ensure the provinces and municipalities
are properly attending to the fiduciary relationship to Aboriginal Peoples? How
and what financial resources is the government providing to provincial and
municipal governments to attend adequately and properly to serve Aboriginal
Peoples needs?
Questions for Canada and Ontario:
Issue 7: Both the governments of Canada and
of Ontario refer to funding test case litigation – Ontario referring to the
funding of the African Canadian Legal Clinic and Canada referring to the Court
Challenges Program.
Question: Why is there
no funding from the Canadian government, and inadequate funding from the
Ontario government to support Aboriginal Rights litigation? What do both
levels of government intend to do to ensure that funding is accessible to
Aboriginal Peoples bringing forward test case litigation in support of
Aboriginal rights?
Issue 8: Both the federal and provincial
human rights legislation and commissions remain largely inaccessible to
Aboriginal Peoples in Ontario.
Question: What steps are
being taken by the governments of Canada and Ontario to ensure that human
rights legislation and the mechanisms in place to enforce are more accessible
to Aboriginal Peoples and effective to the concerns of Aboriginal Peoples?
Issue 9:
Reports of police violence against Aboriginal Peoples and deaths of
Aboriginal people in the custody of police are far too frequent in both federal
and provincial jurisdictions. The
Government of Ontario continues to oppose an inquiry in to the police killing
of Aboriginal rights protestor, Dudley George, who was found to have been
killed by an Ontario Provincial Police officer while peacefully protecting
Aboriginal lands at “Camp Ipperwash.”
More recently, witnesses report seeing an Aboriginal man viciously
beaten by Toronto City Police Officers – ironically this report of
anti-Aboriginal police violence took place on June 21st which was
declared by the Government of Canada in 1996 as National Aboriginal Day.
Question: What steps is
the Government of Ontario taking to address the completely ineffective police
complaint process in Ontario? What are
both the governments of Canada and Ontario doing to address the issue of
Aboriginal deaths in custody?
Issue 10: Report after report has identified
a serious crisis of homelessness within urban centres, with a disproportionate
representation of Aboriginal Peoples remaining under-housed or homeless.
Question: what are the
governments of Canada and Ontario doing to address the crisis that exists for
Aboriginal Peoples across this country due to the lack of adequate and
affordable housing, and the growing epidemic of homelessness?
THANKSGIVING
ADDRESS
We give thanks to the
Creator who guides us in our work and give us clear minds and strong hearts to
face the challenges of being Aboriginal in a world that is very hurtful and
unsafe to live in. We give thanks to
all the animals, plants, and all the elements of the universe and beyond for
all they give to us to live. We give thanks to our traditional teachers and
spiritual leaders and to our brothers and sisters who teach us through their
pain in prisons, to the children in welfare custody and to our houseless family
on the streets. We acknowledge the spirit and support of our clans in our
deliberations while writing this
report. We give thanks for the dedication and commitment for the workers at
Aboriginal Legal Services of Toronto, who work with our people on the streets, in
prisons, courts, and in the community in general. We give thanks to you the
Commissioners of the United Nations for the opportunity of delivering this
Shadow Report. Chi-Meegwetch – A very big thanksgiving.
PART
I - INTRODUCTION
This report is
in response to the combined thirteenth and fourteenth reports submitted by
Canada under the terms of the International Convention on the Elimination of
All Forms of Racial Discrimination.
This report speaks about the painful experiences of urban Aboriginal
Peoples in Canada and it speaks about the hopes and aspirations of urban
Aboriginal Peoples in Canada for the future.
According to William Commandant, Elder from the Algonquian Nation and
keeper of the sacred wampum belts, “we need this old knowledge in our teachings
to get through this new age”. This report will provide a general introduction of past and
present issues that affect urban Aboriginal Peoples in Toronto. A full review of these issues would include
a detailed account of the activities currently underway in Aboriginal
communities toward self-government. As
well, a full review of other issues outside of the purview of this report would
include and require the same process.
This report uses the words "Indigenous" and
"Aboriginal" interchangeably.
"Aboriginal" is used in Canada to include Indians, Métis and
Inuit as defined by the Constitution Act,
1982. "Indigenous" is used in international treaties and is used
in this paper in reference to indigenous First Peoples communities,
worldwide. The Canadian Federal Indian Act unilaterally defines an
“Indian” as a person who, pursuant to the Indian
Act, is registered as an Indian, or is entitled to be registered as an
Indian, and once registered is referred to as a status Indian.
The perspectives presented in this report are based on
countless reports, publications, and our experience as service providers, as
well as our Elders’ teachings. The
opinions expressed in this report are those of Aboriginal Legal Services of
Toronto (ALST). With a view to keeping
this report focused on the Articles to the Convention, each Article will be
highlighted and followed with ALST’s commentary to Canada’s report submitted in
accordance with the Convention. While
ALST could comment on virtually all aspects of the Canadian reports under the
terms of the Convention, these submissions are limited to several key areas
that are directly within ALST’s mandate.
Aboriginal
Legal Services of Toronto
Aboriginal
Legal Services of Toronto is a unique organization, which serves the legal
needs of Urban Aboriginal Peoples in the City of Toronto and advances the
interests of Urban Aboriginal Peoples across Canada. The Aboriginal Community in Toronto is estimated to number
between 60,000 and 100,000 people - the largest Urban Aboriginal population in
Canada. The community includes status
and non-status Indians, Métis and Inuit.
ALST’s vision is to support and advocate for the Aboriginal community to
gain control over the legal and justice issues that affect them. The challenges and issues that urban
Aboriginal people face are different than those faced by Aboriginal people on
reserve and in rural communities.
Many Aboriginal
people in Toronto have come to Toronto from other parts of Canada for various
reasons, including family commitments, employment opportunities, health services,
and education. Aboriginal Legal
Services of Toronto frequently deals with the First Nations communities from
which Toronto Aboriginal community members have migrated, as well as other
First Nations, thereby making the work of Aboriginal Legal Services
“international” in scope.
The Royal
Commission on Aboriginal Peoples (RCAP) (Government of Canada, 1996) identified
racism as one of the “most difficult aspects of urban life for Aboriginal
People”. Racism contributes to, or is
at the root of the legal needs of urban Aboriginal Peoples and accordingly,
Aboriginal Legal Services of Toronto works to combat all forms of racism faced
by urban Aboriginal peoples. This
guiding principle of anti-racism ensures that the work of ALST relates directly
to the International Convention on the Elimination of All Forms of Racial
Discrimination.
Aboriginal
Legal Services of Toronto is a multi-service legal agency, which delivers three
key programs: the Community Legal
Clinic, the Community Council, and the Aboriginal Court Workers program. All three programs increase the level of
awareness about the scourges of racism and racial discrimination against
Aboriginal Peoples, generally, and urban Aboriginal Peoples, specifically.
The programs
are outlined below with commentary as to how they relate to the International
Convention on the Elimination of All Forms of Racial Discrimination. Virtually all of the work that Aboriginal
Legal Services of Toronto does relates directly to the Convention.
The
Community Legal Clinic
The Community
Legal Clinic at Aboriginal Legal Services of Toronto, made up of only three
lawyers, provides free legal assistance
to low-income Aboriginal people living in the City of Toronto. The clinic provides legal representation and
summary information in a variety of areas of law including: housing problems
and tenants rights; social assistance; Indian
Act matters; Canada pension matters; employment insurance; criminal
injuries compensation; and police complaints.
In addition, the clinic practices in the area of Human Rights, assisting
clients with human rights complaints both provincially and federally. A number of the human rights matters that
the clinic has carriage of deal with complaints of individuals with their First
Nations. These complaints that often
have their roots in the legislated system imposed by the federal government on
Aboriginal Peoples which is designed to create adversarial relations between
and among Aboriginal individuals and communities.
The work of the
Legal Clinic illuminates the legal needs of the Toronto Aboriginal community -
much of which arise as a result of racism and discrimination in the areas of
housing, employment, Indian Act
legislation and regulations, victims of crime and over policing - and
representing those community members in various arenas, directly relates to
International Convention on the Elimination of All Forms of Racial
Discrimination.
In addition,
the clinic is also involved in test case litigation concerning matters of
particular importance to Aboriginal communities on a national basis with an
emphasis on Urban Aboriginal Peoples.
An example of a
test case challenge occurred where the clinic intervened challenging the
Canadian Government’s position that an individual’s Aboriginal rights were tied
to residency on reserve, denying the mobility of the rights of Aboriginal
Peoples. This intervention at the
Supreme Court of Canada in the case of HMQ
et al v Corbiere et al, dealt with the right of off-reserve Indians to vote
in their Band Council elections. The
court found that the Indian Act
breached the Canadian Charter of Rights
and Freedoms protection against discrimination of off-reserve Indians by
not allowing them to vote in their Band Council elections and the impugned
section was declared unconstitutional.
The Clinic was
also involved in the Supreme Court of Canada cases of R. v Williams, a case which dealt with an accused Aboriginal's
right to challenge potential jurors on the basis of racial bias; R v. Gladue and R v. Wells, cases dealing with the sentencing of Aboriginal accused
and R. v. Golden, a case dealing with
the police power to strip search. In
all of these cases, the clinic increased the court’s awareness of the systemic
racism in the criminal justice system that exists against Aboriginal accused
and proposed meaningful ways to combat racism.
The clinic is
also currently involved in initiating a number of challenges to government
legislation and practice under the Canadian
Charter of Rights and Freedoms. The
Clinic has carriage of three cases challenging section 6 of the Indian Act, the
registration provisions. In addition to
challenges against the Indian Act,
ALST continues to challenge systemic racial discrimination issues within
federal and provincial, as well as private institutions.
All of the
above noted legal activities relate directly to the International Convention on
the Elimination of All Forms of Racial Discrimination, because they increase
the level of awareness in Toronto, Ontario and across Canada of the racial
discrimination that has existed, and continues to exist, against Aboriginal
Peoples.
The
Community Council
In 1992, the
Community Council became the first urban Aboriginal alternative criminal
justice program in Canada. To date the
Council has heard almost 1,000 cases and is one of the longest-running programs
of its kind. The Community Council
functions as a criminal diversion program.
Cases are diverted from the criminal justice system to be resolved by
volunteers within the Aboriginal community.
The rationale behind the Community Council project is that the
Aboriginal community best knows how to effectively address the issues and needs
of Aboriginal offenders.
Council
members are all volunteers from the Toronto Aboriginal community. The Council utilizes the traditional
Aboriginal consensus based decision-making process. Individuals appearing before the council are required to speak
for themselves. The objective is for
all to hear and understand the root or core issues that led to the
offence. Everyone, including the
accused, works together to identify and determine the necessary healing path
for the offender as well as contributing to reconciliation with the
victim. Victims are invited and
encouraged to participate in the hearing.
The Council
has many options available to help the healing process of the people who come
before it, and to help reintegrate these people into the community. Some of the options include counseling,
restitution, community service, and treatment suggestions. Since this is the first program of its kind
in Canada, the Community Council has served as a model for similar programs
across Canada and internationally.
Aboriginal
Criminal, Family and Youth Court Workers
ALST also
delivers criminal, family and youth court worker programs in Toronto. Aboriginal court workers work in the courts
and explain legal rights and obligations to their clients. They assist Aboriginal people before the
courts by securing legal counsel, finding interpreters as needed, assist with
pre-sentence reports, bail hearings, and referrals. The Aboriginal criminal court workers in Toronto are an integral
part of the Community Council program, since they often have first contact with
Aboriginal accused eventually diverted to the Council. This critical contact contributes to the
possible and eventual diversion to the Community Council.
In summary,
the work of Aboriginal Legal Services of Toronto through the various programs
as outlined above clearly attends to addressing racism and discrimination
against Urban Aboriginal People and which directly relates to the
International Convention on the Elimination of All Forms of Racial
Discrimination.
PART
II –SUBMISSIONS
ARTICLE
I
1. In this Convention, the term
"racial discrimination" shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life.
2. This Convention shall not apply
to distinctions, exclusions, restrictions or preferences made by a State Party
to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be
interpreted as affecting in any way the legal provisions of States Parties
concerning nationality, citizenship or naturalization, provided that such
provisions do not discriminate against any particular nationality.
4. Special measures taken for the
sole purpose of securing adequate advancement of certain racial or ethnic
groups or individuals requiring such protection as may be necessary in order to
ensure such groups or individuals equal enjoyment or exercise of human rights
and fundamental freedoms shall not be deemed racial discrimination, provided,
however, that such measures do not, as a consequence, lead to the maintenance
of separate rights for different racial groups and that they shall not be
continued after the objectives for which they were taken have been achieved.
ARTICLE
2
1. States Parties condemn racial
discrimination and undertake to pursue by all appropriate means and without
delay a policy of eliminating racial discrimination in all its forms and
promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to
engage in no act or practice of racial discrimination against persons, groups
of persons or institutions and to en sure that all public authorities and
public institutions, national and local, shall act in conformity with this
obligation;
(b) Each State Party undertakes not
to sponsor, defend or support racial discrimination by any persons or
organizations;
(c) Each State Party shall take
effective measures to review governmental, national and local policies, and to
amend, rescind or nullify any laws and regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit
and bring to an end, by all appropriate means, including legislation as
required by circumstances, racial discrimination by any persons, group or
organization;
(e) Each State Party undertakes to
encourage, where appropriate, integrationist multiracial organizations and movements
and other means of eliminating barriers between races, and to discourage
anything that tends to strengthen racial division.
2. States Parties shall, when the
circumstances so warrant, take, in the social, economic, cultural and other
fields, special and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to them, for the
purpose of guaranteeing them the full and equal enjoyment of human rights and
fundamental freedoms. These measures shall in no case en tail as a con sequence
the maintenance of unequal or separate rights for different racial groups after
the objectives for which they were taken have been achieved.
Indian
Act
The Federal
government of Canada implemented the first Indian
Act in 1876 pursuant to its authority over Indians and lands reserved for
Indians set out in section 91(24) of the Constitution
Act, 1867. The main purpose of the Act was to civilize, assimilate
eventually eliminate Aboriginal Peoples.
One hundred and twenty six years later, the Indian Act and the policy to assimilate and eliminate Aboriginal
Peoples remains. The difference today
is that that government of Canada has disguised its assimilation policies,
often under the auspices of “self-government.” The government still maintains
its objective of eliminating Indians through Bill C-31, which imposes a “second
generation cut-off” rule to effect the elimination.
The main
assimilation policy that still exists in the Indian Act is with respect to defining who is an Indian. The Indian
Act has always, and continues to, define who is an “Indian”. The Government
of Canada uses its definition of who is an Indian to limit who is eligible to
claim Aboriginal rights and entitlements.
The Indian Act of 1876 defined an Indian to
be first, any male person of Indian blood reputed to belong to a particular
band, second, any child of such person, and thirdly, any woman who is or was
lawfully married to such person. In
addition to allotting Indian-ness by way of this patriarchal system, the first Indian Act also stripped Indian women of
their identity when they married non-Indians.
Every Indian Act that followed
contained similar provisions.
In 1985 the
federal government passed Bill C-31. The impetus of the Bill was the United
Nations Human Rights Committee decision of Sandra
Lovelace v. Canada [1981]. Ms. Lovelace lost her Indian status and Band
membership as a result of her marriage to a non-Indian. She brought her concerns before the United
Nations Human Rights Committee that had been established pursuant to the International Covenant on Civil and
Political Rights. The Committee, in 1981, held that section 12(1)(b) of the
Indian Act, 1971 breached section 27
of the Covenant by not permitting Ms. Lovelace to enjoy her culture and
language in her community. This international embarrassment and the 1982
Constitutional amendment, which incorporated the Canadian Charter of Rights and Freedoms, motivated the Canadian
government to take steps to amend the Indian
Act.
The purpose of
Bill C-31 was to eliminate what was identified as two historic wrongs in
Canada’s legislation regarding Indian Peoples: the discriminatory treatment
based on gender, and the control by Government of membership in Indian
communities. Bill C-31 however, has failed to address these wrongs, and has, as
the Royal Commission of Aboriginal Peoples noted, created new forms of
discrimination. One such “new form of discrimination” is the creation of two
types of Indian status; section 6(1) of the Act
that permits the passing of Indian status to one’s offspring, and section 6(2)
that does not.
Section 6(2),
commonly referred to as the “second-generation cut-off rule”, states that, “a
person is entitled to be registered if that person is a person one of whose parents
is, or if no longer living, was at the time of death entitled to be registered
under subsection (1)” (emphasis
added). If an applicant has one parent
who is registered under section 6(2) of the Act,
they are not entitled to registration. There is no provision in the Act for the registration of a person who
has one non-Indian parent and one Indian parent registered pursuant to section
6(2).
The Federal
Government’s Report of the Royal Commission on Aboriginal Peoples (RCAP
Report), discussed in greater detail below, indicates that the demographic
trends in Canada show that under the existing legislative scheme the number of
status Indians will decline drastically and that Indians will "effectively
have been assimilated for legal purposes into provincial populations.” Historical assimilation goals will have been
reached, and the federal government will be relieved of its constitutional
obligation of protection, as there will no longer be any legally defined “Indians”
left to protect.
Many applicants
for Indian registration have challenged the second generation cut-off rule
found in the Indian Act. Several cases are presently before the
courts that directly challenge section 6(2) of the Indian Act on the basis that it infringes section 15 of the Charter, (the right to be free from
discrimination) and international covenants.
The litigation has been slow to proceed and has faced numerous barriers
erected by the Federal Department of Justice.
One such
barrier to the litigation is the cost.
The Department of Justice's strategy in relation to Bill C-31 litigation
is to make the cases last as long as possible and cause as much expense to
Aboriginal litigants as possible, effectively exhausting litigants’ financial
and emotional resources. Although the Government
of Canada, as noted in its report to this Committee has established the Court
Challenges Programme to fund cases, the funding is limited and does not cover
the entire cost of litigation.
The federal
government has also established the Indian Test Case fund to which individual
litigants can apply for funding to support their litigation in relation to
Aboriginal issues. Once again, access
to the fund is limited to funding cases on appeal only, and the fund specifically
excludes funding for any cases that challenge Bill C-31.
First
Nation Membership
As noted above,
one of the stated purposes of Bill C-31 was to allow communities to take
control of their own membership. One of the major changes to the Indian Act that Bill C-31 implemented
was the bifurcation of one’s legal recognition as an “Indian” and one’s
membership with an Indian Band. Prior
to 1985, all registered Indians were band members. Section 10(1) of the Indian
Act, 1985, in an attempt to foster self-government, now allows for a Band to
assume control over determining its membership. If a Band has obtained control
over its membership, a person who has obtained registration pursuant to section
6 of the Indian Act, will not
necessarily also be granted Band membership. Conversely, persons with Band
membership may not be recognized as an Indian by the Department of Indian and
Northern Affairs. First Nations only
receive federal funding for those individuals that have recognition under the
Indian Act as "Indian", and as such, the government effectively
continues to maintain control over
First Nations' right to self-determine.
New
Proposed Legislative Initiatives
Much attention
has been given to the most recent Government of Canada’s initiatives at
legislative reform in relation to Aboriginal Peoples – the First Nations Governance Act or Bill C-61, which was tabled in
Parliament in June 2002. Further
details regarding this initiative are provided later in these submissions. It is worth noting that rather than
advocating for reducing the amount of control over Aboriginal Peoples lives,
this new proposed legislation actually increases government control and further
undermines the rights of the Aboriginal Peoples in Canada.
The Specific Claims Resolution Act, Bill
C-60, was also introduced for its first reading to Parliament in June
2002. The Act reformulates how Aboriginal land claims are to be handled by
the Government of Canada. The Act proposes the creation of a new
tribunal, the Canadian Centre for the Independent Resolution of First Nations
Specific Claims. Part of this new
Centre will be the Commission Division that will administer funds for research,
preparation and conduct of specific claims brought by First Nations; assist in
the dispute resolution process regarding specific claims; and refer to the
Tribunal issues of validity of compensation.
This new Centre would replace the Indian Claims Commission, which
currently performs some of these functions, and is an arm’s length institution
of the government.
The formation
of this new Centre acts to centralize and bureaucratize the specific claims
process in the hands of the Federal Government. The appointment of Officers and Commissioners of the Centre, and
their continued employment, at the discretion of the Minister threatens to
compromise the independence of the specific claims process that is currently
enjoyed under the direction of the Indian Claims Commission. The reliance of the continued employment of
the Officers and Commissioners, and the existence of the Commission at all on the
Federal Government is also a threat to the kinds of decisions such individuals,
and indeed, the Commission as a whole may make. In turn, the level of independence and control of the Officers
and Commissioners would have adverse effects on Aboriginal Peoples making
claims through this process.
The existing
and proposed new legislation as noted above with respect to Aboriginal Peoples
in Canada continue to undermine the interests of Aboriginal Peoples, ensuring
that Aboriginal Peoples economic and social interests continue to be stunted
through these various legislative initiatives.
The rhetoric of Government that accompanies these bills is fraught with
racist stereotypes and works in direct opposition to promoting a greater
understanding of Aboriginal Peoples within Canada and a healthier and
respectful relationship among Aboriginal Peoples and non-Aboriginal citizens of
Canada.
Royal
Commission on Aboriginal Peoples (RCAP)
On April 29,
1991, the Federal Parliament announced a Royal Commission on Aboriginal
Peoples. The Royal Commission was
established by Order-in-Council under a broad mandate. The Report of the Royal
Commission was the most massive investigation ever undertaken in Canada of the
Aboriginal Peoples. The Report attempts
to explain how Aboriginal Peoples came to occupy such an oppressed and
marginalized position in Canada and to explore the requirements of a new
constitutional destiny of section 35 of the Constitution
Act, 1982.
The Commission
examined the economic, social and cultural situation of Aboriginal Peoples in
Canada and considered solutions conducive to a better relationship between
Aboriginal Peoples and the Canadian government, and Canadian society as a
whole. The Royal Commission on Aboriginal
Peoples examined the 500 years of relations between Indigenous Peoples and the
newcomers in Canada. The Commission
focused on four areas of federal policy and action:
·
The Indian Act, which was and remains the
legislative centerpiece of federal policy;
·
Residential
schools, through which Aboriginal children were uprooted from families and
traditions, with the objective of assimilation into non-Aboriginal society;
·
The relocation of entire Aboriginal
communities in the name of development or administrative efficiency; and
·
The treatment of Aboriginal veterans who served Canada in
wartime but were the victims of governmental neglect in the peace that
followed.
The
aforementioned areas were selected for scrutiny by the Commission because
Aboriginal Peoples have said that they were among the most unjust policies
imposed on them and that those injustices, while rooted in history, have
affects that continue to this day. As a
result of varying degrees of internalized colonialism, Aboriginal traditional systems
and roles were destroyed and displaced with systems and institutions of the
dominant society. With the loss of
traditional practices came a loss of identity, a sense of powerlessness and
despair and vulnerability to non-Aboriginal influences.
Over five years
of intensive study, the Commission had met 100 times, had 178 days of hearings,
recorded 76,000 pages of transcripts, generated 356 research studies, and
published four special reports on justice, land claims and extinguishment,
suicide, and relocation of Inuit to the High Arctic, as well as two
commentaries on self-government. In
November of 1996, the Royal Commission on Aboriginal Peoples issued its five
volume Report to the federal government.
The Report took about 4000 pages of text to explain the requirements of
restoring justice to the relationship between Aboriginal Peoples and Canadians.
To propose practical solutions to stubborn problems took over 400
recommendations. For unexplained
reasons, the government has not continued publication of the Commission's
Report. Ironically, after the RCAP
Report identified the impact of poverty on Aboriginal Peoples across Canada,
the Government has chosen to ensure the Report is only available to its
citizens over the Internet.
Some
commentators have been preoccupied with the allegedly prohibitive cost of
implementing the recommendations of the Royal Commission on Aboriginal
Peoples. The Commission, however, amply
illustrates the enormous cost, fiscal and otherwise, of not acting on the
recommendations immediately. In other
words, failure to spend today will result in enormous loss in the future.
Justice
The Royal
Commission on Aboriginal Peoples in its report on justice – “Bridging the
Cultural Divide” - arrived at 15 major findings and conclusions, and made 18
recommendations.
The first
finding of the report was:
The Canadian criminal justice system
has failed the Aboriginal Peoples of Canada - First Nations, Inuit and Métis
people, on reserve and off reserve, urban and rural - in all territorial and
governmental jurisdictions. The principle
reason for this crushing failure is the fundamentally different world-views of
Aboriginal and non-Aboriginal people with respect to such elemental issues as
the substantive content of justice and the process of achieving justice.
This conclusion
was endorsed by the Supreme Court of Canada in the 1999 case of R v. Gladue. The federal government, while acknowledging the reality of
over-incarceration of Aboriginal people, has not formally accepted this
finding.
In terms of the
recommendations of the Report, the federal government has not adopted any of
the key recommendations with regard to recognizing the right of Aboriginal
Nations to establish and administer their own systems of justice pursuant to
their inherent right to self-government.
Most of the Commissions’ recommendations fall out of that recommendation
and meaningful steps forward cannot be taken without this recommendation being
accepted.
The extent to
which the federal government rejects this recommendation can be found in
paragraph 23 of its report to this Committee, where it indicates that the goal
of the government’s Aboriginal justice initiative is to increase “participation
by Aboriginal communities in the local administration of justice, and of
reducing the representation of Aboriginal peoples in the justice system over
the long term.” While participation in
the local administration of justice is important, it will not, on its own,
reduce the over-representation of Aboriginal people in the criminal justice
system.
Other than
facilitating some conferences and meetings, the federal government has not met
any of the other recommendations in the report on justice.
Ontario has the
third-highest rate of Aboriginal over-incarceration in provincial jails in the
country (over-incarceration being measured by comparing the percentage of
Aboriginal people in jail with the percentage of Aboriginal people in the
province as a whole). Ontario has never
formally recognized the significant reality of Aboriginal over-incarceration in
the province.
While the
province does fund some Aboriginal alternative justice programs, they fund far
fewer than other provinces where over-incarceration rates are similar or even
lower. Ontario also does not provide
any funds directly towards ALST’s vital role in the Gladue (Aboriginal Persons) Court.
ARTICLE
3
States Parties particularly condemn
racial segregation and apartheid and undertake to prevent, prohibit and
eradicate all practices of this nature in territories under their jurisdiction.
ARTICLE
4
States Parties condemn all
propaganda and all organizations which are based on ideas or theories of
superiority of one race or group of persons of one colour or ethnic origin, or
which attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed to
eradicate all incitement to, or acts of, such discrimination and, to this end,
with due regard to the principles embodied in the Universal Declaration of
Human Rights and the rights expressly set forth in article 5 of this
Convention, inter alia:
(a) Shall declare an offence
punishable by law all dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour
or ethnic origin, and also the provision of any assistance to racist
activities, including the financing thereof;
(b) Shall declare illegal and
prohibit organizations, and also organized and all other propaganda activities,
which promote and incite racial discrimination, and shall recognize
participation in such organizations or activities as an offence punishable by
law;
(c) Shall not permit public
authorities or public institutions, national or local, to promote or incite
racial discrimination.
Federal
Residential School Policy
As stated
previously, throughout the 19th century the Canadian government's policy in
regard to Indians was assimilation. As
one example of assimilation policy, the government created two types of
residential schools for Aboriginal Peoples: boarding schools for younger
children, and industrial schools for their older siblings.
Native children
were forcibly removed from their parents, their homes and their communities,
and forced to attend residential schools.
Thousands of the Aboriginal children removed from their homes and
communities were placed in the care of strangers, whose appointed duty was to
separate them from their traditional cultures and to ‘civilize’ them in the
ways of the dominant European, Christian society.
While attending
these schools, many Aboriginal children were victims of extreme abuse, which is
now the subject of ongoing litigation across the country. Many children were severely punished for practicing
traditions or speaking traditional languages.
Many children were victims of severe physical, sexual, emotional and
spiritual abuse. As a result of these
experiences, many of these children who are now adults have been robbed of
their culture, traditions and spirituality.
The impact and effect of these experiences, the affect of these
experiences pervade all aspects of life and affect whole families and entire
communities, from one generation to another.
Many of the
current problems Aboriginal parents experience with their children stem from
the experiences of Aboriginal Peoples in the Residential School system. As a consequence of these experiences,
traditional positive Aboriginal parenting was lost and many Aboriginal Peoples
today still feel the affects of these experiences.
It is estimated
that some 10,000 Aboriginal survivors of residential schooling are engaged in
litigation against the federal government and the churches that administered
the schools. While the federal
government has undertaken some pilot projects aimed at resolving these claims
outside of the courts, the federal policy in both the informal and formal court
processes has been to refuse to acknowledge the intergenerational effects of
residential schooling as well as the loss of culture and language. We suspect from the information we receive
regarding the lawsuits in place, that the federal government is also
implementing very problematic litigation strategy across the country of delaying
cases to the extreme in the hopes that litigants will abandon their claims, or
die in the process of litigation. These
actions by the federal government contravene the word and indeed the spirit of
the Convention.
Residential
School issues will be addressed further in these submissions under Article 5 of
the Convention.
Community
Relocation
As if removing
children from their homes was not extreme enough, the government unilaterally
decided to relocate entire communities, often to very remote parts of the
country. Government rational varied
from the need to disperse Aboriginal Peoples back to the land or to alleviate
population or economic scarcity problems; the desire to centralize or to
facilitate less expensive program delivery; and the intention to proceed with
natural resource and other forms of economic development. While the rationales varied, all were
influenced by a view that Aboriginal Peoples were unsophisticated and incapable
of making their own choices. The manner
of relocating Aboriginal Peoples, without any meaningful consultation or
involvement or their free and informed consent, suggests that normal democratic
rights and processes did not apply.
The Royal
Commission on Aboriginal Peoples found that the affects of relocations are felt
today in significant ways. Many thousands
of Peoples were moved and their economic self-sufficiency was weakened or
destroyed and their adverse health conditions were made worse. As a result of
colonialism, Aboriginal Peoples were displaced physically. They were denied
access to their traditional territories and in many cases forced to move to new
locations selected for them by colonial authorities. They were also displaced socially and culturally. They were and
still are subject to intensive missionary activity. The establishment of
schools with compulsory education undermined their ability to pass on
traditional values to their children, imposed male-oriented Victorian values,
and attacked traditional activities such as significant dances and
ceremonies. They were displaced
economically and politically. They were
forced by colonial laws to abandon traditional governing structures, and
processes in favour of colonial style municipal institutions.
Assimilation
Policy
The experience
of colonialism by Aboriginal Peoples in Canada is not simply a historical fact;
it is a contemporary reality.
The reserve
system created under the Indian Act
was established not to respond to the needs of Aboriginal Peoples, but to
implement the federal government’s policy to isolate Aboriginal Peoples from
the general population. Various federal
policies, including those of enfranchisement, encouraged or forced Aboriginal
Peoples who left reserves to assimilate and leave behind their cultural
identities and practices. Another
reality of colonialism is the large-scale adoption of Aboriginal children in
Canada that began in the 1960's and, as with residential school, continues to
have an impact both on those who were adopted and the families that the
children were taken from. Findings from the Royal Commission on Aboriginal
Peoples dramatically illustrate the affects of cultural, social and economic
dislocation on Aboriginal offenders. In
a submission to the Royal Commission on Aboriginal Peoples from the Native
Brotherhood at the Prince Albert penitentiary, it was revealed that 95% of all
Aboriginal inmates had been adopted or placed in foster care at some point in
their lives.
Assimilation
policy is an expression of racism and genocide. It is racist to view Aboriginal
Peoples as inferior and it is genocide to forcibly remove Aboriginal Peoples
from their land and create obstacles to their communal development, thus
destroying a Peoples. While the
ultimate remedy for colonialism may be self-government, the existing system
must make distinct changes if it is not to perpetuate the legacy of
colonialism, including social and economic dislocation.
Justice
The government
of Canada is to be commended for its amendments to the Criminal Code with regard to sentencing, particularly the addition
of section 718.2(e) of the Criminal Code. The strength of this section was reinforced
with the decision of the Supreme Court of Canada in 1999 in R v. Gladue where the court directed
that it be interpreted in a purposive manner.
Despite the
amendments however, statistics on Aboriginal over-incarceration in 1999 showed
an increase over figures in 1995. This
increase occurred both in federal and provincial jails. The fact that the Gladue decision was not released until 1999 might mean that some
reduction in over-incarceration rates might be seen in the future - however it
is clear that the amendments on their own were not sufficient to halt the
increasing tide of over-representation.
The amendments
to the Code also included the
creation of a new type of sentence - the conditional sentence. With a conditional sentence, an offender is
given an incarceral sentence but allowed to serve that sentence in the
community. If the person violates one
or more of the conditions however, he or she can be returned to jail for the
remaining length of the conditional sentence.
Statistics to date indicate that while courts have embraced the use of
conditional sentences, the incarceration rate in Canada as a whole has not
decreased. This suggests that
conditional sentences are not being properly used and that people who should
not receive incarceral sentences at all are now receiving conditional
sentences. Statistics also reveal that
Aboriginal people are over-represented among those charged with violating the
provisions of their conditional sentence.
It is therefore very possible that the sentencing initiatives
contemplated by the amendments to the Criminal
Code, while appearing to be significant on paper, actually will contribute
to the increasing over-incarceration of Aboriginal people.
In the Gladue decision, the Supreme Court spoke
of the need for additional information being made available to a sentencing
judge to meaningfully address the provisions of s. 718.2(e). That information would include details of the
life circumstances of the offender as well as sentencing alternatives and
options that might be available in the community other than reliance simply on
incarceration. The Court was silent
however, on how that information would come before a sentencing judge - this
issue is very important in terms of making the promise of the section a
reality. ALST’s experience in Toronto is that subsequent to the Gladue decision, little changed in the
sentencing of Aboriginal offenders - judges were simply not getting the
information they needed to take into account the provisions of s. 718.2(e), if
they even know of the existence of the section.
Partly in
response to this problem, ALST, in conjunction with four judges from the Old
City Hall Court and others, developed the Gladue
(Aboriginal Persons) Court. The
Court - which currently sits two half-days a week, handles bail hearings and
sentencing of Aboriginal people charged with a wide range of offences. In order to provide the information
necessary to the Court, ALST has an employee whose sole responsibility is to
write the reports contemplated in the Gladue
decision. While the work of the
Court, and in particular the Gladue
court caseworker, have had a very positive impact on the sentencing of
Aboriginal people, funding for the position comes from an Aboriginal employment
and training fund and from ALST. The
federal government does not contribute directly to the position at all.
ARTICLE
5
In compliance with the fundamental
obligations laid down in article 2 of this Convention, States Parties undertake
to prohibit and to eliminate racial discrimination in all its forms and to
guarantee the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights:
(a) The right to equal treatment
before the tribunals and all other organs administering justice;
(b) The right to security of person
and protection by the State against violence or bodily harm, whether inflicted
by government officials or by any individual group or institution;
(c) Political rights, in particular
the right to participate in elections-to vote and to stand for election-on the
basis of universal and equal suffrage, to take part in the Government as well
as in the conduct of public affairs at any level and to have equal access to
public service;
(d) Other civil rights, in
particular:
(i) The right to freedom of movement
and residence within the border of the State;
(ii) The right to leave any country,
including one's own, and to return to one's country;
(iii) The right to nationality;
(iv) The right to marriage and
choice of spouse;
(v) The right to own property alone
as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of
thought, conscience and religion;
(viii) The right to freedom of
opinion and expression;
(ix) The right to freedom of
peaceful assembly and association;
(e) Economic, social and cultural
rights, in particular:
(i) The rights to work, to free
choice of employment, to just and favourable conditions of work, to protection
against unemployment, to equal pay for equal work, to just and favourable
remuneration;
(ii) The right to form and join
trade unions;
(iii) The right to housing;
(iv) The right to public health,
medical care, social security and social services;
(v) The right to education and
training;
(vi) The right to equal
participation in cultural activities;
(f) The right of access to any place
or service intended for use by the general public, such as transport hotels,
restaurants, cafes, theatres and parks.
Article 5(A) Right To Equal Treatment Before The
Tribunals And All Other Organs Administering Justice:
Courts
and Tribunals
In Canada
Aboriginal Peoples were prohibited by statute from hiring lawyers to assist
them with initiating any legal claim up until 1951. As such, only four decades have passed since Aboriginal Peoples
have had any access to tribunals and other organs administering justice.
The access to
courts and tribunals that has occurred has been limited by various factors. One
such factor is that Aboriginal people have little or no trust in the foreign
justice systems in place. The mistrust
is well founded given the history of Aboriginal Peoples and the courts. The Federal and Provincial governments have
done little in the area of civil justice reform to make courts and tribunals
accessible to Aboriginal Peoples.
ALST was
created as the result of a study that showed that Aboriginal Peoples were not
seeking assistance from Ontario’s legal aid clinics even though they had many
legal needs. The Report concluded that
a one-stop shop for Aboriginal Peoples was required: a clinic that could
provide legal assistance in all areas of law including criminal and family
law. The Ontario government funds the
ALST Legal Clinic, however, does not allow the clinic to practice family or
criminal law. The clinic, year after
year, has requested additional funds to expand its services in all areas. These requests have been refused. As a result, Aboriginal Peoples in Toronto
are left un-represented in many areas of law and/or have no access to civil
justice. The Federal government
provides no funding to the Legal Clinic.
Aside from the
issue that neither the Federal nor Provincial governments have met the legal
service needs of Aboriginal Peoples, the process and procedures of various
tribunals in and of themselves prohibit Aboriginal Peoples effective
participation.
One example of a barrier for Aboriginal Peoples in courts
and tribunals, and an example of unequal treatment, relates to the process of
swearing in or oath affirming. Many
Aboriginal people because of their history and life experiences do not wish to
swear on the Bible nor do they wish to make an affirmation. Some Aboriginal
people may wish to make an affirmation while holding an Eagle Feather, which
holds great cultural significance and responsibilities to the Aboriginal person
so affirming. While some Aboriginal
clients may wish to make an affirmation holding the Eagle Feather, others may
wish to “smudge” themselves and the environment in which the examination is
being conducted. The “smudging”
ceremony is a cleansing ceremony and represents an affirmation of honesty,
truth, respect and responsibility.
Unfortunately, Canadian and provincial courts and tribunals have yet to
fully accept an Aboriginal person’s right to affirm using feathers, or to smudge,
thereby effectively discriminating against ceremonial spiritual and judicial
practices.
Article 5(B) The Right To Security Of The Person And
Protection By The State Against Violence Or Bodily Harm, Whether Inflicted By
Government Officials Or By Individual Group Or Institution...
Police
Violence Against Aboriginal Peoples
Aboriginal
people continue to be victims of excessive use of force and violence by
police. Examples of police violence
against Aboriginal Peoples are found across Canada. There are several recent high-profile cases involving police
violence. One such case deals with the
recent inquiry into the practice of Saskatoon City Police in taking Aboriginal
people from the city into the countryside at night, dumping them in a rural
area in severe cold weather conditions.
Another very important case here in Ontario is the police killing of Aboriginal
activist, Dudley George, who died at the hands of the Ontario Provincial Police
while peacefully defending Aboriginal lands.
ALST has filed
numerous complaints against the Toronto police force alleging police
misconduct, including illegal strip searches, assaults, and wrongful arrests. The Police Services
Act, a provincial legislation, governs police officers in Toronto. The Act
contains provisions dealing with police misconduct, criminal activity and
public complaints. However, the system
to deal with police misconduct has failed, largely due to the fact that under
the system it is the police who investigate themselves. Officers break the law and are not held
responsible for their actions, either criminally or professionally. Officers know that they are free to do as
they please and that they will not be punished for their crimes. There is a code of silence over police
brutality in that those men and women who choose to dishonour their oath know that their fellow officers will protect
them. Every police complaint that ALST has filed since its inception has been
found to be “unsubstantiated” by the Chief of Police. Officers support each other’s stories, sometimes, word for word
in their notebooks. Other times, they
just refuse to respond to the complaint, citing their section 7 Charter right to remain silent.
Officers break the law and remain employed, continue to be
armed, and are protected by their colleagues.
Police officers simply will not charge police officers. An example of
the police abuse of power is with respect to their authority to conduct strip
searches. The Toronto Police Services
has implemented a policy to strip search all persons detained at the police
station, regardless of their charge, age, or condition. As such, people are being strip searched for
drunk driving, and for minor provincial offences such as public mischief and
loitering. The Supreme Court of Canada
in the case of Ian Vincent Golden v. Her
Majesty the Queen [2001] held that a blanket policy to strip-search was
unconstitutional and a breach of a persons section 8 Charter right to be secure against unreasonable search or seizure.
Following the release of the decision, Toronto police continue to strip search
each and every individual that they detain at the police station, regardless of
what the Supreme Court of Canada has held.
Police clearly are above the law in the Province of Ontario
and the Ontario government will continue to be in breach of this Article until
they reform the Police Services Act
and remove police oversight from the hands of the police.
A further area where both Ontario and Canada are in breach
of this Article is with respect to incarcerated Aboriginal people. A review of the number of deaths of
Aboriginal people while in custody is alarmingly high and disproportionate as
compared to the non-Aboriginal inmate
population. A number of in custody
deaths have suspicious circumstances.
ALST and various other Aboriginal groups and organizations will be
pressuring the Federal government to call an inquiry into the rate of
Aboriginal deaths in custody.
Article 5(c) Political Rights
Inherent
Right To Self-Government and Urban Aboriginal Peoples
In its Report,
the Government of Canada asserts that it is acting on the premise that the
inherent right of self-government is an existing Aboriginal right within
section 35 of the Constitution Act, 1982, and that negotiations concerning
arrangements to give effect to the inherent right of Aboriginal self-government
are ongoing. However, it is submitted
that very little progress has been made with respect to Aboriginal
self-government. Most First Nations
communities continue to be subject to a system of band governance imposed on
reserve communities by provisions of the Federal Indian Act. Other
non-reserve Aboriginal communities receive little or no government support
towards meaningful self-government initiatives. Further, as recognized by the RCAP Report, there is a pressing
need to address governance issues in Canada's urban centres, particularly as
the proportion of Aboriginal Peoples living off reserve and in urban centres
continues to increase.
With regard to
Aboriginal Peoples registered under the Indian
Act alone, RCAP has projected that the numbers are expected to increase
form the 1991 figure of 438,000 to 665,000 by 2016. RCAP further found that the urban Aboriginal population increased
by 55% between 1981 and 1991 and has estimated a 43% rate of growth by the year
2016.
Despite the
increase in the population of Aboriginal Peoples living off-reserve, prior to
the recent decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs),
[1999] 2 S.C.R. 203, section 77(1) of the Indian
Act required that First Nations people reside on their reserve in order to
participate in the governance of their Band.
In Corbiere, the Supreme Court
declared section 77(1) unconstitutional, confirming that the section
discriminated by excluding off-reserve band members, contrary to the equality
provision in section 15 of the Charter of
Rights and Freedoms. The Court
noted that denying off-reserve Band members the right to vote and participate
in their band's governance perpetuated the historic disadvantage of off-reserve
members, treated them as less worthy, and denied them substantive
equality.
In the Corbiere case, the Government of Canada
argued that the purpose of restricting the vote to those who are
"ordinarily resident on the reserve" was to restrict the vote to
those who have "the closest connection to the reserve community and who
are "governed" by band council decisions." However, the exclusion of non-resident Band
members was based on the irrational assumption that Aboriginal people living
off of their reserve have no interest in or connection to their First
Nation. Section 77(1) discounted the
very real connection and interest that non-resident Aboriginal people have
towards their Band and punished Aboriginal people for leaving their
reserve. The residency requirement was
based on an outdated mandate that confined Aboriginal people to reserves and
forced them to assimilate if they left their reserve.
Numerous First
Nation people now live off of their reserves as previously noted. This is in large part due to the historic
disenfranchisement of Aboriginal Peoples through the operation of previous
Indian Acts. Also, many people continue
to leave their reserves to pursue education and employment opportunities and
reside in other communities. Despite
this, as noted by RCAP, "Territory, land and home have always been
important to Aboriginal people. Those
living in urban Canada are no different."
Accordingly, there is a pressing need for all levels of Canadian
governments to recognize the inherent right of self-determination and
self-government of all Aboriginal peoples of Canada, including First Nations,
Inuit and Métis, wherever they reside.
RCAP has
recognized that self-government in urban areas requires a different approach
than the land-based models most often associated with Aboriginal
self-government. RCAP considers three
models for urban Aboriginal self-government, including:
1. Reforms
to existing public institutions to accommodate urban Aboriginal Peoples'
aspirations for greater participation in governance where thy live and work;
2. An
urban Aboriginal community of interest approach, involving members with diverse
Aboriginal origins, and
3. Approaches
premised on the Aboriginal nation.
It is submitted
that, whatever approach is taken to urban Aboriginal self-government, the
Federal Government must assume some degree of responsibility for Aboriginal
People in urban areas and not continue to draw lines separating Aboriginal
people on reserves and Aboriginal people off-reserves and in urban areas in a
discriminatory manner.
First
Nations Governance Act – Re-Writing the Indian Act
The First Nations Governance Act (Bill C-61)
was introduced to Parliament in June 2002
with an inadequate consultation process that reached only a small
proportion of the Aboriginal Peoples of Canada. Many national Aboriginal organizations boycotted the
consultations due to the inadequate process.
It is our position that, despite the representations made by the
Canadian Government to the contrary, that the Bill does not truly reflect the
aspirations of Aboriginal Peoples in Canada.
Furthermore, there is some question as to whether the proposed Act,
which has effects on the Aboriginal and Treaty rights enshrined in s.35(1) of
the Constitution Act, 1982 is in
keeping with the duty to consult where s.35(1) rights will be affected by
governments, as laid out in the jurisprudence and most recently articulated by
the Supreme Court of Canada in the case of Delgamuukw
v. British Columbia [1997] 3
S.C.R. 1010.
The
Anti-Terrorist Act
The Anti-Terrorist Act S.C. 2001 c.41 was
passed in Canada in the wake of the September 11, 2001 terrorist attacks in the
United States. The Act is intended to
provide stronger measures to protect Canadians from terrorist forces. However, the Act threatens the security of
Canadians themselves by making them subject to potential infringements of their
rights to freedom of expression, freedom from unreasonable search and seizure,
and to security of the person, as against the Government of Canada. Given the already existing of reality for Aboriginal
Peoples who we submit are already over-policed within Canada, this legislation
will impact detrimentally on Aboriginal Peoples across Canada.
In part, the
Act defines terrorism and criminalizes activity or “conspiracy” to commit such
activity that, for political purposes, has the effect of causing damage to
property or stopping essential services with the effect of endangering life or
causing bodily harm. It also
criminalizes the financing of such activity, and provides for the seizure of
property of suspected terrorist groups as well as the keeping of a registry of
suspected terrorists.
It is our
position that this broad characterization of terrorist activity could result in
the criminalization of political protest by Aboriginal Peoples against the
federal government’s policies, or against the federal government’s
participation in the unlawful exploitation of Aboriginal lands and
resources. Certainly, political
protests in the past by Aboriginal Peoples undertaken to protect their lands
and resources fall within this definition.
This is an infringement of many of the rights of Aboriginal Peoples as
guaranteed by the Charter of Rights and Freedoms, and this Convention, and
would effectively result in the criminalization of Aboriginal Peoples in their
attempts to enforce Aboriginal and Treaty rights as recognized under s.35(1) of
the Constitution Act, 1982. The Act could also result in the seizure of
Aboriginal property as well as the naming of Aboriginal political leaders as a
result of this definition of terrorism.
Article
5(d)(i) Freedom of Movement
The Canadian government of Canada has breached this Article by limiting
the mobility of Aboriginal Peoples.
Aboriginal people are not free to move from one territory to the other,
from one province to the other, from one Band to the other, as upon doing so
they will relinquish their Aboriginal rights, treaty rights and rights that may
flow from the Indian Act. An
individual’s rights do not move with the person. For example, Indians residing on a reserve have certain rights
that Indians living off reserve do not enjoy, such as tax exemption. If an Indian wishes to maintain their tax
exemption status, fishing and hunting rights, that person must remain a
resident of their Band or within their treaty area. Such restrictions limit one’s freedom of movement.
Article
5(d)(iv) The Right To Marriage And Choice Of Spouse
As noted above,
the Indian Act has two categories of
Indians, section 6(1) Indians and section 6(2) Indians. Aboriginal people that are registered
pursuant to section 6(2) of the Indian
Act cannot pass on their status as an Indian to their offspring unless the
both parents are registered as Indians under the Act. This second-generation cut-off rule interferes with a status
Indian’s choice of life partners. If
one wants their children to be considered Indian, which in turn allows the
child to reside on reserve, inherit land, and enjoy other rights that arise
from being Aboriginal, one has to procreate with another Indian. Until this
second generation cut off rule is eliminated, Canada will be in breach of this
Article.
Article
5(d)(v) The Right To Own
Property Alone As Well As In Association With Others
The Indian Act does not allow a person
registered as an Indian to own property on reserve alone. Reserve lands are held by Her Majesty the
Queen. Indians are only permitted to have possession of the land. Since lands are held by Her Majesty the
Queen and not the individual, the individual is not able to mortgage the land
or have the same enjoyment of their lands as non-Aboriginal people do.
A further
breach of this Article is with respect to the division of property rules, or
lack of, pursuant to the Indian Act
on the break up of a marriage between Indian men and women. The Indian Act does legislate how property
is to be divided when a marriage is terminated and it excludes provincial laws
from applying. As such, Aboriginal
women are often left without any rights to the land, or home, that they shared
with their husbands. A Charter challenge has been launched
regarding this issue, and the Canadian government is vigorously defending the
provisions of the Indian Act that are
being challenged.
Article
5(d)(vi) The Right To Inherit
The Indian Act limits the right to
inherit. A person is only permitted to
inherit the possession of reserve property if they are registered as an Indian
and a Member of the Band to which the property is associated with. As a result of the second-generation cut-off
rule, many children will not be able to inherit lands from their parents.
Article
5(d)(vii) The Right To Freedom Of Thought, Conscience And Religion
Please refer to
other discussions regarding Residential Schools and assimilation policies.
Article 5(d)(ix) The Right To Freedom Of Peaceful
Assembly And Association
The Canadian Charter of Rights and Freedoms,
pursuant to section 2(d) guarantees the freedom of association, as does the
Covenant. This freedom however is not
available to many Aboriginal people as the result of the membership provisions
of the Indian Act. As discussed above,
the Government of Canada defines who is an Indian, and essentially controls
Band membership. By limiting its funding to First Nations on a per registered
Indian basis, it is denying Aboriginal people the right to associate with their
First Nation. If First Nations are not
provided with extra land bases or resources, they will be unlikely to accept
new members into their communities unless these new members are recognised by
the government to be a member, for to do otherwise would mean increasing the Band
population without an increase in resources to serve the members. The second-generation cut-off rule acts as a
bar for many persons to associate with their First Nation.
A further
problem in the Aboriginal community is with regard to the large number of persons
that were apprehended by the government and adopted into non-Aboriginal
families. The Ontario Child and Family Services Act prevents disclosure of an
adoptee's birth records, save and except for certain rare circumstances. Ontario has the most restrictive
non-disclosure rules in Canada. As a
result, Ontario Aboriginal adoptees are often denied the right to associate
with their First Nations because they are unable to determine which First
Nation they are entitled to be members of.
Article
5(e)(iii) The Right To Housing
The migration
of Aboriginal Peoples into the City of Toronto has increased significantly over
the last ten years. As noted earlier,
RCAP estimated that the Aboriginal population in urban areas in Canada could be
expected to grow by 43 percent, reaching almost 457,000 by the year 2016. Many of those migrating to the cities end up
living in Toronto.
It has been
estimated by the Toronto Report of the Mayor’s Homelessness Action Task Force
that there are, in any one-year, approximately 3,750 Aboriginal people homeless
in the streets of Toronto, and another 8,000 at risk of becoming homeless. The Task force noted that the Toronto
Aboriginal population is over-represented in the homeless population compared
to the general population.
One of the
causes of the high level of homelessness of Aboriginal people is the federal
government’s offloading of its responsibilities for Aboriginal Peoples to the
provinces and municipalities.
The Federal
Department of Indian and Northern Affairs in the 1950’s and 1960’s operated a
program to assist Aboriginal people migrate to urban areas. Thereafter it created Aboriginal controlled
housing corporations that were administered by Canada Mortgage and Housing
Corporation(CMHC). CMHC in turn created the Urban Native Housing Program. In 1986 CMHC entered into cost sharing
agreements with the Provinces. In 1993,
CMHC announced that no new social off-reserve housing allocations would be
made. As such, the increase of
Aboriginal people into the City has not been met with an increase in housing
assistance from the federal government.
A further
problem that exists for Urban Aboriginal Peoples regarding housing is that
landlords continue to discriminate against Aboriginal people. Although the Ontario Human Rights Code prohibits such discrimination, the Ontario Human
Rights Commission, has been and continues to be, inaccessible to many
Aboriginal complainants. Access to many social services has been an issue for
Aboriginal people as the result of the services being designed and implemented
without input from Aboriginal people.
Article
5(e)(vi) The Right To Equal Participation In Cultural Activities
The Royal
Commission on Aboriginal Peoples recommended that Aboriginal Cultural identity
be supported and enhanced in urban areas by:
a. Aboriginal,
municipal, territorial, provincial and federal governments initiating programs
to increase opportunities to promote Aboriginal culture in urban communities
including means to increase access to Aboriginal elders;
b. municipal
governments and institutions and Aboriginal elders cooperating to find ways of
facilitating Aboriginal practices in the urban environment; and,
c. all governments
cooperate to set aside land in urban areas dedicated to Aboriginal culture and
spiritual needs.
None of these
recommendations, made in 1996, have been implemented. As a result, Aboriginal People in urban areas are not provided
the same level of participation to their culture as non-Aboriginal people.
The inability
to participate in cultural activities is greatest for those Aboriginal people
that have been incarcerated in a Provincial or Federal institution. Prisoners are denied access to elders, and
to sacred medicines. New policies must be instituted to permit Aboriginal
prisoners the right to access their culture while incarcerated.
Residential
Schools
The Indian Act of 1876 gave the government
sole authority over “Indians and lands reserved for Indians”. To Minister of
Indian Affairs was given full, total and final control over the lives of all
Indians as defined by the Act – this situation continues to this day. By virtue
of this authority the Canadian Government then set out to develop residential
schools.
The Report of
the Royal Commission on Aboriginal Peoples addressed issues relating to
residential schools in depth. In its
report at Volume 1, Chapter 10 (p.341) the Report states, “Prior to the
mid-1800s, the government attempted to educate adult Indians. They were
unsuccessful in their efforts because, the adult Indians already had their
beliefs, values customs and practices established; therefore, were too hard to
influence. Consequently, the residential school system began its full practice
in the mid 1800s “with a three part vision of education in the service of
assimilation. It included, first the justification for removing children from
their communities and disrupting Aboriginal families; second, a precise
pedagogy for re-socializing children in the schools; and third, schemes for
integrating graduate into the non-Aboriginal world”. It was legislated in its
entirety in the Residential Schools Act of
1894. The residential school era lasted for a century. The last residential school, in Canada,
closed in 1988.
Through the
residential school process Aboriginal Peoples were removed not only from their
community but also from their regional and provincial territories. Aboriginal
Peoples, being of a nomadic culture, suffered enormously. Often children were
out assisting their families with hunting, trapping and fishing and upon their
return as a family, were abducted by Indians agents or their designates and
sent to the residential and boarding schools.
The children did not have any personal awareness of where they were
going, due to their inability to speak, read or write a foreign language. English or French were the two languages
used for giving notice and in apprehension.
Once in the
schools the children were forbidden to speak to their brothers, sisters or
fellow students. “E.F Wilson informed the department (of Indian Affairs) that
at Shingwauk school, ‘We make a point of
insisting on the boys talking English, as, for their advancement in
civilization, this is, of all things the most important necessary’ (RCAP 1996 -
p. 341).” Children throughout the
history of the system were beaten for speaking their language.
The story of
Tom Wassaykeesic is like the stories of many other residential school children,
as told in Residential Schools: The
Stolen Years 1993, pp. 142-143:
I think it was
about 1966, after I had completed grade two that I was sent to residential
school. I, along with others, we were put on the nearest railway station at
Savant Lake (Ontario). There, we were put on the train to Sioux Look Out where
officials from the Department of Indian Affairs had gathered children from all
points north. We continued on [south
several hundred miles (emphasis added)]
to Sault Ste. Marie, Ontario…to the Shingwauk Hall residential school. Once
inside the school the first step of being ‘processed’ was getting our hair cut,
which for some kids was an ordeal. The staff then explained the routine and the
rules: when to eat, sleep, shower, and above
all to never speak in Ojibwa (emphasis added), if that was your first
language. We ate in a large dining hall, the girls on one side and the boys on
the other. Sometimes I could see my Aunt, but I wasn’t allowed to talk to her.
In many ways Shingwauk Hall was like a prison. The attempt at assimilation
largely failed but the legacy remains. It is a legacy of alcoholism, drug
abuse, suicides, violence, family breakdowns, prisons and psychiatric
hospitals. The list is endless. Many generations of Natives went through the
residential school system and the effects are still with us”.
The intent of
the Residential Schools Act was
deliberate racial discrimination and a crime against all Aboriginal Peoples for
several generations. To date there has been no recourse against governmental
Ministers of Indian Affairs considered; no government officials have been
charged, convicted or imprisoned relating to any crimes against the children
that took place while they were in authority.
The present day
Prime Minister Jean Chretien was a Minister of Indian Affairs who authored,
with the Minister of Justice at the time (now deceased former Prime Minister
Pierre Elliot Trudeau), the White Paper of 1969. The White Paper of 1969 was
intended to finally eradicate the distinct identities of Aboriginal Peoples. It
was to be the final Act to assimilate Aboriginal Peoples into Euro-Canadian
culture. In bringing forth this Bill, both of these architects acted in full
awareness of their actions. Fortunate for all of Canada and Aboriginal Peoples,
the Bill did not pass due to the chorus of Aboriginal voices that protested the
document. While this particular Bill did not pass, the system of absolute
authority over “Indians and land reserved for Indians” remains in effect to
this day.
In Reconstruction of Being: Reconstructing
Native Womanhood (Anderson: 2000) at pg. 5, we are reminded by our teachers
and Elders that, “(W)e have much to
celebrate. The fact is we still exist -- that we are living and working within
our communities is in and of itself an achievement. We have Elders who will
guide us, and our children. We also have to be aware that we carry the
struggles of the past five centuries into this new one. I have heard it said,
“it took us five hundred years to get to this situation, we are not going to
get out of it in fifty!” Poverty and violence are some of the heavy burdens
Native women and our/ their families
(emphasis added) are still carrying. Over half of the women I interviewed
indicated that they endured relationships where they were physically,
emotionally or sexually abused. Their needs have been considered secondary in
partnership with Native men as well as white men.” This is a common and
destructive experience in many of our families’ communities and in society in
general, since many of our people have migrated to the larger cities and towns.
This is the situation with which ALST attempts to meet the needs of the
community.
A community
member who works with men in the prison system in the City of Toronto states
that, “Of the population of men she works with, approximately 80% of the men
are children of residential school survivors. The other 20 % are children who
were adopted and or fostered to non-Aboriginal people who had little or no
interest or familiarity in the Aboriginal heritage or ancestry of the their
wards. These statistics are supported
in the Native Child and Family Services of Toronto’s records for the Men’s
Program at the Metro Toronto East Detention Centre.
Kenn Richard,
Executive Director of Native Child and Family Services of Toronto writes that,
“As Justice Kimelman did in 1985, presenters at our hearings linked current
child welfare issues with the history of interventions by non-Aboriginal
government in the affairs of Aboriginal families of our clients - probably 90%
of them - are, in fact, victims themselves of the child welfare system. “Most
of our clients are young, sole support mothers who very often were removed as
children themselves. So we are dealing with perhaps the end product of the
child welfare system that was apparent in the “Sixties Scoop”(emphasis added).
Actually the sixties scoop lasted well into the 70’s and we are seeing the
reality of that in our case loads…We take the approach in our agency that it is
time to break that cycle. The other interesting note is that while the mother
may have been in foster dare, the grandmother - I think we all know where she
was. She was in residential school. So we are into a third generation”.
The following
excerpts are from statements by residential school students regarding their
experiences. Although these people are
from other provinces the stories remain the same in Ontario. Residential
schools existed all across the country, from north to south and east to west,
as well as in the United States.
·
Jeannie Dick of Canim Lake, BC 08/03/93 tells us, “I stayed in that
residential school for 10 years. I hurt there. There was no love there. There
was no caring there, nobody to hug you when you cried; all they did was slap
you over;” Don’t you cry! You’re not supposed to cry”. Whipped me when I talked
to my brother. That’s my brother for God’s sake. We were not supposed to talk
to these people”.
·
Wilson Okeyma of Hobema, AB,10/06/94 reports, “I was one of the
fortunate ones in the residential school, but the boy who slept next to me
wasn’t very fortunate. I saw him being sexually abused. As a result, he died
violently. He couldn’t handle it when he became of age 8”.
Elder and
Spiritual Leader and Traditional Teacher Art Solomon (1913-1997) tells us some
of his experience as shared while teaching in the Native Studies Department at
Laurentian University, Sudbury, Ontario: “You were just a kid doing a man’s
work. You know, we had to stand by that blacksmith fire well past what was
reasonable or tolerable for children. We were kids, just like little Indian
slaves. There was no one to comfort you or show you any care. For God’s sake, I
couldn’t even see my sisters because they were all together, in another
building. And, we, my sisters and brother were separated by the road between
us. We could only go home once a year, maybe at Christmas, if we were lucky
enough to have some one who was able to come. My Mother had nine of us and she
sure as hell couldn’t leave her babies for us bigger ones. There was no money
in those days. It was in the time of the First World War. My father couldn’t
come because he was a lumberjack working in the bush. That was the season he
had to do the cutting in. During the summer, he was a fishing guide, a deep sea
fisher man and a sailor who would go by train to Minneapolis and Detroit to
pick up the boats of the wealthy Americans who were coming to Killarney, on the
Georgian Bay (of Lake Huron). There was lots of fish in the big waters (Lake
Ontario and Lake Superior). It was a really hard time, those days. And that
stuff stays with you. You learned it in your early childhood. It was really all
you knew; the earlier stuff you forgot out of fear. Then we are left with
trying how to figure it out on our own. It was very hard on my mother. We were
a big help to her when we came home. But all that changed when they came back
in August to take us away. That’s all I have to say about it”.
At this point
in time, here in Ontario, “Residential School Survivors” are currently going
through the discovery process in the courts relating to their lawsuits against
their abusers. The issue of greatest magnitude is the fact that the legal
process prohibits a non-litigant from supporting and/or assisting the victim
throughout the discovery process. For the most part the lawyers involved in
these lawsuits are non-Aboriginal with little or no cultural competency or
cultural sensitivity. This situation takes the residential school
victim/survivor into some perilous territory. Once again without anyone to be
there and show any care, the victim is at risk of being, at the very least,
re-traumatized, and at the very worst, is a potential candidate for committing
suicide through drugs, alcohol and/or by any other means at their disposal
i.e., drunk driving, night swimming or anything else they think of. We must
have a judicial system that is tempered with mercy the same way the Creator
treats us, with mercy. The federal and
provincial governments have not assured a legal process that takes into
consideration the needs of Aboriginal Peoples who seek justice.
With
residential schools there are more than three generations of Aboriginal Peoples
affected at this time. The future generations will have a tremendous amount to
deal with. They have to unlearn the destructive and abusive parenting skills
that the previous generation(s) learned in residential schools. Today we need our Elders, Faith-keepers,
Spiritual Leaders, Traditional Teachers, storytellers, ceremonialists and other
seniors to do their own healing so that we have role models to follow. We need to develop a new kind of
relationship with the white visitors who have come here to live. The closing
words of Elder Art Solomon at a conference at University of Sudbury in 1992
were:
“We listened to
three women yesterday. What they had to say tells me that spiritual rebirth is
happening; spiritual rebirth is absolutely essential. The imperative for us
now, as Native people, is to heal our communities, and heal our nations,
because we are the final teachers in this sacred land. We have to teach how to
live in harmony with each other and with the whole creation. People will have
to put down their greed and arrogance before they can hear what we are saying.
I am not sure how many will do that. So we are in the process of healing
ourselves, healing our communities, and healing our nations”.
We are also
told by Elder and Wampum Belt keeper William Commanda, Algonquian Nation,
speaking at the Cry of the Eagle
Conference 1993, held on the Six Nations of the Grand River Territory, “ we
need these old ways to know how to get along in the new age or we won’t
survive”.
As the Royal
Commission on Aboriginal Peoples Report states in Volume 5, Chapter 4, p. 118,
“clearly, then, understanding the concept of negotiation is central to
understanding and implementing many of the recommendations in this report”.
In conclusion
on the issue of residential schooling, we ask as that the newcomers to this
land and their heirs come to us, listen to us, and allow us to begin a new
relationship based on total respect of our Culture -- our teachings, languages,
practices, values, norms and mores, ceremonies, sacred and secular items, land
and the land they live on and all other elements of our culture un-stated --
relating to our sacred Mother the Earth. Only through these relationships will
we be able to heal the pain of residential schools and the host of other
atrocities committed against us. The healing must begin.
We believe that
the International Convention speaks to these relationships that must be based
on respect for Aboriginal Peoples. We
submit that to date both Canada and the provinces have failed to honour their
commitments to enter into respectful relationships with Aboriginal Peoples in
Canada.
Article
5(f) The Right Of Access To Any Place Or Service Intended For Use By The
General Public, Such As Transport Hotels, Restaurants, Cafes, Theatres And
Parks
For many
Aboriginal Peoples living in Toronto, access to public places is limited. Aboriginal Peoples are often the target of
police and security guards in shopping centres, public parks, restaurants and
other public areas. Although the
Canadian Human Rights Act and the
Ontario Human Rights Code both
prohibit discrimination in this regard, the human rights commissions
responsible for the implementation of these Acts have done little in the area
of enforcement for Aboriginal Peoples.
Most complaints made by Aboriginal Peoples to the human rights
commissions, whether federal or provincial, do not proceed to a hearing.
In Toronto, the
police service is known to conduct “sweeps” of Toronto during the summer
months, when tourism is at its peak.
Such sweeps result in Aboriginal homeless people being moved from parks
or other public places such as street corners.
The “sweeps” are orchestrated to clean up the streets and to hide the
blunders of the City. People are often
arrested for minor provincial offences so that they can be removed from the
view of the public. Such “sweeping” is
currently occurring in preparation of World Youth Day and the Pope’s visit to
Toronto scheduled for late July 2002. Unfortunately, in Ontario and the rest of
Canada, the image of a “criminal” is that of an Aboriginal person. Until Canada
and the Ontario government can improve their human rights complaint procedures
as they relate to Aboriginal Peoples, this Article of the Convention will not
be adhered to.
ARTICLE
6
States Parties shall assure to
everyone within their jurisdiction effective protection and remedies, through
the competent national tribunals and other State institutions, against any acts
of racial discrimination which violate his human rights and fundamental
freedoms contrary to this Convention, as well as the right to seek from such
tribunals just and adequate reparation or satisfaction for any damage suffered
as a result of such discrimination.
Canadian
and Ontario Human Rights Commissions
Much has already been submitted on the ineffectiveness of both the
federal and provincial human rights commissions to combat racism, provide
adequate remedies, or promote racial tolerance. The commissions and the legislation they operate under remain
largely inaccessible to Aboriginal Peoples in Canada.
ARTICLE
7
States Parties undertake to adopt
immediate and effective measures, particularly in the fields of teaching,
education, culture and information, with a view to combating prejudices which
lead to racial discrimination and to promoting understanding, tolerance and
friendship among nations and racial or ethnical groups, as well as to
propagating the purposes and principles of the Charter of the United Nations,
the Universal Declaration of Human Rights, the United Nations Declaration on
the Elimination of All Forms of Racial Discrimination, and this Convention.
Education
So long as the
concerns raised above regarding Canada’s treatment of Aboriginal Peoples, its
legislative and policy agenda to continue to control and assimilate, and its
failure to implement the recommendations of the Royal Commission on Aboriginal
Peoples, any efforts of the government to invest in the fields of teaching,
education, culture and information will continue to be undermined.
Astonishingly,
both the federal and provincial governments have very little to report to this
Committee in regards to efforts made under Article 7 that specifically address
the extreme racism faced by Aboriginal Peoples in Canada. Unfortunately, it is still quite common to
hear from school aged children in Canada that Aboriginal Peoples were simple
and savage folk who could not appreciate the great resources of this land and
were conquered by the European colonizers.
Of course, nothing could be farther from the truth. Curriculum continues to misrepresent
Aboriginal Peoples and perpetuate stereotypes of Aboriginal Peoples, ensuring
new generations of Canadians with little accurate knowledge of Aboriginal
Peoples and fuelling the racism which is alive and well within Canada.
Conclusion
When important
decisions are made in the Aboriginal community we are often reminded by the
Elders that we must think seven generations ahead. As Oren Lyons - Faithkeeper of the Onondoga Nation has said:
In our ways of life, in our
government, with every decision we make, we always keep in mind, the seventh
generation to come. It’s our job to see
that the Peoples coming ahead, the generations still unborn have a world no
worse than ours - hopefully better.
When we walk on Mother Earth we always plant our feet carefully because
we know the faces of our future generations are looking up at us from beneath
the ground. We never forget them.
As Aboriginal
peoples, we realize that it is difficult for some Peoples to think ten or
fifteen years into the future, much less seven generations. The sad reality of racial discrimination,
can be at least partially understood by the fact that historically
decision-makers in Canada seldom looked at the impact of their decisions on
Aboriginal Peoples.
As we have
written elsewhere, our crisis may be expressed in the element of T.I.M.E.,
which can be used as an acronym to relate the importance for our need for
growth and change. [T.I.M.E.] The tools that are needed to grow and change are Trusting one another; Inspiring a new and different identity
and moving away from the false concept of race; Moving in a positive direction; and Embracing one another as we struggle together to make our world a
better place to live.
In order to
achieve full and equal participation of Aboriginal Peoples in Canada the onus
rests on the shoulders of the Canadian government to create a climate of trust.
Inherent within trust, is the responsibility of reciprocity. We need to develop and nurture reciprocal
relationships that are founded on trust.
From an Aboriginal perspective, a history of Canadian deception, theft,
and betrayal has resulted in a collective and individual attitude of distrust
towards mainstream society. This
distrust is translated into a profound reluctance to enter the Canadian social
and economic mainstream. Unless the
Canadian government takes responsibility for its laws, policies, and actions,
and is accountable for the injustice inflicted on Aboriginal Peoples, honour
and implement treaties and agreements, remove barriers and prevent exclusion,
provide for equitable redistribution of land and resources and provide adequate
constitutional guarantees of justice in the future, Aboriginal Peoples in
Canada will remain distrustful and apprehensive about participating in the
mainstream society.
Inspiring new
and different identities that are not “race” based but are based on mutual
respect, dignity, humanity and reciprocal relationships is essential. It is imperative that throughout this
process, the concept of “race” and its relationship to colonialism be
eliminated. The International
Convention on the Elimination of all Forms of Racial Discrimination, 1969 was
ratified by Canada. The Convention affirmed that any doctrine of superiority
based on racial differentiation is scientifically false, morally condemnable,
social unjust and dangerous. It
affirmed that there is no justification for racial discrimination, in theory or
in practice. In order to eliminate
racism, the false notion of “race” must also be eliminated.
Movement toward
working together to further the decolonisation of Aboriginal Peoples is
critical. Decolonisation involves, in
part, the replacement of present Euro-Canadian conventional systems with
re-integrated aspects of traditional systems displaced during
colonization. While it may not be
possible to restore our traditional systems to their original strength,
nonetheless, all strategies must always reflect and be cognizant of our history
in order to protect our traditional systems in ways that are consistent with
honoured traditions.
Embracing each
other as brother and sister nations in order that we may create a better world
for our children and at least seven generations in the future is essential. It
is important for past wrongs and painful experiences to be addressed.
Throughout this
process, we need to take T.I.M.E.
According to an Elder’s teaching, we
must be sure that we use our time wisely to ensure that we leave a path for
future generations to come. If we move
too quickly, we may create dust and the generations to follow may become
lost. We must be absolutely conscious
of the value of life we are dealing with (Elder’s teaching).