Paragraph 99 – The Gretzky Clause is an Indigenous win

Published June 29, 2014 on Vancouver Media Co-op

The United Nations’ Special Rapporteur on the Rights of Indigenous Peoples has produced a review of the situation of Indigenous Peoples in Canada that seems to prescribe the diagnosis as the cure: death by bureaucracy. The documentary record is for the Human Rights Council, and it is as meticulous and specific as the Indian Act itself.

It might be just as limiting – save for two long sentences – paragraph 99. If Indigenous Peoples could “maximize” their benefit from revenues on “their lands,” as is recommended in the report’s final paragraph, Indigenous Peoples could pay their own way and make their own choices instead of having those choices legislated over top of them. They would not need the rest of this report.

In the meantime, some of the most significant crimes against humanity in the modern age have now been lifted out of the realms of colonial denial and set down in black international ink. The importance of this report is therefore unqualified: never before has an international observer summarized the gruesome history of Canadian imperialism in such unequivocal terms as the Special Rapporteur in his country report on Canada.

Professor James Anaya is a Regents Professor at the University of Arizona, lecturing on international law and indigenous peoples’ rights. He helped draft the Declaration on the Rights of Indigenous Peoples and has just completed his second and final term as Special Rapporteur at the same time as releasing the advance report on the Situation of Indigenous Peoples in Canada.

 

The Gretzky Clause

Professor Anaya recommended in paragraph #99, the very last words on the paper, “Resource development projects, where they occur, should be fully consistent with aboriginal and treaty rights, and should in no case be prejudicial to unsettled claims. The federal and provincial governments should strive to maximize the control of indigenous peoples themselves over extractive operations within their lands and the development of benefits derived therefrom.” That’s about the only thing Indigenous Peoples have been demanding of Canada, unsuccessfully, since Canada existed.

The age old question which Canada puzzles with in its Supreme Court is, “where is aboriginal land?” And the Court refuses to find any. Anaya did not recommend that Canada recognize aboriginal title, or get out a map and trace the old lines between the Indigenous nations of northernmost America and demand that those borders be respected or else double standards discrimination would be in effect, nor did he remark at all on the subject of what would be left of “Canada” if indigenous peoples were in control of their lands once again.

This is fairly plain talk for a lawyer though. Which square inch of Canada is not part of an unsettled claim? The Treaties are broken. The modern day negotiations are themselves a complete violation of human rights, requiring Indigenous parties to first surrender everything to the Crown in right of Canada before receiving various delegated and controlled powers in exchange. They are being negotiated by people put in power to represent the Indigenous side through systems of governance imposed by Canada. These problems were touched on in the report.

 

Negotiations and “land claims”

With a literal directness reputed of the “black letter lawyer,” his report states that “Over the past decades, Canada has taken determined action to address ongoing aspects of the history of misdealing and harm inflicted on aboriginal peoples in the country… Perhaps most significantly, it has legislation, policy and process in place to address historic grievances of indigenous peoples with respect to treaty and aboriginal rights. In this regard, Canada is an example to the world.” There are several notes to the fact that negotiations have been “mired” in difficulties. The statements are extremely political, and always extremely correct. Credit has been given for the appearance of attempting reconciliation, but it is taken away again by documented references to the failures of the process. The Rapporteur does not go so far as to say that the “mire” was by design, and that negotiations have clearly bought Canada the comparative peace of these past decades.

The negotiations programs are described as “…good practices, at least in their conception, such as Canada’s policy of negotiating modern treaties with aboriginal peoples and addressing their historic claims. A full exposition of these laws, policies and programmes is beyond the scope of this report.” Unfortunately, Canada’s policy of using Indigenous duress to accomplish surrender agreements with Indigenous communities is an exceptionally important example of the insidious perpetuation of the Canadian ultimatum: starve out or sell out. Ample information summarizing the slipknot effect of Canada’s “modern day treaty” making programmes were made available to the Special Rapporteur. He summarized that information: “In the comprehensive land claim processes, the Government minimizes or refuses to recognize aboriginal rights, often insisting on the extinguishment or non-assertion of aboriginal rights and title, and favours monetary compensation over the right to, or the return of, lands.”

One example that illuminates the carefully controlled core of modern “negotiations” was highlighted in the Special Rapporteur’s report. Regarding First Nations Education, a new act has emerged and shows the type of policy and procedure which Canada intends to legislate on all aboriginal peoples – if it’s not achieved through standardized, identical core provisions of self-government framework agreements and “land claims.” The First Nations Education Act was brought to the Special Rapporteur’s attention during his visit. The controversy over this Bill recently caused the National Chief of the Assembly of First Nations to resign.

The Rapporteur summarized Indigenous objections: “(1) the imposition of provincial standards and service requirements in the bill will undermine or eliminate First Nation control of their children’s education; (2) the bill lacks a clear commitment to First Nations languages, cultures, and ways of teaching and learning; (3) the bill does not provide for stable, adequate, and equitable funding to indigenous schools; and (4) the bill will displace successful education programs already in place, an issue that was raised particularly in British Columbia.”

It is exactly these problems – imposition of foreign standards; displacement of traditional structures; lack of financial certainty; a design for degradation of the delegated powers over time – which characterize all the other plans Canada has for First Nations negotiating under the present day policies. These problems characterize the results of all modern agreements between Canada and Indigenous Peoples today, covering the further six areas of lands and resources, self governance, health, children and families, housing and infrastructure, and finance.

Background context, exhibits on Canada’s record

The background provided in this report succinctly and definitively puts on record some of the most criminal tragedies wreaked by the colonizer on the Indigenous nations. Since Canada is officially in denial of many of these facts, the report is a categorical achievement for history. It qualifies the Indian Residential Schools, “the explicit purpose of which was to destroy their family and community bonds, their languages, their cultures, and even their names.” Canada still pretends those results might have been accidental, even in its formal apology of 2008.

The report acknowledges “…patterns of devastating human rights violations, including the banning of expressions of indigenous culture and religious ceremonies; exclusion from voting, jury duty, and access to lawyers and Canadian courts for any grievances relating to land; the imposition, at times forcibly, of governance institutions; and policies of forced assimilation through the removal of children from indigenous communities and “enfranchisement” that stripped indigenous people of their aboriginal identity and membership.” The significance of this single sentence in an official report to the Human Rights Council has not even begun to be appreciated, as it will be relied on in future international actions against Canada, in the pursuit of remedying the current hostile occupation of Indigenous homelands.

As for the most important colonial legal structures of imperialism in the Canadas, it was forced upon King George in 1763 by the military might of Pontiac and his many allies’ refusal to accept British retractions of their original treaties and compacts. The report gives that its place in relation to negotiations: “…the related policy of the British Crown of seeking formal permission and treaty relationships with indigenous peoples before permitting settlement in their territories.” And that Royal Proclamation, made exactly one quarter of a millenia before the Special Rapporteur’s visit, remains a pillar of the Canadian constitution; albeit one that has collapsed under the relentless weight of settlers fleeing other nations around the world and insisting on their own superior rights in Canada.

The collapse of that legal statute is not analyzed as a rotten cornerstone of the state of Canada and an object requiring closer scrutiny in the application of the rule of law in the first world; it might have been. It is the foundational instrument within Canada’s own laws which requires the consummation of honourable treaties.

 

The statistics of the minority

The international report emphasizes the statistical face of pan-Indigenous dispossession as it appears in census areas such as homelessness, poverty, low life expectancy, suicide, poor health, lack of education, overcrowded and dilapidated housing. “Of the bottom 100 Canadian communities on the Community Wellbeing Index, 96 are First Nations, and only one First Nation community is in the top 100.” Compared to Canadians, Indigenous individuals are exponentially worse off in every way. “At every level of education, indigenous people overall continue to lag far behind the general population.” There are many more.

But the Special Rapporteur is asked to comment on the situation of Indigenous Peoples, not indigenous individuals as minorities within a state. Indigenous Peoples have suffered every crime described by the Geneva Convention on the Prevention and Punishment of the Crime of Genocide. The report did not explicitly connect the impacts of Indigenous loss of life, loss of village sites, loss of power over community and national life and loss of control of lands and resources with the staggering present day economic sitution – the inability even to build adequate homes – except by implication in paragraph 99.

Worryingly, the summary statement suggests: “Indigenous peoples’ concerns merit higher priority at all levels and within all branches of Government, and across all departments.” This sounds like a proliferation of Indian Acts across the entire social, economic and cultural map. It is the general opinion, and most plausible legal situation, of Indigenous Peoples that their rights and remedies are not within the purview of the Canadian government or its departments – which have only ever contrived to suppress, co-opt and deny those concerns by every means available.

But when this statement is read together with the Gretzky Clause, paragraph 99, it now says: All branches of government should align themselves with ensuring the continuity and protection of aboriginal and treaty rights. All levels and departments should support Indigenous control of resources on Indigenous lands, especially extraction, and the benefits arising therefrom.

 

The Hazy Bering Land Bridge

There remains in the Special Reporter’s observations, conclusions, and recommendations, however, a missing link as dubious as the Bering Land Bridge. How can one file a report which begins with a summary of every crime of genocide, and ends with suggestions that the perpetrator be left in charge of remedying the situation? The report itself notes all manner of Canadian efforts to engage aboriginal peoples, and equally comments on indigenous representatives’ presentations to him on how unsatisfactory they are.

The reality is that every attempt at maximizing protection or use of “their lands” ends up in court, where “the adversarial approach leads to an abundance of pre-trial motions, which requires the indigenous claimants to prove nearly every fact, including their very existence as a people.”

Canada’s assumption of jurisdiction on unceded Indigenous land, as in British Columbia, or its most restrictive interpretations of treaty rights, are problems which merit third party, independent and impartial hearings. Canada cannot be the originator of a dispute and also the judge of its resolution. The Special Rapporteur never repeated this observation, made to him in person, in his report. It is in his mandate: Article 40 of the Declaration on the Rights of Indigenous Peoples, Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.

Instead: “Canada’s relationship with the indigenous peoples within its borders is governed by a well-developed legal framework a number of policy initiatives that in many respects are protective of indigenous peoples’ rights. But despite positive steps, daunting challenges remain. The numerous initiatives that have been taken at the federal and provincial/territorial levels to address the problems faced by indigenous peoples have been insufficient.”

Canada’s borders are in fact contested not to include many unceded, sovereign indigenous peoples and their lands in the first place, particularly in the west, and to this legal place the report does not proceed. Canada’s “well-developed legal framework” denies Indigenous Peoples’ own legal frameworks, and their jurisdictions on their homelands, and certainly has been well-developed to the point of the exclusion of the Canadian constitution where treaties are demanded before settlement is allowed. In fact, policy initiatives have entirely replaced legal instruments. And the objectives of those policies have not shifted by any measure since the 1857 Act for the Gradual Civilization of the Indian Tribes – an assimilation and dispossession policy. Just last year a more sophisticated option of the legislative release and indemnification of Canada by the Indigenous took the form of Bill C-45 and was passed in Canada’s Parliament. Fragments of Indigenous nations under duress participate in fragments of the Act. Finally, to suggest that the problems faced by Indigenous Peoples occupied by Canada could be sufficiently addressed by the perpetrator of the problems, the federal and provincial governments, is to fundamentally ignore many testimonies brought before the Special Rapporteur during his extraordinarily brief visit to Canada – October 8-15th, 2013. Some of those testimonies were brought by traditional governments of Indigenous nations, some were submitted only in writing, and they laid bare the urgent need for third party assistance in the conflict between their nations and the assumptive party, Canada.

The report is perhaps constrained by the state-biased mandate of the United Nations, reporting on implementation of the Declaration on the Rights of Indigenous Peoples, and it is in this way that the vulnerability of entrusting states with justice for Indigenous Peoples becomes obvious. The conflict at hand is between states and the Indigenous Peoples, and their lands, which states have assumed jurisdiction over. Or, “One of the most dramatic contradictions indigenous peoples in Canada face is that so many live in abysmal conditions on traditional territories that are full of valuable and plentiful natural resources. These resources are …targeted for extraction and development by non-indigenous interests.”

 

The report on the situation

There were many people and places that the UN delegation did not meet. Those who did manage to make meetings had less than one week’s notice of the time and location – and that was the work of Canada. Considering this, and the brevity of the visit, this first official report on the situation of Indigenous Peoples in Canada is of considerable scope and importance. If it is read.

The report is a good sweep of the situation:

“Parliament has jurisdiction over ‘Indians and lands reserved for Indians.’”

“First Nations communities that receive federal funding under the Indian Act regime, 70% of which have fewer than five hundred residents, typically have to produce over 100 or more reports a year to various federal agencies.”

“…indigenous leaders complain that the federal Government frequently uses a discourse of responsibility to Canadian taxpayers for the cost of First Nations treaty benefits, without a corresponding acknowledgment of the vast economic benefits that have accrued to non-indigenous Canadians as a result of the constitutional treaty relationships…”

“…the Government appears to view the overall interests of Canadians as adverse to aboriginal interests…”

The Special Rapporteur never mentions the astonishingly prolific, consistent and militant protest on the part of Indigenous peoples from coast to coast to coast, for centuries, and that these demonstrations and resistance movements are singly the cause of any of Canada’s good work noted in this report. The political tones resonate to good will and politesse and there is little within the report which Canada could reasonably take exception to.

But, as James Anaya characterizes his own work when speaking in public, he tries not to focus on the instances of conflict but on signs of progress and possibilities which might lead to peace and justice.

“Partnership” is recommended between the Indigenous and Canada, and that “…it is necessary for Canada to arrive at a common understanding with indigenous peoples of objectives and goals that are based on full respect for their constitutional, treaty, and internationally-recognized rights.”  This is optimistic.

But Anaya’s visit to Canada has already had effect. During his statement at the end of his official visit last Fall, he made the straightforward recommendation that the Truth and Reconciliation Commission be given an extension to continue its work in connection to Indian Residential School legacies. An extension of one year had been granted by the time the draft report was released this May, while the report calls for an open-ended mandate.

Paragraph 99, however, is the ace. It is nothing short of Wayne Gretzky in 1988, getting the goal that won the Oilers the Stanley Cup. And the Supreme Court of Canada has lost its shut-out. Development should be consistent with aboriginal and treaty rights; control and benefits of development on Indigenous lands should belong to the Indigenous.

It’s an optimistic coincidence that the key recommendation to Canada is numbered the same as the greatest Canadian hockey player, whose jersey number was retired by the National Hockey League in his honour. And it’s an enlightening coincidence that such an important icon was playing a Mohawk game. It’s possibly a pragmatic non-coincidence on the part of the author of the report, nominated for the Nobel Peace Prize this spring, to connect a source of national pride with a challenge worth meeting.