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The latest on current events including FNEA developments.
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<e-notes> from [email protected] 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 TwistOn The Harper-Atleo Agreementon the First Nation Education Bill
Robin Sears is a well-known insider lobbyist on
Parliament Hill. A principal of “the Earnscliffe Strategy
Group.” He writes in this month’s influential Policy
magazine, reprinted by the equally influential iPolitics
news, about a weird genesis of the strange 48-hour-notice
February 7 meeting of prominent hundreds in far-away
Kainai country of Treaty 7, featuring an announcement by
Stephen Harper and Shawn Atleo.
According to Sears, it all happened on December 9 while
the Gatineau Summit Assembly of Chiefs from all across
Canada were debating resolutions. But the story takes
place not in the Ottawa Valley, but rather at Nelson
Mandela’s funeral in South Africa.
Yes. Sears reports what happened in South Africa as
history written in “moments of unforeseen opportunity,
blessed serendipity and politically harmonic
convergence.” That’s where the still-to-be-unveiled First
Nations Education Act was agreed upon.
The Canadian delegation to the ceremonial funeral of the
famed icon of principled courage, Nelson Mandela was, as
Sears reports, an unusual group of former prime ministers,
premiers and governors-general, “some who rarely spoke
to each other, others who were barely on speaking terms.”
But there they were, having their closing dinner together
before heading back to Canada. And one of the invited
guests was Shawn Atleo, National Chief of the AFN.
According to Sears, the powerful collection of Canadian
leaders were having a convivial dinner of “laughter and
shared stories,” while the minions back home were
running the country. But not for the National Chief. His
dinner was interrupted with his Blackberry ringing about
the Gatineau assembly of hundreds of Chiefs which had
gathered with much pre-conference grumbles about
challenging leadership, etc.
Atleo had decided the opportunity to attend the good-bye
to the highly revered Mandela who had inspired so many
people all over the world was 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
which 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-be-
rejected draft bill only a month earlier. It had been curtly
dismissed by Atleo in an open letter.”
And straight from the Assembly backrooms – it was mid-
morning in Ottawa, dinnertime in South Africa – that there
was this “astonishing message” about the Education Act
resolution which had just passed unanimously by the
hundreds.
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -2-
an informative <e-note> by [email protected] 13 March 2014 Edition
There had not been much debate. Rather there was a three-
hour 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 was
necessary, and he was certain First Nations were all
waiting for his Bill.
Sears saw this as a “cathartic debate” – everyone felt
better and were ready to move on. He felt “a clear
resolution” had emerged. As he saw it, “There was 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 would 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 away, both his critics and his
friends could have an open discussion about the merits or
miscalculation of his education strategy, without having to
resort to oratorical excess.
“This was the message that erupted on Atleo’s
BlackBerry, late at night, thousands of miles away. He
immediately recognized the importance of the decision
and the power of this occasion to help secure a path
forward. Atleo reported to the Canadian delegation dinner
at Mandela’s memorial in South Africa what had just been
agreed to in Canada, and was greeted with 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 who struggled so hard on all
sides, behind the scenes, to make the breakthrough real
will have their day in the sun.”
But Back to the Real World
Now Sears was personally present for the debate in
Gatineau. What he saw and what most observers saw were
two quite different events.
As Olesia Plokhii reported in iPolitics about what had
happened in Gatinea, “[AFN] chiefs cemented their
opposition to Ottawa’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 with the
government.”
This was the announcement which drew “smiles and
applause” from the Canadian delegation in South Africa?
[Inexplicably, iPolitics published Robin Sears’ article
without comment, although it seriously contradicts the
incontrovertible facts presented by its own reporter.]
The AFN itself issued a media release on December 12.
“This week leaders from across this country unanimously
reaffirmed the assertion of First Nation inherent rights,
title, Treaties and jurisdiction as the way forward to take
control of all the activities that affect our lives, our lands
and our citizens," said AFN Nova Scotia-Newfoundland
Regional Chief Morley Googoo.
"This includes our reaffirmation of First Nations control
of First Nations education. . . First Nations confirmed
through resolution that we will 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 work with us on an approach that will lead to
success for our students and children. Our children need
action now and we must get it right, right now."
This is the message which the Canadian delegation
greeted with “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 work of negotiating local level governance
structures and funding mechanisms, one by one, will
begin. Then negotiations over curriculum and hiring will
need to be undertaken.
“And then, of course, there will be scrutiny of how well
the reserve schools are run.” That, Sears says, “will 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 between Canada’s first peoples and its
governments — a journey to which Shawn Atleo has
devoted his career.”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -3-
an informative <e-note> by [email protected] 13 March 2014 Edition
But the Mystery Rem ains
So the mystery remains. Who made
the phone call to Shawn Atleo in
Africa? Robin Sears? If not, who?
And what was the message about
Gatineau that would have resulted in
“smiles and applause”?
How did Robin Sears find out about
the call and its marvellous good
news? Is Sears the victim of
misinformation? Or misperception?
Or? What is going on here?
If there was agreement in Gatineau,
why was it that it was not until 48
hours before the Kainai meeting did
anyone know anything about it? That
to this day, no one knows what is
“the Agreement” that was
announced there?
Will the mystery ever be cleared up?
Will history recall the magic
moment of Gatineau? Or will it see
Gatineau as a strong voice of Chiefs from across Canada
that they are determined to keep the federal government
from legislating control of First Nation education?
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
Fourteen months after the
Jan. 11, 2013 nationally
televised drama in Ottawa,
which saw Assembly of First
Nations (AFN) National Chief Shawn A-in-chut Atleo on
the inside meeting with Conservative Prime Minister
Stephen Harper, during Attawapiskat Chief Theresa
Spence's protest, while the other side of the door was
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
Assembly of Manitoba Chiefs, in particular Mathias
Colomb Cree Nation Chief Arlen Dumas from
Pukatawagan, and Idle No More - Northern Manitoba's
Lisa Currier – with the focus this time being on Atleo's
support for the Harper government's proposed First
Nations Control of First Nations Education Act.
Atleo was in Thompson to meet with the Assembly of
Manitoba Chiefs and explain the Assembly of First
Nations position supporting the First Nations Control of
First Nations Education Act.
The proposed legislation calls for standards consistent
with provincial standards off-reserve and says students
will have to meet attendance requirements, while teachers
will have to be properly certified. Ottawa is to fund core
education, which includes language and cultural instruc-
tion, with $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 with the $1.25-billion, the federal government
has offered another $500-million over seven years to go
toward infrastructure and $160-million over four years for
implementation.
Currier, a community advocate representing women in
Stephen Harepr and Shawn Atleo at Kainai:
The Announcement of A Made in South Africa Agreement?
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -4-
an informative <e-note> by [email protected] 13 March 2014 Edition
leadership perspectives and Idle No More - Northern
Manitoba, presented Atleo with 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 showing them
that we can assert our Inherent Right to educate
ourselves; to build our own identity, institutions and
systems. When ½ of our population consists of our
young people who will be attending these schools
under the FNEA, how can we empower them to assert
and protect our rights?
"Change comes through educating ourselves, when we
do not educate ourselves on Inherent and Treaty Rights
how can we protect them? How can we teach our
young people language and culture with imposed
provincial curriculums and standards? Change has been
done in the past through educating ourselves because
we have to when it comes to understanding where we
are so we know what we 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 Ottawa 14
months ago, instead surrendered about 7 of his allotted 10
minutes for speaking to the assembly to Currier to make
her own remarks and present Atleo with the petition.
Like Atleo, however, Manitoba Keewatinowi Okimakanak
(MKO) Grand Chief David Harper was in Standoff,
Alberta on the Treaty 7 Kainai Blood Tribe First Nation
with Prime Minister Harper in a show of support for the
proposed First Nations Control of First Nations Education
Act when the Tories unveiled it Feb. 7, as MKO supports
the proposed legislation, which [is said to] contain some
changes to the draft legislative proposal shared with First
Nations chiefs by the federal government last October.
In a March 6 news release, Grand Chief Nepinak says, the
Manitoba chiefs also wanted Atleo to provide "an
explanation of AFN activities which appear outside the
mandate provided by First Nations leadership."
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 .
. . . and this just in:
National Chief Atleo on “the Agreement”
Saskatoon, 11 March 2014 – “Now it is up togovernment to do their job to enact that [theproposed First Nations Education Act in a way thatrespects the five conditions."
So said Shawn Atleo, National Chief of the Assemblyof First Nations after a lecture at the University ofSaskatchewan last night.
The conditions he referred to were those set out in astrong resolution passed at the Gatineau ChiefsAssembly December 9,
“Closing the gap on First Nations education musthappen. . . It is unacceptable.”
"I don't have a mandate for example to negotiate thatwith the federal government. People ask me if it'snew money or how did those numbers get arrived at.
I don't have the mandate to negotiate thosenumbers," Atleo said.
"In my view enabling legislation is the k ind of routethat is required but it can't be prescriptive. It has tohonour the right for education to exist at the treatyor nation level and for those treaty nations to controltheir own education," he explained.
"This should be the k ind of enabling legislation thatprincipally establishes a funding relationshipbetween treasury board and the education systemsthat the First Nations establish themselves."
"I do think that there is more work to be done... thereis more advocacy work that is required. Some of thechiefs may ask me to do (it) and I will continue topush but the bulk of it though is up to First Nations topress themselves," he said.
"This change must and will occur, over what timeframe? I would hope this work happens soonerrather than later."
Thanks to Kelly Malone, News Talk 650, CKOM
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -5-
an informative <e-note> by [email protected] 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-to-
nation 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-Aski is that the
funding does not take effect this fiscal year and that
the $500-million (over seven years) for education
infrastructure spread across all First Nations across
Canada does not meet the current 12-year back log in
school construction in Nishnawbe-Aski alone.
Ontario Regional Chief Stan Beardy said he is cautious in
his approach towards the new act, noting that “it is unclear
how this agreement came about and how the joint work
will be accomplished.”
The proposed capital funding investment of $500 million
over seven years would not even meet the needs of First
Nations in Ontario, Beardy said, let alone all of the First
Nations within Canada. An analysis in 2012 revealed that
it would 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 with First
Nations, “we have no reason to accept (the) announcement
on face value.”
“Therefore, my recommendation is that we 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.”
– Chiefs of Ontario
AFN Regional Chief Morley Googoo, Executive Education Portfolio:
“If we don’t feel we’ve had proper input and FirstNation control over First Nation education, thenwe know we’re doomed for failure again.
“We need the regions to really decide what thenext step will be, because we can’t lose focus. Theobjective of both parties should be that child,”
“You’re going to have resistance, and what thatresistance will look like, I don’t know.”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -6-
an informative <e-note> by [email protected] 13 March 2014 Edition
Dr. Pamela Palmater:
“Are Harper and Atleo Meaning the SameThing 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 what is going on with the still-unknown
“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 what this ‘deal’ entails,” she writes.
“In case anyone had any doubt about the fragile, if
non-existent agreement between AFN and Harper, one
need only refer to the letter from AFN dated Feb.28, 2014,
requesting clarifications from the Harper government
about what the deal means.”
“You don't have to hire a lawyer to know that you never
ever commit to a deal without knowing what the deal is --
that is, get the details in writing.
“It is almost unbelievable that the AFN would be asking
these critical questions AFTER the deal has already been
made and announced. What's worse is that the AFN is
asking these questions AFTER Atleo's many media
appearances and their FAQ Sheet which purports to
answer these questions. How can the AFN assure First
Nations that they will get to "inform" the legislative
drafting process and then a few weeks later, ask the
federal government if they will work with 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 weeks that followed 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
written commitments):
NC Atleo Harper/Valcourt
Respects rights, treaties, title not about rights – its about
“social development”
Incorporates reciprocal
accountability
Insures First Nations trans-
parency & accountability
No federal oversight Feds will provide the
standards, reporting and
other oversight mechanisms
to "ensure" First Nationsmeet "new" standards
statutory guarantee of
funding to address "real
costs" of education
4.5% cap on funding
(versus 6% pop growth)
Funding is guaranteed Funding will be for "willing
partners"
AFN will "inform"legislative process
Feds will draft legislationand regulations
Limited "enabling"
legislation
Full "comprehensive"
education legislation
Allows for diversity Same standards for all First
Nations
New deal for First Nations What’s good for Canada
If this is THE deal
(historic, but unwritten);
which promises First
Nation control (federal
control of First
Nations); and capped
funding (future monies less
than what is needed to take
on new responsibilities);
and a new relationship
(where we voluntarily give
up our treaty right to
education) -- then NO
DEAL.
http://www.chiefs-of-ontari
o.org/sites/default/files/file
s/OCOFOV%20Education
%20Report%202012.pdf
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -7-
an informative <e-note> by [email protected] 13 March 2014 Edition
Minister Valcourt Writes AFN ExecutiveCommittee March 10 re Proposed Education Act
In the controversy which arose after the February 7
“Kainai Agreement” was announced regarding the
proposed still-unknown 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.
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
– photo by Globe and Mail
Minister Bernard Valcourt: “Listen up!”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -8-
an informative <e-note> by [email protected] 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 Govern-
ment to continue work ing together with First Nations,
I want to make 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-size-
fits-all approach to education administration .”
First Nations will not know 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 take some time.”
But why wait to see the regulations? “I know 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.
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry -9-
an informative <e-note> by [email protected] 13 March 2014 Edition
Behind The Numbers:The Truth of The First Nation Education Act
Thanks to Judith Rae for the number crunching,1
and thanks to First Perspective for its great journalism2
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 would 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: $1.9-
billion in education funding. But what 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 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.
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 way to
make it sound big. Let’s start with basic division: $500-
million 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 would
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 conserva-
tive 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
away in order to get a basic K-12 education.
By 2015-16 (six years after the PBO estimate), Canada is
saying there will be something like $271.4 million a year
for schools. This is a long way 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 while things will improve a bit,
we’re still far from where we need to be.
(2) Growth: The 2% cap on annual increases is replaced
by a 4.5% “escalator”
One might think that keeping pace with population growth
and inflation would be covered without question. But it’s
not. In First Nations education funding, these increases
will 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 solicitor with Olthius Kleer Townshend,1
Toronto. [email protected]
2 www.firs tperspective.ca
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 10-
an informative <e-note> by [email protected] 13 March 2014 Edition
year since 1996 – 18 years..
Statistics Canada tells us that First Nations populations are
young and growing fast. Add inflation, and an AFN report
found that at least 6.3% per year is required to keep pace
with these unavoidable realities.
Canada’s recent announcement said that the 2% cap would
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 was 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 $1.55-
billion a year. Let’s assume this $416.7 million is new
funding. If so, it would get added to the existing amount –
but not for another two years, i.e. after the next federal
election.
Currently, First Nations education is a long way off from
comparable provincial service levels, let alone where it
needs to be to close the still-widening gap in high school
graduation rates (which the Auditor General said in 2011
will take over 28 years to close.).
Many people have detailed dozens of serious service gaps
experienced by First Nations students as compared with
other Canadian school children.
Canada’s own 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 way: “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-wide. The National
Panel said quantifying the “magnitude of underfunding”
was 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
shown that federal spending for on-reserve schools is
significantly lower 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 would be
available if the child attended a school on reserve.
Comparisons will also be weak 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 widens 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 with increases in inflation and student
population. As mentioned, however, First Nations’ core
education funding has been capped at 2% per year for two
decades, while the First Nations’ population grew 29%. A
previous report from the Assembly of First Nations said
that the annual shortfall from that gap alone was $747
million per year as of 2010-11 (and it would 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 way off from
equitable funding, not even to cover population growth.
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How could we identify and close
the full, much bigger, gap? What
the National Panel recommended
was 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
will require First Nations to take
on massive new responsibilities.
In most cases, these
responsibilities were not taken on
by anyone before. First Nations
will be required to fulfil many
requirements that a school board
or Ministry of Education would
fulfil in a provincial system,
prepare new plans and reports,
and meet many new standards.
While there are issues with 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 own is like sending troops off to battle
without any support from headquarters. Coordination,
training, monitoring, specialized services – these “back
end” supports are key to success. Someone needs to take
on those responsibilities.
Surely, that someone should be First Nations themselves,
who have been seeking control of their own education
since at least the 1970s. But passing off responsibility
without 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
while setting responsibilities is one thing, actually meeting
them will be another.
Conclusion
Some say numbers don’t lie. But without context, they can
certainly give the wrong 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 what 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 where they receive a quality education that
makes them proud of who are they are and prepares them
to achieve their dreams.
The new education legislation will requireFirst Nations to take on massive newresponsibilities, but the resources to meetthose responsibilities are insufficient.
The new funding will not close the gapbetween education for First Nations kids andfor other Canadian children.
It also looks likely to put First Nations kidsincreasingly farther behind over time.
– Judith Rae, OKT Law
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 12-
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First Nations Treaty alliance formed to fight deep federal funding cuts
Thanks to Jason Warick, Starphoeniz
Saskatoon, 10 March 2014 – Saskatchewan 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 week after a third Saskatchewan 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 work hard to keep our kids in school, to get jobs for
our people. We want to help this province succeed, but
what the government is doing - it's a very sad situation."
Late last week, Thunderchild declined to sign an
$8-million contribution agreement with 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 who have successfully moved
residents off welfare and into the job market have seen
their funding clawed back excessively, they say.
Thunderchild follows 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 with Manitoba chiefs has led them to believe this
could reach across the Prairies.
"We want the Crown to be accountable. This has been a
unilateral process, and we're tired of it," Bird said. "There
is a lot of fear about standing and fighting, but we have
to."
All essential funding is continuing to these communities,
but leaders aren't sure what will happen if the dispute
continues. They hope the government will be willing to
negotiate before things escalate.
Aboriginal Affairs and Northern Development Canada
(AANDC) Minister Bernard Valcourt was 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.
“We will continue to provide funding to First Nations for
services including education, economic development,
health services, band governance and infrastructure,"
stated the email. "AANDC Officials will continue
discussions with First Nations to ensure the delivery of
essential services."
Copyright (c) The Regina Leader-Post
Chief Delbert W apass
<e-notes> is published as a service of Four
Arrows/Las Cuatro Flechas, providing
communications among First Nations of the
Americas since 1968. Names may be added to
the distribution list on requests; names will
be removed on request. Four Arrows
receives no funding to provide this service.
Readers are invited to send material for
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<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 13-
an informative <e-note> by [email protected] 13 March 2014 Edition
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
which 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 what 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”
will 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 world-wide Indigenous
issues in one and one-half days is laughable, especially
when one considers how the state and federal govern-
ments, and corporations, are exploiting Indigenous
Peoples.
In a statement issued after a meeting of the Caucus, it said
it was also withdrawing 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
brewing. 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 would not be allowed
at the High Level Plenary which is being called to honour
Indigenous Peoples.
Most significantly, the Caucus said, Indigenous Peoples
would not be involved in drafting the conference’s
outcome document, which 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 between
states and the world’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 forthwith. “We call for the withdrawal of any
support, active or tacit, for the High Level Plenary by
Indigenous Peoples anywhere in the world.”
Ken Deer and Debra Harry were sent to the UN
Headquarters in New York to meet with a group of states
discussing the event and to confirm their withdrawal from
the Governing Council.
As news of the call to cancel spread, it was met with
favourable support. Robert Free, for many decades an
advocate on these issues, said the current meeting plan
would avoid addressing the principal issues which, he
said, were the “symptoms of not having these rights: the
core issues of decolonization, return of lands and wealth,
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 will say, "Look at all the agencies
doing studies and having meeting etc." It is insulting to see
the hard work and hard struggles of so many to go before
the UN with 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
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 14-
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Steven Newcomb3
The Lim itations of the U.N. Declaration
On the Rights of Indigenous Peoples
Thanks to Indian Country Today 4
For nations and peoples typically called “Indigenous,”
2014 will 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 known as” a “World Conference on Indigenous
Peoples.” This gives the mistaken impression that it is a
UN World Conference. It isn’t.
A genuine world conference is usually nine to ten days
long, whereas the U.N. High Level Plenary Meeting is
going to be about 180 minutes long in its entirety, over a
two-day period in New York.
The event has been promoted as a gathering that will work
toward implementing the 46 Articles of the UN
Declaration. From it, state governments of the world will
draft and adopt an “outcome document.” The text of that
document will serve as a framework for states to
“implement” the Declaration. However, Indigenous
nations and peoples will 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 with 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 was central to the
formation of international law and, in particular, its
founding concept, sovereignty.” It is within this formative
imperial and colonial context of states and international
law that the U.N. Declaration on the Rights of Indigenous
Peoples was 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.”
However, 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 with
international human rights obligations.” Importantly,
international state governments interpret “human rights”
as the rights of individuals within the context of “civil
society.” Article 46 also says that such “limitations” shall
only come into play when they are “strictly necessary
solely for the purpose of securing recognition and respect
for the rights and freedoms of others.” The word “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 way of stating this: the exercise of the rights set
forth in the declaration shall only be limited if and when
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 what the phrase “just and most compelling
requirements of a democratic society” means, or, for that
matter, who shall decide what that phrase means.
Steven Newcomb (Shawnee, Lenape) has s tudying U.S. federal3
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 Doctrineof Christian Discovery (2008, Fulcrum).
This article is a shortened version of an article appearing in4
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 flowing now very fast,
It is so great and swift.
That there are those who will be afraid,
They will try to hold onto the shore.
They will feel they are being pulled apart,
And will suffer greatly.
Understand that the river knows its' destination,
The elders say we must let go of the shore.
Push off into the middle of the river,
Keep our eyes open and our heads above water.
And I say; see who is in there with 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 growth and journey comes to an end.
The time of the Lone Wolf is over!
Gather yourselves!
Banish the word 'struggle' from your attitude and
vocabulary.
All that we 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 we have been waiting 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,
was an early,
lone, and
powerful
presence at the
United Nations
HQ in New
York City in
1948, carrying
a message of
peace, power,
spirituality,
and Indigenous sovereignty to the United Nations
at a time when 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 aprophecy of a time when our Mother the Earthwould be under great stress from wrongful living,and would be forced to react He called for areturn to harmonious living and spirituality.
In addition to the message, Thomas Banyacyaalso brought an early, lone and powerful presenceof an Indigenous voice to the United Nations. Asothers joined him and followed his path, theIndigenous presence at the UN is still trying tofind its place.
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 16-
an informative <e-note> by [email protected] 13 March 2014 Edition
Rae: Ontario lagging behind in First Nation talks
Thanks to Northern Ontario Business
Ontario has lagged behind other provinces when it comes
to its dealings with First Nations, said Bob Rae prior to a
speech in Sudbury, March 6.
The former Premier of Ontario is the chief negotiator for
the Matawa 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 framework to develop the Ring
of Fire.
Rae said Quebec and BC have been much more open than
Ontario to sharing management decisions with 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 way of not simply consulting with 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
with First Nations because they were not encumbered with
the numbered treaties that have coloured Ontario's history
with Aboriginal people.
The Ontario Chamber of Commerce claims the Ring of
Fire will 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 well create thousands of jobs.
“In the past, development has happened without the
participation of First Nations and without 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
framework to
develop the role the Matawa First Nations is coming along
well.
Rae said treating local First Nations as equal partners will
be the only acceptable way to move ahead with the Ring
of Fire. “In my view, there's no practical alternative to this
approach,” he said. “We need to make sure we 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 between
the Taku River Tlingit First Nation and the governments
of Canada and Yukon.
The First Nation has filed a second lawsuit in Yukon
Supreme Court asking the court to protect lands it has
claimed in the territory. The lawsuit 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 was acknowledged by the federal government at
least 30 years ago, but Ottawa has not followed through
with promises to negotiate a Treaty and control of the land
was devolved to the Yukon Government in 2003.
First Nation lawyers insist Ottawa 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
lawsuit was filed earlier this year against that plan.
– http://nricaribou.cc.umanitoba.ca/jeanpolfus/publications
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 17-
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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 women, 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 women
and girls across Canada.
“The committee’s weak recommendations represent an
acceptance of the shocking status quo of violence against
indigenous women and girls, even by the very people who
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 women and girls who face threats to their lives
and feel they have nowhere 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 women 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
was to hold hearings on the issue of missing and murdered
indigenous women and to propose solutions to address
root causes of the violence against indigenous women.
Human Rights Watch said that creating a parliamentary
committee was a positive move but was 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 recommenda-
tions, including calls for a public awareness campaign,
“appropriate” sentences for offenders, and a DNA
database for missing persons, which 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
women are important steps, but the recommendations as a
whole are insufficient to address the scope of the problem,
Human Rights Watch said.
The Native Women’s Association of Canada has collected
data showing that between the 1960s and 2010, 582
Aboriginal women and girls were reported missing or
were 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 would use it to avoid taking decisive
action on the issue,” Rhoad said. “With what we have
learned about violence against Canada’s indigenous
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 18-
an informative <e-note> by [email protected] 13 March 2014 Edition
women, 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 which 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 which 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 was “appalling that after hearing witness after
witness testify that much more needs to be done on
missing and murdered Indigenous women and girls, the
Conservatives could produce a sanitized report saying that
everything is fine,” said NDP Aboriginal Affairs critic
Jean Crowder. “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 women and girls;
utilize Niki Ashton’s motion (M-444) to develop and
implement a national action plan to address violence
against Indigenous women and girls;
ensure that Indigenous women lead, design and
implement solutions to address this crisis;
address chronic underfunding including key frontlines
services, shelters, child welfare, 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 words.
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 were replaced by a disappointing list of what
aren’t even recommendations,” Bennett said. “The No. 1
thing they wanted to have happen was 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
power in 2006. The Tories recently renewed funding to
combat violence against aboriginal women and girls.
“I believe that this report will go further to take action,”
Tory MP Stella Ambler, chair of the special committee,
said in the House of Commons just before it was tabled.
Justice Minister Peter MacKay echoed those sentiments.
“What we 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 week, 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 will demand an unprecedented degree of
effort and commitment with federal, provincial, territorial
and First Nations governments working together,” said the
report.”
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 19-
an informative <e-note> by [email protected] 13 March 2014 Edition
An Open Letter About Murdered & Missing Wom en
Shawn Brant
Mohawk Nation at Tyendinega
Stephen Harper
Ottawa, Ontario
Dear Stephen Harper,
I am writing in regards to a mandate issued from the
Mohawk 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 would
have voluntarily asserted its responsibility and made such
an announcement during last year’s Speech From The
Throne. While a minor reference was directed to the issue,
in the form of the government’s intention to strengthen
anti-prostitution laws, we 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 women have now been identified as having
been murdered or gone missing, with 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 while 272 remain missing and whose
remains have not yet been recovered.
Your suggestion that strengthening Canada’s prostitution
laws will 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 own victimization.
It is a well 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 women is both blatant and
obvious.
If we were to exclude, from the overall numbers, those
persons involved in “risky behavior” assuming that they
are unworthy of justice, there remains 442 women who
have been confirmed as having been murdered who have
never engaged in any behavior that is inconsistent with
your values, and who are equally deserving of the same
protections afforded to every woman in Canada.
Your unwillingness to consider this first step at
reconciliation is well 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 we will take whatever 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
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 20-
an informative <e-note> by [email protected] 13 March 2014 Edition
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. Toews as a
judge of the Court of Queen’s Bench of Manitoba.
Mr. Justice Toews
received a Bachelor
of Laws from
Robson Hall,
University of
Manitoba, in 1976
and was admitted to
the Bar of Manitoba
in 1977. He
received an
Honorary Doctorate
from University of Winnipeg in 2011.
Mr. Justice Toews was a Member of Parliament for twelve
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 Toews also served as Director of
Constitutional Law (1987-1991) and Crown 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 were criminal law, constitutional law,
administrative law, and employment and labour law.
Mr. Justice Toews was 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 Toews appointment was
designed to position him for an appointment to the
Supreme Court of Canada in December 2015 when the
next vacancy will open because of a retirement.
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, which the UN has not released, has been
confirmed by UN Human Rights Council President
Boudelaire Ndong Ella and will be announced March 28.
Tebtebba quoted Ella as noting Tauli-Corpuz’s “active
involvement with the United Nations and multi-
stakeholder cross-regional bodies on indigenous issues
and her past collaboration with and commitment to
constructive engagement among governments and
indigenous peoples.”
Tauli-Corpuz, who founded Tebtebba in 1996, has long
campaigned for the rights of indigenous peoples. She is
among those who lobbied for more than 20 years for a
Declaration on the Rights of Indigenous Peoples, which
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 Commis-
sioner 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 which she will 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, who is
a professor of human rights law and policy at the
University of Arizona's James E. Rogers College of Law.
Mr. Justice Vic Toews
<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 21-
an informative <e-note> by [email protected] 13 March 2014 Edition
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 two mineral
leases fifty years ago.
In a one page statement, The High Court of Canberra5
backed up and went beyond a decision of the full Federal
Court which found that native title rights of the Ngarla
people in Western Australia could exist alongside mining
leases.
The dispute was 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
with the Western Australia government in 1964 and
allowed access for anyone except those interfering with
mining activities.
The mine was 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 was in
force, but that native title rights will be re-instated or
returned when mining activities have ended. The
government appealed.
“We're very satisfied and very happy and jubilant on
behalf of the Ngarla people who have obviously fought
very hard to get this outcome," said CEO of the Yamatji
Marlpa Aboriginal Corporation, Simon Hawkins.
The Ngarla People successfully claimed native title rights
and interests over particular land and waters in the Pilbara
region. While their claim included the areas subject to the
mineral leases, a determination in relation to these areas
was suspended pending resolution of the issue of whether
the grant of the mineral leases had extinguished their
native title rights and interests.
The Ngarla people first went to court to claim native title
over an area of 11,000 square kilometres in 1998.
Since then, it's been a constant battle between 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 we were
successful in challenging the state and others and now this
is what everyone has to operate in,” said Mr Hawkins.
The decision is likely to have implications for mining and
pastoral leases around the nation.
The case involved mining leases at Mount Goldsworthy
where 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 owners once that land use has finished."
Mr Hawkins 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 owners 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 were with the decision, the Ngarla People
still have to deal with a legal system which 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 Ward to identify the proper test for6
extinguishment at common law, and held that the question
that needed to be answered was whether the rights granted
to the joint venturers under the mineral leases were
inconsistent with the native title rights and interests
claimed by the Ngarla People. This was said to be an
objective inquiry requiring identification of, and
comparison between, the two sets of rights.
The High Court stressed that “in order for there to be
inconsistency, the existence of one set of rights would
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 [2014] HCA 8.5 (2002) 213 CLR 1; [2002] HCA 286
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In short, there would be inconsistency only if the rights
under the mineral leases as granted were inconsistent with
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 with the
exercise of native title rights and interests would not itself
determine questions of inconsistency and extinguishment.
Argument before the High Court put forward two potential
bases for inconsistency, being that the mineral leases
conferred on the joint venturers exclusive possession of
the subject land; or alternatively, that the two 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, decided that the leases7
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 were the non-exclusive rights to access and camp
on the land, to take flora, fauna, fish, water 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 anywhere on the leased land.
The State's argument was that, because native title holders
could not exercise native title rights and interests where
such activities are being carried out, the rights granted by
the leases had to be seen as being wholly inconsistent with
the claimed native title rights and interests – whether as at
the time of the grant of the mineral leases (potential
inconsistency), or in any event when 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 Queensland ]8
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 with 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 whole land.
To illustrate its finding, the High Court noted that, on the
day after the leases were each granted, and before any
mining and other activities had been carried out, native
title holders would have been able to exercise all of the
rights that now are claimed anywhere on the land without
breaching any of the JV rights.
To illustrate its finding, the High Court noted that, on the
day after the leases were each granted, and before any
mining and other activities had been carried out, native
title holders would have been able to exercise all of the
rights that now are claimed anywhere on the land without
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) is wrong and should not be followed. It9
is not the manner in which a right is exercised, but the
right itself, that is the crucial issue.
Thanks to Clayton Utz for this information
[1998] HCA 58; (1998) 195 CLR 967
(1996) 187 CLR 18
(2005) 145 FCR 2909