Aboriginal Rights

Treaty Rights are Not Policy Matters, Guest Post by Carrie Garrow

Kate Fort3 Comments

Responding to this article, Prof. Garrow has some thoughts about the role of the Governor General (the Crown’s representative) in Canada regarding treaties. The article implies that the First Nations insistence on working with the Governor General is a misunderstanding of how the Canadian government operates today. In actuality, there are very real legal reasons for this request:

Treaty Rights Are Not Policy Matters

Prime Minister Harper’s insistence on excluding Governor-General David Johnston from talks with the First Nations leaders illustrates Canada’s degradation of First Nations’ treaty rights to a ‘policy matter.’ What Harper fails to understand is that First Nations entered into treaties with Great Britain.  Moreover, Canada refuses to acknowledge many of these treaties signed by Great Britain and the First Nations, claiming they have not been implemented or sanctioned by Canadian legislation.  Thus a representative of the signing country, Great Britain, is imperative at any discussion regarding treaty rights.  Harper cannot claim Canada is not bound by the treaties and then also claim the sovereign bound by the treaties, Great Britain, cannot attend the meetings.  Furthermore, Canada endorsed the United Nations Declarations on the Rights of Indigenous Peoples, which states that Indigenous peoples have the right to recognition and enforcement of treaties.  Yet Harper repeatedly refuses to put forth a mechanism to allow Canada to recognize First Nation treaty rights.  Instead he continually attempts to relegate treaties rights to the status of ‘policy matters.’  Given that First Nations predated the formation of Canada, have inherent sovereignty as recognized in treaties, and are now incorporated into the Canadian Constitution, they are above and beyond simple policy matters.  If Canada decides not to honor its legal obligations by implementing First Nations’ treaty rights, then First Nations have no option but to demand a meeting with Great Britain and Canada, to hold Canada accountable.  Unfortunately, Harper and the Canadian government do not understand the legal foundation of First Nations and as a result, First Nations’ sovereignty and Chief Spence’s life hangs in the balance.

Ontario Appeals Court Refuses to Extradite Aboriginal Drug Couriers to US because of Harsh Sentences and Prisoner Abuses

Matthew L.M. Fletcher

Here is the opinion in :

AG Canada v Leonard & Gionet

The court’s summary:

L and M were Aboriginal Canadians whose extradition was sought by the United States of America to stand trial on drug charges. Their aboriginality and the systemic factors identified by the Supreme Court of Canada in R. v. Gladue would not be considered in U.S. sentencing proceedings. Land M could both be prosecuted in Canada for the conduct that gave rise to the U.S. charges. L entered the United States with approximately 46,000 ecstasy pills. He was 18 years old at the time of the offence and had no criminal record. If convicted, he would probably receive a sentence of between 15 years, 8 months’ to 19 years, 7 months’ imprisonment with no prospect of release until 85 per cent of the sentence had been served. The U.S. prisons to which he would likely be assigned if convicted lacked culturally appropriate programs for Aboriginal inmates. If tried and convicted in Canada, L would likely receive a conditional or relatively short prison sentence. M was allegedly involved in importing oxycodone into the United States from Canada. If convicted in the United States, he faced a sentence of between six and ten years. He submitted that, in Canada, the sentencing range was three to five years and that consideration of his Aboriginal status and the Gladue principles could yield a lower sentence. L and M were committed forextradition. In considering whether to surrender them, the Minister of Justice found that their Aboriginal status and the Gladue principles were not relevant to an analysis under s. 6 of the Canadian Charter of Rights and Freedoms. He found that the Gladue factors were relevant in assessing the applicants’ claims that surrender would violate their rights under s. 7 of the Charter, but concluded that surrendering them would not shock the conscience. He also found that surrender would not be ”unjust or oppressive” under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. He ordered their surrender. The applicants applied for judicial review of that decision. L also appealed his committal order. [The court granted the application]

Saginaw Chippewa Indian Tribe Supports Idle No More

Matthew L.M. Fletcher

Press release:

Press Release – Idle No More

Tribal council resolution:

Resolution No. 13-043

From the press release:

The Saginaw Chippewa Indian Tribe of Michigan has planned a Flash Mob Round Dance for Friday, January 11, 2013, at 1 p.m. on the comers of Broadway and Main streets in Downtown Mt. Pleasant, Michigan, in conjunction with peaceful demonstrations entitled Idle No More.

Treaty Six Nations Press Release Regarding James Anaya

Kate Fort

According to this press release from the Confederacy of Treaty Six First Nations, UN Special Rapporteur James Anaya has been denied a visa by the Canadian government three times.

H/T to C.G.

UN Indigenous Rights Special Rapporteur Calls for Dialogue with Canadian Aboriginal Rights Protesters

Matthew L.M. Fletcher

Here.

An excerpt:

The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, urged the Government of Canada and Aboriginal leaders to undertake meaningful dialogue in light of First Nations protests and a month-long hunger strike by Chief Theresa Spence of the Attawapiskat First Nation.

“I am encouraged by reports that Prime Minister Stephen Harper has agreed to meet with First Nations Chiefs and leadership on 11 January 2013 to discuss issues related to Aboriginal and treaty rights as well as economic development,” Mr. Anaya said. “Both the Government of Canada and First Nations representatives must take full advantage of this opportunity to rebuild relationships in a true spirit of good faith and partnership.”

The announcement of the meeting followed weeks of protests carried out by Aboriginal leaders and activists within a movement referred to as ‘Idle no more.’ The movement has been punctuated by Chief Spence’s hunger strike that has been ongoing since 11 December 2012. “I would like to add my voice to the concern expressed by many over the health condition of Chief Spence, who I understand will be joining indigenous leaders at this week’s meeting,” the independent expert said.

The protests and hunger strike are carried in the context of complaints about aspects of the relationships between First Nations in Canada and the Government, including in the context of recent federal legislation and executive decisions affecting Aboriginal peoples.

“Dialogue between the Government and First Nations should proceed in accordance with the standards expressed in the UN Declaration* on the Rights of Indigenous Peoples,” the Special Rapporteur emphasized. Mr. Anaya recalled that the Government affirmed a “commitment to continue working in partnership with Aboriginal peoples and in accordance with a relationship based on good faith, partnership and mutual respect,” in its statement of support for the Declaration on 12 November 2010.

Canadian Court Rules Métis and Non-Status Indians are Indians

Matthew L.M. Fletcher1 Comment

Here is news coverage. Thanks to R.F., one of our Senior Canadian Correspondents.

The 175-page opinion is here. And here:

Daniels v Canada

IdleNoMore Coverage on TurtleTalk

Kate Fort1 Comment

Much of the IdleNoMore coverage moves even faster than a blog can (fast though we may be). We are trying to use the twitter feed (@ILPCTurtleTalk) more to retweet information as it comes up. Just today it looks like Prime Minister Harper has agreed to meet with First Nations leaders on January 11th, that Chief Spence will continue her hunger strike until the meeting occurs, and that there are border blockades planned at the Blue Water Bridge in Sarnia and the First Bridge at Akwesasne for January 5th. As the inevitable legal developments arise from this activism, we will certainly cover and link to the documents here on TurtleTalk, as always.

Other twitter feeds we’ve found full of great information include @afixedaddress, @WabKinew, @APTNNews, @goodfox, and @NativeApprops. We’re sure there are many, many others, and please feel free to leave them in the comment section for our readers.

More on Idle No More

Matthew L.M. Fletcher

Here (“Idle No More and Settler Colonialism: We Are All Treaty People“) and here (“InvisibleNoMore“).

Thanks to Patrick O’Donnell.

Aamjiwnaang First Nation Blockade of CN Rail Line Held in Contempt of Court

Matthew L.M. Fletcher

News coverage here. Excerpt:

A contempt of court order was issued against the Sarnia CN Rail blockade Tuesday for failing to comply with a previous court injunction to remove it when it began 13 days ago in support of the Idle No More movement.

Named in the court order is Ron Plain, the spokesman for the people mounting the blockade. He is scheduled to be in Sarnia court Wednesday at 11 a.m. according to a statement released by members of the Aamjiwnaang First Nation blockade.

First Nations protests over Canadian Bill C-45

Matthew Campbell

Articles can be found here, here, and here, among other places.

A snippet of one of the articles here:

Approximately 200 people braved the cold to attend a Bill C-45 Prayer Gathering in front of the Saskatchewan Legislature on Sunday. The event was part of a growing opposition from First Nations communities against the second federal omnibus budget implementation bill.

The far-reaching bill includes changes to the Indian Act, the Navigable Waters Protection Act and the Fisheries Act, among others.

According to many First Nations groups these changes will have a drastic and negative affect on their communities and were proposed without proper consultation.

“We hope that Canadian society and the Saskatchewan public will stand with us and not let this happen,” said Chief Barry Kennedy of Carry the Kettle First Nation.