Brief to The Standing Committee on Indigenous and Northern Affairs, for the study of the Subject Matter of Bill C-15

I sent in a brief to the committee for their study on March 25'th (PDF), but it was a bit too long so was asked to send in a more brief brief on April 12'th (PDF, via OurCommons.ca).

I'm merging the footnotes from the earlier version for this blog.

Introduction

This is my ( My name is Russell McOrmond. Full contact information is at http://www.flora.ca/#contact ) first submission to parliament on this area of policy as I previously focused on technology law. I wish to offer myself as an example of a privileged white male who for most of my life was unaware of Canada's record on human rights. I believed what I was told, and now wants what I was told to match Canada's actions.


European worldviews were embedded within the UN's conceptualisation of Human Rights as encoded in the Universal Declaration of Human Rights. I do not believe UDHR was ever universal, and consider UNDRIP a critical step in that direction.


I am aware of opposition to UNDRIP as adopted by the UN General Assembly in 2007, as well to Bill C-15 which is the current incarnation of a bill to affirm and update domestic law to reduce violations of the rights of Indigenous Peoples. I disagree with this opposition.

My transition

I was born in 1968 in Sudbury, Ontario, moved to Ottawa to attend university in 1987, and have lived here since. (I acknowledge I have lived on land of an Anishinaabeg nation my entire life, but have never been given the opportunity to be naturalized.)


In 1990 I heard about the "Oka Crisis". I believed if the Canadian governments sent in the police and military that the "protesters" must have done something wrong. Over the years I have learned to question these assumed "truths". I initiated self-directed anti-racism training starting in the summer of 2020. I better understand what happened during the 1990 Kanesatake Resistance, and recognize it as one of many high profile examples of Canada violating the human rights of Indigenous peoples.

(I wrote an article titled "Help stop overt racism and white supremacy in Canada!" that discusses additional examples https://mcormond.blogspot.com/2021/01/white-supremacy.html )

Criticism: Bill proceeding too quickly

The process that eventually led to UNDRIP started in 1923. This is when Deskaheh, Chief of the Iroquois League, representing the Six Nations of the Iroquois Confederacy, left Canada to go on a mission to Geneva (Switzerland). At that time the elder league of nations (Iroquois 6 nations in 1722, and a confederacy of 5 nations possibly since 1142) wanted to address the younger league of nations (formed at the Paris Peace Conference, 1919, which later became the United Nations) to have the younger league adequately recognize the elder.

To put this in context, this process started only 18 years after the Dominion of Canada unilaterally passed the "Alberta Act" and "Saskatchewan Act'' in 1905. This has been interpreted to impose a British governance system over areas of land which Canada had purchased an exclusive business patent for from the Hudson's Bay Company. These Acts were to split off sections from what the British had been calling the Northwest Territories.


In response to the attempt to get appropriate international recognition for the Iroquois league of nations, the British subsidiary called Canada sent in the RCMP to depose the centuries old participatory democratic Confederacy Council. Canada installed an "Indian Act" band council which is only responsible to the Canadian crown and not citizens. This is not a Representative Government, and the ongoing refusal of Canadian governments to recognize the Confederacy Council and not fold the band council is in my mind an obvious violation of UNDRIP Article 3.

We can skip to the 1940's when the UN was drafting the so-called "Universal Declaration of Human Rights" and how there was a refusal from western nations with their narrow focus on individuality to entertain the idea of protecting "peoples" rather than only "people". Grand Chief Littlechild recently discussed that process during a Town Hall on UNDRIP and C-15 hosted by Amnesty International Canada. ( https://youtu.be/IXh2--pBDdA?t=4435 . This skips to the specific section where J. Wilton "Willie" Littlechild discussed the process. https://en.wikipedia.org/wiki/Willie_Littlechild )

In 1982 the UN established the Working Group on Indigenous Peoples, the same year the United Kingdom passed the Canada Act 1982. The Canada Act, among other things, finally meant that UK law was not automatically Canadian law. The UK population being twice that of Canada had always meant that UK citizens had more influence over Canadian law than anyone actually living on Turtle Island. While new UK laws wouldn't automatically be Canadian law, the BNA and Canada Acts had already imposed a system based on thousands of years of foreign British history onto Turtle Island.


I don't expect anyone was surprised which countries voted against the UNDRIP resolution in 2007, 84 years after the process began. It is the 4 British colonies where non-naturalised settlers greatly outnumber Indigenous peoples: Canada, Australia, New Zealand, United States (collectively known as CANZUS).

These colonies are where the human rights violations against Indigenous peoples have been the greatest over a longer period of time. I put this area of policy into an important context with the following percentages of Indigenous populations remaining in regions currently under active colonialism. Colonialism almost inevitably leads to genocide. ( Dr. Kim TallBear indicates we should use the UN definition of genocide, and recognize Indigenous Peoples "Very Clearly" are suffering genocide.  https://www.facebook.com/407570359384477/videos/2226217140832714 )

Uyghuristan (Xinjiang, means 'new frontier' in Mandarin)	43.6%
Canada	5%
Australia	3%
New Zealand	17%
United States	2%

Given the Government of Canada was created 154 years ago, and for more than half that time this policy has been discussed, nobody can claim that this policy was "rushed".

Criticism: Canada can't be trusted to honour UNDRIP

I understand this criticism, but still disagree. Canada has been violating human rights since it was created by an act of the British Parliament in 1867. Passing Bill C-15 alone will not stop this ongoing violation.

Concurrent with debating Bill C-15, Canada is engaged in further violations of the Rights of Indigenous Peoples. This includes basic Article 3 right of self determination with Canada trying to restrict Jordan's Principle eligibility to a "status" criteria that is determined by Canada and not Indigenous peoples. I consider what is happening near Caledonia with "1492 Land Back Lane" to include violations by Canada and Ontario of several UNDRIP articles. This document could never be considered a "brief" if I tried to list all the violations of human rights by various levels of Canadian governments that I am aware of.

The hardest concept to understand with anti-racism is the difference between individual race based prejudices and the systems of racism ( The author that allowed me to best understand the difference was Ibram X. Kendi, primarily through his book Stamped from the Beginning. https://www.ibramxkendi.com/stamped-from-the-beginning ). Systemic racism isn't a system which contains racist individuals, but is a system which is itself racist. These are systems where "not racist" individuals will still carry out racist acts simply by obeying the law or following normal procedures or practices.



I don't think of Canada as a place, as this place had names long before Europeans visited.

I don't think of Canada as a group of people. At no time in the past did the inhabitants of this land come together and decide to be called Canada or to form the Government of Canada. A small group of white males in a white minority region of the world decided to ask the foreign British government to pass a law. That law created a subsidiary of the British government, created to be part of the British Empire.

What this means is that Canada is a system, and any attempt to make that system less racist must be focused on that system. Whether specific individuals can or cannot be trusted is entirely separate from the system. Far too many people are focused on individual people in indicating that those people cannot be trusted -- individuals following a system and believing they are individually "not racist". This regularly leads to the logical fallacy known as the Association fallacy (Guilt or honour by association, an ad hominem fallacy).


This bill needs to finally receive Royal Assent, after many incarnations being tabled since 2008 ( I discuss the dates within "How I analyse and why I support Bill C-15, the UNDRIP related bill" https://mcormond.blogspot.com/2021/01/c15-undrip-analysis.html ). This last 12 years is sufficient time for debating the exact wording of the bill. Anyone who has been paying attention to this issue at any level has had time to provide input.

Receiving Royal Assent is not a "Mission Accomplished" moment for Justin Trudeau or the Government of Canada. It is a critical but early step in recognizing the truth about Canada, and work that must happen long before we can start reconciliation. Truth comes before reconciliation, and it quickly became obvious to me while studying this area of policy that Canada and most Canadians have not yet come to grips with truth.

Criticism: Free, Prior and Informed Consent (FPIC) is too vague

Similar concepts to "Free, Prior and Informed" exist in contact law (mutual consent, contractual capacity, etc). You can't hold a gun to their head or force someone to sign, can't change the terms after agreement, or lie to one of the parties about the contents of an agreement (translations, etc).

What this really comes down to is that some people believe it is legitimate to debate whether there should be a need for consent for activities which are otherwise considered a violation of human rights.


I know of no other human rights that are so callously debated. Nobody would be asking if a "right to life" represented a "veto" for those who wanted to murder (especially for profit).


Is it a "veto" to disallow slavery or torture? What about narrow western notions of property in UN UDHR article 17 (western notions of property being exclusivity without responsibility)?

The context I have heard this debated most often is from individuals or politicians representing industries which wish to continue to violate human rights for profit. I find it disgusting that this conversation persists in the Canadian government, parliament and media.

Criticism: Indigenous Peoples should be consulted on C-15 and have FPIC

UNDRIP was primarily authored by Indigenous peoples, and wasn't authored by Canada. Bill C-15 itself regulates Canada, future Canadian governments, and not Indigenous peoples ( I offer a more extended version in https://mcormond.blogspot.com/2021/02/undrip-regulates-canada.html  ). This criticism is largely an example of the Association fallacy.


I believe this relates to the confusion about what Canada is (a system), where there is a belief that if the Government of Canada (parliamentarians) tables a bill that it must be in the interests of Canada (the system).


Canada markets itself domestically and internationally as a leader in protecting and promoting human rights. Canada rejecting international human rights norms would cause people to recognise this as a myth. Canada really doesn't have a choice if it wants to avoid sanctions against it for being a perennial violator of human rights. While Canada and the USA have Magnitsky legislation, the lack of understanding of what CANZUS countries are doing will likely surprise some when similar legislation in other countries is finally used to sanction Canada.

It makes perfect sense for Indigenous peoples globally to be critical of Canada for delaying affirmation and the process to correct the large body of "domestic" laws which encourage/induce human rights violations. It makes no sense to oppose the bill once it is understood that C-15 is not something the Canadian government wants to do, but is something that due to international pressure Canada must do.

Bill C-15 does not "implement" UNDRIP, the way most people understand the word "implement".

The bill affirms UNDRIP applies in Canada. This is an additional clarification of the status-quo, given UNDRIP should be understood to already apply once it was officially adopted by Canada in May 2016. Embarrassingly, Canada was the last of the 4 original CANZUS objector countries to finally adopt UNDRIP. (Australia 2009, New Zealand 2010, United States 2011)


Secondly, the bill creates a process to amend laws which is "in consultation and cooperation with Indigenous peoples". It is not in passing C-15 where FPIC might be violated, but with a dishonorable government carrying out the process in a way that gets this aspect wrong. This isn't a logical reason to oppose C-15 as this is not where the problem exists, but a reason to be aware that passing of C-15 is the beginning and not the end of a process.



Every time a government representative claims that C-15 "implements'' UNDRIP "in accordance with the Canadian Constitution" they are generating opposition and making it harder to move forward.


Canada is in violation of human rights prior to the passage of C-15, and will still be in violation after. Passing C-15 is about a process, and is not a magic wand that will immediately stop Canada from violating human rights.


Several government representatives discussing UNDRIP in context of Section 35 of the Canadian Constitution speak in a way that suggests the reverse of the non-derogation clause in Bill C-15. That clause is clearly intended to be read that C-15 can not be interpreted in a way to reduce any rights affirmed by Section 35, while UNDRIP is clearly intended to articulate new rights beyond Section 35. Language used by government representatives are being interpreted to mean that UNDRIP is subservient to Section 35 - that the only UNDRIP rights that remain when "domesticated" are those already confirmed by past Section 35 interpretations.

The constant use of the "implement" language, as well as confusion around the relationship between UNDRIP and Section 35, has caused many Indigenous peoples to oppose Bill C-15 due to the mixed messages the government is sending. I'm not sure if generating confusion and opposition is a deliberate action on the part of the government, or part of the ongoing mishandling of this area of policy.

Criticism: Provinces, municipalities, or business sectors should be consulted on C-15 and have FPIC

No.



Trade and other sanctions for ongoing human rights violations will be against Canada. Internal jurisdictional issues may be important to Canada, but are irrelevant at an international level.


This is true in the context of UNDRIP as well as the nation-to-nation relationships between Canada and First Nations. UNDRIP, as well as Section 35 of the Canadian Constitution, must always be understood to be at the national level, above the provincial level and beyond internal Canadian jurisdictional debates.

Provinces are creatures of the Government of Canada and/or Britain and should not have a say in whether they will honour internationational human rights instruments. Municipalities are provincial corporations, and as with any other corporation should simply honour international human rights norms or be held fully accountable for any non-compliance. Each level of government should be launching their own process to modify their own laws and procedures to come into compliance with international human rights, and not in any way slow down the federal process.


Businesses which have been profiting off violating human rights should be brought into compliance, or possibly folded as a consequence of continuing for-profit violations of human rights. They should be treated as organized crime. I noticed the witness list and am not sure how organisations such as the "Canadian Association of Petroleum Producers" could have anything fruitful to add to this human rights discussion.