four arrows newsletter mar 13 2014

<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.

mailto:[email protected]

<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.”




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

[email protected]

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?





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




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.”




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


http://www.rabble.ca



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!”




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.




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



http://www.firstperspective.ca

<e-notes> Education Act Mysteries, UN Cancellation, Funding Cuts Alliance Formed, No Missing/Murdered Women Inquiry - 10-


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.




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




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

publication in <e-notes>.




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




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/


http://indiancountrytodaymedianetwork.com/



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.




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


http://nricaribou.cc.umanitoba.ca/jeanpolfus/publications



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




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.”




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




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




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




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


four arrows newsletter mar 13 2014

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