Australia: High court to rule on whether Indigenous people can be deported from Australia

Can’t resist following this absurd argumentation by the Australian government:

The federal government’s attempts to deport two Indigenous men have gone before the high court, examining what lawyers for the two men have said are “absurd” circumstances.

The two men in the separate cases, Daniel Love and Brendan Thoms, were both born overseas to at least one parent who is Indigenous and holds Australian citizenship. They both have Indigenous children, and Thoms is a native title holder.

However, neither formally applied for Australia citizenship and, after being convicted of “serious” crimes and given jail sentences of 12 months or more, both had their visas cancelled under the government’s controversial character test provisions.

The law firm Maurice Blackburn is now asking the high court to determine if an Aboriginal Australian in the men’s circumstances is an “alien” for the purposes of the constitution.

It is the first time the court has been asked to rule on the commonwealth’s use of its alien powers in this way, and the lawyers now representing the two men argue the term must be defined by the court, not parliament.

“Historically we are a nation of immigrants and our ancestors come from other places, except for Aboriginal Australians,” said Claire Gibbs, senior associate at Maurice Blackburn, who is acting for the two men, before the hearing. “The importance and significance of that should be reflected in the common law.”

Love and Thoms are not the only Indigenous people who have faced deportation under the character test provisions. Guardian Australia has previously reported on the case of Tim Galvin, and it is believed there are a number of others.

Love was born in Papua New Guineain 1979 to a PNG citizen mother and Australian citizen father, and automatically acquired PNG citizenship.

The family travelled back and forth until they settled permanently in Australia when Love was five and he was given a permanent residency visa. Love is a recognised Kamilaroi man.

Thoms was born in New Zealand in 1988 to an Australian citizen mother and New Zealand citizen father. He automatically acquired New Zealand citizenship at birth, and was entitled to apply for Australian citizenship, but never did.

He has lived permanently in Australia since November 1994 under a special category visa. Thoms is a recognised Gunggari man, and a native title holder under common law.

In 2018 both men were separately convicted of crimes and sentenced to 12 and 18 months respectively. Both had their visas cancelled under the government’s controversial section 501 of the migration act, relating to character, and were taken to immigration detention.

Gibbs said being put in immigration detention had taken a devastating toll on her clients’ mental health. Gibbs said bringing the case before the court was not seeking to interfere with the government’s power to deport people who were “genuinely non-Australian”.

“What we think is wrong is the government using the power to detain and deport people who, on any commonsense measure, are Australians, like my clients.”

Love was given his visa back under ministerial discretion but Thoms remains in immigration detention after more than seven months.

Gibbs welcomed the return of Love’s visa but said there there were clearly “inconsistencies” between the two cases and that was why the high court needed to determine if the government was using the power lawfully.

In submissions to the court, the men’s lawyers argued that Indigenous people “cannot be alien to Australia” and were “beyond the reach” of that constitutional power.

Indigenous people are known to have inhabited Australia for as much as 80,000 years and are “a permanent part of the Australian community”, they said, and the two men “do not, and have never, owed allegiance to a foreign sovereign power”.

“The statutory definition of citizen is distinct from, and does not control, the constitutional definition of alien and, therefore, that the plaintiffs are not Australian citizens pursuant to Australian citizenship legislation does not automatically mean that they are aliens.”

In defence, the Australian government submitted that whether the men were Indigenous or native title holders was “irrelevant” to the question of their alien status.

“Acceptance of the proposition that Aboriginal people, as a class, were not and are not ‘aliens’ does not entail the proposition that any particular Aboriginal person is not an ‘alien’,” the government’s submission said.

It said certain principles, which were “fatal” to the plaintiffs’ case, “ought now to be regarded as settled”. They said it was an agreed fact that neither plaintiff was a citizen, and “non-citizen” was the same as “alien”.

Numerous cases supported these findings, the submission said, and the plaintiffs had not sought to reopen those cases.

Legal arguments began on Wednesday, with the government citing the high court’s section 44 ruling on MPs, and the men’s lawyers citing significant cases including the Mabo decision, and the high court ruling on Amos Ame, a Papua-born man who was an Australian citizen by birth but who could be treated as an alien.

The government’s push to deport an increasing number of people under the character test provisions has raised numerous complications, including for Indigenous people and those born in PNG before its independence in 1975.

A complex web of citizenship laws and successive changes to them in both PNG and Australia has threatened to leave some people stateless, as both countries assumed people had citizenship of the other and revoked their own, but failed to properly communicate it to individuals.

Source: High court to rule on whether Indigenous people can be deported from Australia

Australia High Court to Decide if Aboriginals Without Citizenship Can Be Deported

Odd case for the Australian government to be defending:

Australia, a country taken over by white colonizers after the Black indigenous population had lived there for 65,000 years, will now determine if Aboriginal people without Australian citizenship are aliens who are subject to deportation.

There is a case before the High Court of Australia that will establish whether an indigenous person can be considered an alien under the nation’s constitution. Two men, Daniel Love and Brendan Thoms, have filed a lawsuit in which the court will determine whether an Aboriginal Australian with at least one Australian parent — one who was born in another country, came to Australia as a young child and has only left the country briefly — and is not an Australian citizen is an alien under section 51 (xix) of the Australian Constitution. That section allows the Parliament to enact laws concerning “naturalization and aliens.”

The answer the plaintiffs have gotten is no. “For descendants of Australia’s first peoples, an indelible part of the Australian community, to be ‘aliens’ for the purposes of Australia’s Constitution, is antithetical to their indigeneity and to the social, democratic and political values which underpin and are protected by the Constitution The concept of Aboriginality is inconsistent with the concept of alienage,” the men say in their filing with the court.

Under a 2014 federal immigration law, known as a “bad character” law, deportation is mandated for people living in Australia with visas who are sentenced to at least 12 months of imprisonment. The Australian government wants to make their immigration laws even more draconian by broadening the government’s power to revoke visas of people with criminal records. The policy has increased the deportation of people who have lived in Australia most of their lives to countries such as New Zealand, Papua New Guinea or other islands in the Pacific, even when those people have no ties to the country to which they are returned. One third of the 1,300 people in immigration detention are there based on bad character, and in New Zealand, where the Australian deportation plan has been criticized, 600 people were returned in 2017.

Daniel Love, 39, is a member of the Kamilaroi people who was born in Papua New Guinea to an Aboriginal Australian father and a Papua New Guinean mother. Love is also a common law holder of native title —traditional land rights claimed by Aboriginal Australian people under the original ownership of the land.  He has been a permanent resident of Australia since the age of 6, but his parents did not complete the necessary paperwork to obtain his Australian citizenship.  Last year, Love was sentenced to 12 months in prison on an assault charge. The government canceled his visa and Love was placed in immigration detention. After spending seven weeks in detention, Love was released and the government revoked the cancellation of his visa.

Love sued the government for AU$200,000 (US$142,920) in compensation for false imprisonment, claiming the government illegally detained him and that he has suffered loss of appetite, sleep deprivation and anxiety. He was unable to see his five children, all of whom are Australian citizens, and feared for his safety with the prospect of being sent to a country with which he has no family connections.

Similarly, Brendan Thoms, 31, is a Gunggari man born in New Zealand to an Aboriginal Australian mother and a New Zealander father. Thoms was entitled to Australian citizenship by birth but has not acquired it, and has lived in Australia since the age of 6. He was sentenced to imprisonment of 18 months for assault causing bodily harm, and his visa was canceled because he was deemed an “unlawful non-citizen.” Thoms, who has one Australian child, remains in detention.

In its own court filings, the Commonwealth of Australia claims that whether Love or Thoms is an Aboriginal person or is a common law holder of native title is irrelevant in determining if they are aliens. Rather, the government argues that what is important is the men are not citizens and they owe allegiance to a foreign country, and that having an Australian parent or deep ties to the country is irrelevant. “Accordingly, as persons who are not Australian citizens, the Plaintiffs are, and always have been, aliens,” the government argues, adding “it was recognised that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship … that the word ‘alien’ in s 5 l(xix) of the Constitution had become synonymous with ‘non-citizen’.”

The state also claims that “Aboriginality does not prevent a person from being an alien,” particularly when that person is a citizen of a foreign country. The citizens of Papua New Guinea, the commonwealth claims, may have traditional and cultural associations with the Torres Strait Islands of Australia — which lie between Papua New Guinea and Australia — yet they are still regarded as aliens.

This case comes in a country that granted citizenship to indigenous people only relatively recently, with a 1967 referendum to include Aboriginal and Torres Strait Islander people in the national census for the first time. Prior to that time, Black people were rendered invisible and treated like animals, supposedly “discovered” by the British in 1788, although they had lived on the land for millennia. Now there is cruel irony in the fact that indigenous Black people would be regarded as aliens on land stolen from them.

Source: Australia High Court to Decide if Aboriginals Without Citizenship Can Be Deported

Chris Selley: Here’s why Justin Trudeau’s identity-politics troubles were inevitable

Identity politics is practiced by all political parties, the variation lies more with respect to which identities they are trying to court compared to others.

That being said, Selley notes correctly some of the risks.

And it is amazing the extent to which the PM appears to have destroyed whatever remained of his brand over the past week: “sunny ways,” transparent government, gender equality and Indigenous reconciliation:

One assumes Jody Wilson-Raybould would prefer still to be Canada’s Minister of Justice. But there are certainly worse ways to go out. As Prime Minister Justin Trudeau squirms before the cameras, mooting unsatisfying explanation after unsatisfying explanation as to just what transpired between his office and Wilson-Raybould in the matter of the SNC Lavalin prosecution, she’s practically soaked to the bone with praise.

There are serious questions as to how Wilson-Raybould could have stayed on in cabinet, or indeed not resigned as soon as the bad thing happened — whatever it was, assuming it happened. But when she finally threw in the towel on Tuesday, even NDP Leader Jagmeet Singh lauded her record: “Jody Wilson-Raybould, the first Indigenous woman AG of Canada, fulfilled her duties with courage and conviction,” he tweeted. “She spoke truth to power and in return she was fired by PM Trudeau.”

One notes Singh praised her record as Attorney-General, not as Justice Minister. Had Wilson-Raybould been shuffled to another relatively high-profile portfolio instead of being kicked down the stairs, the dominant narrative might have concerned what a terribly disappointing Justice Minister she was: Among many other complaints are the insane, likely unconstitutional impaired driving law and inaction on mandatory minimum sentences and victim surcharges, each of which is likely to disproportionately affect Indigenous and other visible minority Canadians; and of course, the continued wildly disproportionate number of Indigenous defendants and prisoners.

Indeed, Wilson-Raybould had plenty of Indigenous critics when she was in office. Now the dominant narrative is that her firing represents a major repudiation of Trudeau’s reconciliation agenda. It’s more than passing strange, but that’s the politics we have right now: Anywhere centre or left of centre, one’s identity and background count massively in or against your favour. That being the case, the Liberals’ current travails seem almost inevitable.

Trudeau’s first cabinet featured some very impressive resumes from a wide variety of people — but it was “because it’s 2015” that knocked half of Canada down in a swoon. From Day One, there were obvious questions: Why no black cabinet ministers? Why so many Sikhs? Why privilege one kind of proportional representation above another? Liberals waved such complaints away like mosquitoes: Can’t you people just enjoy a landmark achievement from a government that means well?

Well, no. Love identity politics or hate it, that’s not how it works. Eventually it was bound to fall apart. We’re seeing it right now.

At his Tuesday press conference, Trudeau repeatedly referred to Wilson-Raybould as “Jody” and Harjit Sajjan, who takes over from her at Veterans Affairs, as “Minsiter Sajjan.” To some, this smacked at worst deliberate sexism, at best of accidental sexism. To many others, this parsing will seem like a petty reach. (He couldn’t very well call her “Minister Wilson-Raybould,” could he?) But Trudeau can hardly complain. His party banged on forever about how disrespectful it was for the Conservatives to call him Justin.

When an MP or minister (or ex-MP or ex-minister) causes a political leader trouble, what does he do? Same thing an NHL GM does to justify a lousy trade: He has a friendly reporter explain what a nuisance that person was in the locker room. So we have heard various anonymous reports about Wilson-Raybould’s pugnacious, difficult and self-centred performance in cabinet. It’s standard operating procedure — but it’s also anonymously slagging off an Indigenous woman. That doesn’t fly in 2019.

At this point, the Wilson-Raybould demotion looks like a spectacular unforced error. But it would have taken a very, very different kind of politician to have avoided forever the trouble in which Trudeau now finds himself. Trudeau is not a very different kind of politician, and his staffers are not very different kinds of staffers. Several, including principal secretary Gerald Butts and chief of staff Katie Telford, cut their teeth in the office of Ontario Premier Dalton McGuinty — another supposed breath of fresh air that went rapidly stale and eventually left everyone at Queen’s Park gagging in a green haze of egg fart. McGuinty’s former deputy chief of staff just got out of jail.

The Trudeau gang does seem to truly believe in their own inherent virtue — that when they call up The Canadian Press to slag off a former cabmin, it’s literally not the same thing as when a Conservative staffer does it. They still seem utterly transfixed by the power of symbolism over action. But that doesn’t help any real people who need real help. Setting aside their words and their symbolic gestures, their actions have been little but conventional.

It’s a great disappointment to many — perhaps not least some of Trudeau’s own cabinet ministers. Several have expressed support and praise for Wilson-Raybould’s works since her resignation. Treasury Board President Jane Philpott even posted a photo of the two together.

It would be easy to read too much into that. But it raises the intriguing prospect that some of Trudeau’s MPs might be truer believers in his agenda than he is. These people were promised “government by cabinet,” after all. If they decide to insist on it, even more interesting days may lie ahead.

Source: Chris Selley: Here’s why Justin Trudeau’s identity-politics troubles were inevitable

Racism, citizenship and schooling: why we still have some way to go

Interesting article on the Australian and New Zealand experience with education approaches for Indigenous peoples. Spoiler alert, the better model is New Zealand with the Maori (I was always impressed when my New Zealand diplomatic counterparts would be both in English and Maori):

At a Senate Estimates hearing in May, LNP Senator Ian MacDonald saidhe found it difficult to find any but “very rare” cases of racism in Australia. Though, he did concede perhaps this view had developed “living in a bubble”. Bubbles are dangerous places from which to make public policy.

MacDonald may not have had personal experiences of racism, but 20% of Australians have experienced racism in the past 12 months due to the colour of their skin, ethnic origin or religion.

Racism means people experience citizenship differently. It means opportunities and capacities are not equally available to every citizen and egalitarian justice, the idea of a “fair go” for everyone, doesn’t work as it’s intended.

Racism divides societies and fractures the idea of common nationhood. It helps explain why some people don’t get a fair go at school, for example.

Racism and school policy

Schools operate outside MacDonald’s bubble. But they aren’t ideologically neutral.

Historically, education policy was explicit. Schools were not meant to work for Indigenous people. In the 1890s, inferior curriculums were officially circulated for Indigenous people.

By 1937, the idea of inherent Indigenous intellectual inferiority remained. A parliamentary committee heard and ignored arguments for better schooling:

I say that a full-blood can be educated just as well as a half-caste or non-Aboriginal…I say they must have qualified teachers…At present they are not qualified…

Indigenous people could be excluded from New South Wales public schools until 1972.

Separate schools for Indigenous peoples were established to meet the requirement for education set out by the Aboriginal Protection Acts. But education was usually for domestic service or labouring, and often marked by physical and sexual abuse.

Exclusion is the lived experience of some of the parents of Indigenous people who are in school now. As well as being a denial of equal human worth, the experience of racism at school directly predicts lower test scores.

Racism also occurs at other levels of the education system. For example, in 2017, an Australian Indigenous Doctors’ Association member survey found 60% of Indigenous doctors and medical students had experienced racism and/or bullying during training.

Education and culture are universal human rights. But when some people can bring their knowledge, experiences and worldviews to school and others can’t, it produces systemic discrimination. It means different people get different levels of access to education.

Who decides what knowledge counts

Canadian multicultural political theorist Will Kymlicka argues:

the state unavoidably promotes certain cultural identities and thereby disadvantages others. This may be true, but the state can also intentionally promote some cultural identities at the exclusion of others.

In 2008, Julia Gillard insisted bilingual schooling discontinue in the Northern Territory. It was an ideological position that undervalued the relationships between language, cultural identity and intellectual development. Nor did it consider that there are broader and more important contributors to school effectiveness such as teacher quality.

The question of who decides what knowledge counts for Indigenous people is also important. Can Indigenous people really be equal citizens if they can’t contribute to these decisions?

Again in 2008, a Northern Territory government submission to an inquiry into the Northern Territory Intervention made it clear even the citizen’s right to go to school was conditioned by systematic racism.

According to a government submission, policy measures to combat truancy were problematic because if they worked, the system would not be able to cope with the anticipated increase in school attendance. The failure of this policy was expected and accepted for Indigenous citizens.

Where are we now?

In Australia and elsewhere in 2018, policy rhetoric allows Indigenous peoples to pursue higher aspirations. It insists on fundamental human equality and aims to shift MacDonald’s observation from the naive to the prophetic. Eliminating racism from public policy means positive difference is a reasonable expectation of citizenship.

Everybody should enjoy the same political capacities to influence what happens at school, why and for whose benefit. The claim for influence, as a capacity of citizenship, inspires the contemporary call for a guaranteed Indigenous voice to parliament.

But diminishing racism and the policy failure that it causes requires Indigenous voice at all levels of public policy-making and implementation. Culture counts not just in classroom practices, but also in policy evaluation.

There are, for example, important arguments of equal citizenship for Indigenous policy makers to examine the apparent contradiction between low Indigenous achievement in NAPLAN and the only Closing the Gap target on track to be met – halving the gap in year 12 attainment by 2020. Policy failure can be reduced by replicating examples of success.

What does work?

In 2016, a National Health and Medical Research Council forum proposed establishing an Aboriginal community-controlled education sector. This would parallel the 143 existing community-controlled health organisations and contribute to a citizenship of influence.

The Indigenous Stronger Smarter Institute’s educational principlesreflect an expectation that schools must work equally well for everybody; that education should occur on principles of equal citizenship. This includes acknowledging and embracing a positive sense of identity, Indigenous leadership in schools and school communities, and having high expectations for Indigenous staff and students.

The Australian Institute for Teaching and School Leadership provides examples of these principles working in practice to improve Indigenous achievement. But the institute’s listed instances of “what works” are not generally measures that have been trialled, evaluated and replicated across whole school systems.

All New Zealand schools are evaluated explicitly and publicly on Maori achievement and their efforts to improve it. Many have raised Maori achievement with reference to an Effective Teaching Profile developed by the Maori led Te Kotahitanga research and teacher professional development project. Its six presumptions are that:

  • teachers care for their students as culturally located human beings above all else
  • teachers care for the performance of their students
  • teachers are able to create a secure, well-managed learning environment
  • teachers are able to engage in effective teaching interactions with Māori students as Māori
  • teachers can use strategies that promote effective teaching interactions and relationships with their learners
  • teachers promote, monitor and reflect on outcomes that in turn lead to improvements in educational achievement for Māori students.

Te Kotahitanga and its successor professional development programmes are widely implemented and the Coalition Government Agreementbetween the Labour and New Zealand First parties commits to further investment in the project.

The contrast between Australia and New Zealand is ultimately one of expectations about what it means to be an Indigenous citizen entitled to a “fair go” as racism’s opposite.

Source: Racism, citizenship and schooling: why we still have some way to go

Indigenous woman fights to stay in Canada, saying traditional territory is B.C.

Interesting case, one that requires joint agreement by the USA and Canada to address, and for that reason, unlikely in the post 9/11 security environment and the overall Trump administration to immigration and citizenship:

A First Nations woman working to revive a threatened language in her traditional territory of northern British Columbia says she’s being forced to leave the country on Canada Day.

Mique’l Dangeli belongs to the Tsimshian First Nation, whose territory straddles the border between Alaska and British Columbia. She says Canada won’t recognize her right to live and work in B.C. because she was born on the American side of the Annette Island Indian Reserve.

She said her visa expires July 1.

“For me, what I consider home is my home community and my people’s traditional territory, which is northern B.C.,” she said. “We’re not immigrants to our people’s traditional territory.”

Dangeli gave up a tenure-track position with the University of Alaska Southeast to teach 65 students how to speak Sm’algyax in the community of Kitsumkalum, just outside of Terrace, because there are so few fluent speakers remaining.

‘I’ve shed a lot of tears’

She says she hasn’t said goodbye to her students yet because it’s too difficult.

“I’ve shed a lot of tears with my elders and family but I don’t want to do that with my students. They’re so young and their love for the language is my inspiration and solace. I wouldn’t have the strength to fight this battle if I didn’t see where the hope truly lies, which is within my students,” she said.

After having two express entry applications for permanent residency fail, Dangeli has started a petition calling on the Canadian government to reciprocate the Jay Treaty, which was signed between the United States and Britain in 1794. The treaty allows status Indians born in Canada, who also have 50 per cent blood quantum, to live and work in the U.S.

Canada does not recognize the agreement as binding because it never codified it.

“The colonial border between the U.S. and Canada dissects Indigenous territories in ways that sever the lifelines between First Nation families, communities, languages and ceremonies,” Dangeli’s petition says.

Dangeli says she considered applying for Indian status in Canada, but learned the two-year process hinged on the baptismal record of her great-great-great grandmother in Prince Rupert, B.C., in the 1860s.

“So if she decided not to convert to Christianity I would not be considered an Indian under the Indian Act. The whole process is about one colonial institution affirming the power of another. It has nothing to do with our inherent Indigenous rights that predate colonial law,” Dangeli said.

Border issues unresolved

The federal government has been working to resolve border issues for First Nations but has not reached a solution. In December 2016, it appointed Fred Caron to examine the issue as a special representative of the minister of Crown-Indigenous Relations and Northern Affairs.

Caron met with representatives from more than 100 First Nations between January and August 2017, submitting a report to a committee of senior federal officials that is charged with developing a plan for addressing the border-crossing issues.

“Among the issues highlighted in Mr. Caron’s report, and that are being examined by the committee of senior officials, are questions relating to the important cultural and family connections between First Nations in Canada and native American communities in the United States,” Crown-Indigenous Relations and Northern Affairs Canada said in a statement.

The government will discuss next steps on the file with First Nations in the coming months, after the committee submits its recommendations, it said.

“The government is committed to working in partnership with First Nations to address their Canada-United States border crossing concerns,” the department said.

Although the Jay Treaty is historic, Canadian institutions are increasingly choosing to honour it, said Mary Ellen Turpel-Lafond, a law professor with the Peter A. Allard School of Law at the University of British Columbia and inaugural director of the school’s Indian Residential School History and Dialogue Centre.

She gave the example of Vancouver Island University, which offers domestic tuition for American Indigenous students who would fall under the treaty.

Border issues have most commonly arisen in Eastern Canada, she said, where communities like the Akwesasne First Nation cross three borders between Ontario, Quebec and New York.

Some are looking for solutions, like Mohawk leaders who called for a special identification card that would ease the border crossing, which hasn’t been granted, she said.

Practical solution wanted

“Indigneous people have been coming forward and saying let’s work this out in a practical way,” she said.

“It’s a case where Canada is actually behind.”

Toronto lawyer Sara Mainville says border issues have been common in Eastern Canada and some First Nations leaders have taken it upon themselves to set up meetings with customs and immigration officials so their community members don’t run into any problems, since Canada isn’t honouring the Jay Treaty.

In 2006, her own community of the Couchiching First Nation sanctioned the adoption of the husband of one of its members who was born on the American side of the Anishnaabe territory, because he needed medical care and Canada wouldn’t recognize his rights to the territory.

Mainville pointed to Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples as something that gives Dangeli’s argument more weight, because it specifically says Indigenous Peoples divided by international borders have a right to maintain contact with their own members.

For Dangeli’s part, she says she hopes her situation is resolved as soon as possible, especially given the critical state of the language.

“This is my heart and soul and the work is very much needed within our nation.”

Source: Indigenous woman fights to stay in Canada, saying traditional territory is B.C.

Ottawa appointing more female judges, but bench still short of gender parity – The Globe and Mail

Good overview with the latest numbers. My tracking of women, visible minorities and Indigenous judicial appointments since 2016 is above:

The federal Liberal government has been naming women to the bench at an unprecedented rate this year, with nearly three women chosen for each man, government figures show. Of 37 judges named to federally appointed courts in 2018, 27 are women.

The boost in the appointment rate of women has been helped along by historic levels of female applicants, who make up 45 per cent of the 1,169 applicants since the Liberals established a new appointment process in October, 2016, according to the Office of the Commissioner for Federal Judicial Affairs, which collects data on the process. That’s up from 30 per cent during the 10 years the Conservatives were in power. (Federally appointed courts include the superior courts of provinces, the Federal Court, Tax Court and the Supreme Court of Canada.)

The rapid rate of female appointments still leaves the bench well short of gender parity. The 866 full-time positions are now 39.6 per cent women, up from 36.6 per cent when the Liberals took office in November, 2015, according to figures supplied at the request of The Globe and Mail.

The government has put into effect its stated policy of having a 50-50 gender split in Cabinet. But it has never publicly stated a target for the appointment of women to the judiciary.

If it has set numerical targets for achieving a 50-50 split, it is not saying.

“All judicial appointments are made on the basis of merit, taking into account the needs of the court,” Dave Taylor, a spokesman for Justice Minister Jody Wilson-Raybould, said in an e-mail. “As we move forward, we are confident that our Government’s goal of a balanced, meritorious and diverse bench will be realized.”

Members of the legal community interviewed for this story said they believe the Liberals are stepping up efforts to bring about gender parity on the bench. Several lawyers said they welcome that effort. “As a middle-aged white guy, I’m not concerned about what might be interpreted as a disproportionate number of women who are appointed to the bench,” Halifax privacy lawyer David Fraser said in an interview. “If it takes a little bit of corrective action to get us close to a properly representative judiciary, I think it’s fine.”

During the Conservatives’ period in office, from 2006 to 2015, women made up 30 per cent of judicial appointments. The Liberals made several changes to the appointment process in 2016, including asking applicants to fill out questionnaires describing what equity and diversity mean to them. And for the first time, they asked applicants their race, ethnicity, sexual orientation and disability status, promising to make the data public. (The judicial affairs office says it will make these more detailed figures for the second year of Liberal appointments under this process public in October. Several of the 2018 appointees are members of racial minority groups.)

The appointment process has two main stages. Applicants are screened by one of 17 judicial advisory committees made up of federal and other representatives. Then the government chooses from the list of candidates recommended or highly recommended by the committees.

Some lawyers stressed the importance of merit in judicial appointments. “I certainly support gender equity but the overriding factor has to be choosing the best candidates, as far as I’m concerned,” Andrew Rouse, a litigator in Fredericton, said in an interview.

Heather Treacy, a lawyer in Calgary, said she applauds the trend “provided it is balanced with ensuring top-quality candidates are appointed. This is less of a current concern given the increased numbers of very able females engaged in the legal profession.”

Others offered unqualified praise. “I think it’s terrific movement in the right direction,” said Brian Facey, who practices competition law in Toronto.

Rosemary Cairns Way, who teaches law at the University of Ottawa and monitors diversity in judicial appointments, said the jump in the overall proportion of women on the bench is noteworthy. It “demonstrates that achieving gender parity requires action (as opposed to faith in a ‘trickle-up’ process),” she said in an e-mail.

As for the greater proportion of women applying for the federal bench, she said, “I suspect it is because potential women applicants are more confident that the skills, experience, and expertise they present are more likely to be valued.”

via Ottawa appointing more female judges, but bench still short of gender parity – The Globe and Mail

Prison system failed to ensure security tests aren’t racially biased against Indigenous inmates

Significant:

Canada’s prison service is using security tests that may discriminate against Indigenous offenders and keep them behind bars longer and in more restrictive environments, the Supreme Court of Canada has ruled.

In a 7-2 decision, the court found that Correctional Service of Canada failed to take steps to ensure that risk assessment tests used for deciding such things as penitentiary placement and parole eligibility are valid and accurate for Indigenous offenders.

The case involves Jeffrey Ewert, a Métis inmate who was convicted of the murder and attempted murder of two young women. His lawyer argued the risk assessment tests were unreliable for Indigenous offenders, and that CSC had been aware of concerns about the tests since 2000 but had failed to confirm their validity.

The decision says that if CSC wants to continue to use the “impugned tools,” it must conduct research into “whether and to what extent they are subject to cross-cultural variance when applied to Indigenous offenders.”

“Any further action the standard requires will depend on the outcome of that research,” reads the majority decision, written by Chief Justice Richard Wagner. “Depending on the extent of any cross-cultural variance that is discovered, the CSC may have to cease using the impugned tools in respect of Indigenous inmates, as it has in fact done with other actuarial tools in the past.”

While the ruling found CSC breached its legal obligation, it did not find that Ewart’s constitutional rights were violated. There was no evidence that the assessment had no rational connection to the government objective of public safety, the decision states.

CSC has not said whether it will stop using the test as a result of the ruling.

“The Correctional Service of Canada (CSC) is reviewing the decision and will determine next steps. It is important to note that culturally appropriate interventions and reintegration support for First Nations, Métis and Inuit offenders is a priority of CSC,” spokeswoman Stephanie Stevenson wrote in an email.

Record percentage of Indigenous inmates

The ruling noted the troubled history of Indigenous people in the criminal justice system, saying numerous government commissions and reports have recognized that the discrimination faced by Indigenous people, “whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system.”

Data from correctional investigator Ivan Zinger’s office show that Indigenous offenders are less likely than non-Indigenous inmates to get parole, and spend longer portions of their sentences behind bars.

It also showed that Indigenous offenders’ share of the total inmate population reached a record high of 27.4 per cent as of August 2017.

Justice Malcolm Rowe, writing in dissent, said that in his view, CSC only needed to keep complete and accurate records of the results of the assessment tools. He said Ewert should have asked the courts to review the specific decisions that CSC made about him using the results of the tools.

Ewert’s case was filed against CSC and the wardens of Kent Institution and Mission Institution, both located in British Columbia.

Addressing high number of Indigenous inmates

A spokesperson for Public Safety Minister Ralph Goodale said the government is taking steps to address the disproportionate number of Indigenous people in prison.

“We take the views of the Supreme Court very seriously and are examining the decision closely,” said Scott Bardsley in an email. “More broadly, the overrepresentation of Indigenous people in correctional institutions is an intolerable situation that we’re working very hard to address.”

The government invested $10 million last fall to help provide safe alternatives to incarceration and promote rehabilitation, part of $120 million set aside in last year’s budget to support the reintegration of Indigenous offenders and advance restorative justice.

The British Columbia Civil Liberties Association (BCCLA) and the Union of B.C. Indian Chiefs intervened in the Ewert case. They argued that a bad risk assessment rating can mean an Indigenous prisoner is less likely to get parole, access to programs, or early or temporary release, and is more likely to experience solitary confinement and a maximum security setting.

Today, the BCCLA said meaningful changes to address over-representation of Indigenous people in prisons are long overdue.

“We are hopeful that the court’s emphasis on substantive equality in correctional outcomes for Indigenous offenders will assist over time in reducing the numbers of Indigenous people incarcerated,” said lawyer Jay Aubrey in a statement.

Source: Prison system failed to ensure security tests aren’t racially biased against Indigenous inmates

After decades of tribes aggressively kicking members out, the disenrolled are kicking back.

Interesting account of Indigenous identity and membership from the US:

It was an early morning in May 2012 when Eddie Crandell got the call that his ex-wife’s parents were getting evicted from their home on the Robinson Rancheria, where they had lived for 25 years as members of the Pomo Indian tribe on the federal reservation in Northern California.

When he reached the scene, family members, who had not been prepared to move, were already scurrying through the house, packing their belongings into boxes and loading them into vehicles under the watchful eye of four tribal police officers.

Crandell’s 5-year-old son didn’t understand. “Why are you kicking out my grandparents,” he asked an officer, who didn’t respond. But Crandell knew his extended family was being targeted for disenrollment, the process by which Native Americans lose citizenship within the tribe. Just over the hill, six other families were being evicted in a large-scale action by the tribal council to remove all members not viewed as “real Indians.”

“It was very contentious,” Crandell said. “People worried that they would be targeted if they talked to [opponents of the tribal council]. Nobody wanted to approach anyone. Everyone was afraid.”

Thousands of Native Americans across the country have had their Indian citizenship terminated in disenrollment proceedings that have stripped them of their identity, acceptance in the tribe, and access to tribal resources like health care and educational grants. The once-rare practice has accelerated rapidly, experts said, but some ex-members and their advocates are pushing back, and there have been signs in recent years that the tide has turned against tribal disenrollment. Crandell, for example, has successfully restored membership to about 60 people, and disenrollees throughout Indian Country have also won a series of significant victories.

Since the earliest recorded instances of tribal disenrollment in the late 19thcentury, researchers believe nearly 80 tribes across 20 states have engaged in the practice that has affected up to 10,000 people, said David Wilkins, who co-wrote the book Dismembered: Native Disenrollment and the Battle for Human Rights. Although disenrollment is a relatively modern phenomenon among the 567 federally recognized tribes, its causes—greed and government corruption—are familiar.

The success of the gambling industry brought newfound prosperity to tribes as they looked for ways to alleviate poverty and improve living conditions on reservations. According to the most recent data from the National Indian Gaming Commission, gaming revenue increased more than 4 percent in 2016 to $31 billion, spurring economic development and supplementing federal funds with “per capita” payments to tribal members. It was the seventh-consecutive year of growth in gross gaming revenues for the tribal market as a whole. Critics say that wealth is exactly what caused disenrollment to reach epidemic levels. The logic is simple: Reducing the number of tribal members means more money for those who remain.

Such was the case for the Picayune Rancheria of Chukchansi Indians, whose membership of 1,800 people was cut in half after the opening of the Chukchansi Gold Resort & Casino in 2003, according to a This American Life program from 2013. In the segment, the remaining tribal members told reporter David Ferry that they saw increases in their payout checks after people were kicked out.

Disenrollment proceedings continued through 2016, when council Chairwoman Claudia Gonzales confirmed that she had sent about a dozen disenrollment letters to some of the tribe’s founding families. The dispute was never settled, but in October 2017, the tribe permitted open enrollment for the first time that many could remember. Many viewed the move as a hollow gesture from incumbent council members to drum up support just days before an election, and it was unclear whether previously disenrolled people could reapply.

Disenrollment is occurring even among tribes that do not have significant gaming wealth. Take, for example, California’s Pechanga Band of Luiseño Mission Indians, whose tribal council sought to consolidate power by targeting political opponents through disenrollment. “It was simply a political issue,” said Rick Cuevas, who was dismissed from the tribe, along with nearly 100 extended family members, after the council posthumously disenrolled his ancestor in 2006. “There were votes they couldn’t control. It’s not just about the money. It’s about power and control.”

Unlike Crandell, Cuevas’ relatives were allowed to remain on the reservation—in the house that his father built in 1957—albeit without access to tribal resources, such as health care, housing grants, and other benefits provided by the federal government, which were annulled in the disenrollment proceedings. “They’re basically living under an apartheid system,” he said.
“They can’t go to the park without a tribal member. They can’t drink out of the water fountains. They can’t go to the pool. That’s segregation.”

For many Native American communities, the ability to determine who is and who isn’t a member is the single greatest indicator of tribal sovereignty. Once a tribe has disenrolled its members, they are left with few legal options for reinstatement. They can appeal the disenrollment ruling, as Cuevas did, but tribal courts seldom overturn a council’s membership decision. And the U.S. government washed its hands of Indian affairs long ago.

“You are placed in a legal Wonderland,” said Wilkins, a professor of Native American policy and federal Indian law at the University of Minnesota. “You are in between worlds. Federal courts have basically closed the door to you, and tribal councils don’t want their own courts hearing disenrollment cases. You are left without any recourse whatsoever, which is the status of many of the disenrollees today.”

Traditionally, pre-Columbian tribes viewed belonging in terms of extended kinship groups, defined broadly to emphasize the need for interdependence among everyone in the tribe, Cherokee scholar Eva Marie Garroutte said. Kin groups administered justice, assembled leadership groups, organized local farming and other aspects of daily life. But as the United States expanded into Indian territory, it sought to impose more legalistic blood quantum requirements that measured the amount of “Indian blood” a person had to determine membership. For example, the Navajo require its members to possess a minimum of 25 percent Navajo blood. American politicians of the 19th century hoped that, over time, Native Americans would breed themselves out by intermarrying with non-natives, reducing their percentage of Indian blood and thereby releasing the government from its obligations to the tribes.

The United States essentially removed itself from the contentious issue in 1934 by passing the Indian Reorganization Act, which imposed constitutional governance on tribes with membership criteria that caused blood quantum laws to be widely accepted throughout Indian Country. Since then, the United States has largely deferred to tribal sovereignty in internal Indian disputes. In 1978, the Supreme Court’s Santa Clara Pueblo v. Martinez decision, written by Thurgood Marshall, said Native Americans do not have the right to use federal courts as a way to correct civil rights violations committed by individual tribes. Wilkins said the ruling disappointed many Native Americans, who wanted more protection against tribal governments, and sparked debate about the role of the federal government in Indian affairs.

“The U.S. has a moral trust obligation to ensure tribes persist and sustain,” said Gabe Galanda, a Native American attorney whose firm represents many disenrolled members. “That responsibility gets looked at in a narrow, legal way that sounds only monetary. For example, if the government allowed a tribal facility to fall into disrepair, now it’s liable for the financial repercussions. What’s been lost is the moral trust responsibility. The U.S. has a legal duty to prevent a tribe from annihilating itself.”

Without help from the judiciary, disenrolled members are turning to firms like Galanda’s for assistance. Still, there is little lawyers can do to change their clients’ fates.

“For those who have been disenrolled, I continue to advise them to act, however and whenever they can, as if they still belong,” Galanda said. “The rule of law is not what it once was in this country, but that cuts both ways. Why should any legal Indian who belongs cower to a corrupt tribal politician and adhere to the so-called legal result of a corrupt leader?”

Disenrollees may have lost in the courts, but they are winning the battle in the court of public opinion. In the 1980s, 1990s, and 2000s, tribal leaders did not take stances on disenrollment because they did not want to speak ill of other tribes. There was also a misconception among members that their silence would prevent disenrollment from happening within their own tribe. But all that is changing thanks to an active network of social media groups, from Galanda’s Stop Disenrollment to Emilio Reyes’ Stop Tribal Genocide, that has helped kindle discussion among tribes about this formerly taboo topic.

“It was kept in the dark for so long, it spread like a cancer,” Galanda said. “It’s been brought into the light through mainstream media attention, legal advocacy, social media, and interpersonal communication, all of which has caused the ebb of the practice we’re witnessing now. In the process, the taboo associated with disenrollment has waned in favor of shame upon tribes that engage in the practice.”

Throughout Indian Country, there are encouraging signs that disenrollment is waning. There have been no new mass disenrollments since 2016, two years after the numbers peaked, and some tribes have reversed course and reinstated disenrolled members, Galanda said. In August 2016, a tribal appeals court in Oregon overturned a decision by the Confederated Tribes of the Grand Ronde to disenroll 66 members after a three-year battle. In March 2017, Robinson Rancheria became the first tribe to voluntarily reinstate 60 members after Crandell helped lead a successful recall election of corrupt officials. Now, as council chairman, he is working to pass legislation that will prevent unjustified disenrollment in the future.

“We were able to do it with the support of the membership,” Crandell said. “It was a well-orchestrated plan that we did together. We were all on the same page, and it was a really impactful time.”

Also in March 2017, the Elem Indian Colony in California reversed a motionfiled by members living off the colony to disenroll all 132 people who lived on the reservation. In August, a federal judge ruled that the Cherokee Nation, based in Oklahoma, must reinstate 2,800 descendants of enslaved people owned by the tribe after the tribe stripped the descendants of their rights in a 2007 vote. (The descendants, who are well-connected with the Congressional Black Caucus, cited a specific treaty obligation, spurring the federal government—which has the power to intervene depending upon the tribe and situation—to step in.)

But the battle isn’t over for reinstated members. Although some tribes have had success with integrating the disenrolled in leadership positions, they still face discrimination within the tribe. At a Grand Ronde council meeting in February, a tribal elder said members who had been targeted for disenrollment should not be serving on the enrollment board, the tribal newspaper Smoke Signals reported. “We know they’re zero Grand Ronde, and now they’re on our enrollment committee,” elder Brenda Gray said. “To me, they’re still not tribal members. Courts made them, but they’re not.”

The lingering animosity is concerning for activists, but they remain cautiously optimistic about the future.

“I feel like we’ve turned a corner,” Wilkins said. “I’m very cautiously optimistic, but I’m not sure we’re out of the woods yet because the forces that led to disenrollment—increasing revenues, the blood quantum problems—they are still at play. We have to keep an eye on this. We can’t put the genie back in the bottle.”

Source: After decades of tribes aggressively kicking members out, the disenrolled are kicking back.

Indigenous rights are not conditional on public opinion: Pam Palmater

As is the case with all rights:

In 2017, Abacus Data, in partnership with Equal Voice, released the findings of their nationwide survey about Canadians’ views on women in politics. The majority of those surveyed—58 per cent—believed that there are just the right number or too many women in politics—this, despite the fact that women hold only 25 per cent of the seats in the House of Commons, and in provinces like New Brunswick, women make up as little as 16 per cent of the seats.

It’s a galling dissonance, but the premise of the question also feels frankly immaterial to how change is made. How relevant is it that Canadians think this dismal representation of women in government is either enough or too much female representation, when laws and policies in Canada specifically advocate for gender equality and protect against gender discrimination? How much should public opinion matter about whether Canadians agree with gender equality, when it is in fact the law? After all, if women had to wait for all men in Canada to agree with or like women’s equality, we might still be waiting. Women had to agitate for change. It’s never convenient to the comfortable, and discomfort polls poorly—but it’s the only way it happens.

The same thing might also be said about public opinion on Indigenous rights in Canada. The most recent Angus Reid public opinion survey, which polled 2,500 Canadians about their views on Indigenous peoples generally, and Indigenous public policy specifically, exposes a deep divide in opinion. A slight majority (53 per cent) feels that Canada spends too much time apologizing for residential schools and another 53 per cent think Indigenous peoples should integrate into Canadian society and have no special status—even if that means losing Indigenous cultures and traditions. Yet these are the very same attitudes held by former prime ministers and administrators of Indian Affairs that led to assimilatory policies like residential schools.

Therein lies the stark contradiction: Canadians feel we apologize for residential schools too much, and yet exhibit the same racist attitudes for which the apology was made.

Former Prime Minister Stephen Harper made a formal apology in the House of Commons on behalf of all Canadians on June 11, 2008 for the harms done in residential schools. It said, in part: “Two primary objectives of the residential schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture.  These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, ‘to kill the Indian in the child.’  Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.”

In other words, the idea that Indigenous peoples should abandon their own cultures and assimilate into Canadian culture is an idea that “has no place in our country.” Yet, a decade after the apology, half of the Canadians polled still hold these racist views. This is not surprising when many political leaders and media commentators have espoused similar racist views or denied racism exists altogether. Even Angus Reid himself seems to have difficulty accepting the racist undertones of his poll’s findings; he says he does not consider the Canadians who hold these ideas to be “racist,” but instead “hardliners” who don’t think more money is the answer to growing poverty in First Nations. It’s a surprising conclusion given the over-abundance of research and data that shows just the opposite.

In addition to the crippling economic legacy left behind by the colonization of Indigenous lands and resources, broken treaties, and rigid federal control over reserves, Canada’s gross underfunding of First Nation social programs is in fact the major contributor to First Nation poverty today. One need only read any of the auditor general’s reports to show that Canada has been underfunding essential social services like education and housing for decades. Dr. Cindy Blackstock, the head of the First Nation Child and Family Caring Society, won her discrimination case against Canada at the Canadian Human Rights Tribunal, which found that Canada’s purposeful and chronic underfunding of child and family services in First Nations was racial discrimination and a direct cause of the over-representation of First Nations children in foster care. This underfunding across all social programs is so comprehensive and so severe, that even if the racially discriminatory funding stopped this year, it would take decades to close the socio-economic gap. This isn’t a matter of public opinion—it’s a fact.

While many Canadians may feel that they are reminded too often about what happened in residential schools, it seems that in fact, they are not reminded enough. The Truth and Reconciliation Commission’s final report concluded that Canada was guilty of genocide—not just cultural genocide, but physical and biological genocide as well. Canadians should never forget what their country did to Indigenous peoples. Scalping bounties, smallpox blankets, forced sterilizations, and starvation policies were all part of Canada’s genocidal policies towards Indigenous peoples that, in addition to residential schools, have a lasting legacy in First Nations.

Real reconciliation is also about truth and justice. The truth requires never forgetting the rapes, tortures and deaths of thousands of children in residential school, and justice requires putting an end to the racist attitudes that allow these human rights abuses—in the form of foster care—to continue today. The same is true about historic and contemporary violence against Indigenous women and girls.

Reconciliation also requires the end of the idea that the future existence of Indigenous peoples and their identities, languages and cultures are up for debate. We have a right to exist as Mi’kmaw, Mohawk and Cree. We have a right to govern ourselves. We have a right to our lands and resources. We have a right to enjoy our Aboriginal and treaty rights. Our ancestors paid dearly for these rights. All of these rights are protected in Indigenous, Canadian and international laws. These rights form part of Canada’s founding document—the Constitution Act, 1982. Canadians do not get celebrate their own constitutionally protected rights and freedoms without recognizing ours. Our rights are not conditional on public opinion.

It’s long past time that pollsters stop asking Canadians if they like Indigenous peoples or agree with our rights—and start asking them whether they feel like they’ve put Canada’s apology into action.

Source: Indigenous rights are not conditional on public opinion

On First Nations issues, there’s a giant gap between Trudeau’s rhetoric and what Canadians really think: exclusive poll

While the wording of the questions appears to prompt this kind of response, nevertheless of interest:

From the front steps of her home in Brantford, Ont., Linda Johns looks down the street toward the Mohawk Institute, one of Canada’s oldest residential schools, and says she wishes they’d simply “torn the damn thing down.” The building is currently under renovation to “save the evidence,” as the fundraising campaign for repairs puts it.

Linda has visited the grounds as a tourist with her family, years ago, and says it was awful what happened to Indigenous youth there over the decades, “but now that we’re adults, I don’t care to hear about it. What they’re trying to do is blame other people for the problems they have now.”

She says Indigenous Canadians should have unique status in this country, but equally feels that, through our government, we are “almost climbing over ourselves to apologize” for past transgressions. As for federal spending on First Nations issues, Johns accepts that Indigenous people in northern areas need the money, but she says: “Around here, I think they could get off their butts and work.”

Her husband of 38 years disagrees. For starters, he wants the Mohawk Institute restored: it will serve as a reminder to Canadians of what the residential school did to him when he went there. “The food was terrible. You never got enough to eat. When it came for roll call to make sure everyone was still there, it went by number, not by name,” Doug Johns recalls. “It was almost like being in a prison.”

The front steps of the institute—where Doug was forced to relocate at the age of 10, away from his family on the nearby Six Nations of the Grand River; where he saw classmates beaten for speaking their native tongue; which he first ran away from when he was 12, by way of country fields on a winter night to avoid police detection; where an abusive schoolmaster with a riding crop was more than willing to issue Doug lashings to his rear after every failed escape—are about 100 m from his front porch.

Linda says she doesn’t understand why her husband would want a building where he was so poorly treated to still stand. “She’s not Native,” Doug says of his wife. “We don’t see eye to eye on all these issues.”

Neither does the rest of the country. The most comprehensive public opinion survey on Indigenous issues since the Trudeau Liberals took office has uncovered deep fractures over key questions facing First Nations and the rest of Canada, suggesting the current government’s promises of reconciliation may be as hard to deliver as ever. The findings of the nationwide survey from the non-profit Angus Reid Institute point to divergent yet entrenched attitudes on both symbolic and existential questions.

Fully 53 per cent surveyed said the country spends too much time apologizing for residential schools and it’s time to move on (compared to 47 per cent who believe harm done by the schools continues and cannot be ignored); more than half of respondents said Indigenous people should have no special status that other Canadians don’t; the same proportion said Indigenous peoples would be better off if they integrated more into broader Canadian society, even if the cost is losing more of their traditions and culture. Such ideas are, to put it mildly, anathema to the future many First Nations people—and the politicians who advocate on their behalf—envisage.

The wide-ranging survey, provided exclusively to Maclean’s, polled nearly 2,500 Canadians, and deliberately oversampled in regions with high Indigenous populations, only to uncover solitudes that the Johns household neatly encapsulates: sympathetic yet resolved; divided yet finding ways to co-exist. “This country is split down the middle on many of these questions,” says pollster Angus Reid in an interview. “It tells me the perspective of Justin Trudeau and [Minister of Crown-Indigenous Relations and Northern Affairs] Carolyn Bennett on some of these issues is certainly not shared by a lot of Canadians.”

Sheryl Lightfoot isn’t surprised to see a divided public opinion at this point regarding Indigenous issues. “Given the heightened attention to them since 2015, with the shift in government to the Liberals, I could see it enhancing that polarization because people will view it—depending on their perspectives—as either too much or too little,” says Lightfoot, who holds a Canada Research Chair in global Indigenous rights and politics at the University of British Columbia. “What we’ve got is a country that’s woefully uneducated on Indigenous history and issues. Or they are living it every day and are close to it. There isn’t a lot in the middle.”

A lack of contact, familiarity and exposure defines Canadian relations with First Nations issues in many ways—most importantly by relegating them to the bottom of the political agenda. For decades, politicians have shied away from debating Indigenous matters regarding public policy, says Ken Coates, senior fellow in Aboriginal and northern Canadian issues at the Macdonald-Laurier Institute. “There’s been an implicit assumption in the Canadian political process for decades that if you had parties say we should do more [for Indigenous people], you’re not going to win many votes, so stay away from it.”

As such, the Trudeau government deserves credit for “moving ahead with something they feel is important,” Coates adds. But the fact that fully a third of Canadians polled feel Trudeau gives too much attention to Indigenous issues, compared to 17 per cent who feel he gives too little, highlights a gap in how the country prioritizes this relationship. (The rest are divided, saying either Trudeau gives them the right amount of attention, or they’re unsure.) “So long as you have a public that doesn’t believe Indigenous issues are a big deal, or doesn’t understand their context, then those issues are going to persist,” says Tunchai Redvers, co-founder of We Matter, a national support campaign for Indigenous youth. “Look at the Colten Boushie case.”When a Saskatchewan jury acquitted farmer Gerald Stanley for the 2016 shooting death of Red Pheasant First Nation resident Colten Boushie, the Prime Minister said, “There are systemic issues in our criminal justice system that we must address.” Trudeau’s words of support for the family of the deceased 22-year-old drew support from advocates, but scorn from others who felt he’d undermined the court’s authority and independence. In what has become a common avenue to express public support, a GoFundMe page set up for the Stanley family “to recoup some of their lost time, property and vehicles that were damaged, harvest income, and sanity” garnered more than $220,000 in donations in three months—surpassing the $200,000 in GoFundMe donations for Boushie’s family over a nine-month span.

The Boushie case points to one of the survey’s most puzzling findings: that non-Indigenous Canadians with regular exposure to reserves were more likely to take a rigid stance on Indigenous issues.

The institute found that Canadians are divided into four groups of roughly the same size on most questions: those who advocate for First Nations self-determination; those sympathetic to Indigenous people; those wary of Indigenous people asserting their priorities; and full-on hardliners who oppose special status and accommodation. “Western Canadians tend to be more hardliners,” Reid says. “Quebec has very liberal attitudes, but it’s also where we have the least likelihood of contact.”

Hardliners—a group that encompasses nearly a quarter of the sample—unanimously said Canada spends too much time apologizing for residential schools, and almost unanimously felt Indigenous Canadians should have no special status, while 85 per cent of them said Indigenous people would be better off if they integrated into broader Canadian society. “The hardliners are not racist, but they don’t buy the idea of separate status,” Reid says. “I think what the hardliners are saying is they don’t think the answer to the issues confronting Indigenous communities is going to come through more spending, but it’s going to come through improved leadership in Indigenous communities and through a heavier emphasis on integration.”

If there’s one thing respondents to the Angus Reid Institute survey agreed on, it’s that tax dollars meant to help First Nations people are generally failing to do so. Two out of three said government funds going toward Indigenous issues are generally ineffective—and a new report from the auditor general’s office will hardly quell that pessimism. Among other things, it found that data on high school graduation rates on reserves left out students who dropped out prior to Grade 12, meaning the department overstated the graduation rate by 22 percentage points.

Similarly, Employment and Social Development Canada—despite 30 years of supporting Indigenous employment—didn’t collect data or measure whether its key skills development fund resulted in Indigenous people getting steady meaningful work. Back at Six Nations, Doug Johns credits Trudeau with good intentions, but asks, “How many terms will he get to serve before he gets any of that accomplished? It would take two or three terms to see anything really done.”

Canadians might not have that kind of patience. Indeed, the survey results raise the question of whether a politician might succeed by taking a hardline stance on Indigenous issues. No mainstream leader is running on an explicitly integrationist platform, or argues the government should stop apologizing for residential schools. But Sen. Lynn Beyak published on her website letters of support from Canadians on these exact issues after she commented about the positive outcomes of residential schools. Her actions prompted Conservative Leader Andrew Scheer to call some of the letters “simply racist” and booted Beyak from caucus for refusing to remove them. But other letters voiced opinions that, while taboo, have a discernible market.

As it stands, only a third of Canadians believe Indigenous communities should move toward greater independence and control over their own affairs, according to the survey, compared to two-thirds who feel First Nations communities should be governed by the same rules and systems as all Canadians. Kim Baird, former chief of the Tsawwassen First Nation in B.C., wonders whether Canada has attained a critical mass of people who grasp basic truths about residential schools and the foundation of the country. “There needs to be more knowledge about the systemic reasons why reserves don’t look like other places, why they’re trapped in poverty, why there’s a lack of resources and infrastructure. It’s such a complex story to unpack. I think the residential school story is a good starting point.”

The Mohawk Institute, alas, will remain closed for a while, though visitors can take a virtual tour of the grounds. Before the work began, Doug Johns took his own kids through the school’s deserted corridors. He showed them where he ate, where he slept and the visitors’ room, where he got the whip for his attempted escapes.

He recalls new students getting beaten for not speaking English; because of the language barrier, they couldn’t understand why they were being punished. He remembers it being a “terrible place,” with fights often erupting on the grounds. “The whole idea of residential schools was to kill the Indian and save the child,” he says. “A lot of non-Native people aren’t aware of that, so I want them to restore the institute so people can see it.”

Source: On First Nations issues, there’s a giant gap between Trudeau’s rhetoric and what Canadians really think: exclusive poll