Grassy Narrows and Islington Indian Bands Mercury Pollution Claims Settlement Act

Background

The Anishinaabe community of Asupeeschoseewagong First Nation (Grassy Narrows) has a registered population of approximately 1,511 members, 951 who live on-reserve. Located along the Wabigoon-English River, this Ojibway First Nation falls under Treaty 3 territory. When Treaty 3 was signed in 1873, it included provisions for community members to hunt, fish and trap on land that now fell under Crown control. Land is an integral component of the Ojibway culture and the treaty allowed for the cycle of seasonal activities and traditional practices to continue on the land, regardless of ownership.

Between 1962 and 1970 a chemical plant operated by Reed Paper Ltd (as part of its pulp and paper operations at Dryden) located approximately 100 km upstream from the reserve, began leaking mercury (a toxic chemical) into the Wabigoon-English River. By 1970 approximately 10 tonnes of mercury had contaminated the river.

Although the plant had stopped using mercury in its processes by 1975, the Wabigoon-English river remained one of the most heavily mercury contaminated waterways in the world. Fish (Walleye, Northern Pike and Lake Whitefish) continued to have extremely elevated mercury levels, even with the passage of time indicating methylmercury was still leeching into the river. Scientific studies have shown that over time mercury concentrations in water species will significantly decline, however in the Wabigoon-English river rates of decline were slowing down and leveling off.

Ontario's Approach to Federal Cannabis Legalization

Background
On April 13th, 2017, the federal government introduced Bill C-45, or the Cannabis Act, which is new legislation that will establish the legislative framework for cannabis, identifying permitted and prohibited activities. Generally speaking, the federal framework is less extensive than that of alcohol and more extensive than tobacco while maintaining its criminal law effectiveness (see figure 1). The Government of Canada's goal is to keep cannabis out of the hands of Canadian youth, and to prevent organized crime from continuing to profit from the illegal cannabis market. Canadians continue to use cannabis at some of the highest rates in the world. In 2015, 21% of youth and 30% of young adults reported using cannabis within the last year [1]. A baseline study still needs to be established in order to better capture how prevalent cannabis use is among youth and at-risk people in First Nation communities. The concern of abiding to OCAP principles during such data collection have been raised.

Bill S-212: Language Revitalization and Preservation

The preservation of Indigenous languages is fundamental to protecting Indigenous culture. As far back in 1986 COO resolved to “reverse the degradation” of Indigenous languages because “the preservation of aboriginal languages is synonymous with the preservation of First Nations’ culture and the security of First Nations governments.” (Resolution 86/23) This commitment was once again reiterated in the 2017 AOCC with resolution 40/17 (First Nations’ Ownership and Control of First Nation Languages).

More recently as a result of advocacy done by COO, the PTOs, and others, the federal and provincial governments have initiated First Nations language preservation strategies.

Bill S-212 and Language Policies

In December of 2016 the Prime Minister announced that the Government of Canada will jointly develop legislation (Bill S-212) for the revitalization and recovery of Indigenous languages. This Bill is currently at second reading in the Senate. The goal of the act is to advance the Indigenous languages of Canada, and recognize Indigenous Peoples right to use, preserve, revitalize and promote their languages. The department of Canadian Heritage confirmed that the federal government intends to table the draft legislation in the spring of 2018.

There is also funding available for Indigenous language revitalization at the Federal level through the Aboriginal Language Initiative. The purpose of this program is to preserve and revitalize Indigenous languages through community-based projects and activities.

National Indigenous Peoples Day

National Indigenous Peoples Day is a day for all Canadians to celebrate and acknowledge the distinct heritage, language, cultural practices, spiritual beliefs and valuable contributions of First Nations, Métis and Inuit peoples.

Created in 1996 through the Proclamation Declaring June 21 of Each Year as Aboriginal Day, the day came about after consultations and statements of support from;

• The Sacred Assembly, a national conference of Indigenous and non-Indigenous people chaired by Elijah Harper, called for a national holiday to celebrate the contributions of Indigenous People
• The Royal Commission on Aboriginal Peoples recommended the designation of a National First Peoples Day
• The National Indian Brotherhood (now the Assembly of First Nations) called for the creation of National Aboriginal Solidarity Day

June 21, the summer solstice, was designated as the office date. The reasoning behind this was that many Indigenous Nations traditionally celebrated their culture and heritage on or around the longest day of the year. In 2017, Prime Minister Justin Trudeau renamed the day National Indigenous Peoples Day.

There have been arguments made that National Indigenous Peoples Day should be a statutory holiday, as taking this step would send a message of national respect and action. To date only the Northwest Territories have made this a national and regional holiday. This day is important as a tool to educate non-Indigenous Canadians about Indigenous Peoples' cultures and histories.

Ontario Regional Chief Isadore Day recently made a statement supporting National Indigenous Peoples Day, and views it as an opportunity to educate Canadians on First Nations culture.

Bill C-262 and Bill C-332: Federal Acts relating to UNDRIP

Status: There are currently two Bills in the House of Commons relating to the United Nations Declaration on the Rights of Indigenous People (UNDRIP): Bill C-262 and Bill C-332. Bill C-262, The United Nations Declaration on the Rights of Indigenous Peoples Act proposes to ensure that the laws of Canada are in harmony with UNDRIP. Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Reporting Act, required the Minister of Indian Affairs and Northern Development to table an annual report that outlined the Parliament of Canada’s compliance with UNDRIP.

Bill S-215: An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women)

Status: Passed Third Reading at the Senate on December 8, 2016

Summary: This bill, sponsored by Sen. Lillian Eva Dyck of Saskatchewan, would make two amendments to the Criminal Code that require that courts consider when the victim of an assault or murder is an Indigenous woman that this is an aggravating circumstance for the purposes of sentencing. This would be achieved with additions to sections 239(1) and 273(01) of the Criminal Code. 

Bill C-55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act

Status: Second reading (House), as of June 15, 2017

Summary:  Bill C-55, at its heart, is a new tool which would allow easier conservation of marine ecosystems in Canada. It currently takes up to seven years to designate a Marine Protected Area (MPA), which protects aquatic ecosystems from potentially harmful development or practices. It would achieve this through amendments to the Oceans Act and the Petroleum Resources Act. The majority of MPAs are in the ocean, but this could impact First Nations with MPAs especially in the Great Lakes.

Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration)

Status: In committee (House), as of June 13, 2017

Summary: On August 3, 2015, the Supreme Court of Quebec issued is ruling in Descheneaux c. Canada (procureur général), which ruled that the Indian Act violated the Canadian Charter of Rights and Freedoms based on sex. The fundamental issue is of passing down status. Stéphanie Descheneaux, along with Susan Yantha and Tammy Yantha of Abénakis of Odanak First Nation in Quebec, challenged the registration provisions in section 6 of the Indian Act. They argued that as women section 6 of the Indian Act discriminated against them because of the rules on passing down status.

Gendered Discrimination in the Indian Act

Two fundamental problems were demonstrated in the Descheneaux case, both of which meant that women could not pass down their status in the same way that men can. Bill C-31 (1985) had already addressed gender discrimination in the Indian Act when it 1) restored status to women who lost their status through marriage, 2) removed a rule where a person lost status at age 21 if their mother and paternal grandmother both received status through marriage, 3) maintained status for those who gained status through marriage, and 4) entitled individuals with one parent with section 6(1) status to register under section 6(2). What this amendment did not achieve, though, was that it did not retroactively address problems for women who either married non-Status men or had children with non-Status men out of wedlock. This created inequality based on gender, which has been since called the “cousins issue” and “siblings issue.”

For Stéphanie Descheneaux, the problem has been called the “cousins issue.” If a Status Indian Grandfather married a non-Indian before 1985, the woman would receive status. His son would then also marry a non-Indian woman, and she too would receive status. Their children (the original person’s grandchild) would then also have section 6(1) status, and their children would then also receive status either under 6(1) or 6(2).

Conversely, in the same situation but under the maternal line (beginning with a status Indian grandmother), the woman’s great grandchild would not receive status. The woman would not pass her status to her husband, and therefore the grandchild of the original woman would have status under section 6(2) and could not pass down her status. If a Status Indian brother and sister both had children, as outlined by the chart below, hypothetically there could be a pair of first cousins where one holds status and the other does not, even though their lineage is identical aside from the gender of their grandparents. The chart below illustrates the differential treatment these two ancestral lines create. 

The situation for Susan and Tammy Yantha also is illustrates the differential treatment under the Indian Act, in this case concerning children born to parents out of wedlock. After 1985, a Status Indian man could pass down section 6(1)(a) to a child born out of wedlock, where a woman could only pass down section 6(2) status, meaning that the woman’s grandchild would not have status. Within two generations, within a family it could occur that a brother and sister with the same parents, the son could have Indian Status under section 6(1)(a) while the daughter had none. Again, the chart below explains this.

Amendments to the Indian Act under Bill S-3 and Impact on First Nation communities

The bill includes nine clauses which clarifies who can register under the Indian Act. Specifically, the following individuals are eligible as of Bill S-3 coming into force:

·       Individuals whose parent as a minor child lost status as a result of his or her mothers subsequent marriage to a non-Indian

·       The cousins issue was addressed by making individuals whose parents became eligible to be registered under section 6(1) in 2010 amendments (new section 6(1)(c.2)

·       The siblings issue was addressed by allowing individuals born female between September 4, 1951 and April 16, 1985 out of wedlock (fix siblings issue)

·       Finally, the children of parents newly entitled under these new sections are now eligible.

Bill S-3 had an immediate impact on First Nation communities because the new provisions it contained made between 28,000 and 35,000 individuals eligible for status. This would then have impact on funding, because funds for federal programs are allocated by on-reserve residency and band membership lists. It follows that a larger membership list equals increased funding. The problem, though, is that S-3 is not attached to more funds. While remedying the gender discrimination that existed in the Indian Act is a good thing, it needs to be tied to increased funding to maintain the same level of services for First Nations who rely on federal programs.

Since 1985, Band Membership and Indian Status have been severed, meaning that while First Nations individuals are now eligible to regain their status, this does not necessarily mean they qualify for Band Membership. Under section 10 of the Indian Act, First Nations can create their own membership codes, with full or conditional membership. Since a person can have Indian Status but not be included on a Band Membership list, it is possible for First Nations who control their membership to create restrictive membership codes for a number of reasons, including access to land, housing, or funding.

Full text of the bill can be found here

Full text of the Indian Act (R.S.C., 1982, c. I-5) can be found here