Former Supreme Court of Canada justice Frank Iacobucci writes a stinging report on “racism” in the justice system toward aboriginals.
BRENT LINTON / THE CANADIAN PRESS
Frank Iacobucci, former Supreme Court justice, speaks Tuesday in Thunder Bay, Ont., on his report on First Nations Representation on Ontario Juries. He said, “I am of the view once Canadians see the truth of what is going on, they’ll be convinced we need to do something about it.”(Feb. 26, 2013)
Former Supreme Court justice Frank Iacobucci says he is not an alarmist by nature, but the lack of First Nations civic rights in the justice system has disturbed him to his core.
After 50 years of practising law, Iacobucci says his work surrounding the residential school settlement and probing a lack of aboriginal representation on juries are two issues that have perhaps meant the most to him as a Canadian.
In an interview with the Star before the release of his year-long independent review concerning First Nations Representation on Ontario Juries, Iacobucci said, “I am of the view once Canadians see the truth of what is going on, they’ll be convinced we need to do something about it.
Iacobucci did not mince words in the 158-page report entitled First Nations Representation on Ontario Juries. He admonished the justice system for engaging in “systemic racism.”
“I have called it a crisis, a serious crisis. And I am not an alarmist. We are talking about the lives and liberties of people. I don’t know if you can get more of an important issue subject than that,” Iacobucci said from the 33rd floor of Torys law firm in downtown Toronto.
The Companion of the Order of Canada was asked to lead a review in 2011 by the provincial government to examine why native people are not serving on court and inquest juries.
It was the inquest into Reggie Bushie’s death, a 15-year-old from Poplar Hill First Nation, that captured the attention of the province after his family and Nishnawbe Aski Nation asked to stop proceedings so aboriginal people could be part of the jury pool.
Since 2000, seven native youth died while in Thunder Bay attending high school. Six drowned in the waters leading into Lake Superior. The lone girl, Robyn Harper, asphyxiated.
Iacobucci made a point of visiting each of the isolated reserves that were the homes of the seven. Their individual stories, of leaving home alone and living in boarding houses just to seek an education, haunted him as he wrote the report.
“If we don’t take hold of this seriously, we are going to, I think be perpetrators, unwittingly, of personal tragedies here,” said Iacobucci, former chair of the Torstar board.
Examining Canada’s troubled history with First Nations people, the cloud of residential schools and hopelessness on some reserves was not part of his mandate but Iacobucci said he quickly found he could not divorce those issues from why so few natives serve on juries.
“We can’t continue to treat First Nations as objects. We have to be partners. I don’t care if it is in the justice system or economic development. It is going to take time.”
The Right to Food in Canada: A conversation with the U.N. Special Rapporteur Monday March 4th 11:30 a.m. – 2:00 p.m. Kanata Village
As many are now aware, the UN Special Rapporteur on the Right to Food came to Canada in May 2012. The Government of Canada’s response to his preliminary report last year is disappointing at best. Section 8 of the report is devoted to the impact of the food crisis in Canada within indigenous communities. On Monday, March 4th, join Food Secure Canada, the Mohawk Workers and others who believe that Mr. De Schutter’s report echoes the voices and analysis of our communities regarding this crisis. Let’s talk about what can be done from an Onkwehon:we (indigenous) perspective and put our minds together as one.
Health, indigenous rights, and food systems (both land and water-based) issues will be discussed in detail. In particular, Mr. De Schutter has called for the development of a national right to food strategy, which aligns well with long held beliefs held by many of our ancestors and enshrined in culture / traditions too many have forgotten to live by. On Monday our community elders will remind us how to remember who we are.
Mr. De Schutter will be presenting his report to the UN Council on Human Rights in Geneva on March 4, just before he joins us (and others across Canada) live for an interactive web seminar. UN discussions are important, but often far away and inaccessible to the people who need to hear them most. We are thankful to Food Secure Canada and those who are providing this platform for Mr. De Schutter to share his conclusions and for Canadians and Onkwehon:we alike whose rights to food are not being respected to dialogue directly with the UN. This is a chance to show that we are not alone in thinking that Canada’s food system is unjust, unhealthy and unsustainable. This is an opportunity to underline that Canada has a legal obligation to respect the right to food and to showcase some of the innovative solutions that are being deployed right across the country. Following the seminar, round-table discussions focused on community solutions will take place.
E-mail for more information: firstname.lastname@example.org
Canada is a signatory to the United Nations Covenant on Economic, Social and Cultural Rights and therefore has a legal obligation to respect the right to food. “Yet we have millions of people in Canada for whom this basic right is not respected, and we have an unhealthy and unsustainable food system,” said Diana Bronson, Executive Director of Food Secure Canada, who organized the nation-wide interaction. “We need a national food policy, where all actors are at the table, including the hundreds of civil society organizations across this country who are already implementing innovative solutions to hunger, health and sustainable agriculture and fisheries at the community level.” Diana Bronson, Executive Director of Food Secure Canada: email@example.com or (514) 629-9236
Journalists wishing to interview Olivier De Schutter are encouraged to contact his office directly: Yoonie Kim: Yoonie Kim YKim@ohchr.org
Human Rights Council
Twenty-second session – Agenda item 3
Promotion and protection of all human rights, civil, political,
economic, social and cultural rights, including the right to development
Addendum – Mission to Canada
VIII. Indigenous peoples
53. In Canada, indigenous peoples (the term used in international law) are referred to as Aboriginal peoples, and include all original inhabitants of Canada as recognized by section 35 of the Constitution Act (1982) and comprise First Nations,49 Inuit and Métis. The 2006 Census numbers indicate that there are about 1.1 million Aboriginal people in Canada: 750,000 First Nations, of which over 600,000 are Registered Indians, about 50,000 Inuit across 53 communities, and over 350,000 Métis. In this context, the Special Rapporteur recalls that in human rights terms, indigenous existence and identity do not depend on State recognition or acknowledgment.
54. Like others, the Special Rapporteur welcomes the decision by Canada in November 201050 to support the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration affirms fundamental human rights in relation to the particular historical and contemporary circumstances of indigenous peoples.
55. A long history of political and economic marginalization has left many indigenous peoples living in poverty with considerably lower levels of access to adequate food relative to the general population. Though the percentage of low income among Aboriginals living off-reserve declined in recent years, 21.7 per cent of Aboriginals fall below the low income cut-off after tax as defined by Statistics Canada, compared to 11.1 per cent for the non Aboriginal population.51 Despite programmes such as the Canada Prenatal Nutrition Program (including a First Nations and Inuit component); Aboriginal Head Start (includes on-reserve and urban and northern component); the Aboriginal Diabetes Initiative; and Nutrition North Canada, discussed in greater detail below, research conducted by the University of Manitoba noted that in 2008-2009, nearly 60 per cent of First Nations children in northern Manitoba households were food insecure.52 The Inuit Health Survey reported that 70 per cent of adults living in Nunavut were food insecure. This is six times higher than the national average and represents the highest documented food insecurity rate for any aboriginal population in a developed country.53 Among off-reserve aboriginal households, approximately one in five households was food insecure, including 8.4 per cent severely food insecure.54 These rates are three times higher than among non-aboriginal households, where 7.7 per cent were food insecure, including 2.5 per cent with severe food insecurity.55 In March 2011, one in ten of the 851,014 who relied on food banks across Canada self-identified as an aboriginal person.56
B. Access to traditional/country foods
62. Indigenous peoples are also uniquely positioned with respect to food by virtue of their relationship with traditional lands and the natural resources therein, which is a central component of their identity. Accordingly, indigenous peoples are generally recognized as having broader rights to natural resources under international human rights law. They have the right to use natural resources as a means of supporting their cultural integrity through traditional economic activities, such as subsistence agriculture, hunting and fishing, as well as religious or spiritual activities.58
63. Historically, indigenous peoples have had their own food systems, relying on traditional knowledge of hunting, fishing, trapping and gathering. According to the Manitoba First Nations Regional Health Survey (2008), approximately 85 per cent of First Nations adults sometimes or often had someone who shared traditional food (also known as “country” food) with their household. In 2006, 65 per cent of Inuit residing in Northern Canada were reported to live in households where at least half of the meat and fish consumed was country foods. A study involving Inuit adults found that diets contained significantly more vitamins A, D, E and B6, riboflavin, iron zinc, potassium and selenium, among others, on days when country food was consumed. These findings highlight the important relationship between access to country foods and health.
64. Although communities can, and often do, pursue a diet based on traditional/country foods, obtaining this is not without cost. Issues with accessing traditional foods include the impacts of climate change on migratory patterns of animals and on the mobility of those hunting them; limited availability of food flora and fauna; environmental contamination of species; flooding and development of traditional hunting and trapping territories; lack of equipment and resourcing to purchase equipment or inputs necessary for hunting, fishing and harvesting; and lack of requisite skills and time.
65. Many Aboriginal communities expressed concerns regarding federal government policies that have disrupted and, in some cases, devastated the traditional practices of indigenous people, including through removing control over land and natural resources. Access to country foods represents more than increased nutrition and physical accessibility; it also has significant cultural importance.
C. Access to land
66. Aboriginal and treaty rights are protected by section 35 of the Constitution Act (1982). The expression of those rights is outlined in various treaties and other agreements so as to clarify rights and responsibilities. But concerns have been expressed that the Government has sought to extinguish existing titles through negotiations and terms of modern land claims and self-government agreements, as well as through a narrow and reductionist reading of historical treaties, agreements and other constructive arrangements. Ongoing land claims across the country have implications for the right to food and access to country foods among aboriginal Canadians. Yet, under international law, indigenous peoples have the right to possess and control their traditional lands and resources. The Declaration on the Rights of Indigenous Peoples affirms that indigenous peoples have the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired (art. 26, para. 1); the right to develop priorities and strategies for the development or use of their lands or territories and other resources (art. 31, para. 1); the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned lands, territories, water and coastal seas (art. 25).59 It also provides for States to provide effective mechanisms “for prevention of, and redress for…[a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources” (art.8, para. 2 (b)).
67. The Special Rapporteur notes the existence of the Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, a Government policy document on aboriginal consultation and accommodation. In this context, he recalls that the Declaration establishes that, in general, consultations with indigenous peoples are to be carried out in “good faith … in order to obtain their free, prior and informed consent” (art. 19). He believes that continued and concerted measures are needed to develop new initiatives and reform existing ones, in consultation and in real partnership with indigenous peoples with the goal towards strengthening indigenous peoples’ own self-determination and decision-making over their affairs at all levels.
68. The broad range of indigenous rights to possess and use natural resources as stated in the Declaration, extend beyond the scope of the mandate of the Special Rapporteur. Nevertheless, these rights do provide a point of reference for evaluating questions related to
IX. Conclusions and recommendation
69. By recognizing access to sufficient and adequate food as a legal entitlement, the right to food provides an important tool for combating hunger and malnutrition. It protects the rights of people to live with dignity and ensures that all have either the resources required to produce enough food for themselves or a purchasing power sufficient to procure food from the market. It imposes obligations on the State, requiring that individuals and communities have access to recourse mechanisms when these obligations are not met. The right to food also requires that States identify the hungry and malnourished by adequate food insecurity and vulnerability mapping, and that they adopt policies that remove the obstacles to its enjoyment by each individual. Consistent with this understanding of the right to food as a human right, the Special Rapporteur offers the following recommendations:
(a) Formulate a comprehensive rights-based national food strategy clearly delineating the responsibilities of public officials at the federal, provincial/territorial, and municipal/local levels, identifying the measures to be adopted and the associated time frames, and ensuring that initiatives adopted at municipal and provincial levels, particularly for the rebuilding of local food systems, are adequately supported; as part of this strategy, create a nationally funded children and food strategy (including school-feeding food literacy and school garden programmes) to ensure that all children, at all times, have access to healthy and nutritious food; launch the process of adoption of a framework law on the right to food, for the regular updating of the Canadian food strategy;
(b) Revise social assistance levels to correspond to the costs of basic necessities required to enjoy the human right to an adequate standard of living, establishing the market basket measure (MBM) as a federal guideline for provincial and territorial social assistance schemes; revise the system of housing benefits to ensure that the poorest families are not obliged to sacrifice food in order to pay for the non-compressible and non-divisible costs of housing; re-establish a national programme with specific cash transfers for social assistance and social services that includes universal entitlements and national standards and lays down a legally enforceable right to adequate assistance for all persons in need, seeking inspiration from the success of the Old Age Security programme;
(c) Set the minimum wage as a living wage, as required under the International Covenant on Economic, Social and Cultural Rights and consistent with ILO Conventions No. 99 (1951) and No. 131 (1970), particularly as regards the requirement that the minimum wage should be fixed taking into consideration, inter alia, “the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social security benefits, and the relative living standards of other social groups;”
(d) Accord status to those Aboriginal peoples unrecognized as such under the Indian Act in order to enable all Aboriginal peoples to have access to land and water rights to which they are entitled; encourage the federal, provincial and territorial governments to meet, in good faith, with indigenous groups to discuss arrangements to ensure access to land, natural resources, Nutrition North Canada and the right to food, among others; accept the request of the Special Rapporteur on the rights of indigenous peoples to undertake an official country visit;
(e) In the organization of marketing for agricultural products, institute limits on the allowable size of an operation established with provincial marketing boards and place caps on the value of quotas, as done in Ontario, Québec and the Maritime provinces; consider creative ways to de-capitalize the quotas in order to ensure that supply management can also benefit farmers employing non-conventional (organic) methods, such as establishing separate quotas for speciality products, creating an exemption for direct marketing, or targeting speciality markets in allocating processing; and favour the entry of new farmers;
(f) Apply human rights criteria in reporting as per the 2008 ODA Accountability Act, and human rights norms and standards in determining international cooperation priorities and implementing programmes; take steps to ensure that Canada’s international policies do not have a negative impact on the realization of the right to food.
Another speaker at the forum, Quebec lawyer Paul Joffe, stated that the United Nations Declaration on the Rights of Indigenous Peoples — which Canada signed in 2010 — has legal consequences in this country.
He cited a recent decision regarding a human-rights complaint about child-welfare services on First Nations reserves. “The Federal Court said the following: ‘The Supreme Court of Canada has recognized the relevance of international human-rights law in interpreting domestic legislation,’ ” Joffe said. “So right away, you can see there are legal effects.”
The UN declaration has 46 articles calling on countries to protect indigenous peoples’ economic, social, cultural, political, environmental, and spiritual rights. The Conservative government has claimed that the UN declaration is “not legally binding”, describing it as “an important aspirational document”.
Joffe, however, adamantly rejected that argument. He noted that the Federal Court decision stated that Parliament “will be presumed to respect the values and principles enshrined in international law, both customary and conventional”. He said that conventional referred to treaties.
Two things must be demonstrated for customary international law to apply. “You have to prove that most states—not all states—adhere to the norm, and the second thing is that there must be a belief that they have some legal obligation to respect that norm,” Joffe stated.
As examples of customary international law recognized by Canadian courts, he listed the right to self-determination, an obligation to honour treaties, and prohibitions of genocide and racial discrimination. He maintained that the UN declaration can be read into Section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights.
“It hasn’t been decided yet,” Joffe acknowledged, “but it’s my view that one day the courts will have to recognize when it says ‘existing aboriginal treaty rights in Section 35’, it has to refer to all of the rights in the declaration.”
Chief Doug White of the Snuneymuxw First Nation told the audience at VCC that no Canadian court has ever had the courage to declare aboriginal title exists on one square inch of land in this country, notwithstanding decades of litigation. He also highlighted the importance of a 2004 Supreme Court of Canada decision, which imposes a “duty of consultation” on the Crown when making decisions that have an impact on aboriginal rights.
In addition, White stated that the UN declaration recognizes that decisions affecting the rights of indigenous people must be done with their “free, prior, and informed consent”. And he claimed that Prime Minister Stephen Harper is “incorrect” when he claims that the declaration is not enforceable in Canada.
The federal government “was going down a pathway that has only become clearer and clearer to us this year,” White said. “So we need to be able to use international rights to achieve a proper pathway to respect and recognition in this country.”
UN panel hears natives’ complaints against Harper government
By: GLORIA GALLOWAY – OTTAWA — The Globe and Mail
(Published Friday, Feb. 22 2013)
Twenty Canadian first nations have taken to the world stage to accuse the Harper government of violating the human rights of their people and of failing to take action against “racist” media reports.
The communities – most of them Cree – made two presentations before the UN Committee on the Elimination of Racial Discrimination in Geneva on Friday.