Copyright © 2001 NLThomas
All Rights Reserved

Dear Sirs:

I am writing to you as President of the Indigenous Bar Association (IBA), the national association of Indian, Inuit and Métis lawyers in Canada. The IBA is a professional organization and normally refrains form commenting on political matters. However, recent events require that the public record be set straight.

I wish to preface my comments by stating I do not believe Canadians are racist, for the most part. Nor do I believe that the Canadian government is overtly racist, though it is often ill advised. Having said this, I take issue with criticism by both the press and federal politicians, of the Assembly of First Nations (AFN) National Chief, Mathew Coon Come, in reference to comments he recently made at the UN Conference on Racism, in Durban, South Africa. While I do not agree with everything the National Chief has done while in office, I wholeheartedly agree with many of his comments about racism in Canada. And, though only some of the racism that exists in this country may be willful and deliberate, there is no doubt that systemic racism is a part of the daily lives of many Aboriginal people.

Many members of the Indigenous Bar Association are practitioners and work on a daily basis in the justice system, where racism is rampant. The most glaring example of systemic racism is the disproportionate number of Aboriginal people in prisons. Aboriginal people are approximately 3% of the Canadian population, yet Aboriginal people make up approximately 15% percent of the prison population. In provinces like Manitoba and Saskatchewan, it is much worse. One need only visit the halls in provincial courthouses in some prairie cities or in northern communities to get a sense of the tremendous injustices. The Supreme Court of Canada has acknowledged this discrimination in a number of cases, particularly in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Williams, [1998] 1 S.C.R. 1128 decisions. In Williams at paragraph 58, the Court said this of the criminal justice system:

There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system: see Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, at p. 33; Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, vol. 1 (1989), at p. 162; Report on the Cariboo-Chilcotin Justice Inquiry (1993), at p. 11. Finally, as Esson C.J. noted, tensions between Aboriginals and non-Aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights. These tensions increase the potential of racist jurors siding with the Crown as the perceived representative of the majority's interests.

But systemic racism is not only reserved for the justice system, it extends to the manner in which social programs and services are delivered. So, while it is with great pride that the federal leadership refers to United Nations reports indicating the living standards in Canada are among the best in the world, if measured against the same criteria, Aboriginal communities would be ranked among the poorest. Clearly, whether intentional or not, Aboriginal peoples are not receiving the same socio and economic benefits as are other Canadians. In fact, the National Chief made reference to findings in 1998 and 1999 by the two highest human rights monitoring bodies at the UN that the conditions faced by Aboriginal peoples in Canada are a violation of Canada's international human rights obligations. The remarks made by the National Chief were in fact for the most part references to findings by other bodies that racism against Aboriginal peoples is undeniably a part of the Canadian reality.

I am astounded by the reaction of the media, which has almost unanimously condemned the National Chief for his comments. Less than a year ago, members of the media were stumbling over themselves in the rush to praise Mathew Coon Come when he criticized First Nation leadership for their indulgences. I now question whether the media itself is guilty of its own form of racism through willful denial. I am equally astounded by the reaction of the federal government. The veiled threats, the denial and the demand for an apology are inconsistent with the honour of the Crown, which is always at stake in its dealing with Aboriginal peoples. Though national pride may have been injured, denial will not resolve the problems that exist. Nor will simply spending more money. What is required is an understanding amongst federal politicians of how grave the problems are, a commitment to address the problems in a systematic manner, and a long term vision for fundamental change. This would have to be coupled with a long term commitment to provide the necessary resources. The report of the Royal Commission on Aboriginal Peoples identified a path to follow, but the report lies on shelves gathering dust.

In 1969 the federal government thought that racism could be eliminated by eliminating Indian reserves and Indian status and treating Indians "like everyone else". That is exactly what the federal government tried to do with the residential schools policy and through policies of legislated assimilation. Canadians are very much aware of that sad legacy of attempts at forced assimilation. Government orchestrated assimilation is a form of social engineering, with racism at its core. The 1969 White Paper was a continuation of these ill advised racist policies and that is why it was so vehemently rejected.

Aboriginal peoples were here first, living on the land in organized societies under their own laws. Aboriginal people want to be recognized as the original owners of the land and receive the benefits that ought to flow from that recognition. The Supreme Court of Canada recognized original Aboriginal occupancy as a source of entitlement in Delgamuukw v. B.C., [1997] 3 S.C.R. 1010, through the characterizing of Aboriginal title as something akin to full ownership. Unfortunately the government refuses meaningfully to address this. The clock cannot be turned back, but in moving forward, past wrongs must be made right. Land claims must be dealt with fairly. Socio economic disadvantages must be eliminated so that substantive equality can be achieved. Substantive equality involves achieving socio-economic indicators that demonstrate equal education levels, equal incarceration rates, equal infant mortality rates, equal income levels, equal levels of employment and so forth. This can only happen when the discrimination that is endemic in our system is eliminated

It is inequitable to ignore and to refuse to address these issues with honour and respect. It was racist to take Indian land under the pretext of colonial theories that Aboriginal people were "infidels," "children", or "barbarians" who could not own land; and it was racist to take the land without informed consent, without paying for it fairly and properly, and to marginalize Aboriginal people on tiny reserves. And it is racism today to allow this situation to be perpetuated. It is wrong, and the government has been told it is wrong by the highest court in the land, by the Royal Commission on Aboriginal Peoples, by numerous reports and commissions regarding Aboriginal peoples and the administration of justice, and by the volumes of socio-economic studies that have been undertaken.

With respect to the (AFN) National Chief's comments in Durban, we now live in a global society and in an age of enlightenment where human rights have captured the attention of the world. It is impossible for Canada to keep the unsettled land claims and the socio-economic conditions of Aboriginal peoples quiet. Canada is being judged and will continue to be judged by the international community on how it treats First Nations. If Canada is as open, transparent and democratic as it professes to be, it should welcome international scrutiny and be prepared to change its policies if they are racist when measured against both domestic and international standards.

The media should encourage this international scrutiny rather than engaging in denial and falling into the strategy of federal spin-doctors by demonizing the AFN National chief because he speaks the truth, however harsh it may sound.

Respectfully,

Mark L. Stevenson,

President, Indigenous Bar Association