Bill C-51: An Act to Criminalize Indigenous Peoples who are Defenders of the Land

The following is my written submission to the Parliamentary Committee dealing with Bill C-51 which was submitted to the Parliamentary secretary by email on March 23, 2015

Bill C-51
Anti-terrorism Act, 2015
An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts

Written submission by Ellen Gabriel of Kanehsatà:ke Kanien’kehá:ka (Mohawk) Territory
Since I have not been provided with the opportunity to be a witness in person, I write today as a citizen of the Kanien’kehá:ka (Mohawk) nation from the community of Kanehsatà:ke, whose un-ceded lands continue to be appropriated and stolen through the support of third party interests by Canada.

As a citizen of my nation, I have spent the last 25 years educating the Canadian public on Canada’s history of colonization and genocide. My journey in participating in the protection of Kanien’kehá:ka (Mohawk) lands and resources began before 1990 but became more intense during and after the 1990 Occupation of Kanehsatà:ke, known as the “1990 Oka Crisis”.

During the “1990 Oka Crisis”, myself and other members of the communities of Kanehsatà:ke and Kahnawà:ke came under police surveillance in which we were notified of through the mail. In this notice authorities informed me that all my telephone conversations had been recorded and provide me with a photocopy of a page from the Criminal Code of Canada which highlighted in yellow articles that referred to the justification of my surveillance as “threats to public security” and “suspicion of criminal activities”.

I received three of these types of notices up until around 1995, each with the same reason of ‘criminal’ activities highlighted as the justification for their surveillance.

As a person who has been directly affected by the surveillance policing authorities’, I would like to address some of the serious concerns regarding the impact that Bill C-51 will have on the dignity, security, freedom and access to justice of Indigenous peoples’. Of grave concern is the section on “interpretations” whose vagueness of definitions allows for unilateral interpretations of terms by Canada and its policing authorities thus endangering Indigenous peoples enjoyment of their human rights and right to self-determination.
Articles of Bill C-51 which reference terms such as “threats to public security”, in particular, Paragraph 30 which purports to exclude “… lawful advocacy, protest, dissent and artistic expression.” are extremely worrisome considering how colonial laws have historically and are currently being used to oppress Indigenous peoples as tools of dispossession.

The many unresolved and long standing historical grievances of Indigenous peoples in dealing with Canada’s assumed sovereignty over our lands has yet to be dealt with in a fair and just manner. Land rights of Indigenous peoples are often weakened by Canada’s “land claims” process and violated through subversive means for third party interests.

Canada’s assumed sovereignty upon Indigenous peoples, their lands and resources is based upon legal fictions from centuries’ old Doctrine of Discovery, Doctrine of Conquer and Terra Nullius. These doctrines of superiority have been declared by the United Nations as: “…racist, scientifically false, legally invalid, morally condemnable and social unjust,” .

The practice of Imperialism through Canadian colonial laws continues to subvert Indigenous Peoples’ right of self-determination. This violation consequently contradicts international rule of law which requires all states to uphold the highest standards of human rights without discrimination and with objectivity.

Many recent media reports have revealed the already existing RCMP surveillance of “First Nations” groups and individuals in regards to protests against resource development. Therefore this Bill does very little to promote reconciliation and existing surveillance usurps Indigenous peoples’ right to self-determination and violates the Constitution Act, 1982, Sect. 35 which states:
“35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

It has been mentioned by the government of Canada that this Bill is to protect its citizens from those who are a threat to “… the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada” .

However, as previously mentioned, the incessant criminalizing of Indigenous peoples who defend their lands from development perpetuates the historic injustices designed to undermine and devalue the hope for a peaceful co-existence for the sake of economic and energy security. (please see addendum of this submission on the core of international human rights instruments from the United Nations Office of the High Commissioner on Human Rights)

Particular attention should be paid as well to ability of government institutions to share information to other agencies. Bill C-51 states that government institutions may not only share private information but they have a right to detain and prosecute individuals who appear to be a threat to “…sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:
Thus the question remains: Who will be monitoring government institutions on whether or not the information is a) accurate, b) relevant to an investigation c) does not violate domestic and international human rights Act, Conventions, Treaties and Declarations, d) is respectful, e) is non-discriminatory, f) confidential g) if wrongly persecuted, provides an effective mechanism of redress, and many other issues which seriously impact Indigenous peoples’ collective and individual human rights.

It is unfortunate that there remains a lack of political will by Canada and its provinces to acknowledge and implement the UN Declaration on the Rights of Indigenous Peoples. The UN Declaration should be seen as enriching Canadian society and the Indian Residential School Apology for its ability to provide society with a framework of reconciliation through its elaboration of Indigenous peoples’ human rights. A human rights approach to this bill is paramount to the security of society.
Therefore it is with great urgency that I request this Parliamentary Committee reconsider and revise the flaws of Bill C-51’s “Interpretation” of what constitutes “legal” or “… lawful advocacy, protest, dissent and artistic expression.” Consequently, it must uphold the rule of law and its constitutional duty to consult Indigenous peoples in a fair and democratic way on the language, interpretation and implementation of this Bill.

It has been through the colonial discriminatory lens in which events like the “1990 Oka Crisis” and Ipperwash occurred as consequences of colonial laws and doctrine. In more recent times the use of unwarranted violence by the RCMP in Elsipogtog Mig’ma territory against the defenders of the land who oppose SYNCOR’s gas fracking upon their un-ceded lands.

As development intensifies in Canada and Indigenous peoples, defenders of the land protect their right to self-determination, government and policing authorities alike must become knowledgeable of the universality, indivisibility, non-discriminatory, and inter-dependent of human rights in their efforts to uphold the rule of law. Creating more laws without examining how it impacts human rights, in particular, the collective and individual human rights of Indigenous peoples robs society of the richness of its democracy. Be they civil, political, cultural, linguistic or social rights, the respect and enjoyment of one, is inter-connected to the advancement of the others. Equally, the deprivation of one right adversely affects the enjoyment of other rights.

Bill C-51 ignores the long standing and un-resolved serious issues of land dispossession of Indigenous peoples under the Indian Act. Ignoring this issue continues the unbalanced relationship between Indigenous peoples and Canada and is not reflective of reconciliation or upholding the honour of the Crown. Failing to uphold the honour of the Crown as stated by the Supreme Court of Canada in “matters that seriously affecting Aboriginal Peoples’ rights” constitutes a violation of Aboriginal peoples’ inherent rights to self-determination.

Branding Indigenous peoples who are defenders of their lands as ‘terrorists’ and criminals, fails to respect and implement the Indian Residential School apology and its accompanying reconciliation and restitution.

It allows for relentless attack upon the dignity, safety and well-being Indigenous peoples which has occurred for over 500+ years.

In 1990, I and many citizens of the Kanien’kehá:ka nation were labelled criminals and terrorists by the policing authorities and the governments of Quebec and Canada for simply defending our lives and our lands. I am one of countless generations of Indigenous peoples whose human rights have been threatened and violated by the colonial state due to Canada’s assumed sovereignty over our peoples, lands, and resources.

The root causes of the dispossession and oppression of Indigenous peoples are personified in colonial laws and language. What has been deemed ‘legal’ or sometimes ‘criminal’ in Canadian legislation is often to the detriment of Indigenous peoples to control and contain us for the benefit of the prosperity of Canada.

During the summer of 1990 the Canadian Police Association took out an advertisement in many Canadian media outlets entitled, “We Oppose Terrorism” criminalizing all the Mohawk people of Kanehsatà:ke and Kahnawà:ke. The CPA’s ad spread the governments’ of Quebec and Canada’s propaganda of misinformation fanning the flames of racism by calling Mohawks terrorists and criminals without any investigation, trial or placing into context the history of Canada’s collusion with churches to defraud and dispossess Mohawks of our lands and resources.

The public outrage against the CPA’s ad provoked the Committee Against Racism to write a public comment denouncing their actions but to no avail. This is one of many examples that continues to this day by policing authorities as evident in Bill C-10: An Act to amend the Criminal Code (trafficking in contraband tobacco)

Indigenous peoples should not have to go to Canada’s court system to have their inherent rights respected or to achieve justice and peace. Yet this kind of ambiguity within Canadian law discounts historical treaties like the Two Row Wampum and Silver Covenant Chain which recognized each nation’s right to self-determination.

Bill C-51 in its current form does not promote good faith, nor does it instil any trust that it will not be used as another colonial law to torment and oppress Indigenous Peoples. It contradicts Canada’s international legal obligations such as the International Convention on the Elimination of All Forms of Racial Discrimination , preamble, para
Considering that all human beings are equal before the law and are entitled to equal protection of the
law against any discrimination and against any incitement to discrimination,

It is with a heavy heart when I consider the realities and treatment of my Onkwehón:we (Indigenous) ancestors in examining Canada’s colonial history; one can conclude that the term “genocide” is appropriate to depict part of Canada’s history. Genocide as “crimes against humanity” includes: “to deal with the persecution and physical extermination of national, ethnic, racial and religious minorities.

While the Prime Minister of Canada may have issued an apology for the Indian Residential School System, they are mere words until sincere reconciliation is implemented along with restitution for the damages to our traditional government and identity; languages, culture, dignity, lands, waters and all our relations and recognition that the IRSS was an act of genocide.

Resisting assimilation is an ongoing occurrence for Indigenous peoples in Canada. We can never rest until Canada upholds and respects the human rights and dignity of Indigenous peoples to our rights to self-determination. As Indigenous peoples who have suffered from historic injustices we must remain vigilant in protecting and promoting our ancestral teachings and customary laws that teach us how to care for the land and all our relations.
We will remain uneasy, concerned and troubled of the impacts of Bill C-51 and all other sources legislation which perpetuate colonization and assimilation.

The UN Declaration, and the jurisprudence of the Inter-American Human Rights system itself, requires the full and effective participation of Indigenous Peoples in all decisions affecting their rights. It is the globally accepted minimum standard for the collective and individual human rights of Indigenous peoples. I hope that this committee will take into serious consideration the implications of this Bill, Canada’s colonial history and how it continues to impact the integrity, security and well-being of Indigenous Peoples today.
Thank you for this opportunity to address this Parliamentary committee. My only regret is that I have not been given the opportunity to be a witness in person to discuss in more depth my concerns and perspective on this issue.

Skén:nen – in peace

Ellen Gabriel
Turtle Clan, Kanien’kehá:ka Nation from Kanehsatà:ke

this post does not include Endnotes which this submission also included to Parliament

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