First Nations Claim Dismissed On Legal Loophole

Canada: First Nations Child And Family Caring Society Of Canada To Appeal Canadian Human Rights Tribunal Decision To Dismiss Discrimination Claim For First Nations Children On A Legal Loophole

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Tuesday, 15 March 2011 23:08

The First Nations Child and Family Caring Society of Canada is deeply concerned with the ruling today from Shirish Chotalia, Chair of the Canadian Human Rights Tribunal, to dismiss the complaint filed by the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations in 2007 alleging that the Federal Government is racially discriminating against First Nations children by providing less child welfare benefit on reserve. Chair Chotalia dismissed the case on a preliminary motion brought by the Federal Government even though the Federal Government had tried, and failed, to get the case dismissed on similar grounds in Federal Court on two previous occasions. Chair Shirish Chotalia did not address the overwhelming evidence of the inequity and harm experienced by First Nations children on reserves even though she was in possession of numerous reports confirming the problems such as the Auditor General of Canada (2008), the Standing Committee on Public Accounts (2009) and internal documents from the Department of Indian and Northern Affairs Canada. Instead, Chair Shirish Chotalia dismissed the case on a legal technicality suggesting that the Federal Government can provide a different, and inequitable, level of service to First Nations children so long as the Provinces/Territories provide the service to all other children. In issuing this ruling, Chair Shirish Chotalia, in effect legalized racial discrimination against vulnerable children on reserve by the Federal Government.

The First Nations Child and Family Caring Society of Canada will immediately appeal Chair Shirish Chotalia's decision to Federal Court. This case is being followed by over 7200 Canadians and organizations making it the most formally watched court case in Canadian history. Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, says that "the Government of Canada should not be immune from human rights laws and obligations to First Nations children because of a legal technicality and we will take all necessary measures to ensure that this case is decided in a public forum on the full set of facts - the children deserve nothing less." The appeal will be filed in Federal Court in the next 30 days.

Source: First Nations Child and Family Caring Society of Canada

Kapyong transfer invalid, court rules First Nations see decision as a victory in fight for urban reserve Last Updated: Wednesday, September 30, 2009 CBC News http://www.cbc.ca/canada/manitoba/story/2009/09/30/300909-kapyong-decision-invalid.html The Kapyong Barracks were built on a 90-hectare parcel of land that is now nestled between Tuxedo and River Heights, two affluent Winnipeg neighbourhoods.The Kapyong Barracks were built on a 90-hectare parcel of land that is now nestled between Tuxedo and River Heights, two affluent Winnipeg neighbourhoods. The transfer of a former military base in suburban Winnipeg to a Crown corporation for redevelopment and sale has been declared invalid, a Federal Court judge ruled Wednesday. The 90-hectare parcel of land along Kenaston Boulevard, known as Kapyong Barracks, has been vacant since 2004 when the 2nd Battalion, Princess Patricia's Canadian Light Infantry, relocated to CFB Shilo near Brandon, Man. In a ruling made public Wednesday, Justice Douglas Campbell said the federal government didn't do enough consultation with First Nations groups over the future use of the land before transferring it to the Canada Lands Corp., which would redevelop and sell the land. In his ruling, Campbell called Kapyong "prime land for commercial development." The land in question is the site of the former barracks — south of Grant Avenue, west of Kenaston Boulevard, and north of Wilkes Avenue. It does not include the swath of homes in the area that used to be residences for soldiers and their families. Lawyers for the government argued they had no duty to consult with the First Nations groups when decisions about the future of Kapyong were made. The court disagreed.

Federal court Justice Douglas Campbell's order: "Canada acted contrary to law by failing to meet the mandatory legal requirement of consultation with the Brokenhead and Peguis First Nations before the making of the November 2007 decision to transfer the surplus lands at Kapyong Barracks to the Canada Lands Company pursuant to the Treasury Board Directive on the Sale or Transfer of Surplus Real Property; and, as a result, the November 2007 decision is invalid."

"While the record discloses that some dialogue took place about the disposition of the Kapyong Barracks ... it also establishes that from the beginning to the end of the decision making with respect to the lands, it is clear that Canada had no intention to grant any meaningful consultation," Campbell said. Major win for First Nations: lawyer The decision marks a legal victory for a group of Manitoba First Nations communities that have been embroiled in a legal battle over the land. Seven First Nations groups had argued the federal government should have used the property to settle outstanding land claims. They want the land to develop housing and native-owned enterprises. Norman Boudreau, lawyer for the communities, said the ruling paves the way for the potential acquisition of some or all of the Kapyong land. "What this says that Canada has to sit down with the First Nations, and consult with the First Nations as to what is it that they want to do with the property," Boudreau said. Chief Glenn Hudson of the Peguis First Nation, one of seven bands that took the federal government to court, said the ruling proves First Nations land treaties are living documents the Crown must fulfill. He also said that having land within Winnipeg is a tremendous opportunity for First Nations. "We look at the business development side but also there's the residential component. We're going to explore all options and certainly, we want to do not only what's in our First Nations interest but also in the interest of the society around us," Hudson said. Boudreau said the First Nations would be meeting internally to discuss their legal victory and then would likely instruct their lawyers to meet with federal lawyers to work out a plan for future steps. Wednesday's court order also orders the government to pay the aboriginal groups' legal costs. Officials with the federal Department of National Defence said they are studying the court ruling and its implications before making any comment.

Election: First Nations education

Federal Election: First Nations call for a debate on the under-funding of their education

    GATINEAU, QC, Sept. 12 /CNW Telbec/ - Near 300 parents, children and
Chiefs from the First Nations communities in Quebec are going to the office
Indian and Northern Affairs Canada (INAC) to denounce the dramatic situation
caused by the chronic under-funding of First Nations education. They want
funding for First Nations education to become a priority of the federal
elections.
First Nations education is funded according to an old federal formula
which dates back to 1988 and has not been indexed to the cost of living since
1996. Consequently, the schools in the First Nations are not able to offer
services and salary conditions comparable to those offered by other Canadian
schools. Furthermore, this formula has not been revised to take account of new
developments and costs in education, while it was done in provincial schools
networks. There are important costs to be met, in such areas as operating
school libraries, offering sports and recreation activities, and keeping up to
date with new technological development. The funding formula does not take
account of any of these costs.
Five years ago, under increasing pressure from the First Nations, INAC
made the commitment to revise this outdated funding formula. But it has still
not been revised. This is the background which explains why our parents and
children, accompanied by the Chiefs of their communities, are here today at
the INAC Headquarters to stress that the situation has gone on far too long.
It is even more severe when we note that there are studies indicating a lack
of funding not just for the schools but also for supporting young people who
want to go on to post-secondary studies.
Gilbert Whiteduck, Chief of the Algonquin community of Kitigan Zibi, is
categorical in his remarks: "We no longer have to demonstrate the
under-funding of First Nations education. The First Nations have participated
in a large number of studies and consultations, all of which have confirmed
this under-funding and the importance of investing in education. But the
federal government, which is responsible for First Nations education, has
steadfastly refused to increase funding on the basis of these studies and
consultations." Chief Whiteduck feels that now is the time for the federal
government to finally respect its commitments and responsibilities.
Lise Bastien, Director of the First Nations Education Council (FNEC),
points out another important aspect: "Twice, the Minister for Indian Affairs
has threatened to attack the funding of First Nations organizations which hold
demonstrations to denounce the situation. The Chiefs of the FNEC member
communities do not take such a threat lightly. They refuse to be silent and to
accept conditions that compromise our right to receive an education of
comparable quality to the education received by other citizens."
Just over a year ago, the FNEC launched a campaign
(www.avenir-future.com) to build public awareness about the chronic
under-funding of First Nations education. Since then, others have joined us in
denouncing this situation, including Ontario's Minister of Aboriginal Affairs
and the Premier of Quebec.

Ref.: McGuinty gets credit for making native people a priority - Nov 30,
2007 04:30 AM - Ian Urquhart (excerpt from an article about Michael Bryant,
Ontario's Minister of Aboriginal Affairs)

"The province could, for example, take over responsibility for on-reserve
schools from Ottawa, which does an abysmal job in this area. But reserve
schools now receive substantially less cash per student than schools in
the rest of the province, so the province would want Ottawa to top up the
funding before the transfer of responsibility took place."

Ref.: The provinces call on Ottawa to meet with the First Nations -
Canadian Press Edition of Thursday, July 17, 2008

Mr. Charest affirmed that funding of education in the First Nations would
be among the priority issues to be discussed at a future meeting. He
noted that in Canada, spending on the education of First Nations children
comes to less than half of the amount spent for the education of children
in the non-Aboriginal communities: "In itself, this number tells us a
great deal. There are several priorities, and we don't want to close the
door on this issue."
Free translation

Eva Ottawa, Grand Chief of the Atikamekw Nation, terms the chronic
under-funding of First Nations education as appalling: "This unacceptable
situation is simply a disgrace and a scandal. It is all the more inexcusable
when we note that Prime Minister Harper recently offered an apology on behalf
of Canada for the tragedy caused by the residential schools. The Chiefs will
assuredly use the calling of a federal election as an opportunity to demand
that all the political parties clearly indicate whether they intend to
continue this policy of keeping First Nations education in a state of chronic
under-funding or whether they intend to put an immediate end to that policy."

The FNEC is an association representing 22 communities of Quebec for more
than 20 years. Its main mission is to advocate the interests of First Nations
communities to offer better educational services to all First Nations
learners.
For more information on the FNEC or on our educational awareness
campaign, please visit our website at www.cepn-fnec.com.

For further information: Thanissa Lainé, Communication Officer, FNEC,
Cell.: (418) 932-4351; Raymond Sioui, Assistant Director, FNEC, Cell.: (418)
932-4328

FIRST NATIONS EDUCATION COUNCIL - More on this organization News Releases (14) Photo Archive

Canada: Aboriginal and Treaty Rights

Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. ...

The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour. ...

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”

***

Court sends a chill through the woods

PATRICK BRETHOUR

Globe and Mail Update

August 28, 2008 at 6:00 AM EDT

British Columbia's forestry industry is about to find out who is really in charge of deciding what trees can be cut, and where. Hint: It isn't the Ministry of Forests.

The Gitanyow First Nation has won a big legal victory in its six-year quest to exert control over forest licences being granted in what it sees as its territory – 1.7 million hectares in the province's northwest. The decision from the B.C. Supreme Court is very clear that the Gitanyow don't have a veto on forestry on those lands. Yup, no veto, none at all – just the ability to scupper the decisions of the Forestry Ministry if they clash with the positions of the band.

The Gitanyow decision is the latest in a string of legal victories for aboriginal bands seeking to assert their authority over “traditional territory” – generally speaking, a big swath of land only part of which would ever be formally handed over in a treaty negotiation. That day is unlikely to come any time soon: The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour.

Such is the case with the Gitanyow, who watched with growing frustration over decades as forestry firms clear-cut timber on the bands' traditional territory. Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. Frustration turned to a lawsuit in 2002, culminating in a new case last year, after a regional director for the Forestry Ministry issued a batch of new licences, despite the Gitanyow's objections.

There had been extensive talks, good-faith negotiations, and even a signed agreement that defined how the province and Gitanyow would work together on forestry issues until such time that a treaty could be negotiated. The court nevertheless ruled that the province fell short in its duty to meaningfully consult the Gitanyow and reasonably accommodate their concerns. Translation: It's not enough to listen to aboriginal objections; they must be acted on.

It's hard to see how the ministry's regional director could have acted otherwise, considering what the Gitanyow were demanding. The band wanted recognition of its title, half of the stumpage fees and other forestry revenue from the area, subordination of the tree-licence process to the forestry management agreement and a requirement that forestry companies pay hefty deposits to pay for replanting. Those are the kinds of demands at the heart of treaty negotiations, and some would require a wholesale rewriting of forestry legislation. All are well beyond the pay grade of a regional director. Addressing those concerns means, in essence, reaching a treaty settlement with the Gitanyow, something the province has tried and failed to do since 1994.

Yet, the court judgment doesn't address this political reality. Instead, the judge seems to say that in the face of a strong claim to aboriginal rights and title, the Crown must make reasonable concessions. No such obligation to make reasonable concessions is placed on aboriginals. No points for guessing how talks will go if one side knows all it has to do is stick to its guns and it will eventually get what it wants in court.

The forestry businesses are mere bystanders, even though the Gitanyow had argued their new licences should be cancelled outright. The court turned down that request, at least for now, and both parties will have to make submissions on what can be done. Perhaps that will mean revenue sharing. Perhaps the court will merely shred tree licences negotiated in good faith.

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”

Federal contamination of Indigenous lands John Hummel has created a usable database of federal contaminated sites by federal riding, and has alerted federal MP's. Excellent work John!!

“It really hit me that so many of the ridings with the most contaminated sites were northern, or rural, or heavily First Nations in population. (MP Cullen)

Dear Friends,

It took a while but, this is is exactly what I had hoped would happen from my press releases and the other emails I sent to 2,500 people including: every MP in Canada, all opposition candidates for each Federal riding where there were 9 or more Federal toxic sites plus, to hundreds of media, Environmental and Social/Justice NGO's Worldwide, hundreds of First Nations, Métis and Inuit leaders, hundreds of 'Grassroots' people and Dr.'s and scientists worldwide. Unity amongst all people is all I am seeking on this issue. Think, for a moment, of the children who might be left with this toxic legacy if we ignore it in our generation! Now, perhaps, this toxic mess in Canada will finally be cleaned up before even more people get sick!

Link to One of Many news articles on this topic in the last few days:

http://www.bclocalnews.com/bc_north/lakesdistrictnews/news/27139674.html

For Land and Life,

John H.W. Hummel

Pollution Researcher,

Nelson, B.C.

Canada

Cullen calls for strong action on contaminated sites Published: August 19, 2008 11:00 PM

Skeena-Bulkley Valley MP Nathan Cullen has reacted strongly to the Aug. 13 LD News story detailing that 984 federal contaminated sites are located in his riding, the highest total for federal ridings in B.C., and the second-highest in Canada.

“I’ve been the NDP’s Environment critic in Parliament for four years, and I’ve never even seen this report,” commented Cullen.

“It really hit me that so many of the ridings with the most contaminated sites were northern, or rural, or heavily First Nations in population.

What really struck me was how many sites had no action plan and no site management strategy,” he said.

The Treasury Board database came to the notice of MPs due to the efforts of a toxics researcher in Nelson, B.C.

“It just shows what citizens can do when they’re determined to fight pollution,” said Cullen.

“I think the number of contaminated sites in Skeena-Bulkley Valley may be a little high; I went through and sampled the database, and some sites appear to be duplicated,” he commented.

“But, still, we need the Treasury Board to step up, and any individual owners who are responsible for those contaminated sites.

We need to be more strict, and have better laws. Anyone who contaminates a site ought to have to post bonds to take care of clean-up costs. We need better protection.

There’s two issues: the list itself, and adding to the list. That’s what we don’t want. In order to stop the list of contaminated sites growing, people have to know they’re going to be hit with fines, if they don’t adhere to the laws.”

He said the policy of the federal Conservative government is woefully inadequate. “We release toxins into the environment, and find them in the products we buy, and the government just blinks.”

“Ignorance is not an excuse; especially if it’s willful. There were no laws, and no fines, but that can’t go on. We can no longer pretend there is no cost to pollution.”

“If you have 6,000 metres of contaminated soil, you can’t just put in a front end loader and clean it up in an afternoon. Some of those sites could take years to clean up, and it could take hundreds of millions of dollars, if not billions.”

The President of the Treasury Board and the Minister of the Environment should be aware of the report.

“They’re given briefings by their officials,” he said.

Cullen said the NDP caucus intends to put pressure on both ministers to get some action.

“As the party’s Environment critic, I’ve alerted all NDP MPs as to the contaminated sites database. We’re going to meet as a caucus and develop a policy we hope to take to an all-party committee in Parliament.

We need some action across party lines on this. The contaminated sites are a national problem. We need to band together to clean up these sites, and then enact tougher legislation to protect future generations,” he concluded.

Canada can learn from Yukon's unique partnership

GARY MASON

From Tuesday's Globe and Mail July 29, 2008 at 4:20 AM EDT

WHITEHORSE — In this often forgotten part of Canada, there is a revolution under way. And with any luck, and with further progress, it may be a model for what native/non-native relations can be in this country.

"The settlement of land claims and the increased engagement of the First Nations people in the political process and the economy have transformed and improved the most important relationship in the Yukon," says University of Waterloo professor Ken Coates, an authority on the North.

Few Canadians took notice when the federal government and the Yukon First Nations signed the Umbrella Final Agreement in 1993. As of today, it has provided the foundation for land-claims agreements with 11 of Yukon's 14 native bands.

When the first four signed their pacts in 1995, many predicted disaster. The deals were unique in that they gave the bands extraordinary and unprecedented powers of self-government - including the authority to draft and pass their own legislation.

In many ways, the experiment was designed to fail. The aboriginal bands were thrust into nationhood with little consideration given to the capacity in which they had to take on these responsibilities. They were given the right to form their own governments, build their own economies, with virtually no assistance.

The first few years were discouraging. Native leaders, by their own admission, didn't have a clue what they were doing. But they didn't do what many expected them to: give up. They didn't drink away the windfalls from their land-claims settlements either, no matter the stereotype. They put the money in trusts until the day came when they could begin investing it wisely.

In the years since the first agreements were signed, the various councils have been busy building governments, a painstaking and tedious process, according to Grand Chief Andy Carville. Mr. Carville is head of the Council of Yukon First Nations and speaks for most of the tribes in the territory.

Getting out from under the oppressive regime of the Indian Act has given Yukon native communities their pride and dignity back, Mr. Carville says. Self-governance has allowed the various bands to focus attention and resources on what's most important to them, like survival of their culture. They have the power to take over responsibility for areas such as education, health and justice - and some are doing just that.

The Carcross/Tagish First Nation is close to passing the Family Act, which will give them complete control over the care of children. Another is developing an education curriculum. A third is designing justice legislation, while a fourth is putting the final touches on its own Fish and Wildlife Act.

How well it's carried out on the ground will be the next big test of this grand experiment.

Much of this wouldn't have been done without the co-operation of the Yukon government. While there have been inevitable sources of conflict - which have prompted lawsuits in some cases - more often it has been a mutually respectful and supportive relationship. Mr. Carville told me that Premier Dennis Fentie "wants to make sure we are true partners in the North. That will help make us more self-sufficient."

Mr. Fentie told me: "We're building the Yukon's future together."

In this case, they appear to be more than nice-sounding words.

The Yukon Forum is a four-times-a-year meeting between members of Mr. Fentie's cabinet and the chiefs of all the self-governing nations to discuss issues of mutual concern. The Cooperation in Governance Act recognizes that the native bands and Yukon government both have jurisdiction and authority over many similar matters. The Yukon Chapter of the Northern Strategy - a federally funded economic development program - is a constantly evolving vision of the territory shared by the government and native bands. The Yukon Oil and Gas Act states that no exploration will take place where land claims have not been settled without the consent of the band.

And on it goes. Mr. Fentie realizes that progress in the territory will not be made unless it is joint progress. In Yukon, collaborative governance is more than just a catchy buzz phrase. Of course, it's still early in the land-claims process. It will likely be years before native groups are governed by institutions that resemble the governments most of us know. Down the road, the Council of Yukon First Nations will likely morph into some type of central government for the aboriginal community at large.

Not all is perfect. Drug and alcohol problems are rampant in the native communities. Most people in Yukon jails and prisons are aboriginal. Of those, 80 per cent will reoffend. But many observers see hope on the horizon. More aboriginal children than ever before are graduating from high school and going on to get some postsecondary education. They are returning to their communities to become leaders.

"I think all our lives are better now and will be much better in 10, 20 years as a result of these agreements," Mr. Carville says. "We'll show Canada this should be the model for native/non-native relations in this country."