Indigenous World 2019: Canada
Indigenous peoples in Canada are collectively referred to as “Aboriginal peoples”. The Constitution Act of 1982 recognizes three groups of Aboriginal peoples: Indians, Inuit and Métis. According to the 2016 Canadian Census, there were 1,673,785 Aboriginal people in Canada, accounting for 4.9% of the total population.1
977,230 people identified as a First Nations person. First Nations (referred to as “Indians” in the Constitution) are diverse Nations and peoples, representing more than 600 distinct First Nations and encompassing more than 60 languages. The Métis constitute a distinct Aboriginal nation, numbering 587,545 in 2016, many of whom live in urban centres. Canada’s Constitution Act of 1982 recognizes and affirms the existing aboriginal and treaty rights of Aboriginal peoples. The Supreme Court has called the protection of these rights “an important underlying constitutional value” and “a national commitment.” In 2010, the Canadian government announced its endorsement of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and in 2016 Canada re-affirmed its support “without qualification”. Canada has not ratified ILO Convention 169.
The UN Declaration on the Rights of Indigenous Peoples
In 2018, the Declaration was increasingly cemented in policy and law. Several pieces of federal government legislation included commitment to the Declaration.2 The province of British Columbia also enacted legislation affirming the commitment to implementation of the UNDRIP.3
Private members’ Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act (see previous yearbooks), advanced through the Canadian Parliament. It passed the process in the House of Commons and was forwarded to the Canadian Senate. For the bill to become law, it will be critical for the Senate to finish its examination of the bill before there is a scheduled federal election in 2019. The Bill received overwhelming support from indigenous peoples, faith communities, trade unions, and human rights bodies in Canada.4
In February 2018, the prime minister announced a major commitment to recognizing Indigenous rights. In his announcement, he stated that a new framework could “include new measures to support the rebuilding of indigenous nations and governments, and advance indigenous self-determination, including the inherent right of self-government.”5 The process that followed fell flat with indigenous peoples. Called the “Recognition and Implementation of Rights Framework,” government officials caused confusion with an engagement process that lacked clarity and transparency. Natural mistrust led indigenous leaders to reject the process and call for a process designed by Indigenous peoples themselves. Remarkably, successive governments in Canada have failed to grasp the necessity of indigenous peoples being able to voice for themselves what could and should be included in an indigenous rights recognition effort.
Conflict over resource development
Too often resource development projects are advanced without respect for indigenous rights. When this happens, indigenous peoples and their supporters often oppose these projects, including through civil disobedience. Their opposition can result in human rights defenders’ arrest.
In a high-profile situation reported in the media, Wet’suwet’en hereditary Chiefs opposed the development of a pipeline to carry liquefied natural gas across their traditional territory in northwest British Columbia. For the past decade people have lived at the Unist’ot’en camp on the territory in protest of the proposed development. A second checkpoint into the territory was created by the neighbouring Gidimt’en clan in December 2018. The pipeline corporation, Coastal GasLink applied for an injunction to have the camp dismantled to make way for construction, which led to the arrests of 14 people on 7 January 2019.6 Solidarity for the Wet’suwet’en prompted public actions across the country.
With both federal and provincial governments committing to the UNDRIP and the right to free, prior and informed consent (FPIC) affirmed therein, serious questions arise. Why would such a court injunction be granted without apparent consideration of the human rights of the Wet’suwet’en?7 This case also underlines the critical need for independent processes to assist with conflict resolution.
Trans Mountain pipeline expansion
Pipelines are an ongoing source of conflict between governments and indigenous peoples. The Trans Mountain pipeline expansion provides another example. In the spring of 2018 Kinder Morgan sold the pipeline to the federal government.8 In August 2018, the Supreme Court ruled that Canada failed “to engage, dialogue meaningfully and grapple with the concerns expressed to it in good faith by the indigenous applicants so as to explore the possible accommodation of these concerns.”9 This was a result of “an unreasonable consultation process” that fell “well short of the mark set by the Supreme Court of Canada.” Following this ruling, the government began yet another flawed consultation process. Ongoing protests of this project led to multiple arrests of indigenous people and their supporters.
On 14 December 2018 the UN Committee on the Elimination of all Forms of Racial Discrimination (CERD) expressed their concerns on this project, stating that “the Committee would like to underscore that the realization of the Trans Mountain Pipeline Expansion Project without free, prior and informed consent, would permanently affect the land rights of Secwepemc people and, as a result, would infringe their rights under the International Convention on the Elimination of All Forms of Racial Discrimination.”10
The Site C dam in north-eastern British Colombia threatens one of the province’s few remaining areas left relatively untouched by development and where First Nations can freely engage in traditional, Treaty-protected practices, including hunting, trapping and fishing. Despite a call from the CERD for an immediate halt on its construction11, work on the dam continues. A joint environmental review carried out on behalf of the federal and provincial governments affirmed that the dam would “severely” undermine the ability of Indigenous peoples to hunt, make fish unsafe for at least a generation and wipe out hundreds of cultural and historic sites, including grave sites.12
Still, neither the federal nor the provincial government has withdrawn its support for the project and First Nations have been forced to shoulder the burden of defending their rights through the courts. While the civil suit launched in 2017 by West Moberly and Prophet River First Nations – which poses the question of whether the dam is an unjustifiable breach of Canada’s Treaty obligations – has yet to begin and will likely take years to resolve, West Moberly sought more immediate rights protections through a temporary injunction to halt construction of the dam, even if only in certain critical areas. However, in October 2018, the British Colombia Supreme Court rejected this request.13 The court did demand that the issue of potential Treaty rights violations be resolved by mid-2023, before the worst of the damage is wrought by flooding the valley14, but the court failed to protect sacred sites and crucial habitat jeopardized by early construction activities.
In December 2018 – in response to an urgent appeal from the Union of British Colombia Indian Chiefs and Canada’s failure to meet an August deadline to respond to a previous request for information on Site C15 – CERD called on Canada to outline steps taken to halt the dam’s construction and report back by April 8, 2019.16 In its request, the Committee emphasized its concern “that the realization of the Site C dam without free, prior and informed consent, would permanently affect the land rights of affected indigenous peoples in the Province of British Columbia.”17
The Canadian and Ontario governments have yet to provide adequate support to address the impacts of mercury poisoning in Grassy Narrows First Nation. While the Ontario government committed in 2017 to clean up the river system in 2017 the same year, no action has been taken to do so.
Nevertheless, the people of Grassy Narrows continue to work tirelessly in the fight for accountability and compensation for the myriad health and cultural impacts of mercury poisoning facing their First Nation. In December 2018, a delegation from Grassy Narrows, including youth advocates, travelled to Ottawa to raise awareness about the results of a new community health study, which documents how children whose mothers ate fish at least once a week while pregnant are four times more likely to have a learning disability or nervous system disorder.
First Nations child welfare
In February 2018, the Canadian Human Rights Tribunal issued its fifth non-compliance order addressing the federal government’s continued failure to fully implement the Tribunal’s 2016 ruling on First Nations child welfare (see previous yearbooks).18 In response to a complaint filed in 2007 by the First Nations Child and Family Caring Society and the Assembly of First Nations19, the Tribunal had ruled that the federal government discriminated against First Nations children by underfunding First Nations’ child and family services, and ordered Ottawa to ensure that jurisdictional disputes between federal and provincial governments do not obstruct effective delivery of services to First Nations children.20
The February 2018 ruling emphasized that “the seriousness and emergency of the issue” is still “not grasped with some of Canada’s actions and responses,” and urged that Canada not delay addressing specific, urgent needs expressed by First Nations.21 In the ruling, the Tribunal also stated, “Of particular significance especially in this case is the United Nations Declaration on the Rights of Indigenous Peoples […]”22
Soon after the Tribunal’s ruling, Indigenous Services Minister Jane Philpott announced that her department would increase funding to First Nations child welfare services.23 In November, Minister Philpott also announced the intent to co-develop new child and family services legislation with indigenous peoples.24 It remains to be seen how effective the final legislation will be at responding to concerns raised by First Nations, and whether the legislation will be passed before the federal election scheduled for the fall of 2019.25
Inquiry on missing and murdered indigenous women and girls
The National Inquiry on Missing and Murdered Indigenous Women and Girls concluded its final hearings in December 2018, and its final report is due to be submitted to the federal government by 30 June, 2019.26 The Inquiry – which faced serious criticism for delays, as well as poor communication with families and survivors – was originally supposed to submit its final report by November 2018, but was granted a controversial extension.27 Some felt that funding for the extension could have been better spent addressing more immediate needs of indigenous women and girls, such as affordable housing.28 Government response to the crisis of violence against indigenous women, girls, and two-spirit people has similarly been critiqued for delay. Despite calls for the immediate implementation of previously identified solutions, or a prompt response to recommendations made in the Inquiry’s 2017 interim report, the federal government did not take steps to respond until June 2018.29 This delay in initiating reforms, coupled with the Inquiry’s own slow progress, has increased frustrations and placed added strain on survivors and family members, as well as increased concern about how effectively government will respond to the Inquiry’s final report.30 Between 2001 and 2014 Aboriginal women were six times more likely than non-Aboriginal women to be murdered.31
CERD to Canada
CERD sent three inquiries to Canada in 2018, all in response to applications from indigenous peoples under the Early-Warning Measures and Urgent Action Procedures. In response to ongoing issues with conflict around resource development, CERDcalledon Canadatoseekindependent, expertadviceon implementation of the right to FPIC.
Although Canada is inching forward with policies and legislation that support indigenous peoples’ rights, FPIC is still regarded with suspicion or worse. Even with excellent legal analysis available32, decision-makers continue with confusion, fuelling ongoing conflict over lands, territories and resources, as well as the criminalization of land defenders. For Canada to honour its commitment to reconciliation, decision-makers must decolonize their thinking and truly respect Indigenous peoples’ human rights, including FPIC.33
Notes and references
- Statistics Canada, at http://bit.ly/2TaEb4B
- This includes the Department for Women and Gender Equality Act, enacted in Budget Administration Act, 2018, 2, S.C. 2018, c. 27, at s. 661, preamble and an amendment to preamble of First Nations Land Management Act and First Nations Fiscal Management Act, both enacted in Budget Administration Act, 2018, supra
- Environmental Assessment Act,B.C. 2018, c. 51, s. 2(2) and Poverty Reduction Strategy Act, S.B.C. 2018, c. 40
- See declarationcoalition.ca and www.adoptandimplement.ca
- Prime Minister’s Office, Government of Canada to create Recognition and Implementation of Rights Framework, at http://bit.ly/2T80yrp
- Justin Brake, “AFN intervened in Wet’suwet’en and RCMP conflict amid negotiations” at http://bit.ly/2TcZl1X
- Rachel LaFortune, “‘Rule of Law’ is not a justification for colonial violence”, at http://bit.ly/2TdyYca
- See CBC news, “The Trans Mountain deal unpacked — what you need to know” at http://bit.ly/2T8084j
- See Federal Court of Appeal, “Executive Summary Trans Mountain case” at http://bit.ly/2Tk0JQf
- See 2018. CERD/EWUAP/Canada-Trans Mountain Pipeline/2018/JP/ks at http://bit.ly/2TcmYaP
- Committee on the Elimination of Racial Discrimination, Concluding observations on the combines twenty-first to twenty-third periodic reports of Canada, UN Doc CERD/C/CAN/CO/21-23 (2017), para 20(e).
- Canadian Environmental Assessment Agency, Report of the Joint Review Panel: Site C Clean Energy Project: BC Hydro (1 May 2014), http://bit. ly/2TgWVPL; See also, Prophet River First Nation Canada (Attorney General), 2015 FCA 15, para 13.
- West Moberly First Nations British Columbia, 2018 BCSC 1835 (24 October 2018).
- Ibid. at para
- UBCIC, Letter to the Committee on the Elimination of Racial Discrimination (20 November 2018), at http://bit.ly/2TfkR68
- Noureddine Amir, Chair Committee on the Elimination of Racial Discrimination, Letter to Her Excellency Ms. Rosemary McCarney, Permanent Representative of Canada to the United Nations Office, UN Doc CERD/EWUAP/Canada-Site C dam/2018/JP/ks (14 December 2018), at http://bit.ly/2T8KoxF
- First Nations Child & Family Caring Society, “Canada Fails to Grasp the ‘Emergency’ in First Nations Child Welfare: Canadian Human Rights Tribunal Finds Federal Government Non-Compliant with Relief Orders” (1 February 2018), at http://bit.ly/2TgWt41
- For further information on this case, see http://bit.ly/2TllB9I
- See, e.g., First Nations Child and Family Caring Society of Canada Canada (Attorney General), 2017 CHRT 14.
- First Nations and Family Caring Society of Canada Attorney General of Canada, 2018 CHRT 4 (1 February 2018), paras 67 & 121.
- First Nations Child and Family Caring Society of Canada (FNCFCS) et al. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada (INAC)), 2018 CHRT 4. See also paras. 69-82 and 191.
- Jorge Barrera, “Ottawa to increase funding for First Nations child welfare services” CBC (1 February 2018), at http://bit.ly/2TgW3ut
- Mia Rabson, “Feds to introduce co-developed legislation on Indigenous child services in 2019,” National Post (30 November 2018), at http://bit.ly/2IB5wZA
- Jorge Barrerra, “First Nations groups want fixes to draft child welfare law as Ottawa faces time crunch” CBC (6 February 2019), at http://bit.ly/2ICmQNG
- Indigenous and Northern Affairs Canada, “Statement from Minister Bennett on the National Inquiry into Missing and Murdered Indigenous Women and Girls request for an extension and Interim report” (5 June 2018), at http://bit. ly/2IBdMJ6
- Janice Dickson, “Embattled MMIW inquiry asked for two-year extension, gets six more months” CTV News (5 June 2018), at http://bit.ly/2IKVFAe
- Laura Glowacki, “Manitoba MMIWG advocates call for action after national inquiry given 6-month extension” CBC (5 June 2018), at http://bit.ly/2IxTK25
- Gloria Galloway, “Head of inquiry into missing, murdered Indigenous women says scope will narrow after extension limited to six months” The Globe and Mail (5 June 2018), at https://tgam.ca/2IzOrPF
- Justin Brake, “MMIWG commissioners reprimanded, warned not to let families down in final week of hearings” APTN (10 December 2018), at http://bit. ly/2ICm9ny
- See Amnesty International, “New statistics on violence against Aboriginal people released” available at http://bit.ly/2EpJkvY
- Paul Joffe, “Veto and Consent – Significant Differences”, 2018, at http://bit. ly/2ICTNJX
- Coalition for the Human Rights of Indigenous Peoples, Federal, provincial and territorial interpretation and implementation of free, prior and informed consent must be aligned with Canada’s human rights obligations, at http://bit. ly/2IDzaNM
Jennifer Preston is the Program Coordinator for Indigenous Rights for Canadian Friends Service Committee (Quakers).
Rachel LaFortune is a legal fellow with Amnesty International Canada.