<e-notes> from fourarrows@rogers.
com 13 March 2014 Edition
Education Act Mysteries and Opposition Continue; UN Conference on Indigenous People Without Any? Harper Govt: No Missing/Murdered Women Inquiry
A Strange Mystery Twist On The Harper-Atleo Agreement on the First Nation Education Bill
Robin Sears is a well-know n insider lobbyist on Parliament Hill. A principal of “the Earnscliffe Strategy Group.” He w rites in this month’s influential Policy magazine, reprinted by the equally influential iPolitics new s, about a w eird genesis of the strange 48-hour-notice February 7 meeting of prominent hundreds in far-aw ay Kainai country of Treaty 7, featuring an announcement by Stephen Harper and Shaw n Atleo. According to Sears, it all happened on December 9 w hile the Gatineau Summit Assembly of Chiefs from all across Canada w ere debating resolutions. But the story takes place not in the Ottaw a Valley, but rather at Nelson Mandela’s funeral in South Africa. Yes. Sears reports w hat happened in South Africa as history w ritten in “moments of unforeseen opportunity, blessed serendipity and politically harmonic convergence.” That’s w here the still-to-be-unveiled First Nations Education Act w as agreed upon. The Canadian delegation to the ceremonial funeral of the famed icon of principled courage, Nelson Mandela w as, as Sears reports, an unusual group of former prime ministers, premiers and governors-general, “some w ho rarely spoke to each other, others w ho w ere barely on speaking terms.” But there they w ere, having their closing dinner together before heading back to Canada. And one of the invited guests w as Shaw n Atleo, National Chief of the AFN.
According to Sears, the pow erful collection of Canadian leaders were having a convivial dinner of “laughter and shared stories,” w hile the minions back home w ere running the country. But not for the National Chief. His dinner w as interrupted w ith his Blackberry ringing about the Gatineau assembly of hundreds of Chiefs w hich had gathered w ith much pre-conference grumbles about challenging leadership, etc. Atleo had decided the opportunity to attend the good-bye to the highly revered Mandela w ho had inspired so many people all over the w orld w as sufficient reason to be absent from the Assembly, and most of the Chiefs understood, and approved. The AFN national executive backed the decision. to attend the funeral and honour Nelson Mandela. But that did not mean they were going to hold back criticism. As Sears tells it, “Those opponents had been ramping up their rhetoric about the failure of Atleo’s government negotiation efforts. None of the dossiers on w hich Prime Minister Stephen Harper had promised action in their January 2013 summit, nearly a year earlier, had seen much progress. Indeed, on the education file, the government had issued a provocative and certain-to-berejected draft bill only a month earlier. It had been curtly dismissed by Atleo in an open letter.” And straight from the Assembly backrooms – it w as midmorning in Ottaw a, dinnertime in South Africa – that there w as this “astonishing message” about the Education Act resolution which had just passed unanimously by the hundreds.
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There had not been much debate. Rather there w as a threehour tirade of fine oratory denouncing the Harper Government’s determination to pass its First Nations Education Act, especially since Indian Affairs Minister had announced he had done all the consultation that w as necessary, and he w as certain First Nations w ere all w aiting for his Bill. Sears saw this as a “cathartic debate” – everyone felt better and w ere ready to move on. He felt “a clear resolution” had emerged. As he saw it, “There w as a sense in the room that the moment had to be seized. Atleo and Harper’s terms would be up in 18 months. The government was going into a pre-election period. If no deal could be made in the next year, it probably w ould be many more years before they arrived at this place again.” The resolution passed/ A handful of votes short of unanimity. As Sears saw it, Atleo’s decision not to attend the Assembly “turned out to be an inspired decision. With Atleo thousands of miles aw ay, both his critics and his friends could have an open discussion about the merits or miscalculation of his education strategy, w ithout having to resort to oratorical excess. “This w as the message that erupted on Atleo’s BlackBerry, late at night, thousands of miles aw ay. He immediately recognized the importance of the decision and the pow er of this occasion to help secure a path forw ard. Atleo reported to the Canadian delegation dinner at Mandela’s memorial in South Africa w hat had just been agreed to in Canada, and w as greeted w ith smiles and applause.” “Thanks to the serendipity of timing, an unplanned absence and the courage of two leaders, a poisonous stalemate may have been broken,” Sears reported enthusiastically. “Those w ho struggled so hard on all sides, behind the scenes, to make the breakthrough real w ill have their day in the sun.” But Back to the Real World Now Sears w as personally present for the debate in Gatineau. What he saw and w hat most observers saw w ere tw o quite different events. As Olesia Plokhii reported in iPolitics about what had happened in Gatinea, “[AFN] chiefs cemented their opposition to Ottaw a’s education bill as the government took a step back on the contentious legislation. “With near-unanimous support, chiefs . . . passed a resolution stating their complete rejection of the bill and a
commitment to negotiating a new education plan w ith the government.” This w as the announcement w hich drew “smiles and applause” from the Canadian delegation in South Africa? [Inexplicably, iPolitics published Robin Sears’ article w ithout comment, although it seriously contradicts the incontrovertible facts presented by its ow n reporter.] The AFN itself issued a media release on December 12. “This w eek leaders from across this country unanimously reaffirmed the assertion of First Nation inherent rights, title, Treaties and jurisdiction as the w ay forw ard to take control of all the activities that affect our lives, our lands and our citizens," said AFN Nova Scotia-New foundland Regional Chief Morley Googoo. "This includes our reaffirmation of First Nations control of First Nations education. . . First Nations confirmed through resolution that w e w ill settle for nothing less than an approach aimed at First Nations control of education that values our languages and cultures supported by stable, sustainable and fair funding. The current federal proposal is unacceptable and it is time for the federal government to step up and w ork w ith us on an approach that w ill lead to success for our students and children. Our children need action now and w e must get it right, right now ." This is the message w hich the Canadian delegation greeted w ith “smiles and applause”? Something doesn’t jibe here. And yet Sears is convinced the government’s Education Act as a done deal. “Soon, the grinding w ork of negotiating local level governance structures and funding mechanisms, one by one, w ill begin. Then negotiations over curriculum and hiring will need to be undertaken. “And then, of course, there will be scrutiny of how w ell the reserve schools are run.” That, Sears says, “w ill turn an intense spotlight on First Nations educators.” “Only then will students be invited to cross the threshold to a new era in First Nations education.” As Sears sees it, “A lot of people have their fingers crossed now , hoping this education agreement can begin the healing process and put us on the path of respect and partnership betw een Canada’s first peoples and its governments — a journey to w hich Shaw n Atleo has devoted his career.”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -3an informative <e-note> by firstname.lastname@example.org 13 March 2014 Edition
But the Mystery Rem ains So the mystery remains. Who made the phone call to Shaw n Atleo in Africa? Robin Sears? If not, who? And w hat w as the message about Gatineau that w ould have resulted in “smiles and applause”? How did Robin Sears find out about the call and its marvellous good new s? Is Sears the victim of misinformation? Or misperception? Or? What is going on here? If there w as agreement in Gatineau, w hy w as it that it w as not until 48 hours before the Kainai meeting did anyone know anything about it? That to this day, no one know s what is “the Agreement” that w as announced there? Will the mystery ever be cleared up? Stephen Harepr and Shawn A tleo at Kainai: Will history recall the magic The A nnouncement of A M ade in South A frica A greement? moment of Gatineau? Or w ill it see Gatineau as a strong voice of Chiefs from across Canada Assembly of Manitoba Chiefs, in particular Mathias that they are determined to keep the federal government Colomb Cree Nation Chief Arlen Dumas from from legislating control of First Nation education? Pukataw agan, and Idle No More - Northern Manitoba's Stay tuned. <<<<>>>> And if Gatineau and Kainai signified such great support across Canada, how de we explain what happened in Thom pson, Manitoba on 5 March 2014: By John Barker email@example.com Fourteen months after the Jan. 11, 2013 nationally televised drama in Ottaw a, w hich saw Assembly of First Nations (AFN) National Chief Shaw n A-in-chut Atleo on the inside meeting w ith Conservative Prime Minister Stephen Harper, during Attaw apiskat Chief Theresa Spence's protest, while the other side of the door w as blocked by Assembly of Manitoba Chiefs (AMC) Grand Chief Derek Nepinak, a prominent critic of Atleo's leadership, relations appear to remain as frosty as ever. Atleo got an earful in Thompson March 5 from the The proposed legislation calls for standards consistent w ith provincial standards off-reserve and says students w ill have to meet attendance requirements, w hile teachers w ill have to be properly certified. Ottaw a is to fund core education, w hich includes language and cultural instruction, w ith $1.25-billion over three years starting 2016. There is a provision for a 4.5% annual increase. For the last 20 years, funding increases have been capped at 2% a year. Along w ith the $1.25-billion, the federal government has offered another $500-million over seven years to go tow ard infrastructure and $160-million over four years for implementation. Currier, a community advocate representing w omen in Lisa Currier – w ith the focus this time being on Atleo's support for the Harper government's proposed First Nations Control of First Nations Education Act. Atleo w as in Thompson to meet w ith the Assembly of Manitoba Chiefs and explain the Assembly of First Nations position supporting the First Nations Control of First Nations Education Act.
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -4an informative <e-note> by firstname.lastname@example.org 13 March 2014 Edition
leadership perspectives and Idle No More - Northern Manitoba, presented Atleo w ith a "STOP the First Nations Education Act petition. The petition calls for "First Nations control over education – NO provincial standards/curriculums imposed – No "Education Authority" delegated by Canada." The preamble of the petition presented to Atleo by Currier: "Education in Canada is founded on superiority and patriarchy historically and is still forced upon Indigenous people presently. Is this going to continue? “It is our responsibility to listen to our young people, to protect their future and teach them by show ing them that w e can assert our Inherent Right to educate ourselves; to build our ow n identity, institutions and systems. When ½ of our population consists of our young people who w ill be attending these schools under the FNEA, how can w e empower them to assert and protect our rights? "Change comes through educating ourselves, w hen we do not educate ourselves on Inherent and Treaty Rights how can w e protect them? How can w e teach our young people language and culture with imposed provincial curriculums and standards? Change has been done in the past through educating ourselves because w e have to w hen it comes to understanding w here w e are so w e know w hat w e are up against. "The FNEA is 1/10 bills that are a part of a termination plan to end sovereign status and the extinguishment of Inherent, Aboriginal, and Treaty Rights." Dumas, telling Atleo he knew the national chief was no more likely to listen to him now than he did in Ottaw a 14 months ago, instead surrendered about 7 of his allotted 10 minutes for speaking to the assembly to Currier to make her ow n remarks and present Atleo w ith the petition. Like Atleo, how ever, Manitoba Keewatinow i Okimakanak (MKO) Grand Chief David Harper w as in Standoff, Alberta on the Treaty 7 Kainai Blood Tribe First Nation w ith Prime Minister Harper in a show of support for the proposed First Nations Control of First Nations Education Act w hen the Tories unveiled it Feb. 7, as MKO supports the proposed legislation, w hich [is said to] contain some changes to the draft legislative proposal shared w ith First Nations chiefs by the federal government last October. In a March 6 new s release, Grand Chief Nepinak says, the Manitoba chiefs also w anted Atleo to provide "an explanation of AFN activities w hich appear outside the mandate provided by First Nations leadership."
. . . and this just in: National Chief Atleo on “the Agreement”
Sask atoon, 11 March 2014 – “Now it is up to government to do their job to enact that [the proposed First Nations Education Act in a way that respects the five conditions." So said Shawn Atleo, National Chief of the Assembly of First Nations after a lecture at the University of Sask atchewan last night. The conditions he referred to were those set out in a strong resolution passed at the Gatineau Chiefs Assembly December 9, “Closing the gap on First Nations education must happen. . . It is unacceptable.” "I don't have a mandate for example to negotiate that with the federal government. People ask me if it's new money or how did those numbers get arrived at. I don't have the mandate to negotiate those numbers," Atleo said. "In my view enabling legislation is the k ind of route that is required but it can't be prescriptive. It has to honour the right for education to exist at the treaty or nation level and for those treaty nations to control their own education," he explained. "This should be the k ind of enabling legislation that principally establishes a funding relationship between treasury board and the education systems that the First Nations establish themselves." "I do think that there is more work to be done... there is more advocacy work that is required. Some of the chiefs may ask me to do (it) and I will continue to push but the bulk of it though is up to First Nations to press themselves," he said. "This change must and will occur, over what time frame? I would hope this work happens sooner rather than later." Thank s to Kelly Malone, News Talk 650, CKOM
Oops! The last issue of < e-notes> incorrectly listed Prof. Noel Lyon as the author of the book , Native Liberty, Crown Sovereignty. The correct author is Dr. Bruce Clark .
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -5an informative <e-note> by email@example.com 13 March 2014 Edition
Chiefs of Ontario Conclusions on the “Kainai Agreement” and the “New Act”
“It is unclear how the agreement came about and how the “joint work ” will be accomplished, Chiefs of Ontario said in a media release. . “First Nations in Ontario have been adamant that the path forward is not federal legislation but implementation of First Nations’ control of First Nations’ education through negotiation of nation-tonation agreements. “Moving forward, clarity must be sought on various elements before First Nations in Ontario can be expected to provide consent and/or support for this new approach.” Other First Nations leaders expressed either caution, disappointment or outright rejection of the new legislation and funding agreement. Nishnawbe Ask i Grand Chief Harvey Yesno, who was in Alberta for the Harper announcement, said he was “disappointed.” “The severe under-funding of our education system is the single greatest impediment to the educational success in Nishnawbe Ask i First Nations, and the only way to remedy this is an immediate and substantial investment in schools and education programing across the territory,” Yesno said, adding that his presence during the announcement does not indicate his approval for the new act. Of particular concern to Nishnawbe-Ask i is that the funding does not tak e effect this fiscal year and that the $500-million (over seven years) for education
– Chiefs of Ontario
infrastructure spread across all First Nations across Canada does not meet the current 12-year back log in school construction in Nishnawbe-Ask i alone. Ontario Regional Chief Stan Beardy said he is cautious in his approach tow ards the new act, noting that “it is unclear how this agreement came about and how the joint w ork w ill be accomplished.” The proposed capital funding investment of $500 million over seven years w ould not even meet the needs of First Nations in Ontario, Beardy said, let alone all of the First Nations w ithin Canada. An analysis in 2012 revealed that it w ould take $242 to $354 million to bring schools in First Nation communities up to provincial standards. “In announcing ‘a new approach,’ the Harper government continues to cut and exert restrictive guidelines on all funding including education funding for our representative organizations,” Beardy said. “For too long our children have been underfunded, denied opportunity and fairness.” Anishinabek Nation Grand Council Chief Patrick Wedaseh Madahbee said due to the the “lack of honesty and cooperation” of the Canadian government w ith First Nations, “w e have no reason to accept (the) announcement on face value.” “Therefore, my recommendation is that w e continue on course of fighting legislation and/or policies that impede our progress on real (First Nations) control over (First Nations) education,” Madahbee said in an open letter. “We remain focused on protecting our children’s inherent rights to fair and equitable education.”
AFN Regional Chief Morley Googoo, Executive Education Portfolio: “If we don’t feel we’ve had proper input and First Nation control over First Nation education, then we know we’re doomed for failure again. “We need the regions to really decide what the next step will be, because we can’t lose focus. The objective of both parties should be that child,” “You’re going to have resistance, and what that resistance will look like, I don’t know.”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -6an informative <e-note> by firstname.lastname@example.org 13 March 2014 Edition
Dr. Pamela Palmater: “Are Harper and Atleo Meaning the Same Thing When They Say the Same Words?”
Thanks to www.rabble.ca for info Dr. Pamela Palmater, head of the Centre for Indigenous Governance at Ryerson University, has been among those questioning just w hat is going on w ith the still-unknow n “Kainai Agreement” of 7 February 2014. “Every time that Atleo or Harper speaks, it becomes more and more apparent that Atleo and Harper are NOT of the same mind in terms of w hat this ‘deal’ entails,” she w rites. “In case anyone had any doubt about the fragile, if non-existent agreement betw een AFN and Harper, one need only refer to the letter from AFN dated Feb.28, 2014, requesting clarifications from the Harper government about w hat the deal means.” “You don't have to hire a law yer to know that you never ever commit to a deal w ithout knowing what the deal is -that is, get the details in w riting. “It is almost unbelievable that the AFN would be asking these critical questions AFTER the deal has already been made and announced. What's w orse is that the AFN is asking these questions AFTER Atleo's many media appearances and their FAQ Sheet w hich purports to answ er these questions. How can the AFN assure First Nations that they w ill get to "inform" the legislative drafting process and then a few w eeks later, ask the federal government if they will w ork w ith First Nations on the legislation? It's not hard - the problem has been identified in 100 studies: lack of real First Nation control, lack of funding and lack of culture and language in schools. The solutions have already been identified as well: First Nation control, adequate funding and culture and language. Legislation has never been required to do the right thing. It's an Aboriginal, inherent and treaty right that is protected in Canadian and international law . The government doesn't need legislation to respect the rule of law . The joint Atleo-Harper announcement on February 7, 2014 and all the media statements by both parties in the days and w eeks that follow ed is a clear indication that there is no common understanding. Here is a summary of how each side interpreted the "historic deal" (that has no w ritten commitments): statutory guarantee of funding to address "real costs" of education
Funding is guaranteed Incorporates reciprocal accountability No federal oversight
Respects rights, treaties, title
not about rights – its about “social development” Insures First Nations transparency & accountability Feds will provide the standards, reporting and other oversight mechanisms to "ensure" First Nations meet "new" standards
4.5% cap on funding (versus 6% pop growth)
Funding will be for "willing partners" Feds will draft legislation and regulations Full "comprehensive" education legislation
AFN will "inform" legislative process Limited "enabling" legislation
Allows for diversity
Same standards for all First Nations W hat’s good for Canada
New deal for First Nations
If this is THE deal (historic, but unw ritten); w hich promises First Nation control (federal control of First Nations); and capped funding (future monies less than w hat is needed to take on new responsibilities); and a new relationship (w here w e voluntarily give up our treaty right to education) -- then NO DEAL. http://w w w.chiefs-of-ontari o.org/sites/default/files/file s/OCOFOV%20Education %20Report%202012.pdf
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Minister Valcourt Writes AFN Executive Committee March 10 re Proposed Education Act
In the controversy which arose after the February 7 “Kainai Agreement” was announced regarding the proposed still-unk nown First Nations Control of First Nations Education Act, the Assembly of First Nations Executive Committee, composed of regional chiefs, write Indian Affairs Minister Bernard Valcourt. On March 10, the Minister sent out his reply. First he runs through a history going back to 2011 of what he considers to be “the government engaging First Nation on K-12 education reform” He then reviews the Gatineau Chiefs Resolution of December 10, 2013. However, the Minister characterized the five conditions which “were identified as required to achieve the change needed for First Nation children.” The first condition which the resolution said must be met was “a. Respect and recognize inherent rights and title, Treaty rights, and First Nation Control of First Nation Education jurisdiction. First Nations must retain all options to advance their education and all such agreements must be fully respected, enabled and supported. Mr. Valcourt describes this condition as “the need for First Nations control of First Nations education” The second condition in the Gatineau resolution was “b. Provide a statutory guarantee for funding of First Nations education as a precondition that is sustainable and reflects needs-based costs consistent with Canada’s obligation. Mr. Valcourt describes this condition as requiring “a guarantee by the Government of Canada for adequate funding for K-12 education on reserve .” The third condition passed by the Chiefs’ resolution was “c. Enable and support systems to provide full immersion and grounding of all education in Indigenous languages and cultures.” Mr. Valcourt describes this condition as requiring “explicit support in the proposal for Aboriginal language and culture programming and associated funding supports,”
d. Develop mechanisms to oversee, evaluate, and for reciprocal accountability and to ensure there not be unilateral federal oversight and authority. Mr. Valcourt describes this condition as “no unilateral federal oversight of First Nations education,” e. Ensure a meaningfully supported process to address these conditions through a commitment to work ing together through co-development, fully reflective of First Nations rights and jurisdiction. Mr. Valcourt characterized this as meaning “an ongoing process of meaningful engagement with First Nations on First Nation education.” Mr. Valcourt’s letter fails to mention the same resolution also “rejected” the Minister’s October 2013 draft bill.
– photo by Globe and Mail
Minister Bernard Valcourt: “Listen up!”
The Minister’s letter said that in his open letter of December 13, 2013, he had “responded positively” to the resolution. However, no where in the letter is there any mention of the resolution. . Mr. Valcourt then says his open letter “led to the fruitful discussions culminating in the announcement made by the Prime Minister and the National Chief on February 7, 2014.” The problem with that statement is that neither the Chiefs nor the AFN executive seem to be aware of any such discussions. The first they heard of the Kainai
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -8an informative <e-note> by firstname.lastname@example.org 13 March 2014 Edition
Agreement was a command issued with less than 48 hours notice to attend the February 4 event. Mr. Valcourt clarifies that all the money mentioned in the February budget is “new money”. Much of the letter goes to repeating the budget announcement. “The work happening under these arrangements is consistent with the intention of legislation, and I believe actually strengthens the ability of First Nations to transition to a legislative framework .” Existing First Nation education organizations “would be natural candidates to form the education authorities contemplated in legislation, and in many cases have already indicated their interest in doing so. “Legislation will not be one-size fits all, rather it will be enabling so that First Nations can develop their own systems provided they meet the basic minimum standards found in modern education systems.” “On the issue of ensuring First Nations control of First Nations education and the commitment by the Government to continue work ing together with First Nations, I want to mak e a few points,” the letter reads. “The announcement of February 7, 2014 confirmed that the proposed First Nations Control of First Nations Education Act will enable First Nations to truly develop and control their own education systems. Second, for those who wish to pursue jurisdictional arrangements through self-government agreements that include education, we remain open and more than willing to negotiating and concluding those agreements.” The Minister would create a “Joint Council of Education Professionals that will provide a robust and independent oversight and advisory role with regards to implementation of the legislative framework .” Moving forward, the legislation will be re-drafted and finalized based on the terms “jointly announced” Feb7. Mr. Valcourt states, “Following the introduction of the legislation in Parliament, the Government will pursue a cooperative process of regulatory development with First Nations, which will be necessary to enact the legislation and will ensure that it reflects regional needs and realities and does not constitute a one-sizefits-all approach to education administration .”
First Nations will not k now what the regulations are until some time after the Act has been passed by Parliament. “The subsequent development of regulations and establishment of First Nation Education Authorities will tak e some time.” But why wait to see the regulations? “I k now we are all eager to get started together. As you stated , First Nations children must not wait any longer. The Minister said he appreciated the “sense of urgency” expressed by the Executive Committee.” There was a “need to act immediately.” That is why, he says, that he believes “the finalization of the legislation must happen as soon as possible.” That could mean a very fast trip through Parliament.
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Behind The Numbers: The Truth of The First Nation Education Act
Thanks to Judith Rae1 for the number crunching, and thanks to First Perspective2 for its great journalism On February 7 at Kainai Reserve in Treaty 7, Prime Minister Stephen Harper announced new funding for First Nations education. He also announced changes to the proposed First Nations Education Act, which w ould be re-named the First Nations Control of First Nations Education Act. Since a new draft bill has not been released yet, this blog focuses only on the financial side. The press conference focused on a big number: $1.9billion in education funding. But w hat do the new numbers really mean? This post looks at each part of the funding announcement and goes behind the numbers. The new funding will surely be an improvement. But is it enough? As it turns out, there’s less money here than it seems. The new education legislation will require First Nations to take on massive new responsibilities, but the resources to meet those responsibilities are insufficient. The new funding will not close the gap betw een education for First Nations kids and for other Canadian children. It also looks likely to put First Nations kids increasingly farther behind over time. Wholesale changes to the funding approach itself and adequate funding levels are clearly necessary to address the huge gaps in education infrastructure and services for First Nations children. Unfortunately, the announced funding does not seem to go nearly far enough. (1) School Infrastructure: “$500M over seven years, beginning in 2015-16” Spreading out a number over many years is a great w ay to
make it sound big. Let’s start w ith basic division: $500million over 7 years is about $71.4- million a year. Currently, Canada says that its education infra-structure spending is about $200 million per year. This includes capital construction, as well as operation and maintenance for school buildings. I’ll assume that $71.4 million w ould add on to that amount, making the total $271.4 million per year, starting next year. How much is needed? A few years ago, the Parliamentary Budget Office ran some models using fiscally conservative assumptions. They found that First Nations’ existing schools needed $287-308 million per year in capital construction spending, plus another $110 million for operations and maintenance – i.e. about $410 million a year as of 2009-10. That does not include the need for new schools, because the Parliamentary Budget Officer did not have enough information to assess that issue. Many First Nations lack schools. Some kids are bused out, and for many remote communities children have to leave home and live far aw ay in order to get a basic K-12 education. By 2015-16 (six years after the PBO estimate), Canada is saying there w ill be something like $271.4 million a year for schools. This is a long w ay off from $410 million, plus inflation since the PBO estimate, plus catch-up costs (from deterioration since the PBO estimate), plus room for new schools. So it looks like w hile things w ill improve a bit, w e’re still far from w here w e need to be. (2) Growth: The 2% cap on annual increases is replaced by a 4.5% “escalator” One might think that keeping pace w ith population grow th and inflation w ould be covered w ithout question. But it’s not. In First Nations education funding, these increases w ill have been capped at 2% for 20 years. In practice, experts say this means that in real terms First Nations education funding has actually been declining by 3-4% per
Judith Rae is a s olicitor with Olthius Kleer Towns hend, Toronto. firstname.lastname@example.org
www.firs tpers pective.ca
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -10an informative <e-note> by email@example.com 13 March 2014 Edition
year since 1996 – 18 years.. Statistics Canada tells us that First Nations populations are young and grow ing fast. Add inflation, and an AFN report found that at least 6.3% per year is required to keep pace w ith these unavoidable realities. Canada’s recent announcement said that the 2% cap w ould be replaced by a new 4.5% “escalator” starting in 2016-17. But if 4.5% operates as a new cap, it could still be some distance behind the real life growth of 6.3% (or more). That means funding levels would continue to fall farther and farther behind over time. (3) Core Funding K-12: “1.25B over three years, beginning in 2016-17? This $1.25-billion for core funding w as the biggest figure in the announcement. $1.25-billion over 3 years is about $416.7 million per year. The federal government says that funding for First Nations education is now about $1.55billion a year. Let’s assume this $416.7 million is new funding. If so, it w ould get added to the existing amount – but not for another tw o years, i.e. after the next federal election. Currently, First Nations education is a long w ay off from comparable provincial service levels, let alone w here it needs to be to close the still-w idening gap in high school graduation rates (w hich the Auditor General said in 2011 w ill take over 28 years to close.). Many people have detailed dozens of serious service gaps experienced by First Nations students as compared w ith other Canadian school children. Canada’s ow n National Panel on First Nations Education “saw evidence of significant gaps in compensation of teachers and principals, a lack of equipment and supplies in libraries, shops, gymnasiums and technology, inadequate supports for special needs students, school facilities in disrepair or in portable units, and many other indications of gaps in funding” (p. 39). Pages 16-17 of their report provide more details on “some of the more startling gaps” they saw . Even Canada’s own performance evaluation of First Nations’ education recognizes that First Nations kids are getting left far behind. In classic bureaucrat-speak, they put it this w ay: “The intended outcome of education opportunities and results that are comparable to the Canadian population is not being achieved.” (p. 2) What’s the price tag to bring the system up to par? Unfortunately, I have not seen a public document that puts
an exact number on that gap nation-w ide. The National Panel said quantifying the “magnitude of underfunding” w as beyond their mandate. Reaching that number is more complicated than simply comparing average spending per student in a province to average federal funding per student. Many reports have show n that federal spending for on-reserve schools is significantly low er than provincial spending on public schools, dollar for dollar. There are hree such reports. Comparisons can get tricky: for instance, journalists have accused Aboriginal Affairs of inflating its published averages by including provincial schools, which are often paid more to educate a First Nations’ child than w ould be available if the child attended a school on reserve. Comparisons w ill also be w eak if they fail to take into account that a First Nations student in a remote community is not your “average” provincial student, as this paper from Queens’ University discusses. Bring in the key factors – things like language programs, small schools, remote areas, socio-economic factors, and special needs – and the funding gap w idens farther and farther (check out pages 44-46 of this report for vivid examples).
One gap that should be beyond question is the need to keep pace w ith increases in inflation and student population. As mentioned, how ever, First Nations’ core education funding has been capped at 2% per year for tw o decades, w hile the First Nations’ population grew 29%. A previous report from the Assembly of First Nations said that the annual shortfall from that gap alone w as $747 million per year as of 2010-11 (and it w ould be more by now , four years later). Cumulatively, they put the annual growth gap at over $3 billion by 2010-11. So, just looking at that one factor alone – and there are many others – another $400-million a year as of 2016-17 looks like an improvement, but a very long w ay off from equitable funding, not even to cover population grow th.
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How could we identify and close the full, much bigger, gap? What the National Panel recommended w as that Canada not just increase funding, but develop an entirely new formula that is attuned to the actual needs of First Nations students and communities. (4) Im plem entation Funding: “$160M over four years, beginning in 2015-16” The new education legislation w ill require First Nations to take on massive new responsibilities. In most cases, these responsibilities w ere not taken on by anyone before. First Nations w ill be required to fulfil many requirements that a school board or Ministry of Education w ould fulfil in a provincial system, prepare new plans and reports, and meet many new standards. While there are issues w ith the Act (and the latest draft is not available yet), there is no question that broadly speaking these sorts of responsibilities are essential. Many have commented on the utter lack of any real “system” in most First Nations education. Sending schools off to operate on their ow n is like sending troops off to battle on those responsibilities. Surely, that someone should be First Nations themselves, w ho have been seeking control of their ow n education since at least the 1970s. But passing off responsibility w ithout adequate resources is a set up for failure. Is the implementation funding going to be enough? Implementation funding of $160-million over 4 years is $40 million a year. That comes to about $63,000 for each First Nation. Suddenly, it doesn’t sound so impressive. So w hile setting responsibilities is one thing, actually meeting them w ill be another. Conclusion Some say numbers don’t lie. But w ithout context, they can certainly give the w rong impression. More funding is good, but it needs to be put into perspective. All of us need to be asking hard questions, and none of us should be satisfied until the kids are getting not just a bit more, but w hat they truly need and deserve. Probably First Nations student Shannen Koostachin put that best: First Nations kids have the right to safe and comfy schools w here they receive a quality education that makes them proud of w ho are they are and prepares them to achieve their dreams.
The new education legislation will require First Nations to take on massive new responsibilities, but the resources to meet those responsibilities are insufficient. The new funding will not close the gap between education for First Nations kids and for other Canadian children. It also looks likely to put First Nations kids increasingly farther behind over time. – Judith Rae, OKT Law
w ithout any support from headquarters. Coordination, training, monitoring, specialized services – these “back end” supports are key to success. Someone needs to take
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First Nations Treaty alliance formed to fight deep federal funding cuts
Thanks to Jason Warick, Starphoeniz Saskatoon, 10 March 2014 – Saskatchew an First Nations have formed an alliance to fight federal funding cuts to their education, health and job training programs. Some members of the Treaty 4 and Treaty 6 Alliance met in Saskatoon last w eek after a third Saskatchew an First Nation rejected what leaders say is an unacceptable cut to their social programs. "I can see this picking up steam. I'm sure others are going to refuse to sign (the federal funding agreement)," said Thunderchild First Nation Chief Delbert Wapass. "We w ork hard to keep our kids in school, to get jobs for our people. We want to help this province succeed, but w hat the government is doing - it's a very sad situation." Late last w eek, Thunderchild declined to sign an $8-million contribution agreement w ith the federal government. Like federal transfer payments to the provinces, these annual agreements fund the vast majority of social programs on reserve. Unlike other government-to-government agreements, First Nations have little say in the type or amount of funding. There has also been a cap placed on annual increases for education and other needs, regardless of economic conditions, labour costs or other factors, critics say. Some First Nations w ho have successfully moved residents off w elfare and into the job market have seen their funding claw ed back excessively, they say. Thunderchild follow s Little Pine and Peepeekisis First Nations in refusing to sign. Wapass, Little Pine Chief Wayne Semaganis and Peepeekisis Headman Allan Bird say they expect others to join soon. A recent meeting on the topic w ith Manitoba chiefs has led them to believe this could reach across the Prairies. "We w ant the Crown to be accountable. This has been a unilateral process, and w e're tired of it," Bird said. "There is a lot of fear about standing and fighting, but w e have to." All essential funding is continuing to these communities, but leaders aren't sure w hat w ill happen if the dispute continues. They hope the government w ill be w illing to negotiate before things escalate. Aboriginal Affairs and Northern Development Canada (AANDC) Minister Bernard Valcourt w as not available
for comment. An official in his office emailed a response. "Our government continues to take concrete steps to create the conditions for more prosperous, self-sufficient First Nation communities.
Chief Delbert W apas s
“We w ill continue to provide funding to First Nations for services including education, economic development, health services, band governance and infrastructure," stated the email. "AANDC Officials w ill continue discussions w ith First Nations to ensure the delivery of essential services."
Copyright (c) The Regina Leader-Post
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Indigenous Caucus calls for cancellation of UN High Level Plenary Meeting
Thanks to Gale Courey Toensing of Indian Country Today for info Secwepemc Nation Territory, 4 March 2014 – The North American Indigenous Caucus has called for cancellation of the UN World Conference on Indigenous Peoples w hich had been scheduled for September 22-24 at UN Headquarters in New York.. The issue: involvement of Indigenous Peoples in the planning of the meeting, how they are going to participate in the event, and w hat their role will be in writing the final statement of the meeting. At the present time, it appears the only participation planned is “Indigenous Peoples” w ill appear in the event’s name. Caucus Chair Arthur Manual said the proposed conference is not a “World Indigenous Conference” as it is being billed. He said to try and discuss w orld-w ide Indigenous issues in one and one-half days is laughable, especially w hen one considers how the state and federal governments, and corporations, are exploiting Indigenous Peoples. In a statement issued after a meeting of the Caucus, it said it w as also w ithdraw ing from the “Global Coordinating Group” established to the planning of the event set to mark the end of the second Decade of Indigenous Peoples. The North American Caucus is one of seven voluntary global caucuses that represent the world’s Indigenous Peoples at the U.N. The situation leading to the cancellation had been long brew ing. There had been a previous meeting in Sycuan in March, 2013, and in Alta, Norway, in June. “The bedrock of the Caucus position is that participation in these UN events must be full and equal.” Last month, John Ashe, President of the General Assembly, had made it clear that equal and effective participation by Indigenous Peoples w ould not be allow ed at the High Level Plenary w hich is being called to honour Indigenous Peoples. Most significantly, the Caucus said, Indigenous Peoples w ould not be involved in drafting the conference’s outcome document, w hich would sum up the conference’s decisions on how to define the scope of Indigenous Peoples rights, the best practices for implementing those rights and other issues affecting the relationship betw een states and the w orld’s 379 million-plus Indigenous
Peoples. In a letter dated March 5, Caucus co-coordinators Debra Harry and Janice Makokis notified Ashe of the Caucus’ decision: “The North American Indigenous Peoples’ Caucus operates from the foundational principle that every deliberation, decision or document, by any entity, that fundamentally affects us, our territories, our interests, or our future generations, must include our full, equal and effective participation. “This principle applies no less to the decisions and organs of the United Nations than it does to any other entity… “The United Nations is duty bound to honor and to respect the fundamental rights of all peoples, as embodied in the U.N. Charter, the Human Rights Covenants, U.N. Conventions… and Declarations, including the U.N. Declaration on the Rights of Indigenous Peoples.” The Caucus called for all planning meetings to be cancelled forthw ith. “We call for the w ithdraw al of any support, active or tacit, for the High Level Plenary by Indigenous Peoples anyw here in the w orld.” Ken Deer and Debra Harry w ere sent to the UN Headquarters in New York to meet w ith a group of states discussing the event and to confirm their w ithdraw al from the Governing Council. As new s of the call to cancel spread, it w as met w ith favourable support. Robert Free, for many decades an advocate on these issues, said the current meeting plan w ould avoid addressing the principal issues w hich, he said, w ere the “symptoms of not having these rights: the core issues of decolonization, return of lands and w ealth, rescinding of the Doctrine of Discovery, control and consent of resource extractions, etc.” Free summed it up: “After the meeting, the huge bureaucracy of the UN w ill say, "Look at all the agencies doing studies and having meeting etc." It is insulting to see the hard w ork and hard struggles of so many to go before the UN w ith so little resources to do the job of representing our peoples aspirations. Expecting us to struggle over decades to submit to their endless bureaucracy to no avail. No participation in the UN game of charades!” Thanks also to Brenda Norrell for info
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Steven Newcomb3 The Lim itations of the U.N. Declaration On the Rights of Indigenous Peoples Thanks to Indian Country Today4 For nations and peoples typically called “Indigenous,” 2014 w ill be an important year in the international arena. This coming September, the United Nations General Assembly is scheduled to convene a High Level Plenary Meeting regarding the U.N. Declaration on the Rights of Indigenous Peoples. The planned event is generating considerable discussion. According to a United Nations resolution, the meeting is “to be know n as” a “World Conference on Indigenous Peoples.” This gives the mistaken impression that it is a UN World Conference. It isn’t. A genuine w orld conference is usually nine to ten days long, w hereas the U.N. High Level Plenary Meeting is going to be about 180 minutes long in its entirety, over a tw o-day period in New York. The event has been promoted as a gathering that w ill w ork tow ard implementing the 46 Articles of the UN Declaration. From it, state governments of the world w ill draft and adopt an “outcome document.” The text of that document w ill serve as a framew ork for states to “implement” the Declaration. However, Indigenous nations and peoples w ill have no direct input in the drafting of the outcome document; its contents and interpretation will be determined according to the intentions and dominant prerogatives of states. This top-down arrangement is entirely consistent w ith the domination-subordination pattern that Professor Antheny Anghie, in his book Imperialism, Sovereignty, and the Making of International Law, has identified by studying the different eras of international law . Professor Anghie makes one point in particular that our Indigenous Nations and peoples should take to heart, specifically, that “colonial confrontation w as central to the
formation of international law and, in particular, its founding concept, sovereignty.” It is w ithin this formative imperial and colonial context of states and international law that the U.N. Declaration on the Rights of Indigenous Peoples w as created and is now going to be interpreted by international states. U.N. General Assembly President John W. Ashe of Barbados (a former British colony) has declined to name an“Indigenous co-facilitator” Indigenous celebration. What kind of outcome document are state governments likely to produce? Indigenous Nations and Peoples should pay particular attention to Article 46 of the Declaration. It is one of the most pro-state Articles, saying very specifically that states may place certain limitations on the “exercise of the rights set forth in this Declaration.” How ever, that article also says that such limitations shall be “determined by law ” (does this mean both international law and domestic state law , or perhaps both?) Such limitations may be imposed by states “in accordance w ith international human rights obligations.” Importantly, international state governments interpret “human rights” as the rights of individuals w ithin the context of “civil society.” Article 46 also says that such “limitations” shall only come into play w hen they are “strictly necessary solely for the purpose of securing recognition and respect for the rights and freedoms of others.” The w ord “others” refers to dominant non-Indigenous societies. Stated differently, limitations on the exercise of the rights set forth in the U.N. Declaration may be imposed by states in order to ‘secure’ “recognition for the rights and freedoms of ”…those defined as non-Indigenous. There is another w ay of stating this: the exercise of the rights set forth in the declaration shall only be limited if and w hen states deem such limitations necessary to “secure” and “respect” the rights and freedoms of a given non-Indigenous society. Furthermore, such state-imposed limitations shall be placed on the exercise of the rights enumerated in the UN. Declaration when such limitations are deemed by states to be necessary “for meeting the just and most compelling requirements of a democratic society.” It is anybody’s guess w hat the phrase “just and most compelling requirements of a democratic society” means, or, for that matter, w ho shall decide w hat that phrase means.
Steven Newcomb (Shawnee, Lenape) has s tudying U.S. federal Indian law and international law s ince the early 1980s . He is co-founder and co-direct of the Indigenous Law Ins titute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum).
This article is a shortened version of an article appearing in the great online publication, Indian Country Today, available at http://indiancountrytodaymedianetwork .com/
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The Hopi Message of Thomas Banyacya You have been telling the people, That this is the eleventh hour. Now , you must go and tell the people, That THIS is the hour, And there are things to be considered. Where are you living? What are you doing? What are your relationships? Are you in the right relationship? Where is your water? Know your garden ... It is time to speak your truth. Create your community, Be good to each other. Do not look outside yourself for a leader. There is a river flow ing now very fast, It is so great and sw ift. That there are those w ho w ill be afraid, They w ill try to hold onto the shore. They w ill feel they are being pulled apart, And w ill suffer greatly. Understand that the river knows its' destination, The elders say w e must let go of the shore. Push off into the middle of the river, Keep our eyes open and our heads above w ater. And I say; see w ho is in there w ith you, Hold fast to them and celebrate! At this time in history, We are to take nothing personally. Least of all, ourselves! – for the moment we do, Our spiritual grow th and journey comes to an end. The time of the Lone Wolf is over! Gather yourselves! Banish the w ord 'struggle' from your attitude and vocabulary. All that w e do now must be done, in a sacred manner and in celebration. We are all about to go on a journey, We are the one's w e have been w aiting for! --- Thomas Banyacya Sr. (1910-1999); Speaker of the Wolf, Fox and Coyote Clan Elder of the Hopi Nation
Thomas Banyacya (1910-1999)
Thomas Banyacya, a Hopi Nation Spokesperson, w as an early, lone, and pow erful presence at the United Nations HQ in New York City in 1948, carrying a message of peace, pow er, spirituality, and Indigenous sovereignty to the United Nations at a time w hen atomic bombs had put the future of the planet in doubt.
But there were other threats, human one. Thomas Banyacya also carried to the UN a prophecy of a time when our Mother the Earth would be under great stress from wrongful living, and would be forced to react He called for a return to harmonious living and spirituality. In addition to the message, Thomas Banyacya also brought an early, lone and powerful presence of an Indigenous voice to the United Nations. As others joined him and followed his path, the Indigenous presence at the UN is still trying to find its place.
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Rae: Ontario lagging behind in First Nation talks
Thanks to Northern Ontario Business Ontario has lagged behind other provinces w hen it comes to its dealings w ith First Nations, said Bob Rae prior to a speech in Sudbury, March 6. The former Premier of Ontario is the chief negotiator for the Mataw a First Nations – a tribal council of nine First Nation communities near the Ring of Fire mineral deposits – in its dealings with the Ontario government in developing a partnership framew ork to develop the Ring of Fire. Rae said Quebec and BC have been much more open than Ontario to sharing management decisions w ith First Nations and granting authority to regional governments. “If you look at the kinds of agreements that have been signed in other provinces you see very clearly that you're looking at a w ay of not simply consulting w ith First Nations, but of giving First Nations the ability to take real responsibility for the building and management of infrastructure, the making of economic and social decisions, and participating fully in decisions affecting the natural environment,” Rae said. Rae said those provinces have had more open discussions w ith First Nations because they w ere not encumbered w ith the numbered treaties that have coloured Ontario's history w ith Aboriginal people. The Ontario Chamber of Commerce claims the Ring of Fire w ill generate $25-billion in economic activity across numerous sectors in the province over its first 32 years of development and generate an estimated $6.7 billion in government tax revenues, as w ell create thousands of jobs. “In the past, development has happened w ithout the participation of First Nations and w ithout really addressing their needs or the concerns that First Nations communities have,” Rae said. “It's important for this development to take place on a different basis.” He did not provide a timetable, but said a regional framew ork to
develop the role the Mataw a First Nations is coming along w ell. Rae said treating local First Nations as equal partners w ill be the only acceptable way to move ahead w ith the Ring of Fire. “In my view , there's no practical alternative to this approach,” he said. “We need to make sure w e get it right.”
First Nation files second suit over Yukon claim s; Taku River Tlingit sues federal governm ent for not protecting land claim Thanks to CBC News for info Atlin, B.C., 6 March 2014 – The area around the north end of Atlin Lake is the subject of legal disputes betw een the Taku River Tlingit First Nation and the governments of Canada and Yukon. The First Nation has filed a second law suit in Yukon Supreme Court asking the court to protect lands it has claimed in the territory. The law suit targets the federal government for failing to protect the First Nation’s claims in Yukon. Those claims include all of the land about 100 kilometres southeast of Whitehorse around Little Atlin Lake, from Tagish to Jake's Corner. The First Nation’s legal documents say that traditional territory w as acknowledged by the federal government at least 30 years ago, but Ottaw a has not follow ed through w ith promises to negotiate a Treaty and control of the land w as devolved to the Yukon Government in 2003. First Nation law yers insist Ottaw a is obliged to protect those lands until the claims can be settled. There's no mention of a Yukon government plan for a campground at the north end of Atlin Lake. A separate law suit w as filed earlier this year against that plan.
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Canadian Parliament Fails Indigenous Women, Says Human Rights Watch, Opposition Critics
Thanks to Susana Mas and Lee-Anne Goodman CBC News, APTN National News and Eurasia Review for info Ottawa, 8 March 2014 – A landmark Canadian parliamentary report released late on a Friday afternoon failed to recommend needed steps to stem violence against indigenous w omen, Human Rights Watch said today. The report, by a special The House of Commons Special Committee on Violence Against Indigenous Women did not recommend either an independent national inquiry or a comprehensive national action plan on the violence, and made no recommendations to address accountability for police misconduct. The report came after a year of occasional hearings on the high levels of violence experienced by indigenous w omen and girls across Canada. “The committee’s w eak recommendations represent an acceptance of the shocking status quo of violence against indigenous w omen and girls, even by the very people w ho are supposed to protect them,” said Meghan Rhoad, researcher at Human Rights Watch. “The status quo is a state of constant insecurity for the indigenous w omen and girls w ho face threats to their lives and feel they have now here reliable to turn for protection.” Human Rights Watch research published in February 2013 documented the failure of the RCMP in northern British Columbia to protect indigenous w omen and girls from violence. Human Rights Watch also documented abusive police behavior against indigenous women and girls, including excessive use of force, and physical and sexual assault. British Colombia has inadequate police complaint mechanisms and oversight procedures, and there is no national requirement for independent civilian investigations into all reported incidents of serious police misconduct. Parliament established the special all-party committee in February 2013 on a special motion of Carolyn Bennett, Liberal Party critic on indigenous peoples. The committee w as to hold hearings on the issue of missing and murdered indigenous w omen and to propose solutions to address root causes of the violence against indigenous w omen. Human Rights Watch said that creating a parliamentary
committee w as a positive move but w as no substitute for a politically independent national commission of inquiry into the violence. On January 30, 2014, Human Rights Watch representatives testified before the committee regarding the importance of a national inquiry and the need for greater accountability for police misconduct. The official committee report contains 16 recommendations, including calls for a public aw areness campaign, “appropriate” sentences for offenders, and a DNA database for missing persons, w hich had already been announced in the government’s budget. Instead of recommending the development of a comprehensive national action plan, the committee called for an “action plan” to implement their recommendations. The committee’s recommendations for a victim’s bill of rights and for government authorities to consider improving data collection on violence against indigenous w omen are important steps, but the recommendations as a w hole are insufficient to address the scope of the problem, Human Rights Watch said. The Native Women’s Association of Canada has collected data show ing that betw een the 1960s and 2010, 582 Aboriginal w omen and girls w ere reported missing or w ere murdered in Canada. 39% of those cases occurred after 2000. Comprehensive data is no longer available since the government cut funding for the organization’s database. Police forces in Canada do not consistently collect race and ethnicity data. More than a dozen countries raised the issue during the periodic review of Canada’s human rights record by the United Nations Human Rights Council in April. Both the UN Committee on the Elimination of Discrimination against Women and the Inter-American Commission on Human Rights sent delegations to Canada to investigate. After a visit in October 2013 the UN special rapporteur on the rights of indigenous peoples, James Anaya, endorsed the call for a national inquiry. Canada’s provinces and territories, the Assembly of First Nations, and many organizations have made similar calls. Public national inquiries allow for an impartial investigation into issues of national importance. “The committee’s report confirms the concern expressed by skeptics about setting up a committee at the outset – that the government w ould use it to avoid taking decisive action on the issue,” Rhoad said. “With w hat w e have learned about violence against Canada’s indigenous
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w omen, never has the need for a politically independent national inquiry been clearer.” Along Party Lines The committee membership reflected the political balance in Parliament, in w hich the Conservative Party holds the majority of seats. The New Democratic Party (NDP) and the Liberal Party each released dissenting reports on March 7, both of w hich recommend a national inquiry and action plan. In explaining the party’s dissent, the NDP said the official committee report “does not convey that there is a public safety emergency unfolding in every corner of the country and that a coordinated response is needed to address the high rates of violence against Indigenous women and girls.” The NDP Dissenting Report It their dissenting report, the NDP committee members said it w as “appalling that after hearing w itness after w itness testify that much more needs to be done on missing and murdered Indigenous w omen and girls, the Conservatives could produce a sanitized report saying that everything is fine,” said NDP Aboriginal Affairs critic Jean Crow der. “This is an inter-generational tragedy that demands immediate action.” The NDP’s report recommends that the federal government: establish a National Commission of Public Inquiry to analyze violence against Indigenous w omen and girls; utilize Niki Ashton’s motion (M-444) to develop and implement a national action plan to address violence against Indigenous w omen and girls; ensure that Indigenous w omen lead, design and implement solutions to address this crisis; address chronic underfunding including key frontlines services, shelters, child w elfare, and research; and invest in prevention and treatment services. The Liberal Party’s Dissenting Views The Liberal Party dissenting report stated that the official committee report “does not recommend any concrete actions but instead makes a series of stay-the-course, exploratory recommendations.” Liberal MP Carolyn Bennett, one of the committee’s vice-chairs, mocked the “secretive” Conservative
government for its failure to call a national inquiry, saying Tories view any mention of such public investigations as dirty w ords. Dr. Bennett, Liberal aboriginal affairs critic, added that the recommendations in the report aren’t reflective of those made by victims’ families and other interest groups during their testimony. “Those w ere replaced by a disappointing list of w hat aren’t even recommendations,” Bennett said. “The No. 1 thing they w anted to have happen w as a national public inquiry.” Conservatives Say They Have Already Acted The Conservatives justified their resistance to an inquiry by insisting they’ve taken dozens of measures to address violence against aboriginal women since they came to pow er in 2006. The Tories recently renew ed funding to combat violence against aboriginal w omen and girls. “I believe that this report w ill go further to take action,” Tory MP Stella Ambler, chair of the special committee, said in the House of Commons just before it w as tabled. Justice Minister Peter MacKay echoed those sentiments. “What w e don’t need now is to stop and talk and study. We need more action,” he said. Canadian Hum an Rights Com m ission’s Views Earlier in the w eek, the Canadian Human Rights Commission had tabled its annual report in Parliament. “The fact remains that there has been little concrete actions so far. The problem requires real, sustainable solutions that w ill demand an unprecedented degree of effort and commitment with federal, provincial, territorial and First Nations governments w orking together,” said the report.”
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An Open Letter About Murdered & Missing Wom en Shawn Brant Mohawk Nation at Tyendinega Stephen Harper Ottawa, Ontario Dear Stephen Harper, I am w riting in regards to a mandate issued from the Mohaw k Community of Tyendinaga, dated October 27th 2013, requiring your cooperation for the facilitation of a national inquiry into the circumstances of murdered and missing First Nations Women. We had anticipated that the government of Canada w ould have voluntarily asserted its responsibility and made such an announcement during last year’s Speech From The Throne. While a minor reference w as directed to the issue, in the form of the government’s intention to strengthen anti-prostitution law s, w e felt that this served little comfort and reflected the ignorance of your administration in understanding the scope and severity of the crisis. In a report published in September 2013 by MaryAnne Pearce and recently obtained by the RCMP, some 824 First Nations w omen have now been identified as having been murdered or gone missing, w ith a majority of those cases documented as having occurred in the past 15 years. Placing that number into perspective, the National Native Women’s Association has determined that 67% of all cases initially reported have concluded in the verifiable death of the person. Accordingly, based on the data provided in the Pearce report, 552 women identified have been murdered w hile 272 remain missing and w hose remains have not yet been recovered. Your suggestion that strengthening Canada’s prostitution law s w ill serve to reduce this phenomenon is disturbing and simply intended to negatively influence the opinion of other Canadians into believing that First Nations Women are somehow responsible for their ow n victimization. It is a w ell established fact, and confirmed by the Pearce Report, that only 20% of the women identified had ever engaged in any “risky behavior” including the sex trade. Having regard for all the facts, your contempt and disrespect for First Nations w omen is both blatant and obvious. If w e w ere to exclude, from the overall numbers, those persons involved in “risky behavior” assuming that they
are unw orthy of justice, there remains 442 w omen w ho have been confirmed as having been murdered w ho have never engaged in any behavior that is inconsistent w ith your values, and w ho are equally deserving of the same protections afforded to every woman in Canada. Your unw illingness to consider this first step at reconciliation is w ell documented and understood. It is our opinion that all diplomatic means to convince you of the need for an inquiry have failed. Further, the tears and sadness of the families left behind have not moved you to any position of compassion. We have therefore resolved that w e w ill take w hatever and further actions that are deemed necessary, to compel you to call a National Inquiry into the crisis of Murdered and Missing Aboriginal Women and Girls. Respectfully submitted,
Shawn M. Brant
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Appointm ents: Victor Toews, Judge of Queen’s Bench and Victoria Talli Corpuz, UN Rapporteur Ottawa, 7 March 2014 – The Honourable Peter MacKay, P.C., Q.C., M.P. for Central Nova, Minister of Justice and Attorney General of Canada, today announced the appointment of the Honourable Victor E. Toew s as a judge of the Court of Queen’s Bench of Manitoba. Mr. Justice Toew s received a Bachelor of Law s from Robson Hall, University of Manitoba, in 1976 and w as admitted to the Bar of Manitoba in 1977. He received an Honorary Doctorate United Nations, New York – The United Nations Human Rights Council has appointed Victoria Tauli-Corpuz, an indigenous Filipina activist, as its new Special Rapporteur on the rights of indigenous peoples. Tebtebba, the Indigenous Peoples’ International Centre for Policy Research and Education, said the selection of Tauli-Corpuz, w hich the UN has not released, has been confirmed by UN Human Rights Council President Boudelaire Ndong Ella and w ill be announced March 28. Tebtebba quoted Ella as noting Tauli-Corpuz’s “active involvement w ith the United Nations and multi-
Mr. Justice Vic Toews
from University of Winnipeg in 2011. Mr. Justice Toew s w as a Member of Parliament for tw elve years and also served as a member of the Manitoba Legislative Assembly for almost five years. He served as Minister of Public Safety of Canada (2010-2013), President of the Treasury Board of Canada (2007-2010), Minister of Justice and Attorney General of Canada (2006-2007), Justice Critic for the Official Opposition (2000-2006), Attorney General and Minister of Justice, Manitoba (1997-1999), Mr. Justice Toew s also served as Director of Constitutional Law (1987-1991) and Crow n Counsel for Criminal Prosecutions (1977-1979), Manitoba Department of Justice. In addition to this, he served as in-house counsel to the Great West Life Assurance Company in from 1991 to 1995 and again in 1999. His main areas of practice w ere criminal law , constitutional law , administrative law , and employment and labour law . Mr. Justice Toew s w as an instructor at the Labour Studies Branch of the Department of Economics at the University of Manitoba (1988-1995) and has delivered numerous lectures and speeches to various organizations on legal and parliamentary matters. This appointment is effective immediately. Some observers wondered if Toew s appointment w as designed to position him for an appointment to the Supreme Court of Canada in December 2015 w hen the next vacancy w ill open because of a retirement.
stakeholder cross-regional bodies on indigenous issues and her past collaboration w ith and commitment to constructive engagement among governments and indigenous peoples.” Tauli-Corpuz, w ho founded Tebtebba in 1996, has long campaigned for the rights of indigenous peoples. She is among those w ho lobbied for more than 20 years for a Declaration on the Rights of Indigenous Peoples, w hich the United Nations adopted in 2007. She has served as chair of the UN Permanent Forum on Indigenous Issues; as an expert for the UN High Commissioner for Human Rights and chairperson- rapporteur of the UN Voluntary Fund for Indigenous Populations. She is a member of the Kankana-ey Igorot people from the Cordillera region of the northern Philippines. She says one area on w hich she w ill focus in her new role is the impact of big business, such as mining and plantations, on the rights and lands of indigenous peoples. She will succeed James Anaya, a native American, w ho is a professor of human rights law and policy at the University of Arizona's James E. Rogers College of Law.
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Settler Legal Logic From Down-Under Australian High Court Upholds Native Title
Thanks to Myles Morgan and NITV News and David Weber of ABC Canberra, Australia, 12 March 2014 – The High Court in Canberra has unanimously held that native title rights held by the Ngarla people in the Pilbara region of Western Australia are not extinguished by the grant of tw o mineral leases fifty years ago. In a one page statement, The High Court of Canberra5 backed up and w ent beyond a decision of the full Federal Court w hich found that native title rights of the Ngarla people in Western Australia could exist alongside mining leases. The dispute w as concerned with land situated at the former iron-ore mine at Mount Goldsworthy, located over 1000 kilometres north of Perth in the state's Pilbara region. That lease had been established under a State Agreement w ith the Western Australia government in 1964 and allow ed access for anyone except those interfering w ith mining activities. The mine w as closed in 1982. In 2012, the Federal Court ruled that native title rights existed for the Ngarla People but could not be exercised while the mineral lease w as in force, but that native title rights w ill be re-instated or returned w hen mining activities have ended. The government appealed. “We're very satisfied and very happy and jubilant on behalf of the Ngarla people w ho have obviously fought very hard to get this outcome," said CEO of the Yamatji Marlpa Aboriginal Corporation, Simon Haw kins. The Ngarla People successfully claimed native title rights and interests over particular land and w aters in the Pilbara region. While their claim included the areas subject to the mineral leases, a determination in relation to these areas w as suspended pending resolution of the issue of w hether the grant of the mineral leases had extinguished their native title rights and interests. The Ngarla people first w ent to court to claim native title over an area of 11,000 square kilometres in 1998. Since then, it's been a constant battle betw een the West
Australian government, mining company BHP Billiton and the Ngarla people. “Well this ends the matter so there's nothing that they can do. So effectively, this is the law now and w e w ere successful in challenging the state and others and now this is what everyone has to operate in,” said Mr Haw kins. The decision is likely to have implications for mining and pastoral leases around the nation. The case involved mining leases at Mount Goldsw orthy w here Western Australia's first major iron ore operations started in the 1960s. The West Australian government and mining company BHP had argued that mining leases completely extinguished native title. "The native title rights and interest co-exist or return to the traditional ow ners once that land use has finished." Mr Haw kins believes the WA Government is too focused on litigation. "It's forgotten about how to be more pro-active in this space and supporting those native title rights and interests that traditional ow ners have to assist them in building a capacity and assisting matters like closing the gap." He says the Ngarla people remain open to negotiation. Happy as they w ere w ith the decision, the Ngarla People still have to deal w ith a legal system w hich gives inferior status to native rights. The question of extinguishment had to be resolved at common law . The Court therefore turned to its previous decision in Western Australia v Ward6 to identify the proper test for extinguishment at common law , and held that the question that needed to be answered w as w hether the rights granted to the joint venturers under the mineral leases w ere inconsistent with the native title rights and interests claimed by the Ngarla People. This w as said to be an objective inquiry requiring identification of, and comparison betw een, the tw o sets of rights. The High Court stressed that “in order for there to be inconsistency, the existence of one set of rights w ould necessarily have to imply the non-existence of the other; the question of inconsistency was to be determined as at the time of the grant of the relevant mineral leases; and there are no "degrees of inconsistency of rights".
Western Australia v Brown  HCA 8.
(2002) 213 CLR 1;  HCA 28
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In short, there w ould be inconsistency only if the rights under the mineral leases as granted were inconsistent w ith the native title rights and interests. The fact that the later carrying out by the joint venturers of mining and other activities "in exercise of" the rights granted under the mineral leases may have been incompatible w ith the exercise of native title rights and interests w ould not itself determine questions of inconsistency and extinguishment. Argument before the High Court put forw ard tw o potential bases for inconsistency, being that the mineral leases conferred on the joint venturers exclusive possession of the subject land; or alternatively, that the tw o sets of rights necessarily clashed with each other as both "could not be exercised simultaneously in the one place". The mineral leases did not grant exclusive possession The High Court, adopting the formula it had earlier set out in Fejo v Northern Territory,7 decided that the leases could only be said to have granted exclusive possession if they had conferred on the joint venturers the unqualified right to exclude any and everyone from the land – both for any reason and for no reason at all. The rights granted under the mineral leases did not give the joint venturers exclusive possession. On the contrary, the State agreement actually expressly required the joint venturers to allow the State and third parties to have access over the leased land as long as such access did not "unduly prejudice or interfere with" the joint venturers' operations. The existence of this express provision precluded any notion of an implied conferral of a right of exclusive possession. The first argument for inconsistency (and extinguishment) therefore had to be rejected. The mining rights and native title rights are not inconsistent. The native title rights and interests asserted by the Ngarla People w ere the non-exclusive rights to access and camp on the land, to take flora, fauna, fish, w ater and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land and to care for, maintain and protect from physical harm particular sites and areas of significance. The State argued that these rights had been extinguished by the joint venturers' actual or potential conflicting use of the land pursuant to the mineral leases. The leases gave the joint venturers the rights to mine and to construct
improvements anyw here on the leased land. The State's argument w as that, because native title holders could not exercise native title rights and interests w here such activities are being carried out, the rights granted by the leases had to be seen as being w holly inconsistent w ith the claimed native title rights and interests – w hether as at the time of the grant of the mineral leases (potential inconsistency), or in any event w hen the joint venturers carried out their mining and other activities in exercise of their rights (actual inconsistency). The High Court rejected this argument decisively, finding that the decisions “in both [ Wik Peoples v Queensland8 ] and Ward established that the grant of rights to use land for particular purposes is not necessarily inconsistent with, and does not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land." Here, the limited rights granted to the joint venturers were not inconsistent w ith the native rights asserted by the Ngarla People, although the matter may have been different had the leases required the joint venturers to mine and build improvements over the w hole land. To illustrate its finding, the High Court noted that, on the day after the leases w ere each granted, and before any mining and other activities had been carried out, native title holders w ould have been able to exercise all of the rights that now are claimed anyw here on the land w ithout breaching any of the JV rights. To illustrate its finding, the High Court noted that, on the day after the leases w ere each granted, and before any mining and other activities had been carried out, native title holders w ould have been able to exercise all of the rights that now are claimed anyw here on the land w ithout breaching any of the joint venturers' rights. This meant there could be no finding of consistency. Nor does the subsequent development extinguish the native title rights. The High Court unequivocally held that the decision of the Full Federal Court in De Rose v South Australia (No 2)9 is w rong and should not be follow ed. It is not the manner in w hich a right is exercised, but the right itself, that is the crucial issue. Thanks to Clayton Utz for this information
(1996) 187 CLR 1 (2005) 145 FCR 290
 HCA 58; (1998) 195 CLR 96