Indigenous World 2020: Canada

Written on 11 May 2020. Posted in Canada

Indigenous Peoples in Canada are collectively referred to as “Aboriginal Peoples”. The Constitution Act of 1982 recognises three groups of Aboriginal Peoples: Indians, Inuit and Métis. According to the 2016 Canadian Census, there were 1,673,785 Aboriginal Peoples in Canada, accounting for 4.9% of the total population. 977,230 people identified as a First Nations person. First Nations (defined as “Indians” in the Indian Act (R.S.C., 1985., 1985, c. I-5) and the Constitution Act (1982), 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, number 587,545 in 2016, many of whom live in urban centres. The Inuit represent an Indigenous people who have occupied Inuit Nunangat in Canada’s north, and numbered 65,025 in 2016. Indigenous Peoples in Canada are represented by a number of representative organisations regionally, provincially and nationally. National Indigenous representative organisations include, but are not limited to, the Assembly of First Nations, the Congress of Aboriginal Peoples, the Inuit Tapiriit Kanatami, the Métis National Council and the Native Women’s Association of Canada. Canada’s Constitution Act recognises 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 2007, Canada was one of four states that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In 2010, the Canadian government announced its endorsement of the UNDRIP, and in 2016 Canada re-affirmed its support “without qualification”. Canada has not ratified ILO Convention 169. The Aboriginal Peoples Television Network serves Canada’s Indigenous Peoples as an independent television network and news broadcaster, broadcasting programs made by, for and about Indigenous Peoples, with government support.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

In November 2019, British Columbia (BC) became the first province in Canada to enshrine the human rights of Indigenous Peoples into law by unanimously passing Bill 41, the Declaration on the Rights of Indigenous Peoples Act¹ (DRIPA). The Act aims to implement the UNDRIP by setting out a process to align BC’s laws with the UNDRIP. The BC DRIPA was developed in partnership with provincial Indigenous representative organizations (the BC Assembly of First Nations, the First Nations Summit, and the Union of BC Indian Chiefs). The legislation requires the co-development of an action plan to achieve provincial alignment with the UNDRIP over time, with appropriate transparency and accountability mechanisms. In addition, the legislation allows for flexibility for the province to enter into agreements with a broader range of Indigenous governments. Further, it provides a framework for decision-making between Indigenous governments and the province on areas of joint concern. The act will be far reaching, covering a range of policy areas including: Children and Families, Fisheries and Aquaculture, Agriculture and Ranching, Forestry, Environmental Assessment, Mining and more. Federally, the Canadian government was unable to pass Bill C-262,² a federal private member’s bill which sought to “ensure that the loans of Canada are in harmony” with the UNDRIP. Though passing the House of Commons in May 2018, the bill died in the Senate when Parliament rose for an election in June 2019. Following the re-election of Prime Minister Trudeau and the Liberal Party, the Canadian government has committed to implementing the UNDRIP into federal law, with Bill C-262 as the floor, and a 2020 target for legislation.³

Pipelines and the development of fossil fuel infrastructure

In 2019, the extractive resource industry and the development of fossil fuel pipelines continues to be a primary source of conflict between governments and Indigenous Peoples. On 13 December 2019, the UN Committee on the Elimination of Racial Discrimination (UN CERD) released a two-page statement that urged Canada to immediately stop the construction of the Coastal GasLink Pipeline, the Trans Mountain Pipeline (TMX) expansion and the Site C Dam until it has obtained the free, prior and informed consent of First Nations. The committee noted its concern with the lack of free, prior and informed consent from the impacted Indigenous groups, alongside the forced removal, disproportionate use of force, harassment and intimidation, and escalating threat of violence being used against Indigenous land-defenders.

Coastal GasLink

In the province of BC there are plans to build a 670-kilometre pipeline which is expected to transport natural gas from northeastern BC to LNG Canada’s export terminal in Kitimat on BC’s coast. Despite having been reviewed by the BC Environmental Assessment process and obtaining the approval and required permits from the provincial and federal governments, a large portion of the pipeline crosses the territory of the Wet’suwet’en Nation, a route rejected by most of the Nation’s Hereditary chiefs, who remain fiercely opposed to the project and the potential impacts to their lands and way of life. This is further complicated by the five elected Indian Act ban council, which constitute the Wet’suwet’en Nation, having signed benefit agreements with both Costal GasLink and the BC Government.

In an expression of their Indigenous and sovereign rights, Wet’suwet’en Hereditary Chiefs, members and supporters have reoccupied their territory and established a number of checkpoints and healing camps. These checkpoints and camps have currently prevented Coastal GasLink workers and contractors from accessing the Nations’ territory to clear the permitted right-of-way for the construction of the pipeline.⁴

The Wet’suwet’en people established the Gidimt’en checkpoint in December 2018 to block construction of the CGL pipeline. In January 2019, RCMP officers, in paramilitary attire and armed with loaded assault rifles, stormed the checkpoint, dismantling the gate and arresting Indigenous land-defenders and supporters.

In December 2019, a Royal Canadian Mounted Police (RCMP) report from a strategy session on Indigenous protesters opposing the Coastal GasLink pipeline became public.⁵ The report articulates an RCMP strategy to use “lethal overwatch” against the Wet’suwet’en checkpoint in a militarised raid to enforce an interim provincial court injunction against the Indigenous protesters as part of the Coastal Gaslink’s litigation against Wet’suwet’en land-defenders. The reports reveal RCMP tactics and strategies could have included the arrests of children and Elders, alongside possible child apprehension strategies.

Twenty-two kilometres from the checkpoint raided in early 2019 lies the Unist’ot’ten healing camp, established in 2009 as a re-occupation of their traditional territory. The Unist’ot’en, the People of the Headwaters, belong to the Gilseyhu clan of the Wet’suwet’en Nation, and have continued their re-occupation of their land within these camps and other checkpoints. In an upcoming and related lawsuit, the Unist’ot’en and the Office of the Wet’suwet’en are calling for a stop-work order of the Costal GasLink project, citing the ongoing destruction of their cultural heritage as a violation of their Indigenous rights as affirmed in the UN Declaration. On 31 December 2019, the BC Supreme Court approved Coastal Gaslink’s extension of the existing injunction, granting access to Coastal GasLink workers to move further into Wet’suwet’en territory, and providing the RCMP the mandate to enforce it.

Indigenous organisations and supporters throughout the province have called for de-escalation and a commitment to non-violent dialogue as concerns about the potential for violence rise.

On 13 January 2020, the Wet’suwet’en Hereditary Chiefs submitted a formal request to the United Nations to monitor the actions of the RCMP, the State and Coastal GasLink on their traditional, unceded territory.⁶

In 1997, hereditary Wet’suwet’en and Gitxsan chiefs won a landmark ruling in the Supreme Court of Canada when all nine judges affirmed the existence of Aboriginal title post-Confederation. The Wet’suwet’en, like most First Nations in the province of British Columbia have not signed treaties with the Crown, nor ceded their respective territories through sale or loss of territories through warfare.

Trans Mountain Pipeline (TMX) Expansion

Alongside the Coastal GasLink pipeline, the UN CERD urged the Canadian government to immediately suspend work on the TMX expansion, which extends from Alberta through BC to the coast. Despite federal approval, some Indigenous groups have not provided their free, prior and informed consent for the project and continue to fight the TMX expansion project in the nation’s courts.

In the spring of 2018 the federal government bought the TMX project from Kinder Morgan. In August 2018, the Supreme Court ruled that Canada failed to meaningfully consult with Indigenous Peoples. Following this ruling, the government began yet another consultation process in an effort to address the court-identified shortcomings of the previous process. Canada re-approved the project in June 2019. Indigenous communities have again taken the government to court citing an inadequate consultation process. In December 2019, the Squamish Nations, Tsleil-waututh Nation, Coldwater Indian Band and a collective of Stó:lo bands are challenging the renewed federal consultations process citing the use of federally doctored reports to support the government’s intentions.⁷

Indigenous opposition to the TMX remains strong with concerns about environmental consequences, and a lack of recognition for Indigenous title and rights.

The completion of the TMX pipeline remained a top priority for the recently elected federal government, which began their second term in October of 2019.

The Crown-corporation-owned expansion project would twin an existing 1,150-kilometre pipeline that extends from Edmonton to Burnaby, BC., nearly tripling the existing pipelines capacity to move oil from Alberta to coastal BC, and then to markets in Asia via tankers.

Site C Dam

The third project referenced in the UN CERD statement to Canada is the Site C Dam, currently being constructed in northeastern BC.

Construction of the dam began in 2015 despite the opposition of impacted Indigenous Peoples. Despite numerous calls to halt construction by the UN CERD in 2017,⁸ 2018⁹ and now 2019, in a June 2019 letter to UN CERD, Canada claimed it had obtained the free, prior and informed consent of impacted Indigenous Peoples.¹⁰

In a 19 November 2019 letter to the UN CERD Human Rights Treaties Division and the Office of the United Nations High Commissioner for Human Rights, Chief Roland Willson of the West Moberly First Nation asserted that the West Moberly First Nation never consented to the construction of the dam, nor have many other affected Indigenous Peoples. The West Moberly First Nations and Prophet River First Nation are awaiting trial dates to determine if the dam unjustifiably infringes on their constitutionally protected treaty rights, as the nations claim in civil actions filed in 2018. They assert that the dam will destroy culturally, spiritually and historically significant sites, including burial sites, sacred sites and important hunting and fishing grounds.

The project would flood 128 kilometres of the Peace River valleys and its tributaries in the heart of Treaty 8 territory. To date, neither the federal nor the provincial governments have withdrawn their support for the project.

Children and Families

Canada has introduced a new Indigenous child welfare law, Bill C-92,¹¹ which came into force 1 January 2020. The new legislation creates national standards on how provincial and territorial child welfare agencies deal with apprehended Indigenous children. It also delineates jurisdiction for Indigenous governing bodies – First Nation, Inuit and Métis – to pass laws governing their own child welfare systems that would supersede provincial, territorial and federal laws.

Indigenous Peoples have criticised Canada for failing to work in cooperation with Indigenous organisations to prepare for the new law’s implementation, though many organisations celebrated the law’s passing as the result of a collaborative effort between Indigenous Peoples and the Canadian government.

On 6 September 2019, the Canadian Human Rights Tribunal ordered federal compensation for First Nations children and youth removed from their homes by the child welfare system, and the parents and grandparents affected, including in cases where children were denied essential medical and other services. This ruling has been celebrated by Indigenous representative organisations as a significant step forward.¹² The case, originally filed in 2007, is being challenged by Canada to provide time for a judicial review aimed at quashing the Tribunal compensation order. Indigenous child welfare advocates have accused the Canadian government of unjustifiably delaying the tribunal ordered distribution and pursuing child-welfare policies which actively discriminate against Indigenous children and their families. ¹³

Indigenous languages

Fewer than one in five Indigenous Peoples in Canada are fluent in their traditional language, with many languages facing an imminent threat of extinction.

In June 2019 the federal government passed Bill C-91,¹⁴ an act respecting Indigenous languages. The bill will ensure that the government provides long-term, sustainable funding of Indigenous languages, establishes an Office of the Commissioner of Indigenous Languages and facilitates collaboration between federal, provincial, territorial and Indigenous governments to support Indigenous languages.

Bill S-3 and the elimination of sex-based discrimination within the Indian Act

In 2017 the federal government passed Bill S-3,¹⁵ a bill to eliminate the continuing sex-based discrimination within the Indian Act. The bill would extend government recognised “Indian” status eligibility to descendants of women who lost status due to historic policies which discriminated against Indigenous women and their descendants dating back to 1869.

In January 2019, the United Nations Human Rights Committee released an 18-page decision,¹⁶ wherein the committee called on Canada to remove the discrimination and to ensure that all First Nations women and their descendants are granted Indian status on the same footing as First Nations men and their descendants.

In August 2019, following calls to action by the Union of BC Indian Chiefs¹⁷ and other Indigenous organisations, Crown-Indigenous Relations Minister Carolyn Bennett implemented the final provisions of Bill S-3, removing the 1951 cut-off,¹⁸ effectively extending the eligibility for Indian status to possibly hundreds of thousands of people.

This act sets the necessary process in motion to eliminate the sexbased discrimination which for decades stripped Indigenous women, and their descendants, of their status if they married a non-Indigenous man, while simultaneously not applying to Indigenous men who married non-indigenous women.

The stripping of Indian status from Indigenous women and their descendants has denied these individuals their rights, access to their culture, communities, amenities and services.

Climate emergency

In June 2019 the federal government declared a national climate emergency,¹⁹ echoing many of the same declarations by provincial, territorial, municipal and Indigenous governments. The declaration does not commit the federal government to any actions or budgetary expenditures, other than recommitting Canada to meeting its national targets under the Paris Agreement and to support actions which meaningfully reduce greenhouse gas emissions.

Some Indigenous organisations have criticised the federal declaration as empty aspirational words, as the government continues to pursue the development of its fossil fuel resources.²⁰

Matthew Norris is a member of the Lac La Ronge First Nation in Northern Saskatchewan, Canada. He is a PhD student at the University of British Columbia’s Department of Political Science and is researching issues pertaining to international Indigenous rights frameworks. He is the Vice-President of the Urban Native Youth Association in BC and prior to enrolling in school was a Policy Analyst for the Union of BC Indian Chiefs.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Parliament of BC, “Bill 41 – 2019 Declaration on the Rights of Indigenous Peoples Act,” 2019 Legislative session: 4th Session, 41st Parliament. https:// leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st- parliament/4th-session/bills/first-reading/gov41-1
2. House of Commons of Canada, “Bill C-262: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.” House of Commons, First Session, Forty-second Parliament, May 30, 2 https://www.parl.ca/DocumentViewer/en/42-1/ bill/C-262/third-reading
3. Jorge Barrera, “Trudeau government moving forward on UNDRIP legislation, says minister,” CBC, December 04, https://www.cbc.ca/news/indigenous/ trudeau-undrip-bill-1.5383755
4. Wet’suwet’en Hereditary Chiefs, “No Access Without Consent,” Unist’ot’en, January 7, 2020. https://unistoten.camp/wetsuweten-hereditary-chiefs-no- access-without-consent/
5. Jaskiran Dillon and Will Parrish, “Exclusive: Canada police prepared to shoot Indigenous activists, documents show,” The Guardian, December 20, https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land- defenders-police-documents
6. Jennifer, Wickham, “Wet’suwet’en Hereditary Chiefs Call for UN Intervention,”Unist’ot’en, January 13, 2020. http://unistoten.camp/unintervention/
7. Chantelle Bellrichard, “First Nations accuse Canada of altering internal reviews of marine spill risk reports on Trans Mountain,” CBC, December 17, https://www.cbc.ca/news/indigenous/trans-mountain-tsleil-waututh-altered- reviews-1.5399396
8. 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).
9. Noureddine Amir, Chair Committee on the Elimination of Racial Discrimination (20 November 2018), at https://www.scribd.com/document/397143510/UBCIC- letter-to-UN-Committee-on-the-Elimination-of-Racial-Discrimination
10. Chief Roland Willson, “Request for Final Report on the Site C Dam and Canada’s Noncompliance with International Human Rights Standards,” The Narwhal, November 19, 2019. https://www.scribd.com/document/442312741/2019-11-20- Letter-WMFN-to-CERD-Final-Report-on-Canada-s-Human-Rights-Abuses-002
11. House of Commons of Canada, “Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families,” First Session, Forty-second Parliament, June 21, 2019. https://www.parl.ca/DocumentViewer/en/42-1/bill/C-92/royal- assent
12. First Nations Leadership Council, “First Nations Leadership Council applauds landmark CHRT ruling for compensation for First Nations children and families who were unfairly discriminated against in child welfare system,” UBCIC, September 06, 2019. https://www.ubcic.bc.ca/first_nations_leadership_ council_applauds_landmark_chrt_ruling_for_compensation
13. Jorge Barrera, “Ottawa plans to settle First Nations child welfare class-action lawsuit as it battles tribunal order,” CBC, November 25, https://www.cbc. ca/news/indigenous/child-welfare-class-action-1.5372281
14. House of Commons of Canada, “Bill C-91, An Act Respecting Indigenous Languages,” First Session, Forty-second Parliament, February 5, https:// www.parl.ca/DocumentViewer/en/42-1/bill/C-91/first-reading
15. House of Commons of Canada, “Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada,” First Session, Forty-second Parliament, December 12,
16. Human Rights Committee, Views Adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010, UN Doc CCPR/C/124/D/2020/2010.
17. Union of BC Indian Chiefs, “Press Release: UN Rules that Canada’s Indian Act Discriminates Against First Nations Women”, UBCIC, January 17, https:// www.ubcic.bc.ca/un_rules_that_canada_s_indian_act_discriminates
18. For more information on the 1951 cut-off, please see: Assembly of First Nations, “The 1951 Cut-Off for Registration,” AFN. https://www.afn.ca/wp-content/ uploads/2020/01/05-19-02-06-AFN-Fact-Sheet-The-1951-Cut-off-final-revised.pdf
19. Hannah Jackson, “National climate emergency declared by House of Commons,” Global News, June 17, 2019. https://globalnews.ca/news/5401586/ canada-national-climate-emergency/ 
20. Union of BC Indian Chiefs, “Canada Approves TMX Despite Failing to Achieve Consent: Declaration of Climate Emergency Rings Hollow,” UBCIC, June 18, 2019. https://www.ubcic.bc.ca/canada_approves_tmx_despite_failing_to_ achieve_consent

Tags: Land rights, Youth, Business and Human Rights , Climate, Cultural Integrity