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“What Do Those Indians Want, Anyway?”: Some Legal Issues Underlying Idle No More (Update)

The arrival of a group of Cree youth from Whapmagoostui, the northernmost Cree village on Hudson Bay at the end of a 1,500 km walk (and the many friends they picked up along the way) after a two month trek through the northern bush should remind us that the spirit of Idle No More (INM) has not died. It has simply gone off the grid. The young people left Whapmagoostui (aka Great Whale) on January 16 and were expected in Ottawa on March 25. The first long leg of their journey – from Whapmagoostui to Chisassibi was on snowshoes and camping out at minus 40-50 Celsius. They were walking to keep the message of INM and Chief Teresa Spence alive in the minds of interested and caring people.

I would be surprised if there were any other protest movement in Canadian history that arose so largely from legal issues as Idle No More (INM), and from the First Nations political movements as a whole. I am using “legal” in a fairly broad sense and include objections to current bills and proposed legislation. I do that because in my many years working with First Nations political organizations or watching them from a distance I have been struck by the extent to which First Nations leaders (spokespersons) are conversant not only with the legislation that affects the constitutional, legal and political rights of their communities but also judicial decisions interpreting those rights and, from time to time, ministerial statements and departmental memoranda aimed at undermining those rights.

The impetus for Idle No More movement came from an exchange of tweets among four young women Saskatoon came from four Indigenous women in Saskatoon with considerable post-secondary education some of whom were also steeped in their own Indigenous teachings, ceremonies and laws. The cause that they took up was the defence of the Aboriginal and treaty rights “recognized and affirmed” by s. 35(1) of the Constitution Act, 1982 but under serious attack by” introduced by the Harper Government’s the “suite of bills” on a variety of Aboriginal and First Nations issues (and which I will outline momentarily). In the goal of stopping those bills they were at one with the almost all the leaders across the country. INM also stood in solidarity with Chief Teresa Spence of Attawapiskat who undertook a prolonged hunger strike on Victoria Island in the Ottawa River just below Parliament Hill.

Government MPs curtail hearings of Special Committee on Violence against Aboriginal Women

In January, the Government countered the Opposition demand for an inquiry into the large number of violent and unsolved deaths of Aboriginal women with an offer of a special committee of the House of Commons. At the committee’s first meeting, the Government MPs (including 3 parliamentary secretaries) voted to limit the meetings of the committee to Thursday afternoons between 6:00 p.m. and 8:00 p.m. With such a truncated sitting time the committee is unlikely to finish hearing all those wanting to be heard in this Parliament. Further, this time works well for the parliamentary secretaries who have to stay in Ottawa through Friday’ sitting of the Commons when they speak for their ministers who are out-and-about but, not so well for Opposition MPs who try to catch a Thursday evening flight back to their ridings.

Three features of the “mainstream” print media (including print online) that struck me at the height of INM’s activity and Chief Spence’s fast. First, the extreme badmouthing of Chief Spence in the mainstream (white?) media was over the top. One did not have to agree with her demands to treat her with respect. She was accused of depleting the funds of the Attawapiskat First Nation, a charge which was quite unsupported, notwithstanding the release of five years of Attawapiskat financial statements by the Government. Columnists said that she needed to go on a diet anyway. When Sen. Jacques Hébert went on a hunger strike in the foyer of the Senate over the de-funding of a youth movement I don’t recall the kind of ad hominem attacks endured by Chief Spence. If such vitriol were directed against a Black leader or a Jewish leader I wonder whether the mainstream press would have carried the articles.

Secondly, the more civilized comments centred on “What do those Indians want, anyway?” I have been writing with, for or about First Nations leaders and their issues for 40 years. I have also reviewed and summarized most of the testimony of First Nations leaders, their counsel and sympathetic academics since Confederation.

At the risk of being uncharitable, I’m inclined to think that anybody who needs to ask “What do those Indians want?” hasn’t been paying attention. The INM demands do not differ greatly from the demands you would hear if you sat in the back of an All-Chiefs’ Assembly for three days. Those demands are not greatly different than the ones put forward by chiefs and others to the succession of Joint Committees on the Constitution from 1969 to the 1992 Charlottetown Accord or the Royal Commission on Aboriginal Peoples and a succession of other reports. The one big change during that long time was the incorporation of section 35 as a free-standing Part II of the Constitution Act, 1982, incorporating “existing Aboriginal and treaty rights” as constitutionally protected rights without the limitation that section 1 places on Charter rights.

Governments of all stripes since 1982 have sought to “read down” and minimize the scope and significance of section 35, and particularly the purposive interpretations rendered by the Courts. First Nations communities and persons have been moderately successful in litigating s. 35(1) rights because the Court has insisted that section 35 not be interpreted as being without meaning, as the Government argued in Sparrow in 1990 and periodically ever after.

Here is a summary of the rights sought in the last year with brief mention of some of their recent historical sources:

  • One could say that the first demand, certainly since 1982, has been the application of the rule of law to the rights of Indigenous peoples: the need to give a purposive interpretation to s.35 is no different from the need to give such an interpretation to Charter rights. Indeed, Chief Justice Dickson borrowed in his s. 35 decisions freely from his earlier Charter decisions.
  • Recognition of First Nations self-government as it was described in the 1983 Report of the Special Commons Committee on Indian Self-Government (Penner Report). (Recognition is critical because delegated governance is what already exists and is in constant jeopardy.)
  • Recognition that a right to self-government is inherent in the recognition and affirmation of Aboriginal and treaty rights. (No doubt that deserves some elaboration. I hope to provide that elaboration in a later note.)
  • The Supreme Court has repeatedly noted that the Courts are not the best forum for negotiating the application of s.35 to hunting, fishing or other gathering rights or to Aboriginal title. They have repeatedly urged negotiation. In prosecutions under fishing and hunting regulations, the Court has suggested that it would be preferable to defer the prosecution and proceed either to a negotiated interpretation or a reference asking the Court’s interpretation, outside of the context of a prosecution. The Crown can decide what to do with the prosecution after the Court has rendered an interpretation of the regulation. No Canadian or provincial government has shown a serious desire to enter into such negotiations with the possible exception of the B.C. Government following the Delgamuukw decision of 1997.
  • Indian Control of Indian Education was the name of a policy statement presented by George Manuel to the Commons Committee on Indian Affairs in 1972. Jean Chrétien, who was then Minister of Indian Affairs, promised to make the statement government policy. Education has been the cutting edge of the movement for self-government ever since (and possibly well before). Sadly, Chrétien never sought to implement the statement in a serious way and when departmental officials speak of such a policy today what they seem to mean is the very model of “reading down” or legislative minimalism.
  • First Nations control of First Nations education requires that school committees receive the same moneys for each student as the government pays to provincial or separate schools rather than something in the neighbourhood of two-thirds that amount.

I’m not going to try to review here the raft of bills introduced by the Harper Government on Aboriginal matters in the current session. Perhaps, following this background I will go into that kind of detail in a follow-up piece or two. However, some things can be said here in a summary fashion.

The Court has repeatedly said that the Crown, in right of both Canada and the provinces has a duty to consult with First Nations likely to be affected by legislation, primary or delegated, or the application of legislation to a given situation, e.g., granting of permits. This applies not only where an Aboriginal right has been established but even where it has been asserted and a neutral party would consider that the claim has some likelihood of success: Haida Nation, 2004, Mikisew Cree Nation, 2005.

  • A recurring theme through the bills of this session has been attempts to discount the need to consult, particularly as regards to the current bills and the rights they are seen to jeopardize. (This jeopardy has been identified not only by First Nations leaders and their counsel but by the Canadian Bar Association and various academics.) In order to support their discounting Ministers have claimed that there are no rights at stake; but the Court has consistently said that consultation is necessary if there is a likelihood that a right is at stake, e.g., if dumping in a waterway may affect a fishery.
  • Far from fostering any kind of First Nations control of education the Government is seeking to establish a First Nations education body which it will control, but without any provision for parity in funding.
  • • One bill requires First Nations to publish their annual statement, not only of the moneys managed by their council for public works or specific programs but also for any corporations in which they have an interest. That this puts First Nations at a disadvantage in economic development does not appear to be a concern of the Government.
  • Most First Nations publish their annual statement either on their web site or in a newsletter or other publication to their own members. On the other hand, successive Auditors General since 1980 have called for Indian Affairs to reduce the volume of reporting required of First Nations which, the OAG (Office of the Auditor General) has repeatedly said is far more onerous that what is required of local governments of similar size. Ministers insist on the high volume of requests that they receive from members for disclosure of First Nations statements but there is no tabled documentation and no effort to show what percentage of the 633 First Nations communities refuse to divulge information.
  • In any case, those who do not divulge financial information to their members may be engaged in egregious behaviour but if one supports recognition of self-government, then, as I’ve said in earlier articles, the role of the federal government should be limited to “a policy of no-policy.” As I recall PEI was recalcitrant for several years in refusing to allow citizens to sue their Government after the federal government and other provincial governments had re-written their Crown Proceedings Acts. We did not seize the legislature or suspend equalization payments.
  • One last thing: apparently, the new funding agreements that require signing before the end of the fiscal year if bands do not want their funding to be interrupted “include a clause that prohibits challenging [federal] legislation through the courts.” (Hill Times, 26 March 2013, quoting Dr. Carolyn Bennett MP.) Such a provision harks back to the 1927 Indian Act amendment that made it an offence to raise funds for the purpose of pressing Indian land claims.

That is a brief introduction to the legal demands of the INM and of First Nations across the country and the raft of bills which the present government is attempting to ram down their throats. It is also an answer to the oft-repeated question “What do those Indians want, anyway?”

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Comments

  1. Don & Shirl Ford

    It is quite apparent to me that colonialism is alive and thriving and after a century and a half we still treat first nation people as the lowest figures on the totem pole . Wake up Canada.

  2. RedBrown-TWC-NA (@IamRedBrown)

    Very well written article, straight to the point and understandable. #IdleNoMore, we are not only fighting for our rights, as Aboriginal (First)peoples, but the future of a great and vast country… Those who have not seen much outside the major cities, unfortunately, don’t even know what they are taking for granted. Until the people wake up in this counttry and stop sleeping through our elections and act on what makes them so angry and upset about the policies that affect us as a whole…. we really won’t stand a chance… This government, current, past and future need to be told by the people, what is right and not be allowed to tell us what they believe is right for us… The future is at stake and they’re getting away with it. There will come a time when we will be forced to defend our land, our Nations, Our country, if this way continues #IdleNoMore, is just the beginning

  3. Roger C Goodeye

    The INM movement has made the government and Canadians realize that we are no longer satisfied as being treated like helpless victims. Aboriginals have been victimized by the colonial attitude of our government far too long. Our Justice System just reeks of crap where Indians are concerned. Fixing this will be the next issue Aboriginal Indians will have to work on.

  4. i agree with michael that INM is a movement of our young people in telling our govrnments of the day that the treaties of our past and present leaders have to be look at with very open minds and eyes ,if the treaties were to be put into action ,we the aborigoinals would not need the govrnment hands out that are happening ,in saying that if the day of govrnment were to give 2%if the resoeuse share taken from the lands our treaties agreed to share with all the vistors to this before the treaties we signed by our past leader both aborigionals and white settlers that would amount to around 15billions dollar annaully so the INM is all getting the govrnment of the day to look with open minds@eyes into the treaties miigwetch