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.

UNDRIP - United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) outlines the fundamental rights that Indigenous peoples hold. While the Working Group on Indigenous Populations was mandated to set minimum standards to protect Indigenous peoples in 1982, UNDRIP was only adopted on September 13, 2007 after years of development and revision.

Importantly, the final vote at the UN on UNDRIP included opposition from the four settler states (Canada, USA, New Zealand, and Australia). Special Chiefs Assembly Resolution 09/38 called for Canada to ratify UNDRIP. - Canada  did reverse their position in 2010, officially endorsing UNDRIP, but in a limited capacity; it was defined as an "aspirational document" by the Governor General in the Speech from the Throne. This  removed any prosecutorial or judicial powers within UNDRIP. 

Still, UNDRIP is a recognized piece of international law that has been used as a tool in negotiations with the Canadian government. While the federal commitment is lukewarm, there have been initiatives that have pushed the government to honour the commitments required under UNDRIP. This is why so many of the Chiefs in Assembly resolutions include explicit references to UNDRIP.

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.

Bill 6, Ministry of Community and Social Services Amendment Act (Social Assistance Research Commission), 2016

Status: Order referred to the Standing Committee on Social Policy

Purpose: 

Bill 6 was introduced to make amendments to the Ministry of Community and Social Services Act. It proposes that definitions contained in the Act are modified to reflect the wording in the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997. The Bill also calls for the creation of a Social Assistance Research Commission to review existing social service programs and make changes to meet the diverse needs of recipients.

The Commission will be responsible for defining all aspects of the Ontario Works (OW) and Ontario Disability Support Program (ODSP), from defining the cost of living in different regions of Ontario to recommending the rates of social assistance for each area. Due to this, it is imperative that First Nations perspectives are adequately represented on the Commission, as statistically First Nations individuals have higher rates of poverty than other demographics.

Bill 114: Anti-Racism Act, 2017

Bill 114 is in many respects a legislative formalization that enshrines work that began in February 2016. As opposed to introducing something new, it took existing anti-racism measures and formalized them so that future governments cannot as easily dismantle them. Therefore, in assessing the contents of Bill 114, the Anti-Racism Act, we need to look at recent developments on anti-racism in Ontario, most specifically the Ontario Anti-Racism Directorate.

When an institution or set of institutions working together creates or maintains racial inequity, it is called systemic racism. The cause is often hidden institutional biases in policies, practices and processes that privilege or disadvantage people based on race. 

This year the Ontario government has approved $4 million to develop an Indigenous-informed anti-racism strategy and other anti-racism programs. There was a request for bids for the Youth-Leading-Youth anti-racism strategy, which opened in May 2017. Once this program is developed, there will be a request for bids to deliver the program. The anticipated timeline for this bidding process is fall 2017.

The Anti-Racism Directorate was established in part as a response to the Truth and Reconciliation Commission’s Calls to Action. Specifically, Call to Action 57 reads,

We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

Ontario has indicated that its strategy to tackle systemic racism is rooted in partnerships with racialized groups, and Chiefs of Ontario has been asked to participate in the development of Ontario’s anti-racism efforts, including the development of Bill 114.

Bill 57 - Katelynn's Principle Act (Decisions Affecting Children), 2016

Status: Ordered referred to Standing Committee 

Summary: This Act was created to serve as a guiding principle for decisions affecting children. Triggered by a tragic event where a seven-year-old, Katelynn Sampson, died after being brutally abused over many months by her legal guardians, the Bill set out guiding principles to direct decisions concerning children.

The jury in the coroner's inquest into the death of Katelynn Sampson put forth  173 recommendations that would mitigate risks to children and prevent similar situations in the future. The first recommendation, referred to as Katelynn’s Principle, places children at the centre of decisions affecting them. The jury requested that all parties to the Coroner’s Inquest ensure that Katelynn’s Principle apply to all services, policies, legislation and decision-making affecting children.

Bill PR38 - Corporation of the Municipality of Huron Shores and the Thessalon First Nation Act (Tax Relief), 2016

Status: The bill was recommended to not be reported as of April 13, 2016.

Summary: The Corporation of the Municipality of Huron Shores, a municipality in the district of Algoma, has applied for special legislation to authorize the municipality to exempt certain land from Thessalon First Nation from taxation for municipal and school purposes from 2001 to 2014.

Essentially, the municipality has not received tax dollars from the land, but they have had to pay into services like the school system, garbage collection, and other municipal services. This has caused what the municipality calls "significant financial hardship."

The land in question falls within the Thessalon First Nation whom asserts a claim as unsurrendered Indian land. The municipality has argued that this claim has effectively reduced the commercial value of the land for development to zero. The municipality went on to argue that by exempting this land for tax purposes, the government would eliminate the "financial hardship" the municipality faces, avoid constitutional litigation, and would preserve the relationship between the municipality and Thessalon First Nation.

The legislative assembly agreed with this argument and the motion received royal assent on April 13, 2016.

Impact: While this piece of legislation centres on Thessalon First Nation's claimed land, the impact of the tax relief it contains holds little impact for the First Nation itself. Instead, the impacted party is the municipality which no longer is financially responsible for the land in terms of paying into services. 

The legislation is very clear that the only land that can potentially be exempted is that which is either 1) occupied and used solely by the Thessalon First Nation; or 2) owned by the Thessalon First Nation or held in trust solely for the benefit of the Thessalon First Nation. This does not change the fiscal, constitutional, or legal relationship between the two parties. 

Full text of the reading can be found here.

Bill 172 - Climate Change Mitigation and Low-carbon Economy Act, 2016

Status: The bill received Royal Assent as of May 18, 2016.

Background: In November 2015, Ontario released a Climate Change Strategy which set out the long-term vision for meeting greenhouse gas pollution reduction targets. That strategy set out mechanisms for controlling pollution, namely carbon pricing (cap and trade), investments in technology, and government commitments. The first item of the government's action plan as included in this Strategy was the introduction of climate change legislation to set out a framework for action. In Bill 172, Ontario made good on that commitment.

Purpose of bill: The province on Ontario recognizes the critical environmental and economic challenge of climate change that is facing the global community and thus, responds with the creation of this Act to create a regulatory scheme:

• To reduce greenhouse gas in order to respond to climate change, to protect the environment and to assist Ontarians to transition to a low-carbon economy; and
• To enable Ontario to collaborate and coordinate its actions with similar actions in other jurisdictions in order to ensure the efficacy of its regulatory scheme in the context of a broader international effort to respond to climate change. 

Impact on Indigenous Communities: First Nation and Métis communities have a special relationship with the environment and are deeply connected spiritually and culturally to the land, water, air and animals. They may offer their traditional ecological knowledge as the Government of Ontario develops specific actions. The bill ensures protection of existing aboriginal and treaty rights as recognized in Section 35, Constitution Act, 1982.

Bill 186 - Ontario Retirement Pension Plan Act, 2016

Status: The bill received Royal Assent as of June 09, 2016.

Summary: Bill 186 serves the purpose to provide a lifetime pension for Ontarians, fulfilling the provincial government's commitment to strengthen retirement security for those without an adequate pension plan. By 2020, every eligible worker in Ontario (aged 18 to 70 years) would be part of the provincial or a private retirement pension plan.

Providing a pension does not fall under the fiduciary obligations for First Nations in Canada, but the plan does contain a provision specific to First Nations, offering access to the legislation on an opt-in basis. Unless both employer and employee choose to participate in the Ontario Retirement Pension Plan (ORPP), First Nations employees are excluded from participating in the ORPP.

The opt-in provision for the ORPP protects First Nation jurisdiction and sovereignty, while also making available an important service for First Nation citizens and communities.

Full text of the reading can be found here.

Full text of the legislation on Ontario Newsroom can be found here.

Related Policy & Programs: Strengthening Retirement Security for Ontarians, ORPP

Bill 89 - Supporting Children, Youth and Families Act, 2017

Status: Royal Assent Received as of June 1, 2017

Summary: The Ontario Indigenous Children and Youth Strategy (OICYS) called for legislative change that would more effectively support the strategy's key pillars.[1] Part of the implementation of this strategy is the Supporting Children, Youth and Families Act, which overhauled the Ontario Ministry of Children and Youth Services, now the Ministry of Children, Youth and Family Services.

Impact: The paramount purpose of the Act, both old and new, is “to promote the best interests, protection and well-being of children.” The new Act expands on this purpose to include several clauses, including taking into account a child’s or young person’s background (factors such as race, creed, colour, ancestry), “cultural and linguistic needs,” includes relatives in decision-making, and that Indigenous communities are entitled to provide their own family services in a way that recognizes their culture, heritage, traditions, connection to community, and the concept of the extended family. These principles have far reaching consequences.

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 73 - Representation Amendment Act (Wahnapitae First Nation), 2016

Status: The First Reading Carried as of November 23, 2016.

Summary: Wahnapitae First Nation is currently in the provincial riding of Timiskaming-Cochrane, and Bill 73 would alter the districts so it would sit in the Nickel Belt riding, at the initiative of Wahnapitae First Nation. The central issue is of access to representation.

The problem is geographic. The Nickel Belt riding office is a half-hour drive from Wahnapitae First Nation, while the Timiskaming-Cochrane office is three hours away. Since both MPPs are currently Liberal, Wahnapitae First Nation citizens have been informally represented by the Nickel Belt MPP, but this informal solution is not sustainable and could become problematic should electoral distribution change in the future. The legislation solves this potential problem preemptively.

Likewise, Nickel Belt MPP France Gélinas proposed amendment to Bill 45 - The Election Statute Law Amendment Act, to have the riding boundaries of Nickel Belt to include Wahnapitae First Nation

Full text of the reading can be found here.

Full text of the topic in CBC News article can be found here.

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